Bruce and Douglas

FAMILY COURT OF AUSTRALIA

BRUCE & DOUGLAS

[2014] FamCA 80

FAMILY LAW – CHILDREN – Mother to have sole parental responsibility for the child – the child to spend no time with the father

APPLICANT:	Ms Bruce
RESPONDENT:	Mr Douglas

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Robert Halliday & Associates

FILE NUMBER:

DGC

2207

2011

DATE DELIVERED:

11 February 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

21-22 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Respondent in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE ICL

Mr Brewer

INDEPENDENT CHILDREN’S LAWYER

Robert Halliday & Associates

Orders

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the child L DOUGLAS, (“the child”) born … April, 2011.
That the child live with the mother.
That the child spend no time with the father.
That the father be permitted to forward to the child a card, letter or present on 6 occasions each calendar year, such communication to be forwarded to an address nominated by the mother, such items to be opened by the mother and provided to the child provided such communication is child-focussed and appropriate.
That the mother inform the father of any significant issue relating to the welfare of the child and for that purpose the father nominate a contact address and telephone number for such communication.
That the father and the mother be and are hereby restrained by themselves their servants or agents from denigrating, belittling or abusing the other parent in the presence or hearing of the child or permitting other persons to do so in the child’s presence or hearing.
That the appointment of the Independent Children’s Lawyer be discharged on 7 March 2014.
That all extant applications be otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bruce & Douglas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: DGC 2207 of 2011

Ms Bruce

Applicant

And

Mr Douglas

Respondent

REASONS FOR JUDGMENT

These proceedings relate to parenting arrangements for the child L Douglas, (“the child”) aged two and a half years at the time of the hearing. The child has lived with her mother since her birth in April 2011. She has had very limited time with her father; save for the purposes of the preparation of the Family Report, the child has had no time with the father since she was aged 10 months.
The mother seeks orders that the child continue to live with her and that she have sole parental responsibility. She seeks an order that the father have no time with the child and further seeks an order that she be permitted to change the child’s surname to that of her own.
The father seeks orders for equal shared parental responsibility. Further, he seeks orders that the child live with the mother and that he spend time with the child on a supervised basis for a period of 12 months. Upon the expiration of that 12 month period, provided that the father “has not acted in a manner contrary to ordinary standards of civil conduct” he seeks that the need for supervision be dispensed with.
The child’s parents have never lived together. They were in a relationship between April and September of 2010. The mother alleges that the father has been abusive and threatening towards her both during the parties’ relationship and since the parties’ separation. As a result of the father’s conduct towards her, the mother sought and obtained an intervention order against the father on 15 August 2011. The operation of that order has been extended to 15 August 2015. I will refer to the history of the intervention order proceedings later in this judgment.
The mother alleges that she is fearful of the father and that she is greatly distressed at the prospect of him spending any time with the child. She further alleges that the father has a history of substance abuse which heightens her concerns for the child’s safety if she were to be placed in the father’s care.
The orders sought by the father indicate an acknowledgment by him of at least some of the concerns raised by the mother. The father has been convicted of breaches of intervention orders obtained by the mother and other persons. I will refer to his criminal history in more detail later in this judgment. However, the father’s position is that he seeks the opportunity to demonstrate that he has modified his behaviour, and that he can provide a settled and stable environment which will enable him to develop a close and meaningful relationship with the child.
BACKGROUND
The child’s mother is Ms Bruce, aged 23 years. She is the applicant in these proceedings. She resides with the child at an address disclosed to the Independent Children's Lawyer (“the ICL”) but not known to the father. She is currently engaged in full-time employment. The mother has re-partnered and lives with Mr N, aged 22 years. Mr N is engaged in full-time employment.
The father is Mr Douglas, aged 31 years. He is the respondent in the proceedings. He resides at Town A and is currently unemployed, having been released from prison in late September 2013, one month prior to the commencement of the hearing.
The parties were in a relationship, although not living together between April and September 2010.
There is one child of the relationship, namely the child L Douglas born in April 2011. The child attends day-care on a full-time basis from 8.00 am to 3.30 pm each day. The mother’s evidence is that the child is progressing well and that she is thriving in her home environment and at day-care. She has a close relationship with Mr N and with her maternal grandparents.
Proceedings commenced in the Federal Magistrates’ Court (as it then was) upon the application of the mother filed 21 July 2011. In that application the mother sought orders for sole parental responsibility, and for the child to live with her. The father filed a Response to Initiating Application on 30 August 2011. In that application the father sought orders for equal shared parental responsibility and that the child spend equal time with him. He also sought orders for specific time on special occasions, such as birthdays, Christmas, Mother's Day and Father’s Day.
On 6 September 2011 interim orders were made by consent by Federal Magistrate O’Sullivan (as he then was) which provided inter alia:-
·That the father spend time with the child each Tuesday from 12.00 noon to 2.00 pm, supervised by the maternal aunt, Ms B; and
·That the father enrol in and undertake a parenting course for parents of infants.
On 12 December 2011 further interim orders were made by Federal Magistrate O’Sullivan (as he then was) which provided:-
·That the previous orders for supervised time between the father and the child be discharged;
·    That until further order the child spend time with the father as follows:-
(a)    For a period of two hours each fortnight at a children’s contact centre;
(b)   Until such time as the father commences spending time at the children’s contact centre, from 12.30 pm to 3.30 pm each Sunday at a play centre, such time to be supervised by the mother; and
(c)    On Christmas day 2011 from 11.00 am to 4.00 pm, such time to be supervised by the mother;
·    The parties were to submit their applications to the children’s contact centre forthwith; and
·    The father to enrol in an appropriate anger-management course and provide proof of completion of such course to the mother.
On 13 February 2012 the mother filed an Application in a Case wherein she sought that the father’s time with the child be suspended. Further she sought an order that the father undertake random urine drug screens upon receipt of a written request for the same. That application was heard by Federal Magistrate Curtain (as he then was) on 23 April 2012. The father did not appear at Court that day. Upon hearing the mother’s application Federal Magistrate Curtain made orders which included:-
·That an Independent Children's Lawyer be appointed to represent the child;
·That all previous parenting orders be suspended;
·That the father spend time and communicate with the child at a children’s contact centre, the costs associated therewith to be at the father’s expense and each party forthwith complete all necessary details outlined by the contact centre; and
·That the father undertake and complete a recognised anger-management course and provide a certificate of completion to the mother’s solicitor;
·That each party forthwith enrol in and complete a post-separation parenting course;
·That the father undertake supervised drug screens on dates and times nominated by the ICL.
On 31 July 2012 further orders were made by Federal Magistrate Curtain for the appointment of a Family Consultant to prepare a Family Report. In addition, that day orders were made by consent that the mother advise the father through her solicitor of any significant illness or injury affecting the child.
On 14 November 2012 Federal Magistrate Curtain made further orders which provided inter alia:-
·That the matter be listed for final hearing in May 2013;
·The father attend upon a psychiatrist as nominated by the ICL;
·That all previous parenting orders be suspended;
·The child live with the mother; and
·That the father undertake random supervised drug screens as requested by the ICL.
On 2 May 2013 the proceedings were transferred to the Family Court of Australia on the basis that it was estimated that the hearing time was likely to be five days.
The matter was listed before Cronin J on 5 June 2013. Directions were made for the preparation of the matter for final hearing. Ultimately, the matter was listed for hearing before me on 21 October 2013.
MATERIAL RELIED UPON AND ORDERS SOUGHT
The mother relied upon:-
·Case outline dated 11 September 2013;
·Amended Initiating Application filed 27 May 2013;
·Affidavit of the mother sworn 4 July 2013;
·Affidavit of the mother sworn 26 July 2013.
The orders sought by the mother were those set out in her case outline document, being:-
·That the mother have sole parental responsibility for the child;
·That the child live with the mother;
·That the child spend no time with the father;
·That each parent be restrained from denigrating, belittling or abusing the other parent in front of or within the hearing of the child;
·That the mother be permitted to amend the child’s birth certificate to change her last name from Douglas to Bruce.
The father relied upon the following documents:-
·Outline of case document filed on his behalf in the Federal Magistrates’ Court proceedings on 29 April 2013;
·Second Amended Response to Initiating Application filed 7 June 2013;
·Affidavit of the father sworn 19 July 2013.
The orders sought by the father were those set out in his Second Amended Response to Initiating Application filed 7 June 2013 and included the following:-
·That the parties have equal shared parental responsibility for the child;
·That the child live with the mother;
·That the father spend supervised time with the child such time to be supervised by a person agreed upon from time-to-time and in default of agreement such time to occur at a children’s contact centre for a period of 12 months;
·That in the event at the expiration of the 12 months from the date of the orders the father has not “acted in a manner contrary to ordinary standards of civil conduct” that the father have liberty to apply to dispense with the need for supervised contact with the child;
·That upon the father meeting the prerequisites for an application to remove the requirement for supervision the parties participate in mediation to discuss changes to the orders and for the purpose of facilitating unsupervised time with the child by the father;
·That the father be at liberty to send the child letters, gifts, cards and the like;
·That commencing upon the child’s fourth birthday the father telephone and communicate with the child each Sunday evening from 5.30pm for not more than half an hour, such communication to also comprise telephone calls to the child on her special days such as birthdays and Christmas, the mother to facilitate such communication and provide a valid telephone number for the purpose;
·Each party keep the other informed of their residential address and contact telephone number and any changes thereto within 24 hours of such change;
·That both parties are restrained from:-
(a)Denigrating the other party or the other party’s family in the presence or hearing of the child;
(b)Discussing parenting disputes and/or issues within the presence of the child; and
(c)Passing messages through the child.
·That in the event that either party seeks to take the child out of the State of Victoria for holidays or any other purpose, the travelling parent provide the other parent with a brief itinerary and contact numbers of accommodation to be used while on such travel at least 14 days before the travel is due to commence;
·That each party advise one another as soon as possible and in any event within 24 hours of the child requiring medical attention or hospitalisation whilst in their respective care and each party agrees to adhere to any treatment regime prescribed by the child’s medical practitioner or specialist;
·That the mother endeavour to encourage the child’s relationship with the father and facilitate the child’s time with the father, be it supervised or unsupervised;
·That the father be permitted to communicate with the child by letter and by sending gifts and cards to a post office box established by the mother for this purpose;
·That in all other respects the mother’s Initiating Application as amended be dismissed; and
·Costs.
The Independent Children's Lawyer (“the ICL”) relied upon the following documents:-
·Outline of Case document dated 17 October 2013;
·Family Report by Mr C dated 13 November 2012;
·Affidavit of Professor D sworn 6 September 2013.
The ICL sought orders in the terms of the recommendations made by the Family Consultant, Mr C in his report dated 13 November 2012. He opposes orders that the father spend time with the child on the basis that due to the alleged history of violent conduct by the father towards the mother and others, the father poses an unacceptable risk of harm to the child.
As both the mother and the father were unrepresented, at the commencement of the hearing I provided each with copies of s 60B, s 60CA, s 60CB, s 60CC, s 60CD and s 60CE of the Act. I informed all parties that in accordance with the provisions of the Act I must have regard to the best interests of the child as the paramount consideration. Further, I informed all parties that in determining what is in the child’s best interests I would have regard to the considerations set out in s 60CC of the Act. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
Mr Brewer appeared on behalf of the ICL and was very helpful. He agreed to go first in the cross-examination of each of the witnesses so that he could cover some of the material and the parties could collect their thoughts as to any remaining questions. As a result, each of the parties had the opportunity to experience how questions were to be properly framed prior to commencing their cross-examination of witnesses.
THE RELEVANT LEGAL PRINCIPALS
Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is, they seek orders with respect to:
·The time the child is to spend with her father;
·The allocation of parental responsibility for the child; and
·The communication the child is to have with the father.
Subject to the provisions of s 61DA (presumption of equal shared parental responsibility), s 65DAB (parenting plans) and Division 6 of Part VII of the Act, I may make such parenting order as I consider proper (s 65D of the Act). In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration (s 60CA).
As these proceedings were instituted prior to 7 June 2012, Schedule 1 of the Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 does not apply.
Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to those considerations in detail later in this judgment. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child (or another child who was a member of the parent’s family) or family violence (s 61DA(2)). Further, the presumption may be rebutted by evidence that satisfies me that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). For the reasons set out later in this judgment, I am satisfied that that presumption is rebutted in this case. Further, for the reasons detailed later in this judgment I am satisfied that it is not in the child’s best interests for the father and the mother to have equal shared parental responsibility.

The principles outlined above have been authoritatively examined by the High Court in MRR v GR (2010) 240 CLR 461.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses.
THE ISSUES
The issues in this case, as identified in the parties’ case outlines, witness affidavits and family report and during the course of the hearing may be summarised as follows:-
·Allocation of parental responsibility;
·Whether the mother has been the subject of family violence by the father; and if so
·Whether the mother’s ability to parent has been affected by her exposure to family violence at the hands of the father;
·Whether the child should spend time and communicate with the father and if so, whether the father’s time with the child should be supervised;
·Whether the child is at risk of physical or psychological harm as a result of her exposure to abuse or family violence; and
·Whether the mother should be permitted to change the child’s surname.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
PRIMARY CONSIDERATIONS
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The child has lived with the mother since her birth. Following the child’s birth, by agreement the mother facilitated the father’s time with the child. However those arrangements ceased in or about June 2011 due to what the mother alleged to be the father’s abusive and threatening behaviour.
After proceedings were commenced in July 2011, the father spent some limited time with the child pursuant to court orders. Initially, orders were made for the father to have two hours each Tuesday, with that time being supervised by the mother’s sister. That arrangement broke down when the mother’s sister refused to continue to provide supervision, alleging that the father had behaved in an abusive and threatening manner towards her.
As a consequence of the refusal of the mother’s sister to continue supervision, further orders were made on 12 December 2011 providing for the child to spend time with the father at a child contact centre. Orders were also made for the mother to facilitate the father’s time with the child at a children’s play centre whilst awaiting a placement at the children’s contact centre. That arrangement ceased on or about 13 February 2012 as a result of allegations by the mother that the father continued to contact her and had threatened to kill her.
Notwithstanding the orders for the father to spend time with the child at the children’s contact centre, the father did not submit his application to that service until the middle of 2012. Appointments were arranged for the parties to attend for intake interviews at the children’s contact centre, the father’s interview being scheduled for 13 August 2012. That interview did not proceed due to the father being taken into police custody in relation to family violence alleged to have been perpetrated by him against his then partner, Ms E.
As a consequence of the above matters, the father has had very limited time with the child. The father last spent time with the child when she was aged approximately 10 months.
In his Family Report dated 13 November 2012 (“the Family Report”) the report writer Mr C observed a play session between the father and the child in the presence of the child’s maternal grandmother, Ms F. That play session occurred on 1 November 2012, when the child was aged approximately 18 months.
At paragraph 78 of the Family Report Mr C observed that during the observation “it became evident that [the child] did not recognise [the father]…notwithstanding her grandmother’s encouragement, the child became distressed and was clearly unwilling to be handed to her father.”
At paragraph 81 of the Family Report Mr C observed as follows:-
The play session continued in this vein for about 30 minutes after which it became quite evident that, notwithstanding her grandmother’s encouragement, [the child] did not recognise, displayed no attachment to and was not going to permit herself to be picked up, or held by [the father]; so the session was brought to an end.
That evidence was not challenged. Accordingly, I am satisfied that the child has no attachment to or knowledge of the father.
Not surprisingly, having regard to the history of the mother’s care of the child, she was observed to have a close and secure relationship with the mother and the maternal grandmother.
The Act does not define the term “meaningful relationship” nor does it prescribe criteria upon which the Court is to rely in determining how a child’s parents are to have such involvement in a child’s life.
In the decision of Mazorski v Albright (2007) 37 FamLR 518 Brown J considered the question of what is a meaningful relationship and concluded at paragraph 26 that a meaningful involvement “is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one”.
In McCall & Clark (2009) 4` FamLR 483 the Full Court cited Brown J’s judgment in Mazorski v Albright with approval. Further, the Full Court concluded at paragraph 119 that the preferred interpretation of s 60CC(2)(a) is the “prospective approach”, that is that the court “should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”.
At issue in this matter is the question as to the benefit of the child of having a meaningful relationship with the father in circumstances where:-
·the child has had limited time with the father and is observed by the Family Consultant to have no attachment to the father;
·the mother alleges serious and continuing family violence being perpetrated by the father against her which causes the mother ongoing fear and distress; and
·the mother alleges that the father has ongoing issues with substance abuse which expose the child to risk if the child were placed into his care.
Those matters call into question the benefit to the child of having a meaningful relationship with the father. It is necessary to consider these issues in further detail below.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The mother alleges that she has been subjected to ongoing family violence at the hands of the father. She alleges that she has been threatened and abused by the father. Further she alleges that as a result of that family violence she is fearful for her own safety and for the child’s safety. Finally, she alleges that as a result of her fear of the father, her role in parenting the child to the best of her ability is made more difficult.
In her trial affidavit sworn 4 July 2013 (“the mother’s trial affidavit”) the mother deposes to a series of events where she alleges she was subjected to abusive or threatening behaviour by the father. Those occasions include:-
(a)Threats of violence by the father towards her during an appointment at her doctor’s surgery, necessitating staff at that surgery to contact the police.[1]
(b)On 10 April 2011 when the mother was in hospital following the child’s birth, threats by the father that he “felt like punching” her in the face necessitating the hospital security to contact the police.[2]
(c)On 10 June 2011 the mother alleges that during a telephone call the father threatened to “get people to come and get [her] and take [the child]”.[3]
[1] Paragraph 8 of the mother’s trial affidavit.
[2] Paragraph 9 of the mother’s trial affidavit.
[3] Paragraph 11 of the mother’s trial affidavit.
The father denies those allegations of abusive and threatening behaviour in his trial affidavit filed 19 July 2013.
In addition to those matters the mother deposes in her trial affidavit to a series of alleged breaches by the father of the intervention order obtained by her against him on 15 August 2011. In particular, those matters are set out in the mother’s trial affidavit at paragraphs 37 to 46 inclusive and in support of those allegations the mother annexes to the trial affidavit her statements made to police on 24 October 2011, 5 February 2012, 30 May 2012, and 15 June 2012 in relation to the father’s alleged breaches of her intervention order.
Counsel for the ICL cross-examined the mother in relation to the father’s conduct and as to the impact of that conduct upon her. During her oral evidence the mother confirmed the allegations that the father had threatened to shoot her, that she had observed the father at the bus stop opposite her home contrary to the terms of the current Intervention Order against him prohibiting him from being within 200 meters of her home and that she had reported those matters to the Police.
Further, the mother gave evidence that she had ceased facilitating the father’s time at a play centre due to his threats against her, which included threats that he would “kick [her] head in” and that he would kidnap the child.
The mother was also cross-examined in relation to an incident which occurred on 5 February 2012 when the child was aged approximately 10 months. It was the mother’s evidence that earlier that week she had through her lawyers informed the father that she was no longer prepared to facilitate the father’s time with the child at the play centre. On 5 February 2012 the father telephoned the mother inquiring as to whether she was attending the play centre that day. The mother’s evidence was that she told the father to contact his lawyer and then ended the call. After that call the father telephoned the mother a further 15 times. Following those calls, the mother received another call from the father which she answered. The mothers’ evidence was that she requested the father to stop calling and again suggested he contact his lawyer. The mother’s evidence was that the father replied, stating that she was “fucked” and further that she should “watch your back or you will end up with a bullet in your head”. During a subsequent call that day the mother’s evidence was that the father threatened that he would come to “kick your door in, put a bullet in your head and take my daughter so watch your back”. The mother confirmed that she was frightened by the father’s conduct and that she continues to be fearful of the father.
The father did not cross-examine the mother or seek to challenge her evidence in relation to those matters.
The mother appeared nervous and intimidated at having to appear on her own behalf and also at having to be cross-examined by the father. Nonetheless, she gave her evidence in an open and forthright manner. At all times she presented as a truthful witness. Having heard her evidence and observed her demeanour in the witness box, and during the course of the hearing I accept the evidence of the mother as to the father’s conduct towards her and as to the impact of that conduct upon her. I am satisfied that the mother has been subjected to family violence at the hands of the father, that her fear of the father is genuine and that having regard to the history, her fear for her well-being and safety is reasonable.
The father’s criminal history provides insight as to the basis for the mother’s concerns with respect to the father’s threats against her. The father was cross-examined extensively by counsel for the ICL in relation to his criminal history. Exhibit ICL-2 is the father’s Victoria Police criminal record. That criminal record discloses the following history since the child’s birth in April 2011:-
a)In June 2011 the father appeared in the Magistrates’ Court on charges of possession of a prohibited weapon without exemption or approval. The father was convicted and the matter was adjourned to June 2012 and a forfeiture order was made without consent in relation to the prohibited weapon.
The father was cross-examined by counsel for the ICL in relation to that matter. It was the father’s evidence that the prohibited weapon was a set of home-made knuckledusters which were found by the police in the boot of the father’s car. The father’s evidence was that the knuckledusters had been given to him by a friend who had made them in a woodwork class at school. The father provided no evidence as to why he was given that weapon or why he was carrying it in his car. The father demonstrated little insight as to the seriousness of the offence. Further, the father took no responsibility for his offending on that occasion, seeking to attribute responsibility to the friend who had given him the weapon. The father’s approach of seeking to blame others for his actions was a recurrent theme in his evidence.
b)In May 2012 the father appeared in the Magistrates’ Court charged with contravening a family violence intervention order and making threats to kill. The father was convicted on that occasion and fined an aggregate of $1000.
The father was cross-examined in relation to that matter and it was his evidence that he could not recall whom he had threatened to kill on that occasion. After further cross-examination the father eventually conceded that he knew making such a threat was a serious offence. Again, the father demonstrated little insight as to the seriousness of those offences or as to the impact that his behaviour had on those around him.
c)In September 2012 the father appeared at the Magistrates’ Court charged with a number of offences including possession of a prohibited weapon without exemption or approval, being armed with a firearm with criminal intent, possession of cartridge ammunition without a licence or permit, unlicensed storage of a firearm and ammunition and stored in an insecure manner, making threats to kill, careless driving of a motor vehicle, failure to give name and address, possession of cannabis, and possession of amphetamines. The father was convicted of those offences and sentenced to 60 days imprisonment, served concurrently. In addition, the firearms were forfeited and the father was placed on a community correction order for a period of 12 months. The father was ordered to perform 120 hours of community work commencing in October 2012. Further, the father was ordered into a treatment and rehabilitation program for drug abuse or dependency and was also directed to attend a men’s behaviour change program.
The father was cross-examined in relation to these matters. It was put to the father that the charges arose from an incident whereby the father held his then partner, Ms E at their home and threatened to kill her and that a siege then ensued at their home.
The father admitted that police surrounded the home and that he remained in the home for a period of approximately six hours. The father’s evidence in relation to that incident was that notwithstanding the police presence, he was asleep for approximately five-and-a-half hours during the siege and accordingly, was unaware of the police presence outside the home. The father admitted that on that occasion the police found him to be in possession of a taser gun and a rifle.
In light of the father’s conviction and incarceration for those offences, I found the father’s explanation for those events implausible. The impression the father sought to give in relation to those offences was that the police attendance was unnecessary and arose as a result of some misunderstanding between, he, his then partner and her family. I am satisfied that the father sought to minimise the seriousness of his offending on that occasion.
d)In October 2012 in the Magistrates’ Court the father was convicted of criminal damage and possession of a dangerous article in a public place.
e)In February 2013 in the Magistrates’ Court, the father was convicted of making a false document to the prejudice of another, contravention of a family violence intervention order, threats to inflict serious injury, stating a false name when requested and use of a false document to prejudice another. He was also charged and convicted with possession of cannabis, possession of amphetamines and possession of cartridge ammunition without a licence or permit. The father was convicted and sentenced to three months imprisonment, the sentence being wholly suspended.
The father was cross-examined in relation to those matters. He confirmed that the threats to inflict serious injury were threats made against Mr E, the father of his former partner and the family violence intervention order contravened was that of his former partner, Ms E.
He was also cross-examined in relation to the weapons offences. The father’s evidence in relation to those offences was that he was found in possession of a .22 rifle and a shotgun barrel (for which he did not hold a licence). When asked where he had obtained the rifle it was the father’s evidence that he had found it whilst taking his dog for a walk in the bush. It was my impression that the father was seeking to minimise the seriousness of those offences. I found his explanation as to how he came into possession of the rifle to be fanciful.
f)In August 2013 in the Magistrates’ Court, the father was charged and convicted of contravening a family violence intervention order and a personal safety intervention order, stating a false name when requested and failing to answer bail. On that occasion, the father was placed on a community correction order for a period of three months.
Again, the father was cross-examined in relation to the circumstances of those offences. The father confirmed that the intervention order contravened was that taken out by his former landlord in Suburb H. The father alleged that he was involved in a dispute with his former landlord over the return of chattels and that it was in that context that the breach of the intervention order occurred. The father stated that his former landlord obtained the intervention order due to threats by the father to “punch him in the face”. Again, it was my impression that the father took little responsibility for his actions and sought to minimise the seriousness of his offending. I am satisfied that the father has little insight as to the impact of his behaviour on others.
g)In early September 2013 in the Magistrates’ Court the father was charged and convicted with contravening a suspended sentence order and contravening a family violence intervention order. The father was sentenced to one month imprisonment and was released from prison in late September 2013. When cross-examined about the family violence order breached, the father confirmed that the breach related to an intervention order taken by his former partner Ms E.
Although not contained within the criminal record of the father (Exhibit ICL-2), the father confirmed during cross-examination that he is facing further charges in relation to alleged breaches of a community correction order and that he is due to face court in relation to those matters in late October 2013. When cross-examined by counsel for the ICL the father confirmed that it is possible that he will be sentenced to a further term of imprisonment in relation to those alleged breaches.
In addition to the matters outlined above, the father has been convicted with a range of other offences dating back to 17 July 1998, when he appeared in the Children’s Court and was placed on a good behaviour bond in relation to charges of possession of cannabis, possession of a pistol or imitation without a licence, and resisting police or a person assisting police.
It is evident from Exhibit ICL-2 and the father’s oral evidence that he has a significant criminal history and that much of his offending relates to firearms offences, drug offences and threats to personal safety. Further, the husband confirmed during cross-examination by counsel for the ICL that currently the mother, his former partner and his former landlord continue to have intervention orders against him.

That history is significant in the context of the allegations made by the mother with respect to the father’s conduct towards her.
Having observed the cross-examination of the mother and the father, I am satisfied that the mother has been subjected to threats and verbal abuse by the father that have caused her to be fearful for her personal safety and for the child’s safety. I am also satisfied that the father sought to minimise the significance of that behaviour and that he took little responsibility for his actions.
Having regard to the father’s criminal history since the child’s birth I am satisfied that violence and aggression (including with firearms) have been a feature of the father’s inter-personal relationships in recent years. The father presented no evidence which would indicate any attempt by him to modify those behaviours. Having regard to the above matters, I am satisfied that there is a need to protect the child from harm and family violence.
The father has had no fewer than seven court appearances in relation to his criminal conduct since the child’s birth. Most of those appearances relate to crimes of violence, weapons offences and drug offences. Further, the father has other charges pending. That history highlights the tension between the benefit of the child having a meaningful relationship with the father and the need to protect her from being exposed to the harm occasioned by the father’s violent conduct.

ADDITIONAL CONSIDERATIONS

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The child was aged two years and six months at the time of the hearing. Accordingly, she is not of an age where she is able to express her views.

Section 60CC(3)(b): The nature of the relationship of the child with:

(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)

During her oral evidence the mother described her relationship with the child in thoughtful and loving terms. She was able to describe in detail the child’s routine at child-care and in the home. For example, she described how the child’s favourite activity at child-care was riding the bike. Similarly at home, she described the child’s joy at playing with her pet rabbit and guinea pig. The child was described as a very helpful girl who loved assisting the mother with household tasks such as folding the washing.
Similarly, the mother was able to provide evidence and insight as to the child’s relationship with her maternal grandmother and grandfather. The child sees her maternal grandmother, whom she calls “Nanny” on a weekly basis if not more frequently. The child calls her maternal grandfather “Poppy” and in particular enjoys helping him in the garden.
Given that the mother has been the sole carer for the child throughout her life, it is unsurprising that she shares such a close and loving relationship with the mother and members of the mother’s extended family.
Mr C describes in detail in the Family Report his observations as to the child’s relationship with the mother and maternal grandmother. At paragraph 73 of the Family Report the child was observed to be “well dressed and well cared for”. Further, at paragraph 74 Mr C observed that “it was evident that [the child] was entirely familiar, not only with her mother, but also with her maternal grandmother; so that the child was happy to remain in her grandmother’s care, after some reassurance from the mother, while the mother was separately interviewed for about one-and-a-half hours”.
At paragraph 77 of the Family Report Mr C reports as to the child’s reaction upon being woken by the maternal grandmother for the purposes of her observation session with the father. At that time, the child was observed to “nuzzle into her grandmother and was not distressed.”
Mr C was not challenged in relation to that evidence. Accordingly, I am satisfied that the child shares a close and loving relationship with the mother and the maternal grandmother who are her primary attachment figures.
Mr C also provides detailed observations of the interaction between the child and the father. As noted above, the child has had very limited time with the father since her birth. This was reflected in the observations of Mr C as to the child’s reaction to meeting the father. At paragraph 78 of the Family Report, Mr C reports that upon waking, the child did not recognise the father. Even with the encouragement of the maternal grandmother, the child was “clearly unwilling to be handed to her father”.
At paragraph 79 of the Family Report Mr C notes that even when the father attempted to engage with the child, tickling her toes, the child’s reaction was to pull away from him. The play session between the child and the father continued for a period of approximately 30 minutes. At paragraph 81 Mr C concludes that “notwithstanding her grandmother’s encouragement, [the child] did not recognise, displayed no attachment to and was not going to permit herself to be picked up, or held, by [the father]”.
Mr C was not challenged as to his observations of the interaction between the child, the parents, and her maternal grandmother.
I am satisfied, having regard to Mr C’s evidence that the child has no relationship with the father, nor any attachment to him.

Section 60CC(3)(c): the willingness of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;

The mother’s case is that she seeks orders that there be no time between the father and the child. She is not supportive of the child having a relationship with the father. The basis for that position is the history of abusive and threatening behaviour towards her perpetrated by the father as outlined above.
Following the commencement of these proceedings, the mother did facilitate the father spending time with the child, such time initially being supervised by the mother’s sister and the mother. Those arrangements ceased due to the refusal of both supervisors to continue in that role due to alleged threats made against them by the father.
Following the breakdown of those arrangements the father was to spend time with the child supervised at a contact centre. Such time did not occur due to the failure of the father to submit the relevant application and attend for intake interview (as detailed later in this judgment), as well as his subsequent incarceration.
Counsel for the ICL cross-examined the mother at length as to the history of her relationship with the father, the history of the intervention order proceedings and the statements made by the mother to the police in relation to the father’s alleged breaches of the intervention order against him. The mother was steadfast in her position throughout that cross-examination.
The father’s cross-examination of the mother was brief. He put to the mother that she was not genuinely fearful of him as on the occasion of the alleged breach of the intervention order on 27 May 2012 (detailed at Exhibit-RB8 of the mother’s trial affidavit) the mother admitted following the father in her motor vehicle after observing him whilst driving to her home from her local shops. Again the mother maintained that she was fearful of the father but that she had followed him to see if he had a motor vehicle the details of which she would be able to report to the police.
I had the opportunity to observe the mother during the course of the cross-examination of her by both counsel for the ICL and the father and also to observe her demeanour and reaction in the body of the Court throughout the hearing. At times the mother was tearful and distressed. Mr C records in the Family Report his observations as to the mother’s stated fear of the father, noting at paragraph 27 the mother’s concern at coming into contact with the father and at paragraph 33 her fear of the father and his “friends”. I am satisfied as to the genuineness of her anxiety in relation to coming into contact with the father or having to facilitate or encourage the child spending time with the father. I am satisfied, based upon my observations of the parties in Court, the mother’s evidence and the evidence of Mr C that the mother is genuinely fearful of the father.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents;
(ii)any other child or other person (including any grandparent of other relative of the child) with whom he or she has been living;

As detailed above, the child’s primary attachment is with the mother. At this stage, the child has neither an attachment to nor any relationship with the father. The father has not spent any time with the child since she was aged approximately 10 months.
In light of that history, the child’s age and the evidence as to her primary attachments, I am satisfied that any separation of the child from the mother and members of the maternal family is likely to have a significant and adverse impact upon her. Both the mother and the father seek final orders that the child live with the mother. I am satisfied based upon the evidence as to the child’s relationship and attachment to the mother that it is appropriate to make such an order.
At paragraph 71 of the Family Report Mr C makes the following observations in relation to the father:-
In interview this 30-year-old man impressed the writer as being significantly emotionally immature and damaged; also lacking in insight about the effects of his actions on others. It is also clear that [the father] has poor impulse control; something that he himself has begun to recognise.
Further, at paragraph 92 of the Family Report, Mr C states:-
In the writer’s view [the father]’s recent history is abnormally violent and unpredictable. [The mother] had very good reason to be fearful of him. She continues to be fearful of him. For these reasons the writer does not consider it is in the best interests of [the child] that she spend time with her father.
Mr C gave evidence by telephone and was cross-examined by all parties. During his cross-examination the father specifically referred Mr C to paragraph 92 of the Family Report and asked him why he had recommended there be no time between the father and the child. Mr C’s evidence in relation to that recommendation was that he observed the mother to suffer from extreme anxiety and that he had to persuade her to attend interviews. Based on his observations, Mr C stated that he believed the mother’s anxiety to be very real. Further, he stated that as the child’s primary carer, the mother needs not to be fearful as such fear would degrade her ability to carry out her role as a parent.
The Family Report prepared by Mr C is detailed and thorough. I observed Mr C’s oral evidence to be thoughtful and considered. Having observed the mother’s demeanour in Court and heard Mr C’s evidence in relation to the mother’s anxiety and its potential impact on her parenting I accept that evidence.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

A hallmark of this case is the mother’s fear of the father arising from the alleged threats and abuse she has endured during her relationship with the father and since their separation and the child’s birth. As a result of the mother’s anxieties and fear and as a consequence of the intervention order which she has obtained against the father, she has not disclosed to the Court her address or her workplace. I am satisfied that having regard to the father’s criminal history, including two breaches of the mother’s intervention order against him, that the mother’s concerns are understandable. The natural consequence of that position is that there are obvious practical difficulties in the father spending time with the child, other than in a supervised setting at a family contact centre.
The father was cross-examined by counsel for the ICL as to his efforts to secure a placement for him to spend time with the child at a family contact centre.
On 23 April 2012 orders were made for the father to spend time with the child at a supervised family contact centre. The father deposes in his trial affidavit sworn 19 July 2013 that his application for enrolment at the family contact centre was sent by his solicitors on 12 July 2012. Further, he deposes that he was scheduled to attend an interview at that contact centre in or around July 2012. The father deposes that he did not attend that interview as he had no access to transport from Town A, where he was living, to the family contact centre in Suburb G.[4]
[4] Paragraph 17 father’s trial affidavit
Counsel for the ICL cross-examined the father as to his attitude and commitment to spending time with the child. It was put to the father that he was not genuine in his desire to spend time with the child, but rather that these proceedings were a means of harassing the mother. The father denied that allegation.
It was then put to the father that he had not seriously endeavoured to undertake all steps necessary to engage in supervised time with the child at the family contact centre. For example, during the course of the cross-examination, the father provided detailed evidence as to his ability to travel to Suburb G from Town A by public transport. The father was able to provide significant detail as to train timetables and the cost of such travel. When it was put to him that he did have access to transport in order to attend his intake interview at the family contact centre the father conceded that whilst such transport was in fact available, he had not sufficient funds to pay for his travel to Suburb G from Town A. The father’s evidence was that the cost of a train ticket was $10.00 ($20 return). The father gave evidence that he did not have sufficient funds to meet the cost of that travel. Counsel for the ICL put to the father that notwithstanding the importance of that appointment with the intake supervisor at the family contact centre the father had not saved sufficient funds to enable his travel to the appointment. The father conceded that this was so and further gave evidence that he had been unable to borrow those funds to pay for his travel.
Counsel for the ICL also questioned the father as to what steps he had taken prior to the commencement of this hearing to secure a place at the family contact centre. The father gave evidence that he had completed an application form for the family contact centre and that this had been forwarded to the family contact centre by his solicitor. The father was requested to bring to court on the second day of the hearing, all documents in his possession evidencing his application to the contact centre. On the second day of the hearing the father produced to the Court an application form for the Family Matters Program (Exhibit ICL-1). The father was cross-examined by counsel for the ICL as to his completion of that document. During that cross-examination the father conceded:-
·The father is able to read and write;
·The father had completed the form with the assistance of his solicitor;
·The document was incomplete;
·The document states on the first page that “incomplete applications are unable to be processed”;
·The form requires that all relevant documentation be enclosed with the application. It was conceded by the father that not all relevant documentation had been provided with the form. The form clearly states that relevant documentation includes current court orders, police charges, current intervention orders, psychiatric assessments/relevant psychological reports. The father conceded that those documents, including his intervention orders, police charges and psychiatric assessment had not been provided with the form.
·The father conceded that he had not completed the second page of the form where it was required that he indicate whether he had any of the following reports and/or orders in the last 12 months, being:
(a)Police charges – either current/pending or within the last 12 months;
(b)Psychiatric reports/assessments;
(c)Family Court report;
(d)Intervention orders/undertakings; and
(e)Current court orders.
The application form was silent in relation to each of those matters.
·Page 6 of the application form required the father to indicate any concerns that may impact on his ability to participate in the program and identified specific issues, namely:-
(a)Harassment/assault of family members/others;
(b)Stalking/following;
(c)Substance abuse – alcohol, drugs;
(d)Possession of weapons or firearms;
(e)Criminal charges/convictions;
(f)Intervention orders;
(g)General or psychiatric health illness/medication.
Again, the father had not completed that section of the application form.
·The form, although signed by the father, was undated.
Counsel for the ICL put to the father that the form was incomplete. The father agreed with that proposition. Counsel for the ICL put to the father that the form had in fact never been submitted to the children’s contact centre. The father’s evidence was that he understood that his solicitor had completed the form and had submitted it to the family contact centre on his behalf. The father then sought to blame his solicitor for the fact that the form had not been completed correctly. The father conceded that he knew that if the form was not completed correctly he had little chance of successfully proceeding with his application at the family contact centre.
Further, the father conceded that he had not sought to follow up his application with the family contact centre.
I am satisfied that there are significant practical difficulties with the father spending time with the child in light of his evidence in relation to his application to the child contact centre. I am satisfied that there is currently no application lodged with a child contact centre. Further, in light of the father’s criminal history and the history of the intervention order proceedings as between the father and the mother (including the father’s admitted breaches of the intervention orders) there is no evidence that even if I were to order supervised time at a child contact centre that such centre would commit to providing supervision to this family given that history.

Section 60CC(3)(f): the capacity of:

(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child including emotional and intellectual needs.

The evidence of the mother and Mr C is that the child is thriving in the mother’s care and meeting all of her developmental milestones. The mother’s evidence is that she is engaged in full-time employment in a responsible position and that she is able to provide for all of the child’s physical as well as emotional needs.
The father is unemployed having been released from prison in late September 2013. He faces court again in late October 2013 in relation to breaches of his community corrections order. As he is subject to a suspended sentence there is a possibility that he will be incarcerated for a further period at that hearing.
The father was cross-examined by counsel for the ICL as to his current living arrangements. The father’s evidence is that he is currently living in a shared house with one Ms J and her daughter. That house is a Ministry of Housing property and Ms J is named as the tenant on the lease of that property. The father’s evidence was that he had resided with Ms J at that property for a period of two months. Prior to residing in that property he lived at an address at I Street, Town A and was resident at that property for a period of three months. Prior to residing in the I Street property, the father’s evidence was that he resided in shared accommodation at K Street, Town A, and that he resided there for a period of approximately three to four weeks. The father’s evidence was that he had also resided with his brother and sister-in-law in Melbourne for a period of two to three weeks late last year, but that that arrangement had not worked out.

I am satisfied on the basis of the above that at this time the father has little capacity to meet the physical or emotional needs of the child. On any view his living arrangements are unstable and unpredictable, particularly having regard to his imminent court date.
The father’s evidence was that he is currently undertaking a trade course at TAFE in Town A. He attends that course one day per week. However, due to the father’s recent incarceration, his attendance at that course has been interrupted, and when cross-examined by the ICL the father conceded that he was uncertain as to whether he would be permitted to complete that course. The father also gave evidence that he has heavy machinery licences. Notwithstanding those qualifications, the father indicated that he had not yet sought any form of employment to provide him with an income. Further, when cross-examined by counsel for the ICL as to the reasons for him not remaining in Melbourne at the home of his brother, the father’s evidence was that the board charged by his sister-in-law at that property was too expensive on his NewStart allowance. The father conceded that rather than seeking employment utilising his qualifications to drive heavy machinery, he preferred to return to Town A where board was more affordable on his income from his NewStart allowance.
I am satisfied in light of the above evidence that the father currently has little capacity to provide for the child’s physical needs.
The ICL relied upon the evidence of Professor D, Consultant Psychiatrist. Professor D undertook a psychiatric assessment of the father and prepared a report in relation to the father. That report, dated 28 April, 2013 (“Professor D’s report”) is annexed to Professor D’s affidavit filed 6 September, 2013. Professor D was not required for cross-examination.
Professor D’s report provides a detailed assessment of the father. It is evident from the report that Professor D has read and considered the affidavit material filed on behalf of the parties in earlier interim proceedings in conjunction with the Family Report prepared by Mr C on 13 November 2012. Further, Professor D has taken a detailed history of the parties’ relationship as well as the father’s personal and social history and medical and psychiatric history. Professor D notes the father’s admissions as to his use of cannabis, ICE and prescription medication including diazepam and oxycontin. At paragraphs 83 to 96 of his report, Professor D provides an assessment as to the father’s parental capacity and mental health. At page 10 of his report Professor D notes as follows:
90.In my opinion there is a diagnosable personality disorder. The features of that personality disorder are the father’s criminality, anti-social acts and drug use. The father’s personality is poorly developed with significant maladaptive traits and coping abilities … His ability to tolerate frustration or to deal with a sense of abandonment, rejection or separation is particularly limited. In my opinion, at such times he becomes impulsive in his actions, threatening in his behaviour and abusive in his language. The father’s mechanisms to cope with frustration are immature and maladaptive. He is under socialised and his judgment and his thoughtfulness about the consequences of his actions are not well developed. His adaption to societal norms and expectations is poorly developed.
91.In my opinion, the consequence of the father’s personality problems are the lack at times of appropriate social behaviour and reversion to threat and violence occurring in the relationship with the mother. The personality problems will be demonstrated by his inability to maintain interpersonal relationships, the difficulties he will have in meeting societal expectations and norms and in the conflicts he will have with authorities. He will have problems being reliable or consistent, and he may be unstable in mood and prone to blame others for his problems.
92.The personality problems of the father are not treatable by medication. They will improve over the passage of time. There will be a process of maturation taking place in his psychological development which will occur over time. In my opinion, the father’s personality problems are caused by psychological and social factors rather than imposition of a mental illness.
93.In my opinion, giving consideration to all the matters identified at examination and a review of the supplied documentation, I believe that there are personality factors interfering with the father’s current parenting ability. The father’s ability to be a consistent and reliable parent is significantly currently limited by his personality and the social consequences of his actions.
…
96.It should be noted however that the father has a history of actual threat, abuse and some violence towards the mother. In my opinion there is a very low but on-going foreseeable risk that the father would act violently to the mother.
The above evidence of Professor D was unchallenged. Having considered all of the evidence, including Exhibit ICL-2 and having heard the father cross-examined by the mother and counsel for the ICL, I accept the observations made by Professor D in relation to the father’s personality and his ability to parent. I am satisfied based on the father’s evidence and that of Professor D that the father’s capacity to parent and provide for the child’s emotional and intellectual needs is limited due to the father’s inability to control his impulsive and threatening behaviour.

Section 60CC(3)(i): the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents;

As detailed above, I am satisfied that the mother has throughout the child’s life demonstrated a strong commitment to the child’s care and welfare. Throughout her oral evidence the mother presented as a concerned and child-focussed woman whose primary consideration was the child’s safety and welfare.
Whilst I have no doubt that the father is genuine in his desire to spend time with the child, as is evidenced by his application to the Court, I am satisfied that he has little insight or understanding as to the responsibilities of parenthood.
Since the child’s birth the father has engaged in serious criminal activity which has resulted in him serving two periods of incarceration.
Further, I am satisfied that the father has persisted in his use of illegal drugs since the child’s birth. Since the appointment of the ICL in April 2012 the father has been requested to submit to supervised random drug screens. It was put to the father by counsel for the ICL and conceded by the father that he has repeatedly produced drug screens evidencing his ongoing use of cannabis. In addition the father has produced drug screens evidencing his use of amphetamines and benzodiazepines. Further, the father conceded that he had failed to produce drug screens when requested in August 2013 and stated that he had not produced a drug screen on that occasion as he was in police custody. When questioned as to his use of cannabis the father admitted that in his mind there was nothing really wrong with using cannabis.
The father’s criminal history record (Exhibit ICL-2) indicates that the father has had issues with cannabis since 17 July 1998 being the date of his first court appearance in relation to charges of possession of cannabis.
I am satisfied in light of the above evidence that the father has little insight as to the impact of his drug use upon his own health or his ability to appropriately care for the child.

Section 60CC(j): any family violence involving the child or a member of the child’s family;

Section 60CC(k): any family violence order that applies to the child or a member of the child’s family, if:-

(i)the order is a final order; or
(ii)the making of the order was contested by a person

I have addressed these matters earlier in my Reasons for Judgment.

Section 60CC(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is always desirable to make orders that are the least likely to lead to further proceedings in relation to a child.
These proceedings have been on foot since July 2011(when the child was aged approximately three months). There have been no less than eight interim hearings in relation to parenting arrangements for the child since that time.
The orders I propose to make will end the parenting proceedings. Given the child’s young age, there is a prospect of further proceedings in the event that the father addresses the issues identified in this judgment with respect to his criminality, drug use and anti-social behaviour.
Nonetheless, the orders I propose will provide the child with certainty and stability for the future and hopefully alleviate the mother’s anxieties and fears in relation to the father which have the potential to adversely impact upon her parenting of the child. The orders will ensure that the father has an opportunity to communicate with the child by letters, cards and presents on special occasions. I am satisfied that the orders that I propose to make are in the child’s best interests and are likely to lead to the conclusion of the Court proceedings for the foreseeable future.

Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

Section 60CC(3)(h): if the child is an Aboriginal child or Torres Strait Islander.

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.

These factors are either not relevant in this case or have already been dealt with in this judgment.

CONCLUSIONS

The first issue for determination is the question of parental responsibility. The mother seeks sole parental responsibility whilst the father seeks orders for equal shared parental responsibility. The ICL, adopting the recommendations of Mr C, supports the mother’s application.
Counsel for the ICL placed great emphasis upon the father’s criminal history and upon the father’s threatening behaviour (including the breaches of intervention orders) towards the mother. Further, the ICL submitted that the impact of those behaviours upon the mother, causing her anxiety and fear and the consequential impact upon her capacity to parent were significant factors which supported an order that the mother have sole parental responsibility.
I accept those submissions. As detailed herein, there is a long history of violent and threatening conduct by the father towards the mother and others. Accordingly, I am satisfied that the presumption of equal shared parental responsibility is rebutted. Having regard to the history of the mother’s care of the child and the fact that she will continue to have sole responsibility for her day to day care, I am satisfied that it is in her best interests that the mother have an order for sole parental responsibility.
It was common ground between the parties that the child should continue to live with the mother. Having regard to the evidence of Mr C as to the child’s presentation as “well-dressed and well cared for”[5] and her attachment to her mother[6] I am satisfied that an order that the child live with the mother is in her best interests.
[5] Family Report, paragraph 73.
[6] Family Report, paragraph 74.
The vexed issue in this matter is the question of whether the child should spend time with the father and if so, on what basis.
The mother seeks orders that the child spend no time with the father. The father seeks orders that he have supervised time with the child and that after a period of 12 months, provided the father has not acted “in a manner contrary to ordinary standards of civil conduct” the need for such supervision be dispensed with. The ICL supports the mother’s application.
In supporting the mother’s application the ICL relies upon the evidence of Mr C and the recommendations contained in the Family Report. It was submitted by counsel for the ICL that it was contrary to the child’s best interests that she spend time with the father having regard to:-
(a)the father’s extensive criminal history and his involvement with the State Courts (which at the time of trial was ongoing with the prospect of a further period of incarceration due to the father’s pending charges);
(b)the unpredictability of his behaviour and his personality issues as identified by Professor D;
(c)the father’s lack of insight as to the impact of his criminal behaviour on the mother and the child; and
(d)the father’s use of illicit substances.
I accept those submissions. As identified earlier in this judgment, since the child’s birth the father has been involved in serious criminal offending which has included threats to kill, firearms offences and drug offences. The threats for which the father has been convicted have included threats against his former partner, Ms E. I accept the evidence of the mother as to threats she alleges the father has made against her.
That conduct considered in conjunction with the evidence of Professor D as to the father’s personality disorder, which includes an ongoing foreseeable risk that he may act violently towards the mother, support the making of orders that the father spend no time with the child. I am satisfied that such order is necessary to protect the child from the potential of further family violence. Further, I am satisfied that such order is necessary to shield the mother from her fears and anxiety induced by contact with the father, which may have an adverse impact upon her capacity to parent the child.
The ICL sought orders that the father be permitted to send the child a card, letter or present on six occasions per year. That proposal is in accordance with the recommendations of Mr C. The mother sought to challenge that recommendation during her cross-examination of Mr C and put to him that the frequency of such communication should be two occasions per year. Mr C rejected that proposition maintaining that it is important that the child has such communication from the father on six occasions per year. I accept that evidence.
The mother also sought an order that she be permitted to change the child’s surname to that of her own. The mother’s evidence in support of such change is set out at paragraph 61 of her affidavit filed 5 July 2013. In summary, the mother seeks an order in those terms on the basis that the child currently has no relationship with the father and has no real knowledge or understanding of her surname. She sought a change of name now so that the child could identify with the mother and her family. The mother expressed concern that if the child retains the father’s name, it will necessitate her having to inform people about the father in the future, thereby causing the mother “stress and anxiety”.
The father opposed that order. The ICL made no submissions in relation to the mother’s application.
The issue of change of name was raised with Mr C during his oral evidence. Mr C did not support such change on the basis that the retention of the father’s surname would maintain some connection between the child and her father.
I accept the evidence of Mr C. Whilst for the reasons outlined above, I am satisfied that it is contrary to the child’s best interests that she spend time with the father, in my view it is important that her connection with the father not be severed. A change of name at this time would likely have that effect. Accordingly, I will not make orders as sought by the mother with respect to the change of the child’s surname.
The father sought orders that the parties keep each other informed of their residential address and contact telephone numbers. Having regard to the mother’s expressed fear of the father, which I am satisfied is a genuinely held fear, and the current intervention orders, I do not consider it appropriate to make an order in those terms.
The father also seeks orders restraining both parents from denigrating the other, discussing parenting disputes or issues or passing messages through child. The mother seeks orders in like terms. I am satisfied that such order is in the child’s best interests.
The father seeks an order restraining both parties from travelling with the child outside the State of Victoria. The father made no submission in relation to that order during the hearing. Further, he led no evidence in support of that application. The mother is the sole carer of the child. She lives with the child and her partner in the Melbourne metropolitan area and has employment near her home. The mother’s family is also based in the Melbourne area. In those circumstances, I am satisfied that there is no basis for an order as sought by the father. Should the mother wish to travel with the child interstate for a holiday, there should be no order preventing such travel.
Finally, the father sought orders that each party inform the other within 24 hours in the event that the child requires medical attention or hospitalisation. Neither party made submissions in relation to that proposed order. Whilst there will be no orders that the father spend time with the child, I am satisfied that it is appropriate that he be informed of any significant illness or event affecting the child.
Accordingly, the orders I propose to make are as follows:-
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the child L DOUGLAS (“the child”) born … April, 2011.
3.That the child live with the mother.
4.That the child spend no time with the father.
5.That the father be permitted to forward to the child a card, letter or present on 6 occasions each calendar year, such communication to be forwarded to an address nominated by the mother, such items to be opened by the mother and provided to the child provided such communication is child-focussed and appropriate.
6.That the mother inform the father of any significant issue relating to the welfare of the child and for that purpose the father nominate a contact address and telephone number for such communication.
7.That the father and the mother be and are hereby restrained by themselves their servants or agents from denigrating, belittling or abusing the other parent in the presence or hearing of the child or permitting other persons to do so in the child’s presence or hearing.
8.That the appointment of the Independent Children’s Lawyer be discharged on 7 March 2014.
9.That all extant applications be otherwise dismissed.
10.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding one and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 February 2014

Associate:

Date: 11 February 2014

[2014] FamCA 80

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Legal Concepts

Breach