Bryan and Wardell

FAMILY COURT OF AUSTRALIA

BRYAN & WARDELL

[2008] FamCA 598

FAMILY LAW – CHILDREN – Final parenting orders – Best interests of a child – Father withdraws application during trial seeking orders to commence a relationship with 2 year old child he has not met – Findings of violence – Rebuttal of presumption – Mother’s health a factor in denying any relationship between father and child

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

MR BRYAN

RESPONDENT:

MS WARDELL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGF

790

2006

DATE DELIVERED:

1 AUGUST 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

21, 22, 23 & 24 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR TESTART

SOLICITOR FOR THE APPLICANT:

PENINSULAR LAW

COUNSEL FOR THE RESPONDENT:

MR SWEENEY

SOLICITOR FOR THE RESPONDENT:

LANDER & ROGERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR WILLIAMS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

ROBIN HARRISON & ASSOCIATES

Orders

That the mother have sole parental responsibility for the child … born … March 2006.
That the child live with the mother.
That all extant applications be otherwise dismissed.
That all proceedings be removed from the list of cases awaiting a hearing.
That all material produced pursuant to any subpoena be forthwith returned to the recipient of that subpoena.
That all exhibits be returned forthwith to the party producing them.

IT IS NOTED that publication of this judgment under the pseudonym Bryan & Wardell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 790 of 2006

MR BRYAN

Applicant

And

MS WARDELL

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On the fourth day of this parenting case, the applicant father through his counsel, announced that he wished to withdraw his application. This was after the father’s case had closed and the mother and her psychologist had given evidence and been cross-examined.
Mr Testart for the father explained in detail that his client was not conceding the truth of anything asserted against him. Rather, he said, after hearing the evidence of the mother’s psychologist Dr M, which was not necessarily accepted, the father felt he had to withdraw because of the risk to the child who was the subject of the proceedings. That risk also relates to the mother. I shall deal with that issue in some detail.
The full statement of the father’s position will appear in the transcript that I have ordered.
Counsel for the mother said that whilst the father could withdraw his application, it was important for reasons for judgment to be delivered. I agree.
Counsel for the Independent Children’s Lawyer said that he supported that course of action.
The Independent Children’s Lawyer attended the hearing on the third day to hear the evidence of the mother. Ms Nicholls was not funded to appear. Ms Nicholls had not been present otherwise throughout the hearing. I struggle to understand a blanket rule which precludes the Independent Children’s Lawyer appearing to instruct counsel. The Independent Children’s Lawyer is a party to the proceedings. Counsel acts on instructions and no doubt can keep in touch with an Independent Children’s Lawyer from afar. But I ask rhetorically, why should they have to?
This case was unusually difficult for reasons which hopefully become apparent. Very much appreciating the shortage of funding and appreciating that there will be cases where an Independent Children’s Lawyer should not need to attend court to instruct counsel, it is unreasonable to expect that lawyer to actively represent the interests of a child whilst adhering to a funding policy. That seems inconsistent with promoting the best interests of a child.
In this case, I made orders consistent with the father’s request and set a time table for written submissions. I have read submissions filed by Mr Sweeney for the mother. Neither the father nor the Independent Children’s Lawyer filed anything further.
The evidence of a number of the mother’s witnesses and the witnesses of the Independent Children’s Lawyer was all filed and relied upon; it is therefore part of the evidence upon which the determination should be made. The parties opened the proceedings indicating what affidavit material was to be read.
The withdrawal of the father’s application means the affidavit material was not cross-examined upon. It may be untested but it is still evidence. What weight I give to it is a matter for me and I shall refer to that again.
With those introductory remarks, I turn to the substantive case.
This case is about the parties’ child who was born in March 2006. He is just over two years of age.
The mother of this child is Ms Wardell. She is 35 years of age and had been living with Mr B from September 2005. When the case was being prepared for trial, the mother’s relationship with Mr B seemed stable. In her affidavit material, she said they were engaged to marry. They have a child, a daughter T, who is just over one year old. Only days before the commencement of the trial, the mother and Mr B separated. He had relapsed into drinking alcohol but I was told that he was still intending to give evidence. The future of that relationship is very much unknown.
Despite the child having the surname of Mr B, DNA parentage testing has established that he is not Mr B’s child.
The father of the child is the applicant Mr Bryan (referred to as “the father”). The father had previously been known by another name. The father is 44 years of age. He has never met the child.
This case was about whether the child should have some relationship with the father. For the child, one way or the other, the case is tragic. The child will not have a relationship in the foreseeable future with his father.
The mother is a woman affected by an alcohol background. She suffers post-traumatic stress disorder and who has, by her own illness, damaged her memory.
The father is a man with a sad early background whose teenage and adult years were replete with criminal activity and alcohol and substance abuse. He says he has turned the corner on alcoholism and drugs. He strongly and articulately promotes the message of Alcoholics Anonymous.
Despite all of his denials about the assertions of the mother and her witnesses, and particularly, the basis upon which he has withdrawn his application, the father faced an overwhelming obstacle because of his recent violent past and importantly, his explosive personality. He seemed at times unconcerned and at other times oblivious, to the importance of his violent behaviour as it affected other people. During the proceedings, my impression was that his view was that this case was simply about his “access” to the child. To some extent that position changed in the statement made by Mr Testart on the fourth day when indicating his instructions from the father were to withdraw the proceedings.
Throughout the proceedings, the father pointed to the fact that for years, he has solely parented his eleven year old daughter E. E’s mother’s background was tragic also. She is now deceased.
Much of the evidence in this case revolved around what happened during the short relationship of the parties and more importantly, its aftermath. Each party maintained their version of the facts to be true. Credibility was put on the line by not only the parties but also their witnesses. That credibility to some extent, affects the determinations that I shall now make.
Having heard the evidence that I did, notwithstanding my reservations about some of the things because of the mother’s memory, I generally found her credible. I could not say the same for the father.

Credit

On a number of occasions, the father said that his memory was not good. In addition to being unsure about precise details of facts (which I could understand) the father tried to say that a conviction in his criminal history sheet in 1994 was simply the appeal outcome from an earlier hearing. It clearly was not. The father was not a good historian. The mother was not either but there was evidence before me about why that was so.
A number of affidavits have been filed and as I have earlier indicated, those matters are part of the record of evidence. The witnesses deposed to incidents about which there was a ring of reality. One such example was the incident at H to which I shall return. When cross-examined about that incident, the father said that the mother’s evidence was a lie but so was that of her corroborating witness. Rather than simply deny that the incident occurred the way in which the mother described it, he said he wasn’t there. I wondered then why the mother would apply for an intervention order the very next day and a court be prepared to make such an order if nothing had happened the day before.
On a specific issue relating to this employment, the father only admitted he had lied to the court when he had no other plausible explanation to offer. This related no doubt to his collection of government benefits but it was the adoption of the stance that was of concern rather than any defrauding of the government.
A similar problem arose during cross-examination when counsel put to the father that the mother had on at least one occasion been frightened of his behaviour during the incident that occurred involving “a yabbie pump”. This is an incident to which I shall make findings in a moment. His response was that not only had she not been frightened but that she had been “equally violent” towards him. It was only when paragraph 17 of his own affidavit was read back to him that he had to concede that the mother had been frightened on that occasion.
Despite having known of the mother’s allegations in affidavit form and attended court hearings, it was not until 3 July 2008 that the father gave a comprehensive explanation as to his denials about the mother’s allegations. It is not unusual in proceedings to see bland denials at a time when factual determinations on the papers cannot be made. In this case however, the hearing was due to start in 2007 but no clear picture of the father’s version of what had happened emerged from his material.
The father said that the mother’s material was “fictional based”, that he was sickened by the reading of the mother’s allegations and turned off. I reject that. The father can be very vocal about issues when he feels like it. An example of the dilemma for the father was that “on legal advice”, he made a “no comment” response to the police interviewing him over an assault on the mother’s then partner. That was at a time when, apparently, he was saying he had a witness to disprove the allegations of the partner. He ultimately pleaded guilty to a serious assault charge. I do not hesitate to say that in respect of his rights at law in a criminal charge case, he was entitled to adopt the position he did. Having done so, he must face the fact that the absence of an immediate response gives rise to questions about the accuracy of a statement made on oath some years later particularly when a different version by another party has been known to him and consistently maintained. That particular incident however was not an isolated one. I note from the material tendered in evidence that in respect of a police prosecution arising out of a civil dispute with a policeman, he adopted a similar stance and made a “no comment” record of interview.
In respect of an incident outside an Alcoholics Anonymous meeting again to which I shall turn, there was a significant dispute between the parties about what had happened. The father said that the mother and her mother had lied. When challenged about the terror that such an incident would cause if the finding was made that in fact it did happen, the father said that it didn’t happen and he would call witnesses. That response leaves me wondering how he thought I could make a finding without them in the first place particularly as he had known of the allegation and was represented by lawyers.
The mother’s credibility however was also not without its difficulties. She was quiet and at times tearful in giving evidence. She impressed however as endeavouring to be honest. It was put to her that she was making specific serious accusations and she acknowledged that. When pressed about individual matters such as the conception of the child and the coffee table incident, she acknowledged that what she was relaying was what she remembered at a time, at least in respect of the latter, when she was badly affected by alcohol. She did not seem to me to exaggerate nor make sweeping implausible statements.
I shall deal with the accusation by the mother that she was raped by the father. In that matter, either her memory has failed her or she has constructed a conclusion that is the only plausible explanation she can accept having regard to what she now knows. On the whole however, I find her to have mostly been a truthful witness.
I say mostly because in some cases, what appears on their face to be dogmatic assertions became less so when tested under cross-examination. Unlike the father who maintained his stance when he realistically could not do so on the evidence, the mother made appropriate concessions. The mother had a plausible explanation for the departure from the dogmatic position; she was severely affected by alcoholism. In respect of those periods, her memory failed her and she had constructed the events. I will find that things did not occur as she initially claimed. However, when not so affected or where there was plausible corroboration, I have no reason to doubt that what she was telling me was the truth.

The questions

There are many facets to the question about what is in the best interests of the child which include how the mother would have coped with any form of relationship being developed let alone fostered between the child and the father; whether the father’s explosive temperament would now place, or would have placed, the child at risk if he was in his father’s care; and, whether the father has any insight into the needs of the child having regard to his strident views about the mother’s alcoholism and her potential for relapsing.

The presumption of equal shared parental responsibility

Before turning to the legal and factual issues, it is to be noted that this a case where the presumption of equal shared parental responsibility must be rebutted because the father is not proceeding with his application. Had he done so, it would have been rebutted in any event. The father accuses the mother of not only alcoholism but also being manipulative and a liar. The mother accuses the father of not only being a poor role model but also having been extremely violent. With this latter view, I sadly agree. There are also family violence orders in this case that would clearly indicate that equal shared parental responsibility could not apply. There could never be a realistic cooperation between the parents as their positions currently stand. Accordingly, not only because the father is withdrawing his application but also because of the family violence and the complete absence of any relationship between the parties, the only possible order open to me is that the mother have sole responsibility for the decisions relating to the welfare of the child.

The standard of proof

The task of deciphering just what did happen in this case has been difficult but I have isolated most of the disputed issues. Some of the findings are indeed very serious.
Section 140 of the Evidence Act 1995 (Cth) says:
Civil proceedings: standard of proof
(1)      In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)      Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)      the nature of the cause of action or defence; and
(b)      the nature of the subject‑matter of the proceeding; and
(c)      the gravity of the matters alleged.
Although the standard of proof is the balance of probabilities, in coming to the conclusions about what probably happened, I have taken a careful approach and weighed heavily the significance of the finding before deciding upon it. I am satisfied that the findings I am about to declare are what in fact occurred.

Background

The background of the relationship was relatively simple. The father said that he met the mother at an AA meeting in about 2002. He had been sober for about three years and she was a new member of Alcoholics Anonymous. Her mother was also a member.
The father said that he spoke to the mother’s mother about whether he could have some form of relationship because he did not want it to be perceived that he was taking advantage of a new member of Alcoholics Anonymous because in his words, those new members were “notoriously vulnerable”.
For her part, the mother said that she and the father were in a short relationship from around June/July 2002 until January 2003. She said it was a violent relationship which she terminated because of the behaviour of the father. She categorically denied any suggestion that the relationship had endured for 3½ years. It is important to note that during the period of time that the parties were together, they did not live as a couple. The mother conceded that there were periods of time where she stayed overnight with the father.
In so far as a serious relationship is one in which some form of commitment is made by each party to the other, I am satisfied that the father and the mother were in a committed relationship but only for the period as the mother said. That is not to say that there was not ongoing contact between the father and the mother after January 2003. However, whether as a “notoriously vulnerable” woman or not, there were periods of time after January 2003 when the mother socialised with and was intimate with the father.
In his opening address which was clearly not evidence but which set the scene for the father to portray what happened, Mr Testart of counsel said that the father had tried to be open and honest but that there were two major areas of dishonesty on the part of the mother. The first related to the termination of a pregnancy. I presume that I was asked to infer that the mother was carrying the father’s child. The assertion of dishonesty came from the fact that the mother told the father that she had had a miscarriage. The mother was never cross-examined about the finer details and it is not a matter about which I need to make any finding. Importantly, it would not be an issue upon which I could draw any inference about the credit of the mother. Now knowing the history of the relationship, particularly as to the explosive personality of the father, I am not at all surprised that she might not necessarily tell him the whole truth.
The second area of assertion as to dishonesty by the father of the mother was that she had relapses into alcoholism. Those facts up until 2005 are almost inarguable. Throughout the proceedings, there was a very strong undertone about obligations of persons who are involved in the AA organisation. Whilst that organisation might view a relapse into alcoholism as dishonesty, I have taken the view in this case that it is an illness and the connection with dishonesty escapes me.
In his opening, Mr Testart went on to say that the father became embroiled in the relationship to control the disease of alcoholism and that that was a significant cause of tension. Mr Testart conceded that the father did not behave well. In fact, he behaved badly. The concession was made at that point by counsel that the father suffered Intermittent Explosive Disorder. Importantly, and I see no reason to reject this proposition, the father could not comprehend the diagnosis.

According to Mr Testart, the father had come to understand the diagnosis as well as met the exigencies of the weakness of his character. Having regard to some of the answers that he gave in cross-examination, I have some reservations about whether he really does have much insight into the problems to which he has contributed in a significant way. Importantly, Mr Testart said that the father did not know whether his problems were entirely over. With that I agree.
The father’s criminal record was tendered in evidence. It began when he was still a teenager. Over the years, there were offences of dishonesty, drug usage, alcohol abuse, criminal damage and assaults. The father has been convicted of assaulting and resisting police. He was convicted in 1991 of possessing housebreaking implements and possessing an article of disguise. Initially, a magistrate sentenced him to a term of imprisonment and on appeal, the sentence was suspended. The seriousness of that offence is recognised in the penalty rather than its implementation.
In addition to those matters, there are convictions for criminal damage. Most of those have been treated with pecuniary penalties. That must indicate to some extent that the court did not see them serious enough to warrant a term of imprisonment particularly having regard to the father’s criminal history. However, it is the number of those offences over the years combined with the concession about the explosive personalty and the incidents to which I shall refer below that I found troubling. That became particularly relevant when it was put to the father about how the mother would cope with an order to effectively implement a fledgling relationship between he and the child. The father’s view was that she was a strong woman and had faced difficult circumstances in the past and coped. Without the explosive personality eliminated from the father’s behavioural traits, I am not at all surprised that he felt that the mother would cope. However, when I turn to the evidence of Dr M, it will be evident that the exact opposite is the case.
In the Frankston Magistrates Court on 24 November 2004, the father was charged with an offence of using a telephone to menace or harass someone. His criminal history record shows that without conviction, he was discharged under a Commonwealth Crimes Act good behaviour bond. On the face of the record, that would seem relatively minor, particularly having regard to this background. However, it transpires that that incident arose out of a building job that he did for a policeman. The policeman was dissatisfied and took the matter to VCAT. VCAT made an order against the father. The sheriff endeavoured to execute a warrant by taking possession of property belonging to the father. The father contacted his former client and abused him over the telephone. That abuse gave rise to the charge to which I have just referred. I have no idea what the magistrate was told. It matters little because the father conceded that he had a conversation with his former client and it was abusive. If that abuse was as recorded on the police brief which was tendered in evidence and I have no reason to doubt that it was having regard to the concession made by the father, the circumstances were chilling. For his part, the father said that it was a period of time in his life when for six months; he was medicated by a prescription drug called “Interferon”. The father was at pains to point out that it was a sad and sorry period of his life when he was badly affected by that drug. That evidence certainly explains his behaviour but having regard to his explosive personality, it does not justify it. Even were such matters out of his control to any degree, it sheds significant light on why the mother constantly told me she was terrified of the father. As such, combined with the concession by his counsel about his behaviour and the events that I heard, I could have little confidence that the father would not pose a significant risk to the child. I say that despite the fact that there is evidence which is strong and plausible that the father has a very close, strong and responsible relationship with his 11 year old daughter E. All of the indicators that I read showed that E is coping well with her personal life and progressing at school. Whilst there was some suggestion that she was having some concentration problems, having regard to what I have had heard, I would not be troubled. However, E is 11 years of age and has always known the father as her father. Presumably, she has seen some of his explosive traits. The child knows nothing of those things and if the father has difficulties controlling his temper when confronted, I could imagine the child being extremely frightened.
In addition to the question of the risk to the child, there is the significant impact of any orders upon the mother. I am satisfied in this case that any order at this time for the child to begin to develop a relationship with the father would be dramatically counterproductive to his welfare because of the stress that it would create for the mother. The flow on is self-evident.
There were very few issues between the parties about which there was agreement. Even the matter of the conception of the child was a matter of significant litigious dispute.
As to the conception, the mother said that the child was born five weeks premature. She put the conception date as being in or around July 2005. She indicated she was not aware of having any contact with the father in the months of June or July. She made mention of the fact that a woman by the name of D who attended Alcoholics Anonymous with her had later told her that she had been seen in the presence of the father. According to the mother, in July 2005, she was in a monogamous relationship with Mr B. It was put to the mother that she went away to Torquay with the father in July 2005 but she denied that. A photograph was shown to her but she was not prepared to concede that that was taken at that time or at that location. There was no evidence by the father nor was it therefore the subject of any cross-examination about that issue.
The mother said that during the period around July 2005 she was in a “blackout” and so badly affected by alcohol that she had no understanding or recollection of what happened. That was a position that she set out in her affidavit in 2007 and the position that she adopted when cross-examined. She said she did not recall being with the father or having sexual intercourse with him. It was that statement that gave rise to the suggestion that she could not have consented to having sexual intercourse with the father.
There can be no doubt that the father did have sexual intercourse with the mother because the DNA testing establishes the paternity.
The father’s evidence about this issue was curiously vague too. He said that he denied that the relationship with the mother ended in about 2003. I pause here to reiterate what I earlier said about the nature of the relationship. The father said that the parties continued to see each other regularly and to be friendly “in the context of AA meetings” and at other social events that each of them would attend. He gave no specifics. He said that they continued to “maintain a sexual relationship from time to time”. No specifics were given. He strongly denied that there was any suggestion that he had forced himself sexually upon the mother. He said that leading up to the conception of the child, he and the mother were having a regular, consensual sexual relationship.
The absence of detail was troubling. In a moment I shall turn to the chronological series of events that convince me that there was a sexual relationship throughout 2003/2004 but I am not in a position to find one way or the other whether it was consensual or not. For my purposes it matters little.
The father said that when the mother fell pregnant with the child, she readily acknowledged him as the father and a number of persons involved in AA congratulated her because they thought it was as a result of the relationship. None of those witnesses was named or called as witnesses by the father. Importantly, the father said that the mother’s mother acknowledged him as the father of the child. I did not get the opportunity to hear the maternal grandmother’s evidence tested. The maternal grandmother only made the following reference to the paternity. She said:
Now that the applicant has discovered that he is the biological father of my grandson [the child], I live in fear for my family.
There was no evidence along the lines suggested by the father. Importantly, the father had the benefit of seeing that affidavit in July 2007.
When the proceedings began in the Federal Magistrates Court sitting at Dandenong, the mother in emphatic terms responded to the father’s affidavit material alleging that the child was born as a result of rape. Whilst the mother clearly swore that affidavit and did not resile from her position when that document was put to her in cross-examination, it can clearly be seen now that that assertion was a reaction to the proceedings then brought by the father. At that point in time, the mother had no other plausible explanation as to how she had fallen pregnant to the father. It as perhaps unfortunate that the affidavit was drawn the way it was and the assertion made on the basis of a construction that I find untenable.
I therefore start by rejecting the mother’s evidence that she was raped in the sense that she had non-consensual intercourse with the father. The affidavit to which I have referred was filed on 11 September 2006. She said that the father was the biological father of the child due to the father raping her. The other paragraphs to which I have referred are clearly conclusions and not evidence.
In an appropriate way, Mr Testart questioned the mother about not only those statements but also about what happened in July 2005. She conceded appropriately in my view, that she had no details to provide because she could not remember what occurred. She admitted that, having made a report to police, they rejected her complaint as it was her word against that of the father. Importantly, a complaint was not lodged until after the mother found out that the father was the biological father of the child. I could not therefore make any finding about the non-consensual nature of the apparent and obvious intercourse.
That leads on however to the clash of evidence about the type and nature of the relationship that the father was having with the mother at any time.
The father said that he never took advantage of the drunkenness of the mother. The importance of that statement is that it is an acknowledgment that what the mother said was true about that period of time in her life. She was very much in the grip of alcoholism.
The mother’s evidence was that the relationship was from June or July 2002 until January 2003. Mr Testart questioned the mother about the termination of the pregnancy which was noted in the medical records of the Hospital when she was later admitted for the coffee table incident to which I shall turn below. The timing of that would indicate that the termination occurred during the period of time that the mother says the parties had what she described as their relationship. It was during this short period and certainly around Christmas 2002 that the mother and the father went on a boating trip to Wonboyn Lake. The father was cross-examined about this issue and he said that the mother made an unhealthy decision about terminating the pregnancy by telling him that it was a miscarriage. He proffered that she had lied and that that was when they went to Wonboyn Lake. At that point in time, he believed that she had had a miscarriage.
What happened at Wonboyn Lake was a matter of significant dispute between the parties. The mother’s version was that she was sitting in the boat and heard the father say “come and help ya cunt”. She said she ignored him and the next second, he came running at her with a metal yabbie pump and smashed it over her back whilst her back was turned. She pointed out in the court room that the blow struck her from the back of the head and down her back.
Ms R swore an affidavit in the proceedings for the mother on 24 July 2007 and it was relied upon. This evidence was untested because of the course of action that the father took in discontinuing his application. However, Ms R said that she saw the bruises on the back of the mother after the return from Wonboyn Lake.
The father was at pains to deny the assault. What he conceded however was the language he was said to have used. Mr Sweeney put the words that I have just set out and the father agreed they were said. His explanation for why it had happened was that he had been out in the sun and had had a touch of sunstroke.
Ms Sweeney asked the father how he thought the mother would feel about that sort of language. His response was illuminating. He said:
I was pretty sick myself over the loss of that pregnancy.
That evidence gives credence to the mother’s version about the assault.
Contrary to the version of the mother, the father said that he threw the yabbie pump in the direction of the mother. On one account he said that he was 150 metres away and that it landed nowhere near her and moments later, he described the distance as a football field away.
I prefer the version of the mother. I find that the father did assault the mother as she describes.
A significant issue in that dispute was the whereabouts of the father’s daughter E. He said that she was on the bank and not anywhere near where this incident happened whilst the mother said that she was right nearby and watching the whole incident.
Again, for the reasons I have set out, I prefer the version of the mother.
What is difficult to understand is why the incident occurred. However, the mother says that the relationship as she described it, came to an end in January 2003 because of the violent behaviour of the father. That has a very strong ring of reality about it. Accordingly, I find the relationship did end at that point in time in the sense that it was a committed relationship of some strength.
However, what is not at all clear on the evidence is what followed thereafter. There is a long period of time to be covered between the conclusion of the relationship in January 2003 and the conception of the child in June or July of 2005. There were a number of incidents during that period of time some of which remain a mystery.
One of the violent episodes about which the parties litigated was an incident that occurred at the end of February 2003. The end result was that the mother was admitted to the Hospital with severe injuries to her hand. She was admitted on 26 February and underwent surgery on 27 February. She was subsequently released with her mother. She then went to the Rehabilitation Hospital.
The mother gave evidence that the father visited her uninvited. She said he screamed at her and then pushed her in the chest causing her to fall backwards to land on her coffee table. The force of the fall onto the coffee table caused it to smash resulting in the significant injuries to which I have just referred.
The father’s version was that the mother telephoned him and he recognised the sounds of the mother being affected by alcohol. There would seem to be little doubt that she was certainly affected by alcohol. The hospital records disclose that the mother admitted drinking half a bottle of vodka. There was some question about whether the mother was unconscious upon admission and the father having provided the information to the medical staff. An examination of that record would suggest otherwise and I find that the information provided to the hospital was given to them by the mother. According to the record, she was certainly conscious at the time.
The father said that having received the call from the drunken mother, he became concerned and told her that she was to unlock the garage and he would attend to ensure her welfare. When he arrived, the garage was locked and he jumped the wall and entered the property to find the mother lying in a pool of blood. He then took her to hospital.
Whilst I have serious concerns about just what happened here, having regard to the serious nature of the allegation, I would not be prepared to find that the version of the mother is correct. I say that because in cross-examination, the mother conceded that her memory was poor in respect of that incident. She said that she remembered the father being there. I could not confidently say that on the balance of probabilities, the father pushed the mother into the coffee table causing those injuries. That is not to say that I am comfortable with the explanation of the father either. At that time, I find that the relationship between the father and the mother had ended. The Lake Wonboyn incident was relatively recent. The mother was clearly relapsing and drinking heavily.
Mr W is an uncle of the mother. He filed an affidavit upon which the mother relied saying that he went to the Hospital in February 2003 where he met the father leaning against a wall. His evidence was that he spoke to the father in what appears to be a polite way, commenting upon the mother’s condition and her mother’s then distress. Mr W then said that he suggested to the father that it would be better if he left the hospital. According to Mr W, the response of the father was to tell him to “mind your own fucking business” and that if he did not, the father would “kick the shit” out of Mr W. That evidence was also untested because of the course of action that the father took in these proceedings. However the father had the benefit of seeing that evidence in July 2007. He made no mention of any such drama unfolding at the Hospital. If he was the caring individual that he purported to be and had come to the aid of the mother as he said, one wonders why he would have reacted the way he did in such an aggressive tone to Mr W.
Whilst I would not make a finding that the father caused the injuries to the mother because of her evidence, her conclusion of the relationship together with her resorting to alcohol and his behaviour towards Mr W, adds significant credibility to the assertion that the mother is frightened of the father. It is significant to note that the evidence of the mother was that she was discharged from the Hospital to the Belura Clinic to which she has regularly attended for treatment of alcoholism.
The mother asserted that at the Belura Rehabilitation Centre, she was visited by the father. She said he threatened that he would kill her mother and skin her dogs if she told the staff what had happened. She then said she gave the doctor a false reason for the altercation in order to protect her mother when she was admitted. Notwithstanding some reservations I have about that, there is no objective evidence in the Hospital records to suggest that she lied to the hospital. I see no reason to find that an incident like that to which I have just referred, occurred at Belura.
Focussing on that same period in the lives of these parties, I turn to an incident that occurred on 29 April 2003 which was very much disputed.
The mother said that on 29 April 2003, the father broke into the house in which she was then living at H by kicking the door in. She said he started to strangle her and threw her through a leadlight window next to the front door.
The father swore in his 2008 trial affidavit that that occasion never occurred. He emphatically denied the assertions.
The father was cross-examined about that. He said that the incident was a fabrication by the mother. He was unable to explain why he had not denied it in any affidavit before.
Ms R is a witness to whom I have already referred. In her affidavit sworn 24 July 2007, she said that she was staying overnight in the H home with her 2 year old son and witnessed the father breaking into the house. She said he kicked the door in with his foot which also broke the leaded glass window. She said he then strangled the mother on the couch and that this occurred in front of her son. She described her fear. She said the mother telephoned the police and the father left before they arrived.

The father was aware of that evidence and had not responded to it. However, when the father was asked about the evidence of Ms R, he simply said that he wasn’t there and Ms R was a liar.
The father was shown a series of photographs of a door purporting to be that at the property at H. A footprint is clearly noticeable. In her evidence, the mother said that she took the photo. She was able to describe the footprint as that of the father and also pointed to some putty on the window indicating where it had been fixed.
Notwithstanding the absolute denial by the father, the mother was not cross-examined about the issue. There was significant cross-examination of the coffee table incident. I am satisfied to the requisite standard that the incident occurred as the mother described. Most importantly, I accept her evidence that she would have been terrified.
I found this incident disturbing for another reason. Whilst I did not have the opportunity to have the evidence of Ms R tested by cross-examination, her evidence about the presence of her 2 year old son was quite disturbing. The father portrayed throughout the proceedings his position as a responsible parent in relation to E. I have already found that I accept the evidence of the mother in relation to the Lake Wonboyn incident and now this incident that occurred in early 2003. Each of those incidents reflects poorly on the father as a parent having regard to the presence of children.
Notwithstanding the acknowledgment that the corroborating evidence was untested, the most significant reason why I accept that the incident occurred is that on 30 April 2003, the very next day, the mother applied for an intervention order. If nothing had occurred and the father was not a threat to her physical and emotional safety, why did that happen? That evidence was not denied. That was important because in paragraph 28 of his affidavit filed 4 July 2008, the father specifically denied the facts deposed to by the mother in paragraph 13(vi) of her affidavit. The assertion about the intervention order appears in the very next paragraph of her affidavit.
There is no evidence led by either party of any specific incident between April 2003 and the following February 2004. Just what sort of relationship the parties were having during that time remains a mystery. However, some indication can be given by the fact that both parties accept that there was a Sunday morning meeting in February 2004 organised by Alcoholics Anonymous. There is little doubt on the evidence that the parties were not together at that time. I deal first with what happened and then secondly, the explanation.
After the meeting concluded, the father, the mother and her mother were in the carpark adjoining the meeting hall. According to the mother, and this was not denied by the father, abuse occurred and he kicked two large garbage bins. He then ran to his truck where he picked up a spirit level. On the father’s version, he began thumping items in the back of his truck.
The parties diverge as to what happened thereafter but I accept the evidence of the mother and her mother. I accept that the mother was terrified. I accept that she got into the car of her mother and that the father struck the top of the car with the spirit level.
The father was cross-examined about the incident. He conceded that there was a disagreement between the parties about the versions. He acknowledged that the incident was terrifying. He accepted that he was upset and angry. He acknowledged the behaviour to which I have referred save for hitting the car. He acknowledged that his daughter was “fifty feet away”. He said she was being “minded by someone”. He reiterated that his daughter could not see anything. He said that his friend made sure that E did not see what was happening. Fifty feet is not very far in a carpark on a Sunday morning. Even if E did not see all of the events, I find it hard to accept that she would not have heard the abuse and the noise. I find it hard to accept that E would not have seen her father in an angry and upset state.
Mr Sweeney put to the father that this was not a good role model position for E. The father’s response was that that was not the case from his perspective. I reject his view.
The explanation of the father as to why it occurred was simple. He said that the mother pulled faces and made comments under her breath whilst he was speaking in the AA meeting. He said that after the meeting, he asked her why she behaved like that and the conversation escalated into a “verbal altercation” when the mother made reference to the fact that E’s mother had died a short time before and that E was the daughter of a prostitute. Those were the words that excited him sufficiently to carry out the incidents to which I have referred.
The father cannot justify his behaviour on that day. Importantly, in paragraph 30 of his affidavit, he denied that anything as violent as that asserted by the mother or her mother occurred. That statement shows that he has little insight into the problems that he creates and his inability to control his explosive temper. In relation to the hitting of the roof of the car with the spirit level, his denial was absolute. He did however concede that whilst he was hitting objects in the back of his truck, he was “going to punch the side window of” the maternal grandmother’s car with his “bare fist” but someone intervened to stop him. I have little doubt that he did not have the capacity to control his temper.
Having regard to the fact that accusations were set out clearly in the affidavit of the mother and her mother in July 2007, the witnesses that the father said were present could quite easily have been called but were not.
Nothing further was led in evidence about what occurred between the parties for quite a long time thereafter. The father includes this period as part of the relationship that he said that he had with the mother. I reject that. Whilst there was clearly some form of meeting between the father and the mother after February 2004, I find it very difficult to accept that she was in any form of relationship with him including during the period that the conception of the child occurred.
On any view however, the relationship between the mother and the father must be seen to have concluded at the time she commenced the relationship with Mr B. According to the mother, that was around July 2005.
The mother set out in some detail that on 1 November 2005, the father walked into the home of her mother with his daughter E and began yelling abuse. According to the mother, Ms R and Mr L were present. The mother said the police were called and as a consequence, the father and E left. She said that later that night, the father again came to the home and broke in levering a window and attacking her saying words to the effect “I will kill your kid”. At this stage, she was four months pregnant with the child. Importantly, she said that Ms R and Mr L who was staying in the house came and Mr L dragged the father away from the property.
The mother said that on the following day, the father returned and she awoke to find him standing over her and again, Ms R and Mr L came to her aid.
Further on the same day, the father is said to have jumped the fence whilst the mother was having a swim in her mother’s pool. She said he was abusive and threatening but otherwise left.
The father conceded that he did attend the maternal grandmother’s home on 1 November 2005. He said that the maternal grandmother had asked him to go and “check on [the mother]” because the mother could be drinking. He said that he followed those instructions to find the mother drinking again. Importantly, he denied that there was any abuse but he conceded that the friends were present.
It is important in respect of this first incident to set out what the father himself said:
[The mother] herself, during the course of the interaction we were having bit me on the stomach. Despite this, I did not lash out at her.
The father elaborated in cross-examination on the incident.
The first point that was made was that the father conceded that the relationship as he saw it with the mother ended in October 2005. It is implausible therefore that he would have been requested by the maternal grandmother to attend to check on her drinking. He said that the maternal grandmother had begun to like him and that they all went down to the pub where the mother said that she would let bygones be bygones. The father conceded that there had been an intervention order but no-one carried through with it.
The father maintained that when he arrived at the house all present were “blind drunk”. He said he was concerned about the mother and the unborn baby. He said he tipped out the alcohol but they just kept on drinking. He said that an argument then ensued and that E was put in a room and he did not know where the friends of the mother went. None of this was in his affidavit material.
Mr Sweeney probed about the fact that the father believed at the time that the mother had commenced a relationship with another man and although he said that he really could not remember, he conceded that he was a little bit upset. He said he put his hands on the mother’s shoulders whereupon she bit him in the stomach to the extent that he was in an enormous amount of pain and a chunk of flesh came away.
One can only endeavour to envisage the circumstances as they unfolded of the physical contact between the parties. It is interesting in the father’s affidavit at paragraph 33 where he describes the “course of the interaction we were having” which seems to me to be totally inconsistent with the explanation that he gave in cross-examination.
Logically it follows therefore that the mother’s explanation is probably what happened and more plausible.
It is to be remembered that in his affidavit, the father maintained that he only went to the house once and for one purpose. Ms R confirmed in her affidavit that she and her partner Mr L were in the house when the father and his own daughter attended. She confirmed in a general way the evidence of the mother. The father confirmed the people were there.
Mr Sweeney put to the father that he was upset about the fact that another man was present and that the mother had entered into another relationship and the father conceded that that was so.
To some degree, the facts of precisely what happened do not matter. However, I am satisfied that the mother’s version as corroborated by Ms R was correct. The more important issue is that the father’s behaviour on that occasion was nothing short of appalling. I do not accept his explanation about what he was told by the maternal grandmother. The father was cross-examined about his behaviour and he said that he held himself in “good stead” and that it was the mother who was aggressive. He was asked the sequence of events and he said that when he entered, he asked “whose fucking this” referring to Mr L and that he felt justified because she was carrying his child. He then volunteered that the mother had come to his house some days before and made love. That seems inconsistent with his own version of facts that the relationship had ended some time not long before.
When pushed further in cross-examination, the father said that he was feeling sad, hurt and vulnerable.
I accept the version of the mother in respect of the November period.
It will be quite clear therefore that after that incident, there was a lull. However, the aggression did not subside.
On 6 May 2006, an incident occurred between the father and the mother’s then partner Mr B. Again, the facts of the precise details of what occurred were in dispute. For my purposes, the precise details matter little.
The father blamed Mr B for having harassed him and actually coming around to his house. Ultimately, Mr B was invited to fight according to the father and came off worse.
Mr B filed an affidavit about the incident but in my view, his evidence does not take the matter much further. A significant feature is the fact that the father was charged by the police, appeared before a court, pleaded guilty and was dealt with as I have earlier described. Not only did the father maintain his legal right of silence but he did not raise an issue of self-defence. That was his position before me in cross-examination.
In his affidavit, the father said that what he did to Mr B was inexcusable and he regretted it. He said that this assault was the catalyst for the mother to deny that any relationship with the child should occur. He set out in considerable detail the lead up to the assault and how he perceived things. He maintained that it was Mr B who threw the first punch. He said however that that did not mean that he was right to do what he did. I do not read into that statement any suggestion of self-defence.
The injuries to Mr B were quite significant. Again it matters little from my perspective. The focus of my attention is on the father’s incapacity to walk away from a situation of trouble. Whether it is his explosive personality or not I am unsure but I find that the father is the sort of person who views resorting to violence as something natural.
This last statement has to be seen in the context of the father attending an anger management course for men. He maintained that he had learned how to manage things. He was even critical of Mr Sweeney’s cross-examination of him as being something that was criticised in the anger management course. If Mr Sweeney was endeavouring to “push the buttons of [the father]”, it clearly showed the point that the father has great difficulty in handling pressure.
The father was cross-examined about how the mother would feel as a result of the assault upon her then partner. It was at this point that the father made the observation that the mother could handle anything. That is clearly inconsistent with the evidence of Dr M.
It was disconcerting to know that the father conceded that he knew what he was doing when his explosive personality operated. Mr Sweeney asked him whether he realised what was happening when he attacked Mr B. He replied that he did. He was at pains to point out however that he held back from seriously hurting Mr B because he was “trying not to go too hard on the person”. That last comment by the father indicated that he was well aware of the fact that he was causing the problems in the lives of people and chose to do so. It is extremely troubling when I turn to the fundamental objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Having made all of those findings, it would be remiss of me however to ignore some other evidence that I heard. E’s grandfather Mr J gave evidence for the father. His evidence in chief was set out in his affidavit affirmed on 23 March 2007. He said:
Since he joined AA and received counselling, he is a dedicated father and we often hold him up to others to show what can be accomplished with the right care and assistance.
Mr J acknowledged seeing the father about once a month. He knew of his background and described the father as “overbearing” but would not concede that he was “intimidating”. Mr J did not know of any violent incidents in the last five years. I find that very hard to believe.
Mr J and his wife had taken out intervention orders against the father some years ago but things have obviously settled down between them. He was complementary of the father’s care of E and maintained that any view put forward about the father’s poor living conditions was not only incredible but also a fantasy.
In respect of the father’s care of E, I accepted that what Mr J said. However about the father as a person, I say that he has grossly understated the position. Having regard to his professed ignorance of the father’s behavioural issues in recent years, Mr J’s evidence was not of much assistance.
Mr O gave evidence for the father. Mr O is a legal practitioner of some considerable years standing. Mr O knew the father through Alcoholics Anonymous. He said he had not seen him for 18 months. He said he did not know a lot about the father’s history although he had heard his side of the story. He said he thought the father to be of “good character” but that reference did not assist me. Mr O was not aware of the violent incidents that I have found occurred. Accordingly, the evidence of Mr O was not terribly useful.
The most significant and objective evidence came from Dr M. Dr M is a psychologist. She was called by the mother but I treated her as witness of the court. Her expertise was not challenged. Dr M has been treating the mother for two years.
Dr M set out her evidence in three reports. The first was dated 4 September 2006, the second 17 July 2007 and the third updated the material just before this case began. Dr M reported the mother’s history as told to her. She said that she had seen the mother on about 20 occasions.
Dr M diagnosed from the mother’s history that she met the criteria for post-traumatic stress disorder. That diagnosis was not necessarily accepted by Dr S the psychiatrist who examined both of the parties. Dr S however was not called to give evidence.
Mr Testart for the father tested Dr M putting to her that her diagnosis was flawed because the history was wrong. Dr M said that her tests convinced her of the symptoms and that the symptoms were real.
Dr M described the symptoms that gave rise to the diagnosis as those in which a person was involved in an event which comprises actual or threatened serious injury resulting in that person’s response of intense fear, helplessness or horror. She described it as including some feelings of disassociation during and after the distressing event, flashbacks and marked avoidance of stimuli that aroused recollections of the trauma. She described heightened anxiety and increased arousal resulting in poor concentration, hyper-vigilance, irritability and significant impairment in social, emotional and personal functioning.
According to Dr M, since meeting the father, the mother’s life had been in turmoil physically, practically and psychologically. She said the consequence of that was that the mother had lost much of the belief in herself and in the safety of her environment. That impacted upon her functioning.
The mother told me that when she was under such severe stress that rather than resort to drinking alcohol now that she had the responsibility for two young children, she simply went to bed.
Dr M described the incident about which I have made findings that occurred at Lake Wonboyn as the traumatic event and that the series of events thereafter had a cumulative effect.
Dr M said that the ongoing debilitating symptoms did not reflect the positive personality characteristics of the mother as had been indicated in the personality tests that she had undertaken.
Dr M’s conclusion was that with appropriate intervention, and a stable and secure environment, the mother would benefit from on-going counselling with the result that her emotional state would improve as would the prognosis for recovery.
The Independent Children’s Lawyer cross-examined Dr M about the view that the mother would suffer significant anxiety if orders were made that put the child in an unsafe environment. He pressed Dr M on the basis that if a contact centre or other secure environment was in place, that would resolve the problem. Dr M made very clear that what she was talking about was an environment only where there was effective agreement by which I understood her to mean, cooperation, between the father and the mother. That is most unlikely.
Dr M’s evidence was important. I accept her diagnosis that the mother has post-traumatic stress disorder. I accept her evidence that the mother is genuine in her fear of the father. Her evidence was that with the prospect of involvement of the father in the child’s life and hence in hers, she would not be free of stressors. Stressors for the mother could lead to her becoming a “non-functioning” parent. That would in turn lead to the real risk of a relapse into alcoholism. A relapse in returning to resorting to alcohol for the mother would have disastrous affects upon the child.

Dr M pressed me as endeavouring to be helpful as she listened patiently to the questions put to her particularly about the variations in versions that the mother had given about various events. Her view was unwaveringly strong that the mother’s fear was as I have described it.
When I contrast this evidence with the view of the father that the mother is a strong character who could handle anything and particularly a challenge such as coping with an order for the child to communicate with him, it highlights the lack of knowledge, perhaps insight, of the father into just what problems the mother has and more importantly, how they impact upon the child.
Dr M is also currently a significant part of the support service for the mother. Notwithstanding that, I found her evidence objective.
I accept the evidence of Dr M.
When the trial of these proceedings began, I was asked by the parties to read various affidavits in addition to the material that I have covered in the reasons above, I can say that I have also read the affidavit of the maternal grandmother filed 24 July 2007, Ms V filed 16 July 2008, Mr W and Mr B.
Apart from the matters from the evidence in those affidavits to which I have earlier referred, having regard to what has happened in this case, I do not propose to deal with their evidence in any way.
However it is important to understand that the mother seeks orders:
(a)that the mother have sole parental responsibility for the child;
(b)that the child live with the mother; and
(c)that all applications filed by the father be dismissed.
The mother’s application therefore seeks parenting orders.
Since 2006, the parties have been involved in litigation. It has been no doubt stressful for all concerned. One might expect that during that period of time, the problems that I have identified in relation to the father’s explosive behaviour might have gone away. Perhaps unsurprisingly, they have not.
The mother gave evidence about an incident at the Magistrates Court where she had been required to attend as a witness. The father came to her in the foyer. The details do not matter other than the fact that the mother asserted that the father was threatening. The father denied that threat. He did however in cross-examination admit that his own solicitor came over to him and told him that he should not be talking to the mother. I think the obvious inference can be drawn.
I find in respect of that matter that quite unnecessarily, and again creating extreme fear in the mother’s mind, the father threatened serious injury to her.
Even when the proceedings were in the Federal Magistrates Court at Dandenong, the father seemed unable to control himself. The mother gave evidence about being tailgated on the way home and being terrified by what occurred. The father seemed dismissive of that incident. I accept that it happened. The father did not deny the details of his car which would obviously be known by the mother in any event but the fact that he was travelling in that direction and was no doubt unhappy with the outcome of the proceedings strongly suggests that the mother’s version is right.
Even as late as weeks before this very trial commenced, the father had a confrontation with the maternal grandmother at a local shopping centre. According to the complaint that was annexed to the affidavit of the mother, her mother asserted that the father placed his car nose to nose with hers and then began to take photos of her on his telephone. She asserted that the father got out of his car and started abusing her in language of the type that I have already mentioned earlier. She said he referred to her “watching her back” and made a gesture with his hands like a gun. She said that the police arrived. The court record attached to that affidavit shows that at the Magistrates Court on 27 June 2008, the father undertook not to stalk, assault, harass, threaten, intimidate or behave in an offensive manner towards the maternal grandmother. Apparently, on the basis of that undertaking, the application for the intervention order was withdrawn with right of reinstatement.
I did not hear any precise evidence about that issue nor was it tested in cross-examination by counsel for the father. There can be little doubt that the undertaking was signed by the father and that compounds my concern that his unresolved feelings exacerbate his explosive behavioural personality. That must mean that the problem is not under control. In fact, that is the very concession that his counsel was making at the commencement of the proceedings.
There is no dispute in this case that there are intervention orders in existence.
For the sake of the child, this litigation has to end and if nothing else, the mother needs an opportunity to re-establish her life without the constant interference of litigation and the fear of a reaction from the father.
I also had the benefit of reading a family report from Family Consultant Ms C. The report was 12 months old but nothing had changed. The facts in the report have little bearing on this matter. I examined the report for some expert views to assist me.
Two matters stood out. Ms C said:
any time [the child] spends with his father is likely to exacerbate the conflict between his parents, and thus undermine [the child’s] stability, continuity and emotional well-being.
and
the impact of this on children can be either withdrawal, with heightened anxiety, fear of aggression, inability to have trusting relationships with others and sleep disturbances; or acting out, with such behaviours as aggression, behavioural problems, regression and eating disorders.
I found that evidence extremely helpful. The child does not need those problems.
The law relating to a parenting determination requires me to consider a number of things. I shall set those out now.
S 60B of Part VII of the Act sets out the objects of the legislation. It says that the objects are to ensure that 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.
The principles underlying the objects are:
(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).
It is important to stop here and note the exception to the application of the principles in s 60B(2). The exception applies when it is or would be contrary to a child’s best interests.
S 60CA reads:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
S 60CC(1) reads:
Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
I intend not only to consider these matters but to set out how each applies in this case.
The provision is divided into primary and additional considerations but the Act also prescribes mandatory considerations in s 60CC(4) and (4A). Those last provisions look at what each parent had done in relation to fulfilling or not fulfilling parenting responsibilities in the context of the circumstances that have occurred since separation.
S 60CC (2) provides two considerations. The first is the benefit to the child of having a meaningful relationship with both of the child's parents. On the evidence that I have set out and factoring in the absence of any relationship between the father and the child, there can be no immediate benefit to the child in having a meaningful relationship with his father. From the child’s perspective as a two year old, he thinks that Mr B is his father. There is not only a problem presently in that relationship but I have fears from what I was told about the current separation that unless Mr B gets his life in order, there will be ongoing problems as well. That means it is so important to look at the relationship at the moment and into the foreseeable future between the child and his mother. There has not been anything other than positive things said about that relationship. As such, the evidence of Dr M makes it imperative for the situation not to be jeopardised.
The second consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There can be no doubt about my concerns here. I have endeavoured to set out those earlier in these reasons. The absence of contact between the mother and the father and even the proposal to contemplate an exchange of the child at a contact centre gives me little comfort when I look at the violent history of the parties and the lack of insight that I have found the father to have. On the evidence, the orders sought by the mother and the course of action taken by the father albeit for other reasons, are sensible having regard to the need to protect the child from that harm.
The additional considerations are wide-ranging.
There is no point me taking into account the views of the child having regard to his age. To some extent, one would hope that he is oblivious to this litigation.
I have examined the nature of the relationship with each of his parents and need say no more. There is also no doubt a fledgling relationship developing with the child T. That was not factored in much by the father in his approach. The father was at pains to point out the need for his daughter E to have a relationship with her sibling. That can occur in the fullness of time when there is no risk. There is also the need to contemplate the relationship with Mr B to whom the child currently looks as his father. I was impressed by the evidence of Dr M that the mother has fought off the temptation to resort to alcohol in part because of her obligations to protect her children. Mr B would do well to look carefully at that and consider similar resolutions.
It has always been the obligation of a parent to foster the relationship of a child with another parent. I satisfied in this case that there is no malice in the mother towards the father but that her inability to face him has come about as a direct result of the trauma from the relationship. Sadly, the father has done himself a great amount of harm.
I have seriously considered the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from both his parents. In relation to separation from the father, there may be long term consequences from not knowing his biological father. That is something that will have to be addressed in the fullness of time. Because of his age and vulnerability, it is not a matter that I can seriously contemplate now having regard to the consequences of a separation from his mother even for a supervised and short period of time. The Independent Children’s Lawyer apparently also agonised over the same issue and contemplated how any form of relationship could be commenced. It was only after hearing the last day’s evidence that her decision was make clear.
I have contemplated what the father might have to offer the child. The father espoused his parenting capacities by pointing to E’s progress. There is no doubt as a single parent, he has struggled and it has not been easy. E’s progress is a credit to him but I have serious concerns about his insight into what the subject child needs. I could not on the basis of his parenting history with E make a finding that he has the capacity to provide for the needs of the subject child.
There are no cultural issues of relevance in this case.
It goes without saying that I find that the problems of violence and the lack of insight lead me to have no other conclusion than that the father does not have a responsible approach to parenthood in relation to the child.
Section 60CC requires me to consider the family violence and family violence orders affecting the history of the parties. I need say little more than what I have already said other than it is very sad that a child’s future has to be determined this way because of the terrifying violence suffered by his mother but the Court and society have to take a stand in relation to the protection of children. This case typifies the problems that violence and tragic backgrounds cause to vulnerable children. It is important to protect children from that risk even if it means that they can not develop a relationship with a parent. It is clear that exposing the child to that sort of potential risk must mean that his childhood would be fractured anyway. This is not a case of the better of two evils. In my view this child has a chance to grow up normally if he is protected from the risk of violence and abuse.
The father asked me to make orders when the case started that would effectively amount to a slow build-up to a normal relationship with him. However, that would almost certainly have meant making interim orders. In my view this is a case where it is preferable to make the order that would be least likely to lead to the institution of further proceedings. That order and these reasons do not prevent a further application but they do make clear that substantial changes would have to be made in the father’s life and approach before an order could be made to commence developing a relationship with the child. In addition, there would have to be a substantial improvement in the psychological health of the mother before the risks to which I have already referred would be overcome.
I have contemplated the matters in ss 4 and 4A but having regard to the findings I have made, I accept that neither should be a serious consideration.
Section 60CG is sometimes overlooked because of the references in s 60CC to family violence. It reads:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
I have taken that into account.
I have already referred to equal shared parental responsibility. It is no longer an order sought by the father. This would clearly be a case in which the presumption would be rebutted because of the violence and on the basis that it would be contrary to the best interests of the child to make such an order.
For those reasons, I propose to make the orders set out at the commencement of these reasons.

I certify that the preceding One Hundred and Eight Eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate:

Date: 1 August 2008

[2008] FamCA 598

1 August 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies