Casano and Antipov (No 3)
[2016] FamCA 653
•10 August 2016
FAMILY COURT OF AUSTRALIA
| CASANO & ANTIPOV (NO 3) | [2016] FamCA 653 |
| FAMILY LAW – CHILDREN – Best interests of the child – The issue for determination at the end of the final hearing was the time the father should spend with the child – Where the father has long alleged that the child was physically or sexually abused or neglected in the mother’s household – Where the court is not satisfied of such abuse or neglect – Concern in relation to the father’s mental health – Psychiatric expert evidence – Findings of family violence perpetrated by the father against the mother, including extensive surveillance – The father’s parental capacity and attitude to the responsibilities of parenthood – Risk of psychological harm to the child from being subjected to abuse when spending time with the father and exposed to family violence perpetrated by the father against the mother a very significant consideration – Mother to hold sole parental responsibility – Father to spend no time with the child. FAMILY LAW – CHILDREN – COURTS AND JUDGES – Disqualification – Apprehension of bias – Application dismissed. FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Application to intervene – Application made by paternal grandmother to intervene during the adjournment of the part-heard final hearing – Application refused. |
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 92.
| Aligante & Waugh(No 2) [2010] FamCA 554 |
| APPLICANT: | Mr Casano |
| RESPONDENT: | Ms Antipov |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Rowley |
| FILE NUMBER: | PAC | 3528 | of | 2012 |
| DATE DELIVERED: | 10 August 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 7,8,9,10 and11 September 2015 and 7,8,9,10 and11 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Greenaway (7 -11 September 2015) Mr Katsinas (7-11 March 2016) |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers (7-11 September 2015) Just Defence Criminal and Family Lawyers (7 -11 March 2016) |
| COUNSEL FOR THE RESPONDENT: | Mr Guterres |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Sydney Central Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
Orders
All previous parenting orders be discharged, with the exception of Orders 1, 2 and 3 of 11 March 2016.
The mother shall have sole parental responsibility for the child B (“the child”) born … 2009.
The child shall live with the mother.
The father shall spend no time with the child.
The father shall not communicate with the child.
The father shall be restrained from engaging or encouraging any third party to engage any person, company or organisation, either on a paid or unpaid basis, to undertake any form of surveillance of the mother, Mr F or the child.
The father, Mr Casano born … 1972, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child B born … 2009 from the Commonwealth of Australia until 12 July 2027 AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
Pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth), the mother be permitted to remove the child from the Commonwealth of Australia.
Pursuant to section 11(1)(b) of the Australian Passports Act 2006 (Cth) the mother be permitted to apply for the issue of an Australian travel document and the renewal of same for the child without the consent of the father being obtained.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Casano & Antipov (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3528 of 2012
| Mr Casano |
Applicant
And
| Ms Antipov |
Respondent
REASONS FOR JUDGMENT
Introduction
B (the child) is a little boy of seven whose parents have been engaged in a dispute concerning his parenting arrangements for four years.
Prior to the first five days of the final hearing in September 2015 the child had been living in an almost equal shared care arrangement between his parents. For the reasons given, on 11 September 2015, at the conclusion of those five hearing days I discharged all previous parenting orders and made orders that the mother have sole parental responsibility for the child, that he live with the mother and spend supervised time with his father until the hearing resumed on dates to be fixed.
The father did not spend any time with the child after the interim orders were made in September 2015.
The proceedings resumed and there were a further five days hearing in March 2016. In the course of the resumed hearing there were a number of applications, some of which were dealt with at the time and oral reasons delivered. There were also two applications which were each dismissed and reasons were to be delivered at a later stage.
This judgment concerns the competing final parenting applications for the child, and also contains reasons for the dismissal of the paternal grandmother’s application to intervene in the proceedings and the father’s application that I recuse myself from further hearing the proceedings.
My Reasons for Judgment delivered on 16 September 2015[1], (“the September 2015 judgment”) are incorporated in and to be read with these Reasons.
[1] Casano & Antipov [2015] FamCA 765.
Background
Mr Casano (“the father”) who is 43 and of Country H heritage grew up in Australia. He met Ms Antipov (“the mother”) who is 28 and of Northern European heritage in Country H in 2008. They commenced a relationship and arrived in Australia to settle in November 2008. At this stage the mother was pregnant.
The mother and father initially lived with the paternal grandparents, but moved into their own accommodation in April 2009.
The parents’ only child, B, was born in 2009.
The mother alleges that the father began being aggressive towards her from around June 2010, including verbally abusing her in the presence of her parents, who were visiting at the time. The father denies that at any time he was abusive or violent towards the mother and this issue is dealt with later in these Reasons.
The father alleges that from around February 2011, the mother was violent and threatening towards him and claims that in May 2011 she stabbed him in the arm. The allegations of violence are denied by the mother and are dealt with later in these Reasons.
From at least December 2011, the father downloaded an application onto his phone which enabled him to track the mother’s location and monitor her telephone calls. From around February 2012, the mother claims that the father became increasingly controlling and increased his monitoring of her, including accessing her Skype and email accounts, Facebook account and phone. The issue of the father’s surveillance of the mother is dealt with further later in these Reasons.
The mother claims that the father used harsh physical means to discipline the child on a number of occasions from around early 2012, when the child was two and a half. The father also makes allegations against the mother of physical abuse of the child. Each party’s allegations of physical abuse against the other is a matter of dispute dealt with later in these Reasons.
The maternal grandmother visited from Europe and stayed with the family in March 2012.
From around June 2012, the mother contemplated separating from the father and made some enquiries, including with legal aid in this regard. The father was opposed to separating from the mother.
On 27 June 2012, with the assistance of police, the mother moved out of the family home into a refuge with the child and the maternal grandmother. She was required to move to another refuge the following day as the father became aware of her location.
Following separation the father came into possession of the mother’s personal journal that she had kept since she was 15 years of age. The father had the journal translated and copied and has not returned the journal to the mother, even though an order was made in September 2015 requiring him to do so.
On 12 July 2012, the father commenced parenting proceedings in a Local Court and interim parenting orders were made, providing for the father to spend time with the child. On 27 July the father began spending time with the child.
In August 2012 the proceedings were transferred to the Federal Circuit Court. At around this time the father also sent numerous messages and emails to the mother seeking that she reconcile with him.
On 9 September 2012, the mother received an email from the father in which he stated that he was planning to end his life. She did not make the child available to spend time overnight with the father due to concern she had about the father’s mental health.
From late October 2012, the father began presenting the child to hospitals and/or health professionals, concerning “injuries” that he says he observed on the child which he believes were inflicted by the mother. The father also made complaints to the Department of Family and Community Services (“Community Services”) and police about his concerns.
The mother contends that the child falls and hurts himself in the course of active play as any child would do. She says that the child does not suffer from any medical conditions, and denies that she or her partner have ever harmed the child. This matter which is central to the dispute between the parties is dealt with later in these Reasons.
The mother began a relationship with Mr F (“Mr F”) in late January 2013. From around this time the father contends that the mother has been the victim of domestic violence and says that on a number of occasions he has observed bruises to various parts of her body. The mother denies that she is in an abusive relationship and this matter is dealt with later in these Reasons.
The father was charged and subsequently found guilty of using a telephone in an offensive manner in relation to his communication with the mother on the evening of 30 January 2013, when the child was admitted to hospital. The hospital records for this admission also indicate that the father was verbally abusive towards the mother and was spoken to by staff about this behaviour.
On 20 February 2013 a provisional apprehended domestic violence order (ADVO) was made against the father on a police application for the protection of the mother. It included a broad order that the father not approach or contact the mother by any means except through his legal representative or as permitted under the Family Law Act.
On 5 March 2013 an interim ADVO was made against the father for the protection of the mother in similar terms to the provisional order.
On 16 March 2013, there was a “home invasion” at the mother’s home when three unknown men entered her apartment. One was armed with a Taser which he held up to the mother’s face and the other two men assaulted Mr F. They did not attempt to steal any property from the mother’s home. The father denies any involvement with this incident which is dealt with later in these Reasons.
On 27 May 2013 the family were assessed by a family consultant for the purposes of a Family Report.
On 18 September 2013 the father was found guilty of using his telephone for the purposes of offending the mother (in January 2013), but the magistrate declined to make a final ADVO for the protection of the mother.
On 23 September 2013 the parties were interviewed by an expert psychiatrist, Dr G as this had been recommended by the family consultant.
The father and his wife (R) who is a Thai citizen met online in October 2013. The following month the father travelled to Country O, to meet her and the child spent time with the paternal grandparents during the periods he otherwise would have spent time with his father.
The father returned to Australia at the end of December 2013 with R who stayed with the father for three months.
The father’s allegations that the child presented with injuries following his time with his mother and made complaints about the mother’s conduct recommenced as soon as the father returned from Country O.
The mother says that she was worried about aspects of the child’s behaviour and in January 2014 consulted with the child’s paediatrician Dr K. In a letter dated 5 February 2014, Dr K referred the child to a psychologist practice for “behavioural cognitive therapy” (sic).
On 22 February 2014, the child commencing seeing a psychologist, Ms Q, and continued to attend the psychologist every two weeks.
In October 2014 the father travelled to Country O and the child spent time with the paternal grandmother in the father’s absence.
The father’s complaints about the mother’s conduct recommenced whenever he returned to Australia.
In around July to August 2015, the father again travelled to Country O.
The first part of the final hearing took place on 8 to 11 September 2015. On 11 September orders were made discharging earlier parenting orders and providing that the child spend supervised time only with the father.
The father lodged an appeal against the interim orders of 11 September 2015 but this was subsequently discontinued.
On 23 November 2015, the father’s application to revisit the interim parenting orders was dismissed and Reasons for Judgment were delivered on the same date.[2]
[2] Casano & Antipov(No 4) [2015] FamCA 1071
The father did not spend any time with the child pursuant to the interim orders between September 2015 and March 2016, when the hearing resumed.
At the commencement of the resumed hearing, I first dealt with the paternal grandmother’s application to intervene in the parenting proceedings. As indicated, my reasons for doing so are dealt with in this judgment. An application was then made to exclude the mother from the court during a further application foreshadowed by the father’s counsel. The application to exclude the mother during the father’s further application was refused and oral reasons given.
A further application was then made on behalf of the father to adjourn the proceedings. The adjournment was sought on the basis that an ongoing investigation into the alleged conduct of the mother and her partner was unresolved and the father contended that it ought to be completed prior to the proceedings resuming. In the course of submissions concerning the father’s adjournment application, the Independent Children’s Lawyer (“ICL”) sought an order that police investigating the allegations against the mother and her partner be provided with a copy of the September 2015 judgment, which was opposed by the father. In the course of considering the father’s application for adjournment and the ICL’s application, the provision of the September 2015 judgment to Community Services also arose. Ultimately, the father’s application for adjournment was dismissed and orders were made for the September 2015 judgment to be provided to Community Services and police. Oral reasons were given at the time of those orders.[3]
[3]Casano & Antipov [2016] FamCA 548 and Casano & Antipov (No 2) [2016] FamCA 549.
After completion of the father’s case (which entailed short evidence from the father about the interim period and his mother’s evidence), the father then made an application that I recuse myself from further hearing the matter. That application was dismissed and the reasons for that dismissal were to be delivered at a later date. As previously indicated, this judgment also deals with those reasons.
The paternal grandmother’s intervention application
The paternal grandmother first made application to intervene in the parenting proceedings on 1 March 2016, 10 days prior to the resumption of those proceedings. In addition, she sought orders (in the event that orders were not made for the child to spend time or live with his father) that the child spend time with her each alternate week from after school Friday until before school Monday and for half the school holiday period. She also sought orders in relation to communication with the child and that the mother inform her of serious medical problems or illnesses in relation to the child, school functions, the mother’s residential address and “any other matter relevant to the child’s welfare.” The paternal grandmother also sought information in relation to the child’s school activities so that she could attend such activities and events. She did not seek any orders in the event that the court made orders that the child live with or spend time with the father.
The paternal grandmother’s application to intervene in the proceedings was not surprisingly supported by the father and opposed by the mother. The ICL did not wish to be heard in relation to the application, but expressed concern that if it were granted the proceedings may not be completed in the time allocated.
The paternal grandmother was scheduled to appear as the final witness in the father’s case when the proceedings resumed on the day her application to intervene was considered.
The Law
Section 92 of the Family Law Act 1975 (Cth) provides:
Intervention by other persons
(1) In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.
…
(2) An order under this section may be made upon such conditions as the court considers appropriate.
(3) Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
Discussion
The grandmother’s application to intervene in the proceedings and seek orders that the child spend time with her in the event that orders are not made for the child to spend time with his father is supported by an affidavit which does not address the reasons why she seeks to intervene in the proceedings at all and in particular at the stage she did.
In her affidavit the paternal grandmother also does not address any of the serious risks outlined in the September 2015 judgment, which formed the basis for the orders that the child live with his mother and spend limited supervised time with his father pending final resolution of the proceedings. The affidavit also contains additional evidence in relation to a number of matters, including the significant issue of the father’s presentation of the child to medical practitioners. She also sets out her observations of the mother and child at changeover occasions which support the father’s allegations of the mother’s abuse of the child and that the mother was a victim of violence herself. These matters were included for the first time in this affidavit and had not been contained in the paternal grandmother’s trial affidavit. It appeared that the paternal grandmother may have contemplated that her later affidavit could be relied upon in substitute for her trial affidavit in the resumed parenting proceedings.
It is submitted on behalf of the paternal grandmother that her application to intervene was brought on the basis of undisputed evidence that the paternal grandparents shared an important relationship with the child and her recent awareness that this relationship with her grandchild may not be supported through any final parenting court orders.
The mother opposes the grandmother’s application to intervene in the proceedings on three grounds. It is submitted first that the grandmother has no separate interest to the father in the proceedings and that the application is an attempt to secure an alternate means (other than by court orders as sought by the father) for the father to spend time with the child. It is submitted that this can be inferred from the very face of the application, which only seeks orders if there are no orders made for the child’s time with his father. It is also submitted that in her affidavit, the grandmother shows no understanding of the risks that are posed by the father nor does she identify the steps she would take to ensure that the father did not come into contact with the child during her time with him if such orders were made.
The application for the grandmother to intervene in the proceedings is also opposed by the mother as the impact of such intervention, will be that as a party, the grandmother will have access to the Family Report and that an adjournment may be anticipated to be sought for the grandmother to review all of the material filed in the proceedings, including the very large volume of documents produced upon subpoena. Concern was also expressed about the delay in the proceedings, which may be necessitated by the family consultant assessing the grandmother. Although the family consultant had previously observed interactions of the child with the grandmother she had not been assessed as a party seeking orders. In particular, in these circumstances where the grandmother is seeking orders for the child to spend significant time with her and given her close relationship with the child’s father, her capacity to understand risk and protect the child from harm would require this assessment to be undertaken.
The third reason for opposing the grandmother’s application put forward by the mother is the prejudice that the mother would experience if the paternal grandmother were permitted to intervene at this stage. The parenting application had been conducted on behalf of the mother in a particular way, having regard to the applications before the court. Various matters, such as the father’s relationship with his mother would have been explored under cross-examination with him had the grandmother been a party, and the orders sought by her were known. The proceedings have been on foot for nearly four years and the paternal grandmother has been aware of the matter and filed a number of affidavits. It is submitted that there is no explanation in her affidavit for why the application is being brought at this late stage. It is submitted that in these circumstances it would be most unfair on the mother for the application to be granted.
In my view, there is significant force to each of the submissions put on behalf of the mother. The grandmother has not set out in her affidavit why she is seeking to intervene in the proceedings at this stage.
Having regard to the nature of the interim orders made in September 2015 and the reasons for them and the fact that the grandmother only seeks orders for her time with the child in the event that no orders are made for the child to spend time with the father, it can be inferred that the grandmother’s interests in these proceedings are the same as the father’s.
The nature of the orders sought by the grandmother, including that the child spend time with her each alternate weekend and half of school holidays, and that the mother be required to communicate and interact with the grandmother about issues relating to the child’s welfare are in my view more akin to orders that a court may ordinarily make with respect to a non-residential parent.
It is also of significance that the paternal grandmother does not acknowledge in the orders she seeks or in her affidavit her understanding of matters of significant risk posed by the father. She does not propose any restriction or limitation upon the child’s time with his father when spending time with her and it can be inferred that she may permit this to occur in an unrestricted manner if orders are made as she seeks. In these circumstances I accept the submission made on behalf of the mother that the grandmother’s application to intervene in the proceedings is little more than an attempt to have the father spend time with the child by a means other than through court orders in his favour.
As noted, the paternal grandmother has not identified in her affidavit any reasons for the change in her position. It can be inferred that she had an expectation that if final orders were made for the child to spend time with the father, she and the paternal grandfather would also spend time with the child during these periods as occurred under the interim orders, prior to September 2015. Prior to September 2015 the child in fact spent time with his grandparents in substitute for the father’s time on a number of occasions when the father was overseas, even though the orders did not provide for this to occur. Even though it is not clearly stated in her affidavit, I accept the submission made on behalf of the paternal grandmother that it only became apparent to her a short time prior to the resumed proceedings that there was a risk that the child would not spend any time with her as a result of the final parenting orders. However, in my view, this is not a reason of itself to grant her application to intervene in the proceedings. It also in my view reinforces the inference that the grandmother’s position is identical to the father’s and that each of them effectively considers orders made that the child spend time with one of them as if they were orders that the child spend time with either or both of them.
Although it is submitted on behalf of the grandmother that if she intervened in the proceedings she would not seek an adjournment to review the documents filed in the proceedings or produced on subpoena, delay in the determination of the proceedings would still be, in my view, inevitable. Having regard to the orders sought by the paternal grandmother it would be necessary to have her assessed by the family consultant. I also accept the submission that the mother’s position in the proceedings would be prejudiced by permitting the grandmother to intervene at this stage after five days hearing, conducted on the basis of the applications before the Court at that stage.
Having regard to all of the foregoing I dismiss the paternal grandmother’s application to intervene in the proceedings.
The disqualification application
The Application
The application is based upon the contention that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of the parenting proceedings as I have prejudged the issue of the father’s credit. The application was opposed by the mother and the ICL did not wish to be heard on the issue.
It is submitted on behalf of the father that the alleged prejudgment about the father’s credit is apparent in the following: -
·A curtailing of the cross-examination of the Expert Dr G by the father’s previous counsel.
·In failing to make a request that the Legal Aid Commission make further funding available to pay for further cross-examination of the Expert by the father.
·In directing that the Expert Dr G give his evidence prior to the mother’s cross-examination.
·In making comments directly to the father about his conduct in the proceedings.
·In making an order on 7 March 2016 that the September 2015 judgment be provided to police (and that the judgment itself contained a reference to a particular email sent by Dr L of the Child Protection Unit)
It is submitted on behalf of the father that while one or more of these matters alone would not give rise to the apprehension in the mind of a fair-minded lay observer, when taken together such an apprehension may arise.
A consideration of the application requires that further background concerning the context of the application and various previous directions and judgments must be given.
Background to the application
Cross-examination of Dr G
As previously explained, these parenting proceedings were originally listed for final hearing for five days from 7 to 11 September 2015. After dealing with some preliminary matters on 7 September the cross-examination of the father commenced. In the course of that lengthy cross-examination many issues required separate determination such as a claim of legal professional privilege over diaries maintained by the father. There were also many matters required to be covered by cross-examination, as the father raised a large number of incidents of alleged risk over many years in his affidavit. The completion of the father’s cross-examination was also delayed by other factors including interposing the father’s wife (who required an interpreter) at the father’s request.
By the third day, 9 September 2015, it was apparent that as there were still a large number of relevant matters upon which the father was to be cross-examined, it was unlikely that the hearing would be completed in the allocated five days.
Enquiries were then made about the availability of Dr G, the expert witness. I also raised concerns that Dr G’s report was in any event no longer current (having been prepared in September 2013). At this stage it became apparent that neither of the parties could afford to pay Dr G for the preparation of an update report or for his attendance at court for cross-examination. The ICL took the position at that stage that she proposed relying upon the evidence of the family consultant who would be made available for cross-examination, rather than Dr G.
For the reasons given on 9 September 2015[4] I recommended in strong terms that the parties between them including the Legal Aid Commission find a way to fund Dr G’s attendance in the proceedings. It suffices to say that both of the parents had raised the issue of the other parent’s mental health with the family consultant and the family consultant who has qualifications and experience as a social worker had recommended that the opinion of an Expert psychiatrist be obtained in the matter. The impact of each parent’s mental health upon their parenting capacity is the most significant issue in these proceedings and is central to each party’s position.
[4] Casano & Antipov (No 3) [2015] FamCA 767
I noted in the judgment concerning Dr G’s attendance that his report was at that stage nearly two years old and there had been many events since that date. The parties could not afford an updated report so it was critical in my view that Dr G give his additional evidence orally and be available for cross-examination. For the reasons given in that judgment I also expressed the view that I would assisted by Dr G giving his evidence early in the proceedings and in particular after the father’s cross-examination had been completed in circumstances where interim orders may need to be considered. Dr G’s evidence was particularly concerned with the presentation of the father and contained an opinion as to the father’s mental state.
Neither of the parties to the proceedings or the ICL raised any issue at the time with my direction that Dr G be called early in the proceedings or my opinion that he was a critical witness and recommendation in the strongest terms that the parties including the Legal Aid Commission find a way to fund his attendance.
Dr G gave evidence on the last day of the September 2015 hearing, after the father’s cross-examination was complete. His evidence began with a quite odd preliminary matter in which the father disputed that Dr G was in fact the person who had assessed him and some short evidence was given so the father could be satisfied as to that matter. The ICL then provided Dr G with an agreed summary of the father’s evidence in the proceedings and asked him to express a further opinion in light of that evidence. Although the remaining time available for cross-examination of Dr G was to be evenly divided between the parties, the mother’s counsel did not use all of the time allocated to her and the father’s counsel cross-examined the doctor for 50 minutes, almost exactly twice the time taken by the mother’s counsel. At the end of the cross-examination by the father’s counsel, it was foreshadowed that the father may make an application in the future to further cross-examine the witness. I indicated that the issue of costs of Dr G’s further attendance would be specifically addressed by way of further order. My orders of 11 September 2015 included the following:
The matter is not to be relisted for further hearing until the issue of whether [Dr G] will be required for further cross-examination and the issue of his payment is resolved.
The Order that the ICL provide the September 2015 judgment to police
For the purposes of considering the disqualification application it suffices to say that it was central to the father’s case that the mother had many serious impediments to her parenting capacity including unaddressed mental health issues and that she posed an unacceptable risk of physical and emotional harm to the child. It was also central to his case that the mother’s partner has also physically and sexually abused the child on many occasions since separation and poses an unacceptable risk of harm to the child. As evidence for his concerns of physical and sexual abuse at the hands of the mother and her partner, the father alleges that from around October 2012, a few months after separation the child was regularly and consistently presented to him after his time with the mother with unexplained injuries and that the child made complaints about the conduct of the mother and Mr F.
In the early years following separation the father sought medical attention for these “injuries” by presenting the child to doctors and hospitals and says that for many years he has been attempting to draw the attention of appropriate authorities to the mother’s abuse and neglect and obtain appropriate treatment for the child. It is the mother’s position that the father’s concern about harm and injuries to the child and his general preoccupation with the child’s health is symptomatic of the father’s mental condition. For the reasons set out in the September 2015 judgment, Dr G is of the opinion if the father’s complaints about the mother are unfounded that the father’s presentation is consistent with a delusional disorder and that the father’s parenting capacity is significantly impacted upon by his personality vulnerability and this disorder.
A central issue in the father’s case is his contention that he has been misrepresented and frustrated by various health professionals, the police, Community Services and the actions of the mother, in having the risks associated with the mother’s care being recognised and in obtaining appropriate treatment and protection for his son.[5] In relation to this matter in the September 2015 judgment, I set out a highly relevant interchange of correspondence between the child’s paediatrician and Dr L of the Child Protection Unit at the Hospital M. In a letter to Dr L, the paediatrician requested a full evaluation of the father’s concerns about the child. As is set in the September 2015 judgment at [28], Dr L wrote the following email in response:
This case is extremely well known to this unit. The child has been presented here on several occasions and numerous reports have been made to FaCS with the main concern now being that the father’s behaviour may constitute abuse of the child. Concerns have been expressed about the father’s mental state.
We will not see the child unless requested to do by FaCS.
I hope you understand our reasons for not getting involved.
[5]Casano & Antipov [2015] FamCA 765 at [16]
Dr G’s evidence about the harm to the child associated with the father’s belief that the mother had abused the child and his attempts to have his claims investigated and justified is dealt with at length in the judgment (see paragraphs 20, 29-31, 51 - 52, 63, 66 - 67, 81 - 82, 87 - 88).
As noted, when the proceedings recommended in March 2016, the father first made an application that the proceedings be adjourned until investigations were completed, concerning the most recent allegation made by the father against the mother and her partner of physical and sexual abuse of the child. As also indicated, counsel for the ICL at that stage sought an order that the ICL provide the police officer who had carriage of that investigation with the September 2015 judgment. This application then became expanded to an order that leave be given to the ICL to provide the judgment also to Community Services. Oral reasons for making those orders were given at the time. It suffices to say that those orders reflected my concern that in making a decision whether to interview the child, the police may not be fully aware of the views expressed by many qualified people (including in particular Dr L), that the father’s need to have such matters investigated itself may constitute abuse of the child.
Further cross-examination of Dr G
When the matter recommenced on 7 March 2016, a day before the recusal application was made, the issue of further cross-examination of Dr G was also raised. It appeared from the submissions made on behalf of the father that he required Dr G for further cross-examination and had an understanding that the costs associated with Dr G’s further attendance would be borne by the Legal Aid Commission. The father’s counsel (who was recently engaged and did not appear in the first part of the proceedings) appeared to be unaware of the order that the issue of Dr G’s attendance and payment, was specifically raised on the last occasion required to be resolved prior to allocating future hearing dates.
When the hearing resumed in March 2016, the ICL indicated that the father had not made any further arrangements for Dr G to attend and all of the funding associated with the attendance of Dr G provided by the Legal Aid Commission had been exhausted. The father’s counsel then informed the Court that he had specific instructions from the father that “he’s not prepared to pay for Dr G to come back”. In those circumstances no further enquiries were made about the availability of Dr G for further cross-examination. The father then withdrew the contention that my “failure” to make a request that the Legal Aid Commission make further funding available to pay for further cross-examination was relied upon in the disqualification application.
After some further matters were dealt with at the resumed hearing in March 2016, the paternal grandmother, the last of the father’s witnesses was cross-examined.
The interchanges on 7 March 2016
Towards the end of the paternal grandmother’s cross-examination the following interchange took place between myself and the father’s counsel:
HER HONOUR: Mr Katsinas, you may have to get your solicitor to speak to the father. I obviously cannot see ‑ ‑ ‑
MR KATSINAS: Yes.
HER HONOUR: ‑ ‑ ‑ what’s going on when I’ve got my head down.
MR KATSINAS: Yes.
HER HONOUR: I have occasionally – I have to say, sighted the father at least moving his lips ‑ ‑ ‑
MR KATSINAS: Yes.
HER HONOUR: ‑ ‑ ‑ and looking towards his mother. He really needs to be spoken (sic) that he must remain absolutely and utterly passive.
MR KATSINAS: Yes, your Honour.
HER HONOUR: And if you could have the solicitor speak to him ‑ ‑ ‑
MR [CASANO]: He doesn’t need to.
HER HONOUR: Even ‑ ‑ ‑
MR [CASANO]: He doesn’t need to, your Honour.
HER HONOUR: Even in terms of the interchange ‑ ‑ ‑
MR KATSINAS: [Mr Casano].
HER HONOUR: ‑ ‑ ‑ directly, I am ‑ ‑ ‑
MR [CASANO]: No. He doesn’t need to.
HER HONOUR: I am ‑ ‑ ‑
MR [CASANO]: I wasn’t looking at my mother and I wasn’t moving my lips.
HER HONOUR: All of that is recorded ‑ ‑ ‑
MR [CASANO]: Yes. Good.
HER HONOUR: ‑ ‑ ‑ and all it does ‑ ‑ ‑
MR KATSINAS: [Mr Casano].
HER HONOUR: ‑ ‑ ‑ is reinforce ‑ ‑ ‑
MR KATSINAS: Just leave it there.
HER HONOUR: ‑ ‑ ‑ the father’s behaviour in the court. He’s now speaking directly to the bench, and this is being recorded.
MR KATSINAS: [Mr Casano] ..... Thank you, your Honour.
MR [CASANO]: One word I said.
HER HONOUR: I’m sorry. What did you just say?
MR [CASANO]: One word I said. One word.
MR KATSINAS: [Mr Casano].
HER HONOUR: This is just – it’s ‑ ‑ ‑
MR KATSINAS: [Mr Casano].
HER HONOUR: It’s all being recorded, and it all re-affirms exactly what I’m saying that the father doesn’t ‑ ‑ ‑
MR [CASANO]: What has it got to do with my son?
MR KATSINAS: [Mr Casano]. Please, just stop. Thank you, your Honour. I will reiterate it to him again. Thank you.
HER HONOUR: Thank you, Mr Katsinas. Yes, Ms Falloon.
Prior to adjourning for the day there was also the following interchange:
HER HONOUR: I note the time, so I won’t go into – but there are a couple of things I need to flag. First of all, in relation to some evidence that the father gave when he was doing his short cross-examination to the effect that he has not complied with an order of the court to give the diaries back, I make a direction that the father is to produce the mother’s diaries to court tomorrow. And the father is shaking his head ‑ ‑ ‑
MR [CASANO]: Yes. I am. I’m shaking my head.
HER HONOUR: ‑ ‑ ‑ and I will interpose to say that if the father’s courtroom behaviour is unacceptable and continues to be ‑ ‑ ‑
MR [CASANO]: Kick me out.
HER HONOUR: ‑ ‑ ‑ and he’s gesticulating and looking me in the eye right at the moment, he will be moved to another room and will participate by means of audiovisual link, unless you have something to say about that. This cannot go on.
MR KATSINAS: Yes, your Honour.
MR [CASANO]: It can’t go on.
MR KATSINAS: Don’t, please. Please.
MR [CASANO]: It can’t go on.
HER HONOUR: He just said audibly, “It can go on.”
MR KATSINAS: No, he didn’t. Your Honour, he didn’t say that. He didn’t actually say – he said, “It can’t go on.” That’s what I heard.
MS FALLOON: That’s right. That’s what I heard too.
MR KATSINAS: Yes.
HER HONOUR: All right. He doesn’t need to repeat the order of the court.
MR KATSINAS: Yes. Yes.
HER HONOUR: But that’s what I propose doing tomorrow in the event that there is any incident where he either speaks directly to me, or says things that are audible to people at the bench, or makes eye contact with witnesses, or anything of the nature – attempts to contradict the court. He will be placed in another room, and he can participate through audio visual link unless you’ve got something to say about why ‑ ‑ ‑
The Law & Discussion
In Ebner v Official Trustee in Bankruptcy[6], the plurality of the High Court (Gleeson CJ, Gummow and Hayne JJ) set out the test for disqualification:
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[6] [2000] HCA 63; 205 CLR 337
In Johnson v Johnson[7], the plurality observed:
[11] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
…
[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.
[7] [2000] HCA 48; 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
In Strahan & Strahan (Disqualification)[8], the Full Court stated (at [5]-[6]):
In applying this two step process to particular cases it must be kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. This point was firmly made by Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. Given the importance of the proposition, and the fact that Strickland J cited it in his reasons, we propose to set out what Mason J said at 352:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
[8] [2009] FamCAFC 204
The Context of the Proceedings
The context of the proceedings is an important matter when determining a recusal application. This application is made in the particular context of child related proceedings. Orders concerning parental responsibility and with whom a child will live and spend time are parenting orders which are determined in accordance with provisions of Pt VII of the Act. Under s 60CA of the Act, “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”. In deciding the parenting arrangements which are in the best interests of a particular child the Court is required to consider a series of identified principles, objects and considerations.
The principles for conducting child related proceedings, which includes applications for parenting orders, are set out in Div 12A of Pt VII. Relevantly, that Division includes the following:
69ZN Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.69ZQ General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(aa) ask each party to the proceedings:
(i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f) if the court considers it appropriate--encourage the parties to use family dispute resolution or family counselling; and
(g) deal with as many aspects of the matter as it can on a single occasion; and
(h) deal with the matter, where appropriate, without requiring the parties' physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1) If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3) To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
69ZX Court’s general duties and powers relating to evidence
(1) In giving effect to the principles in section 69ZN, the court may:
(a) give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders about how particular evidence is to be given; and
(d) if the court considers that expert evidence is required--give directions or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert's evidence; and
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
In Aligante & Waugh(No 2)[9], after considering the Explanatory Memorandum, Watts J stated the following concerning s 69ZR:
40. Section 69ZR(1) FLA envisages that before making final orders, a court may find a fact or determine a matter. The section would have no meaning if what was being referred to was the determination of uncontroversial facts or matters. The word “fact” or “matter” must, at least, include a fact or matter disputed between the parties.
41. The work that s 69ZR FLA does, in Division 12A Part VII FLA, is to free up a trial judge, so that the trial judge can conduct proceedings in a more child focused way. Whilst the features of an adversarial trial are not entirely abandoned, and procedural fairness is still a touchstone, there is flexibility in the judge controlled process created by the Division. That flexibility allows a judge, without having to fear a disqualification application based on pre-judgment, to make findings about disputed facts and to determine issues, if the judge forms the opinion that it is in the child’s best interests to conduct the hearing in that manner.
[9] [2010] FamCA 554.
What is said might lead to deciding the case other than on its legal and factual merits?
The five matters referred to in paragraph 64 are relied upon to ground the contention that an apprehension may arise that I may decide the case other than on its legal and factual merits. Three of these matters relate to the expert witness Dr G.
As indicated, neither of the parties or the ICL proposed cross-examining Dr G and the ICL also did not intend calling him to provide an updated opinion. The directions in relation to the calling of Dr G including the stage of the proceedings at which he was to be called, involved an application of the Principles for conducting child related proceedings which I am required to give effect to. In particular, Principle 2 requires that the court actively direct, control and manage the conduct of the proceedings. In giving effect to the Principles, I was also exercising the general duties required of me including the duties set out in s 69ZQ(1)(a) to (c).
The direction concerning the stage in the proceedings that Dr G was to be called falls squarely within these principles and duties.
The contention that I curtailed the cross-examination of Dr G is not borne out by the transcript. First, it is apparent from the transcript that the father’s counsel utilised twice the amount of time that had been allocated to him for cross-examination of Dr G. Further, as counsel foreshadowed at the end of that cross-examination that the father may seek to cross-examine Dr G further, I made specific orders when the matter was adjourned that this issue was to be resolved prior to the allocation of further hearing dates. I was concerned that given the protracted nature of the proceedings it was important to have an accurate understanding of the likely length of the remainder of the hearing before the dates were allocated. The father did not indicate to the ICL or in any other manner that he wished to cross-examine Dr G further and seemed to believe (though the basis of this belief is was not identified) that the Legal Aid Commission would fund the further attendance of Dr G. When it was again made clear to the father at the resumed hearing that he could further cross-examine Dr G if he so desired, he indicated he was not prepared to pay for Dr G’s attendance. In these circumstances, the father has not established that I did in fact curtail the cross-examination of Dr G as contended.
So far as the final matter concerning Dr G’s evidence is concerned, it appeared that in the course of the disqualification application the father abandoned the contention that my “failure” to request that Legal Aid Commission make further funding available to pay for the further cross-examination provides a further ground for relevant apprehension.
As I understand the recusal application, the remaining two matters (the verbal interchange between myself and the father on 7 March and the order that the September 2015 Judgment be provided to police and Community Services) are said to amount to adverse credit findings about the father and for that reason a fair minded lay observer may apprehend that I may not retain an open mind to the matters to be determined in the proceedings.
The father places particular weight upon the reference in the September 2015 judgment to the email of Dr L, in contending that I had prejudged the issue of the father’s credit in the proceedings. The September 2015 judgment, giving reasons for the orders made at that time relies to a very large extent on the evidence of the father contained in his affidavit and under cross-examination and the expert opinion of Dr G who had been cross-examined. The opinions of various medical experts including doctors employed at the Emergency Departments of two hospitals and Dr L the head of the Child Protection Unit were also given significant weight in that judgment.
It is clear in the September 2015 judgment that I accepted the truth of much of the father’s evidence and in particular accepted his evidence (set out in paragraph 25 of that judgment) about his belief concerning the harm posed by the mother and her partner and his behaviour in respect of those beliefs. In particular I accepted the father’s evidence of his note taking and diary keeping on every occasion the child had been in his care since separation, his inspection of the child on each occasion the child came into his care and his documenting of every scratch or mark he observed including through taking photographs. I also accepted that the father had the intention to retain his diaries, the mother’s private diary, all affidavits, court documents, the judgment and photographs and to show these documents to the child when he is older so the child could make up his own mind in the matter. I also accepted the father’s account that he had engaged investigators to conduct surveillance on the mother, her partner and the child and the nature of that surveillance. It was also the father’s own belief that Doctors and other professionals to whom he had presented the child or made reports about the child’s care, had “doctored” and misquoted him. I also accepted that the father has at all times believed (and continued to believe at the time the order was made for the Judgment to be provided to police and Community Services) that the mother and her partner posed a risk to the child’s safety and that he wished to have the matter investigated, even if this resulted in a delay in the proceedings and the continuation for many months of interim orders which provided for him to spend very limited time with the child.
The medical opinion held by various doctors to whom the father had presented the child, that there was no evidence of the injuries alleged and that the greater concern is that the father’s behaviour may constitute abuse of the child, were not matters in dispute between the parties. Dr G’s opinion that the child has been emotionally abused as a result of the father’s behaviours and that his conduct would be regarded as very damaging to the child’s emotional and psychological development was tested under cross-examination, but the expert did not alter his view. The September 2015 judgment also dealt specifically with Dr G’s opinion about the father’s constant attempts at verifying his concerns through photographing the child, recurrent presentations [to doctors] and private investigators.
None of the matters referred to, being the father’s evidence, the opinions of medical experts and the opinion of the expert psychiatrist involved an assessment of the father’s credit.
At the resumption of the proceedings on 7 March 2016, the police investigation was at that stage current and some unspecified events were scheduled to take place during the same week of the hearing. Although a letter written by the investigating police officer is phrased in oblique terms, it appeared that some active investigation which may include a further interview of the child was then currently under consideration.
In these circumstances there was a concern that the Officer in Charge may not be fully appraised of some of the evidence in the matter including in particular the opinion of medical experts about the impact upon the child of the father’s preoccupation and behaviour including seeking to have his complaints about the mother’s conduct investigated. It is clear from the judgment on 7 March 2016[10], that the intention of the orders was to provide police with information otherwise unknown to them which may have a bearing upon whether to interview the child. At paragraph 7 of that judgment, I said the following:
It would be most unfortunate if police were unaware of these matters which are not in dispute and opinions that have been expressed by people who are highly qualified in the area. As I say, it is still a matter for police how they wish to proceed, but I would have thought, bearing in mind that the child’s best interest are essential in this matter, that the police have as much information as possible.
[10] Casano & Antipov [2016] FamCA 548
In making the orders, once again I was required to give effect to the Principles for conducting child related proceedings, in particular that “the proceedings are to be conducted in a way that will safeguard the child from being subjected to … abuse”. In other words the court is required to act protectively. Ordering that the report be provided to the police who were at that stage actively contemplating steps to be taken in connection with an investigation of the father’s complaint in my view is consistent with this Principle.
The final matter which grounds the disqualification application is the interchange between myself and the father about his conduct in court.
Although it is somewhat unusual that a trial judge would be required to speak to a litigant directly, on both occasions it is the father himself who initiated a direct conversation with the bench. On each occasion the father’s counsel appears to recognise that his client’s behaviour is inappropriate as he is recorded as speaking to the father and telling him stop. In other words, counsel implicitly recognised that the father’s conduct was inappropriate and it can be inferred that he understood that it was a legitimate exercise of control in the court room for these matters to be raised.
In the course of a highly emotionally charged parenting dispute there may be occasions on which there is a need to give directions about a party’s conduct. These directions cannot in my view amount to a finding about a party’s credit.
For the foregoing reasons, neither the order providing that the judgment be provided to the police nor directions concerning the father’s courtroom conduct amount to a credit finding against the father.
Even if a fair minded lay observer could apprehend that I may draw an adverse inference against the father from the matters raised, that is not the end of the matter. The authorities make it clear that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that she will decide the case adversely to one party.
The second step – the logical connection between the matters identified and the feared deviation from deciding the case on its merits
So far as the second step is concerned, this involves an “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”[11]. In other words there needs to be a nexus between those matters said to evidence bias and the matters still to be determined by the same trial judge.
[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]
For the reasons given, I have rejected the first of the grounds advanced by the father, that I curtailed the cross-examination by the father’s previous counsel of the expert Dr G. The second ground relating to my “failure” to request that the Legal Aid Commission provide further funding for cross-examination of Dr G was abandoned in the course of the application. The question then arises as to whether my directions in relation to the timing of Dr G’s evidence, the order that the September 2015 judgment be provided to police and Community Services and the interchange about the father’s conduct are logically connected to an apprehension that I may decide the case otherwise than on its merits.
It was not identified in any way how making the direction concerning the order of witnesses would result in an apprehension that I may deviate from deciding the case on its merits either alone or in connection with the other matters complained of. In my view, there can be no nexus between this direction and a fear that the case may be determined otherwise than on its merits especially in the context of child related proceedings to which Division 12A of Part VII of the Act applies.
So far as the other two matters are concerned, for the reasons given they do not amount to credit findings adverse to the father. Further, in order for the application to succeed it does not suffice if it may be apprehended by a fair minded lay observer that I may decide the case adversely to the father. It has not been articulated, how my interchange with the father about his courtroom conduct or in making the order concerning the September 2015 judgment an apprehension would arise that I may deal with the parenting application otherwise than on its merits. Accordingly, I dismiss the application that I recuse myself as sought by the father in the proceedings.
FACTUAL MATTERS IN DISPUTE
Has the father perpetrated family violence against the mother?
Conduct during the relationship
The mother’s main contention about the father being the perpetrator of family violence[12] relate to his controlling and other behaviour that caused her to be fearful during and after the relationship.
[12] Section 4AB of the Family Law Act 1975 (Cth): Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
…
(c)stalking; …
First the mother sets out in her affidavit that the father began becoming verbally aggressive and abusive towards her from around June 2010 and that she and the father argued several times a week as the father asked her to account for each hour of her day and sometimes accused her of lying to him about where she had been and who she had been seeing. She says that during the relationship, the father also controlled their finances and would question her when she asked for money. He became angry at her if she withdrew money from their joint account without asking him even though she was contributing income from her part-time job to that account.
Under cross-examination, the father agreed that he controlled the financial matters in the household but denied that the mother made any financial contribution other than on one occasion. Although the father denied requiring the mother to ask him for money, he did agree that he told her that she needed to tell him when she wanted money.
It is also the mother’s case that the father stalked her during the relationship and for a considerable period of time after separation.
The mother says that in around December 2011, the father showed her an application he downloaded onto his phone to locate her phone in the event that it was stolen. Shortly after this, it became apparent that the father was also using the phone to track her whereabouts which she says that she initially found amusing but that his continued use of the application made her feel her uncomfortable.
The mother says that the father’s controlling behaviour increased from around February 2012 when he began to question her about what she had been doing and sometimes asked her to account for every hour of the day. She says that he began accessing her Skype, Email, Facebook and phone to check her emails and messages and did so in her presence on an almost daily basis. She says he also showed her an application on his phone that listed the people she had called and would ask her questions about them.
The father does not address these allegations in his affidavit but under cross-examination agreed that he had placed a tracking application on the mother’s phone and through it could track her location. Although the father denied tracking the websites the mother had accessed and keeping track of her Skype history on her computer, he agreed that he did access the mother’s phone records because he wanted to know where she was at all times, claiming that this was required for the safety of his child. He also agreed that he had complained that the mother would not always answer her phone and would “disappear for a couple of hours”.
The father told Dr G that he used a tracking device on the mother’s phone which had been installed for “Ms Antipov] and [his] child’s safety” and this was necessary as she was very “unstable with the child”. He told Dr G that he tracked the mother to premises where a number of men lived and was convinced that the only reason for her to visit the location was for sex and drugs and was convinced that the mother was hiding something.
The father was cross-examined about information concerning his behaviour that he gave to his psychiatrist, Dr N. The father agreed that he had told the doctor that he followed the mother during their relationship but he denied having said that he checked on what the mother was doing on Skype and Facebook. He was asked about the doctor’s notes for a particular session which recorded;
Said he checked on what she was doing on Skype and Facebook and showed her the proof she was talking to men overseas. He claims he had every right to be controlling (emphasis added) as he was concerned about his son’s well-being.”
The father could not explain why this appeared in the doctor’s notes.
The mother said that in around early June 2012 when she was contemplating separating from the father and telephoned a legal advice line to obtain information about separation, the husband questioned her about her reason for contacting Legal Aid.
A few days prior to separation the father read a text message sent from the mother’s employer to which he took exception and the mother says he told her that he “sent someone to your boss so he won’t call you anymore”. The following night, the father picked up the mother’s mobile phone and read her text messages and engaged in a verbal argument with her about a call from a blocked number on Skype. The mother said that the father did not believe that the call was from a friend and punched the bed upon which she was lying near her leg saying words to the effect “you’re a liar. You’re a fucking liar.” She said that the father stood in front of her and blocked her from walking out of the room and when her mother (who was visiting) opened the door the father pushed her. The mother says that she hit the father across the face to stop him pushing her mother and she and the grandmother locked themselves in the child’s room while the father banged on the door and yelled and swore at them. The mother said that the child was present and crying during the incident.
The father says that he and the mother were arguing about blocked telephone numbers and that the maternal grandmother came into the bedroom and started hitting him in the chest. He says that the mother also hit him in the face and that both women left the bedroom and went to another room. The father contacted police who attended the home and each of the parties spoke to police officers. The father says that he complained to police about family violence that he had been experiencing and was given the option of pressing charges. The mother says she spoke to police about her safety concerns and was advised by police that she did not have to stay with the father.
The mother says that on around 27 June, she again spoke to police and was given information about refuges and made arrangements to move into a refuge with her mother and the child that day. The mother said that as she was packing to leave, the father said to her things such as “you can’t do this. Give me one more chance” and “I am calling the police. You’re going to be in trouble.” The mother says that the following day one of the workers at the refuge told her that they had been contacted by police and informed that the father had located her at the refuge and that she was relocated later that day. The mother said she left her phone at the first refuge as she was worried that the father was tracking her movements by the application he had installed on his phone.
The father agreed that he was very distressed by the mother leaving and did not want to separate at the time. He also agreed that he bombarded the mother with messages and in some of them he was abusive. The father did not agree that some of the messages he sent were threatening.
The father agreed under cross-examination that he accessed the mother’s emails after separation until 2013.
Conduct following separation
Although the father makes no reference to this matter in his affidavit, he agreed under cross-examination that he had hired a private investigator from “Company S” to undertake surveillance on the mother following separation. Initially he said that he first engaged a private investigator to undertake surveillance in 2013 and he then said that it stopped also in 2013. Under cross-examination, it then became clear that he had engaged the private investigator from late January 2013, and he then said that this engagement continued until April of that year.
The father said that the investigator’s brief was “to look out for my child” and he estimated that he spent about $10,000 on this surveillance. When he was called upon to produce records from Company S and only a limited number of records were produced, the father agreed he made an incomplete production. When asked why he had not produced all documents in answer to the call, he said “it’s my business”. The father agreed that the private investigators were engaged to undertake surveillance to find evidence of the mother’s neglect and abuse but the investigators did not find any evidence of this kind.
The father agreed that the “field operators” notes and photographs of surveillance on 27 January 2013, included surveillance of the rear entry to the mother’s home. When asked whether he requested that the field operator undertake surveillance of the back door, the father said “he left it up to them” and played no part in it. On this date there are numerous entries in the field operator’s notes about events taking place inside the mother’s home. The father agreed that he was told that the agent was peeping through the curtains and saw something through the crack in the curtains. The father agreed that he asked he investigators to go into the mother’s home and that some of the surveillance was conducted through the windows into the interior of her home.
The father agreed he gave “Company S” information about the mother’s work place and asked them to conduct surveillance of the mother’s partner. The father denied that he had asked “Company S” to report to him when the mother and her partner engaged in sex but said “they kept me updated by SMS”. The father claimed that he had no control over the field operators from “Company S”.
When asked about one of the video surveillance records which appeared to show the inside of the child’s day care centre, the father was particularly evasive saying that he could not remember anything about this occasion. Ultimately, he accepted that on 29 January 2013, the field operators from “Company S” did conduct surveillance inside the child’s child care centre, but claimed that he did not know their reasons for doing so.
The father was also cross-examined about the temporal connection between the surveillance and his presentation of the child to hospital on 30 January 2013. The father said that he took the child to hospital with concern about anal injuries and received a message at the hospital from the field operators that the mother and Mr F were seen to be engaged in sexual activities. Police records indicate that the mother, who was at home in bed, received a phone call from the father who stated that he was at the hospital with the child and told the mother “you are going to pay for everything you have done”. It is recorded that the father would not let the mother speak and was verbally abusive towards her, yelling over the phone “I am going kill you, I am going to rip your head off” and called her “a bitch, a fucking slut and a whore”. The mother reported to police that she felt fear for her own safety and the safety of her son. The father was subsequently charged for making this phone call to the mother.
Dr G is of the opinion that a delusional disorder is very difficult to treat and extracts of his evidence in this regard are set out in paragraph 34 of the earlier judgment. Under cross-examination the doctor remained firm in his view that while there may have been a change in the father’s behaviour, there was no evidence that the father had changed his belief that the child was at risk of abuse in the care of the mother.
I am of the view that although the father ultimately conceded through his counsel that the child was not at risk of harm in the care of the mother, it is likely that he does not genuinely hold this belief. The manner in which the case was conducted on his behalf including the application for an adjournment only a few days before final submissions on the basis that he still held grave concerns for the child’s safety and wished the investigation to be completed are completely at odds with submissions put on his behalf at the end of the proceedings. I am of the view that the entirety of the father’s conduct from at least the time of separation and throughout the proceedings is consistent with him continuing to hold a firm and fixed belief about the risks posed to the child by the mother.
For the reasons previously given, I am also satisfied that the father perpetrated family violence against the mother during the relationship and after separation. The father’s stalking behaviour through surveillance conducted at his behest continued at least until June 2014. Although that behaviour did lessen in intensity over time and the mother was afforded some protection by an interim ADVO until September 2013 and subsequently by a good behaviour bond, the father’s contact with the mother throughout 2014 and 2015 through the message interchange continues in a demanding and demeaning tone that demonstrates the father’s complete lack of respect for the mother.
Concerns were raised by the family consultant in November 2014 that if the then frequent level of contact between the father and the child were reduced, this “could exacerbate [the father’s] paranoia (if it does exist already)”. Dr G is firmly of the view that “the father does maintain a paranoid view in relation to the behaviour of the mother and her partner”. Dr G said that he did have concerns for the mother’s safety [in the future] and reiterated that this was because the father’s attitudes were not amenable to change. He said that if it was found that the father was implicated in the home invasion, this would be indicative of risk to others. He said “certainly the ongoing preoccupation and stalking was evidence of his preoccupation with her. Whether she was actually at risk or not would be dependent on whether he had acted on such reports. There was much to be concerned about.”
For the reasons given, I am satisfied that the father was implicated in the home invasion of the mother. This particular issue is significant to Dr G as it indicates that the father is acting upon his preoccupations. This finding when considered with the evidence of the family consultant and Dr G about the likely increase in the father’s paranoia if orders are made to limit his time with the child, give risk to a concern in my mind that the mother will be placed at an increased risk of violence at the hands of the father in the event that the orders for some limited supervised time with the father are made as proposed by the ICL.
The ICL indicated that she would not press the orders which require the mother to advise the father of certain matters and provide for her to give permission for the father to attend the school, in the event that compliance with such orders would expose the child to an unacceptable risk of exposure to family violence. The balance of the orders however, require the mother to facilitate the child spending time with the father at a contact centre for six years and thereafter to make arrangements for the child to spend time with the father at her discretion. The last mentioned proposed order also requires the mother to use her best endeavours to make such arrangements if the child expresses a wish to spend time with the father or communicate with him. By necessity, even these orders require some level of contact between the mother and the father and some opportunity for the father to have information about the mother which in my view does increase the risk to her posed by the father.
The suite of orders proposed by the mother in effect will allow her to move on with her life and for there to be no connection whatsoever between her and the father. If the mother is not protected to the greatest degree possible from the father’s stalking. There is in my view an unacceptable risk that the father will continue to engage in this form of family violence. Having regard to the broad interpretation of “exposure to family violence” and the central role this consideration plays in determining the best interests of the child, I regard this as a weighty factor in determining the parental application. This would provide the highest level of protection for the mother against the risk of violence posed by the father.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
The views of the child are unknown. The child’s views were not reported on in either of the family reports which were written when the child was four and five respectively and the child was not assessed by Dr G.
Nature of the child’s relationship with each parent and other significant persons
The current state of the child’s relationship with his father and paternal family is unknown. For the reasons given in my September 2015 judgment, prior to the variation in orders with respect to the father’s time with the child, the child shared a close relationship with his father. The child appeared to the family consultant to be at ease with his father, step mother and paternal grandmother. The family consultant concluded that the child was attached to each of his parents and the paternal grandmother but was yet to develop an attachment with his father’s new partner. The mother does not dispute that at that stage the child had a close relationship with his father.
There is also no dispute that the child was attached to his paternal grandmother and spent a great deal of time with his paternal grandparents prior to the variation in orders for the father’s time. The mother agreed under cross-examination that the child enjoyed spending time with the grandmother but felt that as the paternal family were so aligned and negative towards her and showed no respect towards her, she was not prepared to allow the child to spend time with the paternal grandmother. The mother appeared to be genuinely upset and disappointed that the paternal grandmother who in her words “knows I am a good mother” had been so negative about her. It is to be noted that the paternal grandmother’s evidence was completely aligned with the father’s in all regards. The mother also appeared to express some genuine sadness about the circumstance of the child’s relationship with his father but felt that it was all a result of the father’s behaviour.
Although the mother’s partner, Mr F was not assessed by the family consultant, there is evidence of his significant involvement in the child’s life for some years. Although the father took particular exception to images of the physical interaction between Mr F and the child in the surveillance videos, I am of the view that the surveillance does not disclose anything untoward and is consistent with a warm and affectionate interaction between Mr F and the child. For example, on one occasion, Mr F was observed inside the house singing a nursery rhyme to the child and gently playing with him. I was also impressed with Mr F as a witness generally and when describing his relationship with the child. He said that if the orders were made as proposed by the mother and the child expressed some curiosity about his father, he would hope to be positive with the child and promote the idea to the child that his father is “a good man”. Mr F spoke of pleasant activities that he engages in with the child such as fishing, beach trips to collect shells, playing soccer and building Lego with him.
Participating in decision making, spending time with or communicating with the child
Prior to the September 2015 orders, the child had been in an almost equal time care arrangement with each of his parents for a number of years. In that judgment I noted that although there had been some disputes about the extent to which each parent had taken unilateral decisions in relation to the child, there was no dispute that each of them had taken the opportunity to participate in decision making about the child and had been highly involved in spending time with him.
It is of some significance in my view that the father did not avail himself of the time with the child provided for under the interim orders from September 2015. Overall I gained the impression that the father took great umbrage at the requirement that his time with the child be supervised and found it insulting that he had to pay to see his child. However, he has not given any satisfactory explanation for his failure to take up that time to maintain at least some relationship with the child in that manner. Even after he unsuccessfully sought to vary the interim orders (in November 2015) the father did not take the opportunity to spend time with the child.
As the father in my view does not genuinely accept that the mother poses no risk of harm to the child or that he does pose a risk to this child, his paranoia may increase if orders are made for the supervised time. There is a real risk that he may again fail to take up the supervised time available to him. In the opinion of the family consultant, which I accept, this would have an even greater negative impact upon the child than having no time.
Obligations to maintain the child
As noted in the September 2015 judgment, the mother has taken on the entire responsibility to support the child financially since separation. From the commencement of 2015 this has included the payment of private school fees.
Likely effect of change in the child’s circumstances
The report writer could not definitively predict the effect upon the child of total separation from his father. He was however of the view that the child’s ability to adjust to the loss of his father in his life would depend in part on making a solid attachment with his step-father.
The mother’s proposal that the child spend no time or have no communication with the father in the future, will not amount to a change in the child’s circumstances for the last eleven months. There is mixed evidence about the impact upon the child of the father spending no time with him for the five months from September 2015. The family consultant had expected that the child would miss his father if the then current shared care arrangement were reduced to every third week, and felt that this separation would “greatly affect the continuity of their relationship”. Under cross-examination the mother said that after September 2015, the child only asked about his father once which she later amended to twice. The mother said that he did not ever ask about the father beyond those two conversations and did not ask to speak to the father on the phone. She conceded that the child could be sad about not seeing his father but said that he had never mentioned that or said he was upset.
Mr F said that the child does not cry or seem to be sad when he talks about his father though the child had said that he misses him. He said that after September 2015 the child spoke of his father on approximately five occasions but did not appear to be upset.
There is no expert assessment of the child’s reaction to the absence of his father from his life during that time. Although some weight must be attached to the reports of the mother and Mr F that the child did not appear to be sad and upset it is likely that the father’s absence from B’s life is a significant loss for the child.
The report writer remained of the view under cross-examination that the child’s memory of his father would remain and that he may need therapeutic intervention to support him in the event that there was no relationship with the father in the future (either because there were no orders for time or if the father does not take up the time that is ordered). The ICL’s proposal includes therapeutic support for the child in circumstances where the proposal is for orders for the child to spend limited supervised time with his father.
The orders of the ICL (which are adopted by the father) will greatly diminish the father’s role in the child’s life compared to his role prior to September 2015. For the reasons given, in my view any parenting arrangement that entails the child spending significant time with his father is damaging for the child and would expose him to an unacceptable risk of psychological abuse.
Although in my view there are clearly some risks to the child’s emotional development in having no relationship with his father at all in the future as the mother proposes, there is only limited benefit to the child in maintaining the limited relationship under the orders proposed by the ICL and this proposal also brings some risks with it.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There may be some practical difficulty for the mother in complying with orders that she present the child to a supervised centre every few months for a period of six years in the future. This requirement could prevent her from taking up other opportunities in life for a lengthy period of time. However, she does not have any current intentions to move from the area in which she is living and this is not a weighty consideration.
Given the father’s evidence about the generosity of his mother and friends and funds available to him for the various purposes including surveillance and rent I am not satisfied that the expense associated with supervised time previously would be an impediment to that time occurring. I do not accept that the cost of supervised time was an impediment to him taking up supervised time after the interim orders were varied and do not expect it to be so in the future.
Capacity of each parent and any other person to provide for the child’s needs
I adopt the entirety of my September 2015 judgment on this issue. Although the father met the child’s day to day physical and material needs when he previously cared for him under a shared care arrangement, he has serious shortcomings in his capacity to provide for the child’s emotional needs. For the reasons given in the previous judgment, I find that the father lacks capacity for empathy for the child’s experience and capacity to respond appropriately to the child’s emotional and psychological needs. His behaviour is also characterised by putting his own needs to prove his concerns about the mother’s lack of care above the needs of his child.
The observations of the family consultant and the very complimentary school reports concerning the child’s presentation at school reflect well upon the mother’s capacity to care for the child and provide a child focused environment in her home.
Maturity, sex, lifestyle and background including culture and traditions of the child and parents
The child is a seven year old little boy of Country I heritage on his mother’s side and Country H heritage on his father’s side. He will continue to receive the benefit of his mother’s culture under the proposed orders which includes attending Country I school and speaking the Country I language.
It is a sad and significant loss for the child that he will be denied the benefit of his father’s culture under all of the proposed orders. Although the orders proposed by the mother involve no time with the father and thus no exposure to his Country H heritage, it is difficult to see how he would receive the benefit of his Country H culture under the very limited orders for supervised time proposed by the ICL and agreed to by the father.
The negative features associated with the child’s lifestyle following separation and prior to the September 2015 orders when the child was exposed to constant changeovers between adults in conflict will be eliminated by the orders proposed by the mother. For the reasons given, when previously considering the matters relating to family violence, I am of the view that there are some risks associated with the ICL’s proposal that will by necessity involve some interaction between the mother and the father.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
There is no doubt that each of the parents love the child and believe that the orders proposed by them are in the child’s best interest.
However, for the reasons discussed in the September 2015 judgment and in particular attaching weight to the opinion of Dr G, the father has no empathy for the child’s experience and has focused on himself rather than the child, including in the conduct of these proceedings. The actions he has taken in subjecting the child to unnecessary and intrusive photographing, hospital presentations and investigations, discussing the negative aspects about the child’s mother and Mr F, documenting and gathering evidence including note taking in the child’s presence are not the actions of a responsible or child-focussed parent.
The mother’s conduct has at all times been that of a responsible parent.
Family violence relating to the child or a member of the child’s family
This matter is dealt with at length when considering other matters. For the reasons given, I am satisfied that the father perpetrated family violence towards the mother during the relationship and for some time following separation. This behaviour diminished when an interim ADVO was in place between late February 2013 and September 2013. It is most unfortunate that due to the manner in which police chose to conduct the ADVO proceedings, the Magistrate considering the final ADVO was not aware of the extent of the father’s conduct and a final ADVO was not made for the mother’s protection.
Although the father was placed on a good behaviour bond for two years in September 2013, he continued to stalk the mother through surveillance carried out by “Company S” at his behest and even on his own case by another private investigation agency after that time, the details of which he refused to provide.
Having regard to the period of time over which the father engaged in conduct that amounted to family violence against the mother, the nature of the stalking which was highly intrusive and his involvement in the home invasion, I am of the view that there is an real risk that he will continue to engage in such conduct to which the child will be exposed should he and the mother have any form of relationship in the future. This risk is best mitigated by the mother’s proposed orders which provide for the father to have no involvement in the child’s life in the future.
The proposed orders of the ICL do involve the safeguard of supervision occurring in a contact centre and restraints on the father’s contact together with the power of arrest. This does reduce this risk of harm to some extent but in my view, an unacceptable risk that the father will engage in family violence still remains. This finding and the negative impact on the child of exposure to that violence are highly relevant factors in this parenting dispute.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
The child has been subject to intense conflict between his parents for four years of his life. The negative impact of that conflict and his father’s behaviour was such that the previous parenting arrangement was dramatically varied in the course of the proceedings. Undoubtedly, it will be to the child’s benefit for these proceedings to cease. For this reason I am of the view that it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child.
There is virtually no risk that the mother’s proposed order could lead to the institution of further proceedings. There is some risk, albeit minor that there may be further proceedings under the ICL’s proposal as the orders require the mother to use her best endeavours to facilitate the child’s time with the father should the child request it and allegation of contravention of this order may arise.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[21] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[21] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this matter, the mother seeks sole parental responsibility for the child and the ICL agrees that this is in the best interests of the child. It appears that the father holds a similar view.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
Given my findings that the father has engaged in family violence and abuse of the child the presumption in 61DA does not apply. Further, the parents show no capacity for communication, co-operation or joint decision making. The father has demonstrated his complete lack of respect for the mother in his behaviour towards her and communications with her and the mother has well founded fears for not wishing to have any form of relationship with the father in the future. In these circumstances I am satisfied that the only order that would meet the child’s best interests is that the mother hold sole parental responsibility for the child.
Conclusion
Ultimately, the only matter to be determined is whether the child should have a very limited relationship with his father pursuant to the orders proposed by the ICL and adopted by the father or whether it is in his best interests to share no relationship with his father and for his father to play no role in the child’s life.
Clearly the mother’s proposal is the most drastic proposal a parent can make in parenting proceedings and such orders are never lightly made by a court particularly having regard to the Objects and Principles set out in the Act. However, in this matter the father poses such a risk to the emotional and psychological well-being of the child and lacks such capacity as a parent that it is difficult to conclude that the child will receive a benefit from sharing a relationship with him in the future. Notwithstanding the significant role that the father played in the child’s life in the past and that there are real losses for the child in the orders proposed by the mother, appropriate weight must be given to the need to protect the child from the physical and psychological harm posed by the father. Giving this matter significant weight and applying the other considerations referred to in this judgment, I am of the view that the orders proposed by the mother are in the best interest of the child and for this reason I make the orders set out at the forefront of this judgment.
I certify that the preceding three hundred and twenty-nine (329) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 August 2016.
Legal Associate:
Date: 10 August 2016.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Evidence
Legal Concepts
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Expert Evidence
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Injunction
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Jurisdiction
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Procedural Fairness
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