Cassidy & Pallante
[2022] FedCFamC2F 678
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cassidy & Pallante [2022] FedCFamC2F 678
File number: MLC 12983 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 March 2022 Catchwords: FAMILY LAW - Undefended application - not a default judgment - parenting matter listed for interim hearing - final orders made - hair follicle test orders not complied with - significant violence during relationship. Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.13
Cases cited: A & Z [2006] FamCA 179; (2006) FLC 93-257
Hiron & Tourle [2021] FCCA 1270
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 22 March 2022 Counsel for the Applicant: Mr O. Cain Solicitor for the Applicant: KJS Legal Solicitor for the Independent Children's Lawyer: MMH Lawyers ORDERS
MLC 12983 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CASSIDY
Applicant
AND: MR PALLANTE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 MARCH 2022
THE COURT ORDERS THAT:
1.The mother, MS CASSIDY, ('the Mother') have sole parental responsibility for the child, X born in 2017, ('the child').
2.The child live with the Mother.
3.The father, Mr PALLANTE, ('the Father') spend no time with the child.
4.Discharge the Independent Children's Lawyer 29 days after this decision.
5.All extant applications are otherwise dismissed.
6.The Mother's application for costs be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cassidy & Pallante has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered orally immediately after closing submissions. This matter was listed for an interim defended hearing this day and proceeded electronically. The respondent Father did not appear when the matter was called shortly after 9.30am, and did not appear when the matter was called again at about 10.50am this morning. Further to that, it is important that I note that the Independent Children's Lawyer (‘ICL’) telephoned the Father, or attempted to telephone the Father this morning to further alert him to these proceedings at 9.38am and his phone call to the Father's mobile phone was not answered. Hence, these proceedings this day have been heard in the absence of the Father.
The questions I must determine is whether the matter should proceed as an undefended hearing, and whether I should make orders for sole parental responsibility to the Mother and orders that the Father spend no time with the child, now 4 years old.
The Mother is 34 years of age, as is the Father. The parties commenced to cohabit in a de facto relationship in about 2015 and they separated in violent circumstances on 9 January 2019. Following or in the course of that separation, the Father was taken into custody and remained in custody until, as best as I can tell, he was released in February of 2021.
The Mother was represented by Mr Cain of counsel, instructed by solicitors. The ICL appeared himself.
PROCEDURAL HISTORY
The procedural history includes the below:
·An Application for Final Orders was made by the Mother on 26 November 2020.
·The matter came in a Duty List on 9 March 2021.
·Consent Orders were made at a Mention before me on 16 June 2021 settling property disputes between the parties.
·An Interim Defended Hearing was held on 7 July 2021 where I ordered that the child be represented by an ICL and for a Family Report to be prepared.
·The Father’s Lawyers withdrew on 5 October 2021 and the Father then ran the matter as a litigant in person.
·An Interim Defended Hearing was held on 13 October 2021 where I ordered hair follicle drug testing for both parties and adjourned the hearing until 22 March 2022. The Father did not undergo this testing.
·On 5 November 2021, the matter was mentioned before Chief Judge Alstergren.
·An Interim Defended Hearing was before me on 22 March 2022 where I made these Final Orders.
Throughout these proceedings, the Father has had a pattern of showing some interest and then dropping off. The Father was not present for the Interim Defended Hearing today.
THESE PROCEEDINGS
The proceedings concern the living arrangements for the child. The child is 4 years old and will be 5 years old this year. The child has not seen his father since his father was imprisoned for criminal charges relating to violence against his mother in the presence of the child. I will refer further to those criminal charges and convictions later.
The first decision I must make prior to dealing with the best interests of the child is whether I should proceed to make final orders on an undefended basis.
The Mother's counsel, Mr Cain, seeks that I proceed to make final orders on an undefended basis. It is significant that when the matter was last before me on 13 October 2021, the Mother was also represented by Mr Cain and he then sought that I make final orders on an undefended basis in the circumstances of the Father then not complying with procedural orders. At that time I declined to do so and made other and different orders to those sought by the Mother. Those Orders were:
THE COURT ORDERS THAT:
BY CONSENT:
1. The matter be adjourned for Interim Defended Hearing on 22 March 2022 at 9.30am.
2.Paragraph 3 of the Orders made on 7 July 2021 be amended in so far as that the Father will attend upon [Dr K] on 16 November 2021.
3. The Orders made on 7 July 2021 otherwise remain in full force and effect.
4. That the Mother within 30 days of this Order, and the Father between 14 January 2022 and 28 January 2022, make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes (‘the testing facility’). Collection is to be conducted by a qualified and certified collector. Chain of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a) The father and the mother are required to maintain his/her head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b) Within seventy-two (72) hours of the date of these orders, the father and the mother are required to make an appointment with the testing facility by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug testing purposes;
(c) Each party or their legal representatives is at liberty to provide the testing facility with a copy of these orders;
(d) The father and the mother are to attend at a testing facility and submit to the supervised collection of a hair sample from the father and the mother at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the father and the mother or his/her legal representatives;
(e) The father and the mother are to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, their legal representatives and the Independent Children’s Lawyer (if applicable) upon receipt of such test results;
(f) The hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.
(g) The testing facility is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard 6 ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
(h) The mother and father each will bear the cost of their own test.
(i) The testing facility be requested to provide a test as to the previous 3 months or such shorter period as is possible.
(j)Each party provide the testing facility with a copy of the order.
BY THE COURT:
5. The costs of the mother of this day be fixed in the sum of $3,300 for counsel and $825 for solicitor (both inc. GST) and those costs be reserved.
Within that first decision I also have to decide the question of whether I should proceed to hear the matter in the absence of the Father today. I am satisfied that the Father is well aware of the proceedings occurring on this day. I note that the Father appeared on 13 October 2021, and also appeared subsequent to that before the Chief Judge of this court, who dealt with the matter on 5 November 2021.
Since I dealt with the matter on 13 October 2021 there has been a final intervention order made on an indefinite basis as follows:
THIS IS A FINAL ORDER made on 05/11/2021
THIS ORDER EXTENDS THE ORDER MADE BY THE [PLACE 1] MAGISTRATES’ COURT … ON 23/8/2021
The Court made the following Order against you
[The Father]
If you do not obey all these conditions below it is a crime and you may be arrested and charged.
The Court orders that the [ Father] must not:
1. Commit family violence against the protected person(s).
Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person.
Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2. Intentionally damage any property of the protected person(s) or threaten to do so.
3. Attempt to locate, follow the protected person(s) or keep him/her/them under surveillance
4. Publish on the internet, by email or other electronic communication any material about the protected person(s).
5. Contact or communicate with a protected person by any means.
6. Approach or remain within 5 metres of a protected person.
7. Go to or remain within 200 metres of any other place where a protected person lives, works or attends school/childcare.
8. Get another person to do anything the respondent must not do under this order.
9. The respondent may:
(a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(c) communicate with a protected person through a lawyer or mediator.
BUT ONLY IF the respondent does not commit family violence while doing so.
By the Court
I note that the usual "carve out" made in the Intervention Order of 5 November 2021 is less than the usual or frequent one. That is, that only the provision of those frequently made is 9(a) and 9(c). But the other frequent provision of time with the child as agreed in writing, which is usually at paragraph 9(b), was not included.
Turning to why I am satisfied that the hearing should proceed this day at all, I refer to the following matters. Exhibit C2 is the email where my associate has emailed the Father and the other parties the orders that were made on 13 October 2021. C1 is the email sending the Microsoft Teams link for this hearing to the Father. In addition, I have been told, and I accept, that there was a phone call made this morning to the Father, and there was no response.
Further to that, on 14 February at 1.07pm, the ICL emailed the Father about drug testing, which he had been ordered to undertake, but had not undertaken. That email would have reminded and brought to the Father's attention that this hearing was looming. On 21 March 2022 at 9:03am the ICL emailed the Father, again drawing his attention to the court-ordered hair follicle test, where he had not provided the results. Again, that email should have brought to the Father's attention the prospect of this hearing.
On 14 March the Mother's solicitor emailed the Father and again brought to his attention his apparent failure to comply with the court-ordered hair follicle test and informed him that it was intended to proceed undefended. On 21 March at 11.04am the Mother's solicitors again copied the Father into an email whereby the court was advised:
We wish to put the court on notice that it is our client's intention, as per notation (d) of the orders dated 13 October 2021 to seek leave on an undefended basis at the hearing tomorrow. The ICL and [the Father] have been advised of our client's intentions in this regard.
It is in those circumstances that there was no communication from the Father. I am reinforced by the circumstance that there is no question of the Father's email address in the December chain of emails, which are contained in M2.
I will refer shortly to the psychological examination and assessment of the parties by Dr K. It had been arranged for the Father to attend an examination on the same day as the Mother, that being 14 September 2021. By previous orders, each of the parties were to attend and pay for their own report. The Court was to have the benefit of the same psychologist assessing both of the parties. Of particular importance to the proceedings highlighted from the very start by the Mother's notice of risk was the allegation that, and I quote:
The respondent has a serious drug addiction and becomes extremely violent, aggressive and abuse when he is under the influence of drugs. His behaviour is irrational and frightening and he is liable to act out against the child as a form of punishment to the applicant.
Hence, the Father was on notice of the importance of the drug issue from when the Mother commenced proceedings on 26 November 2020.
The proceedings before me on 13 October 2021 were partially wasted. What had been contemplated for the benefit of considering the Father's Response (he was seeking supervised time with the child) filed on 15 June 2021, was that the court would have the benefit of a psychological assessment of the Mother and of the Father. It is important to note that the Father's allegation was that the Mother had used methylamphetamine, as he had, and to a significantly greater degree than what she asserted in her material. However, it was common ground between the parents that the Mother ceased using methylamphetamines whilst she was pregnant with the child.
The Father did not attend for the assessment on 14 September 2021 and he had not made the necessary financial arrangements with Dr K for that to proceed. He told me in October that it was because he was short of money. A further appointment was made for the Father to attend on 16 November and he did. Dr K assessed the Father on 16 November 2021 and, in a report dated 7 December 2021, but not released to the parties until 14 January 2022 by way of the reports being filed by the ICL, the Father became aware of the psychological assessment of him by Dr K.
Hence, the Father's history of participation in the proceedings was mixed. He had filed a response and he had attended with solicitor or counsel on two occasions, and he had attended in person on 13 October 2021 after his solicitors filed a notice of ceasing to act. Further, he had attended upon Dr K.
In preparation for the anticipated interview and assessment of the Father by Dr K, on 11 November 2021 the mother's solicitors inquired in an email to the ICL, cc'd to the Father, including as follows:
We refer to [the Father’s] appointment with [Dr K] on 16 November 2021. As [the Father] is self-represented, he may be unfamiliar with the obligation to provide [Dr K] with all relevant material to assist him with the interview. Could you please advise if the ICL will provide [Dr K] with the relevant material to assist [the Father].
In a reply on the same day, and cc'd to the Father, the solicitor in the office of the ICL stated as follows:
I confirm that our office will provide [Dr K] with the relevant materials to assist [the Father].
The Father then attended the interview on 16 November 2021 and, I infer, paid the appropriate and substantial, fees to ensure that expert examination and assessment was made. I infer that the Father, being a not unintelligent man, ascertained from the interview process that the report of Dr K was not going to go very well in supporting his case. However, he did not receive that report, I am told and I accept, until 14 January 2022. Before the report was released and on the day before the report was actually completed, being 6 December 2021 at 8:40pm, the Father sent an email to the Mother's solicitor and the ICL as follows:
Hi. After much thought and money, I have decided it will be best for [the child] not to have time with me. I'm willing to allow [the Mother] full custody, but only if she does not change his last name. Please call me to discuss further.
That email was sent from the same email address as the court had sent the link for this hearing to him and the same email address to which the orders of 13 October 2021 had been sent. The solicitors for the Mother, notwithstanding that it was 10:00pm, promptly responded to the Father and stated as follows:
Good evening, [Father], thank you for your email. I will give you a call tomorrow afternoon to discuss further. We will prepare a minute of consent to finalise the matter and this can then be forwarded to the ICL for signing and filing with the court.
Six days later, on 12 December 2021, from the same email address referred to above, the Father replied, and I quote:
I'm going to continue to fight for [the child]. Sorry for the inconvenience.
The Mother's solicitors replied on that day, notwithstanding that it was a Sunday:
[Father], it is disappointing that you have changed your mind.
We confirm that our client will continue to vigorously prosecute the matter and take any and all steps necessary to ensure [the child’s] best interests are served into the future.
The following day, Monday, 13 December 2021 at 3:34am, the Father replied in mixed fonts as follows:
Well, I'm disappointed and concerned that anybody would even think that taking a child away from his father is even acceptable. No matter the outcome, I will not stop until I get access to my son. I also would like to organise a meeting with you to discuss some evidence I have associated with your client. I hope to hear from you soon.
As I understand it, the next communication that the Father received, or that is in evidence in the proceedings at least, is when the 14 January 2022 report of Dr K was sent to the Father. No communication has been received from the Father since 14 January 2022 (when the reports of the Mother and of the Father were sent with the filed affidavit of Dr K). In all of those circumstances, I find that it is appropriate and in the interests of justice to proceed with the hearing this day.
Hence, I am satisfied that not only has the Father had notice of this hearing, he has had the opportunity to participate in the hearing, if he wishes.
Undefended final orders when listed as an interim hearing?
The next decision I must make is whether the matter should be dealt with on a final basis, as is pressed by Mr Cain. I note that the matter is listed on an interim defended basis and that I had in October 2021 fixed the matter for final hearing in September 2022. The fixing of the matter in September assumed that the Father would comply with court orders, in particular in regard to hair follicle testing as to illicit substances, including methylamphetamine, and would continue to participate in the proceedings.
The hearing sought is what is known as an “undefended” hearing or application, I refer to my previous decision in the matter of Hiron & Tourle [2021] FCCA 1270 at [14] below:
[14] An undefended hearing is a difficult matter. It means that there is no assistance obtained from the other side. All important aspects of the matter must be proved on admissible evidence. Ordinarily in an undefended hearing it is expected and assumed that the other side that is not participating in the hearing will have had the opportunity to look at such evidence as has been provided to them. Then the court can more readily proceed on the basis of the non appearing party has been provided with all of the evidence and draw the inference that (the absent) party has chosen not to participate in the proceedings or to make any application.
The Full Court of the Family Court in A & Z [2006] FamCA 179; (2006) FLC 93-257 set out why Family Law Act 1975 (Cth) applications cannot lead to a ‘judgment by default’:
[66] The term undefended proceedings was also referred to in Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
...Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief...
The inference I draw from the timing of the Father ceasing to participate further in the proceedings, he being a not unintelligent man, is that he was disappointed in the observations made by Dr K and concluded that those observations did not support his case for time with his son. I proceed on the basis that the Father has a genuine love and affection for the child and would very much like to be a part of his life. Hence, this is a very sad and difficult case. It is a serious matter to make orders that may well mean that the child will proceed through life, or at least for many years, without knowing his father or having a relationship with him.
The decision I have made is that the matter should proceed today as a final hearing, notwithstanding it was listed for an interim defended hearing. The Father was on notice in the proceedings on 13 October 2021 of such an event being possible. On 13 October 2021 the Mother's counsel, Mr Cain, pressed with some robust and articulate submissions why the matter should proceed there and then by way of final hearing on an undefended basis.
That was opposed by the Father and I accepted his submissions that the matter should not so proceed and that he should have a further opportunity to put the evidence of the psychological assessment of Dr K before me, together with evidence relating to his drug abuse, including a hair follicle test.
On 13 October 2021 I ordered that the Mother undertake a hair follicle test within the next 30 days. There was significant evidence that both parties had used methylamphetamines to a very significant and unhealthy degree during the relationship. It was the Mother's case that following the end of the relationship with the Father she had ceased to use illicit drugs. The Father was circumspect about that prospect. I did not order that both parties undertake a hair follicle test within the same timeframe.
I had a discussion with the Father on 13 October 2021 and told him that I did not wish to set him up to fail. It was pressed upon me on 13 October 2021 that the Father should undertake a hair follicle test within the immediate future. The purpose of that was to demonstrate that his statements about abstinence from illicit substances would be false. In a moment of great frankness and candour, the Father told me that he had recently used methylamphetamines. That concession was in the context of a discussion about when it would be appropriate for him to undertake such a test from his point of view. It was for that reason that the Mother was ordered to undertake the test within the next 30 days, but the Father was ordered to undertake a hair follicle test between 14 January 2022 and 28 January2022. That would give me, on the assumption that the hair follicle test would be three months, roughly the next three months’ history of drug use from that day until roughly the middle or end of January. The further reason was that, by postponing the test for that long, not only would the Father be able to provide a clean sample, but he would be able to afford the otherwise expensive test.
The Father did not undertake the test, nor did he provide any explanation for failing to do so, despite being twice reminded of that obligation by the ICL. The ICL was not obligated to remind him of such obligations, but nonetheless did so.
Conclusion as to final or interim basis
In all of those circumstances, I have determined that it is appropriate that the matter be dealt with on a final undefended basis today, notwithstanding the matter had been listed for an interim hearing. I will vacate the existing listing of a final hearing in September.
THE MOTHER’S CASE
The Mother's case was that the Father's drug abuse and personality are such that she had been forced to endure very significant violence at the hands of the Father throughout the relationship. She also alleged that she had been forced to endure coercive and controlling behaviour. The following paragraphs are from the affidavit that the Mother commenced the proceedings with, which was filed on 26 November 2020 at a time when the Father remained in prison for the offences against her:
8. During the entire relationship, he continued to go through all my belongings whenever he visited or stayed over regardless of my re-assurances, searching for what he perceived as evidence of my being "unfaithful to him". He displayed constant paranoia and delusional behaviour with him texting and verbally abusing me as he simply refused to believe I was not being unfaithful or behaving inappropriately.
9. Throughout the relationship [the Father] heavily used drugs on a daily basis and was also dealing drugs. His paranoia and erratic and abusive behaviour was exacerbated by the drug use but he was also abusive and aggressive during the short periods where he was not using as much or not using although this was very infrequent. He coerced and encouraged me into using drugs very early in our relationship and as I had been greatly isolated from my family and friends and I felt I had no other real social interactions unless it was with his friends when they would come to visit. [the Father] controlled my drug use and he knew that he had the power to stop or start this and often used it as yet another form of abuse. He would deliberately exclude me and cut me off when it suited him or as a punishment. I am horrified at my behaviour during this time and since leaving [the Father] have not used drugs at all. I know it was yet another part of the abusive relationship I was in.
…
15.The verbal abuse I endured escalated within one month of co-habitation with this developing into physical abuse. He would start arguments and keep on with common themes which would usually be about cheating, my whereabouts or money. This verbal abusive tirade would often go on for 24 hours or more and end up with him forcing me up against a wall and him punching me in my legs or arms. He knew these were places where the bruises would not be noticed. This scenario was repeated numerous times over the course of the relationship, perhaps as many as 12 or more times. I cannot recall the exact number of times as I have blocked it out of my mind as best I can.
…
25. His anger was so great towards me that during one argument he shoved me so hard fell and I hit the back of my head on the toilet pan. Even after hitting my head he continued to scream verbal abuse at me insisting I was sleeping around. His reasoning for his behaviour towards me was, "Who else am I going to take my anger out on?".
…
27.In or about 2017 I found out I was pregnant which was unplanned and I was immediately accused of it not being his and he demanded a DNA test for paternity. I was devastated and emotionally torn at his reaction and was extremely concerned for the baby due to the environment it would be born into. During my pregnancy the physical abuse I had previously encountered ceased but the psychological and verbal abuse did not.
…
31. In 2017, my son … was born 6 weeks prematurely as I had developed HELP syndrome due to excessive stress associated with my relationship with [the Father] and the lack of rest and good nutrition. The abusive and toxic relationship had taken its toll on my body and my unborn baby and he had stopped growing at 31 weeks' gestation.
…
35.Despite having just had a caesarean, I was forced to arrange the move and physically pack up the rental property the day after my release from hospital. Most of it was left for me to do by myself, [the Father] just simply expected me to do it. My stitches broke and I needed to attend Emergency to have this repaired. As a result I had further complications of infection of the wound and ongoing pain and discomfort. I was not supposed to do any physical lifting for the first 6-8 weeks after leaving hospital but [the Father] showed no emotion towards my injuries, acting like it was an inconvenience to him and his plans, with complete disdain of the pain I was in. He was now in control and felt he could manipulate me in his home environment.
…
39. Due to the volatile and repetitive nature of the abuse I was armed with the knowledge that things would escalate to the point he would hit me when we argued so it got to a point I ran away and tried to lock myself in the bathroom, crouching down in one corner to avoid the punching. Unfortunately, this did not work as he would burst the door open and continue to rain punches down on my arms.
…
42. [the Father] was still in and out of work at that stage and he was angry, frustrated and very emotionally, verbally and physically abusive towards me which was fuelled by his excessive drug use at this time. He used drugs in our home and while around [the child].
46The constant checking of my phone records, would occur nightly whilst I was asleep. He would drag me out of bed and abuse me and go through phone numbers and look through Facebook to see whom I spoken with and demand answers if there was anything he did not like. On one occasion, [the Father] became so annoyed that he couldn’t find any new numbers on my phone he then accused me of covering my tracks. He then threw the phone in an absolute rage at my face which resulted in a severe black eye which was painful, swollen and dis-coloured for 10 days. Exhibited hereto and marked "…1" are true copies of photos of my black eye. I did not report this or any incident to police as I truly believed that the outcome for me would be far worse than it was to put up with the abuse.
…
54.I was at breaking point and terrified of being in the house (it was not a home to me) and so I planned to leave him taking [the child] with me. I packed my documents and dropped them off to friends on Saturday 7th January 2019 and then went and stayed with a friend. [the Father] kept calling and texting and on Facebook, verbally abusing me via messages. I turned off the phone. I was absolutely petrified of him finding me and what he might do it he did.
55. [the Father] sent me a video of him threatening to burn down the house if I did not return to him. This was extremely concerning and so I returned to the house two days later on the Monday and was immediately physically abused. I was dragged by my hair, punched and kicked in the back. My head was slammed into the floor and was held captive as he removed the keys from the front door. He proceeded to systematically go through all my personal possessions, smashing and destroying anything of value. Throwing all my clothing onto the floor. He smashed holes in walls of the bedroom in his rage and continuously threatened to kill me. I had attempted to escape to get help and failed as he trapped me in the garage, as he pulled the garage door cord which I couldn't reach.
56. The physical altercation continued in the garage and I was pushed to the floor, [the Father] threatened to duct tape my mouth and cable tie my hands to keep me from leaving and to quiet down my screams and crying as he was afraid the neighbour's might hear me.
57. He let me back in the house after some time even though the abuse continued I resorted to wrapping a doona around my son and myself and hid on the floor of my son's bedroom to try and keep him safe and so [the Father] would not carry out his threat to take him away from me. Eventually when I heard [the Father] had fallen asleep I crept out and I fled in my car with [the child] and went straight to the police station as I was terrified for my Son and my life.
…
In regard to the Mother's allegations at paragraph 31, I cannot find on the balance of probabilities that the circumstance of the child being born prematurely was due to excessive stress associated with the relationship. I do not exclude that and I accept that the Mother believes that.
In the Father's affidavit that he filed, where by and large he denied the allegations against him, save for the criminal charges that arose out of the events of January 2019, the Father accepted that the child was born six weeks prematurely and that the parties moved home on the day following the Mother's return from hospital. Otherwise, the Father denies the allegations against him.
I place very significant weight on the events that ended the relationship between the Mother and the Father. It is convenient to refer to and recite the sentencing details of the County Court of Victoria. The Father was sentenced on 25 September 2020 and the below paragraphs are from those (anonymised) reasons for sentence of the learned sentencing Judge (the Father would have already heard them at sentencing) put in evidence before me this day:
4 Your offending can be briefly summarised. [Ms B] [1], your victim, was in a relationship with you for approximately three years leading up to the offending. You have one child together, [child 2] [2], now aged three. At the time of your offending, you lived with [Ms B] at an address in [town 1].
5 On 2 January 2019, you and [Ms B] were travelling home from spending a few days on holidays, together with your young child, [child 2]. You pulled over at a fast food restaurant in [town 2] to get some food. Upon [Ms B] getting the food and returning to the vehicle, you became verbally abusive towards her for getting the wrong food. You threw the chips that she was holding on the floor and grabbed her sunglasses from her face. You then began to punch [Ms B] on her right leg. She bent over her legs to try to protect herself while begging for you to stop. As a result of this assault by you, [Ms B] sustained bruising to her legs. Your conduct in this regard forms the basis of Charge 1 on the Indictment, recklessly causing injury.
6 Two days later on 4 January 2019, you asked [Ms B] to show you her bank statements because you were apparently unhappy with her using money to play online pokies. You told [Ms B] that she was an unfit mother, threatened to take [child 2] off her, and threatened to report her to DHS and Centrelink for fraud. At about 1:00am on the following morning, 5 January 2019, [Ms B] was lying in bed trying to sleep. You entered the room and crawled onto the bed, grabbed [Ms B] and held her down, saying, “It’s better if you’re not here tomorrow when I go through your statements or I'll kill you. The reason I didn’t go through them tonight is that I would really hurt you.” You then let go of [Ms B] and went to sleep in the bed. Your conduct in this regard forms the basis of Charge 3 on the Indictment, assault.
7 Later that morning, [Ms B] collected some of her belongings, told you that she was going to have coffee with a friend, and left the house with [child 2]. As the day wore on, [Ms B] was aware that she was receiving a large number of calls from you, together with messages of an abusive nature demanding that she return home, referring to her as a “mutt” throughout these messages. [Ms B] stayed the night with a friend and organised a flight to [city 1] the following day. The next day, Sunday, 6 January 2019, [Ms B] turned her phone on to see a number of missed calls from you, along with further harassing messages. These harassing phone calls and messages by you, which commenced on 4 January 2019 and continued through until Monday, 7 January 2019, when you again spoke to [Ms B] by phone and were abusive, forms the basis of Charge 2 on the Indictment, use carriage service to harass.
8 Along with various missed calls and harassing messages from you, after turning her phone on on Sunday, 6 January 2019, [Ms B] also had missed calls from the [suburb 1] Police Station in relation to her and [child 2] being reported as missing persons. [Ms B] contacted [suburb 1] Police and explained the situation and advised them that she would be flying out to [city 1] later that day. After travelling to [city 1], [Ms B] turned her phone back on and again saw a large number of calls and messages from you. You had sent a video of yourself holding a lit blow torch over some documentation, saying in a message, “If you don’t call me, I'm going to burn the house down, don’t push me fucking stupid slut.” Your conduct in this regard forms the basis of Charge 5 on the Indictment, extortion with a threat to destroy property.
9 On the following day, Monday, 7 January 2019, when [Ms B] called you, you advised that you had been arrested by the [suburb 1] Police for threatening suicide. You were again abusive towards [Ms B] over the phone and continued to threaten self-harm, causing her apprehension. Later that day when you again spoke with [Ms B], you begged her to return home to [city 2]. As a result, [Ms B] organised a flight from [city 1] later that day and flew back to [city 2]. Upon arriving back at the property, [Ms B] noticed you outside the house waiting. She could see that the garage door was open and her documentation had been thrown everywhere. On entering the house, she observed damage to the internal walls and to her belongings, including a hairdryer and hair straightener. The two of you began arguing. You pulled out your phone and began recording the conversation, saying that you were going to make her life hell. This argument continued for a short time. [Ms B] then fed [child 2] and placed him into bed, with you standing in the doorway. [Ms B] pushed past you, at which point you grabbed her and pulled her to the floor. You then struck [Ms B] repeatedly to the back, causing pain. The argument continued in the lounge room, where you told [Ms B] that you were going to kill her. Your conduct in this regard forms the basis of Charge 7 on the Indictment, make threat to kill.
10 [Ms B] went to check on [child 2] and upon returning to the kitchen you were holding her mobile phone. You threw it onto the tiles causing it to break, saying, “Now try and call someone.” Your conduct in damaging [Ms B] phone, together with the earlier damage to the internal walls and belongings of [Ms B] including her hairdryer and hair straightener, forms the basis of Charge 4 on the Indictment, intentionally destroying property.
11 You then closed the front door and took the key out. [Ms B] then slept on the floor in [child 2]’s room while you continued to enter that room and berate her. Sometime later, [Ms B] could not hear you anymore and went to the garage and activated the roller door to try and leave the house. Upon hearing this, you went to the garage and pushed the button to prevent the roller door opening. You also disconnected the power to the door, making it inoperable. You then grabbed a yellow coloured blow torch which was lit and walked towards [Ms B]. In an attempt to protect herself, she grabbed a drill. You then dropped the blow torch and pushed [Ms B] onto the couch inside the garage. [Ms B] managed to escape and returned to [child 2]’s bedroom. The argument continued as you went to the room a couple of times, on one occasion grabbing [Ms B]’s head and hitting it on the floor multiple times, causing her an instant headache. Your conduct in this regard, together with earlier striking [Ms B] repeatedly to the back, forms the basis of Charge 6 on the Indictment, common assault.
12 [Ms B] took [child 2] from the bed and laid him on her chest in an attempt to protect herself from further assaults, and then fell asleep on the floor with [child 2], at which point you left the room. Your conduct in preventing [Ms B] from leaving the property via the garage door and then preventing her from subsequently leaving the property in the manner I have described, forms the basis of Charge 8 on the Indictment, false imprisonment.
13 The following day, Tuesday, 8 January 2019, [Ms B] fled the house with [child 2] and went to the [suburb 1] Police Station. Police subsequently attended at the property and arrested you. You were interviewed, denying the offending, and then remanded in custody.
14 On 10 January 2019, police obtained an Interim Intervention Order against you, on behalf of [Ms B]. This order was made at the [suburb 2] Magistrates’ Court, and included conditions that you not approach or remain within five metres of [Ms B], that you not go to or remain within 200 metres of the property where you had both been residing, or any other place that [Ms B] lives, works or attends childcare, and that you not get any other person to do anything that you must not do under the order.
…
16 Between 19 January 2019 and 9 February 2019, you made contact from prison with friends and family, requesting that they contact [Ms B] and prevent her from attending Court in relation to the Intervention Order hearing. By way of example, on 19 January 2019, you telephoned your sister… urging her to contact [Ms B] and convince her to revoke the Interim Intervention Order. You told you sister where [Ms B]’s mother lived and worked, and suggested that someone go and find out how your family is going, and requested that a message be passed on to [Ms B] that she “shouldn’t do it on 21 February”, referring to the Intervention Order hearing, as you would not be able to see your child for two years. Later that day, you contacted a friend, [Mr C], also asking him to contact [Ms B] to revoke the order and to make sure she did not go to the Magistrates’ Court on 21 February 2019. In the days following 20 January 2019, you made similar requests of both friends and your family. Your conduct in this regard forms the basis of Charge 9 on the Indictment, attempting to pervert the course of justice.
17 Between 17 January 2019 and 6 February 2019, on more than three occasions you contravened the Family Violence Intervention Order which had been issued by the [suburb 2] Magistrates’ Court on 10 January 2019, by requesting family and friends to attend at the property where you had resided with [Ms B], notwithstanding the prohibition in the Intervention Order from doing so. On 17 January 2019, you telephoned your mother and asked her to get a friend to break into the property. On 4 February 2019, you again telephoned your mother and told her that you needed your friend, [Mr C], to go to the property. On 6 February 2019, you again telephoned your mother and told her to go to the property to get your stuff. Your conduct in this regard forms the basis of Charge 10 on the Indictment, persistent contravention of a Family Violence Intervention Order.
18 [Ms B] obtained a variation of the Family Violence Intervention Order at [suburb 2] Magistrates’ Court on 8 February 2019. The conditions of the varied order included additional conditions that you not intentionally damage any property of hers or threaten to do so, that you not attempt to locate, follow or keep under surveillance [Ms B], that you not publish on the internet, by email, or other electronic communication any material about [Ms B], and that you not contact or communicate with [Ms B] by any means. This varied Intervention Order was served on you on 12 February 2019. Between 12 February 2019 and 25 February 2019, you again repeatedly breached this varied Intervention Order, by requesting family members to attend at the property where you had resided together, and to attempt to keep [Ms B] and [child 2] under surveillance. By way of example, on 19 February 2019, you telephoned your aunt and discussed that your uncle had located [Ms B]’s vehicle in [suburb 1]. You gave directions to your aunt to locate the vehicle and drive past it that night. In that conversation, you referred to making your son, [child 2], hate [Ms B], and you encouraged your aunt to go to [suburb 1] and speak to [Ms B]. On that same day, you telephoned your mother and requested that your uncle and a friend confirm that they had observed [Ms B]’s vehicle at the address in [suburb 1]. A short time later, you again telephoned your mother, although the call was answered by a friend. You discussed whether your uncle had located [Ms B] in [suburb 1]. You then called your uncle and said that they should organise to go and collect your belongings from the [town 1] address. You also later encouraged others to go and approach [Ms B] on your behalf. Similar conversations took place over the following days. Your conduct in this regard forms the basis of Charge 11 on the Indictment, persistent contravention of a Family Violence Intervention Order.
The details of Charges 1 to 11 are below:
•one charge of causing injury recklessly, which carries a maximum penalty of five years’ imprisonment;
•one charge of using a carriage service to harass, which carries a maximum penalty of three years’ imprisonment;
•two charges of common assault, which carries a maximum penalty of five years’ imprisonment;
•one charge of intentionally destroying property, which carries a maximum penalty of ten years’ imprisonment;
•one charge of extortion with threat to destroy property, which carries a maximum penalty of ten years' imprisonment;
•one charge of make threat to kill, which carries a maximum penalty of ten years’ imprisonment;
•one charge of false imprisonment, which carries a maximum penalty of ten years’ imprisonment;
•one charge of attempting to pervert the course of justice, which carries a maximum penalty of 25 years’ imprisonment; and
•two charges of persistent contravention of a Family Violence Intervention Order, which carries a maximum penalty of five years’ imprisonment.
Father’s drug use
I have been provided with significant information about this sad chain of events by the section 67Z response provided by the Department of Families, Fairness and Housing. That document provides significant information that sheds light on the circumstances of the Father’s drug use.
In his affidavit filed on 15 June 2021 the Father stated as follows at paragraph 70:
I have complied with all directions from my corrections officer and have done all of my drug screens.
On 22 May 2021 the Child Protection Practitioner spoke to the Officer relating to the Community Corrections order to which the Father had been sentenced in September 2020 (reasons recited above). I note that the great bulk of the sentence had already been served at the time of sentencing and he effectively served a further five or so months. However, on 22 May 2021 (three weeks before the affidavit cited above) the Community Corrections Officer explained to the Child Protection Practitioner as follows:
On 22 May 2021 the father's supervised urine drug screens pathology result detected some substantial amounts of amphetamine.
…
The Community Corrections officer explained that pathology results prior to this have detected methylamphetamines.
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The father's explanation to the positive result due to sitting with someone smoking amphetamines.
The Community Corrections Officer explained the amounts were too substantial to be explained by this. The Father had been directed to complete supervised urine drug screens on 5 June 2021 and 26 June 2021. The Father did not comply.
Hence, shortly before the Father filed his affidavit with the assistance of a lawyer on 15 June 2021, he had failed to comply with a drug screen and he did so again shortly after preparing and filing that affidavit. In addition to that, the Father did not undertake the drug screens that he was directed by orders of this court to undertake prior to the hearing on 13 October 2021.
I also have the benefit of the information from the child-inclusive conference, known as a section 11F report of 17 June 2021 (that is close to the events described above). The Father participated in those interviews. I recite parts of that report:
49.The key issue in this matter involves a fathers wish to re-establish a relationship with his four-year-old child after an enforced absence of over two years.
50.There is a significant history of family violence, not only in the parties relationship, but in the father’s previous background which appears to be consistent with a pattern of coercive control.
51.The mother remains highly fearful of any reconnection with the father via the child.
52.The mother appears to have established a positive and constructive lifestyle post separation that is centred around [the child] and his ongoing development and well-being.
53.Apart from her own fears regarding safety, she is also concerned about the effect of the father’s reintroduction on [the child] and the potential impact on her own mental health and parenting.
54.While the father acknowledges some of the concerns raised, and states that his time in prison, including participating in many programs and courses, has changed his behaviour, he appears to have limited insight into the impact of the past and to the potential overall impact on [the child].
I also note that when dealing with the drug issue, that report also states:
20.The father states he reduced his drug habit when [the child] was born and since imprisonment in 2019 has been drug free.
The Orders of July 2021 authorised the ICL to request that the parties undertake random drug screens. On 8 September 2021 the ICL emailed the Mother's solicitor and the Father's solicitor requesting that a drug urine analysis be undertaken within 24 hours. The Mother undertook such analysis on 9 September 2021 and those results were provided on 19 September 2021 showing that the Mother was clean of all illicit drug use. The Father did not undertake a drug test, or if he did, he did not provide the results to the ICL or the Mother.
The further relevant circumstance is that the Father was given yet another chance to demonstrate that he had ceased illicit drug abuse by the orders of 13 October 2021. The Father did not undertake such drug tests or hair follicle tests as ordered, or at any point between the last day he was meant to, 28 January 2022, and this day.
Conclusion as to Father’s continuing drug use
In all of those circumstances, I conclude that the Father continues to have a significant problem with methylamphetamine abuse.
Psychological assessments of the parties
The further information that I have is the report of Dr K, and I recite part of that report:
19 In terms of the child…, [the Mother’s] account is that she is terrified that the father would be in [the child’s] life.
20 She reported that she cannot imagine the father being part of her life or [the child’s] life. She believes that if there is any contact that she has, or [the child] has with his father, it would be negative.
21 There is no evidence of trust in relation to the father. She stated that she and her son cannot be safe with him, due to issues of his threats and mental health.
…
31 In terms of [the Mother’s] current functioning, it would appear that she is functioning significantly better. She has not used drugs since ceasing them during the relationship with the father. Additionally, she drinks rarely. There is no evidence of historical emotional, physical or sexual abuse. She has not had criminal offending or other charges.
32 Her son … is going well.
33 In terms of psychological evaluation, [the Mother] presented with significant leftover traumatic symptoms. It is unlikely that she presents with a formal post-traumatic stress disorder, however, there are clear dimensions of PTSD in her presentation. There is no evidence of pre-existing personality issues. [the Mother] presents as functioning appropriately and at least in the high average cognitive range, based on estimates.
34 [the Mother’s] symptoms present as genuine. She does not present with a picture of amplifying or exaggerating her issues.
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38On the PDS, this a valid profile. There is no particular elevation on Self-Deceptive Enhancement or Impression Management, considering family law responses.
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40 There is no evidence of difficulties in negative or positive impression management or any other aspect of validity. This presents as a valid profile.
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58 [the Mother’s] history would suggest that there were no significant psychological difficulties in her early life or in her later life, nevertheless, there is evidence of a lack of direction in her life and a tendency for her to be in relationships where the others set the agenda.
59 As indicated, there is no evidence of pre-existing psychological difficulties. There is no evidence from collateral, clinical or psychometric material of the amplifying or exaggerating of the issues contained.
60 In this respect, there appears to be some personality vulnerabilities associated with lack of assertion, and possibly low self-esteem. Nevertheless, the relationship over several years presents as problematic and traumatic, if it can be identified that [the Mother’s] presentation of the history fits with the basic facts of the matter.
…
63 These symptoms appear to have recovered to the extent that [the Mother] is functioning relatively well through not having contact with her ex-partner, based on the fact that he was incarcerated for more than two years due to the charges against the mother. In this case, there are serious concerns about any further contact with her or with the child.
64 It is highly likely that any contact with the mother would lead to significant deterioration in her mental health functioning and therefore her parenting. I would consider that any contact with her ex-partner and father of the child is inappropriate. In this case, additionally, for the father to have contact with [the child] presents as questionable, considering the fact that there has been what appears to be significant family violence including threats to kill. This history raises serious questions about the viability of time between the father and the child, primarily based on the fact that deterioration of the mother’s mental health will lead to significant negative effects on the child …, and the re-traumatisation of the child.
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68 The evaluation revealed the mother [is] traumatised and fearful of the father, considering the previously family violence events.
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71 If it can be determined that time between the father and [the child] can occur with these negative effects and be supervised, as such, time in the future may be possible. There are concerns based on the father’s history regarding his ability to adhere to Court Orders. As such, in this matter there are significant concerns associated with future time arrangements for [the child] with the father.
In regard to the assessment of the Father that was undertaken as a result of the interviews on 16 November, I recite the following parts:
2 [the Father] was evaluated over a period of 3.75 hours and he then subsequently undertook psychometric evaluation over a further 2 hours. The Independent Childrens Lawyer has requested an assessment and report without specifying the nature of that assessment and report.
…
3 [the Father] presented as unshaven, his eyes appeared dark and his language and his pronunciation was slightly slurred, raising questions about substance use and/or withdrawal.
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6 [the Father] has been in jail and upon coming out of jail, moved in with parents. He grew up Suburb D and left home at age 23 but has been in and out of home four times, suggesting a lack of establishing himself independently.
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8[the Father] has a brother aged 26 years and a sister aged 30 years, both of whom live relatively close to the family. His mother was born in Country E and his father was born in Australia. [the Father] described a large family who were close to each other. His description would suggest he was active as a younger man and continued to play competitive sport until recently. Additionally, he worked from a young age doing deliveries from age 12 onwards.
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10 Despite statements that life was positive as a child, it would appear there was significant physical punishment at home and possibly therefore, physical abuse in childhood. Being the oldest in the family he would seek attention and was physically “belted” if he played up, about once per week. [the Father] denied any other significant issues.
…
15 [the Father] was incarcerated in 2019 because of threats to kill. He had previously been incarcerated in 2014 due to breaches of intervention orders for family violence related to an ex-partner, whom he had a relatively short relationship with (approximately six months).
16 [the Father]’s account is that he was charged with threats to kill of the mother, the mother was away for three days, he was very angry and smashed up the house and threatened to burn the house down and he was subsequently charged with threat to kill. [the Father] indicated that he grabbed the mother by the throat and threatened to kill her. There was minimisation and shifting of responsibility in [the Father]’s explanation. He was then subsequently arrested and charged with a series of matters, incarcerated between 2019 and 2021. He pled guilty ultimately to two assaults with damage of property, persistent breaches of intervention orders, extortion and other charges such as perverting the course of justice, associated with trying to get people to find her, indicating that he did not trust her.
…
20 There was marked minimisation of family violence / offences throughout this discussion.
21 [the Father]’s account is that he was wrongly done by, that somethings happened but there were other issues where there was exaggeration. [the Father] spoke of unfairness of what occurred. Reportedly he had three criminal assessments in 2019 and 2020 as part of his legal matters.
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25 [the Father] first used drugs at age 19, using amphetamines and then began using methamphetamines at age 23 years. He used cannabis from age 16-25 irregularly and then used methamphetamines consistently from age 23-31 up until 2019 and he used daily for a period of a year. Additionally, at age 19 or 20 he used pills such as Ecstasy on limited occasions.
...
27 Subsequently in 2017-2019, [the Father]’s account is he used methamphetamines monthly and the mother about the same. In the last three months before he went to jail he was using methamphetamines five times per week.
28 The mother’s allegation is that he was trafficking methamphetamines. His account is that [the Mother] would buy the drugs off [the Father’s] cousin and they would buy in a group and then share and does not see it as trafficking.
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31In 2013-2014, [the Father] was charged with family violence incidents. He described being very angry at the time, connected to his father being away. His account is that when he knows that he is right and no-one is listening to him, he gets very angry. His family took out an intervention order against him for a period of year and he breached this and was given two community corrections orders.
32 In 2014 [the Father] spent a year in jail because of breaches and then had an eighteen month community corrections order.
33 In 2019 he was given two years in prison for family violence matters and came out in 2021 and began working soon after.
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39 Additionally, [the Father] has had a drug use disorder related to methamphetamines over a substantial period of time. His account is that this is in partial remission. There is no external validation.
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43 On the PDS, Self-Deceptive Enhancement is suppressed and Impression Management is in the average range. Neither present the individual as showing themselves in naïvely positive light. There is no positive self-presentation in this aspect of the testing.
...
44The PAI is a gold standard self-administered psychological instrument that assesses personality functioning and psychopathology in clinical contexts and psycho-legal contexts, assesses psychological syndromes and provides information relevant for clinical diagnosis, treatment planning, and screening for psychological disorders…….
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45 The profile shows elevation in positive impression management, configural distortion shows that that positive distortion was effortful and as such the individual is intentionally attempting to present themselves in an unrealistically positive light.
46 Normally in such matters the profile clinical scales are suppressed. In this matter this is less obvious. Nevertheless, the profile suggests that the individual did not answer in a forthright fashion but nevertheless, there are elevations in a series of areas. These difficulties include a tendency towards grandiosity, a sense of persecution, odd mental experiences, psychological symptoms of depression, anti-social behaviour, physical aggression and elevation in drug related issues.
47 The individual’s tendency at an interpersonal level is to be comfortable in the domain where he feels in charge. He is also externally orientated and very focused on approval from the outside world.
48 The profile raises concerns about the individual’s level of suspiciousness and a tendency towards grandiosity and risk taking. Additionally, there is a negative affectivity tendency towards disinhibition and antagonism. Drug related and unusual mental activities are likely to be related.
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55 Overall, this suggests that the individual will require support and intervention around parenting.
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62 Psychological evaluation assessed [the Father’s] general parental risk at high, largely due to a combination of a personality disorder with borderline and anti-social features, exposure of the child to family violence, use of methamphetamines over time and the historical issues to do with the family violence in his previous relationships.
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64 Despite the significant period of incarceration until recently, [the Father] has returned to using methamphetamines to some degree in 2021, despite the obvious implications of returning to the drug. Similarly, [the Father] presents with little insight or a set of strategies to address what appears to be problems with impulsivity when he becomes emotionally heightened in relationships.
65 [the Father] requires ongoing assistance around anger management, both at a group and an individual level over the next 2-3 years. Additionally, he needs to be more fully involved around substance abuse rehabilitation, possibly at an in-patient level.
66 [the Father] requires substantial psychological assistance, addressing personality difficulties with schema or dialectical behaviour therapy treatment approaches over at least two years. [the Father’s] prognosis is uncertain.
67 The evaluation raises concerns about [the Father’s] ability to engage with the mother of [the child] appropriately as he remains at risk for engaging in family violence, based on his history alone.
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71 The evaluation with the father shows him at ongoing risk for family violence with the presence of a personality disorder with borderline and anti-social features and long standing methamphetamine abuse and dependency problems.
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73 If it can be determined that time between the father and [the child] can occur with these negative effects and be supervised, as such, time in the future may be possible. There are concerns based on the father’s history regarding his ability to adhere to Court Orders. As such, in this matter there are significant concerns associated with future time arrangements for [the child] with the father.
[Emphasis added]
The law to be applied
The law that I must apply to this matter is set out at part VII of the Family Law Act 1975 (Cth) from section 60CA to 60CC(3).
Section 60CA
Child’s best interests paramount consideration in making a parenting order
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.
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Section 60CC
How the court determines what is in the child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
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Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In this case it is an understatement to say that there is evidence that shows there are reasonable grounds to believe that a parent of the child has engaged in family violence. In this case it is common ground that the Father has engaged in very serious family violence. Hence, the presumption of section 61DA does not apply.
Looking at section 60CC(2) and (2A) in particular, it is my sad task to find that at this time on the evidence I have in this final hearing, it is not in the best interests of the child to spend any time with his father. On the evidence I have, his father has significant drug addiction, personality and mental health issues, which as far as I can tell remain untreated. He continues to minimise the seriousness of the violence of the events of January 2019. He continues to deny any other incidents of violence.
I accept the Mother's account that she has been subjected to a long history of violence throughout the relationship. I also take into account the impact upon the Mother of imposing against her wishes a regime of any time, including supervised time, with the child. I take into account Dr K's concern with the impact upon the Mother of that time.
Notwithstanding that, I am proceeding on the basis that the Father has a genuine love for his son and wishes to have a relationship with him, and in all of the circumstances that is not in the child’s best interests. It is to be hoped that the Father is able to obtain treatment for the many demons that he faces, but at this stage it is quite clear that he has not obtained treatment and has not satisfactorily dealt with those matters.
These will be final orders. And if the Father is to make any future application, he would need to satisfy the threshold or initial test contained in the authority of Rice & Asplund (1979) FLC 90-725. I will, however, note in the orders the provisions of rule 10.13 of the Federal Circuit and Family Court of Australia (Family) Rules 2021 (Cth):
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
Next I will deal with the issue of costs. On 13 October 2021 I reserved the Mother's costs of that day, which were $3300 for counsel and $825 for solicitors. Those costs were reasonable in the circumstances. The Mother's counsel sought the same costs today. In light of Dr K's observations, despite the Father's statements of being sufficiently rehabilitated to be able to hold down regular work, I am not satisfied of the accuracy of those statements about himself. The Father is not an accurate historian as to his own circumstances. Hence, I am not satisfied that the Father has the capacity to make any contribution to the Mother's costs, were it otherwise appropriate.
The Mother's counsel presses for costs on the basis that the Father should have consented to the orders that are being made this day and that the appearance was unnecessary. Absent consent, an appearance this day would have been necessary. I take into account all of the matters under section 117 of the Family Law Act 1975 (Cth), including the starting position that, save in appropriate circumstances, as set out in section 117, each party should bear their own costs.
I note that the final property orders dividing the proceeds of sale of the house that the parties had previously owned were, I am told, less than $100,000 and that the Father received some 30 per cent of those proceeds by the orders recited earlier.
It is open to me to find, and I find that all or almost all of those proceeds will have been paid to the Father's lawyers. I find that the Father's lawyers withdrew most likely in the circumstances where the Father was unable to place them in appropriate funds to continue acting in the proceedings. In all the circumstances I dismiss the Mother’s application for costs.
There will be an order all extant applications are otherwise dismissed and the orders will be marked as final orders.
I will discharge the ICL 29 days after today.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 26 May 2022
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