Damiani and Damiani

FAMILY COURT OF AUSTRALIA

DAMIANI & DAMIANI

[2008] FamCA 1154

FAMILY LAW – CHILDREN – Parental responsibility – Rebuttal of presumption of equal shared parental responsibility – Family Violence – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth) ss 61DA, 60CC, 65AA, 60B
Evidence Act 1995 (Cth) s 140

Neat Holdings Proprietary Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170

APPLICANT:

Ms Damiani

RESPONDENT:

Mr Damiani

FILE NUMBER:

SYF

4576

2004

DATE DELIVERED:

19 December 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Honourable Justice Rose

HEARING DATE:

15 – 17 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

J Knox

SOLICITOR FOR THE APPLICANT:

Dettmann Longworth

COUNSEL FOR THE RESPONDENT:

G M Gould

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

That the mother have sole parental responsibility for the child of the marriage … born … August 2004 (“the child”) AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That the mother consult with the father in relation to the major long term issues affecting the child prior to any decision being made.
That the child live with the mother.
That the child spend time with the father as follows:
(a)      In week 1: from 8:30am Saturday to 5:00pm Sunday;
(b)In week 2: from 5:00pm Friday overnight to 8:30am the next Saturday morning.
After the child commences school (in 2010) on a two week cycle:
(c)      During school term on a two week cycle
(i)In week 1: from after school Monday overnight to before school the next Tuesday morning.
(ii)In week 2: from 5:00pm on the Friday (following the Tuesday morning in the preceding sub-paragraph) to 5:00pm Sunday;
(d)During School holidays, not being the summer/Christmas holiday period, for the first three (3) days from 9:00am on the first day to 5:00pm on the third day.
(e)During the summer/Christmas holiday period, for three (3) periods of three (3) consecutive days from 9:00am on the first day to 5:00pm on the third day.
(f)That the first day of the holiday period that the child shall spend with the father in accordance with the Order 4(d) and (e) shall be the day nominated by the father in writing to the mother which provides no less than 28 days notice of the day so nominated by him, failing which the mother shall be at liberty to nominate the first day in writing with no less than seven (7) days notice to the father.
(g)      For such alternative or other periods that the parties may agree upon.
That Order 4 is suspended for the purpose of the child spending time with:
(a)      the mother on Mother’s Day from 9:00am to 5:00pm
(b)      the father on Father’s Day from 9:00am to 5:00pm
(c)      On 25/26 December 2008 and alternate years thereafter:
(i)       with the mother from 10am to 4:30pm 25 December; and
(ii)with the father from 4:30pm 25 December to 4:30pm 26 December
(d)      On 25/26 December 2009 and alternate years thereafter:
(i)       with the father from 10am to 4:30pm 25 December; and
(ii)with the mother from 4:30pm 25 December to 4:30pm 26 December
That the father collect the child from and subsequently return the child to the mother or relative or friend designated by her outside her home or as otherwise nominated by her except as otherwise provided in Order 4(c).
That the mother initiate a weekly telephone call by the child to the father on a day and time agreed upon between the parties.
That the father be restrained from:
(a) entering the home of the mother;
(b)entering the property of the mother’s home except for the purpose of collecting and returning the child;
(c) communicating with the mother other than:
(i)by mail or email and then only in relation to matter in relation to the child. In this respect the father shall not send more than two (2) emails to the wife on any single topic other than cases of emergency concerning.
(ii)by telephone only in situations of urgency in relation to the child.
That in the event of the child suffering from a serious illness or injury then the party who has the care of the child at that time shall notify the other party as soon as possible with details of that injury or illness and the name, address and telephone number of the relevant medical practitioner or hospital that is or may be providing medical attention for the child.
That the mother authorise and request the principal of all pre-schools, kindergartens and schools attended by the child to furnish the father at his expense if necessary copies of all reports, notices to parents and correspondence in relation to the child’s educational progress, sport, extracurricular activities and functions to which parents are invited.
Each of the parties may publish copies of the following documents to any health professional and/or priest attended upon by him or her respectively:
(a)      The Orders made this day.
(b)      The Reasons for Judgment given this day.
(c)Exhibit 2, being the report of the single expert Dr R, psychiatrist, and the transcript of her oral evidence.
(d)      The Affidavit of Ms Y filed 22 December 2006.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF4576 of 2004

MS DAMIANI

Applicant

And

MR DAMIANI

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings each of the parties sought parenting orders in relation to their child, four years of age, having been born in August 2004 (who for convenience, I shall refer to as “the child”).
The wife and the husband who are the applicant and respondent respectively, have sought orders for different graduated of periods of time to be spent by the husband with the child, both in terms of frequency and duration.
In addition, an issue arises between them as to whether or not the presumption of equal shared parental responsibility has been rebutted.
In that regard, the wife’s case is that the presumption is rebutted relying upon the grounds set forth in section 61DA, sub-sections 2 and 4.
The husband’s case is that the presumption has not been rebutted and that the wife’s application in that regard should be dismissed.
The parties cohabited for a period of approximately 19 months which commenced in April 2003. That was the date of their marriage.
They subsequently separated on 2 November 2004.
They have lived separate and apart from each other since that time.
I am informed that a divorce certificate has not been sought, let alone granted, in relation to dissolution of the marriage.
At the time of separation, the child was about three months old. The child has lived continuously with the mother since that time, subject to varying periods spent in the care of the father.
The wife is 41 years of age and is engaged in home duties.
The husband is 45 years of age. He carries on a profession and is a member of a partnership in Sydney.
The wife has two children of her prior marriage; namely, a son, 15 years of age and a daughter, 13 years of age. Those two children live with the wife, subject to periods of time that they spend with their father.

Historical background

The following is a history of orders previously made in the proceedings between the parties in this Court; the Local Court at Hornsby and in the District Court of New South Wales:
On 22 December 2004 interim orders were made by Judicial Registrar Johnston which provided for the husband to pay spousal maintenance in the sum of $400.00 per week with CPI variations as well as to meet certain household outgoings for the wife.
In addition, an order was made that the husband have “contact”, as it was then described, with the child each Sunday from 9.30am until 11.30am. In that regard, the periods of time have been increased to provide for each second weekend from Saturday 8.30am, until Sunday 5.00pm, and each second Friday from 6.00pm overnight to Saturday 8.30am.
On 16 March 2005 the husband pleaded guilty to a charge of common assault in the Local Court, Hornsby. A conviction was entered and he was required to enter into a good behaviour bond for a term of 12 months. In addition, an Apprehended Violence Order was made against him for the protection of the wife and the three children for a term of 12 months.
On 19 May 2005 in the District Court of New South Wales, the husband’s appeal against severity was heard and determined. The conviction was set aside, the husband was required to enter into a bond to be of good behaviour for 12 months and the matter then otherwise dealt with in accordance with section 10 of the Crimes Act.
On 6 May 2005 an order was made in this court, by consent, declaring that a financial agreement entered into between the parties was not binding.
On 14 August 2006 the single joint expert was appointed.
On 8 May 2007 the child expert in these proceedings, Dr R, psychiatrist, was appointed for the purpose of conducting interviews with the parties, observing the child, having interviews with the two eldest children and ultimately, to prepare and furnish her child expert’s report.
On 10 April 2008 I made directions for the continuation of the hearing.
Further directions were made on 8 August 2008.
Orders were also made by Judicial Registrar Loughnan for the husband to be able to spend time with the child from 8.00am Saturday to 5.00pm Sunday each second week and in the intervening week, from 5.00pm Friday to 10.00 am Saturday. Costs were reserved.
Further directions were made on 21 November 2008 and 1 December 2008, as well as on 12 December 2008 when the proceedings, which had previously been consolidated, were separated in that the parenting proceedings only were fixed to proceed before me on 15 December 2008. That was in circumstances where the property settlement proceedings were not ready to proceed due to the single expert not being in a position to furnish his updated report until the end of January 2009.

Revelant legal principles

Section 60CA makes it clear that in deciding whether or not to make a parenting order in relation to a child, the court “must regard the best interests of the child as the paramount consideration”[1]. That provision is re-emphasised in section 65AA.
[1] Section 60CA
For the purpose of determining what is in the child’s best interests, I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I also required to consider the matters in section 60B which set out the objects of the provisions of Part VII of the Act in relation to a child and the principles that underline those objects.
In substance, they include: the benefit to a child of its parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to or exposed to abuse; neglect or family violence; ensuring the children receive adequate and proper parenting to assist them in achieving their full potential and ensuring parents fulfil their duties in meeting their responsibilities concerning the care, welfare and development of their children.
The principles set forth which underlie those objects include, amongst other things, a child having the right to know and be cared for by both parents and having a right to spend time with and communicate with both parents and other significant persons on a regular basis.
The principles also make it clear that, for the purpose of the objects, it is appropriate that there be joint sharing by parents of the duties and responsibilities in relation to their child and it is imperative for the parties to agree about future parenting of their child.
It is important to note that section 60B(2) provides an important exception to the principles underlying the objects to which I have referred. That exception is when it is or, would be contrary to a child's best interests.
To that extent, the 2006 legislative amendments to the Act in relation to children continue what has sometimes been described as “the overarching principle” namely, that the best interests of the child is the paramount consideration. Findings of fact in that regard are required for the purpose of making a parenting order.
In order to determine what is meant by “the best interests of the child” I am required to have regard to the primary and additional considerations so described in section 60CC.
The primary considerations are: the benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. It is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings.
Those findings will then be referred to by me in my conclusions in respect to both primary considerations and additional considerations for the purpose of ultimate determination of the best interests of the child and the parenting orders that will be made.

Relevant matters pursuant to section 60CC(3)

I make the following findings in relation to relevant provisions pursuant to section 60CC(3).

The views of the child

The child is still very young. It is clear on the evidence before me that he has attachment to each of the parties. The primary attachment is clearly with the wife. That does not diminish his attachment to the father. It is implicit from this that he has perhaps the view of spending periods of time with the father on a regular basis.

The nature of the relationship between the child and the parties

There is no issue that the child has a loving relationship and attachment with each of the parties and I have referred to that matter.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other parent.

Part of the wife’s case is that she has such a willingness and ability, subject to the periods of time that should be spent by the father with the child as being on a graduated basis to a lesser degree than that sought by the father.
At the platform of the wife’s approach to that matter is her anxiety and fear that the husband may engage in abusive conduct, whether physical or emotional, with the child in the event that the husband feels frustrated in dealing with the demands of a growing child or, for any other reasons related to pressure, that he may then be experiencing.
The husband’s approach is that he has attended a number of courses to give him greater insight into both parenting and personal relationships.
He has apologised for his violent behaviour to the wife to the extent to which he has admitted that it occurred and seeks to assure her and the court that he is much better placed, than he was previously, in providing sensitive and appropriate care for the child without the risk that he may engage in abusive conduct such as that alleged by the wife during the course of cohabitation.

Practical difficulty and expense of maintaining the relationship between the child and the parties

There is no practical difficulty and expense in relation to spending time with either parent.

The capacity of the parties to provide for the needs of the child

So far as the capacity of the parties to provide for the needs of the child, there is no issue that each of them has the capacity to provide for the physical and intellectual needs of the child. The wife raises an issue as to the husband’s alleged restricted capacity to provide for the safety and the emotional needs of the child. In that regard, this particular matter is intertwined with the allegations of violence and abuse to which I will subsequently refer and which will be the subject of findings made by me.
The child appears to be an intelligent, aware and mature child commensurate with his age.

The parental attitude of the parties

Each of the parties has an appropriate parental attitude to the child, subject to two matters. One is the allegations of family violence and abuse made by the wife against the husband and secondly, the restricted and poor communication between the parties. The wife’s case is that that is a consequence of the violent conduct which she alleges that the husband engaged in during the period of their cohabitation.

Family Violence and Family Violence Orders

This matter lies very much at the heart of the proceedings. The implications of any findings that may be made may have a significant effect upon the consideration of the best interests of the child in terms of parenting orders that may be made including, of course, the two primary considerations in section 60CC namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from being exposed to violence or abuse. To that extent, both those considerations are intertwined.
Before I proceed to outline the summary of the evidence and my findings, I emphasise at this point that, given the gravity of the allegations that were made and the case that each of the parties has brought in relation to those matters, I provided opportunities for the parties to consider whether or not it was possible for them to settle the issues that otherwise arise for determination.
In that regard, I provided periods of time to enable them to do so and urged them to not only seek and consider legal advice from very experienced, competent lawyers, but also the opportunity which they had to consult with Dr R.
Unfortunately, those periods made available for that purpose did not come to fruition. That was the absolute right of each party to seek that a court determine the issues and should not feel under pressure to settle matters in an unsatisfactory way.
However, I am referring to those matters because of the gravity of the allegations, the implications of possible findings and orders that may be made, both on a personal basis, so far as the parties are concerned, and also because of the obvious impact that those findings may have in terms of consideration of whether the presumption of equal shared responsibility has been rebutted, having regard to the mandatory terms of section 61DA(2), let alone the issue of the periods of time that the husband should be able to spend with the child in his care.
Much of the evidence is in relation to the wife’s allegations of violent and abusive conduct by the husband to her during the period of their cohabitation. The wife’s case is that the alleged violence and/or abuse occurred in the former matrimonial home in R, at times in the hearing of her two eldest children.
The wife alleges five incidents where she has been assaulted by the husband, the last of which occurred on 1 November 2004. The child, at that time, was a baby, about two and a half months old. The next day the parties separated when the wife and the three children left the former matrimonial home.
The affidavit evidence of the wife is in substance as follows.
In about August 2003 the husband yelled at her and repeatedly pushed her hard on the chest forcing her onto the bed.
In about October or November 2003 following a counselling session attended by them, the husband dragged her out of bed, across the floor, down the hallway, and then threw her up against the wall. He pushed her violently and repeatedly against the wall. Following that violence, he was abusive towards her for a lengthy period. He demanded an apology from the wife for not preparing food for him.

In March 2004, when the wife was about four months pregnant, the parties argued. He then assaulted her. The husband chased the eldest child after he said he would call the police. The husband returned to assault the wife again. He then abused her.
Subsequently, when the wife was about seven months pregnant, the husband spoke to her aggressively and then suddenly assaulted her. Upon the wife commencing to pack her clothes to leave the house, the husband assaulted her again. He then abused her.
On 1 November 2004, an argument developed between the parties in relation to who might be the godparents of the child. The husband then assaulted the wife. He punched her on the arm and kicked her legs and on the bottom. He then pressed her head against the floor causing pain. He shouted at her and claimed he had the right to do what he did.
The wife also alleges that the husband was frequently abusive towards her, at times unpredictably and without apparent reason. The wife did not report the husband’s alleged violence to the police or anyone else, with the exception of the incident which occurred on 1 November 2004.
The husband was charged with common assault and assault occasioning grievous bodily harm. Apprehended Violence Order proceedings were also instituted by the police against him.
In March 2005, in the Local Court, Hornsby the husband pleaded guilty to the charge of common assault. He was convicted and placed on a good behaviour bond for 12 months. An Apprehended Violence Order was also made on the same date against the husband for the protection of the wife and the three children. The Apprehended Violence Order was for a period of 12 months.
In May 2005 in the District Court, on appeal by the husband, he was found guilty, a conviction not recorded, and the husband was discharged upon entering into a good behaviour bond for 12 months.
The husband denies all of the allegations made by the wife of violent and/or abusive conduct towards her, except for part of his alleged violent conduct towards her on 1 November 2004. He admits he restrained her by her arm and slapped her on the bottom.
Exhibit 8 comprises the Court papers provided by the Local Court, Hornsby, and the District Court in the proceedings to which earlier reference has been made. It includes photographs showing severe bruising to the wife’s left arm, left leg and left buttock.
Affidavit evidence was given by Ms Y, a social worker. Ms Y conducts a counselling and therapy practice. Ms Y is a social worker of substantial experience. The wife has been consulting Ms Y since 11 January 2005 to enable her to manage stress and anxiety as a result of the alleged domestic violence. Ms Y concluded that the wife has suffered from post traumatic stress symptoms due to the alleged violent conduct of the husband. Ms Y was not required for cross-examination. I accept her evidence which is detailed and professional.
The appointed child expert Dr R, a child and family psychiatrist, provided a full expert report completed in about October 2007 and annexed to her Affidavit sworn 2 November 2007. That report was prepared following her interviews with the parties and the two eldest children.
Page 3 of the report provides a detailed history obtained from those children in relation to the alleged violence and abusive conduct of the husband.
Whilst Dr R acknowledged that it was highly likely that those children had been “primed” by the wife to talk to her about that conduct, that is a separate matter from any evidence, or indeed allegation, that they had been coached by the wife in relation to the information they gave to Dr R or that they had fabricated it, as alleged by the husband.
Dr R’s evidence was that there was no basis for her concluding that those children had been coached or had fabricated the history given by them to her. Indeed, there is no evidence to support any such allegation.
Dr R expressed the opinion in her report and oral evidence that, if the wife’s allegations of violent and abusive conduct by the husband is accepted, then her symptoms of stress and anxiety are consistent with her having suffered trauma due to conduct as alleged and/or violent conduct by the husband and that Ms Y’s conclusions are well supported.
I accept Dr R’s evidence in relation to those matters and find accordingly.
The husband during the course of cross-examination maintained his denial of the alleged domestic violence with the exception of restraining or grabbing the wife by the arm and slapping her on the bottom described at times as “lightly” slapping her there.
He agreed that the “Statement of Full Facts” tendered in the Local Court in the proceedings to which I have referred was a statement so tendered with his consent. That agreed statement is part of Exhibit 8. It records, inter alia, that the husband “grabbed the victim by her arm and pulled her down to the lounge and she fell to the floor”. The husband had to be pressed in cross-examination before he agreed that he had assaulted the wife in that way.
Exhibit 8 contains a testimonial dated 11 March 2005 from Mr K, a partner of the husband in his current professional business. Implicitly, on information provided to him by the husband, he states “[the husband] has told me that he concedes he did grab hold [the wife] by the arm and lightly slapped her on the backside”. No mention is made of pulling the wife down and her falling to the floor or that the husband caused part of the wife’s body to be bruised.
Exhibit 6 includes G Business’ personal file and/or review documents in relation to the husband who was formally an employee and then partner in that business.
There is no evidence that would lead me to conclude the Exhibit 6 has unreliable material, notwithstanding the qualifications sought to be provided by the husband. Indeed, in many respects, he claimed he had no memory of certain meetings or the raising of some of the concerns about his conduct, yet he ultimately, after being pressed in cross-examination, conceded he was asked to leave the partnership due to the history of his unacceptable personal conduct to certain employees. That conduct relates to abusive behaviour by him.
I accept the material contained in Exhibit 6.
I find that the husband has engaged in violent and abusive conduct to the wife as alleged by her in each of the five incidents to which I have referred and which are set out in her Affidavit.
In doing so, I have been mindful of section 140 of the Evidence Act including the gravity of the conduct alleged and that I should not lightly make such a finding on the balance of probabilities.
In that regard, I refer to and follow the relevant dicta in the High Court's judgment in Neat Holdings Proprietary Limited v Karajan Holdings Pty Limited[2].
[2] Neat Holdings Proprietary Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 170 to 171.
Whilst the wife was not clear on some aspects of her Affidavit evidence, she was not shaken in regard to the substance of it. My observation of her in the course of giving her evidence leads me to conclude, by her manner and her answers, that she is a witness of truth.
In addition, the wife’s Affidavit contains graphic detail of the husband’s violent and abusive conduct towards her and is plausible in every respect.
I also have given weight to the photographs and “Statement of Full Facts” as well as the testimonial of Mr K which are inconsistent with the husband’s evidence that he merely restrained the wife by the arm and smacked her perhaps lightly on the bottom on 1 November 2004.
Indeed, that testimonial and the husband’s evidence to me, in relation to the events of that day, represent a watered-down version of the husband’s conduct towards the wife.
It raises the inference that he has not only lied on oath in these proceedings but also to Mr K.
In addition, I have given weight to the evidence of Ms Y and Dr R to which I have referred, as well as the record of the husband’s unacceptable conduct to employees of G Business in accordance with Exhibit 6. The latter shows a relevant history of abusive conduct by the husband to others in a disadvantaged position to him.
I found the husband to be an unreliable witness.
He feigned a lack of memory in relation to circumstances of leaving the G Business partnership.
He failed to volunteer, in his evidence, the full extent of the “Statement of Full Facts” that he agreed to in relation to his violence to the wife on 1 November 2004 and he permitted a testimonial from Mr K to be tendered in the assault proceedings which was inconsistent with that Statement of Full Facts.
I have not given any weight to the parties attending upon those who may have provided counselling.
That is not necessarily inconsistent with the conduct of the husband as alleged, notwithstanding his counsel’s submissions that there was a chance that the wife might raise her allegations with those who the parties saw together or who they saw individually. The wife equally might not have done so due to her fear of the husband. Nor do I give any weight to the fact that the wife joined in arguments with the husband when she had the strength to do so.
The parties’ evidence is opposed in relation to the circumstances in which the wife ultimately signed a financial agreement during cohabitation, at least so far as the wife was concerned.
The wife claims that the husband pressured her into doing do by abusing her. She was pregnant at the time. The husband denies that he abused her. He states he only wanted her to show commitment to the marriage by signing that document. Ultimately, she did sign it. He did not do so until shortly after the parties separated. He says he received legal advice which I accept.
However, his evidence of being motivated not by money but to seek a further commitment from the wife to the marriage has a hollow ring to it. It is axiomatic that the agreement, by its very nature, is solely concerned with money and not a marriage commitment, regardless of whether without it the wife may have been placed in a better financial position for property settlement in the event of the parties separating.
The husband is an intelligent, educated man of mature years. I do not find it plausible that he considered that the wife signing such a document demonstrated her commitment to the marriage, when a marriage relationship is a personal one, unlike the commercial relationships with which the husband deals with in the practice of his profession.
Finally, having professed his love for the wife in correspondence to her in Exhibit 5 sent shortly after the separation, he then signed the financial agreement presumably because he thought it financially advantageous to him to do so. That was a contradiction of the basis of his relationship with the wife, referred to in page 2 of his letter dated 4 December 2004.
Apart from the dubious validity of the financial agreement, having regard to the husband signing it after separation in clearly changed circumstances to those which existed when it was prepared and ultimately signed by the wife, the husband signing it when he did and in the circumstances to which I have referred represented a shabby episode in his relationship with her.
Subsequently, to his credit, he consented to an order setting aside the financial agreement.
For all of those reasons, where the evidence of the parties conflict, in relation to the wife’s allegations of the husband’s violent and abusive conduct to her, I accept her evidence in preference to that of the husband.
In my view, it is not a coincidence that the only violent conduct that the husband admits he perpetrated against the wife was arising out of the one incident he could not refute. That was the incident on 1 November 2004 which the wife reported to the police and corroborated with photographs as contained in Exhibit 8.

Conclusion

Each of the parties has provided different proposals for graduated periods of time that the father should spend with the child. The wife, for her part has provided proposals reflected in the Minute of Orders sought by her on a more conservative basis than those sought by the husband.
In relation to section 61DA, the orders sought by the wife reflects the presumption having been rebutted on the ground in either section 61DA(2) or, section 61DA(4).
In relation to the presumption of equal shared parental responsibility, I have determined that the presumption is rebutted.
Section 61DA(2) does not provide for a discretion in terms of rebuttal in the event that the ground based on family violence has been established. That is in stark contrast to section 61DA(4) being the “best interests” ground where clearly a discretion is provided.
I have made findings in relation to the husband’s violent and abusive conduct towards the wife which attract and result in the application of section 61DA(2).
As a consequence, there will be an order that the wife have sole parental responsibility for the child in relation to major long-term issues affecting the child.
I will also make an order that the wife consult with the husband in relation to those issues before a decision is made by her.
It is important, in the child’s best interests, that the husband have input into such issues before a decision is made. That is particularly so against the background where they each share the same religion and have the same aspirations so far as Catholic school education is concerned.
With regard to the periods of time to be spent by the father with the child, the orders sought by the wife are in effect for the periods from the present time to following the commencement of school and thereafter to be on a graduated basis over a lengthy period.
The father’s orders sought, as I have referred to, provide for more extensive and rapid increase in the periods of time that he will spend with the child.
I have determined that I will make orders which provide essentially the substance of the orders sought by the wife for the period from the present to following the commencement of school and not beyond. My reasons are as follows.
The findings of violent behaviour and abuse towards the wife, whilst not directed to the child or in his presence, and the husband’s history of failure to control his propensity for abusive conduct to those who are often in a weaker position than him when he is under pressure, are matters that I have taken into account.
I accept the evidence of Dr R that the husband has the potential for conducting himself in that way should he have feelings of frustration in dealing with the demands and behaviour of a growing child and that the longer the period that is spent by him with the child, the greater is the likelihood of such conduct.
The husband, very much to his credit, has been attending various courses to give him a greater insight into his behaviour, the effect upon others and to improve his ability for personal relationships whenever stress may be present.
However, it is the underlying causes of his behaviour that clearly need to be addressed. That can only be addressed by the husband engaging in therapy with a psychiatrist or psychologist, according to the evidence of Dr R which I accept. That will only succeed if it is approached by the husband on a voluntary basis. It is a matter for him as to whether he does so. Time will tell.
The parties will be able to assess the situation in terms of the care that the husband has provided to the child and his demeanour following time spent with the husband after the child has spent periods of time with him following his commencement at school.
I also take into account the wife’s genuine anxiety and stress in relation to the possible and unpredictable abusive behaviour of the husband which may emerge during periods he spends with the child. It is in the child’s best interest to have his primary carer as free from anxiety as possible as that can only assist her in her parenting of the child.
I will make orders in relation to the provision of school reports and related material to the husband. There is no issue in that regard.
I will also make orders which provide for each of the parties to immediately inform the other of the child suffering any serious illness or injury.
I have also determined to make orders for the publication of the orders that I make today, the Reasons for Judgment, the report of Dr T and the transcript of her oral evidence and the Affidavit of Ms Y so that those documents may be made available by each of the parties, if they wish to do so, to any health professional or priest who they attend upon.
In making the orders that I have, I have considered the benefit to the child of a meaningful relationship with both parents.
That consideration is very much intertwined with the other primary consideration of the need to consider the circumstances of possible exposure by the child to violence or abuse.
Clearly there is a benefit to the child in having an ongoing and expanding meaningful relationship with each of the parties.
So far as the husband is concerned, that will come to fruition to a maximum once he has been able to receive appropriate professional advice and treatment with regard to his long-standing issues in relation to the control of his temper and propensity for abusive conduct to others. That is particularly so in circumstances where the husband may be feeling stress or pressure associated with work, or dealing with the child, or for any other reason.
So far as the second primary consideration is concerned, it should go without saying that orders should be considered which minimise a risk to a child so far as it is possible to do so consistent with a child’s best interests.
Accordingly, I have taken that matter into account in endeavouring to tailor orders in a way which attracts both primary considerations.
Once the child has commenced school, there will be an opportunity for the parties to reflect upon the success, hopefully, of periods of time that the husband has had the child in his care, to consider changes, if appropriate at that point and also, perhaps for the husband, if he chooses to do so, to allay the wife’s anxiety by providing her with a report from a psychiatrist or psychologist in relation to successful therapy. That, of course, is entirely a matter for him and is not the subject of any order that I will make. I have accepted Dr R’s evidence that for success in therapy will require the husband to voluntarily undertake such therapy.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate:

Date: 5 January 2009

[2008] FamCA 1154

19 December 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness