DANNETT & SANTIS

[2021] FCCA 1584

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANNETT & SANTIS [2021] FCCA 1584

Catchwords:
FAMILY LAW – Parenting – undefended final hearing – one child, aged 3 years – where the father has disengaged from proceedings – where the mother is primary carer – where the father poses significant risk to the child by way of family violence, drug abuse and unstable mental health – best interests of child for mother to have sole parental responsibility; child to live with mother and spend no time with father – NSW Police respectfully requested to firstly investigate why an AVO was not pursued on behalf of the mother and secondly to consider these reasons in any gun application that the father may apply for in the future.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR DANNETT

Respondent: MS SANTIS

File Number: CRC 346 of 2018

Judgment of: Judge Betts

Hearing date: 29 June 2021

Date of Last Submission: 29 June 2021

Delivered at: Newcastle

Delivered on: 29 June 2021

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Respondent: Byrnes Lawyers

ORDERS

1. The proceedings be determined by way of undefended final hearing today.

2. All previous orders are discharged.

3. The Mother have sole parental responsibility for the child, X born in 2017 (“the child”).

4. The child live with the Mother.

5. The Father spend no time with the child.

6. Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father be restrained from removing or attempting to remove the child from the Mother or from the care of any other person, school or extracurricular organisation which the Mother has placed the child.

7. The Mother is at liberty to provide a copy of these orders to any school, person or organisation to which she has placed the child.

8. That the Mother is authorised to apply to the Registrar, Births Deaths and Marriages for the State of New South Wales to change the name of X Dannett, born in 2017 to X Santis notwithstanding the consent of the Father has not been obtained.

9. The Registrar of Births Deaths and Marriages for the State of New South Wales upon the application of the Mother referred to in Order 8 above is to do all acts and things to register the change of name of X Dannett, born in 2017 to X Santis pursuant to section 28 of the Births Deaths and Marriages Registration Act 1995 (NSW) notwithstanding the consent of the Father has not been obtained.

10. Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Mother is authorised to apply for and retain a passport for the child without the Father’s written consent or approval and without him having to sign any documents.

11. Pursuant to section 65Y of the Family Law Act, the Mother is at liberty to travel outside of the Commonwealth of Australia with the child whether or not the Father has consented to any such travel.

12. The Registrar of the Federal Circuit Court, Newcastle Registry, is to provide a copy of these orders and reasons for judgment to the NSW Police and the Department of Communities and Justice, NSW.

13. The matter be removed from the list of Active Pending Cases.

THE COURT NOTES THAT:

A.The Court is concerned as to why the Mother’s application for an Apprehended Domestic Violence Order was not pursued by the NSW Police and specifically requests that the Commissioner of the NSW Police investigate the matter having regard to the reasons for judgment.

B.The Court expresses its very serious concerns about the Father possibly applying for a gun licence in the future and asks that the NSW Commissioner of Police to consider these reasons in the context of any such application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

CRC 346 of 2018

MR DANNETT

Applicant

And

MS SANTIS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript in order to make them easier to read.

Background:

1. These are parenting proceedings in relation to a young and vulnerable child, X born in 2017. 

2. X is the daughter of the applicant father Mr Dannett and the respondent mother Ms Santis.  The parties were in a de facto relationship between 2016 and Christmas Eve 2017, approximately 17 months in total.  When the parties separated X was only a baby.

3. The proceedings come before me today by way of undefended final hearing.  The father initially commenced these proceedings on 27 September 2018 seeking to be able to spend time with X.  However, he has since disengaged from the process, which is probably understandable given the enormous weight of evidence against him in terms of family violence and risk issues. 

Procedural history:

1. By way of brief procedural history, on 18 February 2019 (the first return date), her Honour Judge Costigan put in place in order for the father to spend time with X for two hours per fortnight supervised by B Contact Centre, Town C. 

2. The matter was subsequently allocated to my docket, and I listed the matter for an interim defended hearing on 9 March 2020.  On that date, when the matter came before me I made a specific order for a Family Report and otherwise adjourned the interim applications to 27 November 2020.

3. The Family Report raised alarming issues concerning the father as a parent - specifically in relation to family violence, mental health, and drug issues.  The report raised issues of such concern that, rather than releasing it in the usual way, I specifically had the matter called back on for a directions hearing on 16 October 2020 so that the Family Report could be released in open court. 

4. On that day I made a specific order that:

   Pursuant to section 68B of the Family Law Act that the father be restrained from applying for or continuing any current application for a gun licence.

5. I also ordered that the legal representatives were to jointly forward a copy of my order to the relevant New South Wales government department responsible for processing applications for firearm licences in New South Wales.  (By way of postscript, that order was complied with; the mother’s solicitor Mr Byrnes concedes that the father has not gone on to apply for or obtain the gun licence so far as his client is aware.)

6. On 16 October 2020 I also ordered that the proceedings remained listed for interim hearing on 27 November 2020 at 9.30 am. 

7. Regrettably, on the interim hearing date I was unavailable to hear the matter.  However, her Honour Judge Terry kindly heard the matter in my absence.  Having heard submissions from the legal representatives of each party, her Honour discharged the previous interim orders for supervised time between the father and X.  The matter was otherwise adjourned to a date and time to be advised for final hearing before me.

8. Subsequently on 7 December 2020 the court issued trial directions wherein the proceedings were listed for a 2 ½ day hearing commencing on 14 July 2021 at Wauchope.  Specific trial directions were made, which amongst other things required that parties file and serve trial material by 14 June 2021. 

9. On 26 April 2021 his solicitors filed a Notice of Withdrawal. 

10. As at 14 June 2021 the father had failed to file any trial material.

11. In the circumstances the matter was re-listed on 17 June 2021. 

12. The father was well aware of the listing on 17 June 2021.  He had been emailed by my associate in advance of that hearing.  He had also been emailed by the mother’s solicitor Mr Byrnes. 

13. But on 17 June 2021, only Mr Byrnes appeared.  The father did not appear.  I listed the proceedings for possible undefended hearing at 12.30 pm today (29 June 2021) noting the father’s non-filing of material and that his solicitors had withdrawn.  I specifically gave the father the opportunity to participate in the litigation and to avoid an undefended final hearing. 

14. In particular, I extended the time for the father to file and serve his trial material to 22 June 2021.  But I specifically ordered that he was to attend court personally today to explain his previous failure to file material on time, and to explain his non-attendance on 17 June 2021.

15. The father did not file any trial material. 

16. He is aware of today’s Court event – Mr Byrnes having emailed him and sent him a letter by registered post.  He has not attended court.

17. The father has clearly chosen to disengage from the proceedings, which is entirely a matter for him.  However, I see no good purpose in continuing to have the matter listed for a final hearing in circumstances where the father has disengaged. 

18. I proposed to proceed to deal with the matter on an undefended final basis today. 

Material before me:

1. In terms of the material relied upon, Mr Byrnes has helpfully taken me to his client’s Response originally filed on 6 February 2019 at a time when the mother was represented by a different law firm, the mother’s affidavit of 11 June 2021, and the Family Report of 2 October 2020.  I have had regard to those documents as well as to the previous orders made in the proceedings to which I have earlier referred.

2. I have also had regard to Mr Byrnes’ submissions. 

3. In the course of the hearing Mr Byrnes made some oral applications, which are additional to the orders sought in the mother’s Response and I will address those a little later. 

Chronology:

1. Turning then to the history of the relationship, I firstly note that the mother’s evidence is unchallenged. 

2. Sadly, this is one of those cases in which the court is confronting the ugly phenomenon of family violence.

3. The mother’s unchallenged evidence is that during the period that she was living with the father, that he began engaging in controlling behaviour from an early stage.  He would time how long it took her to get home from work and question her if it took longer than expected.  He kept tabs on her movements and questioned where she had been.  She told the Family Report writer that he checked her odometer to see how far she had travelled. 

4. Perhaps unsurprisingly, she deposes that such behaviour made her feel uncomfortable.

5. In terms of the relationship dynamics, all of the classic elements of control and coercion were there.  These are the sorts of coercive and controlling behaviours that the court has seen many times before. 

6. I should also add here that the father did admit to the mother early on in the relationship that he used to have problems with respect to his use of, “crack” for which he said he had had to go to rehab.  The mother was unaware at the time, but it also became apparent that the father was a very heavy cannabis user. 

7. The father was using cannabis very frequently and was often depressed and at times volatile.  When the mother told him she wanted to leave in July 2017 he said: “I will kill you before I kill myself”.  

8. When she spoke to his parents about leaving the father they told her: “If you leave Mr Dannett he will commit suicide”. 

9. These sorts of comments empowered and enabled their son (the father) to behave in a coercive and controlling manner, leaving the mother pregnant and feeling trapped.

10. The impact on the mother of such statements should not be underestimated, particularly in circumstances where the father had told her previously about suffering from depression and having tried to kill himself.  This included by way of overdosing. 

11. Early on in the relationship the mother had an incident when a male friend had invited the two of them out for dinner.  In response to which the father accused her of “fucking” this other man. 

12. They had an argument in the car.  The mother attempted to get out.  The father grabbed her and would not let go, and then drove off while holding her telling her: “You are not going anywhere without me.  You will probably just find that bloke and fuck him”.  He pulled the car over and released her.  He then got out of the car, walked to some nearby roller doors, and punched them repeatedly until his fists bled.  He said to her: “Is this what you want me to do?” and “I will walk out in front of a truck”. 

13. Again, these comments need to be looked at in overall context that it was just more coercion and control of the mother, who was trapped. 

14. On other occasions the father threatened to kill both of them saying: “I will kill us both.  I will drive off the road and hit a fucking tree”.  He would on other occasions angrily abuse her by calling her a “fucking cunt” or a “fucking bitch”. 

15. On one occasion when the mother was feeding their puppy, the dog jumped onto her and the father then punched it in the face.  The mother cried and begged him not to do it, to which he responded: “You’re a fucking idiot, it’s just a dog”.  This callous violent behaviour should not be underestimated.  It needs to be looked at in the context of the father’s other violent behaviours.  Abuse of animals is another classic example of coercive and controlling family violence. 

16. When the mother complained about the father’s daily cannabis use he threw away his bong at her request but blamed her for it – telling her “For fucks sake I hope you’re fucking happy”.  He did not take responsibility for his own actions and, again, was acting in a coercive or controlling manner by suggesting to the mother that it was all her problem, not his.  Of course, the opposite was true. 

17. The mother got a job for the father working as a tradesman for the maternal grandfather.  But her evidence is that the father would not go to work unless she put his work clothes at the end of the bed each day, made him a fresh lunch, cooked him breakfast, and even warmed his car up in the morning.

18. I record here that at that time, the mother was both pregnant and working full-time.  The father’s behaviour was consistent with a misogynistic attitude on his part and, again, emphasis should be made on the power imbalance in this relationship. 

19. Before the child X was born, the father woke up one morning, said he did not feel like working and that, “I just cannot do it anymore.  I want to shoot myself.  Everything is so hard.  I’m not ready to be a dad.” 

20. Following this event, the mother rang the paternal grandparents and the father ended up being seen by a counsellor at Town D Hospital. 

21. The mother is concerned that around this time, the father started using ice, as his sister and her partner were using ice and the father started regularly visiting them, and she noticed changes in his behaviour afterwards.  He may or may not have been using ice, but it was reasonable for the mother to have those fears given his other behaviours.

22. The mother also accuses the father of pestering her for sex to the point where she would become upset and tearful, but that he would continue to persevere and to pursue sex even if she was reluctant and crying. 

23. After the child was born by way of caesarean, the mother gives unchallenged evidence that the father told her he was “busting for a bong”. 

24. The mother provided practically all of the care for X. The father did not get up to feed her; the mother essentially made sleeping arrangements in such a way as to try to avoid waking him up.

25. The father did what he wanted in terms of caring for X, which was not very much.  He effectively left it all to the mother to do.

26. The father soon pressured her for sex again when she came home and when she declined, he told her, “All you care about is fucking X.  I never come first anymore” - before proceeding to punch two holes in the wall.  Again, he laid a “guilt trip” on the mother consistent with the sort of coercive, controlling violence that is toxic to relationships, toxic to victims, and toxic to the parenting of children. 

27. Eventually, the mother ended up moving out on 23 December 2017. 

28. The father’s violence and inappropriate behaviour continued.  He sent her a message at 4.39 am on 24 December 2017, saying:

    Man, shit gonna hit the fan, Ms Santis x

29. The next day, Christmas Eve, the mother returned to the home to pick up some belongings and had a conversation with the father as follows:

    Father: “What the fuck are you doing here?”

    Mother:“I’m just picking up things.

    Father:“Well, you can get the fuck out.  You’re not living here anymore.

    Mother:“What about X?”

    Father:“Not my fucking problem.”

30. The mother says she turned away and walked towards the kitchen and the father followed her, yelling: “No, you’re not fucking leaving.  I will kill you and myself before I let you go.”  He then grabbed her wrists and pushed her hard into the fridge, picking up her keys and saying: “Good luck leaving now, cunt.  I have got your keys.” 

31. The mother shut herself in X’s room, pushed things up against the door to stop him coming in, and telephoned the paternal grandfather.  He soon arrived, taking the keys off the father and giving them to the mother, after which he left the property. 

32. On Christmas Day 2017, the mother took X to the paternal grandparents’ home for lunch which, in my view, was an act of goodwill. 

33. In January of 2018, the father was seeing X at the paternal grandparents’ home as arranged by the mother.  He was pressuring the mother to come home with him.  She was vacillating and he again threatened to kill her if she did not come home, saying: “I will kill you if you don’t come home.  I’m just not ready to be a dad.  You’re a fucking idiot for leaving me.  I will ruin your life.”

34. When she said she moving to Town E to stay with her brother, he said, “No, you’re not.  It doesn’t matter where you go.  I will find you and make you come home.”  The mother took the child and left and did, in fact, move to Town E to live with her brother. 

35. The father continued texting the mother in a threatening manner, telling her on 5 January 2018 by text that he was not normal like every other person and that was why he had turned to drugs as no one had a clue what he had been through, and also telling her:

    I’m going to kill some cunt here, hey.  I want to leave so bad.

36. He later apologised to the mother on 11 February 2018 by text, saying:

    Ms Santis, I’m sorry for everything I have put you through.  I hope we can be friends one day.  Till then, you won’t hear from me.  Goodbye, my sweet pea.

37. Presumably this was an act of remorse on his behalf and, again, not an uncommon phenomenon in the context of violent relationships. 

38. That remorse was short-lived however.  By the very next day, the father was messaging the mother, incessantly sending her 22 texts in a row without a reply.  One of the messages read:

    We never had nor will we have a Christmas or birthdays together with X, which sucks.  So many things suck AND IT WAS ALL BECAUSE I WAS SMOKING BONG THAT IT WENT DOWNHILL FROM THERE.  I UNDERSTAND THAT NOW.  But I don’t think I was doing harm. I did not think you would leave over me smoking bongs.  Wow, was I wrong.

39. On 25 February 2018, the father had a Facebook exchange with one of the mother’s friends.  When she asked him how he was, he told her:

    Still looking for a gun ha. Truth, I’m a fucking mess.   

40. The following day the father put up a number of X’s items for sale on “Buy, Swap & Sell”. 

41. On 26 February 2018, the father texted the mother, saying, “Goodbye”, saying that he had “screwed up” and sending her photos of herself and X. 

42. In a Facebook exchange with a friend, the father also said:

    That’s good, mate.  Seriously, if I had a gun, I would shoot myself.

43. The mother tried to organise some mediation with B Contact Centre.  The father did not attend.  He subsequently bombarded the mother with text messages, including at 1.04 am on 11 March 2018, saying:

    Fucking goodbye, Ms Santis.  I don’t ever want to see or hear from you again.  You deserve everything you get, just like I have been.  I hope my daughter and I won’t let her do nor be like you.

44. In another message he said:

    I will fuck you back, baby.

45. For reasons which entirely escape me and which I respectfully request be investigated by the NSW Commissioner of Police, the mother’s evidence is that the Police did not wish to make any application for an AVO despite the mother attending upon them to seek one.  The mother’s evidence is that Police told her that they would simply speak to the father and tell him to leave her alone.  She says she contacted three different Police stations about getting an AVO and that on each occasion she was told that they would speak to him.

1. I am giving these reasons in somewhat longer form that I might usually do for an undefended hearing because I consider this a serious matter and I do hope that the Commissioner will make such further investigations as he/she considers appropriate about this aspect. 

2. The mother subsequently re-partnered with her current partner, Mr F.  The father sent text messages to Mr F’s ex-partner (or ex-wife) Ms G, referring to Mr F and the mother as “them cunts” and “dogs”.

3. He went on in June 2018 to send the mother abusive messages, labelling her a nasty person, a cheater, a liar, saying that she and Mr F deserve each other, wrecking two families and the like.  He also sent a text message to Ms G in which he seems to have formed the view that the mother and Mr F in some way conspired together to form a relationship at the same time around late 2018.

4. According to the mother’s evidence, she says that on 19 May 2018 the father and Ms G had a Facebook exchange in which Ms G advised him that Mr F had left her in November, to which the father posted in response:

   Man, so did Ms Santis.  Fuck, I’m going to kill that cunt.  How long you know for?

5. The next day, the father sent a text message to one of the mother’s friends to say that Mr F and Ms Santis:

   …can get fucked.  Why haven’t I seen my daughter.  I’m the bad cunt.  It’s all my fault.  But, hey, Ms Santis and him been chatting up since Christmas.  She left me for him and Ms Santis is fucked.  I want a DNA.

6. The father subsequently commenced the court proceedings to which I have referred on 27 September 2018. 

7. The mother was fearful of what the father might do. 

8. The father was unrepentant in relation to his family violence.  At the Child Dispute Conference on 8 May 2019, the father told the Family Consultant that “until she proves [the violence] with bruises or videos, she has nothing”. 

9. The father was spending supervised time with X at B Contact Centre.  This was suspended for a period, as a result of the COVID-19 outbreak in 2020. 

10. As indicated earlier, the court released the Family Report on 16 October 2020.  That Family Report makes for disturbing reading in a number of respects:

    (a)The father had attended the family interview with his now partner, Ms H, who had never met X.  He did so contrary to the Family Report writer’s instruction and in circumstances where, clearly, this was not an appropriate circumstance for young X to be meeting his new partner;

    (b)The Family Report writer observed that although the father was not directly hostile at the interview:

    He was avoidant and defensive throughout the family interview, offering limited or inaccurate answers until challenged.  He was often argumentative and frequently provided contradicting information.

    (c)The father denied all allegations of family violence, instead describing the mother as very, very controlling, which beggars belief on the evidence before me;

    (d)The father denied that he was harassing the mother through telephone calls, saying his only objective was to see his daughter.  No doubt, this was one objective.  But, certainly, the messages I have seen and referred to in these reasons constitute abuse, intimidation and harassment.  The father shows a distinct lack of insight in saying to the Report writer that his only objective was to see his daughter;

    (e)The father also said that he had undertaken parenting courses, but when asked what he had learned from them, he did not have much to offer;

    (f)The father denied family violence.  He denied having a criminal history.  Ironically, the father had been the defendant or respondent to a previous AVO involving a prior partner, but he claimed to have forgotten about that, saying that, “Most people don’t remember things that long ago.” 

    Yet it was only some six (6) or seven (7) years prior;

    (g)Concerningly, the father told the Family Report writer that he did not hold a gun licence but was currently in the process of obtaining one.  He said that before applying, he was required to wait for a period of six (6) or eight (8) years after the previous AVO expired.  He said he had not held a licence before, and that as part of his licence application he was searching for a gun club to join; 

    He was not sure which gun club he would join.  He was unable to provide a reason as to why he was seeking to obtain a gun licence, except to say that his own father had property, and he could shoot there.  But he admitted he had never previously engaged in shooting as a pastime. 

    The Family Report writer observed:

    Given the history of threats the father has made to his own safety and the safety of others by using a gun, this Family Consultant holds significant concern, should the father’s application for the gun licence be approved.  Particularly, if the outcome of the current litigation does not produce a favourable outcome for the father.

    I echo those concerns, and I intend to specifically note in these orders that I consider that the NSW Commissioner of Police should be extremely careful before approving a gun licence for the father in this case.

11. When interviewed for the Family Report, the mother presented in a dramatic way.  She appeared to be quite distressed when talking about past events, which is consistent with her affidavit, in which she deposes to being extremely concerned about the father’s mental health, his drug use, and his prior violence.  She did not (and does not) want the father to know where she lives or works.  She is extremely anxious about the possibility that she might bump into him, when she travels back to the Town J area to see her family, some one and a half hours away.

12. She said that when she goes to Town J (where the father still lives), she does not even stop for petrol at Town K, and she makes sure that X has gone to the toilet and had sufficient food, so that she does not ever have to stop there. 

13. She says she is extremely anxious.  She has suffered panic attacks, flashbacks of her relationship with the father, interrupted sleep, and even nightmares.  She has seen a psychologist who has diagnosed her as suffering post-traumatic stress disorder and anxiety.

14. Understandably, the impact on the mother’s functioning, on a personal level, is somewhat dramatic. 

15. When talking to the Family Report writer, she quickly became overwhelmed.  Her breathing was observably rapid, she became shaky and on the verge of tears, before apologising and composing herself. 

16. Notably, the Family Report writer said that the mother presented as a concerned parent, who wanted what was best and safe for X. 

17. The father attempted to mislead or whitewash his past history, in terms of mental health and, particularly suicidality. Having denied to the Family Report writer any previous threats of self-harm, or any previous violence, the Report writer was able to clearly contradict him, by reference to subpoenaed material. 

18. On 2 January 2014, New South Wales police subpoenaed records show that he had been charged with two counts of common assault, where he physically assaulted his ex-partner and her male companion.  On 23 January 2014, he breached the condition of the AVO protecting her. 

19. Police records also indicated that, on 11 June 2013, he had sent his ex-girlfriend a text with a photo of a rope around a rafter, and a message, quote:

    You will be in more pain than me.  Bye, you want me gone.  I’m going.  I hate you.  You was my world. 

    The Family Report writer rightly observes that these messages are similar in nature to the messages the father has sent the mother in this case.

20. Subpoenaed Police records note that, in March 2018, the mother had complained about the number of messages the father had sent to her, more than sixty (60) in total.  Police noted that the father appeared to be under the influence of alcohol or drugs at the time of the messages, as the writing quality could be seen to decline rapidly.  Police noted that the messages were not threatening, but contained themes of blaming the mother for the relationship breakup - but that as the father had not made a clear threat to the mother, Police considered that they were not at liberty to act.

21. I again reiterate my surprise at the seemingly very narrow interpretation of “family violence” taken by the relevant Police officers.  Family violence is much wider than simply direct threats to harm.  And, in my view, the father’s conduct, in all likelihood, does constitute “family violence”. 

22. In relation to the medical records, the Family Report writer observed that, despite his emphatic denial of being treated for suicidal ideation:

    ·    the father had been to Town L Emergency Department on 11 June 2013 after Police took him there following a suicide threat;

    ·    he had subsequently been placed onto a mental health plan;

    ·    he was admitted to Town D Hospital on 13 May 2014, in relation to a “situational crisis”, in which he threatened to hang himself after separating from his then girlfriend in 2014 and, subsequently, assaulting both her and her new partner.  The paternal grandparents brought him in to hospital, having observed him to be displaying distressed and bizarre behaviour following a three (3) day alcohol and cannabis binge.

    (I should record here that the mother also complains that the father abused alcohol during their relationship.)

    ·    On 12 June 2017, the father attended upon Town D Hospital, with anxiety, palpitations, poor sleep and vomiting most mornings and, “just over feeling like this”.  Although he denied depression, he admitted thoughts of deliberate self-harm, wanting to shoot himself, but denied wanting to act on those thoughts.  The discharge notes of the hospital recommended a psychiatric review.  It seems that this occurred, but that there was no evidence of a psychotic illness, according to the notes of 15 August 2017.

23. In terms of Police records, the father had been charged with two counts of common assault, in relation to that ex-partner and her male companion, as I have earlier indicated. 

24. The Family Report was released after the father’s supervised time at B Contact Centre had resumed.  Following its release, the mother - sensibly in my view - decided not to send X to the contact centre anymore, given the very serious allegations that had been raised.

25. Her decision not to send the child to the contact centre was, effectively, vindicated by her Honour Judge Terry’s orders, made on 27 November 2020.  And the rest has already been set out by me.  Namely, the father has disengaged from the proceedings, has not spent any time with his daughter, and the status of his mental health and his drug abuse remain unknown. 

26. I should also add that, although he is in a new relationship, I have no real evidence about the dynamics of that relationship.  But, having regard to his previous relationship history, it would be likely, if not probable, that his new partner may potentially be at risk of harm, or actually experiencing physical harm or violence, from the father. This is an unknown. 

27. In terms of his cannabis use, I should also record that, in August 2017, medical records show the father reporting the consumption of some 25 cannabis cones a week.  Other records show him using cannabis daily, and there is also past methamphetamine use, which is consistent with the mother’s fears during the relationship. 

Applying the law:

1. I have to make a decision which is in the best interests of X. I am well familiar with the relevant best interests considerations set out in section 60CC of the Family Law Act.

2. I do not propose to labour them.  It should be obvious enough, from the reasons so far, that this case overwhelmingly concerns the risk to the child in having a relationship with the father. 

3. The risks are multi-faceted.  They involve the impact on the child, of having grown up or lived for a short period, in a household of fear, when the parties were cohabiting.  Hopefully though, X would have no recollection of that at all, given her young age. 

4. Perhaps more significantly, then, is the fact that the mother is effectively living in hiding, as it were.  She does not want the father to know where she lives.  The mother experiences quite profound anxiety and even post-traumatic stress disorder. 

5. This child has, accordingly, been directly impacted by the father’s perpetration of violence against the mother, in a way that has significantly impacted the mother, but may well have a flow-on profound impact on the child.  She may already have suffered a form of harm that will only come more fully to light as time goes on. 

6. The impact of family violence on children has not always been fully appreciated, and there is always a risk that courts and other well-intentioned professionals take the view that, if the child was not directly exposed to family violence, or did not otherwise directly witness family violence, that maybe the child has not suffered any harm.

7. This is a view which is, with respect, overly simplistic.  Children experience harm as a result of living in a household with a parent who is fearful of the other parent, and having to transition to that other parent, in circumstances where the victim parent is living in fear.  The impact on a child of this sort lifestyle is hard to fathom, and may only become apparent with the fullness of time. 

8. It suffices to say that the father shows absolutely no insight into the effect of his behaviours, that his own parents provide a “rose coloured glasses” account of his own behaviour, such that the Family Report writer is concerned that their capacity to protect the child is lacking.

9. I echo those concerns, and I am firmly of the view in this case that there is no benefit, or no net benefit, to this young girl in having a relationship with her father. 

10. I see her father as significantly detracting from X’s wellbeing.  He has very little to offer her of a positive parenting nature.  He has had almost no involvement in the hard work of parenting her - although I give him credit, in terms of having consistently attended the contact centre when he had the benefit of interim supervised time orders. 

11. Although his interactions with the child do not raise a concern at the contact centre, this is but one indicator of the risks that he poses.  It is an entirely supervised and safe setting, and it is not a realistic or long-term environment.  If he wants to play a role in the child’s life the father needs to seriously own up to his family violence, to acknowledge its impact on the mother and on the child, and to take steps to remedy his behaviours and attitudes.  This is something that cannot necessarily be achieved by proffering a certificate of completion of a family violence course, although it would be most helpful, one would think, if the father were to take some steps in that direction.

12. What is important is to see behavioural change and, at this stage, all of the evidence points squarely in the opposite direction.  There are unacceptable levels of risk to this child, associated with the father’s family violence behaviours.  Particularly, his coercive and controlling behaviours, but also his suicidality and seeming denial of mental health issues, and his significant illicit drug use. 

13. At this time he is not a parent who should have any form of relationship with X on the evidence before me.  Moreover, even if the father were to address his manifest parenting deficits, it would be no easy road for him to have a relationship with the child that would be of benefit to the child.  That is because the mother suffers from significant anxiety as a direct result of the father’s past behaviours.  It may be the case that even if the father did address his issues - which he is a long way from doing on the evidence before me - that it still would not be in the best interests of X to have a relationship with him.  It is generally not good for children to have to live with a primary caregiver who lives in fear.  There is much to be said for the child having the opportunity to live in a household in which that fear is minimised so that she can have as normal a childhood as possible - albeit without her father involved. 

14. The child is not missing the father.  If she has any affection for him I have to weight that up against the risks that he poses to her.  She is far too young to make decisions about what is best for her.  It is up to the parents and failing their agreement, this court to make those decisions.

15. I am gravely concerned about all of these risk factors concerning the father.  And I am of the view that the only appropriate order is a “no time” order as sought by the mother’s legal representatives. 

16. In the course of the hearing, Mr Byrnes made some other oral applications effectively at my invitation. The first was that the father be restrained from removing or attempting to remove the child from the mother or from any school or extra-curricular care activity provider or other person with whom the mother has placed the child. There is no evidence that the father has made any specific threat to do these things but given his past history of threats and given the very serious risks that he poses to the child at this time, I consider such an order to be “appropriate” for the protection of the child in the context of section 68B of the Family Law Act.

17. Moreover, it makes sense to accede to an oral application that the mother be at liberty to provide copies of these orders to any school or any other organisation or person with whom the mother places the child - so that that person or organisation is aware of this restraint and can act appropriately protectively. 

18. The mother orally applies to be able to obtain a passport without needing the father’s signature and to be able to travel overseas with X without his consent.  These two orders will avoid the risk of future litigation.  I see no reason not to make these orders in circumstances where the father is not playing a role in the child’s life.  I do not want to give him the opportunity to potentially spoil an overseas trip if the mother and child decide to go overseas on some future occasion - if and when the borders of this country eventually re-open. 

19. I am also asked by way of oral application to make an order that the mother be at liberty to change the child’s surname from Dannett to Santis.  The mother’s evidence about this is that at the present time it is a little confusing for X being known by the surname Dannett while she is aware that the mother’s surname is Santis.  All of her other maternal family members are also known by the name Santis. 

20. The mother, in my view, ought to have sole parental responsibility by reason of:

    ·    The father’s family violence perpetrated towards her;

    ·    The impracticability and unreasonableness of expecting the mother to have to communicate with the father about major long term decisions concerning X. 

21. Such a proposition is preposterous on the evidence before me.  The mother should have sole parental responsibility. 

22. Sole parental responsibility vests the mother - at least in terms of the Family Law Act - with the power to change the child’s name as the child’s name is a major long-term issue as defined in section 4 of the Act.

23. However, as I understand the practice of the New South Wales Registry of Births Deaths & Marriages, such an order is not of itself sufficient to register a change to the child’s Birth Certificate. I am unsure why that is, particularly given that Federal law should take precedence over State law to the extent of any inconsistency having regard to section 109 of the Constitution. But in any event, that is not a matter I need to trouble myself about today.

24. I merely record that in my view there is no reason at law why, with the benefit of an order for sole parental responsibility, the mother should not be able to change the child’s name.  I do not know why a specific further order should be required.  However, out of an abundance of caution and given that it seems to be necessary, I will additionally order that the mother be at liberty to apply for a change to the child’s name without the father consenting to it or signing any forms pursuant to the relevant NSW legislation. 

1. In my view, it is in the child’s best interests to have the same surname as her mother to avoid confusion for her but also to cement her emotional stability as part of the maternal family where she is well and truly ensconced and to avoid further problems for her down the track.

2. While X has a father and, no doubt, there will need to be explanations given to her when she gets older about why her father is not playing a part in her life, I see no logical reason in her having to retain a surname that would carry little or no meaning for her - perhaps beyond causing her a sense of pain as she gets older that she does not have her father in her life.  I do not consider she should have to carry his surname in circumstances where the father is not going to play any role in the child’s life, at least at this time.

3. In my view, the overall balance of best interests consideration favour a change of name at this stage while the child is still young.  There seems no real benefit to the child in maintaining a paternal surname in circumstances where she does not have any real relationship anymore with the paternal family.

4. I am going to otherwise discharge all previous interim orders in the proceedings. 

Conclusion:

1. For the reasons given, I make the orders set out at the commencement hereof.

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate: 

Date: 13 July 2021