DEMYAN & BEATTIE

FAMILY COURT OF AUSTRALIA

DEMYAN & BEATTIE

[2015] FamCA 1054

FAMILY LAW – CHILDREN – Where there have been two previous final hearings in relation to the parties’ only child – Where the father physically assaulted the mother and final orders were made in November 2012 providing for the child to spend supervised time with the father on two occasions each year – Where the father’s application in June 2014 to re-open the parenting proceedings was granted – Where the observations of the Family Consultant reveal the stress that the child is feeling knowing the mother feels sick at the thought of him being with the father and quite possibly having an independent memory of the assault on her – Where the father does not feel contrition over his assault of the mother – Where the father is willing to be deceptive to get what he wants – Where the father is in child support arrears of approximately $30,000 – Where on the evidence, it is concluded that the current arrangements are not promoting the child’s best interests – Where on that basis the relevant contact orders made in November 2012 are discharged, but the provision of gifts, letters and cards and other orders remain in place – Where unless otherwise agreed in writing, the child shall spend no time with the father

FAMILY LAW – PRACTICE & PROCEDURE – Where the mother and Independent Children’s Lawyer sought an order restraining the father from instituting further proceedings – Where the Court does not consider that the father has made any application for any reason other than his wish to spend time with the child and not for an extraneous purpose – Where the Court declined to make such a restraining order – Where it should be said however that the father needs to give careful consideration to making any further applications given the finding that it is in the best interests of the child for time between the child and him to cease

Family Law Act 1975 (Cth), ss 102Q, 102QB

Beattie & Demyan [2012] FamCA 916

APPLICANT:

Mr Demyan

RESPONDENT:

Ms Beattie

INDEPENDENT CHILDREN’S LAWYER:

Fielden & Associates

FILE NUMBER:

NCC

2026

2009

DATE DELIVERED:

27 November 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

24-25 September 2015

REPRESENTATION

APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Fielden & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The Amended Application of the father filed 17 August 2015 is dismissed.
The Amended Response of the mother filed 24 April 2015 is dismissed.
The Orders of this Court made 7 November 2012 are varied as follows:
(a) Order 4 is discharged;
(b) Order 5 (as varied by Orders made 2 May 2013) is discharged.
Unless otherwise agreed in writing, the child shall spend no time with the father.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2026 of 2009

Mr Demyan

Applicant

And

Ms Beattie

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

These are applications in relation to time between the father and the only child of the parties’ relationship, aged six and a half years (“the child”)
The child has lived with the mother all his life.
The parties separated either just before or soon after the birth of the child in 2009.
The mother has at all times alleged that there was family violence during the course of the parties’ relationship.
The first parenting application was made by the father when the child was eight weeks old. Since then, there have been numerous court events including three final hearings.
These reasons relate to the last of those, conducted on 24 and 25 September 2015 and on 7 October 2015 for submissions (“the Third Final hearing”).
The father is the applicant. He is 44 years of age. He lives on a rural acreage owned by him in the Hunter area. He has a disability pension for a lower back injury. He also works part time. There is no reliable evidence about his earnings from that occupation.
The father pays some child support, about $46.00 per fortnight, which is double the statutory minimum.
The father has no other children.
There was little information about his current domestic circumstances. It was not required given that residence is not in dispute.
The mother is the respondent, aged 51 years. The mother lives in the C Town area and provides full time care for the child. She receives Centrelink parenting payments and has some paid employment. She has been undertaking training in aged care.
The mother has been treated for episodic depression and anxiety for several years. Her condition is aggravated by attendances at court.
The mother has three adult sons from a previous relationship who live independently, but maintain family relationships both with her and the child.

Short History of Relevant Events

In December 2006 the parties rekindled a former relationship and began living together on the father’s property. In June 2008 they were married in Country H.
In 2008 the child was conceived. The mother was then 44 years old.
In 2009 the child was born and if the parties had not already separated, they did soon after.
The mother and child moved away from the father’s property. The father has remained living there to date.
On 10 August 2009 the father filed the first application in the proceedings in the Federal Circuit Court, then known as the Federal Magistrates Court.
In November 2009 interim Orders were made for the child to live with the mother and spend time with the father on three occasions per week for a few hours, supervised by the paternal grandmother. The child was seven months old when those Orders were made. The mother did not comply with those Orders.
In January 2010 the father commenced litigation in the Local Court to recover certain chattels he alleged the mother had removed from his property after separation.
In April 2010 there was a multi-party conflict at the home of the maternal grandparents. The father entered the home without prior notice or consent. The police advised the father that there was no order in place authorising him to enter the property. Nevertheless the father arrived at the home with his parents and some other friends. An altercation ensued leaving the father and the maternal grandfather injured. The father was charged with assaulting the maternal grandfather, affray, unlawful entry upon enclosed lands and remaining upon enclosed lands.
On 6 May 2010 interim Orders were made for the child to live with the mother and spend two occasions per week for one hour at a time with the father, subject to supervision by a Family Consultant. The mother was inconsistently compliant and as a result, the Family Consultant declined to continue supervising the visits.
On 3 August 2010 further Orders were made confirming the arrangements ordered on 6 May 2010. Supervision was terminated due to the father’s conduct.
On 30 August 2010 the father was certified as having completed a Parents not Partners program run by Interrelate.[1]
[1] Father’s Affidavit filed 23/06/2014, Annexure E
On 14 September 2010 the father was certified as having completed a Parenting Program for Men run by C Town Family Support Services.[2]
[2] Father’s Affidavit filed 23/06/2014, Annexure D
In October 2010 the mother moved with the child to live with the maternal grandmother.
On 3 November 2010 interim Orders were made for the child to live with the mother and spend time with the father on two occasions each week for several hours at a time, on a gradually increasing basis, supervised by the paternal grandmother. The mother was granted additional time to comply with an order requiring rectification of the details on the child’s birth certificate.
The mother complied with Orders for the child to spend time with the father on two occasions only.
On 13 December 2010 the matter was transferred to this Court.
On 8, 9 and 10 February 2011 there was a hearing (“the First Final hearing”) before his Honour Justice Austin.
On 9 March 2011 final parenting Orders were made as follows (“the March 2011 Orders”):
a)Mother to have sole parental responsibility;
b)Child to live with the mother;
c)Child to spend time with the father in a graduating programme which provided for varying levels of time between the child and the father until his commencement at school, when alternate weekends and half school holidays would commence; and
d)Initially, time was to be supervised by either the paternal grandmother or staff of a particular play centre.
His Honour made findings that the mother had brazenly breached orders in the past.
On 24 March 2011, two weeks after the hearing, the father filed a Contravention Application alleging the mother’s failure to comply with the March 2011 Orders.
On 7 September 2011 the father assaulted the mother at her home in the presence of the child, for which he was later charged and convicted. The father denied the assault and alleged that the mother was lying about the assault in order to disrupt his relationship with the child. He unsuccessfully appealed the conviction.
Over his denials, the father was convicted, sentenced to a good behaviour bond for 18 months and was the subject of an Apprehended Violence Order protecting the mother until its expiry in November 2013.
On 25 October 2011 the mother filed an Initiating Application seeking to suspend all contact with the father. This application was made about six weeks after the assault on her.
On 30 July 2012 the father was certified as completing an Anger Management Program run by Interrelate.[3]
[3] Father’s Affidavit filed 23/06/2014, Annexure C
On 17, 18 and 19 October 2012 there was a second final hearing before his Honour Justice Austin. The father again denied the assault (“the Second Final hearing”).
On 7 November 2012 final Orders were made discharging all prior orders for time and communication between the child and the father. There was provision for two periods of time per year for two hours in a contact centre and for the father to send letters, cards and gifts to the child, around the time of his birthday and Christmas Day. There was a restraint on discussion by the parties with the child of previous episodes of violence.
There was a finding that the father had perpetrated a most serious physical assault on the mother. She was knocked to the ground and the child, whom she was holding at the time, fell from her grip by the force of the attack.
On 28 November 2012 his Honour Justice Austin disqualified himself from hearing any further application.
In March 2013 the father began a Course run by Relationships Australia, “Taking Responsibility - A Course for Men”. He completed the course over five months.
On 6 March 2013 the father filed a Contravention Application.
On 11 April 2013 the Contravention Applications were dismissed and Order 6 of the November 2012 Orders was varied to provide for the mother to acknowledge receipt of letters, cards and gifts forwarded by the father.
On 2 May 2013 DNA testing for the paternity of the child was ordered and a variation was made as to which service (Catholic Care) would supervise the child’s time with the father henceforth.
On 14 May 2013 the child had his first supervised period of time with the father.
On 30 May 2013 the father filed a Contravention Application relating to the child’s name and how he was known in the childcare centre in which he was enrolled.
On 8 August 2013 the father received his certificate for completion of the Relationships Australia “Taking Responsibility” course.[4]
[4] Father’s Affidavit filed 23/06/2014, Annexure A
On 23 August 2013 the father was forceful, if not aggressive, towards Catholic Care in his conversations about supervised time.
On 1 September 2013 the father was stopped by police for speeding and refused to undergo a breath test.
On 14 October 2013 the child had his second supervised visit with the father at Catholic Care.
On 4 December 2013 there is a note from the contact centre of the father’s complaint about how contact reports were being prepared. To some extent, the centre was responsive to including further information as requested by the father.
On 17 December 2013 there was a confirmation from a clinical psychologist that the father had consulted with him about how to make the most of short supervised visits with the child.[5]
[5] Father’s Affidavit filed 23/06/2014, Annexure I
On 22 March 2014 a visit was cancelled by the mother on the day. The father was present for the visit.
On 6 April 2014 the child had his third supervised time with the father occurring in an outdoor area, supervised by a professional service.
On 12 April 2014 the father was stopped by police for speeding.
On 26 May 2014 the father wrote to the Local Court pleading guilty to driving whilst disqualified and seeking lenience. The basis for that request will be considered later in these reasons.
On 23 June 2014 the father filed an Initiating Application seeking orders for equal shared parental responsibility and time with the child on alternate weekends, holidays and at other times.
On 23 September 2014 an Independent Children’s Lawyer was re-appointed. The Court noted that the issue for consideration was whether there had been a change of circumstances sufficient to justify the father’s fresh application. The mother filed a Response opposing re-opening.
On 15 November 2014 the child spent his fourth supervised period of time with the father, supervised by a professional service.
On 20 November 2014 there was a hearing as to whether there were circumstances to justify a re-exploration of parenting matters.
On 21 November 2014 Orders and reasons for judgment were delivered

ex-tempore, permitting a further consideration of parenting orders.
On 4 December 2014 the mother attended upon her GP, Dr I. Dr I noted that the mother had had clinical depression since 2011 and had been taking anti-depressant medication since 2012 and continuing. He noted that the mother’s depression and anxiety had worsened in recent months.
On 23 December 2014 Orders were made for the preparation of a Family Report.
On 14 March 2015 the mother began consulting a psychologist, Dr J.
On 14 March 2015 the child was due to spend his fifth supervised period of time with the father. Two days in advance the father advised that he would be unable to attend due to poor health. The mother alleged during the hearing that the father had in fact been working on that night and there is some evidence to that effect.
On 18 March 2015 the parties attended for interviews with the Family Consultant. The mother and child were seen together; the father was interviewed but was not seen with the child. There have been three prior Family Reports, the last two prepared by the current Family Consultant.
On 26 March 2015 the Family Report was released. The recommendations of the Family Consultant were as follows:[6]
a)“… that the current arrangements for [the child] to spend two hours of supervised time with [the father] each six months be reconsidered by the Court”. The Family Consultant expressed the view that there was no benefit to the child in continuing with that arrangement and that if he was forced to continue it, the mother would likely “experience ongoing stress” with a significant negative impact on her psychological health and functioning, which would negatively impact on her ability to parent the child.
b)That no further applications by the father be allowed for “a very substantive period of time and then only if [the father] is able to demonstrate a significant change in his attitude and behaviour.”[7] This recommendation was also founded in the concern of the Family Consultant about the negative impact on the mother’s psychological health and functioning with a consequential negative impact on her ability to care for the child.
c)That the father pay to the mother all arrears of outstanding child support.
[6] Family Report dated 24/03/2015, par 87
[7] Family Report dated 24/03/2015, par 88
In April 2015 the father made an application for the appointment of a single expert. The mother and Independent Children’s Lawyer opposed that course.
On 24 April 2015, the mother filed an Amended Response changing the orders she sought to cessation of all contact between the child and the father and a restraint on the father from making any further applications.
On 13 May 2015 orders were made dismissing the application for appointment of a single expert and establishing hearing dates in September 2015.
The father appealed against the decision to dismiss his application for the appointment of a single expert. The appeal was unsuccessful.
On 17 August 2015 the father filed an Amended Initiating Application seeking a more modest regime of time for himself with the child, progressing to alternate weekends and school holidays when the child started school. In fact the child had already started school.
In September 2015 the matter came before me for hearing.
The father was self-representing. The mother was represented by solicitor and counsel.

Evidence

The documents relied on in respect of the application were as follows:
a)Amended Application of the father filed 17/08/2015;
b)Amended Response of the mother filed 24/04/2015;
c)Affidavit of the father filed 23/06/2014;
d)Affidavit of the mother filed 19/12/2014; and
e)Family Report dated 24/03/2015.

The Father

The father completed a “Taking Responsibility” course over five months in 2013. Indeed that was the central plank of his successful application to re-open; that he had completed that program, including 17 out of 18 group sessions and 4 out of 4 one-to-one sessions.
The father, it seems to me, had grasped advice by the Independent Children’s Lawyer, given after the Second Final hearing, that he needed to show that he accepted responsibility for the assault on the mother. The father acted on that advice.
The issue became whether or not he had genuinely changed his understanding of his own behaviour or had simply “ticked a box” to achieve his goal.
The father filed a Case Outline[8] in the form of a detailed chronology of events between the commencement of the parties’ cohabitation in 2007 through to August 2015.
[8] Exhibit 1
The significant event missing from that chronology was his assault on the mother in September 2011. It was highly unlikely to have been an oversight. It is consistent with the father minimising the impact of his conduct and maximising the fact of the mother’s history of failing to comply with court orders. Those failures were all highlighted in red in the document. I am confirmed in this view by this entry and comment:
Nov 7^th 2012 received Final orders
Disgraceful decision by J. Austin
The central event which gave rise to those 2012 Orders was the assault.
Cross examination of the father began with the events of September 2011. Under some pressure of the repeated question, “What did you do?”, the father gave evidence for the first time conceding his assault on the mother, “I hit and kicked the mother”. Further detailed information was extracted by questioning.
The father was understandably focused on his strongly held wish to spend increasing amounts of time with the child, eventually on an unsupervised basis.
He did not conceal his disappointment that the Independent Children’s Lawyer ultimately supported discharge of the contact orders. The father apparently mistakenly saw the Independent Children’s Lawyer as his ally, to some extent, rather than as the independent advocate for the child.

I conclude that the father thought that taking the course was a form of threshold task, rather than using information from the course to examine his own conduct and attitude. That is not to say that he learned nothing from the course, he clearly did.
In June 2013, towards the end of the “Taking Responsibility” course, the notes record this comment:[9]
[The father] is travelling OK. He is angry with the system and lives a reasonably reclusive life. He is aware of his triggers and is managing these better […] describes frustrations of men’s rights and feels that women can manipulate the Family Law system. The course has been ‘OK’ and he feels he is not alone …
[9] Exhibit 4 (Tag M7)
However I do not consider that the father feels contrition over his assault of the mother. He did not express any. Rather I am left with the impression that he may still feel justified in his actions by the stubborn refusal of the mother to comply with orders to enable him to see the child. At the very least he feels a sense of unfairness that the mother was not punished for her failures, non-compliance and lying under oath, but he is being punished for his (that is, physical violence and denying and lying about it).
When the Family Consultant explained the impact on the child of the mother’s deteriorating mental health, the father was sceptical both about the effect on the child and the truthfulness of the mother. When asked by the Family Consultant whether he had apologised to the mother for attacking her and lying about it, the father is reported to have appeared shocked:[10]
I have changed, I have a new life, she [the mother] should accept it and move on.
[10] Family Report dated 24/03/2015, par 50
This comment is consistent with my own observation that the father does not understand why the mother’s feelings and beliefs have any bearing on him spending time with the child. The father knows how much he wants a relationship with the child and he knows his own capacity to engage with him in a playful and entertaining way. The answer must seem easy. He does not take into account how affected the child is by the mother’s feelings and ideas. The child described the mother very positively as “the greatest mum I ever had”.[11]
[11] Family Report dated 24/03/2015, par 67
The mother loathes the father, mistrusts all that he says, probably fears him and longs for “peace and respite from the stream of Court appearances”.[12]
[12] Family Report dated 24/03/2015, par 57
The child expressed the view that the father is a bad person He knows that the father hurt the mother, whom he greatly loves, and members of his extended maternal family. The mother is raising the child well, but has not fully concealed her feelings from the child. The father literally makes her sick. The child has seen that. He has become protective of her and blames the father. He has imagined or invented additional crimes that the father has not committed.
Being told by the father, at least while he is still a child, that the father is not as bad as the mother has said will not help him. He already believes that the father is pretending to be nice.[13] He is committed to the mother and her version of events, and in respect of the assault if not everything, the events are demonstrably true.
[13] Family Report dated 24/03/2015, par 73
I accept the evidence of the Family Consultant that in effect the child wants nothing to do with the man who has hurt the mother and that those feelings will only intensify with repeated exposure to the father, no matter how much fun and laughter occurs during visits.

The Mother

The mother apparently dreads the twice yearly contact visits and everything associated with them; travel and preparation of the child, including being in her own terms, falsely positive about the visit for the child’s benefit.
The mother was unpersuaded by the genuineness of the father’s statements and motivation. Unsurprisingly she relied on the fact that the father had assaulted her in September 2011, denied the assault throughout the criminal proceedings and accused her of lying about the assault for reasons related to the child.
The mother’s view was that the father had taken the step of now acknowledging the assault in order to spend time with the child but she also holds the view that the father would, if given the chance, hurt the child in order to further punish her.
The mother had amended her Response after the release of the Family Report in March 2015 in accord with the recommendations to cease all contact.
The mother changed her position back during the course of the hearing from no time to a continuation of current orders; that is two periods of two hours per year or if considered appropriate by the Court, as many as four periods per year.
I give considerable weight to the mother changing her instructions in this way. There was nothing to be gained by doing so.
When asked by me why she had, she said words to this effect:
Because I have that tiny, little bit of hope that he (the father) is becoming a person, not a monster.
This spark of hope in the mother may have arisen from watching a visit on disk of the child laughing and engaging in play with the father during a supervised visit. The change of instructions was announced soon after that evidence however I cannot be certain about that.
I am however certain that this revision of position should not be seized on by the Court as evidence that the mother could easily cope with expanded time arrangements.
I conclude that it was a statement made with the child’s interests in mind, despite the mother’s own fears and beliefs. The mother has stated her belief that the father will harm the child to get back at her. The statement represents, at its highest, a possibility for the future that the mother might support the child, when much older to see the father if he expressed such a wish to her.

Submissions

I was assisted by the cross-examination of the parties by the Independent Children’s Lawyer and by careful submissions given by all parties, including the father.

For the Child

On behalf of the child, it was submitted that the current arrangements are having a negative impact on the child and that continuation of those orders would cause him to become increasingly negative about the father. Further, that the mother, who provides all of the care for the child, is being adversely affected in terms of her mental health.
The child is reported by the Family Consultant as referring to the mother as “getting sick” when he was going to spend time with the father. When asked how the child knew this, he stated, “she tells me over and over … she needs to go to the toilet lots of times … she is sick”.[14]
[14] Family Report dated 24/03/2015, par 67
The effect on the child of the mother’s emotional health being undermined in this way appears to be prompting feelings of anger directed at the father.
It was submitted that the capacity of the mother to meet the needs of the child is potentially at risk. If she is mentally ill (with depression and anxiety) she will be less available to the child and less responsive to his needs.
The Independent Children’s Lawyer supported the cessation of time.

For the Mother

It was submitted that the father has not developed insight into his impact on the mother, although he has developed, through attendance at the course, insight into the child’s need for a decrease in acrimony between his parents. It would be hard to see what would bring that about.
This submission accords with my own view of the father that he has learned that what he did to the mother puts him in the category of a violent, abusive offender. This was a shock to him when he entered the course.
What he does not appear to understand or accept is that the mother’s experience of being the victim of such violence has damaged her emotionally and psychologically. The need for her to reassure the child that he will be safe and to take him for supervised contact visits is stressful and anxiety provoking for her because she does not believe what she says to him.
The mother maintained her position of supporting current or slightly expanded time for the child with the father.
However the mother’s level of fear and opposition to unsupervised time confirms the dismal future prospect of an increasingly oppositional child spending time with the father for a few hours per year for no reason that the child can understand as good.

For the Father

The father did attempt an assessment of himself during submissions which was a combination of self-knowledge and whitewash. He described himself as loud with a bombastic personality, as a leader and therefore assertive, having eccentric dress and “cocky” attitude, but not harmful. He undertook this descriptive exercise to persuade the Court that although objectively people could find him aggressive and overbearing, this was a misunderstanding of his tendency to stand his ground, learnt in his family of origin.
The father apologised in Court for this demeanour.
However those concessions missed the central point. The father is harmful at times. His bark is not worse than his bite. His bite has been lethal. He has attacked and hurt the mother, and previously members of her family. His attack on the mother in 2011 was vicious, planned and vengeful. He was, in his own terms, “teaching her a lesson”. He was oblivious to the presence of the child and continued to deny in this hearing that the child was there. There is a previous finding that he was.[15]
[15]Beattie & Demyan [2012] FamCA 916, par 64
I conclude that the father’s single minded focus during the assault was on the mother and he may simply have failed to see the child during the attack.
There is no reason to doubt the finding of his Honour Justice Austin that the father does not represent a direct risk of physical threat to the child; however the child was affected by the attack on the mother and is reported to have continued to refer to it at pre-school for some time afterwards.
The father’s statements about himself resonated with the mother’s comment in the context of her belief that the father could hurt the child to punish her:
I know him, I’ve lived with him, I know what he has said to me.
The mother made no attempt to introduce what it is that had been said.
Given the evidence, I reject the father’s submission that he is a loud, assertive, eccentric man with no harm in him. At times, there very much has been. Likewise, the same is applicable to his submission that “I’ve expressed nothing but patience and respect for the law.”
When the father became frustrated with the mother’s obstinate failure to comply with court orders, he took the law into his own hands and punished her brutally. He then denied it to escape punishment.
It appears to me that the father has the capacity to be charming and engaging. He is a musician and a business man. He is articulate and thorough. His preparation of this case, including the Case Outline, reflects those skills. He was also shown through the disk in evidence to have been able to organise fun filled and engaging activities for the child but it is the other side of him, the punitive side of him, that the mother has experienced and continues to fear.
In his submissions, the father referred to the mother’s change of position away from cutting off all contact in this way:
The mother accepts I love [the child], she admitted some hope for father not being a monster, the mother changed her mind about me mid-way.
The tone of the father in his last submission was dismissive of the mother. The submission itself was incorrect. In fact, the mother had given evidence as follows during cross examination on behalf of the Independent Children’s Lawyer:
Question: Does he love his son?
Answer:Yes, he’s controlling, he wants to control everything. He wants to hurt [the child] to punish me.
Question:If he was doing that, he wouldn’t love him [the child]?
Answer:He loves the thought of having a son.
Accordingly the mother had not conceded that the father loves the child and was effectively raising the spectre of the father putting up a show in order to achieve his main aim to have contact with the child, ultimately unsupervised and to hurt him in order to further punish her.
It is notable that the father did not acknowledge the mother’s change of position in any positive way. Nor despite the fact that it was raised with him by counsel for the mother, did he see the need for an apology to the mother from him for the assault itself, for denying the assault, for accusing the mother of lying to further her own ends about the assault and being reluctant even in the course of these proceedings to fully acknowledge all that he had done to her.
There is a dishonest and deceptive side to the father exemplified by the matter just referred to and by more than one example of his lying to both the police and to the courts about driving offences. In particular, his letter to the Local Court contained false statements.[16]
[16] Exhibit 7 (letter dated 06/05/2014)
He claimed to have a child in his full time care for whom he was “responsible wholly and solely for his day to day schooling and routine”. This was a lie. He claimed to have 5-8 people he employed and yearly earnings of $90,000 per annum. These assertions were disclaimed in cross examination.
These untruths were airily dismissed by the father as something anyone might say and do to avoid trouble. I regard them as evidence that the father is willing to deceive to get what he wants.

Child Support

I also take into account that the father continues to be in significant arrears of child support. He submitted that he had been frightened by questions asked by me during his cross examination about his failure to adequately contribute to the costs of raising the child. He said this:
I don’t have any idea of the cost of a child. I thought I was scoring points by paying double the assessed amount. My child support contribution will improve from now on.
This submission is unpersuasive.
His Honour Justice Austin referred to this matter in his Reasons for Judgment:[17]
However, something more needs to be said of the father’s irresponsible attitude to the payment of child support. When the last proceedings were determined in March 2011 the father was in arrears with child support payments by an amount in excess of $7,000. He is now in arrears by more than $20,000. He currently pays only $22 per week in child support, which sum is deducted directly from his Centrelink payment. Even though the father owns his own home and two cars he unconvincingly professed an inability to pay any more child support or reduce any of the arrears.
[17]Beattie & Demyan [2012] FamCA 916, par 105
By the date of this hearing, the father was in arrears to the extent of $30,327.14.[18]
[18] Exhibit 12
The father had been squarely put on notice of this issue and this hearing was his opportunity to show the changes he had made in his own thinking. To assert that he had no idea what the cost of a child would be suggests that he has not made his own inquiries, spoken to family members or otherwise tried to find out what the weekly financial burden of raising a child might be.
The evidence tends to suggest that the father has no intention of reducing the arrears and is indifferent to the mother having 100 per cent of the care of the child and all the financial obligation.
I also take into account that the evidence suggested that although the father has sent letters and cards to the child, he has not sent gifts, however at visits at the centre he has provided the child with a great many gifts, some of them quite expensive, which suggests that the gifts are to gratify the father in the pleasure of presenting them rather than providing the mother with money to buy what the child needs.

Conclusion

Taking into account all these matters, I conclude that the mother has struggled to provide the child for supervised time but has done so well enough that after some initial reluctance, the child has been able to enjoy the two hours with the father.
However the observations of the Family Consultant reveal the stress that the child is feeling knowing that the mother feels sick at the thought of him being with the father and quite possibly having an independent memory of the assault in September 2011.
The Family Consultant expressed the view that he had no difficulty accepting that the child could enjoy the time on each occasion, but that it was a negative experience for him and would become increasingly negative.
I take into account the mother’s willingness to step back from her proposal that all time cease if the court considered that the current arrangement or even a little more would be a benefit to the child. However I have come to the conclusion that it would not.
I have concluded that the current arrangements are not promoting the child’s interests and that the evidence in support of the father’s application has not established an understanding and acceptance of his role in the ongoing difficulties which the child is experiencing in his home and in his relationship with the mother around issues involving the father.
On that basis I will discharge the relevant contact orders leaving the provision of gifts, letters and cards and other orders in place.

Application To Restrain Further Applications

There has been a high level of litigation.
If a court is satisfied that a person has frequently instituted or conducted vexatious proceedings in a court, the court may make a set of orders.[19]
[19]Family Law Act 1975 (Cth), s 102Q and 102QB
I was asked by the mother and the Independent Children’s Lawyer to make an order restraining the father from instituting proceedings which would have the effect of requiring leave before an application filed could be served.
Vexatious proceedings are defined as
a)Proceedings that are an abuse of the process of a court or tribunal;
b)Proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment or for another wrongful purpose;
c)Proceedings instituted or pursued in a court or tribunal without reasonable ground; and
d)Proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose.
I do not consider that the father has made any application for any reason other than his wish to spend time with the child and not for an extraneous purpose.
The father has filed applications in August 2009, shortly after separation.
The mother filed an application in October 2011 in order to suspend current orders.
The father has filed contravention applications and this Court has found that the mother did in fact contravene orders.
The father has filed an application to re-open consideration of parenting matters in June 2014 based on his actions in undertaking a particular course which he believed would assist him to achieve that end.
The father also filed in April 2015 an Application in a Case for the appointment of a single expert and when that application failed, appealed against that decision, as was his right.
I do not consider that the applications of the father fall into any of the relevant categories and I decline to make such a restraining order. However it should be said that the father needs to give careful consideration to making any further applications given the finding that it is in the best interests of the child for time between the child and the father to cease.

I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 November 2015.

Associate:

Date: 25 November 2015

[2015] FamCA 1054

27 November 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Jurisdiction

Remedies

Procedural Fairness