DENTON & ZEI

[2018] FamCA 1123

FAMILY COURT OF AUSTRALIA

DENTON & ZEI [2018] FamCA 1123

FAMILY LAW – CHILDREN – Parental Responsibility – where the father seeks equal shared parental responsibility and graduating time arrangements with the child – where the child is six years old – where the father has not seen the child in almost three years – where the father has previously pled guilty to criminal offences – where the father has exhibited problematic personality traits – where the father has not taken the necessary steps to address these problems – where there is a high level of hostility and conflict between the parents – Order for mother to has sole parental responsibility – Order for the father to have no time with the child.

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Denton

RESPONDENT: Ms Zei

INDEPENDENT CHILDREN’S LAWYER: Macgregor, Barristers and Solicitors

FILE NUMBER: MLC 7705 of 2015

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 17, 18 and 20 September 2018

REPRESENTATION

THE APPLICANT: Mr Denton appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Cash

SOLICITOR FOR THE RESPONDENT: Thelma Palbas & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor, Barristers and Solicitors

Orders

1. All existing orders in relation to the child X born on … 2012 ("the child") are discharged.

2. The mother has sole parental responsibility for the child.

3. The child live with the mother.

4. The Registry Manager of the Family Court of Australia and/or the Federal Court of Australia at Melbourne is directed to hand the Australian passport of the child to the mother.

5. Any order or orders by which the name of the child is placed or remains on the Airport Watch List are discharged.

6. The mother is authorised to do all things and execute all documents necessary to ensure that the child holds a current Australian passport at all times.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Denton & Zei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 7705 of 2015

Mr Denton

Applicant

And

Ms Zei

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

The proceedings

1. Mr Denton and Ms Zei are the parents of a child, X ("the child"), who was born in 2012 and is currently six years of age.  These proceedings concerned parenting orders in relation to the child.  The principal issues were as follows:

   1.whether the parties should have equal shared parental responsibility or whether the mother should have sole parental responsibility for the child

   2.whether the child should spend any time with the father and, if so, under what conditions

   3.whether the mother should be authorised to obtain a passport for the child and travel to overseas with her without the consent of the father.

2. The applicant father proposed that the child spend time with him for unspecified periods and initially under professional supervision.  On 10 September 2018 the father submitted a Minute of Orders which he sought as follows:

   1.Supervised contact via private family contact services [Ms B] family contact services point cook for re-introduction of father to [X]

   2.Negotiate child arrangements by letter, email, text message and or communicate with [the mother] in regards to supervised contact or family contact service

   3.Request both parties Participate in counselling via court ordered service, to both parents

   4.        Agreed cost of education [X]

   (As per the original)

   The father adduced no evidence from the proposed supervisor Ms B.

3. In cross-examination by counsel for the Independent Children's Lawyer ("the ICL"), the father stated that he sought an order that the parties have equal shared parental responsibility.  He gave as his reason "my daughter needs an education."  The father said "I am not disputing residence."

4. By an Amended Response to Initiating Application filed on 25 June 2018, the mother sought the following orders:

   1.THAT the mother have sole parental responsibility for
   X ('the child') born … 2012.

   2.        THAT [the child] live with the mother.

   3.        THAT [the child's] Passport be returned to the mother.

   4.        THAT [the child's] name be taken off the Airport Watch List.

5. At the conclusion of the trial, counsel for the ICL submitted a Minute of Proposed Orders in the following terms:

   1.That the mother have sole parental responsibility for the child [X] born … 2012.

   2.        That [the child] live with her mother.

   3.That the Airport Watchlist Order be discharged and the Registrar of this Honourable Court is requested to do all things necessary to advise the Australian Federal Police that the child's name is to be removed from the Airport Watchlist.

   4.That the father spend no time and have no communication with the child.

   5.That the mother be restrained from discussing these proceedings or denigrating the father to the child or within her presence or hearing, or allowing the child to remain in the presence or hearing of any other person who is discussing these proceedings or denigrating the father.

   6.That the mother be at liberty to obtain, renew or otherwise keep current an Australian passport for the child without any requirement to obtain the father's consent.

   7.        Usual 65DA(2) and 62B orders.

   8.        That the appointment of the ICL be discharged.

   9.That all extant applications be dismissed and this matter be removed from the pending cases list.

Background

1. The mother and the father, who are aged 42 and 40 respectively, met on a dating website in 2010 and married in 2011.  They separated on 28 May 2015, when the child was approximately two years and nine months of age.  There has been no interaction between the father and the child since mid-2015.

2. In 2008 the father was charged with one count of sexual abuse of a child under 16 years of age; one count of possess child pornography; seven counts of procuring a minor for child pornography; seven counts of production of child pornography and one count of attempting to procure a minor for child pornography.  When the father committed the offence of sexual abuse of a child under 16 years of age, he was 28 and the victim a 14 year old schoolgirl.

3. The father pleaded guilty to several offences and in 2008 was sentenced to a term of imprisonment for 40 months, with a non-parole period of 24 months.  He was released from prison in 2010 and remained on parole until late 2011.  The father is a registered sex offender for life.

4. There was a dispute in the proceedings as the extent of the mother's knowledge of the father's criminal behaviour prior to their marriage.  The mother maintained that she was informed of his criminal convictions and imprisonment by a Child Protection Worker shortly after the birth of the child.  She deposed as follows in her affidavit sworn on 8 October 2015:

   15.A few days after the birth of [the child] I had a visit from three Child Protection workers while I was still in hospital.  They wanted to talk to both [the father] and myself.  They initially spoke to me on my own and then they spoke to [the father] on his own.  Finally they spoke to both of us together.

   16.It was these Child Protection workers who first told me of [the father 's] past criminal history of sexual abuse of a girl under the age of 16 years.  They also told me that [the father] had been in jail for two years because of this sexual abuse.

   17.When they told me about [the father 's] sexual abuse history I was totally horrified.  I had absolutely no knowledge of any of this history.  [The father] had not told me anything about the sexual abuse, nor the fact that he had been in jail.  Prior to our marriage [the father] only told me that he had some ‘problems with girls in a relationship.’  No mention about being convicted of sexual abuse of a minor nor the fact that he was sentenced to jail for this offence.

5. The father contended that he "told her what I did and where I had been for 2 years" in late November 2010.  A file note made by the father's Community Correctional Services case worker on 17 May 2011, however, read inter alia as follows:

   [The father] felt that he had been honest with his partner about his past, his offending and his imprisonment, notwithstanding that he had given her a ‘general’ overview rather than the full details.

6. The father disputed that he was in possession of pornographic images of children as young as five years of age as was recorded in various records, for example, the file of the Department of Community Correctional Services (Exhibit 4).  It is unnecessary for present purposes that I make any findings as to the precise details of the father's offences, for reasons which appear below.  In this context, neither the mother nor the ICL sought a finding that the father poses an unacceptable risk of sexual abuse to the child.  Both the mother and the ICL opposed any orders for the child to spend time with the father for reasons other than unacceptable risk of sexual abuse.

7. A clinical and forensic psychologist, Dr C, conducted an assessment of the father in 2010 for the purpose of a consideration of "the risk that he will commit another relevant offence ...".  In a report dated 15 May 2011 Dr C opined that the father posed "a moderate low risk of sexual re-offending".  In a report dated 30 May 2013 Dr C assessed the level of risk posed by the father to the child.  She opined that the father "represents a low risk of sexual offending against his daughter [X]".

8. Both reports of Dr C were in evidence (Exhibit 5) and she gave oral testimony at the trial before me.  As appears below, Dr C stated that she was unable to offer a current assessment of risk currently posed by the father to the child.

9. As noted, on the day of the birth of the child, child protection workers visited the mother in hospital.  A Department of Health and Human Services worker commenced proceedings in the Children's Court in relation to the child in early May 2013.  The outcome of these proceedings was unclear on the available evidence but the parties continued to cohabit until May 2015.

10. In late 2012 or during 2013 the mother and the child travelled to Country F to visit members of the maternal family.  The mother alleged that, during this visit, she saw pornographic pictures of young girls on her telephone which had emanated from the father's computer.  The father denied that "there were any pictures of underage girls".  He agreed with suggestion from counsel for the ICL that he believed that "the mother made this up".

11. The mother remained in Country F with the child until February 2014.  The maternal family invited the father to travel to Country F for celebrations but he was refused a visa on account of his criminal convictions.

12. The mother alleged that the father threw a chair onto the ground near her during an argument and that police officers were called to their home on 1 October 2014.  The father denied that any such incident took place and described as "false" this evidence of the mother.

13. The father admitted that he threw a mobile telephone at the mother during an argument on 9 December 2014.  Police officers attended the parties' home and issued a Family Violence Safety Notice to the father.  In 2015 the father was convicted of an offence arising from this incident.

14. On 27 July 2015 an Interim Intervention Order was made against the father for the protection of the mother and the child.  A further Intervention Order was made against the father for the protection of the mother on 14 July 2016.  This order did not include the child, due to interim orders which had been made in the Federal Circuit Court on 4 December 2015.  These orders provided that the mother have sole parental responsibility and that the child live with her and spend no time with the father.

15. The Outline of Case Documents filed on behalf of both the mother and the ICL referred to an Intervention Order being made on 9 August 2018 against the father for the protection of both her and the child.  Such an order did not appear in the evidence but I have no reason to doubt its existence.

Approach to these proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.

2. The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”.

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said at page 464:

   [8]Subsection (1) of s 65DAA is headed “Equal time” and provides:

   “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)).  In such a circumstance the court is obliged to:

   “(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

   Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the court determine that question.
   Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”

   …

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.  The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made.  A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.  It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.  If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

   [footnotes omitted]

The evidence and witnesses

1. The applicant father relied upon his affidavit of 4 June 2018 and 159 pages of annexures thereto.  He also relied upon an affidavit of the paternal grandmother, Ms Denton Snr, sworn on 6 December 2016.  The father gave oral evidence in response to questions put by counsel for both the mother and the ICL.  The paternal grandmother was not required for cross-examination.

2. The respondent mother relied upon her affidavits sworn on 8 October 2015, 2 February 2017 and 22 June 2018.  The mother gave oral evidence in response to questions put in cross-examination by counsel for the ICL and the father, who was self-represented in the trial.

3. I had the benefit of two Family Reports dated 27 January 2017 and 24 August 2018, both of which were admitted into evidence.  Only the author of the second report, Family Consultant Ms D, was required for cross-examination.

The best interests of the child:  Section 60CC considerations

Primary considerations

1. Section 60CC(2) provides as follows:

   (2)      The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

2. The child the child currently has no relationship with the father and last saw him in May 2015, when she was two years of age.  The second Family Consultant reported that the child stated that she does not have a father.  She reported as follows:

   62.[The child] appeared confused by being asked about her father and advised that she did not have a father and then described him as "so stupid" and as a "stinky old gigi", which [the child] explained meant “undies”.  She then again reiterated that she does not have a father.

3. During cross-examination the father proffered his explanation for the fact that there is no current relationship between himself and the child.  He said words to the effect:

   At present [the child] does not think she has a father.  She has been brainwashed that she has no father.

   Obviously the father implied that the mother, and possibly one or both of the maternal grandparents, had created this belief in the child.

4. The second Family Consultant elected to conduct no observations of interaction between the child and the father.  She identified her reasons as follows:

   67.[The child] was not observed with her father as they have no prior relationship and a clinical judgement [sic] was made that any reintroduction if so ordered by the court would need to be in a more therapeutic setting.  It was noted that [the father] did not ask whether he was able to see [the child], nor did he enquire as to her well-being on the day of the assessment.

5. The second Family Consultant assessed that the mother and the maternal grandparents have provided stability to the child since the separation of the parties.  She reported as follows:

   74.[The child's] current developmental stage indicates a primary need for a stable, predictable, nurturing and emotionally attuned parenting experience.  [The mother] appears to have provided [the child], in conjunction with her parents, with capable parenting since separation and they appear to share a warm, loving relationship.  [The father] appears to have given no consideration as to the impact of his application on the child's emotional security and it would appear that potential exposure to her father's derogatory view of the mother could undermine her primary parental relationship.

6. Counsel for the ICL submitted that time with the father would expose the child to unacceptable risk but not on the basis of his criminal convictions and potential sexual abuse.  Counsel for the ICL contended that "the father's offending arose out of a wider matrix and his issues have not been addressed ..."

7. As noted above, Dr C assessed in 2013 that the father "represents a low risk of sexual offending against his daughter ...".  In her oral evidence, however, Dr C, stated clearly that this assessment holds no current validity.  She agreed with a proposition put to her in cross-examination as follows:

   Absolutely a current risk assessment would need information about the father's current relationship, employment.  Without that, I could not assess the current risk.

8. The father told the second Family Consultant that he re-partnered with Ms E in 2015 and that they began to live together in approximately July 2018.  He informed the Family Consultant that "she is not relevant to the proceedings and also that she does not wish to become involved as culturally she believes that the parents should sit down together to resolve their issues."  The father's partner gave no evidence and did not attend an interview with either Family Consultant.

9. Accordingly, little or no weight can be attached to the 2013 risk assessment conducted by Dr C.  As submitted by counsel for the ICL, however, the unacceptable risk to the child arises from the father's unaddressed personality issues rather than potential sexual abuse.

10. The first piece of evidence in relation to the father's problematic personality traits was contained in the report of Dr C dated 15 May 2011.  Dr C opined as follows:

    157.His early experiences have led to maladaptive personality characteristics that include narcissistic and avoidant traits.  His offending behaviour appears to have developed out of a combination of his dysfunctional personality issues and a period of relationship stress.  His problems within relationships have reinforced his low self-esteem, and his fragile sexual identity and self-doubt.  His offending appears to have represented his strategy for resolving this dilemma.  The more [the father] became involved to the images, the more his behaviour escalated to include not only more graphic depictions of sexual activity, but also to encompass closer and more realistic contact with the person involved.  Ultimately this process led to the contact offence.

11. In her second report dated 30 May 2013 Dr C confirmed the above opinions and assessments.  She added:

    124.Assessments suggest that [the father] continues to experience difficulties with appropriate expression of anger and frustration, and continues to present a positive self-image that may limit his capacity to seek assistance from others when needed.  It is recommended that [the father] could benefit from ongoing engagement with a psychologist to continue to develop strategies for proactive management and expression of anger.

12. There was no evidence that the father sought assistance from a psychologist and thus acted upon this recommendation of Dr C.  In her oral evidence Dr C opined that:

    The father's narcissistic and avoidant traits make it difficult for him to display empathy and make it easier for him to cross boundaries.  It would make it more difficult for the father to empathise with the child's and the mother's anxieties.

13. The author of the first Family Report recommended that the father "engage in some professional support".  She suggested that:

    47.The pathway to time in the future would see [the father] engage in some professional support to understand the impact of high parental conflict on [X] with the hope that he would be motivated to reduce the stress this would have on her.  In addition as [X] gets older, it may be in her interests to be introduced to her father at an age when she can self-protect and explore that relationship without fear or concern about repercussions for her mother.

14. The first Family Report was dated 27 January 2017, thus some 21 months elapsed between its preparation and the trial.  There was no evidence that the father took any steps to act upon this recommendation during that period.  The first Family Consultant observed that she discussed with the father concerns about his lack of child-focus at the Child Dispute Conference in 2015.  She included in her 2015 memorandum a concern that the father approached the proceedings from a perspective of his view of "his rights".  In her report of 27 January 2017 this Family Consultant observed that the father "has not done anything that would assist him to gain insight into his behaviour or attitudes that impact on this matter."

15. The second Family Consultant expressed concern as to the father's willingness to engage with professional support in the future.  She opined as follows:

    72.[The father] appeared to have little insight as to how his presentation and behaviour is perceived by others and demonstrated limited empathy in relation to [the child].  He presented with staunch resistance to accepting any responsibility for the current situation and his continued inaction in addressing his own interpersonal issues does not ensure confidence that he will seek support when necessary into the future.  Of concern was his view that he would risk further imprisonment by breaching orders in his bid to spend time with [the child] and his apparent fixation on the need to be in communication with [the mother], while expressing highly punitive and hostile views towards her, which appears to have become entrenched since the completion of the previous family report in this matter.

Section 60CC(3) considerations

1. I have had regard to all of the factors set out in section 60CC(3) but I will refer only to those considerations which are relevant to these proceedings.  Some considerations set out in section 60CC(3) clearly are irrelevant for present purposes, for example, section 60CC(3)(h), as the child is not an Aboriginal or Torres Strait Islander child.

Section 60CC(3)(a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child has expressed no views relevant to the outcome of these proceedings.  In any event, her young age of six years would militate strongly against significant weight being attached to her stated views.

Section 60CC(3)(b)  the nature of the relationship of the child with:  (i)  each of the child’s parents;  and (ii)  other persons (including any grandparent or other relative of the child)

1. I have referred above to much of the evidence relevant to the nature of the relationship of the child with each of her parents and other significant persons.  In summary, the mother is her primary attachment figure and currently she has no relationship with her father.

Section 60CC(3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i)  to participate in making decisions about major long‑term issues in relation to the child;  and (ii)  to spend time with the child;  and (iii)  to communicate with the child

1. The mother has made all major decisions in relation to long-term issues concerning the child since the parties' separation.  The father has had no opportunity to participate in any such decision making but he may well have wished to do so since the separation.

Section 60CC(3)(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents;  or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Both Family Consultants, Dr C and the ICL all expressed concern as to the likely effect upon the child of introduction of time with the father.  I note that Ms D gave evidence to the effect that she read the first Family Report only after she had carried out her own assessments.  She indicated that she disagreed with no material contained in the first Family Report.

2. I have referred above to the opinions expressed by Dr C in relation to the father's probable difficulties in "empathising with the child's and the mother's anxieties".  The first Family Consultant expressed a clear view that any time for the child with the father should occur only in "a professionally supervised setting".  She set out her reasons for this opinion as follows:

   45.The next question remains what time if any should she spend with her father.  At this point in time, the risk to [the child's] emotional security and well-being are considered compromised if in her father's care.  [The father 's] inability to express any positive view about [the mother], his desire to have her deported and his insistence that he will provide [the child] with all of the court materials in order to have her understand his perspective shows a lack of child focus.  Furthermore, the limited role he has played in her life to date means that [the child] does not have a current relationship with him which is normally what would be built upon.

3. The first Family Consultant reported that the father indicated that he intended to acquaint the child with "all of the information which he had about the proceedings".  She reported as follows:

   29.[The father] was asked about how he would facilitate a relationship with [the child] should time be ordered.  He described a pathway where he would accept that initially he would require supervision and time would need to commence slowly in order for [the father] and [the child] to reacquaint themselves with each other.  He then indicated that he would broach the subject of what she had been told by her mother about him.  He brought a medium size suitcase with him to the interview; he tapped the suitcase and said it was his intention to provide [the child] with all of the information he had about these proceedings.  It was apparent that he intends on sharing his version of events with [the child] as soon as he gets an opportunity.  He did concede that he would wait until she was in her mid to late teenage years before he would provide her with all of the details.

4. When asked in cross-examination about this passage in the first Family Report, the father said words to the following effect:

   Obviously I have had a lot of time to think about how I say things.  I said this but I would not do it.  I would not take every opportunity to denigrate [the mother].

5. In the second Family Report Ms D opined that the child potentially could see the father only "in a supervised setting".  She reported as follows:

   75.In considering the long-term emotional needs of the child, this assessment would suggest that these would likely be best met should she continue to remain in the sole care of her mother, particularly given that for the foreseeable future the only potential capacity for the child to spend time with her father is in a supervised setting, while [the father] addresses his personal issues, until the child is of an age to self-protect.  It is noted that the prospect of suitable long term supervised time in a community agency is unlikely to be available to the father, due to his convictions, without individual agencies conducting their own risk assessment.

6. Family Consultant Ms D considered the likely impact upon the mother of an order that the child spend time with the father.  She opined as follows:

   76.There appears to be some mutual agreement between the parties that regardless of the outcome the parents are unable to co-parent and communicate in a manner that would protect the child from further harm, despite [the father 's] repeated intention to speak solely to [the mother].  [The mother 's] heightened level of distress should she be subject to negotiation with [the father] suggests that this will impact upon her parenting capacity in the circumstances that the child is entirely reliant on her mother.  ...

   Her recommendation was that "there to be no orders in relation to time with the father".

7. The father conceded that he would be required to notify authorities if his proposed supervisor, Ms B, conducted visits at a venue frequented by other children, such as an outdoor playground.  He agreed with a proposition put by counsel for the ICL that "as a parent of another child, I would be a bit uneasy about someone with my history".  As noted by Family Consultant Ms D, it is unlikely that a community-based supervision agency would provide long-term assistance without undertaking a risk assessment in relation to the father.

Section 60CC(3)(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Both parties live in Melbourne but there was no evidence as to the distance or travel time between their homes.  The mother wishes to continue to keep information as to her current whereabouts from the father.

Section 60CC(3)(f)  the capacity of:  (i)  each of the child’s parents;  and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs

and

Section 60CC(3)(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I have referred above to much of the evidence relevant to these two considerations.  As noted, the two Family Consultants expressed concern in relation to the father's negative and critical attitude toward the mother.  In my view these concerns were reinforced by statements which he made during his oral evidence, for example:

   ●"she was not my equal because she was always whinging, she was disrespectful, the question is why she was with me in the first place"

   ●"I have made phone calls to Immigration and provided evidence, audio tapes of her screaming and yelling at me"

   ●"I have no idea how it would affect the child if I sent this illegal packing – I have a family"

   ●"I do want her deported, it is a matter for the Commonwealth not me".

2. The father said also of the mother in cross-examination "I do not exactly have anything positive to say about her, she does not tell the truth very often".  The father agreed with a suggestion put in cross-examination that he believes that the mother "exploited him".

3. The Family Consultant Ms D assessed that the father "presented with an adult focus and a general sense of entitlement."  She reported inter alia as follows:

   32.[The father] advised that he was seeking that the current proceedings be adjourned due to the mother applying for a further intervention order at the Magistrates Court and that he wanted the court to monitor the family long term so that the mother would be accountable to the court.  He stated he would not accept any outcome that did not include spending time with the child and would continue to appeal outcomes until he achieved this result.  He advised that this matter would not "end any time soon" as he intended to "do this the hard way".  He stated that the mother had "no right to stop me being a parent" and that she should he be [sic] "locked up for violating a Family Law court order, so be it" as "no-one can tell me I can't be a father.

4. The Family Consultant Ms D opined that the mother "also presented with an adult focus".  She reported as follows:

   73.[The mother] also presented with an adult focus throughout the interview, although she asserted that there is an ongoing sexual risk to the child, she acknowledged having left her in the sole care of her father after having been fully informed of the nature of his offences and she appeared more focused on the father's behaviour of having paid for sexual services and engaging in extramarital affairs.  In addition it would appear that [the mother] has exposed [the child] to her negative views of the father, given that she would have no recollection of him.  It is unknown as to whether this discourse is an intentional effort on the part of [the mother] to marginalise the father from the child, although it appears that she considers her actions to be protective.

Section 60CC(3)(j)  any family violence involving the child or a member of the child’s family

and

Section 60CC(3)(k)  if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:  (i)  the nature of the order;  (ii)  the circumstances in which the order was made;  (iii)  any evidence admitted in proceedings for the order;  (iv)  any findings made by the court in, or in proceedings for, the order;  (v)  any other relevant matter

1. I have referred above to the history of family violence orders between the parties.  As noted, the father pleaded guilty to an offence arising out of the incident in which he threw a mobile telephone at the mother.  On that occasion, at least, the father directed an act of family violence at the mother.

2. The father made allegations that the mother directed abusive and violent conduct at him during the parties' cohabitation.  It seems to me that these parties endured a disharmonious and conflictual relationship during their cohabitation.  I consider it likely that there were occasions when they each directed abusive and aggressive behaviour toward the other.  In my view, these mutual allegations of unacceptable behaviour do not weigh significantly in the outcome of the proceedings.

The presumption of equal shared parental responsibility

1. The father has played no role in the life of the child for approximately three

   
   

   and-a-half years and he could not be expected to be familiar with her current needs and circumstances.  It is abundantly clear that there exists a high level of hostility and conflict between the parties, which militates strongly against any prospect of co-operative decision-making in relation to long-term issues concerning the child.  For these reasons I am satisfied, and I find, that the presumption is rebutted by evidence that equal shared parental responsibility would not be in the best interests of the child.

Conclusion

1. As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the child's best interests, and reasonably practicable, that she spend equal or substantial and significant time with each parent.  I am at liberty to determine directly what parenting orders are in her best interests.

2. I am satisfied that the father continues to approach the issue of the child's time with him from an adult perspective and with a focus on his view of his "rights".  He has been on notice since the Child Dispute Conference in 2015 that his behaviour and attitudes are problematic to a re-establishment of his relationship with the child and yet he has taken no steps whatsoever to address these difficulties.  I am not satisfied that the father has insight into the child's needs, and capacity to prioritise her emotional requirements, which would support the sensitive process of an introduction of time.

3. The father's derogatory attitude toward the mother was demonstrated starkly during his cross-examination.  I am not satisfied that the father would be willing or able to refrain from communicating to the child his antipathy toward the mother if she were to spend time with him, even in a supervised setting.

4. I am mindful of the expert opinion of Dr C in relation to the father's personality traits causing him to have difficulty in displaying empathy and respecting proper boundaries.  In essence, both Family Consultants agreed with these opinions.  Ms D opined that there is a real risk that an order for the child to spend time with the father would undermine the parenting capacity of her primary care provider.

5. As noted above, the father adduced no evidence from his proposed Supervisor Ms B.  Accordingly, I cannot assume that she is in a position to provide appropriate supervision.

6. As there will be no order for the child to spend time with the father and the mother will have sole parental responsibility, I see no persuasive reason why the father's consent is necessary for the issue of a passport and overseas travel.  The mother has family in Country F and she has travelled to that country and returned to Australia in the past.  Nothing in the evidence suggested that the mother would depart with the child for Country F on a permanent basis.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 18 December 2018.

Associate: 

Date:  18 December 2018