Fante and Fante

[2014] FCCA 614

FEDERAL CIRCUIT COURT OF AUSTRALIA

FANTE & FANTE [2014] FCCA 614

Catchwords:
FAMILY LAW – Parenting orders – time spent with orders – family violence – supervision – steps needed to be taken by father before unsupervised time spent with in accordance with his application.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 62G(2), 69ZN

Applicant: MS FANTE

Respondent: MR FANTE

File Number: MLC 7926 of 2012

Judgment of: Judge Hartnett

Hearing date: 24 & 25 March 2014

Delivered at: Melbourne

Delivered on: 9 April 2014

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children's Lawyer: Mr Lovering

Solicitors for the Independent Children's Lawyer: McKean Park Lawyers

THE COURT ORDERS THAT:

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the children of the marriage [X] born [in] 2006 and [Y] born [in] 2008 (‘the children’).

3. The mother shall inform the father in writing as soon as is practicable as to any long term decisions she makes in respect of educational, serious medical and religious matters affecting the children.

4. The children live with the mother.

5. The children spend time with the father once each four weeks or six weeks, depending upon the father's work commitments, at the [omitted] Contact Centre at times and places as directed by the coordinator of that contact service for a period of six months. Thereafter, the children shall spend time with the father as agreed in writing between the parties or as further determined by the Court.

6. The parties do all acts and things necessary to obtain enrolment in the service, with the mother to instigate forthwith the completion of any necessary forms and forward same to the father.

7. The time spent with between the children and father on the supervised basis as set out in order 5 of these Orders, be conditional upon the father first completing the following:-

   (a)a men's behaviour change program in relation to which he shall enrol and provide proof of completion to the mother and Independent Children's Lawyer;

   (b)the father to obtain, from his general practitioner, a referral to a psychiatrist in Perth whom he shall attend upon for the purposes of an assessment as to his mental health functioning and parental capacity.  Such assessment is to be provided to the Independent Children's Lawyer and the mother.  The psychiatrist is to be provided with the following documents from the father as confirmed with the Independent Children's Lawyer:-

   (i)the transcript of evidence of Mr S of 23 April 2013;

   (ii)the Affidavit of Ms A filed 7 October 2013;

   (iii)the Family Report dated 26 November 2013 prepared by Ms T; and

   (iv)the Affidavit of Dr D filed 10 February 2014, annexing his assessment of the mother.

8. The mother maintain an email address from which to communicate with the father and the father be restrained by injunction from using the email address for any communications other than to pass information between them as to the welfare of the children, all such communication to be in the English language.

9. Both the mother and father keep each other informed as to a current email address which is to be used for communication between the parties as set out in order 8 herein.

10. Otherwise all extant applications are dismissed AND THE COURT NOTES any further proceedings between the parties as to the children’s time spent with their father are to be listed before Judge Hartnett should same be instituted within the next 18 month period.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7926 of 2012

MS FANTE

Applicant

And

MR FANTE

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve each of the parties seeking parenting orders with respect to their two daughters: [X] born [in] 2006 and [Y] born [in] 2008 (‘the children’).  The orders sought by the Independent Children’s Lawyer, as submitted to the Court and the parties at the commencement of the proceedings, with some amendment by the conclusion, are in essence the orders which the Court shall make.  The making of those orders is consented to by the mother and opposed by the father.

2. The mother filed an Initiating Application on 31 August 2012 in which she sought sole parental responsibility for the two children of the marriage, who are now aged seven years and five years respectively; that the children live with her and that there be no order as to the father spending time and/or communicating with the children or either of them. Her position, as to the children spending time with their father, changed somewhat as these proceedings progressed. Interim Orders were made in respect of time spent with between the father and the children on 23 April 2013 for the children to spend time with the father, supervised by a professional supervisor from Angelico Community Services (on 11 May 2013 and 25 May 2013 for a period of two hours at each time) as nominated by that service. Further Orders were made on 27 May 2013 whereby the children were to spend time and communicate with the father, supervised by a professional supervisor from Angelico Community Services for a period of up to three hours, at such times as nominated by that supervising agency, but not more than once fortnightly. This order was by consent. In addition to the orders made that day by the Court, it was noted that the father had advised his availability to spend time with the children as being in the periods from 17 June 2013 to 23 June 2013; 15 July 2013 to 21 July 2013; 12 August 2013 to 18 August 2013; 9 September 2013 to 15 September 2013; and 7 October 2013 to 13 October 2013. It is useful to note also at this point in the Reasons that on 23 April 2013, the Court ordered (order number 4) that both parties do all things necessary to attend upon a psychiatrist as nominated by the Independent Children's Lawyer for the purposes of a psychiatric assessment being prepared. The parties were to attend upon the same psychiatrist for the purposes of this order. Victoria Legal Aid was requested to fund such report on behalf of the mother. It was on that same date that the orders appointing an Independent Children's Lawyer were made. When the matter returned before the Court on 27 May 2013, an order pursuant to s.11F of the Family Law Act 1975 (Cth) (‘the Act’) was made, requiring the parties to attend an appointment with a family consultant for the purposes of the preparation of a written report to be delivered to the Court. The Court noted in notation “B” that the father invited communication for the purposes of scheduling the psychiatrist assessment pursuant to order 4 of the Orders of 23 April 2013 to his email address, [omitted]. Orders were made by the Court on 8 October 2013, providing for the preparation of a s.62G(2) of the Act family report to assist the parties and the Court and be introduced into evidence for the final hearing of the matter in March of 2014. Outstanding was the father’s attendance upon the psychiatrist.

Documents relied upon by the parties

1. The mother relied upon her Initiating Application filed 31 August 2012, a Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 31 August 2012, an Affidavit sworn by her on 24 August 2012 and her Affidavit of evidence in chief sworn 14 March 2014.  The father relied upon his Response filed 18 April 2013 (save that he no longer sought that the children be placed on the Airport Watch List, nor ancillary orders with respect to passports for the children), an Affidavit sworn by him on 12 April 2013 and an Affidavit sworn by his son, [Z], also sworn on 12 April 2013.  The father failed to file for trial an affidavit of evidence in chief. He was however given the opportunity to give some evidence in chief further to that in his Affidavit, whilst in the witness box.  The Independent Children's Lawyer filed an Outline of Case document on 21 March 2014 and contained therein were the documents relied upon by the Independent Children's Lawyer, as set out on page 2 of 6 of that document.  They are as follows:-

   a)the evidence of Mr S, given pursuant to an order for a s.11F of the Act assessment, which was delivered to the Court orally and as contained in the Auscript transcript obtained of that day, being 23 April 2013;

   b)an Affidavit of Ms A filed 27 October 2013;

   c)a Family Consultant Memorandum to Court by Mr S dated 7 October 2013;

   d)a s.62G(2) of the Act Family Report dated 26 November 2013 prepared by Ms T (‘the Family Report’) and introduced into evidence for the purposes of these proceedings;

   e)an Affidavit of Dr D, psychiatrist, filed 10 February 2014, annexing his assessment of the mother;

   f)limited documents tendered in the course of the proceeding and marked as exhibits, and produced under subpoena by:-

   i)Ms C, psychologist treating the father;  and

   ii)Dr H, general practitioner of the father.

2. The dispute between the parties in this proceeding concerns firstly, whether the mother should have sole parental responsibility for the parties’ two daughters, or whether there should be an order for equal shared parental responsibility between the parents and, secondly, the time spent with, and under what conditions, between the children and their father.  There was no dispute that the children would continue their residence with their mother, which has been the case since their birth.

3. As was determined in the currency of the proceedings, there was no dispute also between the parents as to the mother’s ability to remove the children from the Commonwealth of Australia for the purposes of holidaying, in particular in [S]. Matters pertaining to their travel plans, obtaining of passports and permission to travel were all canvassed in a consent order agreed to by each of the parties and made by the Court on 25 March 2014.

History

1. The father and mother were married [in] 2006 in [S].  This was a third marriage for the father and a first for the mother.  There is a considerable age difference between the parties; the father being born [in] 1963 and thus being now 50 years of age, and the mother being born [in] 1985 and being aged 28 years.

2. The parties met and commenced their relationship in 2005. They commenced to live together shortly after meeting, and became engaged.  At the time they were both living in [S], which is the country of their birth.  They subsequently, and in July 2005, moved to reside in Australia.  They settled in Perth in Western Australia.  The father worked as a [omitted] and they subsequently moved from Perth to [omitted] for his employment for a time, before returning to Perth. His was, and is, a very responsible job.

3. The mother became pregnant and [X] was born in 2006 before the parties returned to [S] to marry in 2006. The parties’ second daughter, [Y], was born in Australia in 2008. The parties’ separated on 25 July 2012 when the mother left Perth with the two children of the marriage and travelled to Melbourne to take up accommodation in a women’s refuge. The parties had lived in Melbourne between February 2011 until 3 June 2012, again consequent upon the father’s employment.  It was not clear on the evidence nor satisfactorily explained by the mother, save that she liked Melbourne and did not wish to leave when the parties did in June 2012, as to why the mother needed to travel interstate and so far from Perth where the family was then residing. There were available to the mother many forms of accommodation, including refuge, in Perth.

4. The mother alleges that the father was violent to her in the course of the relationship and that he is a very aggressive and controlling man.  She gave, as examples of this:-

   a)an episode which occurred between them in 2008, where she alleges the father tried to choke her and throw her overboard when they were together on a boat.  She was holding the parties’ younger daughter [Y] at the time, and [Y] was approximately four months of age;

   b)an episode which occurred on 30 December 2009, when the mother alleges the father assaulted her resulting in her coccyx being broken.  She claims he then grabbed her hands and hit himself (with her hands) on his face.  This was so he could falsely claim she had assaulted him. The mother had attempted to call the police but the father had smashed the telephone;

   c)an episode in which the mother alleged that the father threw her against a toilet with such force that the toilet smashed.  On that occasion, the mother claimed to have received bruising and cuts and abrasions to her arms, her hands and other parts of her body.  Precisely when that alleged incident occurred is not known to the Court; and

   d)a further episode in April/May 2012, when the mother alleges the father threatened to run the car off the road and kill the children and herself.

   The father denied each and every of these alleged assaults. There was no independent corroborative evidence in relation to the actual assaults and/or any injuries sustained. Dr D, psychologist who interviewed the mother but not the father accepted the mother as a truthful historian however.

5. Despite the alleged assaults being perpetrated upon the mother by the father throughout their relationship, the mother remained in the marriage and living with him.  When the father required the family to relocate back to Perth (from Melbourne) for the purposes of his employment, the mother’s evidence was that she did not wish to return to Perth.  She was initially unhappy in Melbourne and had expressed that view to the father but, ultimately, she and the parties’ daughters settled into Melbourne well and she was then unhappy about the return to Perth.  She claimed that she felt she had no option other than to do as the father said, due to his dominant and aggressive nature.  He was of course also the primary financial provider in the family and so his employment needs were fairly important in the family’s life.  In the 16 month period the parties lived in Melbourne, the father was employed by [omitted].  His working hours were approximately from 11pm to 7am.  The mother worked casually at a [omitted] for some hours during the day.  The parties would both care for the children when home, with the mother being their primary care giver.  Following the parties’ return to Perth, the father was again employed as a [omitted] and in that job he was required to work away from home for two week periods at a time, and return home for a four day weekend.  The parties separated not long thereafter and at a time while the father was working away.  On 25 July 2012, without the father’s knowledge or consent, the mother left the then former matrimonial home and returned to Melbourne. She and the children had stayed in Perth for about six weeks. For a time, the father was unaware of the location of the mother and children.

6. Once the mother arrived in Melbourne with the children, she sought and obtained an ex parte Intervention Order.  An Interim Intervention Order was granted on 1 August 2012 and subsequently a full Intervention Order on 11 February 2013, which order existed for a period of 12 months.  The mother then made an application to extend that Intervention Order and currently has an Interim Intervention Order, which has still to be served upon the father.  The father was unaware of the making of the further Order at the [omitted] Magistrates Court on 19 February 2014, and was informed of its existence in the currency of these Court proceedings.  The Intervention Order which was granted on 11 February 2013 was consented to by the father, without admission as to the allegations made by the mother.  He had travelled from Perth to Melbourne for the hearing and consented to the Order, as he claimed to have no further funds available to him to further contest it. 

7. The mother alleges that there are currently outstanding some five breaches of the Intervention Order, one of which has proceeded to court and in relation to which the father was found guilty and fined.  That breach was the father’s harassment of the mother by telephone calls in a harassing number over a brief period of time, being in May and June 2012. 

Expert evidence

1. The father was extremely upset after the making of the Intervention Order by consent (in February 2013), as at the conclusion of those proceedings he still had no agreement with the mother to spend time with the children. As a consequence of this, he sought medical assistance from his general practitioner, Dr H. She referred him to

   
   

   Ms C for an opinion and management. Tendered in evidence by the Independent Children’s Lawyer were two reports (dated 18 February 2013 and 2 April 2013) of Ms C, registered psychologist. The father attended consultations on 15 February 2013, 19 February 2013, 14 March 2013 and 2 April 2013.  He was unable to attend consultations on a more regular basis because of his work commitments.  Upon his first consultation he completed a Depression Anxiety Stress Scales (‘DASS’) test with the results indicating that he had depression within the extremely severe range, and anxiety, as well as stress within the moderate to severe range.  He was hesitant to use any medication for depression, because of its possible effect on his ability to concentrate while performing his high-risk job as an [omitted].  In the period of eight months following the separation, he lost 11 kilograms and suffered from insomnia, low mood and an inability to stop thinking about how much he was missing his children, their welfare and what they had been told about their father, as well as suffering from a feeling of powerlessness to prove his innocence regarding accusations made by the mother.  He indicated to the psychologist that he had been experiencing thoughts of harming his former best friend, whom he alleged to be having an affair with the mother, but he did not progress that thought into action, nor did he contemplate doing so.  He provided a history that he was attending a gym and had a punching bag which he found useful to get rid of his anger and frustration.  Attendance at an anger management course was contemplated by him, the father not being able to recall whether that was part of an order, or something suggested to him by his lawyers or medical doctors. He did not follow through subsequently in attending such a course. He felt he no longer needed to.

2. When the father completed a further DASS test on 14 March 2013, his results had improved to the normal range.  At that time he was focusing on his work in order, he said, to provide for his family. He enjoyed travelling and working in the outdoors as it served as a distraction to him.  Furthermore, he reported that he enjoyed jogging, exercising to stay fit and was trying to follow a healthy diet. 

3. As a consequence of the mother’s various allegations against him, the father alleged that the mother may be suffering from depression, or some other mental health condition.  He requested that the mother participate in a psychiatric assessment for the purposes of providing a report to this Court.  As a consequence of the material filed by both parties, both parties were ordered to attend for a psychiatric assessment.  The father failed to do so and thus omitted to put before the Court necessary evidence. He also failed to comply with a Court order. The mother complied with the order and a psychiatric assessment of her is as contained in the Affidavit of Dr D sworn 21 November 2013. Dr D found the mother to provide a very detailed and convincing account of her life with the father, which included multiple examples of the father engaging in a range of financial, emotional and physical abuse of her, and generally being a controlling partner.  The mother reported to Dr D feeling anxious and helpless in the relationship, but claimed since separating and remaining apart from the father, that her mental health had appreciably improved.

1. In his opinion and recommendations, Dr D noted that the mother presented as a reliable and authentic historian.  He noted that the mother experienced anxiety in the relationship with the father resulting in her requiring medical intervention on two separate occasions.  Her anxiety status resolved once she left the father and whilst she has felt safe and secure.  She reported that she was subject to multiple allegations relating to infidelity from the father, and she vehemently denied the allegations suggesting that the father formed unfounded suspicions.  Dr D found her to have been so traumatised that she clearly did not want contact with the father.  Whilst she wished to avoid him, she indicated to the psychiatrist that she had tried to encourage the children to have contact with their father, despite her concerns regarding his character.  Dr D concluded that the mother did not currently present with mental health problems requiring intervention, but that her anxiety levels could readily change if her circumstances changed.  None of this evidence was challenged.

2. The unchallenged evidence of the Ms T, family consultant as contained in the Family Report noted that the mother's proposal at the time was that the children would continue to live with her and spend planned and supervised time with their father.  The mother was of the view that such supervision could be provided by either Angelico Community Services or at a children's contact centre.  She described both children as continuing to be fearful of their father.  The father's stated preference was to spend unsupervised time with the children.  He stated to Ms T, consistent with his evidence on the hearing of the matter, that he is somewhat unsure as to his future living arrangements, they being determined to some extent by the location of his employment.  He commented to the Ms T and indicated in Court that he was looking at employment in Victoria, New South Wales and Queensland; that he might return on a permanent basis to [S]; or that he may remain in his present job in the mines in Western Australia. 

3. The father reported to Ms T that he lost his job on 25 October 2013 and was then experiencing financial difficulties.  He claimed to not be able to afford the psychiatric assessment nor make child support payments, despite the considerable sum he was earning at the time the orders were made for him to obtain such psychiatric assessment.  The father commented to Ms T that he wanted to know why the mother had left him, and why she would not talk to him.  He wanted to see the children but was unsure where he would be residing in the future. 

4. Ms T’s observations of the children with their father was that [X] was observed to be reluctant to enter the consulting room to join her father.  She required encouragement from her mother to accompany Ms T.  Upon entering the consulting room, the father gave both girls hugs and kisses.  The younger daughter, [Y], was observed to be less hesitant in her response to her father, whilst [X] was observed to distance herself physically from her father, and was reluctant to engage in conversation with him.  Ms T concluded that the relationship between the children and their father remained tentative, reserved and lacking observable emotional warmth and engagement.  She considered that the father's proposal for unsupervised time, including alternate weekend arrangements, was premature and likely to cause both children some distress and anxiety.  The recommendation of the report writer was that the children should continue to live with their mother who impressed as a caring and responsible mother, providing appropriate and nurturing care to both girls. She recommended the children have supervised time spent with their father at a children's contact centre.  Further, that the father attend for psychiatric assessment and attend personal counselling with encouragement given to him to participate in a men's behavioural change program.

5. Ms T noted the significant frustration expressed by the father in respect to the legal proceedings and, in particular, noted that he did not accept that he required psychiatric assessment or supervision of his time with the children.  During the Family Report interview process, the children impressed as having an established parental bond with their mother. The father appeared focused on the mother, expressing negative and critical views in respect to her.  The father impressed as disengaged with the children, struggling to establish direct involvement in both their play activities and verbal communication. Whilst it was acknowledged that the father expressed his paternal love for the girls, and the then circumstances were distressing for him, it was assessed by Ms T that the father appeared to lack significant insight into the needs of the children and was dismissive of the challenging nature of their experiences both in the past and at the present time.

6. The Affidavit sworn by Ms A on 7 October 2013 noted that the father had periods of supervised contact on 11 May 2013 and 25 May 2013 with overall the interaction between the father and children playful, affectionate and appropriate.  At that time the supervisor noted that both girls appeared a little apprehensive when their father first approached them but once he said hello they both greeted him affectionately and both appeared to enjoy their time with their father.  There were then subsequently three more periods of supervised time spent in June, July and August of 2013 during which the girls arrived happy and appeared eager to spend time with their father.  The father then cancelled his scheduled time for the month of September 2013 and as at the date of trial had not seen the children since August 2013, despite the orders making provision for him to do so.

Other evidence

1. The father’s first marriage lasted for a period of approximately six years between 1986 and 1992.  He has two children from that marriage, namely, [name omitted] aged 26 years and [Z] who is now aged 25 years.  [Z] swore an Affidavit on 12 April 2013 in these proceedings on behalf of his father. He was cross-examined by the parties in the course of the proceedings.  [Z] lived for a period of some five to six years in the household of the father and mother.  Whilst he observed there to be arguments between the father and mother, he observed no incidences of physical violence directed by either party toward the other, during those limited times that he was at home.  He described that the father hit him as a means of discipline whilst he was growing up.  He described that as “normal discipline” (in the context of their [S] background), even when it included the use of a belt. He described it as getting a “hiding” from the father, but he did not attribute that to anything other than the father being a strict, but still appropriate, disciplinarian.  His evidence was further that he observed both the mother and father to, from time to time, give a “hiding” to the elder child, [X]. His evidence was further that both the mother and father used a wooden spoon from time to time on the child.  He described these “hidings” as quick and as light.  He observed his father to have a close and loving relationship with the children whilst the parties resided together, and gave evidence that upon the mother’s departure from the former matrimonial home with the children of the marriage that his father was, to his observation, both sad and lonely.  He described him as heartbroken. 

2. [Z] was questioned about his father’s means of discipline as a result of the evidence of the mother, and that contained in the s.11F of the Act report by Mr S, family consultant. [X] had indicated to Mr S that sometimes her father would get a “big wooden spoon” and hit her with it. She stated that she had witnessed some very difficult arguments between her parents. When observed with their father, Mr S noted that the children were not frightened of their father, but by the same token, neither made any attempt to approach him. The father was in tears in that interview, having not seen his daughters for a considerable period of time. Mr S observed the children to be rather unsure as to what to do. Mr S observed that it was a fairly normal interaction given the circumstances between the father and children, including the lapse in time of about nine months between seeing each other.

3. The father denied that he had excessively punished the elder child.  He said he came from a culture where a “hiding” was a normal way of raising a child.  He stated that the word “hiding” should not be taken literally, but as a figure of speech, and that his use of any punishment toward the children was appropriate and not excessive.  He further counter alleged that the mother in fact used excessive and inappropriate discipline towards the girls, and that he had witnessed bruising on [X] as a result of the mother's excessive use of punishment.  He further expressed his belief that the mother was manipulative and manufactured allegations against him to discredit him. 

4. Child support payments by the father to the mother are also in issue in these proceedings.  The father’s evidence is that following separation he paid an amount of some $450 a week in child support payments for a couple of months before ceasing such payments.  He then altered that evidence to indicate that he paid child support as assessed from the time of separation to October 2013, when he lost his job.  He claims to thereafter have been unemployed for a period of time, resuming employment in February of this year as a [omitted] working [omitted] in Western Australia. He has failed to notify the Child Support Agency of his regaining of employment.  His own evidence is that the only reason he has made child support payments is because he was compelled to, the payments being garnished from his salary. His attitude is very much that as he is not seeing the children, he should not have to pay for them.  He was most reluctant in the witness box to provide the current details of his current employer so that they could be passed on to the Child Support Agency by the mother, if she so desired.  Once again, he appears in receipt of significant income, which he gave variously in his evidence as being in the sum of $2,000 approximately a week, currently, and $2,800 a week in his earlier job. The father also claimed to have earnings, in or about July 2012, at the time of separation, of $4,800 a week. The father is preoccupied with not providing the mother with any financial assistance for the support of the children and/or herself.  He feels a victim when compared with the mother, whom he describes as accessing the services available to her in this country, whilst he must “pay for everything”. 

5. The father also gave evidence that if he was unable to see the children he would disappear, and have nothing further to do with them or their mother.  His evidence was that he would walk; that he would give it to her; that this was what she wanted; that the children were dead to him.  This was not to say that he would harm any of them he said, simply that he would have the memories that are with him now to carry him into the future, with no further actual physical contact. 

6. Much time was spent in these proceedings (including in the father’s cross-examination of the mother and his various statements to the Court) in the father seeking an answer to the question he wanted answered, which was, “why had the mother left him?”  The father remains, some two years beyond the separation, completely obsessed with that question. The reason for his being involved in the proceedings was firstly to determine why it was that the mother had left him and secondly, and in that order, to be able to spend some time with his children.  He repeatedly stated in the Court room words to the effect that the mother left him without telling him why, and that she left him and had an affair with his best friend, Mr W.  The mother gave evidence that she is terrified of the father and that she has guard dogs on her premises, including a dog for the outside yard and a dog for inside.  The father says that he has never harmed anyone, and that there is no need for the Intervention Order that she has obtained against him. Given his behaviours, there clearly has been such a need. He claimed however to not trust anybody any longer and said, “Everybody's walking over me”.  He continued throughout the proceedings to be disparaging of the mother and to refer to her as using him for the purposes of gaining entry to Australia.  He repeated constantly that the mother had had an affair with his former best friend, whom he repeatedly said had asked him, “have you got a young one for me?”  He then went on to describe the mother in these proceedings as being a “young one” now in the possession of his former best friend.  Despite the mother’s denial of having an affair at any time with Mr W, the father would not be satisfied and continued to assert that she had done so.  Its relevance, in terms of determining now the best interests of the children, was remote, but that did not deter the father. This preoccupation of the father showed little insight into the children’s needs and no acknowledgment of what it is he must do in order to have a meaningful relationship with them.

7. In addition to the above, the father spent much time, in the giving of his evidence, cross-examination of the mother, and in statements and submissions made by him from the bar table, in addressing financial issues.  He wanted to know: “why must I pay for everything, she gets it for free” and constantly referred to his financial position. His evidence was that such financial position was very poor.  He expressed his belief that the “system” was working in the mother’s favour and against him. Again, his focus was not child-orientated. His evidence of financial struggle is not accepted by the Court given his income and earning capacity.

8. The mother is living in her own rented accommodation and is not engaged in employment.  She is engaged in the full-time care of the children.  Whilst she wished for her address and the location of [X]’s school to not be disclosed to the father, it is clear in the father's evidence that he has known the whereabouts of the mother's residential address for a long time.  In breach of an Intervention Order, he attended at her premises in or about October 2013 to, he says, ostensibly deliver Christmas presents for the children. He again attended unannounced at her front door in the week preceding this hearing.  He began to speak to her, and on her evidence insult her, to which she did not respond. She called the police and her friends, and the father left her premises prior to the arrival of the police.  The father did not know, on the last visit made by him, there existed an Intervention Order. He did know in respect of the earlier visit.

9. The father took no responsibility for the present situation in which he finds himself.  He constantly criticised and denigrated the mother throughout the proceedings. He reiterated his constant refrain, which was why had she left him.  He threatened he would not see the children at all, if his visits were to be supervised.  

The law

1. The presumption of equal shared parental responsibility as set out in s.61DA of the Act is rebutted in the circumstances of this case. It is rebutted because pursuant to s.61DA(2) of the Act there are reasonable grounds to believe that the father has engaged in family violence and, further, pursuant to s.61DA(4) of the Act there is evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility. These proceedings were conducted pursuant to the principles as set out in s.69ZN of the Act, although there was some difficulty in the Court room in keeping the father child-focused in the giving of his evidence. The father's evidence did not go to a promotion of cooperation between the parties nor child-focused parenting by them. There is no meaningful communication between the parties and the mother asserts that she is terrified of the father.

2. The father claims the mother is manipulative and a liar. Given the existence of the Intervention Order, the allegations of breach and the finding on at least one occasion of breach, there is clearly an element of family violence in the relationship between the father and mother, perpetrated by the father upon the mother and without making any additional findings as to the various allegations of the mother. The father's administering of corporal punishment in particular to the child [X], given the observations of her by the family consultants and her communication as to her father's punishment of her, which she did not like, is made out. Pursuant to s.60CA of the Act the Court is required to regard the best interests of the child as the paramount consideration. That consideration is directed by those matters set out in s.60CC of the Act. Whilst it is of benefit to the children to have a meaningful relationship with each of their parents, the Court gives greater weight to that consideration as set out in s.60CC(2)(b) which is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In the circumstances of this case, there is some need to protect the children.

3. The additional considerations which are matters mandatory to be considered by the Court are set out under s.60CC(3) of the Act. The observation of the children with each of their parents and the very limited views expressed by the elder child, [X], lead the Court to conclude that the children are best placed in the care of their mother and that they have some ambivalence towards spending time with their father. Their mother has been their primary attachment figure and their primary care giver. The children are very emotionally bonded to her and she fulfils well her obligations as a parent. She is a strong, loving and reliable care giver. The father provided financially for the children until separation and thereafter to a limited extent, and his evidence is that he does not wish to do so in circumstances where he is not seeing them, or seeing them in the manner in which he desires. He has made no provision of support for them since the cessation of his employment in October last year, despite his regaining employment in February of this year. The father has also failed to spend time with the children as available to him pursuant to the earlier orders of the Court on the basis that he has not the necessary funds. The Court finds he had the necessary funds in August, September and October of last year, but failed to expend them in seeing his children on a supervised basis in Melbourne. He likewise failed to expend such funds in February of this year. The Court finds his financial position is not as dire as he makes out, given his significant receipt of income in the times in which he does work.

4. The difficulty in a consideration of the father spending time with the children, is that the father has a number of hurdles to overcome before his time spent with the children can be progressed.  He knows these hurdles exist and he shows a complete lack of insight in his approach to them.  His attitude, as demonstrated, is a poor one in the context of his responsibilities toward parenthood. 

5. Since just after the time of the parties' separation there has been in place a family violence order.  The father needs to resolve the issues of outstanding breaches of the Intervention Order before seeking further time spent with the children.  The father also needs to obtain the psychiatric assessment ordered to be obtained by him many months ago, but which he has failed to do.  His reasoning in relation to that omission is given variously as he lacks the funds; or he does not need such assessment.  Given the allegations of family violence made by the mother and the evidence given by the father in the proceedings, including his preoccupation with why the mother left him, and his obsession as to their relative financial capacity (- his perception that he is economically disadvantaged vis-a-vis the mother), the father should undertake not only the psychiatric assessment ordered, but the men's behavioural change program recommended by Ms T in the Family Report.

1. The father also needs to avail himself of the supervised time spent with orders permitting him time spent with his children, albeit in circumstances which he does not desire.  The Court is required to promote the best interests of the children and the Court is required to protect them and ensure a safe environment for them.  Until such time as the father takes these various steps as referred to in the preceding paragraph, he cannot move to unimpeded and unsupervised time spent with the children in the manner in which he proposes.  In the Court room the father oscillated between being assertive and aggressive, and being extremely upset.  He blames the mother for his breakdown in communication with his children, and looks not at all to his own behaviours.  He is entirely dismissive of the mother's assertion that she feels terrified of him. Whilst the mother sought a sole parental responsibility order, and the Court shall grant that, she did indicate in closing submissions that she would consider an equal shared parental responsibility order into the future, if the father could satisfy her that the children's best interests were being promoted and their safety secured.  She also is distressed in the need for the proceedings and the need for supervision, and would herself like to feel safe in her own home environment. Many of the difficulties between the parties now could be addressed by the father taking action to reassure the mother that she and the children are safe, that they will be financially supported and not harassed, and that he will actively seek to re-engage with his children and promote their relationship.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 9 April 2014