Felton and Penman
[2016] FCCA 1816
•14 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FELTON & PENMAN | [2016] FCCA 1816 |
| Catchwords: FAMILY LAW – Parenting – family violence – orders in best interests of child. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 61DA, 65DAA, 68B, 114 |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS FELTON |
| Respondent: | MR PENMAN |
| File Number: | WOC 525 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 10-15 December 2015 and 30-31 May 2016 |
| Date of Last Submission: | 17 June 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 14 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Helen Volk Lawyers |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
The Mother have sole parental responsibility of the child X born (omitted) 2011(‘the child’).
The child live with the Mother.
The child shall spend time with the Father:
(a)on the first Saturday in February, July and September in each year for 2 hours
(b)on the second Saturday in December in each year for 2 hours
with such time to be supervised by CatholicCare in (omitted) or any other agreed professional supervised contact centre.
The Father is to pay for the cost of supervision of his time with the child.
Subject to the provisions of order 6, there be no communication between the child and the Father.
The Father be permitted to provide to the child twice every year:
(a)birthday cards and/or birthday presents, and
(b)Christmas cards and/or Christmas presents.
(c)such items should for the first year after the date of these orders be provided to the Independent Children’s Lawyer through the postal address of the office Maguire and Mcinerney solicitors of Wollongong and thereafter be provided through a postal office box belonging to the Mother as nominated by her.
The Father be restrained from:
(a)assaulting, molesting, threatening, harassing, stalking, intimidating or otherwise interfering with the Mother.
(b)approaching or being within 100m of the Mother's family home.
(c)coming within 100 metres of any place at which the Mother shall work
(d)coming within 100 metres of the child's school
(e)publishing any photographs or videos of the child on any medium, in any public place or on social media or publishing or posting any derogatory or critical comments of the Mother on any medium, in any public place or on social media.
Order 7 is an order for the personal protection of the Mother and the child pursuant to section 68B of the Family Law Act 1975 (‘the Act’) to which a power of arrest without warrant attaches pursuant to section 68C of the Act.
The Mother be at liberty to apply for the issue and/ or renewal of an Australian passport for the child, without the signature or consent of the Father.
THE COURT NOTES THAT:
A. The Mother shall within 21 days of these orders attempt to make contact with Ms M for the purposes of attempting to facilitate time on an ongoing basis between the child and her half siblings, A and B.
IT IS NOTED that publication of this judgment under the pseudonym Felton & Penman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 525 of 2014
| MS FELTON |
Applicant
And
| MR PENMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about a child, X, born (omitted) 2011, now 5 years old. There is a dispute between her parents about whether and if so on what conditions, X should spend time with her father. These reasons for judgment explain the Orders that the Court has made.
Background
X’s mother is the Applicant in this case. She is 45 years old and works in a (employer omitted). X’s father is the Respondent. He is 50 years old and is currently not working. Both X’s parents live in an area of (omitted) close to each other and close to where the Mother works.
The parents met in (omitted) 2010 and commenced cohabitation in (omitted) 2010 but never married. They separated in November 2011. Thus, they were only together for 11 months. X was born (omitted) 2011, and was thus about four months old when her parents separated.
The Mother has three children from a previous relationship, Mr L who is now 19 years old, C who is 16 years old and D who is 13 years old. The Father has two children from a previous relationship, A, who is 13 years old and B, who is 11 years old.
X’s parents apparently met through an online dating service. The Mother discovered that she was pregnant in about (omitted) 2010, and the parents commenced cohabitation in December that year. As the evidence will demonstrate, the relationship was a turbulent one with the Mother observing aspects of the Father’s mental health and his propensity for violence and displays of angry rage.
When the relationship ended in December 2011, the Mother moved out of the home they were occupying. The period of separation was a tumultuous one. The Mother makes many allegations about the Father’s behaviour, all of which would come within the extended definition of family violence contained in s.4AB of the Family Law Act 1975 (hereafter referred to as ‘the Act’). As it turns out, the Court will make findings accepting the veracity of the Mother’s allegations about family violence.
In April 2013, the Mother appears to have commenced a relationship with her current partner, Mr C, who used to be one of the Father’s close friends.
The Father commenced spending time with X after separation but not necessarily consistently. The Mother alleges and the Court finds, that the Father was frequently threatening of the Mother in terms of him taking and retaining X and he also threatened that he, i.e., the Father, would never see X again.
In the period after separation, the Father engaged in a widespread public campaign involving posters and leaflets in the (omitted) area in relation to the issue of him spending time with X. There were also a number of violent incidents that will be discussed in the evidence below.
The Mother initially moved to a property at (omitted) and then moved to the suburb where she currently lives. She alleges and the Court ultimately accepts that she moved in order to escape the Father’s threats, harassment and violence. The police were involved. An Apprehended Violence Order (hereafter referred to as ‘AVO’) was made. The AVO was breached. The Father was charged with various criminal offences to which he pleaded guilty.
The present proceedings commenced on 21 August 2014. An Independent Children’s Lawyer was ordered on that date. A number of Orders were made restraining the Father from approaching the Mother. These Orders will be detailed below, as they become significant.
Dr R was appointed as the expert to give evidence in this case. He prepared a report. His evidence is discussed below.
The matter came on for hearing on 10-11 and 14-15 December 2015. The evidence was not completed, so the hearing resumed on 30 and 31 May 2016. A number of significant events took place between the end of day 4 of the hearing on 15 December 2015, and the commencement of day 5 on 30 May 2016. These events will be discussed below.
On the final day of the hearing, after the evidence was concluded, both the Independent Children’s Lawyer and the Mother, made their submissions. The Father was granted leave to provide written submissions, which he did on 17 June 2016.
Competing Proposals
By the final day of the hearing the Independent Children’s Lawyer proposed that the Mother have sole parental responsibility, that X live with her, and that there be no contact between X and the Father. However, it was proposed that he be permitted to provide to X twice each year birthday cards and birthday presents and Christmas cards and Christmas presents, using the agency of the Independent Children’s Lawyer’s office. In addition, the Independent Children’s Lawyer proposed a detailed restraining order pursuant to s.68B of the Act.
The Mother’s proposal was similar. She proposed, however, that the restraining order extend not just to X, but to the Mother’s other children, C, D, and Mr L, as well as her partner, Mr C. The restraining order also extended to the publication or posting of any derogatory or critical material. However, and significantly, the Mother proposed an alternative order and that is that, in effect, the Father would have recognition contact with X four times a year, for two hours, at a supervised contact centre.
The Father’s proposal at the end of the hearing remained the proposal that he advanced at the commencement of the hearing. He proposed that there be an order for equal shared parental responsibility and that X live with the Mother until such stage as she was mature and independent enough to be able to express the desire to live with the Father, in which case, that the Mother would support and encourage that. He proposed that the Mother not be allowed to relocate more than 60 minutes away from her current place of residence. He proposed that X spend time with him on a staged basis. Until she turns 7, each alternate weekend from 9:00am Saturday to 10:00am Sunday, and each other weekend from 10:00am Saturday to 6:00pm Saturday. He proposed that once X turned 7 and had commenced and settled into a school routine, he would collect her from after school one afternoon each week and return her to school the following morning. He proposed half of all school holidays and special days. The Father’s time with X would be unsupervised. The Father proposed a number of other Orders.
Each of the detailed minutes of order proposed by the parents and the Independent Children’s Lawyer, are reproduced in the first Schedule to these reasons.
The Hearing and the Evidence
Ms Pearson was appointed as Independent Children’s Lawyer for X. At the hearing Mr Jackson of Counsel appeared on behalf of the Independent Children’s Lawyer. The evidence in the Independent Children's Lawyer’s case consisted of Dr R’s report dated 6 December 2015. Dr R was extensively cross-examined.
Ms Volk appeared on behalf of the Mother. Ms Gillies of Counsel appeared as Counsel for the Mother.
The evidence in the Mother’s case consisted of her Affidavits of 1 December 2015 and 9 May 2016. Her son, Mr L provided an Affidavit sworn 30 November 2015. Her current partner, Mr C, also provided an Affidavit sworn 30 November 2015, supplemented by a sworn statement provided to the Court on 31 May 2016, which became exhibit A11. All of these witnesses were cross-examined.
The Father represented himself in this case. He relied on his Affidavits sworn 6 August 2014, 2 December 2015 and 24 May 2016. His former wife, Ms M, swore an Affidavit on 12 November 2014. The Father’s mother, i.e., the Paternal Grandmother, also provided an Affidavit sworn 7 November 2014. Each of these witnesses was extensively cross-examined.
It is important for the Court to record its impression of the Father. Even though he was representing himself, it is clear that he had a formidable understanding of the law. He presented as an intelligent and highly articulate man. He was disadvantaged by his subjectivity, as are most people representing themselves in family law matters. His cross-examination of Dr R and of the Mother was thorough.
Overview of Reasons for Judgment
After setting out a statement of the applicable law, a number of observations will be made about credit issues. The evidence of Dr R will then be discussed. This separate discussion is warranted because he is the only expert, independent witness to give evidence to the Court. The remaining evidence will be discussed, focussing primarily on the main allegations the mother makes. Once the evidence has been discussed, it will be reviewed having regard to the relevant provisions of the Act. It is important to recognise that, in many respects, the responsibility that the Court has in this case is to undertake a thorough risk assessment in relation to X spending time with her father.
The applicable law
In determining parenting matters under Part VII of Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) 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.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(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.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In 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, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (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 require 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".
A little later in the judgment the High Court said:
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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Credit Issues
This is a case where the evidence of the Mother and the Father differs in material respects in relation to key events. The Court finds that, almost invariably, where the evidence of the Mother and the Father does not coincide, the Mother’s evidence is to be preferred. In making this general finding, the Court acknowledges that there were occasions when it felt that the Mother was embellishing or exaggerating certain facts in support of her case. Nonetheless, much of her evidence is corroborated either by other witnesses, or by independent business records (the reliability of which is not lightly impugned) and sometimes even by the Father’s own admissions. The main reason, however, why the Mother’s evidence is preferred to that of the Father, relates to the Father’s evidence itself, and how he gave it.
The Father’s evidence in cross-examination was thoroughly unconvincing. He was pervasively unresponsive. The Court will provide one example but, without exaggeration, ten examples from the evidence could be provided.
The Father was cross-examined in relation to X returning to her mother’s care after spending time with him, with black permanent marker marks on her arms. The focus of the passage below is not so much on the substantive issue, but on how the Father responded to the cross-examination. The extract is lengthy, but the Court believes it is important to convey the manner in which the Father gave evidence in cross-examination, and why the Court makes such trenchant, adverse findings against him. The passage is found in the transcript of his evidence of 14 December 2015, at pages 98-100:
Ms Gillies: There was an occasion on 17 September 2014 when X arrived home from her mother’s place with writing and black permanent texter up both of her arms. Remember seeing that evidence in the mother’s affidavit?
Mr Penman:I saw photos of X being posed and photos being taken of those marks on her arm. Yes.
Ms Gillies:Do you deny that X was returned to her mother’s care on 17 September 2014 with black permanent texter marks and writing up her arms?
Mr Penman:There was texter marks on her. Yes.
Ms Gillies:And it was permanent texter, wasn’t it?
Mr Penman:I believe so. Yes.
Ms Gillies:Right. And you tell his Honour that you think that that was appropriate that she should be returned in that way?
Mr Penman:The – A and B ‑ ‑ ‑
Ms Gillies:No. Do you say to his Honour it was appropriate for X to be returned to her mother with that – those markings on her arms?
Mr Penman:She has been returned to her mother with mulberry stains all over her face, too.
Ms Gillies:Sir ‑ ‑ ‑?
Mr Penman:I mean, I don’t understand ‑ ‑ ‑
Ms Gillies:‑ ‑ ‑ are you saying that these marks you would put on par with mulberry stains?
Mr Penman:X was drawing on herself just like children do.
Ms Gillies:X did not write on herself, “Love my daddy”, up her arm ‑ ‑ ‑?
Mr Penman:No. The other children were ‑ ‑ ‑
Ms Gillies:Stop. So why did you say X was writing on herself if it wasn’t her that wrote ‑ ‑ ‑?
Mr Penman:Because if you – if the – look at the photos, you will see that there is scrabbling on her arm as a young child does. They always write on walls. They write on themselves.
Ms Gillies:Let’s go back to my question that I’ve asked a couple of times now but ‑ ‑ ‑?
Mr Penman:Sure.
Ms Gillies:‑ ‑ ‑ you seem to be refusing to answer?
Ms Penman:Okay.
Ms Gillies:Do you think it was appropriate to return X in the state that you did to her mother on 17 September 2014?
Mr Penman:It may have been more appropriate to try to have cleaned her arms. Yes.
Ms Gillies:Do I take it then that you are conceding that what you did and how you returned her – I withdraw that. That how you returned her was inappropriate?
Mr Penman:Inappropriate? I mean, it would have been more appropriate, yes, to try and clean the marks off her.
Ms Gillies:Are you saying that you agree that it was inappropriate or you’re just not prepared to say that?
Mr Penman:I – that – that’s – there’s more to – there’s – children draw on themselves and ‑ ‑ ‑
Ms Gillies:No. I’m asking you ‑ ‑ ‑?
Mr Penman:Sorry. Okay. All right. So if you ‑ ‑ ‑
Ms Gillies:‑ ‑ ‑ do you think it was inappropriate way to return X to her mother?
Mr Penman:Inappropriate? If that’s something that the mother considers inappropriate then, yes.
Ms Gillies:I’m not asking you about what the mother thinks and I’m going to ask you for about the fifth time?
Mr Penman : Well, I ‑ ‑ ‑
Ms Gillies:Do you think it was an inappropriate way to return the child to the mother?
Mr Penman:I guess I didn’t think of it at the time.
Ms Gillies:As you sit there now and reflect upon it as a consequence of the questions that I’ve asked you do you think it was an appropriate way to return X to her mother?
Mr Penman:When it has been emphasised and pointed out to me like that I could see how it could be seen to be inappropriate. Yes.
Ms Gillies:Why do you think it might be seen to be inappropriate?
Mr Penman:Well, I believe that the mother perceived that as – that I was sending some sort of message through the child or something. I’m – I’m – that’s – that’s – and on that basis, due to that perception, yes, it might have been inappropriate but at the time I didn’t – I didn’t – didn’t think of it like that.
Ms Gillies:At the time that you sent her home like this there was an AVO in place, wasn’t there?
Mr Penman:I believe so. Yes.
Ms Gillies:And the AVO was as a consequence of the mother’s perception of you as being a harassing and intimidatory person?
Mr Penman:The ADVO ‑ ‑ ‑
Ms Gillies:Correct?
Mr Penman: ‑ ‑ ‑ there was a number of grounds for the ADVO but, yes.
Ms Gillies:Right. The following week you again sent X home with writing and permanent texter up both of her arms, didn’t you?
Mr Penman:Once again I – there was – they were playing with texters. Yes.
Ms Gillies:Black permanent texters is what you say they were playing with?
Mr Penman:There’s texters. Yes.
Ms Gillies:Did you think that was appropriate?
Mr Penman:To – to play with texters?
Ms Gillies:Yes?
Mr Penman:Absolutely it’s appropriate children play with texters.
Ms Gillies:Okay. There was an occasion, wasn’t there, that you returned X to her mother’s care with, “Daddy”, written on her thongs. Paragraph 69 of my client’s affidavit, your Honour?
Mr Penman:Yes. That was intended to, sort of, label what I – what I thought were things that I had purchased for her and, therefore, there wasn’t going to be a problem with things staying at one parent’s place or the other.
Ms Gillies:They're X’s thongs, aren’t they?
Mr Penman:Yes.
Ms Gillies:Purchased for her?
Mr Penman:Purchased for her?
Ms Gillies:Yes?
Mr Penman:Yes.
Ms Gillies:She comes to you with shoes on, doesn’t she?
Mr Penman:Not all the time. No.
Ms Gillies:She has never come ‑ ‑ ‑?
Mr Penman:Well, I – I – I ‑ ‑ ‑
Ms Gillies:‑ ‑ ‑ into your mother’s care without her having shoes on, has she?
Mr Penman:I disagree. I – there has been a number of occasions where she has arrived with footwear missing or – because ‑ ‑ ‑
Ms Gillies:How do you know she has arrived like that?
Mr Penman:Because when I arrive there’s no – no footwear.
Ms Gillies:But you’re not there, are you?
Mr Penman:My mother tells me.
Ms Gillies:Right. Now ‑ ‑ ‑?
Mr Penman:So my – we provide – we ‑ ‑ ‑
Ms Gillies:So you say you bought – you ‑ ‑ ‑?
Mr Penman:We have shoes there for her which she then – she can then wear.
Ms Gillies:These were shoes that her mother provided for you, and this the photos at annexure J, your Honour ‑ ‑ ‑?
Mr Penman:Okay.
Ms Gillies:‑ ‑ ‑ provided X wearing on that particular day, that’s right, isn’t it?
Mr Penman:Yes.
Ms Gillies:So your explanation to his Honour that you wrote, “Daddy”, so that she would know that you bought them, I’m going to suggest to you, is just untruthful and misleading?
Mr Penman:I write on toys that I buy for her. I write on her ‑ ‑ ‑
Ms Gillies:Sir, you didn’t ‑ ‑ ‑?
Mr Penman: ‑ ‑ ‑ belongings so that ‑ ‑ ‑
Ms Gillies:You didn’t buy these thongs. The mother did, didn’t she?
Mr Penman:Okay. Yes.
Ms Gillies:There was no – so when you said to his Honour I write on them so there could be no confusion that they were bought at my house, it was just a lie, because you didn’t buy these thongs, that’s right, isn’t it?
Mr Penman:The – the thongs were written on. Yes.
Indeed, the passage above demonstrates not just the father’s unresponsiveness in relation to a relatively innocuous issue, but his propensity to mislead the court, in trying to evade an honest answer. When confronted by the court about telling untruths, he was plainly caught out. Regrettably, this excerpt of the evidence, whilst lengthy, is quite typical of the father’s evidence. There is no doubt that this hearing took longer than was necessary, because of the manner in which the father gave his evidence.
The Evidence of Dr R
Dr R is a consultant family, child and adult psychiatrist. His report is dated 6 December 2015. Dr R had available to him all of the evidence before the Court, at that time.
From his report one discerns that during the interviews and observations X would not leave her mother and thus the parents were seen together, with the Mother holding X. Dr R thought that X was anxious, but was unsurprised because the situation was an unnatural one for her. He observed the Mother to be composed and the Father to be contained. He noted the good relationship between X and B and A, the Father’s children from a previous relationship. At lines 638-652, Dr R makes the following observations:
There was no sense of danger or intimidation in this setting. I asked Ms Felton if she had any suggestions. Ms Felton said “I don’t mind if you see her but you might need to do some counselling.”
Mr Penman looked a little bit affronted. He said “I’m not sure what you are inferring.” Ms Felton said she wanted to work something out. Mr Penman said he would be happy to do some mediation “I want it put on a constructive path.” There was surprising cooperation between them. Alex said that she enjoyed spending time with X and that X is happy spending time with her and the other two siblings. They play together and relax together. X was still cuddling her mother and didn’t seem to want to separate from her mother at this time. Sam tried to give her a present of some lollies. There was acknowledgement that there needed to be some cooperation and some calm consideration.
Later on, Dr R expressed his surprise that the joint observation was cooperative, and there were no major stresses as a result of the way in which the interviews were conducted. He concluded at line 655-666, “There appeared to be significant ability to cooperate. The situation was quite civil.”
Dr R formed a favourable view of the nature of the Father’s relationship with X. At lines 721-727 he states:
Despite the interpersonal problems I believe that Mr Penman does value his relationship with X and wants to put her interests above others. I believe that he does understand how to provide for the biological psychological and social needs of the child. I formed the view that he was not an unacceptable risk to the child and that he was a capable caring parent except when under extreme stress on balance: he could continue to provide for the child except under extreme circumstances.
In relation to the Father’s mental health in the report he expressed uncertainty as to whether he had a personality disorder. He referred to the Father’s identity issues and a remote relationship with his father. The Father did not seem to have a clear sense of who he was. He thought that his difficulty as regards self-concept might have predisposed him to depression, particularly at times of stress. The Father struggled with flexibility and tended to be overly rigid in his responses which led to conflict. When he was not able to regain control of the situation with X, it became even more difficult for him to cope, such that his behaviour at times became quite erratic “such as the incident when he had a sledgehammer and went to” the Mother’s house (lines 774-775). He concluded that he did not believe the Father to be an unacceptable risk to X.
In relation to the Mother, he was of the view that X had a strong relationship with her. He believed that the Mother did want to support a relationship between X and her father, despite “a great deal of aggravation and she has felt threatened by him” (lines 811-812). Nonetheless, she was a capable, caring parent, with no mental health issues and who did want to support a relationship between X and her father, whilst retaining concerns about the Father’s erratic behaviour.
X was found to have a strong primary attachment to her Mother and a secondary attachment to the Father and paternal grandmother. The history given by all parties suggested that she related well with the Father and was comfortable with him. X appeared to be developing normally both cognitively and emotionally. She was too young, however, to form a view for herself.
Whilst he found both parents to be capable, caring parents, both had vulnerabilities. The mother needed to be supported, which creates a vulnerability for her as she is at risk of becoming overly reliant on others to support her. The Father had vulnerabilities with obsessive self-image issues and perhaps fragile identity and has probably struggled with chronic low-grade depression (lines 891-896).
Dr R lists the four possible outcomes at lines 903-931 of his report:
1. Should there be continued restricted supervised contact between the father and X believe that this would ultimately break down and be unworkable. It is impractical for Alexandra to continue to be a supervisor indefinitely. Whilst this is serving a useful purpose at present this is not likely to be successful in the long-term.
2. Should there be a shared parenting arrangement I believe that this would not be suitable as this normally would require a high degree of sophistication between the parents with high levels of communication and cooperation. As this does not exist a shared parenting arrangement would be unworkable.
3. An arrangement of the mother having primary residence of the child and the father having regular contact would be a good outcome for the child. The major difficulty is the father’s emotional reactions and difficulty coping with Mr C and Ms Felton’s relationship and how this has created unpredictable behaviour in Mr Penman.
4. The next possibility is for Mr Penman to have the primary care of X and for the mother to have contact. This I believe could be possible. I do believe that Mr Penman would be capable of caring for the child and providing for her. I do believe that he wants to support the relationship between X and Ms Felton. However he may find it difficult to allow the child to go freely with Ms Felton and Mr C. I believe that he philosophically and emotionally has difficulty supporting Ms Felton and Mr C’s relationship which is a dilemma for him. In addition I believe that X would find it difficult to be away from her mother for substantial periods of time as she is primarily attached to the mother, although in time she would probably adapt.
His final recommendations are contained at lines 935-980:
1. I recommend that X continue to reside with Ms Felton. I believe that Ms Felton is providing well for her. I believe that Ms Felton is a capable caring parent. I do believe that she wants to support and promote a relationship between the child and the father and the father’s family.
2. I recommend that there should be daytime contact with the father. Over the next 6 months I would suggest that the daytime contact continue fortnightly for perhaps six hours on Saturdays and Sundays. After 6 months this could become unsupervised. Handovers need to occur where there is no direct contact between Mr Penman and Mr C or Ms Felton.
3. I would recommend from school age the child has overnight contact from perhaps after school to before school one night during the week for 6 months then fortnightly contact from Friday to Monday.
4. I recommend that neither parent denigrate the other parent in front of the child.
5. I recommend that both parents continue with individual counselling to help support each other with their respective situations.
6. I recommend the father undergo anger management training to help him deal with his emotional regulation issues. He would benefit from a DBT course dialectical behaviour therapy and CBT to assist him with his dysphoria and feelings of dejection.
7. Both parents should attend post-separation counselling courses through the family court and through Unifam.
8. The father needs to develop some insight into the fact that his anger and conflict about the mother and the mother’s relationship with Mr C needs to be a secondary issue to the welfare of X. If he is not able to deal with this emotional issue and there are further episodes of conflict this would be a worrying sign and his contact may need to be kept to a restricted contact perhaps to daytime indefinitely.
9. The other possible interpretation of the father’s difficulty is that maybe he needs to consider that he has self-image difficulties and that although he is having some supportive counselling through (omitted); if he is not able to overcome his anger issues and difficulties then it maybe that he has significant unresolved psychological conflicts that he would need long-term more intense interpretive psychotherapy to assist him to gain emotional insight into his difficulties. There is a concern about his lack of insight into how his behaviour may have inflamed the situation and then how his aggressive response with the police was highly inappropriate particularly when considering the needs of a small child.
Dr R was extensively cross-examined by both Counsel and Mr Penman. He rapidly conceded that the fourth option he raised, i.e., that the Father have primary care for X, was nothing more than a possibility and was not advanced as a probability. Indeed, he conceded, “perhaps I’ve overstepped the mark by even putting it in as a possibility.” (Transcript, Dr R, 15 December 2015, page 3, lines 44-45.)
Much of Mr Jackson’s cross-examination of Dr R focused on the family violence allegations. Dr R felt there was no present concern about violence but did emphasise that the Father needed to develop some insight into the fact that this anger and conflict had an impact on X and the Mother. He did acknowledge, however, “…if his Honour forms a view that the father has not formed or gained insight into his behaviour, that would put a different complexion on the whole matter.” (Transcript, page 5, lines 24-25.) He also acknowledged that it was very important for the Father to acknowledge that the violence has occurred and to show contrition and empathy. He certainly was concerned that X had been exposed to significant acrimony between the parents.
Mr Jackson, Counsel for the Independent Children's Lawyer, asked Dr R to accept a number of propositions. Those propositions were:
1)The allegations of violence were found to have been established.
2)Perpetrator contrition was absent, or present only to a limited degree.
3)The perpetrator continues to ignore boundaries and does not comply with Court Orders.
4)The victim retains emotional scars from the violence, exacerbated by lack of perpetrator contrition.
5)The victim remains anxious, an anxiety exacerbated by the boundary infringements referred to above.
6)There is evidence that the perpetrator has an explosive temper.
Dr R acknowledged that if the Court made these findings, it would be of deep concern to him and he would have to review his recommendations.
Dr R was asked to consider, in those circumstances, the potential of a no contact order. He said he would be concerned about that. X has a close relationship with her father. A no contact order might be a detrimental outcome for her. The Court would need to balance the risk issues with the detriment to X and find the least detrimental outcome. It was a balancing act. The other consideration was X’s important relationship with her paternal grandmother, as well as the cultural benefits that brings.
Mr Jackson asked Dr R to consider a seventh proposition and that was that an element of doubt remains about the Father’s mental health. Dr R agreed that this adds to the concern.
When asked to explain his assessment of the father’s mental health Dr R explained that the Father probably had chronic depression from his teenage years, there had been some adjustment difficulty and at times of stress and perhaps on two or three occasions had become suicidal or felt overwhelmed by an acute situation in the background of chronic low-grade depression. He explained that whilst he “was sitting on the fence in relation to whether he had a personality disorder” (transcript, page 7, lines 45-46), if the matters put as propositions were found by the Court to be actually so, then given the Father’s continued pattern of erratic behaviour and inability to cope with adversity, it “does raise questions about whether he does have a personality disorder and whether he’s able to adapt and adjust to these difficult circumstances.” (Transcript, page 8, lines 15-18.)
The level of psychological support that the Father would need was also explored with Dr R. He said there were two levels to this assistance. One was getting him support to be able to behave rationally and manage situations involving his daughter and the Mother. The second level was psychological assistance, at a deeper level, in relation to substantial personality and emotional dysregulation problems. He acknowledged that the Father obviously needs to undergo anger management training. He had opined, in his report, that this was a prerequisite for the Father having overnight time. Of course, for such training to be successful the Father would have to acknowledge his past behaviours and appreciate the impact of his behaviour as well.
Mr Jackson explored with Dr R a scenario in which the Court found that the Father’s family violence against the Mother was, in fact, ongoing. Dr R conceded that this would suggest the Father was still struggling to deal with the situation. If his actions were in fact exacerbating the Mother’s distress, this would ultimately impact on X, and thus he could not possibly be acting in her best interests. Ongoing family violence would demonstrate a lack of insight, thus leading to a further restriction on the Father’s time. This exchange takes place at transcript page 11, lines 39-45:
Mr Jackson:Can you elaborate as to what you opine as to be worrying?
Dr R:The inability of the father to understand that the circumstances that he is now facing are actually circumstances that he has largely created. And so – and if he is reacting to those circumstances with enormous degrees of anger and bitterness that he has created a situation for himself and yet he is not able to have insight into that, that the worrying sign is that he could create further situations that may make his situation worse and make himself even more angry. And so that would be a potential snowball effect.
In short, if the Court found that there was ongoing family violence, there was the risk that it would continue, indeed increase.
In relation to the Father’s mental health, Dr R acknowledged that he relied substantially on the Father’s self-report, rather than independent information. This, Dr R acknowledged, did create an uncertainty about the Father’s parenting capacity, and his capacity to manage conflict. All of this would merely exacerbate the Mother’s anxiety. The Mother’s anxiety, Dr R explained, would inevitably be passed on to X, even with the best of intentions not to do so.
What Dr R described as the worst case scenario, is discussed at transcript page 15, lines 19-44:
Dr R:So I think that long term supervised contact inevitably is unworkable. So it does create a dilemma.
Mr Jackson:And if therefore supervision is not the answer, what is then?
Dr R:Well, if – if the worst – if the worst case scenario that you’ve presented were that if his Honour accepted that that was the worst – that was the outcome, then the alternative is to maintain contact with the paternal grandmother and perhaps some recognition contact with the father.
Mr Jackson:I see. And you take the view at the moment, due to the nature of X’s relationship with the father, that recognition contact is important?
Dr R:Yes.
Mr Jackson:I see?
Dr R:And it may be that if his Honour was of the view that the father was not capable of developing insight, and that he presented as an ongoing risk then the recognition contact would hopefully bridge the child between now and when the child was of an older age where she could make her own decisions about perhaps establishing a more healthy relationship at an older age and ‑ ‑ ‑
Mr Jackson:Now, conventionally, if I can use that word, recognition contact involves, like, twice a year. Would that be right?
Dr R:Something brief, perhaps twice to four times a year in – in a – in a safe environment. Yes. I think it would be very worrying for the child to have no contact with the father at all because she would then be worried about what had happened to him.
Mr Jackson:Of course. Because the nature of their relationship now has progressed to that point?
Dr R:Yes.
In short, accepting the six propositions put to him by Mr Jackson, subject to the Court’s findings of course, Dr R felt that the worst case scenario would be a recognition contact order.
Dr R was cross-examined about his understanding of the Father’s actions in placing posters up in the (omitted) area. The cross-examination in this regard takes place at page 16, lines 11-39:
Mr Jackson: Now, at page 16 you do deal with the issue of the posters. If we had a situation where the mother was confronted with these posters, and some 18 months after the event the father still doesn’t appear to have shown very much contrition or apology for what has occurred, does that concern you in terms of the father’s psychiatric position?
Dr R:It does, yes.
Mr Jackson:Particularly if you were aware, doctor, that there was quite a considerable amount of elaborate time that the father spent in relation to developing the posters?
Dr R:Yes.
Mr Jackson:There were – I don’t know the number but there was a large number of posters involved. And so from a psychiatric point of view because – how would you assess that?
Dr R:Well, I did assess the father as having quite marked obsessive qualities and that he is certainly very focused, and very driven and that would perhaps explain some of his extreme – what appear to be extreme behaviour is that he has gone to – he has taken – because I think he was quite – is quite perfectionistic in his manner. So in a lot of ways those are positive qualities to be perfectionistic and driven but if the drive and the perfectionism is in an unhealthy direction then that can be a major problem. And I suspect the – he had seen, in his own mind, a significant injustice to himself and his way of addressing that was to take this fairly extreme measure of developing elaborate posters.
Mr Jackson:Can I elaborate what you’ve just said a little bit further though, and that is that if the father has seen the mother’s reaction to the poster and is lacking any contrition or apparent contrition about his conduct, doesn’t that represent a serious psychiatric concern to you?
Dr R:Well, it may shift my diagnosis from personality traits or personality characteristics to – if he is unable to see the severe impact it’s having on others, and therefore also the severe impact it’s having on his life, then that would suggest he’s not coping and adapting in his life and that is really by definition a personality disorder.
It is clear, by the end of Mr Jackson’s cross-examination of Dr R, that he was leaning towards a diagnosis of personality disorder, rather than personality traits and subject to the Court’s findings a recognition contact order might be in X’s best interests. It is clear beyond doubt that Dr R had developed concerns about his own recommendations in the report.
Ms Gillies cross-examined Dr R. It was put to him that perhaps the Father had not demonstrated the insight that Dr R had attributed to him. If this was the case, it might exacerbate the Mother’s anxiety and the stresses associated with having to deal with the Father. Dr R agreed. He accepted that it was difficult to assess contrition about past behaviours, in a forensic interview. He accepted the Father might have been minimising his behaviour.
Dr R was shown a video clip that came into evidence and agreed that this did not support the contention that the Father had gained any insight into his actions.
Ms Gillies revisited the evidence about the Father’s posters. It turns out that Dr R, in the course of preparing his report had only seen photographs of the posters but not the physical posters themselves. The posters had come into evidence. He was shown these in the witness box. He acknowledged that he might have referred to the Father’s actions in placing the posters up “as a heat of the moment event” (transcript, page 19, lines 32-35). When the Father’s own evidence elicited in cross-examination was put to Dr R, as to the time and effort that went in preparing the posters, as to their distribution and replacement when they were taken down, he rapidly agreed that if it was a repeated event, it was not a “heat of the moment event”. The extent of planning and the logistics of the posters also suggested a significant lack of insight into the Father’s actions.
Dr R further resiled from any view that the Father had demonstrated insight, when taken to the Father’s own evidence about the notes placed on the Mother’s fence, in a public place, including one that said, “Hey, you dumb bitch.” Dr R conceded from the evidence put to him that, if this was accepted by the Court, it would suggest that the Father did not have insight, struggled to contain his anger and emotions generally and had probably minimised the nature and extent of his mental health issues. Dr R was of the view that it might take up to two years of intensive therapy to deal with the sort of issues that the Father was experiencing which was now more likely to be a personality disorder.
Dr R, however, would not accept the proposition that the risk of harm to X from her father was a physical one. He described the risk as one of psychological damage, not physical harm. He acknowledged that if the Father became suicidal (as he had before) or descended into a rage (as he had before), that “he would be potentially an unacceptable risk”. (Transcript page 31, line 36). He accepted that there were numerous circumstances over the last three years where the Father had behaved irrationally and thus it did raise concerns about his ongoing ability to manage himself emotionally. However, Dr R explained, this needed to be seen in the context of the many times when he did spend time with X which were uneventful, problem-free, enjoyable times for her.
Mr Penman cross-examined Dr R. It was obvious from the Father’s questions that he was concerned about the allegation that he had not demonstrated remorse or contrition for his past actions. In a lengthy statement/question to Dr R he explained that he did not think that litigation was an appropriate forum to express contrition, but that he did “have sincere compunction, contrition. I am extremely remorseful. I do understand the consequences of my action and it’s going to possibly cost me my relationship with my daughter.” (Transcript, page 32, lines 43-46.) He even acknowledged that his actions might appear contrary to his expressions of remorse. The Court was keen to give Dr R the opportunity to respond to the father’s comments. Dr R did respond at page 33, lines 20-30:
Well, I – I – I do believe that the – the father does genuinely have a great deal of concern about his daughter and it was my view that he wants to be able to act in her best interests, but that he, at times, has been clouded by other issues that have then impacted on his judgment. And where his anger and distress about seeing the mother and the mother’s partner together that that has tapped into a sense of internal insecurity that has resulted in him losing his judgment at times. And so I think the reason I sat on the fence initially was because I did have a sense that the father was genuinely of – wanting to have a – a – a positive outcome for the child and did genuinely think that he had a great deal to offer the child. So whether he’s able to follow through with those wishes is really the – the unanswered question.
Dr R’s last sentence above is, as it turns out, prescient. As it turns out, the Father’s actions between days 4 and 5 of the hearing plainly demonstrate to the Court the hollowness of his expressions of remorse. What Dr R described as “the unanswered question” was in fact answered by the Father himself, by his actions subsequent to Dr R’s evidence.
Mr Penman suggested to Dr R that the best outcome for X was that he be given an opportunity to show how he could act in her best interest and engage in a positive relationship and to mend fences with the Mother. Dr R agreed that that would be the ideal outcome but pointed out that the history of the matter contraindicated the Father’s optimism.
The Father asked Dr R to consider the possibility that, in effect, the Mother had engaged in “some button pushing from the other side, in terms of access to the child, using that as some sort of, you know, emotional leverage to perhaps precipitate a confrontation or anything?” (transcript, page 34, lines 29-31). This was, in fact, a very interesting insight into the Father’s perception of the history of the matter. Dr R’s response is found at transcript page 35, lines 12-22:
So I think the question was would I acknowledge that the mother had pushed some of your buttons as well as the fact that you’ve pushed some of her buttons. And, I guess, my comment is that the – the mother has suffered severe harassment from you would be my perspective and that this has caused her enormous distress and strain. And in light of that I think the mother has remained remarkably balanced and remarkably open to assisting X, still maintain a relationship with you. Whereas many other situations that I would have seen that are similar to this, other mothers in her situation would have long ago withdrawn any chance of any contact between the child and the father. So, in fact, I think you’ve been very fortunate to have had a mother of your child who has maintained some degree of generosity.
Overall, it is clear to the Court that Dr R in his oral evidence distanced himself, sometimes significantly, from aspects of his written report. He accepted, for example, that the option of X living with her father was not a viable one. He accepted that it would be a real concern if the matters put to him as hypotheticals were indeed findings of Court. He categorically rejected the no contact option but believed the worst case scenario for X was recognition contact. As it turns out, the Court will find that almost every allegation that the Mother makes against the Father is in fact true. The Court will find that the six, indeed seven, propositions put by Mr Jackson to Dr R, are in fact all soundly based on fact. Dr R’s written report was a highly optimistic assessment of the Father and one which in fact bears no reality to the facts as found by the Court.
The Evidence – Family Violence and its Implications
The Court does not intend to deal with each and every allegation of family violence made by the Mother against the Father. The focus will be on the major events, and not just what happened, but how the Father subsequently responded to these events after the fact.
The Mother applied for an Apprehended Domestic Violence Order (hereafter referred to as ‘ADVO’) on 21 December 2013. It is uncontentious that the application for the order was served on the Father on 24 December 2013. An interim order was made on 15 January 2014. The interim order was made final after a defended hearing on 12 May 2014. The application for the ADVO was based on an event that took place at about 4:00pm on 20 December at a service station in a suburb of (omitted). The parents met for the purposes of changeover, i.e. X was going from the Mother’s care, to the Father’s care. The Mother alleges, and the Court accepts, that the Father said to her, “Don’t you ever be late again, you fucking skank, you fucking slut.” The Mother walked away, having handed over X, but the Father persisted, saying, “You’re never going to see X again, you will have to get a recovery order, you will have to find her, though.” The Father drove off. There was a subsequent exchange later on that afternoon between the parents. The police attended. The Father agreed that he did say that the Mother would never see X again, but he said he said it in the heat of the moment. The application records the police held fears that the Father, who lived at the time two houses away from the Mother, was verbally abusing the Mother in front of the children. They were further concerned that when the police spoke with the Father, he was angry and aggressive and openly abusive of the Mother in front of the police.
The Father was cross-examined about the events at the service station. For the most part, he agreed that he said the things attributed to him, not just in the presence of X, but also in the presence of the Mother’s other children, C and D. He agreed it was a reprehensible thing to say in the circumstances, particularly in the presence of the other children. He agreed that his words would have caused great distress. He agreed that what he said was designed to provoke fear in the Mother. He agreed that he had been admitted to a psychiatric ward just a matter of months before arising out of suicidal ideation. He agreed that with that context, when he said to the Mother that she was never going to see X again, that would have caused terrible fears for X’s safety. The Father accepted in cross‑examination that as at 24 December 2013, the day after the incident in question, after he had been served with an interim application, he was aware that the Mother was fearful about him and in particular, what he might do next.
The Mother, who had up until then been supporting X’s time with the Father, cancelled the next contact visit, whilst suggesting an alternate short visit for Christmas. On 30 December 2013, as the Mother’s house was on the market for sale and the subject of an open for inspection, she took her children and X to a local park. She was breastfeeding X. Her older children were playing soccer. The Mother deposed that the father suddenly arrived and “stormed over toward me and pried X from my arms despite the fact that I was still breastfeeding her.” (Mother’s affidavit of 1 December 2015, paragraph 157) The Mother tried to leave with X and the other children. The Father climbed into the car to take X, as they were about to leave. She managed to push the Father out, but he opened the door again and as the mother was driving away, yelled out, “You assaulted me,” and then reported the matter to police.
The Father was cross-examined about this event. He contends that, despite the incident at the service station which led to the ADVO being served on him, when he encountered the Mother in the park, it was not at the forefront of his mind that she might be concerned about him. He conceded that there was an ADVO out on him and he conceded that at any point, he could have been reported for a breach of ADVO. Whether there was a provisional order made against him or not, it is clear from the evidence that the Father gave that it was in his mind that a provisional ADVO had been taken out. He explained that all that he was thinking about was that he had not seen X for quite a while and there was an opportunity for him to have some contact with her. In fact, the “quite a while” that the Father referred to was only about ten days. It was put to him that his encounter with the Mother in the park was not a “chance encounter”. He disagreed. Whilst the Father disputed whether the Mother was in fact breastfeeding, the Court prefers the Mother’s evidence in this regard. He agreed that he took X away, remained in the vicinity, but accepted that he knew the Mother did not want him to do that. He explained in cross-examination that his actions were motivated by having been denied contact on Christmas Day. He explained that he was simply driving past the park, along a regular route that he often took. If this were the only “chance encounter” between the parents that the Father alleges, the Court might even be inclined to accept his evidence in this regard. Regrettably for the Father, this is far from being the only “chance encounter” between the parents, and the Court is inclined, having regard to the totality of the evidence, not to accept the Father’s protestations that he just happened to be driving by. The more likely scenario is that he was either looking for the Mother, or hypervigilant about the Mother’s movements, just in case it created an opportunity for him to see X.
The Father agreed in cross-examination about the incident at the park, that the Mother had taken a video-recording of the Father, which showed, in particular, that he entered the Mother’s vehicle, leant over the Mother and tried to engage with X as the Mother was trying to put her into the car seat. He explained that he wanted to say goodbye to her. In all likelihood the Father leant directly over the Mother and came into physical contact with her. The Court finds the Mother asked the Father to step out of the car several times and he eventually did. At one point, one of the other children tried to close the door, but he flung the door back open. He agreed that he then tried to re-enter the vehicle, that the Mother pushed him back, telling him to “get out of my car” and that as she tried to drive away, he was still hanging in the door, yelling out, “It’s an assault.”
The Father agreed that, once again, and consistent with the incident at the service station just a short while before, his actions exposed X and the Mother’s other children to parental conflict. He agreed that he then went to the police station to record the event as he considered that he had been assaulted. Later on in cross-examination, he acknowledged that, with hindsight, attending the police station was a knee-jerk reaction but he did it anyway. The Father said at transcript page 66, lines 5-7, “If I was cognizant – full cognizant of the implications and ramifications of my actions and behaviours at the particular point in times then those – those would – wouldn’t have happened.” He explained that, during cross-examination, he was expressing insight into them because he was being specifically asked, but not because he had insight then.
The application for an ADVO first came before the Court on 26 February 2014, and an interim order was made. A number of relevant events occurred between 30 December 2013 (the park incident) and the date of the interim order. The significance of these dates should be self-evident – the Father knew of the ADVO proceedings and, indeed, was under the impression that a provisional order had been made.
On 2 January 2014, the Father emailed the Mother as well as leaving a note in her mailbox which stated, “What a nightmare it will be for you if council found out about some unauthorised work on your house.” The Mother says that she found this intimidating. The Court accepts her evidence. On 4 January 2014, the Father forwarded another email to the Mother, attaching a copy of the local council’s unauthorised building work policy. Within a month a council inspector attended the home to check for allegedly unauthorised works, but found no issue. The Father agreed in cross-examination that he did report the matter to council.
On 6 January, the Father again emailed the Mother. The email is the Annexure U to the Mother’s affidavit. The email is too long to reproduce. It starts, however, with the words, “For the record, I feel you need to acknowledge that you have selfishly, consciously and deliberately made every effort to stop X spending any time whatsoever with myself her father, A and B her Penman siblings, her grandparents and extended family…” The Mother’s evidence is that she was exhausted by the constant communication from the Father which she found harassing. Whilst the Court has not set out in these reasons all the communication between the Father and the Mother, the Court agrees with her assessment that it was exhausting, and the Court finds that she found it harassing. At paragraph 164 of her Affidavit, she expresses the view that the Father could not acknowledge in any way his part in her concerns about X spending time with him. That is unquestionably correct, both at the time of these events, and with the benefit of all of the evidence continues to be the case.
On 9 January at about 8:00pm, the Mother left her home but noticed the Father outside the front of his house. She drove to her partner’s home. She observed the Father to drive past her, waving and blasting his horn. She formed the view that he had followed her. Having regard to all the evidence, the Court believes this was a reasonable fear for her to apprehend. She deposes at paragraph 166 of her Affidavit that the Father then got out of his car and yelled words to the effect “trailer trash” to her and then started calling out to X. The Mother deposes, and the Court accepts, that she was upset and scared that the Father would be doing this, particularly in circumstances when he knew (at the very least) that an ADVO had been served on him and was shortly to be dealt with.
At paragraphs 173 and 174 of her Affidavit, the Mother gives evidence about the family dog, (omitted). She described the dog as being very precious to X. (omitted) disappeared. The Mother later found her at the pound and paid the fines involved to recover her. She deposes that the council officer said to her words to the effect, “A man a few houses up had her.” At paragraph 174, she deposes to a second occasion when (omitted) disappeared, as they were moving to their new home. She assumed that the Father had taken (omitted). She in fact telephoned a council ranger who confirmed this. She believed that the Father later released (omitted) onto the street without telling anyone that he would do so. In cross-examination, the Father agreed that he rang the council inspectors and turned (omitted) over to them. His explanation was that he saw (omitted) wandering the streets with no collar and as he was precluded from contacting the Applicant, he thought the best thing was to ring the council who then picked the dog up. Of course, these events took place in early 2014 and the Father, in cross‑examination, certainly confirmed that at the time of this incident he knew he could not contact the Mother, meaning that he was under the impression that an interim or provisional order had been made. It is unclear whether an interim order had in fact been made at that time. In cross‑examination, the Father also agreed that there was a second occasion when the council inspector visited his home in order to try to retrieve (omitted) from him. All he could say was that (omitted) was familiar with his home and would return to it frequently. He professed not to recall the visit by the council inspector and that he would not hand the dog over and that he had the dog locked inside. The Court believes that it is more likely than not that the Father’s denials are disingenuous and that his actions in relation to (omitted) were yet another form of intimidation and harassment of the Mother with total disregard to the impact of this on X and the Mother’s other children.
The interim order was made on 15 January 2014. The focus of the evidence then turns to events between that date and the date it was made a final order on 12 May 2014. At the time of the interim order, the parents were living two houses away from each other. The Mother had complained about the Father’s harassment and abuse from his home on several occasions. On 22 April 2014, she moved house. During this move, she alleges and the Court accepts, that the Father continued to abuse both her and her partner Mr C who was helping with the move.
On 12 May 2014, the Father was charged with breaching the ADVO as a result of abusive emails forwarded by him to her. A final ADVO was also made for 12 months.
On 19 May 2014, the Mother became aware for the first time that the Father had stuck up posters all around (omitted) about X and herself. Many originals of these posters came into evidence. The posters were placed on power poles throughout the (omitted) area. The best estimate the Court can form, from the totality of the evidence, is that there were at least 40 such posters put up. A common feature of the posters is that they show X in a large photo. Sometimes, there is a large photo of X with the Father, sometimes a smaller photo to the same effect. The captions included, “Bring back my girl!!!”, “Bring back my girl!”, “My daddy loves me and I want to see him”, “Have you seen X? X’s whereabouts are unknown. Can you help. The mother, Ms Felton has made a very deliberate effort to prevent X’s father from having any care, access or contact with his daughter.” The posters in question are sometimes black and white and sometimes in colour. It is uncontentious that the posters in question were also displayed on the Father’s motor vehicle.
The Mother deposes that she became personally aware that the posters were placed all around the suburb in which they lived and around the school that her children attended. She deposes that she was told by other parents of children at her daughter D’s school and some of her classmates, that there were also flyers dropped into letterboxes. She estimates that she removed at least 40 posters from the neighbourhood. The Mother deposed to the significant impacts that the posters had on her and her children. Each of her children expressed humiliation and embarrassment at the flyers and posters. She was in tears, often in the presence of her children. She was constantly worried about the Father following her and whether he would turn up where she was. She checked the doors and locked and rechecked them every night.
The Father was, of course, cross-examined about the posters. He agreed that it was an absolutely dreadful parenting decision that he made and that he developed this insight by the time he swore his first Affidavit on 6 August 2014. Notwithstanding that, he agreed that nowhere in that Affidavit, or in any of the subsequent Affidavits, does he express or acknowledge that he made an absolutely dreadful parenting decision in putting these posters up. He tried to explain the absence of remorse by reference to the legal proceedings. Reflecting on his acts, he agreed that “in that moment, at that time, I was acting irrationally and I probably didn’t give that enough – enough thought or consideration as I possibly should have…” (transcript, page 22, lines 10‑11).
He was challenged by Ms Gillies, Counsel for the Mother, about the use of the words “in that moment”. She skilfully elicited from the Father acknowledgements that in order to have the posters printed, he had to compile the photographs, think up the slogans, undertake the layout and then travel to a printer to have them printed out. In addition, it was not just the posters but there were leaflets. He agreed that there was a letterbox drop but insists that it was only one or two letterboxes. He insisted that it would be a pure coincidence if it were the case that leaflets were found in letterboxes belonging to parents or households connected with D’s school. The Court does not accept this. At transcript page 24, lines 38-41, the following exchange takes place:
Ms Gillies:So you just got lucky, did you? So as you sat there and you collated these photos and you thought up these slogans including, “Dads against Malicious Mothers”, it didn’t occur to you as you were doing the mock-up on your computer that this was an absolutely disgraceful parenting decision, did it?
Mr Penman:No. Not at that time, no.
The Father agreed that after he compiled the posters he probably stored them on a USB. He agreed there were different types of posters. He agreed there were at least three different types of photos. He agreed that one poster referred to “Dads Against Malicious Mothers”. He agreed that they were in black and white and blue and orange. He agreed that he printed off dozens of these posters and then he had to paste at least some of them to pieces of cardboard. He agreed that he then went throughout (omitted) and started taping them on electricity poles. He taped them up. He could not provide a plausible explanation as to why some of the posters had a contact number for him and others did not.
The following exchange then took place between Ms Gillies and the father, at transcript page 27, lines 7-46:
Ms Gillies:Right. So what you’re saying to his Honour is over the process of mocking up these posters, having them printed, preparing them for hanging, taking them around the area and hanging them up, it never occurred to you that you were making an absolutely disgraceful parenting decision; correct?
Mr Penman:If I felt that that was to a graceful parenting decision, then the – the posters wouldn’t have been done.
Ms Gillies:Right. And when you said to his Honour that in the moment you didn’t realise they were, I’m going to suggest to you that there were – there was plenty of time leading up to you hanging these in the (omitted) area for you to reflect and realise what a terrible thing you were about to do. Do you agree or disagree?
Mr Penman:At the time I – I probably wouldn’t agree with that as I was concerned with the whereabouts of my daughter, and there were other emotive issues that were happening at the time.
Ms Gillies:You used the term this morning “in the moment I didn’t realise what a terrible parenting decision I was making”?
Mr Penman:I ‑ ‑ ‑
Ms Gillies:But what I’m suggesting to you is that there were plenty of moments leading up to you hanging those posters where it should have occurred to you that what you were about to do was an absolute disgrace?
Mr Penman:My overriding concern with – was with trying to locate a daughter that I hadn’t seen for eight months and then didn’t know the whereabouts of. That’s what was my ‑ ‑ ‑
Ms Gillies:In fairness to you ‑ ‑ ‑?
Mr Penman:Mm.
Ms Gillies:‑ ‑ ‑ I’m going to ask the question one more time?
Mr Penman:Mm.
Ms Gillies:There were plenty of moments for you, leading up to you hanging these posters, where you should have realised what an absolutely disgraceful thing you were about to do. Do you agree with that?
Mr Penman:It was a bad decision, yes.
Ms Gillies:Right. Why was it a bad decision? Why would you – why have you agreed with the proposition that what you did was an absolutely disgraceful parenting decision on your part?
Mr Penman:For all the points that you’ve – you’ve just outlined.
Ms Gillies:No, no. I haven’t made any. You tell the court why you say this was an absolutely disgraceful parenting decision on your part?
Mr Penman:It caused a lot of distress and angst and it – it put X in a – in the public eye. It wasn’t, at the time, definitely not in – in the best interests of the daughter or the – or the applicant in terms of being able to care for the daughter. It caused distress, it caused humiliation to family members. It brought our – our private affairs out into the public eye.
The Father deposed that he found the Mother’s actions “intrusive, inappropriate for an employee … and completely unwarranted as this was genuinely a coincidental encounter.” The Father deposed that on 3 April 2016, A and B were in his care. His son A had telephoned him to ask him to stop in at (omitted) to get a loaf of bread. He entered the (employer omitted) and found the bread aisle. As he was walking towards the far end of the bread aisle, he noticed the Mother who initially had her back to him. He says that he heard the Mother say to a fellow employee, “Quick, come here. Watch this.” And that the Mother then called out in a loud voice, “Mr C, Mr C, Mr C, come here.”
The Father deposed that:
Due to all the commotion the applicant was now causing I hurriedly grabbed the loaf of bread, and went to leave. However, as I turned, the applicant had obviously followed me as she was now standing directly next to me taking photos with her phone.
As this was the second incident where he was filmed by the Mother whilst working at the (employer omitted), he walked away saying words, Where is your manager?” He denied swearing. The Father deposed to going to the (omitted), requesting to speak to the manager, and only then seeing X being carried by D. He says that X saw him, and was “smiling, looked happy and excited to see me.” He deposed to the conversation he had with the store manager and security guard.
The Father was cross‑examined on his evidence. He was reminded about the effect of the Orders requiring him not to go within 500 metres of the Mother. He explained that he had now revisited the Orders and acknowledged it refers to 500 metres but the fact was that he was now living in the same suburb as the Mother, having moved back into his own mother’s home, i.e. the paternal grandmother’s home. He agreed, however, that he had not told the Mother’s solicitors or the Court of his change of address.
It was put to the Father that he could shop in other places if he wanted to. The Father replied, with much insistence the Court notes, that that was not the case and that it had been his routine for seven years to attend that (omitted) for the purposes of obtaining gluten‑free food. It was put to him that there was a neighbouring suburb only five minutes away which might sell the same food. He replied, again emphatically, “No, it’s too far away.” He later explained that it was a few kilometres away – “maybe a 10-minute drive” – and it was “way out of my way.”
He was asked whether he had inquired whether there were other stores that stock gluten‑free products. He explained no and that he had “always gone there, and it is convenient to my mother’s place.” He agreed that he had continued to shop exclusively at that particular (omitted) for gluten‑free products, since 3 April 2016. He explained that that was part of his routine.
The Father was cross‑examined about his evidence that he had moved from his home, to the paternal grandmother’s, and thus even closer to the Mother’s home. It was put to him that his encounters with the Mother in public made her anxious. He explained that he could not understand why. After all, she moved to an area where she knew that he had connections. Despite the Mother’s concerns, and the history of the matter, it was pointed out to the Father that he, as a result of moving to the paternal grandmother’s home, had actually moved closer to her.
It took three attempts before the Father conceded that that was, in fact, the effect of his move. He explained that he had to move to look after the welfare of his elderly mother and for financial reasons. His mother was, after all, the strong connection that he had to the suburb in question.
The Mother’s version of the events was then, systematically, put to the Father. He denied her version. As previously mentioned in these reasons, he also denied knowing that she worked at that particular (employer omitted) even though, as the Court finds, he asked the question that led to the Mother telling the Court about this. He maintained that 2 February 2016 was the first time that he became aware that she was working at that particular (employer omitted). That is plainly incorrect, as the Court has already found.
The Mother’s version of events on 3 April were again systematically put to him. He denied the same. He agreed, however, that he felt like his rights had been violated as a result of the incident and agreed that he did raise the question of his rights in the discussion with the store management. He agreed that he wanted to have action taken against her, because of what he considered to be her inappropriate behaviour.
The Father could not accept the Mother’s reaction to the incidents. Indeed, he explained that he found it humiliating and embarrassing to go into the (omitted). His rationale, however, was that if the event was as the Mother asserted, the (employer omitted) would have taken action to exclude him, instead of welcoming him to shop there.
When it was pointed out that by approaching the Mother’s employers and making the complaint that he did, that he was putting at jeopardy her job he explained that that was “not my responsibility … it was her choice to act inappropriately … there was nothing that I contributed to.” When he was asked whether it had crossed his mind that she might lose the job and suffer financially, his response was that this “should have crossed her mind.”
It was put to him that on 2 February 2016 when he entered that (employer omitted), he knew that there was a personal protection order in place. Initially he said that he did not know, then he acknowledged that he did know about the 500 metre exclusion at changeovers, but not necessarily the rest of the order. He was reminded, however, that he was present in Court on 1 February 2015 when the Orders were made, and he was represented by his solicitor Mr Wilson. He agreed.
He acknowledged that he was present at the time the order was made. It was suggested to him that it was nonsense to assert that on 2 February 2016, he did not know of an order made against him a year before. He acknowledged, reluctantly, that he was aware of the 500 metre exclusion zone but he proffered the opinion, “It’s not practical anyway.” He maintained that he knew that there was an exclusion order but was uncertain as to its extent.
It was put to him that when he then returned to the (employer omitted) on 3 April 2016 he was again aware of the presence of an order that restrained his presence there. He denied that. He maintained that he did not become aware of it until discussions with (employer omitted) management, the first of which was on 9 April 2016. It was put to him that, surely, after that conversation this would have caused him to go back over his records and come to the realisation that he was not supposed to be there. He disagreed.
He was reminded that earlier in cross‑examination he had told the Court that he did not intend to change where he shopped. He conceded, however, that now that he was fully aware of the conditions of the exclusion order, he would not attend.
He was then cross‑examined about the Mother’s proposal for a personal protection order. He did not see the need for it. He would agree not to go to the Mother’s home. He would have some reservations about not attending the Mother’s workplace. He agreed that if no such order was made, he would continue to shop at the particular (omitted) where she worked.
He was again pressed about the availability of alternative (omitted) where he could purchase his groceries, especially in a neighbouring suburb. He explained that this would be “extremely inconvenient, especially if I’m just getting a loaf of bread.” It was put to him that the (omitted) in question was not the only place where he could get a loaf of bread, proximate to his home. He insisted that “in terms of convenience and price, it is.”
When it was put to him that this was just an excuse, he would not agree. When it was pointed out to him that his own aspiration of rebuilding a parental relationship with the Mother was hampered by attending where she worked, he said words to the effect, “Quite to the contrary.”
When pressed, the Father agreed that he was, at the very least, annoyed by what he perceived the mother did, i.e. filming him. Indeed, he was so annoyed and frustrated that he wanted something done about it. He agreed, however, that he did say something about his rights as a customer, that he wanted action taken against the Mother and that he wanted a formal complaint made against her, or something along those lines. His view is that the Mother’s version of events was fabricated and exaggerated. He characterised both the encounters at (employer omitted) as coincidental ones at which he said nothing and did nothing.
Towards the end of his cross‑examination he reluctantly conceded that yes, he did know that she worked there but insisted he did not know when. He was reminded that in fact she said that she was working as a (occupation omitted). He agreed. When it was pointed out that he went at night, he was unresponsive. The Father scoffed at the suggestion that he had followed the Mother to her workplace. He explained that going back there on 3 April 2016 was total coincidence. He rejected the suggestion that he was stalking the Mother as “out of this world”.
The Court has previously expressed concern about the Father’s evidence. The Father’s evidence about his attendances at (employer omitted) on 2 February 2016, and then again on 3 April 2016, was unresponsive, elusive and evasive almost to a pathological degree. It is more likely than not that the Mother’s version of both events is correct. Her events are at least partially corroborated by Mr C. The Court does not accept the Father’s version of these events. The Court does not accept that the Father was not aware of the terms of the exclusion order.
Even if the Court gave the Father the benefit of the doubt about what he considers to be the “coincidental encounter” with the Mother on 2 February 2016, it is incomprehensible to think that he would return there on 3 April 2016, unless there was an agenda to harass, stalk or intimidate the Mother or at least a glaring indifference to the possibility that his presence there might be construed in that fashion and have that effect.
The significance of the events that took place at (employer omitted) in the suburb in which both parents now live on 2 February 2016 and 3 April 2016, cannot be over‑emphasised. The Father showed a capricious disregard for Court Orders. Despite his protestations in cross‑examination earlier in the hearing, his actions on those days demonstrate lack of remorse and contrition, scathing indifference about how his actions might impact upon the Mother and enormous deficits in his insight about how his actions might impact on his own daughter.
Family violence, as defined in the Act, takes many different forms. It seems that an almost universal feature of any form of family violence is that it casts a giant shadow on later events. Family violence is manifested not just by actions, but by attitudes. The Father has demonstrated in this case not just the propensity to be violent, but almost a pathological lack of remorse and insight about the potential effect of his actions, not just on the Mother, but on his own daughter X.
The harsh, but appropriate reality of the law as it is applied to the facts of the case discussed so far is that the Court’s findings would enable it to rebut the presumption of equal shared parental responsibility and to make an order for sole parental responsibility. Amongst other things, this means the Court does not have to consider equal time, or substantial and significant time, though the order it makes must still be in X’s best interests.
The other legal consequence is that the need to protect X from the risk associated with having a father who has perpetrated family violence is not obviated by the desirability of her having a meaningful relationship with him. Protecting X from the insidious attitudinal deficits that are manifested by her father becomes far more important than seeking to preserve the meaningful relationship which, the Court acknowledges, exists between them.
Risks to X: Other Factors?
In the previous section of these reasons the Court has found that the Father has in fact perpetrated the family violence alleged by the Mother in many different ways and at different times. The Court has also soundly rejected his contention about contrition. The evidence also demonstrates that, notwithstanding the Father’s protestations in cross‑examination to the contrary, he has not complied with boundaries set by Court Orders, indeed seems to demonstrate a blithe indifference about this.
What is abundantly clear to the Court is the emotional fragility of the Mother which, the Court accepts, is almost entirely attributable to the Father’s systematic harassment and intimidation of her. That the Father appears to lack any genuine contrition merely exacerbates this. The Father’s recent attendances on her workplace merely adds to the anxiety that she justifiably experiences about him.
Whilst Dr R appeared to reject the risk of physical harm to X by her father, the Court cannot exclude this possibility. The Court accepts that the Father is capable of explosive outbursts of anger. The sledgehammer incident at the Mother’s home is bad enough when viewed in isolation, but its significance is magnified when all of the events between December 2013 and May 2014 are considered as a pattern. That the Father would turn on the police who attended at the scene in such a violent fashion, merely confirms the explosive nature of his anger. The Court takes no reassurance from the fact that there have been no known manifestations of the Father’s explosive anger since then.
Of concern is the inability of the Court to be satisfied about aspects of the Father’s mental health. Whilst, on balance, Dr R’s evidence probably leans very much towards personality disorder, the Father seemed to be very careful to minimise the mental health aspects of his departure from his employment earlier this year. One would have to be concerned about the Father’s response to Orders that might radically alter his existing spends time with arrangement with X. He has a history of suicidal ideation, of violent outbursts, of mental health admissions.
He appears to lack a support system. Indeed, his mother appeared to know far less about the Father’s life and problems than his former wife did. It surprises the Court that his former wife knows as much about the Father’s past mental health issues, but appears to have so few concerns about her children spending time with him. The Court formed the impression that there is much that Ms M does not, in fact, know about Mr Penman.
All of these are risk factors that cumulatively confirm the Court’s view that it is in X’s best interests that there be a drastic reconfiguration of the spends time with arrangement she has with her father.
The fact remains, however, that the only independent expert evidence in this case, i.e. that of Dr R, rejected a no contact order, and postulated that the worst case scenario was a recognition contact order. Whilst this is not the first or preferred proposal by either the Independent Children's Lawyer, or the Mother, the Court believes that, in the difficult circumstances of this case, it is in fact the least of the worst options for X. She will be safe in the controlled environment of a supervised contact centre.
If it is only four times a year, the visits are logistically possible and the imposition on the limited resources of a supervised contact centre is not unreasonable or disproportionate. In the circumstances, the Court believes it is in the best interests of X to make an order to this kind.
Orders in the Best Interests of X?
The totality of the evidence before the Court leads it to conclude that an order for X to have four supervised visits with her father each year is the order that is in X’s best interests. This will be a major change in X’s life, but one which the Court believes exposes her to a much lesser risk than continued regular time with her father. There is no basis for excluding either the paternal grandmother or the father’s other children, from these times with X.
The Mother proposed that the Father be permitted to send cards and presents to X via the agency of the Independent Children’s Lawyer. This indeed is also the Independent Children’s Lawyer’s proposal. The Court has no hesitation, therefore, in making this order.
The Mother sought a protective injunction relation to herself, X and her other children and partner. The evidence certainly supports the making of this order as regards both her and X. Indeed, as wide as the order is, it is a proportionate response to the evidence before the Court. But can the order extend to her other children and partner? Section 68B(1) does not empower the Court to make an injunction to protect persons other than X or her parents. Section 114 is of even less application to the present facts. The Mother will need to seek the protection of State law as regards the rest of her family.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 14 September 2016
Schedule One
Applicant Mother’s proposed Minute of Order
That the Mother have sole parental responsibility of the child X born (omitted) 2011.
That the child live with the Mother.
That there be no contact between the child and the Father.
That subject to the provisions of Order 5, there be no communication between the child and the Father.
That the Father be permitted to provide to the child twice every year:
a.Her birthday cards and/or birthday presents, and
b.Christmas cards and/or birthday presents.
c.Such items should for the first year after the date of these orders be provided to the ICL through the postal address of the office Maguire and McInerney Solicitors of Wollongong, and thereafter be provided through a Postal Office Box belonging to the Mother.
That the Father be restrained from:
a.Assaulting, molesting, THREATENING, harassing, stalking, intimidating or otherwise interfering with the Mother or any member of her family or household. (THIS SHALL INCLUDE C BORN (omitted) 1999, D BORN (OMITTED) 2003, MR L BORN 1997, MR C BORN (omitted) 1973, MS M.
b.Approaching or being within 100m of the mother or any member of the mother's family or home.
c.Coming within 100 metres of any place at which the Mother shall work
d.Coming within 100metres of the mother's residence
e.Coming within 100 metres of the child's school (OR ANY SCHOOL THAT C BORN (omitted) 1999 AND/ OR D BORN (omitted) 2003 MIGHT ATTEND FROM TIME TO TIME)
f.Publishing any photographs or videos of the child on any medium, in any public place or on social media OR PUBLISHING OR POSTING ANY DEROGATORY OR CRITICAL COMMENTS OF THE MOTHER OR ANY MEMBER OF HER FAMILY OR HOUSEHOLD AS DEFINED IN ORDER 6a ON ANY MEDIUM, IN ANY PUBLIC PLACE OR ON SOCIAL MEDIA.
Order 6 is an Order for the personal protection of the mother or any members of her family or household pursuant to section 68B of the Family Law Act to which a power of arrest without warrant, attaches pursuant to Section 68C of the Family Law Act.
That the mother be at liberty to apply for the issue and/ or renewal of an Australian Passport for the child, without the signature or consent of the father.
10.THAT THE FATHER PAY THE MOTHER'S COSTS OF THIS APPLICATION.
IN THE ALTERNATIVE TO ORDER 3
11.The child X shall spend time with the father:
a.on the 1st Saturday in February, July and September in each year for 2 hours
b.on the 2nd Saturday in December in each year for 2 hours
with such time to be supervised by CatholicCare in (omitted).
12.The father is to pay for the cost of supervision of his time with X.
NOTATION
A.The mother shall within 21 days of these orders attempt to make contact with Ms M for the purposes of attempting to facilitate time between X and her half siblings, A and B
Respondent Father’s proposed Minute of Order
PARENTAL RESPONSIBILITY
That the parents shall have equal shared parental responsibility for the child X born (omitted) 2011.
That the Applicant Mother shall have sole parental responsibility for making decisions concerning the child in respect only to issues that are not major long term issues being those relating solely to the day to day care, welfare, and development of the child whilst the child is her care .
That the Respondent Father shall have sole parental responsibility for making decisions concerning the child in respect to issues that are not major long term issues being those relating to the day to day care, supervision, activities, welfare, and development of the child at all times that the child is in the care of the Respondent Father.
That the Applicant Mother consult the Father and seek the expressed written consent and signature of the Respondent Father before applying for the issue and or renewal of an Australian Passport in the name of the Child X born (omitted) 2011.
That the Applicant Mother consult the Father to seek the expressed written consent and signature of the Respondent Father before applying for the issue and or renewal of any documents altering any identifying details of the Child X born (omitted) 2011 these being but not limited to the child's Birth Certificates, name or surname being - Penman.
That the Applicant Mother make every effort to both encourage, facilitate and foster the child's development of a significant and meaningful relationship with the Respondent Father.
LIVING ARRANGEMENTS
That the Child live with the mother until such the child reaches an appropriate age, level of maturity and or independent expression of will that should the child express a want to live with the Respondent Father that the mother will encourage support and facilitate the Child living with the Father.
That the Mother not be accorded the liberty to relocate with the child more than 60 mins away from her current place of residence at (omitted) in the state of New South Wales and be restrained from relocating the child's residence to any location which would impede the ability or make the maintenance of the fathers access and relationship with the Child unreasonably difficult due to accessibility issues such as remoteness nor a location with a lack of public transport infrastructure.
TIME (S) THE CHILD SPEND WITH THE FATHER
That the Child spend time with Respondent Father as follows :
a.From the making of these orders until the child turns 7 years of age each alternate weekend from 9.00am Saturday ,overnight to 10 am Sunday to coincide with the times the respondent Father has his other two children in his care on those weekends.
b.in the event that any weekend falls on a long weekend including a Monday then the time the Applicant Father spends with the child shall be extended to 10 am Monday; if it falls on a long weekend including Friday the time shall commence on 6 pm Friday
c.From the making of these orders until the child turns 7 years of age each weekend from 10.00 am Saturday, to 6pm am Saturday to coincide with the times the respondent Father has his other two children in his care on that weekend.
d.Once the child reaches 7 years of age and has commenced and settled into a school routine the child will be picked up from school at finishing time (to be advised) and spend an additional one weeknight overnight until 9.00 am the following morning and be dropped off to school.
e.half of all School Holidays with each alternate Christmas Holiday to include Christmas Day from 9 am to 6 pm
f.From 10 am until S pm on Christmas Eve 2015 then each alternate Boxing Day 2016 and each alternate year thereafter
g.Alternating four (4} hours and 6 hours on each of the Child's Birthdays.
g. 9 am to 3pm on Fathers Day each year.
h. Such further times as the Parties may agree from time to time.
SUPERVISION
10.That all the times the child spends with the child be unsupervised.
11.That all the times the child spends the respondent Father is not to be at any formal supervisory centre.
CHANGEOVER
12.The Applicant mother is to deliver the child to the Respondent father at a neutral supervised family change over centre until the child commences school then at the Fathers usual or current place of residence and the Applicant mother is to collect the child from the respondent Fathers usual or current place of residence at the conclusion of her with the respondent father.
PARENTAL COMMUNICATION
13.That for the purposes of communication all communication be; in writing via email provided personally or posted to the respondent fathers letter box in a sealed labelled envelope via email or Phone to the Applicant Mothers Legal Representative.
SPECIFIC ISSUES
14.That the Mother, whilst there is a case registered against the Respondent father on behalf of the Applicant mother by the Child Support Agency the applicant mother shall meet all costs incurred that are associated with the health, welfare, care, extracurricular activities medications. Medical, dental treatments of the Child X at all times whilst in the care or residing with the Applicant Mother.
15.The Applicant mother shall take all reasonable and protective measures and steps to minimise the child X's exposure to any inappropriate, activities of precocious sexualised behaviours, activities, actions of her older sisters D and C and her partners Daughter E including but not limited to age inappropriate clothing, sexualised dancing, discussions, conversations, application of facial make-up.
16.The Child X not share nor sleep in the same room with any male child or specifically the sons of her Partner Mr C.
COSTS
17.That the Mother pay the costs of the proceedings and Counsel fees incurred by the Respondent Father.
Independent Children’s Lawyer’s proposed Minute of Order
That the Mother have sole parental responsibility of the child X born (omitted) 2011.
That the child live with the Mother.
That there be no contact between the child and the Father.
That subject to Order 5, there be no communication between the child and the Father.
That the Father be permitted to provide to the child twice every year:
a.Her birthday cards and/or birthday presents, and
b.Christmas cards and/or birthday presents.
c.Such items should for the first year after the date of these orders be provided to the ICL through the postal address of the office Maguire and McInerney Solicitors of Wollongong, and thereafter be provided through a Postal Office Box belonging to the Mother.
That the Father be restrained from:
a.Assaulting, molesting, harassing, stalking, intimidating or otherwise interfering with the Mother or any member of her family or household
b.Coming within 200 metres of any place at which the Mother shall reside.
c.Coming within I 00 metres of any place at which the Mother shall work
d.Coming within I 00 metres of the child's school
e.Publishing any photographs or videos of the child of any medium, in any public place or on social media.
Order 6 is an Order for the personal protection of the Mother or any member of her family or household pursuant to section 68B of the Family Law Act to which a power of arrest without warrant, attaches, pursuant to section 68C of the Family Law Act.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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