Gallea & Gallea
[2020] FCCA 2602
•18 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
GALLEA & GALLEA [2020] FCCA 2602
Catchwords:
FAMILY LAW – Parenting – no specific or defined parenting Orders sought by Applicant Father – parents unable to communicate effectively – regular emotional outbursts by Father – history of Father unilaterally withholding young child from Mother who was and remains his primary carer– unacceptable risk of emotional abuse to child – Father to undergo supervised time for a period – Father to undergo mental health assessment after completing supervised time which is to include the notes from the contact centre – Orders as sought by the Mother made as being in child’s best interests.
Legislation:
Family Law Act 1975 (Cth), ss.60CC(2)(a); 60CC(3)(a)-(m); 65DAA
Cases cited:
AMS v AIF (1999) CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Johnson & Page (2007) FLC 93-344
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose [2008] FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
Slater v Light (2013) 48 Fam LR 573
Applicant: MR GALLEA
Respondent: MS GALLEA
File Number: CAC 265 of 2018
Judgment of: Judge W J Neville
Hearing dates: 4 & 5 March 2020
Date of Last Submission: 20 March 2020
Delivered at: Canberra
Delivered on: 18 September 2020 REPRESENTATION
Counsel for the Applicant: Ms J Haughton
Solicitors for the Applicant: Stanfords Solicitors
Counsel for the Respondent: Mr M Todd
Solicitors for the Respondent: Alliance Legal Services Solicitors for the Independent Children's Lawyer:
Jeanine Lloyd & Associates
ORDERS
(1)The Mother have sole parental responsibility for the child X born: in 2016 (“the child”).
(2)In exercising her parental responsibility, the Mother consult with the Father about:
a.The child’s education (both current and future);
b.The child’s health including mental health.
(3)For the purpose of Orders 1 and 2, the following process shall apply:
a.The Mother shall advise the Father of any decision which needs to be made for the child. As well as advising of her proposal in writing, she shall also seek the Father’s input on that decision.
b.The Father shall provide his input to the Mother about the particular decision to be made and he shall be at liberty to contact any treating professionals to obtain further information in relation to the Mother‘s proposal.
c.The Mother shall take into account the Father’s proposal and input, and the parents shall use their best endeavours to reach an agreement.
d.Finally, in the event that the parents are unable to reach an agreement, the Mother shall make the final decision and advise the Father of her final decision in writing.
(4)The child live with the Mother.
(5)The Father spend time with the child as follows:
a.For the first six months following the making of these Orders, for two hours each alternate Saturday and Sunday, such time to be supervised at B Family Services Support Contact program (“B Family Services”) depending on B Family Services availability and the Father meeting B Family Services requirements and for the avoidance of doubt, the six month period is taken to commence on the occasion of the first such supervised contact session, whenever that may occur.
b.The contact in Order 5(a) be suspended if the father is more than 30 minutes late, or there is a breach of these orders
c.In the absence of the Father complying with Order 6 and Order 7, Order 5(a) and 5(B) continue in force.
(6)For the purpose of Order 5 above, each parent must:
a.Contact B Family Services forthwith and do all things necessary to register for supervised visits at B Family Services.
b.Attend any appointments made by B Family Services for the parent.
c.Attend any assessments.
d.Comply with any appointments made by B Family Services for supervised time.
e.Comply with all reasonable rules of B Family Services.
f.Comply with all reasonable requests and directions of the staff of B Family Services.
g.Pay all costs equally including the costs of obtaining reports from B Family Services as to the time with the father.
(7)After a period of 6 months from the date of these Orders, the Father is to obtain a mental health assessment.
(8)For the purpose of Order 7, the Father must ensure that:
a.the terms of reference for the assessment are to include that the Father shall not unilaterally retain the child from the Mother’s care; and
b.the practitioner undertaking the assessment be provided with any notes taken or reports made by B Family Services regarding supervised contact sessions; and
c.at the completion of the assessment, the Father is to obtain and comply with a mental health plan.
(9)The Mother and Father shall keep each other informed of their contact telephone number, email and postal address.
(10)The Father provide the Mother with his residential address for any residence other than his current residence.
(11)Each party shall advise the other as soon as practical but no later than half an hour after becoming aware of the event, by the best available means including sms message, in the event of the following occurring:
a.the child being seriously injured or falling seriously ill;
b.the child requiring urgent medical treatment by a doctor and/or ambulance crew; and/or
c.the child being admitted to hospital.
(12)The Mother inform the Father in writing as soon as practical of any specialist medical appointments with any psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant’) in relation to the child.
(13)The Mother do all acts and things to ensure that the Father is provided with copies of all reports by consultants.
(14)Each parent shall:
a.keep the other informed of the names and addresses of all medical practitioner, general and special dentists, and other professional persons dealing with the child; and
b.keep the other informed of medical problems or illnesses suffered by the child while in the parent’s care, any medication that has been prescribed for the child, any other matter relevant to the child’s welfare
c.keep the other informed of any social, school or religious functions which the child is to attend including details of birthday parties to which the child is invited if they fall on a day the child is scheduled to be with the other parent.
(15)This Order shall be sufficient authority for all schools, medical practitioners, general and specialist, dentists and any other professional persons dealing with the child to provide to the parents any and all information in relation to the child, including but not limited to school reports, letters to parents, invitations to events, notices of parent teacher interviews, medical information, medication information, diagnoses, and treatment recommendations.
(16)Both parents may attend all events involving the child including:
a.Sporting fixtures;
b.Extra curricular activities that allow for parental attendance; and
c.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
save that the Father be and hereby is restrained by injunction from removing the child from the supervision of any teacher or the Mother.
(17)In the event the Father removes the child contrary to the provisions of Order 16:
a.a recovery order will issue in Chambers upon the filing of an application Affidavit in support by the Mother without notice; and
b.Order 5 is suspended forthwith upon the date the application is filed.
(18)During the time the child spends with each parent, that parent shall:
a.Speak of the other parent, their partner and family members respectfully.
b.Not denigrate or insult the other parent, their partner or other family members in the presence or hearing of the child and use their best endeavours to ensure that others do not do so either.
(19)The Father be restrained from removing the child from the Commonwealth of Australia without prior written consent of the Mother.
(20)Pursuant to section 65Y of the Family Law Act, the Mother is permitted to travel overseas with the child.
(21)Notwithstanding that consent of the Father may not have been provided, the Australian Passport Office or any office acting under their authority hereby be directed to issue a passport for the child upon an application being lodged and signed by the Mother alone.
(22)The Registrar of the Federal Circuit Court of Australia in Canberra is hereby authorised pursuant to the provisions of section 106A of the Family Law Act 1975 to sign in substitution for the Father any document required to give effect to these Orders.
The parents are hereby restrained from discussing these Court proceedings with the child or in the presence of the child and from showing the child any documentation or correspondence in relation to these Court proceedings.
(23)The parents use a communication mobile app as selected by the Mother for all communication in relation to the child, except in the case of an emergency in relation to the child.
(24)Within 14 days of the date of these Orders, being by 1 October 2020, the Father will enrol in an anger management course.
(25)Within 14 days of the date of these Orders, being by 1 October 2020, the Father will enrol in a post separation parenting course such as ‘Tuning into Kids’ and shall provide the Mother with a copy of certificate of completion when completed.
THE COURT NOTES THAT:
A.In the event that the Father commences further proceedings in relation to the child, specifically in the event that he has undertaken six months of supervision in accordance with these Orders, and obtained a mental health assessment as required, no ‘Rice & Asplund’ point shall be taken by the Mother.
IT IS NOTED that publication of this judgment under the pseudonym Gallea & Gallea is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 265 of 2018
MR GALLEA Applicant
And
MS GALLEA Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
1.The trial in this matter was a rather unusual one, which otherwise or formally concerned parenting orders for 4 year old X.[1] I say “unusual” because, at trial, although legally represented, the Father did not seek any particular or specific Orders in relation to his young son, who lives with the Respondent Mother. In between regular emotional outbursts during his evidence, the Father consistently stated that he would leave it to the Court to determine what Orders were in the child’s best interests. Put another way, the Father sought no specific or defined parenting Orders for him to spend time with his son.
[1] Final property Orders were made on 14th March 2020.
2.At one level, the Father’s stance in seeking no Orders, could be taken as almost providing the basis for an undefended hearing. At another, factual, level, the Father’s (a) conduct before trial when (not for the first time) he with-held his young son from the Mother, his primary carer, and (b) extremely emotional outbursts during the trial, only made the Court’s decision more difficult. I do not refer to the Father’s emotional outbursts at trial (and at an earlier Court event on 31 January 2020) critically. A parent’s distress is often understandable in parenting proceedings. Throughout the hearing, the Father was regularly clearly distraught. In this regard, the Court was very much assisted by a detailed Report from eminent psychiatrist, Dr C, dated 7th December 2018, which became Exhibit A. Although dated December 2018, there was nothing to suggest, or submissions made, to the effect that the Court should not rely upon the expert evidence of Dr C.
3.In January 2020 the Father again retained the child. He expressed concerns about the welfare of his son in the Mother’s care due to the constant smoke haze that enveloped Canberra due to surrounding bush-fires. The Father provided no evidence otherwise to support his assertions against the Mother.
4.The Mother brought an Application in a Case for the return of the child, and absent this occurring, she sought that a Recovery Order should issue. The Court noted in the Orders made on 31st January 2020 (which returned the child to the Mother’s care) that there were concerns about the Father’s capacity to engage in the litigation and that a litigation guardian might need to be appointed for him. In the result, the Father retained experienced legal representation for the trial.
5.At the January 2020 hearing, the experienced Independent Children’s Lawyer (“the ICL”) submitted that the Father’s time with the child should be temporarily suspended, among other things because of the Father’s unbridled actions in keeping the child. I made that Order suspending the Father’s time with his son.
6.The slightly dated Report of Dr C was intended to be supplemented by information provided by the Father. Thus, the state of the Father’s mental health and well-being were the subject of the Orders made on 31st January 2020. The Father was directed to file and serve, by close of business on 18th February 2020, an Affidavit that dealt with “his mental health and emotional state insofar as it relates to his capacity to engage in litigation”, which
a) Addresses any relevant medical diagnosis and treatment; and
b) Contains the names and contact details of any medical professionals he attends for that purposes; and
c) Attaches relevant documentation, including certificates, treatment notes and reports, relating to the above matters.
7.Among the 221 paragraphs of the Father’s Affidavit, filed 28 February 2020, and its 53 pages of annexures, there is abundant material of matters relating to the difficulties between the parties during the relationship, primarily from the Father’s perspective. Regrettably, there was no compliance with the Orders of the Court of 31 January 2020 regarding information concerning the Father’s “mental health and emotional state.” The Affidavit was prepared by the Father’s new lawyers. Why there was no compliance with the January 2020 Orders was not explained.
8.Among many comments in the Report of Dr C (explored later in these reasons) was that the Father’s behaviour “had elements of a rather immature form of emotional outburst which one often sees in quite obsessional but naïve people.” In the same place, Dr C observed that there were “unsophisticated elements” in the Father’s parenting.[2]
[2] Report of Dr C, p.31.
9.At the hearing on 4th March 2020, the Father’s Counsel filed in Court a List of Documents and Chronology. It stated that the Father’s Orders sought would be set out in his “Minute to be filed.” No such document was ever filed on his behalf.
10.In short compass, the Mother sought parenting Orders whereby she had sole parental responsibility (with some consultation with the Father in relation to certain issues), and relevantly, for a period of time, the Father to have only supervised time with the child. The ICL supported the Orders sought by the Mother.
11.For the reasons that follow, the Orders sought by the Mother should be made. In my view, they are in X’s best interests.
Chronology
12.For current purposes, the detailed chronology, provided by the Mother in her Counsel’s Case Outline, suffices and is set out below – but excluding references to property matters because of the settlement of that aspect of the matter as earlier noted (citations omitted):
| Date | Event | Reference |
| 1977 | Applicant Husband born (aged 42 years). | M#2 |
| 1982 | Respondent Wife born (aged 38 years). | M#1 |
| 2015 | Parties commence to reside together. | M#4, 124 H 3, 215, 216 |
| 2015 | Parties marry | M#4, H 3 |
| Late July 2015 | Father wakes mother up at 10.00am, ripping doona off Mother and yelling to the effect: “Why are you still asleep, you lazy, disgusting woman?” | M#14(a) |
| August 2015 | Mother receives redundancy payment of $3,000, and applies that sum towards living expenses. | M#128 |
| October 2015 | Father threw GPS at the ground in anger, breaking it. | M#14(b) |
| November 2015 | Father kicks walk-in wardrobe door, denting it. | M#14(c) |
| December 2015 | Father threw Mother’s professional camera at her feet in anger, breaking it. Father threw Mother’s work iPad, laptop and handbag over railing of the home (from the first floor to the ground). | M#14(f), (g) |
24 December 2015 | Father sits down to Christmas meal prepared by Mother; tips his plate upside down, swipes everything off the table with his hand, picks up Christmas pudding and throws it at the Mother; takes care keys of Mother and throws them, breaking glass panel on door; yells at Mother: “You shameless woman,” and “You are shit you sadist woman.” | M#14(d) |
| 25 December 2015 | Mother contacts police in respect of incident on 24 December 2015, stays overnight at the D Hotel. | M#14(e) |
| February 2016 | Father yells at Mother, throws Mother’s keys at her head, missing the Mother and making a dent in the wall behind her. | M#14(m) |
| 2016 | Child of the parties, X born (aged 3 years 10 months) Mother takes 15 months maternity leave following the birth of the child, thereafter returning to work on a casual basis. Father took two weeks paternity leave, thereafter returning to work on a fulltime basis. | M#3, H 4 M#33, 34, 35 |
| 2016 | When child was a few weeks old, Father picks up the child from his cot and, while angry, says to Mother, looking at child “if you do not do what I want, then…” Mother took this to mean if she did not do what Father wanted, Father would hurt or take the child. Mother ran downstairs; Father followed Mother while holding the child and not supporting the child’s head. Mother took child from Father and soothed child back to sleep. | M#14(n) |
| 10 May 2016 | The Father called his counsellor and said that police had attended his residence due to a domestic dispute. | Material produced on subpoena to J Counsellors |
| 9 June 2016 | At 6.00am or 7.00am, Father enters bedroom where Mother and child are sleeping, yelling and waking the Mother and the child up as a result. Child starts to cry, Mother leaves bedroom, Father follows her. Mother attempts to leave the house, Mother grabs Father’s arms. Father picks up a backpack and repeatedly hits his face with it, drawing blood. Mother breaks free of Father’s grip and locks herself in the bathroom. Mother contacts police, Father states to police “My anger has been getting worse lately.” Police state to Mother: “If there continue to be incidences of domestic violence, X could be removed from your care.” Incident report. The Wife reports the Father is being abusive, they have a small child, two months old, dispute is ongoing and is only verbal at the moment. Complainant has locked herself in the bathroom…Police also offered some counselling to the POI as he had stated that his anger was getting worse, to which he agreed. | M#14(o) Material produced on subpoena to AFP |
| Late September 2016 | Father, in anger and during argument, holds Mother by wrists, then moves his hands to Mother’s arms and shoulders and shakes her. Mother calls out for help. Father covers Mother’s mouth with his hand and then pushes Mother backwards. Mother falls to the ground and hits her head on the ground. Father attempts to take Mother’s phone off her. Mother calls Father’s sister, who attends the house. Father shouts at Mother again. Mother fears contacting police or a doctor due to fears child would be removed from her. Mother suffers from headache for 3 weeks following this incident. | M#14(p) |
| 23 October 2016 | Father, in anger, throws things from table to the floor. Child, who was present, starts crying. Mother stays at E Hotel for one night with the child, requests Father attend Anger Management. | M#14(q) |
| 24 October 2016 | Mother books Father anger management appointment at the F Centre, in Canberra. Parties attend the appointment a few weeks later. Father does not focus on anger management during appointment, discussing only relationship issues, and does not agree to attend any further sessions. | M#14(r) |
| Late 2016 | Towards the end of the relationship, Father says to Mother to the effect: “I will commit suicide if you leave me.” | M#30 |
| Mid December 2016 | Father, in anger, yells at Mother from outside the locked door of a bedroom, in which the Mother was with the child. The child was crying. Father sends text to Mother, stating: “If you put everyone else before your own husband, get lost you psychotic ungrateful woman. I am sick of you.” | M#14(s) |
26 December 2016
Father, whilst driving, yells at Mother in anger, holding steering wheel with one hand and smacks Mother’s legs and upper thigh repeatedly with the other. Father drives erratically and at excessive speed, in and out of lanes, fast around corners and through a stop sign without stopping or slowing down or looking around.
Parties separate (child is 8 months of age).
Mother leaves former matrimonial home with a few personal items and some basic items for the child, and thereafter (aside from the period between 8 and 20 January 2017, during which the Mother resides in the former matrimonial home with the child to the exclusion of the Father) resides in rental accomodation.
Father does not spend time with the child between 26 December 2016 and 28 January 2017.
M#31
M#4, H5
M#132. 31(c)
M#37
11 January 2017
The Father sees Dr G ‘crying throughout session’
Material produced on subpoena to Dr G
24.01.2017
The Father called H Counselling, is very distraught during the phone call; admits he has been seeking counselling because he’s not coping with the situation.
Material produced on subpoena to H Counselling
25.01.2017
Counselling notes suggest that the Father is highly distressed. No “child safety concerns” documented by the counsellor.
Material produced on subpoena to H Counselling
31 January 2017 to 7 February 2017
Father spends time with child at former matrimonial home, in presence of Mother, each day in the morning or evening.
M#43
8 February 2017 to 6 March 2017
Father elects to spend no time with the child.
M#37
23 February 2017
The Mother reports in a phone call that “her partner extremely controlling and physically abusive, she was assaulted on 26 December 2016 and left the relationship”.
Material produced on subpoena to DVCS
27 February 2017
At a counselling session, the Mother reports domestic violence from the time of the pregnancy onwards.
Separately, the Father attends and was highly emotional and spent most of the assessment in tears.
Material produced on subpoena to H Counselling
20 March 2017
The Father presented to his counsellor “very distressed and was taken to a room”.
Material produced on subpoena to J Counsellors
25 March 2017
The Father reports ‘his wife had invited him to visit his child tomorrow and he feels this is a suspicious invitation’; He reports sleeping on pavement outside the house at times; He said he has not initiated any contact in the three months (since separation) but that she has continued to message him. Messages are not abusive but Mr Gallea feels they are manipulative. He received a message today that the mother invited him to see the child on Sunday with the nanny present. He received a warning letter from Legal Aid. He feels this is vindictive behaviour. He says he has engaged with Lifeline, 1800RESPECT, H Counselling and another counsellor in the city.
Material produced on subpoena to DVCS
27 March 2017
Parties meet and amicably discuss post separation parenting arrangements. Agree to meet again on 28 March 2017, which meeting the Mother subsequently cancels due to work commitments.
The Father speaks to Lifeline, DVCS and police; he reports that the wife wanted to drop lawyers, negotiate visits directly. “He is uneasy with the request… He noted usually he is calm and confident but goes to pieces with her”
Mother separately calls the service inquiring about joint counselling
M#88,89
Material produced on subpoena to J Counsellors
28 March 2017
Police attend upon Mother, say: “Mr Gallea has told us you threatened to commit suicide.” Mother says: “That is untrue.”
W89
30 March 2017
The Mother called J Counsellors requesting counselling for herself and her separated Father so they can learn better communication in relation to their child.
Material produced on subpoena to J Counsellors
April 2017
Department of Community Services contacted the Mother and relayed a report that she was bipolar and wasn’t taking the child out.
3 April 2017
Counselling notes state “He asked about did he have to do a parenting course. His lawyer had advised him to do one instead of the anger course….I suggested he needs to get a new lawyer.”
Material produced on subpoena to J Counsellors
7 April 2017
Father reports to his counsellor the Mother is putting his son’s ‘life in danger’
Material produced on subpoena to J Counsellors
1 – 12 April 2017
Father spends day only time with child in the presence of a nanny. He tells his counsellor he is concerned about the costs of the nanny
M#43
Material produced on sub by J Counsellors
14 April 2017 to
12 May 2017
Father elects to spend no time with the child. On 12 April 2017, he tells his counsellor that he declined to give the Mother the name of the nanny upon request ‘due to her interfering. He recorded the conversation. Was pleased with himself that he did that.”
M#37
Material produced on subpoena to J Counsellors
14 April 2017
The Father calls reports that he rang CYPS a week after making a report to get an update. He is told the Mother is going to a group facilitated by them.
Material produced on subpoena to DVCS
18 April 2017
The Father reports that he received a message from the Mother apologising for not facilitating the visits over the weekend. He reports she wanted to reconcile and threatened suicide. He reported this to police.
The Father attended the police. Police spoke with the Mother. She told police she had not made any comments of suicide or self-harm to her ex-partner and that she would never make those comments let alone harm herself as she has their son to take care of. …Police observed no issues with the mother or son, both appeared in good health and there were no signs of any injuries to either person. The house was clean and nothing gave police any concern for either’s welfare.
Material produced on subpoena to DVCS ,
Material produced on subpoena to AFP
19 April 2017
The Father reports to his counsellor the Mother was erratic, prone to taking anger out on others and violent. He says he then reported his concerns to the police. He asked whether it was appropriate to follow up the matter with police.
Material produced on subpoena to J Counsellors
20 April 2017
Mother has a session with H Counselling and discloses family violence
Material produced on subpoena to H Counselling
21 April 2017
Father reports to his counsellor that “Issues are impacting his work”.
Material produced on subpoena to J Counsellors
5 May 2017
Father reports that working on the affidavit is giving him overwhelming grief. He is experiencing heightened anxiety responses. He is feeling overwhelmed.
Material produced on subpoena to J Counsellors
15 May 2017
Father records changeover
Material produced on subpoena to J Counsellors
19 May 2017
Father reports that when he goes to B Family Services, he leaves feeling traumatised, grief stricken, feels like he has lost personal value, feels dark and sad. File notes state that they discussed that he is grieving the separation from the Mother; Father reports physically vomiting blood.
Material produced on subpoena to J Counsellors
22 May 2017
Father reports feeling stressed and sick by the weekend interactions. The Father requested an incident report from police but “the police said they couldn’t do it in the absence of any incident. He is very stressed and couldn’t go to work today”.
The notes refer to the Father presenting in a distressed condition at a police station on 30 January 2016 and on 20 March 2017 presenting at J Counsellors in a distressed state.
Material produced on subpoena to J Counsellors
26 May 2017
The Father talked about the incident of June 2016. He reports that the police had sided with the Mother, suggested he buy her flowers; he reports having nightmares and waking up in a sweat with nausea.
Material produced on subpoena to J Counsellors
5 June 2017
The Father reported that the child was unwell, that he videoed the child and made a report to CYPS. He reported feeling quite upset about how the Mother is treating the child.
Material produced on subpoena to J Counsellors
7 June 2017
The Father reported “his head is pounding at the thought of what the Wife is up to”. He asked how he can protect himself from the text messages she has been sending him about not looking after their son properly. The DVCS counsellor pointed out to him during this phone call that he has spent a considerable amount of time on the phone criticising her parenting skills and “that a large part of the conversation we had today was about him saying he wants her not to do or to do certain things his way”. Father says his heart was pounding as he is about to collect his son
Material produced on subpoena to DVCS
10 June 2017
Father reported the child’s health issues; that he feels traumatised since separation and was referred by Lifeline.
Material produced on subpoena to DVCS
14 June 2017
The Father reorted experiencing pounding heart, sweating at night to saturation level, and that his GP was concerned with his health.
Material produced on subpoena to J Counsellors
15 June 2017
The call notes state the Father is becoming increasingly distressed about the safety of his son and having to have contact with his ex-partner. He reports his health has declined since the end of the relationship, his stress is significantly affecting his health, his doctor has advised that he should take antidepressants. The counsellor discussed that he needs to start working on some emotion regulation strategies. Father reports he has heart palpitations as he drives towards changeover.
Material produced on subpoena to DVCS
16 June 2017
The Father reported that was not feeling great, was leaving work early for the day. The Mother texted him about the child’s food intake and nappy changes and he sees her messages as emotionally abusive
Material produced on subpoena to J Counsellors
18 June 2017
The Father attends Emergency Dept of K Hospital presenting with neck tightness, chest pressure and headache. A diagnosis of “anxiety situational crisis” was made and he was referred back to GP.
“The Husband attended the police station in a very emotional state. He was weeping, hunched over, spoke in a whisper and appeared frail…Explained he had cared for his son earlier that day. He stated he has since received accusatorial and harassing text messages from the Mother. The police viewed the messages, which said “X ate some breakfast but not any fruit”. Next one: “X is still int eh same nappy as at drop off. Any reason for this please?” “(As he has had a pooy nappy the whole visit)”.
Police explained the messages did not amount to harassment and that being a parent occasionally involves conversations about dirty nappies. They offered to refer him to DVCS and to ACT Mental Health.
Material produced on subpoena to Hospital
Material produced on subpoena to AFP
19 June 2017
The Father reported concerns about the texts about the nappy changes. He reported missing days at work, and that he had seen a GP. He went to his doctors for heart racing, crying, high blood pressure. “He made a police report but they made judgments about his parenting”.
Material produced on subpoena to J Counsellors
22 June 2017
Father reports that “no one knows what to do to stop his Mother texting him. He only asks to be left alone in peace. He wants the Mother to stop texting him and his life has become meaningless”. The counsellor noted the Father became increasingly distressed during the call and told the counsellor he has heart palpitations. He reported he would go to police to report harassing messages from the ex-partner.
Material produced on subpoena to DVCS
30 June 2017
The Father reports “finding things overwhelming”.
Material produced on subpoena to J Counsellors
3 July 2017
The Father discussed some text messages the Mother sent him about the child vomiting, querying his food intake. “He feels this is an accusatory subtext”.
Material produced on subpoena to J Counsellors
7 July 2017
The Father reported that “his stomach churns and he vomits in the presence of people” when Mother sends him a text, “still affected by his trauma, his eyesight blurs significantly”.
Material produced on subpoena to J Counsellors
2017
Mother returns to work following 15 months’ maternity leave, on a casual basis, as an allied health worker at the Employer L.
M#131
15 September 2017
The Father reported he’d called CYPS about antibiotics for the child.
Material produced on subpoena to J Counsellors
29 September 2017
Father reported that the Mother offered extended times of access. “Normally he would be quite excited but then noticed no specific times had been suggested and times eventually offered weren’t great for him. It is noted that the Father was vexed by her manipulation of the situation”.
Material produced on subpoena to J Counsellors
October 2017
Parties attend counselling with Dr G. They then spend time with child together daily 4 Oct to 14 Oct
Dr G notes?
16 October 2017
“The current concerns raised by the Father all related to family court matters or his own mental health in coping with the ongoing disputes, family court process. Police were unable to assist further.”
Material produced on subpoena to AFP
20 October 2017
Father reports that the Mother “texted him inappropriately and that he reported the incident to the police.”
Material produced on subpoena to J Counsellors
14 October 2017 to 10 November 2017
Father elects to spend no time with the child.
M#37
4 November 2017
The Father reports “the Wife was constantly harassing him with text messages. .. the Wife would not feed their child til 11pm or 12 midnight and that she threatened to commit suicide if he went to court. He says the phone messages are causing him distress.”
Material produced on subpoena to DVCS
26 December 2017
Father reports he was so worried because the Mother drove past his house that he couldn’t do his shifts at work. He reported she might play loud music and slam doors while the child is sleeping.
Material produced on subpoena to DVCS
12 January 2018
The Father reports feeling distressed and not performing at work.
Material produced on subpoena to J Counsellors
18 February 2018
Father commences these proceedings.
CF
23 February 2018
He also reported he was concerned about the Mother’s lack of emotion. She is “displaying no signs of being worried or stressed”.
Material produced on subpoena to J Counsellors
2 March 2018
The Father reported concerns at the Mother’s behaviour at changeover. “She responds like a statue”.
Material produced on subpoena to J Counsellors
From 1 April 2017 to March 2018
By informal arrangement between the parties, father spends day only time with the child, gradually increasing in amount of time on each occasion such that by March 2018 the Father is spending the following time generally with the child (with changeovers occurring at the Suburb L Police Station):
From 4.15pm until 8.15pm on Mondays, Wednesdays and Thursdays;
From 8.15am until 12.15pm on Saturdays and Sundays.
Father cancels his arranged time with the child on 40 occasions during this period.
M#43
M#41
March 2018 to June 2019
Father spends time with the child generally as follows:
From 4.15pm until 8.15pm (later, 7.15pm) on Mondays, Wednesdays and Thursdays;
From 8.15am until 12.15pm on Saturdays and Sundays.
W43
27 April 2018
Father reports that at changeovers, he doesn’t know what to do with the Mother “who appears indifferent”. He reports that the child is down when he arrives and that he is engaging with a child psychologist to better understand this situation
Material produced on subpoena to J Counsellors
17 May 2018
Mother becomes unwell and is hospitalised between 17 and 23 May 2018, placed on antibiotics and pain medication. Whilst hospitalised, child is in the care of the Father. Father is not responsive at times, during this period, to Mother’s communications in respect of the child.
M#67, 68, 69
22 May 2018
Mother sees child; child appears unwell. Father says “He’s fine.” Mother takes child to GP and is diagnosed with a high temperature.
M#70, 71
23 May 2018
Incident report stated the Mother attended the police on 23 May to obtain a welfare check on child. They advised her she could do a welfare check. A short time later police were called to the Father’s house as he reported the Mother was causing a disturbance. After speaking with the Father, it was ascertained that no disturbance has taken place. It appeared to the police that the Father was confused as to what to do.
Material produced on subpoena to AFP
25 May 2018
Father reports “the past week has not been good. He had the child all week and returned him this morning”. The therapist said it doesn’t appear to be clear abuse going on, just an erratic mother.
Material produced on subpoena to J Counsellors
1 June 2018
The Father reports concern that the Mother “has someone else in her life”. The therapist tells him the Mother can associate with whomever she chooses.
Material produced on subpoena to J Counsellors
22 June 2018
Father reports it has been a turbulent week and he is confused because the Mother provided information about a flu vaccination. “He wants to know what’s going on there.” He reports the Mother wants to see a child psychologist to discuss what’s best for the child. He says this kind of activity “is a manipulative ploy” by the Mother.
Material produced on subpoena to J Counsellors
27 June 2018
The Father describes feeling “persistently harassed by his ex-partner and described consistent harassment.” He is referred to Mensline and MensLink.
Material produced on subpoena to DVCS
29 June 2018
The Father reports that it has been a hard week and he is quite emotional about some developments. He reported his concerns about the Mother to DVCS and the police and says when engaging with the Mother’s erraticness “he has headaches, shaking and trauma.”
Material produced on subpoena to J Counsellors
6 July 2018
The Father complains that the Mother wanted to bring changeover time forward and that ‘he is feeling upset like he has taken a step backwards.’ Counsellor reminds him it is winter.
Material produced on subpoena to DVCS
19 July 2018
Orders made for the appointment of Dr C to prepare an expert report in these proceedings; and as to terms of reference for the same.
CF
7 December 2018
Expert Report of Dr C released to the parties
CF
2019
Mother commences working at Employer M on a flexible basis, 2 days per week.
The child is placed in child care 5 days per week at this time.
M#136
11 May 2019
Mother agrees to Father spending overnight time with child (3 years of age) on 11 May 2019.
M#90
18 May 2019
Father returns child to Mother after overnight stay; had not been fed, nor had teeth brushed or been bathed by Father.
W91
22 May 2019
Parties agree that Father will care for child over the following periods, over which Mother was to travel interstate for work in May and June 2019
M#45, 46
2019
Mother commences working an additional job at Employer N, together with her existing role at Employer M.
W137
6 June 2019
Father does not take child to daycare, informing daycare that the child is unwell. Mother sends text message to Father asking that the child be returned; Father sends text message stating: “X is well and he will remain in my care.”
M#46
10 June 2019
Father sends an email to the Mother’s solicitors, confirming he did not intend to return the child to the Mother’s care, citing concerns in respect of Mother’s ability to care for the child and ‘volatility’; proposes Mother have supervised contact with the child.
M# 46
13 June 2019
Mother files first Application in a Case in these proceedings in which a recovery order is sought
CF
14 June 2019
Orders and notations made:
Notation that the content of Dr C’s Expert Report dated 4 December 2018 does not cause the Court concern as to risk to the child in the Mother’s household;
Recovery Order made in respect of the child;
That the child live with the Mother;
That the child spend time with the Father:
Mondays, Wednesdays and Thursdays after day care until 7.15pm;
Each Saturday at 8.15am until 8.15am Sunday;
Other times as agreed.
CF
October 2019
Mother takes unpaid leave from Employer M and increases shifts at Employer N, 3 days per week ‘school hours’ and 2 days per week normal hours.
M#138
30 December 2019
Child says to Mother: “I don’t want to go see daddy again…dad pushed me hard [pointing to his stomach]…dad did not want to be nice to me, I cried a lot.” Mother reported child’s disclosure to police and made a report to CYPS.
M#101
5 January 2020
Father withholds care of the child, in breach of Orders.
Mother does not see or have contact with the child between 5 to 31 January 2020.
M#50-57
5 January 2020
Mother requests Father return child and to speak to the child. No response.
M# 51
7 January 2020
Mother files second Application in a Case in these proceedings in which a recovery order is sought
CF
9 January 2020
Mother requests Father return child and confirm he will take child to ELC Holiday program, at which child is enrolled to attend from 13 January 2020 to 31 January 2020. No response.
M#53
14 January 2020
Father contacts child’s ELC and unilaterally cancels child’s enrolment at the ELC Holiday Program
M#53(c)
16 January 2020
Mother requests that police conduct a welfare check in respect of the child.
M#51
24 January 2020
Mother’s solicitors send letter seeking telephone contact be facilitated between the Mother and the child. No response.
M#53(e)
31 January 2020
Mother’s Application in a Case filed 7 January 2020 listed. Father observed to be sobbing uncontrollably at the hearing.
Recovery Order made in respect of the child;
The Father’s time per previous orders is suspended until the next occasion being 20 February 2020 (Father has spent no time with child since this date and to date).
Notation as to concerns as to Father’s capacity to engage in litigation if unrepresented and Father directed to file and serve by 18 February 2020 an affidavit relating to his mental health insofar as it relates to his capacity to engage in litigation.
CF; M#55
31 January 2020
Shortly following the court event on this day and on the same day, Mother attends child’s ELC at which he had been enrolled unilaterally by the Father for that day only. Father was in attendance at the ELC and loitered close to the Mother.
The Director of the ELC placed the centre on lockdown, later saying to the Mother: “We need to call an ambulance for Mr Gallea.”
M# 56
20 February 2020
Trial dates confirmed; Father’s time with child not reinstated.
CF
4 March 2020
Final Hearing before Judge Neville (2 days)
CF
Applicant’s orders sought
13.As already noted, the Applicant Father did not seek specific parenting Orders. Repeatedly during the trial he simply said that he would leave the parenting Orders to be determined by the Court.
Respondent’s orders sought
14.The Respondent Mother filed an Amended Minute of Orders in Court on 5 March 2020, which was as follows:
MINUTE OF ORDERS ON BEHALF OF THE WIFE
Parental responsibility
1. That the Mother have sole parental responsibility in relation to X born in 2016 (“the child”).
2. That in exercising her parental responsibility, the Mother consult with the Father about:
(a) The child’s education (both current and future);
(b) The child’s health including mental health.
3. For the purpose of Orders 1 and 2, the following process shall apply:
(a) The Mother shall advise the Father of any decision which needs to be made for the child. As well as advising of her proposal in writing, she shall also seek the Father’s input on that decision.
(b) The Father shall provide his input to the Mother about the particular decision to be made and he shall be at liberty to contact any treating professionals to obtain further information in relation to the Mother‘s proposal.
(c) The Mother shall take into account the Father’s proposal and input, and the parents shall use their best endeavours to reach an agreement.
(d) Finally, in the event that the parents are unable to reach an agreement, the Mother shall make the final decision and advise the Father of her final decision in writing.
Living arrangements
4. That the child lives with the Mother.
5. That the Father spend time with the child as follows:
(a) For the first six months following the making of these orders, for two hours each alternate Saturday and Sunday, such time to be supervised at B Family Services Support Contact program (“B Family Services”) depending on B Family Services availability and the Father meeting B Family Services requirements and for the avoidance of doubt, the six month period is taken to commence on the occasion of the first such supervised contact session, whenever that may occur.
(b) That the contact in Order 5(a) be suspended if the father is more than 30 minutes late, or there is a breach of these orders
(c) In the absence for the Father complying with Order 6, Order 5(a) and 5(B) continue in force.
6. That the Father will do all acts and things to obtain a mental health assessment, (the terms of reference for which shall include that the father shall not unilaterally retain the child from the Mother’s care) and the father will obtain a mental health plan and will comply with it.
7. For the purpose of Order 5 above, each parent must:
(a) Contact B Family Services forthwith and do all things necessary to register for supervised visits at B Family Services.
(b) Attend any appointments made by B Family Services for the parent.
(c) Attend any assessments.
(d) Comply with any appointments made by B Family Services for supervised time.
(e) Comply with all reasonable rules of B Family Services.
(f) Comply with all reasonable requests and directions of the staff of B Family Services.
(g) Pay all costs equally including the costs of obtaining reports from B Family Services as to the time with the father.
Other
8. That the Mother and Father shall keep each other informed of their contact telephone number, email and postal address.
9. That the Father provide the Mother with his residential address for any residence other than his current residence.
Child’s illnesses
10. That each party shall advise the other as soon as practical but no later than half an hour after becoming aware of the event, by the best available means including sms message, in the event of the following occurring:
(a) the child being seriously injured or falling seriously ill;
(b) the child requiring urgent medical treatment by a doctor and/or ambulance crew; and/or
(c) the child being admitted to hospital.
11. That the Mother inform the Father in writing as soon as practical of any specialist medical appointments with any psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant’) in relation to the child.
12. That the Mother do all acts and things to ensure that the Father is provided with copies of all reports by consultants.
13. That each parent shall:
(a) keep the other informed of the names and addresses of all medical practitioner, general and special dentists, and other professional persons dealing with the child; and
(b) keep the other informed of medical problems or illnesses suffered by the child while in the parent’s care, any medication that has been prescribed for the child, any other matter relevant to the child’s welfare
(c) keep the other informed of any social, school or religious functions which the child is to attend including details of birthday parties to which the child is invited if they fall on a day the child is scheduled to be with the other parent.
Schooling
14. This Order shall be sufficient authority for all schools, medical practitioners, general and specialist, dentists and any other professional persons dealing with the child to provide to the parents any and all information in relation to the child, including but not limited to school reports, letters to parents, invitations to events, notices of parent teacher interviews, medical information, medication information, diagnoses, and treatment recommendations.
15. The parents will both be entitled to attend all events involving the child including:
(a) Sporting fixtures;
(b) Extra curricular activities that allow for parental attendance; and
(c) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
save that the Father be and hereby is restrained by injunction from removing the child from the supervision of any teacher or the Mother.
16. In the event the Father removes the child contrary to the provisions of Order 15:
(a) a recovery order will issue in Chambers upon the filing of an application Affidavit in support by the Mother without notice; and
(b) Order 5 is suspended forthwith upon the date the application is filed.
17. During the time the child is with each parent, that parent shall:
(a) Speak of the other parent, their partner and family members respectfully.
(b) Not denigrate or insult the other parent, their partner or other family members in the presence or hearing of the child and use their best endeavours to ensure that others do not do so either.
Travel clauses
18. That the Father be and hereby is restrained from injunction from removing the child from the Commonwealth of Australia without prior written consent of the Mother.
19. Pursuant to section 65Y of the Family Law Act, the Mother is permitted to travel overseas with the child.
Passports
20. Notwithstanding that consent of the Father may not have been provided, the Australian Passport Office or any office acting under their authority hereby be directed to issue a passport for the child upon an application signed by the Mother alone being lodged.
21. The Registrar of the Federal Circuit Court of Australia in Canberra is hereby authorised pursuant to the provisions of section 106A of the Family Law Act 1975 to sign in substitution for the Father any document required to give effect to these Orders.
22. The parents are hereby restrained from discussing these Court proceedings with the child or in the presence of the child and from showing the child any documentation or correspondence in relation to these Court proceedings.
23. That the parents use a communication mobile app as selected by the Mother for all communication in relation to the child, except in the case of an emergency in relation to the child.
24. That within 14 days of the date of these Orders, the Father will enrol in an anger management course.
25. That within 14 days of the date of these Orders, the Father will enrol in a post separation parenting course such as ‘Tuning into Kids’ and shall provide the Mother with a copy of certificate of completion when completed.
NOTATIONS
A. It is noted that in the event the Father commences further proceedings in relation to the child X, specifically in the event that he has undertaken six months of supervision in accordance with these Orders, and obtained a mental health assessment as required, no ‘Rice and Asplund’ point shall be taken by the Mother.
Independent Children’s Lawyer’s orders sought
15.The Independent Children’s Lawyer did not file a Case Outline or a Minute of Orders Sought in circumstances where the Applicant Father declined to seek any specific parenting orders.
16.The Independent Children’s Lawyer reserved her position until the oral evidence was provided. As earlier noted, in her written submissions the ICL supported the Mother’s Orders sought.
Oral evidence of the Applicant Father
17.Summarised, the oral evidence of the Applicant Father was as follows.
18.At the outset of his evidence, the Father confirmed that he wanted the Court to determine the Orders which it considered to be in X’s best interests regarding the child’s primary residence, parental responsibility, and the “time with” arrangements for the parents. He said that he was “frightened” about the best Orders for X.
19.When asked to explain what his concerns for the child were, all he could say was something to the effect that he “did not know what to expect” and did not know what the Mother’s actions would be in the light of the Court’s Orders. He claimed that the Mother was “unpredictable”, based particularly on various incidents during the relationship. He said, for example, that he was worried the Mother would throw things and hurt things, as she did during the relationship. Relevant details were not readily forthcoming.
20.The Father said that he tried always to be protective of X. When asked if he had a view as to what Orders were in his son’s best interests, he said he did not have such a “view.” This included appropriate Orders regarding “time with” arrangements, and the residence of the child.
21.He said that he provide the most important material in his Affidavit. It was not possible, in his view, to put all relevant material before the Court.
22.The Father confirmed that he was aware that the Mother was seeking sole parental responsibility. He said that he had no “view” about this Order sought by the Mother.
23.The Father confirmed that communication between the parents was poor, indeed sometimes it was, he said, “absent.”
24.The Father had difficulty in understanding, or if he did, the utility of using a “communication book”, which had been suggested by Dr C. A little later he refused to use a communication book. The Father also confirmed that the parties had not been able to reach agreement about medical or health care professionals for X. Such a matter was, among other things, relevant to the wider issues of very poor communication between the parties.
25.Something of a merry-go-round of questions ensued regarding (a) the Father wanting the Mother to spend only supervised time with the child in June 2019, and (b) the Father’s inability to answer questions regarding his Orders sought, including whether he continued to seek (as he had done in mid 2019) that the Mother spend only supervised time with X. He simply (and repeatedly) said that he had put material before the Court and that he could not answer questions concisely (or at all) about parenting arrangements. He simply said that he was concerned about the same impact on X of the Mother’s actions as he had suffered. Details were not provided.
26.The Father acknowledged that he had with-held X from the Mother for a period of time in June 2019. He said that the child did not ask for the Mother during this period when the child was with him. Nor, he said, did the child exhibit any anxiety seeking his Mother.
27.The Father said that retaining the child had no impact on X. A little later, he said that he could not answer questions about any such impact.
28.He confirmed that during the relationship, the Mother was violent towards him and made threats to him.
29.The Father confirmed that he retained the child because of the risk to X of bushfire smoke. Unsurprisingly, he was unable to explain how the Mother could be responsible for such smoke. The Father confirmed that he kept the child (in January 2020) contrary to the Orders at the time. He said at the time that he was “very scared” because he was hearing from the police and from the Mother’s lawyers about him keeping X. He said that his action in retaining X was “reasonable action” and was protective of X. He was not able to explain how or why it was protective of the child. He contended that X was not upset at this time being absent from his Mother.
30.The Father claimed that he was not aware, as at January 2020, that the Mother was still breast-feeding X. He said that change-overs were very short, and denied that the Mother found them to be stressful. He said that he was unaware of any stress experienced by the Mother.
31.The Father acknowledged that his actions had ruptured the bond of trust with the Mother. For my part, I am not sure that the Father fully understood such a line of questioning, and/or that he wished to acknowledge such breach of trust. If he did, as was his common approach, the fault rested wholly with the Mother. He regularly accepted no responsibility for his actions.
32.There was an incident at the childcare centre attended by X on 31 January 2020. The Director of the Early Learning Centre placed the centre in lock-down as a result of the Father’s actions and called an ambulance for the Father. The Father confirmed that on this occasion he was “very upset” and that his body “does not cope” when the Mother is around. He confirmed that he was crying at the child-care centre and that the Director was standing between the parents. He said that the ambulance officers told him that his actions were “stress related.”
33.He confirmed that the Mother raised issues regarding the Father’s mental health in her material. The Father said that in 2017 he saw a psychologist. He said that he stopped seeing her because he was “cured.”
34.In answer to questions from the ICL about what he would do in the future if he had concerns about X’s welfare, he simply said that continue to act “protectively” because he had a responsibility for X.
35.When asked to reflect upon his recent past actions and whether he would act differently, he said that he would not do anything differently.
36.He was taken through a range of specific contentions/allegations set out in the Mother’s Affidavit, filed 2 March 2020. I need not, and will not, canvass all of the matters raised in this regard. It is sufficient to note that (a) at one stage, the Father doubted his paternity of the child (he said that the Mother slept with her work colleagues) and took a “swab” from him, and (b) the Father denied that he had any anger management issues, yet confirmed that he did/does get upset at times. He said that he can exercise self-control in moments of stress.
37.For my part, I note the following. Even in the witness box, accepting a degree of nervousness, even a heightened degree of it in this instance, the Father’s recollection of events, absent any independent evidence, was largely confected. He was regularly and totally unregulated, and his explanations implausible, not least about the risk to the child in the Mother’s care due to bushfire smoke. He showed no insight about the impact of his actions (on X or the Mother) in with-holding his young son from the Mother. I view with very significant concern the Father’s evidence that he saw nothing wrong with his recent past actions (e.g. in with-holding X from his Mother) and his assertion that he would act the same way again. In his view, he was acting protectively. In my view, he was doing the exact opposite. Absent any independent evidence, I have no confidence in any of the Father’s evidence. To the contrary, as noted below, I very much prefer and accept the Mother’s evidence in any and every circumstance where it departs from the Father’s account.
38.For completeness, I should also note that almost all of the Father’s Affidavit evidence related to events quite some time ago, usually when the parties were together. There was very little, if any, evidence regarding recent events, including the Father keeping X from his Mother.
Oral evidence of the Respondent Mother
39.Summarised, the oral evidence of the Respondent Mother was as follows.
40.At the outset of the Mother’s evidence, there was some discussion with her regarding certain SMS messages. They are recorded in the transcript. In my view, they are of no particular import; therefore, I will not canvass them here. Among other things, the Mother said that often she was not sure what precisely she was responding to in various SMS messages. From the Father’s often histrionic evidence, respectfully, I accept such a proposition. Further, quite a number of the events about which the Mother was asked questions related to matters in 2015. Their immediate relevance to a hearing in 2020 was not immediately obvious in the circumstances of more recent events.
41.The Mother rejected suggestions that the Father, for example, never grabbed her during the relationship. Other incidents, such as relating to either anger management counselling or relationship counselling during the relationship (in 2016), were either unable to be accurately recalled by the Mother, or she stood by her Affidavit evidence, which was consistently at variance with the Father’s limited account of events. Moreover, as already noted, much of the Father’s material, such as it was, related to events during the relationship. Their relevance four years later, and in the current context of the evidence of the Father’s recent conduct, was in my view, of very doubtful value.
42.The Mother confirmed that during the relationship, the Father would regularly “take off” (as in, leave the house) for some nights at a time. There also remained, to no useful end, a contest over the precise date of separation.
43.Further, in my view, nit-picking incidents during the relationship were canvassed with the Mother. In my view they served little useful purpose, especially in the light of more recent, post-separation events. The incidents traversed generally with the Mother ranged from counselling, incidents of alleged domestic violence during the relationship, the Mother’s level of anxiety during and after the relationship, all predicated upon the Father’s extensive, but somewhat historical accounts of events in his Affidavit material. Among other things, the Mother firmly denied that in October 2017 she initiated discussion with the Father regarding the parties reconciling.
44.The Mother confirmed that, because of circumstances, at an earlier point in time but still after separation, she permitted the Father to spend up to five nights with the child. She confirmed that in 2019, she agreed to the Father spending overnight time with X. She said that based on the advice of Dr C, and because of her circumstances where she had limited support, she continued to leave the child in the Father’s care. This was also in circumstances where the Mother said that at times the Father did not feed the child, or bathe him or clean his teeth.
45.The Mother confirmed that some time between Father and son was allowed on Christmas day 2019; she confirmed that it went well. However, based on what X later said to her, she made a report to Care and Protection services.
46.Somewhat curiously, the Mother denied that she and the Father have had a conflictual relationship. She denied that she made up adverse stories about the Father. She also denied using X as a “weapon” against the Father.
47.The Mother confirmed that in relation to an incident of conflict between the parties, only later did she find out that the Father had recorded the incident. She had not asked to listen to it.
48.The Mother was a careful and diligent witness. She gave a clear impression that she remained somewhat nervous and anxious about dealing with the Father, which obviously was not assisted by his unilateral action to retain X in January. Moreover, in general terms, she reasonably readily made concessions during her evidence in the Father’s favour, whereas he made no concessions in the course of his evidence. In my view, the Mother was much more child-focussed in her evidence, whereas the Father was almost obsessive and emotionally fraught in his, which focussed, through a quite distorted lens, on what was in the child’s best interests.
49.I have no doubt about the veracity of the Mother’s evidence, which I accept unreservedly. As previously indicated, absent any independent material to support the Father’s evidence, where there is any conflict in the evidence between the parties, I strongly prefer and accept the Mother’s evidence in preference to that of the Father.
50.For completeness, at the end of the Mother’s oral evidence a very large tender bundle was admitted, which became Exhibit E. It contained the voluminous material that was provided to Dr C for the preparation of his Report.
The Family Report
51.The Family Report of Dr C was released to the parties on 7 December 2018. For current purposes it is sufficient, in my view, for the latter part of the Report to be set out below. Essentially it addresses the relevant “considerations” in s.60CC(3) of the Act, under the general heading, “Conclusions and Recommendations.” That section (pp.28 – 34) was as follows (citations omitted:
a. Whether or not the child has any physiological, psychological or psychiatric issues that need to be addressed.
X appears to be a well nourished, well cared for child whose cognitive development is probably advanced compared with his age peers. He demonstrated a high level of inquisitiveness when seen with both parents and he also has an excellent vocabulary for his age. It does not appear that he suffers from any significant ongoing health problems.
b. The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relatives of the child).
There seems no doubt that X was exposed to overt verbal and physical violence between his parents and during the marriage, it is also likely that he has had some exposure to each parent’s distress about the current situation, probably moreso in the mother’s home because he spends much more time there. Despite this, I did not observe evidence of insecure behaviour when I saw him with each of his parents, nor did I see it in the two changeovers I observed. However in my view it is likely that had X been a year or so older, he would have been more capable of picking up the tensions between his parents and this would probably have been manifested in some form of insecurity at my office with one or both of them.
Bearing in mind my comments above, X appeared to have quite a secure attachment to both of his parents at the moment which, to the extent that one can observe it in an office setting, appears to be of an equivalent strength. However I note that Ms Gallea does refer to some transient clingy behaviour after some visits and that there was a more sustained period of clingy, unsettled and sad behaviour after he spent five consecutive nights with his father in May this year. Interestingly, Mr Gallea did not report any behaviour by X over those five days which would represent X having experienced some pining for his mother. I do not fully accept this. He was nearly two years old at the time, and he had been living in his mother’s full time overnight care for the previous 16 months.
c. The views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views.
Due to X’s age, I did not seek his views.
d. The nature of the parents’ relationship and the impact of this relationship on the child.
I have indicated above that X has been exposed to some overt conflict between his parents at changeovers since the separation. There have also been two significant breaks in his time with his father, including just prior to my assessment when, for reasons which are disputed between the parents but which essentially amount to a lack of dispute resolution, he did not see his father for periods of up to several weeks after having been seeing him four or five times a week. There was also an occasion in May 2018 when he spent five consecutive nights with his father. In some children of X’s age, these discontinuities could have manifested itself in quite significant emotional and behavioral changes. However in X’s case, that was not readily apparent to me. I think it is partly because both of his parents, and probably particularly his mother, have been providing good consistent care in the background, and partly because X has a quite a placid temperament so his emotional equilibrium is more resilient and less likely to be shaken. However if the current issues continue between the parents, I have no doubt that X will become increasingly aware of them and they will weigh on his mind, if not affecting his emotions and behaviour.
e. The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
Despite their significant differences, overall I felt that both parents have probably been reasonably supportive of each other’s relationship with X. I found it difficult to assign responsibility for the periods when Mr Gallea did not see his son. His account is that the conditions offered by Ms Gallea were unsatisfactory and risky in terms of not protecting him from false allegations etc. Her account is basically that Mr Gallea was uncompromising. If anything I think I probably favour her account. I think that inflexibility is part of Mr Gallea’s character. I also note that she enlisted him to look after X for the five days that she had been very ill in May 2018, understanding that X had not had any time overnight with his father since the separation. Had she been particularly uncompromising in this area, I have no doubt that she would have been able to find another solution.
f. The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents (or any other relevant person).
Both parents describe themselves as conscientious and dedicated to X. He was less than a year old at the time of the separation, but Ms Gallea agrees that Mr Gallea also seemed to be quite committed to X, albeit not as intensely as he describes. In addition, both parents have portrayed themselves as comprehensive and conscientious parents since the separation, although Mr Gallea in particular is quite critical of Ms Gallea’s capacity to focus on X’s needs in a consistent way, and whether she is seeking out medical treatment for him unnecessarily. Overall I formed the view that both parents’ attitude to parenting responsibilities fall within an acceptable range.
g. The capacity of each parent or any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I note that Mr Gallea reported that he had not observed any clingy behaviour or other evidence of X pining for his mother in the five-night block when X was with him in May 2018. Despite X probably being of a very settled temperament, I find this most improbable. It is possible that X did experience a relatively small amount of pining behaviour, but still sufficient that an attuned parent would have felt the need to comfort and reassure a child. It is possible that Mr Gallea did not label it as such, which again would perhaps go to his capacity to be attuned to his son. I also noted when I saw them together, Mr Gallea tended to be rather more formal with his son in the way more obsessional people are, in a way which suggested to me that his approach to parenting is perhaps not as flexible as some parents might be. Finally, I note that when X noticed the large dolls house in my office immediately before the end of my session with he and his father, Mr Gallea’s response when I said the session had to finish was to offer a false hope in the form of promising X that he would be able to play with it next time he came. This is a rather naïve and unsophisticated parenting strategy oriented towards a short-term solution rather than a more honest but firm account.
Both parents seemed to be quite focused on a learning based play interaction with X, who was very receptive to that. I felt that Ms Gallea’s implementation of this also reflected a higher level of attunement to X than did Mr Gallea’s approach, although I would emphasise that compared with many parents, he was quite good in this area as well. I also note Ms Gallea’s decision to place X with his father for five consecutive overnights although she made time for brief visits every day. This may indicate that she actually trusts him more than she alleges, or that she was prepared to a take a significant risk. I indicate later that it is difficult to assign a weight on each parent’s allegations about the other and their expressed view that each of them was a passive, intimidated and fearful victim of a range of domestic violence behaviours perpetrated by the other. However it would be of relevance to do so if possible, as the behaviour each alleges could impact significantly on the accused parent’s parenting capacity. In relation to the alleged behaviour of Ms Gallea, the parenting issue would probably been seen in terms of unpredictable volatility and withdrawal from X when she is emotionally overwhelmed. In the case of Mr Gallea, obsessional over control and punitiveness would probably lead to parenting problems in terms of being uncompromising about certain things and particularly as X grows older, the possible use of inappropriate corporal punishment and later on in the teenage years, head-to-head conflict between he and his son which may lead to physical violence.
I have also been asked to consider the parents’ use of appropriate parenting in general and/or arising from their participation in parenting courses etc. I found it difficult to separate recently learned behaviour from what were basically quite good parenting practices by both parents.
h. The mental state of both parents in so far as it relates to parenting issues.
This issue may be seen in narrow terms of diagnosable mental illness or personality disorder, the treatment and prognosis of any condition, and whether the presence of the condition has an impact on parenting capacity. A second and broader issue which is also relevant to parenting concerns certain personality attributes which do not constitute a diagnosable disorder. The most important dimensions to this appear to be aggressiveness, impulsiveness, immaturity and self-centredness. People with such aspects to their character are more likely than other parents to put their interests above those of the children, either thoughtlessly or deliberately.
In substantial respects each parent gives a similar account of the other – that the other parent was selfish, physically and verbally abusive towards them, and that they felt controlled and overwhelmed by the other person. This allegedly led in Mr Gallea’s case to a state of fear and high anxiety to the level of a physiological panic, and in Ms Gallea’s case to a state more akin to depression. What makes this matter difficult is that each parent also denies almost entirely the allegations of the other parent, and there seems to be very little middle ground on their own accounts. They essentially see themselves as blameless and powerless to interrupt the cycle in which they found themselves.
The records from Dr G first, then from H Counselling comprising assessments of each parent prior to a mediation session in June 2017, then following that the records of Ms Gallea’s counselling through the H Counselling service and police and health records in relation to Mr Gallea indicate that basically from the time of the separation the parents’ respective accounts have remained unchanged. In addition to the alternatives of one or other parent being substantially right and the other substantially wrong, a third possibility is that both parents contributed significantly to the climate of physical and verbal abuse within the family, and that each of them has little or no insight into their own contribution to the conflict. Dr G’s note concerning disparate cultural expectations may play a large part in explaining an intermediate position.
If Mr Gallea’s account of his wife is basically verified by external corroboration, then the type of behaviour he describes concerning his wife would be consistent with her having significant concerning personality traits including emotional volatility, unstable relationships, self absorption, mendacity, blaming alternating with remorseful behaviour, fear of abandonment, and threats of self harm. If this was the case, and if it is also the case that Mr Gallea is a fairly timid although obsessional person, then avoidance of conflict both within the home and by running from the home, attempts at appeasement, and ultimately if he felt he was fearful of the next outburst, anxiety, fear and panic as he described would be plausible responses. While Ms Gallea appeared to me to be rather emotionally frail, some of her texts seem to indicate she is capable of much greater assertiveness.
If Ms Gallea’s account of her husband is basically verified by external corroboration, this is probably compatible with concerning personality traits of rigidity, obsessiveness, overbearing behaviour and self-absorption. Under those circumstances, it would be understandable for Ms Gallea to feel demoralised, depressed, lacking in confidence and indecisive. However Mr Gallea’s account of his reasoning behind choosing not to see X at certain times revolves significantly, but not entirely, around his expressed fear that some conditions of changeovers could render him vulnerable to false allegations. I also note his tearfulness when recounting his allegations and his running away behaviour during the relationship, and that from soon after the separation, Mr Gallea was observed to become extremely distraught when recounting what happened during the relationship. I too was struck by the same behaviour, which had elements of a rather immature form of emotional outburst which one often sees in quite obsessional but naïve people. I also note the unsophisticated elements I observed in his parenting. Loss of control of situations seem to be an important issue for him. It leads to panic and flight, but it may also lead to stubbornness, anger and aggression.
To the extent that it may of assistance to the Court, I formed the view that Mr Gallea is a person who is rather obsessional and uncompromising although low key, and also that he is probably less attuned to X than is Ms Gallea. Ms Gallea on the other hand seemed capable of volatility, but she gave a more nuanced account, she seemed more open to alternate explanations or compromise, and she seemed rather indecisive, which overall had a more ingenuous feel about it. However overall I felt that both parents had contributed to the conflict, and that both would benefit from ongoing counselling. It would also assist if a copy of this report was provided to their respective counsellors.
i. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents or another person (including any grandparent or other relative of the child) with whom the child has been living.
The main change of circumstances involves when overnight time with Mr Gallea would be introduced. I also note that Ms Gallea seems to regard Mr Gallea’s care of X as generally acceptable and that he and X have a good relationship. Finally I note that she placed X in his care for five consecutive nights when X was about two years old, despite having already had advice from a Ms O that it is preferable for children to not start overnight visits until aged about four years. In fact the research into this, which was led by an Australian group, suggests that the critical age is probably about the age of three years, and I am of the view that this would be an appropriate threshold in this case bearing in mind my earlier comments about what has actually happened in X’s life and also that he seems to be a child with a reasonably settled temperament.
j. The effect on the child of any family violence to which the children may have been exposed.
On both parents’ account, X was exposed to significant verbal violence and destructive behaviour prior to the separation, however that seems to have stopped since then, although there remain tensions at the changeovers which each parent attributes to the other. As I have indicated previously, should this continue I have no doubt that it will start to have a more substantial effect on X but at this juncture such an effect is difficult to demonstrate. However it is my strong view that the circumstances of the changeovers need to be changed in order that X is not exposed to this.
k. Whether the child is at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I note Mr Gallea’s allegations in this area in particular but I was not aware of any material which substantiates this risk. I have noted earlier that if the Court is satisfied that one or other of the parent’s behaviour has been at the height alleged by the other parent then that type of personality structure can be associated with certain risks which I have outlined.
l. The benefit to the child of having a meaningful relationship with both their parents.
In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.
m. The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parents current and future capacity to implement such an arrangement and to communicate with each other and resolve difficulties that may arise.
Although there is relatively little research on the subject of shared physical care, there are emerging findings from Australia and overseas that such arrangements are best determined by the capacity of parents to exercise maturity, to manage conflict between them appropriately, and to move beyond self-centred decision-making in order to adequately embrace the changing developmental needs of their children. Indicators of significant problems in these areas include tension-ridden change-overs, exposure to expressed acrimony, ongoing denigration of one parent by the other, and insidious embroilment of the children in supporting the opposing views of each parent, upon whom they continue to depend.
There is a high degree of distrust between the parents and a great deal of misunderstanding has already arisen over communication. The impression I gained was that Mr Gallea was the more critical of the two in this regard. In any event in my view the parents’ capacity to communicate and resolve difficulties is not sufficiently high for such an arrangement to work satisfactorily.
c. Thus there is a means by which the Court can be satisfied that the Father may not indefinitely be the subject of supervised contact; this being in the Father’s gift and dependent on him taking steps to reduce the risk to one that is able to be managed other than as presently proposed by the Mother.
22. While the court must consider making orders which are least likely to lead to institution of further proceedings, to the extent that there remains a tension between the considerations under section 60CC(3)(l) whereas the Mother’s proposal effectively amounts to a potential invitation for further proceedings in limited circumstances, and those that inform the second of the primary considerations, it is plain that the court must prioritise the latter.
23. In the context of the evidence given by the Father and set out above, it is open to the court to find that the risk of further retention and consequent psychological harm to the child is an unacceptable one that may not be mitigated effectively, presently, but for the imposition of professional supervision as the Mother proposes.
24. As to parental responsibility, it is difficult to see how these parents would be able to share parental responsibility in relation to the major aspects of the child’s life.
Written submissions of the Independent Children’s Lawyer
54.The Independent Children’s Lawyer’s written submissions, filed 17th March 2020, were as follows:
SUBMISSIONS OF THE INDEPENDENT CHILD LAWYER
Principles relevant to parenting orders
1. The ICL adopts the Minutes of Orders proposed on behalf of the Respondent Mother.
2. The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some minor differences of approach have been adopted and have survived intermittent appellate attention.
3. For the purposes of the determination of these proceedings, it is appropriate to adopt the following approach:
a) Set out the proposals, including options not advanced by any party that the parties address or could have addressed,
b) Where possible and relevant, consider and make findings about the matters set out in S.60CC,
c) Consider and make findings about parental responsibility, including considering the presumption in S.61DA,
d) Apply S.65DAA if relevant and assess the proposals in light of the provision,
e) If S.65DAA is not relevant, assess the proposals against the best interests criterion,
f) Make findings about living arrangements, and
g) Make orders.
Presumption of equal shared parental responsibility when making parenting orders
4. Section 61DA provides:
(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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in Section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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.) Your Honour will find that in this case the presumption is 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, i.e. mutual allegations family violence, lack of a parenting relationship that allows the parents to communicate and/or co-operate.
5. The risk factors for child of the Father’s lack of emotional self control are great. The Father’s propensity for refusing to comply with existing court orders and utter lack of insight as to the negative impact on X of the child not spending time with his primary carer, ie the Respondent Mother, was starkly evident during the evidence the father gave to questions put to him in cross examination.
Children’s best interests paramount
6. Pursuant to S.60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
7. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of the child is met by:
· Ensuring that the child has the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extend consistent with the best interests of the child; and
· Protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· Ensuring that the child receives adequate and proper parenting to help her achieve her full potential; and
· Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the child;
And that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
· The child has the right to know and be cared for by both their parents, regardless of whether the parents are married, separated, have never married or have never lived together; and
· The child has a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to her care, welfare and development (such as grandparents and other relatives).
Determining what is in a child’s best interests
8. Section 60CC of the Act provides that the Court must consider the matters set out in S.60CC (2) and (3), described as the “primary considerations” and the “additional considerations”.
9. The primary considerations are:
· The benefit to the child of having a meaningful relationship with both of the child’s parents; and
· The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are referred to below, to the extent that each may be relevant.
Parental responsibility
10. Your Honour will find that there are reasonable grounds to believe that a parent of the child, namely the Father, has engaged in abuse of the child’s Mother and family violence was perpetrated by the Father against the Mother, including when X was present in the household.
11. Your Honour will find that under Section 65DAA(5) of the Act that it is not reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents by reason of:
· The parents current and future inability to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents;
· The parents’ current and future inability to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
· The impact that an arrangement of that kind would have on X; and
· That to allow unsupervised time with the Father before the Father addresses his serious emotional and mental health issues would be detrimental. The Father admitted that should he believe X would be at risk in the care of the Mother he would again retain him. The likelihood of such an event occurring is unfortunately very probable given the Father’s irrational beliefs, his rigid personality and his unwillingness to accept any other perspective other than his own very distorted picture of reality so far as the Mother’s relationship with X and the fact that she has not put X’s safety in jeopardy.
Section 60CC(3) Additional Consideration
Best Interests Section 60CC(3)(a) wishes
15. This is not yet a relevant factor as X is about to turn four years old.
Section 60CC(3)(b) Nature of Relationship with parents and other parties
16. X is very attached to his primary carer giver, the Mother. There is a large concern as to whether the Father is attuned to the emotional needs of his son and the Father is likely to be overwhelmed by his own anxiety and lack of emotional self control. He presented as a person unable to separate his own needs form those of X.
Section 60CC(3)(c) Failure to participate in decisions about long-term issues or to spend time with the child.
Section 60CC(3)(a) Failure in their obligations to maintain the child
18. The Mother was forced to seek the Child Support Agency’s intervention to obtain a reasonable level of support for X from his Father.
Section 60CC(3)(d) Likely effect of change in circumstances
19. The Mother’s proposal for orders as to the time X spends with the Father is sufficient for him to have a relationship with him. Whether this can progress to unsupervised time will depend on the Father’s efforts to address his mental health issues.
20. There is no proposal from the Father as to how the parenting relationships should be improved.
Section 60CC(3)(e) Practical difficulty and expense
21. In order to protect X from further conflict it is desirable that supervised contact at B Family Services operate.
Section 60CC(3)(f) Capacity to provide for the child’s needs including the emotional and intellectual needs
22. There is no concern about the Mother’s care of X. There are concerns relating to the Father including exposing X to family violence and his willingness at handovers to make things difficult and unpleasant.
24. There is sufficient doubt about the Father’s parenting capacity to cause reservations about the extent of the Father’s parenting skills.
Section 60CC(3)(j)t(k) Any family violence
25. This is referred to the above.
Section 60CC(3)(i) Orders least likely to lead to further proceedings
26. The Orders sought by the Mother are least likely to lead to further proceedings.
Any other fact or circumstance that the court thinks is relevant
27. The evidence clearly establishes that the mother is the most significant parent who is likely to be very crucial to the child’s future wellbeing.
28. Whilst it is necessary to balance the level of risk to the child of possible physical or emotional harm or neglect from his father against the potential benefit of X spending time with his father, it is also important to consider the likely negative impact on the mother as principal carer if she has to endure the anxiety, distress and fear that an order for no supervision in respect of the father’s contact with X.
29. It is submitted that there is ample evidence to demonstrate that unsupervised and/or overnight contact would pose a real risk of harm to the child from the father and that the level of risk is unacceptable and significant.
30. X is quite vulnerable in his own way and at not quite age 4 years old is unable to protect himself. The magnitude of the risk will be much less if the Father’s contact is supervised. The overriding consideration is the welfare of X. X’s right to safety is paramount.
32. The Mother’s belief that the Father is a risk to X is not only genuine but realistic. Objectively, there is an unacceptable risk. Her belief is likely to impact on her capacity as the primary carer of X. The Father’s contact should be supervised. This may also allay the Mother’s reasonable apprehensions.
33. Your Honour has had the advantage of observing the behaviour, demeanour and insight (or lack thereof) of each of the parents during the proceedings. Particularly when under cross examination.
34. Your Honour could draw an inference as to the likely future behaviour of each of the parents based on their past behaviours.
35. Whilst Your Honour can be satisfied that the Mother will meet X’s needs in the future, the father’s evidence would give rise to an assessment that he has much more work to do before X should spend unsupervised time with him.
Credit of the parties
36. The Court would accept the Mother as a witness of truth and have no issues with her testimony. The Father presented as less than candid, at times he was evasive and contradicted himself. The Father displayed a pronounced lack of insight as to X’s past experiences of him and he also had an unrealistic assessment of his parenting skills which have been inadequately applied at times.
38. The Court may direct the Mother to advise the Father of certain matters relating to X from time to time.
Outline of Principle
55.In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[3]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[3] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
56.Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[4]
[4] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks. The same remarks of Brown J in Mazorski v Albright were also endorsed by the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
57.In addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF. In that case, Kirby J observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[5] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
[5] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
58.In the same case, Hayne J said (internal citations omitted):[6]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[6] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
59.Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court.
Consideration and disposition
60.Following sequentially the order of “considerations” in s.60CC(3), without necessarily or specifically mentioning each sub-paragraph, I note the following summarily in the light of the evidence and in the light of the jurisprudential principles recorded above. Before doing so, however, I will deal with one specific matter.
61.On the issue of “parental responsibility”, in my view the evidence clearly confirmed that the parties have the greatest difficulty communicating. Indeed, in the written submissions of the Father (p.9) it was properly conceded that “the parties are unable to communicate at a level necessary to promote X’s welfare.” This position was slightly qualified, as noted in the submissions set out above.
62.On the overwhelming weight of the evidence, the presumption in favour of equal shared parental responsibility is clearly and strongly displaced as a result of the abject inability of the parties to communicate. It follows that sole parental responsibility must therefore reside with the Mother who has been, and remains, the child’s primary carer. In my view, such an Order is also in the child’s best interests. The only qualification is that the Mother is to keep the Father informed in writing of any major long-term decisions made by her in relation to the child.
63.The Mother is also directed to inform the Father, once per school term, of the well-being and progress of the child at child-care and at school. When the child is at school, the Father is to be provided with copies of the child’s term/semester reports. These may be provided directly by the school to the Father. Any medical emergency relating to the child must be notified as soon as possible to the Father.
64.It follows from the Order for sole parental responsibility that the considerations highlighted in s.65DAA of the Act do not arise.
65.I turn now to the considerations set out in Part VII of the Act to which I have earlier referred.
66.Firstly, in relation to the primary considerations set out in s.60CC(2), in my view, the evidence clearly points to the fact that X has a good and close, but somewhat different, relationship with both parents. This is so notwithstanding the extremely volatile relationship between the parents and the significantly unpredictable actions of his Father. It is also difficult for the Court to comment further given the hugely variant evidence of the parties, such as the Father contending that while he kept the child for some weeks from even contacting the Mother, X was neither distressed nor asked at any time about or for her. Such evidence was incredible; I do not accept it.
67.Secondly, the priority that is required to be given under s.60CC(2A) to the protection of the child from relevant harm specified in that section is perhaps the most onerous consideration here. Although treated later in these reasons under the principles of “unacceptable risk”, in my view it is clear on the evidence, particularly of the Father, that the child needs to be protected from the Father’s aberrant behaviour, as referred to on numerous occasions in the course of these reasons.
68.Given the child’s age, there are no relevant “views” to be considered.
69.I have already noted the good relationship that X has with both parents, accepting the limitations of the evidence, particularly the slightly dated evidence from Dr C. The respective capacities of the parties regarding parenting are, of course, on the evidence, rather polarised accounts that have been put before the Court. For reasons given earlier, I prefer and accept the evidence of the Mother where there is any conflict with that of the Father. That said, clearly in the very early years of X’s life, where the Father was working full-time in paid employment and the parties were together, there was some more direct sharing of responsibilities by the parents even if the bulk of the daily care was provided by the Mother.
70.I note again however the lack of insight shown by the Father, almost desperately so, when on the two occasions he kept X from his Mother. In January this year, as already observed, this was ostensibly on the basis of the Father’s fear for X being in the Mother’s care while smoke from bush fires circulated around Canberra. The Father never explained how or why he could better protect the child from the risk of such smoke, or how the presence of smoke was somehow caused by, or was the fault of, the Mother. Such claims were unfounded and bordered on the hysterical and delusional. In my view, these matters also relate to the considerations set out in sub-paragraphs (f), (g) and (i) in s.60CC(3).
71.In my view, the Court may reasonably conclude that the Father retaining the child and doing so in circumstances where X had no contact with his Mother, showed not only lack of insight but must have also impacted negatively on the young child being separated from his primary carer.
72.Because both parents live in the national capital, there are no matters of practical difficulty that arise.
73.The issues of “family violence” were, on the evidence, more verbal contests. There were mutual allegations of some physical contests. I need not and cannot take those matters very much further other than what I have described in traversing the evidence earlier in these reasons. Again for reasons already given, more recent events particularly by the Father, in my view, have significantly overtaken much of what occurred during the relationship.
74.Finally, in the light of the evidence, including the conduct of the Father on two recent occasions, the Court must consider the specific question of “risk” to the child and whether it constitutes or warrants being categorised as “unacceptable.” Such matters were raised directly in the Mother’s post-hearing submissions, as set out above. For current purposes, by way of outline of relevant principle, it is sufficient to record the following matters from the Full Court decision in Johnson & Page.[7] In noting the following, there is no suggestion that there has been any sexual abuse of the child. Summarised, the focus is on the risk posed to the child by the Father’s unbridled conduct, unregulated emotional outbursts, and his actions in retaining the child contrary to Orders and without reference to the Mother. It is suggested that the emotional dysregulation of the Father could lead to (or constitute) emotional abuse of the child.
[7] Johnson & Page (2007) FLC 93-344 (May, Boland and Stevenson JJ). The extended discussion in Johnson & Page was cited approvingly in the later Full Court decision in Slater v Light (2013) 48 Fam LR 573 at [37] – [41] which also included consideration of matters relating to the duration and qualifications regarding Orders for a parent’s time with a child to be supervised.
75.First, at [62] – [63], the Full Court said (emphasis added):
62. The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
63. Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
76.Then at [68] and [69], the Court said:[8]
[8] At [71] and [72], the Full Court said that it generally agreed with the comments set out in the article cited by them (and set out here) written by the Hon John Fogarty.
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s.140 of the Evidence Act 1995 (Cth).
77.Applying the ordinary civil standard set out in s.140 of the Evidence Act 1995 (Cth), and the principles set out by the Full Court in Johnson & Page, having regard to (a) the Father’s recent retention of the child on two occasions for reasons that were without foundation, (b) the comments and observations set out in Dr C’s Report, and (c) the Father’s over-wrought and emotionally uncontrolled appearances and comments at Court events on 31 January 2020, and during the trial in March 2020, in my view there is an unacceptable risk of emotional abuse to the child. The relevant protection for the child that follows such a finding is that the Father’s time with the child must be professionally supervised as proposed by the Mother, and supported by the ICL. In my view, such supervision is appropriate for a period of six months, following which there must be a relevant psychological assessment that must include reference to the contact centre’s notes.
Conclusion
78.For the reasons given, the Orders that are in X’s best interests are those proposed by the Mother. They are to be altered as indicated in relation to the provision of information to the Father.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date:17 September 2020
Correction (15 October 2020)
Cover sheet and Orders: Page 1 – Delivered on date changed from 17 September 2020 to 18 September 2020.
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