GEIGER & WEN
[2018] FCCA 2461
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEIGER & WEN | [2018] FCCA 2461 |
| Catchwords: FAMILY LAW – Parenting – where the parents met in (country omitted) and relocated to Australia – where the mother alleges domestic violence by the father – where the mother makes allegations of alcohol abuse by the father – where the father alleges the mother poses an unacceptable risk of harm to the child as a result of neglect – where the mother seeks orders for the child to have no contact with the father. |
| Legislation Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CC, 60CC(2) (a) and (b), 60CC(2A), 60CC(3), 61DA |
| Cases cited: Mazorski & Albright [2007] FamCA 520 M & M (2000) FLC 93-006 |
| Applicant: | MR GEIGER |
| Respondent: | MS WEN |
| File Number: | NCC 550 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing date: | 14, 15, 16 and 17 November 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Townsville |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr Sundstrum |
| Solicitor for the Respondent: | NLS Law |
| Counsel for the Independent Children’s Lawyer: | Mr Davies |
| Solicitors for the Independent Children’s Lawyer:: | Legal Aid New South Wales |
ORDERS
That the mother have sole parental responsibility for the child [X]. born 2014 (the child).
That the child live with the mother.
That the child spend no time with the father.
That the mother shall provide the father with copies of the child's school reports and any certificates of attainment relating to school or sporting activities.
That the father is at liberty to forward to the mother a birthday present and or Christmas present for the child on each such occasion.
That the father is to keep the mother informed of an email or mailing address so that the mother can provide the information required pursuant to these orders to the father.
That the mother provide the father with a mailing address so that the father can forward presents in accordance with these orders.
That the father is restrained and an injunction is granted restraining him from attending the child’s schools or any after-school or sporting activity that the child may attend from time to time.
That the child's name forthwith be removed from the airport watch list.
IT IS NOTED that publication of this judgment under the pseudonym Geiger & Wen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
NCC 550 of 2016
| MR GEIGER |
Applicant
And
| MS WEN |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of Initiating Application Mr Geiger, age 62 at the time of the trial, commenced proceedings seeking parenting orders for the child of his relationship with Ms Wen age 34, [X] born 2014.
The parents met in (country omitted) where Ms Wen had lived all her life. Mr Geiger was a (occupation omitted), in (country omitted) in various locations from approximately the year 2000.
The couple commenced a relationship in approximately 2008. That relationship developed and they were married on 20 September 2010. The parents moved to Australia in June 2013 and Ms Wen became a permanent Australian resident on 2014. The parents separated on 21 January 2016.
Mr Geiger alleges that the mother, Ms Wen neglects the child by not appropriately attending to his needs from time to time, including not ensuring that he is treated for medical conditions.
Ms Wen alleges that Mr Geiger perpetrated many acts of family violence towards her and the child throughout the relationship, and that he consumed excessive amounts of alcohol, up to one bottle of wine per day.
A further issue that became quite apparent in this matter as it proceeded through the various directions and throughout the trial was the mental health of the father.
At the time of trial the operating orders made on 5 April 2016 were that the child live with the mother and the father was to spend supervised time with the child.
The father commenced seeing the child supervised by a private supervising agency, Child Contact Service A, in May of 2016 and ceased spending time supervised by that organisation on 18 August 2016. The supervisor terminated the supervision due to the father's hostility and generally verbally aggressive state.
Prior to the trial commencing the father was spending time with the child supervised by Child Contact Service B that supervision having commenced on 22 August 2017.
Issues
The issues for determination were as follows;
1. whether the father pose an unacceptable risk of harm to the child due to his violence and anger management issues, alcohol use and mental health;
2. whether the mother poses an unacceptable risk of harm to the child as a result of neglect;
3. with whom the child shall live;
4. whether the child should spend time with the non-live with parent, and if so, in what circumstances;
5. whether there should be an order for sole parental responsibility.
Material
The father relied upon;
1. amended response filed on 26 April 2017;
2. affidavit of the father filed on 26 April 2017;
3. affidavit of the father filed on 24 October 2017.
The mother relied upon:
1. amended response filed on 9 February 2017;
2. her affidavit filed on 26 October 2017.
The Independent Children's Lawyer relied upon the family report prepared by Mr N dated 27 October 2016.
The Orders sought
The father sought an order that the child live with him and that the child spends time with his mother from 9:00am until 6:00pm on Wednesday.
The mother sought the following orders:
1. The mother have sole parental responsibility for the child [X] born 2014 (the child).
2. The child live of the mother.
3. The child spend no time with the father and have no communication with the father.
4. The father is restrained and an injunction is granted restraining him from attending the child’s schools and/or any after-school or sporting activity that the child may attend from time to time.
5. The child's name forthwith be removed from the airport watch list.
The Independent Children's Lawyer sought the following orders:
1. That the mother have sole parental responsibility for the child.
2. That the child live with the mother.
3. The child spend no time with the father.
4. That the mother should inform the father about the child's progress including school milestones and sporting milestones.
5. The mother should pass on to the child any birthday presents or Christmas presents sent by the father.
Evidence
The father represented himself in these proceedings. The material relied upon by the father was voluminous and at times difficult to follow.
The father's case was based around his belief that the mother has a mental health issue as a result of her upbringing.
It is not in contest that the mother was abandoned by her parents in (country omitted) when she was approximately 2 to 3 years of age. Her adoptive mother had a disability and she died when the mother was approximately 10, the sister of the adopted mother then cared for Ms Wen. At the time Mr Geiger met Ms Wen, Ms Wen was working for her adoptive uncle, and there was great difficulty in the working relationship.
The father denies any family violence between he and Ms Wen and says that his prior apprehended domestic violence order of five years protecting his former wife and the two assaults committed upon her for which he was found guilty should have no relevance to these proceedings as they occurred 20 years ago.
The mother alleged that there was a violent incident that occurred between she and the father on 21 January 2016 where he chased her with a knife, drove erratically and dragged her to the car after punching a hole in the wall.
The husband denies the incident and in his affidavit evidence says;
“There is no mention of anyone being cut by a knife. There is no mention of any blood being shed any wounds attended to. There is no mention of any of the neighbours being alerted to this melee allegedly taking place."
The father further says that there was no evidence of any injuries being shown up at the hospital.[1]
[1] The Hospital notes for that incident were not before the Court
The mother says in her evidence that when she attended the hospital she did not say anything to the hospital staff because she was too scared.
The father in his affidavit responds to that assertion as follows;
“again this defies belief and for Ms Wen to assert that I did not tell the nurse anything because I was really scared shows a contempt on her behalf for the expertise and professionalism of Australian hospital staff who would be well trained to detect such issues. They would not be fobbed off by such an obvious deception by a patient who is clearly in a highly delicate condition i.e. having some spotting of blood in her urine, feeling some pain in the stomach and worrying how these symptoms might affect the pregnancy which has just been confirmed by the hospital staff. … Ms Wen should have some awareness of the skills and experience of nurses given that in 2015 she completed a (omitted) course of study at (University omitted).”
The father explains in great detail how he was upset and surprised by the mother informing him, whilst she was in (country omitted) on a holiday that she wished to separate from him.
The father says that he was the child's primary carer because during 2015 the mother worked three days a week and spent two days at the University. The mother says that the father could not care for the child during that time and in her evidence in chief says that the father would often deliver the child to her while she was working so that she could feed and change the child.
The father admits to taking the child to the mother's workplace as a common occurrence so that the mother could see how the child was and show him off to her work colleagues. He says he would leave the child with her for 10 to 15 minutes so that he could go and buy groceries.
The father refers to an incident that occurred at the (omitted shopping centre). The incident involved he and a driver of another motor vehicle. The incident involved aggression on behalf of the father whilst pushing the child in a pram towards a motor vehicle that he says was behaving erratically.
The father's evidence on this point in his evidence in chief is that he was pursued and harassed by a driver who was “continually honking her horn as I proceeded through the car park towards the shopping centre".
He says “when I came to the pedestrian crossing the driver persisted in this harassment and even began to shunt the front of her vehicle into my legs while I kept the pram turned away.” “I remonstrated with the driver briefly before several other pedestrians came to see what the fuss was and some of the stores Security officers also came over. I decided to quickly move away from the aggressive “Bogan driver" who accelerated rapidly and drove off.”
The father explains in his evidence that the mother's failure to report domestic violence to several people, including a registered nurse, Ms M suggests “that Ms Wen (the mother) has learned not to trust people in professional positions from her personal experiences in (country omitted), whereby the ethical adherence to the structures of patient medical professionals were lax. One might posit the syllogism that if Ms Wen doesn't trust others, then who should trust her.”
Suffice to say the father's evidence is replete with similar accusations and opinions based upon his view of the world and as I said previously was at times difficult to follow.
The father was cross-examined.
The father admitted that he had attended a (anger management program)
The father attended the (anger management) course on 11 April 2017. There was an incident involving the father at the mother's solicitor's office, where he told the young male receptionist that he might want to check a stroller that he had left in the foyer for a bomb.
The young receptionist reported that the father attended the office in a very agitated and angry manner, demanding a pen and paper and then made the veiled threat that there might be a bomb in the stroller. That incident occurred 2017 after the father had “successfully completed” the (anger management) course.
The father said that he had learnt in the course that there were two basic types of anger, good anger and bad anger. He said that anger can be directed in a useful manner and that Ms H's perception (Ms H being the supervisor from Child Contact Service A) of his anger “did not align themselves with an objective view of how and why I was presenting myself.”
The father conceded that he was angry he said he was angry after 6 to 7 months that she told me that the child had a cough and flu. “I was angry that she wasn't doing her job re-looking after the child".
The father went on to say that he believed Ms H was not paying due attention to the child and that he thought she was biased towards the mother and that she was putting money in her pocket regardless.
It was the father's evidence that he believed that Ms H should have some knowledge about the child's health and issues that may arise. The father was increasingly frustrated that Ms H continued to allow the child to have time with him when he presented with what the father believed to be a temperature and/or cold and flu type symptoms.
He thought it was incumbent upon Ms H to stop the time if the child was unwell, saying “I don't care if Pope Francis says you see your child, twice a week, if it is not safe it won't happen."
The father said he gets angry when he thinks he is being lied to or deceived, and that anger in those circumstances is okay. With regards to Ms H he said “I disrespect her I did not try to vitiate my anger because I thought it was righteous and justified not to try to intimidate her.”
His evidence is that he did not set boundaries with the child because the child was “exploring the world”. He said “I wanted the child to do that I'm not like the (nationality omitted) whose view it is to keep a child in a bubble.”
The father said in cross-examination that in November 2015 the child was harmed in the mother's care and now has a permanent scar over his left eye. He pointed out that there are no examples of harm whilst being in his care.[2]
[2] The mother conceded that the child fell from a high chair while she was feeding him. She took the child to the hospital and the child was immediately cared for.
The father was taken to the notes of Ms H where on numerous occasions she had to step in to stop something from occurring that she thought could cause harm to the child.
One such incident was where the child was heading towards an open dam and the father was not monitoring closely. The father's response was, he would have said something however, the child loves water. He went on to say if she was so concerned she should have stepped in to physically stop the child.
The father was asked whether he believed his behaviour towards Ms H was inappropriate and disrespectful and he replied that he lost a lot of respect for her after she didn't investigate the child's health. He said his interaction with Ms H was appropriate because he simply stopped talking to her.
The father admitted to assaulting his former partner and that there was a five year apprehended domestic violence order in place.
The father also gave evidence that a Family Court order in relation to the three children from that previous relationship was made preventing him from seeing his children. He considered that the order was made after the mother had lied in court. His view of the violence in that relationship was that it was minimal.
In relation to verbal abuse in that relationship the father said there was verbal abuse because “like Ms Wen she was a very good liar, she put her career above her children she was also an orphan and had similar psychological issues that Ms Wen might suffer from”.
The father admitted that in January 2016 and interim apprehended domestic violence order was put in place protecting the mother from him. The police subpoena notes reveal that the father breached that apprehended domestic violence order by attending the mother's workplace.
He gave evidence that he did not consider it a breach because he did not know about the order but in any event the breach was proved and the father was convicted on 24 June 2016.
It was put to the father that he breached the previous apprehended domestic violence order and he said he did not. The father was then shown his criminal history which showed that there was a breach of the original apprehended domestic violence order in 1997 and then he admitted that he had breached it.
The father admitted to an angry road rage incident.
The police incident in relation to that event relates to the incident in the car park at (omitted shopping centre). The father told police that he spat at the motor vehicle then walked back across to the car on the pedestrian crossing and the car nudged his legs. He denied any aggression.
In relation to the spitting at the car the father said “people have to stand up for their rights evil happens when you don't, I don't go behind peoples back like Ms Wen does".
When asked whether he considered his behaviour to be protective behaviour for the child the father said “when people push the barriers I have a right to show my indignation, you need to stand up to it.” The father admitted that spitting at a motor vehicle towards the driver was in fact offensive. The father said that he did not believe that the incident could have put the child in danger.
When asked how he could manage his behaviour during stressful situations the father said that he had a perfect right to be angry when he sees an injustice with regards to the child.
His evidence on this point I noted was otherwise unresponsive and he talked about the mother being naïve. Ultimately, he says he will handle stressful situations as he has handled them in the past.
It was put to the father that he had called the child “a little cunt, shook the child, pulled the child to the ground heavily and then threw the child into a cot saying “see what you can do now”. The father denied those incidents.
The incident was reported to the Department of Family and Community Services (DoFaCS). The father said though DoFaCS found the allegations not plausible. A perusal of the DoFaCS incident report reveals that DoFaCS found that there was no plausible risk of death or injury.
When the incident of the argument with the mother where it is alleged he dragged her by the hair into the living room, chased her with a knife and then took her to the hospital was put to the father he denied the incident but did so in a very raised voice getting quite angry during the process.
A further incident contained within paragraph 56 of the mother’s trial affidavit was put to the father. He again denied that incident, and again became quite agitated when being cross-examined on this point.
In relation to the father's assertion that the mother’s upbringing has had a negative effect on her ability to raise children the father said it is just common sense.
The father admitted that he still drinks alcohol almost every night and that it amounts to half a bottle a night.
The father conceded that he had attended a psychologist post separation for anxiety and depression and that he was still medicated at the time of trial with medication for those conditions.
It was put to the father that he was controlling the mother in terms of financial control, discouraging her from driving and from speaking to the neighbours. The father denied any financial control or that he discourage the mother from driving however he did admit that he discouraged the mother from talking to one of the neighbours, Ms R.
Upon subsequent questioning in relation to the financial control the father said I control the use of the monies to pay for things that the mother was not contributing towards. “The mother was living rent-free board free. I paid for everything yeah that's control. But what about a bit of gratitude".
The incident involving the child heading towards and ultimately playing in water involving Ms H was again put to the father and it was suggested that he could not properly supervise the child. The father's response was odd in that he said “he loves water for God's sake I was encouraging him to be with water have you heard of Mr A I can jump puddles is he some deviant for liking water”.
Ms H in her notes[3] report that the father was aggressive with her at times and on one occasion snapped at her and told her why don't you change the child. The father admitted to doing this.[4]
[3] Annexure I to the mothers trial affidavit
[4] See page 66 of the mother’s trial affidavit
The father “100% guaranteed" that he had been sarcastic towards Ms H and hostile towards her.
The father overall under cross-examination said that Ms H was biased towards the mother and would not or could not understand how his actions could potentially put the child in harm's way.
His evidence was very skewed in my view in that he was adamant that the best thing for a child is to be able to run free to play in water, to pick up faeces, to play in wood piles where there are rats, insects and snakes, because in his view it is “hard knocks and dirty socks.”
The father admitted to the incident on 18 May 2017 where there was a dispute with Ms H at a shopping centre. The father ultimately retained the stroller leaving Ms H to walk away with the child in her arms.
The father attended the mother's solicitor’s office. He put the pram inside the reception area, on the evidence of the young male receptionist[5] he was aggressive and agitated demanding a pen and piece of paper and he admitted that as he was leaving he said “do you want me to check for bombs.”
[5] See annexure N to the mothers trial affidavit
In relation to slamming the door the father said “force is required to shut a door”.
When pressed as to why the father made the comment about checking for bombs he said “it's called humour”. He went on saying “unfortunately between the time I went to the council and walked to the law office I didn't have time to plant a bomb".
The father was adamant that he was attempting to be funny and could not understand how this matter might be relevant to the proceedings.
The Independent Children's Lawyer then cross-examined the father he asked the father why he put Ms R's statement in his affidavit.[6] The father made a non-responsive answer that made absolutely no sense at all.
[6] Document 28 of the fathers affidavit filed 3 March 2017
The statement that the father included into his own evidence provides details of loud arguments involving screaming and shouting from both parties with the child screaming during those fights and the mother, ultimately leaving the home with the child to stand outside of the nature strip.
The statement also confirms the mother’s allegation that the father refused to drive her to university requiring her to walk. Ms R in her statement confirms that she and her husband would often stop to pick her up as they saw her walking down the road to take her places.
Ms R’s statement contains information about a number of violent incidents that she heard from next door. She says in her statement that other members of the neighbourhood would also come outside to see if there was anything they could do to help. Ms R recalls an incident on 21 January 2016 that was “particularly horrendous.” She says that her daughter also witnessed the incident.
Mr Geiger in his affidavit[7] includes the police statement that Ms P made.
[7] Document 38
Ms P gives evidence in that statement that she heard an argument over who should go to work with Mr Geiger telling the mother that she should work because she is not a citizen and cannot get any benefits.
Ms P says she then heard Ms Wen say “don't hit me" and then heard Mr Geiger say “I will fucking hit you".
Ms P’s evidence then continues that she heard sounds that sounded like slapping but she was unsure who was sitting who. She says she went to seek help from her parents and when she came back out she saw the mother sitting outside her parents’ home visibly upset.
When questioned about his anger and the management thereof, the father said again that he believes there are times when anger can be directed for a positive cause and that he learnt to own his anger.
He said he believes it is indicative of a person who is willing to stand up for what is right, not a mouse, to say the treatment of a child by a mother has been so aggressively wrong.
When it was asked of him whether he was angry at the shopping centre incident he said yes because he was standing up for his rights.
The fact that he spat at the car refused to get out of the way of the car and escalated the situation, in my view, was put to him and he stated that it was not a harmful situation to place the child in.
The father said he has a right to get angry when he believes he is in the right. He said he likes to argue.
He was asked what does it teach the child when he sees you raising your voice and getting angry and the father said “It teaches him that people like Ms H like to provoke people provoking people to argue, to stand up for his rights".
The father said he did not believe the child would suffer any ill effects from hearing those arguments after conceding that he yells and screams during those arguments.
Overall, I formed the view that the father had severe anger management issues. His demeanour in the witness box was to be frank, quite strange. He has a very odd personality. He at times was non-responsive and at other times rambled about matters not relevant to the proceedings. I formed the view that the father becomes agitated and angry over the most trifling of issues and that when he does so he shakes, becomes incoherent, and yells and screams as he did so during cross-examination.
The paternal grandmother was called. The father had prepared her affidavit. The paternal grandmother admitted that she was not present when the father had typed the affidavit, however she does not sign anything, she does not believe in.
After being cross-examined by the mother’s barrister it was obvious that the paternal grandmother was very supportive of the father and that there were matters contained within her affidavit that she was simply unaware of. For example there was an incident involving the father and the child where the child nearly pulled a television down on himself. That incident is contained within the paternal grandmother's affidavit, but when cross-examined about the incident she said I did not see it. When it was pointed out that the incident was in her affidavit she said yes but I didn't see it.
When cross-examined by the Independent Children's Lawyer Counsel the paternal grandmother said she had seen the father get angry and that she believed he can become verbally impatient.
The Mother
The mother's evidence is that her relationship with the father was the first relationship she has ever had. Her evidence continues that she is the primary carer for the child and that she meets the needs of the child. She confirms that the child has lived with her, his entire life.
It is the mother’s case that the father was violent towards her during the relationship and that he would drink alcohol most nights and that she was very scared of him.
She says that in (country omitted), men are often violent to women and the police do not help. She had learned from her experience in (country omitted) not to tell the police because she would not be believed and for that reason she did not call the police about the violence in her home because, as a (nationality omitted) woman she did not think anyone would believe her.
The mother’s evidence continues that after she met the early childhood nurse Ms M and had disclosed to her over some time about some of the violence she was then able to consider leaving the father.
The mother’s evidence is that not only did she tell Nurse Ms M but she also told her lecturer Ms B. Annexed to the mother's affidavit at annexure C and D are notes and a letter from those two people confirming that the mother did disclose family violence during the relationship.
It is the mother’s evidence that shortly after she found out she was pregnant there was an incident involving domestic violence in the home. The mother says that as a result of that incident she started to have a stomach ache and asked the father to take her to the hospital. The mother says that when she got to the hospital she did not tell the nurse there because she was very scared of the father.
Exhibit 9 is the discharge referral for that incident. The notes for the referral indicate a sudden onset of lower abdominal pain and that the mother was guarding her abdomen. The notes indicate nil associated symptoms.
The mother gives evidence of the incident that occurred on 21 January 2016[8] and remarkably enough, the father has included the mother’s statement to the police in his affidavit. The statement from the mother confirms what Ms P was hearing and the mother says that the slapping sound that Ms P heard was the father punching himself in the face.
[8] the incident Ms P gave a statement to the police about
The mother gives evidence that when she finally got a court order to obtain her belongings from the family home that when she attended she found her belongings in the dog kennel in the very back of the yard. The mother annexes at G a copy of the photographs of her belongings. The photographs confirm that her belongings were situated in the doghouse.
The mother gives evidence on 3 February 2016 the father attended her home to see the child. When he arrived he told the mother that she had to go with him to the police station. The father told the mother that she had to withdraw the apprehended violence order. Together they went into the police station and the mother asked to withdraw the apprehended violence order, the police officer told her she could not. The apprehended violence order was not withdrawn and subsequently a final order was put in place.
The mother confirms that the fathers supervised time with Child Contact Service A was stopped by Ms H. Her evidence continues that after it was ordered that the supervised time recommence the father again continued to see the child supervised by Child Contact Service A from 26 October 2016 until 22 December 2016 when he terminated the visits and no further times were organised.
The mother gives evidence that the father did not spend any time with the child between 22 December 2016 until 16 May 2017.
It was ordered on 26 April 2017 for the child to spend supervised time with the father supervised at the Child Contact Service C.
The mother says in her affidavit that she is very concerned about the behaviour of the father and she believes that he is harmful to the child if he is to spend any unsupervised time with the child.
The mother was cross-examined by the father.
The mother conceded that the child does get along well with the father when his time is supervised.
The mother under cross-examination said that she wanted the child to spend time with the father provided it was supervised. She had received advice that long-term supervision was very rare and she said it breaks her heart for the child, to have to seek an order for no time.
The father asked the mother whether she had given him a reason for leaving him and the mother said yes she had enough of his anger and she did not want to put her child through this. Remarkably again the father included in his affidavit at “document 31” the email exchange between the mother and the father at that time. The mother says in that document;
“I can't talk to you faced by face. I am so afraid of you. I don't want to face your anger and quarrel all the time in your eyes I'm such a low class (nationality omitted) woman. You don't care what I've done for this home I am tired.”
The mother concluded her evidence in this aspect of the case by saying “he always say I push his buttons".
The father put to her that she did not report any incidents of domestic violence to anyone and the mother said yes because she was very scared and she did not know anyone else in Australia that the father was the only person she knew.
The father asked whether the mother had allowed his daughter to see the child. The mother said yes she did and the daughter tried to offer the mother help because she had been through the same thing with the father.
The father asked her why she stayed in the relationship and the mother said it was because she was very vulnerable and she did not know what to do she was not strong enough back then it took her a long time to get the courage to leave.
The father asked the mother questions about the medical attention she gave the child. Her answers satisfied me that she was attending to the child's medical needs in an appropriate fashion.
The father asked why the mother did not ask for his help and she said “it is not possible you're too aggressive and you want to assert your rights.”
The father said to her that she had left the child with him while she was attending university and work and the mother said yes that is true. I am a terrible mother for doing so.
The father asked the mother why she contacted him after she left and the mother said she was attempting to settle the situation between her and the father for the benefit of the child. She repeated that evidence on more than one occasion.
I formed the view that the mother was being honest and child focused when she was attempting to put the family violence between the parents to one side for the benefit of the child. The mother's evidence, however, continued that the father would not settle his behaviours and, indeed, over time, his anger and agitation became worse and worse.
The mother was cross-examined by the Independent Children's Lawyer and she conceded that the child does ask to see the father and that she believes the child loves the father.
The Independent Children's Lawyer asked if the court ordered supervision was that something that she would have a difficulty with and the mother said no it would be great as long as it happens, until the child can protect himself.
Mr N – family consultant
The family consultant was asked whether he understood the suggestion that there was righteous anger. The family consultant said he did not understand what a righteous anger was and that the best way to deal with conflict was without aggression.
He was asked whether the responses the father had to Ms H was an appropriate response and the family consultant said “his reactions are symptomatic of the issues the father has had all along they reflect the father has not learned a great deal it is endemic of the father's behaviour as to how he handles situations he is not in agreement with”.
In the family report[9] the family consultant states
“it remains specifically unknown whether Mr Geiger has any personality disorder, and whether his aggression towards women, as evidenced by the mother and the Child Contact Service A supervisor are symptomatic of Mr Geiger's patriarchal view of the world."
[9] Paragraph 31
I might add his aggression towards women is also evidenced by his two assaults and the breach of an apprehended domestic violence order in place with respect to his first wife.
The family consultant was asked whether a long-term supervision order would be appropriate. The family consultant said we run out of options it is either a no contact order or unsupervised time order.
I understood the family consultant’s evidence in this regard was based on the fact that the father had engaged with, Child Contact Service A and due to his actions had that time stopped. Then re-engaged with Child Contact Service A and he then discontinued using the service. He then engaged with Child Contact Service B, and whilst that time appeared to be going well, Child Contact Service B do not offer long-term as in indefinite supervision.
The family consultant said in his evidence in cross-examination what concerns him relates to his history of violence and one would think that his prognosis for change is quite poor.
The family consultant says in his report[10] that the father's acknowledged history of assaults upon his first wife and the subsequent implementation of an apprehended domestic violence order against Mr Geiger combined with Ms H's observations raises serious concerns for the family consultant about the father's understanding of young children's needs and how he could manage particularly stressful situations with the young child without reverting to anger response. Furthermore, he was concerned that the father did not understand boundaries necessary to be in place was caring for a young child.
[10] Paragraph 50
The family consultant was reluctant to recommend that the child spend no time with the father and indicated however that before the father should spend unsupervised time he should complete a significant anger management program.
The difficulty I have with that proposition is the father completed the (anger management program) an anger management course, and shortly thereafter admits to an incident where he was agitated, yelling, slamming a door and suggesting that a search of a stroller for bombs might be in order.
Furthermore, the father's responses to questions in cross-examination caused me great concern with regards to whether he had learned anything at all from the anger management course. His explanation of “righteous anger” was quite bizarre and not in accordance with any appropriate view regarding anger.
Finally watching the father's behaviour throughout the trial raises serious concerns about the father's ability to manage his emotions at all. The father was at times agitated, yelling, screaming, clearly angry and at other times quite emotional crying and sobbing.
The family consultant was asked what supports would be necessary for the mother if a no contact order was made in circumstances where the child had some relationship with the father. The family consultant said the mother would need to seek out appropriate support so as to assist the child in understanding why he was spending no time with his father.
I am confident that the mother would seek out appropriate support as her evidence establishes that she is meeting the needs of the child and will take on appropriate advice at all times.
The father cross-examined the family consultant and the family consultant agreed that it would be upsetting for the father to see the child on an inconsistent basis. However, when asked whether the father had a right to be angry the family consultant said “whether you're angry or questioning why it is happening it is how you approach the situation, whether you escalate quickly, or manage it better is something you need to address.”
When cross-examined by the mother's Counsel the family consultant confirmed that in his view, the father had a lack of insight in relation to the child's needs.
The family consultant was advised that the father expressed anger and aggression during the trial and it was suggested that it would seem that the problem raised in the report still persists. The family consultant said that that would be a reasonable conclusion.
Ultimately, the family consultant said that he was not sure that anymore supervision is going to assist. He was of the view that the child might be emotionally harmed or physically harmed due to the father's anger management issues and he again confirmed that the father has a lack of insight into his own behaviour.
The law
As this is a children's proceedings Part VII of the family Law act is in play. I must be guided by the objects and principles as contained in section 60B. I must have the child's best interests as my paramount concern. In making a determination as to orders that are in the best interests of the child I must consider the matters contained within section 60CC.
As both parents and indeed the Independent Children's Lawyer seek an order for sole parental responsibility I must consider and determine whether the presumption contained in section 61DA applies. I must also consider whether an order for equal shared parental responsibility is otherwise in the best interests of the child.
Assessment of the evidence in the context of the legislation
The primary considerations are set out in section 60CC(2) (a) and (b) of the Family Law Act. Section 60CC(2A) provides that I am to give greater consideration to the need to protect as set out in section 60CC(2)(b) when applying the considerations set out in subsection 2.
Clearly there is a legislative intent for a child to have a meaningful relationship with both of the child's parents.
Submissions by the Independent Children's Lawyer on this issue were that the father shows a lack of understanding as to what is required to provide the child with a meaningful relationship. He continued the submission by saying that the father's behaviour in the witness box was most inappropriate and that he had a most peculiar presentation.
The Independent Children’s Lawyer pointed out that it was the father's actions that drove the supervisor away and that he was more focused on the supervisor than the child during those supervised visits.
The Independent Children's Lawyer submitted that it does remain unknown as to the depth of the father's mental health issues. The submissions continued to ask rhetorically what benefit is there for a child in seeing a person angry with individuals from time to time in circumstances where the child may learn those behaviours and also learn to be angry. It was pointed out that the child is very young and very vulnerable and at this age cannot self-protect.
Ultimately the Independent Children's Lawyer submitted that due to the father's presentation and anger management issues and potential mental health issues the child could not have a meaningful relationship with him.
In Mazorski & Albright[11] Brown J at paragraph 24 discussed the meaning of meaningful in the context of the family Law act. At paragraph 26 Brown, J says;
“what these definitions conveyor 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.”
[11] [2007] FamCA 520
His Honours comments in relation to the definition of “meaningful” have been supported and applied in numerous cases since.
Whilst the father seeks an order that the child live with him I cannot make that order. The evidence clearly establishes that the mother is the primary carer of the child and that the child is primarily attached to the mother, and furthermore that the father's anger management issues are so significant that a live with order in his favour would certainly not be in the child's best interests.
It follows that I am left with a decision as to whether the child should spend supervised time with the father unsupervised time with the father or no time with the father.
If I were to order long-term supervision, which is rare and also unlikely to be facilitated by a professional Contact Centre then, in the context of the definition of “meaningful” per Brown J and the father's odd presentation I am not sure that the relationship between the child and the father that followed from such an order would be “significant”, “important” or of “consequence”.
Turning to the need to protect I must consider the father's history of family violence, his poorly managed anger issues and his potentially compromised mental health.
Family violence
The evidence establishes that the father committed acts of family violence in his previous relationship with his first wife. An apprehended domestic violence order was in place for five years and a court ordered that he spend no time with his children.
The father's explanation about those acts of violence committed upon his wife showed that he has a complete lack of insight into his own actions, and more importantly he considers that he has a right to act in this way when he feels an injustice.
The mother has made allegations of family violence. Her allegations are supported by the material the father included in his affidavit. At the time of trial there was an apprehended domestic violence order in place and the father had breached it. The father's explanation as to why he breached the order by attending the mother's work in direct contravention of the order was unbelievable and most unsatisfactory.
Overall, having assessed the evidence I am satisfied that the father has committed acts of family violence on the mother and in the presence of the child.
I am also satisfied, having assessed the evidence that the father has a propensity towards aggression and/or violence. He is easily agitated and becomes very aggressive. He yells and screams and loses control.
In M & M[12] Mullane J said this;
“The father's abusive behaviour presents a multifaceted danger for the children. There is a risk of violence to them personally and injury. There is a risk that violence poses when it involves living with fear, insecurity and vigilance. There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father's abusive behaviour that abuse is part of life of females, and becomes even more accepting of such behaviour. There is a danger that both children will come to believe from the father's abuse of the mother, that women are lesser beings.
But the greatest danger is that B, particularly, will learn from his father's behaviour that physical and emotional abuse are acceptable ways of dealing with other persons and thus come to share his father's disability. Such a disability would mar his dealings and relationships with others, including those he loves, bring him into conflict with the police, the courts and the community, and result in him being penalised and even imprisoned."
[12] (2000) FLC 93-006
At the time of trial the father was in another relationship. His history of violence perpetrated against his partners is indicative of a pattern that may continue into the future. There is a risk therefore, that the child may be exposed to family violence, if he were to spend unsupervised time in the care of his father.
I am of the view, however, that the father's actions and the way he reacts aggressively to people in public in the presence of the child presents equally the same multifaceted dangers as set out by Mullane J in M&M.
It is clear that the father acts out whether he is with the child or not. It is a real concern that this child will be exposed to the father's “righteous anger” at any time the father considers that an injustice has been served.
This is a very young child, and as a result is very vulnerable. In those circumstances I am satisfied that the father poses an unacceptable risk of psychological and/or physical harm to the child if the child were in his care unsupervised.
Clearly the child has a relationship with his father and he enjoys his time with his father. It was the mother's view that the child loves his father.
It has long been held that long-term supervision is counterintuitive to the best interests of the child. Such an order should be made in rare circumstances.
Were it not for the father's propensity towards aggression and having outbursts whenever he perceives an injustice has occurred I might have considered making such an order.
However, the father's behaviour is so unpredictable that I cannot be satisfied that he would not behave aggressively or in an agitated state in the presence and hearing of the child even in a supervised setting if he believed that he must stand up for his or the child's rights.
Father's mental health
As I have often said in these reasons, the father's presentation was at times bizarre, but most definitely odd. There is no evidence of the father suffering from any mental health condition other than anxiety and depression.
The father clearly lacks insight into his behaviour and how it might impact upon his child and that brings into question whether his mental health is compromised by some other disorder. I cannot make a finding as to whether the father has another mental health issue or not.
Alcohol use
The father's admitted alcohol use of approximately 3 and 1/2 glasses of wine each day would be considered over the recommended limit in accordance with the Australian medical standards. There is no evidence, however, that his alcohol use caused him to act aggressively or otherwise.
There is no evidence that the father's alcohol use was so problematic that he at times neglected the child. In those circumstances I am not satisfied that the father's alcohol use poses a risk to the child.
The mother's alleged neglect
The father's case was that the mother neglected the child because she failed to ensure that the child was treated appropriately when he became ill.
The mother gave honest and forthright answers in relation to the child's medical needs and her ability to meet those and I was satisfied that the mother has not neglected the child in any way in relation to any of the child's needs.
Additional matters
The child's views were not sought as the child was two years and seven months at the time of interviews. There is evidence, however, that the child asks to see his father from time to time.
The evidence establishes that the child has a strong secure bond and a primary attachment to his mother.
The evidence further establishes that the child has a loving relationship with his father. However, the relationship between the child and his father has been compromised due to the actions of the father.
Those actions include having supervised contact stopped due to his aggressive nature, the father's decision to stop spending supervised time and the father's behaviour at times while spending time of the child.
The mother has taken every opportunity to be fully involved in the child's life.
As previously set out the father at times has decided that it is better not to see the child rather than to deal with another person who he does not respect. As a result, the father has not taken every opportunity to be fully involved in the child's life.
If I were to make orders consistent with the father's proposal this would bring about an enormous change to the child. The child has lived his entire life with the mother and such a radical change in his living arrangements would, in my view, cause him significant distress.
Of course if I made orders consistent with the father's proposal having regard to the findings I have made in relation to the father's behaviour and that he is an unacceptable risk to the child this would also have a disastrous effect on the psychological well-being of the child.
If I make orders consistent with the mother’s and Independent Children's Lawyer's proposals this will bring about a change to the time the child spends with his father.
I am of the view that this will cause the child some short-term confusion and possibly distress. In those circumstances, the mother will need to be vigilant if I were to make those orders and ensure that the child is given the appropriate psychological intervention that he may need from time to time.
The parents live sufficiently close to each other such that there is no practical difficulty and/or expense involved in the child spending time with and communicating with either parent, such that it would substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
I am satisfied that the evidence supports a finding that the mother has the capacity to provide for the needs of the child, including the emotional and intellectual needs.
Conversely, I am not satisfied that the father has a similar capacity. His lack of insight into the needs of his child, both in regard to protection from the father's behaviours and the need to be a consistent presence in the child's life shows a complete lack of insight into the child's needs.
I am satisfied that the evidence establishes as a fact that the mother has at all times displayed a positive and appropriate attitude towards the child and to the responsibilities of parenthood. She has endeavoured to protect the child from what she perceived was the father's violent and aggressive nature.
I am satisfied that the evidence establishes as a fact that the father has at times put his needs and his focus on the mother above the required need to demonstrate a positive attitude towards the child and the responsibilities of parenthood.
I have previously in these reasons set out my findings in relation to family violence. As I have said previously, it is not only the family violence that has occurred in my view, but the likelihood of the child being exposed to further violence in the presence and hearing of the father.
It is obviously preferable to make orders that are least likely to lead to the institution of further proceedings. The Independent Children's Lawyer submitted that I should err on the side of caution, make an order for no time.
His argument was developed to submit that if I made an order for supervised time, the past history of the father having regard to supervisors stopping time and he unilaterally stopping time would suggest that there could be no certainty that the father would continue to spend time with the child in the supervised centre. In those circumstances, it was argued, the mother would need to commence proceedings again to seek an order for no time.
I am persuaded by that submission. As the family consultant said in cross-examination “one would have to think his prognosis for change is quite poor". I agree there was absolutely no indication from the father through his evidence that he perceived any need to change his behaviours, and indeed thought that he had a right to express “righteous anger” and to stand up for his rights whenever he thought it was required. In those circumstances I have no confidence that if I were to order supervised time the father would continue to comply with such an order.
If the father did in fact repeat history and stop spending time with his son this would have a negative impact on the child and could compromise his psychological well-being.
If ever there was any doubt as to the father's ability to maintain control in a stressful situation that doubt was put to rest during the father's submissions.
It is accepted that the father was under enormous stress, representing himself against two seasoned barristers in circumstances where the orders being sought were that he spend no time with a son who he clearly loved.
Nevertheless, and particularly in light of the fact that his anger management was very much a live issue in the proceedings one could expect that if the father could control himself whilst in court, this would be one of the places in which he would endeavour to do so.
It was evident that the father was out of control at times during his submissions. He oscillated between vocal rage and agitation to convulsive sobbing and incoherence. His presentation was most alarming and again confirmed my view that he had some form of underlining mental health challenge.
Balancing the considerations
Having considered all of the matters contained within section 60CC(2) and (3) I am satisfied that it is appropriate to make an order for the child to live with the mother and that he spend no time with his father.
I am satisfied that the child is too young and too vulnerable to be exposed to his father who I am satisfied has extreme anger management issues, and a belief that he has a right to be angry and aggressive and express his “righteous anger" whenever he believes it is appropriate to do so.
Parental responsibility
I have made a finding that the father has committed acts of family violence in the presence of the child. In those circumstances the presumption in section 61DA(1) does not apply.
The parents have no effective communication at all and as a result, no effective co-parenting relationship.
The evidence establishes that the mother is fearful of the father and was overborne by him throughout the marriage. The mother gave evidence of many situations where she simply agreed with what the father wanted to “keep the peace” rather than express her own view. One such subject matter was the fact that she began studying nursing because that is what the father wanted and certainly not what she wanted to study.
In those circumstances an order for equal shared parental responsibility could not be an order that is in the best interests of the child, particularly when this is a very young child with many major decisions to be made in this child's life.
For these reasons, I am satisfied that the orders I have made are in the best interests of the child.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 7 September 2018
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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