Gilmore and Austen

[2016] FCCA 3337

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILMORE & AUSTEN [2016] FCCA 3337

Catchwords:
FAMILY LAW – Children – family violence – father poses unacceptable risk to mother and child – order for no time.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

H & R [2006] FamCA 878
Fitzpatrick & Fitzpatrick (2005) FLC (93-227)
Moose & Moose [2008] FamCAFC 108

Applicant: MR GILMORE

Respondent: MS AUSTEN

File Number: SYC 3111 of 2014

Judgment of: Judge Boyle

Hearing dates: 28 and 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Sydney

Delivered on: 22 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Cook

Solicitors for the Applicant: Garrison Lawyers

Counsel for the Respondent: Ms Dart

Solicitors for the Respondent: Kyle Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Reynolds

Solicitors for the Independent Children’s Lawyer: Brian Samuel & Associates

ORDERS

1. The Mother have sole parental responsibility for the child X, born (omitted) 2006 ("the child".)

2. The child live with the mother.

3. The child spend no time with the father.

4. The father shall be permitted to communicate with the child by sending letters, cards, photographs and/or gifts to the child on the following occasions

   (a)The child’s birthday;

   (b)Christmas day

   by delivering such cards and letters to his brother, Y.

5. The mother shall send copies of the child's school reports and school photos to the father by delivering them to Y, after redacting all information and images from such reports and photos which may identify the child's school.

6. The mother shall ensure the child receives all letters, cards, photographs and/or gifts from the father, provided she is satisfied they are appropriate and not likely to distress the child.

7. That pursuant to s.11(1)(b) of the Australian Passports Act 2005 (Cth) the Mother is permitted to apply for the issue of an Australian passport and renewal of same for X without the consent of the Father being obtained.

8. That pursuant to s.65Y(2)(b) of the Family Law Act 1975 (Cth) the Mother be permitted to remove X from the Commonwealth of Australia at her sole discretion.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3111 of 2014

MR GILMORE

Applicant

And

MS AUSTEN

Respondent

REASONS FOR JUDGMENT

1. This matter concerns parenting applications with respect to X born (omitted) 2006, currently aged 10 ½. X lives with her mother, as she has done all her life. Her parents separated when her mother was about 5 months pregnant.

Parties orders sought

1. The mother sought orders in her case outline document filed 21 July 2016 and ultimately joined with the Independent Children’s Lawyer (“ICL”) in seeking orders in accordance with the ICL’s minute of orders[1] as follows.

   1. That the Mother have sole parental responsibility for the child X, born (omitted) 2006 ("the child".)

   2. That the child live with the Mother.

   3. The child spend no time with the father.

   4. The father shall be permitted to communicate with the child by sending letters, cards, photographs and/or gifts to the child on the following occasions

   a.   The child’s birthday;

   b.   Christmas day

   [1] Exhibit ICL 3.

   by delivering such cards and letters to his brother, Y.

   5. The mother is to provide to the child all letters, cards, photographs and/or gifts from the father, provided she is satisfied they are appropriate and not likely to distress the child.

   6. The mother is to send copies of the child's school reports and school photos to the father by delivering them to Y, after redacting all information and images from such reports and photos which may identify the child's school.

2. Additionally the mother seeks orders 4 to 8 of the orders sought in her case outline document.

   4. That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the Mother is permitted to apply for the issue of an Australian passport and renewal of same for X without the consent of the Father being obtained.

   5. That pursuant to s 65Y(2)(b) of the Family Law Act 1975 the Mother be permitted to remove X from the Commonwealth of Australia at her sole discretion.

   6. That pursuant to section 68B of the Family Law Act 1975, the Father be, and hereby is, injuncted from:

   a. Contacting or approaching the Mother or X by any means whatsoever, except through his solicitor;

   b. Approaching within 100 metres of, or entering upon:

   i. The Mother’s place of residence from time to time;

   ii. The Mother’s place of employment or study;

   iii. X’s school or any place of extra-curricular activity attended by X, except as authorised by a parenting order of this Court; or

   iv. The maternal grandmother’s place of residence.

   c. Harassing, molesting or stalking the Mother or X;

   d. Causing, or threatening to cause, bodily harm to the   Mother or X; and

   e. Interfering in any way with, or causing damage to, any property of the Mother or X.

   7. That the injunctions provided for in Order 6 are made for the personal protection of X and the Mother.

   Notice to the Police

   8.  It is noted in the orders of the Court that:

   a. An injunction is in force under s 68B for the personal protection of the Mother and X; and

   b. Where a police officer believes, on reasonable grounds, that the Father has, since the injunction was granted, breached the injunction:

   i. The police officer may arrest the Father without warrant pursuant to s 114AA; and

   ii. That following such arrest, and pursuant to s 114AA(3), ensure that the person is brought before this Court or a State Magistrates Court having jurisdiction under the Family Law Act 1975 in relation to family violence.

3. The father seeks orders in accordance with annexure “1” of his Affidavit filed 28 July 2016.

   a.   X live with her mother Ms Austen;

   b.   The child have supervised visits with the father, supervised by Y, on each second Saturday of every month beginning 13 August 2016 as follows and in the following manner:

   (i)From  10am until 2pm for three visits until and including 8 October 2016, then;

   (ii)From 10am until 4pm for three visits from 12 November 2016 until 8 January 2017, then;

   (iii)From 9am until 6pm for six visits from 11 February 2017 until and including 8 July 2017.

   (iv)Y will pick up and drop off the child from the mother's residence;

   (v)All communications, pick up and drop offs for the visit will be conducted by Y,

   c.    Y will not divulge the mother’s residential address, phone numbers, email address or any other of her contact details to the father.

   d.   The mother will send to Y copies of X’s school reports for the father;

   e.   The father will not have any direct communication with the mother;

   f.     The ICL Brian Samuel to remain in the matter;

   g.   The father to comply with all requests, directions and treatments of the ICL;

   h.   If the father does not comply with the requests or directions of the ICL, the father's time with the child with be suspended until the ICL is satisfied the father has adequately complied and the visits will continue in the same regime as listed above in paragraph 45(b);

   i.     On or after 8 July 2017 the ICL will make a recommendation to this Honourable Court regarding the father's progression with regard to the continuation of visits between the child and the father;

   j.     The father is restrained from assaulting, molesting, harassing, threatening or interfering with the mother.

   k.   The father must not contact the mother by any means  whatsoever except through the father's legal representative or Y in the case of an emergency ;

   l.     The parties are not to speak in a derogatory or insulting manner to or about the other party in the presence of or hearing of the child and they must remove the child if others are speaking in a derogatory or insulting manner to or about the other party .

The Exhibits

1. The parties tendered the following exhibits:

   a.Mother’s Exhibit 1. Urinalysis drug test results of Mr Gilmore dated 22 June 2016.

   b.Mother’s Exhibit 2. Child Responsive Program Memorandum prepared by Ms L dated 17 February 2015.

   c.Mother’s Exhibit 3. Orders made by The Honourable Justice Aldridge, Family Court of Australia dated 17 March 2015.

   d.Mother’s Exhibit 4. NSW Police Criminal History Report of Mr Gilmore.

   e.Mother’s Exhibit 5. NSW Police COPS results in respect of Mr Gilmore.

   f.Mother’s Exhibit 6. Medical record of Mr Gilmore produced by (omitted) Community Health Centre.

   g.ICL’s Exhibit 1. (omitted) Community Health Centre progress notes of Mr Gilmore dated 1 February 14 to 31 March 2016.

   h.ICL’s Exhibit 2. Child Dispute Conference memorandum produced by Ms R dated 21 August 2014.

   i.ICL’s Exhibit 3. Minute of orders sought by the Independent Children’s Lawyer dated 28 July 2016.

Document relied on

1. For the father:

   a.Initiating application filed 23 May 2014.

   b.The father’s affidavit filed 28 July 2016.

   c.Affidavit of his brother, Y filed 28 July 2016.

2. For the mother:

   a.Her response filed 15 August 2014.

   b.Notice of risk filed 15 August 2014.

   c.Her affidavit filed 14 July 2016.

   d.Affidavit of Ms E filed 28 June 2016.

3. For the ICL:

   a.Expert report of Dr C, dated 22 June 2015.

Preliminary Issues

1. The mother sought that the matter proceed on an undefended basis, as the father had failed to comply with directions of Monahan J made 27 June 2016, to file and serve one consolidated affidavit by 1 July 2016, and any brief affidavit in reply by 15 July 2016; further affidavits could not to be relied on without leave of the Court. The father did not comply with those directions.

2. It was submitted for the father that he had applied for a grant of Legal Aid in the week prior to the hearing, and a grant of Legal Aid was made. Solicitors were engaged, and his material prepared. The mother and ICL were served with an unsealed copy of the father’s affidavit on the evening before the hearing commenced.

3. The father sought that the application be adjourned, as he wished to put forward other evidence, including that of his treating social worker or psychiatrist. The father proffered no explanation of why he had not applied for Legal Aid earlier, nor what attempts had been made to obtain evidence in relation to his psychological state.

4. This litigation has caused stress and pressure on the mother. She experiences difficulties in dealing with the father. It is important for X that her mother is as well as possible, and able to provide X with the best care possible.

5. The father’s application for an adjournment was denied.

6. As to the mother’s application, the father was at court with legal representation. Although the affidavit being provided the day before was no doubt inconvenient, there was nothing in the affidavit that could not be met by the mother and her legal representatives. Thus the matter proceeded to hearing.

Background

1. The father was born in (country omitted) in (country omitted) in 1968. His background was unclear. In his affidavit he asserted that he was a child soldier from approximately four years of age. In the witness box he said this occurred from when he was 10 years, and continued for a period of two years. 

2. Y, the father’s brother, gave evidence that he grew up in a different house in the same city as the father. They share the same father, although they have different mothers. He said he did not know that his brother had been a child soldier, and that he had never been told that. It is highly unlikely that his brother would have been unaware of that background if true.

3. The parties met in Sydney at a (country omitted) class in about August/September 2003. At that time the father was separated from a previous partner, Ms N. They have a daughter, A, who was then about 4 months old.

4. The parties commenced a relationship in October 2003, and in about March 2004 started living together at the maternal grandmother’s home. The mother has a son, B, from a previous relationship now aged 16.

5. The parties separated in July 2005 when the mother was pregnant with X.

History of family violence

1. The parties and B, then aged 4 years, moved to rental accommodation in May 2004. It was not long after that that the mother says the father became physically violent and sexually aggressive towards her, and abusive towards B.

2. The mother describes the father as a heavy drinker, who drank a number of long neck bottles of beer and a couple of bottles of wine each night. The father concedes 2 bottles of wine each night. It is not disputed that he smoked marijuana each day. She was told by the father in late 2004 that he also used cocaine at that time.[2]

   [2] Mother’s affidavit filed 14 July 2016, at para 109.

3. The father on occasions woke the mother to demand that she cook for him: “If I was slow to get up Mr Gilmore pulled my hair and yelled in my face. He did not let me rest or sleep. It was easier to comply.”[3]

   [3] Mother’s affidavit filed 14 July 2016, at para 90.

4. The father spoke to the mother in a demeaning and degrading manner: “You are useless, you are nothing, you are so stupid, you are zero.”[4]

   [4] Mother’s affidavit filed 14 July 2016, at para 91.

5. He demanded money and use of the mother’s credit card. At times he took her to an ATM to draw cash for him, at other times he took her credit card. If she did not immediately agree he hit her or threw things at her.[5]

   [5] Mother’s affidavit filed 14 July 2016, at para 92.

6. The father asked the mother questions about her whereabouts when she was at work or at TAFE. The father said things like “Where have you been? What man are you seeing?”[6]

   [6] Mother’s affidavit filed 14 July 2016, at para 110.

7. The mother describes the father attacking her by pulling her hair, slapping, kicking, punching, strangling, throwing things at her and biting her.[7] She suffered a bruised body, swollen face and black eyes. She hid the cause of these injuries from her family.

   [7] Mother’s affidavit filed 14 July 2016, at paras 106-107.

8. The father sexually assaulted the mother on occasions. She describes him wanting sex when she was leaving for work, and forcing her onto the couch and pushing his penis into her face and mouth.[8] He insisted that he wanted sex with an Asian woman, and harassed the mother to organise this for over a month. The mother paid for a sex worker to visit the home for the father, choosing a time when B was at her mother’s. She left the home whilst the father remained with the prostitute.

   [8] Mother’s affidavit filed 14 July 2016, at para 98.

9. From about June 2004 the mother describes the father’s behaviour as worsening which included him “picking on” B who was then 4 years old.[9] If B did not do as he wished he would not speak to him for hours, sometimes days. He spoke in front of B about how rude B was. If the mother intervened he said things like “You are stupid for teaching your son bad manners. He needs to learn respect. I will teach him respect”, and at times was physically abusive to her.[10]

   [9] Mother’s affidavit filed 14 July 2016, at para 94.

   [10] Ibid.

10. The father’s behaviour towards B escalated from July 2004 to early 2005, when B went to live with his father. He called B names like “zero”, “a poofter”, “nothing”. And said things like “your mother has made you gay”, “you have a bad mother”.[11]

    [11] Mother’s affidavit filed 14 July 2016, at para 100.

11. On one occasion the father destroyed the furniture in B’s bedroom while B and the mother hid in the other bedroom. On another occasion, B called out for his mother during the night and the father went into his room and screamed at him “Go to sleep! Stop calling for your mother because she’s not coming”, “Shut up poofter! You are zero! No one is listening. Your mother’s not coming. You are nothing! Shut up!” B was 5 years old.[12]

    [12] Mother’s affidavit filed 14 July 2016, at para 102.

12. B witnessed his mother being physically assaulted, demeaned and abused. In late 2004/early 2005 the mother discussed with B’s father his moving to live with his father. I accept that the mother made that decision for B because of the violence in her relationship with Mr Gilmore. This was clearly a very difficult decision for her to make.

13. I accept that the mother and B have a close relationship, and following the mother’s separation from Mr Gilmore they have spent time with each other regularly. The mother and B’s father are able to make decisions together about his welfare and interests. X and B share a close relationship and see each other regularly.

14. The father was charged with an assault on Ms N, the mother of his daughter A. The mother provided a statement for the father for use in those proceedings. As the court date approached the mother said to the father “I cannot be that person for you anymore because you have been hitting me.” The mother says “Mr Gilmore responded by yelling obscenities and slapping me across the back of the head.”[13]

    [13] Mother’s affidavit filed 14 July 2016, at para 111.

15. In May 2005 the mother found out she was pregnant. She attended a domestic violence support group and counselling at Centacare (omitted). Letters dated 31 August 2005 and 19 September 2005 from Ms S, counsellor at Centacare, are annexed to the mother’s affidavit.[14] These are in support of the mother obtaining Department of Housing accommodation, and an extension for her TAFE work. Both refer to her ongoing contact with the service for assistance with domestic violence.

    [14] Mother’s affidavit filed 14 July 2016, at annexure “F”.

16. The mother left the home in July 2005 when the mother was about five months pregnant. The parties have not lived together since X’s birth. The mother continued to have contact with the father when she visited him, and by telephone, text and email. The father sent her texts like “That child is not mine; I won’t acknowledge her when she is born.” “You open your legs for all the (nationality omitted)”.[15] At times he telephoned her 20 to 30 times without waiting for a return call.

    [15] Mother’s affidavit filed 14 July 2016, at para 127.

17. In April 2006 the father went to the mother’s home uninvited at approximately 9pm. B and X were both asleep. X was about 2 months old. The father kicked the door and opened the kitchen window. He shouted at the mother, and was trying to get into the house. The mother was on the telephone with a friend, who called the Police. The Police attended, and a provisional interim Apprehended Violence Order was obtained for the mother’s protection.[16]

    [16] Mother’s affidavit filed 14 July 2016, at para 130.

18. The mother and X spent about 6 weeks staying at a friend of the mother’s home, as she was too frightened to return home.[17] On 4 May 2006 a final ADVO was made for the protection of the mother for a period of three years.[18]

    [17] Mother’s affidavit filed 14 July 2016, at para 131.

    [18] Mother’s affidavit filed 14 July 2016, at annexure “H”.

19. At this time the mother was referred to counselling through the (omitted) and Children’s Centre, which she continued until about August 2012. A letter confirming the mother’s involvement in that service is annexed to the mother’s affidavit.[19]

    [19] Mother’s affidavit filed 14 July 2016, at annexure “I”.

20. The mother has had counselling with Ms E through (omitted) from 1 July 2014 to date, other than when Ms E was absent on leave for a period. Ms E gave evidence that the mother initially presented with acute stress symptoms and tension, causing her to present as hyper-aroused and hyper-vigilant. Ms E records:

    Our therapeutic relationship developed over many months and Ms Austen’s sense of safety increased and she used the therapeutic space with me to process her acute stress responses to the Family Law Court process, her fear of contact with Mr Gilmore and the final decision…

    Ms Austen is extremely resilient and focused on maintaining her mental health while experiencing overwhelming fear of Mr Gilmore whose presence has returned to her life through the court process…

    Her responses to this extra-ordinarily stressful time are healthy and appropriately vigilant…

    Were Ms Austen to be cross examined by Mr Gilmore within the court or have to facilitate contact between X and Mr Gilmore, I would be concerned for her mental health…[20]

    [20] Affidavit of Ms E filed 28 June 2016, at annexure “B”.

1. The father told Dr C “there were heated arguments but no fights or violence during the relationship”.[21]

   [21] Expert report, page 12, line 406.

2. The father in his oral evidence said that he has no recollection of the detailed allegations of violence asserted by the mother, relying on his abuse of alcohol and drugs over the course of the relationship as the cause of his lack of memory. When speaking to Dr C he could at least recall that there were arguments during the course of the relationship, although he denied violence.[22] At times in his evidence he asserted that he did not behave in the manner the mother suggested, and that he would not have done so. It is unclear how he could reach that conclusion if he had no recollection of any of those events.

   [22] Expert report, page 12, line 406.

3. I find that the father has subjected the mother to significant family violence over the course of their relationship.

Father’s drug and alcohol abuse

1. The father has had a significant problem with alcohol and marijuana. His own evidence is that whilst in a relationship with the mother he was drinking one to two bottles of wine each night. After separation that increased to around four litres of wine each day.[23] Additionally, he has smoked marijuana regularly. He says that he stopped consuming alcohol about three years ago without any professional intervention, or support from organisations such as Alcoholics Anonymous. There is no independent evidence that supports this contention.

   [23] Father’s affidavit filed 28 July 2016 at para 16.

2. The father’s evidence is that he ceased using marijuana over one year ago. He provided a drug screen on 22 June 2016, which showed a positive result with respect to THC (cannabinoids).[24] The father was not able to reconcile his assertion with the positive test result. His social worker Ms H spoke to Dr C on 10 April 2015 and referred to him as “trying to reduce his marijuana use”.[25]

   [24] Exhibit M1.

   [25] Expert report, page 12, line 746.

3. Dr C gave evidence when cross-examined that given the length and severity of the father’s abuse of alcohol it was unlikely to resolve without professional intervention. He viewed the father’s use of alcohol and substances as a way of coping with his underlying depression. I do not accept the father’s evidence that he is abstaining from the use of alcohol and marijuana.

4. The father’s records from (omitted) Mental Health were tendered.[26] He has received a significant level of support from that service since 2014. Mr S, noted on 21 April 2016 that:

   Mr Gilmore has a history of chronic poor sleep due to PTSD and chronic THC use. He was strongly advised against using Valium given his addiction history. … He continues to use THC and prefers to wean himself off it independently (pre-contemplative phase). We have attempted to refer him to the Drug Health Service where he did begin treatment but he decided to stop it and preferred to do it his own way.”[27]

   There is no record of the father having met with the (omitted) Mental Health Service after 21 April 2016.

   [26] Exhibit M6.

   [27] Exhibit M6.

5. Dr C outlined his understanding from information provided by the father of the father’s life experiences. The father possibly suffered sexual abuse as a child, that he began using marijuana at the age of eight or nine, that one of his brothers committed suicide, that his father disappeared and is presumed dead, and that Mr Gilmore was a political refugee who was dislocated from his country and his family.[28]

   [28] Family report, page 21, line 766.

6. The father was referred to STARTTS, the NSW Service for the treatment and rehabilitation of torture and trauma survivors, after he arrived in Australia. Dr C notes that the father did not seem to engage in treatment.[29] Dr C surmises that on arriving in Australia the father was “traumatised, suffering from depression and substance abuse and seemingly lost”.[30]

   [29] Family report, page 21, line 787.

   [30] Ibid, line 789.

7. Dr C is concerned that the father is not receiving treatment in relation to his traumatic experiences. Dr C regards the father’s diagnosis as complex post-traumatic stress disorder, chronic major depression, dysthymia, drug and alcohol abuse.[31]

   [31] Ibid, page 23, line 860.

8. Dr C suggests in his report that the father has a dependent personality disorder which, in combination with significant trauma, has resulted in serious psychiatric disturbance.[32] It does not appear that the father has sought to address these issues, although he has engaged with Mr S over a period of about three years. Dr C was concerned that the father would find it very difficult to provide a stable environment for the child.

Primary considerations

[32] Ibid, line 873.

Section 60CC(2) The primary considerations are:

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

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

1. There is a real difficulty for X being able to have a meaningful relationship with her father that is safe for her. She has not had the opportunity to develop a relationship with her father, having seen him on about eight occasions when she was very young. All occasions have been supervised by her mother.

2. Initially the mother made arrangements with the father for him to visit X at her home, and in her presence. Thereafter X spent some time with the father for one to two hours in the presence of the mother at a park or shopping centre. I accept these visits occurred on three to four occasions between 2006 and 2010.

3. The mother has behaved responsibly in trying to provide X with a safe opportunity to know her father. However, the mother’s own fragility as a consequence of her relationship with the father has left her unable to do so.

4. X clearly derives an enormous benefit from the meaningful relationship she has with her mother. Her mother has provided her with an extraordinarily high level of care and love over the course of her life. She has done so with no support, financially or otherwise, from the father.

5. The need to protect X from being exposed to abuse, neglect, or family violence is of great significance in this matter for two reasons. One is the risk of abuse or family violence X may be exposed to if she had time with the father. The second is the risk of psychological harm for X if her mother were unable to cope with X spending time with the father. This is a real possibility.

6. Dr C’s unchallenged opinion was that the father posed an unacceptable risk to X, such that if time occurs it needs to be supervised. He suggested that there may be a benefit to X in supervised time with her father on approximately 4 occasions each year as a form of “identity contact”. He was clear in his evidence that if time with the father destabilises the mother, there should be no order for time.

7. The father lacked any empathy in reflecting on the mother’s experience of violence by him, or the mother’s apparent fear of him. He took no responsibility whatsoever.  

8. The father did not acknowledge that his abuse of the mother has persisted through his correspondence with her. Annexed to the mother’s affidavit were emails between the parents dated 23 May 2013, 23 June 2013 and 24 June 2013, that is, some 7 years after separation. The father has persisted with his belief that the mother had an affair with a friend of his during the course of their relationship. Notwithstanding the time that had elapsed, the father says:

   I think you don’t understant that you hurt me lot with (omitted). I just can believe everybody knew… [sic]

   I mean, Ms Austen in all Australia you chose (omitted) and I have to know abt it… [sic]

   In Australia thers dna just to humiliate you I will need it with X… [sic]

   Why sorry now what abt you can you tell X that you did it with daddy. Friend…. when she have the legal age I will tell her,, … god help you. [sic]

   You an me is finich and after you can be a train for (country omitted)  - bye and your dirty even with shower… [sic]  

   I need dna test with X just to be sure she’s not infected [sic].[33]

   [33]Mother’s affidavit filed 14 July 2016, at annexure “P”.

9. These emails were sent at a time that the father says he was in recovery from alcohol abuse. The tone and content is abusive and demeaning of the mother. The father in cross-examination showed no insight of the impact on the mother of these emails. The father demonstrated no empathy with the difficulties the mother has had as a consequence of her relationship with him, despite being aware of the evidence of Ms E of the impact on the mother.

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

1. X is a 10 ½ year old who appears to be doing well at school. Dr C formed the view that she is a happy child. X understands that her father is ill and that is why she does not see him. If he were well she would like to have a relationship with him. She would also like her brother to live with her.[34] X does not have a clear memory of her father.[35]

   [34] Expert Report, page 17, line 621.

   [35] Expert Report, page 27 at line 998.

2. X told her father during the course of the preparation for the Report that she would prefer not to speak to him on the telephone as she found it too sad.[36]

   [36] Expert Report, page 19 at line 682.

3. Little weight can be put on X’s views in this matter. In large part they reflect the positive image that her mother has been able to present to her of her father.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

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

1. X has an excellent relationship with her mother. Despite the difficulties that her mother has experienced, she has been able to provide X with a stable, loving home. Dr C describes her as “a very impressive woman”[37]. He formed the view that X has a very close attachment with her mother, and that her mother is insightful and caring. Similarly the mother’s counsellor Ms E described the mother as an “intelligent and thoughtful woman”.[38]

   [37] Ibid page 25 at line 935.

   [38] Affidavit of Ms E filed 28 June 2016, at page 8.

2. X does not have a relationship with her father, having only seen him on limited occasions as a young child. She met with him for the purpose of the preparation of the Report, with both her mother and Dr C present. X requested that her mother be present. X understands that she does not see her father because “he’s not very well… he has some alcohol problems.”[39]

   [39] Family Report, page 17, at line 619.

3. The mother has fostered a relationship between X and members of her father’s family, including his two brothers who live in Australia. The mother has arranged for Skype communication between X and her paternal grandmother, despite the communication difficulties as the paternal grandmother speaks (language omitted). The mother has organised Skype communication with X’s aunt, also called X, who lives in (country omitted). X had the opportunity to spend some time with her aunt when she came to Australia in November 2015.[40] Additionally, X has been able to attend events of significance for the paternal family, such as her uncle Y’s engagement party in 2015.

   [40] Mother’s affidavit filed 14 July 2016, at annexure “C”.

4. The father does not take responsibility for his role in having no relationship with X. Dr C was of the view that the father cares a great deal about X, although he had no real sense of her: “It appears to be more about the idea or concept of having a person in his life who will care about him and accept him unconditionally.”[41]

   [41] Expert Report, page 22 at line 821.

5. The orders permit the father to send appropriate cards, letters, photographs and gifts to X, so that she will be aware that her father is thinking about her, and interested in her. Her father will have school reports and photographs, so he will be aware of her progress.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. The mother has taken all opportunities available to her to make decisions for X, as X lives with her.

2. The father has not failed to take the opportunities referred to, in that he has not had the opportunity to make decisions for X, nor communicate with her.

Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child.

1. The father has not been in regular paid employment, and has not been in a position to make significant financial contributions to the support of the child. There is no evidence of any current child support assessment, nor whether he has paid any amount due. The burden of support for X has fallen entirely upon the mother.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

1. If orders were made for time between X and the father, there is a real risk that X’s mother would not cope. She has gone to extraordinary lengths to seek assistance for her mental health recovery from the trauma of her relationship with the father.

2. Ms E described the mother as being “hyper aroused and hyper vigilant.”[42] Further, she described the mother as having worked very hard to keep post-traumatic disorder thoughts under control. Ms Austen experienced acute and chronic re-traumatisation in constant contact with Mr Gilmore through the Family Law Court process and requests to explain her fear and recount incidents of violence perpetrated by Mr Gilmore.”[43]

   [42] Affidavit of Ms E filed 28 June 2016, at page 8.

   [43] Ibid.

3. When Ms E was cross-examined she referred to the mother having taken steps to contain her own anxieties around the father, so that she is available for X. She described the mother becoming extremely teary and physically shaking when she has to deal with the father. These physical effects were apparent in the mother’s presentation during the course of these proceedings. Away from issues pertaining to Mr Gilmore the mother is clearly a competent and capable person, and that is the way she parents X.

4. The evidence supports a finding that any order for time would be highly likely to render the mother unable to cope. [44] This is a relevant consideration, and it weighs heavily in support of there being no order for time. The mother is the only parent caring for X, and X needs her mother to be functional.

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

[44] H & R [2006] FamCA 878.

1. Any time arrangement would need to be supervised. The father himself seeks that until July 2017, supervised time occur on a fortnightly basis, supervised by Y. The father’s brother is clearly extremely well-intentioned. His evidence is that he could supervise time once a month, which is not consistent with the father’s application. It is not clear how he would manage standing up to his brother to properly supervise X from the risk posed if the father attended affected by alcohol or drugs, or made demeaning comments about the mother, or became angry.

2. The father seeks that the Independent Children’s Lawyer would continue to be involved and it may be that the time becomes unsupervised after July 2017. It is unclear what the impact of this would be on the mother’s mental health.

3. Dr C suggests that if there were supervised time for “identity contact”, a professional service would be required. There is no evidence that a supervised contact service could provide supervised visits over an indefinite period of time, as would be required to ensure X’s safety. 

4. There are real issues with long term orders for supervision, and how such an order could be in X’s best interests.[45] I do not find that such an order would be in her interests.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

[45] Fitzpatrick & Fitzpatrick (2005) FLC (93-227); Moose & Moose [2008] FamCAFC 108.

to provide for the needs of the child, including emotional and intellectual needs

1. The mother has met all X’s needs, including her emotional and intellectual needs, for all of her life. She has a demonstrated capacity to do this at a very high level. X is clearly thriving. X is described in her school report for semester 1, 2016 as being:

   a wonderfully kind and empathetic student. She has settled into the social demands of the composite class, enjoying new friendships with the Year 6 girls. She is mature in her understandings and accepts responsibility well. X works steadily and independently and I enjoy it when she speaks up to share her good ideas. X is a delight to teach.

2. The father has not demonstrated any capacity to meet any of X’s needs. The father’s efforts to maintain a therapeutic relationship with Mr S are significant and no doubt have provided him with a great deal of support. However it is clear from the evidence of Dr C and from the evidence of (omitted) Community Health Centre, that he needs more and different assistance to overcome his complex mental health problems.

3. The father has never undertaken drug and alcohol counselling. It appears he has never acknowledged the degree to which he has perpetrated violence upon the mother. He has not had counselling for the trauma that he has suffered through his life, which appears to be significant. Dr C gave evidence that he needs assistance to deal with the underlying trauma issues, as well as the drug and alcohol issues, in order to properly deal with those matters.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. X is a child of mixed heritage. Her mother has ensured X maintains a connection with her (country omitted) heritage by facilitating and encouraging a relationship between her and her extended paternal family members. X has been involved by her mother in (country omitted) dance groups, and I accept she derives a great deal of pleasure from that activity. She dances regularly in a group involving other children of (country omitted) heritage, which also involves the parents of some of those children. The mother has also taken X to (country omitted) cultural events, to assist her to develop her understanding of her culture and background.

2. The mother has also maintained X’s relationship with the paternal family, as outlined earlier in this judgment.

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

1. The father has behaved in a violent, aggressive manner towards the mother during the course of their relationship. Communication between the parties has been marked by the father’s abusive and degrading comments. Notwithstanding this, there has been no contact between the parties, nor direct communication for several years. There is no evidence that the father has sought out the mother, or X. I do not propose making the injunctive orders sought by the mother.

Parental Responsibility

1. The presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility does not apply in this matter. I find that the father has engaged in serious family violence. This has involved both the mother and X’s brother B.[47]

   [47] Family Law Act 1975 section 61DA(2)(b).

2. The mother should be permitted to obtain a passport for X so that they are able to travel overseas at the discretion of the mother. The mother was born in Australia, has lived here all her life, and has settled here. There is no evidence that suggests she would remove X to reside elsewhere.

3. The father has refused to complete passport documents for X. There is no proper basis for him refusing to do so. X should be able to travel overseas without reference to the father.

4. I am not satisfied that orders for supervised time, or any time, would be in X’s best interests. Orders for time are likely to expose X to risk both from her father’s conduct, and her mother’s reaction to making such an order. The father has taken no responsibility for his violence towards the mother. I find that no direct exposure to the father is safe for X.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date:  22 December 2016

[46] Mother’s affidavit filed 14 July 2016, at annexure “A”.