Gordon and Milson

[2016] FamCA 1161

FAMILY COURT OF AUSTRALIA

GORDON & MILSON [2016] FamCA 1161

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – with whom a child communicates – allegations of serious family violence – order that child live with mother – order that mother have sole parental responsibility for the child - order that child spend no time with or communicate with the father – injunctive orders

Family Law Act 1975 (Cth) s 60CC

Blinko & Blinko [2015] FamCAFC 146

APPLICANT: Ms Gordon

RESPONDENT: Mr Milson

FILE NUMBER: HBC 916 of 2016

DATE DELIVERED: 14 December 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 14 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tremayne

SOLICITOR FOR THE APPLICANT: Tremayne Fay Rheinberger

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

1. Ms Gordon (‘the mother’) shall have sole and exclusive parental responsibility for B born … 2013 (‘the child’) including exclusive permission to take or send the child overseas for holidays pursuant to s 65Y of the Family Law Act 1975 (Cth).

2. The child shall live with the mother.

3. The child shall spend no time with Mr Milson (‘the father’).

4. The father shall have no communication with the child, including but not limited to communication by telephone, email, SMS, MMS, social media or Skype.

5. By way of injunction for the personal protection of the mother and the child, the father, is restrained from approaching within fifty (50) metres of:-

   a)the mother and/or the child;

   b)any place where the mother and/or the child reside or are staying;

   c)any place of employment of the mother; and

   d)any school or sporting venue where the child and/or the mother are likely to be present.

6. The mother be and is hereby permitted to relocate the child’s primary place of residence to any place within the Commonwealth of Australia without notice to the father.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (‘the Act’), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. The mother shall cause a sealed copy of this order to be served upon the father within twenty eight (28) days from the date of the order and shall, within a further period of twenty eight (28) days, file an affidavit of service of the order upon the father.

9. All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).

10. At the expiry of twenty eight (28) days from the date of this order of all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gordon & Milson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 916 of 2016

Ms Gordon

Applicant

And

Mr Milson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Milson (‘the father’) subjected Ms Gordon (‘the mother’) and their son, the child (‘the child’), to many years of family violence.  It is not surprising that the parties are now separated and that the father does not see the child, nor given the violence, ought he see the child.  The mother and father were in a relationship from about 2011 to 2014.  

2. The mother comes to this Court seeking orders for sole parental responsibility, that the child, aged three, live with her, that he spend no time with his father and does not communicate with his father.  She also seeks orders that an injunction be put in place restraining the father from coming within 50 metres of the mother or the child. 

3. This matter commenced by application in a case filed 15 November 2016.  The matter came before a registrar of this Court on 23 November 2016, having its hearing expedited because of the serious allegations of violence.  The father was served with the mother’s application, affidavit and notice of risk of abuse.  An affidavit of service is relied upon by the mother.  Attached to that affidavit of service is an acknowledgement of service signed allegedly by the father, and the signature to that document has been identified by the mother under oath as being that of the father. 

4. When the father did not turn up or attend before the registrar on 23 November 2016 a letter was forwarded to him informing him that if he did not attend court on the next occasion then the matter would be referred to me for hearing on an undefended basis.  That letter was tendered as Exhibit M1, and from the Court file it is clear that the father did not attend at either the November court date or December court date.  He was called outside the Court today, and there was no appearance by him. 

THE EVIDENCE

1. The evidence before the Court is the following:- 

   (a)the mother’s initiating application filed 11 November 2016;

   (b)the mother’s affidavit in support of that application filed the same day;

   (c)a notice of risk filed the same day;

   (d)the affidavit of service of Mr C filed 22 November 2016 with acknowledgement of service dated 21 November 2016 attached to it;

   (e)the notes of the procedural orders made on 23 November 2016 and 7 December 2016 with a notation on each occasion that there was no appearance by or on behalf of the father;

   (f)Exhibit M1, the letter forwarded by the legal practitioner for the mother to the father dated 23 November 2016;

   (g)Exhibit M2, police records, including police history of the father; and

   (h)Exhibit M3, the notes from a medical centre confirming many of the injuries to which the mother alludes in her affidavit. 

BACKGROUND

1. The mother is aged 24 and is receipt of Centrelink benefits.  The father is aged 26.  The parties commenced living together in about 2011 and separated in about 2014.  The child was born in 2013 and, as I indicated earlier, is aged three years. 

2. The mother’s affidavit sworn 14 November 2016 is hard to read, but I imagine, would have been even harder to live through.  The affidavit provides serious evidence of family violence over many years.  There is evidence of stalking, physical violence, emotional violence, controlling behaviour, sexual assault to a degree to which I am surprised that the police have not been involved and taken that matter forward, the making and breach of police family violence orders and family violence orders, assault of the child, threats against the child, and violence to household pets. 

3. I do not at this stage intend to repeat all of the history and abuse to which the mother and the child have been forced to endure.  However, I have accepted the evidence contained in her affidavit, particularly given the evidence of the police, which in many ways corroborates the evidence of the mother, and the evidence of the medical centre, which does likewise.  It is clear that the abuse to which the mother has been subjected has not only impacted upon her physically, but has also had a significant impact on her mental health. 

4. The police records, which I have read carefully, show that the father does not believe the laws of this country apply to him.  An example may well be his driver’s licence.  He does not own one, but that does not stop him from driving.  The report is littered with examples of him being charged with driving unlicensed, driving whilst disqualified, on at least four or five occasions with the latter, and driving whilst suspended.  It does not seem to bother him at all that he has an obligation to drive properly and lawfully.  Probably more worrying are the number of family violence orders and police family violence orders.  They range from 2011 to 2012, 2013, 2014, 2015 and 2016.  Again I do not intend to go through each and every one of them, but there have been significant number of orders made and significant breaches of those orders. 

5. If I had been asked to exercise accrued jurisdiction I may well have done so in this matter, if I had the jurisdiction.  I have not turned my mind fully to it at this stage.  I may have made a family violence order for a far longer period of time than is normally the case in the Magistrates Court, for given the evidence of the mother, supported by the police and medical evidence, both the mother and the child are at serious risk of harm from the father and from his family.  The notes that he left on her car are in their own ways quite chilling.  They send the message of threat and also the message that he knows where the mother lives and has her under some observation.  This must impact profoundly on her ability to deal with day-to-day life and her ability to parent and properly parent the child. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

2. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

5. In Maldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

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

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

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

   (b)       the nature of the relationship of the child with:

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

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

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

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

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

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

   (i)       either of his or her parents; or

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

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

   (f)       the capacity of:

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

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

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

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

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. The factors which the Court must consider in assessing risk and the factors which may impact upon or ameliorate the risk were set out by the Full Court in Blinko & Blinko [2015] FamCAFC 146 where at paragraphs 82 and 83 they said:-

   82.His Honour then went on to refer to an earlier unreported decision of the Full Court in Russell & Close (Unreported Full Court, 25 June 1993) and the recent decision of the Full Court in Slater & Light (2013) 48 Fam LR 573.

   83.It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:

   ·   If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;

   ·   If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;

   ·   Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623

1. Those are the principals to which I will apply in relation to the assessment of the facts in this case. 

SECTION 60CC FACTORS

1. The task of this Court is to consider the facts in the light of the relevant factors of s 60CC of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

1. The evidence before me is that the mother has a strong relationship with the child and that she has been the child’s primary care-giver.  It is clear the father wants a relationship with the child, but he has no skills with which to properly engage in that relationship.  He seems to treat it as a possession rather than as a responsibility and in many ways treats it as a manner in which he can gain access to the mother and continue his abuse of her.  I do not accept that the father has no interest in developing a meaningful relationship with the child, but I find that any relationship that he forms with the child is not likely to be in any positive way, given the way that he has behaved. 

Section 60CC(2)(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. This is as difficult an example of family violence as this Court is likely to see.  It is family violence that has continued in the face of orders that it stop.  It is family violence by a man who does not regard himself bound by the normal rules of society.  The violence, both physical and emotional, against both the mother and the child are clearly set out in the affidavit.

2. I have not repeated all of that history of abuse, but a cameo of it was contained in paragraphs 54 to 56 of the mother’s affidavit,[1] when she says this:-

   54.    I also observed [the father] to be cruel to animals on a number of occasions, particularly to his pet bull dog.  I can recall contacting the RSPCA because [the father] was refusing to feed his dog at all, and wouldn’t let me do it.

   55.    There was also occasion in which [the father] would take his anger out on the dog by kicking it and hitting it. 

   56     During our relationship, I also had a pet dog, who appeared to be very frightened of [the father], particularly when he assaulted me.  On each occasion that [the father] assaulted me, my dog appeared to lose control of its bladder and would urinate everywhere.

   [1] Filed 15 November 2016.

3. That is the extent of the violence that was existing in this household, and more, dare I add. 

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. The child is too young for his views to hold any significant weight. 

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);

1. The child has a good relationship with his mother and with the broader family.  The evidence is that the child sees the maternal family on a regular basis.  He attends childcare and spends time at his maternal grandparents’ home. 

2. He does not have a relationship with the father, nor the father’s family.  Given some of the comments made by the father’s family in some of the emails, texts and statements, that is perhaps a good thing.  That seems to be a family who accept that violence against women and children is okay, and it is clearly not in the current age. 

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 major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

1. The father has shown an interest in the child, but not in a positive way, to which I have alluded earlier.  It has been the mother who has been responsible for the care of the child. 

2. There are some issues in relation to the mother’s drinking, which came out in the police report.  It may be that this has eased over the last few years.  Given that this child has only one functional parent, it is perhaps time for this 24 year old to reflect carefully upon how she parents the child, because she is, in effect, the only show in town for that child. 

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

1. The mother has been solely responsible for the financial upkeep of the child.  There have been times when money has been taken from her by the father for his own purposes and, therefore, putting his needs ahead of the child’s.  The maternal grandparents have assisted the mother financially from time to time.

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 or her parents; or

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

1. The mother has sensibly ceased all communication between the child and the father and, given the circumstances set out in her affidavit, the father’s family. 

2. Any change enabling the child to spend time with the father would have the capacity to undermine the mother’s ability to parent this child and would put both the mother and the child at serious risk of harm, abuse, and may leave the child subject to neglect. 

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;

1. This is not a relevant consideration as both parents are living in Hobart.  Given the history of violence and the history of abuse, it is likely for her own protection that the mother will need to move elsewhere so that she does not bump into the father.  I have considered that in terms of this determination.

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);

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

1. The mother has met the needs of the child since his birth.  She is struggling with but managing her mental health issues and has continuing support from medical health professionals.  The father has no demonstrated ability to meet the needs of this child either physically or emotional.  In fact, quite the contrary.

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. The mother correctly asserts that the father is violent, abuses alcohol and drugs and has a number of criminal convictions in this area.  I accept that to be the case.  Police evidence shows that he has been violent to the mother and violent to others.  

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)   the likely impact any proposed parenting order under this Part will have on that right;

1. That is not a relevant consideration.

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

1. The mother says, and I accept, she takes her responsibility to the child seriously.  His safety and welfare are her priority.  I am aware that she is currently seeking protective orders, and it is hoped that the order will be more than merely a year or two.  It seems to me that, given the history of this matter, there needs to be an order in place for many years, rather than a single year.

2. The mother may criticise herself for staying in that relationship for so long.  Family violence is a terrible thing.  When young people get involved in relationships they dream and believe they can bring about change.  They believe in love and all of that attached to it.  I do not criticise the mother for remaining in the relationship, because that is the nature of young people in relationships.  Getting out of violent relationships is sometimes much easier said from outside than done from the inside. 

Section 60CC(3)(j) any family violence involving the child or a member of the child's family;

1. I, again, reiterate the paragraphs 6 to 11, 15 to 27, 30 to 38, 40 to 50, 53 to 62, 64 to 65, and 77 to 91 of the mother’s affidavit,[2] the police evidence and, of course, the medical evidence. 

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:

[2] Filed 15 November 2016.

(i)     the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)         any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)    any other relevant matter;

1. There have been at least four family violence orders which have been varied from time to time, and there have been numerous breaches of those orders.

2. There have been assaults on the mother, which, on one occasion, led the father to be imprisoned for a period of time.  It is, and must be, terrifying for the mother that, when the previous family violence order expired, the father began taunting her by text messages.  As recently as 7 November, the father assaulted the mother in awful circumstances, which are set out in her affidavit and the police report. 

Section 60CC(3) (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. I intend, given the circumstances, to make the protective order that the mother seeks.  I also intend to give the mother sole parental responsibility, which will mean that she can move anywhere in Australia where she chooses to move without seeking the consent of the father. 

2. Part of the order I will make will also make provision for the mother to holiday overseas, not that that is a matter on her horizon at the moment.  However, it may be that this child, in years to come, as a member of a football team or a badminton team or something like that is going to New Zealand.  The effect of the law would be that the mother would have to find the father and seek his consent to the travel overseas. 

3. Given the history of this man and given the history of violence, I intend to extend the power of parental responsibility to enable the mother to solely and alone make that choice, and not be left in the invidious circumstances where she needs to contact this man some time again in the future.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

1. I have considered all of the evidence before me, including the mother’s evidence of the stalking, and her evidence of the violence.  I accept that the mother is rightly fearful that the father will find out where the child attends school and take him, or use the child to get at the mother and cause injury, harm, to her or the child or, dare I say it, both. 

2. The mother says that she lives in rented accommodation.  She is receiving child benefit payments from Centrelink and receives an exemption from the child support agency, which, in all of the circumstances, is appropriate.  The child attends day care three days a week, and the child will attend the local primary school.

3. In summary, therefore, this is a matter where there could not be any consideration of equal shared parental responsibility under s 61D of the Act, nor should there be any several parental responsibility under section 61C. There ought to be a sole and exclusive parental responsibility order for the mother to the broader extent that I discussed earlier in these reasons.

4. The child should continue to live with the mother.  Given all of the matters to which I have alluded to earlier, there ought to be no order that the father spend any time with the child or communicate with the child.  In fact, there ought to be a positive order that that does not occur. 

5. In terms of the injunction, given the history of this matter, is entirely appropriate that the injunction be made substantially in the form sought by the mother.  I am satisfied in all the circumstances that I should make those orders.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 December 2016.

Associate: 

Date:  9 February 2017