Hambleton & Pryce
[2021] FedCFamC2F 127
•6 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hambleton & Pryce [2021] FedCFamC2F 127
File number(s): DGC 3769 of 2018 Judgment of: JUDGE BURCHARDT Date of judgment: 6 October 2021 Catchwords: FAMILY LAW – Parenting dispute over best interests of 11 and 4 year old children – both parents having significant past use of drugs and alcohol – mother leaving elder child in primary care of father from 2014 to 2016/2017 – father violently assaulting mother in January 2017 in presence of the child – father incarcerated for 10 months for the assault – father not having seen elder child since 2017 and never seeing 4 year old at all – father’s extensive criminal history – father wholly lacking insight and blaming others for his misconduct – father assessed by FNSA as high risk – elder child adamantly opposed to seeing father – father expressing no interest at all in seeing younger child – orders made as sought by Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode & Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 108 Date of last submission/s: 19 August 2021 Date of hearing: 19 August 2021 Place: Melbourne Counsel for the Applicant: Mr Horsfall Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr Korke Solicitor for the Respondent: V M Family Lawyers Counsel for the Independent Children's Lawyer: Ms Brennan Solicitor for the Independent Children's Lawyer: White Cleland Lawyers ORDERS
DGC 3769 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAMBLETON
Applicant
AND: MS PRYCE
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born 2010 and Y born 2017 (“the children”).
2.The children live with the mother.
3.The father spend no time with the children.
4.The mother is authorised and permitted to apply for and receive an Australian passport for the children X born 2010 and Y born 2017 without first obtaining the written consent of the other parent.
5.The children X born 2010 and Y born 2017 be permitted to depart the Commonwealth of Australia.
6.The father be restrained from:
(a)Contacting the children’s school or obtaining information from the children’s school about the children;
(b)Going to, or remaining within, 200 metres of the children’s schools;
(c)Going to, or remaining within 200 metres of children’s/ the mother’s residence or workplace;
7.The mother be permitted to provide a copy of these orders to any government or non-government agency in relation to any matters concerning:
(a)Parental responsibility;
(b)Care of the children or either of them;
(c)Applying for and obtaining passports for the children or either of them;
(d)The children travelling outside the Commonwealth of Australia.
8.The mother be restrained by injunction from knowingly exposing the children to any motorcycle organisation members or taking them to any premises operated by same.
9.The Independent Children’s Lawyer is hereby discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Hambleton & Pryce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the interests of two young children: X, born 2010, and Y, born 2017. The applicant father does not seek any orders
at all in respect of Y, a matter to which it will be necessary to return. He seeks, in effect, that there be orders for therapeutic counselling to enable him to re-establish a relationship with X, whom he has not seen since 2017. The mother, whose position is fully supported
by the Independent Children’s Lawyer, seeks that there be orders for the father to spend
no time whatever with the child and certain ancillary orders designed to assist X
and the mother with the difficulties that they confront. For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer and the mother.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1966. He had a troubled childhood. From disclosures made to various persons during the preparation of these proceedings, it is apparent that the father’s parents separated when he was quite young, and it appears that his mother may have placed him into a children’s home also at a tender age. He has had three relationships that have produced children. His first child Ms A was born in 1989, but he has not seen her since she was 10. He then had six children with Ms B between 1991 and 2000. Tragically, from something the father said during his evidence, it appears that one of the six sons has killed one of the other sons this year.
The father has an extensive criminal history going back to a young age, but continuing up until very recently. It will be necessary to deal with it in greater detail.
The mother was born in 1981. She and the father met at a Motorcycle Gang headquarters. There is a degree of dispute as to the extent to which the mother was involved with the Motorcycle Gang. Having met and commenced their relationship in 2003, the parents were together until December 2014. X, as earlier indicated, was born 2010. In December 2014, albeit that the reasons for it are disputed, the mother left the relationship and left X with the father. X remained in the father’s primary care until 2017, when the parties finally separated, having reconciled (at least to an extent) in 2016.
Following an incident in January 2017, the nature of which itself is disputed, the father was arrested and jailed for a period of time. He has not seen X since. The mother was pregnant with Y at the time that the father was removed. Y, as indicated, was born 2017. The father has never seen Y, given that he was arrested 2017.
THE PARTIES’ AFFIDAVITS
The parties have filed a number of affidavits and I have, of course, read them and have regard to them. It should be noted that in his originating application filed 8 November 2018, the father sought an order for joint parental responsibility and a final order that X live with him, albeit that the interim orders sought that she live with the mother. The father deposed
to the relationship and the fact that he had not seen X for four years. He deposed to having met the mother through the Motorcycle Gang and deposed that the mother was using ice. He also accused her of very heavy misuse of alcohol. He deposed to the mother leaving him from time to time to return to her alleged boyfriend, the president of the Motorcycle Gang branch and assaults by that boyfriend upon the mother.
The mother’s first affidavit, filed 7 May 2019, relevantly deposed to the father keeping X from her between December 2014 and January 2016, when they recommenced cohabitation. She also deposed in considerable detail about the incident in 2017, when she was seven months pregnant with Y. She and the children left and were placed
by the Department of Health and Human Services (DHHS) in a refuge. She deposed
to the father threatening her with a knife and cutting her dress and assaulting her with a metal baton. She deposed to incidents of violence committed by the father going back to 2006.
At paragraph 46 she deposed about the alleged assault on her by her other boyfriend
in September 2015:
I say that the incident during which I as assaulted occurred in September 2015 when I tried to step in between a person who was arguing with a friend of mine at my friend’s house. The person pushed me roughly and I fell over. I landed on my lower back and suffered two fractured vertebrae. This person was not my boyfriend.
She denied going out with the president of the Motorcycle Gang and said that she met the father through a mutual friend at the club but that the mutual friend was not a member.
It should be noted that the matter has been very substantially delayed in coming to trial
by the conduct of the father, who has on occasions not attended and otherwise not cooperated with orders designed to progress the matter. He filed an affidavit, in effect, apologising
on 22 July 2020, and indicating that he wished to proceed.
The mother’s trial affidavit, filed 10 June 2021, is largely a repeat of her earlier one. It traverses the numerous and gross insults she alleges the father used against her. Inter alia, she deposed that the father had failed to enrol with the contact centre that was ordered on 11 June 2019. I note that at paragraph 63 she denied associating with gang members, but “I say I did attend the club but did not associate with them often after meeting the father. Since September 2015, I have had no association with any members of the club”.
The father’s trial affidavit, filed 13 August 2021, once again adds little. He blames allegedly incompetent prior lawyers for many of his difficulties of compliance. I note that he also expressly asserts that he wishes to re-establish his relationship with X before making any endeavours to get to know Y.
A number of independent reports have been obtained in this matter and it is appropriate to traverse them at this point.
THE REPORT OF MS C
Ms C prepared a neuropsychology assessment report in respect of the father which is annexed to her affidavit. She noted that the father had been diagnosed in 2019 with an acquired brain injury. This arose from an incident in 2018 when a truck hit him, or more accurately hit a truck in which he was driving. He was obviously very severely injured (page 5 of 20).
The report also noted a further injury in July 2019 when a vehicle in which Mr Hambleton was a passenger hit a tree (page 6 of 20). The report also noted that Mr Hambleton said he had never touched drugs although his referral listed a history of illicit substance abuse (page 7 of 20) and noted that the father currently consumes six to eight bottles of beer, only on Tuesdays (page 8 of 20).
The father reported X as being perfect and never crying (page 9 of 20). The report noted:
When asked how Mr Hambleton thinks X would feel about seeing him, considering that she has not seen him for the past 4 years, Mr Hambleton stated the following:
•"She will be happy as Larry".
The report went on to note several other comments and then continued, “It was noted at this point of the conversation, Mr Hambleton abruptly stated that when he saw Ms Pryce hitting X in the shower, he had said to Ms Pryce, "don't you ever freaking do that again. You look out".
At page 11 of 20 and next to the heading Judgment and Insight, the report noted:
Insight and judgement were observed to be poor. He tended to attribute all blame to others and none to himself. He reported that his previous offences of assault were a consequence of being young, and other individuals picking on him, and him standing up for himself. Strikingly, he denied that he was a perpetrator of domestic violence, and denied threatening to harm Ms Pryce, however, in the same session, he stated that he had said to Ms Pryce, "don't you ever freaking do that again. You look out".
Under the heading Putting Children’s Needs First (page 14 of 20) the report noted:
While Mr Hambleton reported love for X, his insight into past and current circumstances involving X were observed to be lacking. He reported that X was a "perfect child" and "never cried" (an unlikely scenario). He was unable to weigh up the possibility that X may present with different feelings and reaction (e.g., feeling unsure) on seeing him after no contact for 4 years. He simply stated that she would be "happy as Larry" to see him, and that she would not be affected by "the lies they've fed her". He denied that X witnessed any violence at home, although a subpoena inspection (dated 29/08/2019) indicated that X told police that she witnessed her father threaten her mother with a knife and cutting the mother t-shirt, and that he subsequently went to prison.
In the current assessment, Mr Hambleton reported that he consented to the current assessment because he knew it was a condition that he had to fulfil to gain access to X. While he turned up for the assessment, he exercised poor judgement with failing to engage.
Mr Hambleton's poor insight and judgement means that he is unable to put X's needs first.
On the same page, 15 of 20, the report went on to say:
Throughout the current session, Mr Hambleton did not acknowledge any previous wrongdoing. He denied any previous assaults that were his fault, and attributed blame to others. He denied being the perpetrator of domestic violence, and denied threatening to harm Ms Pryce. Notably, however, within the same session, he stated that he had said to Ms Pryce, "don't you ever freaking do that again. You look out", when he said he saw Ms Pryce hitting X in the shower. He did not demonstrate insight that the statement he made to Ms Pryce would be considered a threat.
Mr Hambleton reported that he was unsure why there was a delay in his court case, and that court has been adjourned multiple times. According to the referrer, court has been adjourned multiple times because Mr Hambleton has not been attending court ordered appointments. While he attended the current neuropsychological assessment, he did not engage, and articulated that the session was a waste of time and money.
While Mr Hambleton's suboptimal effort means that we do not currently have a clear picture regarding his general cognitive function, in my opinion, his poor insight and judgement, inability to acknowledge any culpability, and current disengagement with support services presents as a significant challenge to parent in a 'good enough' manner long term.
THE REPORTS OF DR D – THE MOTHER
Dr D’s report annexed to her affidavit affirmed 17 January 2020 followed an assessment (as court ordered) on 2 October 2019. I note that at paragraph 9 the mother reported that her relationship with the father was from 2004 to 17 January 2017 (though they separated temporarily at the end of 2014 and reconciled at the start of 2016).
At paragraph 22 the mother denied allegations of ice and alcohol abuse, but said that she drank a lot at the beginning of the relationship but had reduced when she had children and now rarely drinks at all. At paragraph 23 the report noted:
Ms Pryce acknowledged meeting Mr Hambleton at the Motorcycle Gang clubhouse through a friend and attending the clubhouse thereafter. However, she reported that she has not associated with members of the club since September 2015 following an incident in which she intervened in an argument at a friends’ house, and was pushed, seriously injured and hospitalised with a broken back.
The Family’s Strengths and Needs Assessment tool (FSNA) was applied and the mother was assessed as low-risk. Relevantly at paragraph 33 (page 16 of 21) the report noted:
Ms Pryce does not present with a psychiatric disorder or personality difficulties. She exhibits symptoms of trauma including elevated fear and hypervigilance though her distress is proportionate to the level of risk Mr Hambleton likely poses, based on his criminal history.
The report went on to recommend that the mother engage with a clinician with expertise
in the domain of family violence and cognitive behavioural therapy to support her to discontinue her pattern of violent relationships, and that she remain engaged with the family violence support service for a year at minimum, with attention to risk management and safety planning.
DR D’S REPORT ON THE FATHER
The report followed an assessment on 23 February 2021, and noted the father’s psychosocial history. At paragraph at 9 it was noted “He said there is “not much positive” to say about his mother as she did not like him and relinquished care of him at the age of eight or nine years, sending him to a children’s home”.
The report noted, at page 16, the birth of Ms A on 8 September 1989, who lived with the father in the father’s care until she was nine years old but was then returned to her mother.
He has not seen her since she was 10 years old.
At paragraph 22 the report noted:
Mr Hambleton has an extensive criminal history spanning at least 4 decades including being convicted of multiple counts of assault, stalking, threats to kill, property damage, theft, possession of an unregistered firearm, IVO breaches, and the cultivation of cannabis. He has been repeatedly jailed for his offences, including juvenile detention and three times during his relationship with Ms Pryce. He has been the respondent in IVOs dating back to the early 1990s. He admitted that he had “bashed a few people” over the years.
The paragraph noted at paragraph 26:
Mr Hambleton tends to externalise blame, and is of the belief that a police officer, Constable E, is out to get him and responsible for the charges, extending his time in prison, and the IVO that followed.
That IVO is a reference to the preceding paragraph in which Dr D traversed the incident on 18 January 2017, noting that the father disputed the mother’s version of the events and, in fact, exculpated himself completely.
The report noted a report from the Department of Health and Human Services dated 6 June 2019 to which I will return.
The FNSA was applied to the father and the summary at paragraph 36 (page 20 of 28) reads:
Based on the balance of strengths and needs on the FSNA, the likelihood that Mr Hambleton’s child(ren) will be exposed to neglect or abuse in his care was rated as high. Parenting needs on the FSNA include: the problematic relationship with Ms Pryce and other family members, limited social support, alcohol misuse, lack of engagement with professional services unless required, hostile communication/interpersonal skills, current living arrangements, and his own experience of living in out of home care as a child.
In the section of the report expressing conclusions at paragraph 45 and following, the report noted:
45Despite a significant history of antisocial behaviour, and admitting to“[bashing] a few people” over the years and engaging in problematic drinking during the relationship and throughout the pandemic, he tended to minimise, deny, and externalise blame for much of his problematic behaviour.
46Mr Hambleton has been diagnosed with major neurocognitive disorder and deficits in memory functioning associated with a brain injury. He presented with memory issues at interview, poor insight into his difficulties, disorganised thinking, heightened impulsivity, and deficits in executive functioning. He struggles to self-regulate his emotions, maintain focus, and organise himself.
47Mr Hambleton presents with antisocial personality disorder driven by experiences of disrupted attachment, neglect, and rejection by his mother who relinquished care of him as a child and placement in out of home care, and exposure to violence, criminal behaviour, and substance use by his brother. He presents with a pervasive pattern of disregard for and violation of the rights of other, with symptoms that include breaking the law, high levels of impulsivity, irritability, aggression, physical assaults, consistent irresponsibility, and lack of remorse.
48Despite these difficulties, Mr Hambleton demonstrates loyalty and devotion to his daughter as he promised he would fight for her and is doing so. Mr Hambleton claims they shared a close bond and that he was her primary carer. This assessment is limited as X did not participate, but X indicated to Child Protection on 29 May 2019, that she loved her father and wanted to spend time with him (despite not seeing him for almost 2 years); this is not consistent with the suggestion that she is significantly traumatised or fearful of her father.
40Based on the balance of strengths and needs on the FSNA, the likelihood that Ms Pryce’s daughter would be exposed to neglect or abuse in his care was rated as high. The level of risk would likely decrease if he reduced his alcohol use and engages in treatment and support as recommended.
The report went on to note that if time was to recommence with X, it should be professionally supervised with an observation report before unsupervised time was considered. A number of ancillary recommendations were made.
DHHS REPORT DATED 6 JUNE 2019
As with all these reports, I have, of course, regard to the entirety of the materials, but would note the following. On the second page of the report it is noted:
Child Protection met with Ms Pryce on the 17/05/2019, Ms Pryce was open and cooperative engaging with protective worker. Ms Pryce made admissions to having historical associations with the Motorcycle Club and engaging in substance abuse in the past. Ms Pryce has advised that she no longer associates with this group and has been successful in remaining abstinent from using substances. X attends school and no concerns have been raised regarding her presentation or attendance to school.
On the third page the report asserted:
On the 29/05/2019. protective worker attended the family home. No concerns were raised regard the home environment, which appeared to be an appropriate environment for both children to flourish in. In conversation with X, she made explicit disclosures regarding seen Mr Hambleton become violent towards Ms Pryce. X advised that the last time she had seen Mr Hambleton was when he was being taken in a police car. X could not articulate anything nice about Mr Hambleton apart from the fact that she still loves him. X advised that when she saw Mr Hambleton become aggressive towards Ms Pryce this made her scared. X did advise that she would like to see Mr Hambleton on the weekends. Y is at an age where he is not able to articulate his views and wishes appropriately to protective worker. Y is developing as expected and presents with a happy demeanour in Ms Pryce’s care.
THE SECTION 11F REPORT OF MS F
Ms F conducted interviews on 26 May 2021. The report noted the DHHS report to which I have referred. It noted the mother’s account of the relationship and the father’s denials of all matters put against him. At paragraphs 13 to 14 the report noted:
Mr Hambleton considered himself to have been the primary and protective parent in X’s life prior to his incarceration. He recounted positive times they spent together and it was clear he missed X.
Mr Hambleton presented at interview as solely focused on X and his need to have contact with her. Mr Hambleton stated he didn’t “give a rats ass about” Y. He indicated he seeks to, confirm paternity, noting that should he be the biological father, he would “sort that out later”.
The report noted the mother’s concern for her safety and her vigilance about the father attending court (paragraph 23). At paragraphs 24-25 the report noted:
Mr Hambleton engaged in a high level of verbal denigration towards Ms Pryce during the interview, was of the opinion X would share his views which indicates a lack of capacity to engage in future respectful co-parenting.
It is noted Mr Hambleton was resistant to engaging in the interview and argumentative and defensive when the writer attempted to clarify his demographical information and proposal relating to the issues in dispute.
In dealing with the children at paragraph 26 and following the report noted:
26.X (11 years old) was interviewed in person and was worried from the outset about safety for both herself and her mother. She appeared more settled and confident after she was reassured there would be no contact with her father on this day.
27.X presented with no obvious or reported developmental challenges or delays and engaged well in the conversation despite being worried at first. She reported being in Grade 5 and loving school. Her favourite subject is writing, has just celebrated her eleventh birthday and is looking forward to her planned party. X appeared positive about her home life and relationships with her mother and younger brother.
28.X requested the term "that person" to be used when speaking about her father as she does not like the descriptor of 'dad'. It was observed she had a negative physical response to this word as her body recoiled and had an anguished expression.
29.X recounted being exposed to a family violence incident in 2017, for which Ms Pryce was threatened with a knife by Mr Hambleton and was subsequently incarcerated for.
30.X was considered but definitive in her responses about spending time with her father. She stated she would neither like to see or spend time with her father. When asked about anything which could occur to increase her comfort with this, she identified "him being nice for a change".
31.Y (4 years old) was not interviewed due to his age however was present for the assessment. He presented with a high energy and gave the writer a hug when greeted for the first time. He has a slight but observable speech delay for which is was reported by Ms Pryce, he is receiving appropriate specialised support via NDIS. Y has not spent any time with Mr Hambleton.
The report noted that X was worried and concerned about time with her father (paragraph 32) and her lack of talk therapy concerning her prior experiences (paragraph 33). The report noted X’s concern about her mother’s wellbeing and safety and future happiness, and noted that this could also indicate that X had been exposed to content beyond her years (paragraph 35).
Under heading Future Directions, the report stated at paragraphs 38 and following:
38.The viability of shared responsibility appears tenuous and would require further exploration from the Court given the inability for constructive communication between the parties.
39.The children will benefit from remaining living with Ms Pryce.
40.The children's spend time with Mr Hambleton be reserved pending his successful completion of a Mens Behaviour Change program, with positive report being provided by the convenors as to his participation and identified treatment target gains.
41.For X to engage in reportable therapeutic intervention with a view of any supervised spend time be contingent to assessment and advice from the aforementioned therapist.
42.If spend time was to be ordered then it is recommended Mr Hambleton's time be professionally supervised and occur in a Contact Centre.
Other ancillary orders were recommended if time were to progress.
THE EVIDENCE GIVEN AND THE SUBMISSIONS MADE AT COURT
What follows is taken from my notes.
THE OPENING AND EVIDENCE OF THE FATHER
Counsel indicated that the father seeks to follow the recommendations of the section 11F report. X should have therapeutic counselling. Counsel traversed the history of the father’s criminal records and use of drugs. There was an interim intervention order in favour of the mother for three years, but the child was not named. The father denies family violence. The father was seeking therapeutic counselling and was seeking interim orders. He seeks to re-establish his contact with X.
Counsel conceded the father had a lengthy criminal history and referred to the incident on 18 January 2017 and the fact that an intervention order without admissions was made thereafter. There was no violence to the daughter. He had been the primary carer for the first few years. In 2019, X had indicated she loved her father and wanted time with him.
He had not seen the child since and the mother was influencing her. There were also problems of safety in the mother’s care. The father had to change solicitors twice and had had difficulties with Victorian Legal Aid. He had acquired brain injuries and cirrhosis.
The father was called and adopted his affidavits as true and correct.
Under cross-examination by Counsel for the mother the father said if he was in Queensland he would be working. He does not have a driving licence but is entitled to apply. He had been hit by a semi-trailer in 2018. He was working as a labourer. He has been driving since and has not lost his licence. He conceded that there was another incident in 2019 when a friend was driving him. They slipped off the road as a result of black ice and hit a tree. X is 11 and Y is four. The father has no application about Y at the moment. In the four years of his life, he has not seen the boy. He needs a relationship with his girl before he sees the boy. He has never met Y.
X has looked after Y several times. He conceded he was arrested in January 2017. This was the last time he saw X. He recalled the section 11F interviews but said there were some words he had not said. He agreed he was focused solely about X but denied saying he did not give a rat’s arse about Y. He wanted to check Y’s paternity. The test took a long time. He did everything he had to do. He had told Ms F he would sort that out later about Y and that he was only concerned about X.
He says he was not the one who lied about the threat to kill. He said “what I have gone through”. He had lost a son this year. It has been four years. The mother had given him the wrong birthday for his ninth child.
When Counsel traversed the mother’s allegations about the incident in January 2017, being the knife to the throat, the cutting of her top and the assault with a baton, the father said these were all untrue. He did not hold a knife to her throat. He did not cut her throat. When it was put that X had reported seeing this the father said this was four months later, but four days afterwards she had given a different report. That was to the effect that Daddy didn’t do anything. His solicitor had not been able to obtain a copy of this report. He was put in prison for 10 months. Constable E had put down that he was at court, but he was not. He did not consent to the intervention order. When it was put to him that he did not think much of the mother the father equivocated. It was put that he had called her a “bikie slut” and a “moll”. He said he had called her a “bikie moll”. She said she was a bikie moll when he asked her to marry him. She is a chronic alcoholic and compulsive liar.
It was put that Child Protection had expressed no concerns about X with the mother.
The father said it was the same when she was with him. He accepts that X has no developmental delays or school difficulties. He said she was probably a good mum on what you know. The mum smacked her. He had said to her, “if you ever do that again you’re out”.
Counsel traversed the report of Ms C. The father said he acquired his brain injury when
he was driving a truck. When asked why he apportioned blame to the mother, he said, “She had changed my life and X’s”. There were false accusations and a threat to kill. He had had a motorbike accident 10 years before. He had been charged with cultivation of drugs.
He wanted to get the mother off alcohol. This was mainly for his boys. Their mother was getting them on ice, which was Ms B. One child had killed another of his children this year. He never touched drugs.
It was put that he had a problem with alcohol. He said that when the mother left in 2014,
he completely stopped. There were problems with drinking before that. The mother went back off to the bikies. They were drinking a slab a day between them. He was drinking too much in 2019 and 2020, but stopped drinking at the start of this year. He has six to eight stubbies and cans on Tuesdays. He was not sure then that Y was his son because the mother was seeing someone else. He has said his life would start when he gets X back. He does not see anybody. He is waiting till he gets her back.
Counsel cross-examined about other assaults. He said there were problems with his neighbours. His neighbours had taken an intervention order against him. There were lots
of problems with neighbours at another place and they got an intervention order. The other neighbours threatened him. All they did was drink. One of them, named Ms G, has
a sister who is Constable E. The father said the mother took off in August 2014 to the bikie club. Counsel put it that between December 2014 and 2016, he had controlled the amount of time that the mother had with X. He said he took her five times, even though X did not want to go. The mother had not wanted to see X and did not come to his house. He denied all the incidents of assaults from 2006 onwards at paragraph 35 of the mother’s affidavit. Inter alia, he said the mother was unfaithful every year. Every September she went to an motorcycle gang meeting. He denied smashing her phones. His answers, it should be noted, were critical of the mother at every turn.
It was put that he had called the mother a “slut” in July to August 2015, but he denied this. He had been there a couple of times and seen the Harleys, but never went back. He was cross-examined about whether the mother had keys to the family home. His answers were non-responsive and self-serving. He said she had keys but said he never locked the door except at night. The keys were behind the door. He denied calling the mother a “fucking slag” and “slut” in front of X.
When cross-examined about Dr D’s report, the father denied to Dr D that Ms B’s brother put him in jail for 18 months. He wants X to be given a voice. He does not believe X does not want to see him. He said the section 11F report writer is a liar. When it was put that X had told the Independent Children’s Lawyer she does not want to see him, the father did not directly respond. He repeated his complaints about the section 11F writer. Counsel tendered as exhibit R1 the police LEAP material. When asked what would occur if X did not want to go to the counselling he was seeking, the father said, “Well, she either does or she does not. The mother is putting things in her head.” They had a good relationship before this happened.
THE FATHER UNDER CROSS-EXAMINATION BY THE COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER
The father confirmed he has been living in Town H. He first went there in the 1990s.
It is a caravan on a property owned by his mother, who is 84 and going well. She lives
in Suburb I. For the last couple of years he has not spent much time with her. He last saw her on Mother’s Day in 2020. He saw her three times in 2020 with the boys. He still speaks with Mr J and had a good meeting after an incident in January, because they got away from their mother. There is Mr K 26, Mr J 23, Mr L in between is nearly 25. They told him they were taking ice with their mother. Mr K had taken to heroin because he has ADHD and is prescribed Ritalin. He grew marijuana for his children in 2016. Their mother took off. Mr J and Mr M came to live with him in about 2008 or about 2009 or 2010. He will get better accommodation. He has not been working for some time. He would move away from Suburb N.
He was on some sort of government payment. He was most reluctant to say how much, but indicated following a direction from the Court that he receives $600 per fortnight. He has not inquired about rental assistance and has been in the caravan for about a year. He was in Suburb O before that. He always has to come back there, because that is where the dogs are. He lived in Suburb O on and off until the end of 2019 and moved to the caravan at the start of 2020. In 2017, he was living in a house in Town H. This started in 2010, when X was born and continued to 2017. When asked if he had totally ceased alcohol, the father indicated that he had. Sometimes he drinks on Tuesdays, but he drinks less alcohol chills.
He has six or seven of them. He had had cirrhosis with a bit of damage, but it does not go away. He had hepatitis in 2014. In 2020, he drank heavily. Too much. He drank every day, not just beer. Spirits, way, way too much. He stopped at the start of this year, at Christmas.
He was cross-examined about his affidavit at paragraph 27. He was hopeful that a professional would talk to X. He considered that it could cost a bit of money. It could run into hundreds of dollars per visit, but he will pay for it. He has other money and had sold his Vehicle. Once again, he was reluctant to reveal the amount, but eventually indicated he received just over $50,000. He gave some to his solicitor and a friend of his holds over half of it. He does not have a licence. He had done the necessary scans as preconditions to getting one. He can go for his licence and is in the process of doing it. He is now at the top of the list at Family Life. He is prepared to undertake a Men’s Behaviour Change Program if it helped him to see X. When asked if such a course would have any benefit for him, he was not sure if it was the same as mediation. They could not take him. He had told them he would not lie.
Counsel cross-examined about his criminal record. He conceded there were a couple of violence offences. When Counsel put it to him that he had a very extensive history, he responded, “Thank you very much.” The last one was at Town P in the early 2000s. Counsel put it that he had been charged in 2016 with recklessly causing serious injury in 2015, with unlawful assault. He said that 2016 was the time the mother came over. A man tried to smash him through the screen and he got out. A threat to kill in 2011 was the neighbour’s fault. A neighbour put a bin through his windscreen and that got him a little upset. He would undertake a Men’s Behaviour Course if they wanted him to do one. When asked why he had not done one before now, he said he would like to see X. If that is what they want to do.
In respect to the 2017 charges, he denied the threat to kill or assault the mother.
It was adjourned numerous times. The Judge found him guilty and gave him time served.
He still owes the sheriff money. There is an extant CCO. He had a criminal firm representing him. He had yelled a bit in court. There is one pending charge about the dog. He also has
a driving charge for driving unlicenced and also wilful damage charges. These once again emanate from the sister of the policewoman. He had kicked a car. This was a while ago.
It could be 2020, about a year ago.
Counsel put it to the father the fact that X had told the section 11F report she had seen the events in 2017 and asked him how he accounted for this. The father said you needed to listen to the first statement four days later, but he did not have it. Counsel put it to him that his was not in the subpoenaed documents. The father repeated his query as to what happened to the statement four days later. The father said X was happy to see him 2019 but four years
is a long time. He confirmed that he wants to see Y after therapy with X.
Counsel traversed paragraph 12 of the section 11F report, in which the father had asserted X was exposed to unsuitable parenting by the mother. When it was put that he had no positive view of the mother’s parenting X he said, “This is your opinion”. At the time he knew her it was correct. He had heard things. She was not a suitable parent. People have told him to see the mother on computer sites. Things are said there are not good. When asked who this was he said there were a couple of people and his sons.
There was no re-examination. The father did tender as exhibit A1 the material from the Department of Health and Human Services.
THE EVIDENCE OF THE MOTHER
Counsel called his client, and the mother was sworn and adopted her affidavits as true and correct. Under cross-examination by Counsel for the father, the mother confirmed that the relationship started in 2003 when she was 23. Her daughter was born in 2010. It was put that she left in August 2014. The mother said this was incorrect. She had been to Town Q but returned. She agreed that X stayed with the father following separation in 2014 until she was four. She agreed that the father had a significant role as primary carer during this time.
Counsel cross-examined about the alleged assault by an Motorcycle gang member in 2015.
The mother said she intervened in an argument and had two crushed vertebrae. She denied that this involved the president of the motorcycle gang. It was put that the DHHS report suggested she had been assaulted by a group member, but she said that this person was not a drug user. She was not assaulted. It was a push that went wrong. It was a push out of the way. She did not go to the Motorcycle Gang much. This argument was not at the Motorcycle Gang. It involved members of the Motorcycle Gang. There was an argument with the woman she was staying with.
The mother said she moved back in 2016. In 2017 the father was jailed for eight months.
This was the last time he saw the child. Counsel asked if the Department said the child wanted to see the father, why she had not done this. She said she was not in the room. She said this was the first she had heard of it. When asked she said she spoke to X about her father
in 2019. She does not speak badly of him in front of her. She tells X it is up to her and she says no. She does not tell the child that the father was critically injured. She would tell her if he died. When asked what positive traits the father had, the mother said before he drank and took drugs he was okay. She left because of his drinking. After X she did not get as wrecked as before. Before that they were both pretty bad. X was in a nursery but was not in an ICU after birth.
Counsel cross-examined about the threats to kill in 2017. The mother said she gave evidence by video. The police did most of the talking. When asked about the three year intervention order she said the first 12 months was all of them. The current one until 2023 is just her.
He has not tried to contact X. Counsel cross-examined about the allegations of violence in the mother’s affidavit at paragraph 35, her answers were just as nonresponsive as those
of the father. In respect of an instance in July 2015, the mother provided a lengthy explanation, including the father calling her a slut. When it was put that she had used ice and drank
to excess she said she had never used ice and never will. She drank too much, but not to excess.
When it was put to her that she had been convicted of cultivation of cannabis, the mother did not respond directly. She then said she had never grown drugs on her own. She denied
a conviction in 2007 arising out of an instance at the Town P Pub. She was asked about and challenged with a conviction in 2016 for cultivating cannabis. She said this was the one with the father. She confirmed that she had registered with Family relationship centre R as ordered in 2019.
THE MOTHER UNDER CROSS-EXAMINATION BY COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER
The mother conceded she had drunk to excess before X was born. When asked about what had happened since X she said she drank a bit but was never intoxicated. X and Y are close. When asked what Y knew about his father she said, “Nothing.
He is still quite young and does not understand. He goes to day-care. He is doing well”.
He was entered into the NDIS nine months ago and is going very well and is now near on path. The mother denied influencing X. She said she believed everything was X’s choice. Counsel cross-examined about paragraph 34 of the section 11F report in which it was reported that X was cognisant of the perceived safety risk her father posed and had clear recollections of the family violence support, residing in a refuge as well as changing schools.
It was difficult to follow the mother’s answer. She said X queried when this happened. She seemed to say that X had seen enough (an answer I may have noted incorrectly).
She said they do discuss everything. She had told X she was going to court. She told her her dad wants to see her and tells her it’s up to her. When it was put that it was possible the child picks up on the mother’s distress about the father, the mother said this was possible. Counsel pressed that it was likely, and the mother said yes. X has witnessed a lot too.
The mother has not engaged much with family violence agencies. She has not engaged with a psychologist to reduce her symptoms. She has not been in a relationship since the father. She was prepared to undertake cognitive therapy for 12 months. There was no re-examination.
FINAL SUBMISSIONS BY COUNSEL FOR THE MOTHER
Counsel submitted the father has a significant criminal history. He blames others. His history goes back to the 1980s and the Children’s Court. Charges are still in progress. The father denies the instance in 2017 and all the others. Counsel referred to the departmental report and the police material. The father seeks therapeutic counselling and that recommendations be followed. Counsel submitted it was not acceptable for the therapist to be making orders for spending time. The father’s orders are not consistent with the section 11F report. The father has been rejected from the Men’s Behaviour Change Program. Counsel traversed the difficulties of supervised time in a contact centre. Counsel submitted the mother made appropriate concessions and that her evidence should be preferred to that of the father. Dr D had said the mother has no psychiatric issues but has experienced trauma and assessed her
as a low risk. The father had been assessed as high risk. Ms C had said the father had poor judgment. He had poor insight and judgment and an inability to acknowledge culpability.
The father had accused the section 11F writer of lying. He accused Constable E of being out to get him. The father had admitted providing cannabis to his children. Even though they were teenagers at the time this was highly inappropriate.
Counsel noted that sole parental responsibility was conceded. It was submitted in respect
of the primary considerations that the benefit of a relationship with the father did not outweigh the risk that the father presented. X does not want a relationship and had also witnessed a lot. The DHHS report was simply an anomaly. Y has no relationship with the father and X has spent no time with the father since January 2017. Counsel pointed to the father’s failure to comply with earlier orders and his failure to take a paternity test until 2021.
The father has paid no child support since separation. There would be a risk to the mother’s safety if X spends time with the father. The father has no capacity to provide for her needs. The father’s attitude to parenting is unusual. He has no interest in Y. The father’s attitude makes his wellbeing dependent upon his relationship with the child. He calls the mother a bikie moll. The intervention order had the mother and child at first. The extension to 2023 is only for the mother, but X is living with the mother and the father does not know where she lives.
Counsel indicated the mother seeks passport orders and that there be no time with the father, no contact with the school or workplace, and noted that the father was seeking that the mother be restrained from interacting with motorcycle gangs.
THE FINAL SUBMISSIONS OF COUNSEL FOR THE FATHER
Counsel clarified that the father had intended to follow the recommendations of the section 11F report. X is obviously very troubled about the father. Counsel indicated that it was not sought that the therapist make orders for time, but that therapy take place. The Independent Children’s Lawyer should recommend the therapist. The father has funds available to pay. Counsel queried whether there should be interim orders. In dealing with the father’s criminal record, Counsel submitted there had been no violent behaviour towards the child except the incident in 2017 which was denied. The mother’s evidence had not disclosed, as the DHHS report indicated, her contact with bikie Motorcycle Gang. There were queries about the mother’s drinking. There was a query why the mother had not taken any steps to secure therapeutic support for the child or herself. The risk of family violence was minimal. The father just seeks an opportunity to see the child. He is prepared to see the child at a contact centre.
Counsel submitted the father had been the primary carer for some time.
FINAL SUBMISSIONS BY COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER
Counsel noted that the father sought interim orders. He issued his proceeding in 2018 and had been non-compliant with orders whereas the mother had been. A paternity test had taken a long time. Counsel submitted that the proceedings need to end, particularly for the mother
as a parent to young children. The difficulty with the father’s proposal is what the section 11F report recommended. The counsellor saw therapeutic intervention as being necessary to assess if supervised time was appropriate for one child, not two. The time the father spends is a matter for the Court. The father would only be entitled to strictly supervised time, with compliance by the father, for example, in such matters as a Men’s Behaviour Change Course. There cannot be long-term supervision.
The father has been assessed as high risk by Dr D. Dr D’s report was not challenged. Dr D said if there was time it should be supervised but there should be conditions including the Men’s Behaviour Change Course and the other matters that were recommended. The father clearly did not see the need for a Men’s Behaviour Change Course. The potential is that there will be no change with the father. There was an incident in the car park in 2020 which led to criminal damage, wilful damage and assault. He is also presently charged with driving without a licence. There are problems with his driving because of his injuries anyway.
Counsel referred to Ms C’s report at page 11 as to the effects of the brain injury on parenting ability. A caravan is not enough in any event.
Counsel referred in more detail to the report of Ms C and noted the remarks about the father’s poor insight. The reports of Dr D and Ms C suggest it is possible there should not even be supervised time. There is no likelihood of moving beyond even that. The father will not access the supports he needs. Final orders should be made. There is no proposal about Y from the father. Counsel pointed to section 60CC(2A) and the weight to be given to the risks. Counsel submitted there should be no orders for time. Counsel supported an order restraining the mother in respect of motorcycle gangs. She supported an order that the mother engage in family violence counselling recommended by Dr D. Counsel did not oppose the passport orders the mother seeks.
In further final submission Counsel for the father pointed out that the non-compliance alleged against the father arose out of the failures of his solicitors and not himself.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
Everyone agrees that it is appropriate that there be an order for sole parental responsibility to the mother. Important as this matter is, it can be dealt with shortly. The presumption
as to equal shared parental responsibility is plainly rebutted by the family violence that has taken place in this case (a matter to which I shall return) and in the circumstances of the matter more generally, it is plainly completely contraindicated. The parties’ agreement should be given effect and there will be an order for sole parental responsibility to the mother.
SPEND TIME AND LIVE WITH ISSUES – THE PRIMARY CONSIDERATIONS
Whether it is in X’s and Y’s best interests to have a meaningful relationship with their father is a matter more properly addressed in my view by a detailed consideration
of the additional considerations pursuant to section 60CC(3). But what can be said, however, in outline is that the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence should be given greater weight pursuant to section 60CC(2A) of the Family Law Act 1975 (Cth). Once again it is more appropriate to work through this aspect of the matter pursuant to section 60CC(3).
Additional Considerations of Section 60CC(3)(a)
X has expressed clear views about what she wants. She does not want to see the father at all. That is a view expressed independently as reported by Ms F who was not required for cross-examination. It is clear that in 2019 X did have at least some residual desire to see her father and affection for him, although it should be noted that she was unable to say why or to express that view in any detail whatever. Given that she was in the father’s primary care from 2014 and 2016 at least, this is perhaps unsurprising. I have not thus far referred to the photographs annexed to the father’s material which show the father and X in what was obviously a very affectionate relationship. Nonetheless, X’s present views are clearly expressed.
Y has, of course, expressed no views whatever. Given that he does not apparently even know he has a father, this is in no way surprising, and given his age he would not be expected to express considered views in any event.
Section 60CC(3)(b)
Plainly, both these children have a close and bonded relationship with their mother.
She has been the sole carer of the children since 2017 and, indeed, the only carer that Y has ever had. I note that the mother herself conceded that some of X’s anxiety about her father was likely to have come from her own responses, a concession which in my view does her credit.
Y has no relationship with his father self-evidently. X’s relationship with her father, while historically close, is now not so. She has, after all, not seen him or over four and half years.
Section 60CC(3)(c)
The mother does not have anything like a perfect record in respect of her history of spending time with X. The fact is that she left the father in December 2014 (whoever’s version of the events is correct) and spent only sporadic time with X until 2016. I found her evidence about this aspect of the matter unconvincing. She was more absorbed plainly with her then affair with an Motorcycle Gang member. I observed in passing during the currency of the proceeding that I found the mother’s evidence about her Motorcycle Gang involvement unpersuasive. It is clear from the departmental report in June 2019 that she was involved with the club far more than she is now prepared to admit.
Nonetheless, and despite this deficiency, the mother has been the primary carer since 2017. She has, as it were, sworn off the Motorcycle Gang since the assault in 2015, has reduced her drinking and been a thoroughly appropriate parent ever since. The Department has no concerns about the children in her care.
The father’s attitude towards his children in this regard is completely unsatisfactory. I accept, of course, that his incarceration brought his relationship with X to an abrupt temporary end. The fact is, however, that when he emerged from jail he had not at that time suffered the terrible misfortune of acquiring the brain injury that he did while working. He did not file his application until November 2018. His participation in this proceeding as been patchy throughout. His endeavours to blame his former solicitors are unpersuasive. Nonetheless,
as the section 11F report noted, the father undoubtedly does love X and wishes to see her.
What is really incomprehensible is his attitude towards Y. Accepting that he had doubts as to paternity, these have long been resolved. He simply does not wish to see him at the present time at all. While I understand and accept that he simply wishes to, as he puts it, sort out his relationship with X first, this failure to embrace his son in any way speaks volumes about his insight and his attitude as a parent.
Section 60CC(3)(ca)
The mother has done her best to fulfil her obligations to maintain the children. The father has not paid any money whatever by way of child support or in any other way assisted the mother since separation. Nothing more needs to be said.
Section 60CC(3)(d)
The change in circumstances that the father seeks to bring about is that X should be engaged in therapeutic counselling with a view to recommencing his relationship with her. X is keenly conscious that her father wants to see her. She does not want to see him. When interviewed by Ms F she recoiled at the mention of his name. It is immediately apparent that any endeavour to compel X to embark upon a course that she was aware was likely to bring her into contact with her father would be extremely troubling for her. The father’s proposal does not envisage, at least for the foreseeable future, any change in Y’s circumstances at all.
Section 60CC(3)(e)
There will be considerable practical difficulties in any steps taken towards reintroduction
of the father to X. The practical difficulties are that X does not want to see him or have anything to do with him at all. It would appear that the father is in sufficient funds to overcome any cost difficulties associated with the course he seeks to put in place. There is, of course, the further practical difficulty that anything that reintroduces the child to the father runs the practical difficulty that it may disclose the mother’s whereabouts to him.
This is plainly something that the mother views with considerable fear. The mother is likely, as a matter of practical politics, to respond very anxiously to any such endeavours to reintroduce the father, and it is plain from the mother’s own evidence that this will then be likely to affect X’s wellbeing.
Section 60CC(3)(f)
The mother is not an optimal parent. Her endeavours to explain away her prior drug use and her completely unbelievable assertion that she has never used ice are very unimpressive. It should be noted that she disclosed to the Department in 2019 her prior substance abuse. It may be the case that she abused other substances than ice, but one area of the father’s evidence that has some measure of conviction to it was his descriptor of ice, and I accept it. However, to her credit, the wife has weaned herself off illicit drugs, and I accept that she has reduced her alcohol usage to an acceptable level. She is plainly a competent mother doing her best in what must be difficult circumstances. She is, after all, not greatly economically advantaged and does not have the advantage of a partner.
The father’s capacity to provide for the children’s needs is incredibly compromised.
Nothing needs to be said about Y, given the position he has adopted. Insofar as X is concerned, the reports of the independent professionals could scarcely be clearer. The report of Ms C in particular is quite damning about the father’s shortcomings. In saying this, however, it should be clearly remembered that the father’s lack of insight and lack of judgment are not perhaps matters to be thrown in his teeth so much as criticisms. These inadequacies looked at in the context of his most unfortunate life generally are at least in part matters for sympathy rather than criticism. Nonetheless, the fact is that he simply does not have the insight to be likely to be able properly to provide for his children’s needs, including their emotional needs. He has too many deficits of his own.
Section 60CC(3)(g)
Perhaps enough has been indicated already about the father’s background. He has a long history of significant criminal activity going back decades. He is entirely in the business of blaming others for his own misconduct. He does not accept any responsibility for his past conduct really at all. His lifestyle is still compromised in the sense that he is not working, he does not have a driving licence and faces criminal charges relating to that, and lives
in a caravan. He himself acknowledges that that is not an appropriate place for X to stay. His circumstances and lifestyle have a long history of antisocial and antiauthority behaviour which in my view is most unlikely to change.
The mother’s prior lifestyle history bears criticism. Despite her denials it is obvious that she was heavily involved with the Motorcycle Gang. She had a relationship with somebody who was part of that gang. Her endeavours to explain away her serious injury in 2015 were specious and unbelievable. Consorting with people as violent as that lays you open to the risk of injury. Her abandonment of X with her father to pursue that lifestyle speaks for itself. I repeat however that she has got her life together since then. She deserves considerable credit for doing so.
Section 60CC(3)(h)
This is irrelevant
Section 60CC(3)(i)
The mother’s attitude towards the children and the responsibilities of parenthood is entirely unremarkable. She is a good mother I repeat doing the best she can. The father’s attitude towards X is problematic. Counsel was correct to describe it as one in which he sees his wellbeing as dependent upon what in effect is the curative effects of his relationship with the child. I have no doubt that he loves her. The photographs of her with him (and his insistence of showing large numbers of them to others) shows this clearly. Nonetheless there is a very possessory quality to it and a needy quality to it. His attitude towards X is compromised. His attitude towards Y is incomprehensible.
Section 60CC(3)(j)
This brings us to the single most hotly disputed evidentiary issue in the case. It is perhaps appropriate to say a few short words at this point (it could have been done earlier) about the credit of both of the primary witnesses.
I have already referred at times to the certain unsatisfactory aspects of parties’ evidence. The father was often non-responsive and gave self-serving answers. A number of questions which he obviously felt were antithetical to him he simply failed to answer directly at all.
He certainly explained away every assault that was put to him. He was understandably a poor historian given his acquired brain injury and other accidents, but with the exception of the evidence about the mother’s historical ice use, I found him generally unpersuasive. It should be noted that his answers were generally inconsistent with the objective records, such as the police records.
The mother was just as non-responsive as the father, as I have earlier indicated. She did, however, make concessions on occasion, when they were there to be made, and to the extent that it is necessary to do so, I would say that I generally prefer her evidence to that of the father.
One area about which I have no doubt is the incident in 2017. Having heard the evidence
of the parties and bearing in mind the objective materials, it is quite clear that the father threatened the mother with a knife to the throat, cut her T-shirt and hit her with a baton.
He had much to say about an alleged disclosure four days later made by X which was exculpatory of him. He said his criminal lawyers could not get this material from the police. This is inherently unbelievable. The police and prosecution would have been required to disclose it as part of their standard duties. If I understood him correctly, he was represented in the criminal proceeding by the firm of S Lawyers. Whether I caught this allusion correctly or not, however, there is no doubt that there simply was no such prior document.
It has not been produced in the subpoenaed material. It never existed. The father did all the things the mother said to her on that occasion.
Whether he committed all the other assaults alleged by the mother is ultimately neither here nor there. I strongly suspect that he did. I have no doubt he swore at her in the most disgraceful and egregious terms. His denial of calling her a “bikie slut moll” when he admitted calling her a “bikie moll” is typical of his tendency to deflect. He undoubtedly used such language
to the mother and on numerous occasions. There has been horrendous family violence in this case on any view of the matter.
Section 60CC(3)(k)
There is a three-year intervention order out, which expires next year, against the father.
There have been prior intervention orders, which included the children. These intervention orders are, of course, relevant, given the circumstances in which they came to pass. They are a matter the Court needs to bear in mind.
Section 60CC(3)(l)
I completely disagree with the father’s position that there should be interim orders made.
This matter has been in the Court for almost three years and needs to come to an end.
The mother needs to be alleviated from the ongoing threat of further contact of any sort with the father. The notion that there should be therapeutic counselling to ensure time with the father starts (which I think in the ultimate was the position adopted by the father) is, in my view, completely contraindicated. X was sufficiently concerned about her father not even to want to use the word “Dad”. The father would have it that this has been a view inculcated by the mother. This is typical of his tendency to blame others for his own misfortunes.
One of the very real and, in my view, insuperable difficulties with the course of action the father seeks is his attitude towards his past. He will not ever be accepted into a Men’s Behaviour Change Course because he will not ever accept that he has done anything wrong. His tendency to blame everyone else for the things that he himself has done means that therapeutic counselling for him is never really likely to work. He is sufficiently lacking in judgment to think that if the child X is reintroduced to him she will be happy as Larry, when she is expressing the entirely opposite opinion. Counsel for the Independent Children’s Lawyer is correct to submit that the father will not change. Even if there is supervised time for a period of time, it will never progress because the father will simply not be able to accommodate the sort of changes that all the relevant professionals have recommended as preconditions to any consideration of any kind of meaningful time regime.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION
On any view of the matter, this is a very sad case. X previously had a close and warm relationship with her father. It came to an end because the father assaulted her mother and in her presence, something she still remembers. The father fails through his lack of insight and the nature of his personality to accept any responsibility for this dreadful incident.
He has not seen his child for four years. She does not want to see him and is scared of doing so. The effects on the mother of any endeavour to have X spend time with him are self-evident. Taking all the above considerations in the round, it is immediately and absolutely apparent that the only order the Court can make in the children’s best interests is that there
be no time spent with the father. The Court does not make such orders with a happy heart.
It is a terribly sad set of circumstances. In the end, however, the Court is required, pursuant to section 65AA of the Act, to have the children’s best interests as the paramount consideration. There will be orders as sought by the Independent Children’s Lawyer and the mother.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 6 October 2021
0