Harry and Barndon

[2013] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRY & BARNDON [2013] FCCA 1616

Catchwords:
FAMILY LAW – Application by adult brother to spend time with eight year old sibling – time essentially agreed – real dispute between fathers of the siblings – long-term significant inter-personal history – objections to applicant’s father spending time with sibling – objections largely misconceived but held with tenacity amounting to mania. 

Legislation:  
Family Law Act 1975 (Cth), ss.60B, 60B(2)(e), 60CC, 61DA, 64B(2), 65AA, 65C, 65DAB

Applicant: MR HARRY

Former Applicant: MR PRENTISS

Respondent: MR BARNDON

File Number: MLC 4062 of 2012

Judgment of: Judge Burchardt

Hearing dates: 6 & 7 August 2013

Date of Last Submission: 7 August 2013

Delivered at: Melbourne

Delivered on: 21 October 2013

REPRESENTATION

Counsel for the Applicant: Ms McCauley

Solicitors for the Applicant: Campbell McAuley

The Respondent: In Person

ORDERS

1. That Mr Barndon have sole parental responsibility for the child X (“the child”) born (omitted) 2005. 

2. The child live with Mr Barndon. 

3. The child spend time and communicate with his brother, Mr Harry:

   (a)Each third Sunday of each month for a period of 6 hours between the hours of 11:00 am and 5:00 pm. 

   (b)From July 2014, overnight contact begins with X spending time with his brother Mr Harry each month on the 3^rd weekend of that month between 5:00 pm Saturday and 5:00 pm Sunday. 

   (c)From 11:00 am until 5:00 pm each Christmas Eve. 

   (d)On Mr Harry’s birthday, in substitution for the time otherwise spent that month. 

4. The above is subject to the following:

   (i)That Mr Harry has appropriate accommodation and a separate bedroom;

   (ii)That Mr Barndon informs Mr Harry of what (if any) condition/s X may have and any special requirements that he may need to take into account before X commences his overnight stay with his brother. 

   (iii)That from time to time Mr Harry may contact Mr Barndon (preferably with sufficient time beforehand, and request that X spend time with him to attend special events (if X does not have any pre-arranged commitments). 

   (iv)The child not be brought into contact with Mr Prentiss. 

   (v)That changeovers take place at (omitted) Station. 

   (vi)Any other arrangements and/or variations on the above as otherwise agreed between the parties. 

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4062 of 2012

MR HARRY

Applicant

And

MR PRENTISS

Former Applicant

And

MR BARNDON

Respondent

REASONS FOR JUDGMENT

Introductory

1. Superficially, this case is all about how much time X, born (omitted) 2005, should spend with his half-brother Mr Harry born (omitted) 1994.  In fact, almost all the matters of disagreement about that issue have resolved. 

2. The real issue is the fight between X’s father, Mr Barndon, and Mr Prentiss, the former legal guardian of Mr Harry. 

3. For reasons to which I shall come, that are in the main utterly misconceived, Mr Barndon wishes to prevent Mr Prentiss from coming into any contact whatever with X.  The bitter dispute between Mr Barndon and Mr Prentiss has been on-going for many years and both of them see this proceeding, entirely inappropriately, as a means to pursue their struggle.  

4. Although as I hope I will make clear, I think that Mr Barndon’s criticisms of Mr Prentiss are ridiculously exaggerated, I have formed the view that it is in the best interests of X that he not be brought into contact with Mr Prentiss.  

The affidavit material

1. It should be noted that the parties filed little by way of affidavit material.  The last affidavit filed in the proceedings was in August 2012, almost a year before trial.  Mr Barndon was self-represented throughout so his failure to address the matter is, perhaps, understandable.  Mr Prentiss has been legally represented at each step of the way and it is regrettable that his solicitor did not take standard steps to put material on affidavit. 

2. Because of the unusual nature of the dispute and the forensically inadequate way in which it was ventilated before the Court, it will be necessary to deal in some detail with the affidavit and oral evidence. 

3. The Initiating Application was filed on 9 May 2012 by Mr Prentiss as at that time Mr Harry had not turned 18 years old.  It sought in essence that X spend time with his half-brother, Mr Harry, and that X’s name be changed to X. 

4. The Affidavit filed in Support by Mr Prentiss deposed that he was the legal guardian of Mr Harry by virtue of a consent order of this Court.  Mr Prentiss deposed to Mr Harry’s date of birth, the fact that he has been looked after by Mr Prentiss since he was a baby and that he had been at (omitted) School since Year 7. 

5. The Affidavit gives details of the children’s mother and a further sibling, Y, born (omitted) 2002.  Y’s father is a man called Mr R.  The Affidavit asserts arrangements allegedly in place in respect of Y (as with many other matters in this case the picture is by no means wholly clear) and deposes to the fact that Mr Barndon had refused to allow X to spend any time with his siblings or mother since November 2010.  Mr Prentiss went on to assert that Mr Harry wanted to resume regular contact with X and gave an outline of some of the mother’s difficulties from time to time. 

6. Mr Barndon's Response filed 4 June 2012 simply sought that the child’s name stay as Barndon and that the application be dismissed. 

7. His Affidavit in Support filed on 4 June 2012 is illustrative and informative. 

8. Mr Barndon deposed that X’s surname is Barndon pursuant to a final order handed down by Federal Magistrate Whelan (as her Honour then was) on 16 May 2011.  From the Annexure filed, it is clear that that is so although it is also clear that the mother did not appear. 

9. I should interpolate and say that no application was made to revisit her Honour’s order, notwithstanding the application for a change of name in the Initiating Application.  Given that not one word was said about the change of name by either counsel for the applicant or anybody on his behalf, I have not dealt at all with the question as to whether X’s surname should or should not be changed. 

10. What is really noteworthy about Mr Barndon’s affidavit is the overt hostility to Mr Prentiss.  The “RESPONSE TO THE APPLICANT’S AFFIDAVIT” takes up most of page 2 of the Affidavit.  The whole of page 3 is taken up with material about Mr Prentiss under the heading “MR PRENTISS”.  Relevantly, the Affidavit asserts:

    “12.  The applicant is very irrational, obsessive, violent and extremely unbalanced.  He has been the subject of Intervention Orders in relation to stalking and has been found guilty of intentionally causing injury.  I seek leave to subpoena the Department of Human Services and Victoria Police to establish these facts. 

    13.  The Applicant has previously been the subject of a Court Order that he never be left alone in the presence of my son X. ….

    14.  The applicant was in a sexual relationship with the mother of Mr Harry (and X and Y) around the time of Mr Harry’s birth.  The Applicant has never acknowledged this sexual relationship and has lied to cover it up.  Annexed hereto and marked with the letter “F” is a true copy of a Family Report compiled on 24/10/2005 by clinical psychologist Mr P (sic) in which the Applicant categorically denies ever having a sexual relationship with Mr Harry’s mother.

    15.  Annexed hereto and marked with the letter “G” is a true copy of a 10/4/2007 Psychiatric Assessment by Consultant Psychiatrist Dr E of Mr Harry’s mother Ms Z in which she (the mother) outlines the sexual nature of the relationship with the Applicant.

    16.  It is my understanding that the applicant is obsessed with the mother (Ms Z) of Mr Harry and has sought to control her and punish her for ending their sexual relationship.  Annexed hereto and marked with the letter “H” is a true copy of a letter from Mr R (Y’s father) to the mother dated 12^TH May 2005 in which he outlines how he believes the Applicant has sought to control Ms Z.  The authenticity of this letter cannot be disputed.  It is referred to by Mr P (sic) and the author (Mr R) in annexure “F”.

    17.  I believe that the applicant seeks to use my son X as a bargaining chip in his long running obsession to control and insert himself into the life of the mother Ms Z.”

11. I would interpolate at this point and say that Mr Barndon’s publication of the family report, which obviously was created in other proceedings between Mr Barndon and X’s mother, is clearly improper and inappropriate.  Nonetheless, I will return to that report because in some ways it gives some valuable insights into the parties.  It should be noted, however, that in doing so one is throwing the hearsay rule about as far away as it could be thrown.  One needs to approach all matters asserted as fact in Mr P’s report with caution. 

12. Mr Prentiss filed a further Affidavit sworn 12 June 2012.  While it takes issue with a number of the assertions made by Mr Barndon's Affidavit, it is not necessary in the circumstances to traverse it in any detail. 

13. Mr Harry filed an Affidavit on 8 August 2012 by which time, of course, he had turned 18 and been substituted as the applicant in the case.  That Affidavit essentially gives details of the time he had been spending with X pursuant to interim orders made by the Court and the fact that his sister Y was also involved and enjoyed it.  Once again, it is not necessary to traverse the matters set out in detail.  Mr Harry gives details of his family, the fact that Mr Prentiss has looked after him since he was extremely young and that he was made guardian with his mother’s consent in October 2000.  It is, perhaps, sufficient for these purposes to note that Mr Harry's Affidavit is to a considerable extent about his own mother’s relationship with X and the difficulties allegedly created in that regard by Mr Barndon.  Nonetheless, it must be noted that Mr Harry deposes to perfectly sensible desires, particularly given the fractured nature of his own and X’s upbringing, for them to maintain their sibling relationship together with their sister. 

14. Mr Barndon filed a responding Affidavit on 14 August 2012.  It is not necessary to traverse its contents as it adds, in my view, nothing to the dispute.  

The evidence given in Court

Mr S

1. At the request of the applicant, the Family Report writer, Mr S, was called for cross-examination.  It turned out that virtually no questions were put to him.  In response to a question from counsel for the applicant, Mr S confirmed that he regarded Mr Prentiss’ involvement with X as being essentially a side issue.  Mr Barndon put no questions at all to him. 

Mr Harry

1. Following a brief opening by counsel, the applicant was called to give evidence.  He is at (omitted) studying (omitted) and does voluntary work each week with (omitted).  He said there was no contact with X before his application was made to the Court and that he believed that X and he should spend time together and also with his family more generally.  He confirmed that he was seeking time every third weekend (in the ultimate this was clarified as 6 hours). 

2. He said that he meets X at (omitted) Station and gave details of the sort of things they do which, in my view, are unremarkable.  He said that (omitted) Station would be a better point of changeover for him because it is closer to some of the places they like to go and easier for him to access from where he lives.  Given that he says he lives in a flat in (omitted) this may make some sense, although I note his address, and that of Mr Prentiss, are given in their affidavits as (omitted) in Melbourne.  Their life seems to be somewhat peripatetic as apparently they may be moving again in the near future. 

3. Mr Harry gave evidence of the sort of activities he undertakes with X and noted that 6 hours would be better for doing things with his two siblings or even with X alone.  He said he had to get a taxi if they were going anywhere outside the city and that he spent, approximately, $80 to $100 on each visit and sometimes more.  He confirmed that Y has only missed three visits. 

4. Mr Harry said he wanted Mr Prentiss to do the driving if they were not in the city.  He confirmed that he had his learners permit and hopes to get a driving licence in about February 2014. 

5. Mr Harry confirmed that he wants X to come and spend overnights with him, starting from his birthday on (omitted) 2014, from 5:00 pm until the next day at 5:00 pm.  He said this would be better for him to connect with X. 

6. He confirms that he lives in a flat in (omitted) in which he, Mr Prentiss, and a school friend of Mr Harry’s lives.  Mr Prentiss leaves the flat when X visits. 

7. Mr Harry said that Mr Prentiss is his father and it would help if he was able to be present and could be present on visits for birthdays and Christmas. 

8. Under cross-examination by Mr Barndon, Mr Harry confirmed that contact was going well and that timing had all been impeccable and that there were no difficulties with Y attending also. 

Mr Prentiss

1. Mr Prentiss was next called.  He confirmed that to all effects and purposes he funds the applicant.  As it would seem with all the primary players in Ms Z’s life, much remains unclear about Mr Prentiss.  I note that he described himself as a (occupation omitted) and (occupation omitted).  He has clearly spent time working overseas in the past.  I mention these not as being sinister attributes but as part of the large amount of matters that the Court has not been informed about regarding the circumstances and background of the two primary adult protagonists. 

2. In this regard I would note that Mr R, the father of Y, is described in the materials on at least one occasion as being a person running a (omitted) (this being how he met the mother when he engaged her as an employee).  Mr Barndon describes himself in his affidavit as a (occupation omitted), but I note in 2005 at least he was described as an (occupation omitted) making numerous visits to (country omitted). 

3. None of these assertions may be true, but as I say, this is to an extent a confusing case. 

4. Mr Prentiss confirmed that he leaves the house when X is present, pursuant to the extant order that he have no contact with him.  He said it would help if he could have some contact.  He collects Y and drives to (omitted) and returns five hours later and picks the children up.  He gave evidence, which I found compelling, that on one occasion the applicant lost his wallet and albeit that ultimately he found it, this was the sort of incident that would give rise to it being appropriate for him to be able to assist. 

5. He confirmed that he was not interested in being with X and Mr Harry the whole time or in mentoring their time together.  He said he just wanted to be a helpful relative for X. 

6. He confirmed that he might be moving house by next year to (omitted), although he did not intend X to visit there.  He said he would like to be present on birthdays and at Christmas. 

7. Mr Prentiss confirmed that he presently has his driving licence but he lost it previously in both 1998 and in 2005.  He confirmed that on at least one occasion this was for a .05 offence and driving while disqualified.  He said he regained his licence in 2008 without restrictions.  He presently has six demerit points from what are clearly minor offences. 

8. He gave what seemed to me to be somewhat self-serving evidence about his previous Court appointment as a supervisor of time for visits with the mother and at the point when he was originally made guardian of the applicant (which he puts as being in 1995, although there has been reference to what I think must have been Family Court orders in 2000). 

9. Mr Prentiss said that he did not know Mr Barndon well and only knew him when Mr Barndon was in a relationship with the mother. 

10. Under cross-examination by Mr Barndon, Mr Prentiss confirmed that there are two bedrooms and a mezzanine (where he sleeps) at the flat.  The applicant’s school friend, who lives with them, is likely to transfer to Sydney in the future. 

11. Mr Barndon was taken to paragraph 48 of an Affidavit he swore in 2005 in the proceedings between Mr Barndon and Ms Z.  He was keenly pressed as to the assertion in that Affidavit:

    “… I am not aware of any occasion in which Ms Z has placed any of her children in danger” (see exhibit R1). 

12. Mr Prentiss gave explanations for his answers which I found not entirely convincing but not of any great moment. 

13. Mr Prentiss was taken to page 12 of Mr S's Family Report dated 23 July 2013, which traverses his now historical depression. 

14. Mr Prentiss was ultimately recalled because it emerged that Mr Barndon, in fact, wanted to traverse Mr Prentiss’ criminal history. 

15. In response to a question based on an incident on 1 July 1995 of an alleged assault and an interrelated Intervention Order dated 10 July 1995, Mr Prentiss confirmed that he had been found guilty of intentionally causing injury.  It was his explanation that this arose in the course of an altercation with a former business partner (not the person assaulted who appears to have been his female partner). 

16. Mr Prentiss was also cross-examined about a proceeding on 22 May 2003 in Kyneton Magistrates Court where he pleaded guilty to obtaining property by deception.  Mr Prentiss says that this arose out of an incident in 2002 (if I understand the matter correctly) at which time he had been extremely depressed and had made a mess of an insurance claim.  He asserted that he was placed on a bond without conviction for 12 months and paid $1,500 into the Court fund. 

17. Mr Prentiss also conceded that he was convicted on 17 October 2006 of driving whilst disqualified which led to an Intensive Corrections Order. 

18. Mr Prentiss was adamant that the incident involving the charge of intentionally cause injury did not lead to a conviction but, rather, to a bond. 

Mr Barndon

1. Mr Barndon gave evidence-in-chief in which he simply adopted his Affidavits.  He had previously said in his opening that he was quite prepared for X to spend time with the applicant for 6 hours every third Sunday and that he was prepared for the changeover to take place at (omitted) Station.  He still desired a return from (omitted) Station because changeovers were generally conducted by train.  He said that the present arrangements were fine and that the start of overnight time should be deferred until X turned 10 years old. 

2. He asserted in his opening that Christmas was a very special time for his family at which they all gathered at his parents’ home.  He was prepared for X to spend time with Mr Harry on Mr Harry’s birthday provided that this was substituted for the otherwise usual day nearest to it. 

3. Under cross-examination by counsel for the applicant, Mr Barndon confirmed the time was going excellently and there were no problems with X.  He confirmed that overnight contact was alright in principle in the future subject to who was to be there.  In short, he did not want the premises to be overcrowded and, more particularly, he did not wish Mr Prentiss to be there.  He said that he believed Mr Prentiss was unbalanced and posed a risk because of the extent of his ill feeling towards Mr Barndon.  Mr Barndon said this might damage his relationship with the applicant. 

4. Although it emerged that Mr Barndon has not met Mr Prentiss at all frequently, he says his opinion about him was based on Mr Prentiss’ prior Affidavits and the subpoenaed documents.  He described “my observations of his flagrant willingness to lie under oath”. 

5. It emerged, in my view with complete clarity that these observations related to what Mr Prentiss had to say in the proceedings between Mr Barndon and Ms Z in 2005. 

1. In final submissions, Mr Barndon confirmed that he could be available for transport, were that necessary, and that in fact overnight time was fine to proceed as and from the applicant’s next birthday provided only that Mr Prentiss was not present.  It also turned out that he was amenable for the applicant and X to spend time together on Boxing Day or Christmas Eve provided that the Christmas lunch to which I have referred was left undisturbed.

The historical evidence

1. Since this case is in truth all about the baggage that Mr Barndon and Mr Prentiss bring to it, it is in these extraordinary circumstances appropriate to pay some regard both to Mr P’s earlier Family Report, which of course should not really have been before the Court, and exhibit R1 which is Mr Prentiss’ affidavit from 2005. 

2. Mr P’s detailed 15-page report sets out at length the tragic and very difficult history of the mother, Ms Z.  There are very substantial questions as to what her background and history truly is.  I note the following at page 5 of the report where Mr Barndon is described as saying:

   “… He denied categorically the allegations directed at him, that he is violent or abusive, and in this regard, claimed that both Ms Z, and Mr Prentiss for that matter, have lied in their affidavit material, and especially so about the alleged assault by him when he and Ms Z were in (omitted).  …”

3. At page 7, Mr Barndon said:

   “… Mr Barndon told me that Ms Z should be seeing X (X) on a regular basis, but he is concerned about the nature of the relationship between Ms Z and Mr Prentiss, a person whom Ms Z has described to him as controlling all aspects of her life, and who, because of the Family Court Orders in relation to Mr Harry,, (sic) manipulates her with threats that if she doesn’t behave in a manner deemed appropriate by Mr Prentiss, that her contact to Mr Harry will be reduced.

   The suggestion by Mr Barndon was that if Ms Z got the residence of their son, that effectively Mr Prentiss would control his contact.  He described Ms Z as completely dependant both on Mr Prentiss and Mr R, and that he is not prepared to compromise the safety or the welfare of his son because of this.”

4. I note that at page 11 of the report Mr P recorded in his interview with Mr Prentiss:

   “… He told me directly that he and Ms Z have only been friends, and have not had a sexual relationship.”

5. It is clear that that assertion was not true and that Mr Prentiss had at least a brief sexual relationship with Ms Z. 

6. At page 12 the following is recorded:

   “As was the case with Mr R, Mr Prentiss expressed great concern about her relationship with Mr Barndon, whom he describes as completely infatuated by her.  Mr Prentiss described Mr Barndon as very controlling and intrusive, and I note too that his concerns are elaborated upon in his affidavit material.  He too described Ms Z having been severely physically assaulted by Mr Barndon in (omitted), and his affidavit material goes into considerable detail about this event, including Ms Z’s decision to not attend the Intervention Order proceeding.”

7. The reason I have set these matters out at some length, and of course I have already dealt with some of the factual assertions related to it earlier on, is because what Mr P recorded is so redolent of the position that Mr Prentiss and Mr Barndon are still enmeshed in now some eight years later. 

8. Exhibit R1, which is an Affidavit of Mr Prentiss sworn on 30 August 2005, has an extensive history, by no means all of which is to do with Mr Barndon.  It is true, however, that at paragraphs 24 and following Mr Prentiss sets out in considerable detail his version of the alleged assaults in (omitted).  The thing to be noted, of course, is that at best the actual evidence of the assaults is all quite clearly hearsay.  It certainly seeks to paint Mr Barndon in a bad light, but when looked at in detail, much of what he had to say was simply pejorative as well as hearsay. 

9. It should be noted that from what Mr Barndon said and the way in which he said it, it is apparent that Mr Prentiss' Affidavit in 2005 (and if there are others, they would, no doubt, have been to the like effect, although no one has said there were any others) still strikes an exceptionally raw nerve in Mr Barndon even now.

The Family Report

1. The Family Report of Mr S was not the subject of any material challenge.  Mr S set out the positions of the parties (noting correctly that X’s surname is no longer in issue) and set out details of his interviews with the parties.  Mr S noted (page 7) Mr Barndon’s vague responses to the possibility that X was autistic.  I should interpolate and say that in Court I asked Mr Barndon about this since nobody else had raised it and with visible reluctance Mr Barndon provided a paediatric psychiatric report on X of which I read the three paragraphs of conclusions onto the Court record.  I otherwise returned the document to Mr Barndon who did not seek to tender it and from his demeanour would probably have resisted such tender to keep the information from Mr Prentiss.  It should be noted that X has certain autistic traits, but would not appear to be the subject of a formal diagnosis. 

2. I note that at page 7 of his report Mr S again reported the lack of willingness of Mr Barndon to elaborate on the reasons for his opposition to an increase of one hour and overnight time.  On page 8, at paragraph 10, Mr S recorded:

   “Mr Barndon was adamant that there should not be any form of contact between Mr Prentiss and his son at any time.  He stated that Mr Prentiss “is suicidal and on strong medication” and that “we are terrified of this man”.  Asked why he was “terrified” Mr Barndon stated as follows:  “His outwardly plausible demeanour and his very very ........ his willingness to lie under oath”.  Mr Barndon elaborated further that he believed that Mr Prentiss “is trying to use my son as a pawn to get in contact with Ms Z”.  Mr Barndon went on to state that he believed that Mr Prentiss was of a very unsavoury and malevolent character, as evidenced by his criminal history of traffic, assault and dishonesty offences.  Mr Barndon raised the issue of Mr Prentiss having apparently misled the past report writer (Mr P) around the nature of his relationship with Ms Z.  Mr Barndon challenges the integrity of Mr Prentiss and attests that he is a dishonest and manipulative person.  Asked for further details regarding his concerns, Mr Barndon stated that Mr Prentiss had “by his own hand (written) a very exhaustive letter” whereby he “threatens to kill himself and is on medication”.  Mr Barndon was once again noted to be somewhat guarded and circumspect regarding this issue and left the topic hanging, adding that he would flesh out his concerns in Court.  Mr Barndon pointed out that the issue of whether Mr Prentiss could or could not be involved in any way with X (be it assisting in the transport of X or otherwise) was not a formal application to the Court and as such was irrelevant.  Mr Barndon did not accept the argument that the current travel arrangements were too onerous and he felt that they did not detract appreciably from the time that X spent with his brother.”

3. It is not necessary to canvass the interview with the applicant as it was essentially to the effect of the evidence that I have summarised above. 

4. I note that at paragraph 17, page 11, Mr S has found:    

   “In summary, Mr Harry (sic) presented as a most reasonable and settled young man, who appeared to have perfectly sound and appropriate reasons and motives for wishing to continue spending time with his siblings.  Through his general conversation demeanour and general behaviour he displayed a level of maturity which appears to be greater than his chronological age.”

5. It is fair to say that Mr Prentiss was, so to speak, well reviewed by Mr S.  I note that Mr Prentiss recorded that he has a civil relationship with Ms Z (the applicant’s mother) and that he felt that his one-off sexual encounter with her was irrelevant and did not reflect on his character.  Mr S recorded at paragraphs 18 and 19:

   “18.  … In addition, Mr Prentiss believes that any past issues in his life are also irrelevant in that they do not directly reflect on his character or capacity to offer anything other than a safe and convenient capacity to aid the siblings spend time together.

   19.  Mr Prentiss appeared to be very frank and honest in addressing past issues that upon analysis, could be considered to be against his best interests, and might paint him in a negative light.  He stated that there were never any convictions of him regarding allegations of assault or obtaining property by deception.  He conceded that he had a number of driving offences, but this was quite a few years ago.  …”

6. I note that Mr Prentiss told Mr S that he had been seriously depressed about 10 or 11 years previously and that he had, indeed, been suicidal for a short period of time during this period of depression.  Mr Prentiss asserted that he was now emotionally healthy and presented no risk of danger to anyone. 

7. X was interviewed and displayed characteristics such that Mr S was concerned that he might be autistic.  I have already referred to the outcome in this regard above.  Nonetheless, it seems clear from the observations of the time that X spent with his two siblings:

   “there was no doubt that X welcomed the presence of his siblings and they in turn appeared to derive pleasure being with their younger brother (paragraph 24).”

8. Under the heading “EVALUATION” Mr S said at paragraph 26:

   “This matter comes before the Court with a lengthy and complex history involving multiple parents all enmeshed within a tangled and somewhat tragic framework of maternal unavailability as a result of Ms Z’s precarious mental health and her difficulties with drugs and alcohol as well as a variety of allegations made by all the parties to this dispute against each other.  The sibling relationship has suffered and support is needed to ensure that this enduring relationship is maintained and preserved.  Regretfully, two key players in all this, Mr Barndon and Mr Prentiss do not appear to be on a footing that could assist the process of aiding all 3 siblings to build and consolidate their relationship.”

9. Mr S noted that:

   “… The thinking and motives by Mr Harry appear sound and would appear to be in the best interests of all 3 children.  Given the quite traumatic past events involving the mother’s mental health and substance abuse, and the fragmented and difficult events that the children have encountered during the course of their mother’s life history, it is vital for all 3 children in this matter to have some semblance and sense of family and unity in their lives.  The current arrangements therefore are vital in establishing a sibling bond that will in some measure compensate for the schisms and difficulties of the past for all 3 children.”

10. Mr S went on to note that the claims for extra and overnight time by Mr Harry were quite reasonable and noted the fact that Mr Barndon had articulated no clear reasons for objection.  Mr S noted that some form of diagnosis of X was appropriate if only to ensure that the applicant would be sufficiently informed to deal with any matters that might arise. 

11. Mr S noted that Mr Prentiss’ involvement in transportation made common sense but noted the very strong objections of Mr Barndon. 

12. At paragraph 35 Mr S noted, in my view, entirely accurately:

    “The impressions gained by this writer (albeit brief) and from piecing together various sources of information from various documents read, the dynamics between Mr Barndon and Mr Prentiss appear to suggest that that (sic) these two men have many unresolved interpersonal issues related to their relationship with Ms Z and their respective perceptions of each other.  They are both involved in what would seem to amount to a “feud” (this writer’s quote) and seem bent on using this arena to assert their version of past issues and events to show the other in a negative light.  Some of the issues they raised may or may not have any particular significance to the issues before the Court at this point in time.  Mr Prentiss, on balance appeared to be a reasonable and forthright man.  There is nothing observed in his demeanour, behaviour or actions to suggest that he poses a direct threat to the welfare of X.”

13. Having noted that it would be of assistance to everybody if Mr Prentiss could facilitate contact arrangements, Mr S went on at paragraphs 36 and 37 to say:

    “However, the reality is that the current arrangements, whilst not perfect, are working.  In addition, the relationship between Mr Barndon and Mr Harry is also on a good footing.  Imposing through Court Order that Mr Prentiss is involved in transporting X, may cause a deterioration and/or stress and strain between Mr Barndon and Mr Harry.  Compromising what appears to be a cordial and workable relationship between the two primary figures in X’s life would have a detrimental effect on X and is to be avoided at all costs.  Alternatively, if Mr Barndon’s concern and allegations against Mr Prentiss are spurious and without foundation, and therefore Mr Barndon’s behaviours are controlling and lacking in child focus, then some consideration needs to be given to Mr Harry being supported in his efforts to maintain links with his siblings.  One practical way to support this is to have Mr Prentiss assist with the transport.  Such an endeavour is best implemented by agreement, rather than being Court imposed, however this requires some level of good will and compromise by Mr Barndon.

    37.  It is the strong view of this writer that the personal issues between Mr Barndon and Mr Prentiss do not warrant an airing in this forum as they most likely will not benefit the current proceedings, would have minimal (if no) real effect on the ultimate outcomes, and could compromise the future stability of the contact arrangements that appear to be working and ultimately resolvable.”

14. Mr S went on to make recommendations which in substance are not really in dispute.  I will return to them.

The legislative power to make the orders sought, as to the basis upon which the substantive issue in the dispute, namely Mr Prentiss’ possible time with X, fall within the ambit of the Family Law Act 1975

1. I only mention this matter to indicate that I have turned my mind to the statutory pathway. Pursuant to the terms of s.64B(2), a parenting order may deal with one or more of the following:

   (b)the time a child is to spend with another person or other persons;

   (e)the communication a child is to have with another person or other persons;

2. It is clear from the concluding words of subsection 64B(2) that:

   “The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).”

3. It is clear that it is competent for the applicant to bring his application (see s.65C) and it is also clear that X’s best interests are the paramount consideration (s.65AA).

4. Nonetheless, the reality is that Part VII of the Family Law Act 1975 (“the Act”) is, scarcely surprisingly, generally attuned to disputes between parents. Equally, it is clear that subject to s.61DA and s.65DAB, neither of which have any work to do here, the Court may “make such parenting order as it thinks proper.”

5. It should be noted that there has at no stage been any application for joint parental responsibility. 

6. In my view, it is appropriate in this case, notwithstanding the particular nature of the dispute, to consider X’s best interests evaluated against the criteria in s.60CC of the Act. The objects of the Act set out in s.60B are not, subject to Mr Barndon’s assertions of risk with Mr Prentiss, of particular significance, although I note s.60B(2)(e) requires the Court to bear in mind the child’s right to enjoy his culture (which may be assisted by spending time with his siblings who are at least as to half through their mother from the same (omitted) heritage).

Section 60CC(2)

1. Here the question that arises in the particular circumstances is whether there is a need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. It may be noted immediately that there is no suggestion that X is abused by Mr Barndon nor is there any suggestion in any of the materials that Mr Prentiss would inflict violence upon him either. 

3. The question that needs to be considered directly at this point is whether Mr Prentiss is so malevolent, as Mr Barndon says, that he represents a threat in some sort of inchoate way (Mr Barndon did not really articulate anything specific). 

4. At this point it is necessary to say something about the credit of the two primary witnesses. 

5. Mr Prentiss was the better witness of the two.  He answered questions responsibly and directly.  His demeanour was unremarkable and, if anything, suggested weary resignation with the trial process. 

6. I should say, however, that I found some of Mr Prentiss’ responses about his criminal history to be self-serving and evasive.  His assertion that he had never been the subject of a conviction in respect of assault and dishonesty offences may be technically correct.  He may have been bound over or put on a CBO, as the case may be.  The fact is, however, that he plainly was convicted of assault occasioning injury and of a dishonesty offence.  

7. Equally, it is apparent that he was untruthful to Mr P when he denied a sexual relationship with Ms Z. 

8. Again, it is true that he has had driving offences which would seem to me to have been serious (exceed .05 and drive while disqualified).  However, he has had his licence back since 2008 and I take judicial notice of the fact that to obtain your licence again following such an offence is no easy matter, requiring the State Court to be satisfied that you are a fit and proper person to be re-granted your licence. 

9. With these qualifications in mind, however, I make it clear that I thought that Mr Prentiss, while showing a natural tendency to diminish his bad qualities in Court, nonetheless, was generally a good and responsive witness.  I fully accept his answers that he does not pursue this case with a view to being overly involved in X’s life but, rather, to generally help Mr Harry and Y to have a relationship with their brother.  There is nothing wrong with such a desire to help, quite the contrary. 

10. Mr Barndon’s evidence was, in one sense, unremarkable.  Nonetheless, I share with Mr S a sense of concern about some of Mr Barndon’s presentation and answers.  I profess no medical or psychiatric insight, but it is certainly the case that his demeanour seemed extraordinarily tense at all times.  Furthermore, the way he put his complaints about Mr Prentiss suggests a chronic obsession with him.  It is quite clear, as I found, that Mr Barndon’s substantial complaint about Mr Prentiss is that Mr Prentiss lied in the 2005 proceedings.  Most of what Mr Prentiss had to say was clearly hearsay and cannot have been lies in that sense.  He was essentially adopting the account given to him by Ms Z, although he did give some direct evidence of his own which may or may not have been truthful. 

11. Put shortly, even accepting every point against Mr Prentiss that one can, he is no sort of a risk to X.  The fact is that his dishonesty offence took place during a period of depression.  His driving offence is now historical.  The assault upon his former business partner’s companion is, indeed, a matter of real concern, but it took place many, many years ago in the context of what was doubtless a heightened emotional state due to business conflict between Mr Prentiss and his former partner. 

12. Put shortly, although Mr Barndon does not himself realise this, Mr Barndon’s obsession with the alleged dishonesty of Mr Prentiss, who is not the first human being ever to tell an untruth, is grotesque in its exaggeration.  If Mr Prentiss were to be permitted to assist with the transportation of X and to be present when he is staying with the applicant at their home, there is no risk to X from Mr Prentiss. 

1. The person in whom there does reside a measure of risk is, of course, Mr Barndon.  Mr Barndon detests Mr Prentiss, as I find, with an intensity bordering on mania.  If I permit time to be spent by X with Mr Prentiss, it is far more probable than otherwise that Mr Barndon will abreact in a major way.  I have no doubt that his present cooperative behaviour with Mr Harry will cease and X will be exposed at the very least to a considerable measure of stress arising out of his father’s entrenched and excessive obsession with Mr Prentiss.  

Section 60CC(3)(a)

1. X has not betrayed any view about Mr Prentiss.  He clearly wants to spend time with his brother and, indeed, that is not even any more in issue as Mr Barndon has conceded that a 6 hour time slot every third weekend and a move to overnight time on Mr Harry’s 19^th birthday are acceptable provided Mr Prentiss is excluded. 

Section 60CC(3)(b)

1. It is clear that X has lived with Mr Barndon if not all certainly the vast majority of his life and has a close and settled relationship with him.  Mr S’s report suggests that, albeit within the limitations of his possible autism, he has a good relationship with his siblings, Mr Harry and Y.  There seems no reason to suppose he does not also have a good relationship with Mr Barndon’s family, but there is no positive evidence of this one way or the other.  

Section 60CC(3)(c)

1. This subsection has little work to do in the circumstances of this case.  Mr Barndon has certainly been at least an adequate father.  

Section 60CC(3)(ca)

1. In circumstances of this case, I simply repeat the observations under s.60CC(3)(c). Mr Barndon has properly discharged his obligations.

Section 60CC(3)(d)

1. In the event that I effect a change in X’s circumstances by permitting him to be in the presence of Mr Prentiss, in my view Mr Barndon’s response will be so extreme that, as I have said, the presently cordial relationship between Mr Barndon and Mr Harry will deteriorate significantly.  Indeed, I suspect that there will be tensions between Mr Barndon and X.  Mr Barndon is extremely controlling of X in this regard even though he may not himself recognise it, but the fact is that he is the sole parent with whom X lives and who must clearly be his primary attachment at this stage.  

Section 60CC(3)(e)

1. This is irrelevant in the context of this case.

Section 60CC(3)(f)

1. This subsection likewise has little work to do save to the extent that it is clear that Mr Harry will provide, together with his step-sister Y, some measure of family unity otherwise so lacking in all three of their lives.  Mr Barndon, of course, will continue to be an adequate parent. 

Section 60CC(3)(g)

1. X is still young, his background is of mixed race and it seems to me that this is relevant in the sense that the fomenting of his relationship with his brother and sister will be to his benefit.

Section 60CC(3)(h)

1. Irrelevant.  

Section 60CC(3)(i), (j) and (k)

1. These have no further work to do in the light of the findings already made.  

Section 60CC(3)(l)

1. If I permit Mr Prentiss to be brought into contact with X, I have no doubt whatever that there will be copious further litigation.  This is in no one’s best interests and most particularly X’s. 

Conclusion about Mr Prentiss

1. Although for the reasons I have given, I think Mr Prentiss is no sort of a risk to anyone, it is clearly in X’s best interests, because of Mr Barndon’s personality, that he not be brought into contact with him.  This decision seems at times even to me to be counterintuitive, but it is all about X’s best interests, not the unfortunate feud between Mr Prentiss and Mr Barndon. 

2. I agree with Mr S that in large part the dispute between Mr Barndon and Mr Prentiss is irrelevant to the issues the Court is asked to determine, but the practical reality is that it stands at the absolute forefront of the matters in dispute. 

3. It is only now necessary, therefore, to deal with the remaining matters.  

Matters that are agreed

1. It is agreed in the light of my finding that Mr Prentiss continue to be excluded, that X should spend time with Mr Harry (and Y if she is available) for 6 hours on the third weekend in each month.  I have taken it that the times of 11:00am am until 5:00 pm as sought in the application are what is desired. 

2. The parties also agree in this context that time should move to overnight  time on the occasion of Mr Harry’s 19^th birthday in (omitted) 2014 and should be from 5:00 pm Saturday until 5:00 pm Sunday. 

3. It is also if not agreed not strenuously contested that it would be more convenient for X and Mr Harry and Y if changeover were to be at (omitted) Station.  I will make that order.  Mr Barndon is the adult and he can more readily change his schedule than the children.  Time will start in the city and may increasingly involve time spent at Mr Harry’s home which in a broad way I think would be desirable.  Whether that be so or not, the cost of getting to (omitted), which is problematic from (omitted) where Mr Harry lives, will be removed. 

4. I note that Mr Barndon did not object to X spending time with Mr Harry either shortly before or shortly after Christmas.  In my view, it would make sense for Mr Harry to have a further period of some 6 hours with X in default of agreement from 11:00 am until 5:00 pm on Christmas Eve in each year. 

5. I will not order Christmas Day time both because as a matter of practical politics Mr Prentiss would almost certainly have to be there, but also because Mr Barndon’s evidence about the significance of Christmas in his own family and the obvious benefit to X of being involved with his paternal extended family on that day is so great. 

6. I will further order that X is to have his own bedroom during any time he spends with Mr Harry at his home. 

7. I will continue the order excluding Mr Prentiss from spending time with X. 

8. I will further order that X spend time with his brother Mr Harry from 11:00 am until 5:00 pm on Mr Harry’s birthday of each year, in substitution for the weekend closest to Mr Harry’s birthday.  I will give the parties an opportunity to be heard as to whether the time to be spent on that weekend or whether it would be on the birthday itself. 

9. I believe this addresses all the matters in dispute in the proceeding, but I will give the parties an opportunity to consider the draft orders I am going to propose to see if there is anything overlooked or misunderstood.  

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Date:  21 October 2013