HAYES & LOGAN
[2016] FCCA 1572
•28 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAYES & LOGAN | [2016] FCCA 1572 |
| Catchwords: | |
| Legislation: Family Law Act 1975, ss.4AB, 60CC, 61DA | |
| Applicant: | MS HAYES |
| Respondent: | MR LOGAN |
| File Number: | NCC 100 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 18 & 19 February 2016 and 16 & 17 June 2016 |
| Date of Last Submission: | 17 June 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 28 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Curtis |
| Solicitors for the Applicant: | AW Simpson & Co |
| The Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Mr Boyd |
| Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous Orders regarding X born (omitted) 2011 are discharged.
Subject to the following Orders the mother shall have sole parental responsibility for the child.
The mother is restrained and an injunction is granted restraining her from changing the child’s surname or using any surname for the child other than Logan.
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)Each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday provided that one of those weekends shall be the weekend of Father’s Day.
(b)From 8.00 pm on Christmas Eve until 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day until 3.00 pm on Boxing Day in odd numbered years.
(c)From 10.00 am until 4.00 pm on the Saturday closest to the child’s birthday in the event that the child is not spending time with the father on that weekend.
(d)From the commencement of the school year 2020 order (5) (a) is discharged and the child shall thereafter spend time with the father each alternate weekend during school terms from after school on Fridays until before school Mondays and for 10 days commencing 3.00 pm Christmas Day in odd numbered years and from 3.00 pm Christmas Day in even numbered years and for the weekend of Father’s Day. The child shall spend time with the mother on the weekend of Mother’s Day and the first week of other school holidays.
(e)At such additional or alternate times as may be agreed in writing between the parties noting that the mother has the final say as to whether any additional or alternate time occurs.
To give effect to changeovers for the child on non-school days the mother or her nominee shall arrange for the delivery of the child to and collection of him from the father at the McDonald's Restaurant (omitted).
The mother shall ensure that the child commences school at the school then attended by his brother Y.
Each party shall promptly notify the other if the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed as suffering from a serious medical condition.
Each party shall maintain an address notified to the other and shall notify the other within 48 hours of any change to such address.
Each party is restrained from denigrating the other or a member of the other’s household in the presence of the child.
Each party may obtain from the child’s school copies of school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the school normally attended by parents.
IT IS NOTED that publication of this judgment under the pseudonym Hayes & Logan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 100 of 2014
| MS HAYES |
Applicant
And
| MR LOGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
X[1], almost 5, lives in an equal time arrangement with his parents in (omitted). The parties agreed to something close to equal time in January 2014 after the mother applied for a recovery order in the Local Court at Armidale and since the orders were varied by consent in July 2014 he has lived 3 days/four days per fortnight with the mother and 4 days/3 day per fortnight with the father.
[1] The child’s name is spelled X (by the mother), X or X (variously in the family reports) and X or X (variously by the father; he handwrote the name as X on the child’s day care enrolment form and spelled it differently in each of his two affidavits). I have not seen the child’s birth certificate but I asked the mother to spell the child’s name for me and she spelled it X. I have therefore adopted this spelling in the judgment.
If ever there was a case ill-suited to equal time it is this one.
There is foundation for the mother’s claims that the father has stalked, harassed and intimidated her for years. An Apprehended Domestic Violence Order (ADVO) was made for the mother’s protection in June 2015 and in February 2016 the father was convicted of one count of breaching the ADVO and two counts of stalking.
There is also foundation for the mother’s concern that X might be turned against her if he spends too long with the father. The child told the family report writer in March 2016 that his father thought that his half-brother Y was a dickhead and that the mother’s friend Mr J was a dickhead. Another cause for concern is that the father has started to make complaints about the child being injured while in the mother's care.
The mother said that although she had consented to shared care in the past she now felt strong enough to seek different orders. She proposed that X live predominantly with her and spend time with the father each alternate weekend from Saturday until Sunday and for half of the school holidays.
The mother sought an order for sole parental responsibility.
In his case outline document filed on 15 February 2016 the father said that he was proposing that X live with him and have “liberal access” to the mother but at all other times (in his Response and in conversations with the family report writer) his case was that X should live in a week about shared care arrangement at least until he commenced school.
The father put forward these proposals which at the very least involve X spending significant time with the mother notwithstanding that he alleged that the mother did not feed X properly, compromised his health by using an unflued gas heater and allowing people to smoke in her home and car, did nothing to stop her 9 old son Y from injuring him, allowed him to be exposed to drug use and criminality by her 15 year old son Z and was living illegally with Mr J and defrauding Centrelink and Legal Aid and also notwithstanding that he had recently applied for an ADVO against her (yet to be determined).
By the time of final submissions the father was aware that neither the family report writer nor the Independent Children’s Lawyer supported shared care and the orders he sought were that X live with the mother and spend time with him each alternate weekends from Friday to Monday, each alternate Thursday overnight to Friday (which would mean X spending the whole of each alternate Thursday with him until he commenced school in 2017) and for half of the school holidays.
The father sought an order for equal shared parental responsibility and he also sought a number of ancillary orders which I will refer to later on.
During final submissions the Independent Children’s Lawyer proposed that the child live with the mother and that she have sole parental responsibility for him subject to a restraint on her changing the child’s surname.
He proposed that the child spend time with the father on alternate weekends from 9.00am on Saturday until 5.00pm on Sunday until 2020 and proposed that thereafter the child spend time with the father on alternate weekends from after school Friday until before school Monday during school terms. He did not propose that the child spend school holiday time with the father until 2020.
The evidence
The mother relied on her affidavit and the affidavits of her friend Mr J and the maternal grandmother Ms S filed on 3 February 2016 and on the affidavits of Mr H filed on 16 February 2016 and Mr B filed on 3 May 2016.
The father relied on his affidavits filed on 22 January 2016 and 10 June 2016 and the affidavit of his employee Mr D filed on 22 January 2016.
Ms K, a family consultant, conducted a child dispute conference on 30 April 2014 and prepared a limited issues family report on 12 September 2014 and family reports on 15 January 2015 and 22 March 2016.
The mother, her witnesses, the father and Ms K were cross-examined. Mr D was not required.
Background
The father is 54. He is a long-time resident of (omitted) and owns a home and business there. He has two adult sons, Mr A born on (omitted) 1989 who is 24 and Mr I born on (omitted) 1995 who is 21. Mr A is currently in jail for drug-related offences. Mr I lives with the father in (omitted).
The mother is 35. She was born in (country omitted) and has been in Australia since she was 17. She has two older sons, Z born on (omitted) 2000 who is 15 and Y born on (omitted) 2007 who is 9.
Z’s father is Mr P also known as Mr P. He currently lives in (omitted). Y’s father is Mr M who currently lives in the (omitted). Both fathers have had some involvement with their sons and Z is currently living with his father as part of his bail conditions.
The mother moved to (omitted) in 2004 when she was 24 and met the father in 2005. She said that they met because she was using marijuana and the father was supplying it. She said that she began cleaning for the father and also worked in his business (omitted business) for 6 months in 2005 and that he would sometimes pay her in marijuana instead of money.
The father, who was given a certificate under the Evidence Act, admitted that he had supplied the mother with marijuana and admitted having been a marijuana user himself in the past.
The mother and father commenced a romantic relationship in or about 2009 and this led to the birth of X on (omitted) 2011. They had never lived together and after X’s birth he lived with the mother, Z and Y.
The parties ended their relationship prior to X’s birth.
The mother said that after X’s birth the father came to her house frequently to see him and was not respectful of her and would just walk in without knocking. She was generally a witness of credit and this allegation is consistent with other evidence about the father’s behaviour and I accept her evidence.
The parties reconciled for a period of time in the second half of 2011 but it did not last.
The father spent time with X during 2012 usually by visiting the mother’s home. He said that the parties reconciled again in March 2013 and ended the relationship again in October 2013.
On 7 December 2013 the mother left X with the father for three days while she travelled away on a trip. When she returned he would not give X back and on 18 December 2013 she filed an application for a recovery order in the Local Court at Armidale.
The matter came before the Local Court on 9 January 2014. The parties agreed that on an interim basis X would live with the mother for 4 days/4 nights each week and with the father for 3 days/3 nights each week and the proceedings were transferred to the Federal Circuit Court.
By April 2014 when the matter first came before the Federal Circuit Court the parties had again reconciled but at the child dispute conference held on 30 April 2014 they told the family consultant that they nevertheless wanted orders to be made about X in case the reconciliation did not endure.
The reconciliation did not endure and in July 2014 the parties told the court that they had finally separated and that they wanted a shared care arrangement to continue.
The court had concerns about this proposal given the content of affidavits and declined to do as the parties requested and ordered the preparation of a Limited Issues Report.
In this report which was released in September 2014 the report writer said that she inclined to the view that equal time was not appropriate. She recommended that X live predominantly with one parent and also recommended as a result of things said by X that Z not live with X.
It was from this report that there were many matters which required further investigation and as a result a full family report was ordered. However the parties did not attend the interviews for this report and when the matter was next mentioned the court was informed that they still wished to finalise the matter with orders in terms of the orders for shared care which had been made in July 2014.
Those orders were not made and in due course the mother changed her mind about the outcome she wanted and the matter was listed for final hearing in February 2016.
A hearing was conducted on 18 & 19 February 2016 and the matter was adjourned part heard to June 2016.
Prior to the matter being adjourned the Independent Children’s Lawyer asked the court to order the preparation of an updated family report. In his trial affidavit filed in January 2016 the father alleged that Y was injuring X and said that he had recently taken X to the police station when he came to the father with a head injury and the Independent Children’s Lawyer submitted that it was important that independent evidence be obtained about the relationship between X and his brothers Y and Z in particular.
An updated report was ordered and interviews for this report took place in March 2016. Y and Z both attended the interviews together with the mother and father. The report was released to the parties in March 2016 and the hearing concluded in June 2016.
The final thing to note by way of background is that in 2015 the mother commenced a relationship with Mr J and he sometimes stayed overnight at her house.
When the hearing commenced in February 2016 the mother told the court that she and Mr J were taking a break in their relationship but remained friends. Mr J gave evidence in June 2016 and confirmed that he still called around to the mother’s house sometimes and has some involvement with her and her children.
The best interests considerations
Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine his best interests.
S.60CC(2) contains the primary considerations and s.60CC(3) the additional considerations and I intend to start by making findings about the additional considerations.
The first additional consideration is any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's view.
X did not express a view about his living arrangements to the report writer in March 2016.
The father has always maintained that X is settled in the shared care arrangement. However in the Limited Issues report in September 2014 the report writer said as follows:
It is noted that while X may be presenting as having become used to the arrangement (and not protesting), this does not necessarily mean that this is because he is settled and it is in his best interests. A concern in this regard is that the self sufficiency / self reliance I observed may suggest that he has developed this (possibly detached) approach because he has had to manage transitions between caregivers which exceed his developmental capacity. Having said this it is noted that I only saw him for a very brief period of time which may not represent his usual behaviour.
The mother said that in recent times X had expressed a preference not to go to his father so often.
I cannot on the state of the evidence safely make a finding about whether X is settled in the shared care arrangement or whether he is expressing any reluctance about spending time with the father as frequently as he does now.
I must consider the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child).
In September 2014 the parents told the report writer that X had a positive relationship with each of them and her observations confirmed that. She said as follows:
Given both parents described a positive relationship between X and each of them only a very brief observation (5-10 minutes) with each parent occurred. X transitioned from the mother to the father and back again without issue or distress. His demeanour was consistent with both parents. In both observation sessions he tended to play on his own, and on some instances when with the mother he engaged with his brother. The parents tended to leave him to his own devices, only briefly engaging in play with him on a one to one basis. The father observed that he was very good at playing on his own.[2]
[2] Limited Issues Report dated 12 September 2014, paragraph 36.
In March 2016 the report writer observed that when X saw his mother he shouted excitedly “Mum” and ran to her leaping up into a hug. She also said as follows:
At the conclusion of the day X again leapt on the mother and gave her a hug and a big kiss to say goodbye. Y approached X for a hug and X grabbed him to give a big hug and then grabbed his face and turned it before giving him a kiss and saying goodbye.[3]
[3] Family Report dated 22 March 2016, paragraph 54.
X was very positive about Y when speaking to the report writer in March 2016. She asked him who was in his family and reported that he named his Dad, Mum and Nan and then said:
“Y, he’s my brother and he is my friend” (Q. what sort of a brother is Y?) “He’s kind”.[4]
[4] Family Report dated 22 March 2016, paragraph 43.
The report writer also said as follows about the interaction between the children:
X’s clear preference was for play with Y. On many occasions he instigated play with him. When X became frustrated with something Y happily helped him to resolve the issue without being asked. It was observed that whatever Y had (a teddy, a chair etc) X wanted it and started whining about not having it. This happened repeatedly and was a common theme. Without being asked by anyone Y easily acquiesced to what X wanted without a fuss and went on to some other activity (until X again wanted whatever he had).[5]
[5] Family Report dated 22 March 2016, paragraphs 49 & 51.
The report writer said that there was limited interaction between X and Z and that Z was quite withdrawn. That is consistent with the mother’s evidence that Z does not have much interaction with X.
X has a good relationship with his maternal grandmother Ms S who lives in (omitted) and is a frequent visitor to the mother’s home.
The mother said that X got on well with Mr J. Mr J said the same and there was nothing in the evidence which suggested that there were any issues between X and Mr J.
In March 2016 the report writer again observed a positive relationship between X and the father.
In his trial affidavit filed in January 2016 the father said that he was living with Ms N and he alleged that X had a good relationship with her. He did not file an affidavit from her and when the hearing resumed in June 2016 he said that Ms N had left (omitted) and returned to live in Sydney.
The father claimed that X had a good relationship with Mr I. There was no independent evidence of this and it is not clear how much time X and Mr I actually spend together but the mother did not suggest that there were any issues between X and Mr I.
I must consider the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.
The parents have both always been interested in X and this consideration does not assist me.
I am required to consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The mother is in receipt of Centrelink benefits and the father, who operates a business, does not pay child support.
The father said that his business had been in decline since Paul Keating/Julia Gillard had damaged the economy and that he only earned $20,000.00 per annum. He was not a witness of credit and he has an employee and I am sceptical about his claim that he has a low income but on the state of the evidence I cannot make a finding about his income or about his capacity to financially support X.
It is curious however that the father could see no problem in being able to pay X’s school fees to attend the (omitted) School in (omitted), which he estimated to be about $1,400.00 per annum. If he is only earning $20,000.00 per annum this would be a significant sum for him.
I am required to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
X related well to his father at the recent family report interviews and he does not bear the brunt of the father’s bad behaviour, the mother does. If I make an order reducing X’s time with the father, X is likely to notice and may potentially miss his father. The mother said that on one occasion when X did not spend time with the father for longer than usual he commented “How come I’ve been with you for so long?”
The mother may face some issues assisting him to adjust to a reduction in time with his father if orders are made as she seeks or as the Independent Children’s Lawyer proposes.
However if X is being exposed to denigration of the mother, Y, Mr J and may be exposed to denigration of any other associate of the mother’s to whom the father takes a dislike in the future while in the father’s care then it will be beneficial for him if his time with the father is limited and his exposure to the father’s negative views limited. It is likely to cause X considerable psychological confusion if he spends a large amount of time with a parent who not only has negative views about but uses harshly negative descriptions for members of his maternal family and friends of his mother.
Another advantage of the orders the mother proposes is that it will mean that X will spend a greater amount of time with Y.
If on the other hand there is reason to be concerned about the mother’s parenting capacity and reason to be concerned about X’s exposure to Z and the father’s conduct and views are not as potentially harmful as the mother and report writer believe, then the proposal the father put forward at the end of hearing is likely to be the one which is more beneficial for X.
I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant consideration given that both parties live in (omitted).
During final submission the father hinted that he might not stay in (omitted) but there was no evidence during the hearing to suggest that he intended to relocate. If he does so then the parties and failing that the court will have to deal with any problems thrown up.
I am required to consider the capacity of:
i)each of the child's parents; and
ii)any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The mother
The mother has worked as a (occupation omitted) in the past but she is currently engaged in home duties. The father is highly critical of the mother for being dependent on welfare but X is not yet at school and requires care during the day and I cannot find that the mother is a poor role model for X because she is not employed at present.
I am satisfied that the mother looks after X well on a day to day basis in terms of feeding and clothing him; the suggestion by the father that she does not feed him properly is absurd. She does not currently send him to pre-school but this is likely for financial reasons and in any event the father has been sending X to day care one day a week.
The mother smokes cigarettes. She said that she smoked on the verandah and did not smoke in the house. There was no evidence on which it is open to me to find that the mother recklessly endangers X’s health by smoking cigarettes.
I also accept the mother’s evidence that she does not use an unflued gas heater when X is with her, rather she uses a heater supplied by her mother.
The mother has no criminal convictions.
The issues in relation to the mother which require more in depth consideration are:
i)her mental health;
ii)the support available to her in (omitted);
iii)her history of cannabis use;
iv)her relationship with the father combined with a concern about her choosing an unsatisfactory partner in the future.
v)Z
The mother’s mental health
During the interviews for the Limited Issues report in September 2014 the mother said that she had struggled with depression for years and the report writer said that subpoena records confirmed this. The mother said that she was not currently medicated but had made an appointment with her doctor to discuss going on a different medication.
The report writer said as follows:
[The mother’s] demeanour was calm and co-operative, although she presented with a generally flat affect.
The report writer continued:
[The mother] presented as vulnerable and as likely to benefit from accessing some mental health treatment in the form of counselling and potentially medication.[6]
[6] Limited Issues Report dated 12 September 2014, paragraph 21.
By the time of the family report interviews in March 2016 the mother was taking Pristiq. She told the report writer that it was helping her and the report writer commented that she presented with a much improved affect.
The support available to the mother in (omitted)
The mother has received support from (omitted) Family & Youth Support Services in the past and she is currently an active member of the (omitted) Church in (omitted) and receives support from connections she has made through the church.
The maternal grandmother is also a support. She lives in (omitted) and visits the mother at least 4 days a week.
The father launched a stinging attack on the maternal grandmother during cross-examination. He asked her about her convictions in (country omitted) many years ago and suggested that in (omitted) 2009 she travelled on a $5.00 train ticket using someone else’s ID.
The maternal grandmother remained calm in the face of this and denied the allegation about the train ticket but even if that allegation is true it was a bit rich for the father to be vigorously attacking the maternal grandmother about an alleged minor transgression given his own criminal record.
X is fond of the maternal grandmother and I am satisfied that she is a good support for the mother.
The mother’s cannabis use
For many years of her life the mother was a regular cannabis user.
There can be no doubt that due to a combination of her cannabis use and mental health issues there were times in the past when her parenting capacity was compromised. In the Limited Issues Report the report writer referred to the following entry in the DoFACS records which although untested is consistent with other evidence in the case:
FaCS were subsequently involved. The mother said that she had suffered depression since she was 5 and had used cannabis to self-medicate (since the age of 16) as it is the only thing that makes her feel “okay”. No risk of serious harm issues were identified at that time. Both children were with their extended paternal families. The mother was noted to be “lethargic and emotionally flat with no demonstrated affect, consistent with her reported depression and/or drug use but equally could be exacerbated by anaemia from her poor diet”. These issues were noted to be of concern for when the boys were returned to her care but were assessed to not constitute a risk of serious harm. At the conclusion of their investigation FaCS appear to have been convinced that the mother was no longer using marijuana.[7]
[7] Limited Issues Report dated 12 September 2014, paragraph 41.
The mother said that she ceased using cannabis in early 2011. There was no evidence that she had was currently using cannabis and given the length of time which has now passed I do not consider that there is a high risk of the mother using cannabis again.
For reasons which will be clear as this judgment proceeds I am satisfied that the father is a person whose behaviour is often “abusive, erratic and irrational”.[8]
The mother’s relationship with the father combined with a concern about her choosing an unsatisfactory partner in the future.
[8] Limited Issues Report dated 12 September 2014, paragraph 48.
The fact that the mother had an on and off relationship with the father between 2009 and 2014 was detrimental for Z and Y. The mother gave evidence about the father behaving harshly to these boys and the father’s behaviour to the mother placed her under stress which must have affected her parenting capacity.
If the mother entered into another such relationship it would be detrimental for X, but the mother said and I accept that her relationship with the father evolved from her use of cannabis and she is no longer using cannabis.
The mother formed a relationship with Mr J in early 2015. She met him through the (omitted) Church. He is a self-employed (occupation omitted) and has children in (omitted).
The mother said that the relationship had ended but that she and Mr J were still friends and Mr J still calls in at her home from time to time.
After the mother commenced a relationship with Mr J, the father became obsessed about their living arrangements. He spied on them. He stood at the front gate of the mother’s home filming when Mr J car was there leading to the charge of stalking. He confronted Mr J in Woolworths and he went around to a worksite and demanded to know what Mr J’s intentions toward the mother were and whether he was going to marry her. He conducted a relentless campaign to try and make the mother go to Centrelink and provide information about the relationship.
When the report writer asked the father in March 2016 whether he had any issues with Mr J he said as follows:
The biggest problem with him Ms K, is that he is uneducated. He cannot read and write and he doesn’t seem to shower very often. He presents as dirty and he is a bankrupt. He smokes in the car with X”.
The father also commented that Mr J had five children from three different women and had made no effort to see one of them who lived in close proximity to him.
It was apparent during the hearing in June 2016 that the father’s obsession with Mr J and with the mother’s living arrangements remained as strong as ever. He complained bitterly that Mr J had recently parked his car near the father’s business (which is in the main street of (omitted) opposite (omitted)) and he cross-examined Mr J aggressively.
Mr J, who is a (occupation omitted) by trade, remained calm during cross-examination. He presented as an inoffensive man. There was no suggestion that he had any issues with drugs or alcohol or had a criminal record or that he was in any way a person of concern.
The mother denied that she and Mr J were in a relationship as opposed to being friends but there was nothing to suggest that her relationship with Mr J whatever its nature is likely to be detrimental to X.
Z
Z has had numerous problems since he commenced high school. He started smoking cannabis and in 2014 he was arrested and charged with criminal offences and spent time in (omitted) Juvenile Detention Centre. He returned to live with the mother in mid-2015 but there was evidence that he continued to use cannabis in the shed at the mother’s home.
I am satisfied that the mother did her best to ensure that Y and X were not exposed to Z’s drug use but she was powerless to get him to resume attending school. Less than a month ago Z was arrested for snatching a woman’s bag and threatening people who tried to apprehend him. He is on bail and is now living with his father Mr P in (omitted).
It is not beyond the bounds of possibility that Z could return to live with the mother at some time in the future. Whether that would be a particularly good outcome for him given his behaviour in (omitted) is open to question but the mother would probably not turn him away.
There was no evidence that Z had ever harmed X or might do so in the future and indeed the father told the report writer in March 2016 that he did not allege that Z had physically harmed X. However if Z returned to live with the mother and continued to use cannabis and commit offences X could be exposed to his drug use and lawlessness, and there is also reference in the material to Z sometimes becoming drunk.
The father raised this as a concern but he also submitted that the court should be gravely concerned that if X stayed with the mother he would not only be exposed to Z in the future but would follow a similar path of drug use, criminality and school refusal as Z.
The report writer pointed out that it was not that simple.
Whether the mother alone is responsible for Z’s situation is something I cannot determine. He may have issues of his own (such as depression) which X may never have and the mother is not the same person today as she was when she parented Z while smoking cannabis herself and having no treatment for her mental health issues.
During the Limited Issues Family Report in September 2014 the report writer asked the mother about Z and reported as follows:
When asked if in hindsight there was anything she would do differently in parenting Z she appeared to refer to attachment difficulties, stating that she didn’t really “know how to do it” (connect with Z) and that she “struggled a bit” and she wished she had of spent more one to one time with him and engaged in activities with him.[9]
[9] Limited Issues Report dated 12 September 2014, paragraph 31.
The father’s behaviour is also relevant. For several years when Z was younger the mother and father were in a relationship and the father was supplying the mother with cannabis and using it with her. Z has also had before him examples of bullying and threatening behaviour by the father.
The mother is no longer using cannabis and she is doing her best to keep the father at arm’s length and the report writer felt that she had become more robust. It cannot be assumed that X will follow the same path as Z if he lives primarily with the mother.
The father should know this by comparing the situation of his sons Mr I and Mr A. Mr I, his younger child, is reportedly in no trouble with the law while Mr A is serving a custodial sentence for drug offences.
The father was keen to distance himself from any responsibility for Mr A’s situation by repeatedly reminding the court that Mr A was brought up by his mother. However Mr A had been spending time with the father just prior to his arrest for serious drug charges in 2011.
The events leading up to Mr A’s arrest were that he was staying with the father in (omitted) and he asked the father to drive him to Sydney which the father agreed to do. They were stopped by police in (omitted) and their car was searched. The father was found to have a small packet of cannabis in his jeans pocket. Mr A was sitting in the front passenger seat and the police observed him to be holding an ice pipe.
Police searched the vehicle and located methamphetamines on Mr A’s person and cocaine and methamphetamines in an orange backpack on the back seat. Mr A was charged with possession of these drugs. The father was charged with possession of cannabis. The father claimed to have been set up by police.
Frankly I struggle to accept that the father was unaware of Mr A’s possession and use of hard drugs at the time of his arrest and I do not see the distinction the father sees between the fact that he has a son who is on a path to destruction as a result of criminality and drug use and the mother has a son who is on the same path.
In the Limited Issues Report the report writer set out at considerable length Mr A’s convictions for offences including possession and supply of drugs, possession of a knife and stealing and goods in custody[10]and noted that he had been charged with numerous disciplinary infractions while in custody.[11]
[10] Detailed in the Family Report dated 22 March 2016, paragraph 29
[11] Detailed in the Family Report dated 22 March 2016, paragraph 30
The father
The father, like Z and Mr A, has criminal convictions.
His criminal convictions as recorded in the Limited Issues Report are for driving under the influence of alcohol (.070) and possess Indian hemp (1984); mid-range PCA (1987); offensive behaviour and driving an unregistered and uninsured motor vehicle (1990); assault (1992); malicious damage (1993); common assault (1998); assault occasioning actual bodily harm (this involved a dispute with his ex-partner at the time where he faked a punch at her and twisted her hand through a car window causing the car keys to cut her hand and a graze and bruise to her arm) (2002); possess prohibited drug (2.5 grams of cannabis) (2011).[12]
[12] Detailed in the Limited Issues Report dated 12 September 2014, paragraph 13.
In 2015 the father was charged with breaching an ADVO, two counts of stalking and one count of entering enclosed land. He was convicted of these offences and on 12 February 2016 he was sentenced to 2 x 8 month suspended sentences and fined $2,000.00. The bond was subject to supervision but on 6 May 2016 Corrective Services wrote to the father advising him that he was no longer bound by the supervision requirements.
The father appealed the conviction for entering enclosed land which was overturned by the District Court.
The father is a (occupation omitted) and proprietor of a (business omitted). He did not provide any evidence about his working hours but he has arranged for X to attend some day care. It was not suggested that the father was unable to provide adequate day to day care for X when X was with him.
The mother alleged that the father had a strict and overbearing parenting style and would lecture her sons Y and Z for an hour and force them to stand and listen to him.
I consider this evidence likely to be correct given other evidence about the father’s behaviour to the mother and the lengths to which he will go to try and ensure that things are done his way. However it does not automatically follow that because the father behaved in this way to his step-children he would behave in this way to X.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
X will turn 5 in four weeks. He is due to start school in 2017.
The parents told the report writer at the interviews in March 2016 that they had agreed that X would attend a local (omitted) school and that the father would pay the fees.
During his cross-examination of the mother Counsel for the Independent Children’s Lawyer asked her whether she had thought about the implications of this. For one thing it would mean that X would be attending a different school to his brother Y and for another the mother might find herself in conflict with the father about payment of the fees and perhaps find herself in a situation where the father used the issue of payment of the fees as a way to coerce her – declining to pay a quarterly fee instalment for example until she agreed to something he wanted.
After reflecting on these matters the mother informed the court through her Counsel that she now proposed that X attend the same school as Y.
I must consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The mother displayed a poor attitude to her unborn child and to the responsibilities of parenthood when she continued to smoke cannabis while pregnant but she has since completely given up using cannabis.
The father displayed a poor attitude to the child when he withheld him from the mother for a month in December 2013/January 2014.
I must consider any family violence involving the child or a member of the child's family.
People often mistakenly think that family violence is limited to physical violence or threats of physical violence or smashing or threatening to smash property but the definition in s.4AB of the Family Law Act is much wider than that. Family violence is defined in that section as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
There are innumerable examples in the evidence of the father committing acts of family violence. Some physical violence and damage to property is alleged but the allegations are often of stalking and repeated derogatory taunts and of other behaviour clearly designed to control and coerce the mother.
The mother gave extensive evidence of the father behaving in a bullying, intimidating and abusive manner.
She alleged that when she was pregnant with X he ripped her flyscreens, threw her sons shoes into the yard and tampered with her car by letting the air out of the tires. She alleged that he parked his car behind hers for 3-4 days so she could not get out of her yard. She said that he later admitted these acts and apologised. She said that he let the air out of her tires several times but would come the next day with the NRMA and put the air back in the tires.
The mother said that the father pulled the leads out of her car in the main street of (omitted) and also pulled the door handle off the door. He later paid to have the car repaired. She said that he also drove into the back of her car while she was in it and that he later admitted that this was not an accident.
The mother also said as follows in her affidavit:
There was an incident where he parked his car in behind mine to prevent me driving. I started walking to the police station and he proceeded to walk in front of me, and on the way down to the police station he stopped and turned around and put his hands behind him with his fists clenched and put his face up into mine and as he got close he pushed his head forward to head butt me. He then said, “Why don’t’ you have a fucking miscarriage” and turned around and kept walking to the police station.
One [sic] a separate occasion, I was in the main street of (omitted), near the post office and I was walking, I think I may have been heading to the Police Station as he was abusing me in the main street. I was trying to get away from him again, as he used to follow me around at the time. He approached and began to yell at me, pushing his nose up into the side of my eye in a delicate area while he was yelling at me. I had a light bruise around my eye for about a week afterwards that everybody who spoke to me noticed.[13]
[13] Mother’s affidavit, paragraphs 88 & 89.
I accept the mother’s evidence about all of these events and indeed the father made some admissions. He admitted for example that he removed the leads from the mother’s car and parked her in. He said that it was for good reason for example because she was driving an unregistered motor vehicle or affected by cannabis but I do not accept that all of his bullying behaviour had such a reason behind it and in any event the reasons he gave do not excuse him intimidating the mother.
The relentless harassment to which the father has subjected the mother is illustrated by the following which occurred between March and June 2015, and I accept the mother’s evidence about these events.
In March 2015 the father barged into the mother’s and demanded that she return some bunk beds he had purchased. He refused her many requests that he leave and tried to block the door with his arm to prevent the mother closing it. When the mother finally got the father out of her house she rang the police who spoke to the father.
The father then filed a small claim seeking repayment from the mother for the bunk beds. The mother agreed to pay $700.00 and she is repaying this to the father in the sum of $20.00 per week.
On 4 May 2015 the father refused to return X to the mother alleging that he had croup because the mother smoked inside, had a cat and used unflued gas heating. The mother denied that she used unflued gas heating when X was with her or that any actions of hers had caused X to have croup.
On 27 May 2015 the father sent the mother a letter saying that he had reported her to Centrelink because Mr J was staying in her home.
On 31 May 2015 the father abused the mother at changeover calling her a “dirty whore.” He then snatched X from the mother saying that they didn’t want to hang around with “this dirty shit.” The father admitted using this language.
On 1 June 2015 the father came to the mother’s door and said that she had until midday to go Centrelink and report her relationship with Mr J.
On 3 June 2015 the father said that he was not going to return X to the mother as she was defrauding Centrelink and Legal Aid and he kept X for several days.
The mother saw the father sitting at her front gate filming Mr J and reported it to the police.
On 25 June 2015 the father approached the mother and Mr J when they were in Woolworths and told Mr J that he needed to go and find his own place and stop bludging.
The mother said that the father also began driving up and down past her home beeping his horn.
The father did not hand X over to mother on 25 June 2015 and when she rang him about it he would only talk about Centrelink.
On 26 July 2015 police took out a provisional ADVO against the father and the mother was able to recover X.
After the ADVO was made the mother received about 20 phone calls from the father. She did not answer until 14 July 2015 when the police happened to be there and requested that she answer the call. The father was arrested and charged with breaching the ADVO.
It is instructive to note that the father has three convictions for assault and that each of them involves an assault on a previous partner. The report writer noted that one assault conviction involved a former partner and I know that the other two do as well because the father insisted on having the opportunity to tell me in re-examination what each of his assault convictions involved.
The father seems completely oblivious to what constitutes harassment and family violence. The report writer said as in the 2014 report:
When specifically asked about family violence [the mother] described the father as being very controlling but she had difficulties giving specific examples. The father however gave some examples of what could be perceived as controlling behaviour. He described deliberately setting the mother up with the police when she was under the influence of drugs and pregnant (so police would be forced to contact FaCS), including throwing her phone and deliberately making her more upset so that police would see her in a heightened emotional state.[14]
[14] Limited Issues Report dated 12 September 2014, paragraph 22.
X has been present on some occasions when the father has acted out and the father’s behaviour makes him a very poor role model for his son.
X has already learned through the father to call people dickheads. He could all too easily copy the father and begin using abusive language to the mother and to others and begin acting out aggressively if he is displeased or bent on getting his own way.
If X copies the father’s example he is headed for problems at home, at school and in the wider community.
The father seems incapable of reflecting on his own behaviour and believes himself a victim of police persecution. During the hearing before me in June 2016 the father consistently harped on the themes of the (omitted) Police having a vendetta against him.
The father is restrained to an extent at the moment by the existence of the ADVO and the risk of jail sentence if he breaches it from acting out against the mother although given that he does not have any insight into what controlling or coercive behaviour is there is a risk of the mother still being subjected to this behaviour while the ADVO is in force and there is a considerable risk that once the ADVO expires the mother may again be subjected by the father to family violence in some form.
I must consider if a family violence order applies, or has applied, to the child or a member of the child's family- any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter.
In January 2011 police applied for an ADVO to protect the mother from the father. The mother complained that the father had head butted her. However she was under the influence of marijuana and told police she did not wish to pursue a complaint.
The father alleged that in about 2011 Z’s father came to his (business omitted) and threatened to kill him and X. It was apparently something which developed from the father running over a bike.
The father applied for and obtained an ADVO to protect himself and X from Mr P which posed difficulties for the mother in terms of Mr P coming to her home to collect Z.
The mother was not present during the incident at the (business omitted) so she cannot give evidence about what happened and the father was not a witness of credit and was prone to exaggeration so I cannot be sure exactly what happened. The father rang the police but they would not assist him. Police notes suggest that they had doubts about his credibility and whether he might not in fact have been the aggressor. The father’s view is that the police would not assist him because they have a vendetta against him.
The ADVO has long since expired and the mere fact that an order was made does not establish that the father’s version of events is correct.
On 26 June 2015 police took out a provisional ADVO for the protection of the mother, X and Y and also Mr J.
On 14 July 2015 an interim order was made to protect the mother and X and Y and the matter was adjourned to 14 July 2015.
On 12 February 2016 following the father’s conviction for stalking and breaching the ADVO a final ADVO was made which is in force for 2 years.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The father’s convictions, the suspended sentence and the existence of the ADVO are acting as a brake on the father’s behaviour toward the mother at present. That may mean that once orders are made the father will comply with them and that no critical incidents will occur which will lead to the matter coming back to court but for reasons given above in the family violence section of the judgment I have reservations about whether that will be the case.
This matter could all too easily return to court regardless of the orders I make for example because of contraventions or allegations by the father about the treatment of X.
I must consider any other fact or circumstance that the court thinks is relevant.
Mr P
When Local Court orders were made on 9 January 2014 the mother agreed to a request by the father for an order that X not be brought into contact with Mr P. The father requested that because of his issue with Mr P in 2011 and he seeks to have that order made on a final basis.
The mother opposes it, arguing that there was no evidence that Mr P posed a risk to X and it could cause her problems because of her need to also be there for Z.
Whatever occurred in 2011 was between the father and Mr P and was a one off incident. There was nothing to suggest that Mr P posed any risk of harm to X and I cannot see any justification for imposing a restraint on the mother bringing X into contact with Mr P. Mr P does not live in (omitted) and there was no suggestion that he came to the town very often at all.
The parties communication and nature of their relationship
The parties do not communicate at all and there is a significant power imbalance between them.
In the September 2014 Limited Issues Report the report writer said as follows:
In this regard it is noted that the father presents with a very dominant personality and the mother as very passive. Given this it is anticipated that in the face of disagreement about long term issues the father is likely to have his desired outcome be successful.[15]
[15] Limited Issues Report dated 12 September 2014, paragraph 60.
This is entirely consistent with the evidence I heard, the way the parties presented to me and the way the father conducted his case.
The father cross-examined the mother for two days. She stoically endured it, just as she did cross-examination for a whole day in the Local Court after the father was charged in 2015.
I was only able to contain the case to a reasonable hearing time after that by imposing a strict time limit for cross-examination of witnesses on all parties. The father used all his time on each occasion and then had to be stopped, and stopping him was entirely justified given that his questioning of the other witnesses and the family consultant was often unhelpful and focussed on irrelevant matters and was sometimes insulting and provocative.
During cross-examination the father made it clear that he had no intention of attempting to communicate with the mother at the moment. He said “I’m scared to write her name. I’m scared to know her telephone number.”
I will now return to the primary considerations in s.60CC (2) which are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S.60CC(2A) provides that in applying the considerations in s.60CC(2) the court is to give greater weight to the considerations set out in s.60CC(2)(b).
The mother is concerned that if X spends a significant amount of time with the father he may be turned against her and I agree that there is some risk of that.
The father has a very poor view of the mother. He told the report writer in March 2016 that his concerns about her were that she was uneducated and lived a welfare lifestyle; that she should be charged with criminal neglect for not taking X to the doctor after the tripping incident. X told the report writer that his father thought Y was a dickhead and Mr J was a dickhead.
The mother told the report writer in March 2016 that recently she had seen the father and X in the street in (omitted) and slowed to acknowledge X. The father promptly put his hand across X’s face to prevent him noticing the mother. The father agreed that this occurred.
The father is being very careful at the moment not to do anything which might lead to him facing more criminal charges but there is nothing to stop him speaking badly of the mother to or in front of X and there is a considerable risk that if X spends extensive time with the father he might become infected by the father’s view of the mother, especially if he perceives a power imbalance between his parents with the father appearing the stronger, which is quite possible given the father’s very forceful personality and the mother’s passivity.
The family report writer said as follows about the father:
The mother does not raise any significant safety concerns for X in the care of the father, however there are some concerns that the father has at times become so focussed on the mother and her perceived transgressions that he is not able to view things from the perspective of X, nor to recognise that the high conflict may impact on the reliability of statements made by X. There are also concerns that he is making inappropriate comments to X about people in the mother’s household. In addition there are further concerns raised in the subpoenaed material as to the manner in which the father interacts with others (that is, in an aggressive and verbally abusive manner) which accordingly creates a heightened risk that X will be exposed to such behaviour if he is in the care of the father.
Regardless of the nature of the future parenting arrangements, I am of the view that the father’s belief in the (alleged) problems in the mother’s household are to such an extent that there will be a continuing pattern into the future of the father making allegations about X’s safety in the mother’s household, perhaps to the extent that he withholds X from the mother’s care and/or to the extent that as X gets older he will become aligned with the father. The father’s actions in this regard are likely to have a salient impact on the mother’s emotional state and coping capacity.
I agree with the opinion that there is a considerable risk that if X spends extensive time with the father his ability to have a meaningful relationship with his mother may be compromised.
There was nothing to suggest that the mother spoke badly about the father to X except perhaps to tell him that the father was naughty and she has agreed to X spending extensive time with the father in the past. She has the capacity to promote a relationship between X and the father.
The mother did not suggest that the father was likely to physically harm X or neglect him. X may in the father’s company be exposed to confrontations with others and there is a risk of the father using derogatory taunts at changeover although that second risk is probably slim while the ADVO is in force.
Provided that nothing happens at changeover, I do not consider that there is an unacceptable risk of X being exposed to abuse neglect or family violence in the father’s care. I say unacceptable risk rather than no risk because the father does not just act out toward the mother. He has separately confronted Mr J. There is a risk but it is not so high that the father should not see X.
The father did not suggest that the mother would physically harm X and I do not accept that she is likely to neglect his medical needs notwithstanding the father’s complaint that she did not promptly attend to the child’s circumcision operation nor do I accept that she does not feed him adequately.
The father insisted that Y posed a risk of harm to X. He alleged in his affidavit filed in January 2016 that X received a head injury when Y had tripped him down the back stairs. He told the report writer in March 2016 that Y had become quite violent and had kicked X in the shins and that X had told him that Y had choked him.
The father took X to the police station to report the tripping incident and the police notes record as follows:
The father reported this to police on 3 January 2016. Police observed red marks and two small scratches to the left side of his face near his eye area. Police noted that X was running around playing in a rough manner. X reported to police that “[blank] tripped me”. Police noted that X appeared not upset or affected by the incident. Police informed the father that they believed it was normal sibling play. The father provided information to FaCS about the incident which they determined did not meet the threshold for risk of significant harm and a child protection report was not recorded.
The mother said that X and Y just played and that the incident on the stairs was an accident.
I do not accept that any bruises cuts or grazes (to the head or otherwise) which the father has observed on X have been deliberately inflicted or that X is at risk of harm from Y. X and Y played together happily in March 2016 and the report writer saw no sign of aggression or hyperactivity in Y. She said as follows:
Throughout the day Y was observed to be calm and to be able to concentrate and to play for a decent amount of time on one activity.
I do not accept that X is likely to be subject to neglect, abuse or family violence in the mother’s care.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act the court is required to apply a presumption that the parties have equal shared parental responsibility for X absent a finding that one of the parties has abused the child or committed an act of family violence.
The father has committed many acts of family violence and the presumption does not apply.
The father sought an order for equal shared parental responsibility and the court can make such an order even though the presumption does not apply. However the report writer did not recommend that the parties share parental responsibility. She said as follows:
There appears to be some agreement that the parents will jointly share parental responsibility for X, however this may be problematic given the high conflict and non-communication in the parental relationship. It may also act to heighten the conflict between the parents. [16]
[16] Family Report dated 22 March 2016, paragraph 70.
I am satisfied that the parents have no capacity to communicate and the mother should not be required to communicate with the father when he treats her appalling. He regularly attempts to bully and intimidate her and she said as follows in her affidavit:
While we have had shared parenting decision making for X has been problematic due to the strained relationship between the Respondent and me. It is quite hard to try and talk to him sometimes, as he tries to control the conversation. It is very difficult as he belittles me and tries to put me down. It’s very hard to ask him a question and actually get an answer. He avoids answering. He would answer a question with other questions.[17]
[17] Mother’s affidavit paragraph 158
I am satisfied that the mother is capable of making good decisions for X in terms of education, religious education and health care especially when some stress is removed from her by the conclusion of these proceedings and moreover, the father conceded during final submissions that X should live primarily with the mother. It is appropriate that I make an order that the mother has sole parental responsibility for X.
Conclusion
In the March 2016 Family Report the report writer said as follows:
There is deep mistrust between the parents, ongoing high conflict between them (to the extent that police have been repeatedly involved), there is no communication between the parents, one parent has safety concerns for the child in the other household and the parents present as having very different parenting styles. These factors clearly contra – indicate a shared care arrangement continuing into the future.
All of the remarks made by the report writer in support of her conclusion that shared care is not an appropriate outcome in this case are valid based on the evidence before me and I agree wholeheartedly that X should not live in a shared care arrangement. The parents do not communicate at all and when they did communicate prior to the ADVO they did not communicate productively. The father has committed acts of family violence and when it suits him he is verbally abusive to the mother and disrespects her and there is a considerable power imbalance between the parents.
These parties do not have the capacity to successfully implement a week about shared care arrangement especially once X commences school.
The report writer recommended that X live with the mother and the father did not press for shared care or oppose X living with the mother. In the end he sought to spend time with X four nights per fortnight, three in one week and one in the other each fortnight.
The father has a good relationship with X and he feeds and clothes him appropriately and does enjoyable activities with him. However X needs to be shielded as much as possible from the father’s intensely negative view of the mother, the maternal grandmother, Y, Mr J and whoever else the mother might choose to associate with in the future. It is likely to do him psychological harm if he is regularly exposed to denigration of the mother he loves, the brother he loves and the grandmother he loves.
These considerations point to the outcome proposed by the Independent Children’s Lawyer, which involved more restricted time, as being the appropriate outcome for X. He proposed a weekend including one overnight each fortnight and no holiday time until X was 8.
If these orders are made it will maximise the time X spends with his mother who he loves and his brother Y who he loves. The mother has some fragility with her mental health and Z’s situation is likely to continue to cause her worry but the report writer observed a change in her from 2014 to 2016, she has supports in the community and from her mother and once the stress of these proceedings is removed there are good prospects that she can help X adjust to a change in his circumstances.
The mother proposed that an order be made for X to spend holiday time with the father. In some circumstances I might defer to a parent’s preference in this regard but in this case I am really concerned about the risk of X being led astray by the father’s bad attitude to the mother and poor behaviour. I intend to do as the Independent Children’s Lawyer proposed and not order holiday time until 2020. However I will (with some misgivings) make an order that X can spend time with the father as otherwise agreed between the parties in writing.
X currently attends day care one day per week while he is with the father and the father sought an order that the mother enrol X in day care and further that she enrol him to attend on Thursday and Monday so that drop off and pick up could be from the day care centre.
It would be good if X could continue to attend day care but I am not going to order that the mother do this. It is important that she has autonomy to make this choice without the father dictating it and it is also important that she is not placed under financial stress. The father is not paying child support and should not be able to dictate to the mother about how she spends her money.
The father also sought an order that X be enrolled in an extra-curricular activity. It would be good if this could occur also but again I am not going to order the mother to do it.
The father proposed that an order be made that if Z returned to live in the mother’s home that the orders be immediately reviewed. I am not prepared to make that order nor do I consider it necessary. Z does not pose a risk of physical harm to X. It would be undesirable if Z returned to live in a shed at the mother’s premises and used cannabis there but I am not prepared to make an order that these orders be reviewed simply because Z returns to the mother’s home.
The father sought an order for telephone communication. I do not intend to make this order. X is too young to manage telephone communication himself and it is undesirable that the mother be placed in a position where she has to deal with the father making telephone calls to her home.
There is a reasonably high risk of further proceedings in this matter. The father has very strong views about a range of things and an obsession about controlling the mother’s behaviour in respect of things such as registering a motor vehicle and reporting circumstances to Centrelink.
The prospect of further proceedings cannot be ruled out but if there are further incidents and the father is found to have unjustifiably made trouble it could result in a further reduction.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 28 June 2016
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