Hobb & Arlington
[2023] FedCFamC2F 24
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hobb & Arlington [2023] FedCFamC2F 24
File number(s): ADC 4959 2018 Judgment of: JUDGE MCGINN Date of judgment: 16 February 2023 Catchwords: FAMILY LAW - parenting orders – time spending with four-year-old child – child’s health needs – applicant has no present relationship with child – applicant has only met child on one occasion – applicant’s failure to undertake courses required by contact centre – history of family violence between applicant and respondent – respondent’s fear of applicant justifiable and foreseeable to have impact upon child’s welfare – applicant experiences blackouts when angry – need for post-separation and parenting courses and counselling prior to consideration of any further parenting orders – professional support likely to be needed before applicant commences to spend time with child – time spending application dismissed – orders with injunction – orders as to completion of post-separation parenting courses and counselling prior to any further application to vary present orders Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)
Intervention Orders (Prevention of Abuse) Act 2009 (SA)
Division: Division 2 Family Law Number of paragraphs: 245 Date of last submission/s: 25 November 2022 Date of hearing: 17-19 May 2022, 24-25 November 2022 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: Fjs Lawyers Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2959 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HOBB
Applicant
AND: MS ARLINGTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE McGINN
DATE OF ORDER:
16 February 2023
IT IS ORDERED:
1.That the Respondent mother do have the sole parental responsibility for the child X born in 2018 (“X”).
2.That X do live with his mother.
3.That the father’s Application that he spend time with X do stand dismissed.
4.That the father do communicate with X by way of card, gift and present by prepaid post to the postal address provided in writing by the mother:
(a)in each year for the occasions of X’s birthday; and
(b)in the period from 1 December to 22 December in each year for Christmas Day;
5.That the mother do advise, in writing, the father of the postal address and/or any change in that address for the purposes of him giving effect to Order 4:
(a)firstly within 7 days of the order; and
(b)within 14 days of any change in the mother’s address as otherwise provided under this order.
6.That the father be restrained and injunction is granted restraining him from:
(a)attending at the child care or any other care or educational facility at which X may be present from time to time; and/or
(b)approaching within 50 metres of X; and/or
(c)removing X from the care of the mother.
7.That before any application is made by the father for any variation of these orders to otherwise communicate or spend any time with X or for any other parenting order in respect of X, that the following be undertaken and completed by him:
(a)the course “R Course” with Region G Children’s Contact Service at their offices with a worker from that Service’s H program; and
(b)the online course “Young Children in Divorce and Separation” followed by
(i)the obtaining of a completion certificate in respect of that online course; and
(ii)the attendance at at least two or, if requested by the team leader of Region G Children’s Contact Service, more sessions with an H Program worker; and
(c)completion of “J Course” group program or equivalent course content via one-on-one individual counselling sessions with a specialist family violence worker as nominated by the team leader of Region G Children’s Contact Service; and
(d)swear or affirm and serve and file an affidavit annexing a certificate and/or correspondence (including email) as to completion of each cause and/or course of counselling from any worker and/or team leader providing any such course in support of any such application for variation of parenting orders.
8.That in the event that
(a)any of the courses referred to in Order 7 are no longer available at the time that the father seeks to undertake them; and/or
(b)the workers to provide counselling referred to in Order 7 are no longer available;
then and in such event the father undertake and complete such courses and undertake such counselling with such workers or counsellors, as the case may be, as the team leader of Region G Children’s Contact Service nominates in writing to the father.
9.That for the purposes of clarity, the requirements of Orders 7 and 8 are to stand as being in addition to any requirement to undertake and/or complete any pre-action procedure or its equivalent that is otherwise required by any law (including the Family Law Act 1975 (as amended) (“the Act”)) or rule or regulation that may apply from time to time.
10.That the mother’s and father’s Applications for parenting orders do otherwise stand dismissed.
11.That the orders for the appointment of an Independent Children’s Lawyer do stand hereafter discharged.
12.That pursuant to s 65 DA(2) and s 62B of the Act particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders and details of assistance to comply with these orders are set out in the attached Fact Sheet which forms part of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hobb & Arlington has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
INTRODUCTION
These proceedings concern parenting orders in respect of the parties’ only child their son X born in 2018, who will turn 5 years in 2023.
The parties’ relationship was intermittent, or as counsel for the father puts it “on and off”, comprising a total period of cohabitation of about 12 months spread over six periods ranging from a couple of weeks to 6 months over a time period spanning from October 2015 to November 2017.
The parties separated before X was born and he has only met his father once at a Contact Centre in November 2020.
THE ISSUE AT TRIAL AND THE ORDERS TO BE MADE
At the commencement of the trial the father conceded that there should be an order for sole parental responsibility of X to be made in favour of the mother.
There was no dispute that an order should be made that X live with his mother.
It is in X’s best interests that orders be made in favour of his mother as to sole parental responsibility and that X live with her.
The question posed by the parties’ competing applications for parenting orders was whether X should spend time or communicate with his father and, if so, under what terms and conditions should that time take place and, if commenced, how that time should develop as X grows up.
For the reasons that follow, I have determined that it is in X’s best interests that the father’s application to spend time with X should stand dismissed. Furthermore, before any application for X to spend time with his father is brought in the future the father should, in addition to any other pre-action procedures required by the Family Law Act 1975 (as amended) (“the Act”) or any other rules or regulations under which such an application may be brought, have completed courses identified in the Children’s Contact Centre report of January, 2021 being annexure -3 to the father’s affidavit sealed 9 February 2022. Certain injunctive orders should also be made to operate to ensure that the mother’s ongoing parenting of X is not unduly hampered by the prospect of the father seeking to interfere with X living with his mother and for limited communication between X and his father.
BACKGROUND
X has had a medical condition since in utero which requires close supervision.
His father’s awareness of this condition and its management is limited. He has taken no steps to inform himself in any sufficient detail of either the condition or, more particularly, its management which, on his case in the course of his submissions, was admitted to be significant.
Since X's birth in, 2018 X has only met with his father on one occasion. That occasion occurred on 29 November 2020 at a Children's Contact Service pursuant to orders made with the consent of the parties on 12 March 2020.
X does not know his father as his "dad" or "daddy".
In effect the father is a stranger to X.
X has lived the whole of his life with his mother.
There is no functioning relationship between the parents in this matter nor do I find that there is ever likely to be.
The mother’s household comprises of herself, X and her daughter by a previous relationship, K, who was aged 10 at trial.
From the commencement of the present proceedings in November 2018 until October 2021, the mother was in a relationship with a Mr C who was referred to in the evidence at trial at various points.
The mother continues to enjoy an amicable relationship with Mr C as she does with K’s father.
When proceedings were commenced the father sought and obtained an order for paternity testing in respect of his paternity of X although the mother did not dispute the father’s paternity. His paternity was confirmed by December 2019 at which time the father then sought to commence to spend time with X at a Children’s Contact Service.
At the time of trial the father lived on his own.
The father has one other child.
That child is F, who is aged nearly two years at trial. The father had spent time with F until April 2021 and then that time spending had then ceased. The father has not brought any application in respect of him spending time with F and had not done so at the date of trial.
F’s mother is Ms E who was a witness at the trial of this matter and was called as a witness in the mother’s case.
EVIDENCE RELIED UPON
The Applicant father relied upon his trial affidavit of 9 February 2022, his Amended Initiating Application of the same date and an affidavit of his father Mr L sworn 8 February 2022 and sealed 9 February 2022. A case outline sealed 14 April 2022 was also to provide to the Court on the father’s behalf.
The mother relied upon her Amended Response to Initiating Application sealed 14 March 2022, her trial affidavit of 14 March 2022 and the affidavit of Ms E affirmed 1 March 2022. A case outline was provided on the mother’s behalf on 22 April 2022.
The Independent Children’s Lawyer relied upon her affidavit sworn or affirmed on 22 April 2022 and an Outline of Case document was also provided on behalf of the Independent Children’s Lawyer on 26 April 2022.
Each of the parties and the witnesses Mr L and Ms E were cross- examined. The Independent Children’s Lawyer was not required for cross-examination in relation to her affidavit.
The mother gave her evidence generally in a straight forward manner. The husband’s father Mr L also gave his evidence in a straightforward manner. However in the circumstances of this matter, I have come to regard his evidence to be of little weight.
For the reasons that follow I prefer the evidence of the mother and Ms E where it conflicted with the evidence of the father.
FAMILY VIOLENCE
For the reasons given below I find that there is a history of family violence between the father and the mother and between the father and Ms E in respect of which the father has been the perpetrator of that family violence. The family violence both towards the mother and Ms E is of a very serious nature both on account of the acts of violence, the threats and taunts associated with those events and the impact that it has had upon each of Ms E and, more particularly, the mother.
THE FAMILY VIOLENCE ORDER THAT EXISTS BETWEEN THE MOTHER AND FATHER
There is a Final Intervention Order that exists between the mother and father made on 26 July 2019 (being a variation of an earlier final intervention order made in 2017).
That intervention order:
(a)sets out that the persons protected by that order are the mother and her daughter K;
(b)records that the order is declared to address a “domestic violence concern”;
(c)precludes the father in respect of the protected persons from assaulting, threatening, harassing, intimidating, following, surveilling, communicating with (subject to exceptions including in accordance with orders made under the Act), being within 100 metres of places where protected persons stay, reside or work, are educated or cared for and publishing material about protected persons on the Internet or by electronic means; and
(d)was made in South Australia under the Intervention Orders (Prevention of Abuse) Act 2009 (South Australia).
As the Intervention Order was made under the Intervention Orders (Prevention of Abuse) Act 2009 (South Australia) and was an order declared to be made for a “domestic violence concern” that order is to be understood to have been made as the father had committed or it was feared he would commit an act of domestic abuse.[1]
[1] Intervention Orders (Prevention of Abuse) Act 2009 (SA), ss 15A(4)
That Intervention Order remains current and is an order which is to be recognised as a “family violence order” for the purposes of the Act.
The father conceded in his trial affidavit evidence that since the parties’ separation in November 2017 that he has been convicted of a number of counts for breach of the Intervention Order.
The father seeks in his affidavit and oral evidence to minimise the significance of the existence and breaches of intervention orders by saying that the breaches for which convictions were recorded were made as they “predominately relate to my attempts to make arrangements to spend time with X”, are justifiable for him having been frustrated with the mother, in his view, choosing to keep X out of his life. The father further stated that he did not contest the making of the Intervention Order and that the Intervention Order was made in his absence.
In all of the circumstances of this matter, I find that the father’s admitted breaches of the Intervention Order are matters of significance and that those breaches are not justified or of diminished significance by reason of any of the circumstances referred to in the father’s evidence.
As Exhibit 1, at pages 35 and 39 (of 72 pages) makes plain, the father was served with Interim Intervention Orders in November 2017. Those Interim Orders ultimately came to be the basis of the Final Intervention Order. It appears that the father chose despite service not to contest and consequently not be present at the making of the Final Intervention Order. The father’s conduct in that regard does not diminish, in the circumstances of this case, the need for the Intervention Order to have been respected in all its facets by him.
Insofar as the father claims that contraventions of the Intervention Order arose on account of him making attempts with the mother to spend time with X, this does not otherwise excuse or minimise breaches of the Intervention Order by him.
The Intervention Order represented an intervention by a public authority - a court no less - into the manner in which the father was obliged to conduct himself towards the mother and K.
The admitted breaches of the Intervention Order should be regarded as demonstrating the willingness of the father to disregard authoritative direction as to the manner in which he conducts himself towards X’s mother.
In addition to the conceded breaches of Intervention Orders for which the father has been convicted, there has also been a number of other breaches of the order.
MS E AND THE FATHER’S RELATIONSHIP WITH HER
Ms E and the father lived together from about March to November 2020.
Ms E gave evidence by affidavit and was cross-examined.
Ms E conceded under cross-examination that she was not a neutral witness. That concession by her was unsurprising and not to be considered to be reducing the veracity of her evidence given that she has been a victim of an assault by the father resulting in his conviction for that assault.
Her evidence enables me to understand and to find on the balance of probabilities that the father's relationship (both during the time that they were living together and following their separation) with Ms E was marked by arguments, physical altercations, threats, family violence and, by reason of the father’s conviction in the Magistrates Court of South Australia in April 2022 on his plea of guilty, an aggravated assault which occurred in March 2021. Some of that violent conduct took place in the presence of their infant child F which was a needless and reckless display on the father’s behalf in respect of both F’s physical and emotional well-being.
When first cross-examined at trial by the mother’s counsel in relation to matters concerning Ms E, the father, in what I find was an open act of disdain and contempt for both the mother and Ms E, winked at counsel and said “We’ll get to that”. Both his answer and his conduct did him no credit.
At the time of the swearing and filing of the father’s trial affidavit on the 9 February 2022 the father did not make clear why he refrained from making the necessary admission about his assault of Ms E in March 2021. I find that he deliberately chose not to do so at the time of his swearing of his affidavit. I find that in making that election the father sought to be strategic rather than truthful in his dealings with this Court and with the mother in respect of the parenting applications pending before this Court.
In giving his evidence in the manner that he did on this topic, I formed the view that the father put forward what he thought this Court wanted to hear now that matters had reached trial rather than constituting a genuine endeavour to reflect upon and properly appraise his past conduct. His conduct in the Court proceedings in this regard only engenders mistrust between X’s parents and uncertainty in the mother’s mind as to the reliability of the father in any future dealings that he proposes to have with her as X’s mother.
The fact of the conviction leads me to find on the balance of probabilities that the father's conduct during the course of his relationship with Ms E was marked by family violence which continued following his separation from her in November 2020.
I accept Ms E’s evidence where it conflicts with that of the father.
Ms E also has a nationally relevant Domestic Violence Order of 21 June 2021 in respect of the father made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The father’s conduct towards Ms E enables me to find that the father’s conducts follows domestic patterns and is to be regarded as persistent and capable of repetition by him.
THE FATHER’S ONLY MEETING WITH X
Of crucial importance in this case are the circumstances of the father’s first and only meeting with X which took place at the B Children’s Contact Service at Suburb M, South Australia (the “Contact Service”) on 29 November 2020.
This time took place pursuant to interim parenting orders made on 12 March 2020 in these proceedings with the consent of the parties for supervised time by the father with X.
The father’s time with X on 29 November 2020 at the Contact Service can be generally, though not entirely, regarded as having been a successful introductory period between X and his father.
Following the father having some supervised time with X on 29 November 2020 the father then debriefed with the supervisor of the Contact Service.
Each of the mother and father, although with different aims in mind, put the Report of the B Children’s Contact Centre Service into evidence through their respective trial affidavits.
What occurred in that debriefing is set out at page 4 of the Contact Service report pertaining to that visit. That portion of the report says:
“[Mr Hobb] [that is the father] stated that [X] had said the word Dad during the visit. [Mr Hobb] said that he is [X]’s only father and that if he found out [Mr C] ([Ms Arlington]’s [that is the mother’s] partner) was being called Dad or was on site during the visits he would “smash his fucking face in.” [Mr Hobb] said that he should be the only person called Dad and that of all the men in [X]’s life it should be him that gets the most time with him. [Mr Hobb]’s facial expression changed and he appeared angry and clenched his fists together. [Mr Hobb] went on to say that he was sure that the supervisor was about to approach territory that he was not liking around the word “Dad” and that the supervisor might say something that angered him. The supervisor said that this was true so they would leave it for now. [Mr Hobb] expressed that if [Mr C] was on site or in the car park and he saw him he would leave.
When asked what had occurred between him and [Mr C] in the past to make him feel this way, he talked about sending him messages when [Ms Arlington] and [Mr C] initially got together asking for him to send pictures and information about his child, [Mr C] refused to do this.
[Mr Hobb] then spoke about his new baby and the things he was looking forward to that he missed out on during [X]’s first few years of life. [Mr Hobb] waited the appropriate amount of time and then left the service.”
The father in his evidence has acknowledged his behaviour that occurred on that occasion but says it needs to be put into context. That claim is unjustifiable. I shall turn to those claims of context later in this judgment.
The father’s conduct led the Contact Service to then suspend their service. Later in July 2021 the Contact Service made written recommendations as to courses and counselling the father should undertake before any consideration of resumption of supervised time be reviewed.
FATHER’S FAILURE TO UNDERTAKE THE RECOMMENDED PARENTING AND ANGER MANAGEMENT COURSES AND COUNSELLING BY MARCH 2021
By 9 March 2021, when the matter was then before Her Honour Judge Kari (as Her Honour then was), it was noted in orders made that day that the father’s solicitor indicated to the Court that the Contact Service would be willing to resume the father’s time spending at a contact centre with X if the father engaged in counselling. Each of the parties were legally represented at that hearing.
I find that the Contact Centre’s requirements as to courses and counselling had first become known by the father by March 2021. The initial notice was later followed by the written correspondence of July 2021 referred to above.
On 18 August 2021 there was another hearing before the Court at which correspondence from the Contact Service as to courses and counselling was referred to. Each of the parents were also legally represented at that hearing.
The father did not and has not adopted any of the course and counselling recommendations made by the Contact Centre.
By the time he commenced to give evidence at the trial of this matter on 17 May 2022 the father had taken no steps to undertake any of those courses or counselling.
The father gave evidence that there was a "lot going on" which prevented him from taking any such steps. In particular the father indicated the fact that he was facing criminal charges in the Magistrates Court concerning the aggravated assault of Ms E precluded him from taking any set such steps.
The charges the father was facing in the Magistrates Court were laid against him in about mid 2021 after reports were made to the police by Ms E upon the making of an Interim Domestic Violence Order against the father.
As recorded below, those charges were finalised when the father pleaded guilty to them and was convicted in respect of those charges on 20 April 2022.
There was no evidence to satisfactorily explain how criminal proceedings pending in the Magistrates Court concerning the aggravated assault of Ms E precluded the father from taking any steps whatsoever in commencing or undertaking such courses or counselling identified by the Contact Centre or that the Court had been informed in August 2021 that would be undertaken by the father.
The father’s explanation that he thought that he might be gaoled as a result of the criminal proceedings pending in the Magistrates Court does not constitute in my view sufficient reason for the father to have taken no steps in respect of the recommended courses or counselling. That only tells me what he was considering he would elect to tell this Court in due course about the circumstances constituting the change.
I find that the father considered the undertaking of such courses by the time he swore his trial affidavit on 9 February 2022 to be unimportant and the recommendations that he complete those courses and receive counselling to also be both inappropriate and unimportant.
It emerged during the evidence given by the father under cross-examination on behalf of the Independent Children’s Lawyer that he partook in undertaking “modules” in an online environment over a week in late 2021 in what appeared to be a requirement of the Magistrates Court proceedings and which may have dealt with anger management. He did not raise that attendance in his trial affidavit of February 2022.
When challenged under cross-examination that he did not include reference to this “module” course in his trial affidavit because he did not consider it important to identify his participation in this course, the father denied that this was so. I do not accept his denial on this topic.
I find that the father thought so little of the “module” course and found it so inconsequential in effect that the father did not consider the course and its effect upon him warranted any mention in his trial affidavit. In his oral evidence he could not identify any insight he had gained from participation in doing that “module” course. I find that the father was not looking to benefit from any such course in any way that would modify his attitudes and behaviours towards the mothers of his children.
Specific course and counselling interactions had been put forward by the Contact Service in writing by July 2021. The courses and counselling are identified in the Independent Children’s Lawyer’s affidavit of 22 April 2022.
In the Court’s judgment in these proceedings of 18 August 2021 at paragraph 40 it was said in relation to the Contact Centre Report and correspondence from that Centre detailing the coursework to be undertaken by the father (before the Centre considering reassessing the Centre’s willingness to facilitate the father’s supervised time with X):–
“I am told through his counsel today that the father is prepared to address those matters prescribed by the children's contact service".
At paragraph 43 of the judgment, the Court recorded: –
"Ultimately, the father’s solicitor indicated to the Court that, whilst it remains to be seen whether there is to be an Amended Response filed by the father, or some other application in relation to the paternal grandfather, the father's position and the fallback position is that he will comply with those requirements prescribed by the children's contact service."
As at the date of the commencement of the trial proceedings in this matter on 17 May 2022 when the father went into his oral evidence he said still had not commenced participating in or having completed any parenting course or counselling or taken any steps to do so despite the Magistrates Court proceedings constituting the “lot going on” having been concluded on 20 April 2022.
The father said in his evidence that in discussions with the Contact Centre he was informed that he would not be able to commence such a course for 6 months. The Contact Centre Report is dated January 2021. This suggests that the parenting course could have been commenced in July or August 2021. There is no evidence the father took any steps either to get in a queue to commence in July or August 2021 or any time since.
I hold to that view despite the Court having been told as noted in the Court’s judgment of 18 August 2021 at paragraph 39 that the father had by then enrolled in such a course.
I reject the father’s evidence that threats to his life prevented him across 2021 from taking steps to participate in and complete courses. Those threats did not prevent him from doing the “module” course.
I find that the father determined that he would not do the courses identified by the Contact Centre as a result of him not wishing to take direction as to what to do and in being unable to take direction he is unable to be child focused.
The father's demonstrated lack of ability to take any meaningful steps in participating and/or completing the recommended courses speaks adversely of his attitude to the responsibilities of parenthood.
It is important to note that amongst the recommendations of the Contact Centre Report was a recommendation that the father undertake an anger management course.
The father was challenged in the first part of the trial hearing in May 2022 about his failure to participate in such a course which he then said he did, a call was then made for any certificate confirming his completion of such a course.
At that time the father said that he had completed such a course and that the certificate should have been included in his trial affidavit affirmed 9 February 2022 whilst conceding there was in fact no reference to his completion of this course in his trial affidavit.
He conceded that if he had learnt anything by attending at an anger management course he would have put it before the Court through his trial affidavit
The father gave evidence that he couldn't recall the name of the course but that he had a certificate in an email in his phone in his pocket. He also said that he had completed the course at the end of the previous year (2021). However, as noted above, no certificate was produced in answer to a call, either at that time (May 2022) or upon the resumption of the trial in November 2022.
I find that the father only became aware during the course of his cross-examination in May 2022 that the completion of the anger management course was an important matter.
The failure to produce the certificate and the failure to describe the benefit had from having done an anger management course when combined with my observation of the father giving evidence on this topic leads to the view that on this topic he dissembled.
The lack of provision of the relevant certificate only serves to confirm my view that I would otherwise form, that no effective anger management course had been completed by the father by May 2022.
On the balance of probabilities I am not satisfied that the father had by the commencement of the trial in May 2022 either completed an anger management course or had gained any benefit from such a course. Any evidence of the father to the contrary should be rejected.
The father in my view had a capacity as well as the opportunity to undertake the Contact Centre recommended courses and associated counselling but chose not to do so. The reasons that the father gives in his trial affidavit for not doing so are not reasonable nor are they child focussed.
His explanations as to an inability to undertake the recommended courses are unconvincing and the Court is of the view that he did not undertake such courses because he considered it to be “unfair" rather than properly serving either his or X's interests. This demonstrates a lack of insight on his behalf as to his parenting capacity and an inability to understand and perceive the needs of X and also of X’s mother who has the principal responsibility for caring for X on a day-to-day basis and to adopt appropriate assistance and guidance in refusing time with X.
The father impresses as a person who does not take to being directed or lead as to how to conduct himself in relation to his dealings with the mother or X even though the need for such direction is readily apparent to others seeking to assist his relationship with X as was the case with the Contact Centre.
In the second instalment of the trial hearing in November 2022, the father produced in re-examination two certificates for courses dealing with matters other than dealing with anger management and none of which were recommended by the Contact Centre. Between the initial part of the hearing in May 2022 and the resumption of the taking of evidence in November 2022 the father commenced and completed in August 2022 a course conducted by N Families called “O Program” and had also commenced on 25 October 2022 a “P Course” (also conducted by N Families) to be concluded on 6 December 2022.
The father did not identify either of those courses as dealing with anger management. I am not prepared to infer that such courses were directed to that topic.
In November 2022 the father gave evidence under the cross-examination of the Independent Children’s Lawyer that he did not think there existed a problem with the management of his anger in March 2021. This was at a time when the Contact Centre Report of November 2020 was known to the father and an acknowledgement had been given to the Court that the father would follow Contact Centre’s recommendations and he had assaulted Ms E (to which he later pleaded guilty). His answer to the Independent Children’s Lawyer did him no credit and displayed an almost total lack of insight about the nature and seriousness of his behaviour at the Contact Centre and towards Ms E and the mother.
The courses undertaken by the father were without recommendation and of his own volition and without any notice in his trial affidavit or oral evidence that he would be doing so. His commencement of those courses and completion of one of them was in my view an exercise in expedience and a token or emblematic attempt to persuade me that the father now took seriously the allegations about his past violent behaviour and its impact upon others and the need for him to start undertaking steps to redress that behaviour and its effect upon others including X.
The father’s evidence that he thought he would do other courses that were longer than those recommended by the Contact Service only demonstrated that he cannot accept criticism and direction in relation to his behaviour. I do not consider that he is best placed to make an assessment of what courses he should do and I reject any implication conveyed by his evidence that the courses selected by him were equivalent to the recommendations made by the Contact Centre.
His stated lack of confidence in the Contact Centre found in his trial affidavit of February 2022 contradicts the commitments given to the Court on his behalf in March and August 2021. I do not accept that he has a reasonable basis for lacking confidence in the Contact Centre.
The father’s evidence that he now promotes a different Contact Centre – administered by a different organisation from that which administered his supervised time with X in November 2022 in the event that the Court should now consider supervised time at such a centre appropriate – is rejected for similar reasons.
There is no reliable evidence that the Contact Centre dealt with the father inappropriately. I reject the father’s trial evidence at paragraphs 38 to 41 as providing any proper basis for thinking that the Contact Centre did anything other than act in X’s interests in providing its service, debriefing with the father and creating its report.
The father’s acknowledgements in his evidence in November 2022 that Ms E and/or the mother might have been frightened by his past behaviours towards them comes as “too little too late”. I do not accept those acknowledgements to be reflecting any substantial, deep-seated reform of his capacity to not behave violently in the presence of or towards his children or their mothers.
I accept the Independent Children’s Lawyer’s submission that although the father’s attendance at the N Families courses are steps in the right direction, those steps remain insufficient to satisfy me to make orders at this time for X to spend time with his father either on a supervised or unsupervised basis.
Those steps are insufficient because coursework as disclosed by the evidence of the Contact Centre’s letter needs to be supplemented with counselling with a worker who would provide the father (and perhaps others) with the benefit of personal and direct feedback and assessment of any progress that the father might be making in partaking or having completed courses. Mere attendance at courses in the circumstances of this matter cannot be equated with a satisfactory reforming of attitudes or the development of new insights or capacities on behalf the father.
The father can only be seen to have simply acknowledged that he needs help with anger management and his approach to parenting in that he has started to undertake courses but not counselling.
However, at the same time his motivation for doing so appears to be in seeking to tell this Court what it he thinks the Court might want to hear rather than being genuinely motivated in reforming his attitudes and capacity for avoiding unhelpful behaviour for the benefit of X and the mother.
The father has sought and has acted in a way that has put his needs before X’s interests by him in effect self-prescribing what courses, with whom and when, that he would deign to complete. My view is that he should not be regarded as the best assessor of what courses or counselling is appropriate for him to undertake and he needs to develop and demonstrate an ability to take directions in relation to his behaviour.
THE FATHER’S LACK OF PARTICIPATION IN X’S LIFE IN ANY MEANINGFUL WAY DESPITE THE OPPORTUNITY BEING AVAILABLE TO DO SO
Since the filing of proceedings on the father's behalf in November 2018 the father has not forwarded any material to the mother's legal representatives in respect of X’s birthday or in respect of the celebration of Christmas. Under the Intervention Order between the mother and the father of July 2019 it would have been open for him to do so.
The father gave evidence that he had not made any endeavours of this type on his behalf because he considered that they would be ineffectual as he believed the mother would destroy any material forwarded and so the exercise would end up being a waste of his time.
The mother for her part gave evidence that should she have received such material, she would have stockpiled it to provide to X at some time in the future when it could be adjudged by her to then provide an appropriate explanation as to whom the gift had been provided by at the time of the provision of material. Implicit in the mother’s position is the retention of an ability by her to vet and, if she were to deem it appropriate, to withhold material from X.
The evidence of each of the parties on this topic confirms the father’s deep seated mistrust and suspicion of the mother as not acting in X’s interests in her dealings with the father and her fear of him acting inappropriately in respect of X.
I am satisfied that the mother should retain ability to consider and if necessary to withhold material from X that is sent by the father if that material is, in her view, inappropriate and that she would otherwise make the material forwarded available in an appropriate way.
THE MOTHER KEPT THE FACT OF X’S BIRTH FROM THE FATHER
As noted earlier, the father did not concede X’s paternity at the commencement of these proceedings.
The father accepted under cross-examination that the mother kept X’s birth a secret from the father as she was trying to keep herself safe.
The father’s complaint in his trial affidavit that the mother prevented his application for parenting orders from proceeding is misconceived and reflects a too ready unwillingness on his behalf to take any responsibility for the difficulties in the relationship between the parties and consequently in his being able to spend time with X. Those difficulties largely arise on account of his conduct towards the mother and his critical and aggressive attitude towards the mother and her role in raising X.
X’S MEDICAL CONDITION
The father’s evidence was that although he was aware that X had been born with a medical condition he had not sought to learn about the condition other than through discussing it with his sister.
The father's answers on this topic were given in a manner that was unnecessarily disdainful of the topic. His answer that “I am not a paediatrician” in response to a question about the extent of his understanding about X’s medical condition betrayed a flippancy that was unwarranted and inconsistent with a capacity to appropriately reflect a need for care and attention as to X’s medical needs both now and in the future.
His evidence did not satisfy that he had taken sufficient steps to adequately inform himself about what was properly conceded in submissions on behalf of the father as significant. As such I am not satisfied that the father as he is presently informed is in a position of sufficient knowledge to be able to meet X’s health needs and I cannot be assured that he would adequately inform himself of them.
THE FATHER’S RELATIONSHIP WITH X DOES NOT PRESENTLY EXIST IN ANY MEANINGFUL SENSE
Prior to 5 December 2019 the father admitted that he entertained "some doubt" as to whether he was indeed X's father. He pressed for a paternity test at the outset of these proceedings when the mother made no contest about paternity.
The father conceded in his cross-examination that he presently has no relationship with X. However, the father went further in giving evidence on this topic and said that he had been "robbed" of that relationship. The terms of his answer and the manner in which he gave it told me the father had an inability to appropriately understand his role and the effect of his actions in giving rise to the circumstances that have resulted in a lack of that relationship.
Since X’s birth the father has only spent time with X on one occasion which occurred at the B Children's Contact Service in late November 2020 as a result of that attendance the Contact Service advised the undertaking of courses and counselling.
In November 2020, on the occasion the father spent time with X, the father said that he was X’s only father and that if he found out that the mother's partner was being called dad or was onsite during the visits he would (as recorded in the Contact Centre report) "smash his fucking face in".
When asked in cross-examination whether he used the words referred to in the Contact Centre report, rather than simply admitting, as he had done in his trial affidavit, that he used those words, the father said that that was “only half of the conversation".
That answer told me he still harbours inappropriately ill feeling towards the Contact Centre in respect of the disclosure of his behaviour on that occasion.
After being taken to the admission contained in his affidavit the father was then questioned whether he was upset and angry at the time that he used those expressions and rather than make an appropriate concession he said that at the time he had been “robbed”. His evidence in this regard disclosed an inability to properly recognise and acknowledge his emotional state at that time and a willingness to inappropriately justify his outburst that took place in the presence of the Contact Centre worker. The father had to be pressed to simply acknowledge that he was upset and angry at the time. Until that acknowledgement the father attempted to conceal and minimise what he truly experienced.
The father conceded in his evidence that he did not pick up in the November 2020 Contact Centre visit (when X was then two years and seven months old) that X, not having yet met him as his father prior to that time, might experience confusion about the father telling X that his father was to be called “daddy" when there had been another male figure in X's life who bore that title.
This evidence disclosed that at the time of the father's first and only physical interaction with X in November 2020, the father lacked insight as to what X's needs might be as a child of two years and seven months.
The Court rejects the father's evidence given under cross-examination that he understood that the question of X’s understanding as to who “daddy" might have been was a delicate situation which he addressed in terms and in a way that addressed X needs. Rather, the Court takes the view that the father was at that time preoccupied with his own feelings and gave preference to those feelings over X’s needs.
I find that the father was likely to be angry to the point of rage and to the point that he did not care whether or not he was jeopardising X’s ongoing relationship with him.
THE FATHER’S EXPERIENCE WITH OTHER YOUNG CHILDREN IS OF LITTLE WEIGHT
The father gave evidence that he had spent time with little children through interactions with friends and family.
This evidence was absent from his trial affidavit and he called no evidence from any of these friends and family as to such interactions with such children.
The Contact Centre Report records some positive interaction between X and his father in them playing together, reading and sharing a smile, laughter and jokes and at times sharing close physical proximity including X giving his father a hug at the end of the session. These are all observations that are to be regarded as welcome.
However, there is also some interactions that I find would have been uncomfortable for X in that X was introduced to matters that would have been sources of confusion or uncertainty for X. Amongst those matters were the introduction by the father of himself as “Dad” and the notion that X was going to have a little brother soon. I consider the raising of these topics to have been a source of discomfort or uncertainty for X although, no distress in X was observed by the supervisor to have occurred.
If the father had gained insight from having spent time with little children it was not on display at all times in his interaction with X at the Children's Contact Service on 29 November 2020.
The observed interaction between the father and X does however indicate that given the appropriate supports X could develop a meaningful relationship with his father.
The father’s evidence of his interactions with little children, when balanced with other matters in all the circumstances, is in my view of little weight in the overall circumstances of this matter.
THE FATHER’S POSITION
The father sought certain orders by his Application. Under cross-examination he indicated that his Application for there being initially supervised time was a position he was promoting which he believed, with the benefit of what I understood to be legal advice, to be a “realistic" position and that he only saw supervision as appropriate if the Court were to deem it necessary.
In the Court's view the father does not genuinely believe that supervised time is either necessary or of benefit for X. The father would not acknowledge that his time should be supervised. Rather, it was something that he should put forward in anticipation of it being simply what he thought this Court would want to hear.
The father's evidence on this topic disclosed his application before the Court as being insincere.
The manner in which he gave that evidence on this topic in my view only confirmed that conclusion.
FAMILY VIOLENCE: INTRODUCTORY COMMENTS
I find that significant family violence has taken place between the mother and father in this matter for the reasons given below.
In considering the evidence on the topic of family violence and the evidence of each of the parties and that of Ms E, some observations need to be made of the father’s evidence under cross-examination as well as that contained in his trial affidavit.
Firstly, the father’s trial affidavit of 9 February 2022 at paragraph 48 says “In spite of the mother’s allegations I have never been convicted of any criminal violence relating to effects of physical violence”.
At paragraph 62 of the same affidavit the father claimed that the offence of aggravated assault against Ms E which occurred March 2021 and which he subsequently pleaded guilty in April 2022 was an act of self-defence.
I find that the father assaulted Ms E and that she was struck and bruised as detailed and shown in her affidavit at paragraphs 81 to 90 (including annexure “–04”).
Ms E’s evidence on this topic was unchallenged. I am satisfied despite other challenges to other parts of her affidavit material that I should accept her evidence as to the assault that was made upon her by the father which gave rise to conviction for aggravated assault.
The father pleaded guilty to those charges. His plea of guilty and the acceptance of a Court of that plea exposes the father’s assertions at paragraphs 48 and 62 of his trial affidavit as untrue.
The father sought on occasions under cross-examination to resile from and disclaim what had been put in his trial affidavit which otherwise appeared to have been included in that affidavit on his instructions. He then subsequently came to acknowledge that he had read, understood and adopted what was in his affidavit on his oath. The father dissembled in giving all of his evidence on that topic.
The father sought to discount his past violent conduct by referring to it as "allegedly" occurring before eventually acknowledging that his conduct towards a former partner Ms E was not a matter of mere allegation as he had pleaded guilty to assaulting her.
His persistence in saying under oath at trial that he had been “allegedly” violent towards Ms E suggested to me the father was given to being formulaic in giving his evidence about family violence rather than candid.
The father gave evidence that he held a belief that the mother and Ms E had colluded and conspired to ruin his life. This was a very serious allegation. Neither the mother nor Ms E were seriously challenged that their respective evidence was the product of collusion or constituted a conspiracy against the father. The father’s allegations in that regard were, in my view, baseless and another endeavour to deflect from him any responsibility for and unjustifiably minimise the effect of, the hurt and harm that he had inflicted upon the mother and Ms E.
This allegation of collusion and conspiracy is rejected.
That the father brought this case of collusion forward also indicated to me that he thought that some form of unfairness was at play in the evidence of family violence being brought forward in this Court and that he was being somehow victimised. His evidence to that effect should be rejected. In bringing that evidence forward the father demonstrated an inability to be focussed on X’s best interests.
The father admitted under cross-examination in seeking to explain his uncertainty as to dates and whether certain events had occurred that he blacked out completely as a result of anger or rage and that he should do something about the blackouts but that he had not done so.
He also admitted in evidence that he should do something about the blackouts but that he had not done so.
His failure to address such an obvious difficulty in relation to his memory and his emotional regulation was not explained.
The father claimed in his oral evidence that these blackouts affected his ability to recall detail.
The father also claimed in his trial affidavit of February 2022, a disability to recall dates and events as a result of the injuries sustained in a motor vehicle accident in 2018.
At one point, the father also gave evidence under cross-examination that he could not recall what had been stated in his trial affidavit as recently as February 2022. In re-examination he gave evidence that he may have an acquired brain injury as a result of the motor vehicle accident and had undergone rehabilitation at a rehabilitation centre in relation to that injury.
The father also said in his evidence that he did not see how either him having acquired such an injury or of him having undertaken treatment for such an injury was relevant to the questions that have to be addressed by the Court in determining what parenting orders to make in this matter.
That answer demonstrated a lack of appropriate insight about his ability to recognise and meet X’s needs both in conducting these proceedings and generally.
In re-examination, the father tended Exhibit 6 being a Separation Summary from the Q Hospital dated as sent in 2018.
That Exhibit does not verify the father’s affidavit and oral evidence on the issue of his inability to recall detail as:
(a)it does not identify an injury to or an effect upon the father’s memory faculty;
(b)it said the father was medically stable on the date of discharge appearing to be 2018;
(c)it simply says after discharge a plan included “BIRU concussion clinic”. I am prepared to speculate (as I was not told directly in the evidence) that “BIRU” is likely to stand for “Brain Injury Rehabilitation Unit” without stating why; and
(d)it comprised only “2 of 3” pages leading me to infer that anything to be put forward that was helpful to the father’s case on this topic was not to be found in the missing page 3 or otherwise and that the two pages tended as Exhibit 6 represented the medical evidence at its highest.
This evidence is far from satisfying me on the balance of probabilities the father suffered a memory deficit of some type recognised by a medical practitioner.
It would have been a relatively simple matter in my view for the appropriate medical evidence to have been brought forward by the father.
The general nature of the medical evidence in Exhibit 6, it’s age and the lack of recent evidence and lack of reference to an inability to recall dates or of the father’s disability to recollect and use specific dates in his trial affidavit, leaves unanswered the manner in which the father’s claimed blackouts as a result of the range of experiences should be regarded as really existing, the extent and frequency of such blackouts and whether the blackouts (such as they might be) are amendable to modification through counselling and/or therapy.
The father’s evidence of blackouts during his periods of rage should have motivated the father to at least enquire about the investigation or the assessment of the causes and consequences of such blackouts.
There is no evidence that the father has made any such steps towards such enquiries.
The father’s evidence of such blackouts and a disability to recall dates and events is sufficient cause to regard the father’s evidence about matters that have occurred in the past as unreliable.
However, I would go further. In my view the father has either made up or exaggerated the existence of such blackouts so as to excuse his claimed poor recollection of events of family violence between himself and the mother and Ms E.
If I am wrong about that, if the father has experienced such blackouts he has not applied himself to addressing the causes and management of such blackouts which has serious consequences in terms of his behaviour at the time of such alleged blackouts.
The father’s evidence about blackouts only serves to accentuate my view that the father is an unreliable witness and lacking insight as to how and why he should address his past violent behaviours and the consequences of those behaviours.
The father’s recollections as to what happened on various dates and at various times particularly on the occasions when his said he was angry and may have blacked out can only be regarded as marked by unacceptable uncertainty.
Where the father has said in his evidence words to the effect that certain things “could have” or “might have” occurred in relation to his conduct I find that he was concealing from the Court or seeking to minimise the true extent of his recollection of such events.
The father’s winking at the mother’s counsel and/or the mother during cross-examination (earlier referred to) and the observed tenor and manner of his answers left me with a view that he sought to deflect away from himself any responsibility for arguments that arose between himself and the mother and himself and Ms E and the workers at the Contact Service.
The father's oral and his affidavit evidence on the incidents of family violence related by both the mother and Ms E is to be regarded as generally unreliable and, save and except where objective evidence supports it or there are admissions made by the father against his interests, or is consistent with the mother’s evidence or that of her witnesses or the Independent Children’s Lawyer.
The evidence put forward on behalf of the mother and the Independent Children’s Lawyer is to be preferred to that of the father where there is a conflict between them.
FAMILY VIOLENCE: CLOSER CONSIDERATION
I now turn to further consider the evidence of family violence put forward at trial.
I find that in November 2017 that the father unjustifiably broke the mother’s finger in the course of an argument between the mother and the father in the course of him having taken her mobile phone from her and which she was seeking to recover from the father.
In my view, the father under cross-examination was less than frank with the Court as to the circumstances under which he came to break the mother’s finger on that occasion.
The father admitted that he meant to hurt the mother in November 2017 when he broke her finger and said that he could not recall doing so in "heated occurrences."
The father eventually and reluctantly acknowledged that he was so angry with the mother on that occasion that he must have wanted to hurt her in that instance.
The father conceded under cross-examination that he would have been angry if he had to cook himself food whilst being at the mother’s house in 2017 and went on to say that he probably blacks out when he gets angry. This admission of blackout by the father under cross-examination is most concerning for the reasons set out above and leads me to reject his evidence as indicated above.
The father said he was unable to recall many aspects of what was put to him as having occurred on the day before and the evening of 13 November and then on 14 November 2017 when he broke the mother’s finger. Any denials that he made as to what occurred on that day given his subsequent admission as to probably blacking out leaves the Court to reject those denials. At best, he can only be regarded as being uncontrollably angry on that day.
After being taken to other acts of violence which the mother said occurred during their relationship, the father eventually admitted under cross-examination that the history of his relationship with the mother was one of violence.
Having made that admission, the father then asserted in the course of his evidence that the making of an intervention order as a result of his violence only came about because of “allegations”. I reject that evidence of mere “allegations” resulted in intervention orders being made.
Without expanding upon the use of the term, the father admitted that he was a "toxic partner". This acknowledgment was only made after a lengthy cross-examination. This acknowledgement shows that he for his part concedes that he was abusive and damaging to those persons with whom he had been in relationships.
The father's behaviour at the Children's Contact Service in November 2020 I find is as recorded in the Contact Centre report. On that occasion the father’s facial expression changed and he appeared angry, clenched his fists together and said that he would "smash his funking face in" in reference to the mother’s partner. This behaviour was disproportionate and inappropriate not only on account of him having just seen X but also on account of it occurring and being displayed in the presence of a Contact Centre worker.
The Court rejects the father’s affidavit evidence that the Contact Centre worker should be regarded as having tried to “bait" the father at that debriefing.
Similarly, the father's observation given in his trial affidavit that the workers at the Children's Contact Service initiated a conversation about the mother’s partner should be considered to be "out of place and a bit weird" is rejected. This evidence as it appears in the father's affidavit should, on the balance of probabilities, be regarded as nothing more than a further endeavour on behalf the father to place responsibility for his own poor and inappropriate behaviour upon others.
The father admitted in evidence that he had continually breached intervention orders at least insofar as they related to preclusions of him communicating with the mother. The father demonstrated an inability to recall important events such as convictions including convictions for being unlawfully on the mother's premises in 2018 and for breaches of intervention orders at that time.
I accept the evidence of the mother and Ms E of the acts of family violence committed upon them described in their trial affidavits. I reject the father’s denials of his conduct as described by them in their respective affidavits.
I accept the mother’s evidence of the history of assaults of her by the father over the period May 2016 to December 2017 as being credible as her demeanour under cross-examination was consistent with the allegations that she had made.
On the balance of probabilities I accept the mother’s evidence that she was assaulted by the father in May 2016, June 2016, October 2016, July 2017, November 2017 and December 2017.
I also find on the balance of probabilities, that the father threatened the mother and persons associated with her with physical harm as well as denigrating the mother and threatening her and persons associated with her with physical violence.
I find that the history of those assaults and the rude, disrespectful, demeaning and threatening behaviour of the father towards the mother from 2016 and during the course of these proceedings leave the mother justifiably fearful of the father on her own account and justifiably fearful that unsupervised time between the father and X would expose X to rude, disrespectful, demeaning and threatening behaviour.
I also find that the mother is justified in her fears and concerns that should X commence spending time with his father at this time it would adversely impact upon her sense of well-being and, in turn, her capacity to parent X.
I make those findings even though, when it came time for the supervised time to commence in November 2020, the mother provided explanations to X about supervised time and meeting his father which was well-intentioned and appropriate.
THE FATHER’S USE OF DRUGS AND ALCOHOL
The evidence establishes that the father not only had a history of consumption of illicit drugs but of also marketing and selling them.
The father by his own admission in his evidence at trial is a continuing but irregular user of cocaine and marijuana. This exposed the claim in his trial affidavit at paragraph 74 that he does not use any illicit substances as untrue. Beyond this evident lack of truth, the father’s evidence on the topic only further discounts the reliability to be attached to the father’s evidence.
Despite the father's trial affidavit proclaiming that he does not consume alcohol to excess, he gave evidence under cross-examination that in fact, he does. The father conceded that his affidavit evidence in that aspect was untrue. This leads me to conclude that the father’s evidence generally should be regarded as unreliable.
CONSIDERATION UNDER THE LEGISLATIVE FRAMEWORK AND CONCLUSIONS
In the light of the findings that I have made I now turn to consider this matter in the light of Part VII of the Act which requires that any parenting order that is made in relation to X must be made by the Court having regard to his best interests as the paramount consideration.
In determining what is in X’s best interests, the Court must have regard to those matters set out in section 60CC of the Act.
In determining those best interests the primary considerations are firstly, the benefit of X having a meaningful relationship with both his parents and secondly, the need to protect him from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
The positive interaction between X and his father at the Contact Service in November 2020 indicates that there might be benefit to be had by X in developing a meaningful relationship at some time in the future with his father. There is presently no relationship.
As the submissions of each of the parties and the Independent Children’s Lawyer made plain, this is a case about what pathway should be laid out as to how X may come to know and have the benefit of a relationship with his father.
There is a need in the circumstances of this case for X to be protected from being exposed to family violence which might be displayed by the father. For the reasons set out above I find that the father in the past has committed acts of family violence in the presence of children namely K, the mother’s child by a previous relationship, and F, the father’s child by his relationship with Ms E.
The nature (including physical assaults and intimidatory and abusive communications) and extent (including the period of time) of the family violence that has been perpetrated by the father and under circumstances where he has blacked out and lost control leads me to conclude that the father lapses quickly and uncontrollably into anger causing physical remonstrations and assaults with people both with whom he is in a relationship and has been in a relationship and, as in the case of the Contact Centre workers, has a professional working relationship with.
There is an obvious need for the father to address past behaviours and to accept and, if need be, suffer taking the direction and guidance offered by those who have had firsthand experience of behaviour which he may not always recognise or even be able to recollect as being inappropriate, menacing and damaging.
This is a case where the second of the primary considerations referred to above assumes greater weight than the first of the primary considerations.
Pursuant to subsection 60CC (3), there are a number of additional factors to which I must give consideration.
The only views of X to be brought to account in this matter are that, as far as X is concerned, he only recognises his mother and his mother's partner as his mother and father figure and that his father is not known by X as his father figure. Given that X is now approaching 5 years of age and has developed attachments with those who have cared for him to date, which will have become well established, the introduction of another significant and yet to be meaningful relationship cannot be anticipated to be either easy or capable of ready introduction. I consider, as did the parties in their respective evidence, that if and when the time for the commencement of a relationship between X and his father arrives it will require professional support and oversight and both diligence and sacrifice on behalf of each of his parents. Presently I do not think that the father has demonstrated that for his part he is yet in a positon to commence to partake in such a process which would include X spending time with his father, as his ‘father”.
X has not had and does not have a relationship with his father nor with any member of his father's extended family other than the father’s sister. X has a close and meaningful relationship with both his mother and his mother's now estranged partner. The evidence does not lead me to the view that the paternal grandfather has a relationship of any significance or meaning at present with X.
X’s most important relationship is with his mother and his sister K with whom he has spent all of life.
The father has failed to take the opportunity to spend time with X by failing to undertake the courses and the processes of counselling recommended by the Contact Service. This is a significant aspect of this matter which must attract significant weight in determining what parenting orders are to be made. The Court ordered time at the Contact Service was an important opportunity which the father for inappropriate reasons failed to fully take up. The father also should have availed himself of the opportunity to forward gifts and letters to X through the offices of the mother’s solicitors during the course of the proceedings. The latter is a matter of much lesser significance.
There is no evidence before me in relation to the question of whether the father has or has not fulfilled obligations to support X. There can be no doubt on the evidence that the mother has done so to date and will continue to do so.
A change in X’s circumstances such that he comes to spend time with his father would be a significant and substantial change in circumstances. In such a change coming about, there would be the introduction of and the need for X to assimilate in his understanding of himself and the understanding of his world that he has a father who cares for and loves him and whose place in his life shall have to be reconciled with the roles that other adults have played in providing his care in the past and whom X may consider to have fulfilled that role. The parties have each acknowledged in their evidence that professional support is likely to be needed in that process. I, as indicated, agree. However, in this case there was no evidence brought forward as to how and when and by whom such support might be deployed. In considering this aspect, the father’s failure to engage with the Contact Service recommendations is a matter of significance. I am of the view that without such evidence, in the circumstances of this case, there would be an unacceptable risk of X being overwhelmed by any such introduction process particularly on account of a perceived need on behalf of the father that progress should be made at a rate that he considers appropriate rather than at a rate that is tailored to X’s development and needs that might then prevail. On the evidence before me, I am not satisfied that at the present time the father would participate in processes with sufficient perseverance in accepting directions to provide a reasonable prospect of successfully meeting X’s needs in the course of an introduction process.
I am not satisfied that the father is able to meet X's emotional and psychological needs in relation to the control and display of his emotions and, in particular, his anger. The father's single interaction with X at the Contact Service discloses an ability to interact appropriately with X and to follow X's lead to play with him and to respond to issues about the constituency of X's family and caregivers. However, the father is prone to angry and violent outbursts to the point of blackout. The care of a young child requires patience and tolerance of behaviours that may not always be readily accepted by a care giver, triggering feelings of frustration and anger. This would be accentuated in circumstances where the caregiver is not familiar with a child’s general character and routine.
I am not satisfied that the father has demonstrated that he has or is likely to have the necessary patience and self-control to care for X other than on supervised basis at this time and upon condition that he could successfully restrain displays of his anger. There is risk in the circumstances of this matter that has occurred in the past that the father could inappropriately display anger towards or in the presence of X or towards or in respect of X’s mother and perhaps others associated with his upbringing.
I consider that risk to be unacceptable.
The father’s attitude to the duties and responsibilities of parenthood as demonstrated by him to date cause me to be cautious in relation to any consideration of the commencement of X’s time with his father.
I find the father’s unwillingness to undertake courses and counselling as recommended by the Contact Service as unreasonable and unnecessary in all the circumstances. The discharge of parental duties and responsibilities means undertaking tasks and attending to matters with a focus on the needs of the child concerned. I consider that the father failure to promptly commence the courses and undertake the subsequent counselling indicates an inability to be focussed on X’s needs. In undertaking the courses and attending the counselling, the father would have been in a position to demonstrate that he was reliable (through fulfilling commitments made in this Court) and engender some goodwill with the mother so as to commence to lay a foundation for at least a working relationship between the parents and develop some necessary skills in respect of managing relationships and troubling anger traits.
The Court has found that on the balance of probabilities, the father has perpetrated family violence upon the mother during the years 2016 to 2017. The family violence was very serious.
The Court also found that that the father has additionally been involved in incidents of family violence involving him and his former partner Ms E. That family violence is also to be regarded as very serious.
The mother has had a Family Violence Order against the father since 2017 which was varied and finalised in 2019.
There is also a Final Family Violence Order that exists between the father and his former partner Ms E.
As explained above, the father has breached family violence orders. His breaching of them not only places his ability to regularly participate in activities that may serve X’s interest in jeopardy but also causes fear and worry in X’s mother that impacts upon her ability to care for X. That is not in X’s best interests. The father’s past behaviour towards each of his children’s mothers who gave evidence at trial suggests that there exist a real possibility that the father, if he considers himself provoked and unfairly dealt with, will breach family violence orders with little or no hesitation.
As stated above, the father presently has no relationship with X and that relationship needs to be established.
If a relationship were to be established, it would have to be undertaken gradually and in a manner which might be managed and seen to be managed by the mother. Given X's age the establishment of such a relationship would, in the Court's view, be likely to require professional support particularly in terms of educating the father as to the process of familiarisation of X with him under circumstances where X’s relationship with both his mother and her former partner would have to be accorded respect by the father.
The support and guidance which the father would need to receive and benefit from is not the type of support and guidance that could be provided by a lay supervisor such as family or friends and in particular having heard from the father's father, his father.
The paternal grandfather is unfamiliar with the allegations which had been agitated in these proceedings in that he has not read the affidavit material. There was no evidence that he was otherwise familiar with the acts of family violence that the father is said to have perpetrated other than against the father's most recent partner Ms E when the paternal grandfather rang her to invite her to withdraw charges of which the father ultimately came to be convicted on his own plea of guilty for aggravated assault. This unchallenged evidence from Ms E permits the inference which the Court draws that the paternal grandfather would seek to exculpate any improper behaviour on behalf of the father rather than accept it as improper at face value and remonstrate with the father about such conduct.
Given the circumstances where a relationship with the father needs to be gradually established and X’s age and his upbringing to date and that the establishment of that relationship should take place under circumstances that are professionally supported, time at a contact centre would appear to be the appropriate set of circumstances under which the father's time with X should commence.
The evidence however, shows that such time could not commence without there being preparatory work being undertaken by the father in terms of addressing his conduct and developing a capacity to modify the tendency to display angry conduct to the extent that he would not be at risk or adversely affect X’s welfare nor cause his mother, who will be charged with X’s welfare and upbringing, unnecessary worry and anxiety.
Without that foundational work I consider at this time that there is an unacceptable risk of X being exposed to family violence even if time were to occur at a contact centre.
As stated above, the Court must give consideration to the benefit of X having a meaningful relationship with each of his parents and the need to protect him from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence and the latter holds greater sway in the circumstances of this matter.
The orders as to sole parental responsibility and X living with his mother must be regarded as foundational in considering how X’s welfare and best interests would be served by him spending time with his father.
The benefit to X of having a meaningful relationship with his father is that there exists the potential for X to know and have the benefit of the loving care and practical support that his father could provide to him. Such a benefit however in the circumstances of this case, will only become available to X upon the condition that his father is able to fulfil a role where he appropriately supports and acknowledges the mother's role in caring for X and also the role of other or former members in the mother’s household particularly of those persons who X has recognised as "daddy". Can someone who becomes as angry as the father has be seen as reliable in fulfilling such a role?
Without appropriate courses and counselling and without the father changing his attitude in respect to the Contact Service’s input, I think not. That is where the challenge now lies for the father. He needs to reform his views and attitudes and master his anger and its consequential behaviour and demonstrate that he is on a proper pathway by falling in line with the Contact Centre recommendations.
The other pathways promoted by the father’s counsel do not, in my view, serve X’s interests and fail to address X’s needs, especially those that relate to X’s mother being reasonably entitled to peace of mind in X only spending time with his father.
The father’s Application seeks to side step what is necessary in my view to enable X’s interests to be best served through time spending arrangements.
Regardless of the father’s concession as to parental responsibility, this is not a matter where I would otherwise have applied a presumption of equal shared parental responsibility pursuant to the legislative requirements of subsections 61DA(2) and (4).
Taking all of these matters into account, I consider that it is in the best interests of X that orders be made in the terms set out at the outset of these reasons.
I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 16 February 2023
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