Holgar and Stott and Anor

[2018] FamCA 302

FAMILY COURT OF AUSTRALIA

HOLGAR & STOTT AND ANOR [2018] FamCA 302

FAMILY LAW – REHEARING – Partial remitted hearing – Where issue of father’s time with the child was remitted to the Family Court for rehearing – Where father seeks to spend increasing amounts of time with the child culminating in regular overnight weekend time – Where maternal grandmother seeks no orders as to contact between the father and child, save for the sending of cards and gifts – Where court adopted the trial judge’s findings in relation to the father’s history of violence – Where the father poses a risk of harm to the child in spending time with him – Where the risk outweighs the benefit of a meaningful relationship – Where the maternal grandmother is unable to promote a meaningful relationship between the father and child – Where maternal grandmother’s parenting capacity would be adversely impacted if child were to spend time with the father –Where child’s wishes given weight – Where no orders for time made between father and child – Where father at liberty to send cards and gifts to the child on special days.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC
Evidence Act 1995 (Cth) s140

Stott & Holgar [2017] FamCAFC 152
Holgar & Stott [2017] FamCA 772
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Russell v Close (Unreported, 25 June 1993)
Bayer & Imhoff [2010] FamCA 532
Sedgley & Sedgley (1995) FLC 92-623
Gorman & Huffman [2016] FamCAFC 174

APPLICANT: Mr Holgar

FIRST RESPONDENT: No appearance

SECOND RESPONDENT: Ms Stott

INDEPENDENT CHILDREN’S LAWYER: Mr Adey

FILE NUMBER: ADC 2199 of 2008

DATE DELIVERED: 9 May 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Adelaide via video link to Cairns

JUDGMENT OF: Tree J

HEARING DATE: 28, 29, 30 and 31 August 2017; 1 September 2017 and 11 and 12 December 2017

REPRESENTATION

THE APPLICANT: In person

THE FIRST RESPONDENT: No appearance

COUNSEL FOR THE SECOND

RESPONDENT:

Ms Lewis

SOLICITORS FOR THE SECOND

RESPONDENT:

Georgina Parker Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr McQuade

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Norman Waterhouse Lawyers

Orders

1. The father’s application be dismissed.

2. The father be at liberty to send cards and gifts to C born in 2006 (“the child”) for Christmas and the child’s birthday and on two other occasions each year with such items to be sent by the father to a post office box address to be provided by the maternal grandmother.

3. The maternal grandmother shall facilitate the delivery of such items sent by the father pursuant to paragraph 2 hereof to the child provided such items are appropriate for the child.

4. The maternal grandmother shall facilitate the child writing to the father or sending cards in the event that the child expresses the wish to do so.

5. The Independent Children's Lawyer is forthwith discharged with the thanks of the court at the later of the expiration of the appeal period from these orders, or the determination of any appeal that may be brought from them.

6. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE VIA VIDEO LINK TO CAIRNS

FILE NUMBER: ADC 2199/2008

Mr Holgar

Applicant

And

Ms Stott

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. This judgment arises out of the trial of a partial remitter consequent upon a successful appeal from orders made at an earlier trial: see Stott & Holgar [2017] FamCAFC 152. Specifically only order 4 of the orders of the previous trial judge was set aside, and the Full Court ordered:

   The issue relating to the first respondent’s time with the child be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Berman.

2. In these proceedings, Mr Holgar (“the father”) is the applicant.  Ms Stott (“the maternal grandmother”) is the second respondent.  Whilst Ms B Stott (“the mother”) is the first respondent, she did not participate in the trial before me.

3. Pursuant to the undisturbed orders of Berman J, the child C, born in 2006 and hence presently 11 years of age (“the child”) lives with the maternal grandmother, who has sole parental responsibility for him.  The child is to spend time with the mother as agreed between her and the maternal grandmother.  Other incidental orders not relevant to this trial were also made.

4. At the commencement of the trial, the father, who self-represented, indicated that the orders which he was seeking was that the child spend increasingly greater amounts of time with him.  He proposed that initially the child would spend six hours with him each weekend on Saturday and Sunday, and after eight weeks of that regime, it would extend to overnights from Saturday mornings until Sunday afternoons of each weekend, or alternatively, from Friday night to Sunday evening.  He further proposed that the child would spend time with him on special days comprising birthdays, and Christmas, together with one half of all school holidays.

5. For her part, the maternal grandmother contended that there be no orders in relation to the father spending time or communicating with the child, save that he be at liberty to send cards and presents to the child for Christmas and the child’s birthday, and that she be obliged to facilitate the delivery of those items to the child.  Further, she proposed that she would facilitate the child writing to the father or sending cards to him in the event that the child expressed a wish to do so.

6. The Independent Children's Lawyer supported the position of the maternal grandmother.

BACKGROUND FACTS

1. The maternal grandmother was born in 1956 and hence is presently 61 or 62 years of age.  The mother is her only child, and was born in 1980, making her presently 37 years old.  The father was born in 1971, and hence is presently 46 years of age.

2. Although the maternal grandmother says the mother was a happy child, and had an uneventful and enjoyable childhood, that all changed when her father died, when the mother was aged 13.  It appears as though the mother became extremely distressed and commenced using drugs.  She moved out of home at 15 and seems to have thereafter had a troubled life.  She formed a relationship with a Mr T, to which relationship a daughter O, was born in 2001.  When O was about 12 months old, the mother and Mr T separated, but seemingly were able to agree parenting arrangements without the need for recourse to litigation.

3. When O was about three or four years of age, the maternal grandmother says that the mother met the father and formed a relationship with him.  The mother would then have been approximately 25 years of age.

4. As to the father’s background, the evidence seems scant. I do know that prior to him forming a relationship with the mother, he had two previous relationships, to which three children, Ms I (now aged about 22), Ms P, (now aged about 19), and S, (now aged about 17), were born.  In her affidavit filed 5 February 2016, Ms I asserted that during the course of her mother’s relationship with the father, he had a very volatile temper and would become angry very quickly and was unpredictable.  She also asserted that the father physically disciplined her by slapping her, and on two occasions grabbed her by her hair and threw her into her bedroom.  She also claimed that the father dealt in marijuana and recalled sometimes, as a child, being taken to see him in prison.  I will need to discuss the credibility of witnesses, including Ms I, in due course.

5. It seems that the mother and father formed their relationship in 2004.  The maternal grandmother says that from an early stage, the mother indicated that she did not want the relationship to continue, as she was scared of the father.  In April 2005, apparently the mother told the father that she wanted to separate, but he would not accept her decision; certainly that is what the mother told the maternal grandmother.  Not long after that conversation, the father attended the maternal grandmother’s home.  She asserts that the father said words to the effect “I have a gun and I am going shoot [Ms Z]” or something similar.  Ms Z was a friend of the mother’s.

6. The next day, according to what the mother told the maternal grandmother, the father fired a shot into the home where she was then living, and also shot a bullet through the window of the home that Mr T (the mother’s former partner) was living in.

7. The maternal grandmother attended that home and observed the damaged window.  The father was arrested and charged as a result of the shooting.

8. Now is an appropriate time to record that the father does not appear to concede criminal responsibility, or perhaps responsibility at all, for a number of occurrences which have seen him charged, and on occasions convicted, and on further occasions imprisoned.  However on 28 September 2017, for reasons I articulated in Holgar & Stott [2017] FamCA 772, I resolved to adopt the findings of Berman J in relation to the father’s history of violence, with one exception. Although no finding was made in relation to the 2006 shooting, it appears from one of the early Family Reports that in fact the father was convicted of wilful damage in relation to that.

9. Notwithstanding the father’s conduct, his relationship with the mother nonetheless persisted, at least in some shape or form.  I say that because, being born in late 2006, would suggest that the child was conceived in the early part of that year.  However by the time of the child’s birth in 2006, the father had been incarcerated, and was not released until March 2007.  Precisely what he was convicted of, and sentenced in relation to, is rather unclear, but plainly it must have been serious to warrant actual imprisonment.

10. Although the maternal grandmother’s affidavits seems to suggest that the mother and father were separated between April and December 2007, I note that in the Family Report dated 20 January 2015, at paragraph 4 it is asserted that the parties separated on 25 December 2007.  However it is unnecessary to try and clarify that, as nothing turns upon the date of separation. 

11. The events of 25 December 2007 do not appear to be attended by any real doubt.  The maternal grandmother first knew of the events when she received a call from police requesting that she attend a police station to collect O and the child, as the mother had been seriously assaulted by the father. 

12. In her trial affidavit the maternal grandmother says:

    40. When I arrived at the police station the children were both very distressed and frightened.  [O] was as white as a ghost and had grazes to both knees that had been bleeding.  Both of the children had been crying.  [The child] was very subdued and quiet.  [O] did not talk to me about what had happened at the time.  [O] appeared to be in shock.

    41. I saw [the mother] who was also highly distressed and appeared to be in shock.  [The mother] was dishevelled and I saw bruising to [the mother’s] neck and face.  I saw blood on [the mother’s] face and on her clothing.  

13. The father was charged with the assault of the mother and was held on remand for some time.  It appears he was released on bail in early 2008. 

14. Subsequently it seems as though the mother kept the child from the father, and the maternal grandmother alleges that the father was attempting to locate the child.  At all events, the father first commenced these proceedings in August 2008 in the Federal Magistrates Court.  Ultimately final consent orders were made which permitted the father to spend supervised time with the child.

15. Thereafter the father’s criminal activities appear to have continued, although precisely what they comprised is not altogether clear. The maternal grandmother asserts that in January 2010 the father and two other men had kidnapped Mr T’s brother, demanding to know his whereabouts.  She further asserts that in January 2010 the father was sentenced to a period of actual imprisonment in relation to a 2006 event in which she says that the father shot a person outside his home.  It seems that initially the father had been charged with attempted murder, but that charge was downgraded.  Whatever be the case, the father was imprisoned again between January 2010 and August 2010.

16. For reasons which are not clear on the evidence, the father again commenced proceedings in the Federal Magistrates Court on 18 January 2011, which it is said are the current proceedings.  In the course of those proceedings, Federal Magistrate Simpson issued a warrant for the arrest of the mother, seemingly in response to her failure to appear or attend appointments with a Family Consultant.  The precise date when that occurred is variously stated in the maternal grandmother’s affidavit, but whenever it be, associated with the mother being in custody, both O and the child the subject of these proceedings came into the maternal grandmother’s care, and O has since remained living with her, although the child was initially returned to the mother’s full-time care.

17. Ultimately the child returned to the maternal grandmother’s care by further order of Judge Simpson made 27 February 2014.

18. The child has always had difficulties with aggressive and violent behaviours, and in November 2011, was diagnosed as having Asperger’s Syndrome.  Since then he has been in receipt of assistance to help him cope with the issues associated with that condition.

19. On 25 December 2012, an incident occurred between the father and Ms I Holgar, which saw her hospitalised for a broken nose.  A transcript of her oral evidence-in-chief before Berman J was admitted into evidence before me.  In that evidence, she alleged that in the course of the episode, the father punched her face four to five times.  The father denies that he did so, but rather says that acting in self-defence against her, he pushed her away with the back of his hand, on the fingers of which were a number of heavy rings.  I will discuss that and the other evidence in due course.  However the father was charged with assault arising from the incident, although ultimately the hearing resolved in his favour.  His sister, Ms Y Holgar, gave evidence in those proceedings, and gave evidence before me as well.  I will deal with that in due course, but whatever be the situation, since then it appears as though the father’s relationship with Ms I Holgar, and indeed his other two children to the previous relationship, have been substantially affected, and perhaps severed.

20. As I have indicated, orders were made between the parties on 27 February 2014, which saw the child returned to living with the maternal grandmother, but spend time with the father.  The father first spent supervised time with the child pursuant to those orders on 17 May 2014, which appears to have been the first occasion he had spent time with the child since January 2011, with the exception of two supervised visits in the course of Family Reports being prepared.  Apparently six such supervised visits pursuant to the 2014 orders ensued.  The maternal grandmother says that the father always brought a bag of toys and other items for the child to those visits.

21. The child was continuing to display highly problematic behaviours at school.  He was suspended from school for five days at the commencement of term three in 2014.  That was because he had lunged at another child’s throat.  He then head butted a teacher who sought to intervene, and swore and spat at her.

22. On 22 October 2014, Judge Simpson made orders for the father to spend unsupervised time with the child, from 12:00pm until 3:00pm each Saturday for eight occasions, and thereafter each Saturday from 10:00am until 4:00pm.  Time for special days was also ordered.  However after those orders had been made (seemingly over the resistance of the maternal grandmother) the father’s extensive criminal history first became known by her.  In the light of that material, she sought suspension of the time that was ordered, although she was unsuccessful in that attempt.

23. The child was suspended from school on 13 November 2014 as a result of further violent conduct, when he grabbed another student, kneed him in the back, and kicked him in the leg.

24. The father first commenced spending unsupervised time with the child on 6 December 2014.  However the child began to describe what the maternal grandmother interpreted as anxiety at the prospect of spending time with the father, and would often return subdued and unusually quiet and emotional.  Moreover, although the child has a close relationship with O, that began to become somewhat problematic.

25. In early March 2015 the child again acted violently at school, including pulling a girl’s hair, hitting, pushing, yelling, using abusive language and threatening violence with scissors.  Another incident then occurred on 25 March 2015, when the child refused to do what he was being told to do by teachers, and in consequence threw boxes of books around the room and threatened to kill a teacher.  He left the classroom shouting swear words.  A Notice of Intention to exclude him from school was then given to the maternal grandmother which came into effect on 28 March, and although there was a negotiated return of the child, he was again suspended on 2 April 2015.

26. By then the child had been further diagnosed by a paediatrician with ADD, and prescribed Ritalin.  That did not appear to markedly improve his behaviour.

27. On 13 May 2015 Dawe J made orders that the child spend unsupervised time with the father each alternate Saturday from 10:00am until 4:00pm.

28. In June 2015, the child was again suspended from school.  The school advised the maternal grandmother that it was seriously considering permanently excluding him.  She met with the school staff and pleaded for him to remain at school.  Thereafter she has continued to work closely with the school to try and ensure that the child has remained there, as indeed he has.

29. That was the situation which prevailed at the time when the first trial before Berman J commenced in March 2016.  However as a result of the father’s demeanour during the course of the trial, at the instance of the maternal grandmother, Berman J made an order which required the father’s time with the child to be supervised by his mother.

30. The child continued to evidence strong disinclination to spend time with the father.  For instance he would, before a contact visit, claim that he was ill, and “would not be well enough to go” into the father’s care.  He began to proclaim that he did not want to go into the father’s care, and became increasingly distressed at the prospect of doing so.

31. On 30 April 2016 the child spent time with the father.  An incident occurred.  The child has related that the father became angry when, whilst driving with the child in the car, he was unable to locate a car park.  The father denies that he behaved inappropriately, and I will need to discuss that further in due course.

32. On 28 May 2016, when the child was again due to go into the father’s care, he became angry and had what the maternal grandmother describes as a “meltdown.”  The child refused to go into the maternal grandmother’s car, and she advised the father accordingly.

1. The next visit was to be on 10 June, but again the child resisted.  The maternal grandmother was concerned that the child would not have stayed in the car if she had taken him to the father, and she was further concerned that he may have lashed out and hurt her.  That contact did not occur.

2. There were then further visits which were attempted to be facilitated by the maternal grandmother.  The child resisted, and demonstrated anxiety and agitation.  They did not proceed.

3. As it transpired, the child last spent time with the father on 30 April 2016, and has not again spent time with him again, except in the course of Family Report interviews on 25 May 2017.

4. The maternal grandmother asserts that since ceasing spending time with the father, the child’s behaviour at school has significantly improved.  Indeed that appears to be borne out by the child’s school reports, which were in evidence before me.  For instance, on 7 April 2017, he received an Excellence Award at school and apparently was very proud of that.

5. On 25 May 2017, Family Report interviews occurred.  Some aspects of those are in dispute, but it is plain that the child did spend time with the father, and received an expensive gift from him. 

6. The following day the school advised the maternal grandmother that the child evidenced a disruptive and aggressive behaviour.  On 2 June 2017 there was further aggressive behaviour by the child, and a Notice of Intention to Suspend him again was issued that day.  Again, however, suspension did not ensue.

7. As at the time of the conclusion of the hearing before me, the father remained in receipt of a disability support pension, said to be arising from his anxiety and depression.  He has apparently been in receipt of that for some years.  I know little of his living arrangements, although it appears he has not re-partnered.  He owns the home in which he lives, which is unencumbered.

8. For her part, the maternal grandmother and her partner are now retired, and reside on an acreage property some little distance from Adelaide.  In her household also resides the child and O.  The child remains at school, but I was told without demur that he is unable to read.  He remains with current diagnoses of Asperger’s Syndrome, and ADHD.

THE ISSUES

1. With the assistance of the parties, I identified the following as the issues which the litigation gives rise to, in the sense that their determination is likely to substantially inform its outcome:

   1.What amount of time, if any, should the child spend with the father.

   2.The nature of the relationship between the father and the child.

   3.Would the child benefit from a meaningful relationship with the father, and if so, how could it best be facilitated.

   4.What, if any, risk of harm does the father pose to the child in spending time with the child.

   5.What would be the effect on the child of having no relationship with the father.

   6.The amount of weight to be given to the child’s views in refusing to spend time with the father.

   7.The parenting capacity of the father particularly given the special needs of the child.

   8.The ability of the maternal grandmother and the mother to promote a meaningful relationship between the child and the father.

   9.Would the father’s proposal adversely impact upon the maternal grandmother’s parenting capacity.

2. Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residually relevant s 60CC considerations, I will discuss those issues and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

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

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

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

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

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

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

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

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

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

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

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

2. Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

3. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.

4. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3] 

   [3] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   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 persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed.  The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests.  Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account.  A recent re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].

3. That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:

   Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.

4. Plainly however as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

CREDIT ISSUES

Overview   

1. Unfortunately this is a case where findings of credit are necessary.  In large part that is because of the father’s denial of violence generally, and specifically, his denial that he assaulted his daughter Ms I on 25 December 2012.

2. However credit issues also arose, directly and indirectly, because of the evidence of a witness called by the father, a Mr AA.  His evidence was, amongst other things, that in early June 2017, he saw the maternal grandmother whip the child across the legs with a length of nylon rope, which caused him to cry uncontrollably.  The maternal grandmother strongly denied any such conduct.  It is convenient to start with the credibility of Mr AA, and then look at the other witnesses.

Mr AA

1. In his affidavit filed 23 August 2017, Mr AA said that one weekend in early May 2017, the mother and the child visited him, during which visit, amongst other things, she told the child words to the effect that he was never going to see his father again.  She then said to Mr AA that she knows how much the father loves the child, and that it will kill the father if he can’t see the child.

2. His further evidence was that on another occasion in early June 2017, the maternal grandmother and the mother turned up at his house.  The child was also in the car.  He said that the mother and maternal grandmother were laughing and boasting that notwithstanding the fact that the father was “doing everything right” he was still not being permitted to see his son, as the court just lets them do whatever they want.  He said that they then burst into laughter, but the child said in relation to the father “but he really does love me.”  He then says that it was that which caused the maternal grandmother to reach for a length of nylon rope from between the seats, and tell the child that the father didn’t love him, and that he was not going to have anything more to do with him.  He then says that he saw her whip the child’s legs with the rope.

3. Of course this evidence is not directly relevant to the question raised by the remitter, but seems to be more directed towards an argument that the father should have the care of the child, or at least there should be some conditions imposed upon the maternal grandmother’s care of the child.  Whatever be the father’s view as to where its relevance lay, Mr AA’s evidence was hotly contested.

4. At the outset I should say that one aspect of his evidence did not appear to be disputed, and that is that three years earlier he had suffered an aneurism, and as a result, had been in a coma for two weeks.  Since then, he had problems with his memory.  However that explanation can only go so far.

5. Mr AA’s evidence in cross-examination was that, prior to meeting the father at a shopping centre some time in May 2017, he had only ever met him once.  That was when he just happened to bump into the father in a café, although he could not now recall which café it was.  He said that they had a conversation about their mutual interest in using weights for body building.  He said that he knew who the father was, and particularly that he had been in a relationship with the mother.  He said that he knew about that because the mother had told him.  He said their conversation lasted about 15 minutes, at the conclusion of which the father gave him his telephone number.  He thought that meeting had been about two years ago.

1. Mr AA was extremely vague in relation to dates.  Indeed his evidence was remarkable for its fluidity in many respects.  However central to his testimony was that he was not partial to the father in giving his evidence, because the father was largely unknown to him, other than their chance meeting at a café.

2. Highly relevant to my acceptance or otherwise of his evidence is a document that was tendered, albeit not put to Mr AA during the course of his cross-examination.  It was a police incident report of 4 January 2009, which became exhibit 4.  It relates to an occasion when, according to the document, the father, in the company of two other males, at about 11:55pm on Sunday 4 January 2009, smashed their way into a person’s unit, whilst that person was at home.  The person promptly exited the house, and from a safe distance, observed the three men take away his guitar, amplifier and some pictures, before going to a white Holden Commodore with a particular registration.  They then loaded the property into the car and left. At 6:00pm the following day, the police intercepted the car, in which there were three male occupants.  Those persons identified themselves.  Two of them were the father and Mr AA.

3. It matters not whether on this occasion the father did that which the police record asserts; what is important is that, on any view, Mr AA’s evidence, in saying that he had only ever met the father once prior to 2017, was untrue.  That untruth is not likely explained by his subsequent aneurism.  I am satisfied that Mr AA was being knowingly dishonest when giving his evidence that he had only met the father once prior to May 2017.

4. There was some other peculiarities about Mr AA’s evidence, including that whilst giving evidence, it became obvious that he had some paper concealed in his hand.  That turned out to be parts of his affidavit.  He said that he needed to have them with him to prompt his memory.  I am afraid I take a far more sinister view of the reasons why he had the material with him, and am persuaded that he was attempting to conceal it.  Particularly I am satisfied that he had no independent recollection of the alleged events that he was giving evidence about, and needed to have access to his affidavit to prompt him about them.

5. Another interesting aspect to Mr AA’s evidence was his minimisation of his own previous conduct, which had seen him also incarcerated.  Further, his inability to settle on any particular motor vehicle which the maternal grandmother was driving on the day of the whipping (alternating between a Honda Accord, Toyota Camry, and being unable to exclude a Mazda or Volkswagen, but able to exclude a Kia or a Nissan) seemed to me to be pure improvisation.

6. I am satisfied that Mr AA is a wholly unreliable witness, and reject virtually all of his evidence.  Indeed I so wholly reject it, that if it were, by any chance, corroborated by some other piece of evidence, it would only cause me to doubt that other evidence.  The fact that the father was prepared to lead Mr AA’s evidence does his case considerable damage.

Ms X Holgar

1. Ms X Holgar is the child’s paternal grandmother.  Her evidence related to a number of matters, principally the events of Saturday 30 April 2016, and her observations of interaction between the father and the child generally.  She also gave evidence about occasions when the child was not made available after 30 April 2016 (which were not controversial) and about an alleged altercation that occurred on 25 May 2017 during the course of Family Report interviews.

2. Her evidence in cross-examination included assertions that she had never seen the father angry, never seen him get red in the face when frustrated or angry, except perhaps as a child, and she denied that the father has a bad temper.  More remarkable was her denial in relation to the father’s criminal record, and particularly that he had been convicted of violent offences.  Her answer was to the effect that, although it may be so, however the father had not been the perpetrator.  She seemed to equivocate as to whether the father had in fact been convicted, although she accepted that he had been in jail as recently as 2010, but denied any recollection of what he had been imprisoned for.

3. She was unable to accept that the father had assaulted Ms I, and denied that she had suffered a serious injury.

4. Unfortunately these aspects of her evidence tend to suggest that she minimises, and perhaps refuses to recognise, the father’s violent past, and his criminal involvement.  For instance in relation to the father’s engagement with Ms I on 25 December 2012, she said that whatever occurred was “a family matter” and was just an accident.  Interestingly, she specifically denied that the father might have pushed the child away as, on his version of events, he had done to Ms I.

5. This aspect of blind denial to her evidence means that I am hesitant in acting upon her evidence in relation to matters potentially adverse to the father. 

The maternal grandmother

1. I was satisfied that the maternal grandmother gave her evidence in a relatively forthright way.  Generally speaking I accept her evidence.

Ms I Holgar

1. Ms I Holgar was not cross-examined, notwithstanding my explanation to the father that the consequence of that was that I was more likely to accept her evidence in relation to controversial matters.  In my view that is the appropriate course, and I generally accept her as truthful.

The father

1. The father’s demeanour in the court was at times aggressive.  He was frequently argumentative, not only with counsel during the course of his cross-examination, but also when engaging with myself.  On occasions he would bluntly refuse to answer questions, including upon particularly material issues, for instance, acknowledging responsibility for past violent conduct.  When he was prepared to answer questions in relation to past violent conduct, he denied it.  Indeed under cross-examination by counsel for the Independent Children's Lawyer, he denied that he had ever been violent to any person.  He claimed that he could not recall if he had ever been convicted of assault occasioning bodily harm.  He even went so far as to suggest that the criminal history that was being put to him, may have been somebody else’s.

2. His explanation for his actual incarcerations, which he simply could not deny, was that, in substance, either he had been in the wrong place at the wrong time, or that he had pleaded guilty for tactical reasons, even though there was no criminal responsibility on his part.  That explanation causes me grave concern as to the reliability of the father’s evidence. 

3. That said, the father’s credibility is not a large issue in this case, given my adoption of the findings of Berman J in relation to past historical violence on the part of the father.  However two matters in contest are particularly relevant.  The first is the father’s alleged assault of Ms I on 25 December 2012.  The second is his alleged demonstration of anger whilst the child was in his car on 30 April 2016.  I will deal with those two matters later.

NATURE OF RELATIONSHIP BETWEEN FATHER AND CHILD

1. This was, perhaps unusually, a significant source of controversy at trial.  For his part, the father asserts that “words can’t describe how much I love my son” and that they enjoy a good relationship.  Whilst perhaps his affidavit is a little light on as to the detail of that, he does say at paragraph 22 that during the supervised Contact Centre visits “I had a brilliant loving caring time together, lots of fun” and refers to Contact Centre reports which tend to support that notion.  I am prepared to infer that remains his assertion of his interaction with the child.  Whilst the paternal grandmother tends to support that view, saying for instance “[the child] is happy and secure in [the father’s] presence as the video shows ..” she does at paragraph 8 of her affidavit say that although the child loves the father, that she believes “he is afraid to show it to his mother and maternal grandmother…”

2. There is a considerable body of evidence which does not support the father’s assertion, most significantly from the Family Report writer.  On the day of observations on 25 May 2017, it took quite a deal of effort and strategy on her part to get the child to agree to spend time with the father.  Indeed he would only agree to it if the writer remained in the room at the same time.  That took place in a play room, rather than an ordinary interview room, for logistical reasons.  Her report notes the subsequent interaction between the father and child, and particularly that the child did not particularly engage with the father.  She noted that the father gave the child an expensive gift (a Nintendo Switch console and game) in response to which the child hugged the gift without making eye contact with the father.  The father then offered the child a further gift, comprising a card with credit on it so that he could buy more games, but the child declined it.

3. Thereafter the Family Report writer noted “the father stood up and selected a game to play while [the child] stood awkwardly looking at the writer.  He appeared uncomfortable and the writer considered stopping the observation.”  However she did not do so.  Ultimately the observation concluded with the child saying to the father “see ya” without showing any emotional affect.

4. Subsequently the child was interviewed again by the writer, and said that during the interaction “I wasn’t saying much.  I was quite nervous.  I had butterflies.”  Initially he reiterated that he did not want to see his father, but then relented and said that perhaps “he could see him once every two months for a shorter period of four hours.”  I will return to the weight to be given to that statement in due course.

5. At [186] the Family Report writer concluded that “while the child appeared to value the gift and winning the game [of chess], he did not otherwise show emotional engagement or connection with the father or the paternal grandmother in the observation.”

6. The father strongly contested that the Family Report writer was physically able to observe the interactions between the child and himself, because of where she was sitting in relation to where he was engaging with the child.  However Ms L refuted that she was unable to properly observe the child’s facial expressions and I accept her evidence in that regard, particularly because she was prepared to make reasonable concessions, on occasion, when she was not able to see the child’s face.  For instance the father suggested to her that at one stage (while the child was playing a game) that the child was giggling and the father was “stirring him up” about a photo of the child with some girls, which he said caused the child to “smile from ear to ear” which the Family Report writer could not see.  Ms L’s response was that it was true that at the time she was not looking at the child’s face, but that was because it was directed to the screen of the game that he was playing.  That then caused her to ask for the game to be paused.

7. I specifically asked Ms L to comment in relation to her view as to the child’s relationship with the father.  She said that from the child’s perspective, the relationship had “somewhat broken down.”  She said that to her observation the father and the child were able to do “side by side activities” but there was no sign of a close relationship.

8. Under cross-examination by the father, she was challenged by what could be observed in the several videos which the father relied upon as showing his true interaction with the child.  She said that in those videos, she didn’t see any affection and only observed minimal interaction between the child and the father.  Again, she said that there was a lot of side by side activity, and often the child was walking away in the videos.  She said that there was minimal face to face engagement.  Specifically she said that on one occasion during the video taken at the Suburb CC beach house, to her observation, the child presented as emotionally independent of the father.

9. She conceded that in the videos the child was having fun, and that some of the activities he engaged were educational, and whilst on occasions there was some interaction between the father and the child, she said that appeared minimal.

10. The father challenged her that the videos demonstrated that “you couldn’t get a more fun filled day,” but Ms L disagreed.  She said that she didn’t see any sign of interaction between the father and the child, for instance the child smiling at the father, or turning to engage with him.  She said that the video showed either solo play on play equipment, or the child walking away.

11. Turning specifically to the video of the child at the Suburb CC beach house, whilst she was prepared to concede that the child may have been having a good time, Ms L was less certain in relation to the father’s assertion that the child had a broad smile on his face for most of the time.

12. It has to be noted that the father’s engagement with the child is very activity driven, at least on the evidence before me.

13. The child himself explained his relationship with the father to his therapist, Ms Q on 19 July 2017.  They were discussing the Nintendo Switch console, and he said that he was given the toy “by a guy named [Mr Holgar].”  She then asked who Mr Holgar was, and the child said that he was “like a dad but not really.”  Ultimately Ms Q was satisfied that the child understood that the father was his biological father.  She asked the child how he had felt about going to the meeting at which he got the Nintendo Switch, and her report says that the child “replied he was very, very nervous” (he insisted I used capitals when writing this in my notes at the time).  He explained this nervousness then changed to “just butterflies” once the meeting had begun.  [The child] went on to tell me that he had told the Family Consultant that he would see [the father] every two months, but this hadn’t happened and he felt “relieved” because he “didn’t actually want to see him.”  In answer to the direct question “so you don’t want to see him?”  The child replied “Nah.”  He went on to say that this was because of the last occasion he had spent with the father he was scared because the father shouted a lot, and said that the father had “acted bad” (pause) “in other times.”  When asked how the child would feel if he were to see the father again, he said he would have “dragons in my stomach.””  Ms Q’ report says “given [the child’s] earlier description of butterflies in the stomach, I understood this to be [the child’s] way of explaining a much greater feeling of nervousness.”

14. Ms Q’ report of 17 August 2017 went on to say that she and the child had not often discussed the father, and on the occasions prior to then when they had, that the child had not spoken much about him.  She concluded:

    Because of this, I believe that the conversation I have described in this report was significant, not only because it shows improvements in terms of [the child’s] ability to identify an appropriately expressive thoughts and feelings, but because [the child] was so clear and communicative about his thoughts and feelings with respect to [the father], and the clearest he has ever been with me.

15. Allied to this is the maternal grandmother’s evidence about the efforts which she has gone to persuade the child, after 30 April 2016, to spend time with the father, without success.

16. I regret to say that all of this material independently supports the conclusion of Ms L which I accept, to the effect that the child does not have a good relationship with the father, in the sense that there is little emotional engagement and interaction, at least in recent years.

17. That is likely explicable because of the limited time which the father spent with the child in his early life, and the limited times he has seen him in recent years.  In a sense therefore, the fact that it is not a warm, loving and engaging relationship, is not a surprise.

18. I should say that it is not that the child is incapable of having such relationships, as Ms L observed warm and loving engagements and interactions between the child and the maternal grandmother and O.

19. The father contends that the reason for any distance in the relationship between himself and the child is the maternal grandmother and mother’s alienation of the child from him.  I will consider that in due course.

BENEFIT TO CHILD FROM MEANINGFUL RELATIONSHIP

1. The father strongly asserts that the child would benefit from a relationship with him, however Ms L said that she does not get any sense that the child derived any nurture from the relationship with his father, and did not observe that the child derived any sense of comfort or security from it either.  She conjectured that the only benefit that would likely to flow to the child from the relationship was of knowing the father, and of knowing that the father wants to see him and spend time with him.

2. I accept that evidence.

3. Of course the derivation of any benefit is only one part of the equation; if the risk of harm associated with obtaining that benefit outweighs the benefit, then certain conclusions nigh inevitably flow.

RISK OF HARM FATHER POSES TO CHILD

Overview

1. The risks said to be associated with the father were both physical and emotional, although there was some overlap.  Central to both, however, was the father’s alleged difficulty in maintaining appropriate emotional regulation, particularly under pressure.  It is this risk which is informed by the alleged assault of Ms I by the father on 25 December 2012, and the events of 30 April 2016.  Also central to the risk analysis is the child’s diagnosed conditions of ADHD and Asperger’s Syndrome, which, there was no dispute, rendered him a particularly vulnerable child.

The events of 25 December 2012

1. Turning to the alleged assault on Ms I, the central matter in dispute is whether or not the father struck her, or whether his contact with her was more in the nature of a deflection.

2. One might have thought the fact that she was hospitalised for a broken nose would itself suggest that the father’s contact with his daughter was something more than a deflection, but nonetheless the father denied that.  Indeed he also called his sister, who was present, she says, at the family event at which the assault took place.  She supported the father’s version of events, but there was an interesting aspect to her evidence where she initially seemed to indicate that she was standing behind the father at the time of the episode, but when challenged in relation to that, said that nonetheless she observed the whole incident.

3. It appears as though the incident commenced when, moving outside the house, the father was confronted with Ms P smoking a cigarette.  It seems he thought that had been given to her by Ms I.  Apparently, a family member had recently died from lung cancer, and it seems as though the father became angry at Ms I for, he believed, providing a cigarette to Ms P.

4. Ms I’s unchallenged evidence is that the father started to become quite confronting, and she became concerned that he was about the throw the table at which they were sitting at them, so she threw an empty gin and tonic can at him and it hit him in the chest.  That is different to the version of the father given in evidence before Berman J, to the effect that he was “smashed in the face with a full can of drink” and the evidence of his sister Ms Y, that what she presumed to be a half-full can of drink, was thrown in the father’s face.

5. The next aspect to the altercation appeared to involve Ms I’s phone.  She says that the father grabbed her phone off the outdoor table, put it on the floor and stomped on it with his steel-capped boots.

6. In his evidence, the father did not mention an involvement of a phone, however his sister Ms Y conceded that, somehow or other, Ms I’s phone came to be on the ground.  She was prepared to concede that perhaps the father stood on it.

1. This caused Ms I to then try and retrieve her phone, and her evidence is that she tried to push the father away from it.  This appears to be what Ms Y interpreted as Ms I starting to hit the father.  Certainly the father asserts that he was hit by Ms I.  Before Berman J he said “I was assaulted.  I had my head smashed in.  I was punched and kicked continuously for a long period of time and I won’t cop it…  I was seriously assaulted that day.”

2. The next event was the father’s response.  As I have already indicated, the father denies that he struck Ms I, but in effect, says he was pushing her away with the back of his hand, which had some rings on it.  Ms I’s evidence before Berman J was that he punched her four or five times, which caused a massive gash across her nose, and she became unconscious.  However in the next question and answer couplet, she reduced the number of hits to three or four, and said she was only unconscious for a few seconds.  She said that when she regained consciousness, Ms Y was helping her off the ground.  There was blood coming from her nose, and she says that Ms Y was yelling at everyone to get an ambulance and get her a tea towel to put on her nose.  She said that there was a lot of blood.

3. The father became too upset to continue when giving evidence in relation to this aspect of the events, so I do not have any particular assistance from him in determining what occurred.  On the other hand Ms Y Holgar tried to downplay the significance of the injury, the need for an ambulance, and Ms I’s hospitalisation.  She said that it was her sister who called the ambulance, and she equivocated about whether the injuries were, in her opinion, sufficient to justify doing so.  She seemed to think that they were not.  Given that she is a trained nurse, ordinarily that opinion would carry some weight.

4. Ms Y accompanied Ms I to hospital, and there gave a statement to police.  It was recorded in a police note book and she signed it.  She said that she did not speak with the father about the incident again that day, because it had been too distressing.

   Ultimately she was called as a witness at the hearing of the subsequent assault charge against the father.  However it appears as though she was declared a hostile witness, because her evidence did not conform with the statement she had given to police on the day.  Ms P also gave evidence at the criminal hearing.  Ms I Holgar’ evidence was that “[Ms P] became overwhelmed during cross-examination by [the father’s barrister].”  Apparently, in consequence of Ms Y and Ms P’s evidence, the prosecution tendered no further evidence, and, at least according to court records, the relevant magistrate found the father not guilty of the charges.

5. However it seems as though since the incident on Christmas Day of 2012, Ms I has refused to have anything further to do with the father.  That is all the more peculiar because it appears as though, prior to then, she had been his favourite child.  Further, at least according to Ms I’s affidavit filed 5 February 2016, Ms P now does not see the father, and does not want him to know where she lives.  Similarly S, according to Ms I, “does not see [the father] now and has nothing to do with him.”

6. There is one further peculiarity, and that is according to Ms I’s affidavit filed 12 February 2016, after the father’s success in the Magistrates Court, in exchange for signing a letter in which she agreed not to disclose details of the incident on 25 December 2012 except to a psychologist or psychiatrist, the father agreed to pay Ms I an amount of $2,000.00 for a mobile phone which had smashed. 

7. In determining this issue, it needs to be borne in mind that the father, notwithstanding being advised of the likely consequences of not cross-examining Ms I, nonetheless chose not to require her for cross-examination in the hearing before me.  That is, of course, quite different to the approach which his barrister took at the hearing of the criminal proceedings.

8. It seems to me that the one objective fact in all of this is the offer by the father to pay $2,000.00 to Ms I in relation to her mobile phone, in exchange for her not further disclosing details of the incident.  In my view that is consistent with an acknowledgment of wrongdoing, and particularly that he had smashed her phone in circumstances that warranted him reimbursing her for it.  When that is combined with the condition requiring Ms I not to disclose her version of events other than for therapeutic purposes, two things flow.  The first is that it was therefore implicitly acknowledged that Ms I would reasonably be likely to seek assistance from either a psychiatrist or psychologist.  The second is that the father was anxious not to have her version of events circulating.

9. Further support for Ms I’s version of events, is found in the father’s peculiar display of anger and hostility when being cross-examined in relation to this episode, both before Berman J and before me.  If all he had done was to calmly push Ms I away with the back of his hand, there would be no reason for the emotional heat which he demonstrated.  Further, in my view, had the event occurred as the father says, there would have been no reason for him thereafter to have become apparently alienated from all three of his children to his previous relationships.

10. Finally there is the fact that the ambulance officers attending took Ms I to hospital, where she was treated, and subsequently had surgery on her nose.  In my view that level of physical consequence is inconsistent with the version of events which the father would have me believe.

11. Turning then to Ms Y Holgar, there are a number of peculiarities attending her evidence.  The first is that it appears that her evidence at the Magistrate’s Court hearing did not align with the statement she gave police at the hospital.  Her evidence before me had a peculiar aspect to it, particularly how she sought to distance herself from her police statement.  For instance she said that she was “casually spoken to” by a police officer in the hospital, and was “unaware that the statement she gave could be used in court.”  Another peculiarity was that which I have already noted, namely that although initially in her evidence she said that she was standing behind the father (which would have then created a difficulty for her having actually observed the father’s hand coming into contact with Ms I’s face) she then asserted that she was able to see the whole incident.  Finally, although it appears common ground that the father’s hand was adorned with rings, she denied being able to recall that.  The impression I formed was that she was anxious not to have those rings as a feature of her evidence, because it created a more sinister aspect to the event that she was keen to convey.

12. Ultimately I am well satisfied that the events occurred as contended for by Ms I Holgar.  Although I do take into account the failure of the father to cross-examine her, I do not give that great weight in reaching that conclusion.

13. The consequence of that is that I wholly reject the father’s version of events of the day in question, particularly in relation to only pushing Ms I away with the back of his hand.  In my view that evidence was false.  That conclusion therefore also impacts upon the father’s credibility more generally.

The events of 30 April 2016

1. The father denies that he became angry in the presence of the child on 30 April 2016.  The occasion was said to have occurred in the car park of an amusement park. 

2. The maternal grandmother says in her trial affidavit “[the child] told O that the father had started yelling and screaming and that the father had yelled out “shit there is no fucking car parks.”  O told me that she explained to [the child] whatever the father had said was not directed to [the child] and that the father was angry because he could not find a park to park his car….”

3. Family Report interviews were conducted on 25 May 2017.  This, of course, was more than a year after 30 April 2016.  Nonetheless during interviews with the child, Ms L’s report says as follows:

   100. In respect of spending time with his father again, [the child] replied

   “That is a problem as the last time I visited him I got scared as he got angry for no reason he started getting angry at me a little bit.  He did that three times!”

   He said that he did not know why but “There was something about parking because he couldn’t find a good spot.  He sweared (sic) a bit and said the f work and I started getting upset and he said “can’t you see I am angry!” and I was scared and confused.”

   101. Asked further about the last time he saw the father he replied “He got seriously angry and he started shouting and it made me really, really scared.”

   102. When told that he would see his father shortly [the child] appeared upset.  He said strongly “I don’t want to see him!  After last time I just don’t! He got angry at me for no reason because I said something.”  [The child] did not recall what he had said…

   …

   105. His view about seeing his father that day was again canvassed and he replied: “I don’t want to see him!  I can’t.  After last time I am scared of him.  After that there is no getting better!”  

4. The child has told a third person about this episode as well, being Ms Q the psychologist whom he sees.  In a report dated 17 August 2017, she said that in her consultation with the child on 19 July 2017, in a conversation about the prospect of seeing his father again, that:

   I attempted to clarify with [the child] asking “so you don’t want to see him?”  To which [the child] replied “nah” and explained that the last time he saw him he was scared because he (the father) shouted a lot…

5. In paragraph 41 of the father’s trial affidavit he expressly denied having so conducted himself and said “this did not happen.  There was no yelling and that was not said.”  He also annexed some video footage of the child on 30 April 2016 which he then commented in relation to, saying, “as you can see by the video footage my son had a fun filled day.”

6. Further, the father says that “if I did say that in front of my son.. I would have no problems admitting it to the court and saying it won’t happen again, but I didn’t say it.”

7. Also relevant to this is the affidavit of the paternal grandmother, Ms X Holgar.  She said:

   I say, I was present at the time seated at the back of the car.  I never heard yelling or swearing by [the father], yes we went into the car park of [the play café], there were no parks so we decided to go to the beach house, but there was no yelling or swearing.  This has been twisted [the father] would never act this way in front of his son.  He has too much respect for him.

8. She then went on to say that the balance of 30 April visit was “a really fun filled day together” and provided some elaboration of that.

9. Although Ms X Holgar no doubt thought that she was providing assistance to the father’s case in swearing that affidavit, in my view she buttresses the maternal grandmother’s contentions in a very important way, in that she confirms that there was an event where, contrary to their plans, there were no carparks at the particular venue, in consequence of which they had to go somewhere else.  There inevitably must have been some conversation in relation to the change of plans.  There is likely to have been some comment that the necessity for the change of plans was because there were no carparks.  Having seen the father in court, I could well understand he may become frustrated if something that he was keen to do with the child was thwarted by something as simple as there being no carpark.  However it is inconceivable that a calm conversation about an absence of carpark is something which the maternal grandmother could have known about, since in ordinary life, it would be an insignificant matter that would normally not be the subject of any report by a child.  It therefore seems to me that it is likely the father did become agitated and frustrated. 

10. Moreover, the child has now told three people, two of whom are quite independent from the maternal grandmother, of his versions of events in appropriate, childlike, language.  Those disclosures, coupled with Ms X Holgar’ confirmation that there were no carparks at the venue on that day, persuades me that there was some frustrated, and perhaps angry, display by the father on that day in relation to that fact.  Even if I am wrong as to that, it is plain that the child has so interpreted the father’s behaviour.

Evaluation

1. I am well satisfied that the father does have difficulty with emotional regulation when under pressure or stress.  Time and time again he evidenced that in the court before me, notwithstanding I had indicated to him on several occasions that I could take into account his demeanour and conduct in court in determining the case.

2. Given that I am satisfied that the assault on Ms I Holgar occurred substantially as she contends, it can be seen that the father can, on occasion, not contain his emotions, even in family situations.  Further, as I have indicated, I am satisfied that the father did demonstrate anger on 30 April 2016 in a way that upset this child.

3. Ms L explained in her oral evidence the significance of the child’s medical conditions in this respect.  She said that such children are particularly vulnerable to expressions of anger by others.  She said it was particularly important for such children to remain emotionally calm, and to recognise and manage their emotions.  That was particularly important in managing them so as to control their own capacity to have angry or aggressive outbursts.  She emphasised that it was very important for such children to be in a stable environment, free of emotional upset. 

4. One only needs to look at the child’s response to the events of 30 April 2016 to realise the level of vulnerability which he has.

5. I assess that the risk of the father at some stage in the future being subject to stress, and in consequence demonstrating poor emotional regulation, is very high.  Further, in the event if the child were with him at that time, I assess that the child is likely to again be concerned by that, as he was on 30 April 2016.  Of course if the child were to be subject to physical violence at the hands of the father, the impact upon him may well prove catastrophic; the father’s assault of Ms I makes the risk of physical violence real, and not easily dismissed.

EFFECT ON CHILD OF HAVING NO RELATIONSHIP WITH FATHER

1. Ms L’s evidence in this respect was unchallenged.  She said that she could not say exactly what the consequences of the child having no relationship with the father would be, particularly given that she did not observe any close relationship between them.  She said that the literature demonstrates that, on a general level, children do benefit from having a relationship with both parents, and those who do not, tend to have poorer outcomes.  That said, those in that cohort can nonetheless have entirely productive lives, but at a general level, they do not do as well as others in terms of aspects of family relationships, self-esteem and like domains.  However she said it was simply impossible to predict the likelihood of those outcomes in any particular case. 

2. In this case she thought that what separated the child from other children, is his autism on the one hand, and the father’s propensity to anger on the other.  Those were significant in differentiating the child from others, because of the particular importance of him having a stable environment in order to support and maintain relationships.

3. I accept that evidence.

WEIGHT TO CHILD’S VIEWS ABOUT SPENDING TIME WITH FATHER

1. The child has inconsistently expressed views in relation to spending time with the father.  The only recent indication of any desire to do so, was in the course of the 2017 Family Report interviews.  I have already noted that on that occasion the child thought that he may be able to cope with spending time with the father every two months, for about four hours.  However I have also indicated that was a change of heart from the position he had been articulating prior to seeing his father on that day, and only expressed after the father had given him an expensive gift, which was plainly valued by the child.

2. It is interesting to note the level of vehemence of the child’s expressed views prior to meeting the father.  At paragraph 102 of the ensuing Family Report, Ms L said:

   102. When told that he would see his father shortly [the child] appeared upset.  He said strongly “I don’t want to see him!  After last time I just don’t!  He got angry at me for no reason because I said something.”  [The child] did not recall what he had said.

   103. [The child] was asked who had told him that should not see his father.  He appeared affronted and responded with anger and strong emphasis on “I”: “I chose not to see him!  I chose!”

   104. Asked “what about nan?”  He replied angrily “she clearly saw I did not want to go because I did not want to go!  She said “you have to” but I don’t have to!”

   (Original emphasis).

3. Nonetheless Ms L prevailed upon the child to agree to see the father that day.  She conceded that she put considerable pressure on the child to do so.

4. Against that background it is surprising, on one view, that within a relatively short space of time, the child was expressing a different view.  With that in mind, Ms L spoke with Ms Q.  That conversation was recounted at paragraph 175 of the subsequent Family Report as follows:

   [Ms Q] was asked how receiving a large present from the father might have impacted the child during the assessment.  She expressed the view that children with Autism Spectrum Disorder can be very materialistic in their focus.  She conjectured that the child might think “now I’m getting a really cool present.  If I see dad I could get another cool present.”  But while he might think that now he might not want to go in two months’ time.  [Ms Q] said “if there had been zero presents I would have been hesitant to say why it should be given to “in two months’ time” as ASD children are very present moment based.  They are egocentric and do not have theory of mind.  They do not act based on emotions or future but on what they would tangibly get.  In the moment their emotions are likely to be the main factor.  So what [the child] says now does not mean he will be willing to go in two months’ time.  The question about what he wanted was a complex, future based question right after an amazing gift.  The answer cannot be relied upon.”   

5. I accept that evidence, and note that Ms Q was not required for cross-examination by the father.

6. Relevant to this issue is the father’s allegation that the child has been alienated from him by the mother and maternal grandmother.  I have already referred to the child’s vehement protestation that he was the person deciding not to see the father, and that he noted that the maternal grandmother had said that he should go.  However Ms L directly addressed the question of alienation in the Family Report as follows at [183]:

   The father put the position that the maternal grandmother and the mother had vindictively alienated the child.  It was notable that while the child was strongly of the view he did not want to see his father he did not describe his time with the father in a fashion of an alienated child where all positive memories are denied.  He was somewhat nuanced in his description of his time with the father in that he said that there had been some (though not very many) good times.

7. I am not satisfied that the child’s expression of wishes has been influenced by the maternal grandmother or the mother in any material or inappropriate way.

8. As to the weight which should be given to the child’s views, Ms L said that the child has a sense of what he wants to do.  She said there are issues in relation to forcing ASD children to do things which they are opposed to, and it is important to therefore give their wishes weight.  She placed significance upon the fact that the child had repeatedly said that he did not want to spend time with the father, and although she said that was not a mature opinion, she did not interpret it as merely a childish whim.  It was the child’s genuine wish.

1. The child is 11 years of age.  His wish appears to have at least some factual foundation, based on actual experience.  It is likely to be unhelpful to force him to do things which he does not want to do, if his opposition is considerable, as I assess it to likely be.  Therefore on the facts of this case, notwithstanding the relatively young age of the child, I do give his wishes weight.  However it is far from determinative weight.

PARENTING CAPACITY OF FATHER

1. Ms L thought that if the child was co-operative, the father has the capacity to have the child in his care, particularly care that involves undertaking activities.  However she had reservations in relation to the father’s ability to meet the emotional needs of the child, given his propensity for anger and the child’s ASD.  She was troubled that she thought that the relationship between the father and the child was objectively not a good one, but the father believes that it is.  She thought that therefore the father may not be able to accurately recognise the child’s emotional presentation.

2. Earlier in her cross-examination by counsel for the Independent Children's Lawyer, she was asked whether in her view the father had appropriate insight into the child’s condition.  She noted that his current view was that the child had been diagnosed with a mild form of ASD, which she thought showed that he was minimising the condition, and did not understand the substantial nature of the child’s special needs.  She said that all carers of the child needed to have a “joined up” approach to ensure that the child remains in a predictable environment.  She doubted that such a common approach could be achieved in these circumstances.

3. Also relevant to this issue were two other matters.  The first is the father’s propensity to bring gifts to the occasions he spends time with the child.  Whilst Ms L was not critical of the father bringing gifts per se, she thought that there were two problems with it.  The first problem was some of the gifts were simply excessive.  The second problem was that the gift giving has now become a feature of the relationship he has with the child.  She particularly noted that the child had been, in effect, overwhelmed in the Family Report interviews by the second proffered gift, which he refused.  She conceded that it was unusual for a child to refuse a gift.

4. The second matter is the fact that the father’s relationship with his other children appears to have now broken down.  Although not directly relevant to the question of parenting capacity, Ms L thought that if a parent had conducted themselves in a way that had led to the failure of parent/child relationships, that predicted the prospect of that occurring with other children as well.

5. Ultimately I am satisfied that the father does have the capacity to engage with the child in activity based time, but there will always be the risk of him becoming angry and disturbing the child, and further, he tends to minimise the seriousness of the child’s condition, and therefore is unlikely to seek to closely regulate his behaviour so as not to effect the child.

ABILITY OF MATERNAL GRANDMOTHER AND MOTHER TO PROMOTE MEANINGFUL RELATIONSHIP

1. In a sense, given that the father asserts that the mother and maternal grandmother are seeking to deliberately alienate the child from him, this matter proved not to be controversial.  That is because the maternal grandmother herself indicated that she could no longer support the relationship between the father and the child.  That was certainly the view of Ms L.  She said that her current view was that the maternal grandmother cannot, and would not, support a meaningful relationship between the father and the child.  She said that the maternal grandmother was likely to oppose any such relationship and would be resistant to even taking the child to a changeover, because she would believe that he was at too much risk.  She was troubled that would likely impact upon the prospects of the time being successful, because the child would feel that his relationship with the father was not being supported, but rather was positively opposed by the maternal grandmother.  He would not feel that he had permission from his primary carer to have a relationship with the father, although she said that here the child himself was also independently indicating that he did not want it.

2. I am satisfied that the maternal grandmother is unable to presently promote a meaningful relationship between the child and the father.

IMPACT OF FATHER’S PROPOSAL ON MATERNAL GRANDMOTHER’S PARENTING CAPACITY

1. In her third Family Report, Ms L, for the first time, began to express strong views in relation to the impact upon the maternal grandmother of the child spending time with the father.  At [197] she said:

   While both the father and mother have had issues in respect of anxiety and depression, there have not to this point been any concerns about the maternal grandmother’s health.  During this assessment she appeared to be struggling with the ongoing stress connected to these proceedings.  Participation in acrimonious Family Court matters can be a significant stressor for families, including the child at the centre of these matters.  The length of time that this matter has been ongoing is concerning.  While the maternal grandmother has appeared resilient in the past there is now a risk that, should the proceedings continue, her ability to provide the stable, high quality care the child requires will be compromised.  The protection of the child’s relationship with the maternal grandmother and the environment she creates for him would appear very important for the child’s current and future wellbeing.  The progress he is now making in her care is providing foundations for his current and future wellbeing.

2. In her oral evidence, Ms L emphasised that she thought that the maternal grandmother was now demonstrating emotional fragility.  She said that the child requires a carer who can undertake complex management at home (e.g, maintaining regular routines etc) but also organising NDIS funding, negotiating with the school, and all the while providing stability for the child.  She said that requires, particularly in this case, the maternal grandmother to be robust and able to cope, given that the child sometimes presents in a challenging way.

3. She was confident that the father’s proposal, if ordered, would place the maternal grandmother under increasing stress.  She thought that in consequence the maternal grandmother was likely to suffer diminished capacity, including her capacity to adequately parent this child.  However she was unable to predict the likely speed at which that capacity would diminish, or the extent to which it would decline.

4. One of the particular concerns she had in this context was the child’s size and propensity for angry outbursts.  Because she was troubled that the child simply would not comply with any instruction to go back into the father’s care, she thought that there would likely be considerable resistance, and perhaps an outburst by him.  I note that in the past since 30 April 2016, the maternal grandmother has simply not been able to persuade the child to go into the father’s care again.  There is no reason to suggest that is likely to change in the future.

5. Under cross-examination by counsel for the maternal grandmother, Ms L emphasised the need for there to be a close and connected relationship between the child and the maternal grandmother.  She noted that trust is particularly important in relation to children with ASD, because they need to trust their main carer to interpret things, and especially their social world, for them.  She said that if the present trusting relationship between the child and the maternal grandmother was compromised, for instance by compelling the child to go to the father against his will, it was likely that the maternal grandmother would be unable to achieve what she presently can in other areas.  She thought that it would be detrimental if one continually tried to override the child’s views, and thought that it would likely be destructive to the relationship with the maternal grandmother.

6. Ms L acknowledged that there was a degree of circularity to that, in the sense that the situation might feed on itself and get progressively worse.

7. She emphasised that the important thing was to avoid the child regularly suffering meltdowns.  She thought that if the child were melting down in one environment, he would likely demonstrate such meltdowns in other environments.  Once the child got used to deregulating his behaviour, it would likely become a more frequent feature of his behaviour.

8. As to whether or not the stress on the maternal grandmother was coming from the litigation, or the prospect of having to navigate the child maintaining a relationship with the father, she acknowledged that they were different, but thought that if there were orders for time, the maternal grandmother would still be burdened, because she found any form of interaction with the father stressful.  That was for three reasons.  Firstly she genuinely believes that the child could be physically harmed in the father’s care.  The second was that she genuinely believed that the child could be emotionally harmed in the father’s care.  The third was that she genuinely believed that if the child were to spend any time with the father, it would only produce a poorer outcome for him, and not be positive in any way.

9. She was not challenged in relation to that evidence during cross-examination.

10. I accept Ms L’s evidence in this respect.  I am therefore satisfied that if the father were to spend time with the child as he proposes, it would adversely impact upon the maternal grandmother’s parenting capacity, which is likely to have greater ramifications for this child, than most children of his age.

SECTION 60CC FACTORS

1. It will be appreciated that I have already discussed both of the primary considerations, and a number of the additional considerations, in traversing the issues.  None the less I make the further observations relevant to the additional considerations.

2. The child has a relationship with the paternal grandmother, although Ms L had not observed it to have any particular warmth.

3. The father has always sought to maximise the amount of time that he can spend with the child or communicate with him.

4. The father pays a very slight child support assessment to the mother.

5. The parties appear to live sufficiently close by each other, such that there would be no practical difficulty or expense if the child were to spend time with all of them.

6. There has been extensive family violence between the mother and father, and by the father generally.  Family violence orders have applied from time to time.  The inference I draw from that is that the father has a propensity to behave in a violent way, particularly if under stress.

WHAT, IF ANY, TIME SHOULD THE CHILD SPEND WITH THE FATHER

1. I have already observed that this case is remarkably narrow by virtue of the limited scope of the remitter from the Full Court.  The only issue is what, if any time, and in what circumstances any such time, should be spent between the child and father.

2. With the assistance of the parties, during the course of the trial, I identified that the following points favour the child resuming spending time with the father:

   ·The child may obtain benefit from a relationship with the father;

   ·The father’s proposal is likely the best way of maintaining a relationship between the child and the paternal grandmother, and the paternal family generally;

   ·Spending time with the child may appease the father’s anger or frustration at what he perceives to be the alienation of the child from him (and hence reduce the anxiety of the maternal grandmother and the mother);

   ·It is consistent with child’s wish expressed to in the third Family Report at [153] (noting that this was only after the child had received a gift).

3. On the other hand, the following points tell against the child resuming spending time with the father:

   ·The child presently has a “broken down” relationship with the father (noting the father asserts otherwise);

   ·The child may obtain only limited benefits from any relationship with the father;

   ·The father may have limited insight into the child’s special needs;

   ·The father may demonstrate anger and aggression in the presence of the child;

   ·The father has no, or limited, insight as to the effects of violence, anger or aggression on the child (especially given his vulnerability);

   ·The child expresses reluctance to see the father;

   ·Any contact between the father and the child is likely to substantially impair the maternal grandmother’s ability to care for the child (Russell & Close);

   ·By providing stability, the maternal grandmother’s proposal is likely to assist with managing/minimising the child’s bad behaviour;

   ·The father’s relationship with his other children are all, or mostly all, dysfunctional;

   ·The maternal grandmother cannot physically force the child to do things against his wishes;

   ·It would wholly eliminate any risk posed by the father to the child.

4. A critical matter in the consideration of whether or not time should be spent, are the risks which I have identified the father poses to the child.  Again, with the assistance of the parties, during the course of the trial, I identified the following as potential means by which that risk could be mitigated:

   ·Limited and infrequent time, as the risk posed by the father is proportional to time;

   ·Supervision (but likely to be a permanent requirement, and therefore begs the question of what is the benefit of the relationship: Gorman & Huffman [2016] FamCAFC 174).

5. Weighing those matters in the balance tells strongly against the father spending unsupervised time with the child as he contemplates.  Central to my thinking is the lack of any major benefit which the child would obtain from rekindling a relationship with the father, the risks which the father poses to the child, which in my view demonstrably outweigh the benefits of any relationship, and the significant prospect that the resumption of time is likely to diminish the maternal grandmother’s parenting capacity, with particularly significant consequences for this child.

6. I therefore decline to make any order for the child to spend unsupervised time with the father, as he contemplated in his application.

7. That then raises the question of whether there should nonetheless be an order for supervised time.  However again, weighing the factors in the balance, I am not satisfied that there should be such an order.  Particularly not only is the requirement for supervision likely to be permanent, but again, the benefits which the child obtains from any such time are outweighed, in my view, by the prospect of the maternal grandmother’s parenting capacity diminishing in a material way, with significant adverse outcomes likely for this child.

8. Therefore I am satisfied that in this case, there should be orders as contended for by the maternal grandmother and the Independent Children's Lawyer.  Particularly they will enable the father to continue to send cards and gifts to the child at Christmas and on his birthday and on two other occasions each year.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 9 May 2018.

Associate:

Date: 9 May 2018