Holmen and Farley

[2008] FamCA 197

FAMILY COURT OF AUSTRALIA

HOLMEN & FARLEY [2008] FamCA 197

FAMILY LAW – CHILDREN – Parenting orders – Magellan – aggression directed at adults  -  relevance to child’s best interests  -  risks  -  good relationship with child  -  no time with father  -  limited communication  -  sole parental responsibility

Family Law Act 1975 (Cth), ss 4(1), 60B(1), 60CC(1), (2), (3), (4), (4A), 60CC(j), 61DA, 61DA(2), 65DAA(1), (2), 68B(1), 118
Sentencing Act 1991 (Vic), s 26(1)
Family Law reform Act 1995 (Cth)

Chapman v Palmer (1978) FLC 90-510
Beach & Stemmler (1979) FLC 90-692
Fooks & McCarthy (1994) FLC 92-450
Mahony & McKenzie (1993) FLC 92-408
Flanagan & Handcock (2001) FLC 93-074
Monticelli  v  McTiernan (1995) FLC 92-617

FATHER Mr Holmen

MOTHER: Ms Farley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 678 of 2004

DATE DELIVERED: 28 March, 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BROWN J.

HEARING DATE: 8-11, 18 October and 7-9 November, 2007.

REPRESENTATION

THE FATHER: In person

COUNSEL FOR THE MOTHER: Mr. Combes

SOLICITOR FOR THE MOTHER: McGindle Dalgleish

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr. O’Connell

INDEPENDENT CHILDREN’S LAWYER McCarthy Hoey

Orders

1. That all previous parenting orders and injunctions in respect of the child … (“the child”) born … July, 2003 be discharged. 

1. That the mother have sole parental responsibility for the child.

1. That the child live with the mother.

2. That the child spend no time with the father and that communication between the child and the father be solely as provided in these orders.

1. That the father be at liberty to send the child a card or letter, and a gift, on the child’s birthday in each year and at Christmas in each year  PROVIDED THAT  such items be sent by ordinary pre-paid post addressed to the child at the address provided by the mother pursuant to paragraph (11) hereof. 

1. That the mother may read correspondence sent by the father pursuant to the preceding paragraph and she be at liberty not to give it to the child if it is critical of her, her family or the environment in which the child is being brought up, or, in her absolute discretion, she considers it to be otherwise inappropriate. 

1. That the mother encourage the child to acknowledge receipt of items sent by the father pursuant to paragraph (5) hereof. 

1. That the mother forward to the father, at the address nominated by him pursuant to paragraph (11) hereof, the following articles :

   (a)within one month hereof, a photo of the child, taken within a month of the date on which it is posted to the father; 

   (b)a kindergarten or, in due course, school photo of the child, in each year, to be posted within one month of receipt by her or in the event no such photo is available for purchase in a calendar year, a photo of the child to be posted in November, taken within one month of the date on which it is posted to the father;  and

   (c)a copy of each kindergarten or, in due course, school report for the child, to be posted within fourteen days of its receipt by her.

1. That the father be and is by himself, his servants and agents restrained from :

   (a)approaching within 100 metres of the mother and the child;

   (b)attending at or within 100 metres of a child care centre, kindergarten, school or church attended by the child;  and

   (c)attending at or within 100 metres of the residence of the mother and the child.

1. That as soon as practicable the mother serve a sealed copy of this order on the principal of the child’s child care centre, kindergarten and, in due course, school. 

1. That within fourteen days hereof each of the parties advise the independent children’s lawyer of an address to which items may be sent pursuant to these orders and  IT IS REQUESTED  that the independent children’s lawyer provide that information to the other party, and thereafter each of the parties keep the other informed of any change in the address to which items are to be sent pursuant to these orders. 

1. That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, upon determination of the appeal. 

1. That all extant applications be otherwise dismissed.

IT IS DIRECTED

1. That these applications be removed from the List of matters awaiting finalisation.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

MR HOLMEN

Father

And

MS FARLEY

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The mother and the father have a son, “the child”, born in July, 2003.  The mother seeks that the child live with her and she have sole parental responsibility for him;  it is her submission that the father should have no contact or communication of any sort with the child.  The father seeks that the mother and he share parental responsibility and that the child spend time with him during the week, in school holidays and on special days.  He also sought a number of orders aimed at involving him more thoroughly in the child’s life.  

1. The independent children’s lawyer supported the mother’s position, submitting that the father should not spend time or communicate with the child unless and until he undertook treatment to deal with his anger and poor impulse control.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these 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).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)        to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)         to develop a positive appreciation of that culture.

2. The objects point the way to an optimum outcome.  The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie.  The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence;  see s.61DA(2). 

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

EVIDENCE

1. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses.  In what follows, statements of fact constitute findings of fact.

1. The mother relied on affidavits filed by her on 4 April, 2005, 18 November, 2005, 1 May, 2006, 30 November, 2006 and 20 August, 2007.  She also relied on affidavits sworn by her mother on 2 November, 2005 and 13 October, 2006, and an affidavit sworn by a general practitioner, Dr. O, filed on 28 September, 2007.

1. The father relied on affidavits filed by him on 4 April, 2005, 22 February, 2007, 18 June, 2007 and 24 September, 2007.  The first two (of which the second is a substantial document, prepared for the then pending trial) were prepared by a lawyer when the father was legally represented;  the last two were prepared by the father, when he was not.  He also called Ms B of P Church, pursuant to a subpoena. 

1. The independent children’s lawyer (ICL) relied on the evidence of Dr. E, a psychiatrist who prepared reports dated 1 December, 2004 and 22 September, 2006, and Ms. H, the co-ordinator of G Contact Service who swore affidavits filed on 15 June, 2006 and 30 March, 2007.  The father’s psychologist, Dr. C, gave evidence pursuant to a subpoena issued by the ICL, and Mr. Y (a G Centre worker) was called with leave.  The court had before it two reports prepared by a family consultant, Mr. M, dated 7 April, 2006 and 31 October, 2006.

1. Each of the witnesses referred to was cross-examined. The mother, her mother and Ms B gave evidence by video from a remote location, as did Mr. Y and Ms. H.

1. Numerous documents were tendered together with photos and tapes.  Part of a video tape showing the father playing with the child, and the child’s room and belongings at his father’s house, was played in the courtroom.  Late in the trial I allowed the father to tender lengthy documents produced on subpoena by Telstra, DHS, M Community Centre, Western Australian Department of Health, W Medical Centre, P Health and Dr. O.  Most had been produced in the course of earlier hearings and, until well into the trial, it was believed they had been returned to those producing them.  The documents were then found in the Dandenong Registry of the court (the file commenced in that registry).  The father had made reference (in evidence, submissions and cross-examination) to some of this material.  The late tender had the potential to disadvantage the mother more than the father (most of the tendered documents were records referable to her) but I allowed their tender given the father was unrepresented and convinced of the material’s relevance and significance.

PARTIES
           The mother

1. The mother is 37 and is employed as a part-time health worker, an area in which she has considerable experience.  She lives in D and supports herself and the child from her earnings of about $600 per fortnight, plus Centrelink benefits. 

1. The mother was adopted as a baby and her parents live in D.  Her mother is 59 and her father is 74.  They see the child two or three times a week.  The father continually referred to them as her “adoptive parents” in the face of her mother’s evidence of the offensiveness of this characterisation;  the legal reality is that they are her parents.  She met her birth mother as an adult, a few years prior to meeting the father.

1. It is probable the mother’s father is a forceful and strong-minded man and that her relationship with him has been troubled, at times.  In November 2004, giving a personal history, she told Dr. E that her father had been strict and she was “somewhat frightened and wary” of him and it is probable she expressed similar sentiments to the father in the course of their relationship.  While there still may be tension at times, I am satisfied that the mother and her father have a reasonable relationship and that he and his wife have been supportive of their daughter since she returned to Victoria.

1. The mother’s evidence was of a relationship with a man called A who, she believed, sexually abused her after spiking her drink.  In November 2004 she said that occurred some nine years earlier, dating it to about 1995.  She then gave evidence of an engagement when living in the U.K. in the late 1990s and of the death of her fiancé.  Returning to Australia she settled in Perth, in March 1999.  After returning to Australia, the mother was referred for assessment by her GP, Dr. K. The W Medical Centre (WA) records note a diagnosis of depression made on 28 January, 2000; there is reference to occasional suicidal ideation and one prior overdose attempt.  A report from a psychologist, dated 26 April, 2000, records the mother’s ten appointments with the psychologist for general depression; the appointments were to change from weekly to fortnightly.

1. In Perth, the mother formed a relationship with a man called B.  They separated in January 2002, briefly reconciled in February 2002 and then separated again.  The mother’s psychiatric problems re-emerged in early 2002, in the context of the final break-up of her relationship with B.  The evidence was of her self-harming by cutting herself at that time.  She attended her GP on 19 April, 2002, and was diagnosed with an acute adjustment disorder, with suicidal ideation.  After damaging B’s car on 23 April, 2002, she was charged and, in a distressed state, was taken by police to Hospital where she was admitted as an involuntary inpatient for five days. 

1. The Department of Health (WA) file notes advice from police to the hospital that the mother had damaged B’s car (broken the window or windows and scratched it) and had sent him bizarre and sexually oriented messages by phone.  She was convinced her life was ruined and her only choice was to die.  Unwilling to be admitted, she was placed on a form 1 order and admitted to the locked ward.  She gave a six month history of low mood, hopelessness and ideation of self harm.  Whilst still an in-patient, she attended Court in April, 2002 and pleaded guilty to a charge of criminal damage, for which she was placed on a community based order.  The record notes a report by her that she felt like self harming on 27 April (she asked a staff member to take a comb) and some superficial scratches to her right wrist.  Her mood settled and she was discharged on 28 April, 2002. 

1. Soon after discharge the mother advised her GP she wanted to resume anti-depressants and by 19 June, 2002 the notes record a good response to Cipramil and that she was a lot better. 

1. The mother has not formed an intimate relationship with a man since leaving Perth in early 2003.  She did tell the father (in a letter) that she was involved in a new relationship which, I am satisfied, was part of a strategy to extricate herself from continued emotional involvement with the father. 

1. The mother’s evidence was of being fearful of the father, a fear he denied and derided.  I will refer later to their ambivalent relationship after separation, but I have no hesitation in finding that the mother is apprehensive for her safety when confronted by the father.  He could not understand why his behaviour towards a more recent partner in April 2007 was relevant to the mother’s perception of him or her fear, indicative of the difficulty he has in seeing his own behaviour in a contextual framework.

1. As the father was not legally represented, he cross-examined the mother himself.  That was no doubt difficult for both of them.  She appeared apprehensive and anxious.  At times her evidence was inconsistent or confused and she was unable to recall details of events put to her which occurred some years ago.  He was keen to enquire into aspects of the mother’s life prior to their meeting and found it difficult to contain himself to the matters the court saw as relevant to the issues before it.  Some of her answers were evasive and non-responsive.  She did not attempt to disguise the fact that, from soon after the time of separation, she believed the father should have no contact with the child or change her stance to put herself in a better light.  That said, on several occasions she consented to orders providing for the father to have contact with the child.  I am satisfied she tended to reconstruct events through a lens of mistrust of the father but I accept that she generally did her best to tell the truth as she recalls it. 

The father

1. The father is 37 and lives in the outer suburbs of Melbourne.  He was initially employed in Victoria on a fulltime basis but deposed to being only in part time employment after April 2007.  His parents separated many years ago.  His father remarried and his stepmother may sometimes have been referred to as his mother.  They live in Perth, as does his mother.

1. Prior to his parents’ separation the father observed his father assaulting his mother;  he spoke of incidents in which his father broke his mother’s nose and fractured her skull, of violence directed at him by his father, and of his father being stabbed by a female partner. 

1. The father gave evidence of a happy ten year relationship which his partner, C, terminated, to his distress, when he was in his late twenties.  He then formed a relationship with D, who he met on a chat line;  this was about a year before meeting the mother.  The father agreed that police became involved.  His evidence was that D, falsely, alleged that he would not leave her house, was fixated on her and removed an item of furniture to which she had a profound emotional attachment;  he said that he rang her husband to tell him of her promiscuity and lies.  His evidence was that the allegations were withdrawn and that she was a very deceptive individual.  Soon after that he was charged and convicted of disorderly conduct and assaulting police:  he was fined.  

1. The father’s evidence was of attending five months of counselling after he was convicted of assaulting police in December 2001.  In his opinion it was not helpful as it did not deal with “the burning issue of people being dishonest in relationships”.  Given the offences of which he was convicted, it is unlikely it was designed to grapple with this issue.

1. The father then formed a relationship with Ms E, who had a five year old son;  again, they met through a chat line.  His evidence was of a relationship between April and June 2002.  When it was put to him that he told Dr. C that the relationship ended because he got drunk and abused her, he said he meant that Ms. E complained he insulted her.  The father’s conduct towards Ms. E and her property, well after separation from her, resulted in his conviction on a number of criminal charges in Western Australia. 

1. After the father moved to Victoria in October 2004, he formed a relationship with Ms F, again through the internet.  That, too, ended unhappily;  again, the father’s behaviour towards her resulted in criminal convictions, this time in Victoria. 

1. The father’s hand was injured in a work accident in 1996.

1. The father uprooted himself from his life in Perth to come to Victoria and it is unsurprising that he took some time to settle, as he had neither employment, family, friends or accommodation here.  Dr. E reported that when the father saw him in September 2006, some two years after the move, he said that things had settled for him and were a lot better.  He had a base here, a small group of friends, had been “patching things up” with his father, was having contact with the child and had formed a relationship.  Cross-examining Dr. E, the father sought to resile from that account but I am satisfied it was given, and represented the father’s then perception.

1. Acting for himself, the father cross-examined numerous witnesses, as well as giving evidence.  I am confident he did his best to act in an appropriate way in the courtroom and it is likely he has little idea of the effect of his demeanour and tone of voice on those around him.  A transcript will not reveal these aspects, save for a couple of explosive outbursts. 

1. The father’s tone was often hostile and his presentation was marked by verbal and non-verbal indications of contempt for the mother and those he saw as thwarting his time with his son.  Twice he exploded into anger and aggression.  These aspects were markedly absent in his final address;  whilst he struggled to maintain composure, there was much less pressure of speech at that time and his love for the child was manifest. 

1. From the father’s perspective a number of witnesses have lied to the court in order to put him in a bad light and cover up their own inadequacies.  These include the mother, the mother’s mother, Dr. O, Ms B, Mr. Y and, possibly to a lesser extent, Dr. E.  He was often keen to focus on what he perceived to be an inconsistency in an account, which – if it occurred - was of negligible significance and did nothing to invalidate the general thrust of the evidence.  He spoke of the child’s rights but conveyed a pervasive disregard for the rights of others.  He tended to blame others for his predicament and to see himself as the victim.  The evidence (including his own) painted a picture of pervasive instability of mood and behaviour.  Like the mother, he saw through a prism of distrust, but it extended beyond the mother and encompassed many professionals and a number of women who, he believes, have acted dishonestly and immorally.  I do not doubt that he did his best to tell the truth but I cannot have confidence in his capacity for objective recollection.

WITNESSES
           Dr. O

1. The father challenged Dr. O’s expertise, a challenge I do not find well-founded.  He criticised her for prescribing anti-depressant medication while the mother was breast feeding;  her evidence in relation to this was cogent and informed and I find the criticism unwarranted.

1. Dr. O has been a GP for twenty years and psychiatric medicine makes up a large part of her practice.  She has the highest level of registration available to a general practitioner, the result of additional training in mental health;  only a small percentage of general practitioners have that qualification.  Her evidence was that she felt confident in managing the mother’s depression and I am satisfied that confidence was soundly based.  I find her to be a witness of expertise.

The mother’s mother

1. The mother’s mother’s dislike of the father was obvious and unsurprising.  On two occasions I asked her husband (the mother’s father) to refrain from commenting when she was giving evidence;  he did not himself give evidence but other evidence serves to confirm his dislike of the father, a dislike expressed, sometimes, in strong terms.  Notwithstanding her obvious disapproval of the father, I am satisfied the mother’s mother endeavoured to tell the truth and I find her to be a generally honest witness. 

Ms B

1. Ms B gave evidence of some interaction with the father in early 2007.  She was an impressive witness and I have no hesitation in accepting her account of what occurred, and of her response to the father’s conduct.

Dr. E

1. Dr. E saw the parties in 2004 and 2006 and prepared psychiatric assessments of them.  He was cross-examined at length by the father who attacked his competence and his opinion.  Dr. E remained reflective and detached.  His evidence was insightful and cogent and I place weight on it. 

Ms. H

1. Ms. H is the co-ordinator at G Centre.  She was not in that role when the father used the service in late 2004 and early 2005 and relied on notes taken by workers involved with the family at that time.  Nor was she directly involved in supervision after joining G Centre in 2005.  Her dealings with the father related mainly to administrative matters and complaints, of which he had many.  She presented as a detached and responsive witness.

Dr. C

1. Dr. C is a psychologist consulted by the father in late 2006.  Although the father may not have realised this, I am satisfied Dr. C bent over backwards to advance his cause, while maintaining her obligation to tell the truth.  An illustration is her response, when faced with evidence indicative of her fear of the father;  rather than an overt description of her state, she said that her “heart was racing”.  The father agreed that be became upset when he read Dr. C’s notes, produced on subpoena.  It is relevant that among the notes which caused him to respond angrily were comments relating to his refusal or incapacity to acknowledge personal responsibility for violence.

Mr. Y

1. Only one worker who supervised the father’s changeovers was called and the father was correct in his assertion that it was difficult to challenge the reports of others.  I attempted to explain to him (particularly in relation to evidence relating to Mr. Y) that, having regard to the serious nature of the allegations, and in the absence of actual evidence from Mr. Y, more weight would be placed on the father’s account of events.  As he maintained his complaint, Mr. Y was called.

1. Mr. Y presented as a detached, observant and calm man.  He spoke directly and the thrust of his evidence was clear.  I accept his evidence of the aggression displayed to him by the father and the language used.  I also accept his evidence of his observations of the child’s demeanour. 

Mr. M

1. Mr. M’s curriculum vitae shows that he has been a registered psychologist since 1984.  He has been a member of the Australian Psychological Society since 1986.  When he prepared two family reports in 2006, he was employed as a family consultant in this court.  He left sometime later. 

1. Insofar as an expert’s opinion is based, wholly or in part, on a history provided, it is only as sound as the facts on which it is based.  If those facts are wrong, or subsequent evidence discloses facts to the contrary, the opinion must be reconsidered.  From Mr. M, I gained little sense of any such reconsideration, or reflection.  Pressed, he made some concessions but, faced with scenarios at odds with his opinion, he generally maintained his original position, and his explanations and rationalisations as he struggled to justify that earlier opinion were remarkable and, sometimes, risible.  They undermined his credibility and objectivity.  I cannot say whether his refusal to move from the opinions he expressed in his written reports stemmed from a general reluctance to make concessions, a limited understanding of the impact of observed violence on children, or from other reasons.

1. If psychology is the science of the nature, functions and phenomena of the human mind (Oxford English Dictionary (Compact Edition) Oxford University Press, 1971) or the study of the mind and mental processes, especially in relation to human behaviour (Webster’s New World Medical Dictionary, 2^nd edition, 2003), I could not find that Mr. M demonstrated much in the way of psychological insights or an understanding of the effects of violence on the cognitive and emotional development of children.  An illustration is his response when asked about the potential negative effects on the child of witnessing rage from his father.  He responded with one effect only, being “concern about it going to happen next time”.  Asked if there might be any other negative effects, Mr. M said “No” adding that “I was just thinking if the child is more fearful about what might emerge at the time”.  Asked about the potential for the child to model the father’s behaviour, Mr. M said :

   “It’s a difficult one.  Yes, there is the possibility that that could occur but children are their own agents at some level as well.  So they can have their own tantrums irrespective of whether parents model or not.” 

1. This analogy, equating adult violence and aggression towards another adult with a child’s tantrum, is indicative of the problem posed by Mr. M’s evidence.  Either he meant, literally, what he said, which demonstrates a profoundly inadequate understanding of parental responsibility and the effects on children of witnessing violence, or the evidence was a facile and ill-considered response, generated by a reluctance to make an appropriate concession.

1. Later in the evidence Mr. M said that the child should not be stopped from seeing his father because his father had acted “in a silly way”.  Faced with the father’s police record, Mr. M said he was wary of agreeing with the proposition that the father has a history of violence.  Asked specifically about the history of intervention orders and convictions for breaches, he reiterated that this is “adult to adult interaction” but that often “parents act differently with their children”.  Mr. M was keen to assert that one could not extrapolate from the father’s dealings with adults that he would act in a similar way with his son. 

1. Mr. M was referred to paragraph 37 of his report dated 31 October, 2006, where he stated :

   The father has also shown he still has some difficulties with controlling his impulses but does seem to have managed to deal with [G Centre] to sort out case management difficulties.  While the father does seem to have greater difficulty in dealing with adults, it needs to be stated that when individuals feel their rights are being threatened, in this case his time and involvement with his son, then it is not unusual for some emotion to emerge.  It does seem to the reporter that when the father is having a one to one relationship with his son there is little difficulty.

   There is the question mark about how the father will deal with a challenging child and the possibility of impulsive anger in such a situation.

1. This could be said to encapsulate much of Mr. M’s evidence.  From his perspective, the only relevant issue was whether the father’s “impulses” might impact directly on the child;  that is, by the child being the target of the father’s “impulsive anger”.  Again and again Mr. M spoke of there being no evidence that, in a one on one situation with the child, the father had been violent or aggressive to the child.  This opinion seemed to be posited on the father and the child being quarantined from the world in all their dealings.  When I put that to him (that one’s interactions with one’s children cannot be quarantined from interactions with the wider world) he replied :

   But if for example, your Honour, the father and the child are at home and they’re playing happily together, and doing things happily, then none of that behaviour may appear.

1. Mr. M maintained his focus on “one-on-one” contact, despite being told of evidence of numerous acts of aggression, many of which were in the child’s presence.  He maintained it in the face of evidence that the father had not managed to deal with G Centre to “sort out case management difficulties”.  His response when first challenged by counsel for the ICL is illustrative of many of his responses.

1. Counsel asked Mr. M :

   In the light of the evidence that has emerged about the police convictions and if her Honour were to accept the evidence of the [G Centre] worker, that he was assaulted at the [G Centre] by the father, if that were to be the case, and in the light of the concern by the father’s treating psychologist and indeed by Dr. [E], does your level of concern in relation to the father’s difficulty controlling his impulses change from what you advise in that report?

1. To this, Mr. M responded :

   No, it doesn’t.  The way I think about is the number of incidents which – certainly the ones that have been described – are not okay and one can only say that about those, but it’s the number of incidents that have occurred.  You have given me two or three incidents I think in your description just now.  That’s adult-to-adult stuff and that’s that part of it.  I mean, if we were to say that because parents had altercations then there’d be hardly any children seeing the other parent.

1. At the time Mr. M gave that evidence, he had been told of Mr. Y’s evidence of a verbal and a physical confrontation with the father; of G Centre’s refusal (for the second time) to facilitate any further contact;  of the substance of charges on which the father was convicted in May 2007 (to which I will refer later, but which include breach of an intervention order, recklessly causing injury to a former female partner, criminal damage and arson);  of the father’s “forceful” exchanges with his psychologist, Dr. C;  of a confrontation the father had with a church worker;  and of the anger that the father demonstrated to Dr. E in the courtroom.  Not one of those instances outlined to him involved an altercation between the parents. 

1. When I queried Mr. M’s statement, pointing out that one of the allegations (albeit denied by the father) involved an assault on a worker while the father was holding the child in his arms, Mr. M said that he did not “agree with that by any means” and went on :

   I mean, the emotion that was shown, again, it’s over an extended period of time if you like, how often has this occurred?  Once is not good, I agree with you, your Honour, but it’s a case of because someone has lost it once or twice or three times, is that sufficient reason for saying no contact with the child.

1. Mr. M was asked a direct question to this effect:  if there were evidence which the court accepted that, consistently, when coming up against someone in authority with whom he did not agree, the father found it exceedingly difficult to contain what Dr. E referred to as his rage, did that have a capacity to impact on the child, whether the child was there or not.  To this, Mr. M replied :

   If it happens in front of the child, yes, it does have a capacity to affect the child.

1. I then pointed out what might be said to be the far end of the spectrum, suggesting to Mr. M that if the father’s rage resulted in his imprisonment, that would affect the child whether or not the child had been present at the time an offence had been committed.  To this Mr. M replied:

   That’s correct.  Although the child is not necessarily in fear of the father, having been in the environment where this rage has been shown, it’s a different situation.

1. Pressed, Mr. M said :

   If there is reasonable confidence that the father could not contain his rage in front of the child then I would make a recommendation that his time with the child be limited and surrounded by certain controls, if you like.

1. On Mr. M’s construction, violence appeared to be unconnected with an assessment of parental responsibility or parenting.  He apparently saw little potential for violence and aggression directed at adults, in the child’s presence, to impact on the child’s relationships with the perpetrator of the violence or the target of the violence, or on the child’s emotional and psychological development, and behaviour.  To him, verbal violence seemed almost irrelevant.  I will consider this aspect further when assessing the relevance of s.60CC(j).

1. I regret that I must find Mr. M’s evidence to be of only marginal assistance. 

1. The evidence contains a plethora of allegations and contested facts and it is simply not possible to determine every matter in dispute.  For this reason, I propose to summarise the evidence of, and make findings referable to, the more significant matters which will provide a chronology of events to date.  I will then consider the application of the legislative provisions.

CHRONOLOGY

1. The parties met through a chat room and commenced a relationship in 2002.  The mother dates it from 1 August;  the father from late September.  They never lived together, maintaining separate houses.  They were both 31 years old;  both had experienced psychiatric problems and both had been in previous relationships in which their behaviour, after separation, ultimately led to criminal convictions. 

1. The mother’s conviction, for criminal damage after damaging her former boyfriend’s car, is her only conviction.  The father had a number of offences proven against him in the Children’s Court, and a criminal history in adult courts.  The conduct which resulted in the further criminal conviction of the father occurred after he and the mother separated, but related to a previous girlfriend, with whom he was involved when he met the mother. 

1. Considerable evidence went to the mother’s psychiatric and emotional problems, their manifestation and treatment prior to, during and after the parties’ relationship. Save for his admissions, and some evidence of counselling (court ordered and voluntary) there was no evidence from any medical practitioner, hospital or mental health service relevant to the depression which, the father deposed, had been part of his life for many years prior to him meeting the mother, save the evidence of Dr. C. 

1. I will consider the medical and other evidence relevant to the parties’ respective mental health later.

1. The parties’ relationship was troubled from the start.  The father was ambivalent about his relationship with his former girlfriend, Ms. E (despite it ending some months earlier) and not sure what he wanted from the relationship with the mother.  I cannot say if he were taking any anti-depressant medication. 

1. It is probable the mother was looking for an idealised committed relationship in which, possibly, she could have a child;  notes from the W Medical Centre record that in June 2000 she said she was considering pregnancy with donor insemination.  The father was looking backwards to his relationship with Ms. E, rather than forward to the sort of relationship the mother wanted.  I do not doubt that he made that clear, and frequently compared the mother, unfavourably, with Ms. E.  Increasingly distressed, on 3 November, 2002, the mother self-harmed by cutting herself.  No doubt shocked, the father did attempt to comfort her and the cuts were apparently not serious enough for him to suggest medical treatment. 

1. The following day the mother rang the Hospital, advising of her self-harm and of depression.  They ascertained she had been seeing Mr … at the Ministry of Justice (probably in relation to the community based order) and had been restarted on Cipramil three weeks earlier.

1. In November 2002 the mother discovered she was pregnant and was taken off the Cipramil.  Her evidence was that the father continued to act in an emotionally abusive way, moving between protestations of love for her and insulting and derogatory conduct, behaviour which the father denied.  A letter written by the father to her mother, after separation, shows that same tendency, statements of affection and concern being followed by critical and insulting observations. It was also illustrated by aspects of his evidence and submissions.

1. On Christmas Day 2002 the parties spent time with the father’s stepmother and father.  In the course of that day there was an argument;  the father agreed that he threw a punch at his father and that their relationship was either non-existent or cool for some time after that.  At the father’s home later that day, the father pinned the mother against a wall;  he said this was to “make her stay” and confront the issues he thought needed to be discussed.  The mother’s evidence was that he was drunk and she thought he was going to hit her.  Her evidence was that, save for that occasion, he did not physically assault her (for example, by punching or kicking) but that she was often frightened by his verbal abuse, which I accept.

1. At 1:00 pm. on 31 December, 2002 the mother rang the Hospital, asking to present as she felt she could not cope.  The notes record advice of her unplanned pregnancy, her partner’s “baggage” and the stress of moving home.  No bed was available.  Her evidence was of then going to the father’s home and, receiving no support or comfort, cutting herself again.  Later that day she presented to the hospital in a very stressed state, with some thoughts of self-harm but no suicidal ideation.  She spoke of conflict with her boyfriend and his deprecatory comments, comparing her unfavourably with his former girlfriend. 

1. The father relied on a statement made by the mother to Victoria Police on 14 August, 2003, which he annexed to the affidavit sworn by him on 24 September, 2007.  In the statement the mother said that the father was not physically abusive (save for pinning her against the wall on Christmas night in 2002) but that she often felt scared for her safety, as a result of verbal abuse.  She described him as a dictator, said he would abuse her if she cooked something he didn’t like, showed emotion (like crying), or didn’t act or do things the way he wanted.  She described a pattern of behaviour in which he would tell her to “fuck off and don’t come back”, then start sending contrite text messages as she was driving home.

1. On about 3 January, 2003 the mother broke off the relationship.  There was a dispute between the parties when the mother attended the father’s home to collect personal items on 6 January.  On 8 January the father came to her home.  After some discussion, he wanted her to drive him back to his home;  she agreed to take him to the Railway Station.  Her evidence was that she was sufficiently concerned by his behaviour that day that she asked her flat mate to follow her in her car, which she did.  At the station the father stood by the mother’s car and would not let her open it to remove his bike.  The friend drove the mother to the police station, and police returned with her;  the mother’s evidence was that the father was abusive to police and insulting to her but, eventually, left.  The mother’s evidence was that the father was charged by police after that incident on 8 January;  that was denied by the father and there was no evidence to support her allegation.

1. In late 2002 the mother had bought a ticket to fly to Melbourne in January 2003, to see family.  When she bought the ticket, her intention was to come for a holiday.  She left Perth on 15 January, 2003 less than two weeks after separation, having decided that she would stay in Melbourne and not return with her child to Perth.  She stayed with her parents for some time before acquiring independent accommodation.

1. Back in Melbourne, and living with her parents, the mother was referred to Ms X at M Community Centre for counselling.  She saw Ms. X regularly from April 2003 until July 2004;  the notes produced pursuant to subpoena then record an attendance on 8 March, 2006.  At intake she gave a history of a relationship dilemma;  it is probable she still hankered for an idealised family unit and was tempted to return to Western Australia whilst aware of the need (from her perspective) for the father to change before that could occur.  She discussed his inappropriate and dangerous manifestations of anger and reported that his treatment of her deteriorated in the course of the relationship, resulting in him being critical and controlling, and yelling.  The notes record advice that she was confused by his telephone calls and angry outbursts accusing her of being controlled by her parents, who she knew, worried about her. 

1. The mother agreed that she once said that her parents had rescued her from the situation with the father and it is probable that is how she and her parents saw it.  From the father’s perspective, the mother’s father is a manipulative and controlling man, who orchestrates the behaviour of his wife and his daughter, who have little or no agency.

1. While the evidence surrounding these events was confused, it is probable that after the mother left Perth, the father hoped to rekindle his relationship with Ms. E.  When she moved residence to a property relatively close to his, he assumed she, too, wanted such a relationship.  It is clear the assumption was wrong and the foundation for it, as described by the father, was less than slight.

1. In February, 2003 the father attended Ms. E’s home and used a baseball bat to damage Ms. E’s car and the car of her then boyfriend, parked at that property.  He scratched the word “slut” into the roof of Ms. E’s car and the words “not worth it” into the roof of the other car.  Ms. E also alleged that on another occasion the father broke into her house and stole lingerie;  the father denied this. 

1. The police sought to interview the father and Ms. E sought a violence restraining order against the father.  On 20 March, 2003 an order was made, which was served on the father on 2 April.  In the course of court proceedings (whether the application for the violence restraining order or after he was charged with offences arising from the incident in February, 2003) the father told the court that it was the mother who had damaged the cars at Ms. E’s home.  The mother eventually learnt of that from Ms. E and, on 14 August, 2003, made a statement to police in Victoria, in which she deposed to being in Melbourne at the time the alleged offences occurred.  The father conceded his involvement and, in due course, pleaded guilty to the charges relating to the car but not guilty to other charges. 

1. While the father took issue with much of a police summary read to him, he did agree that he made calls to Ms. E’s home at night (while denying these were anonymous), that she didn’t want him to call, that he “had problems” with her having a new boyfriend, that he damaged the cars as alleged and that it “felt good to take a little bit of something back” in that way.  He accused her of neglecting her son and of using him.  While remorseful that “it damaged my life”, he saw responsibility for the offences as lying with Ms. E, who could have prevented them by being “honest”. 

1. The father’s evidence was of being convicted of assaulting a police officer, being the police officer involved in investigating the allegations relating to the damaged cars.  In his affidavit filed 23 February, 2007 he deposed to being intoxicated when he assaulted police.  The record notes that in August, 2003 the father was convicted of several disorderly conduct offences and assault police.  The convictions apparently arose from events in May 2003.  The father said a police member (referred to in the charge as a public officer) alleged the father kicked him in the groin;  the father then laid charges of assault against him and another police member, which were dismissed.  He was sentenced to four months imprisonment and fined.  He was in jail between August and November, 2003, serving (with remissions) two months and 20 days of the four month sentence. 

1. The trial for offences connected with the cars at Ms. E’s home was not until the following year;  the charges were not laid, it seems, until late 2003.  In 2004 the father was sentenced to a 24 month intensive supervision order for criminal damage, and eight months imprisonment, suspended for two years, for stalking Ms. E, having pleaded not guilty to the latter charge.

The relationship between the parties after the child’s birth until the father moves to live in Victoria

1. The child was born in July, 2003.  The father is named on his birth certificate.  Save for some bare information about his birth, birth weight and condition, the father was provided by the mother and her family with no information.  The mother’s evidence was that when she first discovered she was pregnant, the parties had discussed names, and had chosen the child’s name; whether or not that was right, she certainly had no discussions with the father about it after she left Western Australia.  The father deposed to being sent “blurry” photos of the child and the birth registration papers, which he signed.  He was aware the papers provided for the child to be registered under the mother’s surname and said he signed them to keep the peace, even though he wanted the child to carry his name.  Sometime after his birth, the mother gave the father a copy of the child’s birth certificate but a certified copy (for which the father sent payment) was not provided for many months after the request. 

1. By letter dated 10 September, 2003 the Child Support Agency advised the father that an application had been made for child support for the child.  It was a routine, preliminary letter, advising the putative paying parent of rights and obligations.  No assessment issued.  Much later, in May 2006, the Agency advised the father that the mother had requested cessation of child support.

1. There is no doubt the mother rang the father on numerous occasions after moving to Victoria.  The father tendered a tape on which are recorded five messages left by the mother on his answering machine.  In his affidavit of 18 June, 2007 he dated these between July 2003 and December 2003 which is probably correct;  in the witness box he said they were made over about a two month period.  A transcript of the messages (attached to his affidavit) was admitted after counsel for the mother conceded messages in those terms had been left by his client. 

1. The first message was clearly left prior to the child’s birth.  In it, the mother advised the father that she thought she had made a mistake and he was not the father, and that “I was already pregnant before we . . . . fucked each other”. 

1. The second message commences with an apology and demonstrates the mother’s ambivalence about her relationship with the father.  It must have been left after the child’s birth and prior to his two month immunisations, which dates it between July and September 2003.  In it the mother said :

   [Father’s name], it’s [the mother], I’m just ringing to basically say sorry for some of the things I’ve said lately.  I’ve been doing a lot of thinking, in the evening and every night, and I thought you know, if it didn’t work out over here, then you know, in the last six months, I would come back to W.A. and you know.  I just meant to do the right thing, by living as a family together.  Anyway, I’ve been arranging (inaudible), to get over within the next couple of months, and come over after [the child’s] had his 2 months immunization.  O.K.  bye.

1. The third message is in the same vein, as follows :

   It’s me.  I’ve booked a flight for mid-September.  I’ve told my family and course they’re not happy, really not happy.  Um, anyway, they can’t do anything about it.  Anyway, give us a call back on my mobile [number], bye.

1. The mother did not travel to Western Australia in September 2003.  She did take the child to Perth for four days in November 2003, to meet her relatives and friends.  Whatever her intention when she left the message prior to the then anticipated September travel, she made no attempt to contact either the father or his parents in November.  The father was in prison in Western Australia between August and November, 2003, and may well still have been incarcerated at the time the mother and the child were there. 

1. The fourth message relates to photos the mother sent to the father, and is in these terms :

   Hi [father’s name], it’s [the mother].  Just ringing to say that I’ve sent the photos.  I’ve sent about three, um, you know, better than the others.  And, ah, there will be more in the future of course.  Um, and [the child’s] asleep at the moment, he’s just settled, just a little while ago.  Ah, yeah, anyway, talk to you later, bye.

1. The last message is entirely different in tone.  In it the mother said:

   [Father’s name], I think you’re forgetting to tell, tell people why, I tried to take my life when I was with you last year.  Cos that’s my, at the time it was my only escape to get away from you, until my parents became aware of the situation I was in and they rescued me.  And don’t you ever, ever, come near [the child] . . . or me . . .again.

1. The father’s evidence was that these messages are indicative of the mother’s “troubled state of mind” and he relied on the admission that she tried to take her life.  I am satisfied that the messages chart the mother’s ambivalence, from the early blunt and untrue denial of paternity (indicative of her then wish for her, and her then unborn child, to have nothing to do with the father) through a period in which she continued to harbour hopes of a reconciliation and the creation of a happy family unit (contrary to her family’s more rational advice) to her rejection of the father. 

1. The cycle was repeated in early 2005, the mother responding to overtures in a letter written by the father, visiting him at his home, and eventually fleeing.  The recorded messages also demonstrate that not all the calls made by her to the father were harassing or, as he alleged, anonymous.

1. As the father appeared to place great store on documents produced by Telstra pursuant to subpoena, an analysis of all the records was undertaken.  I summarise it in some detail.  A concise summary of conclusions drawn from it would be to the effect that the mother made more calls to the father than she was prepared to admit and the father exaggerated the number of calls he received.  It is indicative of the mother giving ambiguous and inconsistent signals about her interest in pursuing the relationship when living in Victoria (prior to and after the child’s birth) and consistent with statements attributed to her in the notes of a psychologist she consulted during that period.  She vacillated between hope, fear and confusion.

1. The father’s evidence was that his home phone number in Western Australia was ….  Between 4 June, 2003 and 22 November, 2003, thirty calls were made to that number from a mobile service registered in the mother’s name.  It is probable that calls made between August and November 2003 were, as the mother deposed, checking to find whether the phone was still connected, as the father was in prison.  Eight calls were made on 25 July, 2003 and on three other days in July 2003, four calls were made.  Calls were also made on 10 January, 24 January and 26 March, 2004. 

1. Another mobile service was registered in the mother’s name and calls were made from it on 27 March, 2003 and 3 May, 2003.  From a silent land line (leased in the mother’s name between 29 March, 2004 and 30 March, 2005) one call was made to the father’s home, on 31 October, 2004. 

1. In the tendered Telstra documents was a copy of a letter, dated 30 July, 2003, to the mother at D, from Telstra’s “National Unwelcome Calls” service.  It noted that “unwelcome calls” were received by a customer, originating from the mother’s mobile service and requested co-operation to ensure the service was not used for that purpose.  The calls were at 7:43 pm. on 29 June and at 6:30 pm. and 6:46 pm. on 13 July, 2004.  The number which received the unwelcome calls was not specified; nor was the complainant. The comprehensive records of calls from this mobile service show no calls to the father’s home or mobile at those times, so they may have been made to a different number. 

1. Records revealed no phone calls made from the mobile services in the mother’s name to the numbers which the father gave as his father’s phone number.  From the silent landline three calls were made to that number on 6 August, 2004 (one of over six minutes);  it is probable the father’s evidence of receiving seven calls from the mother on 6 August, 2004 was an exaggeration.  Two more calls were made from this silent line to the father’s number on 29 November, 2004. 

1. From the mother’s mobile service nine calls were made to the father’s mobile number;  two were made on 21 May, 2004 and seven on 1 June, 2004.  This was not consistent with the mother’s evidence of making no calls to the father’s mobile number.

1. In August, 2003 (just prior to his W.A. court appearance) the father travelled to Melbourne to see the child.  Ms. X’s notes of a consultation with the mother on 19 August, 2003 record the mother being “confused and destabilised” after the father flew over and rang her from the local Post Office.  I cannot say why he gave no notice of his visit.  The mother was only prepared to allow the father to spend a short time with the child in the presence of a police officer, and another short period not in the police officer’s presence.  The total period was probably about 20 minutes, as alleged by the father. The father alleged he was not allowed to hold the child;  Ms. X’s notes record the mother’s advice that “[The father] saw and held [the child]”.  They also record her advice that the father wished to reunite, and discussion of her own feelings of guilt. 

1. Soon after this, the father commenced his sentence.  The father’s evidence was that the mother had agreed to have her number (in fact, the phone number at her parents’ home) put on the list of numbers which prisoners could telephone.  While it was not her evidence, it is likely she did that; she was certainly ambivalent about the potential for a reconciliation. 

1. In September 2003, after the child’s birth, the mother commenced to see Dr. O and was prescribed Zoloft for what Dr. O described as mild to moderate post partum depression. 

1. On 16 September, 2003 the mother wrote a letter to the father in prison in which she told him she and the child were fine, that by the time he got the letter they would be in Queensland living with her brother, that she would have to get another solicitor in Brisbane and would send photos and her new address once they were settled.  Save for the advice about herself and the child, this was a fabrication, motivated, I am satisfied, by a desire to extricate herself from the continuing ambivalence of their relationship.  On 8 October, 2003, the father received another letter from the mother, advising the move to Queensland had been “put on hold”.

1. Whether on her initiative or at her parents’ urging, only one of some four or five calls the father made from prison were accepted (at the commencement of each call there is a recorded message that it is a call from a prison).  The mother’s mother then asked the prison authorities to have the number removed from his list.  The mother told Ms. X that had occurred on 7 October, 2003. 

1. By then (Ms. X’s notes record) the mother was again very depressed and had recommenced on anti-depressants.  She told Ms. X she was very upset after receiving an angry and threatening letter from the father complaining of her parents’ obstruction and very concerned about his threat to portray her as a mentally unstable person.  By then (again according to Ms. X’s notes) her parents had returned, unread, a 17 page letter to the mother’s mother from the father.  The letter (annexed to her affidavit sworn 17 August, 2007) is of 17 numbered pages, closely written.  The letter moves from a lengthy history of his relationships with prior partners C, D, Ms E and the mother, to criticism of her (the mother’s mother’s) alleged denial of his rights and attitude, the mother’s “nasty streak”, assertion of harassing calls from Ms. E and the mother, justifications of the damage to Ms. E’s car and his assault on his father, and threats that the Family Court would remove the child from the mother.  He said he had two crank calls a day, every day, for the last seven months, and 15 calls in one hour on one occasion, that the mother never got over the pain of adoption and that they wouldn’t treat a dog the way they treated him.  Interspersed were assertions of love for the mother and philosophical musings. 

1. On 18 December, 2003 the mother filed an application seeking an intervention order against the father, which was returnable on 9 January, 2004.  That Christmas she refused to accept Christmas presents sent by the father.  She said she did not proceed with the intervention order on the return date, as the father was in Western Australia. 

1. The mother and the child spent five days in the Mother/Baby unit at the Hospital in January 2004;  she deposed this was in respect of “my depression and my ability to care for [the child]”, which is consistent with the records.  They record some private sessions with a psychologist, as well as group sessions and counselling.  The mother gave a history of an “unstable and emotionally abusive relationship” with the father, and described harassment from him.  Notes record that she was fearful and confused. 

1. By letter dated 30 January, 2004 the father was advised by his then solicitor that the mother’s solicitor had advised of instructions to return Christmas presents to him.  At that stage the father’s instructions were to seek DNA paternity testing.  He proposed that he receive regular written updates of the child’s progress, plus photos;  when the child was older, he would pursue phone contact and, when financially able to do so, face to face contact.

1. On 31 May, 2004 the mother filed an application in which she sought orders that the child live with her, she have sole parental responsibility and the father’s contact with the child be reserved. 

1. On 18 June, 2004 the mother, and her parents, formally advised the father that they wished to have no contact with him, or with anyone else on his behalf. 

1. On 11 August, 2004 the father filed a response to that application in which he sought that, until further order, the child live with the mother and he have contact at a supervised contact service and, each alternate weekend, contact supervised by “a delegate from Aiders and Carers”.

1. The matter was first listed for hearing at the Dandenong registry on 13 August, 2004. It was adjourned to 10 September, 2004 when Wilczek J. made orders, by consent, providing for the parties to attend on Dr. E for psychiatric assessment. 

1. It was around that time that the father contacted the Department of Human Services in Victoria, allegedly concerned that the mother was mentally unstable.  He agreed he made two complaints to DHS.  In the first (on 13 August, 2004) he alleged the mother was mentally unstable and neglectful of the child, the latter because (he said) the child was screaming in the background when the mother was talking on the phone to him.  In the second (on 2 November, 2004) he alleged that the mother sounded deluded, talking about her grandmother and her adoptive family, and had rung him 18 times over a two day period.  There is reference in the DHS files to a third notification by him on 8 February, 2005, alleging the mother’s functioning was affected by psychiatric illness and substantial emotional trauma to the child. 

1. The father’s evidence was that when contacted by DHS, the mother’s father provided prejudicial and false information about him to DHS, which hoodwinked DHS into not conducting a proper investigation.  The father was critical of DHS for failing in its mandate to protect children.

1. The DHS file does record conversations with the mother’s father in which he was very critical of the father.  The DHS record shows that he provided DHS with copies of advice from the W.A. prosecutor, letters from his daughter’s solicitor and from the father, and a statement the mother made to police in August 2003.  The mother’s father told workers that he knew who made the notification in August and that it was “a psycho who had been in jail”.  Contacted again after the second notification, he described the father as “a nutter and malicious”. 

1. DHS workers did not rely solely on these exchanges with the mother’s father or the documents he provided, or on conversations with the mother.  Workers contacted the medical service on 30 August and were advised of the mother’s competence and that the child was meeting milestones and doing well.  The following day a worker contacted the mother’s Community Health centre and was advised that the mother attended regularly and the child was a very alert child, doing well developmentally.  Their file recorded no concerns about suicidal ideation or self-harming tendencies;  the worker was told any concerns for the mother were mainly in relation to anxiety.  After the second notification, a worker again spoke to the two health services. 

1. The DHS files record the father’s frustration and anger, directed at workers.  A note records that on 14 September the father spoke in a loud tone and hung up on the worker when the worker advised that the father’s complaint that day (that the mother had been hospitalised in psychiatric wards in the past and could hurt herself again) would be documented as a case note, rather than investigated as a fresh notification, as the same concerns had been expressed in the past.  On 4 November another worker noted that the father was extremely angry and raised his voice for much of the call.  The father said he was pissed off at speaking to three different workers, angry that workers had not observed the child (and demanded they do so) and wanted to make a complaint.  On 16 November the father rang (in response to advice that no further action would be taken) and was angry and extremely abusive, demanding to know who to speak to, in order to make a complaint.  Details were provided and the father rang the following day to complain. 

Father moves to Victoria

1. In October 2004 the father moved to Victoria, having arranged to transfer the outstanding corrections order to this State.  On 11 November, 2004 the father commenced the counselling component of the community based order, which had been transferred to Corrections Victoria.  Between then and 26 July, 2005 he had 18 sessions of one hour with Ms R, psychologist, which included, primarily, anger management strategies as well as strategies to address issues of depression and anxiety.  According to a letter from Ms. R, dated 7 September, 2005, the father engaged well and demonstrated increased insight into his offending behaviour and an ability to apply the “learnings” to daily life.  Events since then demonstrate the inaccuracy of this assessment.

1. The mother and her parents having made it clear (by returning items) that there was little use in sending items to the grandparents’ home, the father delivered a number of items to the mother’s then solicitor, for forwarding to her.  In evidence were receipts dated 9 November, 2004, 23 November, 2004, 20 December, 2004 and 5 January, 2005 relating to the provision of items including packets of nappies, toys, baby food and other items appropriate for a small child. 

1. Although at one point the mother applied for child support, she withdrew the application and has sought no financial contribution from the father.  I accept his evidence of his willingness to contribute to the child’s support and attempts to do so through gifts of money and useful items.  His criticism of the mother and her parents in these respects was justified.

1. Pursuant to orders Dr. E conducted psychiatric assessments of the parties and issued a report dated 1 December, 2004.  His final opinion was in these terms :

   1.Both parties have significant past psychological and/or psychiatric issues in their life. 

   [The mother] has a longstanding psychiatric history for which she has required treatment with antidepressants on both an inpatient and outpatient basis, and has at times exhibited self harming acting out and angry behaviour towards herself and others.  She is an adopted child.  She described somewhat ambivalent feelings towards her father who she experienced as frightening and controlling.  Unresolved issues in this respect may well have been acted out in a number of her relationships with men in which themes of fear and anger pertain.  On one occasion she was charged with malicious damage in this respect in a relationship not that long before she met [the father].  She has always been interested in childcare.  [The father] indicated that she deceived him in respect to becoming pregnant.  [The mother] indicated herself that she had a strong wish to become pregnant.  Psychological issues to do with belonging, being cared for and caring for others appear to be significant in respect to matters to do with her upbringing and adoptive status.  Prior to her meeting [the father] she had sought out her birth mother and family, and found this an unsettling and troubling experience and required psychiatric treatment and/or counselling for this.  In addition she alleges that she had been raped and abused in an earlier relationship also.  As such, she is someone who in my view is likely to approach relationships ambivalently, on the one hand wanting to be cared for, loved and have a family, and on the other, feeling disappointed and troubled when partners could not or did not wish to care for her and commit to her in this respect. 

   2.[The father] described a dysfunctional and violent relationship existing between his parents.  He indicated there was little in the way of emotional contact and support for him and his brother.  In this respect he is also likely to have issues about being cared for and loved.  He suffered a workplace injury in the context of a longstanding relationship which he experienced as mutually caring and supportive.  From his description he was traumatised by his injury and his traumatised stage, moodiness and anger appear to have brought the relationship to an end.  It would appear that he had considerable difficulties adjusting to this and alleges that he had two unsuccessful relationships in which themes of anger, being trapped and misled pertain.  He admits to having stalked one of these women.  He further indicated that as a result of various matters relating to those relationships, he had been charged with assault.  He impressed as someone who is likely to have considerable unresolved issues and anger in regard to these earlier and later matters.  Some of these, on his own account, spilled over into the relationship with [the mother].  His statement to her that he had unresolved feelings towards his former partner are is likely to have set off her deep insecurities.  [The mother] described [the father] as an angry and controlling man who was possessive and self righteous.  Her description of him is indicative of someone who has been hurt, feels victimised, is “angry with the world” and sees himself as very much a victim.  [The father’s] account of his perception of “the system” would fit in accordance with this.  [The mother] remains fearful that he is angry and vindictive and likely to act out these feelings out against her and as a form of retribution, remove [the child] from her.  On the other hand, [the father] indicates that [the mother] has pre-existing and longstanding insecurities in this regard, and that her fears in respect to having her baby removed began before they separated.  These fears, to the extent that they existed, may well emanate from her earlier life as an adoptive child, and are being displaced on to her experience now as a mother. 

   3.[The father] impresses as a man who is determined to maintain contact with his son.  He said that his wishes in this respect occur on the basis of his own unhappy experiences as a child and his wish for [the child] not to have to experience a broken family.  It would appear however that his relationship with [the mother] is broken.  The degree to which his wishes in this respect occur, as [the mother] would have it, as part of his controlling, forceful and self righteous personality (she says he has been ringing DHS repeatedly and also her parents) as a result of his inability to accept the relationship is over or whether his attempts to restore his relationship with his son have triggered her insecurities and longstanding fears are matters which need to be determined on evidence.  In this respect, I found [the mother] to be extremely fixed in her views of [the father], obviously very frightened of him, and resistant to the notion I believe of him having any real contact with [the child], a situation that she simply finds very difficult emotionally to face.  To the extent that her views and statements in this respect occur on the basis of longstanding vulnerabilities and unresolved issues both psychiatric and psychological are not helped in any way by [the father’s] matters before the Courts and [the mother’s] knowledge of them.  They only reinforce in her mind [the father] as being a real threat to both herself and her relationship with her son.

   4.The relative contribution of each party’s psychiatric and prior psychological issues in this matter is one which will only be determined on the evidence obtained.  I have little or no information in respect to the parties’ prior psychiatric history.  I have no information or documentation provided by the Department of Human Services in respect to [the mother] and her son.  I have no documentation in respect to the matters that relate to [the father’s] prior relationships, and psychiatric assessments in regard to those.  All of this information will be important in assisting the Court to determine the accuracy of each party’s perceptions and their relative contributions to the current situation. 

   5.I have not interviewed or assessed [the child] and have little information about his development and wellbeing, and my report needs to be read accordingly.

Supervised contact between father and the child begins

1. The matter came back to court on 6 December, 2004 when Judicial Registrar Ramsden made orders which provided for the father to have two hours supervised contact per fortnight at G Centre.  The following day the father sent a 28 page letter to the mother, which was not in evidence.  The father agreed that in that letter he said that the mother had been tricked and played on by the prosecution in Western Australia, who manipulated her and told her he was the blackest and darkest person, filling her mind with negativity and the notion that he was not safe around children and he should have no contact with the child.  He alleged that the Western Australian prosecutor sent information about the criminal charges, and about him, to the mother’s father, who gave it to DHS, and by doing this compromised the future of the mother, the child and the father.  His evidence was that the charges in Western Australia were irrelevant to the mother.

1. The DHS file includes a memo dated 8 June, 2004, of a phone attendance by the solicitor for the mother on the W.A. prosecutor who is recorded as being very concerned about the risk the father represented.  In quotation marks are the words the solicitor recorded the prosecutor saying :  “At the moment he is dangerous.  I wouldn’t leave a young child with him on his own”.

1. There is also a copy of a fax from the prosecutor to the mother, dated 12 July, 2004, advising her (as a prosecution witness) of the outcome of the hearing on 23 June, 2004.  The prosecutor wrote :

   As I advised you in the past, your dealings with [the father] have to be extremely firm.  He seems to manipulate your responses or lack of responses at times as giving him permission to behave in a particular manner.

2. The father was thus correct when saying DHS were privy to information from the prosecutor in Western Australia and that it was very critical of him.  Enquiries made by DHS are necessarily wide and I find nothing sinister in the recording of the various interchanges.  I am satisfied that on 7 December, 2004, and notwithstanding his recent complaints to DHS and the orders made the previous day, the father professed his love for the mother and raised the potential for them to marry in the future, in the long letter.

1. Around this time the father also wrote to the mother’s solicitor, alleging the mother’s biological mother had sexual abuse problems, her biological father was an alcoholic and her biological sister a heroin addict.

1. The father had a supervised contact visit at G Centre on 8 January, 2005.

1. In the days after receipt of the 28 page letter the mother went to the father’s home on a number of occasions.  Her evidence of this was confused and, at times, inconsistent.  According to her oral evidence, she went once to deliver a letter (in the father’s absence) on or about 9 January, 2005 and then visited when the father was there on two subsequent days.  In her affidavit sworn 1 May, 2006 she deposed to visiting with the child on 9 January and again on 17 January.  The father’s evidence was that she visited when he was there on three occasions and that is more probable.

1. The father annexed a statement he made to police on 23 January, 2005 to the affidavit filed on 23 February, 2007.  He also referred to these visits in a number of affidavits.  While there were some inconsistencies in his accounts, the general thrust was common to all.  The father stated he saw the mother leaving his street when he returned from work on 9 January.  The child was seated in the back of the car.  He motioned for her to pull over but she drove right past without stopping.  She returned one and a half hours later with the child, and stayed three hours.  He said the mother blamed him for her negative thoughts, became increasingly upset and started to cry.  He said that he found a letter from her in the letter box on 10 January, and that day she came to his house again with the child.  Again, he played with the child.  He complained that the mother leafed through self-help exercises given to him by his counsellor, asked a lot of questions, and was rude and insulting, and that it was he who terminated the visit. 

1. In the statement to police the father said that in the letter the mother invited him to meet her at a local cafe at 6:30 pm. on 12 January, and said her biological mother and a friend would be there.  He said when she left his home with the child at about 9:30 pm. on 10 January (having spent three hours there) they arranged to meet at the beach the next day at 10:30 am. 

1. In the statement the father said the mother did not show up at the beach and when he returned home a window by the front door was open.  On 15 January he discovered the letter from the mother was missing.

1. The father said that the mother came with the child on a third occasion, on 17 January, and stayed for about 45 minutes in the course of which she berated him, telling him he was sick and in denial while he tried to play with the child.  He said he told her she was upsetting the child and she left.  In the statement he said she left after he confronted her about taking the letter.  He said nothing in any account of that visit of trying to stop her leaving the home, something he conceded doing in the witness box. 

1. The mother agreed she was confused about the nature of her relationship with the father at this time and it is very likely her ambivalence prompted those visits.  She denied that she mentioned any possibility of reconciliation in the letter she delivered to his home but agreed she did later attend the father’s home, at a time he was having contact with the child, and retrieved that letter.  Her evidence was of doing this as she didn’t want him to use it against her, although she could not remember what it was that could be used against her.  It is probable she had responded positively (or at least not negatively) to his protestations of love and wish for reconciliation, and extended the invitation described by the father, and she probably removed the letter later to stop the father from producing it in the proceedings.

1. The mother’s evidence was that she went to see the father at his home the first time because she wanted to make clear that the allegations he was making to her doctor and DHS were uncalled for.  She said she went the second time because he kept calling her, and she overcame her fear for a brief moment, and that was stupid.  Her evidence was that on that second occasion, the father tried to stop her leaving his home.  He agreed he did that on one occasion. 

1. I must find that I have rarely heard such a banal response from a psychologist.  The answers were devoid of any genuine assessment of the impact on a child’s emotional and psychological functioning of being deprived of one parent, particularly in circumstances where the resident parent, and many of those around her, do not hold the absent parent in high esteem.  One would expect an analysis which took into account potential effects on the child’s emotional and cognitive development, relationships with his peers, and relationship with the resident parent.  One would expect some assessment of the likely consequences as the child ages, on his capacity to form relationships with peers, and with those in authority.  One would expect some consideration of the potential difficulties which might be faced if, for example, an absent parent is either demonised or idealised, with potential impacts on the relationship with the resident parent or on the child’s behaviour.  This was all absent from Mr. M’s analysis. 

1. The court needs to consider the potential effect on the mother were there to be orders for continuing contact, insofar as that could impact on the child.  Dr. E was asked about this aspect and I have referred to his evidence at paragraph 295 of these reasons.  The father’s final submissions were unlikely to reassure the mother or make her feel less fearful.  He saw her as “vengeful” in relation to the damage he did to Ms. E’s car and feels provoked by her and her parents. 

1. Counsel for the mother put to Dr. E the incident (which the father denied) in which the father confronted the mother in March 2007 and called her a “psycho bitch”, after which she left the scene, shaking.  Dr. E’s reply was that incidents of that sort could significantly interfere with the mental well-being of the mother, more so than the average person.  Dr. E said that what he had been told would lead to a conclusion that the father’s behaviour was out of the ordinary, and that was concerning. 

1. Mr. M agreed that were the mother to be placed in a situation in which she continued to be frightened of and intimidated by the father it would have an adverse effect on her parenting ability.  He said “when you start to talk about own needs and wants, the wellbeing of the parent is important in the wellbeing of the child, in raising the child.”

1. It was not alleged by the mother that the father has attended or harassed her at her home (since 2004) or her parents’ home.  Despite his antagonism towards her, he has not focussed his anger at her in that direct way.  I do not doubt that accounts of the aggression he has directed at others to whom she is personally or professionally close (such as Dr. O, Ms B and her parents) have affected her state of mind and contributed to the maintenance of her fear and apprehension, as has the shopping centre incident.

(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. The father was unable to offer a solution to the problem of changeovers, save for saying that the mother should deliver the child and he and she should be able to get on well.  In the context of this case, that would have to be seen as a pious hope.  G Centre has withdrawn and there is no other service in that immediate area.  The mother’s parents are not prepared to be involved any further and the father would not accept them, in any event.  Mr. S, who once was prepared to facilitate changeovers, does not (according to the father) want to know the father any more.  A private agency would be expensive and there must be significant doubts as to the viability of any such arrangement. 

1. Mr. M spoke of the difficulties of finding someone to supervise the father’s time with the child, or even changeovers.  He said that given what he had heard, six months would be the “absolute limit” someone would last.  G Centre initially only lasted less than two and, supervising changeovers, about five months.  I have little confidence that any professional service would put up with the father’s behaviour. 

1. The father’s own evidence was that the second he came into the car park at G Centre, his blood pressure “went up double”.  In his view, he handled his emotions with the child in the very best way he could (in dealings with G Centre and when the grandparents were involved with changeovers) and he did not suggest he would alter his attitude to those who dealt with the child in ways of which he disapproved.  In final submissions the father said that he is aware that his temper, at times, is highly inappropriate and that “I do suffer fits of rage from time to time when I feel an injustice against my son.  I don’t disagree with that whatsoever”.  He said he would always be vigilant about the child, because he is his only child;  he did not believe in people standing over other people, or in people abusing their power.  It is very likely that any person involved in a supervisory role, whether at changeovers or spending time with the child, would be seen by the father to be abusing his or her power.

(j)any family violence involving the child or a member of the child’s family;

(k)Any family violence order that applies to the child or a member of the child’s family, if :

(i)the order is a final order;  or

(ii)the making of the order was contested by a person;

1. Dr. E’s evidence was that conflict between parents is acknowledged as a causative risk, both emotionally and physically, to children.  He expressed concern, based on what he was told of the father’s conduct towards Ms. E and Ms. F, that there could be risks for the child arising out of future relationships the father may have with women, as the problems he has with anger and emotional reactivity in adult relationships spill over into violence and aggression. 

1. Dr. E was also concerned about the potential for disputes with teachers and others when the child is at vulnerable stages, such as starting school.  The father submitted that he had served a subpoena on the child’s child care centre, without incident, and that showed he was able to deal politely with such organisations.  I do not doubt that occurred but it misses the point.  Delivering a subpoena is one thing;  delivering the child is another.  Dr. E’s evidence was that the father is unable to accept any conduct towards the chld with which he does not agree and that it is highly likely he will have conflict with those in authority, for this reason.  This has the capacity to significantly impact on the child’s sense of settling into school, or other situations. 

1. I have earlier referred to Mr. M’s focus on the potential for the father to be physically or verbally violent towards the child.  Mr. M conceded there was some potential for this.  Dr. E was more concerned about this potential than Mr. M;  he spoke of the potential as the child gets older and more independent, for him to express contrary views to those of the father, and the difficulty the father could face in dealing with this.  He was most concerned about the capacity for the father’s aggression to impact indirectly on the child.

1. It is well established that witnessing abuse of others can be extremely traumatic for children. The immediate effects are illustrated by the demeanour of the child described by Mr. Y.  That the father himself may have some understanding of this was illustrated by a series of questions he asked Mr. M, posited (it seemed) on him being verbally abusive in response to anonymous phone calls, and considering the likelihood that the recipient of the abuse (the silent caller) may have been the child.  He sought from that to conjure a finding of child abuse by the mother (that is, putting the child on the end of a phone, silent, in the knowledge that it was likely the father would be verbally abusive) although he had earlier given no evidence of any abusive response to such phone calls.  Nevertheless, the questions themselves suggested a potential awareness of the effects of verbal violence upon a child.  Any such insights have not stopped him behaving in a verbally aggressive way in the child’s presence in the past. 

1. The detrimental effects of verbal abuse should not be underestimated, either on the target of the abuse or on those who are subjected to it, albeit not as direct targets.  Verbal aggression and intimidation are insidious forms of violence and should not be dismissed as “silly” behaviour or “just yelling”.  Such abuse can have physical and mental health consequences. 

1. The evidence shows that the father has no problem solving strategies, save complaint and abuse. He has no qualms about discrediting the reputations of those with whom he disagrees, by spreading negative rumours or confronting third parties, close to the person with whom he is in dispute. He invalidates the feelings and perspectives of others, elevating the importance of his own feelings, perspectives and complaints. Faced with a situation with which he does not agree, he confronts the other actor in the situation; he described himself as not the sort of person who walks away from what he believes to be right. Having taken that course, he then complains about the inevitable consequences, and endeavours to attribute responsibility for them to someone other than himself. 

1. These are harsh judgments but, in my view, inescapable ones. 

1. The father gave evidence of the child saying he was “sorry” to him for no sensible reason.  He attributed this to the mother.  Mr. M agreed it is possible that the child was doing this because he was frightened of his father losing his temper as a result of things said or done by him.

1. If the father were to be verbally abusive to the child in the future, it is possible the child, too, may become angry and aggressive, and any existing problems he has with his social development would be exacerbated.  There is also the potential for the child to model his father’s verbally abusive behaviour.

1. Mr. M was asked by counsel for the ICL about the risk of the child modelling the father’s behaviour and said this :

   It’s a difficult one.  Yes, there is the possibility that that could occur but children are their own agents at some level as well.  So they can have their own tantrums irrespective of whether parents model it or not. 

   But the fact of the matter is that children do model their behaviour on their parents, don’t they? --- Yes

   There is a risk there that if they do see a parent behaving in this rageful way as a means of dealing with a difficult situation say, or something they perceive to be difficult, they could take on this modelling behaviour? --- Yes.  Then it is up to the parent who then witnesses that at a later stage to deal with that and say, “Listen, that’s not okay.”

   What, “Don’t do what I do but do what I say”? --- Unfortunately, yes.

   Do you think that’s going to be very effective teaching of a child?  “Don’t do what I do but do what I say”? --- It happens all the time.

   It may happen all the time but is it effective? --- Well, when they become teenagers then you really have to deal with that issue.

I do not find that evidence useful.

1. Mr M did have some concerns about the potential for the father’s impulsiveness to impact on the child, particularly if the child became challenging.

1. Mr. M conceded that if the court found that there had been numerous manifestations of anger and impulsiveness by the father, which were consistent and on-going, there would need to be a more supervised aspect to visits, particularly at changeovers.  He also conceded that there was a likelihood, in those circumstances, that the father would continue to express views and act in impulsive and forceful ways in the future.

1. The father’s evidence was that the mother has been violent to him on occasions.  He deposed to her throwing a glass at him in December 2002, which smashed and cut his leg.  While the mother disputed details of his account, she agreed she threw a glass, which smashed. 

1. The father’s evidence of the mother trying to stab him needs to be put in context, as described by him in the affidavit filed 23 February, 2007.  He said that in December 2002 he found the mother in the bath, with knives on the bath rim.  He removed the knives.  Later, the mother held up a knife towards him, “gesturing as if she was going to stab me”.  He took the knife and put it on the kitchen bench.  The mother than lunged for it.  On the father’s own evidence it is far more likely the mother was intending to harm herself, at this time, rather than him, and I doubt he genuinely believed she intended to stab him.  There is no doubt she was then psychiatrically unstable and capable of harming herself.

1. It is probable the mother did act aggressively when she was psychiatrically unwell, prior to the child’s birth.  I am not satisfied that the evidence supports a finding that she has been violent or aggressive since leaving Western Australia in January 2003.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The independent children’s lawyer proposed that the court should order that the father spend no time with the child and leave it up to him to seek treatment and apply again when he has dealt with the problems of anger and impulse control.

1. Such a proposal carries within it the potential for there to be another round of litigation. On the other hand, were proceedings to be reissued by the father, without any evidence of psychiatric assessment and treatment, or evidence of other new facts and circumstances, one could anticipate the dismissal of the application and, potentially, an order pursuant to s.118 of the Family Law Act 1975. If he did address his problems and make genuine headway, it would be in the child’s interests to resume a relationship with him.

(m)any other fact or circumstances that the court thinks is relevant;

1. Central to the recommendations made by Mr. M in each of his reports was a balancing of the potential difficulties and risks associated with each of the child’s parents.  In his first report, under the heading “Recommendation”, he noted :

   The reporter recognises that there are potential difficulties with both parents, the mother with medication to help her control her moods and the father with his anger and impulsiveness.  But recent history, since around mid-2004 when [the child] was about one, has not shown either parent to have regressed to old behaviour.  There have been warning signs however but in the end that was all that happened.

It was on that basis that Mr. M recommended that the father have regular and unsupervised contact.  He concluded the report with a last recommendation :

It is also recommended that the parents jointly participate in a contact orders program at a local agency to learn how to communicate without insistence, blame or fear.  If the parents can create a more pleasant and peaceful environment not just for themselves but for their son […] also, [the child] is likely to grow and thrive with even better results than he is now. 

1. That report was prepared in April 2006.  In his second report, prepared in late October 2006, Mr. M restated the theme, identifying his concerns as the mother’s long term psychiatric instability and the father’s tendency to become annoyed with adults who he perceives as perhaps interfering with his time with his son or who may deal with the child in a way he may disapprove of.  He continued :

   With the mother it is a little difficult to anticipate whether the lower dosage of antidepressants will maintain her in the more animated fashion the reporter observed or will in time lead her back to tendencies to self-harm.

   The father has also shown he still has some difficulties with controlling his impulses but does seem to have managed with [G Centre] to sort out case management difficulties.  While the father does seem to have greater difficulty in dealing with adults, it needs to be stated that when individuals feel their rights are being threatened, in this case his time and involvement with his son, then it is not unusual for some emotion to emerge.  It does seem to the reporter that when the father is having a one-to-one relationship with his son there is little difficulty.

   There is the question mark how the father will deal with a challenging child and the possibility of impulsive anger in such a situation.  It is hard to quantify this potential.  There is likewise a worry about the mother’s need to retain equilibrium through her medication.  There is the potential here too that the mother could revert to depressive and self-harming behaviour if she ceases her medication or the dosage is lowered too far.  This potential for the mother is similarly difficult to quantify.

   Thus the reporter has again found no grounds on which to make a recommendation to exclude one parent or the other from the child’s life.  As before the reporter sees the need for both parents to be involved in the care of [the child] and if either begins to slide backwards then the other can take steps to address the issues.

1. It is clear from these recommendations that Mr. M saw the risks posed by each of the parents to be relatively evenly balanced.  On the evidence before me, I cannot share that view.  The mother has not “regressed to old behaviour” if, by that, Mr. M meant psychiatric instability and, possibly, significant depression and self-harm.  To the contrary, she has stabilised on a significantly lower medication dose and her prognosis is good.  She is no longer enmeshed in or ambivalent about her own relationship with the father and has built a life in which she has support from family and friends.  The evidence does not support a finding that her psychiatric state poses a risk to the child. 

1. On the other hand, the father has “regressed to old behaviour” and has faced increasing difficulties consequent on his anger and poor impulse control.  There is certainly no evidence that the child has ever been the direct and intended target of his father’s wrath, but there is a body of evidence of aggression directed at other adults in the child’s presence, and out of his presence.  The father has not been able to build on such counselling or therapy as he has had and remains rooted in an analysis in which he is the victim of dishonest women and men, rather than the architect of his dilemma.  The evidence supports a finding that the father poses a risk to the child’s safety and stability, for the reasons earlier discussed. 

1. I add that I am unsure what Mr. M meant when he wrote that “if either begins to slide backwards then the other can take steps to address the issues”.  One wonders what steps he had in mind and how information about the other’s “slide” would come to a parent’s attention.  Paragraph 45 of that second report contains a recommendation which would require the parties to discuss long term decisions and it may be that Mr. M had great confidence in the capacity of a contact orders program (as recommended in paragraph 42) to ameliorate the intractable hostility between the parties, which has endured for most of the child’s life.  Unless the parents were to begin communicating freely (which is close to unimaginable), the only way each could learn what is happening in the life of the other would be through interrogating the child, a course detrimental to his wellbeing. 

PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

1. Having considered all relevant factors referrable to the child’s best interests, the Court must determine whether the presumption of equal shared parental responsibility applies. 

1. I am satisfied the father has engaged in family violence as defined in the Act.  On his own account, the incident on Christmas Day 2002 would come within that definition, as would his conduct when the mother tried to leave, with the child after visiting him at his home in January 2005;  on the mother’s evidence, the incident in March 2007 was an instance of family violence, as was the verbal abuse directed at her in Perth.  I am satisfied on the evidence that the behaviour on each occasion would have caused a reasonable person in the position of the mother to fear for her safety.  Other evidence of the father’s conduct when the child was in his arms also falls within the definition of family violence, as causing a reasonable child to be fearful for his safety.  That is particularly so of the incident involving Mr. Y.  These instances would justify a finding that the presumption does not apply.  If the presumption did apply, the evidence is overwhelming that it should be rebutted as not being in the child’s best interests.  I am satisfied that his best interests demand that the mother have sole parental responsibility for him.

1. I do not ignore the finding that the mother threw a glass at the father in 2002 which would also fall within the definition of family violence.  However, the court must balance that one finding against the many adverse findings made in respect of the father’s aggression and violence.

1. The evidence which supports a finding that the child should live with the mother is overwhelming and, indeed, an order in those terms was not opposed by the father at the trial.  The question then is whether the father should spend time and communicate with the child.

1. Considering all the evidence I am satisfied that face to face contact with the father will pose an unacceptable risk to the child’s emotional and psychological development and physical safety, as a consequence of the father’s anger, aggression and poor impulse control.  No proposal has been advanced to the court which could protect the child from the potential consequences I have described earlier in this judgment.  In reaching this conclusion I do also place weight on the potential effect on the mother of an order for the father to spend time with the child, but that is a lesser factor. 

1. It may be to the father’s credit that he can admit his tendency to rage when, in his perception, someone attempts to interfere in his relationship with his son.  But that frankness is not matched by an insight into the necessity for change or constructive action to effect change, and in those circumstances I cannot find change likely.

1. Were the father to undergo psychiatric assessment and treatment, to good effect, he may be able to play a meaningful role in his son’s life.  Until that occurs, the need to protect the child from psychological and physical harm outweighs the consequences of the damage to that relationship arising from spending no time with him.  In making that finding I am satisfied that the consequences of the loss of that relationship for the child are more wide ranging and significant than those expressed by Mr. M.  Judicial experience and research suggest that the loss of the parental relationship can impact adversely on a child’s emotional and social development, and manifest in problems with self-esteem, a sense of identity and relationships with family members, peers and others as the child progresses through life.  These are possible consequences, not necessary ones, and much will depend on an individual child’s resilience which, in turn, is a product of emotional and psychological strengths built in the child’s primary environment and interactions in the wider community.

1. This finding raises the need to consider whether there should be any form of communication between the father and the child.  I have found that the child loves his father and may miss him.  I have also referred to the potentially adverse consequences which could result from the child’s father not playing a meaningful role in his day to day life.  The court cannot know whether the father will heed the expert evidence and take steps to obtain psychiatric assessment and ongoing treatment.  Mr. M thought he would and it is to be hoped that assessment is accurate. 

1. If the court assumes that the child will not see his father, at least in the foreseeable future, it should also assume that the child will, at some time, be curious about his father and his father’s absence from his life.  As Mr. M noted, the mother has experience of the desire to know one’s biological origins, having sought out her biological mother as an adult.  In my judgment it is important that the court does what it can to keep the father alive in the child’s world view.  This is likely to accrue to the child’s advantage, whether or not he resumes actual contact with his father at some time in the future.  Any communication designed to achieve this end must take into account the need to protect the child from inappropriate material and the benefit to the child of his father having some knowledge of his progress and development. 

1. I am satisfied it will be in the child’s best interests for the father to be able to send him a card and gift on his birthday and at Christmas in each year.  The mother will be able to read correspondence, and not pass it on to the child if it contains inappropriate material.  I am satisfied an order in those terms is necessary, given the substance of the lengthy letter the father sent to the maternal grandmother, and notes in records of correspondence sent by him to Ms. F more recently. 

1. I am also satisfied it is appropriate to require the mother to send to the father a kindergarten or school photograph of the child each year, and a copy of each report from the child’s school or kindergarten.  By a report I mean the report routinely provided to parents, usually at the end of each semester, but sometimes annually. 

1. Orders will provide for each of the parties to nominate an address to which correspondence and gifts, and photos and school reports, can be sent;  it need not be his or her residential address. 

1. I accept that the father has not attempted to see the child at crèche or kindergarten or the mother’s home and save for the evidence of the incident at the supermarket in March 2007, there has been no direct interaction between the parties for a long time.  The mother sought that the father be restrained from approaching within 100 metres of the child and her.  Such an injunction is consistent with the intent of an order that the father not spend time with the child.  Its aims would be the protection of the child and the mother from the potential for exposure to the father’s anger or, indeed, grief, directed at the mother or other adults and the implementation of the order precluding no face-to-face contact.  I am satisfied it is appropriate to make such an order to achieve those aims.  It will extend to the father’s attendance at the child’s child care centre, kindergarten and, in due course, school, and to the home in which he lives with the mother.

The child’s surname

1. I turn then to the question of the child’s surname.  The father is named on the child’s birth certificate so the child will have ready access to that information when he is older. 

1. The importance of a child’s name is illustrated by the inclusion of it in the definition of major long-term issues contained in s.4(1) of the Act. Although orders will provide for the mother to have sole parental responsibility for the child, and thus she will be the person charged with responsibility for making decisions about major long-term issues, the question of the child’s surname should be determined by the court, having regard to the father’s application.

1. Principles governing the change of a child’s surname were set out by the Full Court in Chapman v Palmer (1978) FLC 90-510. The Full Court held that the guiding principle is that the welfare of the child is the paramount consideration and must stand above the wishes or proprietary interests of the parent. At 77,675 – 77,676 the Full Court summarised a number of factors to which a court should have regard in determining whether there should be any change in the surname of a child as including :

   (a)      the welfare of the child as the paramount consideration;

   (b)the short and long term effects of any change in the child’s surname;

   (c)any embarrassment likely to be experienced by the child if it’s name is different from that of the parent with custody or care and control;

   (d)any confusion of identity which may arise for the child if his or her name is changed or is not changed;

   (e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;

   (f)       the effect of frequent or random changes of name.

1. In Beach & Stemmler (1979) FLC 90-692 Connor J. suggested that the Full Court in Chapman v Palmer did not intend to restrict the considerations, and took the following additional matters into account :

   (a)the advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now;

   (b)the contact that the husband has had and is likely to have in the future with the children;

   (c)the degree of identification that the children now have with their father;

   (d)the degree of identification which the children have now with their mother and their stepfather;

   (e)the degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored;  and

   (f)       the desire of the father that the original name be restored.

His Honour noted that mere convenience by itself was not a sufficient reason to change a child’s name.

1. In Fooks & McCarthy (1994) FLC 92-450 Warnick J. considered an application by the father that the child’s mother be restrained from using or allowing to be used any surname other than the father’s for the child. In that case the child was registered at birth in the father’s name and when the parties separated, the mother reverted to the use, for herself, of her former surname. The father brought the application when he discovered that the mother had enrolled the child in a day care centre under a name which was a combination of the parents’ two surnames. The father had regular contact with the child. In that case his Honour noted (at 80,685) that there was only one principle of law applicable to these cases and that is that the welfare of the child is the paramount consideration. His Honour referred to an earlier decision of his (Mahony & McKenzie (1993) FLC 92-408) in which he indicated a view that the utility of a general adoption in society of hyphenated surnames is doubtful, but was persuaded that the use of such a surname was in the child’s best interests in that case.

1. In Flanagan & Handcock (2001) FLC 93-074 the Full Court considered an appeal, brought by a father, against an order dismissing his application for an injunction in relation to the surname to be used by the parties’ children.

1. Finn J. held that under s.68B(1) of the Act the court may grant such injunctions as it considers appropriate for the welfare of the child and, therefore, the welfare of the child was the paramount consideration or essential test for an exercise of the jurisdiction.  Kay and Holden JJ. held that the paramountcy principle (then s.65E) was not decisive, although it was relevant and needed to be given careful consideration. 

1. The father in that case sought leave to appeal to the High Court which was granted in October 2001 but revoked in May 2002.

1. In the judgment delivered when revoking the grant of special leave, (Handcock & Flanagan (2002) FLC 93-102) the majority (Gleeson CJ., Gaudron, Gummow, Kirby and Callinan JJ.) held that, for practical purposes, in the circumstances of that case, the approach taken by Kay and Holden JJ. was not materially different to that of Finn J. and that the case was not an appropriate vehicle for the resolution of questions about the application and content of the paramountcy principles. Kirby J. dissented and would have refused the application to revoke special leave. He adverted to the fact that submissions filed by the Attorney-General of the Commonwealth (who intervened in the appeal) suggested that the past authority of the Full Court of the Family Court in Monticelli v McTiernan (1995) FLC 92-617 no longer represented the law, having regard to supervening amendments to the Family Law Act 1975, effected by the Family Law Reform Act 1995 (C’th). That case did not arise from an application relating to a child’s surname but turned (insofar as the judgment is relevant to this point) on the question of whether the proceedings before the court could be characterised as proceedings in relation to the custody, guardianship or welfare of or access to, a child, that being the then characterisation of proceedings which attracted the paramountcy rule. Since the Attorney-General made those submissions, there has been yet another set of amendments to the Family Law Act 1975 which reinforce the importance of a meaningful relationship with both parents.

1. I proceed on the basis that Flanagan & Handcock remains authoritative.

1. Although the father did not make submissions specifically referrable to this application, he would no doubt submit that it is particularly important that the child’s name recognises his paternity, if the child is not to have face-to-face contact with his father.  That is the gist of paragraph (17) of the affidavit of the father filed 23 February, 2007.  The mother opposed the application. 

1. The child will be five in September.  Many children of that age would recognise their surname but there was no evidence as to whether (for example) if the child were asked his name, he would respond with his first name or his first and last names.  “[Farley]” is the surname he has carried for the whole of his life and it is the name of his mother.  The father signed birth registration papers to that effect;  whatever his motive, he acquiesced in the child being registered under this name, and thus known by this name.  The child knows his father but as he has not seen his father since he was less than three and a half, the court could have no confidence that he knows that his father’s name is “[Holmen]”.

1. Having regard to the findings I have made, it is more probable than not that the animosity between the parties will not be ameliorated by a decision on this point.  Each will be unhappy if the outcome is not as sought and each will resent the other for that outcome.  I do not suggest that either would intentionally visit that resentment on the child but it has the capacity to impact on how the other parent is painted, and on the parents’ respective well-being.

1. If the child identifies with a surname, it is much more likely to be Farley than Holmen.  His youth means that his views would not be helpful and the decision is being taken in the context of a case involved, in the main, with much broader, but equally contested, issues.  I do take account of the submission which could be made for the father, that if the child is not to spend time with his father it is even more important that his paternity is recognised in his name. 

1. Balancing all the evidence, I am not satisfied that the mother should be compelled, by injunction, to change the child’s name to “[Farley-Holmen]” and that aspect of the father’s application is dismissed.  In reaching that conclusion I place most weight on the child’s best interests but also have considered aspects relevant to the importance of maintaining a meaningful relationship with his father, insofar as that might be argued as a separate consideration.

I certify that the preceding
393 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.