Howell and Carter - [2015] FCCA 3464

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELL & CARTER

[2015] FCCA 3464

Catchwords:
FAMILY LAW – Parenting – interim parenting – issues of racial vilification and impacts of this on the child – consideration of spend time with arrangements – family violence – sole parental responsibility ordered – matter adjourned on an interim basis – Mother’s travel with the child to the (country omitted) – capacity of the Father to provide for the psychological and emotional needs of the child – psychological and neuropsychological assessment – supervised time at a contact centre – meaningful relationship between the parents and the child.

Legislation:

Family Law Act 1975, ss.4AB(1), 4AB(2)(d), 60B, 60CC(2), 60CC(3), 61DA, 61DA(2)

Applicant:

MR HOWELL

Respondent:

MS CARTER

File Number:

MLC 11211 of 2013

Judgment of:

Judge Stewart

Hearing dates:

18,19 & 20 November 2015

7 & 8 December 2015

Date of Last Submission:

8 December 2015

Delivered at:

Melbourne

Delivered on:

9 December 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Potter

Solicitors for the Independent Children’s Lawyer:

Clark Family Lawyers

ORDERS

All previous orders with respect to the child X born (omitted) 2011 (“X”) be and are hereby discharged.
The Mother have sole parental responsibility for X.
X live with the Mother.
Until further order, the Father spend time with X at the Berry Street Contact Service in Richmond at such times as may be available and nominated by the Berry Street Contact Service.
Until further order and to facilitate the Father spending time with X at the Berry Street Contact Service, the parties do all such acts and things and sign all such documents as shall be necessary to complete the intake process at the Berry Street Contact Service.
The Father forthwith enrol in a Men’s Behaviour Change Course, complete same as soon as possible and provide proof of enrolment and completion to the Independent Children’s Lawyer.
The Father attend Drug and Alcohol Counselling with an organisation approved by the Independent Children’s Lawyer and provide proof of attendance. The Father shall seek a report from the Drug and Alcohol Counsellor and provide that report to the Independent Children’s Lawyer and the Mother when it becomes available.
That the Father shall attend for a neuropsychological assessment with Dr S or other professional approved by the Independent Children’s Lawyer at his expense and provide the assessment to the Independent Children’s Lawyer as soon as it becomes available. The Independent Children’s Lawyer be at liberty to provide documents including the previous neuropsychological report and Family Report to the person completing the assessment.
That the Father forthwith obtain, at his own expense, a psychiatric assessment and report with a psychiatrist recommended by the Independent Children’s Lawyer and upon receipt of that report the Father provide a copy to Independent Children’s Lawyer and the Mother.
The Father attend upon a counsellor nominated by the Independent Children’s Lawyer for the purposes of receiving counselling with respect to multi-cultural issues and issues arising from having a child with a mixed heritage background in an effort to try to make him understand that criticism of the Mother has a serious psychological impact upon X.
The Mother and the Father be restrained by injunction by themselves and their servants and agents from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their immediate or extended family or their partners to or in the hearing or presence of X or from permitting any other person to do so;
(b)Discussing these proceedings or any intervention order proceedings in the hearing or presence of X or from providing X with any document prepared for these proceedings (whether filed or unfiled) or leaving any such document where X can see or read it or from permitting any other person to do so.
That the Mother shall advise the Father as soon as practicable of any serious illness or serious injury suffered by X and provide details of the illness or injury and the treatment and authorise the Father to speak to the treating medical practitioners and to obtain copies of any reports at his expense if any.
The Court requests that the Australian Federal Police remove the name of the child X born (omitted) 2011 from the Airport Watch List at all points of international arrivals and departures in Australia.
Subject to order 16 hereof the Mother be permitted to travel with X for up to two consecutive weeks each year.
The Mother’s travel to the (country omitted) with X is subject to the following conditions:
(a)the Mother has an Australian permanent residency visa;
(b)the Mother give the Father no less than 30 days written notice of her intention to travel to the (country omitted); and
(c)no later than 14 days prior to the proposed travel the Mother provide the Father with documentary proof of:
(i)return air travel tickets for the Mother and X; and
(ii)a travel itinerary for X including contact telephone number.
Pursuant to Section 62G(2) of the Family Law Act 1975 a court funded updated Family Report be prepared in relation to the parties and X born (omitted) 2011, to be released 35 days prior to the final hearing. The parties shall comply with all reasonable directions of the Family Consultant including making themselves, the children and any other relevant person available at times nominated by the Family Consultant.
The Family Consultant may inspect all subpoenaed material which has been released to the parties.
The proceedings are listed for Final Hearing for two days commencing on a date and time to be advised.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
The Applicant file and serve any Amended Application, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.
The Respondent file and serve any Amended Response, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.
The Applicant file and serve any material in reply no later than 7 days prior to the Final Hearing.
The Independent Children’s Lawyer file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.
Each party file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to (omitted).
Liberty to apply is granted to each of the parties if the Berry Street Contact Service becomes unavailable to facilitate time between the Father and X.
Pursuant to sections 65DA(2) and 62B 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 is set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11211 of 2013

MR HOWELL

Applicant

And

MS CARTER

Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

These proceedings relate to a child. X born (omitted) 2011 (“X”). X is 4 years old.
These reasons follow upon four or five days of hearing
There are numerous facts and matters that have been raised by the parties in these proceedings. The affidavit material is lengthy and traverses a significant period of time. I will not refer to every single fact and matter in the proceedings I will refer to facts as I perceive them to be significantly relevant in terms of X’s welfare.
X’s parents are of a different cultural background. The Mother was born in the (country omitted) and the Father was born in (country omitted). Although the Father was born in (country omitted), he is of (nationality omitted) cultural background. He has lived in Australia since 1970, most of his life. The Mother is 31 years old and the Father is 51 years old.
In 1990 the Father suffered from a motor vehicle accident and, as a result, has an acquired brain injury. There is a neuropsychological report exhibited in the proceedings, however, that is somewhat dated. It is important to have the neuropsychological assessment updated and I will incorporate that into any orders that I make.
The parties commenced a relationship in 2010 and X was born a year later in 2011. X was conceived in the (country omitted), which was the Mother’s home at that time. The Father had travelled there where he meet her.
The Mother currently resides in Australia, however, has not obtained a permanent residents visa. She has remarried and it is likely that she will acquire permanent resident status in the near future. It was not suggested that the Mother’s ability to remain in Australia was in any way in doubt.
The Mother is pregnant to her new partner who I will refer to as Mr G. Their baby is due in (omitted).
X also has a brother, A, who is a chid of the Mother but not the Father and who continues to reside in the (country omitted) with his maternal grandmother and his extended family.
The parties in these proceedings, as a couple, came to live in Australia in 2011. At first instance they arrived in or around (omitted) 2011. The Mother travelled to Australia on a tourist visa. Her tourist visa ultimately expired and the parties returned to the (country omitted) to live in (omitted) 2012. Not long after, when X was just over a year old, the Mother returned to Australia with X on a tourist visa. The parties commenced to live with each other in the paternal grandmother’s home, with the paternal grandmother continuing to live in that home with them. As best I can ascertain, other members of the family may have been present regularly within the home.
X has had some significant involvement with his extended paternal family within the grandmother’s home. The Father continues to live in the paternal grandmother’s home with the paternal grandmother and that is where X has been spending time with the Father, under the supervision of his various relatives.
In 2013 the Mother had to return to the (country omitted) again due to visa issues as she was unable to remain in Australia on her multiple entry tourist visa. At that time X was left in the Father and the paternal family’s care. The Mother was absent for at least a week, but it may have been longer than that. The Mother left X in the Father’s care and therefore he had sole responsibility for him during that period.
The Mother returned, and on 1 December 2013 there was an incident of family violence.
It is alleged that the Father kicked the Mother in her thigh causing a bruise, and it seems clear that on the basis of that incident, the circumstances of which are in dispute (the Mother alleging that it was a significant incident of family violence and the Father alleging that there was accidental contact between he and the Mother), the Mother left the former matrimonial home and obtained refuge accommodation through a domestic violence crisis service. Therefore, the parties separated in December of 2013 when the Mother moved into that refuge accommodation.
These proceedings were issued with respect to X by the Father later in December 2013. This case is now essentially about what time and on what conditions X should spend with his Father. There are further issues as to whether or not the Mother should have sole parental responsibility for X, essentially, as I perceive it, based on:-
a)that there has been family violence between the parties; and
b)on the basis that at least partly because of family violence, but possibly due to other issues, the parties would find it very difficult to reach decisions jointly with each other.
There is a further issue as to whether or not X should be permitted to travel with the Mother for a holiday to the (country omitted).
The final issue, which is an issue that emerged during the course of the proceedings, is whether or not these proceedings can in fact be finalised, or whether or not, in order to further X’s welfare and to take into account what might be in his best interests moving forward, the proceedings can only be determined on an interim basis to allow certain matters, which I will turn to shortly, to occur and for there then to be a reassessment of the family.
The Mother seeks an order that she have sole parental responsibility for X, that at the very least she have a final residence order in her favour, and she resists any spend time with orders being made on an interim basis and says rather that the spend time with orders should be finalised at this point. She says that even on a final basis, the Father should only spend supervised time with X, although she does not resist a proposition that if the Father can establish that he has undertaken various courses, that he should not be prohibited from making a change of circumstances argument.
The Mother says that she should, at an indeterminate stage in the future (and certainly only after she has obtained permanent resident status in Australia), be permitted to travel for a holiday with X to the (country omitted) in order to visit not just her son A, although clearly that is one of the reasons that she would like to go, but also to visit her extended family, as she has a number of siblings and parents there.
The Father’s position is that he should spend time with X on a fortnightly overnight basis at least from Friday, and possibly from Thursday to Sunday night, and that he should spend time with X on the usual range of school holiday and special day orders. He seeks to be involved in X’s life in an ongoing, significant and substantial way and says that a meaningful relationship between himself and X can only endure by virtue of the sort of time that he is proposing.
The Father’s present application before the Court was filed days before the final hearing commenced. His previous application had always been for sole parental responsibility and for X to live with him. I note in a formal sense at least, although this may have altered in terms of the way he presented his case earlier, he was previously seeking that the Mother have supervised time with X, at least at first instance, although in fairness to him, he was not really pursuing that aspect of the case, even leading up to the final hearing.
However, leading up to the final hearing, it was his position that he should have the primary care of X and that the Mother should spend more limited time with X, until he filed his Amended Initiating Application. At one stage he was even considering a position where the parties have equal shared care for X.
The Father vociferously opposes an order that X be permitted to go to the (country omitted) and he told me very assertively that he regarded that as being not only not in X’s best interests, but quite detrimental to his interests.
The Father seeks that the parties share parental responsibility for X and he says that what he would really like to do is be able to sit down with the Mother and discuss issues with her. He said that on a number of occasions during the hearing.
I pause at this stage to observe that the Father has represented himself as a self-represented litigant in these proceedings. I have endeavoured, as best I can, to explain the process to the Father and, to my observation at least, he understood the process and at least partially knew what was required of him. At all time he has treated the Court with respect and he has been compliant with directions from the Court. That is to his credit.
To the extent that I may make some criticisms of the Father, and to a lesser extent the Mother, I do not want anyone to read these reasons and think that the Father conducted himself in an aggressive or inappropriate way during the course of the proceedings; he did not. There are certain disadvantages in being a self-represented litigant, and not the least of which is that parties do not have the benefit of having a the filter of a lawyer between themselves and the bench. To the extent that I am able, I have tried to take into account the fact that the Father did not have the benefit of legal advice, so from time to time when I refer to the Father referring to irrelevant matters, or matters of less significance from the Court’s point of view, those statements should be considered in light of the fact that he has appeared as a self-represented litigant and I have taken that into account.
X is represented by an Independent Children’s Lawyer. The Independent Children’s Lawyer says that she supports the Mother’s application that X should spend supervised time with his Father, pending some education that the Father should undertake. She specifies supervision in a more formal sense than has occurred to date. Further, she supports the Mother’s application that the Mother have sole parental responsibility for X and that X should be permitted to travel on holidays with his Mother to the (country omitted).
The point of difference between the Mother’s application and the Independent Children’s Lawyer’s proposal is that the Independent Children’s Lawyer submits that orders should only be made on an interim basis and the matter should return to Court once the Father has undertaken a number of assessments and education. Those matters should include a neuropsychological assessment and counselling interventions, including a Men’s Behavioural Change program, and education surrounding the Father’s role as a parent with a child of a multicultural and diverse cultural background.
It is envisaged that any counselling intervention in relation to the latter would be one-on-one counselling, as recommended by the Independent Children’s Lawyer. It is not envisaged necessarily that the person providing such counselling would need to be an expert in multicultural issues, but rather should have some expertise in relation to children and family conflict. Armed with those sorts of skills the counsellor should be able to deal with the issues of multiculturalism within the context of their area of expertise.
I cannot possibly refer to every factor or matter that has been raised in these proceedings. In these reasons statement of fact should be taken to be a finding of fact, unless it is obvious in the circumstances that I am merely presenting both parties’ point of view and it is obvious from the context that it is not a finding of fact.
There are a number of very serious issues in this case and I do note that X is still of a very tender age. He has not yet even attended school. These issues are very significant, not just in terms of what’s going to happen over the next 12 months or 2 years, but how X is going to experience life for all of his primary school and moving into high school when he is a young adult. That much is obvious. It is for this reason that I approach this case with a great deal of caution and it is for this reason that I will only make interim orders, even though the matter has proceeded over a number of days.
This is not because I think the parties deserve or do not deserve any final or interim outcome, but rather because there is so much at stake in terms of X’s ongoing welfare. If things can improve for him in terms of education for the Father and possibly the wider family, then there is an opportunity for X to achieve what is optimal. That is that X have the best relationship with each of his parents that he possibly can, and therefore the best relationship with each of his extended maternal and paternal family as he can.

The difficulty from my point of view is that X’s family is not at that stage yet. Although I know the Father is not going to agree with the decision that I am making in relation to this, I want to reassure the Father that the only reason that I am doing it this way is that I just can’t simply ignore the possibility that X may be able to enjoy what I regard as a better outcome. For a child of X’s age, he at least deserves a chance to have that sort of resolution. In the event that such resolution is not able to be reached for X, I do not want it to be for lack of trying or from simply giving up.
If ultimately there are hard decisions to be made in relation to X, it should be because every avenue has been exhausted prior to making that decision. The parties, although they may not be happy with this result, should regard it with a sense of optimism. In saying that, I am about to embark on some statements that one or both of the parties might perceive as being critical. I would like the parties to view these statements in the light of the overarching consideration that I think that there is great benefit for X to achieve an optimum result. Although there are deficits in the Father’s presentation, if those deficits can be remedied, the Father has a great deal to offer and X will derive a great deal of benefit from having a fulsome relationship with his paternal family.
Having said that, I must conclude that the Father has exhibited quite racist attitudes towards the Mother, and these attitudes will significantly impact on the welfare of X if they endure. It is of serious concern to me that the Father has these attitudes and I have a particular concern that the attitudes, as they may be imparted to X as he gets older, have the very real possibility of impacting on his emotional, psychological and mental health. I also have very serious concerns regarding the Father’s present capacity to shield X from his views of the Mother, both personally and as belonging to a particular class of people.
The Father has told me, and I accept, that he regards the Mother as a person who has opportunistically taken advantage of him in order to secure an ability to live in Australia. He told me, with a sense of resignation, that he accepted that he had been scammed. In order to convey the pitiful disregard with which the Father holds the Mother and those of her kind, I can do no better than repeat the Father’s own material which he has filed in support of his application. Most, if not all, of the material filed demonstrates a quite racially prejudiced attitude towards the Mother.
As recently as 18 November 2015 the Father has filed material which demonstrates the low regard with which he holds the Mother. The most recent affidavit was filed very shortly prior to the commencement of the hearing. The Father, in that affidavit, reiterates and echoes the sentiments that are replete in his previous affidavits. For instance, he says at paragraph 6 of that affidavit that the Mother had perpetrated domestic violence against him with “Uneducated Vulgar Trucelent abuse (sic)”.
The Father asserts that the Mother is a person who has committed perjury. He says things like he has assisted and thrown out an olive branch to her with her procuring her entrance into Australia. I also refer to the affidavit of the Father filed on 22 April 2015 and in particular to annexure “H-11” to that affidavit. He says that after dealing with a number of other serious matters set out in that particular letter, as follows:-
I certainly do Not insight any violence, but only want this TRASH (nationality omitted) out of my country Australia for good so I can Proudly Raise My Australian son Alone (sic).
I pause here to observe that the Father makes further allegations against the Mother that she has inveigled members of her family in the (country omitted) to make threats against the Father. He says disparaging things about the Mother which are factually in dispute, but even with those factual disputes would seem to have little real significance to X’s ongoing welfare, including that the Mother was a prostitute and that her family are involved in criminal activities in the (country omitted). He says that it would be better for her to return to the (country omitted).
He says in this letter that the Mother is a “low-life” and is using him and, to some extent, his son, to obtain benefits from the Australian government. If I turn to the body of that affidavit, the Father’s own sworn evidence reflects the low regard with which he holds the Mother. For instance, he says at paragraph 4 of that affidavit as follows: -
The respondent Ms Carter a (nationality omitted) who was Fully 100% supported by me while she was on a “Tourist Visa” is doing Everything possible to belittle me while she waits for the outcome of Another PERJURY she has committed. (sic)
He goes on at paragraph 5 to say, amongst other things: -
Today makes it 504 Traumatic Days and Nights for my Law-Abiding Family and I since My Son was PREMIDITATIVELY Wrongly Stripped away from us.
Then he was exposed to a lower socioeconomic environment in a “Womens Domestic Violence Shelter” with some experienced women who the Respondent has befriended.
This was Premiditated by X’s (mother) while she applied for a PROTECTION VISA against her Police and (nationality omitted) government.
Does the following symbol ring a bell? $$$$$$$$$$$
(SIC)
The implication of dollar signs is clear he regards the Mother, as recently as April 2015, as a person who was simply after his money or the Australian government’s money, and the benefit that they can provide to the Mother. He makes numerous other allegations, such as the prostitute allegation to which I have previously referred, but also allegations such as the Mother being engaged in witchcraft and witchcraft rituals (an allegation that simply went nowhere during the course of the proceedings).
He says that the Mother is a person who has perpetrated abuse on X and that she is engaged in inappropriate discipline. I note that the Father’s brother, when giving evidence, although there was a paragraph about his observation contained in his affidavit, failed to swear up to the observation of seeing the Mother hit X.
Suffice to say that on the Father’s own material, I am well satisfied that the Father has a condescending and superior attitude towards the Mother and it is demonstrably held.
It is also suggested, and I am satisfied, that those views permeate the views of his extended family. There is ample evidence in this case that members of the Father’s extended family hold the Mother in similar low regard. For instance, the Father filed, as a self-represented litigant, an affidavit sworn by his sister, Ms I. He tried to tell me that he had not read this affidavit before it was filed, but I simply do not accept that as the case. I find it extraordinary that the Father would suggest that he unwittingly filed such a serious affidavit without any regard as to its content.
The attitude presented by Ms I in her affidavit sworn on 7 April 2014, in the body of her affidavit and in a letter annexed to that affidavit, which letter was sent to a Member of Parliament, Scott Morrison, and Mary Wooldridge, echoes the sentiments that the Father has set out in his own affidavit. The disregard with which Ms I holds the Mother is palpable. The Father said in the proceedings that I could not reasonably rely on the affidavit because his sister was not called to give evidence.
Even allowing for the fact that his sister was a witness in his own case, it is simply preposterous to suggest that this affidavit cannot be relied on because he himself has chosen not to call the witness. I take the witness’s evidence at face value, and although I am not going to read the entirety of the affidavit into these reasons, it is illuminating.
First of all, the witness talks of how well the family had treated the Mother. To this extent, the Mother concurs. With a generosity of spirit that I thought was somewhat surprising, the Mother actually agreed that at times during the relationship, she felt that she had been treated reasonably well by the Father’s family. However, when I look at the sentiment expressed by Ms I where she refers to (nationality omitted) women scamming Australian men to get into this country and/or extracting money from them, it is quite clear what her attitude is. She says that the Mother was not genuine towards Mr Howell, being the Father, or their family.
She says that she saw the Mother physically chastise X.
At paragraph 7 of her affidavit she refers to the annexed letter and says as follows:-
Attached is a letter addressed to the Immigration Minister, The Hon. Scott Morrison, the ministerial dept, The Hon. Mary Woolridge, The Prime Minister of Australia, The Hon. Tony Abbott, The Community Services Government Ombudsman as I would like answers why on the sole word of a foreigner we, as citizens are not protected or given a fair go but a foreigner has been given not only all the rights & also free legal aid, accommodation + $800-, that includes an Australian allowance for expenses etc etc tc but my brother who is an Australian, paid his taxes when he was able to & now on a disability pension got his legal aid withdrawn at the last minute… (sic)
At paragraph 9 the witness accurately summarises her real view of the Mother:-
The caliber of his mother’s morals [talking of X’s mother in these proceedings] is much in question on her intentions of having X to use as a gold card in to this country & to ensnare if she can any other Australian male victim to extract what she can financially without any care to hurting Australians emotionally. I am concerned to the way our rights are stripped from us, Australian citizens on our own soil! She is, as I have witnessed used my brother in their relationship & abusing our system to her own purpose. My brother has been a very caring, concerned father & showed a caring disposition towards his ex partner while she was with him till suspicions formed with good reason by us..
I hope, we, Australian citizens get a fair go too! (sic)
The letter that is annexed to the affidavit, which I do not propose to read into these reasons at any length, is vituperative insofar as it relates to the Mother.
These issues of race or racial vilification are troubling when I assess the Father’s level of insight as to his capacity to appropriately care for X. The Father told me, and I accept that he would try not to expose X to the negative feelings that are apparent with respect to the Mother, when X is in his care. He told me that he and his family speak positively to X about his Mother and the maternal family.
Even if I accept that much is true, I cannot ignore the fact that during the Family Report, and during what one might regard as the microscopic observations of the Family Report, the Father made two comments to X that were quite clearly inappropriate and seemingly he does not realise what he is exposing X to. I am concerned that the Father’s level of insight, even if he thinks he is not exposing X to negative views about the Mother, is lacking and so lacking that he requires education. He is unable to recognise how his views and his attitudes might affect X.
It is concerning that the views of the Father and the paternal family are so negative and represent deep-seated and abiding views about the Mother, her ethnicity, and the Father’s entrenched view that the Mother’s ethnicity means that there are negative personality traits apparent in her simply by virtue of her membership of an ethnic class. He is, in my view, racially prejudiced which goes hand-in-hand with an inherent sense of superiority on his part and a sense of elitism on the part of him and his family. It is highly inappropriate.
It is not for this Court to impose value judgments on the Father’s position. Rather, the salient issue is whether such attitudes and abiding beliefs impact on the Father’s capacity to parent X and whether these abiding beliefs explicitly or implicitly denigrate the Mother and negatively impact on X’s welfare and the position of his Mother as his primary carer. Denigration of the Mother axiomatically hurts X. It renders the Father incapable of adequately providing for X’s emotional and intellectual needs.
What cannot be ignored is that X is a child of two cultures and the ethnicity of his Mother is as much a part of him as the Australian/ (nationality omitted) ethnicity of the Father. That is X’s position in life and it is the way he will grow up. It is important that he be able to regard each aspect of his genetic and cultural heritage as something that is unique and valuable about him. In denigrating the Mother, the Father also denigrates a part of X which should be a positive attribute to his life rather than a negative.
Any continued denigration and vilification also places X in an untenable position of conflict between his parents. Parental conflict is very detrimental for children. It is important that they not be exposed to it. It can impact on their ongoing functioning and their movement into adulthood. It can impact on their mental health and on their ability to form relationships going forward. These things are very important.
I do not regard this as being necessarily unsurmountable problems for X going forward. Rather, I am of the view that the Father ought to be given the chance to obtain education and counselling regarding his position and his stated beliefs to date. The Father did express an appreciation that X should not be exposed to negative influences while spending time with him and that provides perhaps a meagre, but nevertheless a starting foundation upon which education can be built.
There is no doubt in my mind that X adores the Father and that the Father adores and loves X. That too will strengthen the foundation upon which this education can be built. It will be up to the Father to ensure, with the assistance of the Independent Children’s Lawyer, that he undertake such education, and that too has been part of the reason why I have determined not to finalise the spend time with arrangements in this case. The Independent Children’s Lawyer’s input into assisting the Father in finding the appropriate professionals to assist him will be important.
The Independent Children’s Lawyer will also be able to assess how the Father’s education is going and whether or not the arrangements for X can progress into the future. It is likely, and I accept, that the Mother will be self-represented moving forward as well, and therefore the role of the Independent Children’s Lawyer becomes particularly important, not only to present the case in Court, but also to assist the parties and thus enhance X’s welfare moving forward.
My perception is that X today is at an age where he cannot fully understand the hurtful nature of the attitudes that have been expressed as set out. At this stage X seems too young for these issues to have impacted significantly upon him. However, the evidence of the Family Report Writer was that even children of X’s age, whilst perhaps not being verbal about it, can experience these hurtful things in some way. It was the evidence of the Family Report Writer that just because a child does not express things verbally does not mean that they are not feeling the impact and not showing it in some other way. The parties should be cognisant of that.
The Family Report Writer agreed that the issue of the negative feelings that may be conveyed either directly or indirectly to X have the potential to psychologically injure X in a very real and tangible way and it is important that it stops. However, she too was supportive, both in her report and in her viva voce evidence, of the parties being given an opportunity to put further evidence before the Court in order to improve their respective positions, but more significantly, to improve the sort of relationship that X might enjoy with his Father and paternal family, in the future.
The parties should understand that X cannot be subjected to these views or influences that effectively require him to denounce his Mother’s heritage and traditions when he is with the Father. Although the Father has referred to X as his “Australian son”, the Father must moderate his behaviours and attitudes, and very soon. This is urgent. If this does not occur, the inevitable result is that X might be deprived of a meaningful relationship with both of his parents, and that is not the optimum outcome.
What I cannot also ignore is that X also has a cultural background with the Father, so that if he’s deprived of his Father’s company, he is also deprived of that aspect of his life as well. I am not necessarily convinced that the Father will be able to achieve perfection in this lofty goal. There is much to suggest that he may not. However, having regard to X’s tender age, I am convinced there should be a chance.
There are a number of other issues in the case that are of concern.
During the neuropsychiatric report, the Father indicated to the writer that his memory had declined. He described himself as being easily frustrated and quick to anger, noting that he had been described, or his self-report was that he had been described by his fellow employees as being aggressive in work places. Mr Howell should have an updated neuropsychiatric report so that the Court is informed with all information regarding the Father’s functioning.
I have had the valuable opportunity to observe the parties in Court, and in respect of the Father, I have no concerns about his intellectual functioning. I felt that he was able to function at a high level and there did not seem to be any deficits in that regard.
I have some concerns about the Father’s level of truthfulness with respect to his alcohol consumption. He told me that at present he is completely abstinent from alcohol. That may be so. There does not seem to be any other evidence that at the present time the Father is consuming alcohol and is anything but abstinent. However, there are some matters with regard to his previous alcohol consumption that cause me to be somewhat cautious about how the Father gave his evidence and what his level of insight is into his alcohol consumption in the past.
For instance, the Father told his general practitioner that at one stage he was consuming a litre of wine per night and four or five glasses of whiskey. He agreed that he had said that to his general practitioner, however, during evidence he told me that he was joking. His evidence was that he was merely big-noting himself and that he had that sort of relationship with his doctor where he would make a joke in that regard. I find that very difficult to accept.
Perhaps what is more difficult to accept is that whilst he agreed that he told the author of the neuropsychological report that he was consuming two litres of wine per evening:-
a)that he told me that he agreed that it was a one-off assessment;
b)he agreed that the neuropsychological report was prepared for formal purposes; and
c)he said that he had been joking and untruthful to the neuropsychologist.
I find that very difficult to accept. I cannot think of any reason why the Father would do that and, in my view, he has minimised his alcohol consumption and understated what it has been in the past.
I note that the Family Report Writer telephoned the paternal grandmother during the course of the preparation of the report and the paternal grandmother confirmed that the Father did drink and drank in the bungalow of the property that they reside in, except when the Father was working or writing (and I took that to mean when he was working on affidavits and material to be filed in this Court).
On balance, and on the balance of probabilities, I find that the Father has seriously minimised his previous alcohol consumption and that gives rise to a concern on my part that the counselling that he has obtained on two occasions, where he told me that the counsellors asked why he was there and if his alcohol consumption was as he stated, has not addressed his alcohol consumption with the counsellor. The real issue for the Father to obtain counselling has been obscured because the Father has not been truthful in the history and the historical report that he has given them.

I am not critical of the counsellors because they are completely reliant on the information that is provided to them. I find that the Father has had a serious alcohol dependency problem and use or misuse of alcohol problem in the past, and that his counsellors should be advised of that so that they know the full extent of the counselling which is required by the Father. However, on the upside, the Father has sought counselling and that is to his credit
A curious aspect of the Father’s presentation is that I find that he is, in an overall sense, compliant with doing what he needs to do in order to improve his position and the position of X.
The Father’s lack of insight regarding his applications is apparent, and it does him no credit at all that he continued to propose that X live with him right up until the final hearing. He told the Family Report Writer that X should live with him. The Father indicated that he had been involved in X’s care during the relationship and attempted to style himself as X’s primary carer. He said that he was caring for X and did everything for him, even before he was born.
I do not accept that the Father was X’s primary carer during the relationship. However, I do accept that the Mother has minimised his involvement and that the Father was likely more involved than has been conceded by the Mother. That is particularly so in terms of the period when X was left in the Father’s sole care in September of 2012. Equally, however, the Mother makes certain allegations that the Father was drinking heavily during the relationship, which may have impacted on his ability to care for X, and I find that that was probably so, particularly given the findings that I have made about his alcohol consumption and his minimisation of same.
I am concerned that there are aspects of the Mother’s evidence that were exaggerated, particularly in terms of her portrayal of herself as the complete victim, which I will come to shortly. I do prefer the Mother’s evidence that she was the primary carer of X both during the relationship, and she certainly has been following separation. The Father’s time with X has, to date, been very limited daytime contact on one or two occasions per week and he has not had overnight time with X to date.
It is abundantly clear that the Mother has been, and continues to be, X’s primary carer. I do accept that the Father has had an ongoing involvement in his life. This issue of whether the Father or the Mother was the primary carer, in my view, does not take the case much further. The issue of the Father’s previous involvement in X’s life in and of itself would not cause me to limit the time that X spends in the Father’s care.
Family violence looms very significantly in this case.
The Mother says that her relationship with the Father was characterised as abusive and that the Father was verbally and physically abusive towards her. Although the Father denied that he was verbally abusive towards the Mother, he ultimately conceded that he did yell at the Mother. He says that theirs was a volatile and tumultuous relationship and I formed the distinct impression that what he meant was that the Mother was equally as involved in arguments as was he, while conceding that he did yell.
He talks of having arguments when he says that the Mother physically chastised X, and in yet another racial jibe against the Mother, (which is characteristic of the Father’s case, and his thoughts and his style of giving evidence), he told me, in an affected voice which was clearly intended to mimic the Mother's (nationality omitted) accent, that he said to her, “This is Australia, not the (country omitted).”
He did agree that he swore and argued angrily at a taxi driver in the Mother and X’s presence but justified that on the basis that he thought the taxi driver was trying to be dishonest with him. He said he stopped arguing when he remembered that X was present. He told me, as I have said, that the Mother argued with him and she would direct verbal abuse against him. He told me that he regarded himself as being a victim of family violence. He agreed that he called the Mother a bitch. He told me that he called her a slut, but not a dirty, filthy slut. He agreed that it was possible that he called her a fucking idiot. He agreed that he called her a prostitute, but justified that on the basis that it was true and that such truth was a defence.
The Father said that the Mother often taunted him with statements such as she was going back to the (country omitted) to resume her occupation as a prostitute. He said that at times the Mother was so agitated when she was engaging in this conduct that he asked her to be quiet because the neighbours would hear. He denied that he called her psychotic, but agreed that he called her crazy. He denied that he called her spastic.
The Father did agree that he called the Mother “monster bum”, but said that it was an affectionate term of endearment. In relation to the term “monster bum”, I do accept his evidence that that was a term of endearment and not a disparaging term, as the Mother put forward in the case. I am satisfied in this case that the Mother, to that extent at least, has exaggerated the Father’s verbal chastisement of her.
There is an incident which took place on 1 December 2013 which was examined in the evidence. This incident led to the parties’ separation. The Mother alleges that the Father kicked her. The Father says he simply came into contact with the Mother with his foot and that was how the physical contact occurred. For the reasons that I have set out, I prefer, except when I have otherwise said, the evidence of the Mother when the parties’ evidence is in dispute. In this instance, I cannot accept the Father’s evidence that there was accidental physical contact between the parties. I simply do not accept the Father’s explanation. I am satisfied, on the balance of probabilities, that an incident occurred where the Father kicked the Mother, and this is particularly so because it appears to be the catalyst for the parties’ separation.
The Mother was clearly and sufficiently perturbed by the incident that she left the family home and go into a women’s refuge.
There is a further issue with respect to family violence in this case. The definition of family violence is set out at section 4AB(1) of the Act is defined as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Clearly there has been an assault, which I have found which occurred on 1 December 2013, but in subparagraph (d) of subsection (2), the Act sets out that family violence is also constituted as ‘repeated derogatory taunts’ against a party.
In my view, the very material that the Father seeks to rely on in this case constitutes derogatory taunts about the Mother. In that sense, I am satisfied that family violence has been significantly directed by the Father against the Mother. I prefer the evidence of the Mother with respect to the Father when she describes him – and this is my summary – as aggressive, controlling and verbally and occasionally physically violent.
I had the opportunity to observe the parties, and the Father had an interesting presentation in Court.
The Father was at times tearful, often melodramatic and dramatic in terms of the way he presented his case and asked questions. The Father was, on many occasions, simply unable to focus on what was relevant in the proceedings. He was at times histrionic and he had some odd theories about various issues. The Father continued to be disparaging of the Mother and of the Mother’s partner, even to the extent of criticising her partner’s driving habits. He also seemed to elevate his role and his family’s role in the life of X to an extent that was not sustainable.
In one sense, I suppose that is understandable, given the very limited role that the Father has had in X’s life since separation. However, he described the good times that he had had with X in a very dramatic and flamboyant way. Although I am quite satisfied that X has had a nice time when he was with his Father, I do not know that the Father’s description is entirely accurate. It seemed to me to be highly exaggerated. However, I am satisfied that the Mother minimised the relationship between the Father and X in terms of her real reluctance to accept that she had observed X and his Father having a nice time when they were dancing or kicking a football.
Up to this point, the issue that has warranted supervision thus far is the issue of emotional and psychological detriment to X. However, there is another quite disturbing aspect of the Father’s evidence that I am concerned about. The Father makes what, at first blush, would appear to be quite bizarre and outlandish allegations and assertions about a number of things. For instance, he says, notwithstanding the material to which he was referred to from a document in the (country omitted) that suggested that it wasn’t true, that there were issues of the Mother’s family being drawn into some sort of murder plot in the (country omitted).
He said that the police were involved in a conspiracy, to his detriment, with respect to some proceedings in the state courts in Victoria. He says that the police were organising to “hit him” (but not hit in the sense of being murdered), but hit him with respect to Intervention Order proceedings and – this is my summary –that they were colluding with the Mother in order to achieve that goal, and there was reference to a letter that was annexed to one of the Father’s affidavits.
He refers to two particular female police officers at the (omitted) Police Station. He refers in a letter that he was told that he should never go to the (country omitted) as two of the Mother’s three brothers were trying to kill him. He refers to himself and X as being victims of this sort of behaviour. He says that the Mother is (nationality omitted) trash and was poisoning his son’s brain. I have concerns that there are some aspects of the Father’s presentation which would seem to border on delusional.
There is then the evidence that emerged during the hearing about an incident that occurred on the 29^th floor of a building in the (country omitted), when the Father was caring for X. He says that on that occasion he observed a man of (nationality omitted) origin taking inappropriate photographs of a young female child. On the strength of that, he says, and in a very aggressive way, that he took it upon himself to attempt, or at least threaten, to throw the man off the 29^th floor of a building. That evidence, in my view, sounds factually bizarre and, absent any other evidence, I do not accept that it actually occurred.
On the Father’s own evidence, the incident demonstrates that the Father is highly aggressive or it is false and it renders him delusional in his beliefs.
Although I might be prepared to give the Father the benefit of the doubt with respect to a number of these issues, as I am not a person who is intimately acquainted with life or culture in the (country omitted), the Father’s interpretation of a further event that took place in Court, objectively confirmed by him is, in my view, bizarre. This relates to how he has been dealt with by the Independent Children’s Lawyer.
The Father says that at an earlier return date in the proceedings, the Independent Children’s Lawyer flirted with him. He says that she batted her eyelids at him and engaged with him in a romantically provocative way. For instance, there is a letter annexed as annexure “H-3” to his most recent affidavit filed on 18 November 2015 where he addresses this issue with the Independent Children’s Lawyer. Relevantly he says in the letter as follows (noting this is addressed to the Independent Children’s Lawyer):
When we met for the first time outside the Fed Court on 24/04/2015.
I Trusted My sons ICL would be impartial, however your very first words to me with a flirtatious smile were, “Your not what I expected to see.”
When I redirected your thoughts to My son and my Affidavit, you immediately and ominously replied, “Your Affidavit was the most Abominable thing I have ever read in my life.”
I said, “But its the Truth.”.
Then you went on to say, “I will be recommending that X lives with his Mother and I also –
I think, “intend,” although it is indecipherable –
to Subpoena your medical records from your car accident.” (sic)
It must be remembered that this was annexed to an affidavit sworn only weeks ago. In evidence, the Father confirmed that he regarded the Independent Children’s Lawyer’s advances as inappropriate and told me that it was his view that on the basis that he rebuffed her advances, that she went in to make particular recommendations in relation to X’s future care. I pointed out to the Father that such an allegation was very serious. It not only indicts the behaviour of the Independent Children’s Lawyer in terms of making romantic advances towards him, but also suggests that on the strength of a rebuff, that she abrogates her professional responsibilities and makes a recommendation on the basis of that rebuff.
I pointed out to the Father that I thought that sort of proposition was highly unlikely. I do not accept and find absolutely false that the Independent Children’s Lawyer has done anything of the sort.
I also note that the Father had sent a letter to the Independent Children’s Lawyer within the last couple of days. He read that letter out in Court. To my mind what it was, was a letter saying that Judge Stewart had told him that he was incorrect in his interpretation of the event and, to the extent that someone had told him he was incorrect, he apologised, without any real insight into the fact that it was just not correct at all.
As if that was not enough, there is then the incident of the Independent Children’s Lawyer trying to provide the Father, by email, with her case outline document. She contacted him by telephone and at first instance he hung up the phone. He immediately rang back because he was concerned about X’s welfare. The Father accepts this evidence. He accepts that the Independent Children’s Lawyer asked him for his email address so that she could provide him with her case outline document.
Seemingly apropos of nothing, the Father then replied to the Independent Children’s Lawyer that she should stop trying to ask him out. That sort of response, in my view, is concerning in that it demonstrates to me a tendency on the part of the Father to jump to conclusions which, on any objective analysis of what has occurred, simply cannot be correct. I am therefore quite concerned about the Father’s mental health, and not only am I going to require that there be a neuropsychological assessment, but I am going to require that the Father undergo a psychiatric assessment with a psychiatrist who is skilled in preparing medico-legal reports. I will then consider whether or not X’s time with the Father should change from the orders that I am about to make.
I note that the Father called Dr K, a psychiatrist who he had seen, and who had prepared a short report on the Father, which is annexed to his most recent affidavit. Although that psychiatrist gives the Father a clean bill of health in terms of psychiatric or mental health issues, the psychiatrist, when giving evidence, was quite frank that his report was not the sort of report that was designed on a medico-legal basis, but was rather to assist general practitioners. He conceded that the report was not for court purposes.
I turn now to the Mother’s evidence. The Mother gave evidence and was cross-examined. There were difficulties with her evidence, and although English is her second language, she was sufficiently competent to give evidence without an interpreter. There were some language issues and there was the further dynamic of being cross-examined by the Father as a self-represented litigant. However, her evidence did afford me the opportunity to make observations of her.
Overall, I think that her evidence had some deficiencies. She struck me at times as being evasive and not forthcoming. For instance, when she was being cross-examined about very assertive text messages that she had sent to the Father, she seemed only to concede that they were sent by her once she had read them and realised that she had no choice but to concede. She did appear to me to be quite intelligent and she was well able to understand the questions that were being asked and she seemed to understand why the questions were being asked.
She often told me that she could not recall, and I find that the Mother was being somewhat untruthful when she denied that she was jealous or occasionally angry. When I examined the text messages, it would seem to me that her evidence in that regard was clearly not correct. It is quite clear to me, and the text message is evidence, that she used aggressive and provocative language when speaking to the Father in a most profane way, and it was evidenced that she was angry when she was making statements about the Father keeping company with other women.
As I have already referred to, I am also concerned that she exaggerated a term of affection used by the Father when he used the word “monster bum”, and I regard her evidence, as an attempt to create a bad impression about the Father. However, the deficiencies in her evidence, whilst they must be regarded, are in stark contrast to the very real concerns I have regarding the Father’s evidence, and she was prepared to concede and, as I said, had some generosity of spirit that the Father’s family had been kind to her.
I also have formed the view that the Mother appears to be a more accurate historian than the Father. I have formed the view that the Mother has a level of resilience, and if this matter was solely about the family violence that I have found had occurred, that would not be sufficient in and of itself to justify supervised time at a professional contact centre continuing, although it would of course be sufficient to justify supervised changeovers to keep the parties separated.
In terms of the Mother’s evidence, I am also concerned that the Mother does tend to minimise the importance of the relationship between X and the Father and found that she had a tendency not to give the relationship between the Father and X the importance that it deserves. As I have said, although there are difficulties with both parties’ evidence, I find, on balance, that I prefer the evidence of the Mother when the evidence is in conflict, even though I have the concerns that I have set out.
These are the significant matters that I regard in the case, and these have been relatively lengthy reasons. I do have to turn to the more formal parts of my reasons and I turn to the legislative pathway. In doing so, I do not propose to repeat matters that I have set out earlier in these reasons, but rather incorporate them as I am guided through the decision making process by the legislative pathway.
In these proceedings the best interests of X is paramount. In determining his best interests there are two primary matters or considerations, and several additional matters or considerations, to take into account. The primary considerations are set out in section 60CC(2) of the legislation and those considerations are mindful of the objects set out in section 60B of the Act. I must consider the benefit to X in having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
Those two primary factors are in stark juxtaposition in this case. I note that these proceedings were issued after 7 June 2012, and I therefore give greater weight to the need to protect X from physical or psychological harm and from being exposed to abuse, neglect or family violence.

Before I turn to the primary considerations, I will look to the additional considerations set out in section 60CC(3) of the Act insofar as they are relevant. I have regard to these additional considerations in the context of evaluating the primary considerations, namely considering what benefit might flow to X in having a meaningful relationship with the Father, but also to ensure that he is protected.
X’s view is not relevant in these proceedings. He is too young to have an expressed view, and even if he did it would not influence the outcome of these proceedings.
I have detailed the nature of X’s relationship with each of his parents and others. He has thus far enjoyed only a limited relationship with the Father in that he has been seeing him twice per week on a supervised basis. There have been difficulties with the supervisors and the irony in this case is the supervisors seem to suffer from some of the same personality flaws that cause me to be concerned about the Father.
The nature of the relationship between X and his Father is very important, however, so is the nature of the primary care relationship with the Mother, and that needs to be considered in any decision that I make.
The Mother has been subjected to family violence. To a lesser extent as has the Father been subjected to family violence in terms of the yelling and the arguments, which I accept. There have been Intervention Orders proceedings in this matter and the Father points, with some merit, to the fact that the Mother re-instigated an attempt to have X reinserted on Intervention Order proceedings as an affected person.
However, that does not impact on the ultimate outcome of this case, but I am aware that there are Intervention Order proceedings still pending between the parties.
X looks to his Mother as his primary carer and his relationship with her in that sense needs to be supported, under the umbrella of the Mother having been subjected to violence, as I have set out. X’s relationship with the Father will continue, but it will be somewhat more limited for a period of time, in the orders that I propose to make. However, I am of the view that it is necessary to make these orders to protect X from psychological or emotional harm.
When I consider the extent to which each of X’s parents have taken or failed to take an opportunity of making decisions, I find that each of the parties have exhibited an appropriate attitude in that regard. Both parties wish to be significantly involved in X’s life and that is completely understandable by way of natural love and affection.
When I consider the extent to which each of the parties have fulfilled their obligations to maintain X, I regard this as being less relevant to the other significant matters, although I do note that the Father is in receipt of a disability pension which renders his Child Support Assessment as being in the sum of approximately $34 per month, and the Mother is reliant on the Family Tax payment and the support of her partner, who she has recently married.
The Father said that he has supplied various items of clothing from time to time and treats for X to give to his step-father and Mother on his return. I accept that he has done so and I accept that he has done so with a generous spirit. However, quite clearly, the Mother has borne almost the total burden of caring financially for X, although I do accept that the Father has made some contributions, to the best of his ability, in that regard.
When I consider the effect of any changes in X’s circumstances, I have been very concerned in this case about reducing the amount of time that X spends with his Father and that this is a matter which has weighed heavily in my consideration as to whether or not these spend time with orders should be final or interim. At one stage I was even contemplating whether there should be continued supervision at all. However, the evidence of the Family Report Writer and the concerns that I have outlined in these reasons convince me that there should be ongoing proper supervision and, in this regard, I also refer to the fact that, in my view, to date there has not been appropriate supervision of the time between X and his Father. It seems to me that the supervisors and the Father have failed to understand their obligations in that regard.
For instance, there was an incident where the Father was vociferous in his complaint about the Independent Children’s Lawyer on the basis that on an occasion of a court event, just outside of Court, she chastised him in front of X because the supervisor was not present. He readily conceded that the supervisor was not present and had gone to the coffee shop to get a cup of coffee. He puts that as a criticism of the Independent Children’s Lawyer, while seemingly failing completely to identify the fact that he had put himself in that position by failing to comply with court orders.
So when I have considered this issue, I have considered that for most intents and purposes, the Father has to date been having unsupervised time with X, or if it has been supervised, the supervision has not addressed what I think are the very real welfare issues in the case in terms of denigration and parental conflict issues. I am, however, cognisant that the time being effectively, in my view, unsupervised seems to have gone without any complaint of physical harm, and I did consider whether or not there could be limited unsupervised time.
However, I am cognisant of the evidence of the Family Report Writer and her concern that with respect to these issues of racial vilification of the Mother by the Father in X’s presence; that these issues have the capacity to very significantly impact on X’s welfare. It is also the view of the Independent Children’s Lawyer that supervision is required. When they talk of supervision, they are talking of supervision in a professional sense rather than supervision by members of the Father’s family.
Ultimately, I have formed the view that some form of professional style supervision at a Contact Centre is required and, in a practical sense, I am told that during the week at least, which can be facilitated in the shorter term, the Contact Centre is able to put this into place within a relatively short compass of about a month. I want the Father to have supervised time also to allow me to consider evidence before the Court from a professional supervisor in terms of exactly how X interacts with the Father and how the Father interacts with X.
In that sense, there will be some independent evidence before the Court as to X’s relationship with the Father and also how the Father is progressing with the education section of the orders that I propose to make. Although these orders will represent a reduction in X’s time with the Father, I do believe that he will be able to maintain a meaningful relationship with X in that sense, as did the Family Report Writer. For the time proposed, and I will come to that shortly, I do think that X will be able to hold a memory of his Father in his mind, which can hopefully improve into the future.
I have considered the practical difficulty of supervised time and the Contact Centre is available, at least in the short to medium term, within a month or so. I do propose to make the order that X’s time take place during the week at first instance, as often as the Children’s Contact Centre can accommodate. But I also want the parties to enrol for the weekend time as well. That should be facilitated as soon as practicable, but may be a number of months away.
The parties’ respective capacities to meet X’s needs I have considered in detail in these reasons. I find that the Mother’s capacity is sufficient. Notwithstanding the complaints made by the Father of her dealings with X, I find that she has not physically disciplined him in any unacceptable way that warrants intervention by this Court, and nor do I find that she’s a risk to X in that sense. I have significant concerns, as I have set out, as to the Father’s capacity to provide for X in an emotional and psychological sense, and I have dealt with that previously in these reasons.
In terms of the Father’s capacity to meet X’s physical needs, I am satisfied that if that was the only issue in the case, then I would not require supervision. However, it is the other aspects, as I have said, that concern me.
Cultural issues are, as I have set out, very important in this case. X is a child of mixed cultural heritage. He should obviously be able to enjoy each of his parent’s cultural heritage.
I have dealt with the attitude by the parents to X in these proceedings and I have also dealt with family violence issues.
In terms of not leading to further proceedings, I have also dealt with that in these reasons and this is the reason why I am not making a final spend time with order. I will, however, make a final residence order in the Mother’s favour and I will make the order that I propose to make with respect to parental responsibility on a final basis.
I now turn to parental responsibility. Section 61DA provides that when making a parenting order, I must apply the presumption that it is in the best interests of X’s parents to have equal shared parental responsibility for him. Parental responsibility for X means all duties and powers and responsibilities and authorities which, by law, parents have in relation to children. These cover issues such as education, religious and cultural upbringing, health and name issues and living arrangement issues. The presumption of equal shared parental responsibility does not provide a starting point about the amount of time a child is to have with each of his parents. Where two or more people share parental responsibility, equally or in relation to any major long term issue under a parenting order, they are required to make decisions jointly.
The concept of shared parental responsibility carries with it the requirement to consult the other parent in relation to decisions to be made about that issue, and to make a genuine effort to come to a joint decision about that issue. These provisions mean that consultation and discussion between the parties regarding long-term and major long-term decisions for X need to be made.
Pursuant to section 61DA(2) the presumption of equal shared parental responsibility does not apply or is rebutted in the following circumstances:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
In relation to X’s family, quite clearly I have made a determination that the Father has perpetrated family violence as defined by the Act. I also note my findings that there has been some family violence directed to the Father by the Mother, particularly in terms of the text messages that were sent by her.
However, in my view, by far and away the most significant consideration of family violence has been perpetrated by the Father against the Mother. What is troubling is that the Father does not seem to accept that he has perpetrated family violence in any real or significant way and, in that regard, he also needs education. I am therefore proposing to order that the Father attend a Men’s Behavioural Change Program. Between that and the one-on-one counselling that I hope the Father undertakes, I would hope that some progress is made.
I am also not required to make an order for equal shared parental responsibility if I find that it is not in X’s best interests for his parents to have equal shared parental responsibility. I find that in this case, the parties have no ability to communicate with each other, and someone needs to be making decisions as to X’s ongoing welfare. I also find that because of the family violence issues, as I have found, it would be impossible for the Mother to be required to negotiate with the Father about long-term issues. In that regard, I therefore concur with the view of the Family Report Writer and the Independent Children’s Lawyer, that the Mother should exercise sole parental responsibility with respect to X. However, I will make various orders with respect to her advising the Father as to serious issues with respect to X’s welfare, as set out by the Independent Children’s Lawyer.
I now turn to the other matter that is in dispute between the parties, namely, travel to the (country omitted). The Father, as I have said, was very vocal and assertive in his view that the (country omitted) is a place that cannot ensure X’s safety in a physical or medical sense. Interestingly, he does not suggest that X will not return from the (country omitted), and that is not part of his case. However, he does suggest that there is a possibility that X, as a child of mixed cultural origin, will be an attractive target for things such as kidnap, and also that the medical and health issues in the (country omitted) for X are serious in terms of the sorts of diseases that are apparent in the (country omitted) and the medical care that is available to him.
However, equally, I cannot ignore that X has a sibling in the (country omitted) and the Mother has a child in the (country omitted). The Mother does not propose to travel until she obtains permanent residency in Australia. The sibling issue is probably less relevant, because she told me that she’s endeavouring to have A come to Australia to live with her and that is likely to occur in due course. In due course, there will be a family for X in Australia that will consist of his older brother, A, and his younger sibling in his Mother’s household. However, the Mother also has her family of origin in the (country omitted). It is not unnatural that she would want to see her parents, her brothers and her sisters.
On balance, I find that the Mother would derive a great deal of pleasure in being able to pursue those natural familial links, and that will have some ongoing benefits to X. There is also, of course, X’s experience of his cultural background. Although he might be a little bit too young now, in the future that will be of some benefit to him. On balance, and I do not wish to dismiss the Father’s concerns, as I know that they are genuinely held, but I am of the view that the Mother will adequately protect X’s welfare in the (country omitted), and I am not of the view that she is a flight risk in terms of not returning, even though the (country omitted) is not a signatory to the Hague Convention on Child Abduction. Accordingly, I am going to allow the trip to the (country omitted).

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 20 January 2016