HUMPEL & HUMPEL

[2012] FamCA 547

FAMILY COURT OF AUSTRALIA

HUMPEL & HUMPEL [2012] FamCA 547

FAMILY LAW – CHILDREN - Undefended hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Humpel

RESPONDENT: Mr Humpel

FILE NUMBER: MLC 7905 of 2010

DATE DELIVERED: 18 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown SC

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

THE RESPONDENT: No Appearance

Orders

1. That the response of the husband filed 4 April 2012 is dismissed.

2. That the Wife have sole parental responsibility for the child V HUMPEL (“the child”) born … November 2009.

3. That the child live with the Wife.

4. That the Husband be at liberty to send the child cards, videos (of the Husband), gifts, books and correspondence via the Wife with the Wife to provide to the Husband a postal address and email address to receive any such items.

5. That the Wife forward to the Husband videos and photographs of the child on a monthly basis, as well as regular reports of his progress at any school he may attend and any health issues.

6. That the Husband and his servants and agents be restrained for an indefinite period from taking, sending or attempting to take or send the child from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police place the name of the child V HUMPEL born … November 2009 on the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia for the purposes of preventing the removal of the child from the Commonwealth of Australia in breach of these Orders, and maintain the child’s name on the Watch List.

7. That the Marshall and all Officers of the Australian Federal Police and the Police Forces of States and Territories are requested and authorised to give effect to these Orders.

8. That the Registry Manager of the Family Court of Australia at Melbourne immediately notify the Marshall, and the relevant Australian Federal Police and State and Territory Police, at Tullamarine and Immigration and Customs Departments of these Orders by telephone and provision of a copy of these Orders provide a copy of these Orders to the Marshall, the Australian Federal Police and the Victorian and Territory Police.

9. That upon the expiration of the family violence order of the South Australian Magistrates Court, the Husband be and is hereby restrained from approaching, assaulting, molesting or harassing the Wife and the child.

10. Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(1)(11)     That all outstanding applications are dismissed

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7905  of 2010

Ms Humpel

Applicant

And

Mr Humpel

Respondent

REASONS FOR JUDGMENT

1. This parenting dispute about V (“the child”) who was born in November 2009, was heard and determined on an undefended but not unopposed basis, on 16 July 2012.  It was undefended because the husband did not attend and through an email which he sent to the wife’s solicitors on 14 July 2012, made it clear that he was not attending.  It was not however unopposed because the husband’s material which opposed some of the orders sought by the wife was considered and is now referred to in these reasons.

Background

1. The husband was born in 1967 and is a student living in California in the United States of America.  He is therefore 45 years of age.  His occupation as a student is unclear because it would appear that he has completed tertiary courses.  I am uncertain what his future employment situation will be.  The husband has a long history of drug-related criminal activity and has spent considerable portions of his life in prison in the United States.

2. The wife is an allied health professional and 38 years of age.  She is currently engaged in caring for the child and works part time.

3. The parties met on a chat line in April 2006.  In July 2006, the wife went to the United States where she physically met up with the husband.  They returned to Australia and were married in August 2006.  They then lived in Australia for three months and later that year, the wife relocated on a permanent basis to the United States.

4. The child was born in November 2009 and only eight weeks later, the parties separated.  The wife returned with the child to Australia.

5. There has been no contact between the husband and the child since that time.

6. A first day of hearing was conducted on 29 February 2012 and the husband was in America.  I agreed that he could attend by telephone.  In that hearing, a discussion took place between the husband and I about parental responsibility.  The wife’s application was that she have sole parental responsibility but the husband sought equal shared parental responsibility.  He conceded that the language in his document was drawn by his lawyers.  In discussion however he said:

   Practically speaking, he’s in Australia and I’m in California.  I think this was something that was put in by the lawyers.  I personally did not come up with that language.  I’m willing to let her make these decisions.  I am very concerned about many things she is doing in this case.

7. I then asked the husband whether he had a “real problem” about the wife having sole responsibility for decisions on the basis that the wife was to keep him informed of what she had done.  His response was:

   Not only informed but to allow me to develop a relationship with him on a natural basis.  That we communicate through emails, Skype and mail and then…

8. The husband then went on to say that he trusted the wife’s assessment about his son’s health and also education.

9. One of the orders I made on 29 February 2012 was that the husband file a response and he did so on 4 April 2012.  In that document, he sought an order that he and the wife have “the joint parental responsibility” for the child.

10. Notwithstanding the concession earlier made, I have presumed that that is a contested fact in issue and will determine it accordingly.

11. The wife sought orders that she have sole parental responsibility, that the child live with her and that the child’s name be placed on the Airport Watch List to preclude him from being removed from Australia and that there be an injunction against the husband approaching her or the child and that the husband undergo a psychiatric assessment by Dr N.

12. In his response, the husband sought the right to communicate with the child by telephone, Skype, email, mail, cards and gifts at reasonable times, with reasonable frequency and on an unsupervised basis.  He also sought orders that the wife be restrained from denigrating him and his family and friends to or in the presence of the child.  He sought orders that the wife keep him informed of her residential address and communication details.

13. In respect of the non-denigration order, there is no evidence that would support that being made.

14. Importantly, the husband sought that he have the right on 28 days notice to spend face to face time with the child either in Australia or in the United States on an unsupervised basis.

Orders 29 February 2012

1. On 29 February 2012, I set the matter down for hearing for three days on 16 July 2012 and gave the husband permission to attend the hearing by video conferencing at his expense.  That arose out of a request by the husband.  A discussion took place about what teleconferencing was. 

The orders in chambers on 10 July 2012

1. Notwithstanding the video conferencing order of February 2012, the husband sent a request to attend the hearing by telephone.  In his reasons he said:

   I simply cannot afford to come to Australia for the court date.  I am a recent graduate and am completely out of resources at this time.  I am asking to attend by phone because I cannot afford a video link.

   That document was sent on 9 July. 

2. In a curious email from a Ms Pagonas of a firm of solicitors in Melbourne, a request was made on behalf of the husband to attend by telephone because he could not afford the video link.  That email, on its face, was not copied into the solicitors for the wife.  Around the same time, the husband wrote to my associate (copying in the wife’s solicitors) indicating that he had “received word” from Ms Pagones (sic) that he may be able to attend by telephone.  In my associate’s response to Ms Pagonas, she indicated it was inappropriate to contact her without copying in all other parties.  That is particularly important in this case where there were no solicitors on the record for the husband and no indication that she had the right to speak for the husband.  That problem seems to be cured by the husband’s own email which indicated that he was in correspondence with the firm of solicitors.

3. On 10 July 2012 I declined the husband’s application because it was:

   (a)late;

   (b)inconsistent with the discussion from the hearing in February 2012; and

   (c)the impending and contested trial was a final hearing.

4. In respect of the third point, this was a controversial case where it must have been anticipated that notwithstanding the family consultant’s view that the parties might negotiate a settlement, they had not shown by their affidavit material any reluctance to litigate and cross-examination was to be extensive because of the factual issues in dispute. 

The hearing on 16 July 2012

1. With the email from the husband to the wife’s solicitors dated 14 July 2012 which is now an exhibit in the proceedings, I had the husband called and there was no attendance.

2. In the circumstances, the husband was not present to prosecute his case and accordingly his response seeking orders was struck out.

The evidence

1. The wife alleged a history of extreme physical, emotional, verbal and sexual abuse in the relatively short period of time that the parties were together.  She gave evidence of physical assaults, deprivation of her liberty including depriving her of water during the period that she was pregnant, verbal denigration and sexual abuse.  In his affidavit, the husband denied the allegations generally.  One of the allegations that the wife made was that the husband cut up her clothing and shoes, threw out her jewellery and let the air out of the tyres of her motor car.  She said he tore up her only Bible that was given to her as a 21^st birthday present.  To a psychiatrist to whom I shall refer below, the husband repeated his denials but did concede that on one night he cut up some of her clothes.  In his affidavit, he had generally denied the wife’s version of events including, I have presumed, the damage to property.

2. The wife asserted that the husband was verbally abusive towards her and raised his hand as if to slap her.  His response to that was that the wife had become “irrationally fearful” that he was going to hurt her in some way and because he was “tiring of her behaviour”, when standing at least eight feet away from her, raised his hand to his mid-chest height and waved his hand and said:  “Yeah…this is going to become your best friend” but went on to say that he said it sarcastically because he had repeatedly told her that he would not hurt her.  I have doubts about whether the husband can simply dismiss the wife’s accusation on the basis that he did not really mean what he said.

3. To his affidavit and quite inappropriately, the husband attached affidavits from previous proceedings by witnesses who were not called in the proceedings.  The first of those affidavits was by a Mr C who was a neighbour of the parties in the United States in 2008.  In relation to one incident, when the wife went to Mr C seeking assistance from him because of the husband’s behaviour, he said he saw no outward signs of violence but acknowledged the wife was hysterical and greatly confused.  He described her behaviour over the ensuing year as erratic and at times delusional.  Without that evidence being tested, it has very little weight but it does show that the wife was upset.  Below, I shall refer to the evidence of psychiatrist Dr N who saw nothing in the wife’s presentation that would make me think her exaggerating, thin-skinned or emotionally disturbed.  How then does the husband explain the objective observations of Mr C at least about the wife’s hysteria?  The husband’s answer seems to be that the wife came from an insular background and he is an “out-there” person.  I reject that as implausible having regard to the nature of the allegations made along with the observations of the parties’ pastor who felt it appropriate to counsel them.

4. Also attached to the husband’s affidavit was an affidavit by Mr K who described himself as a pastor of a church in California.  This was the church at which the parties attended after May 2007.  Interestingly, it was this man who acknowledged that he provided counselling to both parties because of their “marital problems”.  Some significance was placed on the fact that he was with the wife in February 2010 which was the day of the separation when he said that the police asked her about the husband’s violent behaviour.  According to this witness, the wife denied to the police there was any such behaviour.  Be that as it may, Mr K went on to say that from his observations, the husband had “struggled with his anger” and there had been arguments between he and the wife.  He described the husband as not “properly loving and sensitive” towards the wife.  All of this seems to corroborate the wife’s version that there were problems.  I do not find it at all surprising that the wife may not tell the police the full story at the time that she was separating.  In any event, Mr K was not available for cross-examination. 

5. Another affidavit attached to the husband’s affidavit was from a Ms G who had been a friend of the wife in the United States.  Her evidence did little to advance the husband’s case in respect of his behaviour during the marriage.

6. A further affidavit by Ms S was also attached to the husband’s affidavit and did not advance the issue about the background.   These witnesses were not available and I have no way of knowing the circumstances under which they gave the details for their affidavits.  Having regard to s 69ZT(2), I propose to give the evidence of Mr K, Ms G and Ms S no weight.

7. The husband filed a number of other affidavits in April 2012 so I have concluded that he would have relied upon them. They included his current wife, his mother and his sister. None of them attended the hearing nor, from what I could tell, had any arrangement been made for them to give evidence by video conference. At the same time, no notice had apparently been given to the husband requiring them for cross-examination. To the extent that the husband’s own impecuniosity created difficulties in his participation, no mention was made of how any or all of these witnesses could have assisted him.

8. Each of the deponents referred to their observations of the husband as a good person who had not displayed the characteristics portrayed by the wife. None of them referred to the husband’s troubling history nor the “treatment” observation of his psychiatrist. It would seem improbable that they were not aware of that background.

9. All of these witnesses said they wanted involvement with the child. Reference was made to them praying for the child but none addressed the serious problem of how a relationship could be commenced with him.

10. I take into account that the affidavits were prepared by the husband rather than a lawyer and that may account for the lack of relevance to the issues in dispute to be determined.

11. At the time of the separation, the wife went into hiding and obtained legal advice.  Proceedings were instituted in the Superior Court of California seeking a permanent restraining order against the husband and also other orders about the husband being psychiatrically examined.  Upon service of that document, an agreement was reached under which the wife was permitted to return to Australia with the child.  That return was immediate.  At all times, the agreement said that the husband was to stay in California but that there was to be “reasonable access” by the husband to the child and that there would be contemplated two or three visits per year and that the issue associated with “dissolution or legal separation” was to be the province of the Australian courts particularly in relation to “custody” of the child.

12. For his part, the husband denied that he agreed to the permanent relocation of the child to Australia.  He said that his reason for allowing the wife to go was a temporary arrangement because he had a total commitment to reconciling with the wife.  He said that as a Christian, he did not believe in divorce and that the wife had threatened him with divorce if he did not let her go.  The document speaks for itself.  Nothing in the evidence suggests a reconciliation was possible.

13. The evidence of the wife is the only evidence that I can give any serious weight.  She attended court and knew that she was likely to be cross-examined.  The husband did not attend.  I accept the evidence of the wife generally because it is more plausible.  I return to that issue below.

The evidence of Dr A

1. The husband filed an affidavit by Dr A who described himself as a psychiatrist.  The curriculum vitae of Dr A shows that he has practiced in adult and child psychiatry and psychoanalysis since 1973 and has been doing forensic psychiatry and evaluation since 1977.  He set out his training and his experience.  He interviewed the husband and provided a report which was filed by the husband attached to an affidavit.  The repetition of the husband’s denials is self-evident but Dr A did not have the benefit of the affidavit material that was filed by both the husband and the wife subsequent to the orders I made in February 2012.  Whilst he had the affidavit material from September 2010, that material does not vary markedly for the trial affidavits.  However, Dr A assessed the husband by what he saw.  He found him oriented as to time, person and place and did not demonstrate any evidence of organic brain disease.  He described the husband’s background and what could only be described as serious criminal law problems associated with drug abuse.  For a person who was said to have no medical problems, the husband however has to contend with the following statement by Dr A:

   Treatment recommendations were not the primary purpose of this evaluation but it is clear that [the husband] is in need of long term, individual psychotherapy to insure (sic) that, along with his involvement in his religious life, he will not regress and become re-involved with substance abuse or antisocial behaviour.

2. The opinion of Dr A was no doubt based upon what he was told and he observed.  His conclusion that the husband needed treatment was perplexing having regard to his finding that there were no medical problems.  I am uncertain what the witness had in mind concerning anti-social behaviour but it might relate to more than just drug offences.

3. The evidence of Dr A could not be challenged by cross-examination nor did senior counsel for the wife seek to do so.  This was the husband’s witness.  In the circumstances, the evidence of Dr A about the husband has some significant weight and is of concern in a parenting case involving a child who does not know the husband. 

The issue of parental responsibility

1. I am asked by both parents to make a parenting order in relation to the child. The starting point for this case therefore is s 61DA of the Family Law Act 1975 (Cth) (“the Act”).

1. Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the husband and wife to have equal shared parenting responsibility. That is what the husband seeks and the wife opposes.

2. Section 61DA(2) says that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or engaged in family violence.

3. Family violence is defined in s 4 of the Act (the provision prior to the recent amendment is the relevant one) and it means conduct whether actual or threatened by a person towards or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably be apprehensive about, his or her personal wellbeing or safety. The child was too young to understand any of those behavioural issues involving his parents.

4. In her evidence, the wife described her fear of the husband.  In the circumstances, I find that fear reasonable.  Despite the denials of the husband about threats and sexual improprieties, the evidence of the wife although disputed was untested.  She was prepared to have it tested.  I am prepared to accept that on the balance of probabilities, her version is the more plausible having regard to the way in which the separation occurred and the “post-nuptial” separation agreement was signed.  I have the concession of the husband through Dr A of the cutting up of the clothes.  The husband’s evidence about those particular issues was silent.  I have the evidence that the husband needs treatment to prevent regression to anti-social behaviour.  I have the statement of the husband to the family consultant set out in paragraph 54 below.

5. In the circumstances, I am satisfied that the presumption in s 61DA(1) is rebutted.

6. Even on the basis that the evidence was tenuous because of the husband’s inability to attend the Court, there is a power for the Court to exercise its discretion and rebut the presumption if it is satisfied that it is not in the best interests of the child for the parties to have equal shared parental responsibility. I take into account in respect of that issue that in the hearing on 29 February 2012, the husband indicated that he was not opposed to the wife making parenting decisions. I take into account that the husband has no knowledge of the child that would currently enable him to significantly participate in decision-making processes concerning the child. I take into account the fact that the wife expresses fear which I accept is well-founded because of what had happened up until separation even if only in respect of the property damage issue. Thus, even if s 61DA(2) did not apply, I am satisfied that s 61DA(4) should be applied and the presumption is rebutted.

7. In relation to parental responsibility, to the extent that it was a concession, the husband confirmed to the family consultant that he did not object to the wife having that sole responsibility.

Parenting order

1. The wife sought that the child live with her.  The husband did not dispute that.

2. The wife set out in her affidavit how she would care for the child and that evidence was not challenged by the husband.

3. As part of the February 2012 orders, I requested a family report be prepared.

Family consultant’s report

1. Mr B is a family consultant under the Act who has extensive experience. He carried out the report which was released to the parties in June 2012. For the purposes of that interview, he spoke to the wife and observed the child and otherwise spoke to the husband by telephone.

2. The dispute between the parties about what parenting orders should be made was limited.  The husband told the family consultant that he was not seeking face to face contact with the child in the short term but would like some video footage and photographs on a regular basis but also the ability to send card, gifts and letters so that the child might get to know him.  That was not consistent with the affidavit material filed nor the response but I take into account that the discussion between the family consultant and the husband took place on 1 June 2012.

3. The family consultant said that from the interview, there was agreement about most issues between the parties.  That agreement did not extend to the occurrence of past family violence.

4. The family consultant reported that the wife indicated that she was fearful of the husband particularly that if he came to Australia, he would kill both she and the child.  The family consultant reality-tested that proposition but was unable to move the wife from her views.  On a positive note, the wife has been sending film footage and photographs of the child to the husband all of which indicated positive aspects of her parenting responsibility. 

5. The husband appeared to the family consultant to be candid.  He conceded that the wife lived in a world of fear predominantly as a result of her background.  In turn this led to arguments and pressure and stress on the relationship.  The husband conceded that he was not proud of some of his behaviour but it was not as serious as the wife made out.  Just how far that concession could be taken in relation to the allegations of the wife, I am unable to say because the evidence was not tested.  However, I find that there is a reasonable fear in the wife as a result of the conduct of the husband.

6. According to the family consultant however, the husband was realistic enough to acknowledge that he would not be seeing the child in person in the near future but he wanted to develop a relationship by visual electronic means such as Skype.  As for the future, the husband told the family consultant that this relationship could perhaps begin when the child  had been adequately prepared such as when he was three or four years old.

7. The family consultant contemplated all of the various psychological impacts and problems arising out of violence but acknowledged that he was unable to assist without the evidence being comprehensively tested.  Doing the best I can, there is sufficient evidence to enable me to find that the husband did commit family violence regardless of its level of severity and that the wife’s fear of the husband is reasonable.

8. In relation to the child, the family consultant opined that the child could not have cognitive, physical, social or psychological experiences of the husband and therefore the child did not know his father.  There is therefore no relationship between father and child.  As for how that problem could be overcome, the family consultant opined that the usual physical and emotional cues that go towards building a relationship were absent.  Electronic means of communication is unlikely to resolve that problem.  The only way it can ever be overcome is by a face to face relationship being developed.  There is little prospect of that occurring within the foreseeable future on any view of the evidence.

9. The family consultant contemplated the child’s safety as well as that of the wife and was unable to assist because of the divergence of views of the parties.  Accordingly the family consultant thought that both the wife and the child were safe because of the absence of the husband.

10. In terms of what parenting orders should be made, the family consultant noted that the wife agreed in principle that a Skype contact could be maintained but her preference was that it be supervised at both ends.  That is not as simple as it sounds having regard to the limited resources within the community.  It is also a problem where the husband says he has no financial resources to fund it.

11. The family consultant finally indicated that he did not have much faith that the parties would be capable of fostering an environment that might enable the development of the relationship between the husband and the child.  He went on to make recommendations as to how things could at least begin and to her credit, the wife agreed with the proposals.

The evidence of Dr N

1. Dr N is a psychiatrist of considerable experience.  He interviewed the wife as a result of the orders made on 29 February 2012 and he read the relevant trial documents.  He then undertook a psychiatric assessment of the wife and in so doing examined her background.  He said she had a vertigo condition which culminated in her being assessed in hospital by a psychiatrist over a two week period but has since fully recovered.  The history of the relationship with the husband was identified and consistent with the wife’s affidavit.  Nothing about her presentation enabled Dr N to find that she had a psychiatric condition.

2. In proceedings for a parenting order, the court may, subject to matters earlier dealt with, make such parenting order as it thinks proper (s 65D).

3. There is no dispute in this case about where the child is to live. The issue is the husband’s means of communication with him. The determination of that matter falls within the definition of parenting order in s 64B(2).

4. It is the objects and principles of the Act (s 60B) that guide the approach of the Court to any determination bearing in mind that any particular parenting order must regard to best interests of the child as the paramount consideration (s 60CA).

5. The objects that the legislature has seen fit to make clear are that it is the view of the community that wherever possible, the best interests of a child 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;

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

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

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

6. The principles said to underpin those 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).

7. As to specifically what is in the child’s best interests, s 60CC requires the Court to consider a number of matters. There are defined primary considerations and secondary considerations.  The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. On the evidence and particularly that of the family consultant, there is little prospect of the child benefiting from a face to face relationship with the husband in the future. He does not have the cognitive ability to understand parenting concepts at this stage. The development of any relationship must begin with the disadvantage that there is no foundation and on the evidence, little possibility of consistency in the foreseeable future. Whilst it is clearly the child’s right to enjoy the benefit that all Australian children should have in having a meaningful relationship with both parents, the tyranny of distance, the poor communication and relationship between the parents along with the absence of a base to work from must mean that there is little prospect of him benefiting for some time. Whilst the orders I have been asked by the wife to make will go some way towards creating that base, there is much work to be done about the other flaws.

9. I have already found that there was family violence in this case and the child deserves to be protected from that should the possibility arise in the future. There is a family violence order in existence until next month.

10. The additional considerations that must be considered include any views expressed by a child. The child is too young to have any view.

11. The Court must look at the nature of the child’s relationship with each of his parents. He has no relationship with the husband but it is important to not forget that he is entirely dependent for his emotional and psychological development upon the wife. All of the indications are that he is in good hands. The wife’s evidence is that the husband has not sent materials to the child yet she has been diligent in sending materials to the husband. The wife’s evidence which was not tested shows that she has the willingness and ability to facilitate, and has encouraged the development of, a relationship between the child and the husband. The husband must learn to work out a way of reciprocating so that the child has a prospect of understanding who he is.

12. When contemplating making an order, the Court is also obliged to consider the separation of a child from a parent. That is not a problem here insofar as it relates to the wife and the child has no relationship with the husband.

13. There are clearly practical difficulties in the husband doing anything about starting a relationship with the child not the least of which is the distance between the parties but to a large extent, the husband has a choice as to where he lives and how he supports himself. He may be the victim of his own misfortune if the Australian Government refused him entry into the country because of his criminal history but my focus must be on what is best for the child. It may be that the electronic communication is the best that can be arranged with the view to one day enabling the child to meet up properly with his father. Ways of showing responsibility as a parent are the absence of criminal behaviour and the provision of financial support for a child. Other ways are for the husband to ameliorate the concerns of the wife about his behaviour by coming to terms with what this Court accepts was unacceptable behaviour and providing cogent evidence that there is no risk in the future.

14. The Court must consider the capacity of the parents to provide for the needs of children. The wife has not been criticised for her parenting and has not been challenged as the person who will have the dominant caring role. Apart from understanding that the husband has other children and remarried, I have no understanding of his parenting ability. Much of his evidence concerned the events of the past; it remains to be seen whether he has the capacity to look forward by committing himself to the only options I consider are open to me.

15. I have set out my finding on the balance of probabilities concerning the family violence but there is also a family violence order in existence. That order was made on the basis of uncontested evidence but it was at least sufficient evidence to satisfy a magistrate for the State of South Australia. The evidence before me is that the husband consented to the order whilst denying there was any necessity for it. Nothing in the Act precludes a consent order without admission from being taken into account. A South Australian magistrate must still have considered it appropriate to make the order based upon the complaint of the wife.

16. The wife also seeks an order precluding the child being removed from the Commonwealth of Australia. That too is a parenting order. It should only be made where it is in the best interests of the child and, because it is an injunctive order, upon some evidentiary basis. The wife’s evidence in her affidavit was that the husband had made threats to harm her and the child. Those are denied by the husband. There is evidence of family violence. There is evidence of a family violence order. On the wife’s evidence and the admission made by the husband to his psychiatrist and the family consultant, I find that the husband has a dominating personality and would be unlikely to take much notice of the wife. Section 68B of the Act provides that where injunctive proceedings are instituted in relation to a child, the court may make such injunction as it considers appropriate for the welfare of the child. Having regard to the matters just mentioned, I think it is appropriate to make an order for the foreseeable future precluding the child being removed from Australia. If the relationship develops, the possibility of a trip to the United States can be revisited. In the meantime, it is appropriate for orders to be made that bring the matters to an end.

17. I have also taken into account the matters set out in s 60CC(4) and (4A). I have set out above the involvement of the wife in making the relationship development a possibility. I am not sure at all what contribution the husband has made and having regard to his criminal history, whether he could have entered Australia anyway.

18. In my view, there should be orders that give some prospect of a future relationship between the husband and the child but of necessity, that must be limited to the husband being at liberty to send cards, videos gifts and the like. Orders should also be made that the wife encourage the husband to be involved by at least letting him know of the developments of the child and to that end, of necessity, it must be limited even on the husband’s case to videos and photographs. In due course, the wife should provide schooling progress details.

19. The wife sought an order precluding the husband from making further application for parenting orders without a psychiatric assessment in Australia. Having regard to the affidavit of Dr A, I think that order is unnecessary. That psychiatrist may seem to be supporting the husband but he has also said that “treatment” is necessary. That treatment highlights the need for focus on drug abuse and “anti-social behaviour”. Before any proceeding could be commenced in Australia, the husband would need to establish that the circumstances have changed. I do not think it is appropriate to make an order that precludes the husband from bringing any application for parenting orders without that psychiatric assessment. It may be that an application is limited to such things as communication with the child. If the husband could show some relationship has developed between he and the child which could sensibly be enhanced with some extension of the existing orders, he should have the liberty to make it. He will need much better evidence than is currently before the Court.

20. The wife also sought injunctive orders against the husband relating to approaching, assaulting, molesting or harassing her or the child. Most of those cannot occur because of the restrictions on the husband’s movements and there is currently a family violence order in existence. The power to make a wide ranging order is limited because of the South Australian order. There was sufficient basis to make that order even if it was with the consent of the husband and based on the evidence before me and the findings referred to, there is sufficient basis to make an order to commence upon the expiration of the South Australian order.

I certify that the preceding Eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 July 2012.

Associate: 

Date:  18 July 2012