HURST & LINDSAY

FAMILY COURT OF AUSTRALIA

HURST & LINDSAY

[2013] FamCA 508

FAMILY LAW – CHILDREN – Father to have sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT:

Ms Hurst

RESPONDENT:

Mr Lindsay

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5070

2009

DATE DELIVERED:

4 July 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

25, 26 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Sansom

SOLICITOR FOR THE APPLICANT:

Peninsula Law

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

Orders

That all extant parenting orders are discharged.
That the court declares the presumption of equal shared parental responsibility is rebutted.
That the father have sole parental responsibility for D, (“the child”) born … June 2007.
That by 4.00pm on 20 July 2013, each of the mother and the father do all things required to enrol at B Contact Centre for the purposes of enabling a supervised arrangement to be put in place for the child.
That the child spend time with the mother on specific dates and for periods of time determined by the manager of the contact centre but on the following conditions:
(a) the period shall commence as soon as practicable;
(b) the period shall not occur more than once every three months; and
(c)the manager of the contact centre shall first read the reasons and orders of the Court delivered this day and ensure that all staff are aware of the nature of the dispute between the parties and the background.
For the purposes of paragraph 5 of these orders, the father deliver the child to the contact centre on the dates and times dictated by the said manager.
That the Independent Children’s Lawyer provide the contact centre with a copy of these orders and the accompanying reasons.
That the Independent Children’s Lawyer in consultation with the family consultant, provide to the father the name of an appropriate counsellor for the child and thereafter the father make all reasonable arrangements to ensure that the child attends.
That the father make the child available at the Court or such other place as he is so advised, for the Independent Children’s Lawyer and the family consultant to inform the child in the appropriate language of these orders.
That the mother be at liberty to send to the child presents, cards and letters to an address nominated by the father and the father is obligated to give them to the child unless he determines that the letters and cards are age inappropriate and if he declines to so agree with this paragraph, then IT IS REQUESTED that the manager of the contact centre hand the cards, letters and presents to the child when the contact visits occur.
For the purposes of the foregoing paragraph, the father provide to the mother an address by 4.00pm on 20 July 2013 for the purposes of sending the relevant presents, cards and letters.
That the Independent Children’s Lawyer is otherwise discharged from the completion of those orders.
That the application of the mother and the response thereto by the father are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and solicitor appearing as counsel to attend.
That 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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Lindsay 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 5070 of 2009

Ms Hurst

Applicant

And

Mr Lindsay

Respondent

REASONS FOR JUDGMENT

These parenting proceedings are about D, (“the child”) who was born in June 2007. The question is with whom of her parents she should live and what time she should spend with the other parent.

Background

For the first two years of the child’s life, she did not know of her father at all nor he of her. In 2009, the Department of Human Services removed the child from her mother after she suffered injuries and she was placed with her father who was then a perfect stranger.
Since 2009, the child has had a very limited period of time with her mother. The mother wants to change all of that maintaining that she is a changed person and would never hurt the child again. The father’s view is to oppose any form of contact between the mother and the child at all.

The final address positions of the parties

In their respective final addresses, the parties had very different views. The mother’s position (as the applicant) was that the child should live with her and she have sole responsibility for decisions about the child. She said that the father should spend each third weekend with the child from Friday evening to Sunday evening and then on a variety of other special occasions. She proposed that the exchange of the child occur at a contact centre at Suburb A.
The mother’s position was that if the Court rejected that proposal, her own contact with the child should be initially supervised but not otherwise.
The father’s position was that there should be no time whatsoever. That was the position at the commencement of his case and nothing changed throughout.
The Independent Children’s Lawyer’s position was that the father have sole parental responsibility for the child and that she live with him. It was submitted that there should be time with the mother but it should be indefinitely supervised at a contact centre and that otherwise the mother be able to send presents, cards and letters to the child. Other proposed orders will be addressed in these reasons.
I find that the position of both parents is not in the child’s best interests.

The parents

Ms Hurst (“the mother”) is 38 years of age. She is currently not working and receives a disability pension. She lives in eastern Victoria and is also the mother of an 8 year old daughter. That child lives with her father. I am unclear as to whether there are still ongoing disputes about the 8 year old.
The mother also has a four month old baby who lives with her. The child D is her only other child.
Mr Lindsay (“the father”) is 46 years of age. He has kept his current employment situation secret but it would seem he works four days per week in a retail position. The father and the child recently moved from country Western Victoria to suburban Melbourne. The child D is his only child.

The relationship between the parents.

The mother and father met in 2006 through a local newspaper and dated for a very short period of time during which the child was conceived. It was the mother’s evidence that on the day the child was conceived, an argument ensued over sex and she walked out of the father’s life. The father then went to Queensland and was not aware of the existence of the child until he returned not long before the child’s second birthday. He then began proceedings in June 2009 for contact with the child but that came to a rapid conclusion only days later when the Department of Human Services removed the child from her mother and placed her in the father’s care. Such a dramatic step must have been warranted because the care situation has remained the same ever since.

The child is injured

The immediate lead-up to the departmental involvement was horrifying for such a vulnerable child. The child, then almost two years of age, was found with extensive bruising. Her injuries were described by a doctor from the Victoria Forensic Paediatric Medical Service as including three discrete yellow bruises on her forehead, two on her right side and one on her left side. There was a bruise on her right cheek and one below her eye on her left cheek. She was bruised under the chin. Other bruises included marks on her back, right shoulder, right hip and right thigh. The child reacted to touch on her face indicating that it was tender. The child had scratch marks on her neck and evidence of nits in her hair.
The child protection worker had reported that the mother explained the facial bruising as having occurred in the bath. According to the consultant paediatrician, no history was given that would account for such injuries. He felt that the bruising was evidence of trauma.
When the father began his cross-examination of the mother, he asked whether she admitted causing the injuries. Her response was: “Yes, but I don’t remember”.
The father pursued the issue and asked whether she was responsible for the injuries and she said she was. She explained that she had smacked the child but also then put her in her cot to prevent hurting her further. In response to other similar questions, the mother said that “unfortunately”, she was a bit “rough”.
When putting the child into the cot, the mother said that she slipped and the child hit the corner. That explains some but not all of the injuries.
The horrific set of injuries described earlier could not have been the result of being put into the cot the way described but in the context of the mother’s answer that she did not remember, it is helpful to look at her own sad background.

The mother’s background

At school, the mother was bullied to such an extent that she attempted suicide. As a 19 year old, she was injured in a car accident in which she suffered head injuries. She now has an acquired brain injury. She was the driver of that car and over the permissible alcohol limit at the time. The accident left her with that brain injury. Only months later, the now 8 year old child was born. In the following year, the mother attempted suicide again; this time with prescription drugs. She then met the father.
The mother was involved in court proceedings over her first daughter. During those proceedings, she was diagnosed by a forensic psychiatrist with anti-social personality disorder. Indeed, much later, to her counsellor and psychologist, she described herself as a “wild child”. She was abusing drugs. Her own admission in evidence was that the drugs included amphetamines and marijuana. This was the environment into which the child was born and importantly, absent any contact with her father.
Several months before the Department of Human Services stepped in to remove the child, the mother’s grandfather died. Her description was that this impacted upon her. When asked by counsel for the Independent Children’s Lawyer how all of this occurred, her response was enlightening. She said she only hurt the child once in 2009 but that there was no excuse for that. She said she was not well which she explained as being caused by her grieving for her grandfather. She then added that she was a drug addict at the time.
Two important observations must then be made from that evidence. First, the mother said that her current concerns about the child were that the father was a strict disciplinarian and that before being removed, the child was a vibrant, bubbly child but now she was unsure of herself. The vibrant, bubbly description must relate to a child not quite two years of age; four years have gone by and the mother’s involvement has been limited for reasons to which I shall return. Secondly, the mother said that she was a changed person and would never hurt the child again yet very recently, there has been a notification to the Department of Human Services about the mother’s care of her most recently born infant.
Counsel for the Independent Children’s Lawyer put to the mother that the anonymous notification to the Department referred to her not caring for the infant, problems of drug use and domestic violence. The mother’s response was that she and her partner were “having a domestic” and things got out of hand. It was the mother who called the police to that incident.
The mother produced a letter from the Department of Human Services to say that they were not interested in her in relation to her new-born infant. Just what that means is unclear because I am uncertain what knowledge they have. Despite her affidavit picture showing a settled and happy domestic situation with her partner, it was far from that. She conceded that she had brought her relationship with her partner to an end because of his aggression. When asked about the violent breakup, she acknowledged her partner was “probably” affected by marijuana. She denied drug use herself but that too left a lingering doubt about her changed way of life.
The timing of the mother’s domestic violence problem is also significant. The mother saw the family consultant for the purposes of a report to be used in these proceedings on 6 May 2013. However, she saw her again on 6 June 2013. The incident with her partner apparently occurred the night before the second interview. It was only because the Independent Children’s Lawyer had subpoenaed the records of the Department of Human Services that the matter came to light. The mother did not tell the family consultant about it.
In September 2012, October 2012 and November 2012, the Independent Children’s Lawyer requested the mother to provide urine samples for drug analysis. The mother did not respond. She was represented by a lawyer at that time. When asked why that was so, her explanation was that she was pregnant and she felt denigrated. After some thought, she added that it was “childish”. She volunteered that she had undertaken an unrequested test in January 2013 and another in April 2013. Counsel called for the latter results which the mother said had been sent to her solicitor. Her solicitor, appearing as her counsel, informed the Court that she did not have it nor had she received it. The absence of the tests in 2012 was one thing but to say her conduct was childish was troubling where she admitted that she was in a relationship where recent drug use was an issue. That was also disconcerting because when the hearing began, the mother’s solicitor informed the Court that the mother relied upon an affidavit by her current partner Mr C. That affidavit contained statements that were at best, misleading. The partner said he never used illicit drugs. The mother’s implausible explanation was that perhaps he did not think marijuana was illegal. The partner also referred to the mother’s infant as “their” child leaving the only plausible inference open that he was the child’s father. The mother said that he was not, even though the child was conceived during this relationship. Curiously, she declined to answer my question about who the father was. The relevance of that issue and the nature of the relationship with the now defunct partner, ought be obvious in a case where the mother was seeking that the child live with her.
In respect of parental responsibility, the mother was asked what she had done about the payment of child support for the child when in the father’s care. She said the Agency took her accrued tax rebate at the end of a financial year in which she had worked for eight months earning a take-home pay of about $1400 per week. She seemed oblivious to the fact that she might have some responsibility to financially support the child whilst earning the income she had. She said that the father lived a long way away and they did not communicate.
I find the mother has little understanding of parental responsibility. That became even more evident in two specific events. The first was in May 2011 when the mother, without legal representation, issued an application for a recovery order in the Federal Magistrates Court. None of the history to which this Court has been privy was disclosed to the Federal Magistrate. The ex parte application was brought on urgently and on the basis that the father was overholding the child. He had the child as a result of the Children’s Court hearing and the involvement of the Department of Human Services. After the orders were made, police arrived and removed the child from the father. Only upon a comprehensive picture being portrayed was the child returned to her father. The mother conceded she had wanted the child back and that there were no orders in existence because the Children’s Court order had just expired. There was a sinister element in what she was doing because of its consequences but also because she knew that the State orders had run out. The second event was what became known as the abduction incident.
In December 2011, the father allowed the child to spend time with the mother’s sister because he was having trouble caring for her. The mother took the child from her sister’s house and absconded. The mother agreed she had made an arrangement with her sister to attend the house. She took the child to her girlfriend’s house some hours away during which time she bought a ticket to travel to Perth. I find it was the mother’s intention to disappear with the child. Police and the Department of Human Services quickly moved in and after four days on the run, the child was taken from the mother. The mother then claimed that the child had made allegations of sexual abuse by the father. These too were investigated and came to nothing.
In January 2012, a Magistrates’ Court made an intervention order against the mother on behalf of the child for seven years. There then followed a dispute about the child’s birth certificate because the mother changed her name unilaterally. That led to further proceedings even to the extent of involving the Department of Human Services obtaining DNA testing.
After the child was removed from her, the mother regularly attended psychological counselling. She named the counsellor who provided a report which was attached to her affidavit. She noted that the psychologist had recently retired. She saw the psychologist and he provided a report in June 2010 and then an addendum report in January 2012. The first report in 2010 saw the psychologist diagnose the mother with generalised anxiety disorder, probable post-traumatic stress disorder and depression. He set out the background including the details about how the acquired brain injury arose. The mother described herself to the psychologist as “having a short fuse”. She disclosed having been sexually molested by her sister as a child and a pregnancy termination in 2003. The psychologist undertook some tests and made the diagnosis to which I have referred. He then said that there was little doubt she had been “through the wringer”. He then made the extraordinary statement that he could see no evidence of acceptance of any responsibility by the fathers of her children. How he concluded that was beyond me. He said that the mother had been left alone to carry the burden by herself.
The psychologist indicated that the mother had participated well in therapy and was able to reduce her anxiety and depression significantly and that she was drug and alcohol free, living a normal life. He observed regular urine reports from the pathologist detecting no abnormality. He recommended ongoing therapy.
In January 2012, a further report was obtained. The psychologist noted that he had not seen the mother for 15 months and she had reported to him that she had remained abstinent from drugs and continued to work on her stress behaviour. He thought she was showing maturity and a greater level of insight than previously seen. He said there were no incidents in which the police were called. His examination showed that her anxiety level was low and her depression level normal. He described her as a very different person who had settled down and “done the hard yards” making significant changes and improvements to her life. He then made the further extraordinary statement that it would be an injustice if the events were to follow her for the rest of her life and prevent her from having the opportunity of starting afresh. Whilst that may have directed its focus to the mother, it has little to do with the child and it was of no probative value.

It was hard to see that there had been significant change in the mother. Another concern was that after the Children’s Court orders expired, she went to the police station in country Victoria where the father lived for the purposes of seeking the return of the child. In that process, she alleged that he was dealing in drugs. She explained her conclusion arose from watching his home and the people coming and going. The material produced by the Independent Children’s Lawyer and conceded by the mother was that the police undertook a welfare check and were more concerned about her behaviour to such an extent that they thought it might give rise to a “family violence safety notice”.
All of this sorry tale led to proceedings in the Federal Magistrates Court which were ultimately transferred to this Court upon an understanding that the matter was of some complexity.
The mother’s solicitor filed an outline of her case just before the final hearing began. She relied on two affidavits by the mother and two from other witnesses. The first of those other witnesses was Ms E. That document was sworn in February 2012.
On the second day of the hearing, I was informed that Ms E was not coming to court for a variety of reasons but the mother wished to rely upon her affidavit evidence anyway. The mother’s solicitor agreed that the issue was what weight could be given to that evidence. All of Ms E’s accusations against the father relating to his care of the child detailed in that affidavit were put to the father in cross-examination. He denied all of those that might be seen to have been relevant. Having considered how serious the allegations were and the fact that they are generally inconsistent not only with the father’s evidence tested under cross-examination but also the objective evidence of the Department of Human Services, I propose to give the evidence of Ms E no weight at all.
Also on the morning of the second day of the hearing, the mother’s solicitor said that her client was no longer relying upon the affidavit of her former partner Mr C. It was said that their relationship had come to an end as I have earlier described. Whilst that concession removed corroborative evidence for the mother about her parenting skills, I could not ignore the evidence of the mother on the previous day about what had been said by Mr C in his affidavit. Having read it because the mother initially relied upon it, I asked the mother to explain the inconsistencies. The mother later said that she and Mr C were still friends and indeed, he was caring for her infant on the first day of the hearing.
The evidence of the mother on the issue of parental responsibility and ability to care showed she has not managed to yet achieve and maintain a stable life. She had her attention drawn to a Department of Human Service notification about her infant. The allegations were wide-ranging including that there were verbal arguments with her partner, more than one separation with him, her house smelt of marijuana, she had a needle stuck up her arm and track marks in that arm. The mother was emphatic in denying the drug allegations and I am very conscious of scurrilous anonymous accusations being given any credence. Scurrilous though these accusations might be, some of the accusations were not denied by the mother. For example, there were arguments and separations. They were conceded by the mother. It was therefore not just one argumentative incident. In addition, the notes of the maternal and child health nurse recorded concerns for her own safety when she visited the mother. The mother showed she was genuinely shocked when that allegation was put and I was not in any position to test the truth of that statement but unlike the other potentially scurrilous accusations, this source would normally be expected to be credible. All of this creates a doubt in my mind as to exactly what has been happening in the mother’s life.
To compound the mother’s problems, also on the second day of the trial, her solicitor confirmed that her client had been charged by the police with what appears to be perverting the course of justice arising out of the application for the recovery order in the Magistrates’ Court. That is to be heard in August. That too obviously needs to be tested as the mother is entitled to the presumption of innocence but she conceded she had not told the Federal Magistrate the full story. The prosecuting authorities must have considered that they could establish the necessary intent. I am certainly not drawing any such inference but this problem yet to be faced indicates that the mother’s life is as yet still unstable.

Psychiatric examination of the mother

All parties agreed that a psychiatric examination of the mother could be admitted into evidence.

Dr F

Dr F is a consultant psychiatrist who is a certified forensic psychiatrist and child adolescent psychiatrist. He prepared a report which was provided to the Independent Children’s Lawyer on 3 June 2013. He had read a number of documents.
Dr F set out the background of the mother most of which is not controversial.
Dr F seemed cautious. He said he had a limited formal psychiatric history but one that was hard to explain in 2005-2006. He thought it possible that the mother had some dysfunctional personality traits. He thought it was difficult to characterise her personality without accurate corroborative data saying that it was possible she was prone to considerable emotional instability. Her propensity towards heightened and unstable emotions depended very much on the quality of her relationships rather than the pervasive pattern independent of inter-personal relations. That heightens my concerns having regard to the breakdown of her current relationship and the uncertainty surrounding who is the father of her infant child.
Dr F described the mother’s conduct in injuring the child as very alarming and concerning and perhaps a representation of her limited coping skills. He noted as did the Court, she reported that the incident was isolated.
Dr F thought her emotionality may have been compounded by illicit drug use. Her protestations about drug absence may indicate that the risk of physical injury to the child has passed but she admitted that Mr C was probably affected by marijuana. If she had started afresh, how was it possible that she would permit that association particularly when she filed an affidavit in which he stated that he did not use drugs?
In his opinion, Dr F thought her mental state was most unremarkable. She displayed subtle signs of having an abrupt manner and propensity towards engaging in discursive communication but there were no signs of overt mental disorder. He thought that even with the relatively limited data, the mother had features of personality dysfunction rather than mental disorder. That being the case, he opined that these qualities would appreciably alter over time.
It is of some significance that he interviewed the mother in January 2013 and at that time, it would seem she was in a stable relationship. He then said that the stable relationship would provide greater general stability in her mental health and reduce her propensity towards similar difficulties to that previously experienced. Sadly, that is no longer the case. I find that the evidence of Dr F is quite significant when it comes to the question of whether the mother has changed and whether she is sufficiently stable to care for the child.
I could not find on the mother’s own evidence that she is a changed person and even if I could, the question is whether it would be in the child’s best interests now to alter the existing, and I find stable, regime with the father.

The father

The father too has not assisted his own cause by not complying with a variety of orders. He is a loud man who could appear as single minded and aggressive. In the courtroom, he was well prepared and generally respectful including in the way he cross-examined the mother. He expressed his wariness about the mother and his concern for the child. I find there is some justification for his concerns.
There is evidence of the father’s prior criminal and drinking history. He did not shy away from it. It is appalling because it shows a contempt for the law, an anger which is manifested in assaults often attended by alcohol and a self-righteousness which this Court should consider as poor role modelling for a parent. In summary his conduct may be seen as set out now.
In the 10 year period between 1985 and 1995, the father appeared in court on 11 occasions and was convicted of the following:
·    Assault and making threats to kill
·    Assault by kicking;
·    Assaulting police or person assisting police;
·    Wilfully damaging property;
·    Theft;
·    Using insulting words, threatening words, indecent language in public and behaving in an offensive manner in public;
·    Failing to answer bail; and
·    Failure to comply with a community based order
In the period for 1995 to 2005, the father was brought to court on five occasions and convicted of the following:
·    Contempt in the face of court;
·    Intentionally damaging property;
·    Failing to obey traffic control signals;
·    Refusal to accompany a police officer to a police station for a breath test;
·    Burglary and theft;
·    Exceeding the speed limit; and
·    Driving while disqualified.
Since 2005, the father has been convicted of recklessly causing injury and drink driving.
Over his history since 1985, the father has been sentenced to over 30 months of imprisonment, 22 months of which seemed to have been suspended. He had community based orders totalling over two years several of which were breached and cancelled and replaced with a gaol sentence.
In addition to accumulated fines, the father has had his licence cancelled and has been disqualified from driving a motor vehicle in the State on three occasions.
The father’s record also disclosed intervention orders involving the attendance of police at violent domestic disputes. The records show intervention orders having been taken out by four different women between 1995 and 2004.
All of that gives some impetus and support for the conclusion that he would pay scant regard to the orders of this Court.
In her evidence, the mother asserted that the Department of Human Services had raised concerns about the father’s alcohol use. She said she knew he could not drive his car because he was disqualified for drink-driving offences. The father denied that he drank alcohol to excess but did admit that he was disqualified from driving because of alcohol offences. The curious feature of that concession was that he dismissed the fact that he had broken the drink driving laws having been detected in the morning driving after he had been consuming alcohol the night before. The observation must be obvious that he was not permitted to have any alcohol in his system whenever driving. That points to his lack of responsibility generally. Be that as it may, there is no evidence upon which I could rely to make a finding that the father now drinks to excess.
In her affidavit, the mother set out that in 2007, the father was a heavy cannabis user. At that time, he did not have the responsibility for the child but I also take into account that the mother conceded that she was a drug addict herself. There is no reliable or plausible evidence that he is a current drug user.
One curious event of late was highlighted by the mother. She said that the father was fined $800 for a variety of assault offences in a local Magistrates’ Court. The father’s version was that he was sticking up for a disabled person in a hotel and an altercation occurred. Having regard to the appalling criminal history of the father to which I have referred, I think I can safely conclude that a fine of $800 does indeed indicate that the court was not particularly concerned about the particulars of the offence. More importantly, the father was cross-examined about where the child was at the time. There is no evidence to the contrary so I accept the father’s evidence that the child was not present in the room when the altercation occurred.

The father’s relationship with the child

In his evidence, the father set out that the child was a vivacious and bubbly little girl who was very clever and astute. He described her as aged well beyond her years and energetic. He described her as stubborn and defiant at times and quite cheeky with people she knew as well as strangers. Those sorts of statement were corroborated by the family consultant who observed the father struggling a little to get the child into a coat when the interview concluded. He said that there was a strong bond between the two of them and they had fun and a happy life together. None of that evidence was challenged.

The father fails to be responsive to orders

A number of court orders were made in this case and there were a number of hearings. One such hearing was before the Senior Registrar. The father did not attend although he was represented by counsel. When questioned why he did not attend, he said that it was the child’s birthday and he was attending a party. One might question the wisdom of that. He later failed to attend the appointment date for the interview with the family consultant for the purposes of the family report. His explanation for that was that he spoke to the family consultant for three hours on the telephone and in any event, he was moving house that day.
There has also been a significant argument in this case about whether the father complied with orders for attendance at the contact centre for the purposes of registration so that the mother could have some supervised time as ordered by the Court. I am not satisfied to make a finding that he was not telling the truth about that issue. The only evidence before me was that he was informed that there was no placement. Whether that arose as a result of a lack of communication or not, I am unable to say.
At best, I find that the father is ambivalent about complying with orders of the Court. He had declined to attend a psychiatric report on himself to be undertaken by Dr F. His explanation for that was that he spoke to Dr F who wanted a payment and he did not have the money. Having regard to the fact that he was on a pension at the time and not having received any child support, it was understandable. He was not eligible for legal aid and represented himself throughout the proceedings. Again, I would be cautious about criticising him for that.

The father as a parent

The question arises about whether the father is a better parent for the child than the mother. The family consultant conceded that the father was doing well bearing in mind his extraordinarily difficult start but also the constant problems of litigation until now. There are significant concerns about the father but they must all be seen through the subjective eyes of a court acting somewhat clinically on the evidence.
The father did not shy away from his criminal history but his lack of respect for authority (which I might say he denied) was abundantly clear. His language in the court was demeaning and sexist towards the other two legal practitioners. His behaviour at times would be seen by many people as threatening and intimidating notwithstanding what I said earlier. That was consistent with his criminal history as well. It is not an excuse to refer to his difficult upbringing or the current strained relationship with his own family. He denied there were such problems but I find that there are.
The father is an aggressive and loud man who sees things in black and white terms. He has no respect for Department of Human Services’ workers. He described one worker who wrote what he described as “40 reports” but who had spent “five minutes” on the task as having been threatened by the Children’s Court with contempt. He said the Department of Human Services “do a lousy job”. His jaundiced view about the Department’s role in the protection of children permeates everything about what he sees as best for the child. He has a view about which he is not negotiable.
It must be clearly said that the mother’s role in the physical damage to the child was appalling and must be heavily criticised regardless of what explanation she had. She was, as she acknowledged, participating in a drug culture at the time and was unwell. Whatever the explanation, she had a foremost and primary responsibility to her very young child to protect her from harm. She failed but I fear she has not learned the lessons. She adopted the view that she had overcome the difficulties she had and was again ready to take on parental responsibilities. Life for children is not that simple because they need not only protection but security and consistency. The mother could not provide that and I find that she cannot now.
Where the father’s not negotiable position fails is his dogmatic view that the child cannot benefit in either the long-term or the short-term from knowing her mother. In a contact centre, the child would be protected and have the benefit of enabling her to at least know who her mother is.
The father has no respect for the mother. He described his routine of dealing with the child and it sounded remarkably rigid and disciplined. That is troubling because with the view that he has, there is little prospect that he would say anything positive to the child about the mother or even discuss with her any attributes she might have. His whole view about the mother is not hidden from the child. He said that he wanted the mother to just vanish out of his life and that of the life of the child. When asked how he explained the child’s warmth towards her mother observed by the family consultant in interview, he said that “Jack the Ripper greeted people warmly too”.
I find there is no prospect of the father encouraging the child to know of or anything about her mother. I do not accept that the father will be cooperative in relation to the preparation of the child for any contact visit nor sensitive to her needs after such a visit. Any visit will inevitably be traumatic for the child.
The father was pressed to say why any contact between the mother and the child was not a good idea. He maintained it would be “disruptive”. When asked what that meant, he said that he wanted the child to be old enough to make the decisions herself. He said that he did not know whether the child was coming or going and neither he nor the child wanted to participate. He said he did not think that the child needed a mother in her life and that she was embarrassed by her mother. He said that the child was ashamed of her mother, the way the mother dressed, smelt and talked. He said that the smells related to cigarette smoking and the way she talked, could not be understood. Whilst I accept that that is a very jaundiced view of the mother, it is unfortunately not consistent with the observations of the family consultant nor does it take into account the longer term consequences of the child not knowing who her mother is.

The family consultant

The family consultant gave evidence at the request of the parties. She initially did not have the opportunity to observe the mother and the child because the father did not bring the child as I have earlier described. As a result of orders I made, the father brought the child to the court and the resources of the family consultant were stretched to enable that interview to take place.
The child told the family consultant that she did not want her father to know that there was going to be a meeting with her mother. That was overcome by a joint meeting between the father, the child and the family consultant. The child told her father that she just wanted to say hello to her mother and have a conversation with her. The father’s response was to say that he did not think it a good idea but if that was what the child wanted, he would not be angry with her. The family consultant observed that the father wanted the child to explain why she wanted to see her mother and the family consultant had to remind the father that the child was not quite six years of age and unable to provide such an explanation.

The child then advised the family consultant that she was worried about her mother taking her away and hurting her. She was worried that her mother would get angry if the wrong words were used. It was the family consultant’s opinion and I accept it, this child has memories of what happened in the past including the abduction in 2011.
The family consultant observed mother and child. The mother greeted the child warmly and embraced her and the child immediately responded. They played together and the family consultant was complimentary of the way the mother handled the situation. The child spontaneously said whilst playing that she missed her mother. When time came to end the session, the child became distressed and tearful saying that she did want her mother to go. To her credit, the mother comforted the child. No false reassurances were given by the mother and she was able to contain her emotions effectively.
Despite all of that, it was the very clear recommendation of the family consultant that contact between the mother and child had to be limited to supervised contact and only for a limited number of times per year.
In cross-examination, the family consultant conceded that her views were conservative. She said the rationale was that the child had a right as well as an opportunity to learn who her mother was.
The family consultant opined that if no contact occurred, there would most likely be an adverse reaction for the child. The child knows who her mother is and misses the concept of a mother. If there was no contact, the child was likely to form an idealised figure of who her mother was.
If no contact occurred as the father would have it, there was a possibility that the child would have identity crises, difficulty forming positive relationships in the future both as to friendships and intimate relationships and she would be left with a sense of incompleteness which would affect her self-esteem. Problems could then follow with social interconnectedness, learning, meeting developmental stages as well as the obvious adolescent problems at a time when she was maturing. That could potentially lead to risk taking. In turn, that could lead to an impact on the child’s relationship with her father.
The father endeavoured to have the family consultant put that possibility in percentage terms. Clearly that was a matter of crystal ball gazing. The research showed those problems occurred for children who have that absent parent. The problems are obviously ameliorated if the situation is handled delicately and questions answered sensitively and honestly. I have no confidence that the father would do anything other than tell the child that her mother was a terrible person.
The evidence of the family consultant was very helpful in that it objectively assessed the mother in the same way that I observed the evidence of the mother. The child has a memory of her mother which is an idealised one inconsistent with the trauma that she has suffered. As I earlier pointed out, absent some indication that there is a real change so that the child could have the security and the confidence of a relationship with her mother, I would be taking a significant risk if I placed the child in her unsupervised care.
Whilst I have been critical of the father, he has objectively done a good job in the physical care of the child. Whilst I have concerns about his ability to deal with the emotional side of the child’s life, there is no objective evidence to indicate that away from the frustrations of the litigation, he does not provide for her well. As I pointed out, the evidence about his relationship with the child was not challenged.

The legal issue

Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the law in relation to parenting disputes. Section 65D empowers the Court to make an order regarding the care arrangements for children including who is to be responsible for making long-term decisions about them, who the children are to live with and also a variety of contact arrangements.
Section 65D provides that the power is subject to the presumption of equal shared parental responsibility set out in s 61DA.
There is no basis here for the Court to make an order for equal shared parental responsibility. That is because the presumption of equal shared parental responsibility must be rebutted for reasons associated with both family violence and also it not being in the child’s best interests. The parents do not communicate at all with one another. It is significant also that the father did not know of the child for the first two years of her life. The father specifically shuns the mother. According to the mother, any contact between them ends in physical conflict. According to the father, the mother has contact with a motor cycle group which threatens his safety. The mistrust is palpable. Thus, any possibility of a joint or shared decision-making arrangement could not be realised.
Section 64B(1) defines a parenting order. An order may be made in relation to any aspect of the care, welfare or development of a child as well as any other aspect of parental responsibility.
When making a parenting order, s 60CA requires the Court to find that the child’s best interests are the paramount consideration.
The father urged me to consider his convenience. I accept that any of the contemplated scenarios involving a role for him providing the child to her mother would not only be inconvenient for him but also frustrating. Having regard to the potential risks for the child in not having any relationship with her mother as indicated by the family consultant, sadly, the father must suffer that inconvenience for the child’s benefit.
To determine what is in the child’s best interest, s 60CC provides a check list of how those interests are determined. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both 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.
The words “meaningful relationship” do not just mean contact between parent and child. There must be some benefit for the child in having that relationship. The evidence of the family consultant is critical about that aspect. I find there is a prospect of the child having a meaningful relationship with both parents and at the same time, being protected from harm by limiting the mother’s contact in a supervised arrangement. I appreciate that supervision must come to an end at some point but this is a case where physical injuries have occurred and I am not satisfied that the child would not still be at risk. I am not in a position to conclude how long that should continue and therefore I propose to make an open-ended order. To the extent that a contact centre decides that it can no longer supervise the arrangement, the mother will have to make a further application.
Supervision will not only relate to the physical care of the child but also be closely monitoring the arrangement to ensure that the mother makes no reference to the child returning home or having any contact other than in the restricted environment.
I have given serious consideration to the questions put by the solicitor for the mother in cross-examination about where the mother’s extended family fits in. In my view, there should be some contact between the child and her mother’s family but certainly not for the first twelve months of any arrangement. How that arises thereafter is a matter for the contact centre.
Section 60B of the Act provides the principles and objectives of Part VII of the Act. It is the right of a child to have contact with and communicate with both parents but that is always subject to the best interests of the child. It is obvious that children are inquisitive and the child will want to find out details about her mother and her brother and sister. There is not enough evidence for me to gauge the impact of the absence of those siblings in the child’s life.
The child has been through enough. It is time for her to settle into a routine without constant litigation. In my view, the proposal of the family consultant of a quarterly visit over a limited period of time in a very strict supervised environment will not cause significant inconvenience but potentially do an enormous amount of good for the child. That however must be explained to the child in proper language that she understands and I intend that the Independent Children’s Lawyer undertake that task and the father must cooperate.
It is also important that the child’s idealised view of a mother is not lost completely simply by long periods between the visits. I see no reason why cards, presents and letters cannot be sent to the child at an appropriate address provided by the father and not necessarily his personal address and I will give him permission to vet those letters and cards to ensure that they are not inappropriate. If he refuses to be compliant with that order, I will arrange for the process to be undertaken through the contact centre. They can then vet whether the letters are appropriate bearing in mind that I intend that they read these reasons before they commence any supervision. I appreciate that that may well be outside of their charter but it is certainly in my experience, within their ability. This is a most unusual case.
Section 60CC(3) sets out additional considerations to those set out above. They can be dealt with globally in this case.
The father consistently said that the child did not want to see her mother. The child is not old enough to be making those decisions and the evidence of the family consultant indicates that the child is simply mouthing what her father says. She is far too young to have her views considered with any weight.
I accept that the child is very much attached to her father. She relies on him for her security and her routine. To change that would be detrimental to the child’s welfare.
The nature of the relationship with the child and her mother is best observed as seen by the family consultant. The child is curious and apprehensive at the same time but equally concerned not to upset her father whom she seemed to know was unhappy about having contact. The relationship of the child and the father is clearly a strong one. She is dependent on him and comfortably secure in his care. It is therefore something I have considered as to whether the sorts of visit would damage that relationship and I am satisfied that they will not. No concern was expressed by the Department of Human Services about the father’s care.
Section 60CC requires the Court to look at the willingness and ability of the parents to facilitate and encourage a relationship between the child and the other parent. The evidence here clearly shows that the father is reluctant. He made it clear in cross-examination that he would consider the orders when they are made. I make it abundantly clear that he does not have a choice about the matter and any court considering any future breaches of the orders may well read these reasons. I intend that the orders be not negotiable.
In respect of the other issues in s 60CC in relation to the provision of emotional and intellectual needs, the attitude of the parents to the children and the responsibilities of parenthood, I can only repeat what I have earlier said.
Section 60CC also has a very heavy emphasis on the Court considering the protection of the child where family violence is involved. Family violence is destructive. I have little doubt that the mother has a lot to answer for and whilst the Court cannot change history, it must look to the protection of the child as a primary consideration.
Section 60CC encourages courts to consider whether it would be preferable to make an order which would be likely to preclude further proceedings involving the children. A lot of the problems have come from the ongoing litigation. I propose to make it clear that the orders I now make will end the matter. The mother will have to show in the future a change for the better before a court will consider that supervision should be dropped. It was the mother’s submission in final address that the Court should make a supervised period with a sundown clause. I reject that on the basis of the evidence before me. To do otherwise would be crystal ball gazing.
I do not propose to make any further comments in relationship to s 60CC(4) and (4A) as those matters have been adequately covered.
The family consultant in this case recommended that the child have counselling. I detected that the father was unhappy about that but having regard to the nature of the problem for the future if the child does not come to understand the role her mother has played and will play in the future, there are likely to be adverse consequences for her future. The father tried to say that the probability was low but I reject that. In my view counselling should be ordered.
Accordingly, I propose to make orders.

I certify that the preceding One Hundred and Eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 July 2013.

Associate:

Date: 4 July 2013

[2013] FamCA 508

4 July 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness

Standing