Huzar and Cela and Ors

[2015] FamCA 875

FAMILY COURT OF AUSTRALIA

HUZAR & CELA AND ORS [2015] FamCA 875

FAMILY LAW – CHILDREN – Final – Where the parents’ relationship was violent and wrought by drug addiction and serious crime – Where the father has a significant criminal history and was on remand at the time of the trial whilst awaiting trial for 22 criminal charges including torture, deprivation or liberty, extortion, fraud and serious weapons offences – Where the mother has been living interstate trying to get her life back in order – Where the child lives with the maternal grandparents – Where the maternal grandparents intervened in the proceedings – Where the mother and the maternal grandparents consented to parenting orders prior to the commencement of the trial and the mother took no further part in the trial – Whether the maternal grandparents should be denied parental responsibility with respect to the child’s religion and name –Whether the child should spend time with the father when he is released from prison – Whether the father should be permitted to communicate with the child – Whether the maternal grandparents should regularly provide the father with information about the child – Whether the maternal grandparents should be obliged to provide time between the child and the paternal grandparents.

Family Law Act 1975 (Cth)

APPLICANT: Mr Huzar

RESPONDENT: Ms Cela

INTERVENERS: Ms B Cela and Ms C Cela

INDEPENDENT CHILDREN’S LAWYER: Catherine Bint

FILE NUMBER: BRC 7923 of 2011

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 19 and 20 November 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

COUNSEL FOR THE INTERVENERS: Mr Linklater-Steele

SOLICITOR FOR THE INTERVENERS: DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

It is ordered, by consent as between the mother and the maternal grandparents, but not with the consent of the father:

1. That the maternal grandparents, Ms C Cela and Ms B Cela, shall have equal shared parental responsibility, to the exclusion of the mother and the father, for making all decisions about the “major long-term issues” (as defined in s 4 of the Family Law Act 1975 (Cth)) in relation to the child, D born … 2007 (“the child”).

2. That the child shall live with the maternal grandparents.

3. That the child shall spend time with the mother and communicate with her as agreed between the mother and the maternal grandparents.

4. That the child shall spend no time with the father and the father shall not communicate with him.

IT IS FURTHER ORDERED

1. That the maternal grandparents shall provide the father, at their discretion, with such information about the child’s physical, educational, and social development as they consider appropriate.

2. That the Independent Children’s Lawyer is discharged.

3. That Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), 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 to 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 Huzar & Cela and Ors 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 BRISBANE

FILE NUMBER: BRC 7923 of 2011

Mr Huzar

Applicant

And

Ms Cela

Respondent

And

Ms B Cela and Ms C Cela
Interveners

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The child, who is the subject of these contested parenting orders proceedings, is now just eight years old. For most of his relatively short life he has lived with and been raised by his maternal grandparents. His parents separated before he was born. Their relationship and their lives were subject to the complete disruption and devastation wrought by drug addiction, serious crime and family violence.

2. The child is very fortunate that he has loving and capable maternal grandparents who, after having raised four of their own children to adulthood, have stepped up to take over the care of their grandson when their daughter and the child’s father were not able to provide it.

3. The child’s mother is slowly getting her life back in order. She moved from Queensland to Melbourne and now has good, stable employment there. She is satisfying her parents with her commitment to refrain from using drugs and to being involved in the child’s care and upbringing in the future. Indeed, at the time of the trial of this matter in November last year, the maternal grandparents, who lived at that time at Region E in Queensland, were planning on relocating to live in Melbourne early in 2015, specifically so that they and the child could live near the child’s mother and that they could oversee the further development of the relationship between the mother and the child.

4. At the commencement of the trial, the Court was informed that the mother and the maternal grandparents agreed that parenting orders should be made in the form that I have ultimately decided to make and the mother took no further part in the trial. The Court was told that the mother did not wish to be in the same room as the father because of their violent history and she was excused.

5. The dispute to be determined then was between the maternal grandparents and the father.  The father, who came to Court in custody from prison where he is on remand whilst awaiting trial on around 22 serious criminal charges ultimately sought orders from the Court that recognised the reality of the child’s then current life circumstances. However, he still sought to restrict the maternal grandparents’ rights to make decisions about the child’s religion or name without his consent. He also sought orders that mandated the provision of regular communication with him about the child and some communication by him with the child. He also sought orders in respect of the child spending time with his paternal grandparents and the father’s rights to apply to the Court for further parenting orders upon his release from prison, whenever that might be.

6. There was an ICL who also appeared at the trial, represented by counsel. The father gained some limited support from the ICL in respect of the issue of communication with the child, but the ICL conditioned her position around my ultimate findings of fact. As the Orders I have determined to make, leave communication and the provision of information to the father to the discretion of the grandparents, it is clear that I have determined those factual matters in a way that has lead me to conclude that continuing to provide a channel of communication between the father and the maternal grandparents is not in the child’s best interests. That is simply because I am not satisfied that the father would not abuse that privilege of communication and that he would not use it to abuse, threaten and intimidate the maternal grandparents with any chance that he got. The child’s best interests are served, in my judgment, by being free of that prospect.

Some background facts

1. The maternal grandmother is now 51 years of age and her husband is now 48 years of age. They commenced their relationship in or around 1991, when the mother was already 5 years of age, and the maternal grandmother also had another daughter who was about 3 years of age. They then had two more daughters who were born in 1993 and 1996. Although not the biological father of the maternal grandmother’s two eldest daughters, the maternal grandfather has raised them as his own daughters and they regard him as their father. They have lived a long time in Region E of Queensland and, at the time of trial, still had two of their four daughters living at home with them, as well as their grandson. The mother and their other daughter were both living in Melbourne at the time of the trial.

2. The maternal grandmother had worked as a team leader until mid-2012, at which time she then established a business at home. At the time of trial, she continued to care for one child of one of a former client, but otherwise devoted herself to caring for her grandson and other home duties.

3. The maternal grandfather is a tradesman and was working in the mining industry at the time of the trial. As I observed, at the time of the trial they had determined to move to Melbourne in early 2015, after their youngest daughter finished high school, taking her and their grandson with them to live in Melbourne to be closer to both their daughters who lived there, but particularly, for their grandson’s sake, so he could be near his mother.

4. The mother and the father commenced a relationship sometime in or around 2005 – 2006. She was around 20 years of age and he was around 32 years of age at that time. The father already had a significant criminal history and had spent many years in prison in his relatively short adult life to that point in time, including for offences involving violence.

5. The father asserts that the mother introduced him to drugs. The maternal grandparents expressed the belief that the father introduced their daughter to drugs. The mother has asserted that the father was a drug dealer, selling methamphetamines, and that he supplied her throughout their relationship. I do not believe the father’s evidence about this. I have very little doubt that it was through her relationship with the father that the mother descended into serious drug use and addiction. I have no doubt he was dealing in drugs. I do not accept his denials.

6. The father was also violent towards the mother. The maternal grandmother gave evidence of entering a place at which the mother and the father were living and actually seeing the father physically assaulting the mother and seeing guns lying on the table. I accept the truth of that evidence.

7. The father left the mother when she was heavily pregnant with their child. The baby was then born quite prematurely in 2007 and after he was discharged from hospital, the mother took him back to live with the maternal grandparents at Region E. For a period of time in 2010, the mother and the child moved into their own apartment at the Coast for about six months, but the child spent time with the maternal grandparents every day during that time.

8. The mother moved to Melbourne at fairly short notice in or around 2011, taking the child with her. She apparently was not coping with life in Queensland, particularly her interaction with the father. She has been living principally in Melbourne ever since. After the maternal grandparents located her whereabouts there, the maternal grandfather moved to Melbourne and stayed with the mother to help her care for the child. The maternal grandparents considered that was necessary as they considered their daughter was still taking drugs and could not care for the child without their assistance. The maternal grandmother visited them frequently during that time in Melbourne and in mid-2012 she and the maternal grandfather brought the child back to Region E and he has lived with them there until the time of the trial. The mother would visit her parents and son in Queensland from time to time and the family contemplated the grandparents moving down to Melbourne again to live throughout that time.

9. The grandparents enrolled the child in school at Region E School in 2013. All of their daughters had attended that school. The child attended there in 2013 and 2014 with the tuition fees being paid for by the grandparents.

10. In 2013, the mother was still experiencing difficulties in her life, particularly with drug addiction and in May that year she ended up in hospital with a broken arm following an altercation with police in Melbourne. She visited her parents and her son in Queensland in the months following that and after returning to Melbourne has, apparently, been able to get her life back on track, maintaining the support of her parents, who have now determined to move to Melbourne to continue that support. She has secure employment and has given up drugs. The grandparents and the mother will be working together to restore the child to the mother’s care at a point in time when all are comfortable that is in his best interests. I accept that as appropriate.

11. The father is the son of Country F immigrants who do not speak English. They are, he told the Court, about 90 years of age (his father) and 79 years of age (his mother). He has eight brothers and five sisters. There are many grandchildren and great grandchildren. It is a very big extended family.

12. The father said himself that after the child was born he spent three years in prison, being released in 2010.  He said the mother used to take the child to visit him in prison, firstly once every two weeks, but then, after three months, only once every six months. He said that after his release in 2010, the mother took the child to visit him occasionally at the paternal grandparents’ home where he was living at the time. Relations broke down further between the father and the mother and after failed attempts to resolve their dispute about the child out of Court, the father commenced these proceedings. By then the mother had moved to Melbourne.

13. Interim orders were made in 2012 for the child to have supervised time with the father at Region E. Before it commenced at the children’s contact centre, it was supervised by the maternal grandfather. After it commenced at the Centre, it was initially scheduled for a couple of hours on the Saturday and a couple of hours on the Sunday, two weekends per month. At the father’s request, it was reduced. It became one visit per month for three hours.

14. There is no dispute that over the time that the child’s time with his father was to take place at the children’s contact centre, that the father was late, often very late, to many visits and often missed visits completely. At trial, he gave very unconvincing evidence about the reasons for that. I am satisfied that he simply did not prioritise the visits in his life and that when he did attend he was able to keep the young child’s interest and attention only by providing him with gifts.

15. By the time the trial came on, the father was, as I have already observed, back in prison, and although he had only been in prison for three months, the evidence he relied upon was an affidavit he had filed nearly a year before, in December 2013. Of course, much of relevance to the determination of this dispute was left out of that affidavit. It had been prepared by experienced family law solicitors but at the trial the father was unrepresented.

16. After coming out of prison in 2010, the father had formed a marriage-like relationship with another woman. That relationship did not last long at all and soon after it had ended he had formed another relationship with another woman who had two young children of a former relationship and, at the time of the trial, was said to be pregnant to the father. The father had filed an affidavit by her in which she said that he was “a good man” and that they planned to marry. When told that she was required for cross-examination on that evidence, the father said she was not available as she was in New South Wales visiting a sick relative. When told that he could not rely on her affidavit in such circumstances, the father then told the Court that she actually was still in Brisbane and could come in to be cross-examined. Later during the trial, when the father was asked questions by counsel for the grandparents about his relationship with the woman and police records that reported domestic violence and other concerns with respect to his relationship with this woman, the father told the Court that he would not rely on the woman’s affidavit as he no longer wanted her to be cross-examined. I have no doubt her evidence under cross-examination would not have helped the father.

17. The evidence before the Court established without a doubt that the father is a violent, habitual criminal with no respect for the law or the personal rights of other human beings, even those he purports to love and care for. Against that central feature, the Court was being asked by the father to make parenting orders in his favour.

18. The father agreed that in July 2013 the police had been called by neighbours to attend at the home of him and his new partner after property was said to have been heard being smashed and a male was heard to be threatening to shoot a female. He denied that he had threatened to shoot his partner. I did not believe his denial.

19. The father agreed that in August 2013 the police were called by his partner again to the place where he and his partner were together, because of violence. He told the Court that his partner had punched him in the mouth that night in an argument.

20. The father agreed that in late February 2014, police were called again to the home where he and his partner were located after yelling was reported to be heard. He also agreed that a few days later police were called to a Centrelink office by staff after the father and his new partner had got into another argument in the office. The father agreed he was charged with public nuisance as a result but he objected to answering questions about whether he had physically assaulted his partner that day, saying his trial on the charge was still pending. I did not require him to answer the questions.  

21. Using police records produced to the Court pursuant to subpoena, counsel for the maternal grandparents pointed out to the father that police had attended a disturbance at a place where the father’s current partner was in April 2013. She was recorded to have told police of difficulties in her lifestyle at the time – that she was working as a prostitute in a brothel, that she was using the drug ‘ice’, and that she was currently in a relationship with a man named “[Mr Huzar]” (the father’s first name) who is a member of motorcycle club and is supplying ‘ice’ to her.

22. When asked if he had supplied ‘ice’ to his partner, the father denied it. I do not accept his denial. When asked if he knew she worked at a brothel, he initially told the Court that was none of his business. When pressed to provide an answer, he ultimately conceded that he knew she did. The father never denied that he was a member of the motorcycle club. The maternal grandparents also gave evidence that they understood he ‘worked for’ the motorcycle club. I accept that he had connections with the motorcycle club, at least.

23. He agreed that he had pleaded guilty to supplying dangerous drugs some years ago after he had been pulled up driving a luxury car from Adelaide just after crossing into Queensland at H Town and that 10.5 kgs of marijuana, 4 mobile phones and $4,000 in cash had been found in the boot of the car. Despite admitting his pleas of guilty to those charges, he nevertheless denied to this Court that he knew anything about the drugs, phones and cash in the boot of the care. I did not believe his denials.

24. Although the father agreed that he had done four or five anger management courses over the years, I am quite satisfied that they have been ineffective.  The evidence of the father’s propensity for violence just kept coming out the longer he was in the witness box.

25. The father admitted that he had once got into a fight in a nightclub and shoved a glass into another man’s face, narrowly missing that man’s eye and lacerating his face. He sought to excuse his conduct by describing it as “just a drunken fight”. He told this Court that he “served [his] time for it”.

26. Whilst the father denied propositions that he had, in 2002, got into a fight with a neighbour who he thought had stolen his phone, had threatened to stab the man, attempted to run him over with his motor car and then reversed back and tried to run over him again, he did accept that he had been charged and convicted by a Court for offences arising from that incident in July 2004 and that he had pleaded guilty to those charges.

1. The father admitted that he and his nephew were recorded in Corrections Department records as having a fight in prison in October 2014 which the father said was about food and for which he blamed his cousin.  He agreed that they were both handcuffed and taken for medical assessment of their injuries as a result.

2. When the father was asked details about the many charges he was facing at the time of the trial, although he asserted that they were not true, he told the Court that it was alleged that he went to a third person’s house, armed and in company, held that person captive, threatened him with a rifle that he had taken with him, threatened him with a blow torch and threatened him with a knife, and attempted to extort money out of him. He conceded that he was also facing four other charges unrelated to that alleged event that also allege home invasion and stealing.

3. Counsel for the grandparents also asked the father about two other fairly recent incidents of apparent random violence recorded in police documents. The father agreed that he was questioned by police in early 2014 about them when he had been pulled over by police whilst driving a particular motor car that he told the Court is registered to the name of his 90 year old father. The father described the car as a “family car” that he is permitted to drive.

4. Counsel for the grandparents put to the father that the police had received a complaint that the car he was driving had been identified as a car driven into a fast food takeaway drive-through facility in August 2013 and that the male driver had got out of the car, smashed a beer bottle, banged on the car and threatened the family in the car behind, saying that he would find out where they lived, go around there and rape the woman and kill the whole family because of the disrespect they showed to him. The father at first asserted he knew nothing about the allegations and that perhaps the maternal grandparents had made a false complaint. He denied that he was the man complained of. He said it could not have been him as he was in prison from early August 2013 for a few months, until November 2013, for breach of parole. He asserted someone else must have been driving the car. Later in the trial, when pressed, he told the Court he knew the driver was someone named “Mr I” and that was all he knew. 

5. The other incident the father was asked about was an incident of serious road rage that occurred on 9 September 2013. Police had received complaints that a man driving the same car registered to his 90 year old father chased a motorcyclist who had overtaken him, forced him off the road, knocked him off his motorcycle, and then assaulted him whilst trying to rip his helmet off and kicking him in the head. The father again denied that the alleged offender was him, saying that he was in prison at that time and telling the Court, rather incredibly, that despite being questioned by the police about it in early 2014 he had not asked any questions of his family to determine who might have been driving the car and been responsible for such shocking behaviour.

6. Later in the trial, counsel for the grandparents pointed out to the father that on his own sworn evidence he did not go into prison for that breach of parole until 16 September 2013 and that his alibi did not hold good. The father still denied it was him that committed those two outrages. I do not accept his denials.

7. The imprisonment for breach of parole came about after he had been given permission to travel to Melbourne for interviews for a family report in this matter and had breached the conditions of his parole by taking methamphetamines whilst there. He was caught by a drug screen test undertaken on his return. In his oral evidence, he blamed the mother for causing him to succumb to temptation and to take the risk of getting caught. He said it was the lure of sex with the mother that brought him undone. I do not accept his evidence about this. I became satisfied during the trial that the father would say anything without regard for his obligation to tell the truth to the Court if he thought what he said would somehow help him or protect him during the trial.

8. The father’s disregard for the authority of this Court was particularly well demonstrated by his own evidence that he had chosen not to comply with previous Orders that required him to do certain things simply because he decided that he did not need to do them.

9. His disregard for the maternal grandparents was also clearly demonstrated throughout the trial. He demonstrated no gratitude for the good work that they had done in raising and caring for his son in the years since his birth in circumstances where the father himself was clearly not in a position to appropriately parent him. He expressed anger that they had chosen to educate the child at a religious school when the father purports to be an adherent of another faith. He expressed anger at the thought of them possibly changing the child’s family name in the future, leaving the child not bearing his own family name. He did not deny that he had abused the maternal grandmother with the most horrible combination of vulgar and disgraceful profanities on occasions when he had last spoken with her. He tried to justify his use of such language in a tit-for-tat fashion, saying the grandmother had abused him in bigoted fashion. I do not accept his evidence that the maternal grandmother abused him.

10. The father did not know when his trial in the District Court was going to take place, but he thought it would be sometime this year, 2015. I am quite satisfied that if the father is convicted of the offences he was facing at the time of the trial, that he would most probably be sentenced to many years of imprisonment. It is likely that the child would nearly be an adult by the time the father was released from prison. I made that point to the father during the trial. The father took no issue with that.

11. At the end of the trial, I made an Order that should the father be released from custody prior to the delivery of this judgment that he could apply to the Court in respect of the issue of spending time with the child on the giving of 48 hours’ notice to the other parties.

12. Many months have passed since I reserved my judgment. I regret the fact that I have not been able to deliver this judgment before now. I attribute the delay to the responsibility of hearing and deciding so many other cases in the period since the trial in this matter was conducted. I regret any distress the delay may have caused any of the parties. The father has not applied to the Court for any further orders. I consider it safe to assume, therefore, that he is still in prison.

The Issues to be determined

1. As observed by me already, for the father the trial came down to only a few issues. They were:

   (i)Should the maternal grandparents be denied parental responsibility with respect to the child’s religion and name;

   (ii)Should there be orders in place for the child to spend time with the father when he is released from prison, whenever that might be, or to have liberty to apply back to this Court for such orders at that time;

   (iii)Should the father be permitted to communicate with the child through the maternal grandparents;

   (iv)Should the maternal grandparents regularly have to provide the father with information about the child; and

   (v)Should the maternal grandparents be obliged to provide time between the child and the paternal grandparents?

2. The Orders the father seeks are all parenting Orders. Pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”) this Court is to make such parenting Orders as the Court thinks “proper”, and, in so doing, must regard the best interests of the subject child as the paramount consideration. 

3. In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm.

   [1] That list is set out in s 60CC of the Family Law Act

4. The ‘best interests’ inquiry can be a broad one. That is made clear by the inclusion in the list of the consideration of “any other fact or circumstance that the court thinks is relevant”.  Additionally, in determining the proper parenting Orders to make, the Court should also be mindful of the Objects and the Principles underlying those Objects that are expressly set out at the commencement of Part VII. Of course, the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings. 

5. Determining what is a “proper” parenting Order to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, the presumption should not apply.

   [2]          Section 61DA(1) and s 61DA(2) of the Family Law Act

6. “Parental responsibility” is defined in s 61B of the Family Law Act. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It matters most, at least in my judgment, when decisions are to be made about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “issues about the care, welfare and development of the child of a long-term nature” and includes (but is not limited to) issues of that nature about the child’s education (eg what school he goes to), the child’s religious and cultural upbringing (eg should he be brought with adherence to a particular faith), the child’s health (eg should he have elective surgery to have his tonsils removed or not), and the child’s name.

7. If a parenting order is made conferring parental responsibility in respect of a child equally on that child’s parents, there are a number of relevant consequences. Firstly, insofar as the further determination of the proper parenting order is concerned, the Court must consider whether the child spending equal time with each of the parents is reasonably practicable and also whether such an arrangement would be in the best interests of the child. Whether it is “reasonably practicable” is to be determined by reference to matters set out in s 65DAA(5) of the Family Law Act and whether it would be in the best interests of the child is to be determined by reference to the matters already referred to. If, after those considerations, an order for the child to spend equal time with each of the parents is not made, the same two pronged consideration must be given to arrangements that provide for the child to spend substantial and significant time with each of the parents. The term “substantial and significant time” is also explained in s 65DAA(3).

8. Another consequence of a conferral, by order, of equal shared parental responsibility is the mandatory requirement, imposed by s 65DAC of the Family Law Act, when a decision about a major long-term issue in relation to the child is to be made, for each of the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The provision goes further though. The decision is actually required to be made jointly by the persons who share parental responsibility. The statutory provision does not provide an alternative or fall-back position. Accordingly, in my judgment, if the decision is not made jointly it cannot be made at all, thus requiring parties to go back to family dispute resolution processes and, if that fails, to the court for a decision to be made. This is indeed, in my view, relevant to consider when determining whether the conferral of parental responsibility on two persons is in the relevant child’s best interests.

9. The application of these principles in this case is, I respectfully observe, not very difficult. The presumption that conferral of parental responsibility equally on each of the child’s parents is in his best interests in this case is rebutted by my findings that the father has perpetrated violence against the mother. It is also rebutted by the evidence that the mother consents to parental responsibility being given to her parents to her exclusion. Furthermore, I am completely satisfied that it should be held by the grandparents to the exclusion of the father as well.

10. The father has by his own conduct and actions played a very little role in the child’s life. Even when he had the chance to spend time with his child, he prioritised other things ahead of that time. Most particularly though, he completely disrespects the maternal grandparents and cannot communicate with them in any reasonable manner without abuse. It is not in the child’s interests for the maternal grandparents to be required to negotiate with the father, when he is in prison or even when he is out of prison, about major long-term issues (as defined in the Family Law Act) in the child’s life. That would just be a recipe for stalemate, inconvenience and chaos. I am quite satisfied, as is the mother, that the maternal grandparents have the requisite capacity, appropriately child focused, to make the right parenting decisions for the child. The father cannot make the right decisions for himself. He could not be considered as capable of making them for his son, who he barely knows.

11. The father’s determination to have a right of veto or approval in respect of decisions about the child’s religion and the child’s name, is, in my judgment, about a matter of pride rather than being based on genuine past or present commitment to the child and his religious upbringing. The maternal grandparents have raised the child unassisted in any way, practically or financially, by the father since they have been caring for the child after he was born. It has not been demonstrated that they have made bad decisions for this child in any way, including in respect of his religious education and involvement. I am satisfied that the child has little, if any, knowledge of his father, his father’s religion, his father’s family, his father’s family’s other language, and according to the maternal grandparents, no knowledge yet of his father’s imprisonment. The maternal grandparents also gave evidence that they have no current intention of changing the child’s name to leave off the father’s family name. I accepted the honesty of that evidence.

12. When asked, the maternal grandparents said that they did not wish to be locked into a situation where they could not change the child’s name in the future just in case they made an assessment that his safety required a change of name. I accept that position as being a reasonable one in the circumstances.

13. I am not persuaded that the child’s best interests are served by the child’s maternal grandparents not having unfettered equal parental responsibility in respect of all major long-term issues, including the child’s religion or his name.

14. Given that there is absolutely no certainty, having regard to the circumstances that present as to when the father might be released from prison, I do not consider it appropriate to order now that the child spends time of any sort with the father upon his release. I also do not consider that there is a need to make a final order giving the father liberty to apply to the Court upon his release. He retains the right to apply to the Court for parenting orders as he sees fit and as he may be advised. The merits of any such application will be determined then.

15. Orders that the father be permitted to communicate with the child in writing and that require the maternal grandparents to communicate information to the father about the child would require the parties to keep each other informed of their postal addresses. The Orders proposed by the ICL also would require the parties to keep each other informed of their email addresses.

16. The maternal grandparents expressed strong opposition at the thought of this. The maternal grandmother expressed significant fear of the father having regard to his history, his propensity to irrational violence, his associations, his past conduct towards her daughter and his abuse and intimidation of her. I accept the submission of counsel for the maternal grandparents that obliging the grandparents to provide postal and email addresses to the father in the future would simply give the father the opportunity to abuse, harass, intimidate and threaten the grandparents, potentially impacting upon their sense of security and stability in a way that might adversely impact upon their capacity to appropriately care for the child.

17. I will not make any orders that create this possibility. The father has the ability to provide the grandparents, through their solicitors on the record, with his postal address at any time and I would expect the maternal grandparents to be provided with it by those solicitors.  The grandparents may then, at their own discretion, provide any information to the father that they consider appropriate. I am quite satisfied that they will make their own decisions about that based on what they determine is in the child’s best interests. If they feel comfortable and secure enough to do so, I am sure they will act appropriately.  I am satisfied that is the proper approach.

18. Finally, as I informed the father during the trial, his parents have not made an application to the Court for orders that the child spend time with them or communicate with them and, therefore, I am not inclined to give serious consideration to the proposition that the Court should make an order that obliges the maternal grandparents to provide the child to his paternal grandparents to spend time with them.

19. In any event, the evidence satisfies me that the paternal grandparents do not speak English and the child does not speak Country F. It also satisfies me that the child has only ever spent very short periods of time with the paternal grandparents on a very limited number of occasions. He would only ever have been able to communicate with them through his father or another Country F speaking member of the father’s family. Sadly, the reality of the situation is that the child does not currently have a relationship with his paternal grandparents of such a kind that demands that it continue to be supported and facilitated in circumstances where the father is not even having a relationship with the child.

20. The paternal grandparents live in Brisbane and the maternal grandparents had decided to move to Melbourne earlier this year. It just would not be practicable either to make any Orders that oblige them to provide the child for time with the paternal grandparents as requested. I will not make such an Order.

21. The Orders that I make are set out at the commencement of these written reasons. I am satisfied that they are proper and in the best interests of the subject child.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 October 2015.

Associate:

Date:  21 October 2015