Innocente and Innocente

[2007] FamCA 586

FAMILY COURT OF AUSTRALIA

INNOCENTE & INNOCENTE [2007] FamCA 586

FAMILY LAW - CHILDREN - Magellan - Application to spend time and communicate with child - History of violence towards family members - Refusal to accept responsibility - Refusal to accept supervision – Refusal to undertake psychiatric assessment – Unacceptable risk to child if father spends any time with her – Orders for communication by correspondence and phone

Family Law Act 1975 s60B, s60B(1), s60CC, s60CC(1), s60CC(3), s60CC(4), s60CC(4A), s61DA, s65DAA(1), s65DAA(2)

HUSBAND: Mr Innocente

WIFE: Mrs Innocente

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: MLF 3106 of 2005

DATE DELIVERED: 14 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 – 29 March 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: The Husband appeared in person

COUNSEL FOR THE WIFE: Mr Cantwell

SOLICITOR FOR THE WIFE: Gibson & Gibson

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Marchetti

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: McCluskys Lawyers

Orders

1. That the child of the marriage, a daughter, born … August 2002 live with the wife and the wife have sole parental responsibility for the child.

2. That the husband spend no time with the child.

3. That the husband communicate with the child solely as provided in paragraph 4 hereof.

4. That the husband may communicate with the child as follows:

   (a)by telephone once in each week, the telephone call to be facilitated by the wife and made between 6.30 p.m. and 7.15 p.m. on each Wednesday and to give force and effect to this order, the following provisions apply:

   (i)The wife shall be at liberty to terminate a call in the event the husband becomes aggressive, threatening or abusive or denigrates the wife, any male partner of the wife or any of her family members.

   (ii)The husband shall advise the solicitors for the wife in writing of the telephone number to which calls pursuant to this order shall be made, and thereafter keep the wife advised, in writing, of any change to that number;

   (iii)Calls pursuant to this order shall commence on the first Wednesday after receipt by the wife’s solicitor of a telephone number pursuant to the preceding sub-paragraph;

   (iv)In the event the husband does not answer a call made on a Wednesday, the wife shall:

   (x) leave a message that she has rung, in the event voicemail is operating;

   (y)facilitate a second call and, if the husband does not answer that call, a third call (leaving a message on each occasion if voicemail is operating); and

   (z)if the husband does not answer the telephone by the third call, no further calls are to be made that day.

   (v)If the husband does not answer any of the three calls on a Wednesday, for four consecutive weeks, the operation of paragraph (4)(a) shall be suspended until further order.

   (b)by sending a card, gift and recent photograph of himself to the child at Christmas, Easter, and the child’s birthday in each year, PROVIDED THAT such items be sent to her by Australia Post.

5. That upon the child commencing school, the wife send to the husband a copy of each school report for the child PROVIDED THAT she may delete from the copy anything that would identify the school attended by the child, including (but not limited to) the name of the school, principal and teachers, and the wife shall send a recent photograph of the child to the husband together with each copy school report.

6. That the copy school report and photograph referred to in paragraph (5) hereof  shall be sent by Australia Post to the husband’s property at G, or such other address he advises the wife in writing.

7. That to facilitate compliance with paragraph (4)(b) hereof, the wife keep the husband advised in writing of an address to which correspondence and gifts for the child are to be addressed, and such advice by her be addressed to the husband at the G property or such other address as he advises in writing pursuant to paragraph (6) hereof.

8. That the husband be and is hereby restrained from attending at any school attended by the child and from:

   (a)       contacting or attempting to contact the child at school;

   (b)contacting or attempting to contact any principal, teacher, staff member or other student at the child’s school; and

   (c)attending any school related activity or function which is held outside the school premises.

9. That a copy of the reasons for judgment herein may be provided to:

   (a)       Ms T;

   (b)the Department of Human Services, Victoria Police or any other agency investigating any allegation relating to the child, the wife or the husband;

   (c)the principal of a school attended by the child and, at his or her absolute discretion, any teacher or other person working with the child at or through the school; and

   (d)      any psychiatrist or like professional consulted by the husband.

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

11. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, 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.

12. That all extant applications be otherwise dismissed

IT IS DIRECTED

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

IT IS CERTIFIED

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3106  of 2005

Mr Innocente

Husband

And

Mrs Innocente

Wife

REASONS FOR JUDGMENT

PARTIES

1. The parties have a daughter, who is 4.  The court is asked to determine what time (and/or communication) the father should have with the child.

SHORT HISTORY

1. After living together for about 4 years, the parties married on 15 November 1997.  The child was born on … August 2002.  When she was 5 months old, the parties separated on 18 January 2003.

1. The family were then living in a property at G.  On 16 March 2006 the mother filed an application seeking final property orders.  In a response filed on 24 April 2006, the father sought contact with the child, initially on alternate weekends and moving to include half school holidays and special days.  In a reply filed 4 December 2006 the mother sought an order that the father not be permitted to spend any time with the child until he had completed anger management and parenting courses; that he be restrained from drinking alcohol when with the child; that he take supervised drug and alcohol tests; and that, until further order, his time with the child be supervised.

1. On 11 September 2006 final property orders were made, by consent.  Earlier orders, made in the Federal Magistrates’ Court on 3 August 2006, had restrained the father from dealing with the G property until payment of a declared child support debt or further order.  The declared debt was $52,656.38, of which $23,060.21 was arrears and the balance penalties.  The orders of 11 September 2006 provide for the payment by the husband of the arrears, and the sum of $5,000.00 towards the mother’s costs, by fortnightly instalments of $100.00; in default, the property at G is to be sold and the proceeds applied to the sum then due to the mother.

PROPOSALS

1. When the trial commenced before me, the mother’s position had firmed.  It was her submission that, in the absence of any evidence that the husband had addressed his violent and aggressive behaviour, any contact whatsoever between the father and the child posed an unacceptable risk of physical and psychological harm to the child.  He should neither spend time with her nor communicate with her.

1. In the course of the trial the father sought to consult a duty solicitor from Victoria Legal Aid.  Later that day, the duty solicitor put a new set of proposals to the court, using (he said) the father’s terminology.  The father proposed an immediate resumption of his time with the child, commencing with two visits at the B Contact Centre, a fortnight apart.  Following that, he proposed four fortnightly visits, unsupervised, from 9.00 a.m. until 7.00 p.m.  He would undertake an alcohol test at a police station prior to each visit and would give the child dinner. 

1. Following that, there should be “an assessment”.  Asked to elaborate, the duty solicitor could only say that the father proposed the assessment “include ascertaining [the child’s] opinion”, and would be “a discussion about moving to overnight visits”.  If it were determined that the child needed or wanted more time before overnight visits commenced, there should be four more fortnightly visits, unsupervised, but on both Saturday and Sunday of a weekend, from 9.00 a.m. until 7.00 p.m. on each day.  There should then be a repeated “assessment”, with a view to “determining the question”.

1. The father’s conduct after this proposal was put to the court, his interjections during the trial, and his final submission left me unable to be confident whether he maintained the proposals put forward by the duty lawyer or had reverted to his earlier proposals.  The latter is more likely.  What the court can say with certainty is that the father proposed the immediate resumption of time with the child (if supervised, to be supervised only very briefly), moving to significant time with her, and orders which allowed him to ring her twice every day.

1. The independent children’s lawyer’s submission was that the benefit of any ongoing relationship between the child and her father needed to be balanced against the significant risk of exposing her to his inappropriate behaviour.  Counsel for the ICL submitted that the father should undergo a psychiatric assessment in relation to the risk he posed to himself and others, and act on all recommendations (whether for treatment, therapy or other interventions) made in that psychiatric assessment.  Only once that was done should consideration be given to moving towards any form of supervised contact.  It was the submission of the ICL that the child’s best interests were not consistent with any form of unsupervised contact in the foreseeable future.  Orders could provide for the father to communicate with the child by correspondence and gifts at Easter, Christmas and on her birthday, and by telephone no more than once per week, with the mother facilitating the phone call and being at liberty to terminate the conversation, if it were inappropriate.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

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

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

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

EVIDENCE

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

1. When the case was called over on 25 January 2007 to assess its readiness for trial, the father had not filed any affidavits of evidence in chief.  On that day I ordered both parties to comply with trial directions made on 19 December 2006.  As I could not be confident that the father intended to file an affidavit of his own evidence in chief, I gave him leave to rely on affidavits previously sworn by him and filed in the proceedings, if he did not file a trial affidavit.  He did swear and file such an affidavit on 24 April 2006, and relied on it.

1. There were times during the trial when the father behaved reasonably, and accepted direction.  However, for most of the time, whether in or out of the witness box, his behaviour was intemperate, abusive and intimidatory.  He swore at counsel for the mother, in and outside the court room.  He interrupted and argued and threatened to walk out on a number of occasions, backing down just before it would have been a fait accompli.  He yelled at witnesses, made express and implied threats against them and other people, and his body language was aggressive and disturbing.

1. Late on the second day of the trial, the father rushed towards the mother’s sister, Ms D who was in the witness box, from his position at the bar table on the other side of the room.  His arm was outstretched and raised, and he was yelling at Ms D.  He stopped just short of the witness box.  When I ruled that he would not be given an opportunity to cross-examine the witness further, he stormed towards the door of the court room.  At the point he appeared to be about to return and rush towards the witness box again, I directed his removal.  He left with security officers, to whom he offered no resistance.

2. Numerous aspects of the father’s conduct to that point in the trial would have been sufficient, in my judgment, to ground a charge of contempt in the face of the court.  I did not take that course, taking the view that the child’s best interests would be better served by determining the case and avoiding the potential for the proceedings to be dislocated.  However, the father’s behaviour towards witnesses could not be condoned.  After the assault on Ms D (whilst not physically touching her, there was no doubt that she was put in fear and that the father intended to intimidate her) I ruled that he not cross-examine any remaining witness.  This meant he was not given an opportunity to cross-examine Ms T, the family reporter.

1. The court was fortunate that counsel for the ICL had the capacity to focus on the child’s interests, cross-examine all witnesses robustly (not just the father) and not be distracted by the father’s behaviour.  Although the father may not recognise this, counsel for the ICL cross-examined witnesses, including Ms T, in an even handed and objective way and the court can be comfortable that appropriate questions were asked of witnesses, including questions likely to advance the father’s case. 

1. Throughout his evidence the father blamed other people for his actions and the consequences of his actions. Blame was attributed to the mother, her family members, her boyfriend, his own mother, Ms T and child care workers.  At times he conceded that he did “fly off the handle”; in final submissions he said that he would not be as aggressive, or have “these outbursts”, if he were able to see his daughter.

1. When the trial commenced the father sought to rely on a letter from a friend, Ms S.  While not admitting that letter into evidence, I gave him leave to call Ms S, which he did.  Ms S had never met or spoken with either the mother or the child; all of her knowledge of them, and of events relating to them, came from the father and from listening to him speaking on the phone to the child.

1. It became clear that Ms S saw her role as redressing what she perceived to be an imbalance between the parties.  She believed that the mother was calling numerous witnesses to blacken the father’s name, and wanted to “speak up for him”.  That is, no doubt, a commendable thing for a friend to do but her evidence was of limited use in determining any of the facts in issue and served to reinforce other evidence of the father’s abusive and violent behaviour.

1. The father spends a lot of time at Ms S’s home.  For example, when questioned about a burglary which he said had occurred at his G property, he spoke of only returning to that property every two or three weeks, staying at Ms S’s home for the balance of the time.  On their evidence, the court could assume that the child would spend time with Ms S, and at
   Ms S’s home, were she to spend time with her father.

1. Ms S conceded that on 2 September 2006, only 6 months prior to the trial, she called police after what she called “an unfortunate incident”, and made a statement to police alleging significant violence by the father.  She confirmed the accuracy of the statement in terms of the events described but attempted to minimise the seriousness of those events, saying that there was “an enormous amount of pressure” on the father at the time and that, while he can become angry and use foul language, there are “a lot of reasons why he has become angry”.  These reasons (in her view) apparently relate to him not seeing the child and not being able to speak with her on the phone when he wants to do so.

1. Ms S agreed that on 2 September 2006 the husband grabbed her by the back of the pyjamas in the bathroom, dragged her along the floor to the front room of her home, threatened her, said he felt like strangling her and smashed a hole in the hallway door with his fist.

1. Ms S’s evidence of hearing the father speaking with the child on the phone on the morning of Monday (the day before she gave evidence) cannot have been correct.  When the father, from the bar table, interrupted her evidence to tell her she must be confused about that time, she swiftly modified the evidence, saying that the phone call might have been in the afternoon or evening.  However, it was the evidence of both the mother and father that the father had not spoken with the child since the previous weekend; there was no conversation on the Monday, whether in the morning, afternoon or evening.

1. I can have little confidence in Ms S’s capacity for objective recollection.  She was keen to justify the father’s violent and aggressive outbursts, asserting he was provoked; one apparent provocation was what she referred to as the “negative attitude” of counsel for the mother, apparently expressed (in her view) by his folded arms. 

1. I could not be satisfied Ms S would be a modifying force on the father’s intemperate behaviour and her justification of his assault on her was of significant concern.

1. The mother relied on an affidavit sworn by her on 1 December 2006 and an affidavit of her sister, Ms D, sworn 21 March 2007.  With leave she also called Ms R, who was the director of the Child Care Centre (at which the mother worked, and which the child attended) between March 2004 and April 2006.

1. The mother remained composed in the witness box and did her best to answer questions directly and responsively.  I have far more confidence in the accuracy of her recollection of past events and prefer that account to that of the father.

1. The evidence of Ms R was that the father rang the Centre frequently, seeking to speak with the child; the calls could be once a week or, sometimes, five to nine times per day.  When he was able to speak with the child he was pleasant but when told that the child was not there, or was not available, he became threatening and abusive.  Cross-examining Ms R, the father enacted the very tone which she had described.  It was intimidatory and threatening, as were his gestures towards her.  He accused Ms R of conspiring with the mother against him, an allegation I find to be without substance.  Ms R was a responsive and honest witness and I place weight on her evidence.

1. Ms D deposed in her affidavit to the father’s aggressive and verbally abusive outbursts, his threatening telephone calls and her fear of him.  Her evidence was that she now refuses to answer the phone at the family home, where she lives with the mother, their mother and the child.  On one occasion she was present when the father spent time with the child at a play centre in S; her evidence was that, on that occasion, the father got on well with the child.  Ms D said that the child can be happy to speak with her father on the telephone, and was encouraged to do so, but there are occasions, when she is playing or eating her dinner, or distracted for some other reason, and does not want to speak with him.  I place weight on her evidence. 

1. In evidence was a family report prepared by Ms T, dated 14 December 2006.  Ms T typed a postscript on 18 December 2006, which was tendered, together with a copy of a security incident report prepared by her that day.

1. Ms T’s curriculum vitae is annexed to the family report.  She holds a master’s degree in family therapy, in addition to social studies qualifications.  She has been interviewing family members and preparing family reports in this court for 23 years.  Ms T made it clear that she is well aware that some people need time and room to vent feelings of frustration, fear and anger, and that she gives them that room and time, in the hope that they may then be amenable to some rational discussion.  Despite her very considerable experience, Ms T was clearly frightened by the father’s behaviour on 18 December 2006, and felt attacked, as well as threatened.

1. Her evidence was that on 18 December 2006 the father telephoned to discuss the contents of the report, which he had not yet seen, as it was to be released the following day.  He was advised that he needed to read the report once released and that she could not discuss it, as it had not then been released.  He was rude, loud and demanding, and insisted that he be told of the recommendations in the report.  At that point his phone cut out.  Ms T tried to call back, in vain. 

1. The father then left six consecutive abusive messages on her phone, in the space of an hour.  These were followed by three more calls, and messages.  Ms T put her phone on speaker to listen to the messages. In them, the father was screaming and apparently out of control.  He was intimidatory, threatening and abusive; on one message, he said that people were staring at him, as if he were a madman.  As the messages began to be played on the speaker phone, two other family consultants ran into Ms T’s room (possibly believing the abuse was occurring in person, rather than over the phone) and stayed with her while the balance of the messages were played.

2. In the last call the father threatened that someone (with a heavy emphasis that it would be Ms T) would pay if he did not get unsupervised time with his child.  He accused Ms T of bias and siding with the mother.  To the contrary, I am satisfied Ms T was an objective expert and I place weight on her cogent and insightful evidence.

CHRONOLOGY

1. When the parties met in 1991 the father was about 31 and the mother about 18.  They commenced living together in 1993, in a Melbourne suburb.  The mother’s evidence, which I accept, was that the father became very aggressive and agitated after drinking and told her he was using marijuana frequently.  His relationship with his parents was never good; he was bitter towards them, and aggressive, breaking furniture at their home.  She said at that point in their relationship he “pushed” her; asked why she married him, she said that he always promised to change.

1. A few months after their marriage, the parties moved to the property at G.  The mother’s evidence was that the father drank more after that, regularly coming home drunk, and used marijuana daily, until he went to sleep.  There were more violent outbursts at his parents’ home and he became more aggressive when with her.  He damaged furniture in their home.  On one occasion he set the table alight and when she tried to get out of the house, told her she had to sit there, and not move.  She panicked and ran from the home, staying away for two weeks.  At that point his mother rang and told her that she must go back to live with him or he (the father) would kill her (the father’s mother).  The mother then heard what sounded like a shot; her mother-in-law screamed into the phone, and then said that the father had shot the screen. 

1. The mother did return to live with the father.  In February 2002, while arguing with a third party on a phone, he picked up an ashtray and threw it forcefully at the floor, from where it bounced and cut the mother.  She was then pregnant with the child.

1. The child was born in August 2002.  The mother worked until the week prior to her birth and was back at work, as a childcare assistant director, in January 2003.  The nature of her work meant that the child could come with her, as she was working in the babies’ room.  It was in January 2003 that the mother finally left the father and went to her mother’s home; her evidence was that once her daughter was born, she realised she had to do something to escape the violence. 

1. While the mother and the child lived with maternal grandmother, the father would drop in from time to time, staying for up to an hour, unannounced.  He probably visited some two to three times per week.

1. On 14 May 2004 the mother moved (with her mother, sister and the child) to S.  Until July 2004 the father visited three or four times per week.  Again, he came unannounced, often in the evening.  He would play with other children who lived in the street and, on occasions, would fall asleep in the lounge room and stay the night.  I do not accept his evidence that he lived there on a fulltime basis. 

1. In July 2004 there was an incident in the course of which the father became very aggressive and abrupt to the mother’s sister and her mother.  Her mother asked him to leave.  When he refused, police were called, who escorted him from the home.  On 1 August 2004, the father came to the front door and said he had to say something to the mother’s sister and mother.  He said the only way they would get him to leave was by calling the police, which they did; again, he was removed by police.

1. From this time, the mother took the child each weekend to the father’s mother’s home, where he spent time with her.  Initially she visited on both Saturday and Sunday but that became too much, and the visits occurred each Sunday.

1. On 22 September 2004 an intervention order was made to protect the mother, on application by police.  It was to last until 22 September 2005.  From then she took the child to a public place about every second Sunday so she could spend time with her father.  Sometimes they spent much of the day together, sometimes it was a shorter period of about four hours.  The meetings took place in parks or indoor play centres.

1. In February 2005, the father began to make phone calls to the mother’s work place, many of which were abusive.  She reported that to police and stopped the weekend visits.  She did arrange for the father to see the child on her birthday in 2005 (at a shopping centre) and 2006 (at a Play Centre).  She also arranged for him to see her on Fathers’ Day in 2006, in a park in S.  On each occasion she ensured another adult was present.

1. Although the mother stopped the weekend visits, she did not stop phone communication between the father and the child.  Despite consistently harassing and abusive phone calls, she took the decision not to change her mobile phone number or request an unlisted home number, as she wanted to ensure the child could speak with him.  It was clear that the father took the view he was entitled to speak with the child twice each day and he was entitled to keep ringing until he did so.  He rang on the landline at any time of the day and on weekends and, if the phone was not answered at home, he rang the mother’s mobile number.  He also rang the childcare centre.

1. When the abusive and threatening calls persisted, the police sought another intervention order which was made on 14 September 2005 and expressed to last until further order.  It remains on foot.

1. The terms of both intervention orders restrained the father from telephoning or contacting the mother but provided a number of exceptions, one being “to exercise child contact by agreement with the aggrieved family member or pursuant to a court order.”  No doubt taking the view that “contact” included communication by telephone, the mother did not object to the father ringing her to speak with the child.  Regrettably, he took that as a licence to make many, many telephone calls and to leave abusive messages.

1. Towards the end of December 2006 the mother commenced a relationship with a man, which continues.  He lives with his parents and does not stay overnight at her home.  She has stayed at his parents’ home on occasions and spent time away with him.  Once the father learnt of this relationship, his phone calls became more vitriolic.  Their flavour can be gauged be a number of calls taped by the mother in March 2007.

1. On 14 March the mother taped five calls between 8.06 p.m. and 9.00 p.m.  The father’s tone and volume escalated over their course, as he became more abusive and threatening.  On 17 March she recorded four calls between 3.09 p.m. and 8.40 p.m.  Again, the tone and volume escalated until he was yelling and threatening to ring every five minutes.  In the course of the calls he was insulting and abusive about the mother’s parents, sister and boyfriend.  After the tape was played in the court room, the mother said that she did now propose to change her telephone numbers, at which the father started clapping.

1. The mother’s evidence was of proposing to the father that his calls be made before 8.30 a.m. (when she needed to leave for work) and, in the evening, before 7.30 p.m. (as the child went to bed then).  It was clear, and consistent with the evidence of Ms R, that if the child were available when the father rang the mother’s home, and was happy to speak with him, he behaved reasonably well.  However, if a call was not answered or the child was not available or happy to talk to him, his response was often invective and harassment.

1. The difficulty of expecting a child of the age of 4 to have a coherent  and sustained conversation was illustrated by the mother’s evidence of the phone calls in the week prior to trial.  Sometimes the child was in the bath and, on one occasion asleep.  The mother described how the child would often say, “hello, hi daddy”, and then put the phone down and run off to play.  When told that her father was on the phone and she should go and talk to him, sometimes she would, sometimes she would not.  The mother said that the child enjoys talking to her father on the phone but the conversation rarely goes beyond the “hi daddy” stage.  She is an active, friendly little girl and it is probable that, like many children of her age, she is focused on what she is doing and more interested in that than talking at length on the phone, to anyone.

1. Until 14 March 2007 the father had never given the mother his phone number.  He included it in the course of a tirade in one of the taped messages.  The mother had not used the number to have the child ring her father after that but agreed in the witness box that if there were to be continuing phone communication, the child could ring her father in the evening, at around 6.30 p.m.

1. When the mother saw Ms T, she said that police were preparing a brief in anticipation of charging the father with breaches of the intervention order, arising out of harassing telephone calls in November 2006, it being alleged that in the course of one day the father rang her home 22 times and her mobile phone 28 times.  He was subsequently charged with those breaches, and was to attend a Magistrates’ Court in May 2007.

1. The father tendered a page of his telephone account for “local calls” between 31 October and 6 November 2006.  Calls to mobile numbers are not recorded in this part of his account.  No calls to the mother’s landline are recorded on 6 November and only one on 5 November.  On 4 November he made forty-five calls.  Calls were often made minutes, or even seconds apart.  For example, calls are recorded on the morning of 4 November 2006 at 8.00, 8.03, 8.04, 8.04, 8.06, 8.06, 8.07, 8.12, 8.17 and 8.23.  In the afternoon he rang at 3.16, 3.17, 3.21, 3.26, 3.27, 3.29, 3.38, 3.40, 4.08, 4.41, 4.26, 4.31, 4.36, 4.45, 4.46, 4.48, 5.04, 5.06, 5.10, 5.11, 5.13, 5.13, 5.17, 5.17, 5.25, 5.30, 5.32, 5.32, 5.40, 5.52, 5.52, 5.56, 5.57, 6.29 and 6.35.

2. The father spoke at length about the difficulty of getting through on the phone when he wanted to speak with the child, and of having to ring ten times per day.  In his view the mother and her family implemented a deliberate strategy designed to make him lose his temper, and enable them to call the police, the strategy apparently being a refusal to answer his phone calls and, possibly, a refusal to ensure the child spoke to him at length on each occasion he called.  By this means the father transferred responsibility for his abusive conduct to others, as he did on numerous occasions.

PRIMARY CONSIDERATIONS

1. When determining what is in a child’s best interests the primary considerations are :

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

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

   These are consistent with the objects set out in s.60B(1).

1. I have no hesitation in finding that, in this case, priority must be given to the need to protect the child from physical or psychological harm.

2. The evidence supports a finding that the father is an aggressive, intimidatory and abusive man who is unable to deal with disagreement or conflict without abuse and who has failed to accept responsibility for his actions.

1. A person’s criminal history may be indicative of a pattern of behaviour but is not itself determinative of the question of potential risk.  The father’s criminal record was in evidence.  He was cross-examined about a number of convictions.  Some he conceded.  When some were put to him, he answered with a rhetorical question, such as “did I?”  Some he denied.  Ms T referred to the disparity between the police record and the father’s assertions, and the relevance of this to his capacity to accept responsibility for his actions. 

1. The father’s history in adult criminal courts commenced with a conviction for possessing a restricted substance on 25 June 1980 and continued with convictions in 1981, 1984, 1986, 1988, 1989, 1992, 1996, 1997, 1998, 2001, 2005 and 2006.  He has two convictions for exceeding .05 and one for refusing to take a breath test.  In 2001 he was convicted of a raft of charges relating to cannabis, including cultivate a narcotic plant and carrying out unlicensed electrical work.  On 15 April 2005 he was convicted of breach of an intervention order which protected his mother and recklessly causing injury to her. 

1. On 2 November 2005 he was again convicted of breach of an intervention order and recklessly causing injury; these charges also related to his mother and by the time they were heard, he had been in custody for eight days, as bail was refused.  The father was most recently convicted of assaulting police and making a threat to kill on 30 June 2006.  Most of the other convictions are for assault, criminal damage, indecent language and resist arrest.

1. The convictions provide some corroboration of the mother’s evidence of the father’s drug use and drinking.  They also demonstrate that his behaviour has not been modified by a suspended sentence or time in custody, or by intervention orders.  The court could have little confidence that the future will hold fewer convictions than the past.

1. In the family report Ms T noted that while the father acknowledged most of the mother’s accounts of concerning incidents, he heavily minimised them and did not demonstrate any capacity or willingness to accept that he may bear some responsibility for them.  For example, he admitted having “lost it” with some of the mother’s family members in November 2006 but did not seem to consider it to be a serious breach of appropriate behaviour and alleged that the mother exaggerated her fear of him.  He minimised his criminal history, failing to mention the more serious convictions, such as repeated assaults on his aged parents and grandmother.  He denied having any problems in relation to alcohol or drugs, despite convictions indicative of the contrary.  He told Ms T he would not be prepared to accept any form of supervision or education related to his anger or his parenting.

1. When Ms T saw the parties together, the mother remained calm and was able to voice her concerns in a quiet and non-attacking manner.  The father continually interrupted her, accused her of lying and forcefully pointed fingers at her.  Her generally behaved in an intimidating and bullying manner towards her and was, at times, difficult to contain.  Towards the end of the interview, the father threatened to report the mother about an insurance claim which he said would result in her being charged with fraud.  For the most part he had difficulty understanding or accepting anything other than his own point of view.

1. I have detailed some aspects of the father’s behaviour in the court room. In over 21 years on the bench I have never seen a party to litigation, criminal or civil, behave in as menacing and intimidating a way.  As Ms T noted, a court room is a reasonably controlled environment.  In her opinion, it is unlikely the father would be more constrained in the environment of a supervised contact centre.  If he behaved there as he did when asked to moderate his conduct in court, that would be detrimental to the child and place her at risk.  In Ms T’s opinion, an anger management course would have no effect whatsoever in modifying the father’s behaviour; a psychiatric assessment was essential to explore his anger and his emotional stability.  In her opinion, there were serious concerns about his stability, as evidenced by his apparently uncontrollable anger and temper.  In summary, Ms T had grave concerns about the father’s capacity to behave in a contained way in or out of a supervised contact centre.  She would be concerned about recommending any contact at all prior to a complete psychiatric assessment. 

1. Ms T was prepared to contemplate some phone communication, initiated by the child.  She saw that as one way for them to have some meaningful contact but stressed that the child needed to be protected from the consequences of the father directing extremely aggressive and angry behaviour at her mother, in the event the child did not want to talk with him.  She saw it as vital that the mother be able to terminate a call, if the father became angry.

1. When Ms T gave that evidence the father expressed his contempt, forcibly.  He made it clear that if he were not able to speak to the child on the phone twice a day, or if he were restricted in any way from making phone calls to her, he would not make any calls at all.  In similar vein, he made it clear that he would not accept any constraints on the time he spent with his daughter, nor any requirement to undergo psychiatric assessment or continuing supervision.

1. In the course of the trial the father threatened the mother with proceedings for insurance and taxation fraud, and that she would never be a director of a child care centre again.  He threatened the mother’s boyfriend, interjecting in a chilling tone “not for much longer” on hearing evidence that he has a good relationship with the child.  In his final submission he said of the mother’s boyfriend “I want to know who he is and where he comes from, because he won’t threaten me again.”  He threatened Ms R and Ms D.  And in a threat directed either at the court or other people he said: “It will not finish your Honour.  You take away my child, it will not finish”.

1. The last was one of a number of ultimatums.  The father told Ms T that any type of unsupervised contact was “totally unacceptable”; if the court ordered supervised contact, he would go to Perth.  Despite the proposal put through the duty lawyer (which allowed for two periods of supervised contact) the father’s position was, essentially, that he would see the child on his terms, or not at all.  He would not abide by any order that he undertake an anger management course or a parenting course.  He would not undertake a psychiatric assessment.  He would not accept any form of supervision (save, possibly, two visits at a contact centre).  His position in relation to telephone communication was as intransigent.  If he were not able to speak with the child twice each day, he would not be making any calls to her.

1. If the father could accept responsibility for his behaviour and undertake courses or treatment to develop his insight and understanding, he might be able to develop his relationship with child in a protective setting.  In turn, that could enable the mother and the court to have trust in his parenting capacity and emotional stability, and be a stepping stone from which to progress.  The orders proposed by the ICL mapped out such a path to a progression to a meaningful relationship between the father and the child.  Sadly, it is a path upon which the father refuses to embark. 

1. The evidence supports a finding that were the court to order unsupervised visits, the child would be placed in a position of potential risk.  As a very young child she could be subjected to the father’s volatile and unpredictable outbursts, which would be very frightening.  At her age she does not have the capacity to protect herself psychologically and would be torn between her love for her father and her fear of what might happen when she is with him.  She is at a vulnerable age and would be exposed to an unacceptable risk.

1. The father’s tirades and abusive behaviour have been directed at numerous family members, including the mother, her sister and mother, and his own mother and grandmother.  He acknowledged a tendency to “fly off the handle”, a tendency that manifests on slight provocation.  Were the child not to be compliant with his requests and expectations, or to challenge him, there is a high probability he would act towards her the way he has acted towards other family members.

ADDITIONAL CONSIDERATIONS

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The child is not yet five and is too young for her views to be determinative.  I do place weight on the reports of her interaction with her father, which are indicative of her happiness at seeing him.

(b)     The nature of the relationship of the child with:

(i)      each of the child’s parents;  and

(ii)other persons (including any grandparent or other relative of the child);

1. I place weight on Ms T’s observation of the parties’ interactions with the child.

1. Ms T observed the mother to have a warm, affectionate and communicative relationship with the child, demonstrating excellent parenting skills, appropriate guidance strategies and being responsive to and encouraging of her daughter’s activities.  She was able to acknowledge that the child loved her father and enjoyed her time with him.

1. Ms T observed that the father was affectionate, warm and encouraging with the child.  Their verbal communication was nicely positive and centred around their past experiences together.  He participated in her activities, they engaged in friendly play and he demonstrated a loving bond with her.

1. I am satisfied the child has very good relationships with her maternal grandparents and with her aunt, Ms D.  The father’s aggression has impacted on the child’s maternal grandmother and aunt; the maternal grandmother did not give evidence but I can find that Ms D, like the mother, is very frightened of the father.  It is important that the child can feel secure in the household in which she lives.

1. I can say little of the child’s relationships with her extended paternal family.  To Ms T, the father said he was not close with his extended family and expressed unhappiness that they had not had the opportunity to develop a close relationship with the child.  Responsibility for that lost opportunity cannot be attributed to the mother.

1. The father has another daughter, A, who is nineteen.  A has lived with her mother since she was eight, in Perth.  To Ms T the father spoke of “seriously considering” relocating to Perth in the near future, “perhaps next month”.  He said then that if he went to Perth he would want to spend time with the child during the day only, about once per month, and that he would certainly go to Perth if the court ordered any form of supervised contact.  The Perth proposal was not said by him to relate in some way to A; he told Ms T that he had a friend there with 80 acres, and of the possibility of starting a tiling business.  Before me, his evidence was that he does not intend to move to Perth.

1. The mother has a warm relationship with A and keeps in touch with her, by phone.  The child speaks with her, too.  A came to Victoria to visit when the child was about fifteen months old and spent time with her; the mother’s evidence was that the child will see her sister whenever A comes to Melbourne.  I accept that evidence.  It is likely that any interaction A has with members of the father’s extended family is more likely to be initiated by her mother than by her father.

1. After separation, the mother took the child to the father’s mother’s home, on occasions, and she maintains the connection with A.  The father told Ms T that both his parents were dead, his mother having committed suicide in January 2006.  When he saw Ms T his maternal grandmother was in a nursing home.  He had a brother aged 43 and a sister aged 38 but indicated he had “fallen out” with them many years ago.  He did not appear to enjoy a good relationship with his daughter A and conceded that A is still on good terms with the mother. 

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

(f)the capacity of :

(i)each of the child’s parents;  and

(ii)     any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude.  I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :

   (4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)       has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)       to communicate with the child; and

   (b)      has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)       spending time with the child; and

   (iii)      communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. Although the father alleged that the mother had deliberately excluded him from the child’s life, I do not find that to be the case.  After separation the father was able to visit the child regularly at the mother’s home, visits accepted by her and by her family.  On occasions he slept at that home and he was able to drop in whenever he wished.  Only when his abusive behaviour escalated to the point that police were required to remove him did the mother and her family cease that arrangement.

1. The mother then took the child to the father’s mother’s home for visits over two or three months.  Again, that routine was broken as a result of the father’s apparent incapacity to cease his telephone harassment of her.

1. Despite her fear of the father, and the impact of his aggression on her and her family since separation, the mother was able to acknowledge the strength of his relationship with the child and anticipated that their interaction (to be observed by Ms T for the family report) would proceed well.  At that time she felt that the child would be fine with the father in a supervised contact centre, for a short time.

1. The mother has assumed responsibly for making decisions about the child’s care but I am satisfied she has had no other option.  Ms T observed the father’s refusal to genuinely discuss matters with the mother, responding to the mother’s calm, quiet and non-attacking manner with intimidation, bullying and threats.

1. While the father loves the child, and has a warm relationship with her, he has not spent significant periods of time with her.  The evidence of the mother and of Ms D was of the father being happy for others to take responsibility for playing with the child during the relatively short periods he was with her.  There was no evidence that he would be supported in her care by any family members.  If he were to spend time with the child at home it is probable Ms S would sometimes be present and I do not doubt that she would do her best to get on well with the child and look after her.  However, she has been unable to protect herself from the father’s violence and I could have no confidence in her capacity to protect the child from it.  Ms T spoke of the negative impact on the child’s future development were she to witness abuse or violent behaviour directed at Ms S, evidence on which I place weight.

1. Whilst asserting his devotion to his daughter, the father has failed to fulfil his responsibility to assist with her financial support.  He was in paid fulltime work between 5 July 2004 and 28 January 2006 and in that period paid a total sum of $7.00 to the Child Support Agency.  He was then unemployed for some time.  At the time of the trial he had been working as a driver for several weeks. 

1. As at 3 August 2006 he was found to have child support arrears of $23,060.00.  Cross-examined about his refusal to pay child support, he said “You want it straight? If I can’t see my daughter, I’m not paying her”.  As with much of his evidence, this demonstrates not only his continuing hostility towards the mother but the hollowness of his assertions of concern about his daughter’s welfare.

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

1. Ms T felt compelled to reconsider her initial opinion about supervised contact.  Having reflected on the father’s behaviour on 18 December 2006 and what she was told of his conduct in the courtroom, she expressed grave concerns about his capacity to behave in a contact centre.  I find those concerns to be well founded.

1. Ms T made it very clear that the two supervised sessions proposed through the duty lawyer “would not work”.  She said many months of supervised contact would be essential before exposing the child to unsupervised time with her father, and that there should be a psychiatric assessment prior to any supervised contact commencing.

1. Were the court to make an order for the child’s time with her father to be supervised at a contact centre, the family would need to be assessed to use that centre and abide by the its procedures and rules.  I must find it improbable that any order for the father to spend supervised time with the child would bear fruit.  First, it is improbable the father would attend for any assessment or intake interview, given his adamant refusal to accept any form of supervision save on his terms.  Second, if he did attend, there is every possibility he would present to the workers as he did to Ms T.  Were that to occur, it is unlikely the centre would accept the family.  Third, were he (contrary to his evidence) to accept an order for supervision and facilitate the intake process, it is likely he would “fly off the handle” if a staff member endeavoured to constrain his behaviour when with the child in any way.

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

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

(i)the order is a final order;  or

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

1. Matters relevant to these subsections have been considered.  The father conceded that he “pushed and shoved” the mother but said that he “never punched her or anything”.  I accept her evidence of the violence to which she was exposed, and the account she gave to Ms T.

1. At the time of the trial the father faced charges of breaching the intervention order which protects the mother, listed at local Magistrates’ Court in May 2007.  The court is unaware of the outcome.

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

1. The orders proposed by the ICL would result in the case returning to court after a psychiatric assessment was completed, and recommendations of that assessment implemented.  If the father were prepared to undertake such an assessment, and abide by any recommendations, a window of opportunity for a meaningful relationship with his daughter could be left open.  For that reason, the Court would consider a course which did not result in a final determination at this stage.  However, the father has made it clear that he will not undertake any form of psychiatric assessment or other professional intervention aimed at controlling his anger or improving his parenting and I am satisfied the Court should not make an order to that effect in these circumstances in this case.

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

1. It is important for the court to consider the objects and principles set out in s.60B, and assess the child’s best interests within their context.  In this case weight must be placed on ensuring that the child’s best interests are met by protecting her from physical or psychological harm from being subjected to, or exposed to, abuse or family violence.  Ideally, children should have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests.  Sadly, I must find that unless and until the father addresses his anger, the child’s best interests preclude him from having any meaningful involvement in her daily life.

CONCLUSION

1. I have no hesitation in finding that the presumption of equal shared parental responsibility does not apply in this case.  The child’s best interests demand that her mother have sole responsibility for major long term issues.

1. I cannot find it to be in the child’s best interests to spend any time with the father.  For the reasons outlined by Ms T and amplified in this judgment, such a course would expose the child to an unacceptable risk of physical and psychological harm.  Nor can I find that an order for her time with her father to be professionally supervised in a contact centre would render that risk acceptable at this time.  Unless and until the Court has evidence which satisfies it that the father has accepted responsibility for his aggressive and violent behaviour, has developed insight, motivation and strategies to modify his behaviour and successfully implemented those strategies, it could not find it in the child’s best interests for him to spend time with her.

1. The orders proposed by the ICL would provide a plan, and incentive, to achieve the father’s stated aim.  There may be other plans but it is hard to envisage one that would not require psychiatric assessment, and long-term professional intervention.  The Court cannot compel the father to take that course.  In the face of his intransigent refusal to accept any professional intervention or advice, or any continuing supervision, there is no point in making orders aimed at those outcomes.  In these circumstances, orders will provide that there be no face-to-face communication between the father and the child.

1. If the father were to seek professional assistance in the future and act on recommendations for therapy or other treatment, he could then seek to resume contact with his daughter.  If the father does not confront his problems and seek that professional intervention it is hard to see how a court could revisit the issue of his time with the child.  It would be vital for the psychiatrist or other professionals involved to read these reasons for judgment as there is little prospect of the father providing an accurate account of his own conduct. 

1. Orders for communication by telephone and through cards and gifts may provide an opportunity for the child to maintain a sense of her father in her life, which would assist her in developing a meaningful relationship with him in the future, if he is then prepared to change.  The mother opposed any such orders but they were supported by the ICL.

1. I have no hesitation in finding that it would not be in the child’s best interests for the father to ring her twice daily, as he sought.  Few children of her age have a capacity to talk meaningfully on the telephone for any length of time, even with a much loved parent.  The existing arrangement has become a vehicle for the father’s harassment and intimidation of the mother and her family, and has destabilised the home in which the child lives.  That the father’s proposal has more to do with his demands and sense of entitlement than the child’s best interests is his ultimatum that he will not phone the child at all if unable to phone as and when he wants.  There is an intervention order on foot and the Court should not make orders which are inconsistent with it, or inconsistent with its spirit, unless necessitated by a child’s best interests.  Orders will provide for the child to ring her father between 6.30 and 7.15 p.m. on each Wednesday.  The phone call will be facilitated by the mother, who will retain the right to terminate it if the father becomes aggressive, threatening or abusive, or denigrates the mother, her boyfriend or any of her family members.  To achieve this, the father will need to provide a telephone number, and keep the mother informed of any change to that number.

1. It is to be hoped the father will accept these phone calls from the child.  Orders will provide for the mother to make a maximum of three calls on each Wednesday, in the event the phone is not answered.  If the father does not answer a single call over a period of four consecutive weeks, the order for continuing telephone communication will be suspended until further order.  It would not be in the child’s best interests for her to maintain an expectation of speaking to her father each Wednesday, and for it to be continually dashed.

1. The order for telephone communication is not, and is not intended to be, inconsistent with the provisions of the intervention order.  If the father telephones the wife, such a telephone call will breach the intervention order, and it will be no defence to assert that the purpose of the call was to speak with his daughter.

1. Orders will also provide for the father to communicate by cards and gifts for the child at Christmas, Easter and on the child’s birthday, and to send her photographs of him, such items to be sent by Australia Post. 

1. The child will probably commence school in 2008.  I place weight on
   Ms T’s evidence that it would not be in her interests for the father to attend her school, so long as his behaviour is not addressed.  An injunction will restrain him from attending at her school, and from contacting the school.  To enable him to maintain a sense of the child’s progress, the mother will be required to send him a copy of each school report.  She may delete anything in that report which would identify the school, including (but not limited to) the name of the principal and teachers at that school.  Until advised to the contrary in writing, the report should be sent to the father’s property at G.

1. Orders will also provide for the mother to send to the father, with each school report, a recent photograph of the child.  It is to be hoped the father will take the opportunity provided to him to send her a recent photograph of him when he sends a card or gift at Christmas, Easter and the child’s birthday.

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

Dated the     14th       day of    June       2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as  INNOCENTE & INNOCENTE