JOHANSON & NIXON

[2013] FCCA 1607

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHANSON & NIXON [2013] FCCA 1607

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the child – parental responsibility – whether equal shared parental responsibility – sole parental responsibility – family violence – whether unacceptable risk – supervision.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Cases cited:
In the Marriage of JG & BG (1994) 18 Fam LR 255; FLC 92-515
MRR v GR (2010) 240 CLR 461

Applicant: MR JOHANSON

Respondent: MS NIXON

File Number: SYC 4141 of 2012

Judgment of: Judge Scarlett

Hearing dates: 26 & 27 September 2013

Date of Last Submission: 27 September 2013

Delivered at: Sydney

Delivered on: 16 October 2013

REPRESENTATION

Solicitor for the Applicant: Ms Escobar

Solicitors for the Applicant: Clayhills Solicitors

Counsel for the Respondent: Ms Haughton

Solicitors for the Respondent: Rachel Stubbs & Associates

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant Mother is to have sole parental responsibility in respect of all major long-term issues in relation to the child of the marriage X born (omitted) 2011.

3. The child X is to live with the Mother.

4. The child X is to spend time with the Respondent Father as follows:

   (a)Until 31 October 2013 the child is to continue to spend supervised time with the Father under the supervision of (omitted) Care for a period of two (2) hours each second Sunday such time to be implemented by the Mother or a member of the Mother’s extended family delivering the child to (omitted) Care at the start of the child’s time with the Father and collecting the child from the same place at the conclusion of the child’s time with the Father;

   (b)From and after 1 November 2013 and for a period of six (6) months thereafter the child is to spend three (3) hours each Saturday with the Father under the supervision of an employee of (omitted) or (omitted) or another responsible adult agreed by the parties;

   (c)From and after 1 May 2014 and for a period of twelve (12) months thereafter the child is to spend six (6) hours with the Father each Saturday without the need for supervision PROVIDED THAT the Father provides to the Mother or her solicitor a document certifying his attendance at and satisfactory completion of a course involving behaviour change for family violence being either “Taking Responsibility – A Course for Men” run by Relationships Australia or “Facing Up” run by (omitted) Life Care or such other course of that nature as the parties shall agree;  and

   (d)From and after 1 May 2015 the child is to spend up to eight (8) hours with the father on the Saturday and Sunday of each alternate weekend without the need for supervision.

5. On or after 20 October 2017 the Mother and the Father will consult the nearest family Relationship Centre to review the child’s time with the Father.

6. Changeover between the Mother or a responsible adult acting on the Mother’s behalf and the Father for the purposes of Order (4) above will take place at (omitted) Care or such other supervised contact centre as the parties shall agree.

7. The parties must pay all necessary fees nominated by (omitted) Care or other supervised contact centre as the case may be.

8. The child’s time with the Father will be suspended as follows:

   (a)On the child’s birthday;

   (b)On Mother’s Day;

   (c)Between Christmas Eve and Boxing Day; and

   (d)Between Good Friday and Easter Monday in each year.

9. The Father is permitted to send cards or gifts to the child by forwarding such items by registered post to the Mother’s residential address.

10. The Father and the Mother, by themselves, their servants or agents are restrained from removing or attempting to remove the child X born (omitted) 2011 from the Commonwealth of Australia.

11. (omitted)The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the Police Forces of the States and Territories of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting the child X from the Commonwealth of Australia.

12. The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Border Protection are to take all necessary steps to place the name of the child X (a male) born (omitted) 2011 on the Watch List also known as the PACE Alert System at all points of arrival in and departure from the Commonwealth of Australia.

13. The name of the child X (a male) born (omitted) 2011 is to remain on the Watch List until 20 October 2017 unless the Court orders its earlier removal.

14. Neither party is to denigrate or use insulting language to the other party or any member of the other party’s family in the presence or hearing of the child or permit any third person to do so.

15. The parties shall notify each other immediately or in any event within one (1) hour of any medical emergency involving the child.

16. Whilst the child is in each party’s respective care in accordance with these Orders the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other party properly informed of any required medical treatment or medication required in relation to the child and the parties shall ensure that they perform the proper administration of such medications and treatments.    

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4141 of 2012

MR JOHANSON

Applicant

And

MS NIXON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a young boy called X, who was born on (omitted) 2011. The proposed orders are opposed by the Mother, who claims that the Father has committed acts of domestic violence.

2. X is currently living with his mother and spending time with his father for two hours each fortnight under supervision at a contact centre.

Background

1. The parties were married on (omitted) 2009. They separated on 28^th April 2012, after a violent incident that led to police intervention. The Father was charged with assault and placed on a good behaviour bond for a period of twelve months. On 24^th May 2012 the Local Court at (omitted)Campbelltown made an Apprehended Domestic Violence Order against the Father for twelve months. It has since expired.

2. There is one child of the marriage. X was born on (omitted) 2011.

3. The Mother is of (omitted) background. She was born on (omitted) 1984. She came to Australia with her family in 1987 and has resided in Australia ever since. She and her family follow the (omitted) religion.

4. The Father was born in (omitted) on (omitted) 1981. He is a (omitted) by religion. He first came to Australia in 2008 in the course of his employment. The parties met at a (omitted) function in (omitted) 2008 and commenced their relationship. They were married the following year in Australia. They travelled to (omitted) in (omitted) 2010 for an (omitted) wedding ceremony.

5. The Mother gave evidence that the marriage was marked by incidents of violence, which commenced even before the wedding in (omitted) 2009. She claims that the Father used violence towards her on several occasions between (omitted) 2010 and the incident on 28^th April 2012 that ended the marital relationship.

6. The Father commenced proceedings in this Court on 16^th July 2012, seeking parenting orders. The mother filed a Response on 20^th August 2012 in which she sought property orders as well as parenting orders. She also filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence.

7. On 20^th August 2012 the parties entered into Interim Consent orders relating to parenting. Those Orders provided that:

   a)The child X would live with the Mother;

   b)The child would spend supervised time with the Father at the (omitted) Contact Centre one day each fortnight;

   c)The Father would provide to the Mother a report outlining his medical condition;

   d)Both parties would complete a Parenting after Separation Course;

   e)The Father would be permitted to spend additional time with the child under the supervision of a private supervisor; and

   f)The Father would spend two hours with the child on his birthday under the supervision of a private supervisor.

8. The Father filed a Reply on 13^th September 2012.

9. The parties attended a Child Dispute Conference with a Family Consultant on 8^th November 2012, where the Mother raised a number of issues about a history of family violence by the Father. The Father denied some of the allegations.

10. The Father commenced spending time with the child at the (omitted) contact centre in November 2012. He commenced spending two hours with the child every second Sunday. Those visits are continuing.

11. The property proceedings between the parties were resolved by consent orders on 30^th August 2013.

12. The parties attended on a Family Consultant for the purpose of a Family Report. The Report was completed on 16^th April 2013.

13. The parties were divorced by Order of this Court on 4^th June 2013.    

Issues

1. The most significant issue between the parties concerns the history of family violence. The Mother says that she still fears the Father. She also has some concerns about the Father’s ability to control his temper and has some fears that the child may not be safe in his care.

2. The Mother has also expressed concern about the Father’s ability to care for the child, as she was the one who was the child’s primary caregiver.

3. Another issue between the parties concerns religion. The Mother and her family are (religion omitted) whilst the Father remains a (religion omitted). The Father is concerned that the child will not be permitted to learn about his (omitted), particularly (omitted), culture.

Orders Sought

1. The Father seeks orders as set out in his Amended Initiating Application filed on 24^th May 2013. In that Application he seeks orders that:

   a)The parties should have equal shared parental; responsibility for the child X;

   b)The child should live with the Mother;

   c)The child would spend time with the Father:

   i)from 10:00am to 3:00pm each Saturday for six months;

   ii)from 8:00am to 6:00pm each Saturday for the next six months; then

   iii)until the child reaches the age of four years, from 10:00am to 6:00pm on the Saturday and Sunday of each alternate weekend; then

   iv)each alternate weekend from 6:00pm on Friday to 6:00pm on Sunday and from 6:00pm to 7:30pm on one occasion each week;

   v)on the child’s birthday by agreement and failing agreement for four hours on the first weekend day after the child’s birthday;

   d)The parties would be restrained from taking the child out of Australia and a Watch List order would be made;

   e)The parties would review the child’s time with the Father once he turns five;

   f)The Mother to be restrained from changing the child’s name; and

   g)The Mother to be restrained from baptising the child into the (omitted) religion without the Father’s consent.

2. The Mother seeks orders as set out in her Amended Response, filed on 14^th May 2013. The orders sought differ significantly from those set out in her earlier Response and are as follows:

   1. That the Mother have sole parental responsibility in respect of all major long-term issues in relation to the child X born (omitted) 2011 (“the child”).

   2.  That the child shall live with the Mother.

   3. That in the event that the Father wishes to send cards or gifts to the child, then he (is) permitted to do so through registered post to the Mother’s residential address.

Evidence

1. The Father relied on the following affidavits:

   a)His affidavit of 5^th September 2013;

   b)The affidavit of Mr C of 28^th August 2013; and

   c)The affidavit of Dr G of 4^th September 2013.

2. The Father gave short oral evidence and chief and was cross-examined by Counsel for the Mother, Ms Haughton. He was asked about the events of 28^th April 2012 and denied that he recalled some details of that day. In particular, he said he could not remember if the chair he threw on that occasion hit the ceiling or not. He admitted to throwing some glass items. When asked if he had smashed a telephone, the Father said that he could not remember as the events had taken place one and a half years earlier.

3. The Father said that on that day the Mother had provoked him by the aggressive manner in which she spoke to him.

4. Despite the fact that he had not spent any time overnight with the child since separation in April 2012, the Father said that he would like an order permitting him to take his son to (country omitted) for three or four weeks. He believed that the child needs to understand his (i.e. the Father’s) family. He believed that the child was ready to go on a holiday immediately because the child has a good enough relationship with him.

5. The Father denied that he had previously engaged in violence against the Mother. He denied that he had threatened to slap her. He denied that he had ever thrown a cup or damaged a tile in the bathroom. He did remember saying to the Mother’s father that he should teach his daughter how to talk to her husband.

6. The Father gave evidence that he was currently living in shared accommodation with six other people. However, he said that he planned to arrange other accommodation if he were able to spend time with his son.

7. The Father said that he had been training himself not to be stressed and angry when dealing with his ex-wife’s parents.

8. His solicitor tendered two certificates:

   a)A Certificate of Attendance showing that he had attended 5 out of 5 sessions of the “Keeping Kids in Mind Course” which commenced on 8^th November 2012; and

   b)A Certificate of Attendance showing that he had attended 2 out of 4 sessions of the “Bringing Up Great Kids” course in May 2013.

9. Mr C deposed that he had known the Father since 2010. He described the Father as “a perfect gentleman”.[1] Mr C described how the Father had called him after the parties separated and described him as being “devastated” about the circumstances.

   [1] Affidavit of  Mr C 28.8.2013 at paragraph [3]

10. In his oral evidence Mr C said in chief that he would be a supervisor if the child were to spend time with the Father in circumstances that required supervision. He said in cross-examination that the Father did not tell him at the time about causing a hole in the ceiling when he threw a chair. Later the father showed Mr C some photographs but said he could not remember whether he had caused that damage or not.

11. Mr C said that the Father had told him that the root cause of the problem between the Father and the Mother was that the Mother was aggressive.

12. Dr G is a Neuropsychologist, Clinical Psychologist and Psychotherapist who interviewed the Father and prepared a report for him to be used at his sentencing at the Local Court in May 2012. In his report Dr G stated:

    Mr Johanson concedes that he requires an anger management program as he is aware that he over-reacted during the verbal altercation with his wife. He has had two sessions to date and will continue this program with me. The focus will be on Cognitive Behaviour Therapy designed to “short-circuit” acting out via walking away from trigger spots and also to raise his level of frustration tolerance.[2]

    [2] Affidavit of Dr G 4.9.2013 Annexure “B” (Report dated 12.5.2012)

13. Dr G gave oral evidence over the telephone. In cross-examination he said that he hoped that the Mother would assist the counselling process with the Father but she did not participate. The Father did not turn up for more than three sessions with him; he would normally require six sessions with a client.

14. Dr G told the Court that the Father attributed about 70% of the blame for his situation to the Mother and to his in-laws and only a lesser amount to himself.   

15. The Mother relied on the following affidavits:

    a)Her affidavit sworn 16^th September 2013;

    b)The affidavit of her father Mr F sworn 13^th September 2013; and

    c)The affidavit of her sister Ms J sworn 20^th February 2013.

16. In her affidavit the Mother set out various instances of physical and emotional abuse of her by the Father, beginning with an incident in (omitted) 2010, shortly after they were married, where she claimed that the Father screamed at her, shook her violently and pushed her so that she fell to the ground, injuring her elbows.[3]

    [3] Affidavit of Ms Nixon 16.9.2013 at paragraph [40]

17. The Mother deposed that in early 2011, during an argument, the Father became angry and started shouting at her:

    While he was shouting at me he grabbed me by both arms and started to shake me. He was shaking me so hard and violently that I started crying and begged him to stop. I tried to get away but he punched me in the back. After he punched me in the back he left me alone.[4]

    [4] Ibid at [43]

18. The Mother also deposed that in (omitted) 2011, whilst she was pregnant, the Father became angry with her:

    47.He grabbed me by both my arms and was shaking me so violently on the bed. He was screaming at me:

    “Don’t talk to me in that voice. How many times have I told you not to raise your voice with me!”

    48.I was so scared of Mr Johanson and started crying. I also begged him to stop. I then saw him grab a glass cup that was on the bed side table. He raised it above his head and I thought he was going to throw it at me but he threw it on the adjacent ensuite bathroom floor where it shattered and damaged the tile.[5]

    [5] Affidavit of Ms Nixon  16.9.2013 at [47]-[48]

19. The Mother set out later in her affidavit details of an incident that took place in February 2012, when the parties disagreed about whether the child should be fed milk from a bottle or a spoon:

    64 …Mr Johanson was getting angry that I was not agreeing with him.

    65.Mr Johanson became so angry he started punching me in the head. I fell to the ground and he kept punching me in the head. I was screaming and crying and begging him to stop. I was bleeding from my head and I could feel my head starting to swell. He would not stop and he said:

    “You don’t know how to speak to your husband”.

    And

    “You don’t have any respect to speak to your husband.”

    And

    “I’ll kill you” (in language omitted)).

    66.I could see and hear X screaming and crying as this happened right next to him.

    67.Mr Johanson finally stopped hitting me. I felt and saw the blood from my head. I was in so much pain and crying. I said:

    Me:   “Oh my God! Look what you have done to me”

    Mr Johanson:    “This is nothing. You deserve more!”[6]

    [6] Affidavit of Ms J 16.9.2013 at [64]-[67]

20. The Mother deposed that on 28^th April 2012 another argument broke out between the parties in which the Father started “yelling and screaming”[7]at her. He began throwing things, including a bar stool which hit the ceiling, causing a hole, and slicing the carpet on the floor. He began smashing things in the kitchen such as the child’s baby bottles and jars of baby food. The Father said to her words to the effect of:

    [7] Ibid at [76]

    “I’ll kill you and put X in the orphanage”

    And

    “I’ll kill you, you bitch” (he said this in (language omitted) repetitively).[8]

    [8] Ibid at [77]

21. The Mother ran from the house carrying the child and drove to her parents’ house.

22. The matter was reported to the Police. The Father was charged with two offences and an Apprehended Domestic Violence Order was made by Campbelltown Local Court on 24^th May 2012.

23. The Mother deposed that she remained “greatly fearful” of the Father and was scared that he would hurt her and X if she were to see him again.[9]  

    [9] Ibid at [86]

24. The Mother gave oral evidence about an incident at the home of her sister, Ms J, that took place shortly before the parties were married. She and the Father and her father, Mr F, had gone to her sister’s home to invite her to the wedding. The sister’s then partner had been drinking and abused the three of them, telling them to go away.

1. The Father became angry, threw punches at the man, and pushed him off the balcony of the house. The man suffered injury to his shoulder and arm that later required hospital treatment. The Father chased the man down the street.

2. The matter was reported to the Police who, surprisingly, took no action.

3. The Mother’s account of this incident was corroborated by the evidence of her father and sister.

The Family Report

1. A Family Report was prepared by a Family Consultant, Ms A and completed on 16^th April 2013.

2. For the purpose of her Report, Ms A interviewed both parents separately and observed the child X, by himself and then with each of his parents separately.

3. The Family Consultant described the Father as admitting that the marriage was characterised by increasing arguments but denying that “he was controlling, intimidating, threatening, or physically violent towards Ms Nixon.”[10] He claimed that “Ms Nixon would always initiate the arguments and he denied any fault in causing or contributing to conflict between them.”[11]

   [10] Family Report page 7 paragraph [12]

   [11] Ibid page 8 (same paragraph)

4. The Father did admit to the Family Consultant that he had acted aggressively on 28^th April 2012 by destroying items saying “I wasn’t in my senses”[12] but denied other allegations about his behaviour. However:

   He said that sometimes he would “hold” Ms Nixon in order to make her “understand” but he denied that this was to hurt her.[13]

   [12] Ibid at [13]

   [13] Ibid

5. He denied the allegations that he had shaken the child X.

6. The Mother was interviewed for the Report. She gave the Family Consultant a detailed account of incidents of violence which she claimed had occurred during the marriage:

   In summary, Ms Nixon alleges that Mr Johanson was physically violent towards her on five occasions throughout their marriage. She alleges that Mr Johanson also displayed some emotionally controlling behaviours intermittently throughout their marriage. She described Mr Johanson’s violent and controlling behaviours as beginning in (omitted) 2010 and said that he was last physically violent towards her on 28 April 2012 on the day that their relationship ended. She said that Mr Johanson has continued to be verbally abusive through emails he has sent her post separation.[14]

   [14] Family Report page 10 at [22]

7. The Mother said that she remained fearful for her safety and she was also concerned about X because she did not believe that the Father was aware of how to care for him.

8. The Family Consultant spoke to the Senior Caseworker from (omitted) Contact Centre at (omitted), who reported that the time spent between X and his father was progressing “very well”. Further:

   She said that the father is attentive to X, does all his cares and demonstrates appropriate parenting strategies. She said that Mr Johanson was changing X’s nappies at the centre.[15]

   [15] Ibid page 12 at [29]

9. The Family Consultant observed X to be “a happy and playful child”[16] when he was with his mother and her parents (who were not interviewed) but unsettled when he was not with them.

   [16] Ibid page 13 at [31]

10. When the child was initially separated from his grandparents he initially showed some distress, but:

    …after Mr Johanson picked him up and hugged him, X settled and began to play with Mr Johanson and explore. X remained settled and happy throughout the observation. Upon separation from Mr Johanson at the end of the observation, X clung to Mr Johanson’s legs and did not want him to leave.[17]

    [17] Ibid page 14 at [34]

11. In her evaluation, the Family Consultant referred to the need for a child of X’s age (he is nearly two years old) to form and consolidate relations with his carers, usually the child’s parents. The difficulty is, as Ms A noted, the significant allegations of family violence and the question of risk to X in his father’s care.

12. The Family Consultant noted the Mother’s concerns that the Father was unaware of the child’s care needs but said “this concern does not appear to be supported by information obtained from the Contact Centre”.[18]

    [18] Family report page 15 at [38]

13. The Family Consultant listed three options for decreasing the risk to the child of further exposure to violence:

    Under these circumstances it would seem that the only option to decrease the risk to X would be for X to either continue spending time with Mr Johanson only under supervision; for Mr Johanson to engage in some therapeutic work in an effort to change his alleged behaviour; or, sadly, for X to not spend any time with Mr Johanson at all.[19]

    [19] Ibid page 16 at [39]

14. Of those options, Ms A was dubious about the viability of supervised time with the child as a long term prospect, noting that the Father appeared not to have any family member or trusted friend who could assist.

15. Ms A also expressed some scepticism about the benefit to be gained by the Father engaging in a behavioural change or anger management course, saying:

    If Mr Johanson has indeed exhibited violent behaviour, Mr Johanson’s account of events suggests significant minimisation of his actions and a severe lack of insight into the potential harm caused. In such circumstances, the prognosis for change by Mr Johanson would be poor, particularly when Mr Johanson has already partly engaged in some therapeutic work.[20]

    [20] Ibid at [41]

16. The Family Consultant then went on to consider the final option, which, if the Mother’s account of the violence is true, would be for the child not to spend any time with the Father at all. She expressed the view:

    While this would be an extremely unfortunate outcome for X, particularly in terms of his long term identity issues, given the serious nature of the allegations, and Mr Johanson’s denial of such, this may be the only way to ensure X’s safety.[21]

    [21] Ibid page 17 at [43]

17. The Family Consultant recommended that:

    a)The Mother should have sole parental responsibility for the child;

    b)The child should spend no time with the Father; and

    c)Orders should be made to permit the Father to send cards and gifts to the child care of the Mother.

18. The Orders sought by the Mother in her Amended Application filed on 14^th May 2013 reflect the recommendations of the Family Consultant.

19. The Family Consultant and was unshaken in cross-examination.

Submissions

1. The Father’s solicitor, Ms Escobar, submitted that the Father sought the orders set out in his Amended application but would fall back on having his friend Mr C acting as a supervisor and would agree to attending a further course of anger management.

2. On the question of parental responsibility, the Mother is seeking an order for sole parental responsibility and the Father accepts that a finding of domestic violence having occurred means that the presumption of equal shared parental responsibility does not apply. Nevertheless, she submitted that there has been no ongoing violence since the parties separated. Ms Escobar queried whether it was really in this child’s best interests that his father should be unable to make ongoing decisions about him.

3. It was conceded that shaking a baby is extremely dangerous, as the Family Consultant mentioned in her Report, but there was no evidence of any harm having been suffered by the child.

4. It was submitted that an order that effectively prohibited the Father from having any further contact with the child apart from sending cards and gifts was a drastic measure and such an extreme decision was not warranted in the circumstances.

5. A relationship that was confined to occasional cards and gifts was unlikely to develop into a meaning relationship, which the child is entitled to have, provided that he is not to be put at risk by his father. He has been having ongoing contact with his father on a regular basis for the past 12 months, or nearly, and stopping that contact would have an adverse effect on the child.

6. Ms Haughton of counsel, who appeared for the Mother, submitted that the Mother sought orders as set out in her Amended Response but, if the Court was against those Orders, would seek that Orders should be made in accordance with her Response filed on 20^th August 2012.

7. It was submitted that the Father did not continue with domestic violence counselling and there is no evidence of any remorse or regret on his part in respect of incidents of past violence. He would not admit that he had broken such things as a chair and a telephone in an altercation with the Wife.

8. The fact that the Father sought to be able to take the child overseas showed that he had no insight into the child’s needs. In any event, (country omitted) is not a Hague Convention country which of itself argued against his being allowed to take the child to (country omitted).

9. If the Court were of the mind not to accede to the Mother’s application that the Father should spend no time with the child, Ms Haughton submitted that the Father’s time should continue to be supervised as set out in Stage 2 of the Mother’s proposed orders in her earlier Response, and that changeovers should continue to be at the Contact Centre.

The Relevant Law in respect of Parenting Proceedings

1. Section 60CC of the Family Law Act 1975 (Cth) requires a court deciding whether to make a particular parenting order to regard the best interests of the child concerned as the paramount consideration.

2. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.

3. When making a parenting order, the court is required by s.61DA(1) to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA(4)).

4. If the court does make an order for equal shared parental responsibility, s.65DAA requires the court to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent (s.65DAA(1)) or, if the court does not make such an order, whether it is both in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).

5. The High Court of Australia has held in MRR v GR[22]that the Court must consider both matters before making an order for equal time or substantial and significant time:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.[23]

   [22] (2010) 240 CLR 461

   [23] Per French CJ, Gummow, Hayne, Kiefel and Bell JJ at 466 [13]

6. All of the above matters have been considered, so far as they are relevant.

Conclusions

1. The first matter to be considered is that of parental responsibility. At the conclusion of the submissions, I told the parties that I intended to make an order that the Mother should have sole parental responsibility for the child. Subsection 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility, subsection 61DA(2) provides that:

   The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

2. Whilst there may be some argument as to whether the Father did or did not shake the child or in some way abused him, there is clear evidence of family violence directed at the Mother, which led to the Father being charged with assault and the imposition by a Court of an Apprehended Domestic Violence Order.

3. In those circumstances, the presumption of equal shared parental responsibility does not apply. Accordingly, an order will be made that the Mother will have equal shared parental responsibility for the child.

4. The best interests of the child must be regarded as the paramount consideration. Making a parenting order in the child’s best interests must involve a consideration of the matters in s.60CC(2):

   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.

5. However, s. 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).

6. It is clear from the Family Report that the Father has built up a relationship with his son. He was able to settle the child when he showed distress upon separation from his grandparents and the child began to play with him and explore. He clung to the Father’s legs and did not want him to leave when the observation period had finished.

7. The evidence is that the Father has attended the supervised contact sessions every fortnight since they started in November and has demonstrated an ability to care for him in his time at the Contact Centre. In the ordinary course of events, the Court would be considering arrangements for a gradual build-up of the Father’s time with the child to assist with the development of attachment.

8. However, the overriding need is to protect the child from harm from being subjected to or exposed to violence. The Mother says that she is still fearful of the Father, which is hardly surprising based on the history of the marriage. It may well be the case that there have been no incidents of violence since the parties separated, but there has been little in the way of opportunity. There was an Apprehended Domestic Violence Order in force against the Father until May 2013 and the Father has been seeing the child at the contact centre, presumably without the need for face to face contact with the Mother.

9. The evidence of family violence goes mainly to acts of violence against the Mother rather than the child, but it is well known that exposure to violence inflicted on another is deleterious to a child’s well-being. As Chisholm J held in the case In the Marriage of JG and BG[24]:

   …when the violence is committed in the presence of children, it will obviously have the potential to frighten and distress them.[25]

   [24] (1994) 18 Fam LR 255; FLC 92-515

   [25] 18 Fam LR 255 at 260

10. It is important for the safety of the Mother that she has little or no contact with the Father, and if the Mother is protected from the Father then the likelihood of the child being exposed to violence will be eliminated.

11. If the only way to achieve the goal of protecting the child from harm is for the Father to have no time with his son, then that decision must be made. The Father submits that such an order would be draconian and not necessary to protect the child.

12. Turning to the additional considerations, which are set out in s.60CC(3), X is not yet two years of age and therefore too young for his views to be ascertained. He has a strong relationship with his mother and obviously a good relationship with his maternal grandparents. The evidence is that he does have a relationship with his father.

13. The Father has not been in a position to make decisions about major long-term decisions in relation to X, due to the parties’ separation, and his ability to do so in the future will be curtailed by the order giving the Mother sole parental responsibility.

14. It is apparent that the Father has, since November, made regular efforts to spend time with his son by his fortnightly attendance at the Contact Centre.

15. It would appear that the likely effect of an order ceasing the Father’s time with the child, making the child’s separation from his father a permanent one, would be an unfortunate outcome for the child, “particularly in terms of his long term identity issues”[26].

    [26] Family Report page 17 at [43]

16. There seems to be no issue about the capacity of the Mother to provide for the needs of the child. The Mother’s concerns about the Father’s ability to care for him seem not to have been made out, at least in so far as the Father’s ability to look after his son in context of a two hour visit at a contact centre.

17. That said, the Father’s evidence that the child was be ready to travel to (country omitted) with him for a period of three to four weeks, at the age of two, is astonishing in its naivety and unreality. For the Father to suggest that a child of that age would be able to leave his primary caregiver for three or four weeks and travel to another country with him, on the basis of two hours’ association each fortnight, is little short of breathtaking.

18. The Father’s evidence on that point demonstrates a serious lack of understanding of the needs of a child of that age. This child will not be travelling to (country omitted) in the immediate future.

19. The child X is just short of his second birthday. He was born in Australia. His mother is a (omitted) who has lived in Australia with her parents since she was three years old. She and her parents follow the (omitted) religion. The Father is a (religion omitted) who was born in (country omitted) and first came to Australia in 2008.

20. The child will benefit from knowing about both parents’ cultures. Sadly, the Father seems to possess an attitude about the status of women which may be the norm in (country omitted) but is unacceptable in Australia. The Mother was not prepared to put up with the Father’s attitude, particularly when it led to violence towards her.

21. The issue of violence has already been discussed. There has been an Apprehended Domestic Violence Order in force, but it expired in May. There are no current orders.

22. The principal issue in this case is family violence and the Court must balance the need for the child to have a meaningful relationship with his father with the need to protect him from physical or psychological from being subjected to or exposed to family violence. Subsection 60CC(2A) makes it quite clear that more weight must be given to the latter consideration, which means that orders for the Father to spend time with the child will only be made in circumstances that will not expose the child to the risk of harm.

23. An order that the child should spend no time with his father would be unfortunate for the child, as it would lead to the child having virtually no relationship with his father at all. The Family Consultant, however, was not of the view that any less draconian order would be sufficient to meet the child’s best interests.

24. One reason for this is that the father has consistently minimised and downplayed the amount of family violence that was perpetrated on the Mother throughout the marriage or denied that it has occurred at all. In my view there is evidence of a history of violence displayed by the Father, going back to the incident in (omitted) 2009 before the parties were married, when the Father attacked Ms J’s partner. I accept the evidence of the Mother, Ms J and Mr F on that point.

25. It is not entirely clear that the Father has fully accepted that his violence towards his now former wife is unacceptable in Australian society. If he wishes to have any kind of a relationship with his son, the Father must take positive steps to change his behaviour by attending and completing an approved course of the type suggested by the Family Consultant in the Family Report.

1. The Father must continue with the supervised time at the Contact Centre under the present arrangements until the end of the month of October. Then, for a further period of six months, until 1^st May 2014, the Father’s time with the child can be increased to three hours each Saturday. That time, too, will have to be supervised, in order to protect the child. The supervision can take place somewhere other than the contact centre, but the Father must arrange other supervisors, and pay for them if necessary.

2. If that arrangement works successfully, then, and only then, can the Father’s time progress to unsupervised time with the child, but it will be on the condition that he has attended a course involving behaviour change for family violence.

3. For the Mother’s protection, changeovers will continue to be at the current contact centre, or another contact centre if the parties agree. It goes without saying that the Father should bear any costs of this changeover arrangement.

4. I indicated at the conclusion of the hearing that the child would not be travelling to (country omitted) any time soon. The child’s own safety and the fact that (country omitted) is not a party to the Hague Convention are very obvious reasons why the Court will not be making any order to permit the child travelling out of Australia.

5. This is an appropriate case for the child’s name to be placed on the Watch List in force at all points of departure from Australia. Such order should not last indefinitely, as there can be unintended consequences of a child’s name remaining on the Watch List long after any need for it to be there has expired. However, at this stage the name of the child will be placed on the Watch List until 20^th October 2017, which is the date of the child’s sixth birthday.

6. The Father may well find these stringent conditions inconvenient and irksome. However, they have been imposed with a view to protecting the child from harm whilst allowing a relationship to develop. The alternative is for the Father not to spend time with his son at all.

7. If must be very clear that if there is any further violent or intimidatory behaviour by the Father that poses an unacceptable risk to the child, the orders permitting the Father to spend time with his son would be in serious jeopardy.              

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  11 October 2013