Jonas and Mears

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONAS & MEARS

[2017] FCCA 2230

Catchwords:
FAMILY LAW – Parenting – dispute about the time the father should spend with his daughter aged 10 – where the child wishes to spend time with her father – where the father is “narcissistic and entitled,” denigrates the mother to the child, models poor behaviour to the child and is extremely difficult for the mother to deal with – where the father has a history of using illicit drugs and refuses to do drug tests – where the mother proposes professionally supervised time on four occasions each year – where the Independent Children’s Lawyer proposes unsupervised time one day each month – where the court is not prepared to make an order for unsupervised time – order for bi-monthly professionally supervised time.

Legislation:

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

Hungerford & Tank [2007] FamCA 637
Rice & Asplund (1979) FLC 90-725

Applicant:

MS JONAS

Respondent:

MR MEARS

File Number:

NCC 1733 of 2013

Judgment of:

Judge Terry

Hearing dates:

24, 25 and 26 July 2017

Date of Last Submission:

26 July 2017

Delivered at:

Newcastle

Delivered on:

16 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Mooney

Solicitors for the Applicant:

Ashby Family Solicitors

The Respondent:

In person

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Port Macquarie

ORDERS

The child X born (omitted) 2007 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The father shall spend time with the child on first Saturday each alternate month commencing in October 2017 supervised by a service provider such as Rekonnect or Big Brown House.
The mother shall promptly contact a supervised service such as Rekonnect or Big Brown House and make an arrangement for the father to spend time with the child on first Saturday of each alternate month and the father shall bear the costs of that service.
The mother shall notify the father in writing as soon as she has contacted a supervised service provider to advise him of the date and time of the first visit and the cost that he will need to pay for the visit to occur.
The mother shall then make arrangements for the father to spend supervised time with the child each alternate month but if the father fails to take advantage of three (3) consecutive visits the Order for the father to spend supervised time with the child will be discharged.
In addition to the time the father spends time with the child in accordance with Order 3, the father shall spend time with the child at such times as agreed in writing between the mother and the father.
The father is at liberty to send cards, gifts, and letters to the child and the mother is at liberty to open all such items and make her own determination as to if they are provided to the child or not.
The mother shall ensure that the father is kept informed of the child’s residential address and all schools attended upon by her.
The mother shall authorise the schools attended upon by the child to provide to the father at his own expense, copies of school reports and applications to purchase school photographs.
The father shall not attend any school attended by the child for any purpose unless the mother provides her written consent for him to do so.
Pursuant to s.68B of the Family Law Act 1975 the father is restrained from making or attempting to make any contact with the child other than in accordance with these Orders.
The mother shall retain the passport and is at liberty to travel internationally with the child notwithstanding the consent of the father has not been obtained.
The Independent Children’s Lawyer shall prior to ceasing to act in the matter meet with the child and explain to her the orders the court has made and if she considers it appropriate to give the child some information about why the orders have been made and the mother shall ensure she makes the child available to meet with the Independent Children’s Lawyer at a time convenient to the Independent Children’s Lawyer.

THE COURT NOTES THAT:

(A)The mother shall do her best to ensure that the child and the father’s other child A are able to spend time together.
(B)The mother is strongly urged to arrange for the child to attend counselling.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1733 of 2013

MS JONAS

Applicant

And

MR MEARS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern X aged 10 and in particular the time she should spend with her father. Currently she is spending supervised time with him at a contact centre.
It is a difficult case because the father is an extremely difficult individual. He denigrates the mother and oversteps boundaries with her and the mother has struggled to deal with his threatening, demanding and obnoxious behaviour for years. She eventually applied for an ADVO against him but that has not been a perfect solution. The father has been charged with breaching the ADVO.
The father is challenging to manage in a court setting. He is by turn rude, offensive, demanding and threatening, although if it suits his purpose he can also put on the appearance of being meekly acquiescent. He has flouted orders made by this court just as he has flouted orders made by other courts in the past and he seems to find it amusing when he gets away with bending or breaking the rules.
Given any opportunity to do so the father throws up a snowstorm of information about religion, international human rights, international children’s rights and alleged suicides by bereft fathers and children. He did it in conversation with Dr L, he did it during the trial and he did it in the document he submitted headed Final Submissions. He simply does not seem to understand that this case is not about those lofty matters but is about three particular individuals; the mother, the father, and X, and the correct application of the provisions of the Family Law Act to their individual circumstances.
Legal Aid funded the preparation of an expert’s report by Dr L, a clinical psychologist, and he opined that the father was narcissistic and entitled and had no insight into his behaviour, experienced no sense of distress about his behaviour and was unlikely to cooperate in any suggestion for psychological therapy.
It might seem from all of this that the obvious outcome in this case is a no time order but two things take the matter outside that: one is that X wants to see her father and does get some benefit from having a relationship with him and the other is that the mother does not seek a no time order.
The mother’s proposal was that X should spend time with the father supervised by a professional supervision service no less than four times a year. It is not much but it would maintain a connection. The mother does not want time to be more frequent unless she agrees to it. She is tired of being required to cope with the father’s behaviour and put up with him denigrating her to X and she is concerned that his behaviour makes X anxious and that X sometimes acts out herself as a result of how she sees the father behave and the mother then has to cope with the outcome.
Somewhat surprisingly the Independent Children’s Lawyer’s position at the end of the trial was that X should spend time with her father for seven hours one Saturday each month unsupervised, with changeover to take place at a contact centre.
It was the Independent Children’s Lawyer’s case that this would satisfy X’s wish to spend time with her father while limiting the risk of her being exposed to harm because it was for a limited number of hours. The Independent Children’s Lawyer’s position was that it was necessary for some limited unsupervised time to occur because of the difficulties inherent in an order for long term supervision.
The father told Dr L that he wanted full custody of X and he said something similar at the beginning of the trial although he also said that he wanted as much time with her as possible.
At the end of the hearing the father appeared to adopt the proposal put forward by the Independent Children’s Lawyer in closing submissions, although it was otherwise his case throughout that X should spend regular, unsupervised time with him on weekends and during school holidays, presumably meaning a reinstatement of the 2014 orders which the Independent Children’s Lawyer suggested in her outline of case document was what she understood to be the father’s main objective.

The evidence

The mother relied on her affidavit filed on 28 June 2017 and the affidavit of her friend Ms L filed on 26 June 2017.
The father did not comply with the trial directions and did not file a trial affidavit. He turned up at the trial however and he relied on the brief affidavit he filed on 13 May 2016, the only affidavit he has ever filed in the proceedings.
An expert’s report was prepared by Dr L following interviews on 22 August 2016.
All of the witnesses were cross-examined.
At the end of the trial the order of submissions was to be the Independent Children’s Lawyer, the mother’s counsel and then the father, it being my usual practice to allow a self-represented litigant to go last. The father listened to the Independent Children’s Lawyer’s submissions but then stood up and said that he would not remain in court to hear the closing submissions by the mother’s counsel. He announced that he was leaving and asked the court to read a document called Final Submissions which he handed up and I have read it.

Background

The mother is 47 and the father 45. They started seeing each other in 2005 and were in a de facto relationship from 2006 to November 2011. The mother fell pregnant not long into the relationship and the parties’ daughter X, was born on (omitted) 2007. X is the parties’ only child.
The mother has no other children. The father has a daughter A who is 14.
The mother said that when she met the father he was spending four nights a fortnight with A and she formed the view that he was a good father. Nevertheless she described a relationship marked by substance abuse and volatile behaviour. She said that the father smoked cannabis every day and that she sometimes smoked it with him. She alleged the father also injected drugs such as speed. She said that she and the father also drank alcohol excessively on the weekend.
The mother was X’s primary carer after her birth in 2007. In her affidavit she described a deteriorating relationship after X’s birth and the parties separated in November 2011 when X was four. The mother left the parties’ home and rented her own premises on the (omitted).
When the father challenged the mother in cross-examination about why she left the relationship her response was as follows:
I left you because you were an extremely abusive person, and in front of the children. You got nastier and nastier and went off at me in front of X, and I felt you were letting X down.
Nevertheless after the separation the mother agreed to X spending weekends with the father when A was there.
The mother said that as time went by the father became increasingly abusive at changeovers and sometimes threatened not to return X and that on Christmas Eve 2012 he refused to return her until the maternal grandfather intervened.
The mother sought mediation but the matter was deemed unsuitable for mediation and in July 2013 the mother filed an application in this court.
On 10 July 2014 the parties reached agreement and final orders were made by consent. They provided for the parties to have equal shared parental responsibility and for X to live with the mother and spend time with the father each alternate weekend from Friday to Sunday, for one week in the shorter school holidays and for two weeks in the Christmas school holidays.
The mother said that for about four months after the orders were made there were no problems but then the problems started again.
The mother was very kind to the father when he was evicted from his home in November 2014. She helped him find accommodation at a backpacker’s hostel and she gave him $200.00 to pay the first month’s rent. She also agreed after conferring with A’s mother to X continuing to spend time with him in accordance with the orders notwithstanding where he was living.
In March 2015 the father obtained a new rental at (omitted). The mother gave him $700.00 to pay the bond and she also commenced dropping X off and picking her up to and from the father’s place as the father had no car.
Unfortunately the father misinterpreted the mother’s kindness and assistance as meaning that there was some hope of reconciliation. He began sending her numerous text messages alternating between saying that he loved her and saying that he hated her and about three months afterward he proposed marriage to her which the mother found unwelcome.
The mother said that the father became abusive at changeovers, which she insisted move to Coles at (omitted) with a view to trying to curb that behaviour. She said that she tried to keep the peace and hoped that things would settle down.
Later in 2015 the mother agreed to let the father assist her move to new rental accommodation, which he said would allow him to pay her back for the help she had given him, but it ended in a debacle with the father again talking about reconciliation and screaming and ranting in front of X.
The father again began barraging the mother with text messages alternating between telling her how much he loved her and how much he hated her and behaving in other ways which caused the mother to be concerned about his mental state.
In November 2015 the father delivered a letter to the mother’s parents containing a lengthy, angry rant about the fact that the mother had moved on. Shortly afterward he turned up at the mother’s home in an agitated state and got in and out of his truck five times before driving away. He then sent the mother six text messages which included the following:
I reckon thered b a lot more suicides if everyone had a gun. Life is fukd for some people. I not suicide but would be so easy with a gun to just go bang and all over. I not but I understand how easy it would be to do when bad luck all life. U can make me happy or leave me here with one decision you decide.[1]
[1] Paragraph 83 of the mother’s affidavit filed on 28 June 2017.
On 24 November 2015 the mother went to (omitted) Police Station to seek assistance and an interim ADVO was made for her protection. The father then sent the mother another message which said as follows:
…I am allowed to share responsible for X’s welfare so start thinkn of her u selfirth lady, leave her father alone and get over yourele. U need to learn u are nasty abuser. I am victim here so frigin wake up to ursele or I promis I will go and get her and u not get to ruin any more lives. Nast nasty lady only interested in causing pain. U are meanest evil I ever met and not fairp to X. Can’t believe how nasty human u are. U going to gaol not me. That was ur last chance u pure nasty I can’t believe the nasty if u cant co parent I will parent alone. Then u better not dare ever text u not worth of gods gift[2]
[2] Paragraph 85 of the mother’s affidavit filed on 28 June 2017.
In December 2015 the mother filed an application in this court to vary the 2014 orders, out of concern for what she perceived to be the father’s deteriorating mental state.
It is important to record at this point that I accept unreservedly the mother’s evidence about the father’s behaviour, both during the relationship and in the post-separation period. She was a credible witness on this issue and Ms L’s evidence, the letter the father wrote to the mother’s parents, the father’s behaviour during the interview with Dr L and his behaviour in court all make the mother’s narrative about the events leading up to her filing her second court application entirely credible.
The father blinds himself and seeks to blind others with a snowstorm of words and information about children’s rights and human rights to the reality of the situation. He needs to understand that the only reason this matter is in court, and the only reason his time with X has become supervised, is because of his behaviour.
The father last saw X pursuant to the July 2014 orders in about January 2016.
In March 2016 the orders about him spending time with her were suspended and an Independent Children’s Lawyer was appointed. At that stage the father was still having telephone communication with X.
In April 2016 a final ADVO was made for two years for the mother’s protection.
On 13 May 2016 the parenting matter was before this court and an order was made for random drug testing. Orders were also made continuing the suspension of time and restraining the father from going to X’s school.
The mother was concerned that the father might be upset and act out after those orders were made and when she left the courtroom she rang the friend who was minding X and asked her to take X’s phone from her. It is just as well she did because after the father left the court room he sent a vile text message to the child on her telephone. It said as follows:
Hi X, those fucking, arsehole cunts still won’t let me see you, but don’t worry, hang in there, X, those stupid, fucking, arsehole cunts won’t win. You know what a bitch your mum can be when she’s drinking, and just ring me and I will come and get you.[3]
[3] Paragraph 92 of the mother’s affidavit filed on 28 June 2017.
The father subsequently attempted to ensure that the child did not read the message and she did not read it because of the mother’s intervention but it constitutes family violence. As a result of the text message the police applied to vary the ADVO to include the child as a protected person and the father was charged with breaching the ADVO protecting the mother.
The father defended the charge and he cross-examined the mother for 90 minutes in court during which he called her vile names. Dr L described the cross-examination as vicious. The father was found guilty of breaching the ADVO and was ordered to do community service. He refused to do it because he said he was not in the wrong and he was recalled and given a three-month suspended sentence and released on a bond.
On 16 August 2016 an order was made for the preparation of an expert’s report and the matter was adjourned to October 2016. However it was relisted on 6 September 2016 because the report was released earlier than expected and by consent orders were then made for the father to spend two hours with the child supervised at (omitted) Children's Contact Centre once a fortnight.
Ultimately on 8 December 2016 the matter was listed for trial on 24 July 2017.
Time at the contact centre continued until 17 June 2017. It then ceased because the contact centre wanted to move the father on to a playgroup scenario, no doubt to assist them to use their resources in a way that would benefit as many families as possible, but the father would not do the parenting program they asked him to do before taking part in the group program so his time with X at the contact centre ceased.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and the matters to which I must have regard in order to determine X’s best interests are contained in s.60CC(2) and (3) of the Family Law Act.
S.60CC(2) contains the primary considerations and s.60CC(3) the additional considerations and I intend to start by dealing with the additional considerations.

The first of the additional considerations is any views of the child and the weight to be given to those views.
X told Dr L that she would be sad if she did not see her father and that she liked the previous arrangement of alternate weekends.
At trial the Independent Children’s Lawyer tendered a document headed “Statement of views and wishes of the child.” She reported that X said that she wanted to live with her mother and spend time with her father every second weekend overnight without supervision.
The Independent Children’s Lawyer reported that X said she would be angry and disappointed if she only saw the father four times a year supervised and would lose focus at school. She said the same would be the case if she did not see him at all. She was asked about once a month and said she would prefer once a fortnight.
Dr L identified a number of benefits to X from having a relationship with her father. He pointed out that she received some positive affection from him, got a sense of identification from seeing him and he was the conduit for her to see her sister A. He said as follows however about the weight that should be given to her views:
X clearly wants to continue to have good levels of contact with her Dad. All other things being equal she would like to see a resumption of the alternate fortnightly contact, and there are multiple advantages to this which not only include her expanding her relationship with her father but also with her sister A. X does present as a somewhat parentified child who is aware of what’s going on and although she was defensive with me in the interview and clearly not wanting to say anything that would get her parents into trouble she is highly motivated to retain a relationship with her father, which she enjoys. She also gets a sense of identification with him, which is also important to her. In addition her father acts as a conduit for her to develop her relationship with A, which is highly important to X. However, X as yet remains young and has difficulties in foreseeing the consequences of her decisions. She cannot foresee how contact with her father, or exposure to the abrasive family communications that result has a deleterious impact on her and cause her anxiety. Despite this I feel that the strength of her desire to have contact with her father is something that does need to have some weight placed on it.[4]
[4] Experts report paragraph 152
I must consider the nature of the child’s relationship with each of her parents and any other person.
X has a good relationship with her mother. Dr L observed them together and said that he felt they had a secure and warm attachment. X also has a good relationship with her maternal grandparents and with the mother’s friend Ms L.
The mother said that X adored her father but had some ambivalence about him because of his behaviour. I will have to decide what I do with that comment later on. Dr L observed the father and X at the expert report interviews and said that they had a cheerful time with no problematic issues observed.
X has a good relationship with her sister A which she values. She used to see A during visits with the father, and the 2014 orders referred to a hope that the visits the father had with each of the girls would occur on the same weekend if possible.
X has seen A on some occasions at the contact centre.
The mother encourages the relationship between X and A but she does not have a good relationship with A’s mother at present which makes contact between the sisters without involving the father difficult. The father’s sister recently arranged for the girls to have dinner together but it is more difficult for them to see each other if X is not seeing the father.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with or communicate with the child or to take part in making decisions about her.
That is not a relevant consideration. Both parties have always wanted to be part of the child’s life.
I must consider the financial support of the child.
The mother is a (occupation omitted) who works at (employer omitted). She is exclusively supporting X financially.
The father said that he worked casually as a (occupation omitted) but there was no evidence about his income or about his capacity to provide financial support for X and it appears that there is no child support assessment in place.
I must consider the likely effect of any change in the child’s circumstances.
This is the central issue in the case and I cannot fully consider it until I make findings about the remaining s.60CC(3) matters and the s.60CC(2) matters.
One change proposed is that the child should commence spending unsupervised time with the father once a month, more if the father had his way, but certainly once a month if the Independent Children’s Lawyer’s orders prevail.
The mother has been putting up with volatile, aggressive, rude and insulting behaviour by the father on and off since separation six years ago. He has denigrated her to the child and she has been forced to apply for an ADVO and twice forced to come to court about the matter, and I will have to take into account as part of a final decision the effect on her of making the various orders that are proposed.
I must consider the capacity of each parent to provide for the needs of the child including her emotional and intellectual needs.
The mother and X live in rented accommodation on the (omitted). X is in year 5 at (omitted) Public School. The mother is a (occupation omitted) in the (employer omitted) at (omitted). She does shift work and it is apparent from her conversation with Dr L that she enjoys her work.
The mother has always done a good job caring for X in terms of arranging for her to attend preschool and school and do extra-curricular activities. She has the support of her parents, who I believe may be in court today, and also her friend Ms L who gave evidence in the case. The mother clearly has a good support network.
The mother admitted to Dr L that she found it difficult to manage X’s behaviour at times when X became what she described as anxious and panicky and began acting out. There was a very serious incident in August 2016 which involved X holding a knife and the mother needing to call police and an ambulance.
The mother did not reveal this incident to Dr L but I am not overly concerned about that because she was very frank with Dr L in general terms about the difficulty she had experienced with X. Dr L said as follows:
Ms Jonas did identify that the major stressor acting on her as a parent was when her daughter became distressed, anxious and panicky. She said that she does worry how she can help X at such times. She said X is a badgerer and will nag her. One of the things that the mother has done is started smoking again after many years, it was about three years ago that she started smoking. She now uses her own time out to go out the back and have a cigarette as a means to de-stress from having to deal with X. What is clear from the mother’s comments is that there remain significant flash points in her relationship with X and the mother lacks some skill at the moment in settling X’s behaviour. There are likely multiple reasons why X is so distressed and undertaking the therapy that is currently planned to do so appears to be important in assisting in resolving that.[5]
[5] Experts Report paragraph 55
Dr L also made other references to this issue.
The mother did not try to hide the fact that she had had issues with X’s behaviour, some quite serious issues, although she did not tell Dr L about the particular incident which resulted in the police and ambulance being called.
Following that incident the mother arranged for X to see Ms J, a psychologist, and from the notes that were tendered that was very beneficial for the child. Ms J talked to X about creating the idea of a safe place.
Unfortunately the mother stopped taking X to see Ms J. The mother said, and I have no reason to disbelieve it, that this was because Ms J ceased practice. The mother said that X did drum therapy and attended a school program at the end of the year which had helped her, but Dr L felt, and I agree on the basis of the evidence, especially having read Ms J’s notes, that it would be very beneficial for the child if she continued some form of counselling.
The mother has had issues with depression and some issues which are very historic now with self-harm. The father suggested that the mother may have current mental health issues but Dr L did not agree.
The mother said that she had used cannabis on occasions during her relationship with the father and that both she and the father drank to excess on the weekends. She said that she stopped drinking when she became pregnant at the age of 36. Dr L said that the mother told him that she still occasionally used cannabis but nobody, including the father, raised that as an issue at the trial.
The mother has had issues with drinking. She was convicted of drink driving in 2004 and lost her licence for three years and she was convicted of low range PCA in 2014. Dr L opined that she might be understating the extent of her current usage of alcohol, however I do note that apart from the recent conviction there is nothing else happening in the mother’s life which suggests she has a serious alcohol problem. She is functioning at work, she has not had car accidents and there is nothing else to suggest that she has a serious alcohol problem. However it may be that she has understated the extent of her alcohol consumption and that there might be a problem still lurking there.
Dr L expressed the view that the mother had poor boundaries in regard to men and he talked about her relationships with unsavoury characters, however it needs to be borne in mind that it might be open to argument that the father is one of those men, and the solution to the problem if that is the case is not to ensure that the child spends particular amounts of time with the father. That is not going to change the child’s situation with the mother.
The parties were lucky that Dr L was available to do a report in this matter. He provided an in depth, insightful report and he commented that although concerns had been raised by the father in regard to the mother’s behaviour, on observation she did not present with a constellation of symptoms suggestive of a personality disorder. He said as follows:
Although concerns have been raised by Mr Mears as regards to her behaviour on self-report and observation Ms Jonas did not present with a constellation of symptoms suggestive of personality disorder. However, the file material suggests a more dependent and emotional volatile women, marked by substance abuse from time to time, unstable sexual relationships and self-harm attempts. Although I do not think she has a personality disorder there are clearly some maladaptive traits that do impact on her ability to regulate, especially at times when X becomes anxious or challenging.[6]
[6] Experts Report paragraph 77
In summary although there may be some issues with the mother in relation to her personality and functioning, in many respects she is doing an excellent job looking after her daughter. X is a well-adjusted child who has been attending school regularly and who does extracurricular activities. The mother has connections in the community with family and friends and X has a warm relationship with her mother.
I then have to consider the father’s parenting capacity.
The mother said that the father’s behaviour started to change after X was born in 2007 and that he would have mood swings and become angry for no reason and would yell and scream. She recounted some abusive behaviour in her affidavit and I will refer to it in more detail in the family violence section of the judgment.
I accept the mother’s evidence about this given all of the other evidence in the case in relation to the father.
The father has continued to behave in an unregulated way since separation and X has been exposed to that behaviour. I have referred for example to his behaviour during the moving day incident as I will call it when Ms L took X into another room.
In paragraph 14 of his report Dr L said as follows:
Ms Jonas gave a further example. She said there was a point last year when they were supposed to change over in public. They were in a car park and he allegedly screamed out to her whilst he was holding X’s hand “I hop you enjoy your fuck!” She said that she could see that X was shaken by this behaviour. She said even more odd was on that same day he had proposed marriage to her saying that God told him to do so. When questioned on this matter Mr Mears simply said nothing like that ever occurred. He does recall having said a statement to her like “I hope you enjoy your fuck”, but he said that was many years ago when they were still together and he simply denied the event as alleged by Ms Jonas took place.[7]
[7] Experts Report paragraph 14
Another example of unregulated abusive behaviour was the message the father left on X’s phone on 13 May 2016.
Dr L referred in his report to the mother telling him about an occasion when the father wanted to drop over a huge poster of Jesus, and sent a message to the mother saying “Jesus says if you’re sorry to him then he will forgive you.”[8] The mother gave evidence about the father screaming at her and about an incident where he mimed wanking behaviour which X saw.
[8] Expert Report paragraph 16
I accept the mother’s evidence and I am satisfied that X has been exposed to that kind of dysregulated behaviour by the father.
The father’s behaviour in court has been challenging which makes it easier to accept the mother’s evidence.
The father denied to Dr L that he had any difficulty controlling his temper or that he had ever been violent. I do not accept that and neither did Dr L. He said as follows in his report:
It seems likely that Mr Mears is a volatile and impulsive man with little capacity to self-monitor, and a narcissistic self belief that allows him to justify his behaviour and minimise his impact on others.
There is considerable force in that assessment and Dr L goes on to say:
Whilst Ms Jonas doesn’t impress as a person who is entirely truthful about the nature of her relationships, particularly with other men and has likely some borderline features in regards to the way in which she conducts her relationships with people and has some greater instability in her mood than she wishes to acknowledge, it does appear to me in this matter Ms Jonas was the victim of Mr Mears’ controlling attitude and behaviours. I think there is no doubt that Mr Mears is a controlling person and he has fixed and overvalued ideas and he appears to be a person who suffers from some mild tangential thinking from time to time and some paranoia. Nonetheless he does not currently present with any psychotic disturbance. He most likely has a personality disorder manifesting primarily in a mix of cluster A (paranoid and schizotypal) and narcissistic traits. However it is always difficult to diagnose personality disorder in a single interview. Certainly he is an odd person who can be quite objectionable in his manner and has some difficulty in being able to resolve the ambivalence that he appears to experience towards Ms Jonas.[9]
[9] Experts Report paragraph 148
There are serious issues with the father’s parenting capacity in terms of him exposing X to dysregulated abusive behaviour since separation.
There are also severe limitations to the father’s capacity to provide for the child’s emotional needs.
One example of the father not having regard to X’s emotional needs was when he refused to consent to her having a passport so that she could go on a cruise with the mother and Ms L and her daughter.
The prospect of the father changing his behaviour is nil. He denied he to Dr L and in court that there was any truth in the mother’s allegations. He endlessly portrays himself as a victim of the mother and the family law system.
The father is living in an alternative universe in which it is not his own behaviour which has caused this matter to return to court and it is not his own behaviour which is the reason why he only seeing his daughter supervised, rather the reason is a conspiracy between mother’s, lawyer’s, family consultants and judges. I describe it as an alternative universe because I am satisfied that the father is incapable of either reflecting on or accepting that there may be some reality other than his conspiracy theory reality.
Interestingly the father did appear to have a lucid moment on 2 July 2017. He sent some text messages to Ms L in which he commented that he was an arsehole, that he could not believe some of the texts he had sent and that he would not want to see A accept that kind of behaviour from a partner. However his behaviour during the trial, the way he conducted his case and his complete denial of any wrongdoing in the document he called Final Submissions suggests that it was a fleeting moment.
I am satisfied that the father will not stop denigrating the mother if he spends unsupervised time with the child. He has a strongly negative view of her which he regularly vents to others. His cross-examination of the mother focussed on alleged unsavoury events which had happened to her and he is unable to see that his behaviour to the mother impacts on his daughter.
When he was cross-examined about the text message he sent on 13 May 2016 his response was:
X wouldn’t have found it offensive because she feels the same.
Later on he said:
I regret all the messages but that does not change the love I feel for X. I’ve always been 100 per cent perfect to my daughter.
The father just does not seem to understand that his behaviour to the mother reflects on his parenting capacity and that he is riding roughshod over his daughter’s emotional needs when he abuses other people.
During the trial the father handed me a bundle of text messages and asked me to read them. He said in effect “Read these and you will see how often I send really nice text messages and see that I am not an abusive person.”
I did read them and the problem for the father is that embedded in those messages are quite a few unpleasant things. For example on the third page of the text messages he sent to his daughter the father says the following:
I am going to the top, X. They’ll be on TV for what they’ve done. The lady won’t be able to make any kid sad again, and judge will learn she’s not a good judge. Its okay, the judge at (omitted) is a good man, and he will see true that they are picking on me. Please be happy because I am happy because they won’t do it again to us. Daddy
X responds:
Don’t.
The father goes on:
Not mum, X. I am talking about the illegal actions of solicitor and no one else. Judge that said I can’t see you. Don’t worry, X. I told you I am Mr Fix-it.
Then he goes on and the next comment from X is:
Will I still be able to see mum
The father responds:
Of course you will, X. I am not like them. You might still live with mum if she promises to let you come over as she is meant to. Don’t worry, I am Mr Fix-it, not Mr Make you Sad.
There are a couple of other messages of concern as well. For example:
X, I am not sick. Okay? They just say I am, but the doctor did not say it. They pretend I am so I can’t see you, and they’re going to get in big trouble for not letting you see your dad.
So embedded in the bundle of text messages that the father handed me to show how reasonable his communication with his daughter was were some quite problematic text messages and they reinforce my view that the father is incapable of providing for his daughter’s emotional needs.
Another concern I have is the father’s drug use.
The mother is a (occupation omitted) who has considerable experience providing (employment omitted). She gave evidence about the father using drugs during the relationship and said that it was clear to her when the father was high from drugs such as speed because he would become full of energy, rearrange the furniture, have pressured and erratic speech, and would not sleep.

The mother was not challenged during the trial either about this evidence or about the qualifications and experience she described. She also said as follows:
I came to realise the signs of Mr Mears ‘coming down’ after using speed. He would get very angry, unreasonable, he would be paranoid about me seeing other men and it would take him around 3 days to return to normal.[10]
[10] Paragraph 18 of the mother’s affidavit filed on 28 June 2017.
There were also some concerning references to drug use in the subpoena material.
There was a reference in (omitted) Area Health records to the father going to the hospital in October 2000 and saying that he had a problem and had daily erratic speed use and had been injecting for three years. There is also reference in those notes to the father possibly having some psychotic symptoms while using speed heavily, including paranoia.
On 11 April 2013 the father presented at hospital and the notes contain the following comments:
Drug psychosis. Presented with unwitnessed fall, head injury, smoke weed, denied amphetamine or alcohol intake, alert, plethoric face, irritable .pacing, pressure speech, irrational talking, allowed to go home.
There was no evidence that the doctor was criticised for making those comments as the father asserted.
There is ample evidence to justify a concern about the father’s drug use.
An order was made early in the proceedings for regular random drug testing but the father only ever did one drug test. It was on 1 August 2016 and the result had low creatinine. That is always a concern because while low creatinine can be the result of a medical condition it can also be the result of people drinking copious quantities of water in order to dilute the presence of drugs in their urine and make them undetectable.
At trial the father initially maintained that the reason he did not do the drug tests was because he could not afford them. He gave no evidence about his income to give this any colour of credibility and later in the trial he made this comment about the drug tests:
I thought they were ridiculous anyway, and I had a clean one.
Well he didn’t have a clean one, he had one with dilute creatinine and it seems to me given the father’s attitude as displayed in other matters that the more likely reason he did not do the tests was because he did not agree with the order.
I cannot rule out the possibility that the father is continuing to use drugs and that this may provide some explanation for his very agitated and aggressive behaviour. I am somewhat surprised that the Independent Children’s Lawyer wasn’t concerned about that issue.
In summary I have numerous reasons to be concerned about the father’s parenting capacity.
I must consider the child’s maturity, sex and background.
The mother told Dr L that X became quite explosive on occasions and threw tantrums and lost control. She said that she believed that this was due to her exposure to the father’s behaviour which was similar.
Dr L said that attachment loss from not seeing the father could be contributing to the child’s behaviour as could the fact that she wasn’t seeing A as much as she would like but he also said as follows:
As a result X has been exposed to the modelling of controlling and emotionally abusive behaviours and this is having an impact on her current behaviour. While I also suspect that the mother has a greater difficulty in managing her relationship with X than she acknowledges I think the primary influence on X has been her long-term exposure to such difficult behaviour by the father.[11]
[11] Dr L report paragraph 152
X may be missing the father and that may be having some impact on her behaviour but Dr L was of the view, and I consider it probable, that her exposure to seeing the father act out in a highly aggressive unregulated way has also had its impact on the way that she behaves.
I must consider any family violence involving the child or a member of the child’s family.
The mother described behaviour during the relationship which included yelling and screaming, the father beating her on the bottom after she slapped his face fearing that he was going to spit on her and near the time of separation grabbing and pushing her and she described an occasion when the father pushed her to try to get her phone.
I consider that the mother was a witness of credit in relation to the father’s behaviour and I accept her evidence.
The father has committed acts of family violence since the relationship ended. He has engaged in controlling and coercive behaviour in a variety of ways, including having explosive fits of temper, making derogatory comments and gestures to the mother in the presence of the child, invading her space or pacing up and down outside her home, subjecting her to verbal abuse via an email left on the child’s phone after he was disappointed at a court event and sending a lengthy diatribe to her parents and a very lengthy diatribe to her lawyer.
I do not accept the father’s evidence that someone fabricated that part of the 13 May 2016 text message which refers to the mother and I am satisfied that the father has committed acts of family violence on a variety of occasions.
I must consider whether there are any family violence orders in place and if so the implications of that.
A final ADVO was made on 8 May 2016 and it is current until April 2018. I do not consider it necessary to make any further comment about that.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is a no time order. It would be a severe outcome for X but it is the order which is least likely to lead to further proceedings.
I must return to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of the child’s parents.
The mother has always done her utmost to ensure that X has a meaningful relationship with her father. She does not denigrate the father to X and she has shown remarkable patience and forbearance in dealing with a very difficult man.
The mother agreed to the father spending time with X after the parties separated. She commenced court proceedings on the first occasion only because of prolonged difficult behaviour by the father. In July 2014 she consented to orders that he spend liberal time with the child. She did her utmost to comply with those orders and tried creative things like altering the changeover venue to try and curb the problems with the father.
The mother brought the matter back to court as an absolutely last resort because she was genuinely concerned about the father’s mental health and the impact of his behaviour on X. The mother frankly said that X adored the father.
How the father can possibly assert that the mother does not support his relationship with X is a complete mystery to me and is an example of the father living in an alternative reality.
The father does not support the child’s relationship with the mother. I refer to the messages in the bundle that he wanted me to read, the text message he sent on 13 May 2016 and to him telling Dr L that he wanted residence of the child without having any valid basis for doing so.
If X spends extensive time with the father there is a considerable risk not that her relationship with her mother might be undermined, because I suspect that it would not be, but that the child would become anxious, unsettled and confused.
If the father does not see X at all or does not see her very often clearly he will not have a meaningful relationship with her. On the other hand if he exposes her to denigration of the mother and to confusing and unsettling comments about her family situation, he may not have a meaningful relationship with her even if he does see her more frequently.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I do not accept that X is likely to be neglected or abused in the mother’s care unless the parents come into contact with each other.
The father has committed acts of family violence directed towards the mother. X has been exposed to them. An immediate example is the moving day incident. The mother tries to protect X by reading her text messages but there is no doubt that X has been exposed to some family violence between her parents. She told Dr L that she was worried if she saw her mum and dad together.
A solution to that problem may be an order that eliminates contact between the parents at changeovers. However that would only prevent conflict if the father complied with rules and I am very mindful of the occasion when the mother told the contact centre workers that she had seen the father in the vicinity. The contact centre workers raised this with the father who said that the mother couldn’t have seen him because he was hiding in the bushes.
The risk of the parents coming into conflict even if there is an order in place that they are not supposed to meet at changeovers is real because of the father’s propensity to not obey rules and to push boundaries and the ADVO is due to expire in April 2018.
There is also a risk of X being exposed to family violence in the father’s separate care. Whether it is an unacceptable risk is something I will have to discuss in the conclusion of the judgment.

Parental Responsibility

Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that the parents should have equal shared parental responsibility for her absent a finding that one of them or a person living with one of them has committed an act of family violence or has abused the child.
The father has committed acts of family violence so the presumption does not apply.
The father sought an order for equal shared parental responsibility. I can make such an order even if the presumption does not apply but in the circumstances of this case given the history I have outlined to date and my concerns about the father I could not possibly consider making an order for equal shared parental responsibility.
I could not possibly ask the mother to attempt to communicate with the father and discuss major long-term issues with him and I am not satisfied that even if she made that attempt a rational agreement could be reached.
The appropriate order, and the order which is supported by the Independent Children’s Lawyer, is that the mother should have sole parental responsibility for the child.

Dr L recommendations

Dr L is a very experienced clinical psychologist and he provided a very fair and very balanced report. He weighed up the pros and cons of making an order for the child to spend time with the father and he said as follows:
The critical issue for this report is whether it is in X’s best interest’s to continue contact with her father. The costs of such continuation are exposure to his paranoid bordering on delusional beliefs, his impulsivity and aggressive behaviour, his modelling of tantrum behaviour to X, his likely attempts to undercut and denigrate Ms Jonas, and the fact that contact will mean that there will be some measure of contact between Mr Mears and Ms Jonas, this continuing the potential for a pattern of harassment as has occurred over the last almost 12 months.
On the other hand X enjoys contact with her father, it improves her chances of contact with A and assists her in developing her identity and knowledge of the paternal family. There are direct befits to her. If the Honourable Court were to consider that some contact would be in X’s interest, consideration of how contact might resume between the father and X needs to take into consideration the obvious concerns that the father is unable to place boundaries around his behaviour and that he does present as somewhat thought disordered and that he does present also as being highly vengeful. It is likely that he will continue to attempt to create a situation in which X would have difficulty in regulating her own mood because I believe the father lacks insight into the explosive nature of his mood and thus any attempt to initiate contact between X and the father will in the first instance require some measure of oversight. This would probably best be done through a community based supervision organisation given the age of both X and A, who would ideally be involved in any such contact.
Under the heading “The likely effect of any changes in X’s circumstances including the likely effect on X of any separation from either of the parents or any other person with whom X has been living” he said as follows:
X is experiencing emotional suffering by not being able to see her father and by the truncation in her contact with her half sister A. These are matters which I do believe need to be addressed by the Honourable Court despite the difficulties in the father’s behaviour. I acknowledge that it is entirely unclear as to whether the costs of contact for X are outweighed by the advantages, but in this matter I have been persuaded by the consistency and fervour of X’s wishes and the observation that her behaviour has been deteriorating in recent months, when she has not had contact with her father. As noted earlier I have suggested some measure of contact between X and the father might resume, preferably through some kind of community based supervision with the long-term aim being if the father’s behaviour settles that overnight fortnightly contact can eventually resume between X and her father.
During cross-examination Dr L maintained the same recommendations and showed that he had very seriously weighed and considered the benefits to X of having a relationship with her father with the detriments that could flow from that.
Dr L’s main recommendation was in paragraph 162. He talked about the father being entirely inadequate to provide for anything such as equal time for the child. He said:
Whilst it is likely in X’s long-term interests to have a meaningful relationship with her father, the father is entirely inadequate to provide for anything such as equal time to care for X. Nonetheless I think that resumption in the return of fortnightly contact will be in X’s interests in the long term and I see such resumption occurring when X has a greater sense of her own mind, which typically occurs about 12 years of age. I think that if supervised contact occurs for 12 months and Mr Mears does calm down, then day-time contact for an afternoon a month in an unsupervised capacity can occur. I think that the father’s obsession and pre-occupation with the mother as well as his denigrating and offensive way of referring to her makes it very difficult to expect there to be any reasonable communication between Ms Jonas and Mr Mears about the care of X. I certainly do not think that an option exists for shared parental responsibility in this regard as the father’s decision to play tit for tat and to use X as collateral damage in his arguments about Ms Jonas simply implies that he fails to see her needs in regard for him to put his own needs on hold in that manner. His refusal for instance to sign her passport clearly demonstrates such vengeful behaviour, which unnecessarily inconveniences X.[13]
[13] Paragraph 162 of the Expert Report.
The way Dr L put it in the witness box was that when X was older if there was some bad behaviour by the father she could deal with the situation by saying “Well, that’s just dad being dad”.
Dr L went on to say:
I think that if supervised contact occurs for 12 months and Mr Mears does calm down then day-time contact for an afternoon a month in an unsupervised capacity can occur.
Dr L made it very clear in the witness box that what he was thinking of was 12 months of supervised time in the community before there was any consideration of any unsupervised time and he talked about unsupervised time then occurring for one afternoon a month, not an entire day a month. By this he meant supervision by a service such as Big Brown House or Rekonnect who could supervise the time but could take the child and the father to the beach or the foreshore or a shopping centre rather than time just being confined to a contact centre.
The father hung his hat on the recommendation in Dr L’s report for time to be supervised for 12 months; he said that he had nearly done the 12 months already at the contact centre. However as I have said Dr L made it clear in the witness box that his idea was 12 months of supervised time in the community. He also commented both in his report and orally that if the father did not settle down then contact would have to cease. He did not recommend the father attend at X’s school for any reason.

Conclusion

There are previous orders in this case, orders made by consent, and pursuant to Rice & Asplund[14] and Hungerford & Tank[15] I must consider whether it is appropriate to vary those orders.
[14] Rice & Asplund (1979) FLC 90-725
[15] Hungerford & Tank (2007) FamCA 637
I am satisfied that given what has happened since the June 2014 orders were made it is beyond doubt necessary and desirable for me to reconsider the orders.
I would start by observing that the father is highly critical of the mother’s parenting capacity and Dr L also had some concerns about her; he mentioned her poor choice of relationships and her alcohol consumption in particular. However it is important not to lose sight of the fact that this case is not about the mother’s parenting capacity.
The mother may have some deficiencies as a parent, as may we all come to that, but she is basically doing a good job looking after X and the father is not fit to look after the child full-time in any event nor is he someone who offers something which might fill gaps in the mother’s parenting.
X is well placed with her mother. She is attending school. She is doing extracurricular activities. She has a good relationship with the maternal family. The mother has friends and a support network and it is important not to overstate the criticisms that can be made of her parenting capacity.
The issue in the case is X’s time with the father and whether, as Dr L said, the advantages of time occurring outweigh the disadvantages.
The Independent Children’s Lawyer proposed that X spend one weekend a month with her father unsupervised and I have thought about that and thought about what arguments could be marshalled in favour of such an arrangement.
The first argument is that X wants to see her father.
Second, any order for supervised time may be fraught with difficulty. It could only be for a limited number of hours due to cost and there has to be a concern about whether the father would actually attend if it was ordered given that he often does not do things if he does not agree with them. He went to jail rather than do home detention; he did not do drug tests; and he would not do community service because he did not agree with the fact that he had been convicted.
Third, the father has spent unsupervised time with X before. He did so for most of the period from 2011 to 2016 and there was no evidence the child was physically harmed during that time.
Fourth, most of the father’s gross and offensive acting out has involved the mother. He is obsessive about her. Examples are the argument on moving day, invading her space at her home, the abusive messages left on her answering machine and his behaviour at changeovers. It could be argued that if the parents are kept apart at changeover the risk of the father acting out in an offensive fashion in the child’s presence would be greatly reduced.
Fifth, the Independent Children’s Lawyer proposed supervised changeover at a contact centre and it could be argued that this gave some protection in case the father was using drugs. There seemed to be a belief that if the father appeared drug-affected then changeover may be stopped.
Finally, one of the issues in the case is the way the father behaves to the mother and it has been apparent even while I have been delivering these reasons that he maintains the belief that the reason he is not seeing his child is because of the mother. His behaviour causes stress and upset for the mother and it could be argued that if the father is given something of what he wants he may calm down and leave the mother alone, whereas if he doesn’t get anything of what he wants, if his time is almost non-existent and supervised, he may continue to act out in public in the fashion he has done in relation to the posters with the child’s face on it and he may subject the mother to abuse and denigration in social media and elsewhere.

Those are the arguments I came up with in favour of doing what the Independent Children’s Lawyer proposed.
There are flaws in that reasoning though.
First, the father’s abuse is not just restricted to the mother. He has been abusive and highly offensive to the mother’s lawyer. He was abusive and offensive to the family consultant who prepared a memo he did not like and the family consultant was just doing her job. He was offensive to the mother’s counsel in court on a couple of occasions until pulled up. I cannot assume that if X spends unsupervised time with the father she will not witness him behaving in that way to other people who upset him.
Another concern I have about the proposal for the unsupervised time is that while the father’s behaviour in court and to the mother may be due to his personality disorder he also has a history of drug use. He has not done his drug tests except for one which had dilute creatinine. It is impossible for me to know if he still has a drug issue and whether that is feeding into his behaviour and I have some concern about whether people at a contact centre simply witnessing a changeover are going to be either able or willing to make a determination about whether the father is affected by drugs.
My next reason for believing there is a flaw in the argument that it would be in X’s best interests to spend an entire day each month with the father unsupervised is that he is incredibly insensitive to the child’s needs. In pursuit of his grievance about not seeing her he put her face on a poster in public in an area where she went to school. He has tried to enlist her on his side by giving her a sneak look at a poster of his car.
He would not sign her passport application so that she could go on a cruise with her mother and there is evidence in his own bundle of tendered documents about some emotionally troubling statements he made to the child during text messages.
I cannot be sure that if the child spends an entire day with the father that she is not going to be subject to some emotionally insensitive behaviour by the father.
Giving the father a day a month will not give him what he wants. He wants considerably more and he continues to blame others for the fact that he is not getting it. There is a considerable risk that if an order is made for X to spend one day a month with the father he will be upset about it and irrationally blame the mother for the fact that he is not seeing the child as often as he wants and be abusive about the mother to the child.
Just because no issues can be identified in terms of the father physically harming the child during earlier periods of unsupervised time does not mean that the child will be safe from any emotional risk if she spends unsupervised time with the father.
The mother has had issues with X at home which she puts down to her mimicking the father’s behaviour. Dr L said that while other things may have contributed to it he certainly could not exclude that possibility and in fact he considered it likely that this was part of the reason for her behaviour.
I am very concerned that the child will be exposed to denigration of the mother if the father is dissatisfied with the court outcome, and giving him one day a month is in my view highly likely to lead to him being dissatisfied with the outcome.
I accept that X wants to see the father but she is not mature enough to make an appropriate decision in this matter and I cannot let her wish to spend unsupervised time with the father prevail if a whole lot of other things in the case mean that this outcome would not be a good outcome for her.
I am also concerned about the impact on the mother of me making an order for X to spend an entire day with the father once per month unsupervised, with possible emotional abuse of the child and possible exposure to the father coming down from use of drugs or craving them Also the child might be exposed to the father acting out in relation to other people.
I am not prepared to make an order which might mean that the mother has to deal with the fallout of the child spending an entire day unsupervised with the father.
There is no real solution in this case. If limited supervised time is ordered the father may take to social media or the streets as he has done in the past to vent his displeasure. X could be exposed to that. X may blame herself for her father’s distress with negative psychological consequences for her. She may miss the endearments the father lavishes on her when he is in a good mood and she may miss her sister and blame the mother, not the father, for her father and sister not being in her life. The mother because of her own background may struggle to deal with that.
There is no real solution in this case but Dr L, the expert in the case, who spent a long time interviewing the parties and very fairly and in a very balanced way assessed the situation, did not resile in cross-examination from the recommendations in his report which involved starting with some supervised time in the community.
The extent of the orders I would be prepared to make would be an order for some supervised time in the community. I would not be prepared to make an order for unsupervised time simply because of the father’s refusal to do the drug tests but even absent that there are so many other issues in the case which make unsupervised time inappropriate and likely to be burdensome for the child as opposed to beneficial for her and burdensome for the mother trying to parent the child on a day-to-day basis that I would not be prepared to make an order at this point for unsupervised time.
The mother proposed an order for supervised time four times a year. I can change that to a little more frequently, say once every two months, but the father is going to have to pay for it.
The father complained about not being able to afford the drug tests but at the beginning of the trial he told me he was doing some work and if the cost is a few hundred dollars every couple of months it seems to me that the father can, if he wishes, pay for professionally supervised time.
If supervised time goes well for a year with absolutely no incidents then it might be that the matter will come back to court and the father may seek a different order. It is unfortunate if people have to keep returning to the court system but at the moment I simply cannot be satisfied, notwithstanding the Independent Children’s Lawyer supporting it and notwithstanding the child’s views, that it is in this child’s best interests to spend unsupervised time with the father.
The mother will have to look at other ways to ensure that the child has a relationship with A. Perhaps the mother’s parents could contact A’s mother. Perhaps there are other things that could be done and the mother should look for ways to ensure that happens.
I would strongly urge the mother to consider arranging for X to attend further counselling. She seemed to benefit from seeing Ms J and she might well benefit for a variety of reasons from seeing a counsellor from this point on.
I am going to make an order, because this was strongly recommended by Dr L, that the father not attend any school attended by X for any purpose unless the mother provides her written consent for him to do so.
I am going to make the s.68B order proposed.
I am also going to make an order that the mother may obtain a passport for the child and travel internationally with the child notwithstanding that the consent of the father has not been obtained. There is nothing to suggest that the mother intends to live overseas with the child. She wanted to take the child on a cruise recently and was unable to do so because the father would not sign the passport application and it is important that the mother not have to come back to court unnecessarily.
I am going to make an order requesting the Independent Children’s Lawyer prior to ceasing to act to meet with the child and explain to her the orders that the court has made and if she considers it appropriate to give the child some information about why the orders have been made. The mother is to ensure that she makes the child available to meet with the Independent Children’s Lawyer at a time convenient to the Independent Children’s Lawyer.

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 25 September 2017

[12] Paragraphs 155 -157 of the Expert Report.

[2017] FCCA 2230

16 August 2017

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Duty of Care

Negligence