Kaube and Randall

FAMILY COURT OF AUSTRALIA

KAUBE & RANDALL

[2018] FamCA 749

FAMILY LAW – CHILDREN – Best interests – Where there are allegations that the father has perpetrated family violence in a number of relationships – Where the father admits to being a perpetrator of family violence – Where the mother has symptoms of anxiety and post-traumatic stress triggered by the father spending time with the child – Where there are concerns about the father’s alcohol use– Where the expert recommends that the father undergoes long term psychotherapy – Where the father has not sought to change his behaviour – Where the child has only spent supervised time with the father since she was an infant – Where it is in the best interests of the child to spend no time with the father – Where the mother has sole parental responsibility for the child – Identity contact – Absence of evidence concerning frequency of identity contact in family law context.

Family Law Act 1975 (Cth) ss 4, 60CC, 60CA 61C, 61DA
Evidence Act 1995 (Cth) s140(2)

Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
G & C [2006] FamCA 994

APPLICANT:

Ms Kaube

RESPONDENT:

Mr Randall

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

FILE NUMBER:

PAC

5062

2014

DATE DELIVERED:

21 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

12 - 14 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mahony of Counsel

SOLICITOR FOR THE APPLICANT:

Adams & Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gardiner of Counsel

SOLICITOR FOR THE RESPONDENT:

A R Walmsley and Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

The child X, born … 2014 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The father shall spend no time with the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaube & Randall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5062 of 2014

Ms Kaube

Applicant

And

Mr Randall

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern four year old X (“the child”) the only child of Ms Kaube (“the mother”) and Mr Randall (“the father”).
The parties’ lengthy relationship of over 20 years ended in July 2014 when the child was three months old. Since separation the child has lived with the mother and spent regular supervised time with the father. The mother has at all times contended that the father poses an unacceptable risk of harm to the child on the basis that it is likely he will engage in a pattern of violence in personal relationships to which the child will be exposed and as he has limitations in his parenting capacity associated with his behaviour and alcohol misuse.
Initially the father disputed the mother’s allegations concerning his violence and alcohol use. However, under cross-examination the father conceded the accuracy of some of the mother’s allegations. It also came to light in the course of the hearing that the father had engaged in a pattern of perpetrating family violence in numerous relationships over almost 30 years and that he also continues to engage in hazardous drinking which has often been associated with his violent conduct.
Ultimately the father accepted that it was in the best interest of the child for the mother to hold sole parental responsibility for her, that she live with the mother and spend limited and supervised time with him to mitigate the risk he poses to her.
At the completion of the proceedings the father sought orders that the child spend time with him for a three hour period once per month supervised by a professional agency or contact centre.
The Independent Children’s Lawyer (“ICL”) seeks orders that the child spend supervised time with the father on four occasions a year for the purposes of maintaining recognition with him which will reduce to three occasions each year when the child turns seven.
The mother proposes an order that the child spend no time with the father.
The question for me to determine is whether the father should spend any time with the child and if so, what order with respect to his time is proper having regard to the paramount consideration being the best interests of the child.

Background

The mother and father met in April 1993 and began their relationship in September of the same year. At that stage the father had been in at least one other significant relationship prior to meeting the mother and had a child from that relationship. Three years prior to meeting the mother the father had been restrained with respect to his conduct towards this former partner by an apprehended domestic violence order (“ADVO”).
Throughout the parties’ lengthy relationship which lasted from 1993 to mid - 2014 the father used illicit drugs and consumed alcohol to excess though the extent of his substance misuse is in issue. On occasions the father was verbally abusive towards the mother often in circumstances which were associated with his alcohol use. On occasions the mother sought the assistance of police but did not make a statement or take further action.
There were other occasions throughout the parties relationship on which the father damaged the mother’s property. The father was also on occasions involved in physical altercations with other members of the mother’s family or incidents with his employers or neighbours. One incident with a family member resulted in the father being charged and convicted and an ADVO being made against him.
A number of other allegations made by the mother in relation to the father’s behaviour and misuse of alcohol are in dispute and are matters to which I will return.
After the parties’ child was born in April 2014 there were a number of ongoing disputes between them concerning the father’s alcohol and drug use. The mother alleges that there were two incidents in May and July 2014 in which the father was threatening and violent towards her in the presence of the child and which led to the parties’ separation. The parties separated in July 2014 when the child was three months old.
Following separation the mother moved with the child to other premises. The parties were unable to agree upon arrangements for the father to spend time with the child. The parties have not communicated in person since separation. They have communicated via text message and some messages sent by the father were abusive and offensive.
The mother commenced proceedings in October 2014 seeking orders with respect to property only. In his Response the father sought parenting orders to the effect that the parents have equal shared parental responsibility for the child and that the child live with the mother and spend defined time with him which would increase over time.
Interim orders were made with the consent of the parties in March 2015 for the child to live with the mother, spend two hours a fortnight with the father supervised by a private agency and that the father’s drug use be monitored by a random urinalysis as requested by the ICL.
The father did not initially make the necessary arrangements for his supervised time with the child but continued to maintain at court events that he wanted to spend time with the child. The father’s supervised time with the child began in August 2015. The written reports of that time are positive and nothing of concern with respect to his conduct is noted in any report.
The ICL made requests of the father on two occasions in 2015 to undergo urinalysis. He did so as requested and no substances were detected.
Further requests for urinalysis continued to be made by the ICL throughout 2016. On some occasions the father complied with the request and no substances were detected although on other occasions he failed to undergo the test within the time specified in the orders or at all.
The father formed a relationship with a woman known as Ms G in about January 2016. Later that month police were called to the father’s premises in relation to a domestic dispute between the pair. During an argument with Ms G the father began throwing her property out of the house. When Ms G attempted to leave in her car, the father took her car keys and threw them in the backyard to prevent her from doing so. (“the January 2016 incident”)
The father then re-partnered some time in 2016 with Ms T (“the father’s recent partner”) and began living with her and her two adolescent children shortly thereafter.
The parties were assessed by a family consultant for the purposes of a Family Report in October 2016 when the child was two years old. The family consultant observed the child to have an established relationship with the mother and that she appeared to be happy to play with her father.
The ICL continued to make requests that the father undergo urinalysis in 2017. The father only submitted to urinalysis on one occasion in that year but this did not occur in accordance with the timeframe set out in the court orders. On three other occasions he did not undergo the test as required.
In November 2017 the father assaulted his recent partner when intoxicated (“the November 2017 incident”). He was charged and released on bail which included conditions for her protection. An ADVO was also taken out for her protection.
A clinical psychologist (“the expert”) who was appointed as an expert in the proceedings met with the parties on 13 December 2017.
The expert report will be referred to at greater length later in these Reasons. At this stage it suffices to say that in his interview with the expert the father denied all allegations of domestic violence towards the mother or any intimate partner. He also omitted to tell the expert that at the time of the assessment he was then on bail and facing a charge of assault following the November 2017 incident which had occurred only a few weeks earlier. The father conveyed the impression to the expert that he was in an ongoing supportive relationship with his recent partner and specifically denied that it was characterised by violence or alcohol abuse. The father also omitted to tell the expert about an incident in September 2014 in which he threatened his brother in law and damaged his property resulting in criminal convictions and an ADVO being made against him for the protection of the victim.
In his report the expert concluded that the father had little insight into his own behaviour and took little responsibility for it. He opined that the father would require behavioural courses and anger management programs to address this issue. Overall however, the expert recommended that the child would benefit from developing a relationship with the father though the expert felt that the relationship needed to be developed slowly. He recommended that the time between the father and child should be gradually increased but initially remain supervised and then become unsupervised and occur once a week and eventually graduate to overnight time. In the expert’s opinion the father would need to undertake courses and to have apologised and taken responsibility for the violence towards the mother before overnight time could commence.
On two occasions in February and May 2018 the ICL requested that the father undergo urinalysis. On both occasions although the father did undergo a test neither occurred in compliance with the timeframe set out in the order.
In March 2018 the father pleaded guilty to the charge of common assault in relation to the November 2017 incident where the victim was his recent partner.
In May 2018 police were called to an incident involving the father and another woman with whom he was in a relationship.
The trial proceeded over three days in June 2018.

The matters in dispute

The father’s violence

It is the mother’s case that the father behaved in a controlling and violent manner towards her throughout the relationship and is a habitual perpetrator of family violence in many intimate relationships. She contends that there is an unacceptable risk that the child will be exposed to family violence if she spends time with the father in the future, and that the father’s parenting capacity is also impaired for this reason.
The father had maintained at all times that he was not physically violent towards the mother when the relationship was intact. When also asked by the expert in December 2017 about any violence in other personal relationships and towards others, the father denied that this had occurred. Prior to cross-examination he denied all allegations of domestic violence made by the mother in her affidavit and made no mention of any violence or aggressive conduct towards the mother or others (including other partners) in his affidavit.
So far as violence towards other intimate partners is concerned police and Local Court records indicate that there have been a number of relevant incidents. The first record of this type relates to a final ADVO for the protection of the father’s former partner, (the mother of his oldest child) which was made in 1990. During cross examination by counsel for the mother, the father confirmed this ADVO was in relation to this former partner, but said that he had no recollection of the incident that led to the ADVO.
The parties’ relationship commenced about three years after the first ADVO against the father was made. The mother alleges that throughout their relationship the father was physically, emotionally and sexually abusive towards her.
In her affidavit the mother sets out details of numerous specific incidents in which she deposes that the father was violent towards her. In his trial affidavit the father makes a general denial of all “the allegations of domestic violence contained in the mother’s affidavit” but does not set out an alternate version of any of the incidents to which she deposes. He also specifically refers to most of the mother’s allegations by reference to a paragraph number in her affidavit and simply denies the conduct alleged.
The first incident alleged by the mother is that in or around 1993 at the commencement of their relationship when she was away from the home the father located photographs of her with a former partner and destroyed them. The father agreed under cross-examination that he had done this.
The mother next alleges that in around 1994 when travelling together in a car the father became angry and accused her of speaking to her former partner. The mother deposes that the father verbally abused her, took her wallet to prevent her from leaving and when she went into the home she saw that he had punched a hole in the wall. Under cross-examination the father said he had no recollection of the incident.
The next incident occurred in around December 2000 according to the mother’s affidavit. She alleges the father removed a part from her vehicle in a deliberate action to prevent her from attending a family event contrary to his wishes. The father also said under cross-examination that he did not remember this event.
In or around November 2001 the mother deposes that the parties were travelling on a car journey and became involved in an argument. The mother alleges that the father became angry and left her at the side of the road 15km from their destination feeling upset and scared. The father had no recollection of this incident.
In her affidavit the mother next deposes that the father deliberately damaged a wardrobe that had sentimental value to her.
The mother next alleges that in 2005 the father smashed a television belonging to the maternal grandfather with a fire poker. The father simply denies that this event occurred.
The mother also deposes to an incident in September 2008 when the father smashed items on top of a coffee table at their home as there was not enough room for him to put his beer. The father denied under cross-examination that such an incident occurred.
According to the mother’s trial affidavit there was a further incident of violence in March 2009 when the father became angry towards her as she had not made dinner. She alleges he pushed her computer and hard drive onto the floor to prevent her from working from home. Under cross-examination the father agreed that he and the mother argued from time to time about the mother working from home. Although he had no recollection of the particular incident he denied damaging the mother’s computer.
The mother also deposes that at Christmas time in 2009 the father did not want her to attend a Christmas party. She says that as she was walking to the front door he grabbed a coffee cup and threw it towards her. Although the cup did not hit her it damaged a door and wall at their home. Under cross-examination the father denied that any incident of this type occurred.
The mother also alleges that from 2010 onwards the father began engaging in unwanted sex with her and pestering her for sex. She says that she complained to the father that he was forcing her to have sex. She deposes that on a few occasions the father set up a video camera without her consent to record them having sex. The father denied ever having sex with the mother without her consent or that the mother ever said to him she did not want him to “force [her] to have sex anymore”. He also denied setting up a camera to film he and the mother engaging in sex.
According to the mother in about February 2010 the father became angry with her when she was not prepared to invest in a business at his request. She deposes that he became so angry in the course of the argument that he banged the wall with his fist and stormed out to the house pushing a screen door off its rails causing her to become frightened.
Under cross-examination the father conceded that the mother’s account of this incident in her affidavit was correct.
The mother deposes to another argument in late April 2011 concerning the same topic when the father began yelling at her in an abusive manner. She says that the father picked up the remote control and looked enraged and threw it at her. She says that she “ducked” and the remote control missed her but smashed into a wall. She deposes that she then saw the father grab a candle stand and that she turned and ran down the hallway but she was hit with the candle stand on her tailbone, back and bottom. She says that the father continued to throw items down the hall which were smashing against a piece of furniture and that shards of the objects were flying and hitting her. She says in particular she was hit on the right thigh and as she opened the bedroom door she screamed to the father that she was calling the police. The mother deposes that the father forced the door open and grabbed her by the neck and grabbed hold of her left hand with his right hand. She says he pushed her back on the bed and he fell on top of her saying “I will fucking kill you”. The mother said that she tried to grab the father’s hand to release his grip from her neck and then he did release his grip and grabbed her phone from her hand. She deposes that as he left to leave the room he smashed the keyboard from her computer onto the computer monitor saying “you’re not calling the fucking police”. She says that she then heard a loud thud in another room caused by the father grabbing the phone line and pulling it out of the wall causing part of the stereo to fall and smash on the floor.

The mother deposes that she waited in the bedroom for the house to become silent and when it did she made her way to the phone and saw that the telephone line had been pulled out. The mother says she was unable to reconnect the phone line as it was so damaged. She says that she also noticed other damage including the back screen door and that she could not see the father. She says that she stood near the back door and called out “where is my phone” but heard no response. The mother then saw the father crouching in the driveway and asked him again about her phone. She says the father pointed towards the veranda and she saw her phone smashed in pieces on the veranda.
The mother deposes that the following morning she had pain in her hand, tailbone, bottom and thigh. She deposes that she also had noticeable red hand print marks on her neck and bruising to the injured parts of her body.
The mother deposes to contacting police and reporting that she had been injured by her partner. She says that the officer informed her that if she had marks from injuries police would be required to arrest him which frightened her and caused her to fear for her safety if the father knew about her complaints. She says that she told the officer that the father had guns at the house and the officer encouraged her to formally report the violence but she was too afraid to do so. The mother sought and received medical attention for her injuries on this occasion.
Medical records from the mother’s doctor in April 2011 confirm that the mother gave a history of pain in her left hand, right buttock and thigh and that bruises were observed in these places. It also records that the mother told the doctor of an “altercation with partner” and that the doctor prescribed some medication for the mother and an x-ray of the hand if it did not settle.
Under cross-examination it was put to the mother that the father did not throw a remote control or candle stand at her or grab her around the neck but the mother remained firm as to her evidence. Although it was suggested to the mother that the incident “did not happen that way” no alternate version of the event was put to the mother.
The mother’s sister also gave evidence of the mother reporting this incident to her and observing the bruising consistent with the mother’s allegations. The mother’s sister also referred to observing light bruising marks on the mother’s neck on this occasion. Under cross-examination the father did not challenge the mother’s sister about the mother’s complaints concerning his treatment of her or her observations of seeing bruises on the mother’s body following this incident.
Under cross-examination the father conceded that there was a heated argument in which he yelled at the mother in April 2011 as she contends but did not agree that he threw objects at her. The father agreed that he was yelling at the mother and was very upset with her and that he was really angry. He agreed that it was possible that the mother had run from the room as she described but said it was not possible that he picked something up and threw it because he thinks he would remember if he had thrown something. The father had no recollection of the mother saying that she was going to call the police in the course of this incident. He denied grabbing the mother by her neck in the bedroom and restraining her left hand and said that he did not remember pushing the mother onto the bed. The father denied threatening to kill the mother and did not think it was possible that he said something like that in the heat of the argument. The father said that he did not remember pulling the phone line out of the wall in the course of the incident and then denied that this had occurred. The father agreed that he did knock the screen door of its rail once but did not recall leaving the house and sitting up on the driveway following the incident as the mother alleges. He denied smashing the mother’s mobile phone or that there was ever an occasion where the phone was smashed on the veranda.
The mother deposes to an occasion in 2012 when she says she awoke with the father choking her with his hands around her neck. She says she had to fight him off and asked him what he was doing but that he just laughed. The mother says she slept in another bedroom in fear as a result of this event.
In 2013 the father threw the mother’s clothes out of the wardrobe and told her to move into the spare room. The mother kept her clothes and slept in the other bedroom for about two months following this event.
The mother deposes to a number of events between November 2013 when she was five months pregnant and July 2014 when she and the father separated. In particular she deposes to an argument in November 2013 when she says the father yelled at her demanding that she “get rid of the baby”.
From November 2013 the mother says that the father had no source of income but spent money on himself such as for holidays, alcohol and drugs and was not contributing to the household finances which was the source of stress and arguments between the parties. The mother deposes to the father drinking and smoking marijuana every day during the Christmas/New Year period in December 2013. She deposes to a particular incident on 29 December when she forgot to buy some coke as requested by the father and in anger the father threw her drink on the front lawn saying “if I can’t have something to drink neither can you”. She alleges that he also threw some food from the oven and other food items onto the lawn telling the mother that she had to go back to the shop and also threw a household appliance in the bin.
Under cross-examination the father initially denied any memory of these events in December 2013 and then denied all of the allegations made by the mother in relation to this incident.
According to the mother’s affidavit the next incident occurred in May 2014 when the child was a few weeks old. This resulted in police being called and attending the parties’ home.
The mother deposes that on this day the father had been drinking all day and was agitated. She deposes that he complained to her using abusive language about the time she was taking to cook the meal and was yelling at her and demanding that she obtain things for him. The mother said she was tearful and trembling. She deposes that the father was handling the furniture and kitchen items roughly and loudly and came towards her when she was breastfeeding the child demanding to use the internet. The mother says she was panicking and told him to “get out of my face”. She said the father yelled at her and threatened to cut the internet line as he couldn’t use it and that he took a knife and sliced the internet line with it. The mother deposes that she yelled out to him that she would call police and that she contacted police while still feeding the baby. She says that she was immensely fearful for the child as the father still had hold of a knife and was unsuccessfully hacking at the internet line and that he then pulled the line from the wall. The mother deposes that the father came over to her and lent in over her and the child and tried to yell down the phone and then swung his arm over the child to snatch the phone coming very close to hitting the child.
The mother deposes that on this occasion she stayed in her room in shock and fear until the police arrived and that she reported to them that the father had almost hit the child in an effort to take the phone from her. She says that she requested an ADVO but police did not feel it was necessary which caused her to feel let down by the police. She deposes to police removing the father’s guns and the father angrily yelling to her “if I lose my gun there will be trouble”. The mother deposes that as one of the police officers was leaving he told her that if she continued to call police and did not leave the father that the child would be taken from her.
Although the father denied all allegations of violence against the mother in his affidavit, when he met with the expert in December 2017 he had agreed that he had cut the telephone line (which he confirmed was the same as the internet line) and was in a bad mood at the time as the mother would not tell him the password for the internet. The father confirmed under cross-examination that he felt his behaviour on this occasion was not intimidating, that the mother had been rude to him and that she was to blame for him cutting the telephone line as she had no right to withhold the password as he paid the bills. He accepted however under cross-examination that his actions on that occasion would have caused the mother to be fearful and that it occurred when she was breast feeding the child. He also ultimately agreed to her account of this incident on that day but did not accept that he behaved in that manner with the intention to cause the mother to be fearful or coerce her to do something though he accepted that the purpose for his actions was to make her give him the password.
There was finally an incident between the parties in July 2014 when the child was three months old which lead to the parties’ separation. At the time the father had injured his foot and was using crutches. The mother deposes that he was drinking a beer and smoking a cigarette while standing over the bassinette with the child lying in it. She says that he father then picked up the child and began hopping to the lounge without his crutches and holding the child like a football. The mother says she was pleading with the father to return the child or sit down with her. The mother deposes that he then took a swing at her when she was on the phone to her sister who called the police on her behalf.
In his affidavit and also under cross-examination the father agreed with virtually all of the mother’s account of this incident. The only matters to which he disagreed were that he was smoking at the time of the incident or that he held the child like a football. The father conceded under cross-examination that he placed the child in an unsafe situation on the night and that it was understandable that the mother would have been very upset by that. He also agreed that while he was unsteady, intoxicated, under the influence of marijuana and despite the mother’s pleading he continued to carry the child as he felt that the situation was safe. The father also conceded that he continued to hop with the child and due to his unsteadiness slid down the wall onto his bottom and slid down the steps with the child in his arms because he was unable to walk. He also agreed that he refused to return the child to the mother unless the mother indicated that the child needed to be fed and while he said this he was holding an IPad up to her face and recording her. Although it was not in dispute that police attended the house that night and the mother packed some belongings and left with the child the father had very little recollection of his interaction with police. In particular the father did not recall that he told he police when they attended the home “nothing happened, she’s just a bad mother”, even though this was recorded in police records.
The mother contends that the father’s pattern of perpetrating family violence in personal relationships continued in a number of relationships after the parties separated.
As touched upon earlier when setting out the background some time in 2016 the father formed a relationship with a woman known as Ms G. In January 2016 there was the incident in which the father disposed of Ms G’s keys to prevent her from leaving following an argument which resulted in the police being called to the father’s premises.
The father then commenced a relationship with his recent partner at some time in 2016. In November 2017 he assaulted this partner when intoxicated. As previously indicated he was charged and although he makes no reference to the November 2017 incident in his affidavit he pleaded guilty in March 2018 to a charge of common assault arising from it.
The statement of facts tendered to the Local Court on sentence relating to the incident records that the father was intoxicated when arguing with this partner. He became increasingly aggressive and pushed her to the ground and while she was on the ground he took her handbag from her. As she tried to stand up he pushed her onto the road, stood over her and punched her in the face. Despite her trying to get away a number of times he continued to assault her. The father was sentenced to 200 hours of community service work and an ADVO was made for the protection of this partner, which will expire in March 2019.
In May 2018, just a few weeks before the final hearing began the police were again called to an incident involving the father, and his most recent partner, a woman known as Ms D. The pair became involved in an argument in which the father became aggressive and took this women’s keys and threw them away from her in an attempt to prevent her from leaving. (“the May 2018 incident”).
The state of the father’s relationship with Ms T at the time of the final hearing was unclear. Although he said at one point that he was no longer in a relationship with her I otherwise gained the impression that it was possible that they were still in a relationship.
According to the mother’s affidavit the father’s violence has not been limited to his intimate relationships. She deposes to a number of other instances in which the father demonstrated aggression and poor temper control.
According to the mother’s affidavit in 2008 there was an incident when she and the father attended a club and were drinking together. Under cross-examination the father agreed with the mother’s account that he became angry and abusive towards a security guard and smashed his drink on the ground and tried to hit the guard. The father was escorted from the premises and barred from the club for 12 months.
In her affidavit the mother deposes to the father having ongoing difficulties with a neighbour and on occasions acted in a threatening or aggressive manner towards the neighbour. She deposes that this began in November 2012 when a neighbour made complaints about the father consistently playing loud music. She says that police attended their property on several occasions in relation to complaints about noise. The mother says that on occasions that when the neighbour attended their property the father used offensive, threatening and abusive language towards the neighbour and acted in a physically intimidating manner towards him. The mother also deposes that the father damaged a tap on the neighbour’s property causing water to flow over the footpath and that she was required to report the damage to the appropriate authority. On another occasion she says that the father set fire to a fence and other material on the neighbour’s property as he was unhappy with the neighbour’s development application. The mother also deposes that the father verbally abused tradesmen at the neighbour’s property between April and June 2014, and threw eggs at the builder’s car. The father’s affidavit is silent as to these allegations from which it can be inferred that he does not refute them.
During cross-examination by counsel for the mother, the father acknowledged that he had an altercation with his employer in which he used abusive language which resulted him being issued an official warning. The father’s employment ended in December 2013 after he had a violent altercation with the mother’s brother in law, who was employed at the same workplace.
The mother makes further allegations that the father was excessively forceful when disciplining his 11 year old nephew grabbing the child on the back of his neck and wrestling with him. The father denies that this occurred though he does acknowledge that on one occasion when the nephew was aged about 20 he pushed him to prevent the nephew from assaulting him with a knife.
In September 2014 following the breakdown of the parties’ relationship there was a further incident after the mother attended the father’s home and retrieved the parties’ cat. She then went to stay with her sister and her sister’s husband.
When the father discovered that the cat had been taken he drove to the home of the mother’s sister and brother in law and when he arrived he saw the brother in law driving away from the house. The father then followed the brother in law in his vehicle. The brother in law realised he was being followed and phoned the police who began directing him towards the police station. At an intersection both cars stopped and the father got out of his vehicle and verbally abused the brother in law and said “tell [the mother] I want my fucking cat back” and punched the vehicle’s window. The father got back into his vehicle and continued to follow the brother in law. At another intersection the father got out of the vehicle and began verbally abusing the brother in law, and then slammed a rock into the driver’s window. The father was arrested and he subsequently pleaded guilty to malicious damage and stalking and was convicted of these offences.
Having regard to the matters set out in s140(2) of the Evidence Act 1995 I am satisfied on the balance of probabilities that the father acted in the manner towards the mother as she alleges over a period of many years. For the reasons which follow I am satisfied that the father damaged or destroyed the mother’s property as she alleges from the first year of their relationship in 1993 and on the other occasions throughout their 20 year relationship. I am also satisfied that he behaved in a manner that coerced or controlled the mother as she alleges such as removing the part from her vehicle to prevent her from attending a family event contrary to his wishes and damaging items in their household on many occasions in an effort to have his own way. Particularly serious examples of conduct of this type occurred in April 2011 and May 2014. I am also satisfied that the father engaged in family violence by engaging in behaviour that caused the mother to be fearful as she alleges including leaving her on the side of the road in November 2001and the incidents in May and July 2014 and on the numerous occasions when he damaged her property and threatened to harm her. I am also satisfied that the father perpetrated a serious physical assault upon the mother in April 2011 and on another occasion choked her as she alleges.
In being so satisfied I prefer the evidence of the mother over the father where such evidence differs for the following reasons. First, in my view an adverse inference about the father’s credit can be drawn from his misleading answers to the expert about highly relevant information concerning his own violent conduct despite the fact that it was clearly a very significant issue in relation to the child’s welfare.
So far as the allegations made by the mother in her affidavit are concerned I attach weight to the fact that the father simply makes a bald denial of all allegations. Even though it is clear from cross-examination that he contends that there was a different version of some of the events he did not at any time set out that version in his affidavit nor was it put to the mother under cross-examination. In particular it was put to the mother that the serious incident of physical violence in April 2011 “did not occur that way” though no alternate version has ever been proffered by the father.
I also attach weight to the fact that under cross-examination the father appeared to have a very poor recollection of many of the incidents of violence alleged by the mother. Although in his affidavit he makes general and specific denial about many of the incidents when tested under cross-examination he had no recollection of many of the incidents that he had specifically denied. For example, he had no recollection of the incidents in 1994, December 2000, November 2001, and September 2008. In other instances he initially denied any memory of the event initially under cross-examination but subsequently denied that the event occurred at all. This is contrasted to the mother’s accounts of events which are rich in detail and maintained under cross-examination. In some cases they were not challenged under cross-examination.

Further, in relation to some of the events alleged by the mother, the father initially conceded some matters and then ultimately conceded the entirety of the mother’s account.
Finally, some of the allegations made by the mother are corroborated by evidence that was either not challenged or which I regard as reliable. For example, the evidence of the mother that she was bruised in the incident in 2011 and that her sister observed these bruises was not challenged under cross-examination of either the mother or the sister. Medical records from the doctor to whom the mother reported this incident the following day are consistent with both the mother’s reports of her bruising and her reporting to the doctor that this had resulted from an altercation with her partner.
So far as violence towards other intimate partners is concerned ultimately the father conceded that he had behaved in the January 2016 incident in a manner which would fall within the definition of family violence[1], that he assaulted his recent partner in the November 2017 incident, and that he behaved in a manner towards his then partner in the May 2018 incident which would fall within the definition of family violence.
[1]
So far as allegations of abusive and aggressive conduct towards a neighbour is concerned I am satisfied in terms of the mother’s allegations as these were not contradicted by the husband. There is also no dispute that the father maliciously damaged the property of the mother’s brother in law and engaged in stalking of him as he was convicted of these offences. The father also accepted that he was aggressive and threatening when intoxicated on licensed premises in 2008 resulting in a 12 month ban from those premises.

The father’s substance abuse

It is the mother’s case that the father has a history of substance abuse, particularly excessive consumption of alcohol and use of cannabis which she contends impairs his parenting capacity.
The mother deposes that the father drank beer and bourbon excessively during their relationship. She alleges that he drank at least four beers each evening after work and at least six beers on a weekend night and also alleges that he smoked marijuana every day and grew and sold small amounts of marijuana to his friends. She also deposes that this alcohol and marijuana use increased in the later years of the parties’ relationship and deposes to him then drinking at his workplace after work and regularly drinking alcohol or smoking marijuana while driving a car which caused her particular concern. The mother also deposes that the father used amphetamine or “speed” at times throughout the relationship including in the month prior to separation.
The mother’s evidence in relation to the father’s pattern of drinking after the child was born is particularly relevant. She deposes that the incident in May 2014 in which the father was verbally abusive and threatening towards her when she was breastfeeding and cut the internet line with a knife occurred when he had been drinking all day and had become agitated and angry. The further incident in July 2014 which resulted in the parties’ separation also involved the father drinking and under the influence of marijuana while carrying the child who was about three months old and interacting with the mother in an intimidating manner.
In his affidavit the father simply denies that he “over consume[s] alcohol”. He also denies using any illicit drugs. In his affidavit he also identifies the paragraphs in the mother’s affidavit in which she deposes that he grew and supplied marijuana, that he drank alcohol while driving and that he used marijuana on specific occasions and he denies that conduct. In relation to one particular paragraph he sets out the extent of his alcohol consumption and takes issue with the mother’s evidence on that occasion.
The general tenor of the father’s evidence under cross-examination about this issue confirmed his position that his misuse of alcohol is not currently a concerning matter. He was tested on his assertions to the expert that at the time of that assessment he was drinking from time to time and mostly three to four days a week having three to four beers on each occasion. He had specifically denied any current use of spirits, which he told the expert he stopped drinking a few years previously.
The father was cross-examined about his level of drinking associated with the November 2017 assault and in particular his use of spirits on that occasion, which he asserted was “a once off”. He denied that he was attempting to minimise his level of alcohol use when assessed by the expert and in these proceedings.
Under cross-examination the father said that he currently drinks more on the weekends than during the week and his daily consumption of six to eight beers on the weekends is slightly more than what he drinks in the week.
The father firmly remained of the position that he did not have a problem with alcohol. He has not taken any steps to address it other than attend a couple of AA meetings in about 2015 ordered by the court despite this being a matter raised by the Probation and Parole Service when he was assessed in relation to the November 2017 assault. He continued to maintain a position that his consumption of alcohol would not be problematic if the child was in his care and insisted on a number of occasions that he “wouldn’t be drinking” if he “got” the child.
At another stage in cross-examination the father was asked about his cannabis use. He denied being aware that this was an issue in the case but could not satisfactorily explain why he was undergoing urinalysis if he did not see this as a problem. He was unable to comment on any of the results of urinalysis including one which indicated that it was possible that the sample had been diluted nor was any satisfactory reason proffered for the many occasions on which he did not comply with urinalysis within the timeframe set out in the orders or at all. His evidence generally in relation to this matter was consistent with his position that he did not see drug or alcohol use as a significant issue in these proceedings.
Based on the father’s self-reporting in December 2017 of his substance use, the expert opined;
His drinking would be defined as hazardous drinking but not problematic drinking. He reports no use of wine and he denies the use of spirits now, although he said that he did use to drink bourbon up to a few years ago. He denies any alcohol related problems and no psychosocial harms associated with his alcohol use. [The father] admitting smoking cannabis. He said that he stopped smoking cannabis shortly after [the child] was born. He said he would only ever smoke two to three cones after work, although he does agree that at one stage he was growing cannabis for his personal use. He said he stopped that some time ago. He denies cannabis use for several years before [the child] was born.
Mr Roberts also admits to some amphetamine use. He said he began that a long time ago but he again reports no use for the last three or four years largely seeming to have stopped both cannabis and amphetamine use around the time [the child] was born. The mother’s concerns that he was using drugs appears to have been substantiated in as much as he was using drugs up until shortly either before or just after [the child] was born, which was of course when their relationship broke up.

The expert revised his view of the father’s substance use upon learning about the father’s admissions in relation to his weekend drinking and his consumption of spirits prior to the assault on his recent partner. The expert confirmed that he has a much greater concern regarding the father’s alcohol use and opined:
[the father’s] alcohol consumption would fall into a significantly problematic level later. I haven’t – I haven’t had the benefit of – of having a further interview with him, but it’s likely if I did, just on what I’ve been told, he would get an audit score in excess of 15, which is indicative of alcohol dependence, but I haven’t done that assessment, so it’s a bit speculative on my part, but I suspect that what’s would happen if I rendered the assessment with the information that I now have.
Despite the father’s challenge in his affidavit to the mother’s evidence concerning the extent of his alcohol use on the basis of the concessions he made under cross-examination and in the assessment with the expert I am satisfied that the father engaged in excessive drinking of alcohol and that this pattern of problematic drinking is likely to be currently present.
There was also some unchallenged evidence about a pattern of alcohol misuse and excessive drinking in the paternal household which appears to have been normalised by family members. I formed the impression that the father has little insight into the legitimate concerns raised about his pattern of alcohol use in the context of these parenting proceedings.
So far as illicit substances are concerned although the father denies using either marijuana or amphetamine since the birth of the child the only supportive evidence upon which he relies is the results of urinalysis since March 2015. However, although some of the urinalysis results as requested by the ICL do not reveal any substances on most occasions the father did not comply with the request within the time specified in the orders and on a number of occasions failed to undergo the test at all. In light of the father’s admitted history of misuse of these substances over many years and the unreliability of his evidence as to other matters I consider it more likely than not that he has continued to use these substances following the birth of the child, and up until the present.

expert evidence

In his report dated 23 December 2017 the expert was generally of the view that the father’s application at the time that the child start spending overnight time with him almost immediately on a fortnightly basis was “quite unacceptable”. The expert noted that the relationship between the father and the child was significantly attenuated and that there was “an obvious need to develop a stronger relationship between the father and the father’s current family before any consideration could be made about overnight contact”. He added that it was “simply too premature to even imagine that occurring at this point”.
A principal concern for the expert in the report was that the child did not have a strong enough attachment with the father to manage spending overnight time with him though the general tenor of his report was that this relationship should be fostered with increased supervised time and then ultimately time with the father in an unsupervised setting.
The expert also generally expressed significant concern about the father’s lack of awareness concerning the extent to which he had contributed to the mother’s anxiety. He opined that ideally the father “would come to recognise, acknowledge and apologise for his aggressive and irresponsible behaviour towards the mother so that communication between the parents could occur”. The expert was of the view that it would be necessary for the father to complete both a family violence program and an anger management course before overnight contact could occur. He felt that completion of such courses may assist the father in being able to accept responsibility for his behaviour and ultimately assist the parties in developing reasonable communication between each other. Of significance he opined:
It is I think an important issue where the mother is traumatised by the thought that her daughter would be spending time with a man who abused her that the man does have to acknowledge his behaviour and does have to apologise for it and does have to accept some responsibility for it so as to provide some support to the mother’s beliefs that the father had changed his behaviour. Otherwise it is hard to see how [the mother] could believe the father would not be intimidating and domineering towards his daughter.
The expert also opined that the father did not impress as a person who had deeply thought about parenting or taken on the parenting role and for this reason did not believe that he could adequately meet on a long term basis the needs of the child. The expert added however that he believed that the father had the support of his recent partner and although he had not assessed the partner he opined that the father would receive substantial support, modelling advice and guidance in how to be an appropriate parent from his partner. It is to be remembered however that the father was not honest with the expert in relation to the extent of his violence and as to the state of his relationship with his recent partner who was at the date of the assessment protected by an ADVO and bail conditions following an assault by the father and not in fact in an ongoing relationship with him.
The expert was cross-examined at the end of the proceedings when the additional evidence in relation to the father’s violence in other relationships and concessions concerning his alcohol misuse had been revealed.
In cross-examination the expert said that upon reading the father’s more recent affidavit and documents produced under subpoena by police his opinion about the father’s time with the child had changed. He said:
I believe that the father has a much more entrenched problem, both in regards to substance use, particularly alcohol, and also aggression, belligerent attitude, and that therefore the notion that these matters could be dealt with via courses are less likely to be successful they’re – like, less likely to be intensive enough to make the changes, given the entrenched difficulties that are there.
In light of the additional evidence the expert recommended that the father undergo psychotherapy aimed at personality change to deal with his entrenched long term behavioural problems. Of this the expert opined:
On the basis of all the information available to me, in reconsidering the interview I had with the father, it appears to me the father has an extremely entrenched long‑term behaviour. Now, whilst I don’t think there’s any obvious psychiatric diagnosis for that and whilst I’m not prepared to say if he has a personality disorder, it is of that nature. And that’s not saying he has got a personality disorder diagnosis, but it’s that kind of fundamental entrenched scheme of the way he looks at the world and himself, for that matter. So for that to change in any meaningful way you really need the kind of therapy that digs in and digs deep and helps a person confront themselves and give them choices about making serious fundamental change.
According to the expert the father would have to engage with a psychotherapist weekly over a long period of time to see positive change of personality. He said he could not reasonably expect significant and fundamental change within about 18 months to two years.
The expert suggested that only after the father has meaningfully engaged with a psychotherapist and had a mind shift then a program like the behavioural change program (family violence) he had previously recommended will have more of an impact. He was no longer of the view that the anger management and family violence programs would be effective for the father and also cast doubt on the effectiveness of these type of programs in any event based on recent research from the NSW Bureau of Crime Statistics and Research.
The expert made a connection between the need for the father to demonstrate personality change which would take up to about two years to complete and the father’s time with the child. He felt that there was no point in the father having regular time with the child unless and until that change in the father occurred first. He said:
That was why I believe that he would need some really intensive psychotherapy designed at personality change – which would be stuff like either DBT or schema‑focused therapy, which would take, well, the best part of 18 months to two years to complete – and, as a result of that, that there was no point in moving towards a system where the father would have ongoing significant contact with the child, because I no longer formed the view that the father could be safe around the child, and hence I believe that my recommendations are that the contact with the father should be essentially for identity only.
The expert opined that if the child did not maintain identity contact with the father then in the short term the father would just recede in her memory. However, in the long term he related the following opinion based upon the relevant research:
[the child] would start to idealise the father –[and] become, perhaps, more difficult in her response to her mother, who may think that she has, somehow or other, got rid of her father out of her life, because that was what tends to happen when kids start to look for identity and a sense of belonging in their adolescence. So I think there’s some gain to be made of having some kind of identity contact, but I wouldn’t put it beyond that.
The expert was of the view that identity contact should occur four to six times a year though he conceded that there is no evidence that he was aware of concerning the most appropriate amount of time for the purposes of a child maintaining an identity connection with a parent. However, he said four to six times a year was a guide that is used in other jurisdictions, in particular welfare or the child protection jurisdiction.
The expert was questioned as to the frequency of the proposed identity contact visits as the child ages. The expert said that when the child is small the visits should be more frequent, from four to six times yearly, as her ability to remember the father is less. As she grows and her ability to hold memories improves these visits can be reduced to three or four times a year. If the father has not engaged with therapy by the time the child is seven then the contact visits could be reduced to two times annually. He also said that once the child reaches adolescence then the decision to see the father for identity contact purposes should be up to the child as by the age of 13 or 14 adolescents are capable of thoughtful judgments.
The ICL also asked the expert about the length of each contact session, to which the expert replied ‘wouldn’t be more than a couple of hours’.
The expert was questioned as to whether the identity contact should be contingent upon the father undertaking psychotherapy. The expert said that he was recommending identity contact to prevent any long term issues for the child once she hits adolescence. As such identity contact would benefit the child regardless of the father undertaking treatment. However, if the father chooses not to engage in therapy then his time should be reduced to no more than four visits annually and fewer by the time the child was seven or eight.
The expert was cross examined in regards to whether or not the father’s identity contact with the child should be supervised. The expert firmly held that the time should be supervised until two things occur; that the father completes 12 months of treatment and experiences positive change and that he also demonstrates that positive change. In particular to demonstrate that change he should take responsibility for his behaviour and make a heartfelt and meaningful reparation to the mother.
In his report the expert expressed the view that the mother would have difficulties dealing with her anxiety if the child were to spend time with the father and that she would benefit from therapy. He says of the mother’s anxiety:
Indeed [the mother] remains so traumatised by her relationship with [the father] that anything to do with him, including any relationship that [the child] might develop with her father has the capacity to trigger high anxiety and a panic like reaction in her.
The expert confirmed this view under cross-examination, and elaborated stating that the mother was experiencing symptoms of post-traumatic stress disorder. He said that treatment for this is most successful when the stressor is ended. However, in this case the stressor is the child’s contact with the father, which has continued and the father has not acknowledged or made reparation for his behaviour. This is an ongoing trigger for the mother and would make her treatment more complex and problematic.

The expert was also cross-examined in relation to his views of the father’s alcohol consumption. The expert said that since writing his report he had viewed documents produced on subpoena which indicate to him that the father’s alcohol use is in a much more problematic range than he reported. The expert expressed an opinion that the father’s substance abuse should be treated either during his psychotherapy or in adjunct treatment. He expressed that part of this treatment would involve the father providing material such as urinalysis, CDT analysis, enzyme testing and the like to obtain a biological marker as to his alcohol use.
The expert indicated that the therapy for substance abuse issues would most likely involve 12 sessions over eight months. When asked
Correct me if I’m wrong, but what I’m taking from your evidence is that the level of engagement required is going to be quite high?
The expert responded
Absolutely. There’s – there’s – as I said, the drop-out rates are – are very high in these programs because they are very demanding financially and time-wise. A person has got to be really – really prepared to do the hard yards.
The expert was cross-examined about the risk of violence that the father poses to the child. The expert considered that the risk that the father will behave adversely to the child is twofold. Firstly he is more likely to behave aggressively under the influence of alcohol and secondly as the child grows she is likely to become more oppositional and will assert herself more. The expert did not consider that this risk could be completely resolved with supervision however he did say that contact centres and supervisions services were usually well equipped to stop contact when they became concerned about the behaviour of a parent.
The expert is a highly qualified and experienced clinical psychologist with tertiary qualifications including a Masters in Clinical Psychology and Ph.D.
He is a member and office bearer of numerous professional bodies and is the recipient of an award for services to psychology and the community. He has been engaged in clinical practice since 1978 in Australia and the United Kingdom in public and private positions. The expert has extensive teaching experience at the tertiary level and has written over 180 papers. He has extensive experience in providing assessments for a number of courts and tribunals including in the Family Court. He was cross-examined at length in the proceedings but there was no significant challenge to his opinions or the matters upon which they were based. I accept his opinions and attach significant weight to them.

The Law & Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[3] (2007) Fam LR 518
[4] [2006] FamCA 994
This section has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In her Case Outline it was said on behalf of the applicant mother that the court would find that the risks the father presents to the child are so multi-faceted and unable be mitigated by ongoing supervision that they would be assessed as “unacceptable” and as such would outweigh the benefit to the child of having a meaningful relationship with her father. In final submissions the mother’s counsel went further and submitted that there is no benefit to the child in having any relationship with her father.
It is also submitted on the mother’s behalf that neither the proposal for supervised time once per month proposed by the father or the more limited proposal of the ICL amounts to the child having a meaningful relationship with her father in any event.
It is submitted on behalf of the mother that the rationale behind the expert’s recommendation that the child spend very limited time with her father although described as identity contact relates to assisting the child in her adolescent years in her relationship with her mother. In the view of the expert having some minimal time with the father may reduce the prospects that the child may idealise her absent father and blame her mother for keeping him away from her. In this regard the expert said the following:
…I no longer formed the view that the father could be safe around the child, and hence I believe that my recommendations are that the contact with the father should be essentially for identity only, and the reason for that is largely to do with what happens when [the child] reaches puberty or adolescence. No contact with the father will start to idealise the father – become, perhaps, more difficult in her response to her mother, who may think that she has, somehow or other, got rid of her father out of her life, because that was what tends to happen when kids start to look for identity and a sense of belonging in their adolescence. So I think there’s some gain to be made of having some kind of identity contact, but I wouldn’t put it beyond that…(sic)
The mother’s counsel also relied upon the expert’s evidence that there is no research to indicate the most appropriate frequency of contact where that contact is for identity purposes only. According to the expert the concept that four to six times per year is an appropriate number of contact events which can be reduced as the child gets older originated in the out-of-home-care sector. The expert said that there was no research as to this matter from the family law sector so far as he was aware. He described this regime of contact as “the received wisdom” and confirmed that it was not evidence-based. The expert confirmed that this received wisdom originated in the context of adoptions in England and was taken up by a particular not for profit care provider in Australia. He said that the Department (of Family Community Services) then took up this view in the context of adoption as “the best way to maintain an identity function and at the same time not disrupt the relationship of the child within the adopted family”.
Under cross-examination the expert made it clear that he understood the mother’s proposal that there be no time between the child and the father. He remained firm as to his opinion that if this were to be ordered there would likely be no implications for the child in the short term as the memory of the father would just recede. He maintained that there could potentially be long term concerns if the child were to idealise the missing father figure in adolescence or turn on her mother for having kept the idealised figure away from her.
The ICL questioned the expert on whether there were any other steps that could be taken apart from identity contact that could protect the child from the negative consequences of not having a relationship with her father. In response the expert said:
Not really… you can send cards and letters and stuff like that, but I think, really, for children it’s – it’s seeing the whites of their eyes kind of stuff. It’s the actual physicality of the contact that is important.
The mother’s counsel also placed weight on the expert’s evidence that there would be no detriment to the child for her to spend no time with the father in the short term. She submitted that in these circumstances the father would be squarely on notice that unless and until he engaged in the rigorous recommended therapy designed at personality change he would spend no further time with the child in the future. In other words under the arrangement proposed by the mother the onus would be placed on the father who currently poses the risk of harm to the child to address those risks in a meaningful way in a time frame that would not cause any detriment to the child.
There is no dispute between the parties that the mother’s proposal for the father to spend no time with the child would result in the child being deprived of any relationship with her father. The only point of dispute is whether this is in the child’s best interests as the mother contends. In accordance with the authorities as discussed earlier, there will be no positive benefit to this child if I were to craft orders to foster the relationship with the father if this was not in her best interests.
Both the father’s counsel and the counsel for the ICL submit that although each of their respective proposals would see the child spend limited and supervised time only with her father in the future these regimes do amount to orders that foster a meaningful relationship between the child and the father in the context of these proceedings.
In my view the father does not clearly identify the basis upon which the court could find that the level of contact between he and the child under his proposal is in the child’s best interest. The father must accept that in abandoning his original proposal and agreeing to the mother’s proposal that she hold sole parental responsibility for the child, that the child live with her and that his time with the child be supervised, that he does pose a significant risk of harm to the child.
It is submitted on behalf of the father that prior to the hearing he had no understanding of the connection between his own behaviour and his need to address it to ensure his ongoing relationship with the child. It is further submitted that at the end of the final hearing the father had an understanding of what is required and has the opportunity to do so. The father contends that in these circumstances it will be more beneficial for the child if she were to spend time with him each month before that time is to increase. However, the father does not include in his proposal any order requiring that he address the matters of risk identified by the expert nor did he give any evidence that he would do so. He initially specifically declined to seek an order that he be granted leave to revisit the order as to his supervised time in the future but then added such an order at the end of his submissions, essentially as an afterthought. In other words there was no clear indication by the father in his evidence, that he had any commitment to addressing the risk he poses to the child but he seeks orders structured on the basis that he will do so.
As indicated the expert recommended that between four and six times each year is an appropriate level of contact between the father and the child and suggested that even a less regular regime may be appropriate when he said:
…But if you had – if I was pushed and said how much would it be, I would think until dad has actually done his therapy I would say four times. After dad has done his therapy, I would say four times. After dad has done his therapy, if he’s able to demonstrate that he really does understand where he has come from and what he has done, then, you know, you might want to maintain that level of contact at four times a year until such time as he’s – he shows that he’s able to really take on board the issues that have bedevilled his relationships with women throughout his life, really.
The expert was cross-examined about the possibility that the father does not engage in therapy and address the serious issues identified by the expert and make the necessary changes. He was of the view that if the father does not show that he is ready to make those changes then the question would arise as to why there would be any contact between the father and the child at all. He then reiterated that his main concern was the risk of the child becoming rebellious in adolescence when it may be useful for her to have some sense of her father.
The expert was also asked about his recommendations for a mechanism for review of the need for supervision even though such an order was not then proposed. In particular he was asked about what he regarded as a reasonable time period which the father should be given the opportunity to address these matters. In this regard the witness said:
…from a psychological perspective, this setting here and these issues here are probably the most motivating aspects that he’s going to come in contact with in the next little while. So if he doesn’t engage with them within I would say a few months, I would be seriously doubting if he’s likely to engage with them.
And then after that few months you can’t expect any change under about two years? -- Well, after that if he doesn’t engage then I can expect any change period. Because the whole purpose of engaging in the treatment is for change. My belief is he won’t change if he doesn’t engage in the treatment. So if he doesn’t engage, then it’s game over.
The expert made it clear that there were benefits and disadvantages for the child in the mother’s proposal that the father spend no time with the child and his recommendation that the child spend limited supervised time with the father four to six times per year which would reduce even further over time subject to the child’s wishes as she approached adolescence.
The proposal of the father for supervised time on an indefinite basis 12 times a year was not suggested to the expert and it is inconsistent with all of the expert’s evidence that a maximum of six contact events each year was in the child’s best interests.
There is no other evidence to suggest that the regime of time proposed by the father is in the best interest of the child.
So far as the two other proposals are concerned the general tenor of the expert’s evidence is that a regime of limited supervised time which would decrease over time was his favoured option. The orders proposed by the ICL are in accordance with this recommendation.
The need to protect the child from harm arising from being subjected to abuse neglect or family violence forms the basis of the expert’s recommendation that the child have very limited and supervised time with her father. The expert is of the opinion that the father’s behaviour demonstrates an entrenched pattern of violence towards domestic partners and others. The father’s lack of insight into his behaviour combined with his alcohol misuse forms the basis of the significant risk posed by the father to the child.
The expert agreed that the magnitude of the risk posed by the father was not necessarily mitigated by supervision. In this regard he gave the following evidence:
…One of the things the mother certainly raised with you, though, during the assessment was her concern, wasn’t it, that if [the child] gets older and might display some defiant behaviours --?--Yes.
…that [the father] could act adversely towards her in that circumstance? --Yes.
…And do you agree with me that, given what you know about [the father] and his behaviour now, that that’s a real risk to [the child]? -- I think the risk, as we said, is a two-step. The risk is more likely to occur if there has been alcohol use or substance use and he’s disinhibited, and then if he has these underpinning coercive or controlling behaviours when a child becomes more oppositional and wants to assert themselves more, particularly if he’s disinhibited he may act in an in appropriate or physically aggressive way.
And even with a supervisor present--?--Yes.
The mother’s position in proposing orders that there be no time between the child and the father is based on her contention that even supervision will not protect the child from the risks posed by the father.
In proposing orders that entail his time with the child to be limited and supervised in an open ended way the father must be taken to accept that he poses a risk of harm to the child which he agrees can only be mitigated by supervision.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Given the age of the child her views were not sought and are unknown.
There is no dispute that the mother has a strong and loving attachment relationship with the child. She has been the child’s sole care giver for virtually all of her life.
Although the father reports that he and the child enjoy a warm and affectionate relationship in his report the expert described the child as appearing to have a “reasonable relationship” with her father on the basis of the records of the contact centre.

However, in his report the expert goes on to describe his observations of the interaction between the father and the child. The expert observed that when he came into the observation room where the child was with her father the child was lying on the carpet and appeared disconsolate. He observed that the father tried to engage with the child in a quiet, soft and gentle way but that the child became more and more distressed and non-communicative and non-responsive to her father. After about five minutes the expert was of the clear view that the child was “in a great deal of emotional distress” for reasons that were unexplained and did not feel that it was appropriate to continue and the contact ceased at that point. The father indicated to the expert that this was quite atypical and the expert was unable in his report or in oral evidence to explain this response with certainty. The expert described the child’s presentation when observed in the father’s presence as “perplexing” and “so atypical” and “so outside” of general pattern of contact between the father and [the child] that it does require some consideration.
The expert gave the following evidence in relation to the father’s response to the child’s distress during the observation with the father:
And [the father] was not able to be the person who could console her at that time? – No, he doesn’t have any attachment to do that.
And ---? – He was very good, by the way. His behaviour at the time was very good. He was very quiet, very calm, but he just doesn’t have the attachment to be soothing.
The general tenor of the expert’s observations and views concerning the father’s relationship with the child which were not challenged under cross-examination is that the child’s relationship with the father is not an attachment relationship.
The child was only a few months old when the mother removed her from the family home. Since this time the mother has effectively exercised sole parental responsibility for the child.
The mother has borne the cost of maintaining the child and meeting all of her needs. The father reported to the expert that he could not afford to pay child support.
The father has spent regular supervised time with the child for a number of years at his own cost. He has shown himself to be committed to spending time with the child. As his time with the child has been restricted to two hours each fortnight, the father has not had the opportunity to participate in long term decision making with respect to the child.
The father abandoned his application for an order that he equally share parental responsibility with the mother in the course of the proceedings and agreed to orders that she have sole parental responsibility for the child. Although the father continued to express that he was committed to having ongoing contact with the child at a contact centre in the future I gained the impression that the father continues to fail to grasp the extent to which he needs to fundamentally address his personality, attitude and behaviour in order that even limited supervised time could be of benefit to the child.
The father’s final Minute of Order originally did not include a mechanism to revisit the supervision and it was conceded by his counsel in submission that he made a conscious decision not to seek an order of this type. This was consistent with the fact that the father did not adduce evidence of any intention to comply with the onerous treatment recommendations of the expert. However, at the end of the hearing the father’s counsel sought an order the father have leave to re-list the proceedings for the purposes of reviewing supervision orders and file evidence regarding any engagement the father has made with a psychotherapist in accordance with the recommendations of the expert. This appeared to me to be an afterthought with no evidentiary basis, and was opposed by the mother on this basis.
The orders proposed by the mother that the child have no time with the father would bring about the most significant change in circumstances for the child, as it would bring about an end to the child’s relationship with him. However, the expert’s evidence which I accept is that there would be no immediate detrimental impact upon the child given her age and nature of that relationship to date.
The expert’s recommendation that the child spend time with the father on no more than six occasions per year which would reduce over time is not based on an assessment by the expert that the child would be detrimentally impacted from being separated from her father. It is the expert’s clear view that this recommendation is based on a need, as the expert sees it, to maintain some form of “recognition” or “identification” that would assist in the event that the mother has difficulty with managing any rebellious reaction from the child in adolescence.
Although the father’s proposal for the child’s time with him is not as limited as the proposal of the ICL, in abandoning his application that the child spend substantial time with him and proposing no more than a couple of hours of supervised time each month, he must be taken to accept that he does not have the capacity to provide for the child’s needs in any more than a limited way. In my view, this is a realistic acceptance by the father of the fact that he has not spent any unsupervised time with the child since she was an infant and the opinion of the expert even prior to becoming aware of the more concerning behaviour about the father’s violent and aggressive conduct and alcohol misuse. In his report the expert expressed the view that the father did not impress as a person who thought deeply about parenting or had ever taken on a parenting role and that he had serious limitations in this regard and only a superficial understanding of the role of a parent. As discussed extensively elsewhere in these Reasons the expert revisited his views in relation to this matter and had even more serious concerns about the father’s capacity.
The expert described the mother as the primary parental figure who has demonstrated she has the capacity and had met the requirements of the child for safety, psychological, emotional and intellectual development. He opined that the mother “provides an exemplary parenting environment for her child with the exception of her anxiety about [the child’s] father”.
The mother’s psychological state and in particular her anxiety about the father having any contact with the child was a significant feature in the expert’s report and in his oral evidence. The focus of the expert’s opinion in his report in relation to the mother’s anxiety and psychological state was in the context of considering the father’s then application for the child to spend more extensive and overnight time in his care. The expert opined in the context of that application that the mother’s agitation and anxiety would likely become worse which would impact upon her and opined that “it may well lead to decompensation in the psychological state of the mother” and that “such decompensation would impact upon her parenting and increasing (sic) the chances of [the child] developing anxiety as a result.
By the time the expert was cross-examined and the other matters relating to the father’s aggression violence and substance misuse had come to light the expert was required to consider the issue of the mother’s anxiety in the context of the child have much more limited time with the father in a supervised setting. He said:
I mentioned in my report that [the mother] presents as if she has post-traumatic stress disorder in relation to [the father], and therefore she would benefit by treatment in that regard. But, and I have to say this, a very great difficulty exists here, typically treatment in PTSD is most successful when the stressor is ended. Now, in the situation where the stressor exists, continues, there's evidence as dad, and dad doesn't acknowledge and doesn't make reparation for his behaviour, then she is an ongoing triggering situation, and that makes the treatment for trauma more complex, more problematic.
The expert opined that because of her PTSD symptoms it was possible that the mother could grow to resent the child if she were having contact with the father:
…what would happen is that, you want to avoid triggers that are causing you distress. [the child] coming home and saying, “Dad did this” is a trigger. You want to avoid [the child]. You want her to stop talking about it. You get angry at the child, or you dismiss the child, or you – or you – you say something or do something that causes the child to feel loss of validation – “I can’t talk to mum about something or other.” And that can become a bit like, you know, the child pushes, mum pushes back, you get these kinds of issues happening.
In my view, the mother has demonstrated a highly responsible attitude to the responsibilities of parenthood particularly in separating from the father when the child was a small infant. Although the mother had tolerated aggressive and at times violent behaviour from the father throughout her lengthy relationship with him she was clearly not prepared to permit her child to be exposed to his harmful conduct. Notwithstanding that she has at all times in the proceedings proposed orders that would see the child having no contact with the father, she consented to some limited time for many years in the interim and continued to make the child available to the father in accordance with these orders. She did this even though it induced anxiety in her and she continued to experience trauma as a result of the child spending time with the man who had perpetrated violence against her. I agree with the expert’s impression of the mother as “a dedicated parent with a well-developed sense of what parenting requires and a commitment to being an effective parent.”
In my view it is concerning that while the father expresses a desire to play a role in the child’s life he has not demonstrated any commitment to making the necessary changes so that the child could safely develop a relationship with him at some time in the future. It is significant in my view that he consciously chose not to include orders that provided for a revisiting of the need for his time to be supervised (though these were proposed at the end of submissions) and did not propose orders that required him to undertake the therapy regarded as essential by the expert if he is to enjoy anything more than an “identity” or “recognition” relationship with his daughter.
The father’s lifestyle and background is characterised by alcohol and substance misuse, aggression and a belligerent and violent attitude towards others including intimate partners. As discussed extensively in these Reasons his perpetration of family violence over a period of 30 years and in numerous personal relationships is the most salient matter in these proceedings.

Conclusion

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that when making a parenting order in relation to a child, the Court must 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In these proceedings the presumption does not apply as there are more than reasonable grounds to believe and the father accepts that he has engaged in family violence. The parties agree that the mother will have sole parental responsibility for the child. There is no question that such an order is in the best interests of the child.
So far as other orders are concerned the parties and the ICL also agree that it is in the best interests for the child to live with the mother. The evidence supports this is the only arrangement in the child’s best interest.
The only matter in contest relates to the father’s time with the child.
In coming to a decision about final orders with respect to the father’s time. I place particular weight on the need to protect the child from harm (especially arising from exposure to family violence), the significant impairment to the father’s capacity, the father’s attitude to the responsibilities of parenthood and his lack of insight into the steps needed to be taken by him to address these deficiencies. I also note that there are real practical difficulties in open-ended orders for supervision for many years into the future and I place weight upon the expert’s opinion which does not support the father’s proposal. Accordingly, I am of the view that the father’s proposed orders are not in the best interests of the child.
The real contest in this matter in my view is between the orders proposed by the ICL for very limited contact in accordance with the expert’s recommendations or the mother’s proposal that the child have not contact with the father at all.
In considering these two proposals I balance the various matter identified by the expert. I also attach weight to the absence of evidence in relation to an appropriate frequency of contact to maintain “identity” in the context of family law proceedings and to the impact of any contact between the father and child upon the mother who is the child’s primary caregiver. I also consider that the ICL’s proposal contains the inherent practical difficulties associated with long term supervision albeit to a lesser degree than under the father’s proposal.
Although the orders I propose making may result in the institution of further proceedings in relation to the child the preferability of making an order that is least likely to lead to that outcome is not in my view a weighty factor
Having regard to the foregoing I am of the view that it is in the best interest of the child to have no contact with the father. In the context of these proceedings a very clear pathway for the father to address the concerns in relation to his parenting of this child have been identified by the expert. The expert is also of the view that there would not be a detrimental impact upon the child to have no contact with her father in the short term and that this father must begin addressing these matters in the short term. In these circumstances the father has ample opportunity to address those matters and revisit the parenting orders by means of a new parenting application in the future.
As the only reason that the expert proposed some identity contact is that it may assist in managing teenage rebellion in the future (which may not arise in any event) in my view any benefit to the child in maintaining contact with the father is outweighed by the risks he poses. If he does address those risks it is always open to him to make a further application to the court.
For these reasons I make orders in accordance with the mother’s proposal as set out in the forefront of this Judgment.

I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 September 2018.

Associate:

Date: 21 September 2018

Family violence is defined by section 4 of the Family Law Act 1975 (Cth) as
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”

[2018] FamCA 749

21 September 2018

Key Legal Topics

Areas of Law

Family Law