LANE & STEINER

[2014] FamCA 214

FAMILY COURT OF AUSTRALIA

LANE & STEINER [2014] FamCA 214

FAMILY LAW – CHILDREN – Child related proceedings – Evidence relating to child abuse or family violence – Order for  no contact or communication between the father and the child

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A)

MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; (2010) FLC 93-424
In the Marriage of A (1998) FLC 92-800; 22 Fam LR 756
Re Andrew (1996) FLC 92-692

APPLICANT:

Ms Lane

RESPONDENT: Mr Steiner

INDEPENDENT CHILDREN’S LAWYER: Chris Wright

FILE NUMBER: CSC 448 of 2010

DATE DELIVERED: 3 April 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 13 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Respondent in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Trevino

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray Lyons

Orders

1. All previous parenting orders in relation to J born … 2007, (“the child”) be vacated.

2. BY CONSENT Ms Lane, (“the mother”) have sole parental responsibility for the child.

3. BY CONSENT the mother have sole parental responsibility for decisions in relation to the long term and day to day care, welfare and development of the child included but not limited to:-

   (a)the child’s education;

   (b)the child’s Religious cultural upbringing;

   (c)the child’s health; and

   (d)the child’s name.

4. BY DETERMINATION on or before 1 June 2014 and each year thereafter, the mother shall forward to the father, by ordinary pre-paid post to his address at … B Street, C Town, Queensland, 4…, or to his email address at … between one and three current photographs of the child and a brief description of her health, welfare and education.

5. BY DETERMINATION the father shall not otherwise spend time or communicate with the child and consequently is restrained from communicating or approaching the child or the mother, without having express written consent, in advance, from the mother or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

6. BY DETERMINATION the Independent Children’s Lawyer forward a copy of these orders and the reasons upon which these orders are based, to the mother, within seven (7) days of the date of this order at the email address known to the Independent Children’s Lawyer.

7. Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

8. All other extant applications for orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

9. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these parenting orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 448 of 2010

Ms Lane

Applicant

And

Mr Steiner

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings relate to J, (“the child”) who was born in 2007 and was aged about six and nine months at the date of the hearing and whose mother, Ms Lane, (“the mother”), was subjected to violence by Mr Steiner, (“the father”) during and after their relationship.

2. Such was the violence that it was not substantially in issue, in determining the interim relocation Federal Magistrate Coker (as he then was) observed:-[1]

   5.The orders that are sought, as I have indicated, are unusual, but when one reads the material that is provided in support of the application, it is one of those rare occasions, and in fact I would think perhaps the first occasion in 10 years, where I have almost immediately formed the view that the only appropriate orders are those in terms, generally, of what is sought by the mother.

   6.The affidavit that is filed in support of the application is a litany of horror.  [The father] is currently in custody.  He is in custody, as I understand it, on charges relating to arson and destruction of property.  The arson has occurred allegedly in relation to a property owned by the mother’s new partner, ... .

   7.As best one can understand the evidence, the police are satisfied and no doubt the state courts also are satisfied, there is a very strong prospect of a conviction being obtained and that there is further a strong prospect of the father absenting himself, if he were to be granted bail.  Accordingly, he is held in custody.

   8.There has been a history of violence, threats, intimidation and harassment since the apparent breakdown of the relationship between the mother and the father and the formation of the relationship between the mother and Mr [D].

   9.More incredibly and more horrendously still, it has also been the case that the father’s family have become involved, to the extent that the father’s brother, [Mr G], has also been involved in the family dispute and has, in fact, subsequently been charged with unlawful wounding.

   10.As I understand the evidence that is before the court, [the father’s brother] has stabbed Mr [D] as a result of an altercation between them.  There are continued threats, there is continued violence and there is continued disturbance to the life of the mother.   

   [1] Reasons for Judgment dated 22 November 2010.

3. Given the undisputed evidence before me the analysis by the then Federal Magistrate was accurate.  The issues now before me are of narrow compass and are as set out in the notations to my orders made 9 September 2013, specifically:-

   (a)whether the child spends any time at all with the father;

   (b)in the context of that determination whether the mother is psychiatrically, psychologically or emotionally able to cope with the father spending time with the child, having regard to the law in that respect; and

   (c)whether the father presents as an unacceptable risk to the mother and/or the child noting that that is an issue before the court for a psychiatrist.

4. The father has consented to orders that the child live with the mother and that she have sole parental responsibility for the child.  The Independent Children’s Lawyer supported that course and in fact final orders to that end had been made some years earlier.  For the sake of convenience all of those orders are contained in the orders made following the publication of these reasons.

5. The mother’s case was that the father should spend no time and have no communication with the child.  In being questioned in relation to some contact occurring, the mother said that she would be prepared to send photographs of the child to the father and keep him apprised of health issues regarding the child on a limited basis.

6. The father wants to see the child on a regular basis through a Children’s Contact Service (presumably in the area of South East Queensland) and proposes that the mother should meet half the cost of flying, from wherever she is living, to that contact service.  The father indicated, if pressed, he would meet those costs.  Clearly it was the father’s wish that this would be the beginning of a renewal of a relationship with the child.

7. At the conclusion of the hearing the Independent Children’s Lawyer submitted, in the circumstances of this case, that the father ought not be permitted to spend any time or have any communication with the child except to the very limited extent supported by the mother.

8. The mother and father were both unrepresented in these proceedings and each engaged in the proceedings in difficult ways. 

9. The mother engaged in the proceedings initially to secure the return of the child after she had been removed from the mother’s care by the father in mid July 2010. The mother engaged in the proceedings and sought interim relocation from Far North Queensland.  That interim relocation application was heard in the then Federal Magistrates Court in November 2010 and the mother was permitted to relocate urgently on an ex parte basis.

10. The mother remained, to a limited degree, engaged in the court proceedings including with the Family Consultant who prepared a report in July 2012. After that time the mother disengaged from the proceedings and endeavoured to hide from the jurisdiction of the Court.  When questioned about this the mother said, and I accept, that this arose out of a fear for the safety of herself, the child, a child of a subsequent relationship and her partner from violence by the father and/or his family.

11. The father has had limited involvement in the proceedings.  He turns up on most occasions but leaves it to the Court to ‘make the running’.  The father was aware of the hearing date in March 2014 but remained in the C Town, Qld area.  The father was contacted by telephone and participated in the proceedings by way of a telephone link.  He adduced no evidence as to the mechanics of the arrangements he suggested namely a Children’s Contact Service in the South East Queensland area.  The father provided no updated affidavits nor did he provide details of his financial circumstances.

BACKGROUND

1. The father is aged 26 and lives with his mother and younger brother in the C Town area.  He is in a relationship with Ms A and it appears that she is pregnant to the father.  The details of that relationship and the child which may arise from that relationship were not made clearly apparent to the Court.

2. The mother was aged 24 at the date of the hearing and lives somewhere in New South Wales.  For reasons that become obvious in terms of violence and fear, the mother has not disclosed her current whereabouts.   However, the father says he now knows the mother’s whereabouts and has known about it for twelve months.  The mother is likely to change her address given that knowledge.

3. The mother lives with the child, her partner Mr D (aged 27) and a younger child of their relationship.

4. The mother and father commenced their relationship in about May 2005 at which time the mother was aged about 16 and the father was aged about 17.  The child was born a few months after the mother’s 18th birthday.

5. In 2008 the mother met Mr D who was a friend of the father’s.  Some time after that date the mother and Mr D commenced an intimate relationship.  In April 2009 the father discovered this relationship and there was conflict between him and Mr D. 

6. During this time the father conducted an illegal business of the manufacture and sale of methamphetamines.   This endeavour was conducted from the home in which the mother and child lived.  The father at that time was a regular user of cannabis and a sometime user of methamphetamines.  Not unexpectedly, in July 2009 the father was charged with a number of drug related offences including the manufacture of methamphetamines. The father was arrested in September 2009 and remanded in custody.

7. In September 2009 the mother says her relationship with the father had concluded.  

8. In November 2009 whilst in goal the father wrote a letter or letters to Mr D making violent threats against Mr D and his property.

9. In July 2010 the father was convicted in relation to those drug offences and imprisoned for the time he had served up to that date.  He was therefore released from gaol on 13 July 2010.

10. On 14 July 2010, the day after his release from incarceration, the father arrived at the mother’s home with the child’s paternal grandmother and asked to spend time with the child.  There is a difference in the evidence of the mother and father in relation to the circumstances of the child being removed from the mother’s care.  I will deal with that later in these reasons.

11. The child was retained by the father for a period of about three weeks until a recovery order made 8 August 2010 led to the return of the child to the mother on 6 August 2010.

12. In late September 2009 there was an altercation at the home in which the mother lived.  Mr D was present, as was the father’s brother Mr G.  As a consequence of that altercation Mr G assaulted Mr D using a knife and causing him serious injuries.

13. Mr G was arrested, charged and imprisoned in relation to that assault.  He was released on 10 November 2010.

14. On 18 September 2010 a house and a caravan on a property owned by Mr D were destroyed by fire.  The father was charged with offences arsing from this behaviour and he pleaded guilty to arson in relation to the destruction of Mr D’s home and property.  The father remained in gaol until late May 2012.

15. A family report had been ordered and it was released in July 2012.

16. A psychiatric report was prepared by Dr L which was dated 14 February 2013.  That report was annexed to his affidavit sworn and filed 5 March 2013. 

17. These proceedings have been conducted over the last three and a half years. They were commenced by an application filed in the then Federal Magistrates Court by the mother in August 2010 seeking the return of the child.  The delay in the final hearing arose out of the imprisonment of the father on the arson matters and the mother’s move interstate. 

18. The proceedings were transferred to the Family Court in May 2011.

19. To enable the matter to be heard both the mother and father were given leave to attend by telephone.  Each of them was invited to cross-examine the Family Consultant and the Psychiatrist.  The mother did not have questions of either of those expert witnesses.  The father initially said he wanted to ask questions of the Family Consultant as he considered her report was ‘biased’.  However, at the conclusion of the mother and father’s evidence the father indicated he no longer had any questions to ask of the Family Consultant.

20. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is indicated from the context of the statement.

THE LAW

1. These are proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”). A court may make the parenting order it considers proper. This is a proceeding to which the 2012 amendments to the Act do not apply as they were commenced in August 2010.

2. When determining orders the approach is governed by Part VII of the Act. The objects of Part VII of the Act and the principles underlying them are set out in s 60B.

3. Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.

4. The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.

5. If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent.  In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable.  If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

6. These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.

THE EVIDENCE

The mother

1. The mother relied upon her application filed 3 August 2010 (amended 25 October 2010 and 19 November 2010) together with her affidavits filed 3 August 2010, 23 August 2010, 25 October 2010 and 19 November 2010.

2. Those affidavits were read into evidence.  The essence of her case was that the father should spend no time with the child and that the communication between the father and the child should be significantly constrained.  The mother endeavoured to be frank and straightforward in her evidence.

3. The mother said, and I accept, that she avoided the Court proceedings out of her fear of the father.  She felt unsafe and feared that he would burn the house down.  She felt unsafe for the child and feared that the child would be taken away by the father again.  She also felt fear for the safety of her child born in 2010 to Mr D, that the father may harm that child or worse.

4. She is afraid of the father and, in the circumstances of this case, that fearfulness is not unreasonable.

5. The mother presently operates a business from which she earns a modest but not significant income. The mother said the child is doing well at school and is thriving.  The child is engaged in good activities and still remembers her father.  The mother acknowledged that the father loves the child.

6. In relation to contact, the mother was concerned about electronic communication but says she would be prepared to send some information and photographs of the child to the father at his last known address.

7. The mother said now that she has learned the father knows of her whereabouts, and that she suspected the father has hacked into her Facebook account (I make no finding to this end), she was likely to move again.

8. I accept the mother was frank, from her own subjective point of view.

Mr D

1. The mother had filed an affidavit by Mr D, but that affidavit was not relied upon as he was not available for cross-examination. 

The father

1. The father filed a response on 22 September 2011 in which he sought orders for ‘telephone communication while in custody’ and that ‘[the child] be able to spend time with her grandmother’.

2. That application was changed as indicated earlier in these reasons.  The father was initially not going to rely on any affidavits, however, when it was pointed out that he would need some evidence he relied upon his affidavit filed 6 April 2011 which was read into evidence.

3. The father gave evidence via a mobile telephone from C Town, Qld.  After some prompting he asserted that the material contained in his affidavit (referred to earlier) was accurate.  The father was not an impressive witness.

4. The father exhibited an aggressive demeanour, he talked over the mother from time to time, and he lacked insight and was in denial as to his past conduct.

5. The father said he was in a relationship with Ms A and she was pregnant to him.  When questioned about the involvement of police earlier this year the father denied any such event occurred in relation to his current partner but when pressed said an event occurred in relation to his former partner, Ms P.

6. The father asserted that he did not know that the trial was for hearing on 13 March 2014 and thought it had been adjourned until August 2014.  He relied upon an email he said was sent by the Independent Children’s Lawyer’s secretary.  It is clear on the evidence that the father had been informed of the proceedings being heard on 13 March 2014.  He received letters from the Independent Children’s Lawyer.

7. He had not filed any material and in so far as the orders were concerned he said it was a matter for the Court.

8. The father then disclosed that he knew where the child was living.  He was asked how he had discovered this information.  The father said he was informed by somebody about a year ago.  He said he could not remember who that person was nor could he even remember the gender of that person. The father obfuscated in relation to this evidence and I am satisfied that he knew that answer but chose not to provide it to the Court.

1. Similarly the father was asked about some photographs which he copied from the mother’s Facebook and the basis upon which he managed to gain access to the mother’s Facebook.  The father prevaricated in relation to that material.

2. When asked why, if he had known the mother’s address, he had allowed the proceedings to go on for a year or more with the Court endeavouring to find the mother’s whereabouts, the father’s explanation was risible in that he said he did not wish to say anything which would upset the mother.  His response did not make sense.

3. The father was cross-examined about the threatening letter he sent to Mr D in November 2009.  The father conceded he sent that letter but said it had to be read entirely to understand the context. The letter ended with the words:-[2]

   …The next time we meet it will not be attempt or GBH.  I give you my word, don’t fuck with my family.

   [2] Annexure C of the mother’s affidavit filed 19 November 2010.

4. The father denied that he ran after Mr D and threatened him with a hammer.   He said he threw the hammer at Mr D’s feet as he was seeking the return of the hammer.  Mr D (who did not give evidence and therefore no weight could be given to his evidence) had however asserted that the father had assaulted him in September 2009 at a Service Station.

5. The mother asserted that the father said to her in 2009 “I will burn his [Mr D’s] house down to the ground”. The mother gave evidence in her affidavit that this was a regular threat.[3]  The mother said that the father often told her that he would bash or harm Mr D.

   [3] Ibid annexure B paragraphs 7 and 8.

6. The father denied that he threatened to burn Mr D’s house down although conceded that he did in fact do so.  The mother sets out in her affidavit[4] a history of the father’s violence, abuse and controlling behaviour.  The father denied any physical violence to the mother but conceded that there was yelling.  He also conceded that on one occasion he threatened to set another woman onto the mother to bash her as he ‘didn’t bash women’.

   [4] Filed 25 October 2010.

7. The father was outraged in his evidence at the suggestion that he abducted the child on 14 July 2010.  The father said he took the child although when pressed as to when the child was to be returned he prevaricated.  I am satisfied that the father bullied or frightened the mother into giving the child to him at that time and took the child intending to retain the child irrespective of the impact on the child or the mother.

8. The father denied threatening to burn Mr D’s house down but did say that he said to the mother that he would ‘blow his f… house up’.

9. The father was questioned about the manufacture of methamphetamines at the house in which the mother and the child lived.  The father downplayed the impact of this upon the family. 

10. The father was not a reliable witness, he prevaricated and I treat his evidence with great care.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer relied upon the following evidence:-

   (a)Family report of Ms Q dated 12 July 2012.

   (b)Psychiatric report of Dr L dated 14 February 2013.

The Family Consultant

1. The report of the Ms Q (the “Family Consultant”) was read into evidence without objection.  The Family Consultant is employed by the Family Court and her qualifications were not challenged.  The Family Consultant interviewed the father and mother in July 2012.  Her recommendations were that, in the interim, the child spend no time with the father, and that the mother be assisted in providing the father with information about the child.

2. The Family Consultant was, sensibly, cautious about whether the child should be reintroduced to her father.  She observed:-[5]

   39.[The mother] in my opinion, made a valid point when she identified the potential risk of [the child] disclosing confidential information that may place all of their safety in jeopardy if she was to spend time with the father, even if supervised.  This risk cannot be stressed highly enough, and I am of the view that until there is confidence that [the father’s] intentions are genuine and will not place [the child] or her family in harm’s way, that no time, supervised or otherwise, should occur in the interim until further information and/or assessment by a psychiatrist can be obtained to clarify the level of risk, if any [the father] may pose to [the child] and her family.

   40.Furthermore, [the mother] was adamant that the thought of [the father] spending time with her daughter made her feel unsafe, and in my opinion, this is a reasonable response to have given her former partner’s historical behaviour and that of his family, specifically his brother.  It is therefore, unnecessary in my opinion, in the interim to cause [the mother] undue fear or anxiety about her or her daughter’s safety by having any provision of time or communication with [the father] or his family until the aforementioned level of risk, if any, is determined.   It is not in [the child’s] best interests to have her mother’s capacity to parent her to the best of her abilities compromised as a result of fear and anxiety.  This would likely have a detrimental effect on the well-being of [the child]. 

   [5] The Family Report dated 12 July 2012.

3. I accept the evidence and recommendations of the Family Consultant.

4. As a consequence of that report Dr L (“the Psychiatrist”) prepared a report in relation to the father.  That report was read into evidence.  There was no issue as to the qualification of the Psychiatrist. 

5. The Psychiatrist opined that the father did not suffer from any major psychiatric condition that would affect his ability to have any time with or parent the child.  The Psychiatrist went on to say that the risk to the child by the father was low.

6. Without in any way derogating from the qualifications of the Psychiatrist, I accept the submission of the Independent Children’s Lawyer that this opinion was based upon the substantial information provided by the father.  I am not satisfied that the father was frank with the Psychiatrist.  I am satisfied that he understated the threats that were made to the mother and to the mother’s partner, Mr D and understated his culpability or deflected responsibility for his culpability in terms of the matters which led to his incarceration and in terms of his violence to the mother during the course of their relationship.

7. As such I do not give great weight to the evidence of the Psychiatrist.

DISCUSSION

1. The first question for me to turn my mind to is whether the child is at an unacceptable risk in the future in terms of harm and violence.

2. Given the reliable evidence of the mother and the concessions by the father, I am satisfied that the father was violent to the mother and Mr D during and following the course of the mother and father’s relationship.

3. I find that the father removed the child from the care of the mother in July 2010 and the child was returned to the mother only in circumstances where a recovery order was made and that order was executed.

4. I am satisfied that the father threatened to burn down Mr D’s home and did so.  The father has expressed no remorse for that behaviour.

5. I am satisfied that the father, from time to time, threatened the physical well-being of Mr D including by way of letter and in statements that he made to the mother.  I am also satisfied that the father threatened Mr D in a letter from gaol and it was directed in a broader context than the father has asserted. 

6. It is not in issue that the father’s brother Mr G attacked Mr D and stabbed him with a knife causing him serious injuries.

7. I am satisfied that the father threatened Mr D with a hammer.

8. There is no issue that the father was sent to prison for manufacturing methamphetamines and, at least up to that time, had a serious drug habit.

9. In burning Mr D’s home down, the father exhibited uncontrolled rage.

10. The level of menace raised by the father over these years is chilling and severe.  The father is a man capable of violence in his uncontrollable rage and his anti-social behaviour.

11. In some ways this can be seen through the father’s aggressive demeanour in cross-examination.

12. The Independent Children’s Lawyer submitted that it may be difficult for the Court to conclude that there was an unacceptable risk to the child and the mother into the future.  Given the history of this matter, I disagree and I make that finding.  Given the evidence of the father’s behaviour, my concerns about the father’s evidence and his frankness, I am satisfied that the father does constitute an unacceptable risk of abuse to the child, the child’s mother (who is the child’s principal carer) and her broader family.

13. Even if I was wrong in relation to that aspect of my determination it is clear that the mother genuinely fears the father.  That is evident in the family report, the mother’s endeavour to hide from the father in these proceedings and the mother’s evidence given during the hearing.  Those fears, in all the circumstances, are reasonably held by the mother. 

14. Given my concerns about the reliability of the father’s evidence that undermines the conclusion raised by the psychiatrist.

15. In the Marriage of A (1998) FLC 92-800; 22 Fam LR 756 the Full Court comprising of Fogarty, Kay and Brown JJ said at page 768:-

    3.26We should say at this point, for reasons which we will expand upon later, that we think that the evidence here clearly established that there was such a risk to the children arising out of the circumstances of the assault and the possible connection of the husband with it and which were entirely unacceptable.

    3.27It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) FLC 92-692, which has some similarities with this case.

16. In Re Andrew (1996) FLC 92-692; 20 Fam LR 538 the Full Court said at pages 544 to 547:-

    … Reference was made to several authorities whereby the Court refused a parent access to a child. 

    In Russell v. Close Appeal SA45 of 1992 an unreported decision of the Full Court, (Fogarty, Baker and Lindenmayer JJ) delivered 25 June 1993), the father of a son aged eight and a daughter aged four had been refused overnight access to the children in circumstances wherein allegations of sexual abuse made by the mother were found to be unsubstantiated.  The trial Judge had refused overnight access on the basis:

    … that I am satisfied she [the wife] would use such occasions to make more allegations against him [the husband], and even if she had no valid ground at all to do so as to current events.  Thus, having heard the wife's evidence, there is a high probability of further accusations from her if the husband cared for the children overnight in the immediate future without a reliable witness being present ...

    The Court in Russell v Close said (at p 17):

    It is established that in considering the factors in s 64(1), in particular the nature of the relationship of the child with each of the parents (s 64(1)(bb)(i),), the custodial parent's care-giving capacity (s 64(1)(v), and 'the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child' (64(1)(va), an appropriate consideration is the custodial parent's belief that the child or children have been sexually abused whilst on access, the effect of that belief on them as the primary caregiver.

    Their Honours then cited with approval the decision of the Full Court in B and B (1993) FLC 92-357 at 79,780 wherein the Court stated:

    It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection, as primary caregiver, anxiety about the children's exposure to potential harm is likely to impact adversely on that parent's ability to care for the children.

    In Russell v Close, their Honours said:

    In upholding children's rights to protection from sexual, psychological or emotional harm the Court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's care-giving ability.

    In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children and consequent harm to the children, a subjective test is employed.  However, it must be shown that such belief on the part of the custodial parent is genuinely held.  Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt. 

    In Sedgley v Sedgley (1995) FLC 92-623 the Full Court (Lindenmayer, Kay and Moss JJ) set aside orders which had allowed the husband access to an eight year old child where the husband had over a period of years, intimidated the wife, failed to return the child at the end of access periods and who had, according to the trial Judge, "behaved in an intimidatory and bullying way, and shown no respect for Court orders ..."

    The Full Court said at 82,259:

    Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent's household may be a more compelling need for the child.

    Their Honours observed at 82,260:

    The decision to cut the relationship between a parent and child is one which ordinarily the Court takes only with considerable hesitation.

    Their Honours however concluded that the facts in Sedgley made it necessary to withdraw any further access.

    In Irvine (1995) FLC 92-624 the Full Court (Lindenmayer, Kay and Moss JJ) set aside orders granting the father of three children aged 13, 10 and 7 access. In that case the father had viciously assaulted the wife, and within a few days thereafter had deliberately set fire to the former matrimonial home destroying the premises and almost all of the possessions of the wife and children. He subsequently made threats to legal practitioners and was charged with two counts of threatening to kill the wife. The Full Court held that the trial Judge had failed altogether to consider the relevant question of the impact upon the wife as custodial parent, and through her upon the children of an access order being made in favour of the husband. Their Honours said at 82,273 :

    Given the extreme seriousness of the matters established against the husband in this case, and given that the children's custodial parent wholly opposed access, this seems to us to be a case where an access order ought only be made where there was compelling evidence that the welfare of the children required such an order be made.

In deciding whether it would be in the interests of the children to grant such access, the Court had to bear in mind the obvious effect the respondent's conduct must have had upon the custodial parent.

In Grant's case (1994) FLC 92-506 Purdy J discharged existing access orders relating to a father's access to children aged seven and five in circumstances where there had been violence between the husband and the wife and in circumstances where there was psychiatric and counselling evidence that any access would have a deleterious effect upon the health of the wife. Purdy J said at 81-259:

If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child, then the Court must take that into account in assessing whether access is for the benefit of the child.

In Brown v Pedersen (1992) FLC 92-271 the Full Court dismissed an appeal from the refusal by Mushin J to order the restoration of access by a father to eleven year old child. In that case there was significant evidence as to the disturbing effects that access had had upon the child, and of the child's wishes not to have any access take place.

It was urged upon us that the present case could be distinguished from all of the recently reported cases involving refusal of access on the basis that here was a case of a child with a satisfactory relationship with its parent, about which parent there were no allegations accepted by the Court that would leave the child at risk in the presence of the parent.

Counsel for the appellant drew our attention to a passage from the unreported judgment of the Full Court (Fogarty, Baker and Butler JJ) in Marra and Marra Appeal SA 44 of 1992 delivered 8 September 1993).  Marra's case was concerned with whether two children aged 13 and 11 should be allowed to travel together to Italy for access when their Australian mother feared that they would not be returned.  Their Honours said at p 34:

"The second aspect, namely the wife's genuinely held fear in any event that this may occur also requires careful attention.  It is now well established that the genuinely held beliefs or concerns of the custodial parent as to access and the circumstances of access are relevant considerations in deciding what access to order:  see s.64(1)(bb)(i) & (v) and the recent decision of the Full Court in Russell/Close  (unreported, 25 June 1993).

However, the relevance of that is not that it gives to the custodian a veto.  The relevance is the extent to which it may have an adverse effect upon the welfare of the child.  That is, its relevance is that the concerns of the custodian may affect his or her capacity as a custodian, and thus have an effect upon the welfare of the child.  Those concerns, although they should be acknowledged, may have little weight where that parent's caregiving capacity will not be discernibly impaired."

1. Their Honours went on at page 547 to consider N and S (1995) 19 Fam LR 837; [1996] FLC 92-655 where Kay and Hilton JJ cited with approval the judgment of Fogarty J in the Marriage of Sampson (1977) FLC 90-253 where his Honour considered whether a six year old child should have access with his father in circumstances where the mother did not accept that the child should have any connection with his father. His Honour said at 76-358:-

   7.In cases where the attitude of the custodial party is genuinely but unreasonably held, the relevance, and in my view the only relevance, of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the child.  Similarly where the non-custodial party is prepared and able to assume the duties of a custodian and is prepared to agree to access to the other party that circumstance may be of such overall advantage to the long term welfare of the child that it may, taken with all the other relevant factors, justify the Court in altering the custodian position.

2. I am satisfied that the impact of the father’s violence on the mother has been so profound that it would severely impact on her ability to parent.  This is clear from the family report and from the mother’s reaction to these proceedings and the evidence she gave during the hearing.

60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

1. The child has a meaningful relationship with the mother.  The child is likely to benefit from a meaningful relationship with the father however, given the risk of abuse and the impact of the father’s behaviour on the mother it is likely to have an overall negative effect.

60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

1. I repeat the comments I made earlier about the father and violence.

2. There is no evidence before me that the child is in need of protection while in the care of the mother.  However, given the father’s history of violence, drug production, controlling abusive behaviour of the mother, conviction for arson in respect of burning down Mr D’s home I am satisfied that there is a risk to the child’s safety in the care of the father. 

Section 60CC(3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. The child is six years of age and her views have not been sought.  In the family report the mother says the child has no knowledge of the father although, in evidence the mother says the child has some memories of the father and has seen photographs of him.

Section 60CC(3)(b) the nature of the relationship of the children with:

(i)each of the child’s parents; and

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

1. The child knew the father and the paternal grandmother, although given the surrounding circumstances, there was not much evidence of contact in recent times.  The father has not seen the child since about August 2010.  I accept the evidence of the mother that the child is well settled into the family comprising of her (the mother), Mr D and their three year old son.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child;

1. The mother does not wish for the father to have any time with the child.  The mother is afraid of the father and has concerns for the safety of herself, the child and the mother’s family.

2. It is unlikely that the mother would encourage a relationship with the father. 

Section 60CC(3) (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Any change to the child’s circumstances may have a profound impact on the mother’s ability to provide for the child and given that the mother is the child’s primary carer that would not be a satisfactory outcome.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. I reiterate that which I said about the mother’s fears of the father and his violence.  In addition as the mother lives somewhere in New South Wales, there would need to be airfares to and from Brisbane and arrangements made with a Children’s Contact Service for the father to spend time with the child.  No enquiries were made by the father in that respect.

2. The mother does not have the funds to fly to Brisbane with the child on a regular basis although the father has indicated he would be prepared to pay half, if not all, of those fares, if pressed.

3. A further concern is that raised by the Family Consultant as to the child inadvertently disclosing to the father the address or whereabouts of the mother and her family. I accept that concern is real and I am not convinced that the father would not use that time to trawl for such information.

Section 60CC(3) (f) the capacity of:

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

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

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

1. The evidence is that the mother provides well for the needs of the child.  The father makes no complaints in that respect.

2. It is not clear as to the father’s circumstances in terms of his ability to care for the child.  He did not file any recent affidavits and he is living in accommodation with his mother and younger brother.

3. Notwithstanding the views of the Psychiatrist the father has demonstrated explosive rage from time to time and a lack of insight from time to time.  I have concerns about his capacity to parent.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The child is very young, has limited knowledge of her father and any re-introduction would need to be staged over a period of time and will probably need the support of her mother which is unlikely to arise.

Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration in these proceedings.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The father’s approach to the child and the mother during 2009 and 2010 and prior to that time was plainly awful.  He was involved in drug production, acts of violence, controlling abusive behaviour of the mother and then burnt down her partner, Mr D’s, home.

60CC(3)(j) any family violence involving the child or a member of the child's family;

1. In this regard I repeat the matters I have set out earlier.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i)       the order is a final order; or

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

1. This is not a relevant consideration in these proceedings.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The mother is fearful of the father and is fearful of the court process.  The orders sought by the father would invariably lead to further applications for different time and communication between the child and the father.  This would impact significantly on the mother and she may well hide as she has done in recent years.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;

1. I have had regard to all of the evidence filed in court and the events both before and after separation.

Extent to which the parent has fulfilled its duties as a parent

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

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

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

(ii)    to spend time with the child; and

(iii)   to communicate with the child; and

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

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

(ii)    spending time with the child; and

(iii)   communicating with the child; and

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

1. There is no evidence that the father has contributed financially to the child and the father has spent a significant period of the child’s life incarcerated for various offences.

CONCLUSION

1. There was no issue as to parental responsibility and residence.  This was not a matter where there could be an order for shared parental responsibility.

2. The factual matrix is such that any time the father spends with the child is problematic and exposes the child to the risk of exposure to violence and abuse and exposes the mother and her now family to violence from the father and his family. 

3. Given all of the facts and circumstances in this case, I am satisfied that it is appropriate to make orders as sought by the mother, namely for the father to spend no time and have no direct communication with the child, except as the ‘light on the porch’ as suggested by the mother, but not otherwise.

4. Given the father’s unreliability, violent and anti-social behaviour combined with his propensity to act out his threats, both the mother and child ought to have the protection of an order pursuant to s 68B of the Act.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 3 April 2014.

Associate:     

Date:              3 April 2014