Larosa and Humphreys

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAROSA & HUMPHREYS

[2019] FCCA 1659

Catchwords:
FAMILY LAW – Parenting – dispute about parental responsibility and about the time the father should spend with a child aged 4 – where there are concerns about the father’s mental health, perpetration of violence, alcohol consumption and parenting capacity – where the child would be at unacceptable risk of harm in the father’s unsupervised care – where the mother does not seek a no time order but proposes an order for supervised time on six occasions each year – where the court is prepared to respect the mother’s wish for the child’s relationship with the father not to be completely severed notwithstanding a concern that this order may result all too soon in further litigation – mother to have sole parental responsibility for the child.

Legislation:

Family Law Act 1975 ss.60CC, 61DA, 65DAA, 65DAC

Cases:

Mazorski & Albright (2007) 37 FamLR 518

Applicant:

MR LAROSA

Respondent:

MS HUMPHREYS

File Number:

NCC 2164 of 2017

Judgment of:

Judge Terry

Hearing dates:

5, 6 & 7 June 2019

Date of Last Submission:

7 June 2019

Delivered at:

Newcastle

Delivered on:

19 June 2019

REPRESENTATION

Solicitors for the Applicant:

Bell & Johnson Solicitors

Counsel for the Applicant:

Mr Mueller

Solicitors for the Respondent:

LBK Solicitors

Counsel for the Respondent:

Mr Boyd

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Town A

ORDERS

The mother shall have sole parental responsibility for the child [X] born … 2015 (“the child”).
The child shall live with the mother.
Subject to Orders (4) & (5) the child shall spend time with the father for a period of two (2) hours on the first Saturday of each February, April, June and August, the Saturday immediately prior to Father’s Day and the third Saturday in December with such time to take place at Town A Children’s Contact Centre at such times that Town A Children’s Contact Centre nominates.
If Town A Children’s Contact is unable to facilitate time on the exact weekend but can facilitate time on a reasonably proximate weekend then the time shall instead occur on the weekend that Town A Children’s Contact Centre is able to provide the supervised time.
If Town A Children’s Contact Centre is or becomes unavailable the time shall be supervised by an independent person or organisation nominated in writing by the mother.
The father shall pay the costs of supervision.
If the father fails to attend two consecutive visits and fails to provide the mother with a medical certificate or proof that he has been prevented from attending due to a genuine emergency then orders (3) & (5) are discharged and the child shall spend time with the father as agreed by the mother in writing.
Each party shall advise the other of their residential address and of any change to that address and shall provide a current contact telephone number to the other parent and advice of any changes to that number.
The child shall have electronic communication with the father by Facebook or such other medium as may be agreed between the parents on the second and fourth Sunday of each calendar month (provided that the father is not otherwise spending time with the child on that weekend) between 10.00am and 10.15am or at such other times as may be agreed between the parents. To effect this time, the father shall initiate the time by ringing on the number provided pursuant to Order (8) above and the mother shall ensure that the child is available to speak with the father at that time.
The mother shall forthwith notify the father in the event that the child is hospitalised, seriously injured or becomes seriously ill and shall advise the father of any school attended by the child.
The mother shall provide any authority necessary to allow the father to obtain at his request and expense copies of any school reports, merit certificates, school newsletters, applications for school photographs or other material usually provided by the school to parents.
Neither party shall denigrate or speak badly of the other parent in the presence or hearing of the child or allow the child to remain in the presence or hearing of any other person denigrating or speaking badly of either parent.
The mother may obtain a passport for the child and travel internationally with the child notwithstanding that the consent of the father has not been obtained.
Pursuant to s.62B of the Family Law Act 1975 information about the family counselling services, family dispute resolution services and other courses, programs and services available is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2164 of 2017

MR LAROSA

Applicant

And

MS HUMPHREYS

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns [X] aged 4, and more specifically it concerns what orders should be made about [X] spending time with the father and whether the mother should have sole parental responsibility for him or whether the father should share in that.
The parties were in a relationship between 2011 and January 2017 but never lived together.
[X] was about 21 months old at the time of separation. The mother was not opposed to him spending time with the father but had reservations about the father’s parenting capacity and would not agree to unsupervised time and in July 2017 the father filed an application for parenting orders.
Toward the end of 2017 the father spent some time with [X] supervised by his mother and sister and in 2018 he began to spend time with him supervised at a contact centre, but there the parties remained stuck and ultimately the matter was listed for trial before me in June 2019.
The father proposed that [X] commence spending unsupervised time with him, beginning with a few hours on one day each alternate weekend and leading eventually to overnight time each alternate weekend and time during the school holidays.
The father said that he wanted to have a meaningful relationship with his son and that this could not occur if he only saw him supervised at a contact centre. He said that there was no evidence that [X] would be unsafe in his unsupervised care and that the mother was gatekeeping and was letting her personal resentments arising out of the relationship cloud her judgment about whether it is safe and appropriate for [X] to spend time with him.
The father said that the fact that he had spent unsupervised time with his children from a previous relationship for many years and that they had come to no harm in his care spoke volumes about his parenting capacity.
The mother proposed that [X] spend time with the father at on six occasions each year supervised by an independent person or organisation agreed by the parties. She said that due to the father’s unpredictable behaviour, inability to control his temper, drinking and mental health issues she would fear for [X]’s safety if he spent unsupervised time with the father.
She said that she would be particularly worried if the father took [X] to the paternal grandfather’s farm where he was currently living because the home on the property had pest infestation issues, there was an accessible shed full of dangerous machinery and poisons and the father and paternal grandfather spent nearly every evening at a nearby pub.
The mother said that she did not want to prevent [X] having a relationship with his father and was proposing supervised time rather than no time so that if the father dealt with his issues a bond would exist between father and son which could be built on.
At the end of the hearing, the Independent Children’s Lawyer supported the mother’s proposal save that he proposed that [X] have twelve rather than six supervised visits with the father each year and that he have FaceTime communication or the like with him twice per month.

The evidence

The father relied on his affidavit filed on 17 May 2019.
The mother relied on her affidavit filed on 28 May 2019 and the affidavits of her daughter Ms B filed on 17 May 2019, her daughter Ms C filed on 5 July 2018, the paternal grandmother Ms D filed on 29 May 2018 and the paternal aunt Ms E filed on 17 May 2019.
A family report dated 20 November 2018 was prepared by Ms F, a Regulation 7 family consultant.
All of the witnesses were cross-examined.
The mother filed two affidavits, one a very lengthy one filed on 16 May 2019 and the other a somewhat shorter but still not terribly short one filed on 28 May 2019. She sought to rely only on the second affidavit and that was a sensible decision but both affidavits contained a large amount of unhelpful and irrelevant material.
The father’s counsel emphasised both during the hearing and during submissions that the court needed to look for “facts” to determine whether the father posed any risk of harm to [X] and must be careful not be swayed by emotion or speculation. I agree with that submission to this extent; I do need to be very careful how I deal with evidence about people’s feelings being hurt and people feeling let down by the other party or feeling unsupported in the relationship, and there was quite of bit of this is in the mother’s affidavit in particular.
Examples of it are the mother saying that she felt hurt about the father failing to attend a new born photo shoot for [X] (he said that he didn’t attend because he didn’t agree with the child being naked in the photographs), deciding not to accompany the rest of the family on a visit to the Town G and playing hobbies with a friend rather than interacting with her when she visited him on the Region H.
That kind of evidence is irrelevant when it comes to determining parenting arrangements for [X]. The father had his reasons for his decision about the photo shoot, and his decisions about whether to go to the Town G and to play hobbies rather than chat with the mother may help to explain the demise of the relationship but they are not matters which lead to a conclusion that the father cannot be trusted to care for his child.
I am also conscious of the fact that the affidavits of the paternal aunt and the paternal grandmother, while they contain some very helpful material, also contain a good deal of material which is in the nature of opinion i.e. their opinion about the father.
I am alive to these issues, but I am also alive to the fact there is a good deal of wheat among the chaff in all the affidavits filed in the mother’s case.

Background

The father is 42 and the mother 43. They met at a party in Town A, commenced a relationship in 2012 and separated on January 2017. They never lived together but they spent time together regularly and there is one child of the relationship, [X], born on … 2015.
The father and mother are both what I would term country people. The mother lived in Town J throughout the relationship and continues to do so. The father spent time during his childhood with his father who was then living in Town K and he went to school and University in Town L. The paternal aunt currently lives in Town M and the paternal grandmother in Town N.
The father was previously married to Ms O and they have two children, [P] born in 2002 and [Q] born in 2005. The father and Ms O separated in 2009 and the father thereafter spent regular time with [P] and [Q].
When the parties commenced their relationship the father was living on the Region H to be close to those children. They spent time within him throughout the relationship and sometimes accompanied him on visits to the mother’s home and on holidays he spent with the mother and her children.
The mother was previously married to Mr R and they have three children: Ms B born in 1996, Ms C born in 1998 and [S] born in 2004.
The mother and Mr R also separated in 2009 and Ms B, Ms C and [S] have lived with the mother since their parents separated.
Shortly after separation, these children were in the car with Mr R when he had a catastrophic motor vehicle accident. Ms B and Ms C escaped relatively unscathed but Mr R suffered injuries which means that he is now in a wheelchair and [S], who was 4 and not properly restrained in the car, suffered brain damage and is a quadriplegic.
Mr R has spent time with these children since the accident but it has largely been in the form of seeing them at the mother’s home.
During the relationship the mother travelled to the Region H to spend time with the father and the father travelled to Town J to spend time with the mother and also to visit the paternal grandfather who now lives on a property just outside Town T. The parties went on a holiday together to Country U and some family holidays took place.
The mother at one time contemplated moving to the Region H to live with the father and in June 2016 she obtained a court order permitting her to do so but in the end she chose not to relocate and at the end of 2016, shortly before separation, the father relocated to Town V.
The father set out in his affidavit in some detail the time he said he spent with [X] after his birth and I accept that he did spend time with him but it was an adjunct of his relationship with the mother. He would see [X] when he visited the mother and keep an eye on him sometimes if the mother needed to run errands. He would also see [X] when the mother visited the Region H and he cared for him during the day for a week in 2016 when the mother stayed on the Region H to do job training.
The parties were prone to argue and there were occasions when their visits to each other ended abruptly following arguments. The final time this occurred was during a family holiday in Town G in … 2017 in which all six children took part. On … 2017 the parties had a blazing row and the mother left late at night with her three children and [X] and drove back to Town J and the relationship never resumed.
There was a dispute about the extent to which the father asked to spend time with [X] in the first couple of months after separation but no dispute that the mother told the father about an operation [X] was to have in Town W in March 2017 and that the father spent three hours with [X] at Ronald McDonald house.
The mother told the father that she wanted a parenting plan in place before further time occurred. The parties attended mediation and in May 2017 when [X] was just over 2 they agreed that [X] would spend time with the father supervised at the Town A Children’s Contact Centre.
The parties took part in the intake procedures at the contact centre and in accordance with their normal practice the contact centre trialled [X] separating from the mother and spending time with a support worker. They decided that [X] was too distressed at being required to separate from the mother to allow supervised time to occur and they put supervised time on hold and suggested that the mother seek some support and some counselling for [X].
The mother did not organise any counselling. In cross-examination, the father’s counsel was critical of her for this but I accept the mother’s evidence that she went to her GP and discussed the issue with him and that he expressed the view that [X]’s reluctance to separate from the mother and spend time with a support worker who was a stranger to him was just normal age-related behaviour which would resolve in time and that for this reason she did not pursue any sort of counselling.
In July 2017 the father filed an application for parenting orders and on 23 October 2017 the parties consented to orders that the father spend time with the child supervised by the paternal grandmother.
The paternal grandmother supervised three visits in November 2017 but the last one did not end well and she declined to be further involved. In December 2017 there was a visit supervised by the paternal aunt. The parties then again pursued time occurring at the contact centre. They had better luck this time and supervised time at the contact centre began in February 2018 and was continuing at the time of trial.

The parties circumstances

The father was living in Town V when the parties separated and he continued to do so until May 2018 when he moved back to the Region H. He made a considerable effort to attend the supervised visits in Town A while living at a distance.
In November 2018 the father commenced living with the paternal grandfather on his property outside Town T which reduced the travel distance between the parties to about one to one and half hours depending on the road used.
The mother raised safety concerns about the paternal grandfather’s house. She alleged that there was a rodent infestation in the house and that there was a shed close to the house which was readily accessible from the house which contained dangerous items and poisons.
The father said that the rodent problem had been dealt with and that he had improved the fencing to create an effective barrier to the child reaching the shed.
The evidence in the case is not sufficient to allow me to make findings about the state of the property and in any event as will become apparent the case does not turn on the issue of whether the property is unsafe for the child.
The paternal grandfather is 72 and has health issues and the father said that he had moved to the property to care for his father and to help out on the farm. However the father is not in receipt of a carer’s pension, he is in receipt of Newstart Allowance, and when he was asked about the paternal grandfather’s health in cross-examination he said that he had recovered.
The father said that he intended to stay at the property for as long as his father needed his support.
The mother lives in Town J with [S] who is now 14, and [X]. Ms B and Ms C have both left home and live at Town X and on the Region H respectively.
The mother qualified as a health care worker in … 2017 but she is not working at present. [S] requires a very high level of care and although he attends school and the mother has some assistance with his care, it is still a time consuming task and of course [X] is only just 14.
The maternal grandparents did not give evidence at the trial but they live in the Town A area and are a support for the mother.

[X]’s best interests

Any orders I make about [X] must be orders determined by treating his best interests as the paramount consideration and s. 60CC (2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations are in s. 60CC (2) and the first of them is the benefit to the child of having a meaningful relationship with both of his parents.
[X] will not have a meaningful relationship with his father, in other words a relationship which is significant, valuable and important to him,[1] if he only spends supervised time with him on six or twelve occasions each year. Even if Face Time is added to the mix, that kind of interaction will not allow the father to play a nurturing and caring role in [X]’s life. He would be more like a fond uncle with whom the child’s plays and talks from time to time.
[1] Mazorski & Albright (2007) 37 FamLR 518
The second primary consideration is the need to protect the child from physical or psychological harm as a result of being subjected to or exposed to abuse neglect or family violence. Pursuant to s. 60CC (2A) this consideration takes priority over the first primary consideration.
The father’s case, which his counsel pressed very strongly, was that the mother had failed to make out a case that [X] would be at risk of harm in his care and that there could be no justification for sidelining him in [X]’s life, and to deal with that submission and also to come to an overall determination about where [X]’s best interests lie I must make findings about the additional considerations in s. 60CC (3).

I am not going to go through the additional considerations sequentially as I sometimes do because quite a number of them are unhelpful.
The first additional consideration is the views of the child and the weight to be given to his views. [X] has speech difficulties and neither party suggested that he was expressing a view about parenting arrangements and even if he was he is too young to express a view on which weight could be placed.
I must consider the extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child. The father owes child support arrears and is currently paying at best $25.00 per week. The mother is aggrieved about the non-payment of child support but there was no evidence that this was motivating the mother to oppose time or that a desire to reduce his child support liability was motivating the father to seek time.
Whether child support is being paid can also be a relevant issue if there is a dispute about who is to pay for travel costs associated with the child spending time with one of his parents but that was not raised as an issue in this case.
I must consider the extent to which each parent has sought to spend time with the child, communicate with the child or be involved in decision making about the child. The mother said that the father did not do much about pursuing time in the first few months after separation, but whatever the truth about that he took part in mediation in May 2017 and commenced proceedings in July 2017 and has been pursuing time since so this consideration does not assist me.
Findings about the likely effect of a change in the child’s circumstances hinge on other findings I make about the s. 60CC (2) & (3) matters. If the father is a safe caring parent then a change which sees the child spending the time with him as he seeks would be beneficial for the child. If he isn’t then that change would be detrimental and have a severe impact on the mother.
I must consider the practical difficulty and expense of the child spending time with a parent. The father and mother live one to one and a half hours driving distance apart and they have lived much further apart at various junctures and might do again, but the distance between them, the amount of travel the child might have to do to spend time with the father and the cost of that travel were not raised as issues at trial.
The cost of supervision, which the mother proposed the father pay for, was also not raised as an issue at the trial. The father did not argue against the proposition that if he was required to pay for supervision he could do so.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents but that does not assist me as a separate consideration.
The first additional consideration which does assist me is the nature of the child’s relationship with each of his parents and any other relevant person including a grandparent of the child.
The mother is a good and caring mother and she is [X]’s primary attachment figure.
[X] recently commenced pre-school and he successfully separates from his mother to do that and to spend time with his father at the contact centre. His reluctance to separate from her when he was two was understandable given his age. [X] and the mother do not have an unhealthy enmeshed relationship.
The family report writer who saw the parties in October 2018 when [X] was 3 ½ noted that he was anxious at first when he was introduced to the father at the observation session and kept looking at the door from time to time but that he relaxed with his father. She said that:
Mr Larosa spoke quietly with [X], explained why he was seeing him and [X] interacted with the father until the observation ceased. He hugged his father when he left.[2]
[2] Family Report paragraph 76
The contact centre notes establish that [X] is settled during his time with his father, that the father is attentive to [X]’s needs and that [X] is responsive to him including sitting close to him and hugging him.
The parents had an on-off relationship. [X] does not have the experience of the father being a constant figure in his life before separation and he saw very little of the father in the first year after separation. However he now knows the father from the contact centre visits and he has adjusted to separating from his mother to attend pre-school upon her assurance that she is coming back. This suggests that if the father was otherwise found to be a capable and caring parent and time was increased slowly [X] should be able to cope with spending unsupervised time with the father.
[X] has five siblings and he has a good relationship with them all. Ms B and Ms C spent extensive time with him when he was younger. He has lived with [S] all his life and the family report writer noted that he accepted [S] as he was. [P] and [Q] also spent time with [X] when he was younger and he continues to see them from time to time. They are now estranged from the father but the mother has a friendly relationship with their mother and that has been a conduit to time occurring between [X] and [P] and [Q].
[X] has a large extended maternal family and is able to spend time with them through the mother.
The father is currently on very poor terms with the paternal grandmother and the paternal aunt but [X] maintains a connection with them through the mother. He has met his paternal grandfather who visited the mother’s house during the relationship but he has not seen him recently.
The next additional consideration of relevance is the capacity of each parent to provide for the needs of the child including his emotional and intellectual needs
The father asked me to carefully take into account that he separated from [P] and [Q]’s mother in 2009 and spent extensive time with those children thereafter. He was trusted by their mother to take them everywhere and they never came to any harm in his care and it was his case that this must put beyond doubt his capacity to safely care for [X].
The mother gave some hearsay evidence about complaints these children had made to their mother about such things as the father leaving them alone at a Shopping Centre when he went to get a massage or allowing a stranger to be in his unit but it would be dangerous for me to place weight on such evidence which is highly likely to be incomplete or inaccurate both due to its age and its hearsay nature, and those children’s mother was never been concerned enough to try and stop the father spending time with those children.
I do take into account the fact that the father historically spent time with [P] and [Q] and I also have to be careful what I do with the fact that the father is currently estranged from them.
[P], who is now 17, told the father in July 2017 that he didn’t want to see him again and he hasn’t and has also cut of all communication with him. [Q], who is now 13, saw the father in August 2017 and continued to have some communication with him until February 2018 but she has since refused to see him or speak to him.
I need to bear in mind that there could be issues peculiar to these children which has caused this breakdown and I need to be careful not to assume that the father is a bad parent because of the breakdown, but the issue is not irrelevant, because the father’s capacity to alienate people and lose relationships is part of the picture about the father.
Another part of the picture about the father is the evidence about him being violent to others and having anger outbursts.
The paternal aunt said that the father was aggressive and verbally abusive to her as a child and that he would push her over and shove her. She described an incident which happened when she was older where the father threw her out the front door and over the stairs and straight into the front lawn and another incident where the father pinned her to the floor by the throat and attempted to strangle her causing bruising. She also described an occasion when he threatened to stab her while holding a knife.
The paternal grandmother said that the father had been verbally abusive to her since he was his early twenties and described an incident in August 2003 when the father was physically abusive. She said that he demanded a share of her inheritance from her mother and flew into a rage, grabbed her by the throat and pinned her up against the outside wall of the unit block.
The paternal grandmother said that this was the only time the father physically assaulted her but that there was other verbal abuse and that she always felt the need to be very cautious about what she said and did around the father in case he was provoked into an outburst.
Interestingly when the father’s counsel was cross-examining the paternal grandmother he put it to her that the father “touched you but didn’t grab you around the throat” but leaving that aside the father would have me believe that this evidence is untrue and simply indicates that his mother and his sister have maliciously decided to gang up on him.
The problem for the father is that there is uncontested evidence in the case which demonstrates his capacity to behave violently, threaten violence and be verbally abusive and in the light of that evidence I cannot refuse to accept the evidence by the paternal grandmother and the paternal aunt.
The father said that there was no family violence in his relationship with the mother and at worst they had arguments which resulted in the mother getting up and leaving. However the mother described an incident in Country U where the father was intoxicated and was screaming and out of control. She said that he flicked a cigarette into the bed which burnt her hand and the sheets. He then picked up outdoor furniture and began throwing it and threw a chair off the balcony onto the ground which was some distance below as the parties had an upper level apartment. She said that the resort called the police.
During cross-examination the father denied that the police were called but admitted that there was an argument, that he was intoxicated and that he threw a chair off the balcony and I have no reason to believe that the mother invented the balance of the evidence she gave about this incident.
The relationship between the parties ended on 8 January 2017 after the parties argued and the mother went into the bathroom to attend to [S]. The father forced the door open and pointed his finger in the mother’s face and called her a fucking bitch and I accept that she was somewhat fearful. The father largely agreed with this account although he said that he immediately regretted his behaviour.
There are many examples of the father behaving in an abusive and threatening way to others after he and the mother separated.
In February 2018, after the father commenced spending time with [X] at the contact centre, he sent the paternal grandmother the following email:
I visited [X] at the contact centre on Saturday (given it’s now the only option I have to see my son). He was kicking & screaming & calling for his mother for the 1^st 8-10 minutes. Managed to settle him down though and spend the 2hrs with him. It’s not a very nice place with limited resources & the visiting room is quite small. I got to mingle with a few other dad’s before & after my visit with [X]. They have been accused of raping their kids, partners, & other heinous crimes…Not sure I’m willing to put [X] or myself through that again or any further stress.
You and Ms E are disgusting human beings for sticking your noses into my business, telling lies & medling. I no longer want anything to do with either of you!
Don’t bother replying. I am blocking your number.
You’ll have the remaining $2,000 when I have it. I have had to pay substantially more to my solicitor given your stupid letter’s, etc.
Ps. Go Fuck Yourself!!![3]
[3] Annexure “A” of Ms D’s affidavit filed on 29 May 2018.
The father admitted during cross-examination that he sent this email.
There was no dispute that on 16 November 2018 the father sent some of the documents which had been filed in the family law matter to various people and he also sent them messages saying that a crime had been committed and that those involved were going to face charges.
There was no dispute that on 17 November 2018 the father phoned the maternal grandmother and said that he had a 75 page document containing evidence that crimes had been committed. He said that he wanted to let the maternal grandparents know that people would be going to jail on Monday and he mentioned the mother, Ms B, Ms C, [X], Mr R and Ms E. He also mentioned the maternal grandmother’s health issues which upset her and caused her to upbraid him although he attempted to call back and apologise for that.
On 28 November 2018 the father filed an 81 page affidavit. It included headings such as:
Ms B and Ms C abuse towards Ms Humphreys and myself.
Ms C and Ms B Family Violence and Abuse of [X], Ms Humphreys and myself.
[S]’s 200kg Electronic Wheelchair and potential Abuse/Neglect of [X].
Ms Humphreys’s ongoing Abuse toward Me and [X].
The father did not seek to rely on the majority of these allegations at trial.
There was no dispute that on 2 December 2018 the father sent an email to his sibling Ms Y who is not involved in these proceedings telling her that he intended to sue his mother for defamation and that she was a liar. When Ms Y did not respond the father sent her an email telling her that [P], [Q] & [X] were being abused and subjected to family violence at the hands of the paternal grandmother and paternal aunt.
There was no dispute that in December 2018 the father sent threatening messages to his former friends Mr Z and Mr AA. The mother said as follows about the threats to Mr Z:
I have seen a text message Mr Larosa sent to his former friend Mr Z, whom Mr Larosa called “Mr Z”, in December, 2018. It said “Mr Z you are no longer Godson to my son [P].” He later went on to say “There’s the truth, motherfucker. Stay the fuck away from my son or you’re a dead man.” In the same text message Mr Larosa said “Stay away from my son period!! Or I’ll blow your fucking head off cunt.” Mr Larosa also sent Mr Z copies of affidavits filed in this case, as he has done to numerous other people. Knowledge of this message, sent quite recently, meant I continue to have concerns about Mr Larosa’s mental health, and his capacity to control his anger…[4]
[4] Paragraph 92 of the mother’s trial affidavit.
She said as follows about the threats to Mr AA:
Another friend of Mr Larosa, Mr AA also received threatening messages from Mr Larosa on the 12^th December 2018 saying, “You decide mate? If I don’t hear from you tomorrow you’re in the same boat as Mr Z. I will not tolerate this shit any longer! Mr Larosa.”
Mr AA replied, “What the fuck are you talking about?”
Mr Larosa replied, “Read mother fucker. I’m serious!!! If need be ill be on your fucking doorstep!!!” and “Remember if I hear you are anywhere near my kid’s you’re a fucking dead man!”…[5]
[5] Paragraph 105 of the mother’s trial affidavit.
The family report writer said that the father became increasingly agitated and aggressive during the family report interviews in November 2018 when asked to discuss future directions and I accept her evidence. She also said in the report that she received a telephone call from the father following the family report interviews and that during the conversation he was “emotional and unable to self-regulate".
I have no reason to disbelieve this evidence and it is made entirely credible by the fact that at trial on 5 June 2019 evidence was given that either very late the previous Thursday night or in the early hours of the previous Friday morning the father made calls to the mother, paternal aunt and paternal grandmother because he was upset about the content of their affidavits.
The father left voice messages for the mother and the paternal aunt.
The mother said that the father’s voice was slurred as if he had been drinking.
When the mother’s counsel sought to elicit from the paternal aunt details of the message the father left for her the father’s counsel asked that the message be played, which did not assist the father’s case. The message began with the father saying “Hey arsehole” and ended with him saying “We don’t want to hear from you, we don’t want to see you, you can go and get fucked.”
There is ample evidence that the father:
i)Has committed acts of family violence (for example by assaulting the paternal grandmother and paternal aunt, throwing the chair off the balcony and committing other acts of property damage in Country U and smashing the door open and confronting the mother with the words “Fuck you” and pointing a finger in her face in Town G).
ii)Lashes out with abuse, threats of violence and threats of retribution if things don’t go his way (for example the messages to Mr Z and Mr AA and some of the messages to the paternal grandmother and the paternal aunt).
iii)Is unable to self-regulate, because some of his actions, including the calls he made late last Thursday night and early last Friday morning, were damaging to his case.
The family report writer said that the father’s voice sounded slurred when he rang her and the paternal aunt and the mother said that his voice sounded slurred in the messages he left them and a conclusion to that effect is open on the recording I heard, and that leads into another issue for the father, the allegations about his alcohol use.
The father said that there was no merit in a claim that he had an alcohol problem. He said that he had only one DUI conviction and that was when he was 19 and that he had done a CDT test and a liver function test which did not indicate regular excessive drinking.
However when the father was asked about the phone calls he made the week prior to the trial he at first said that he may have made calls but he didn’t remember what he said and when he was asked if that was because he was intoxicated he said:
Actually, I was
The father gradually began to have some recollection of the calls. He said that he made them because he had not long received the affidavits and was upset about what was in them. He said that he began drinking and then made the calls.
When he was pressed further about this the father said:
What I do in my own time shouldn’t affect the time I have with my son
The father admitted that the paternal grandfather liked to go to the Town BB pub which was about 20 kilometres from the farm. He said that they went there 2-3 times a week and that they were there from about 4.30 to 6.30pm. The mother said that they went every day.
The mother is not there to see what happens and I cannot resolve exactly how often the father goes to the pub or how long he and the paternal grandfather stay there or whether the father becomes intoxicated and drives while over the limit but there are two relevant issues here.
One is that there is clear evidence that the father drinks irresponsibly at times and that his drinking can be a precursor to him being abusive and behaving a dysregulated way or even being violent, as happened in Country U.
The other is that the father was not a witness of credit. I cannot expect the mother to believe what he says about his drinking given her experiences with him, and as a result of what happened to her children when in the care of Mr R the mother is peculiarly susceptible to fear about what might happen as a result of irresponsible driving.
The mother became tearful in the witness box on a number of occasions and one was when I asked her about [S]’s prognosis. I am satisfied that she would find it extremely difficult to send [X] to spend unsupervised time with the father while he lives at the farm because of his attendance the pub.
Another issue relevant to the father’s parenting capacity is his mental health.
The father made only one reference in his affidavit to an issue to do with his mental health. He said that in March 2018 he was feeling overwhelmed and saddened by the breakdown of his relationship with [P] and [Q] and about not being able to spend time with [X]. He said that he was sweating a lot and experiencing anxiety and he went to his GP who put him on anti-depressants.

The mother said that the problem was much more extensive.
The mother said and I accept that on occasions during the relationship the father would call her in the night after having broken out in sweats and say that he was anxious and unable to sleep and that she would have to remain on the phone with him for hours.
She said and I accept that when they together the father told her about an occasion when he had to ask [P] and [Q]’s mother to come and collect them because he was in such a state that he was unable to drive.
She said and I accept that on … 2013 there was a small party at her house for [S]’s birthday. She said that the father was due to attend but did not show up and that she received a call from him saying that he needed her. She drove out and found him parked on the side of the road about 25 kilometres from Town J. She said that he was inconsolable, hyperventilating, shaking and barely able to talk and that it took her an hour to calm him. She said that he told her that he felt overwhelmed by work and personal things. Eventually he calmed down sufficiently to be able to drive to the mother’s home.
The family report writer expressed concern about the father’s mental health. Part of her concern arose from his emotional dysregulation and from information such as the above but part of her concern was about his lack of empathy. She said that the father blamed everyone but himself for the situation with [X].
She said as follows:
When asked to discuss future directions Mr Larosa became increasingly agitated and aggressive. When possible plans were discussed he again reiterated and said he believed that his views were not being considered in this matter, that Ms Humphreys had created all the problems and alienated him from all his children and some of his family. He particularly apportioned blame to Ms Humphreys and was overtly critical of her. He does not appear to want to continue with supervised time until [X] is older and does not accept that it is necessary. He again reiterated that [S]’s father did not have to attend the contact centre and he could not see any reason why he should do so.
Mr Larosa stated that both his mother and his sister had agreed to supervise his time with [X] and he could not understand why they had declined to continue with this. He stated that he went to the Contact Centre of his own volition because he wanted to see [X], he said he did not like the Contact Centre because it was too small and he could not do want he wanted with [X]. He reported that a park or similar area was much better for a small child. The family consultant repeatedly attempted to discuss future directions with Mr Larosa but he continually focussed on others and could not focus on [X] and how he might meet his needs. This is particularly concerning.[6]
[6] Family Report paragraphs 47 & 48
The father’s propensity to blame everyone but himself for his predicament with all three of his children is clearly apparent from the evidence in earlier paragraphs of this judgement about his communications with or about the paternal grandmother, his sisters Ms E and Ms Y and Mr Z and Mr AA and evidence about his lack of empathy is inherent in the about the father’s insensitivity to others and his inability to maintain relationships is contained in every affidavit filed in the mother’s case.
There was evidence about insensitive behaviour to Ms B and Ms C (and I accept their evidence); verbal abuse of [S]’s carer Ms CC (and I accept the mother’s evidence about that); and his inability to keep jobs (the mother gave unchallenged evidence about him having had 15 jobs during the time she knew him).
In light of the evidence as a whole, I am satisfied that there is considerable force in the following observation by the family report writer:
It is apparent …after interviewing Mr Larosa and reading the material in the affidavits filed on behalf of Ms Humphreys ( some of which were from the paternal family) that Mr Larosa has had long term issues with relationships, employment and with his children. He cannot blame his family or the system for his current predicament and needs to seek mental health assistance as a matter of some urgency. He needs to have not only a mental health assessment but also engage with an experienced mental health professional for at least six months who can assist him with anger management, relationships and assist him manage his lifestyle. It is important that the mental health professional understands narcissistic personality disorder. It is unusual for a member of the paternal or maternal families to express their views strongly for the opposing party and the material in these affidavits was particularly concerning. The affidavits cite concerns about long term relationship difficulties, long term issues with alcohol and anger management and all cite concerns about his ability to self-regulate emotionally, verbally and, at times, physically. It is noted that all the affidavits comment on Ms Humphreys’ child focussed parenting capacity, her tenacity and her empathy towards Mr Larosa’s older children.[7]
[7] Family Report paragraph 85
The family report writer went on to say as follows:
It is strongly recommended that [X], who is three and vulnerable, does not have any unsupervised time with Mr Larosa for at least two years and not until Mr Larosa has engaged with a mental health team and demonstrate that he has not only the intent but the capacity for change. He also needs to participate in CDT testing and provide the reports to the Court.
The concerns about the father’s mental health are therefore not restricted to a concern about the panic attacks which have on two occasions disabled him from driving but include a concern about whether he may be suffering from a personality disorder.
The family report was released in November 2018. It did not result in the father seeking any professional advice about his mental health and it was followed by him making threats to kill Mr Z and Mr AA in December 2018 and by the intemperate and abusive calls made on the Thursday/Friday before the trial commenced after he had been drinking because he was upset about the content of affidavits.
There was no sign at trial the father recognised that he had any shortcomings indeed when he was asked in cross-examination if the thought he lacked empathy he responded:
Empathy is others is one of my best qualities
The father’s lack of empathy for others was starkly illustrated during cross-examination by the Independent Children’s Lawyer shortly afterwards. He was asked about his proposal for equal shared parental responsibility and the following exchange occurred:
Do you think [the mother] might have any reservations [about communicating with you] after last Friday?
I don’t think so, no.
The mother’s case was that the father’s lack of empathy led to things such as him pushing [X]’s head under the water in the pool which frightened him, leaving Ms B and [P] waiting outside a house for two hours while he was inside socialising, making poor decisions about which adults let into his apartment and making selfish decisions about engaging in activities with children.
This gets into a more difficult area because although these things are red flags and may be indicative of the father having a personality disorder he has not been diagnosed with one and there are no perfect parents; any parent can on any given day behave in a way which might be branded thoughtless and selfish by others or even by themselves in hindsight but which was not intended to be by the parent at the time and this does not lead to all parents being unable to see their children unsupervised.
However I do not need to agonise over what this evidence means because the evidence about the father’s anxiety attacks, dysregulated abusive outbursts, violence and threats of violence and alcohol consumption mean that I cannot be satisfied at present that the father has the capacity to safely care for [X] and I am satisfied that it would cause the mother overwhelming fear and concern if she had to send [X] to spend unsupervised time with the father.
I must also consider the mother’s parenting capacity.
The father included a section in his affidavit head “Concerns about [X]’s development.” There are certainly some concerns about his speech and the mother and the mother said that he may have autism but [X]’s development was not the focus of cross-examination at trial. He is attending pre-school and the mother has him on a wait list for a speech and language assessment and I am satisfied that she is appropriately dealing with any concerns about his development.
The mother said that she had been diagnosed with PTSD as a result of the accident in 2009. There was no medical evidence about what that meant for her parenting but the mother did not rely on it as part of her case and the father’s counsel did not explain why he considered it relevant to the decision I had to make.
The father devoted seven paragraphs and over two pages of his affidavit to some discrete complaints about Ms B and Ms C allegedly mistreating [X]. He voiced his complaints about these discrete matters to the mother during the relationship which caused conflict but even if I felt that they had merit (and I don’t) they are of no current relevance because Ms B and Ms C have moved out.
The father raised concerns in his affidavit about Mr R whom he described to the family report writer as “a grub” but the purpose of this evidence is unclear. If he included it in pursuit of his case (articulated to the family report writer) that if Mr R, who was far worse than him, was allowed around his children then the father should be allowed around [X] the evidence is not helpful, and if he included it to suggest that Mr R posed a risk of harm to [X] I do not accept this. I am satisfied that the mother capably manages any issues with Mr R, who is after all in a wheelchair and has limited scope for causing havoc in the mother’s home.
I finally note that the tenor of the father’s case was that the mother had no valid reason to oppose [X] spending unsupervised time with him and was gatekeeping.
The mother was cross-examined about the fact that on occasions during the relationship she left [X] with the father while she was absent, that in the early period after separation she did not rule out the father spending unsupervised time with [X] and that there was a time later in the proceedings when she contemplated [X] spending a few hours at a time with the father unsupervised.
It was put to her that at the end of the relationship her only concern about [X] spending time with the father was that he had separation anxiety but that now she was alleging safety concerns, as if this was a beat up by the mother to unreasonably exclude the father from [X]’s life.
In answer to these question in cross-examination the mother said among other things that:
·A lot had changed.
·Having the father’s friend who she had never met ring her and say that “Mr Larosa is going to shoot me” concerned her (and the mother became tearful when giving this evidence).
·She had suffered a lot of abuse during the relationship but had no evidence. Discussing it with others has led her to believe that there was something mentally wrong with the father.
·She was concerned that the father would have a meltdown with [X] and wouldn’t be able to cope (the mother then mentioned the roadside incident where she could not calm the father down).
It is emotionally abusive of a child for a parent to unreasonably try to prevent or restrict the child spending time with the other parent but I am satisfied that there is abundant reason for the mother to be concerned about the father’s capacity to keep [X] safe and to properly parent him and that she is opposed to [X] spending unsupervised time with the father for these reasons.
Feeding into this another relevant s. 60CC (3) matter namely the child’s maturity sex and background. [X] is only just four and is utterly unable to protect himself but in addition to that he has difficulties with his speech and is not of an age when he would be able to speak up or explain if things were going wrong for him in the father’s care.
I must consider whether it is preferable to make the orders least likely to lead to further proceedings but this is a case in which all roads lead to Rome, in other words where the orders sought by either parent are just as likely to lead to further proceedings.
An order for indefinite supervised time routinely results in a matter coming back to court; I have experienced that over and over again in my time on the bench. They come back because the supervision provided for in the order becomes unavailable, or because the children get sick of it and refuse to go, or because the parent on restricted time considers that they can demonstrate that the reason supervision was required no longer exists and when matters come back more time and effort has to be spent on them by the parties and the court.
An order for supervised time might of course be the end of the matter in this case because the father said in the witness box that if such an order was made he would not keep doing it and would walk away, but people often say one thing in the witness box and do something different once the matter is over. The more probable result of an order for indefinite supervised time is that the matter will in due course come back to court for one of the reasons referred to above.
Another problem which could arise is that as [X] gets older he may begin to question why he is seeing the father supervised.
At the age of four and in a situation where the father was never a permanent resident in his home he would be most unlikely to do that even if his verbal skills were better. Going to see the father at the contact centre would be a bit like going to pre-school; he goes, has a play and learns a few things and goes home to his mother. As he gets older however he may well question why he is seeing his Dad that way and the parents will have to somehow manage that issue and if they can’t the matter may return to court.
However due to the plethora of issues with the father and the potential impact on the mother of being required to comply with an order for unsupervised time, an order for unsupervised time also carries with it a high risk of the mater returning to court either on a contravention application or an application to vary because there is non-compliance or issues with the care of the child.
The Independent Children’s Lawyer rightly observed that another option open to the court was a no time order but even this does not necessarily put an end to proceedings. The father could still come back if he felt that he was able to demonstrate change.

Parental Responsibility

Before making a determination about the father’s application for time I need to determine the dispute about parental responsibility because I need to know whether s. 65DAA of the Family Law Act is engaged.
Pursuant to s. 61DA of the FLA I am required to apply a presumption that the parents have equal shared parental responsibility for [X] absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the child or family violence.
The father perpetrated family violence in Country U and in the bathroom at Town G and the presumption does not apply. I can nevertheless make an order for equal shared parental responsibility if I consider that it would be in [X]’s best interests for me to do so.
The mother and father have not spoken on the telephone for over two years. The father flies off the handle and deals out abuse and makes threats when he feels upset or has been drinking or both. The mother understandably does not want to communicate with him which would make compliance with s. 65DAC of the FLA very difficult.
There is considerable force in the following observations in the family report said as follows:
Ms Humphreys clearly cannot co parent with Mr Larosa and unless he makes considerable changes to his perception of this matter, seeks professional assistance and can demonstrate that he can be predictable it is unlikely that she will be able to do so. Ms Humphreys cannot live in fear of verbal conflict if she has to manage communication with someone who is aggressive and cannot understand he may have some responsibility for this conflict.[8]
[8] Family Report paragraph 91
I could not ask the mother to consult with the father and attempt to reach a joint agreement if a decision needed to be made about [X]; it would either lead to the father abusing the mother, to the mother avoiding the task and the matter not being addressed or to no agreement being reached. [X] requires speech therapy and may require other medical interventions and decisions will need to be made about educational matters for him. It is in [X]’s best interests that the mother, who is capably parenting him, has sole parental responsibility for him.

Conclusion

[X] is closely bonded to the mother. Because of the nature of the parties’ relationship he has never had the experience of the father being a consistent caring presence in his life.
[X] might adjust to spending unsupervised time with the father if the father was empathetic and attuned to his needs and able to deal with any distress he exhibited and he was led gradually into spending longer and longer away from his mother but there is nothing in the evidence to suggest that the father is patient, caring and empathetic. There is a very high risk that if I made an order for unsupervised time the matter would rapidly end up back in court because [X] did not settle and there were difficulties at changeover or changes in his behaviour.
I am also satisfied that [X] would be at unacceptable risk of harm in the father’s unsupervised care. He is only four years old. He is incapable of looking after himself and would be incapable of calling anyone for help if the father had a meltdown on the side of the road or made irresponsible decisions about driving because he had been drinking too much. He could also be exposed to the father’s intemperate and perhaps threatening behaviour to others, as happened for him, [S], [P] and [Q] in Town G, which would be very distressing for him.
Another aspect of the matter is that the mother’s experiences of the father have been such that when added to the trauma she experienced as a result of the accident her older children were involved in she would struggle to comply with an order for unsupervised time. I cannot find that it would affect her parenting capacity but if she experienced distress and tension trying to comply with orders that could be transmitted to [X] and if nothing else make it all the more difficult for him to adjust to spending unsupervised time with his father.
The father was aware in November 2018 when the family report was released that there was a question mark over his mental health and his parenting capacity but not only did he do nothing to put the concerns expressed in the report to rest, he continued to behave in ways which gave rise to concern about him.
I could not consider ordering that the father spend unsupervised time with [X].
The mother proposed supervised time on six occasions each year which would keep a relationship alive. However such an order will, for the time being and perhaps permanently, defeat the first primary consideration.
I do not accept the submission by the Independent Children’s Lawyer that supervised time at a contact centre will lead to a meaningful relationship, and the chances of the father taking on board the criticisms of him in the family report and engaging in therapy and addressing his mental health issues and his propensity to lash out at others and lose the support of friends and family are slim if the evidence of the paternal grandmother and the paternal aunt are correct and the father has had these problems for much of his life and regardless of setbacks in his personal life has never been willing to address them.

The father may also do as he threatened and simply walk away.
However given my findings about the remaining s. 60CC (2) & (3) matters the only orders open to me are either an order for indefinite supervised time or an order for no time.
The Independent Children’s Lawyer ruminated in his case outline document on whether if only supervised time could be ordered it might be preferable to order no time. However in the end he supported the mother’s proposal that supervised time continue and with some misgivings I intend to make such an order.
I have misgivings about it because it may mean that the matter comes back to court all too soon because of issues with the supervision. The mother proposed that supervision be provided by Town A Children’s Contact Centre but contact centres can close or the services they offer can change. I can back it up with an order for time to be supervised by some other person or organisation agreed to by the mother but this is the very kind of order which frequently results in a matter returning to court and endless litigation is stressful and difficult for litigants.
However the mother said on a number of occasions during the hearing that she had never wanted to completely exclude the father from [X]’s life and if she prefers to give him a chance and create a foundation for different time to occur if he is able to reflect on and do something about his issues I will not override her wishes.
The father has been given clear guidance in the family report writer about what he needs to do and in cross-examination the family report writer added that the father would need to demonstrate that he:
had obtained support from a mental health team, been consistent in attending supervised visits, been consistently polite and reasonable with the mother and demonstrated that he is going to be a bit more reasonable with his family
There is of course more too it; issues have been raised about the father’s alcohol consumption, anger management and parenting skills but doing the things referred to above together with a parenting course would be a start.
Until there has been change if change is possible I can only order supervised time but I do not intend to make an order that it occur on twelve occasions each year as proposed by the Independent Children’s Lawyer. That increases the likelihood of problems arising because of inability to pay, failure to attend or the arrangement becoming oppressive for the mother and [X].
I also intend to order that if the father misses consecutive visits without providing a medical certificate or satisfactory evidence that he was prevented from attending as the result of a genuine emergency then time cease unless the mother consents in writing to it continuing.
The Independent Children’s Lawyer proposed that the child also have Face Time with the father twice each month. The mother’s counsel said during submissions that the mother could live with an order for the child to have Face Time with the father and I will that order and also otherwise make the orders proposed by the Independent Children’s Lawyer.

I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 19 June 2019

[2019] FCCA 1659

19 June 2019

Key Legal Topics

Areas of Law

Family Law