MANCARI & PADOVA
[2019] FCCA 3398
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANCARI & PADOVA | [2019] FCCA 3398 |
| Catchwords: FAMILY LAW – Parenting – interim parenting – whether time to be supervised –where risks asserted by Mother – where risks denied by Father – where time to date has been supervised – where Father asserts alienation by Mother – where alienation by Mother not established – where Father has indicated intention to alienate Mother – where family violence asserted by both parties against the other. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 60CG, 61DA, 61DB, 65DAA |
| Cases cited: M & M (1988) 166 CLR 69 |
| Applicant: | MR MANCARI |
| Respondent: | MS PADOVA |
| File Number: | PAC 4103 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 21 June 2019 |
| Date of Last Submission: | 21 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Longworth |
| Solicitors for the Respondent: | Gordon & Barry Lawyers Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Mr Grooby of Legal Aid NSW |
ORDERS
PENDING FURTHER ORDERS, THE COURT ORDERS:
That X born in 2012 (‘X’ or ‘the child’) live with his Mother.
That the child spend supervised time with his Father each alternative week on Thursday afternoon between 3:00PM and 6:00PM, or on such other day and for such other time to a maximum of three hours as may be agreed between the parents from time to time.
That all occasions of time between the child and his Father pursuant to order to shall be supervised by B Contact Centre or such other commercial contact supervision agency as may be agreed upon between the parents from time to time, all such supervision to be at the cost of the Father.
That each of the parties is restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of the child.
That each of the parties is restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is denigrating the other party or any member of the other party’s family.
That each of the parties is restrained from discussing these proceedings or any of the issues raised in these proceedings in the presence or hearing of the child.
That each of the parties is restrained from using any form of physical discipline on X.
That each of the parties is restrained from consuming alcohol at any time whilst X is in that parent’s care to the extent that it would be illegal for that parent to drive a Sedan motor vehicle in New South Wales on a full licence.
That the Father is restrained from:
(a)doing any act to communicate with the mother in any manner other than in relation to making any necessary arrangements relating to his spending time with the child pursuant to these orders;
(b)doing any act to communicate with the child in any manner other than to send the child Birthday, Easter, and Christmas cards and presents on those said occasions;
(c)coming within 100 metres of the mother’s place of residence, the mother’s place of employment or the mother’s place of education;
(d)coming within 100 metres of the child’s school EXCEPT that the Father may attend at the child’s school on occasions when there is a school function involving the child to which parents are invited to attend,
AND this order is an injunction granted under section 68B of the Family Law Act1975 (Cth) for the personal protection of the mother, Ms Padova, born in 1975, and the child, X born in 2012 from the father, Mr Mancari born in 1972.
That each of the parties is entitled to request and receive information from the child’s school in relation to his educational progress, including copies of school reports and general school newsletters and to request and receive information from any medical practitioner or other healthcare professional providing treatment to the child or in relation to his health care generally.
That the Father shall forthwith do all acts and things and sign all documents necessary to enrol in and complete an anger management program and shall provide to the Independent Child’s Lawyer at the completion of the course a certificate of completion.
That the Father shall forthwith do all acts and things and sign documents necessary to enrol in and complete the “Men’s Behaviour Change” program offered by C Counselling and shall provide to the Independent Child’s Lawyer at the completion of the course a certificate of completion.
That each of the parents forthwith contact the Information and Referral Officer on ... to do all things necessary to attend the course “Bringing Up Great Kids”.
IT IS NOTED that publication of this judgment under the pseudonym Mancari & Padova is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 4103 of 2018
| MR MANCARI |
Applicant
And
| MS PADOVA |
Respondent
REASONS FOR JUDGMENT
Introduction
On 21 June 2019 I conducted an interim Hearing in the parenting proceedings between Mr Mancari as Applicant Father (‘the Father’) and Ms Padova as Respondent Mother (‘the Mother’) on the issue of what time the Father should spend with their child, X, and on what, if any, conditions. I apologise to the parties for the delay between the interim Hearing and the making of interim orders and publishing of my Reasons.
On interim Hearing, the Father appeared on his own behalf. The Mother was represented by Mr Longworth of Counsel. The Independent Child’s Lawyer appeared on his own behalf.
The parties met while both were residing in City D, UK in late 2011 and formed a relationship which led to them living together for a time in the United Kingdom, before coming to Australia to live and work in 2014.
Their child X was born in 2012 and is seven years of age. The parties separated somewhere between mid-2014 and the start of 2015 and have lived separately since January 2015.
X has lived with his Mother for the whole of his life. Following separation, X spent some regular time with his Father on both a daytime and a single overnight basis for a while, and then that time became intermittent with periods of no time between Father and child, with the parties giving conflicting reasons for that occurring.
Between an occasion of a few hours spent between Father and child on 3 December 2017 and occasions of two-hour supervised time commencing under interim orders in March 2019, the Father did not spend any time with X other than some occasions when he attended functions at X’s school.
The Father asserts that there is a particularly close and loving relationship between himself and X, that X has been and is being alienated from him by the Mother, that it is crucial that he commence having substantial and significant time with X as soon as possible, and that the time should progress to a shared care arrangement.
The Mother asserts that the Father presents a risk to X’s best interests and welfare if time between them is unsupervised, on the basis of:
a)The Father’s past family violence to her and to X;
b)The Father’s general antisocial behaviour toward her and toward other persons;
c)The Father’s often stated determination to alienate X from her and ensure that X ends up hating his Mother; and
d)In relation to what she asserts are undiagnosed and untreated mental health problems affecting the Father.
At the interim Hearing, a consent order was made vacating a previous order for the preparation of a family report, and a consent order was made for an expert report to be prepared for the assistance of the Court by Dr E, Child and Family Psychiatrist, as a single court expert.
At interim Hearing, the Father relied on the following documents:
a)Case Outline document, which included the interim orders sought by him;
b)Initiating Application filed 5 September 2018; and
c)His affidavit affirmed 11 June 2019 and filed 12 June 2019.
The Mother relied on the following documents:
a)Case Outline document and Minute of Orders sought by her;
b)Her Response filed 16 October 2018;
c)Her Notice of Risk filed 16 October 2018;
d)Her affidavit affirmed 16 June 2019 and e-filed 17 June 2019 and the bundle of Exhibits referred to in her affidavit;
e)An affidavit by Ms F, the Mother’s sister, sworn 5 February 2019 and e-filed 6 February 2019;
f)An affidavit by Ms G sworn 10 October 2018 and e-filed 11 October 2018;
g)Exhibit R1, being a summary document prepared by the Mother’s solicitor from documents produced on subpoena by Suburb H Club summarising the Father’s gambling expenditure at that club between January 2017 and March 2019 and complying with section 50 of the Evidence Act 1995 (Cth) (‘the Evidence Act’);[1]
h)Exhibit R2, being specific documents in the material produced on subpoena by Suburb H Club; and
i)Exhibit R3, being specific documents in the material produced on subpoena by the NSW Police Force.
[1] Evidence Act 1995 (Cth) s 50:
The parties attended a Child Dispute Conference with a family consultant on 15 January 2019 and were interviewed separately. I have had the assistance of the Child Dispute Conference Memorandum to Court prepared by the family consultant and dated 30 January 2019.
The orders sought by the Father at interim Hearing were set out in his Case Outline document, but were intermingled in that document with comments in the nature of submissions. I have carefully analysed the orders sought by the Father and they can be summarised as follows:
a)That X live with his Mother;
b)That the Father spend time with X each alternate weekend from 3:00PM on Friday until 8:30AM on Monday during school term time, with the Father collecting X from school at the start and returning him to school at the end of the time;
c)That the Father spend time with X for half of each school holiday period;
d)That the Father spend time with X for the Father’s Day weekend;
e)That the Father spend time with X from New Year’s Eve to New Year’s Day 2019-2020 and each alternate year thereafter and that the Mother have X in her care from New Year’s Eve to New Year’s Day 2020-2021 and each alternate year thereafter;
f)That the Father spend Christmas Day 2019 with X and each alternate year thereafter and that the Mother spend Christmas Day 2020 with X and each alternate year thereafter;
g)That both parents be permitted to attend events organised by the school that X is attending and sporting events that X is attending;
h)That the Father communicate with X by FaceTime or telephone each Wednesday between 6:00PM and 6:30PM in a private setting;
i)That all communication between the parents be by way of SMS or email and in relation to making arrangements for X only, or by telephone in the event of an emergency;
j)That in the event that the Father is unavailable to spend time with X, then he is to provide 24-hours’ notice to the Mother via SMS or email;
k)That each of the parents be restrained from denigrating the other parent or any member of the other parent’s family in the presence or hearing of X, discussing the proceedings or any of the issues raised in the proceedings with X or in the presence or hearing of X, and using physical discipline on X;
l)That X attend J School until the end of year 6;
m)That neither parent consume more than two standard drinks on any day that X is with them;
n)That neither parent move/relocate with X outside Sydney without a Court order;
o)That in the event that the Father’s family visit Australia the Father have additional time with X;
p)That the Mother enrol in and complete an “Anger Management Program” at her cost and provide to the Father and the Independent Children’s Lawyer a certificate of completion of the course;
q)That the Mother enrol in and complete the “Women’s Behaviour Change Program” at her cost and provide to the Father and the Independent Children’s Lawyer certificate of completion of the course;
r)That the Mother enrol in and complete the “Tune into kids” course provided by C Counselling at her cost and provide to the Father and the independent children’s lawyer a certificate of her completion of the course; and
s)That the Mother commence random alcohol and drug testing at her cost and provide to the Father and the Independent Children’s Lawyer the test results.
The Father also sought orders in relation to the Mother attending appointments with a psychiatrist nominated for that purpose by the Independent Children’s Lawyer, with a report as to her mental health being provided, but that order has been over taken by the appointment of the single court expert to prepare an expert’s report.
The orders sought by the Mother on interim Hearing were set out in the Minute of Orders provided by her Counsel and are as follows, again omitting the orders sought by the Mother that the Father attend upon a psychiatrist nominated by the Independent Children’s Lawyer and report be produced as to his mental health on the basis that such order has been over taken by the appointment of the single court expert to prepare an expert’s report:
a)That X live with his Mother;
b)That X spend time with his Father supervised by B Contact Centre (‘the supervisor’) each alternate Thursday from 3:30PM to 6:30PM;
c)That collection of X from and return of X to his Mother at the start and end of the Father’s time be at such times and at such locations as are nominated by the supervisor;
d)That the time X spends with his Father be suspended for one Thursday as nominated by the Mother during the school holidays at the end of terms 1, 2 and 3, and for two Thursdays as nominated by the Mother during the school holidays at the end of term 4, the Mother to provide written notice to the Father two weeks in advance of nominated occasions, and from 24 December 2018 to 14 January 2019. (I proceed on the basis that same is a typographical error and the orders sought relate to the period 24 December 2019 to 14 January 2020);
e)That each party be restrained from denigrating the other party or any member of the other party’s family to or in the presence of or hearing of X, discussing the proceedings or any of the issues raised in the proceedings with X or in the presence or hearing of X, and using physical discipline on X;
f)That the Father be restrained from consuming alcohol during periods when X is in his care;
g)That each party be authorised to request and receive information from X’s school in relation to his educational progress, including copies of school reports and general school newsletters and request and receive information from any medical practitioner providing treatment to X or in relation to his health care;
h)That the Father be restrained from doing any act or thing to communicate with X or with the Mother and from coming within 500 metres of the Mother’s residence and place of employment or study or X’s school, other than with the Mother’s consent;
i)That the Father enrol in and complete an anger management program and provide to the Mother and/or the Independent Children’s Lawyer a certificate of completion; and
j)That the Father enrol in and complete the “Men’s Behaviour Change” program offered by C Counselling and provided the Mother and/or the Independent Children’s Lawyer with a certificate of completion.
In the course of submissions, the Independent Children’s Lawyer advised the Court that he supported the orders as sought by the Mother.
Background
I have read and considered all of the material relied upon by the Father and by the Mother at the interim Hearing. The following summary of the evidence is taken from that material.
The Mother is 44 years of age and is a professional, and the Father is 46 years of age and is a professional.
The parties met in 2011 in City D and “formed a relationship”.[2] The Father asserts that they commenced cohabitation in 2011,[3] but the Mother asserts they commence cohabitation on her return with X from hospital after his birth, being some time shortly after 2012.[4] The parties did not marry.
[2] Mother’s affidavit affirmed 16 June 2019, [3].
[3] Father’s Initiating Application affirmed 5 September 2019, [25].
[4] Mother’s affidavit affirmed 16 June 2019, [4].
X was born in 2012, and immediately upon his return home (and at that time on either version the parties were cohabiting), the Mother and X had one bedroom and the Father had another bedroom. X shared a bed with his Mother.[5] The parties continued with those living arrangements until to the time of their separation.
[5] Father’s affidavit affirmed 11 June 2019, [8]; Mother’s affidavit affirmed 16 June 2019, [5].
In 2014, the Mother was offered a transfer of her employment to Sydney with Employer K. She accepted that offer, and the family moved from the United Kingdom to Australia and took up residence in Sydney in 2014.
According to the Mother, the parties separated on 22 August 2014, at which time she asked the Father to move out of the rented premises they shared in Australia, though he refused to do so until February 2015.[6]
[6] Mother’s affidavit affirmed 16 June 2019, [9], [21], [40].
At paragraph 27 of his Initiating Application, the Father says that the parties separated on 15 January 2015, being the day he says he moved out of the home,[7] though the text of emails from the Father to the Mother referred to in paragraphs 23, 24, 29 and 30 of the Mother’s affidavit and each exhibit to her affidavit supports the Mother’s contention that the relationship had broken down before October 2014,[8] and the Father says in paragraph 6 of his affidavit that “Within a month of emigrating [the Mother] terminated the relationship”.[9]
[7] Father’s Initiating Application affirmed 5 September 2018, [27]; Father’s Case Outline, item 19.
[8] Mother’s affidavit affirmed 16 June 2019, [23]-[24], [29]-[30].
[9] Father’s affidavit affirmed 11 June 2019, [6].
On 15 December 2014, while the parties were separated but still residing under the one roof, a heated argument developed between them. The Father says that the Mother physically attacked him, tore his shirt and bit him on the left pectoral drawing blood and causing bruising.[10]
[10] Father’s affidavit affirmed 11 June 2019, [12].
The Mother points out that this date was the afternoon of the tragic Martin Place siege and that the Father collected X from his day-care centre situated very close to Martin Place without notice to her and took him to a café in the city, and that she had some difficulty locating the café because the Father refused to give her proper directions.[11]
[11] Mother’s affidavit affirmed 16 June 2019, [38].
The Mother says that when she arrived the Father said to her “would not care if you were in the Lindt Café with the terrorist. I wish you were dead.”[12] She says that on that evening at home, an argument took place between them and that she began recording the argument on her mobile phone. When the Father tried to grab the phone by grabbing her hands and attempting to rip the phone away, she held onto the phone tightly with both hands and the Father
dragged/pulled me into the bedroom. He ripped one of my hands off the phone and as I was struggling to hold onto the phone with the hand that had been dislodged from the phone I grabbed the collar of his T-shirt and it ripped the collar. [The Father] twisted my other causing me pain. He would not let go and I bit him to release his grip. I called the police from [the Father’s] phone.[13]
[12] Mother’s affidavit affirmed 16 June 2019, [38].
[13] Mother’s affidavit affirmed 16 June 2019, [38].
The police attended with the result that the Mother was issued with a provisional ADVO and was charged with common assault of the Father.[14] The ADVO proceedings and the common assault charge were later dropped by the police.[15]
[14] Father’s affidavit affirmed 11 June 2019, [12]; Mother’s affidavit affirmed 16 June 2019, [38].
[15] Father’s affidavit affirmed 11 June 2019, [12]; Mother’s affidavit affirmed 16 June 2019, [38].
In paragraph 10 of Ms F’s affidavit, she gives evidence of a conversation she had with the Mother at about the time of the 15 December 2014 incident, and she reports the Mother as saying to her
X’s daycare was in lockdown, being only 20 metres from Lindt Café. [The Father] went and collected X and afterwards would not tell me where I could find him. When they got home I was recording one of his rantings and he found out. This made him angrier and I bit him when he grabbed the phone from me.[16]
[16] Affidavit of Ms F sworn or affirmed 5 February 2019, [10].
She gives evidence in paragraph 11 of a further conversation with the Mother at about that time in which the Mother said to her “I feel that I cannot go to the police given when I called them after this incident I ended up having an AVO placed on me when [the Father] was being violent to me.”[17]
[17] Affidavit of Ms F sworn or affirmed 5 February 2019, [11].
In June 2015, the Father was diagnosed with adult attention hyperactivity disorder by Dr L, psychiatrist.[18] The Father was prescribed, and continues to take, dexamphetamine as medication for his condition.[19]
[18] Father’s affidavit affirmed 11 June 2019, [15].
[19] Father’s affidavit affirmed 11 June 2019, [15].
The Mother says that a provisional ADVO was issued by police for the protection of herself and X from the Father on 28 January 2015,[20] after information was given to the police by the Mother’s brother in relation to threats made against the Mother by the Father.[21] The Mother does not give any further detail in relation to this provisional ADVO and perhaps it was not proceeded with, in view of a further provisional ADVO order being made for the protection of the Mother and X from the Father in July 2016.[22]
[20] Mother’s affidavit affirmed 16 June 2019, [9].
[21] Mother’s affidavit affirmed 16 June 2019, [40].
[22] Mother’s affidavit affirmed 16 June 2019, [44].
In July 2016, a provisional ADVO order for the protection of the Mother and X from the Father was made,[23] with a final order being made on 11 November 2016 for a period of one year, extended on 6 December 2017 for a further period of two years.[24] The Father was charged with breaching the AVO order by incidents occurring on 3 or 4 August 2017 and 23 August 2017.[25]
[23] Mother’s affidavit affirmed 16 June 2019, [10].
[24] Mother’s affidavit affirmed 16 June 2019, [12], see also [44], [45].
[25] Mother’s affidavit affirmed 16 June 2019, [11], [13], [63]; see also Father’s affidavit affirmed 11 June 2019, [19].
On 30 August 2017 at the Downing Centre Local Court, the Father was convicted in relation to the two breaches and put on a good behaviour bond for a period of six months.[26] On appeal, the offences were found, but the convictions were removed and the Father was placed on a good behaviour bond for a period of twelve months.[27]
[26] Exhibit R3, [F21].
[27] Exhibit R3, [F21].
The Mother says that the Father has been physically violent to X and to her.[28] She says that the Father pushed X a couple of times and made him fall,[29] though she does not give detail of those incidents. She says that the Father gave X an e-cigarette to smoke, though she does not give detail of that incident or the basis on which she makes that assertion.[30] The Mother says that the Father has created a separate email account into which he forwards copies of emails he sends to her and to other persons about their parenting issues, with a view to making those emails available to X to read when he is “old enough”,[31] and there is some corroboration for that assertion by the Mother in the affidavit by her sister.[32]
[28] Mother’s affidavit affirmed 16 June 2019, [16], [25], [38], [48].
[29] Mother’s affidavit affirmed 16 June 2019, [16].
[30] Mother’s affidavit affirmed 16 June 2019, [16], [52].
[31] Mother’s affidavit affirmed 16 June 2019, [51], see also [16], [43].
[32] Affidavit of Ms F sworn or affirmed 5 February 2019, [30]-[31].
The Mother says that the Father placed a video of a changeover at the start of him spending time with X on 3 December 2017 onto the website YouTube with the caption “X seeing his Dad after 4 months of alienation by “Mother” on 03rd Dec 2017 - we both know the years of control are numbered.”[33]
[33] Mother’s affidavit affirmed 16 June 2019, [17.1].
Evidence is given by the Mother of conduct by the Father that comes within the definition of family violence in section 4AB of the Family Law Act 1975 (Cth) (‘the Act’), being assaults,[34] repeated derogatory taunts,[35] and intentionally damaging or destroying property,[36] and that most of this family violence has occurred in the presence and/or hearing of X.[37]
[34] Family Law Act 1975 (Cth) s 4AB(2)(a); Mother’s affidavit affirmed 16 June 2019, [16], [25], [38], [48].
[35] Family Law Act 1975 (Cth) s 4AB(2)(d); Mother’s affidavit affirmed 16 June 2019, [11], [13], [16], [18]-[20], [24]-[26], [28]-[30], [38]-[40], [44], [45], [48], [52], [56], [59]-[62], [65], [67], [70].
[36] Family Law Act 1975 (Cth) s 4AB(2)(e); Mother’s affidavit affirmed 16 June 2019, [20], [22], [26], [28], [44].
[37] See Family Law Act 1975 (Cth) s 4AB(3); Mother’s affidavit affirmed 16 June 2019, [11], [28], [38], [44], [47], [52], [60], [61], [61], [65], [66].
The following is the evidence of the Mother in relation to family violence, with reference to any evidence given by the Father about any particular occasion, though the Father’s affidavit is silent about family violence except for the occasion described above on 15 December 2014, where he asserts all the violence was on the part of the Mother,[38] and despite most of the evidence as to family violence given by the Mother in her affidavit affirmed 16 June 2019 having already come to the Father’s attention in the Mother’s affidavit sworn or affirmed 12 October 2018 and filed 16 October 2018 with her Response.[39]
[38] Father’s affidavit affirmed 11 June 2019, [12], [19].
[39] For discussions of family violence in the Father’s evidence, see, eg, Father’s affidavit affirmed 11 June 2019, [13], [18], [19], [20], [22], [25].
Family violence
During arguments, the Father threatened the Mother, that he would “smash your face” and said “I want to smash you up” and when the Mother said to the Father “you should move back to your parents” he replied “I will smash them up as well”.[40] Whilst living in the United Kingdom, the Father said to the Mother “I wish you would disappear into the river, no one would know”.[41]
[40] Mother’s affidavit affirmed 16 June 2019, [19].
[41] Mother’s affidavit affirmed 16 June 2019, [19].
In an email to the Mother dated 17 June 2014 the Father said
[X] will so hate you when he is older; you will be one sad and lonely woman in a few years time [sic] (just like the old woman from (movie)). I promise you that I am 100% he will want to be with his Dad. You have nothing to offer X when he is 8 years plus. Let’s fight more tonight instead. I can’t wait for you to come home.[42]
[42] Mother’s affidavit affirmed 16 June 2019, [19].
In May 2014, during an argument, the Mother was in bed with X and the Father threw a weighted doorstop at her.[43]
[43] Mother’s affidavit affirmed 16 June 2019, [20].
In about 2014, during a short trip to Country M, the Father was driving dangerously in mountain country with the Mother and X in the car and said “I don’t care if I kill us all”.[44] On that same day, the Father smashed an empty wine bottle on the floor.[45]
[44] Mother’s affidavit affirmed 16 June 2019, [20].
[45] Mother’s affidavit affirmed 16 June 2019, [20].
Towards the end of September 2014, during an argument, the Father threw a wine glass and dish across the room, and they smashed in the kitchen.[46]
[46] Mother’s affidavit affirmed 16 June 2019, [22].
On 2 October 2014, the Father sent the Mother and email stating
Every moment I spend with my son he will see my hatred towards you. He will see how much you have damaged me. I will be turning him against you. I will fight you until he has grown up and mine.[47]
[47] Mother’s affidavit affirmed 16 June 2019, [23].
The Mother exhibits a copy of that email to her affidavit.[48]
[48] Mother’s affidavit affirmed 16 June 2019, [2].
Following the Mother informing the Department of Immigration that she and the Father were no longer together in November 2014, the Father, on a number of occasions, shoved the Mother during arguments, kicked the Mother and threw objects at her, though the Mother does not give particulars of these incidents.[49] On an occasion about this time the Father said to the Mother “I should take a knife and stab you through the head”.[50] The Mother asserts that around this time on occasions when X was upset the Father would “push X so that X fell and cried more”.[51]
[49] Mother’s affidavit affirmed 16 June 2019, [25].
[50] Mother’s affidavit affirmed 16 June 2019, [25].
[51] Mother’s affidavit affirmed 16 June 2019, [25].
On 7 December 2014, the Father said to the Mother “I will take X in the car and drive into a wall”[52] and later in the day smashed a glass whilst yelling and swearing at the Mother.[53]
[52] Mother’s affidavit affirmed 16 June 2019, [26].
[53] Mother’s affidavit affirmed 16 June 2019, [26].
Until the ADVO was issued on 28 January 2015, during arguments, the Father frequently said to the Mother in the presence of X “You are a fucking bitch” and “you cunt” causing X to say on some occasions “Mummy is not a fucking bitch” and “Mummy is not a cunt”.[54]
[54] Mother’s affidavit affirmed 16 June 2019, [28].
On occasions, the Father said to X “X, tell your Mother she is a cunt”.[55] On occasions, the Father gave X a glass and said “smash it X”[56] and the Mother took the glass from X. The Mother deposes that she has recordings of some of these occasions that can be produced,[57] but they were not put into evidence in the interim Hearing.
[55] Mother’s affidavit affirmed 16 June 2019, [28].
[56] Mother’s affidavit affirmed 16 June 2019, [28].
[57] Mother’s affidavit affirmed 16 June 2019, [28].
On 13 November 2014 at 11:52AM, the Father sent an email to the Mother saying
you carry on lying X is all mine this weekend. Do not say anything to me between now and then otherwise I will not be responsible for my actions.[58]
[58] Mother’s affidavit affirmed 16 June 2019, [30].
The Mother exhibits a copy of the email to her affidavit.
Shortly before June 2015, the Father said to the Mother
X needs to know what you have done. I guarantee that X will not want to know you and I will educate him against you. I will do anything I can to hurt you.[59]
and
If you don’t change your attitude things will get worse, it will be war and X needs to see how much I hate you.[60]
[59] Mother’s affidavit affirmed 16 June 2019, [46].
[60] Mother’s affidavit affirmed 16 June 2019, [46].
The Mother asserts that the Father said to her that the worst punishment for her would be for him to kill himself and X and leave her alive.[61]
[61] Mother’s affidavit affirmed 16 June 2019, [46].
In 2015, the Mother, the Father, and X travelled together by plane to the United Kingdom to enable X to spend some time with the Father’s family.[62] They stayed at the Father’s parents’ home with the Mother sleeping in one room with X and the Father sleeping in the lounge.[63]
[62] Father’s affidavit affirmed 11 June 2019, [19]; Mother’s affidavit affirmed 16 June 2019, [41].
[63] Mother’s affidavit affirmed 16 June 2019, [41].
Throughout their time in City D, UK the Father called the Mother a “smelly cunt”.[64] On the plane flight home after the trip, the Father pinched the Mother’s right arm throughout the flight causing bruising, swore at her, and called her a “fucking cunt”.[65]
[64] Mother’s affidavit affirmed 16 June 2019, [47].
[65] Mother’s affidavit affirmed 16 June 2019, [48].
Seated in the same row as the family on the flight between City D and a stop-off in Country N was a stranger to the family, Ms G. Ms G swore or affirmed an affidavit filed in the proceedings and relied on by the Mother at the interim Hearing, in which she describes the conduct of the Father during that flight. As she is an independent witness, it is important to set out her evidence fully.
The following is the evidence given by Ms G.
During the flight, Ms G heard the Father repeatedly asked the Mother “What are your plans? Are you staying in Sydney next year? I need to know so I can get on with my life”.[66] During this persistent questioning, she heard the Father say to the Mother “You are a fucking cunt”.[67] Over a period of six hours, she heard the Father repeatedly use that expression to the Mother, so often that she began counting the occasions, but stopped counting at 20.[68] She heard the Father say to the Mother words to the effect of “everyone diagnosed you as a cunt and they were right”.[69]
[66] Affidavit of Ms G sworn or affirmed on 10 October 2018, [10].
[67] Affidavit of Ms G sworn or affirmed on 10 October 2018, [11].
[68] Affidavit of Ms G sworn or affirmed on 10 October 2018, [11].
[69] Affidavit of Ms G sworn or affirmed on 10 October 2018, [11].
At one point, Ms G saw that X was asleep on the Mother’s lap and the Father was trying to physically pull X off the Mother.[70] She heard the Mother say to the Father “You’re hurting him, please stop”,[71] and the Father reply to the Mother in words the effect of “No, I won’t stop, he’s my son and I will pull his arm out of its socket if I want to”.[72]
[70] Affidavit of Ms G sworn or affirmed on 10 October 2018, [12].
[71] Affidavit of Ms G sworn or affirmed on 10 October 2018, [12].
[72] Affidavit of Ms G sworn or affirmed on 10 October 2018, [12].
She then “very clearly”[73] heard the Father say to the Mother words to the effect of “I will slit your throat. He is 50% mine. You are a selfish fucking cunt”.[74] She then saw the Father thumping the chair with his fist and repeating the words “You are a selfish fucking cunt, you are a selfish fucking cunt” more than 20 times.[75] She heard the Mother ask a flight attendant if there was any other seat to which she and X could move and heard the flight attendant respond “No, there aren’t any other seats to move to”.[76]
[73] Affidavit of Ms G sworn or affirmed on 10 October 2018, [13].
[74] Affidavit of Ms G sworn or affirmed on 10 October 2018, [13].
[75] Affidavit of Ms G sworn or affirmed on 10 October 2018, [13].
[76] Affidavit of Ms G sworn or affirmed on 10 October 2018, [14].
On occasions when the Father went to the toilet, the Mother had a brief conversation with Ms G and gave her a note with the Mother’s name, phone number and email address on it.[77]
[77] Affidavit of Ms G sworn or affirmed on 10 October 2018, [19].
After arriving at Country N, and when the passengers were preparing to leave the plane, X looked at Ms G and said “Mummy is a cunt”.[78]
[78] Affidavit of Ms G sworn or affirmed on 10 October 2018, [19].
On the flight from Country N to Sydney, the family were seated together and Ms G was seated to their rear. A few days after returning home, Ms G sent an email to the Mother advising her that she had made enquiries of domestic violence advice agencies and that she intended to report the events she had witnessed to the Child Protection Hotline.[79]
[79] Affidavit of Ms G sworn or affirmed on 10 October 2018, [23].
Ms G’s affidavit was sworn or affirmed on 10 October 2018 and filed 11 October 2018, and no objection on interim Hearing to the Mother relying on that affidavit was made by the Father on the basis that he had not been served with a copy. I note that the Father makes no reference to the evidence of Ms G or the flight incidents in his affidavit, but refers to it only with the evidence that the Mother “also travelled to England with me after taking an AVO against me even book seats next to each other.”[80]
[80] Father’s affidavit affirmed 11 June 2019, [80].
In relation to the Mother’s evidence, that the Father caused bruising to her right arm by pinching her throughout the flight, there is some corroboration in the affidavit of the Mother’s sister to the effect that about a week after the Mother returned from the visit to City D, her sister met the Mother and X in City P and saw that the Mother’s arm was badly bruised.[81] She asked the Mother “What happened?”[82] The Mother responded “I don’t know”[83] and X said “Daddy did it”.[84]
[81] Affidavit of Ms F sworn or affirmed 5 February 2019, [15].
[82] Affidavit of Ms F sworn or affirmed 5 February 2019, [15].
[83] Affidavit of Ms F sworn or affirmed 5 February 2019, [15].
[84] Affidavit of Ms F sworn or affirmed 5 February 2019, [15].
In the Child Dispute Conference Memorandum to Court, the family consultant notes under “Family Violence”:
When the family consultant asked Mr Mancari about an alleged incident of family violence on a plane trip in 2015, Mr Mancari seemed to justify his behaviour by saying “she told me she was moving to Melbourne on the plane and I was agitated and provoked into behaving the way that I did … I didn’t pinch her or X”.[85]
[85] Child Dispute Conference Memorandum to Court dated 15 January 2019, 2.
Continuing the Mother’s evidence in relation to family violence, she says that between March and June 2016 the Father said to her that he would “coach X to hate you if I have to leave Australia”[86] and that during this time X came home to her from spending some time with the Father and said to the Mother “Daddy told me to punch you in the face”[87] and “Daddy told me to head-butt you”.[88]
[86] Mother’s affidavit affirmed 16 June 2019, [52].
[87] Mother’s affidavit affirmed 16 June 2019, [52].
[88] Mother’s affidavit affirmed 16 June 2019, [52].
In about late March/early April 2016, X said to the Mother “Daddy was smoking and asked if I wanted to try it and I did. I was sick in his car”.[89] When the Mother questioned the Father about this, the Father said to her “It is not illegal to smoke and drink when I am with X. I am going to keep doing that”.[90]
[89] Mother’s affidavit affirmed 16 June 2019, [52].
[90] Mother’s affidavit affirmed 16 June 2019, [53].
On 11 April 2016, the Father sent an email to the Mother that includes the following:
…Soon X will follows every step and breath I take and he will never stray off our road together. Soon he will know what his purpose in life is and what his role will be.
As soon as he starts understanding its he and I versus you. That’s how it will remain until we return to City D.
X needs to know the truth, he needs to know we hate each other and that his life is going the opposite way of all the other kids.
My anger will become his anger too. Things will get much worse the more time passes, much worse.
You will pay for kidnapping him and for our TWO lives separated, destroyed and scarred for good. Then you will be on your own, COMPLETELY to your selfish self. We guarantee you will be on your knees. Hopefully you will then kill yourself and leave us alone.[91]
[91] Mother’s affidavit affirmed 16 June 2019, [9] (original emphasis).
In about October 2016, on a Friday evening before the Father was due to collect X from day-care, the Father telephoned the Mother and said “Do you know what it is like to think about death?” and then spoke to the Mother for about half an hour about death and suicide.[92]
[92] Mother’s affidavit affirmed 16 June 2019, [56].
The Mother told the Father not to pick X up if he felt that way and she went to collect X herself.[93] The Father was already at the day-care centre and said to the Mother “I am now completely fine and want to take X.”[94] The Father took X from the Mother’s arms, put him in his car and drove off.
[93] Mother’s affidavit affirmed 16 June 2019, [56].
[94] Mother’s affidavit affirmed 16 June 2019, [56].
Also in October 2016 the Father telephoned the Mother and said to her “I had to go to hospital and have my stomach pumped”.[95]
[95] Mother’s affidavit affirmed 16 June 2019, [57].
On another occasion during about October 2016 the Father said to the Mother “I had drunk so much I didn’t even know X was there”.[96]
[96] Mother’s affidavit affirmed 16 June 2019, [57].
The Father later asserted to the Mother that he had made that statement up,[97] however, I note that the Mother’s sister gives evidence in paragraph 24 of her affidavit that on 27 March 2017, the Father sent her an email in which he wrote, amongst other things set out more fully below,
I came here with her to be a family man, Father and I am nothing now. Nothing because of her I nearly killed myself, even ended up in Emergency and had my stomach pumped.[98]
[97] Mother’s affidavit affirmed 16 June 2019, [57].
[98] Affidavit of Ms F sworn or affirmed 5 February 2019, [24].
The reason why the Father had his stomach pumped, if it occurred, is not revealed in the evidence.
Shortly after New Year 2017 the Father said to the Mother on FaceTime “if you start seeing anyone I will stab them”.[99]
[99] Mother’s affidavit affirmed 16 June 2019, [59].
In late February 2017, the Mother attended the Father’s apartment to collect X and the Father said to the Mother in X’s presence “I am not a criminal; you are a cunt”[100] and “If you introduce another man into X’s life things will be explosive”.[101] As the Mother and X walked down a hallway away from the Father’s apartment the Father said to her “Fucking bitch and X will know you are a cunt”.[102] X was “crying and distressed”.[103]
[100] Mother’s affidavit affirmed 16 June 2019, [60].
[101] Mother’s affidavit affirmed 16 June 2019, [60].
[102] Mother’s affidavit affirmed 16 June 2019, [60].
[103] Mother’s affidavit affirmed 16 June 2019, [60].
The Mother and Father arranged for the Father to spend some time with X on his birthday in 2017, meeting at Suburb Q police station for changeovers.[104] After the changeover, at the start of the time when the Father was leaving with X in his car, the Mother saw him do a U-turn, swerve at her car and then drive off.[105] The Mother’s sister, Ms F, gives evidence in her affidavit that the Mother related this incident to her on that day in an email, writing
shortly after I dropped X at the police station [the Father] pulled up beside my car yelling obscenities out of the window at me. X was in the back of his car. He did a U-turn and swerved at me.[106]
[104] Mother’s affidavit affirmed 16 June 2019, [61].
[105] Mother’s affidavit affirmed 16 June 2019, [61].
[106] Affidavit of Ms F sworn or affirmed 5 February 2019, [20].
During 2018, the Father spent some time with X at a couple of school events in which X was participating, as such occasions were specifically allowed under the terms of the current ADVO.[107] On one such occasion, X returned to the Mother after the event and said to her “Daddy says you do not do anything for me” and on another occasion X said to the Mother “Why are you a liar? Daddy says you are a liar. Your name is not Ms Padova. Daddy said I am from the Mancari family, not the Padova family” and another occasion X said to the Mother “Dad said 50/50”.[108]
[107] Mother’s affidavit affirmed 16 June 2019, [66].
[108] Mother’s affidavit affirmed 16 June 2019, [66].
On an occasion when X was angry at his Mother for taking his computer from him, X said to her “Fuck off. You have a terrible fucking life”,[109] and when the Mother asked X where he had learnt that X said “From my Dad”.[110]
[109] Mother’s affidavit affirmed 16 June 2019, [66].
[110] Mother’s affidavit affirmed 16 June 2019, [66].
In the CDC Memorandum to Court, the family consultant notes under the heading “Co-parenting Relationship”
Mr Mancari said that changeovers were tense and that he had been ‘hotheaded’ because Ms Padova did not respond to his emails to arrange further time to him to spend with X.[111]
[111] Child Dispute Conference Memorandum to Court dated 15 January 2019, 4.
The affidavit of the Mother’s sister, Ms F, contains evidence of a number of emails received by her from the Father. In terms of the risk issues being asserted in this matter, it is important to set out a number of those emails in full.
In an email to Ms F dated 15 December 2014, the Father wrote
I will spend the next decade hating her and turning my son against her. During this time the biggest losers will be X and me. After this time she will lose and X will be with me. So we all lose in the end.[112]
[112] Affidavit of Ms F sworn or affirmed 5 February 2019, [9].
In an email to Ms F dated 10 March 2017, the Father wrote
my anger has only increased with him as a result of her actions and I will never subside until X and I returned to City D. When we returned there will be no deceit or lies, just pure open revenge and this time her son will be delivering her knock out blows and not me.[113]
[113] Affidavit of Ms F sworn or affirmed 5 February 2019, [17].
In an email to Ms F dated 17 March 2017, the Father wrote
Yes, you are right about X [sic], he will absorb all of my anger for years to come but that is who I am now and I will not pretend like she does with him. Do you realise that I am so angry and upset that at night my jaw is so tight that my teeth are cracking. I have had 2 large molars taken out because I cracked them during my sleep – I am angry and upset even when I sleep![114]
and
I’m sorry but until X starts fighting on behalf of me my anger will remain and no anger management course will help. X already knows his mum and dad hated each other so whatever lies she tells him – well he knows otherwise.[115]
and
Sooner or later all of this will return and he will be in the middle of it whether he likes it or not. I will want total revenge (an eye for an eye) and I will want him with me after she stole many years away from us. My anger will remain until he is with me and she never sees him again.[116]
[114] Affidavit of Ms F sworn or affirmed 5 February 2019, [22], [4].
[115] Affidavit of Ms F sworn or affirmed 5 February 2019, [22], [4].
[116] Affidavit of Ms F sworn or affirmed 5 February 2019, [22], [4].
In another email to Ms F dated 27 March 2017, the Father wrote “She’s already lucky that she is alive, had it been someone else in my shoes she would have been dead 2 years ago (I told her this)…”[117]
[117] Affidavit of Ms F sworn or affirmed 5 February 2019, [23], [5].
In the same email, the Father wrote
Tell her the longer I don’t see X then the angrier and angrier I will get each day to the point where if my brain loses it then I will be capable of anything. Then that Police will have a real reason to knock on my door and not this bullshit she is abusing the law over and making my life a misery. I am losing my mind and I don’t sleep so where do you think will end?[118]
[118] Affidavit of Ms F sworn or affirmed 5 February 2019, [23], [5].
On 27 March 2017, the Father send an email to Ms F in the following terms
I came here with her to be a family man, a Father and I am nothing now. Nothing because of her and I nearly killed myself, even end up in Emergency and had my stomach pumped. She destroyed my life and took X for herself only. Not once did she ask how I felt and not once did she ease off the pressure. Still nothing, just more stabbing me. But I can take it now and will live for revenge; she will feel exactly like I do now and hopefully she finishes herself off then. I guarantee X will come to me at first opportunity, at the age of 12. And she won’t be able to stop him legally so everything she is gathering against me now will not work when a boy a foot taller than her overpowers her and slams the door in her face.[119]
[119] Affidavit of Ms F sworn or affirmed 5 February 2019, [24], [6].
On 28 March 2017, the Father send an email to Ms F in the following terms:
You know I will encourage him against her and it wouldn’t surprise me when he punches her in the face/stabs her in her sleep if she stops him seeing me.[120]
He continues on to say:
I have never laid a finger on her and never will – I’m not stupid.[121]
and
[120] Affidavit of Ms F sworn or affirmed 5 February 2019, [25], [7].
[121] Affidavit of Ms F sworn or affirmed 5 February 2019, [25], [7].
UNTIL SHE CHANGES THE WAY SHE TREATS ME THEN THERE WILL BE NO CHANGE AND X CAN SEE THE HATRED AND ANGER IN MY EYES, EVERYY TIME. THERE WILL BE NO CHANGE UNTIL SHE:
* STARTS TREATING ME AS AN EQUAL PARENT
* STARTS COMMUNICATING ABOUT HIS UPBRINGING
* STARTS GETTING ME INVOLVED WITH SCHOOL
* RESUMES HIM STAYING OVER WITH HIS DAD
* FACETIMES ME TWICE A WEEK FOR JUST A COUPLE OF MINUTES SO THAT HE CAN SAY “GOOD NIGHT DADDY, I LOVE YOU”
* STOPS THE AGGRESSION AND RESUMES ME BEING A FATHER[122]
and
I will make sure he grows up knowing Ms Padova is a complete fake and a liar and she will have nothing to offer a teenage boy – absolutely nothing. She has 0% chance of keeping hold of him when older and 100% chance of him hating her. I’m sorry but it’s fighting and war until I get him back with me and I will not hold back on anything and will not lie to him about what she did and carries on doing to us.[123]
and
I think you have a good feeling of what kind of force I will unleash on X when the time comes and he will be shocked at what she has done. From that moment he will have no option but to choose one or the other (but not both). After weeks of drilling everything to him for weeks/months I am convinced 100% he comes with me and never set eyes on her again.[124]
[122] Affidavit of Ms F sworn or affirmed 5 February 2019, [25], [7] (original emphasis).
[123] Affidavit of Ms F sworn or affirmed 5 February 2019, [25], [7].
[124] Affidavit of Ms F sworn or affirmed 5 February 2019, [25], [7].
Also on 28 March 2017, Ms F was copied in by Father to an email sent by the Father to the Mother in the following terms:
LIE TO X AS MUCH AS YOU WANT BUT I DEMAND TO SEE MY CHILD, YOU HAVE NO RIGHT TO DO THIS AND YOU SHOULD BE JAILED – NOT ME. CARRY ON YOUR WAY, BE MY GUEST – I DON’T CARE BUT IN 7 YEARS TIME X WILL BE SENDING YOU THE SAME MESSAGES UNTIL HE SMASHES YOU IN THE FACE AND WALKS OUT ON YOU. I LOOK FORWARD TO THAT AND LIVE FOR THAT DAY J A 50 YEAR OLD [THE MOTHER’S MIDDLE NAME] LEFT ON HER OWN AND WITH A BLOODIED BROKEN NOSE. NOTHING ELSE TO LIVE FOR IS THERE? YOU’VE TAKEN AND DESTROYED EVERYTHING ELSE.[125]
[125] Affidavit of Ms F sworn or affirmed 5 February 2019, [26], [8] (original emphasis).
On 31 July 2017, Ms F received an email from the Father in the following terms
You don’t give a fuck about anyone else but yourselves, X will be educated about all of you – I guarantee that. Every day of this nightmare is documented and will form his teenage years; I doubt he will choose to remain with a bunch of child abusers.[126]
[126] Affidavit of Ms F sworn or affirmed 5 February 2019, [30], [10].
On 21 February 2018, the Father sent an email to Ms F in which he wrote
I can wait but I will hit her with the same ferocity she has hit me, unfortunately X will remain in the middle of us fighting and this time he will support his dad, that I am 100% sure of[127]
and
Hopefully X chooses to live with me before that happens, this is the bit where we leave this country for good and she will be left on her own for good. That will happen, he and I have no future here, just bad memories and lost time together.[128]
[127] Affidavit of Ms F sworn or affirmed 5 February 2019, [32], [12].
[128] Affidavit of Ms F sworn or affirmed 5 February 2019, [32], [12].
Time between the Father and X after separation
Following the parties’ separation and the Father vacating the family home in January 2015, the Mother asserts that the Father spent time with X as follows.
a)From March to July 2015, the Father spent time with X each week from Friday evening until Saturday afternoon, and on some occasions on Tuesday afternoon after X’s child care.[129] In July 2015, the family had the three-week trip to City D to spend time with the Father’s parents as detailed above, and after their return, on the advice of her counsellor, the Mother only allowed the Father to spend time with X during daytimes in the period from August 2015 until the end of 2015.[130]
b)In late 2015 or early 2016, the parties arranged for the Father to resume spending some overnight time with X as well as daytime occasions.[131] The overnight occasions were stopped by the Mother in July 2016 when the second provisional ADVO order was made,[132] though it seems from the Mother’s evidence that there were some more overnight occasions between late August 2016 and October 2016,[133] but most occasions occurring during that time were daytime only on Friday.
c)From December 2016 until March 2017, X spent time with his Father on daytime occasions only,[134] except for the period at Christmas of 25 to 26 December 2016, when the Mother arranged for X to spend time with his Father on the assurance that the Father was attending consultations with his psychiatrist, Dr L, and on the condition that the overnight time occurred at the home of a friend of the husband’s named Mr R.[135]
d)From mid-March 2017 until December 2017, there were only one or two occasions on which the Father spent time with X, occurring in about May 2017, those occasions being supervised by the Mother or a friend,[136] and an occasion in June 2017 with the Mother arranged for the Father to attend X’s football game at Suburb S Football Club.[137]
e)The parties arranged for the Father spent some time with X on 3 December 2017, to which the Father deposes in paragraph 18 of his affidavit.[138] Changeover was arranged to occur at Suburb H train station just before 9:45AM, and for the changeover to be assisted by Mr T, a friend of the Father’s. At the changeover, the Mother was met by Mr T, but the Father was nearby and the Mother heard him call out three or four times “child abuser”.[139]
[129] Mother’s affidavit affirmed 16 June 2019, [31].
[130] Mother’s affidavit affirmed 16 June 2019, [33].
[131] Mother’s affidavit affirmed 16 June 2019, [34].
[132] Mother’s affidavit affirmed 16 June 2019, [34].
[133] Mother’s affidavit affirmed 16 June 2019, [34].
[134] Mother’s affidavit affirmed 16 June 2019, [34].
[135] Mother’s affidavit affirmed 16 June 2019, [58], [12].
[136] Mother’s affidavit affirmed 16 June 2019, [34].
[137] Mother’s affidavit affirmed 16 June 2019, [62].
[138] Father’s affidavit affirmed 11 June 2019, [18]; Mother’s affidavit affirmed 16 June 2019, [36].
[139] Mother’s affidavit affirmed 16 June 2019, [64].
Other than on the occasion on 3 December 2017, the Father asserts that there has been “zero contact” between himself and X for the period 2017 to present.[140]
[140] Father’s affidavit affirmed 11 June 2019, [19].
The Mother asserts that during 2018, she made a number of offers to the Father for him to spend time with X under supervision, but that on each occasion the Father refused to spend time with X on a supervised basis.[141] On a number of occasions during 2018, the Father attended school functions in which X was involved.[142]
[141] Father’s affidavit affirmed 11 June 2019, [20]; Mother’s affidavit affirmed 16 June 2019, [36].
[142] Mother’s affidavit affirmed 16 June 2019, [36], [66].
The Father attempted to arrange mediation of the parenting issues in August or September 2016 at the U Family Centre,[143] but the matter was deemed not appropriate for mediation.[144] The parties did commence a family dispute resolution mediation process at a U Family Centre on 29 March 2018, but did not reach any agreement and the certificate under section 60I indicates that the FDR practitioner regarded the matter as not suitable for a family dispute resolution mediation.[145]
[143] Father’s affidavit affirmed 11 June 2019, [22].
[144] Father’s affidavit affirmed 11 June 2019, [22]; see, esp, annexure [10].
[145] Father’s affidavit affirmed 11 June 2019, annexure [10].
These proceedings
These proceedings were commenced by the Father filing his Initiating Application on 5 September 2018, with the first return date on 17 October 2018, at which time an order was made appointing an Independent Children’s Lawyer to represent the interests of X in the proceedings.[146]
[146] Orders made 17 October 2018 by Judge Newbrun, [1]-[3].
At the next mention date on 30 October 2018, an order was made for the parties to attend a Child Dispute Conference.[147]
[147] Orders made 30 October 2018 by Judge Boyle, [1].
On 7 February 2019, orders were made by consent for the parties to arrange for the Father’s time with X to be supervised by the commercial supervision agency “B Contact Centre”, at the Father’s expense, and for that time to occur each alternate Thursday from 3:00PM until 6:00PM.[148] An order was also made for a Family Report to be prepared for the assistance of the Court,[149] and the matter was set down for interim Hearing on 21 June 2019, with the parties to comply strictly with Practice Direction No.2 of 2017,[150] with which neither party complied.
[148] Orders made 7 February 2019 by Judge Harper, [1].
[149] Orders made 7 February 2019 by Judge Harper, [3].
[150] Federal Circuit Court, Practice Direction No. 2 of 2017: Interim Family Law Proceedings, 7 December 2017.
Prior to the interim Hearing, there were three occasions on which the Father spent time with X pursuant to the interim orders:
a)11 March 2019;
b)10 April 2019; and
c)23 May 2019.
Each occasion was supervised by a supervisor from B Contact Centre, and on each occasion a report was prepared by the supervisor. Those Supervised Contact Report are annexure 29 to the Father’s affidavit.
The Supervised Contact Report for 11 March 2019 notes:
At 5:35 PM, we met the Father. He gave X a hug. X smiled and was happy.[151]
and
X enjoyed spending time with the Father … The Father … carried X on his shoulders back to the car. X smiled and was happy … X hugged the Father.[152]
[151] Father’s affidavit affirmed 11 June 2019, annexure [29].
[152] Father’s affidavit affirmed 11 June 2019, annexure [29].
The Supervised Contact report for 10 April 2019 notes:
X ran to the Father when he saw him and jumped into the Father’s arms. The Father hugged X and they smiled at each other … X was comfortable with the Father.[153]
and
they have a good bond and interacted well together.[154]
[153] Father’s affidavit affirmed 11 June 2019, annexure [29].
[154] Father’s affidavit affirmed 11 June 2019, annexure [29].
The following conversation is recorded in the report:
At 6:35 PM, we return to the car and the Father put a seatbelt on X. The Father asked X, “Did you have a good time?” X replied, “I did. Why wouldn’t I?” The Father said, “I’ll come and see you at school. I always come.” X said, “Like a good daddy” the Father asked X, “Do you like it when I come?” X replied, “Yes, I like it.” They had a good conversation about different things”. At the end of the occasion the report notes – “The Father kissed and hugged X. X smiled and hugged the Father back. X was happy. The Father said, “I love you.” X replied, “I love you, Daddy.”[155]
[155] Father’s affidavit affirmed 11 June 2019, annexure [29].
The Supervised Contact Report for 23 May 2019 notes the following:
X hugged the Father. The Father said, “Miss your dad?” X smiled and said, “Yes!” … The Father interacted well with X.[156]
At the end of the occasion:
X hugged the Father and told him, “Love you.” The Father hugged X and lifted him into his arms and told X, “Love you”. The Father carried X across the road and they embraced each other before departure.[157]
[156] Father’s affidavit affirmed 11 June 2019, annexure [29].
[157] Father’s affidavit affirmed 11 June 2019, annexure [29].
The Father annexes to his affidavit many colour photographs of X, almost all showing him smiling including when he is photographed together with the Father.[158]
[158] See, eg, Father’s affidavit affirmed 11 June 2019, annexures [1], [17], [26], [27], [28], [31].
The Father also annexes a three-page schedule that is in the nature of a multiple-choice questionnaire about the Father’s character completed by 35 persons who are named and who have signed the document.[159] I cannot give that document any weight, as by the nature of the document I cannot regard it as being relevant.[160]
[159] Father’s affidavit affirmed 11 June 2019, annexure [11].
[160] See, esp, Evidence Act 1995 (Cth) s 56.
The Father also annexes some urine drug analysis test results from V Pathology dated 24 August 2017 and 22 June 2018, conducted under AS/NZS 4308 with chain-of-custody maintained and showing negative results other than for the dexamphetamine medication being taken by the Father.[161]
[161] Father’s affidavit affirmed 11 June 2019, annexure [12].
Exhibits in the interim hearing
Exhibit R1 tendered into evidence for the Mother is a summary made pursuant to section 50 of the Evidence Act of the Father’s expenditure on gambling at Suburb H Club from January 2017 until April 2019, both inclusive, and shows a net expenditure (turnover minus total wins) by the Father in that period of $210,599.64. This evidence is relevant in relation to the Father’s obligation to provide financial support for X, on the basis that the Mother gives evidence that the Father has never paid any child support for X,[162] and the Father’s total silence in his evidence on this issue.
[162] Mother’s affidavit affirmed 16 June 2019, [15].
Exhibit R2 is composed of certain documents contained in the material produced on subpoena by Suburb H Club. That material was tendered into evidence on behalf of the Mother:
a)A document dated 21 May 2017 relates to an incident where the Father, either himself or in participation with others, flew a drone inside the club building contrary to law, and in circumstances where it presented a danger to other club users, in the opinion of the club authorities creating the document.
b)A document dated 23 July 2017 refers to an incident where the Father used abusive language to a member of the Club’s bar staff and notes that the Father “has a long history of abusing staff”[163] and which led to a letter dated 24 July 2017 from the club to the Father warning him that if such conduct is repeated he may be barred from entering the club.
c)Further documents in the exhibit relate to an incident occurring in December 2018, and a similar incident occurring in January 2019, in which the Father showed to other patrons of the Club what the Father admits in a “Personal Statement” dated 11 February 2019 and signed by him were “intimate photos and videos”[164] of a female club member with whom he had had a relationship. In the statement the Father admits that the photos and videos were taken “without her knowledge and consent” and he admitted “that I showed these photos and videos to other people in public at two occasions.”[165]
d)There are various documents relating to this matter, including the minutes of a meeting of the Disciplinary Committee of the Board of Directors of the Club on 18 April 2019, at which a resolution was made expelling the Father from the Club’s membership, and removing from him all his rights and privileges as a member.[166] This material was admitted into evidence as relevant on the basis that it goes to antisocial tendencies on the part of the Father in his dealings with other members of the public that, if witnessed by X, can have a detrimental effect on X’s development.
[163] Exhibit R2, flag [F2].
[164] Exhibit R2, flag [F8].
[165] Exhibit R2, flag [F8].
[166] Exhibit R2, flag [F11].
Exhibit R3 is composed of various documents in the material produced on subpoena by NSW Police Force, tendered on behalf of the Mother. The documents indicate that on 18 April 2019 the Father was charged with five matters by police:
a)Stalk/intimidate with intent to cause fear;
b)Intentionally record intimate image without consent;
c)Intentionally distribute intimate image without consent;
d)Intentionally distribute intimate image without consent; and
e)Threatened to distribute intimate image without consent.[167]
The Father was placed on bail conditions, and the matter was to be before the Local Court at Suburb W on 25 June 2019, four days after the interim Hearing.
[167] Exhibit R3, flag [F19].
The documents from the NSW Police Force forming part of the exhibit R3 also relate to the breach of ADVO matters before the Local Court Downing Centre on 30 August 2017, in relation to which the Father was convicted and placed on a six-month good behaviour bond. The matter was subsequently appealed in the District Court at the Downing Centre on 22 March 2018, at which time sentence on both charges was altered to the offences being proven, no conviction recorded and the Father being placed on a good behaviour bond for 12 months.[168]
[168] Exhibit R3.
X’s current routine
X started school at the end of January 2017 in kindergarten at Suburb Y School, and then moved to his current school, J School. X attends before school care from 8:00AM and after school care until 6:00PM due to the Mother’s employment requirements.[169]
[169] Mother’s affidavit affirmed 16 June 2019, [72].
In 2018, X had a speech pathology assessment and he has been attending therapy with a speech pathologist weekly since October 2018. From late December 2018 until the end of term 1 2019 X saw an occupational therapist for assistance with his writing skills.
The Mother facilitates X speaking with his paternal grandparents, who continue to reside in City D, once each fortnight.[170]
[170] Mother’s affidavit affirmed 16 June 2019, [71].
Submissions
The Father made oral submissions at the interim Hearing, and in the main those submissions dwelt on the unfairness to him of being kept from what he regards as spending appropriate time with X since the parties separated and, despite me twice indicating to him that I needed to hear submissions from him addressing the risks that the Mother asserted he represented to X’s welfare, he did not address the risk issues.
During his submission the Father said “For two years I have tried to calm down and act correctly.” I asked him “Do you see any connection between your past behaviour and you not being able to spend time with X as you would want?” to which the Father responded “I apologise for my behaviour. I was just frustrated. I’ve never had fair access in five years, the list goes on”, and did not address himself to the question I had asked.
In submissions on behalf of the Mother, Mr Longworth of Counsel pointed out that no evidence was presented by the Father as to arrangements he proposes for his care of X if he has care of X on an unsupervised basis for multiple overnight time. He submitted that the good times enjoyed by X with his Father on the three occasions of time supervised by B Contact Centre following the making of interim orders are a clear indication that there is still a good relationship between the Father and the child, raising the clear inference that the Mother has “kept the Father before the child”, as opposed to actively attempting to alienate X from the Father, as asserted so strenuously by the Father.
Mr Longworth addressed the risks to X’s welfare that the Mother asserts are presented by spending unsupervised time with the Father, and, in particular, the clear indication on the evidence that it is the Father’s fixed intent to do all he can, if given opportunity, to alienate X from the Mother.
Mr Longworth pointed out in submissions that there is no assistance to the Court on the issue of risk in the Father’s evidence by way of response to the evidence of risk matters given by the Mother in her earlier affidavits and by Ms G in her affidavit. He drew the Court’s attention in particular to the statements in the Mother’s affidavit “X loves his dad and I am careful to say positive things about his dad to him”[171] and, in relation to the three supervised visits after interim orders, “X is happy to see his dad and enjoys the time with him.”[172]
[171] Mother’s affidavit affirmed 16 June 2019, [74].
[172] Mother’s affidavit affirmed 16 June 2019, [75].
In submissions, the Independent Children’s Lawyer indicated that he supported the Mother’s position in relation to interim orders, and advised the Court that he had met with X in conference and formed the view that the relationship between X and his Father is a positive relationship, but submitted that in consequence of the risks asserted by the Mother, the evidentiary basis presented by the Mother, her witnesses, and the exhibits in relation to those risks, the Court should take a cautious approach and not vary the interim orders made on 7 February 2019.
The law
The High Court and the Full Court of the Family Court of Australia have authoritatively discussed the approach to be followed in interim parenting Hearings by reference to the legislative pathway.[173] Even in cases where there are conflicting facts and little helpful evidence, the legislative pathway must be followed.
[173] MRR & GR (2010) 240 CLR 461; Goode & Goode [2006] FamCA 1346; Marvel & Marvel [2010] FamCAFC 101.
The Court should identify the competing proposals of the parties and the issues in dispute, and identify any agreed or uncontested relevant facts. The Court is to then consider the relevant matters referred to in section 60CC of the Act and, if possible, make findings.
The Court must then have regard to the presumption in section 61DA, that equal shared parental responsibility is in the best interests of the child,[174] and decide whether or not the presumption applies,[175] and, if it applies, if it has been rebutted.[176] If the presumption has been rebutted, the Court may still consider the question of parental responsibility on an interim basis.[177]
[174] Family Law Act 1975 (Cth) s 61DA(1).
[175] Family Law Act 1975 (Cth) s 61DA(2).
[176] Family Law Act 1975 (Cth) s 61DA(3), (4).
[177] Family Law Act 1975 (Cth) s 61DB(3).
If the Court finds that an order will be made for the parents to have equal shared parental responsibility for the child, the Court must have regard to section 65DAA in relation to whether the child spending equal time with each of the parents is in the child’s best interests[178] and is reasonably practicable,[179] and, if so, consider making an order to that effect.[180]
[178] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[179] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[180] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If an order for equal time is not made,[181] but the Court has found that an order will be made for the parents to have equal shared parental responsibility for the child,[182] the Court must consider whether the child spending substantial and significant time with each of the parents is in the best interests of the child,[183] and is reasonably practicable,[184] and, if so, consider making an order the child spend substantial and significant time with each of the parents.[185] If an order for substantial and significant time with each of the parents is not made, the Court must then consider what parenting order in relation to the child’s time with each of the parents is in the child’s best interest.
[181] Family Law Act 1975 (Cth) s 65DAA(2)(b).
[182] Family Law Act 1975 (Cth) s 65DAA(2)(a).
[183] Family Law Act 1975 (Cth) s 65DAA(2)(c).
[184] Family Law Act 1975 (Cth) s 65DAA(2)(d).
[185] Family Law Act 1975 (Cth) s 65DAA(2)(e).
In all of the considerations of the matters in sections 60CC, 61DA, and 65DAA, the Court is guided by section 60CA that provides that
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child is the paramount consideration.[186]
[186] Family Law Act 1975 (Cth) s 60CA.
Section 60B sets out the objects of Part VII of the Act and the principles that underline those objects. By section 60CG, the Court is required
(1) … to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that [any parenting order]:
(a) is consistent with any family violence order; and
(b) does not expose a person to an acceptable risk of family violence.[187]
[187] Family Law Act 1975 (Cth) s 60CG(1).
Following the legislative pathway is a process that involves the Court in the exercise of a judicial discretion, because any parenting order made must be made by reference to the child’s best interest as the paramount consideration, a process that involves value judgements.[188]
[188] Bondelmonte & Bondelmonte (2017) 259 CLR 662.
The issues that are joined between the parties in the interim proceedings will dictate which of the section 60CC considerations are relevant in each matter. Considerations referred to in that section that are not relevant to the issues need not be considered.[189]
[189] Banks & Banks [2015] FamCAFC 36, [47]-[50].
I will consider the relevant section 60CC considerations, and give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway, then consider and discuss the issues in this interim Hearing in the light of my consideration of the matters referred to in section 60CC.
The Court must be cautious in interim Hearing in making findings where there are disputed facts, or where facts asserted are presented in a manner where they can be given very little weight. But even in a matter replete with contested facts and conflicting evidence, the Court must appropriately and carefully deal with the issues in contention relevant to the welfare of the child in the best way the court can and not ignore those issues only on the basis of the state of the evidence. In this regard I am guided by Full Court authority in Deiter & Deiter,[190] Chapa & Chapa,[191] Marvel & Marvel,[192] Eaby & Speelman,[193] and Banks & Banks.[194]
[190] Deiter & Deiter [2011] FamCAFC 82.
[191] Chapa & Chapa [2013] FamCAFC 52.
[192] Marvel & Marvel [2010] FamCAFC 101.
[193] Eaby & Speelman [2015] FamCAFC 104.
[194] Banks & Banks [2015] FamCAFC 36.
In relation to the risks to X asserted by the Mother to be unacceptable to the extent that she contends than any time between X and his Father currently be supervised, I am guided by the decision of the High Court in M & M,[195] particularly at paragraphs 24 and 25 of that judgment, and by the Full Court in Johnson & Page[196] at paragraphs 62 to 72 of that judgment.
[195] M & M (1988) 166 CLR 69.
[196] Johnson & Page [2007] FamCA 1235.
It is rarely open to the court in interim Hearings, and even in final Hearings, to make a finding as to whether any particular fact asserted to present a risk to the child did occur or is present, depending on the nature of the fact. The Court’s task is to make an assessment as to the probability of existence of the asserted risk, and as to the probability of that risk affecting the welfare of the child and, if so, whether that probability assessment makes the risk an acceptable or an unacceptable risk, and, if an unacceptable risk, whether that unacceptable risk can be addressed or mitigated by appropriate orders.
The considerations in section 60CC
The primary considerations in section 60CC are:
a)The benefit to X of having a meaningful relationship with both of his parents;[197] and
b)The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[198]
In applying those considerations, I must give greater weight to protecting X over the benefit X of having a meaningful relationship with his parents.[199]
[197] Family Law Act 1975 (Cth) s 60CC(2)(a).
[198] Family Law Act 1975 (Cth) s 60CC(2)(b).
[199] Family Law Act 1975 (Cth) s 60CC(2A).
What is meant in section 60CC by a meaningful relationship has been considered by the Full Court on several occasions. A meaningful relationship is one which is important, significant and valuable to X, a qualitative assessment, not a quantitative one. The Court should weigh the evidence and frame orders to ensure that X has a meaningful relationship with both parents so far as it is in accord with his best interests. The assessment of what orders should be made in X’s best interests to ensure there is a meaningful relationship with both parents will be affected by any finding I may make that there is a need protect X from any form of risk of harm, physical or psychological.[200]
[200] See, esp, McCall and Clark [2009] FamCAFC 92, citing with approval the consideration of “meaningful” in Mazorski & Albright [2007] FamCA 520 (Brown J).
It is beyond contest that X has a meaningful relationship, a close and loving relationship, with his Mother.
The evidence indicates that there is a meaningful relationship between X and his Father. The Mother says, to her credit, in her evidence that “X loves his dad” and “X is happy to see his dad and enjoys the time with him”.[201] The evidence contained in the Supervised Contact Reports of the three occasions when X spent time with his Father pursuant to the interim orders show a bond of affection and spontaneous physical affection contact between them.
[201] Mother’s affidavit affirmed 16 June 2019, [75].
After a hiatus of time between Father and son from 3 December 2017 until 11 March 2019, during which they only spent time with each other on some occasions when the Father attended functions involving X at his school, X had no hesitation in going to and spending that time with his Father with the supervisor and showing and expressing his affection for his Father.
There is benefit to X in being able to continue to develop his meaningful relationship with his Father so that he grows up with a Father figure and with the overall influence in his life and development of both of his parents. However, in determining what orders should be made with X’s best interests as the paramount consideration so that he can continue to develop his meaningful relationship with his Father, I must examine the risks to X asserted by the Mother in consequence of him spending time with his Father and, if I find there to be risk or risks, make an assessment as to whether those risks are acceptable or unacceptable, and if unacceptable, what orders, if any, can be made to address unacceptable risk.
The issue in this interim Hearing is the time that X should spend with his Father and what conditions, if any, should be imposed on that time. The Father contends that he does not present any risk to X in their spending time together and that orders should be made immediately for him to spend time with X each alternate weekend from 3:00PM Friday until 8:30AM Monday, for half of all school holiday periods, and for time on special occasions being Father’s Day, the Christmas period and at New Year.
The Mother contends that there should be time spent between X and his Father, but that the Father presents a risk to X in consequence of:
a)The danger of exposing X to antisocial conduct by the Father towards the Mother and towards other members of the public;
b)The expressed intent of the Father to bring influence to bear upon X so as to alienate X from his Mother, and cause him to hate his Mother and prefer the exclusive company and guidance of his Father as parent;
c)The Father’s propensity to anger with the possibility that he may physically abuse X; and
d)The Mother’s assertion that the Father has a propensity to abuse alcohol and so may render himself incapable of properly caring for X if in his unsupervised care.
The Mother asserts that the Father is affected by mental health problems, though there is no specific evidence in that regard other than the Father’s admission that he has been diagnosed with adult attention deficit hyperactivity disorder, for which he is medicated.[202]
[202] Father’s affidavit affirmed 11 June 2019, [15].
In relation to the risk to X consequent upon the Father’s propensity to engage in antisocial behaviour towards the Mother and towards other members of the public, there is the evidence of the Mother and of Ms G of the family violence perpetrated by the Father against the Mother by way of repeated derogative taunts, including the use by him in public of a particularly serious and offensive word to describe the Mother, repeated over and over by him such that there is the evidence of Ms G and of the Mother that the offensive description has been picked up and repeated by X.
The Father’s conduct to the Mother on the airline flight from City D to Sydney was such as to arouse sufficient concern in a person who was otherwise a stranger to the family, Ms G, to lead her to make enquiries of domestic violence and child protection authorities as to what could be done about the Father’s behaviour and to make herself available to give evidence for the Mother in these proceedings.
The evidence presented of the Father’s actions that came under the notice of the administration of the Suburb H Club shows that the Father has a propensity to be abusive to members of the public (being the bar staff), and to so far disregard the lawful rights and personal dignity of a person with whom he had a relationship as to covertly take photos and film that person in a compromising situation and to display same to other persons who are acquainted with her. This last escapade lead to the disciplinary committee of the Club determining that he be barred from the club and stripped of all of his membership privileges.[203]
[203] Exhibit R2, [F11].
The Father showed a disregard of his social responsibilities by his breach of the protection order covering the Mother, for which he was placed on a twelve month good behaviour bond and avoided the recording of a conviction only on appeal.
There is no indication in any of the evidence that the Father feels or has shown any remorse for the above-mentioned incidents. To the contrary, following his “Personal Statement” admission and apology in relation to the covert photos and videos incident (contained in exhibit R2) signed by him on 11 February 2019, he thereafter is alleged to have threatened and harassed the victim with threats that he had not deleted all of the offending material and that he would make the material public.[204]
[204] Exhibit R2, flag [F10].
The Mother presents evidence of physical family violence perpetrated by the Father upon her:
a)Throwing a weighted doorstop at her;[205]
b)Smashing a wine glass and a dish in her presence;[206]
c)Shoving her;[207]
d)Kicking her;[208] and
e)Pinching her repeatedly so as to cause bruising.[209]
[205] Mother’s affidavit affirmed 16 June 2019, [20].
[206] Mother’s affidavit affirmed 16 June 2019, [22].
[207] Mother’s affidavit affirmed 16 June 2019, [25].
[208] Mother’s affidavit affirmed 16 June 2019, [25].
[209] Affidavit of Ms F sworn or affirmed 5 February 2019, [15].
None of these accusations are addressed by the Father in his affidavit, despite them having been asserted by the Mother in her affidavit of 12 October 2018.
I find that the Father does present a risk of psychological harm to X in the event that they spend time together on an unsupervised basis. This is due to the probability, based on the Father’s conduct reveal in the evidence, that X will be exposed to antisocial behaviour by the Father towards other members of the public (and towards the Mother, but this is dealt with more fully below), with the very real risk that it may cause X to regard such behaviour as appropriate because he is observing the behaviour by a person whom he loves and trusts, from whom he will expect guidance on what is right and wrong and on how to conduct himself.
I find that this risk to X’s welfare can be mitigated by any time between X and his Father being supervised in circumstances where the supervisor can provide a report covering the conduct of the Father during the occasion.
In relation to the risk to X presented by the possibility of him being exposed to outbursts of anger on the part of the Father, on the evidence, I find that the Father has a propensity to anger as displayed in the occasions of family violence revealed in the evidence, and, if on no other basis existed, on the basis of the Father’s behaviour on the airline flight from City D to Sydney, an event which involved:
a)Angry and public abuse of the Mother by him;
b)The public use by the Father towards the Mother of the most offensive of language; and
c)Assault of the Mother that I find was perpetrated by the Father in the grip of anger caused by his frustration during his interrogation of the Mother about her future intentions.
There is also the risk presented to X of being exposed to physical violence at the hands of his Father, if he causes his Father to be angry with him by, for instance, and I base this on the correspondence emanating from the Father, X at any time demonstrating to the Father a lack of the response or affectionate conduct expected of him by the Father.[210]
[210] Mother’s affidavit affirmed 16 June 2019, [29], [6].
I am careful to point out that this is not a finding that the Father has been physically violent to X, or that the Father will be physically violent to X, it is a finding that there is, based on the Father’s past behaviour, that possibility, and therefore I must assess the probability of such occurring and make an assessment of the risk and consequent finding as to appropriate parenting orders.
There is cogent evidence that the Father has again and again expressed himself in writing to the effect that it is his fast intent to inform X of the history of the parenting dispute between the Mother and the Father, such information being wholly from the Father’s point of view, and, more than that, intended to influence X to hate his Mother, to the point where X will be moved to physically attack her. The only possible interpretation of the Father’s correspondence is to find that that is his aim, and that having alienated X from his Mother, the Father will have some satisfaction and ‘revenge’ for what he sees as the Mother’s conduct in keeping X from him.
I have set out fully the evidence relating to this risk because of the blatant and repeated manner in which the Father has expressed this intention, and I find that this evidence leads to the very high probability that, given the opportunity, the Father will make good upon his threatened intention, and do all that he can to turn X against his Mother, such that at the earliest possible time, X will choose to bar his Mother from his life, and even achieve the Father’s aim stated aim of X assaulting his Mother.
I find that this expressed intent by the Father to turn X against his Mother, and destroy the relationship between Mother and son, is a most serious risk to X’s welfare and one that necessitates parenting orders being made that guard against this risk, while still affording X the opportunity to have the benefit of a meaningful relationship with his Father.
It is to be greatly hoped that in consequence of this finding and the orders which must flow from it, the Father will come to realise the terrible harm that his stated intentions would cause to X and turn aside from any proposal to follow that course, and so conduct himself as to, over time, satisfy the Mother and the Court that he accepts the risk of harm that such a course involves for X and has turned his back on it, and conduct himself as a responsible co-parent.
The Mother asserts that there is a risk to X’s welfare from the Father’s abuse of alcohol. I do not find that there is evidence upon which such a finding of risk can be made. I note that the Father seeks an order on the interim basis to the effect that neither parent consume more than two standard drinks on any day while X is in that parent’s care, and the Mother seeks an order in that the Father be restrained from consuming alcohol during periods when X is in his care.
Whilst the evidence does not support the probability of a risk to X from alcohol abuse by either parent, I intend to make an order addressing the use of alcohol by both parents when X is in their care, whether supervised or not, but only to the extent of them not consuming alcohol such that would be an offence for them to drive a sedan motor vehicle in New South Wales on a full licence.
Finally, the Mother asserts that there is a risk to X consequent upon mental health issues affecting the Father. However, the evidence that she presents in relation to the asserted risk under the heading “[The Father’s] Mental Health” in her affidavit does not go to any specific aspect of mental health, but goes to the other risk matters asserted by her being family violence and the Father’s expressed intent to alienate X from her.
The Father gives evidence that in June 2015 he was diagnosed by his psychiatrist, Dr L, with adult attention deficit hyperactivity disorder and that he is medicated with dexamphetamine on that doctor’s prescription, but there is no evidence that his disorder itself presents any risk and nor is there any evidence presented that his disorder is an element in or is a reason for or any excuse for his risk conduct outlined above.
I find that the risks to X consequent upon the findings I have made are unacceptable risks. It is unacceptable to put X at risk of being so influenced by his Father’s hatred of his Mother that X is turned against his Mother and alienated from her. It is unacceptable to put X at risk of being exposed to antisocial behaviour on the part of his Father such that X could come to ‘learn’ that such behaviour is appropriate and to be adopted as his own.[211] I find that those unacceptable risks can be addressed and mitigated by having time between X and his Father supervised, in circumstances where there can be a report by the supervisor, which necessitates supervision by a commercial contact supervision agency, and that such supervision will necessarily limit the duration of occasions of time between X and his Father on the interim basis to short periods of a couple of hours.
[211] See, eg, Mother’s affidavit affirmed 16 June 2019, [42]: “Mr Mancari repeatedly said “I will do everything I can to educate X against you …”” (emphasis added).
I find that the risk to X of him receiving any physical abuse from his Father in anger is an unacceptable risk, though not of a high probability any risk of a physical abuse of a child by an adult being unacceptable, and can be dealt with by an appropriate injunctive order restraining any physical punishment of X by his Father.
I must also give some attention to the risk to X’s psychological welfare asserted by the Father to exist as a consequence of the Father’s assertion that the Mother by her conduct is attempting to alienate X from his Father. The evidence does not support that assertion. I find that there is no such risk to X.
Accordingly, I find in relation to the primary considerations in section 60CC(2) that I must give greater weight to the need to protect X from the risks to his welfare that I have identified above over the benefit to X of having a meaningful relationship with his Father, by making orders that set conditions upon the time spent between X and his Father so as to address and mitigate the risks. Those conditions relate to duration of time for time spent, and a requirement for supervision on a reportable basis, conditions which necessarily impose a limit on the opportunity for the development of that meaningful relationship.
I will now consider the additional considerations set out in section 60CC(3).
Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
I do not have any direct evidence of any views expressed by X in relation to the time that he would spend with his Father, and at seven years of age, any such expressed views would not carry a great deal of weight unless it could be found that they were linked in some way to conduct of a parent or influence of a parent brought to bear on X.
I was informed in submissions by Mr Grooby as the Independent Children’s Lawyer that he was able to make an assessment in conference with X that the relationship between X and his Father is a positive one, which would indicate that X’s view is in favour of spending some time with his Father. I also have the evidence of the Mother that X loves his Father and that he is happy to see his Father and enjoys his time with him, and I can also infer from that that it would be X’s view that he wants to spend time with his Father.
The nature of the relationship of the child with each of the child’s parents
I have referred to and made findings about the nature of the relationship of X with each of his parents. The relationship between X and his Mother is a close and loving relationship and a relationship in which his Mother provides all of X’s financial and almost all of X’s emotional support. The relationship between X and his Father is a more difficult question, and though the evidence clearly leads to the finding that there is a relationship and that it is a loving relationship, nevertheless the long periods of time during which there has been no contact between Father and child will have had some effect on the depth and nature of the relationship.
I have found that it is in X’s interest and to his benefit to have a meaningful relationship with his Father, but I am not in a position, on the current evidence, to evaluate in any greater depth the current state of that relationship or its nature.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Mother has fulfilled her obligation under section 66C of the Act to maintain X. She has been his sole financial support since the parties separated and was his co-financial support with the Father prior to their separation. The Father, however, has failed in his obligation to maintain X since the parties separated. The Mother says that the Father has never paid any child support for X. There is no evidence from the Father of him providing any financial assistance to the Mother for X’s financial support following separation. The Father’s failure to provide any financial support is in all likelihood a consequence of his expressed firm conviction that everything is ‘unfair’ in relation to his time with X, and the resultant attitude that the Mother is not entitled to receive financial assistance from him, even though such financial assistance is for the benefit of X.
I find that the Father has failed in his obligation to maintain X and that failure is a factor I will take into account in relation to any financial burden to fall on the Father in consequence of conditions for supervision by a commercial supervision agency of time between the Father and X.
The likely effect of any changes in the child’s circumstances
In the event that no order was made for time to be spent between X and his Father – which is not a result contended for by either party or the Independent Children’s Lawyer – then there would be a complete separation of X from his Father, and I find that given that there is a relationship between them, that X has a love for his Father and is comfortable and content in his company, such a result would be not in X’s best interests.
If time between X and his Father were to be unsupervised, then there would be no basis in the evidence to find that there was any practical difficulty or expense involved. However, on the basis of the findings I have made as to unacceptable risk, it will be necessary for any time between X and his Father to be supervised by a commercial supervision agency so that written reports of that time can be available, and an independent and unbiased mind can be brought to bear on protecting X from any behaviours on the part of his Father that present a risk to his welfare. That will involve the practical difficulty of arranging that supervision and the expense of paying for that supervision.
Since the interim orders were made on 7 February 2019 arrangements have been in place for supervision by the commercial agency B Contact Centre and the Father has been fixed with the cost of that supervision. In light of the findings I have made about the Father’s failure to comply with his obligation to maintain X, I find that it is appropriate that such supervision be at the expense of the Father. The evidence presented as to the annual expenditure of the Father on gambling at the Suburb H Club leads to a finding that the expense involved in arranging commercial supervision of his time with X is well within the Father’s financial means. Accordingly, I find that such expense is not such that it would substantially affect X’s right to maintain personal relations and direct contact with his Father on a regular basis.
The capacity of each of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
Consideration of parental capacity involves the findings I have made in relation to the unacceptable risks presented to X when spending time with his Father. Though the evidence would tend to show that when X is in the Father’s care he has an enjoyable time and is fully and properly cared for by his Father as far as his physical needs are concerned, it is his emotional and intellectual needs that are of most concern in the light of those risks – the Father’s capacity to shield X from the Father’s propensity to antisocial behaviour, to anger and to bringing influence to bear on X so as to alienate him from his Mother. The probability of the Father’s lack of capacity in this regard is another consideration leading me to find that it is necessary to place conditions of supervision on any time spent between Father and X.
The Mother has demonstrated an appropriate capacity to provide for X’s needs, including his emotional and intellectual needs. In relation to his physical day-to-day needs, it has been the Mother alone as between herself and the Father who has provided for those needs since the parties separated.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In considering the attitude to X and the responsibilities of parenthood demonstrated by the Father, I am again necessarily drawn back to the risk elements examined above, and I must find that much of the evidence, and in particular the Father’s written statements of his hopes and intentions in relation to the future between himself and X as one that excludes the Mother, show an inappropriate and, indeed, potentially seriously harmful attitude by the Father to those responsibilities.
My analysis of the evidence leads to the conclusion that the Father prioritises his own need to have the benefit and the comfort of having X in his care over and above the benefit to X and X’s needs and welfare generally. The Father does not seem to be able to separate his own needs and desires from X’s and this displays an inappropriate and inadequate attitude to the responsibilities of parenthood.
The Mother has made repeated attempts over the years, since the parties separated, to arrange time between X and his Father, including making special arrangements at Christmastime and on X’s birthday, whilst acting protectively of X in the face of the risks presented by the Father’s conduct and stated intentions. In this regard, I find that the Mother has displayed an appropriate attitude to the responsibilities of parenthood, in that she has patently not brought influence to bear on X so as to attempt to or achieve alienation of him from his Father, has attempted within the bounds of appropriate protection to foster the relationship between Father and child and, by entering into the consent orders on 7 February 2019 and by seeking the orders she proposes on interim Hearing, has shown her intention to continue in that regard.
Any family violence involving the child or a member of the child’s family
I have examined the evidence relating to family violence perpetrated by both the Mother on the occasion of 15 December 2014, though she asserts in self-defence, and to family violence perpetrated by the Father on several occasions, and I have found that the Father has perpetrated family violence in the nature of repeated verbal abuse and physical violence against the Mother. This violence has been perpetrated by the Father in the presence of X and has affected X to the extent that he has witnessed his Mother being hurt – the pinching of her arm on the plane – and he has been influenced to repeat the extremely offensive taunts and descriptions used by the Father in relation to the Mother, almost certainly as a matter of rote and without understanding the meaning thereof.
A provisional family violence order applied for the protection of the Father from the Mother following the incident on the evening of the start of the Martin Place siege in 2014, though on the evidence that order was a very short duration. There have been at least two family violence orders made for the protection of the Mother and X from the Father, including the extension of the last of those orders for a further period of two years before the expiration of the original term of one year.
Those family violence orders restricted the contact and communication between them and were made in circumstances where there had been persistent large-volume harassment of the Mother, and threats directed toward the Mother by the Father. I do not have evidence in relation to any particular evidence admitted in the proceedings before the Local Courts for those orders or as to any findings made in those courts other than a finding that the orders should be made.
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
These are interim proceedings and therefore it is not possible to make orders that would be less likely to lead to the institution of further proceedings as there are substantive proceedings on foot which, unless settled between the parties beforehand, will come to a final Hearing in due course.
Parental responsibility
I find that the presumption that it is in the best interests of X for his parents to have equal shared parental responsibility for him as set out in section 61DA(1) of the Act does not apply, because I have found that there has been family violence on the part of both the Father and Mother. As the presumption does not apply, I may go on to consider the issue of parental responsibility, but I find that in the circumstances of this case, and particularly given
a)The limited involvement that the Father has had in X’s day-to-day life at least since 3 December 2017; and
b)In view of no order as to parental responsibility being sought on an interim basis by either party,
it is appropriate that I do not make an interim order dealing with parental ability. The parents will continue to each have parental responsibility for X pursuant to section 61C of the Act.
As I will not make an order that X’s parents to have equal shared parental responsibility for him, I do not need to consider the matters referred to in section 65DAA of the Act.
Conclusion
I have found that there is a benefit to X of having a meaningful relationship with his Father, and I have also found that there are unacceptable risks to X in spending time with his Father, but that those risks can be addressed by appropriate orders placing the condition of supervision by a commercial supervision agency on the time spent between X and his Father.
The interim orders made by consent on 7 February 2019 provided for time between X and his Father to occur each alternate week between 3:00PM and 6:00PM on Thursday afternoons supervised by B Contact Centre at the expense of the Father, and the evidence shows that of the three occasions of such time occurring prior to the interim Hearing, the first was on a Monday, the second on a Wednesday, and the third on a Thursday. Accordingly, I find it is appropriate to make orders that
a)Time between X and his Father continue in accordance with the general scheme of the existing interim orders;
b)It occur for a period of up to three hours, subject to arrangements with B Contact Centre or such other commercial supervision agency as the parties may engage by mutual agreement; and
c)That time occur on a fortnightly basis on a Thursday or such other day as may be agreed between the parties and suitable to the supervising agency.
Both parties seek an order on an interim basis that X live with his Mother, and I find that such an order is in X’s best interest and I will make that order.
The Mother sought an order that the Father’s time with X be suspended for one Thursday nominated by the Mother during the school holidays at the end of terms 1, 2 and 3 and for two Thursdays nominated by the Mother during the school holidays at the end of term 4 and from 24 December 2018 to 14 January 2019, no doubt meaning 24 December 2019 to 14 January 2020. The time that X would spend with his Father under the interim orders I propose to make is limited due to the necessity of making orders that address the unacceptable risks that I have found. In that regard, the time will be limited to a duration of three hours and will occur on a fortnightly basis. Given that the time is so limited, I do not consider that it would be in X’s best interests to make the order for suspension of the time as sought by the Mother and so cause a period of between four and six weeks to occur between occasions when X spends time with his Father because of school holidays.
The Mother sought an order by way of a personal protection order pursuant to section 68B of the Act, protecting both X and herself and restraining the Father from doing any act or thing to communicate with the Mother or with X, and from coming within 500 metres of the Mother’s residence, place of employment, and place of study and from attending at X’s school.
I find on the basis of the family violence findings that I have made, and on the basis of the sentiments conveyed by the Father in his correspondence with the Mother and with others, that it is appropriate to make that order, with the exception that the Father may attend at X’s school for functions held there to which parents are invited and not otherwise. I consider that an exclusion distance of half a kilometre is unnecessary and excessive, and I propose to make that distance 100 metres in the order.
Both parties seek orders restraining each of them from denigrating the other party or any member of the other party’s family to or in the presence or hearing of X, discussing these proceedings or any of the issues raised in the proceedings with X or in the presence or Hearing of X and from using physical discipline on X. I will make orders to that effect.
An order is sought by the Father that X continue to attend J School until the end of year 6. That issue was not canvassed in the evidence or in submissions in the interim Hearing, and I do not find that there is a basis to make that order.
As discussed earlier in these reasons, I will make an order restraining each of the parents from consuming alcohol to the extent that it would be illegal for them to drive a sedan motor vehicle in New South Wales on a full licence. The Mother sought an order that the Father be restrained from consuming alcohol during periods and X is in his care and the Father sought an order that neither party consume more than two standard drinks on any day when X is with them. Whilst there is no evidence to indicate that there is any element of risk on the part of the Mother relating to alcohol consumption, and I have found that there is not sufficient evidence to make a finding that the Father presents a risk in this regard, making a mutual order as between the parties is appropriate on the interim basis so that any such issue can be put away, and on the basis that a parent with care of a child should be in a position to convey that child by legal use of a motor vehicle in case of emergency.
I find that there is no basis upon which to make the order sought by the Father that neither parent move/relocate with X outside Sydney without a Court order.
I find that there is no basis on the evidence to make orders sought by the Father that the Mother undertake an anger management program or a “Women’s Behaviour Change Program”.
I do find, on the basis of the findings I have made in relation to family violence perpetrated by the Father, that it is appropriate to make an order as sought by the Mother, that the Father enrol in and complete an anger management program and enrol in and complete the “Men’s Behaviour Change” program offered by C Counselling.
The Father sought an order that the Mother commence random alcohol and drug testing at the Mother’s cost and provide to the Father and/or the Independent Children’s Lawyer the test results. I find that there is no basis in the evidence upon which such an order should be made.
In line with a recommendation made by the family consultant in the Child Dispute Conference Memorandum to Court, I find that it is appropriate to make an order that each of the parents engage in a parenting course to assist them to support X’s development, his relationship with each of them and his capacity to regulate his emotions, such as “Bringing up Great Kids”.
Accordingly, I make the orders as set out at the beginning of these Reasons.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 10 December 2019
(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:
(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and
(b) given each other party a reasonable opportunity to examine or copy the documents in question.
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