MELLAND & GILVRAY
[2020] FCCA 1995
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MELLAND & GILVRAY | [2020] FCCA 1995 |
| Catchwords: FAMILY LAW – Parenting – dispute about best interests of two and half year old child – parents marrying after meeting on matrimonially-orientated Country H website – marriage solemnised only days after the parents together in Australia – whether the father only concerned with permanent residence – marriage lasting only 2 months – father having seen child only 3 times – consideration of mother’s allegations of family violence – Independent Children’s Lawyer supporting interim orders and supervised time – orders made as sought by Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), s.60CC Evidence Act1995 (Cth), s.140 |
| Cases cited: Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR MELLAND |
| Respondent: | MS GILVRAY |
| File Number: | PAC 5421 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 9 July 2020 |
| Date of Last Submission: | 9 July 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 30 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Marcou and Associates Pty Ltd |
| Counsel for the Respondent: | Mr E.Taghdir |
| Solicitors for the Respondent: | Taft Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Monteiro |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
Until further order, the Mother have sole parental responsibility for the child X born in 2017 (“the child”).
The child live with the Mother.
The Father spend time with the child supervised by Ms C, with the costs of such supervised visits to be borne by the Father.
Both parties enrol into the Tuning In To Kids course as recommended by the Independent Children’s Lawyer.
There be liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Melland & Gilvray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PAC 5421 of 2018
| MR MELLAND |
Applicant
And
| MS GILVRAY |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of a young child, X born in 2017, which arises in most unusual circumstances. His parents were only in a relationship for the briefest period of time from February 2017 until May 2017. Their interrelationship has been characterised by significant allegations of family violence allegedly perpetrated by the father on the mother and, indeed, upon X. The matter has been rendered more difficult by the fact that the parties were until recently self-represented and their affidavit material reflected this circumstance.
The applicant father wishes to commence with supervised time with his child and the mother’s position can be stated succinctly. She does not want the father to spend any time with the child whatever and seeks further an order that she have sole parental responsibility. The Independent Children’s Lawyer supports the father’s application for time, noting certain qualifications to the mother’s credibility.
It should be noted clearly at the outset that one of the real difficulties for the court in determining this matter is the fact that, as I will explain, I find both parents to be completely unreliable witnesses, well able to make assertions that are untrue, and both given to significant elements of florid exaggeration.
For the reasons that I follow I propose to make the orders sought by the Independent Children’s Lawyer.
Agreed or Uncontroversial Matters
The father was born in 1985 and the mother was born in 1987. They are both of Country H ethnicity and appeared both to be of Christian faith. The father went to Country G for study and it appears that in 2014 the parties may first have contacted each other over an online site made available to Country H people seeking to foment a relationship.
It is agreed that the mother visited Country G for a family marriage in 2014 and it appears that the parties did actually meet on that occasion. There is some dispute as to the extent to which they maintained contact thereafter. The father says they remained in regular contact and the mother says there was no contact until 2016.
In either event the father came to Australia early 2017 and became engaged to the mother in early 2017. In early 2017 the parties left Victoria for Queensland for a honeymoon and during that honeymoon the wife started to experience symptoms of pregnancy. There is a vivid dispute between the parties as to whether the father kneed the mother on a number of occasions in the abdomen with a view to procuring an abortion but on 2 May 2017 the parties separated. An interim Intervention Order was made in the wife’s favour on 25 May 2017 which was made final on 18 August 2017. It lasted until 27 July 2018.
In 2017 X was born as earlier noted, and on 24 December 2018 the father who was then living in Sydney came to Melbourne and actually met the child. It will be appropriate to return to that visit in due course.
On 19 January 2019 the father returned again to Melbourne and also saw the child on 20 January 2019. Once again there is vivid dispute between the parties as to what occurred on these occasions.
On 20 March 2019 a further Intervention Order was applied for and the outcome of that is not perhaps entirely clear. A further Intervention Order has been applied for by the mother on 11 April 2019.
Despite interim orders designed to enable the father to have time with the child, which involved him enrolling in July 2019 at the Suburb E contact centre, the mother has refused to so enrol and indeed has made it plain that she will go to jail rather than to allow anything to occur that would have the outcome of the father seeing the child.
The Parties’ Affidavits
The father filed two affidavits in November and December 2018 which did little more than articulate that he wished to spend time with his child and sought shared parental responsibility. His amending initiating application filed on 10 December 2018 sought relevantly DNA parenting testing “to be completed as it may be required by Child Support and other relevant institutions”.
The mother’s first affidavit filed on 27 February 2019, likewise at a time when she was self-represented, is not in proper form. I note however that in the materials annexed to the affidavit she relevantly asserts domestic violence in 2017 when:
…he kicked me servile times when I was pregnant with my son and forced me to have an abortion. He booked an appointment for me at the abortion clinic. He threatened kill my son and I and go back to Country H.
She went on to assert that on 20 January:
Mr Melland got very angry at my son and screamed at him to be quiet. My son wouldn’t stop crying and screaming every time he came near him, Mr Melland got even angrier and hit my son on his mouth.
In a further affidavit filed on 19 March 2019 once again the mother appended a number of materials. I note that on 31 May 2017 an officer of the Department of Immigration and Border Protection had written to the mother confirming:
…that the Department has received your recent notification that you wish to withdraw your nomination in support of Mr Melland application for a permanent visa on spouse grounds.
The affidavit also appends what is said to be a loan agreement in respect of the maternal grandmother lending the father $7000 for visa fees, such agreement said to have been entered into on 19 April 2017. Various statements made to the police by the mother and her own mother are also appended which repeat the assertions of the assaults in 2017. I note that in a statement made to the police on 18 May 2017 the mother asserted that during her honeymoon in 2017 she had signs she might be pregnant and that:
Mr Melland was saying comments to me that he wanted me to terminate the pregnancy and didn’t want me to have a baby.
She went on to assert that the father had kneed her repeatedly to the stomach on 8 May 2017 and that she had had a scan on 12 May 2017 showing that no damage had been done. I note that in a further statement made to the police on 13 March 2019 the mother described inter alia the incident on 20 January 2019 where it was asserted that:
…Mr Melland slapped X on the mouth with an open hand once.
The statement went on to say that on the same occasion the father put his hands around the mother’s throat and said he was going to kill her and that:
X had a slightly swollen lip and I took him to Suburb B Medical Centre who told me to ice it and gave him some nurofen.
I note that it would seem from an appended letter from Pastor Mr L dated 14 June 2017 that the mother made complaint to him on 16 May 2017 as to being kicked in the stomach. It would also appear that the mother saw a Dr M on 17 May 2017 and likewise reported that the husband kicked her in the abdomen about a week previously.
The husband filed a further affidavit on 20 March 2019. He roundly denied all allegations of violence made against him. He also asserted that from the day they got married the wife asked him to sell his parental house and land back in Country H which led to arguments. I note that the Intervention Order was in place from July 2017 to July 2018. The father did however append to his affidavit photographs of himself, the mother and the child allegedly taken at the restaurant where an assault had been alleged. There is also a photograph of him holding the child and a further photograph of all three family members allegedly on 20 January 2019. I shall observe now that these photographs all show the parties in my view somewhat expressionless but I do note that the mother is in two of the photographs clearly very close to and one might even say inclining her head in towards that of the father without any obvious expressions of distaste.
Also annexed to the affidavit are a series of text exchanges between the parties. Messages exchanged on 21 January 2019, after the father had returned to Sydney, are on their face extremely affectionate on the part of each of the parents. Inter alia the mother texted:
Goodmorning Mr Melland, baby and I good … Glad you got back home safely. Have a nice day too. We love you too –
and then three heart emojis. A similar message was sent the following day on 22 January 2019:
Goodmorning Mr Melland, baby and I are good,his sleeping time.. Enjoy your day aswell … Chat soon, we love you xo –
and then three heart emojis. Similar messages were sent on 23 and 24 January 2019. Also annexed are what is said to be photographs taken on 24 December 2018. Perhaps the only point I would take is that a photograph of all three family members shows once again in my view on the parents’ part at least a slightly stilted visage, but certainly no suggestion of any fear or concern in the demeanour of the mother. I note from the marriage certificate that the marriage plainly took place on 11 March 2017.
The wife’s next affidavit filed 25 March 2019 merely appends an application for a summons or warrant taken out by the mother and an application for an Intervention Order taken out on 20 March 2019 said to have arisen from the events on 20 January 2019. The father’s next responding affidavit filed 26 March 2019 responds to the mother’s version of events in January of that year and appends additionally texts on 24 December 2019. I note that on 24 December 2019 at 22:41 the mother texted:
Had a great time together Mr Melland, baby and I love u; XOXO –
and then some emojis beneath which there is again a family photograph showing the parents close together and with no obvious distaste on the part of the mother. Other photographs likewise show the parents with their heads in close proximity and indeed in one instance the mother smiling. On 25 December the mother responded to a message from the father wishing her and the baby a good day texting:
Merry christmas Mr Melland, baby and I wish you were here with us today. Enjoy your day, –
three heart emojis and:
XOXO –
which latter symbols it seems are agreed to stand for kisses and hugs respectively.
The mother’s next affidavit filed on 23 December 2019 again merely appends further documents including a complaint by her own mother in the State Magistrates Court, the final outcome of which is not in any way clear albeit that the complaint appears to suggest that the husband made two small repayments to her mother. I note it appends the application for an Intervention Order made on 20 March 2019.
The father’s final affidavit filed on 28 April 2020 was compiled at a time when he was legally represented. Much of the matters set out in the agreed section of this judgment come from that affidavit. I note that the father appended as 3 repeats of the photographs already referred to. By now he was living in Victoria in Suburb M and was undertaking casual work and I note that he said he has a bridging visa.
Despite his legal representation, the father’s account of the development of the relationship between himself and the mother remains extremely sketchy. He deposed that they met on WhatsApp in about mid 2014 while the mother was still a student. They met in late 2014 as already recorded. At paragraph 9 he deposed simply:
When the respondent mother completed her studies, we continued to communicate, and we planned that we should get married in 2017.
The father repeats that he had made it clear he did not want to move to Australia and was hoping the mother would come to Country H. He deposed at paragraph 10:
I had a great job and good prospects. All my family are in Country H and I love being in Country H my home. Unfortunately, the respondent did not want to come to live in Country H, and I sacrificed my self to come to Australia to try and make it work. I thought the respondent was worth the sacrifice I was making. I had known her for more than two and a half years, communicating daily.
The mother’s final affidavit likewise filed with the assistance of lawyers was filed on 2 July 2020. She deposed that the incident on 8 May 2017 when she was allegedly kneed in the stomach took place in the context of an argument about finances. She deposed that the husband threatened to kill her and the child on 12 May 2017, a threat slightly strange given that the child was not only not born but only in the very earliest stages of development. She deposed that there was an Intervention Order taken out thereafter and that there was no contact until the father issued proceedings in December 2018. She repeated her assertion that on 24 December 2018 she had been kept in the car at the beach and repeated the allegation of an assault on 20 January 2019. By now the allegation was put at, “The applicant then hit him on his mouth with a closed fist.” On the same occasion the mother deposes that the father threatened to kill her and had strangled her.
She went on to depose to taking out an Intervention Order as a result on 11 April 2019 and deposed to her refusal to enrol at Suburb E or otherwise facilitate time with the father.
The Report of the Department of Health and Human Services
The report from the department is dated 21 June 2019. Relevantly I note that on 5 March 2019 a report was made following the receipt of a notice of risk filed by the mother which had asserted that the father slapped X across the face at the time of last contact. I further note that when Child Protection met the father on 21 June 2019 he:
…became defensive towards Child Protection when asked about his current visa situation, and advised he may remain in Australia if able to prove he has a child. Mr Melland indicated he would like to have a relationship with his son, which he understood would need time to build.
Unsurprisingly the father presented as unfamiliar with X’s routine and needs given his lack of contact with him.
I note that in her final affidavit the mother deposed at paragraph 30:
On 29 January 2019, after the court hearing the Applicant offered to take us to the Airport, and I agreed as it would give him time to spend with X.
The Submissions Made and Evidence Given at Court
What follows is taken from my notes. Self-evidently it is not a transcript but recorded matters that I found of significance.
The Opening and Evidence of the Father
Counsel pointed to the fact that X is two and a half and has only seen his father on three occasions in Christmas 2018 and twice in January 2019. He submitted the father had sought updates but when the child was born telephone numbers were changed and a location order was required to enable time to occur. There are three allegations of violence. The first was said to be on Christmas Eve of 2018 at Suburb N with the mother not being allowed out of the car at a fast food restaurant. The next allegation is that the father attended church and a Country H restaurant with the child in January 2018 at which he was alleged to have hit the child in the mouth. There has been no time spent since despite orders which the mother has brazenly failed to comply with. The father seeks compliance. The mother has filed an appeal in February 2020 and does not accept in relation to the spend time orders and the watchlist issue and she does not accept the father as a part of X’s life.
The father was called and adopted his affidavits as true and correct. Under cross-examination by counsel for the mother the father confirmed that he is a construction worker. He met the mother in 2014 on a matrimonial website. He was living in Country G and the mother was living in Australia. They met in Country G at a cousin of the mother’s wedding in 2014. He said that they were in continuous touch. They were texting on WhatsApp. The relationship did not start in 2016. He left Country G in 2015 and was living in Country H. He had undertaken a postgraduate qualification and was working in Country G. He denied applying for permanent residency in Country G and said he went back to Country H. He did not want to live in Country G although he was making points when was working but he did not want to apply. He wanted to strengthen his credentials. He worked in public relations in 2017 and after that in construction. He was living in Sydney because there were not many jobs in public relations in Victoria. He disagreed that he was trying to stay in Australia. He came to Australia in early 2017 and they became engaged in early 2017. He was renting a room and she was living with her parents. They started living together in early 2017.
It was put to the father that he married the mother to stay in Australia. The father said they were talking since 2014. He asked her to come to Country H but she did not want to. She looked like a God-fearing person and he said he would sacrifice himself so he came to Australia.
The husband said that they went on a honeymoon to the Region O in early 2017. It was put to him that the wife became symptomatic of pregnancy and he said this was from early 2017 onwards. He said he was happy to become a father and was not upset when he found out. He denied making an appointment at an abortion clinic on the Region O. He said he was very happy and had never booked an abortion clinic. He disagreed that the mother had left and gone to the airport and said she had not returned the next day but was with him every day for the 15 days of the honeymoon.
An appointment at Suburb B in early 2017 confirmed that the mother was pregnant. It was put to him that on 8 May 2017 there was an argument about the finances but he disagreed. There was no argument about him being secretive at his finances. They had a joint bank account. It was nothing like that at all. He never kneed her in the stomach. It never happened. He did not apologise nor did he say it was an accident.
It was put to him that on 12 May 2017 he was talking to his own father on the phone. He denied this. The mother did not want to talk to his father. This incident never happened. He speaks to his father every second day. She had his father’s phone number. He had not hung up because he did not want his father to know about the abortion. She had not asked him to leave. He left on his own. It was put to him that he had said that he would not leave the house until he had killed her and the child but the father said he never said that. Her mother had not come between them and told him to leave. There was nothing like that. He went out. They had never talked like a separation. Because she was pregnant her parents said he should sell his property in Country H. It was all about money. It was blackmail. He wished to cool this discussion down and left and took his stuff. He never thought it would be his last day. They used to ask for money. It was like blackmail. Otherwise, they would not let him see his son. (It is by no means to clear to me that the sex of the child had been ascertained at this point.)
In substance the husband denied that there was any argument on 8 May. He was made aware of the Intervention Order on 25 May 2017 when he got a call from a policeman. On 18 August 2017 there was a final Intervention Order but X was not there because he was not born. He consented without admission. The allegations against him were not true. It involves money.
The husband was cross-examined about December 2018. He saw X at about midday having missed his flight. They went to the beach at about 2 pm. When it was put to him that he had not allowed the wife and child to leave the car the father said the air conditioning was on. It was very hot. The door was not locked and she could move out. It was put to him that the wife suggested they eat at a Country H restaurant. The father said he called them but they were not open and they went to a fast food restaurant. X got nuggets. There were heaps of people there and X had food and juice. Then they went to the mother’s home where they had fruits. It was getting late. X was not hungry. There were pictures of X with him. His flight was from Suburb P the following morning.
It was put to the father that on 20 January 2019 they went to a Country H restaurant. He said they went after church. When it was put to him that the child had been crying he said there was nothing like that. He was eating and very happy with that and not crying. He did not start crying louder at home. The father denied becoming angry and said that it never happened. He disagreed that he hit him with a closed fist and said there was nothing like that. He denied that the mother told him to leave or she would call the police. He did not strangle her for three or four seconds and did not say that he was going to kill her. He denied Ms J, the maternal grandmother, trying to push him away. He had not said it is not over yet.
It was put to him that on 4 March 2019 he had a conversation with Ms J in which he said it is not over, it is just starting but the father said nothing like that happened. She was talking about not letting him see X till the last breath of her life.
The father conceded that an Intervention Order was made from an application dated 13 March 2019. Ms J also has an Intervention Order against him. When it was put that Ms J had asked him to repay $7000 he disagreed. $7000 was given as an expense on marriage. He spent heaps of money. He did not tell Ms J that her husband and boys had left her. No extra time had been offered. He had read the Department of Human Services report. X is his first son but he has some small experience with children through his nieces and nephews. He is keen to undertake more courses. He was cross-examined about enrolling in the Suburb E contact centre but nothing of any moment emerged.
It was put that there were very poor communications between him and the mother. The father did not so far as my notes reveal the matter really answer the question at all. When asked about parental responsibility he said this was about the development of the child. It was put to him that there could not be joint parental responsibility given the state of communication between the parents and the father said he would be texting or talking for his son. He seeks supervised time and is looking to be a father 24/7. If time has to be supervised then he would accept this. He disagreed that this was all about him getting a visa.
Under cross-examination by counsel for the Independent Children’s Lawyer the father said he was prepared to do any parenting courses that were ordered. Nobody from the Department of Human Services had spoken with him in June 2019. He went on to say that he had spoken to the department and met on 21 June 2019. When it was put to him that he had been defensive about his visa with the department the father said that’s what she had said. He had not said he may remain in Australia if he has a child. He denied being defensive. He said every time it comes up. He had undertaken a F Counselling course in Sydney. However when further questioned it emerged that the necessary form required both the parents to execute it. It is clear he has not undertaken any such course. The father seeks supervised time at a contact centre but will accept Ms C. He can pay privately.
When it was put that there were at least three allegations of violence against him the father agreed. He had been interviewed by the police three times and not charged. There has only been Intervention Orders.
The Opening and Evidence of the Mother
Counsel submitted that the relationship was very brief. They met online, and it is the mother’s position that the father only entered the relationship because his application in Country G did not work out. The relationship commenced in 2016 and the father wanted to stay in Australia. He came to Australia in 2017 and they were engaged in 2017. The father intended to stay in Australia. They then lived together but the father was not happy with the mother’s pregnancy. He resorted to violence and tried to kill the baby. There were serious incidents before the birth. Further violence had been the subject of cross-examination. He hit the child with a closed fist to the mouth. There had been two Intervention Order applications and one is still pending. The mother had attempted to facilitate time but the father was violent. He made threats to kill her and the child. The mother says that there is an unacceptable risk of harm whether the time is supervised or not. The father is only seeking a visa.
The mother was called and adopted her affidavits as true and correct. She identified herself as a public servant.
Under cross-examination by counsel for the father, it emerged that the mother is not a public servant. She has just completed her qualifications but has not commenced working as a public servant yet.
The mother agreed that separation took place about one month after she learnt she was pregnant. There was only one text message to her mother asking the sex of the child. At her first scan, the father was there. The scan was in 2017. They were not together at the time but it was before they separated. It was a happy time for her but not the father. She had to ask him to come to the scan.
The mother denied refusing mediation in March 2018. She was overseas. But when she returned back, she still said she did not want mediation. She had changed her phone number also because of domestic violence. He had her email address and knew her address. He still talks to her family. She did not ask the husband to withdraw his Court case. She invited him at Christmas and New Year. The father was living in Sydney. This was the first time he saw X. She called him and he called her back to confirm Christmas Eve. This was done through WhatsApp. They went to Suburb N and had a conversation. He said because of the Intervention Order, it was hard for him to get a job. He wanted a DNA test for his visa. She was affectionate to him and sent him kisses and roses. She accepted the abuse for her son. She did not mean the text recorded at page 43 of 52, the husband’s trial affidavit. It was put to her that the message on page 45 of 52 of the affidavit, sent on 22 December 2018, were not the actions of a person who was scared, but the mother said “no”. Her Intervention Order would not have been put on without family violence. She denied lying to the father in the messages on page 46 of 52, which, it should be noted, are expressed in the fondest of terms. She said she was not lying to the father. She said the father has no feelings for her son. If I understood her answer, however, she appeared to be suggesting she was, in sending these messages, trying to foment a relationship between the father and the son.
The mother said they spent some time over Christmas. There were concerns about food. There was family violence. She felt very scared and very anxious. She was locked in the car and could not get out. She conceded they went to a fast food restaurant.
The mother was text with the messages sent on 25 December 2018 at page 52 of the father’s trial affidavit. She said she sent this. She said, “You need to understand that I had experienced violence from him” but was prepared, in effect, to overlook it. She will always overlook violence for the sake of her son.
It was put that she had invited the husband back again on 7 January 2019, but the mother said he refused to come back, for work reasons. It was put that he had come on 19 January 2019. The mother said she did not want him to come on the 20th. It was put that they had been to church and then a Country H restaurant and she said this was correct. Her son would not settle and the father hit him with a closed fist. He had come late and they went to a different church.
She was taken to the photographs at page 27 of 52 of the trial affidavit. She said she has seen these photographs. These were before they went to church and before the Country H restaurant. She said counsel needed to understand. There was a history with the father of abuse. She thought domestic violence was normal. The second photographs was before they went to church. She accepted domestic violence as part of her life as a child and for this reason had not reported matters to the police. When it was put to her there were no photographs of X having a swollen face, she said she had taken the child to the doctor and mentioned it in her police statement. It was put that her police statement was not till six weeks later and she said this was on 13 March. She said it did not matter when she had made the report. She has a son to bring up on her own. She had been to Court at Parramatta last year. It was put that the father had ordered an Uber for her to the airport. She had not spoken to the father, but her mother spoke to him. There was an argument after the court hearing. He gave her $100 to get from Melbourne to Suburb B.
I should interpolate that both these witnesses appeared to have excellent recall in relation to dates.
The mother conceded there were orders in July 2019 for the father to spend time. She did not consent to those orders but was there when they were made and understood them. She did not comply with them because she did not agree with them. She said, “I do have a choice. That’s why I’m appealing.” She will continue to refuse to comply. Further orders were made on 25 November 2019 and she was given the form but she continues to refuse. Her appeals are designed to ensure that the father spends no time with the child. She is prepared to go to jail. Her mother lives with them and will be the legal guardian.
The mother was then cross-examined to the effect that, about a month previously, she had sent photographs and affectionate texts to the father. The mother, amazingly in the circumstance, agreed that this was the case and that she had been advised to give him a chance. My notes at this point did not continue, because the mother, in my view, simply went into a long rant about the father. She went on to say that he does not want to be a father and said he should not be taking her to court. She says she can drive and can drive anywhere. She follows doctors’ advice but is not willing to follow court orders. She repeated that the father kneed her in the stomach. She said she had been subject to abuse during her own childhood. She had not received counselling and not seen a psychiatrist. She had had migraines.
Under cross-examination by counsel for the Independent Children’s Lawyer, it was put to the mother that subpoenas had been issued which showed that between 2012 and 2014 she had attended the Suburb B clinic regularly. The mother agreed with this. When it was put to her that she was on a lot of medication, the mother said, “Not a lot.” She had migraines, for which she had Panadeine Forte. Counsel then traversed a number of different drugs that the mother had been prescribed. She said they were all for her migraines. She is now only on doxycycline. When it was put that it had been noted she was addicted to codeine in 2014, the mother said she was not sure why her doctor wrote that. It was put that she had attended on 18 January 2019, 20 February 2019 and 28 March 2019. The mother said she did not have her records so she did not agree. It was put to her that it was her allegation that the assault, kneeing her while pregnant, was on 8 May 2017 and she had attended the clinic on 17 May. The mother agreed as she had requested an ultrasound and a scan had been done. A scan could have been an emergency on 21 May rather than 24 May. She agreed that the scan was positive and suggested no impact to the foetus. It was put that she had reported the matter to the police on 17 May and 18 August, and she agreed with 17 May.
Counsel put it that she had alleged an assault on herself and the child on 20 January 2019 and she agreed. Her statement was made to Constable Ms Q on 13 March 2019. She recalled that. It was put to her that the statement recorded that Mr Melland had slapped with an open hand, and she agreed that that was her statement. It was put that her trial affidavit put the matter differently, as a fist. The mother said it was always her position it was a fist. She agreed these were two different things but said it was always a fist.
Counsel put it to her that the records from Suburb B Medical Centre showed no mention of a slightly swollen lip. The mother said she had mentioned this to the doctor. She had reported X’s injuries. Counsel put it to her that the injuries did not occur, but she said they did. The doctor advised ice.
Counsel traversed the incident at Suburb N. The mother said she was locked in the car and was scared and anxious. Counsel explained that the records of Victoria Police had been subpoenaed. The mother said she spoke to the police. Counsel put it to her that she had not been in fear on this occasion. She could not understand how the police records were as they were. She confirmed that she had been living with family violence, as had her mother, since she was four.
The mother confirmed that there were two other Intervention Orders taken out involving her older brother and father. She has no relationship with her father or with her brother. She sees her niece and nephew with X. There were threats to kill by her brother. Domestic violence took over. She was concerned the father was acting the same way. When questioned about the level of risk, the mother said it was what they experienced. It may get worse. She is not sure about a supervisor and does not want to take a chance. Domestic violence has already been experienced. Three parties were present and this was not enough. The father gets angry very quickly and should not be given a chance.
In re-examination, the mother explained the emojis she had sent to the father. She said she was forcing herself to send these.
When questioned about the WhatsApp messages she had sent on 13 and 14 June 2020, the mother said the father called the next day. He was only interested in her dropping the Intervention Order and appeal. He said he wanted to be a full-time father but she did not agree. He called the same evening.
Counsel for the mother sought to call the maternal grandmother, but, for reasons I gave ex tempore, I did not permit this.
Final Submissions by the Counsel for the Independent Children’s Lawyer
The Independent Children’s Lawyer supports X having supervised time with the father. The evidence has now been tested. The material subpoenaed from Suburb B and the police cast doubt on the mother’s evidence. The mother says that there is an unacceptable risk even if time is supervised, but the Independent Children’s Lawyer does not agree. The Independent Children’s Lawyer supports the parents undertaking a course such as Tuning In To Kids, which can occur during the period of supervised time. It is impracticable on an interim basis to have shared parental responsibilities. The mother’s accounts have changed from time to time. Supervised time should start immediately and there should be compliance immediately. Then the matter should be revisited, with the prospect of unsupervised time in September of this year.
Final Submissions for Counsel for the Father
Counsel pointed to the allegations that the father had threatened to kill the child and struck him with a closed fist. These were matters that give rise to consideration of section 140 of the Evidence Act 1995 (Cth). The evidence rises no higher than the mother’s assertions. There are inconsistencies in the mother’s evidence and the police and Suburb B records. There were photographs and there were messages after Christmas Eve. The recent WhatsApp messages were accepted. There were the photographs to the father’s trial affidavit showing no fear on the part of the mother. The mother and father are close together. Counsel submitted the issue of parental responsibility should be left until September. There would be a detriment to X if the father was excluded forever. The only time the father was ruffled in cross-examination was when it was put to him that he only wanted a visa, and this was an understandable emotional response. X had a right to have a dad. The mother’s deliberate refusal to comply with Court orders was disturbing in the extreme and there should be liberty to apply, with a warrant or recovery order if necessary. Counsel confirmed that Ms C would be available to supervise.
Final submissions for counsel for the mother
Counsel submitted that the primary consideration was the safety of X, who, at two and a half, cannot protect himself. The mother has been consistent in her allegations. She is prepared to go to jail. She has not been inconsistent in her evidence and accepts the police reports. Her evidence was credible. If accepted, there has been significant family violence. She was kneed in the stomach several times. It is common not to report the matters to the police in a timely way. It was a learning process for her. The father’s credibility was questionable. Supervised time does not stop the concerns. Counsel questioned the father’s motivation and pointed to the Department of Human Services material. He noted that the father denies saying the matters attributed to him. The Court should concentrate on unacceptable risk. There is no communication between the parents, and the mother needs parental responsibility now.
Some Findings about the Credit of the Witnesses and the Relevant Facts
As I indicated at the commencement of this judgment, neither of these witnesses impressed me in their demeanour, notwithstanding the difficulties of hearing a trial over Microsoft Teams. Both struck me as given to florid exaggeration.
The father gave a number of nonresponsive and self-serving answers, and I found his breezy total denial of all matters put against him both glib and, in part, unbelievable. His answer that he had called the Country H restaurants, which were not open, at Christmas 2018, was a palpable exaggeration. Plainly, he had not, despite his endeavours to insinuate that he had done so, undertaken a F Counselling course in Sydney.
Unsatisfactory as the father was in some ways, the mother was worse again. Many of her answers were unresponsive and her endeavours to explain away her text messages to the father were completely and utterly unbelievable. I will deal with the questions of the allegations of violence momentarily, but it is sufficient to say for present purposes that, taken overall, the mother struck me as a person given as I have already said, to florid exaggeration, and her evidence needs to be approached with considerable caution.
Findings about the Facts
I should say right at the start of this section that I found this case an extremely difficult one to determine. Because I have no great confidence in the capacity of either of the two witnesses to tell the truth in any kind of objective and accurate way, about the only thing I am sure of is that I have not really been told the full truthful story by either of them. There are many aspects of their interrelationship that are, when looked at objectively, really almost impossible to explain.
The parties appear to have had some sort of contact in 2014. They met, as is uncontroversial, in 2014 in Country G. The father would have it that they were in regular contact through till 2017, whereas the mother says contact only resumed in late 2016. Accepting, as I do, that the site upon which they met was one voluntarily accessed, it would appear, by persons of Country H extraction looking to arrange a marriage, it seems it is far less probable than otherwise that the mother’s version is correct. The husband arrived here to, in effect, marry her in 2017, and for that to have been developed between 2016 and early 2017, a period of only some weeks, is simply not believable. Whether they were in touch as much as the father asserts between 2014 and 2017, I cannot say, but plainly contact of some sort subsisted.
I have no doubt that the father was, at least in part, impelled to come to Australia by a desire to obtain permanent residence. Whether or not he was trying for permanent residence in Country G, I am unable to say. But if I accept as credible his evidence that he had an excellent job and all his family in Country H and excellent prospects there, it makes absolutely no sense for him to have renounced all this simply to come to Australia to marry the mother. He had only met her once. There is nothing to suggest that they had been in any way intimate. At best, they had had intermittent exchanges over the internet. If his circumstances were as good as he says they were in Country H, and I am minded to accept this, there was no need for him to make the sacrifice that he says he made. There are, no doubt, plenty of other women who would subscribe to this website in Country H. There is simply no evidence of any great developed affection or love between them. I have no doubt that, in part, he was impelled to come because he wanted a visa.
Having said this, however, equally, it is obvious that some sort of connection had been formulated between the parties because when he arrived 2017, they promptly got engaged two days later. This then led to marriage in 2017, and it was plainly not a marriage merely of form because the mother became pregnant almost straightaway. Indeed, as I understand it, she was suffering pregnancy symptoms by the time they were on their honeymoon in the latter part of early 2017.
Although it is quite impossible to say with any certainty exactly what was going on, this extraordinary marriage rapidly came to an end. In May 2017, on any view of the matter, the husband decamped from the matrimonial home on what turned out to be a permanent basis. Each of the parties complains, albeit while wholly blaming the other, that there were arguments about money. It is clear that there is some sort of ongoing dispute between the father and the mother’s own mother, Ms J, as to finances somehow interrelated with the visa process. In the end, I think something did take place on 8 May 2017 as the mother asserts. Quite why the father would have been angry at the mother being pregnant is impossible to say. As he rightly himself points out, a father would naturally be pleased by such news. Nonetheless, the fact is that the mother did make contemporaneous complaint of the assault, and, whether it took place exactly as she says or not, I find that whatever did occur was one of the drivers that brought the relationship to an abrupt and complete end.
In saying this, however, it is quite apparent that that is not the only matter that operated upon the cessation of this relationship. It is clear there were other matters of financial disagreement between them, and, whether through immaturity or for some other reason, the fact is that the relationship ended in May. The wife promptly withdrew her sponsorship of the husband’s visa application and took out an Intervention Order which lasted, in effect, from July 2017 until July 2018.
During this period, the father made no endeavours of any meaningful sort to engage with the mother and the child which he must have known was due to be born. He went and worked in Sydney.
Where this strange case takes yet another twist is that the mother then invited the father to come and see them in December 2018. The text messages between the parties are, in the context of the allegations each of the parents makes about the other, really completely extraordinary. They show a deeply romantic and affectionate interchange between each of the parents. I do not accept that the father did anything untoward at Suburb N or at the fast food restaurant on 24 December. The messages to the mother about his return to Sydney and after he had got there simply do not admit of any such conclusion. The mother’s evidence about those matters is plainly untruthful.
Furthermore, the mother invited the father down again in January 2019. This is wholly inconsistent with her alleged fear of him. Indeed, all the photographs taken of the parents, to the extent that they show anything at all, show the mother completely unafraid and indeed in very close physical proximity to the father.
The alleged assault on the child on 20 March 2019 is, of course, deeply concerning. The first thing to be noted is that the mother is plainly now exaggerating and untruthful when she says it was a closed fist. That is not what she told the police at the time. Her endeavours to try and qualify or explain this inconsistency are wholly unconvincing. Indeed, I accept the reservations expressed by counsel for the Independent Children’s Lawyer to the effect that the medical records simply do not support any such injury to the child. I think it is highly probable that the father may have become exasperated with the child at some point, but the text messages at page 33 and 34 of the father’s trial affidavit, which are sent on 21 and 22 January respectively, simply are inconsistent with the proposition that the father had assaulted the child. A message on 21 January stating:
Glad you got back home safely. Have a nice day too. We love you too –
followed by three hearts, and a text message on 22 January stating:
Good morning Mr Melland, baby and I are good, his sleeping time .. Enjoy your day as well … Chat soon, we love you xo –
and three hearts, just cannot be explained away. Likewise, I accept the concerns expressed by counsel for the Independent Children’s Lawyer as to the inconsistency between the mother’s version of events and the medical records at Suburb B. It is not a small finding to make, but I find that the mother invented that aspect of the dispute.
Having said that, I do accept that the father has, on occasions, screamed at the mother and threatened to kill her. Something has to explain the end of the relationship in May 2017, and threats of this character uttered by somebody who impressed me, despite his self-control in the witness box, as being extremely volatile, are, in my view, made out.
Where the matter takes yet another extraordinary turn is that the mother has recently, in June of this year, only a matter of days before the trial, sent messages to the father which, it is conceded, are consistent with the affectionate ones to which I have already referred. Given the adamantine rejection of the father by the mother in the witness box, these messages are completely incomprehensible.
As I find, this is a relationship which raises complicated and perplexing issues. I am keenly conscious, as I have already said, that, whatever I have been told, I have not been told the full truth or anything like it. The mother’s position about the father seems to vary dramatically from time to time. She has sponsored him to come to Australia, so obviously there was a sufficient attraction for that, whatever she may have feared in any fashion about his visa motivation. She rapidly withdrew it, of course. Notwithstanding that obviously things have gone sufficiently awry for this two-month marriage to come to an end, but then, it would appear out of the blue, she invites the father to come to Melbourne at the end of 2018 in the most affectionate way and repeats that invitation again in January 2019. The parties must have been in some sort of reasonably friendly contact in between, notwithstanding all the other things that were going on. The only explanation that makes any sense (and it does not explain everything) is that the mother is given to wild fluctuations of emotion about the father, whom it appears she still entertains a desire to have a relationship with. The father, whom, as I have indicated, has on occasion committed family violence in the terms I have described, is, in my view, very concerned to ensure that his visa is obtained, but the fact is that he has prosecuted his case to judgment. He is a father of an Australian citizen, and his prospects of obtaining a visa may not be as linked to time with the child as the parties appear to assume.
Having done my best to flail my way through the parties’ inconsistent positions, I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
In circumstances where the communication between the parents is as poor as it was presented in Court and where the father has spent only three days of time with the child in the child’s life (plus possibly some time at Court at Parramatta), it is immediately apparent that the mother must, on an interim basis, have parental responsibility. The presumption is rebutted, in any event, by the family violence that I have found to have occurred.
Section 60CC - the Primary Considerations
As I have indicated, I have not been able to make a finding about the alleged attempts of the father to spontaneously abort the child. I have positively found that he did not commit family violence at Suburb N in December 2019 and did not assault the child in January 2019. Thus, while there had undoubtedly been some measure of family violence, the need to protect X from risk of abuse, which is required to be given greater weight (section 60CC(2A) is less than the mother’s unfounded allegations suggest. The reality is that the orders the mother seeks will deprive X of the right that he has under the legislation to a meaningful relationship with his father for all time. I do not think that that is what X’s best interests require.
The Additional Considerations
Section 60CC(3)(a)
The child is only two and a half and plainly has expressed no views whatever.
Section 60CC(3)(b)
X has obviously a very close relationship with his mother who was still breastfeeding him on the day of the trial. The maternal grandmother, Ms J also lives in the household but while one might infer that she loves X there is no direct evidence of the closeness or otherwise of their relationship. The father has only seen the child on a tiny handful of occasions and it is reasonable to suppose that, given that he has not seen the child since early 2019, that he has really little memory of him if any at all.
Section 60CC(3)(c)
The mother has undoubtedly taken all such decisions as have thus far been necessary relating to X’s development. The father’s position is in my view more nuanced. He has said he did not pursue any time with the child between July 2017 and July 2018 because of the Intervention Order. Given that he is of Country H extraction and had only been in Australia for a matter of weeks this misunderstanding is understandable. Nonetheless, there is no evidence that he did anything to try and involve himself with X’s life of any real moment until he was invited by the mother to come down in 2018. As I have earlier indicated, there must have been some form of contact between the parents about X because nothing else makes any sense but the father did not pursue his application until late 2018. Indeed it is possible that the mother’s invitation may have been provoked by the application that he made to the Court. The fact is that it is also possible that the application to the Court was in part tinged with a desire to improve the position of his visa application. I have already expressed my difficulties in coming to definite conclusions about this aspect of the matter.
Section 60CC(3)(ca)
The mother has plainly fulfilled her obligations to maintain X. The father does not appear to have contributed in any significant way at all.
Section 60CC(3)(d)
One likely effect in the child’s circumstances if time with his father is ordered is obvious. If the mother maintains the position she has expressed in court she will be deeply distressed by the prospect of any time with the father and may even go as far as going to jail to seek to prove her point. It is to be fervently hoped that she is not that misguided. I accept counsel for the father’s submission that the mother’s attitude towards compliance with the law is deeply concerning.
Nonetheless, such little evidence as there is suggests that at the worst the father’s relationship with the child is not in any sense bad and the photographs the Court has appear to show the child in the father’s presence without any obvious distress. It is reasonable to suppose that if time recommences in a supervised environment this change in circumstances will be the starting point for a meaningful relationship between X and his father and that is inherently desirable.
Section 60CC(3)(e)
The father is prepared to pay for Ms C so there is no obvious difficulty as to expense in the child spending time with him. There is no obvious practical difficulty other than the mother’s expressed refusal to comply and in the end, and heaven forfend its necessity, court-enforced compliance is available.
Section 60CC(3)(f)
The mother has undoubtedly been and will continue to be the child’s primary carer. There must be some concerns about her capacity properly to look to X’s best interests given the extraordinary volatility of her attitude towards the father. Indeed the mother’s allowing the child to be present during the proceeding is of itself deeply concerning. I have not thus far recorded that it emerged that X was actually in the room with the mother while the proceeding was continuing and his removal led to him becoming extremely distressed. An adjournment had to be taken to enable the mother to breastfeed him. Given his age I would assume this was more for comfort than hunger. There must be some suspicion that the mother’s relationship with X is somewhat unhealthily enmeshed. Nonetheless she is his primary carer and is undoubtedly a doting mother.
Plainly the father’s capacity to provide for X’s needs is limited by the extraordinarily limited amount of time he has ever spent with him and his lack of experience as a parent. Nonetheless he has undertaken a willingness to undertake any course he is required to undertake and that is a matter that can be further dealt with through the Independent Children’s Lawyer.
Section 60CC(3)(g)
I am conscious of the cultural overlay that in the father’s case involves with two persons of Country H extraction and indeed, in the Father’s case, birth. It seems very likely to me that some of the unsatisfactory aspects of their evidence may spring from cultural perceptions as to entitlements as a parent and the like. The mother is qualified as a public servant and lives with her own mother, who has appeared before the Court on more than one occasion and behaved in an extremely volatile fashion herself. Further, the mother’s attitude towards the rule of law seems ambivalent at best as things presently stand. It is to be hoped that her assertions as to her future conduct are part of the florid exaggeration that I have otherwise observed.
The father is in a sense somewhat more difficult to fathom. As I indicated I strongly suspect that at least in part his motivation in this proceeding has been his visa status, something which I am clear in my own mind he is desperate to obtain. His glib and unsatisfactory denials of his misconduct stand against him, but he is in employment and assuming he obtains a permanent residency visa there is no reason to suppose that his lifestyle is in any other way such as to stand against him.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
As already indicated the mother has a very possessory attitude towards X who is clearly very closely bonded to her. The father has expressed a keen desire to play a role as a father in X’s life and has pursued his application to final judgment, which speaks for itself.
Section 60CC(3)(j)
There has been family violence involving the father. I have no doubt that in arguments he has screamed at the mother and as I find he has indeed made threats to kill her on occasion. I have not been able to come to a definite conclusion about the events of 8 May 2018, although something untoward undoubtedly occurred. I do not accept that he has otherwise actually assaulted the mother. The mother has been in no way shy of going to the police and her reports were made substantially later than the alleged assaults themselves. The alleged assault upon X in March 2019 simply did not occur.
Section 60CC(3)(k)
There have indeed been Intervention Orders and it seems that one is still awaiting final disposition. Nonetheless in the circumstances of this case as I have described them and found them to be they do not add anything further save to say that the Intervention Order taken out after separation plainly flowed from the father’s misconduct at the time.
Section 60CC(3)(l)
Unless I dismiss the father’s application entirely, which I do not propose to do, it is immediately apparent that there must be interim orders with the matter to return to court once the father’s time has commenced. I think however that the proposal that the matter returned in only two months time is premature. It will take some time for the father’s relationship with X to develop to a point where it can be objectively assessed. I propose to bring this matter back in November for further review but I will make orders for liberty to apply in the event that anything untoward occurs in the meantime.
Section 60CC(3)(m)
There are no other relevant considerations.
Conclusion
This is an extremely troubling and unsatisfactory case. Neither of the parents impress me as being truthful. It has been all but impossible to work out what really happened and indeed as I have said more than once the only thing I am really sure of is that I have not been told the whole truthful story. The orders I am going to make resolve what in the ultimate is a very stark and refined choice. Either X must never have his father in his life or he should have the benefit to that right which the legislation prescribes. In my view the position is ultimately sufficiently clear. X has a right to have a meaningful relationship with his father and the orders that I am going to make are going to give him an opportunity to exercise that right. I have drawn orders accordingly but will hear from the parties as to any further orders by way of courses or the like that the Independent Children’s Lawyer may regard appropriate.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 30 July 2020
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