Metrellis & Chase

[2023] FedCFamC2F 1241

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Metrellis & Chase [2023] FedCFamC2F 1241

File number(s):	DGC 1346 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	25 September 2023
Catchwords:	FAMILY LAW – PARENTING – where father is a member of an outlawed gang - where father has engaged in attempted gang related offences –where father has significant criminal history–where father has history of drug and alcohol abuse – where father has history of family violence – recent steps by father to reform – partial insight by father and partial consent parenting orders - unacceptable risk to child and mother – no spend time- identity contact only
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	A v A (1998) FLC 92-800 Briginshaw & Bridginshaw (1938) 60 CLR 336 Clanton& Lachman (No 2) [2022] FedCFamC1A 165 Cotton & Cotton (1983) FLC 91-330 Deiter & Deiter [2011] FamCAFC 82 Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 Fitzwater & Fitzwater (2019) 60 Fam LR 212 G & C [2006] FamCA 994 Grant & Aiden (No 3)[2016] FamCA 299 Isles & Nelissen (2022) FLC 94-092 Jurchenko & Foster (2014) FLC 93-598 Johnson & Page (2007) FLC 93-344 Loddington & Derringford (No 2) [2008] FamCA 925 M v M (1988) 166 CLR 69 Masson v Parsons (2019) 266 CLR 554 McCall & Clark (2009) FLC 93-405 N v S (1996) FLC 92-655 Napier & Hepburn (2006) FLC 93-303 Nikolakis & Nikolakis [2010] FamCAFC 52 Stott & Holgar [2017] FamCAFC 152
Division:	Division 2 Family Law
Number of paragraphs:	116
Date of hearing:	27 – 28 July 2023 & 21 August 2023
Place:	Sydney
Counsel for the Applicant:	Mr L Ang
Solicitors for the Applicant:	Rafton Family Lawyers
Counsel for the Respondent:	Ms E Dalrymple
Solicitors for the Respondent:	Mahony Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms K Conte-mills
Solicitor for the Independent Children's Lawyer:	Phillip A Wilkins & Associates:

ORDERS

DGC 1346 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR METRELLIS

Applicant

AND:

MS CHASE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	25 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The applicant shall spend no time with the child, X, born in 2018.

2.Apart from the provisions of orders 4 and 5 herein and pursuant to section 68B of the Family Law Act 1975 (Cth), the applicant, Mr Metrellis, is restrained by injunction from approaching, contacting or communicating with the child, X, born in 2018, or coming within 200 metres of the child’s home, day care, school or extracurricular activity location.

3.Apart from provisions of orders 4 and 5 herein and pursuant to section 68B of the Family Law Act 1975 (Cth), the applicant, Mr Metrellis, is restrained by injunction from approaching, contacting or communicating with the respondent, Ms Chase, or coming within 200 metres of the mother’s home or place or employment.

4.The applicant is permitted to communicate with the child by sending letters, cards, video by USB stick and/or gifts to the child on four occasions each year, being at the times which correspond with:

(a)the child’s birthday;

(b)Easter time;

(c)the applicant’s birthday; and

(d)Christmas time.

5.Within seven days of the date of these orders, the parties through their solicitors shall exchange details of their postal addresses, which will not be the actual address of the respondent.  In the event there is a change to such details, then the parent who has changed their postal details shall advise the other parent of the change in writing by post within 48 hours of the change.

6.Within seven days of the date of these orders, the respondent shall make an appointment to see either a child psychologist or a family therapist for the purpose of receiving advice as to what she should tell the child concerning her father and why the child has not seen her father, if the mother has not already done so, and shall inform the child that she has a father who loves her within 14 days of the appointment.

7.Orders 4 and 5 pursuant to section 68B of the Family Law Act 1975 (Cth) prevail over the Intervention Order no 5 made in late 2021 by the Magistrate’s Court of Victoria that proscribed any contact or communication with the protected persons to the extent of the inconsistency being the permitted communication and contact specified in orders 4 and 5 above.

8.The Court grants leave to the mother to provide a copy of these orders together with the family report dated 19 September 2022 prepared by the Court child expert/family consultant, Ms B, to the child psychologist or family therapist engaged by the mother for the purpose of order 6 herein.

9.The independent children's lawyer is discharged from the proceedings.

THE COURT NOTES:

A.The Court notes the respondent will use her best endeavours to facilitate the child’s response to the applicant on occasions the father posts the child a letter, card, USB, video and/or gift.

B.The Court notes the applicant may also include photographs and/or video of himself in his letters, cards, USB stick and/or gifts.

C.The Court notes that the respondent shall have the opportunity to examine anything sent to the child by the applicant, and if she deems the content inappropriate for the child, the mother is not obliged to pass this on to the child.

D.Order 7 identifies an inconsistency with Invention Order no 5 made in late 2021 by the Magistrate’s Court of Victoria and orders 4 and 5 are sufficiently detailed to explain the permitted communications and the obligation is upon the applicant to comply with orders 4 and 5 but the applicant is not to engage in any other communication than as specified.  The consequences of failure to comply with this Court’s order are identified in the attached Parenting Orders-obligations, consequences and who can help. The Courts reasons for these orders to the extent of the inconsistency are published herewith and these are final parenting orders which are conclusive and binding upon the parties.

E.The Registrar of this Court is to cause a copy of these orders that effectively vary order 5 made by the Magistrate’s Court of Victoria in late 2021 Case Nr … to each of the entities in s60P(3)(d), (e) and (f).

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE STREET
INTRODUCTION

1. These are parenting proceedings that were commenced on 1 April 2021 by the applicant father in relation to his daughter, X, born in 2018, currently aged five. The final parenting hearing commenced on 28 July 2023, and by consent, final orders were made in relation to the mother having sole parental responsibility of the child, the child living with the mother, a change of name in relation to the child and authority for the mother to travel under s 65Y of the Family Law Act 1975 (the Act).  The Court expressly reserved the balance of the parenting matter, which was part-heard, for continued hearing on 21 August 2023.

2. The remaining parenting issues between the parties relate to the nature of the contact time between the child and the applicant father, with the respondent mother proposing no contact at all.

3. The applicant father proposed 12 months of contact time, four times a year, including video calls, then progressing after a year to eight times per year with the calls to be supervised by C Family Services and an increase in time.  The applicant father’s orders also included orders for chain of custody and hair follicle testing, as well as CDT testing and restraints, which included the consequence of a cessation of contact if there was a breach of the restraints.

4. The Court heard detailed evidence from the applicant father seeking to explain away incidents of family violence identified by the respondent mother and minimising the criminality of the conduct in which he has in the past engaged in. The applicant father identified a determination to remain a member of an outlaw gang and to “train”. The applicant father professed to having turned over a new leaf and had found almost full-time employment, albeit currently being engaged as a casual, and that he had gleaned an insight in relation to his past conduct.

5. There has barely been four months to the start of the hearing since the applicant was discharged from serving the whole of a six-year sentence in respect of a guilty plea to a crime of violence.  The Court received evidence in relation to that incident in 2017 for which the applicant was convicted and sentenced to 6 years imprisonment. This included offences and the applicant’s physical reaction during that joint trial in relation to one of those associates giving evidence and was called by the applicant a “rat”. The respondent has a significant criminal record and has spent a significant amount of his adult life in prison.

6. The respondent submitted that any contact would have a significant impact on the anxiety of the respondent mother and her parenting capacity. The family report writer, Ms B, expressed views supporting the orders proposed by the respondent mother of no contact time by the child with the father.  The family report writer did identify a potential benefit to the child from identity contact and accepted that a pre-recorded video would ameliorate the risk of unintended disclosure by a young child that could arise if the Court were to permit supervised video contact.

7. For the reasons expanded upon below the Court finds that the child should not spend time with applicant and that there should be identity contact only.

   EVIDENCE ADMITTED INTO COURT

8. The following affidavits were treated as read:

   (1)Affidavit of the Applicant Father dated 11 July 2023;

   (2)Affidavit of Ms D dated 5 July 2023;

   (3)Affidavit of Mr E dated 5 July 2023;

   (4)Affidavit of Ms Chase dated 28 October 2022;

   The following documents were tendered into evidence:

   (1)Family Report dated 19 September 2022;

   (2)Tender Bundle of the Respondent Mother dated 26 July 2023;

   (3)Tender Bundle of the Applicant Father dated 26 July 2023;

   (4)Supplementary Tender Bundle of the Applicant Father dated 18 August 2023.

   CHRONOLOGY

Date

Event

1982

Applicant father born

1997

Respondent mother born

2015

The parties meet

2017

Parties commence a relationship

2017

The parties have a dispute in the bathroom whilst the applicant father is shaving. The applicant father believed that the respondent mother was working with the police against him. The applicant father called the respondent mother a “fucking dog”, “rat”, and “bitch”. The applicant father says “I’m leaving and not coming back”. The respondent mother asks him not to go and he punches her in the face with a closed fist.

2017

The applicant father is involved in a violent club fight in City F.

Late 2017

Applicant father threatens to lock Mother in cupboard during an argument.
On another occasion, the parties argued and the applicant father pushes the respondent mother onto the bed and attempts to tie her legs with a cable tie. The applicant shortly after leaves the house.
The applicant father later texted the respondent mother apologising and next day takes the respondent mother out. The applicant father driving and drinking a can of alcohol while doing so. The respondent mother reached over to take the can, spilling some. The applicant father slapped respondent mother with back of hand, pulls over 30 minutes later and tells her to get out of car.
Respondent mother stranded with phone but no purse or house keys.
PGM helps respondent mother to drive to where applicant father is in taxi.
Respondent mother deposes to meeting applicant father at friend’s house, observing applicant father and his friends with drug paraphernalia and asking to be taken home. The respondent mother attempted to leave around 11.00pm following which the applicant father yelled at the respondent mother to “get back in the house” before dragging her by her hair towards the house.

Once back inside, friend of the applicant father says “not here bro”

2017

Applicant father involved in a violent incident.

2017

Applicant father arrested and bail refused for involvement in offences.
Applicant father tells the respondent mother “I don’t care if you have an abortion” when she advises the applicant father of her pregnancy.

2018

X born

Mid-2018

The respondent mother asked the applicant father to quit the gang. The applicant father says, “I will never quit the gang”, “I will never leave the club, never ever”, and “nothing you say will change my mind. You are asking me to do something I can’t do. I will be a member until the day I die. You’re selfish for asking me to leave.”

Mid-2018

The parties separate

2019

Applicant father sentenced for involvement in a violent incident following plea of guilty.
Applicant father attempts to confront is co-accused in the dock, lunging at him and calling him a dog.

Early 2020

Face to face visits cease at prison as COVID-19 commences.

Late 2020

Respondent mother moves out of property in Suburb G Victoria.
Applicant father says to respondent mother “I know you moved because Mr E’s missus went to Suburb G and saw that the house was empty. If you’ve moved interstate there will be issues”

January 2021

Respondent mother ceases face time visits between the applicant father and the child.

Early 2021

Respondent mother reports domestic violence history to NSW Police.

6 April 2021

Applicant father filed Initiating Application seeking reinstatement of contact.

Early 2021

Family Violence Complaint of respondent mother in Suburb H Magistrates Court seeking and obtaining interim  Intervention Order against applicant

Late 2021

Family Violence Final Intervention Order made by Suburb H Magistrates Court protecting respondent mother and child.

APPLICANT FATHER’S EVIDENCE

1. The applicant father was born in 1982, being currently 41 years of age. The applicant father and the respondent mother share one child together, X, born in 2018, being currently 5 years of age.

2. The applicant father said that he and the respondent mother were in brief relationship for approximately 12 months starting in 2017. The couple lived together in the Suburb G area for the first six months of their relationship and the applicant father was incarcerated for from 2017 until early 2023.

3. The applicant father said that the parties separated during late 2017, prior to the applicant father being charged, but then resumed their relationship after he was arrested in late 2017. The applicant father contended that  the parties had a verbal agreement as to the care of the child whilst the applicant father was incarcerated, being:

   (1)That the child live with the mother;

   (2)That the child spends time with and communicates with the applicant father as follows:

   (a)In person once a week on a weekly basis;

   (b)By telephone twice a week on Mondays and Wednesdays;

   (c)By Skype or video link once a week on a Friday.

4. The applicant father contended that these arrangements went on until COVID-19 restrictions were put in place.

5. The applicant father asserted that the parties separated on a final basis during July 2018 due to the difficulties in maintaining a relationship whilst the applicant father was incarcerated. It was asserted that the separation was a mutual decision of the parties and that the applicant father continued to financially support the respondent mother and child post-separation.

6. The applicant father asserted that the last time that he had seen the child face to face was March 2020. Prior to this, the applicant father saw the child once a week via video calls whilst he was incarcerated. It was asserted that the applicant father maintained regular contact with the child from March 2019 to early 2021, being video and telephone calls each Monday, Wednesday and Friday.

7. The applicant father asserted that whilst incarcerated, he engaged in multiple personal development and parenting courses so that he could be more involved in the child’s life.

8. It was alleged by the applicant father that during March 2021, the respondent mother ceased all contact with between the child and the applicant father. The applicant father asserted that this behaviour was out of character for the respondent mother and attempted to contact the respondent mother multiple times, however received no response. It was asserted by the applicant father and he is unaware as to the reasons why his contact with the child was suddenly ceased, but would like to understand why and work on any issues or concerns that the respondent mother may have.

9. The applicant father conceded that he was unfaithful during his relationship with the respondent mother and demonstrated remorse for his actions. The applicant father asserted that he does not hold ill feelings towards the respondent mother and believes that she is a great mother to the child, providing the child with all the care required.

10. The applicant father asserted that he would like for his telephone contact with the child to re-commence and that he wishes to re-establish a relationship with the child in a slow and gradual manner.

11. In respect of the respondent mother’s allegations towards the applicant father, the veracity of the allegations were disputed by the applicant father. The applicant father asserted that his affiliation with the gang did not present a risk to the respondent mother or the child. The applicant father denied making statements along the lines of “I don’t care if you have an abortion” whilst the respondent mother was pregnant and denied that he would call her excessively whilst he was incarcerated. The applicant father denied having spoken to the mother over the phone in a threatening tone. It was asserted that the telephone calls in the facility are recorded and if he had engaged in threatening behaviour over the phone, then he would have been put in a 22 hour lockdown.

12. The applicant father conceded that the parties argued regularly during their relationship, however it was denied that family violence occurred. The applicant father asserted that he had not intimidated, physically assaulted or damaged the property of the respondent mother.

13. The applicant father asserted that he did not contest the Intervention Order against him that was applied for by the applicant mother. It was asserted by the applicant father that he did not contest the Intervention order because he did not wish to hinder any potential to resolve issues regarding to the child.

14. The applicant father did not dispute that he has had past issues with drug and alcohol use. It was asserted by the applicant father that he has worked through these issues by attending counselling and incorporating what he’s learnt from counselling over time. The applicant father asserted that he no longer associates himself with people who have access to drugs and has implemented a healthy routine and structure into his life to maintain sobriety.

1. In respect to the applicant father’s involvement in the gang, the applicant father asserted that the gang does not have any bearing on him seeking telephone time with the child. The applicant father maintained that the respondent mother and the child are not at risk or exposed to violence as a result of the applicant father’s association with the Gang. The applicant father alleged that whilst he was incarcerated, the respondent mother would approach other members of the gang for help with daily household duties such as grocery shopping.

2. The applicant father disputed the mother’s allegation that the applicant father does not pay child support. It was asserted by the applicant father that he has financially supported the respondent mother both during the relationship and post separation. The applicant father asserted that he had sold nominal assets in order to provide for the respondent mother and the child.

3. The applicant father asserted that he misses his daughter dearly and that he is concerned that she will be confused and looking for the applicant father because of the cessation of contact. It was asserted that the applicant father and the child have a positive relationship and that the child was always excited to hear the applicant father’s voice.

4. It was conceded by the applicant father that during the parties relationship, the applicant father did not handle their relationship issues constructively and was experiencing mental health issues. However, it was asserted that the applicant father’s circumstances have improved and he is now able to process his frustrations better through clear communication. The applicant father asserted that he has completed the J Program and the Positive Parenting Program and provided the Courts with his completion certificates.

5. The applicant father asserted that he is aware of the respondent mother’s concerns and is seeking that the telephone contact with the child is supervised in order to address the respondent mother’s concerned. The applicant father asserted that he does not want to cause the mother distress and has the child’s best interests at heart. It was asserted by the applicant father that he wants nothing more than to re-establish a relationship with his daughter.

6. In respect of the applicant father’s current circumstances, it was asserted that the applicant father now has a tradesman’s ticket so that he can begin working on sites. The applicant father asserted during cross examination that he has now obtained almost full-time employment, albeit currently casual, which he hopes will become full-time shortly.

7. During the applicant father’s cross examination, the applicant father was not a responsive witness. The applicant father’s evidence in respect of the gravity of his criminal conduct and gang involvement lacked credibility.  The applicant’s evidence as to the family violence incidents deposed to by the respondent also lacked credibility.

8. The applicant father during cross examination presented as a loving father who showcased a genuine desire to engage with the child. The applicant father presented that he also had the insight in respect of the best interests of the child. This was supported by the applicant’s to a number of important partial parenting final orders, including that the mother have sole parental responsibility, the child live with the mother and that the child’s name be changed. 

   RESPONDENT MOTHER’S EVIDENCE

9. The respondent mother was born in 1997 and is currently 25 years of age. The respondent mother met the applicant father in 2015, commenced a relationship in 2017 and began cohabitating shortly thereafter. The parties separated on a final basis mid-2018 and the parties never married. There is one child of the relationship, namely X.

10. The respondent mother, since the birth of the child, has been the primary carer and has taken on the whole of the responsibilities, not limited to, bathing, changing nappies, feeding, playing with the child and transporting her to and from necessary medical appointments. The respondent mother takes care of all the household duties, being cooking, cleaning, grocery shopping and other necessary tasks.

11. The respondent mother said that the applicant father has not assisted in the caring for the child since her birth due to the applicant father being incarcerated for the entirety of the child’s life. The applicant father has been incarcerated since 2017 whilst she was pregnant with the child.  According to the respondent mother the applicant father stated “I don’t care if you have an abortion” to the respondent mother when she announced to the applicant father that she was pregnant.

12. The respondent mother said that following the birth of the child, the respondent mother remained in contact with applicant father via telephone and facilitating communication between the applicant father and the child each time the applicant father called. It was said by the mother that the applicant father would call the respondent mother approximately 20-30 times a day. The respondent mother said that when the applicant father would call, he would often yell and swear at the respondent mother. The respondent mother said that she is concerned that the child heard this negative behaviour from the applicant father.

13. Upon the applicant father being incarcerated, the respondent mother would take the child to visit the applicant father in prison. The respondent mother was always present during these visitations. The respondent mother made reference to a particular occasion where her and the child visited the applicant father in prison and the applicant father stated that he may get moved to a different prison further away. The respondent mother said that in response she stated that she didn’t believe it was appropriate for a newborn to be in the car for such a long period of time. The applicant father lifted his hand as if he was to hit her. The applicant father did not hit her and lowered his hand as he had realised that there were security cameras and staff around. The applicant father threatened to have one of the Gang members take the child off the respondent mother. The respondent mother felt scared due to the applicant father’s comment and believed his threat to be true.

14. The respondent mother continued to facilitate ongoing visits to the applicant father in prison. However, during early 2020, COVID-19 restrictions were implemented, and visitation was no longer allowed. The respondent mother said that she continued to facilitated FaceTime communication between the child and the applicant father until January 2021 out of fear that the applicant father would follow through on his threat to have the child taken away from the respondent mother.

15. The respondent mother said that from January 2021 to current, she has not facilitated FaceTime communication between the child and the applicant father. The respondent mother said that at this time, she had also moved houses and made reports to the Police in respect of the applicant father’s violence towards the respondent mother. The respondent mother did not make these police reports earlier due to fear of the applicant father sending other members of the Gang to her house that would harm her or the child. The respondent mother asserted that the applicant father does not know the location of her current residence. The respondent mother said that since herself and the child have moved homes and she has not facilitated FaceTime communication, the child as not shown a desire to speak with the father and has not indicated that she missed him or expressed confusion as to why she is not speaking to him.

16. The respondent mother has concerns surrounding her own and the child’s safety should she be required to facilitate telephone communication with the applicant father. The respondent mother’s main concern was in respect of the applicant father eliciting information about the respondent mother’s whereabouts as well as placing the child at an additional risk of emotional and physical harm.

17. The applicant father commenced parenting proceedings on 1 April 2021. The matter was listed for Interim Hearing on 21 February 2022 and that the Orders made granted her sole parental responsibility, for the child to live with the respondent mother and no contact to occur between the parties or between the applicant father and the child.

18. The respondent mother made reference to family violence allegations against the applicant father. The respondent mother deposed that the applicant father perpetrated family violence physically, emotionally and verbally towards the respondent mother and also displayed controlling behaviours. It was alleged that the applicant father would call the respondent mother 20-30 times a day from jail demanding to speak to the child. The respondent mother said that if she did not answer the calls from the applicant father, the respondent mother would receive messages from other members of the Gang demanding that she speak to the applicant father. The respondent mother found this behaviour controlling and intimidating.

19. The respondent mother made reference to an incident that occurred mid-2017 where it was alleged that the parties were having a verbal argument. The applicant father became concerned that the respondent mother was working with the police against him proceeded to call the respondent mother names along the lines of “fucking dog”, “rat” and “bitch”. During the argument, the applicant father tried to leave the house and the respondent mother tried to stop him and said to him, “don’t go”. The respondent mother said that the applicant father stopped, turned around and punched the respondent mother in face with a closed fist. The respondent mother fell to the bathroom floor bleeding from her nose and stayed in the corner of the room until the applicant father packed his belongings and left the house on his motor vehicle. 

20. The respondent mother said that it was common for the parties to have verbal arguments during their relationship. The applicant father would become so angry during the verbal arguments to the point of damaging property and punching holes in the wall.

21. The respondent mother made reference to an incident that occurred in late 2017 where the parties were having a verbal argument. The applicant father left the home during the argument and apologised when he returned the following morning. The parties spent the day together and whilst driving, the applicant father stopped to buy a six-pack of alcohol. The applicant father was drinking alcohol whilst driving and the respondent mother reached over to take the can out of his hand. The respondent mother accidentally spilt the contents of the can onto the applicant father’s lap when trying to take the can out of his hand. The applicant father then became very angry and slapped her across the face with the back of her hand, causing her lip to bleed. The applicant father continued to drink alcohol whilst driving.

22. It was alleged that 30 minutes after the incident, the applicant father pulled the car over and yelled at the respondent mother to “get out of the car”. The respondent mother exited the vehicle, and it was alleged that the applicant father drove off with her belongings. The respondent mother had to rely on the applicant father’s mother to provide her with money to get a taxi to meet the applicant father at a friend’s house. The respondent mother did not want to stay there overnight and told the applicant father that she wanted to go home. The respondent mother said that she began walking down the street to try and go home but the applicant father followed her out of the house and began to yell and swear at the respondent mother. The applicant father would not allow the respondent mother to leave their friends house to return home.

23. The respondent mother said that the applicant father has a history of criminal behaviour and was last in prison for an incident involving violent offences. The respondent mother conceded that she did not know the full extent of the applicant father’s criminal history. In early 2021, she had made a report to the NSW Police and provided details of the applicant father’s violence towards the respondent mother. Following this, an application for an intervention order was made for the protection of the respondent mother and the child.

24. The respondent mother said that she had concerns surrounding the applicant father drug and alcohol use. During the relationship, the applicant father would drink to excess on a daily basis. The applicant father became “out of it” and would lose his temper quickly when he would drink alcohol.

25. The applicant father would also use illicit drugs during the relationship. The respondent mother would hear the applicant father use drugs in the bathroom at their home and would often find small plastic re-sealable backs of pills or white powder. The respondent mother had on more than one occasion witnessed the applicant father experience a drug overdose, but concedes that at the time she did not seek medical assistance for the applicant father.

26. The respondent mother is concerned about the applicant father’s continued membership with the Gang and the ongoing risks the applicant father’s membership brings to herself and the child. The respondent mother is concerned with the child having the applicant father’s surname due to the applicant father’s affiliation with the Gang. The respondent mother does not wish for the child to be identifiable to the applicant father’s associates.

27. The respondent mother is currently renting a 2-bedroom unit and the child occupies one of the rooms. The respondent mother has not re-partnered.

28. The child attends day-care 1 day per week and pays for it through money received via Centrelink. The respondent mother is not currently in paid employment and is currently receiving $1,369 a week from Centrelink. The child also attends swimming lessons which the respondent mother also pays for with Centrelink funds.

29. The respondent mother said that the applicant father does not pay child support and has not contributed financially towards the care of the child during the relationship or post-separation.

30. The respondent mother currently has a learner’s driver’s license and is heavily reliant on public transport.

31. The respondent mother during cross examination presented in a calm demeanour and answered the relevant questions from counsel cohesively, concisely and presented as a credible honest witness. The mother maintained the same opinions and evidence as submitted in her affidavit and her credibility was not undermined. It was evident during the respondent mother’s cross-examination that she is a caring and loving mother to the child and has the child’s best interest at the forefront of her mind. The respondent mother said in cross examination that she did not want any contact to occur between the child and the applicant father due to fear of the applicant father locating herself and the child as well as potential ongoing harm by either the applicant father or other members of the Gang.

32. The respondent mother during cross examination maintained that she currently experiences anxiety and fear due to her past experiences with the applicant father and that his fear would continue should contact between the applicant father and the child be reinstated. The respondent mother’s anxiety surrounding reinstated contact between the applicant father and the child emphasising the risk of the child saying something that would facilitate identification of location that could expose the mother to the risk of family violence in the future.

    FAMILY REPORT WRITER - MS B’S, EVIDENCE

33. The family report writer gave evidence on the final day of the hearing.

34. The family report writer was asked by Counsel for the applicant father about the prospects of the father having identity contact with the child initially 4 times a year and then progressing to 8 times a year. The family report writer noted that the applicant father’s minutes provided an intention to ultimately see the child, diminishing the point of identity contact. That being said, the family report writer also noted that whilst there are advantages to the child knowing her father, there is little research done on the advantages of identity contact for children. The family report writer said in this particular case, identity contact may be a disadvantage for the child. The report writer pointed out that the father will be restrained from talking about certain topics and this same restraint will have to be put on the child. It was presented that this restraint is too much of a burden to put on the child at this age as she would not have a real conception of remembering to do that or not.

35. The family report writer said that there are also risks should the child have no contact with the father but be allowed to receive cards and gifts from him during certain occasions. The family report writer noted that there is a risk that the child may wish to seek out the father down the line and may idolise her father.

36. The family report writer was questioned about the applicant father’s antisocial behaviour. Counsel for the applicant father asked the report writer if restraint of drug and alcohol use 24 hours prior to the father seeing the child would ameliorate the risk of antisocial behaviour. The family report writer said that this restraint would not necessarily ameliorate any risk of antisocial behaviour due to the applicant father’s engagement in significant antisocial behaviour over many years. It was noted that the applicant father has attended psychological counselling both during and after incarceration however the family report writer asserted that it would not be entirely helpful diminishing the applicant father’s antisocial behaviour. The family report writer was asked whether the applicant father’s antisocial behaviour was linked to drug and alcohol use. The family report writer said that drug and alcohol use certainly potentiate behaviour, but it is not necessarily the cause of the behaviour.

37. The possibility of a one strike policy could be implemented in respect of contact between the child and the applicant father. Should the applicant father breach certain restraints placed on him during contact time with the child, his privilege of contact would be suddenly ceased. Whilst it was acknowledged by the family report writer that placing this one strike policy on the father may ameliorate some anti-social behaviour, should contact time with the child suddenly cease, the child may consider this as a rejection and may then blames herself. It was noted by the family report writer that should the father apply to the Court to try and reagitate contact time with the child after it had ceased, this will only expose the child to further conflict and Court proceedings.

38. Counsel for the mother questioned the family report writer as to her concerns surrounding the applicant father’s affiliation with the club. The family report writer maintained that she did have concern because the applicant father is engaging in a lifestyle that is potentially criminal and that it has real implications for a child and their development. The family report writer alluded again to the concern of over idealisation of the applicant father as the child would only be seeing the applicant father for short period of time during ideal conditions.

39. The family report writer was questioned by Counsel for the respondent mother about what the respondent mother should disclose to the child concerning the applicant father’s behaviour. The family report writer said that there were discussions with the respondent mother about her obtaining a family counsellor to help find an appropriate way to disclose the information to the child. The family report writer said that it important that the respondent mother be non-blaming when describing the applicant father to the child as the applicant father is half of the child and when one is critical of a parent, they are to some extent being critical of half of the child. It was mentioned that there is no point in lying to the child but the topics will need to be discussed in age appropriate ways as the child develops.

1. The family report writer was asked by Counsel about the implications on the respondent mother’s parenting capacity should contact be reinstated between the applicant father and the child. The family report writer said that during the assessment, it was recognised that the respondent mother presented as fearful of the father and is someone who is living in hear and constantly looking over her shoulder. It was asserted by the family report writer that this level of fear has implications for parenting as parenting is always best done in a state of reasonable relaxation and happiness. It was also noted that children are sponges for feelings, and it is likely that the child will pick up on the mother’s fears which is undesirable as they do not have the capacity to rationalise fears the way adults do.

2. The family report writer was questioned by Counsel in respect of the respondent mother’s proposed orders and whether or not they are in the best interests of the child. The family report writer said that she is of the view that the respondent mother’s proposed orders are in the best interests of the child.

3. Counsel for the ICL asked the family report writer whether it was appropriate for the father to be granted to send the child gifts and cards on certain occasions in the year. The family report writer acknowledged that the proposal was reasonable as it provides the child with the clarity that she has a father and that he is thinking about her. That being said, it was noted by the family report writer that these occasions should be limited to birthdays and Christmas only. The family report writer also said that the respondent mother would need to facilitate the receival of these gifts or cards for the child and facilitate a response from the child to the applicant father.

4. Counsel for the ICL questioned the family report writer on whether the respondent mother ought to obtain professional help in helping the child understand the circumstances regarding the applicant father. The family report writer said that for certain topics the mother should obtain professional help however, the child needs to immediately know that she has a father who loves her and this does not need the assistance of a professional. The family report writer stressed the importance of having children grow up knowing these things so that they can ask questions as they get older. It was noted that the way the current circumstances will be explained to the child now will be different to when she is older.

5. Counsel for the ICL asked the family report writer about the applicant father having identity contact with the child and the associated risks. It was again said that the child and applicant father in some ways will be restrained in what they are able to disclose and that this constraint is not ideal for a child of this age.

6. The family report writer was asked whether there was advantage for the child to have identity contact for the reason of being able to recognise the father’s voice and face for safety purposes. The family report writer conceded that she had not really thought about that perspective but agreed that it would be advantageous to the child to be able to put a face to a voice.

   PARENTING PROCEEDINGS – LEGAL PRINCIPLES.

7. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. The Court has also taken into account the principles in s69ZN and the definition of family violence in s4AB and meaning of abuse in s.4(1). These are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

8. In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.

   The presumption of equal shared parental responsibility

9. Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

10. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.

11. Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.

    Best interests of the child

12. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.

13. Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:

    ·the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    ·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

14. In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.

15. In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:

    …No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.

16. In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.

17. In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:

    … having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.

18. In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:

    There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.

    (emphasis added)

19. In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ [At 173]

20. In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:

    And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.

    (emphasis added)

    Issue of risk

21. The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.

22. In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.

23. The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:

    138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.

    139.     Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

    …

    142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

    (Emphasis in the original)

24. Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].

25. Additionally the following guidance emerges from authorities:

    (1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.

    (2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148]. 

    (3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.

    (4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.

    Additional considerations

26. Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. The Court has also had regard to Division 11 as in this case there is an existing Intervention Order dated late 2021 made in the Magistrate’s Court of Victoria and the need for adequate reasons under s68P as explained by the learned Aldridge J in Clanton& Lachman (No 2) [2022] Fed CFamC1A 165 at [30-37]. The Court must also have regard to s60CG given the existence of a family violence order as defined in s491).

    SUBMISSIONS

27. The applicant father maintained that this was an appropriate case in which to facilitate video contact between the father and child by way of identity contact and that the risks were adequately addressed by the proposed restraints, including a termination of contact if there was a breach by the father.  Mr Ang submitted that there were some concessions by the mother in relation to her evidence concerning the sale of a motor vehicle and the accuracy of part of the content of her affidavit.  Mr Ang submitted that there should be a progression after a period of time, as sought in the proposed orders by the applicant father, after a year, increasing the video contact.  In the alternative, Mr Ang submitted that there should be a commencement of video contact when the child completes junior school and is in early high school, about the age of 12.

28. The respondent submitted that there should be no contact, as identified in the response, and that the benefit of the identity contact was outweighed by the risks to the child.  Those risks were identified by the mother as being the potential for domestic violence, her location being ascertained and/or harm by reason of the ongoing role by the applicant in the outlaw gang.  Counsel for the respondent also maintained that it was apparent there was a level of anxiety by the mother, supported by the fearfulness identified by the family report writer, which would adversely impact on her capacity to parent the child if identity contact were permitted.  The respondent maintained that there was a risk of the child saying something that would facilitate identification of location that could expose the mother to the risk of family violence.

29. The ICL submitted that this was an appropriate case for identity contact only, and whilst propounding that the identity contact should occur on two occasions a year, being the child’s birthday and Christmas time, did not identify any compelling reason why it should not be four times a year, being the child’s birthday, the father’s birthday, Christmas time and Easter time.  The family report writer also supported there being no difference between two occasions or four occasions for such limited communication.  The ICL submitted that there should be no obligation on the mother, beyond a notation of best endeavours, to facilitate a response to the father’s communications, and the Court notes that the respondent agreed with the proposed order 5, if the Court was minded to facilitate communications as propounded in the ICLs proposed minutes of order.

    FINDING AND CONCLUSIONS

30. The Court finds that the family violent incidents deposed to by the respondent mother as summarised above occurred and prefers the respondent mother’s evidence in respect of the conflict concerning those events to that of the applicant. The Court finds that the applicant has a significant criminal history, spent much of his adult life in custody and has a history of alcohol and drug abuse.  The applicant was not a responsive witness, and his evidence seeking to explain away the gravity of the criminality in the conduct on which he was cross-examined lacked credibility. 

31. The Court does, however, accept that the applicant is a loving father of the child and keen to engage with her.  In that regard, not only did the applicant father expose himself to cross-examination on difficult issues, given his past, but he also had the insight as to the best interests of the child to consent to a number of important partial parenting final orders, including that the mother have sole parental responsibility, the child live with the mother and that the child’s name be changed. 

32. These concessions by the applicant father do have significance in the context of the proposed identity orders.  In particular, they show a level of genuine insight by the applicant to his past conduct and the reality of the very limited evidence in relation to his propounded case of having turned over a new leaf and having a new insight and ability to meaningfully engage in the parenting of his child.  The applicant father also gave evidence as to having now obtained almost full-time employment, albeit currently casual, which he hopes will become full-time shortly. 

33. It is, however, only a matter of months since the applicant concluded his six-year sentence on which, because of his behaviour, he was not released early.  More importantly, the behaviour of the applicant in custody supports the ICLs submission of the applicant having a serious issue of complying with authority.  The applicant made light of the gravity of his conduct in relation to the respondent by saying on more than one occasion that he knew it was wrong and that he should not have been out partying and taking drugs when he had a pregnant partner at home. This flippancy by the applicant reflected a persistent attempt to trivialise the family violence and to minims the gravity of his conduct. While the applicant was willing to acknowledge some fault for which he apologised, he did not acknowledge and put in issue most of the family violence identified by the respondent mother.  The applicant father propounded explanations that were not credible and reflected a serious lack of insight as to the gravity of his conduct.

1. The Court accepts the respondent’s evidence that the applicant assured her that he would leave the unlawful gang and turn over a new leaf in her recommencement of engagement with him after his imprisonment, but the applicant’s dispute as to his assurance in that regard is unconvincing.  While the Court appreciates that the applicant has a level of identity through his family and the outlaw gang, the reality is that he his continued membership of that gang and his continued acceptance of instruction to “train” have a very obvious and real connection of exposure to the criminal world in which it is notorious that there is the potential for reprisals against gang members, with potential intended or unintended impact on family members. The Court has made findings as to risk of reprisals identified below in paragraphs [105-108] below.

2. It is not the membership of the outlaw gang alone, in the present case, that gives rise to the Court finding that there is an unacceptable risk of harm to the child from contact with the father.  The father’s criminal history, together with the findings as to the intention of the applicant to engage in a violent incident in 2017, albeit convicted on a narrower basis, his ongoing determination to remain a gang member and his evidence as to continuing to “train” that supports findings, in this particular case, of an unacceptable risk to the mother and child if the father were to spend time with the child.

3. The Court has also taken into account in these findings the family violence by applicant against the respondent mother, and the significant potential for physical, emotional or psychological harm to the child if exposed to such violence in the future.  Whilst the Court accepts that the applicant is apologetic for his behaviour in the past, his refusal to admit to the incidents that occurred and his minimising of the gravity of the same, creates a significant impasse for the Court to accept the applicant’s assertion of having turned over a new leaf and being now a person who can meaningfully participate in the parenting of his child, notwithstanding the gravity of his past family violence conduct in his interaction with the respondent.

4. Because the Court has already made orders in relation to parental responsibility and live with, the Court turns to the section 60CC considerations as to whether there should be contact time spent as sought by the applicant father, or identity orders. The Court has taken into account the two primary considerations and, in particular, accepts that there is a benefit to the child from having a meaningful relationship with both her parents. In the present case, the Court must give greater weight to the consideration as to the need to protect the child from physical, emotional and psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

5. It is that second dominant and primary consideration that in the present case weighs against contact time as sought by the applicant father.  The risk from such contact is the identification of the location of the mother and child, leading to physical or psychological harm or inability to properly parent by the mother in her important parenting role and/or consequential psychological or emotional harm to the child which outweighs the benefit of a meaningful relationship with the father.  The Court accepts the respondent’s evidence as to her capacity to parent being impaired by anxiety and apprehension to a level that would pose a real and unacceptable risk to the welfare and development of the child. The Court finds that  the respondent’s capacity to parent would be materially impaired if required to expose the child to direct communication with the father with the potential for identification of her location, given the family violence which had previously occurred.  The Court accepts that the respondent has a real and significant anxiety and fear of the applicant if her location and that of the child were to be ascertained by the respondent.  The Court does not accept that the restraints propounded by the applicant father meet the risk of an unintended disclosure by the child. The Court accepts that such an unintended disclosure or the risk of the same creates a real risk of materially impairing the respondent mother’s parenting ability. Whilst the risk is assessed as low the consequences for the child if the mother’s parenting ability is diminished from these fears and anxiety is real and in all the circumstances is an unacceptable risk to the welfare of the child and her emotional development.

6. Further, while the applicant father asserts that he would comply with any constraints imposed by the Court, his past conduct and defiance of authority creates an unacceptable risk of harm to mother and child which is not adequately addressed by the proposed restraints propounded by the respondent. The Court finds that this is a case where, beyond identity contact, there should be no contact time with the respondent. The Court finds that there is currently no meaningful relationship between the child and the father. The Court finds that the dominant primary consideration in the present case weighs against any contact time between the father and child beyond identity contact. The Court finds that the need in this case to protect the child in accordance with s60CC(2)((b) outweighs the benefit of the child having a meaningful relationship with the father under s60CC(2)(a).

7. The Court notes there was an issue in relation to the nature of that identity contact and how many times it should occur and whether it should progress.  It is the case that the family report writer, Ms B, identified no real difference between two or four occasions a year in terms of identity contact.  The risk of adverse harm to the child if the respondent ceases such contact was a matter raised by the family report writer.  The Court, however, accepts the applicant’s sincerity of his desire to engage with his daughter and finds that the risk of the respondent not consistently communicating with the child on the four proposed occasions in the orders to be made by the Court is remote and is not, in all the circumstances, an unacceptable risk.

8. This is because the Court finds that the applicant father would not fail to take advantage of the four contact opportunities, albeit for the purpose of identification.  The Court does accept that there is a real risk to the child of a feeling of rejection and impact on self-worth if the applicant father were to cease such contacts.  However, for the reasons already identified, the Court finds the insight demonstrated by the applicant father in consenting to a number of important partial parenting orders shows a level of understanding as to the best interest of the child that provides a level of reassurance to the Court that the respondent father will not fail to communicate with the child on the occasions for which these Court orders now provide.

9. The Court finds that identity contact by facilitating communication on the child’s birthday, the father’s birthday, Christmas day and Easter time will permit the child to understand the identity of her father and that she does have a father who loves her and has not abandoned her.  The Court does not accept that the potential for the child idolising the father in the context of four occasions for identity contact, or the communication material to be sent by the applicant, creates a risk of physical or psychological harm that outweighs the benefit to the child in knowing that she has a loving father. The Court has taken into account that the respondent mother will vet the appropriateness of that material.

10. In relation to the additional considerations under section 60CC(3)(a), the Court notes the child is too young to express any view and has no relationship with the father. In relation to section 60CC(3)(b), the Court finds the child has a close relationship with the mother and that the mother is able to meet the child’s parenting needs and that the child at this stage has no relationship with the applicant father or his relatives. In relation to section 60CC(3)(c), because of the applicant father’s incarceration, he has not been in a position to try and participate in the parenting of his child, and it is the case that he has sought to pursue these proceedings to have a meaningful relationship with his child. The reality, however, is that he has spent no time with the child, other than communicating with her for a brief period at an age that she would not now recall. The reality is also that at a time when he knew the respondent was pregnant, he was willing to engage in the activity that gave rise to his incarceration.

11. In relation to section 60CC(3)(ca), the respondent mother has fulfilled her parenting obligations to maintain the child. The Court accepts that the applicant father provided some financial support to the respondent mother and that there is an order for child support now in place. As identified above, the Court finds that the applicant father committed the offence for which he was sentenced to six years at a time at which he knew the respondent was pregnant. The 2017 incident evidence, taking into account the Briginshaw caution, as to the required scrutiny and seriousness of the finding, discloses that the applicant had an intention to engage in criminal offending.  The Court finds that there was a greater level of intended criminality by the applicant than, in fact, reflected in the conviction of the applicant.

12. The evidence before this Court supports the applicant having, in fact, been engaged, as a gang member, to target a particular person and, for reasons the Court does not have to delve into, was unsuccessful in locating the target and then engaged in what the respondent described as a violent incident.  The evidence supports that that incident was opportunistic. However, the detailed and exact evidence before this Court, satisfy the finding of an intention by the applicant to engage in a gang related targeted offences in 2017. The evidence of the applicant in cross examination referred to the facts that the applicant engaged in violent offences during that time. This reflects a much more sinister intention by the applicant to engage in a gang related targeted offences. These findings are also supported by the recordings that were tendered into evidence and raised with the applicant..

13. The intention of the applicant on the night of the offences was deflected because of an inability to identify the address of the intended target as revealed by the recordings.  For the respondent to have engaged in conduct, for which he pleaded guilty, reflects a failure to fulfil his obligations to maintain his child, albeit at that stage unborn. The applicant’s gang related intended activities in respect of this incident creates a heightened risk of gang related reprisal. Whilst the applicant disavowed any intention to engage in future criminal activity, his past conduct of itself, the Court finds creates a real risk of gang reprisal that could be fatal for himself or the respondent or child. The risk from the past incident in 2017 can be assessed, giving the passing of time as now low, but the consequences from that risk for the mother or child could be catastrophic. The Court finds that risk remains a real risk albeit low and that it is an unacceptable risk to the respondent mother and child if the applicant was spending time with the child.

14. The Court also finds, given the applicant’s willingness to do so in the past, his continued gang membership and his evidence as to continuing to “train” as a gang member, that there is a real risk that the applicant will engage in future gang related activity of a similar kind that could give rise to gang related reprisal the consequences of which could be fatal. Whilst the Court accepts that this risk is also low, the consequences for mother and child could be catastrophic. The Court finds the possible future gang related activity by the applicant, given his particular history, creates a risk of gang related reprisal albeit low is nonetheless real and that it is an unacceptable risk to the respondent mother and child if the applicant was spending time with the child.

15. In relation to section 60CC(3)(d), the proposed orders do not reflect any likely change in relation to the child’s circumstances in living with the mother. In relation to section 60CC(3)(e), this is not a case where the Court is proposing the spending of time, and the orders provide for a means of identity communication, including video recording. That should not prevent a practical difficulty in that identity contact. In relation to section 60CC(3)(f), the Court is satisfied that the respondent mother has and will continue to be able to provide for the needs of the child, including her emotional and intellectual needs. The Court is not satisfied, given the respondent’s history and continued association, together with the domestic violence, that he is able to provide for the needs of the child, including her intellectual and emotional needs.

16. In relation to section 60CC(3)(g), the child is still at a very young age and should not be subject to the burden of trying to keep secretes if engaged with video communication with the respondent, and it is for that reason that the Court prefers the proposal of a pre-recorded video insofar as communication is to take place for the purpose of identity of the applicant father. There is no other characteristic of the child that the Court considers relevant at this stage. In relation to section 60CC(3)(h), this has no application in the present case. In relation to section 60CC(3)(i), the respondent mother has demonstrated a capacity and ability to discharge the responsibilities of parenthood. The conduct of the respondent at the time he knew his partner was pregnant does not reflect such a demonstration of comprehension of parental responsibilities by the applicant.

17. In relation to section 60CC(3)(j), this is a case where there has been serious family violence perpetrated by the applicant father on the respondent mother, including at a time when she was pregnant.

18. In relation to section 60CC(3)(k), there is still in place an Intervention Order made in late 2021. In those 10 final orders both the respondent and child are protected persons. The orders include no contact or communication or coming within or remaining within 200m. The Court has adjusted the restraints imposed by this Court from 100m to 200m so as to be consistent with that Invention Order. The Court accepts that the applicant was served with the process and decided not to contest the orders. The Court does propose to impose consistent restraints in relation to locating the mother and child as well as coming within 200m.

19. This Court’s proposed identity contact orders prevail over the complete prohibition of communication in order 5 made in late 2021. The Court notes that provisions of Division 11 refer to spend time with inconsistencies and don’t have express application to the communication with the child. The purpose identified in s68N together with the principles in s60B(2)(b) that refers to both spend time and “communicate with” support a broad meaning of spend time with and the better view is that these provisions do have application to the communication order 5 made in late 2021. This accords with the correct approach being to deal with the provisions of s68P as identified by Cronin J in Grant & Aiden (No 3) [2016] FamCA 299 at [12]. The child is too young for any explanation referred to in s68P and the Court finds that it is not in the child’s best interests to receive any explanation. The Court has also had regard the matters in s68P(2C) and has added notations to the orders pronounced in compliance with s68P(2). The identity contact proposed to be permitted by this Court, which is inconsistent with the complete prohibition of contact is for these reasons for judgment in the best interests of the child. In particular identity contact will permit the child to know she has a father, to be able to identify him and his voice. It also permits the child to know that her father has not abandoned her and who loves her. The other restraints imposed by this Court achieve the aim of the mother’s protection as prescribed by s60CG and will still protect the respondent mother from an unacceptable risk of family violence.

20. In relation to any other fact or circumstance under section 60CC(3)(m), the Court has given weight to the willingness of the applicant father to consent to important partial parenting orders as identified earlier and his participation in these proceedings and the insight he has shown in relation to the best interests of the child. These insights are important and may indeed show he is on a path to redemption from his past criminal conduct. However the insights are diminished by his attempts to minimise the seriousness of his past family violence as to deposed to by the respondent.

21. The Court hopes that the applicant father continues down the path that he asserts he is pursuing and becomes a productive employee and law-abiding citizen so as to demonstrate, in fact, that he is a rehabilitated good citizen.  The applicant on this path of redemption will need to find a community and support to sever his ongoing membership of an outlawed gang. The Court is not satisfied on the evidence before it that the applicant has achieved that rehabilitation. These are matters that impact of the unacceptable risk as the Court has explained above if the applicant were to spend time with the child. The Court is satisfied the proposed orders are least likely to give rise to any further proceedings between the parties.

22. It follows from what the Court has said that the Court finds it is in the best interests of the child for there to be no spend time with the father and that there only be identity contact as specified in the proposed orders four times a year. The Court is satisfied that the proposed orders do not expose the respondent mother to an unacceptable risk of family violence. It is for these reasons the Court has made the above orders.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       25 September 2023