Morton and Cooke

[2016] FCCA 1022

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTON & COOKE [2016] FCCA 1022

Catchwords:
FAMILY LAW – Parenting – 5 year old child – matter proceeded in absence of Father – coercive and controlling family violence – Mother and Child at risk – impact of Father’s conduct on Child – no time with Father.

Legislation:

Family Law Act 1975, ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAC, 68B

Cases cited:
Russell v Close (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)

Applicant: MS MORTON

Respondent: MR COOKE

File Number: SYC 3710 of 2013

Judgment of: Judge Sexton

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 May 2016

REPRESENTATION

Solicitors for the Applicant: No appearance

Counsel for the Respondent: Mr P. Campton

Solicitors for the Respondent: Gordon & Barry Lawyers Pty Ltd

Advocate for the Independent Children’s Lawyer: Ms K. Shea

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission

ORDERS

1. All previous parenting Orders be discharged.

2. The Mother have sole parental responsibility for making decisions in relation to major long term issues for the Child, X, to be known as X, born on (omitted) 2010 (“the Child”).

3. The Mother have sole parental responsibility for any decisions in relation to the day to day care, welfare and development of the child.

4. The Child live with the Mother.

5. The Child spend no time with the Father.

6. In the event the Father wishes to give the Child gifts, the Father be at liberty to do so subject to the following conditions:

   (a)the Mother’s lawyers provide the Father with a postal address within 7 days of the date of these Orders;

   (b)any gift shall be sent by the Father to the nominated postal address;

   (c)the Father’s communications shall be limited to sending a gift for the Child on the following occasions each year; the Child’s birthday and Christmas; and

   (d)the Mother shall be at liberty to inspect all gifts sent to the Child and in the event the Mother deems the gifts to be inappropriate or otherwise contrary to the terms of these Orders, not give them to the Child.

7. The Mother be authorised to forthwith apply to the New South Wales Registry of Births, Deaths and Marriages to change the name of “X” born on (omitted) 2010 to “X” on the Register referred to in Section 43 of the Births, Deaths and Marriages Act 1995, without the Father’s consent.

8. From the date of the making of these Orders, and pending the approval of the Registrar of the NSW Registry of Births, Deaths and Marriages, of the changes referred to in Order 7 above:

   (a)“X” born on (omitted) 2010 shall be known as and referred to as “X”.

9. Pursuant to Section 68B of the Family Law Act 1975, the Father is hereby restrained by injunction from directly or indirectly, whether through a third party or otherwise, from:

   (a)approaching and/or remaining within 100 metres of the Child;

   (b)entering, approaching and/or remaining within 100 metres of any premises at which the Child lives and/or may be staying from time to time;

   (c)entering, approaching and/or remaining within 100 metres of the Child’s kindergarten and/or school, including before and/or after school care and/or vacation care at which the Child may be enrolled from time to time;

   (d)entering, approaching and/or remaining within 100 metres of any premises and/or venues at which the Child may be present in respect of any extra curricular, sporting and/or other school and/or externally organised activities;

   (e)removing and/or attempting to remove the Child from the Mother’s care whatsoever, including through third parties and whether or not the Mother is present;

   (f)removing and/or attempting to remove the Child from the Child’s kindergarten and/or school, including before and/or after school care, vacation care and/or extra-curricular activities, sporting and/or other school and/or externally organised activities, including through third parties and whether or not the Mother is present;

   (g)uploading and/or posting any photographs and/or comments in relation to the Child and/or in relation to these proceedings and any associated proceedings, including but not limited to any domestic violence and/or criminal proceedings whatsoever via social media and/or internet sites; and

   (h)contacting the Child by any means whatsoever including through third parties other than as provided for in these Orders.

10. Pursuant to Section 68B of the Family Law Act 1975, the Father is hereby restrained by injunction from directly or indirectly, whether through a third party or otherwise, from:

    (a)approaching and/or remaining within 100 metres of the Mother;

    (b)entering, approaching and/or remaining within 100 metres of any premises at which the Mother lives and/or may be staying from time to time;

    (c)entering, approaching and/or remaining within 100 metres of any premises at which the Mother may work, study and/or be employed from time to time;

    (d)assaulting, molesting, harassing, threatening or otherwise interfering with the Mother and/or any member of the Mother’s family;

    (e)engaging in any other conduct that intimidates the Mother and/or any member of the Mother’s family;

    (f)stalking the Mother and/or any member of the Mother’s family;

    (g)abusing, belittling and/or otherwise denigrating the Mother and/or members of the Mother’s family via social media and/or any other electronic means or otherwise; and

    (h)contacting the Mother by any means whatsoever.

11. Pursuant to s.65Y(2)(b) of the Family Law Act 1975, the Mother be authorised to travel with the Child outside the Commonwealth of Australia, or to give her certified written consent for the Child to travel, without the Father’s consent.

12. The Child is permitted to travel internationally with the Mother, or with the Mother’s certified written consent, as provided for by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Mother is permitted to apply for and obtain the issue and renewal of an Australian passport for the Child under the provisions of the Australian Passports Act 2005, without the Father’s consent.

13. For the avoidance of any doubt, the Child’s passports shall be retained by the Mother at all times.

14. The Father be restrained by injunction from applying for any passport of the Child including but not limited to an Australian and/or (nationality omitted) passport for the Child.

15. The Father, Mr Cooke, born on (omitted) 1973 by himself, his servants and/or agents be and is hereby restrained from removing, attempting to remove, causing and/or permitting the removal of the Child, X aka X born on (omitted) 2010 (female), or other such name as the child may be legally known by from the Commonwealth of Australia.

16. The Australian Federal Police give effect to Order (15) by forthwith placing the name of the Child, X aka X born on (omitted) 2010, on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Airport Watch List until 6 September 2028.

17. The Australian Federal Police are hereby authorised to cause the removal of the name of the Child, X aka X born on (omitted) 2010, from the Watch List for the sole purpose of permitting the Child to travel outside Australia in accordance with Order (12) and the Mother shall pay any costs to any relevant authority associated with same.

18. The Father shall within 7 days of the date of these Orders take all steps and do all acts to:

    (a)permanently deactivate his Facebook account currently under the profile name “Mr Cooke”; and

    (b)delete all photographs of the Child and written posts made by him and/or received by him in relation to the Child from Facebook or any other internet/social media sites; and

    (c)provide the Mother’s lawyers with written confirmation and verification of his compliance with this Order.

19. The Father within 24 hours of notice, take all steps and  do all acts and use his best endeavours to ensure that no third party posts any photographs of the Child and/or makes any comments in relation to the Child and/or these proceedings and any associated proceedings on any internet/social media sites and that he cause any such photographs and/or comments to be immediately deleted and permanently removed from any such internet/social media sites, including but not limited to Facebook, Instagram, Twitter and any other social internet sites.

20. That in the event the Father fails to comply with Orders 18 and 19 above, the Australian Federal Police and any other relevant authority are hereby authorised and directed to cause any photographs and/or comments relating to the Child and/or these proceedings and any associated proceedings to be deleted and permanently removed and to permanently deactivate and/or shut down any social media and/or internet sites or accounts, including but not limited to the Facebook account currently under the profile name “Mr Cooke” in order to ensure the Child’s right to privacy and full compliance with these Orders.

21. The Mother or her legal representative serve a copy of these Orders on X’s school Principal, the Australian Federal Police, the N.S.W Police and pursuant to s.121 of the Family Law Act 1975, the Mother be permitted to publish these Reasons for Judgment to the N.S.W. Police.

22. That authorised officer(s) of Medicare Australia be hereby authorised to forthwith transfer the Mother (Ms Morton born (omitted) 1973) and the Child (X aka X born (omitted) 2010) to a new Medicare Card and to issue a separate Medicare Card to the Father (Mr Cooke, born (omitted) 1973) without the said Child.

23. That to facilitate strict compliance with Order 22 above all authorised officer(s) of Medicare Australia are hereby authorised to ensure that the Child (X aka X born (omitted) 2010) is at no time copied onto or otherwise transferred to the Father’s Medicare Card under any circumstance.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3710 of 2013

MS MORTON

Applicant

And

MR COOKE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting case concerning the parties’ only child X, aged 5 years. Property proceedings between the parties were resolved on a final basis by orders made on 14 July 2014.

2. After an approximately 6 year cohabitation period, the parties separated on 1 June 2012. The Mother alleges coercive and controlling family violence by the Father during the parties’ cohabitation and after separation, frequently in X’s presence.   

3. In December 2012, the NSW Police initiated Apprehended Violence proceedings against the Father for the protection of the Mother.  On 31 January 2013, a final Apprehended Violence Order was made against the Father for a period of 12 months. The Orders prohibited the Father from going within 100m of the Mother’s residence or workplace, or from approaching or contacting the Mother except through his solicitors or in accordance with orders under the Family Law Act 1975.  Between March and April 2013, the Father breached the Order.  On 19 May 2014, the Father was convicted of breaching the Order. The Order was extended for a further 12 months and X’s name was added to the Order as a person in need of protection. The Order expired on 19 May 2015.  There is no current Apprehended Violence Order in force.

4. The Mother, in these proceedings, seeks a number of injunctions against the Father to prohibit him from approaching or contacting X or herself.  She describes her ongoing extreme fear of the Father. She and X are living at an undisclosed location.

5. X has not spent time with the Father since 25 December 2012 when she saw him for approximately 10 minutes at the home of the maternal grandmother, and in the maternal grandmother’s presence. At the time there was an interim Apprehended Violence Order in force against the Father for the protection of the Mother.

6. Dr C, Consultant Child and Family and Forensic Psychiatrist, prepared an expert report for the Court dated 26 August 2015[1]. Dr C described the Mother’s and X’s presentation at her office on 15 May 2015 when Dr C had arranged for the Father to be present with X for the assessment[2]:

   Ms Morton [the Mother] presented in a state of extreme terror.  I noted that she looked extremely thin as if she has lost a lot of weight.  X was clinging to her and Ms Morton was clutching X and wasn’t able to let go of her.

   I reassured Ms Morton that I had met with Mr Cooke and his parents and there was no indication that there was going to be any difficulty with this meeting;… I spent some time trying to reassure both of them that X would be quite safe in the office with me and that I could take good care of her. In spite of many reassurances Ms Morton was unable to settle; she and X continued to cling together. ….Finally I had provided numerous assurances and urged Ms Morton to bring X into the room.

   In a state of manifest terror, Ms Morton entered the room clutching X close to her. …  I seated them at the far end of the second room some 20 metres away from the paternal family and almost out of their line of vision.  X kept her head buried in her mother’s bosom; she did not lift her head or make eye contact with anyone. They continued to cling together… a few times I pointed out to X that her father and grandparents were in the room and would like to say hello to her.  Each time I mentioned them she would cling to her mother again.  … after some 35 minutes I suggested we would terminate this…I went outside with Ms Morton and X… X had in fact wet her pants.   

   [1] Exhibit 1

   [2] At pages 52 to 54 of Exhibit 1

7. X did not speak to or in any way engage with the Father or the paternal family at the assessment.  Dr C says[3]:

   If the reports of family violence can be relied upon this would readily account for X presenting in such an anxious state and her extreme fear of her father.  If, as the father suggests, the mother’s account in this regard is not a reliable one, then the child’s presentation would reflect that the mother’s fears regarding Mr Cooke have been transmitted to the child…. 

   X is so anxiously attached to her mother and so fearful of her father that any attempt at instituting contact with him at present would be quite traumatic and therefore psychologically damaging to her.

   [3] At paragraphs 55 and 56 of Exhibit 1

8. The Father denies any form of violence against the Mother or X or in her presence. He told Dr C that the Mother is “a beautiful person”. 

9. The Mother was represented by Senior Counsel at final hearing. The Independent Children’s Lawyer was represented by a Solicitor Advocate.  The Father did not appear.

Reasons for decision to proceed in the absence of the Father

1. On 1 October 2015, in the presence of the Father and his counsel, the matter was listed for hearing for 3 days commencing at 10.00a.m. on Tuesday, 2 February 2016. Orders were made for each party to file their trial affidavit material by 21 December 2015.   The parties later agreed to extend the time for the filing of trial Affidavits to 15 January 2016.

2. On 28 January 2016, at 10.46a.m, two working days before trial, an email was received by my Chambers from the Independent Children’s Lawyer to advise that the Father had not yet filed any affidavit material for the hearing and that the Independent Children’s Lawyer had been “notified by [the Father’s] solicitors….that it is unlikely he will be fit to conduct the final hearing.”

3. At 6.00p.m on 28 January 2016, an email was sent from my Chambers to each party’s solicitor and the Independent Children’s Lawyer confirming that the matter remained listed for final hearing on 2, 3 and 4 February 2016.

4. On 29 January 2016 at 12.51p.m., the Father emailed his solicitors. He does not refer to any health issues. The email said:

   Hi Ms D, I wish to inform via writing that your services are no longer required with the above matter. I thank you for your time and services to date. Mr Cooke.

5. On 29 January 2016 at 1.10p.m., an email was received by Chambers from the Father’s solicitors enclosing a letter and a medical certificate. The letter stated:

   We are instructed that our client is quite unwell and has attended upon his general practitioner. We are further instructed that our client has a referral to a specialist as he is suffering from symptoms such as dizziness, unable to see and loss of memory. It is for this reason that we have been unable to obtain our client’s final instructions in relation to the preparation of his affidavit material.

   …

   We have received instructions that we are no longer to act in this matter and therefore we have no alternative but to file a Notice of Ceasing Act [sic] with our supporting affidavit urgently.

6. The email enclosed a medical certificate dated 29 January 2016 from Dr B at (omitted) Medical Centre in (omitted). Dr B had “examined Mr Cooke” and in the doctor’s opinion he:

   …is/was suffering from moderately severe anxiety and depression and will be unfit to attend Court proceedings [from] Friday 29 January 2016 to Sunday 28 February 2016 inclusive.

7. At 11.04a.m on 1 February 2016, an email was received by Chambers from the Mother’s solicitor. The email stated that the Father’s solicitors had “not received any further updates from Mr Cooke” however the solicitors had “provided Mr Cooke with [my Associate’s] email address so as to keep the Court updated as to his progress.” The email also enclosed a copy of a letter from the Father’s solicitor, Ms Ruggero, to the Mother’s solicitors and the Independent Children’s Lawyer, a sealed Notice of Withdrawal as Lawyer (which was filed on 1 February 2016) and an affidavit of the solicitor, sworn on 29 January 2015.[4] The letter reads:

   …This morning the writer … received an email from Mr Cooke’s brother, Mr J, indicating that Mr Cooke is currently in hospital.”

   Ms Ruggero’s affidavit, sworn on 29 January 2016, annexed the email in which the Father terminated her services.

   [4] Annexure A to affidavit of Ms Ruggero sworn on 29 January 2015

8. At 12.34p.m on 1 February 2016, an email was received by Chambers from Mr J [the Father’s brother], copied to the Mother’s solicitors and the Independent Children’s Lawyer.  The email read:

   I am writing on behalf of my brother, Mr Cooke, who has been admitted to (omitted) Hospital due to a seizure that he suffered on 31 January 2016.

   At this stage, Mr Cooke is still in hospital as the hospital are currently running scans. We have been advised that the hospital anticipates that Mr Cooke will be in hospital for the coming days. It appears that Mr Cooke will not be fit and able to attend his final hearing at this stage as he has been unwell for quite some time. In the event that Mr Cooke is unable to attend to seek an oral adjournment, would you please advise as to the best steps to seek an adjournment.

9. Neither the Father, nor anyone on behalf of the Father, attended the hearing at 10 a.m. on 2 February 2016, apart from the Father’s solicitor, Ms Ruggero, who appeared at 10 a.m. to seek the Court’s leave to withdraw from the proceedings.  Leave was granted.   

10. At 10.40a.m. on 2 February 2016, an email was received by Chambers from Mr J [the Father’s brother] stating:

    I am writing on behalf of my brother Mr Cooke who is currently in intensive care at (omitted) Hospital as his hearing is listed today.  We urgently seek an adjournment. I can be contacted on (omitted) for any further assistance.

11. The Father, without adequate explanation, had not complied with the orders for the filing of his affidavit material. He had not filed an application for an adjournment, and had personally terminated the services of his solicitor on the Friday immediately prior to the hearing, without explanation and without reference to his health. 

1. The Wife opposed an adjournment. The Independent Children’s Lawyer opposed an adjournment. I decided to proceed with the hearing on 2 February 2016, in the absence of the Father, for these reasons:

   a)The Father terminated the services of his solicitors on 29 January 2016, without explanation, and despite the medical certificate stating he was “unfit” from that date. If he was seeking an adjournment as a result of illness, it is difficult to understand why he did not retain his solicitors who had been in the matter for a long time, at least to make the application for an adjournment. 

   b)The Father’s solicitors did not advise that the Father was seeking an adjournment in their Affidavit filed on 29 January 2016. 

   c)The Father provided insufficient medical evidence to satisfy me he was unfit to appear. The medical certificate provided by Dr B was vague and inadequate, given the seriousness of the issues in dispute, the timing of the medical certificate and given that the hearing had been listed for several months.

   d)The Father had filed no affidavit material by the time of hearing without explanation, despite the order for the material to be filed by 21 December 2015 and the extension of time agreed between the parties to 15 January 2016. The Father failed to respond to requests in writing from the Mother’s solicitors as to whether he relied solely on affidavit material filed earlier in the proceedings on 29 September 2013 and 28 February 2014.

   e)The evidence disclosed extremely serious allegations against the Father in relation to his conduct towards the Mother and the child both during their cohabitation and after separation. The Father had been served with the Mother’s affidavit in mid-January 2016 and was therefore aware of the impact of the litigation on her emotional and physical health. Dr C had raised significant concerns in her report in relation to the level of trauma the Mother had suffered at the hands of the Father, a report the Father had had in his possession since August 2015.  The Father would have known that an adjournment would be likely to have an adverse impact on the Mother’s health.  The Father would have known that he would be cross examined in relation to the Mother’s allegations about his conduct, including the allegations about his involvement in criminal activity.  I am satisfied he had reason to avoid the hearing.

   f)The evidence disclosed that the Mother’s capacity to parent X was being adversely affected by these proceedings and Senior Counsel for the Mother submitted that an adjournment was likely to cause the Mother’s emotional health to deteriorate further.  Counsel submitted that, given the extent of her fear of the Father, the Mother needed finalisation of the litigation.  In her trial affidavit the Mother says[5]:

   I have no doubt that if this Honourable Court were to order any time whatsoever or these proceedings do not come to an end after the final hearing, I will disintegrate. I am fearful of the possible outcomes in respect of the final hearing, the possibility of further harm and trauma to X and the detrimental impact on my capacity to parent X as her primary carer…. I am not physically, emotionally or financially able to deal with ongoing litigation and desperately seek finality of these proceedings.

   g)Ms G, clinical psychologist, in a short report annexed to the Mother’s affidavit, discloses that she has been consulted by the Mother between May and December 2015 for Victims Compensation Tribunal counselling. Ms G confirms the Mother’s need for closure, given her fragile emotional state as a result of the trauma she has experienced at the hands of the Father.[6]

   h)As highlighted by the Independent Children’s Lawyer, Dr C also said that given the Mother’s emotional state, she needed the litigation to be finalised.

   [5] At paragraphs 299 to 300 of Mother’s affidavit sworn on 17 January 2016

   [6] Annexure M89 of Mother’s affidavit sworn on 17 January 2016

2. The Mother relies on her affidavit sworn on 17 January 2016, the affidavits of Dr J affirmed 13 January 2016, Ms H, sworn 13 January 2016, Ms E sworn on 14 January 2016, Mr B (maternal grandfather) sworn 15 January 2016, and Ms R (maternal grandmother) sworn 15 January 2016. The Father had filed no affidavit material since February 2014. His mother, Ms C, had sworn an affidavit in December 2013, and he had sworn an affidavit in February 2014, both of which I have taken into account. 

Background facts    

1. The parties commenced living together in approximately 2006 and married on (omitted) 2008.  X was born on (omitted) 2010. The parties separated on 1 June 2012 when the Father was asked to leave the former matrimonial home by the maternal step-grandfather. The parties’ divorce became final on 6 November 2014. 

2. The Father, aged 43 years, is of (nationality omitted) background. His parents were immigrants. He has two older brothers.  On (omitted) 2013, the Father was seriously injured in an explosion and fire at the (omitted) property owned by one of his brothers, Mr J, and his former wife, Ms S.

3. The Mother, aged 42 years, is of (nationality omitted) background. Her mother was an immigrant. The Mother is a (occupation omitted).  She is living at an undisclosed location with X. She says she ceased working as a (occupation omitted) in early October 2012 because of the Father’s conduct towards her and X. Since that time she has been in receipt of a single parent pension and she receives financial assistance from her family. She receives no child support. She has not applied formally for child support for fear of the Father’s reaction. The Mother tells Dr C that her plans are to try to maintain stability and to return to work.

4. X, aged 5 years, started school at the beginning of this year.

X’s care arrangements since separation

1. The Mother tells Dr C she went back to work only weeks after X was born, two days a week, then four days a week, because the parties were short of money and her work situation was uncertain.  The maternal grandmother provided most of the child care, and later a friend ‘Ms O’ was a carer. The Mother told Dr C that initially there was some discussion about the Father caring for X, but that arrangement only lasted two weeks.  

2. In 2012, X went to day care in (omitted), close to the Mother’s (employer omitted), 2 days a week, spent 2 days a week with the maternal grandmother and was with the Mother at other times.  In October 2012, the Mother ceased work because of the difficulties the Father was causing her in the workplace and at her home. She has not returned to work, so X has remained predominantly in the Mother’s care since then.

3. On the Mother’s evidence, X has spent limited time with the Father since the parties’ separation in June 2012 when X was 21 months of age. The Mother says:

   a)Between 1 June 2012 and 24 June 2012, X spent three unsupervised periods with the Father on a Saturday during the day. The Mother was given either no notice or very short notice of the Father’s intention to spend the time.

   b)From 1 July 2012 until 18 August 2012, the parties had an informal arrangement for X to spend time with the Father in the Mother’s presence on a weekly basis, being a Saturday and/or Sunday. The Mother says that she was willing to extend the time if “the visits were going well for X.” During that period, X spent time with the Father on a few occasions for short day time periods.

   c)From 25 August 2012 until (late) 2012, the Mother insisted on the time between X and the Father being supervised and in (omitted) “due to fears for my safety and the safety of X.” During this period, X spent time with the Father on 5 occasions (including one occasion at the Mother’s property addressed later in these Reasons).

   d)Excluding the expert report interviews, X last saw the Father on 25 December 2012 for approximately 10 minutes at the maternal grandmother’s residence. She last saw her paternal grandparents in July 2012. 

4. The Father does not challenge this evidence in any substantial way.  He complains that the Mother obstructed contact between himself and X, while he was yearning for her to spend time with him and his family.   I am satisfied the Mother’s evidence is accurate.

Current orders

1. There are no orders for X to spend time with the Father.  On 17 December 2013, almost 3 months after the Father was severely injured in the garage explosion, an interim order was made for X to live with the Mother and for the Mother to have responsibility for her day to day care.  

Orders sought by the Mother

1. In her outline of case document, the Mother seeks orders for sole parental responsibility, for X to live with her and for X to spend no time with the Father.  The Mother seeks an order that, in the event the Father wishes to give X gifts, the Father be at liberty to do so, subject to certain conditions, including that the Mother be at liberty to inspect the gifts, and the gifts be restricted to two occasions each year; X’s birthday and Christmas. The Mother seeks an order authorising her to change the name of X to X. She seeks a number of ancillary orders which I summarise: injunctions against the Father to restrain him from approaching or contacting herself or X, from approaching X’s school, from uploading or posting any photographs or comments in relation to X and in relation to these proceedings or any associated proceedings including any criminal proceedings. The Mother seeks an order permitting her to travel with X outside the Commonwealth of Australia or for X to travel without the Father’s consent.  She seeks to restrict the Father from applying for a passport for X or from leaving Australia with X. She seeks an order that the Father permanently de-activate his Facebook account currently under the profile name ‘Mr Cooke’, delete all photographs of X and written posts made by him in relation to X and provide the Mother’s solicitors with written confirmation and verification of his compliance with the order. She seeks an order that the Father use his best endeavours to ensure that no third party posts photographs of X or makes comments in relation to X or these proceedings on any Internet site. The Mother seeks leave to serve a copy of these orders on various authorities. The Mother seeks an order that Medicare Australia be authorised and directed to transfer the Mother and X to a new Medicare card, and to issue a separate Medicare card to the Father, excluding X’s name.   

Orders sought by the Father

1. In his Response filed on 27 September 2013, the Father seeks an order for equal shared parental responsibility, for X to spend time with him on the basis of a graduated increase in time over six months until X spends time with him each alternate a weekend and alternate Thursdays, and then from the commencement of primary school for 7 days each alternate week, as well as half the school holidays and on other special days. The Father’s position has not been updated.  He told Dr C he wants “to be there for her” and he wants “what I’m entitled to.”[7] He continues, “I don’t want to be a cheque book dad; I want to be a real father.” [8] 

   [7] At page 49 of Exhibit 1

   [8] At page 50 of Exhibit 1

Orders sought by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer seeks final orders in the same terms sought by the Mother.

Opinion and recommendations of Dr C

1. Dr C assesses the Mother’s fear as genuine. She says that the Mother’s parenting capacity is undermined by her fear of the Father, and her mental health would deteriorate if any time between X and the Father were to occur. 

2. Dr C tells the Court that X may be able to see her Father when she is old enough to understand the reasons for the parties’ separation, and the reasons for her Mother’s concerns, but no earlier than 7 years of age, and only if and when the Mother’s mental state has settled such that the Mother could tolerate X spending time with him.   Currently, the Mother is in “a state of alarm”[9], and X would be aware of this. Unless the conditions are right, Dr C says that any attempt to start time would be “pointless.”[10] It is likely X has a “fearsome” image of her Father. In Dr C’s opinion, the Mother genuinely fears that the Father and his family are involved in crime and that she is at risk of further physical violence, intimidation and abuse, and that X is at risk of further exposure to family violence at her Father’s hands.

   [9] Transcript of proceedings – 2 February 2016

   [10] Ibid

Legal principles

1. These proceedings were commenced after 7 June 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.

2. The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the Court must regard the best interests of the Child as the paramount consideration. To determine the Child’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the Child, the Court must consider all the factors before making a determination.

3. The primary considerations are firstly the benefit to the Child of having a meaningful relationship with both of the Child’s parents and secondly, the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard. 

4. Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the primary consideration in section 60CC(2)(b).

5. The objects of the parenting provisions of the Family Law Act 1975 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 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.

6. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children. An additional object has been included to give effect to the Convention on the Rights of the Child.

Evidence relating to the Father’s conduct

1. The Father has a long and troubling driving record dating back to 1990.  There are 54 offences on his record between 1990 and October 2014, including negligent driving, numerous disobeying traffic lights, driving using a mobile phone, numerous speeding offences (including 3 times in one week), driving unlicensed, making unlawful u-turn, failing to give proper signal, not wearing a seat belt, failing to comply with conditions of his Provisional Licence, driving in a manner dangerous and drive with low concentration alcohol. His licence was suspended for 3 months in 2007, for 6 months in 2008 and 3 months in 2009 due to “demerit points”. On 4 May 2012, the Father’s licence was suspended because of failure to pay outstanding enforcement orders. His licence was suspended between February and July 2013 because it was found that “he was not a fit and proper person to drive a motor vehicle”.[11] The police records[12] disclose that on one occasion in March 2011, the Father was driving a heavy vehicle on a freeway (maximum speed 110 k.p.h).  The Father was driving in the overtaking lane, (far right lane of 3 lanes) despite warnings for heavy vehicles to travel in the left hand lane closest to the left hand side of the freeway. After missing the entry to the check-in station for heavy vehicles, the Father braked suddenly, causing his vehicle to skid and almost collide with other vehicles. He then reversed in Lane 3 against the flow of oncoming fast flowing traffic, causing numerous near misses.  He then moved across 3 lanes, blocking all lanes, narrowly avoiding a major collision.  The Father “admitted his actions were dangerous and could have caused a serious or fatal collision.” [EX 2]. He was served with a Court Attendance Notice. 

   [11] Exhibit 7

   [12] Exhibit 2

2. The Father was convicted of a breach of an Apprehended Violence Order in May 2014, when he received a section 9 bond, X was added as a person in need of protection, and the order was extended for a further 12 months.     

The Father’s conduct in relation to the Mother and X during cohabitation

1. The Mother deposes to the Father’s abusive behaviour towards her during the marriage, his indifference to the impact of his behaviour on the Mother or on X, and his increasingly abusive conduct towards them both in the final months of the marriage and after separation, until he was seriously injured in a (incident omitted) on his brother’s property on (omitted) 2013. The Mother details a frightening pattern of coercive and controlling behaviour by the Father who persistently harassed, abused and threatened her in the presence of X. The Mother says:[13]

   I have been assaulted, threatened, harassed, stalked, intimidated and verbally abused by [the Father].. There have been incidents of physical violence and verbal abuse perpetrated by [the Father] and the paternal grandparents in the presence of X. I have not reported all incidents of domestic violence to police due to my fears about the repercussions. I have been fearful of [the Father’s] reaction and that of the paternal family and have endeavoured to avoid escalating the conflict to the detriment of our young daughter. Police have intervened on a number of occasions…The domestic abuse I suffered during the marriage and after separation was very frequent… 

   [13] At paragraphs 5 and 6 of Mother’s affidavit sworn on 17 January 2016

2. The Mother says that during the marriage the Father “slapped me, pushed me, shoved me, grabbed hold of me, spat at me, thrown items at me and he would strike out at me with clenched fists on several occasions in the presence of X.”[14] The Father also “verbally abused me, harassed me, intimidated me and threatened me with violence.” She says the Father has damaged property and kicked one of the family dogs in X and the Mother’s presence.  She did not report this or other incidents to police because the Father repeatedly said “if you ever call the police you will regret it. I’ll fix you up like never before” and “if you leave me, I’ll make your life hell.”[15]

   [14] At paragraph 56 of Mother’s affidavit sworn on 17 January 2016

   [15] Ibid at paragraph 56

3. The Father vehemently denies that he has ever assaulted, threatened, harassed, stalked, intimidated or verbally abused the Mother and/or X. The Father deposes to the parties having verbal arguments during the marriage, but says it never escalated to a physical altercation[16] and denies ever being verbally abusive and/or aggressive toward the Mother or X.[17] I do not accept the Father’s evidence even on his own case. For example, the Mother annexes a text from the Father in December 2010[18] apologising for his anger and verbal denigration of her, and the Father acknowledges disputes in which he was angry with the Mother.  Most significantly, however, the maternal grandmother (and at times the maternal step-grandfather), and a staff member at the Mother’s employment, heard the Father screaming abuse at the Mother on numerous occasions, incidents not mentioned by the Father. The Father also claims to have been a hands on Father and supportive of the Mother in her caring role. Yet the maternal grandmother refers to the Father’s undermining of the Mother in her parenting role from the time of X’s birth, making such comments to her as: “Ms Morton doesn’t feed the baby enough; Ms Morton spends too much on the baby; Ms Morton isn’t a real family person.”[19]

   [16] At paragraph 89 of Father’s affidavit sworn on 27 February 2014

   [17] Ibid at paragraph 121

   [18] Annexure M2 to Mother’s affidavit sworn on 17 January 2016

   [19] Affidavit of maternal grandmother sworn on 15 January 2016

1. The Mother’s lengthy and unchallenged affidavit evidence is replete with detailed examples of the Father’s abusive conduct towards her from the time she became pregnant with X.  I find that the Mother’s evidence is consistent with the evidence of each of her parents, the evidence of her neighbour and an employee at her workplace, and with the narrative she gave Dr C. Dr C assessed the Mother as genuine. She found no evidence of psychiatric disturbance in the Mother.  She assessed her extreme fear as very real and justified on the narrative. Where police have been involved, I find the Mother’s evidence consistent with the police evidence. I find no inconsistencies or contradictions in the Mother’s evidence or in the evidence of her parents, although her evidence was not tested in cross examination. I find a number of contemporaneous communications between the parties annexed to the Mother’s affidavit corroborate her evidence. I am satisfied the Mother, the maternal grandmother, the maternal grandfather and her supporting witnesses, have given truthful evidence in their affidavit material.  

2. I do not accept the Father’s version of events when it differs from the version given by the Mother. The Father is highly critical of the Mother in his affidavit evidence, despite telling Dr C the Mother is a “beautiful person”.  In his 2013 affidavit, he describes the Mother as “extremely controlling” and over protective of X. He says the Mother would not listen to his advice and denied X time with his family, seeking to alienate them from X.[20] Yet the Father deposes to being supportive of the Mother in her parenting of X, and describes himself as devoted to X. His evidence directly contradicts the evidence of the Mother’s parents and of the Mother.   

   [20] At paragraph 19 of Father’s affidavit sworn on 24 September 2013

3. The Mother’s evidence is thorough and compelling. She provides precise detail in relation to each incident described, some of which I include here to illustrate the nature of the behaviour the Mother and X experienced at the hands of the Father since her pregnancy with X:

   a)In approximately March 2010, during her pregnancy with X, the Mother was required to have an ultrasound. The maternal grandmother deposes to the Mother coming to her home, very distressed, to request the $450 she needed for the ultrasound while the Father remained sitting in the car outside. The maternal grandmother heard the Father yell out to the Mother: “Come on. Have you got the money? Do you want me to take you or what? Hurry up and get the fuck in the car. I’m sick of this shit.” Later that day, the Mother was admitted to the maternity ward, and despite her pain and distress, the Father refused to support her at the hospital.[21] 

   b)When the Mother came home from hospital with X a week after the birth, the Father said he was going away with some friends, trail bike riding.

   [21] At paragraph 12 of maternal grandmother’s affidavit sworn on 15 January 2016

4. After X was born, the Mother deposes to the Father repeatedly verbally abusing her and denigrating her in the presence of X. She says that she felt like she was “constantly walking on egg shells.” By late November 2010, the Father had become “aggressive and violent” towards her.  For example:

   a)When X was 10 weeks old, and in the Mother’s arms, the Father grabbed the Mother by the arm and pushed her. He said “You’re a fucking dumb bitch. You’re a fucking disgusting pig. You’re a fucking hopeless dumb cunt.” [22]

   [22] At paragraph 53 of Mother’s affidavit sworn on 17 January 2016

   b)In December 2010, the Father threw a newspaper and other items at the Mother whilst she was holding X.  She was hit on the back and arm whilst attempting to block X from being hit.

   c)In the same month, the Father said to her, “You’re fucking hopeless. You’re a fucking bitch. You’re a piece of shit. You’re a fucking pig – look at yourself. You disgust me. Why don’t you just fuck off you dumb bitch.” The Mother cried and begged the Father to stop. X was awake and distressed. When the Father left, he punched the table, leaving a crack in it. Afterwards, the Mother received a text message from the Father apologising and saying that he didn’t mean what he said. [23]

   [23] See Exhibit M2 of Mother’s affidavit sworn on 17 January 2016

   d)On X’s first birthday, the Father arrived home late in the afternoon. He appeared agitated and wanted to know whether his family were coming over that evening to cut a cake for X. When the Mother responded that she hadn’t bought a cake or drinks (in accordance with his instructions to her), the Father “suddenly became enraged” and said, “What the fuck are you doing? Go and get the shit for the party yourself. Fuck this I’m getting out of here. Just give me my fucking bank cards and fuck off.” The Mother says that she was concerned the Father would gamble more money and said to him, “You want to pick another argument so you can go and blow more money.” The Father said, “Fuck you, I’m getting my shit and I’m out of here. Now give me my fucking cards. Don’t fucking piss me off.” Whilst the Father packed some clothes and removed the cards from the Mother’s wallet, the Mother rang the Father’s brother, Mr J and begged for his help, saying, “It’s your brother. I can’t take it anymore. Mr Cooke has a gambling problem and he’s abusive.” The Father terminated the call and pushed the Mother onto the bed saying, “Who the fuck are you talking to….Fuck you bitch.” The Mother says X was crying and she locked them both in the bedroom. The Father left. Not long after his brother arrived at the home.  The Mother told Mr J that she could not handle the Father’s behaviour any longer, and Mr J said, “Mr Cooke has been blowing money before you came along. He’s put the family through hell…” Mr J assured the Mother that he would “sort” the Father out.[24]  

   [24] At paragraph 63 of Mother’s affidavit sworn on 17 January 2016

   e)In September 2011, the Father called the Mother whilst she was on a train, angry about X’s christening invitation and wanting the invitations to be changed. The Mother says she was shocked because the Father had finalised and printed the invitation himself. The Father said, “The invitation says Ms Morton and Mr Cooke, but I’m the man so my name should be first and you need to take X’s christening name of (omitted) off the invitations…right now. Fix it or fuck off.”[25] I find it noteworthy that the maternal grandparents reported to Dr C that the Father was extremely difficult to deal with, seemingly happy with an arrangement one minute, then furious about it the next. 

   f)In approximately late 2011 and early 2012, the Father was becoming increasingly short tempered with X, particularly when she cried or refused to go to him. The Mother said she told the Father it was because “you’re always angry and behaving badly in front of her” and begged him to get help to address his anger and behaviour.

   g)On Australia Day 2012, the parties were to attend a barbecue at the Father’s brother’s and sister in law’s residence. The Mother says that she had been invited for 4.00p.m. She had organised X so that they would be ready to leave their house by 3.30p.m. The Father arrived home highly agitated. He yelled at the Mother, “What the fuck are you doing? We have to go to Mr J and Ms S’s for lunch and you are still here fucking around….you’re a stupid fucking bitch” and then stormed out of the house. He returned an hour later when X had woken from her afternoon nap. The Father started yelling again and pushed the Mother out of the way as he went from room to room. He appeared to be looking for something and said, “Fuck you we’re not going anywhere, I’m going out. You’re a fucking hopeless piece of shit. You’re fucking useless. You’re a fucking dumb bitch. You’re a dirty mole.” The Mother says the Father was “enraged”, and threw the Mother’s backpack, which was full and heavy, at the right side of her face and upper body whilst she was holding X in her arms. He continued to scream at her, “I’m going to bash the fuck out of you. You hear me you fucking bitch....” The Mother says she locked herself and X in X’s room, and attempted to reassure X who was crying. The Father then banged on X’s door shouting, “Unlock this fucking door before I fucking smash it.” The Mother dialled triple 000, but didn’t call the police. She begged the Father to leave. She heard the Father leave and then focused on settling X. Annexure M7 of the Mother’s affidavit discloses the Mother’s text message to the Father on 27 January 2012, asking how he could be “so heartless and cruel”. On that day, the Father withdrew $1,000 from the Mother’s account at a hotel in (omitted). The Mother believes the Father took her card from her wallet the day before and used the money to gamble.  From approximately June 2011, the Mother had slept on the lounge almost every night “with my wallet under my pillow to avoid Mr Cooke taking money out of my wallet…to feed his gambling addiction.”

   h)In early 2012, the maternal grandmother heard the Father calling the Mother repeatedly, yelling and swearing at her. She observed the Mother picking up items that appeared to have been thrown around the home, the Mother becoming teary when she questioned her, saying “Mr Cooke’s just a bit stressed.”[26] At around that time, she saw the Father putting X in her car seat roughly, with X crying and she heard the Father say to X “Just shut up. Shut the fuck up.”  The Father then sped off. 

   i)On 20 March 2012, the Father offered to give the Mother a lift to work with X. As they were about to leave, the Mother started to get stomach cramps and said she needed to go back inside the house for a few minutes. The Father yelled at the Mother who was standing in the front yard with X in her arms: “You’re a fucking bitch. You’re hopeless. You’re a fucking idiot. You are the shittiest woman. You’re a fucking dumb cunt. I want a fucking divorce so you better start drawing up divorce papers. I’d rather be dead than married to you. You’re a fucking shit wife and fucking shit mother. I’m going to snap it with you one day. You’re going to live to regret it – fucking bitch.” The Father hurled X’s stroller at the Mother, hitting her left shoulder and arm as she turned to shield X. She fell to the pavers and injured her left elbow when trying to break the fall to protect X. X was highly distressed and the Mother saw a fresh red mark on her forearm. The Father continued to yell. The Mother started to cry and the Father threw the Mother’s bags at her as she sat on the ground trying to console X.  The Father drove away. The Mother was approached by a neighbour to check that she was all right. The Mother went into the house where X vomited all over the tiles and sobbed uncontrollably. The maternal grandmother assisted the Mother to arrange for a taxi. The Mother says she prepared divorce papers, but dreaded returning home from work. The Mother’s contemporaneous text message to the Father confirms her distress at the way the Father was treating her and X.[27]

   j)On 30 March 2012, the Mother told her doctor that she was having problems with the Father, that the Father had a gambling problem and was “abusive and violent” in front of X. The doctor referred the Mother to a local counselling service and provided her with a referral for a mental health plan. The letter from the doctor to (omitted) Health refers to the Mother “having some issues with her husband.” The Mother reports the Husband to be “aggressive”. He has “pushed her” “threatens her” “Husband has gambling problems.”[28] The Mother says she was too fearful and ashamed to speak with the counsellor, and did not do so until final separation. However, she repeatedly sought assistance from the 24 hour domestic violence counselling line in the lead up to, and post separation, and after attending counselling with several counsellors, was finally able to obtain assistance through victims support services.   

   k)On 12 May 2012, the Father returned from work at 5 p.m. and yelled at the Mother, “you need to give me money for fuel. I have to go back to work tonight and I don’t have enough fuel.” The Mother responded “I’m going to get a few groceries and I need the money in my account for bills”. The Father said “listen here you fucking bitch, you’ve had all fucking day to get the groceries. I need to go to work now so you better give me money for fuel. You fucking frustrate me. Just give me some money and fuck off.” The Father then turned up at Coles as the Mother was paying for the groceries and in front of customers the Father said “hurry the fuck up and give me some money. You’re such a fucked up bitch. I’m going to fix you up.” The Mother withdrew money from her account and gave it to the Father.[29] On the same day, the Mother texted the Father’s brother, Mr J, to tell him she had been abused at Coles in front of people and was sleeping away from the house that night.[30]

   l)On 31 May 2012, X was in the maternal grandmother’s care and was unwell. The maternal grandmother asked the Mother to get a taxi home from work which she did.  The grandmother also rang the Father who was highly critical of the Mother for putting her career above caring for X. The maternal grandmother deposes to what occurred in front of her; the Father walked up to the Mother while X was in her arms to say, “Who do you think you are rocking up here at this time when you’re daughter is sick. What the fuck have you been doing?”; the Mother was apologising and trying to calm him down; the Father stormed out of the maternal grandmother’s home “slamming the screen door causing X to cry ”; as the Mother was trying to get into the back seat with X the Father said “Hurry up and get the fuck in the car. You just wait til we get home.”[31]  

   m)On the evening of Friday 1 June 2012, the Father returned home highly agitated. He berated the Mother with a stream of foul, abusive language including, “you are never going to leave me. Where do you think you’re going to go? You’re hopeless without me. Just shut the fuck up. You’re the fucking problem here.” He threw clothes, bags and shoes around the house. The Mother was sitting on the corner of the lounge, with X huddled in her arms. X was crying and clinging to the Mother. The Father became increasingly aggressive throwing items at the Mother including heavy bags, hitting her on the side of her upper body as she turned to shield X. The Father would not stop the tirade, demanding the Mother borrow more money for him. X accidentally pressed the redial button on the Mother’s mobile phone and the maternal grandmother and her husband could hear the yelling and swearing. They heard X crying and sobbing “Mummy”.  The Mother was pleading, “Please stop. Not in front of the baby.” “Please stop. I’m sorry.” The maternal grandmother heard the Father saying, “Have you come up with the money to get my truck. I need $3,800 now. Go get another fucking loan if you have to. I don’t give a fuck” and “you’re a fucking dumb cunt” and “you’re a useless fucking pig” and I’m going to bash the fuck out of you one day” and “Look at this fucking kid. She won’t come to me. She’s just like you. She doesn’t fucking listen” and “I’m going to fucking sort you out.”  The maternal grandmother could hear banging sounds and commotion.  The Mother said she had no money because the Father has taken it all and she could not even pay the electricity bill or get groceries. The Father said, “I need money for myself every week and it’s none of your fucking business what I do with it” and “I don’t give a fuck about the bills – you fuckin pay the bills and you pay for your daughter you fuckin cunt.” The Father then grabbed her by the shoulders and pushed onto the lounge. X was crying uncontrollably. The Mother repeatedly pleaded with the Father, “please stop. You’re scaring the baby. Please stop”. The Father started to throw items around the house again and stormed up to the Mother grabbing the neck of her top with his left hand pulling her toward him while lifting his right arm up in the air with his right hand clenched in a closed fist. He repeatedly moved his right closed fist towards her face in a strike motion barely missing her face while saying, “I can understand why husbands bash the fuck out of their wives” and “I’m going to bash the fuck out of you one day” and “you make me so fuckin angry – you know I’m going to lose it with you.”[32] The Mother begged the Father to stop and tried to placate him, because X was sobbing uncontrollably. He stepped away but then turned and spat at the Mother, making contact with her shoulder and upper arm. He continued to yell,  “you’re a shit wife and a shit mother.”   

   n)The maternal grandmother had driven to the Mother’s home with her husband after hearing the Father’s abuse over the phone.  Her husband told the Father to leave the house. The Father told him to “fuck off” but the maternal grandmother’s husband said he would call the police, so the Father collected a few things and left.  While the maternal grandmother was still in the house with the Mother and X, who was clinging to her Mother and very distressed, the Father returned.  He said to the Mother “you better come up with the fucking money for my truck and pay everyone back” and “you better fucking answer your phone when I call you” and “I’m fucking sick of your shit. You’re the fucking problem. No one is going to put up with you. You fucking dumb bitch.” The Mother was cowering, and the maternal grandmother said “Mr Cooke, that’s enough”.  He did not look at or acknowledge X who clung tightly to the Mother.  He glared at the maternal grandmother and left, slamming the door.[33] The maternal grandmother and her husband reported this incident to Dr C.

   [25] Ibid at paragraph 65

   [26] At paragraph 30 of maternal grandmother’s affidavit sworn on 15 January 2016

   [27] Annexure M9 of Mother’s affidavit sworn on 17 January 2016

   [28] Ibid at Annexure M10

   [29] Ibid at Annexure M11

   [30] Ibid

   [31] At paragraph 35 of maternal grandmother’s affidavit sworn on 15 January 2016

   [32] At paragraph 90 of Mother’s affidavit sworn on 17 January 2016

   [33] At paragraph 38 of maternal grandmother’s affidavit sworn on 15 January 2016

5. The Father would often telephone the Mother several times a day during the marriage, demanding to know where she was. The Father became “very aggressive and abusive if I did not promptly take his calls or return them when I was at work or at home taking care of X.” The Father, however, was “extremely secretive” about his whereabouts.   

6. The Mother struggled financially and was required to meet the household expenses, expenses for X as well as repay loans the Father had taken out for ‘business expenses’.  Her parents often helped her and the Father financially. At counselling after separation the Father acknowledged that he had a gambling problem. He attended Gamblers Anonymous.[34] The maternal grandmother and her husband told Dr C there were always “money issues” with the Father.  Even though the Mother was working full time and the Father had a truck, they never seemed to have money. The Father blamed the Mother. The maternal grandparents lent the Father money, sometimes being paid back, sometimes not. The situation got worse when the Mother was pregnant.  After the baby was born, they discovered the Father’s gambling habit.   

   [34] Annexure M3 to Mother’s affidavit sworn on 17 January 2016

7. At the time of X’s birth, the parties were served with an eviction notice for unpaid rent and were served with letters of demand for loan repayment arrears on the prime mover and the Mercedes Benz the Father used exclusively.  The Mother was guarantor on the loan.  The Mother says she had to return to work 2 months after X’s birth to meet expenses, including the loan repayments. At separation, the Father left the Mother with no money.  Her parents were paying her rent. The electricity was cut off.

1. Dr C says that while there should be no contact at this stage, in her opinion X would benefit from having limited but sufficient contact to know her Father and the paternal family.  She says that when X is older and can understand the issues, and when the Mother’s mental state has settled, it may be possible to institute this, perhaps at a contact centre and possibly two to three times a year.[132] I am not persuaded the evidence supports such a possibility. However, this does not mean that the Mother is prevented from organising such time in a safe setting in the future, should she form the view that it would be in X’s best interests for her to do so. 

   [132] At paragraph 59 of Exhibit 1

2. I have determined it is in X’s best interests to have no time or contact of any kind with the Father as sought by the Mother and supported by the Independent Children’s Lawyer.  However the Mother is not proposing that the Father be completely cut out of X’s life.  She is proposing a link be maintained. I accept the Mother’s proposal that the Father be permitted to send gifts to X on her birthday and Christmas each year, subject to certain conditions, and I have made that order.  I agree with the Mother and Dr C that it is important for X to have a sense of identity including her paternal heritage.

3. The Mother seeks a final order for a change of name for X. The Mother wishes to include ‘(omitted)’ (her christening name) as her middle name. The Mother at times refers to X as ‘X’.  She says that X identifies with her middle name and it is part of the (nationality omitted) and (religion omitted) culture that the children’s christening name be consistent with their birth name. The Mother also seeks to have X’s family name hyphenated to Morton-Cooke so her maternal side’s family name can be part of X’s name.  Given X is exclusively cared for by her Mother and maternal extended family, I am satisfied it is in X’s best interests for this order to be made.

4. X has never had a passport in her name. The Mother seeks an order permitting her to obtain a passport for X without the consent of the Father, in case an opportunity presents itself in the future for her to travel overseas. The Mother would like to take X to (country omitted) one day so she can learn more about her heritage. The Mother has also previously travelled overseas for work-related events and she believes that such opportunities to travel would be positive experiences for X. The Mother does not believe the Father would cooperate or comply with an order requiring him to do things necessary to enable her to obtain a passport and the Mother says she does not have the financial nor the personal capacity to engage in further litigation.  I am satisfied it is in X’s best interests to be able to travel overseas with her Mother in the future, and that it is unlikely the Father would cooperate to assist her to do so.  I have therefore made the orders sought by the Mother.  The Mother will be permitted to take X overseas at any time, but the Father will be restrained from doing so. 

5. The Mother’s Medicare card and records remain under the family name ‘Cooke’. The Father therefore continues to have access to X's Medicare records which may identify the location in which she sees treating doctors.  I am satisfied it is in X’s best interests for her location to remain unavailable to the Father and I therefore have made an order that the Mother be permitted to obtain a card for herself and X and that the Father be restrained from obtaining a card for or including X.

6. As earlier indicated, I agree with the Mother’s proposed order to ensure the severance of X’s connection with the Father on social media.   

7. As already noted, the Independent Children’s Lawyer supports the Mother’s proposal in its entirety. The Independent Children’s Lawyer therefore supports the Mother’s proposal for a number of injunctions against the Father pursuant to s.68B of the Family Law Act 1975, to prohibit the Father from approaching or having any contact with X or with the Mother.  As there is no current Apprehended Violence Order in force, and because of the serious findings I have made in relation to the Father’s behaviours, I am satisfied the injunctions sought by the Mother and the Independent Children’s Lawyer are necessary for the personal protection of the Mother and X, and I have exercised my discretion accordingly.     

8. The Mother’s solicitor will be asked to serve a sealed copy of the orders on X’s school Principal, the NSW police and the Australian Federal Police. The Mother will be at liberty, without leave of the Court, to provide a copy of the Orders to any other agency or person(s) involved in X’s care, health or education. Given the very serious matters raised in this case, and the Court’s concerns about the safety of the child and the Mother, I have decided this Court has an obligation, for the personal protection of the Child and the Mother, to make these Reasons available to the N.S.W. Police. I have had regard to the provisions of s. 121 of the Family Law Act 1975 in making this decision.

9. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X. 

I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:   2 May 2016