MOYES & MOYES

[2015] FCCA 1059

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOYES & MOYES [2015] FCCA 1059

Catchwords:
FAMILY LAW – Parenting orders – oral disqualification application made by the father – no proper grounds – application dismissed – father’s mental health issues – young child – consideration of s.60CC(2) of the Family Law Act 1975 (Cth) factors – child to spend no time with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(2A), 61DA, 61DA(4), 62G

Family Law Rules 2004 (Cth), r.22.13(3)
Federal Circuit Court Rules 2001 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Applicant: MS MOYES

Respondent: MR MOYES

File Number: MLC 6420 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 April 2015

Delivered at: Melbourne

Delivered on: 28 April 2015

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitors for the Independent Children’s Lawyer: Lampe Family Lawyers

ORDERS MADE 15 APRIL 2015

1. The child of the marriage [X] born [in] 2012 live with the mother.

2. The mother have sole parental responsibility for the child.

3. The order appointing the Independent Children’s Lawyer be discharged.

4. Orders 1, 2, 3 and 4 of the Orders made 14 August 2013 be discharged.

5. IT IS REQUESTED THAT the Australian Federal Police do remove the name of the child [X] born [in] 2012 from the Airport Watch List currently in force at all points of arrival and departure in the Commonwealth of Australia.

6. All extant applications are dismissed and the matter is removed from the list of active cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6420 of 2013

MS MOYES

Applicant

And

MR MOYES

Respondent

REASONS FOR JUDGMENT

1. In August 2013, the Applicant husband and father first issued proceedings in this Court seeking parenting orders in respect of the parties’ child [X] born on [in] 2012 (‘[X]’).  [X] is now aged two years and seven months.  The father, at that time, sought orders including that [X] live with him, that her time spent with her mother be reserved, that a recovery order issue to deliver [X] into his care, and restraining orders against the removal of [X] from the State of Victoria.

Background

1. Statements of fact in the reasons are findings of fact on the balance of probabilities.

2. The father was born in Australia on [omitted] 1971.  He is now aged 44 years.  The mother was born in Bulgaria on [omitted] 1979.  She is now aged 35 years. She relocated to Australia in 1998 to join her mother who had already moved to this country.  The father resides in [Melbourne suburb omitted] in his parents’ home.  He is of Aboriginal origin on his mother’s side.  He has during the course of the August 2013 proceedings and the subsequent proceedings between the parties which commenced in April 2014, been variously unemployed and employed.  He has never paid amounts of child support to the mother out of employment monies.  The mother resides in [B] in New South Wales.  She is [occupation omitted]

3. The parties commenced cohabitation on 1 February 2008 and they married on [omitted] 2008.  They separated in May 2013. [X] was some eight months old at that time.

4. Following separation, [X] lived with the mother.  In July 2013, the mother and [X] moved to the Gold Coast in Queensland.  The relocation was prompted by the mother taking up a [omitted] appointment.  The parties agree, that during the relationship they moved residence frequently to facilitate the mother taking up employment with various [workplaces omitted].  They resided as a consequence in Victoria, Queensland and New South Wales.  [X] was born in Melbourne and when she was aged about two months, the parties moved to [E] in New South Wales. There the mother took up a position in [omitted].  The father was employed as a [omitted].  The parties separated for the first time. The mother and [X] returned thereafter to the maternal grandmother’s home in Melbourne.  The mother then subsequently obtained a position at [B], and the parties both lived in [B] for about eight weeks until their final separation in approximately May 2013.  The father claimed that the time in [B] was a reconciliation and that the parties lived together.  The mother’s evidence, which I accept, is that she did not agree to reconcile with the father in [B]. He did however, care for [X] whilst the mother worked, and he, against her wishes, moved in to her ‘[workplace] provided’ house. When that position finished, the mother and [X] returned to Melbourne.

5. The father also returned to Melbourne, and spent two weeks living in a caravan park, before commencing to reside with his parents.  He lived for a short time in [omitted], but has mostly continued to live with his parents.  The father claimed that he saw [X] on a daily basis for a few weeks before ceasing to see her after 20 June 2013.  The mother did not agree in her Affidavit sworn 28 August 2013 that the father assisted with [X]’s care on a daily basis, despite the mother offering that he do so. On the days that he did so, the mother claimed, in paragraph 9 of her Affidavit that:-

   “The Father would frequently arrive to pick up [X] and would return her early as she interfered with his parents routine to “have dinner early”.”

6. When the mother applied for a position at the Gold Coast [workplace omitted], she notified the father of her application.  The father claims the mother did not obtain his consent to her removal of [X] from the State of Victoria to the State of Queensland.  The mother’s evidence, which is unchallenged by the father given his abandonment of the proceedings, and which I accept, is that the father did not object to the relocation of herself and [X], with the father intimating to her that he was agreeable to moving to the Gold Coast himself to spend time with [X].  The mother made it clear to the father that she would not be living with him, nor would they be reconciling their relationship.  She did not object however, to the father relocating to the Gold Coast with (or after) her and the child. She was however wary of the father, having been subjected to family violence from him.

7. The mother and her grandmother moved to the Gold Coast with the mother commencing her employment with [omitted] on 8 July 2013.  The maternal great grandmother cared for [X] in her mother’s absence at work and outside child care hours. The father has not seen [X] in the intervening period between then and now.  Shortly before that relocation, the father ceased to visit or inquire about [X]. The father knew the departure details of the mother’s flight. Initially the parties maintained telephone contact and the mother offered the father a plane ticket for him to visit [X]. The father declined.

8. The father meanwhile, and on 25 June 2013, made a complaint to the [omitted] Authority (‘[A]) regarding his alleged concerns as to the mother’s psychiatric health. He did not inform the mother of his actions. Instead, he requested of her to give him $1,000 to pay for his car repairs. The mother made such payment to him. In his complaint, the father accused the mother of suffering from a serious psychotic illness.  He claimed she engaged in irrational and violent behaviours. He referred to earlier conditions placed on her [omitted] registration, a matter I briefly canvass here.

9. Prior to the mother meeting the father and in 2006, while she worked at [omitted], the mother claims she suffered from bullying and harassment in the workplace by a colleague.  [A] reviewed the case and ordered conditions on the mother’s [employment], including that she see a psychiatrist on a regular basis. The outcome of the review suggests a cause being something other than what the mother claimed in her Affidavit sworn 28 August 2013 in paragraph 17, namely that she was a victim.

10. Whatever the particular facts, the outcome was the mother having conditions imposed on her [omitted] registration on 24 July 2008, which were removed entirely on 26 July 2011, at her request, following a health assessment of her, wherein a Dr S found her not impaired.  Prior to that date and on 6 August 2009, the number of [work] hours which she was allowed to perform had increased from 24 to 38 hours each week. The mother was never suspended from [occupation omitted] in her chosen field or fields. I note when the father had earlier perceived it as advancing the parties at the commencement of their relationship, and in the context of conditions placed on the mother’s [occupation] at that time, the father pressured the mother to return to [occupation omitted]. He wrote letters and emails to the [omitted] to the effect that their opinion was incorrect. He accused them of corruption.

11. After separation and in June 2013, as deposed to by the father in his Affidavit sworn 31 July 2013, the father suffered from depression and attended at the emergency department of St Vincent’s Hospital.  His treating doctor subsequently referred him to a psychologist on a mental health plan.  The father commenced counselling weekly with Ms W from 1 July 2013.  He also commenced taking antidepressant medication, Pristiq, at 50 milligrams per day.  This subsequently was increased to 100 milligrams per day. The mother became very concerned about the father’s mental instability.

12. The father’s complaint to [A] was vindictive and unmeritorious, and an indication of the type of behaviours the father was increasingly engaged in.

13. The mother indicated to the first Independent Children’s Lawyer, Ms Smith, that in light of the assessment of Dr S and her attested to (by others) competent and satisfactory performance in the [omitted] workplace, that she did not consider it necessary to undertake any further psychiatric assessment for the purpose of these proceedings. She was not required to do so, in particular, in the context of all the evidence before the Court.

14. In the earlier proceedings of August 2013, the mother’s then solicitor, Ms Rebecca Ogge swore an Affidavit on 28 October 2013.  Annexed to that Affidavit were true copies of the numerous emails, oppressive in quantity, forwarded by the father from late September 2013 to 28 October 2013, directed at Ms Ogge and/or the mother.  Further, she annexed to her Affidavit a copy of an email received from the Applicant’s parents, Mr & Mrs M, marked as annexure ‘RCO2’.  Those annexures were evidence of inappropriate and abusive communications emanating from the father and his parents to the legal representative of the mother and to the mother. The father’s concerning behaviours were escalating.

15. Ms Ogge ceased to represent the mother and the matter was taken over within the offices of Moloney MacCallum Lawyers of Southport, Queensland, by Mr Hey, a senior partner in that firm.  Mr Hey affirmed an Affidavit on 17 March 2014 which, like Ms Ogge’s Affidavit before it, referred to the numerous emails received from the father into their offices.  In the period from 10 February 2014 to 17 March 2014, Mr Hey’s firm had received 80 emails from the father.  Those emails included communications that were threatening and inflammatory in nature.  They continued even after the father filed his Notice of Discontinuance on 24 February 2014. Thereafter, the firm ceased to act for the mother altogether, although not until various proceedings were had in the [omitted] Magistrates Court.

16. Mr Hey deposed that threats had been made to his client directly and indirectly to her new partner.  As a result, the mother was required to make application to the Magistrates Court of Queensland for a domestic violence order against the father.  Such order was made on 20 January 2014.  Persons protected by that Domestic Violence Order were the mother, her grandmother and the child, [X].  The father, in forwarding communication, carbon copied to the mother’s solicitors and to the mother, committed continued and flagrant breaches of the Domestic Violence Order.

17. Mr Hey annexed only a list of the emails rather than the entirety of the emails themselves due to their voluminous nature.  He provided two examples of the threatening and derogatory emails received from the father.  Annexure B contained one such email.  In it, the father accused the Court of being culturally biased by denying his child her Aboriginal heritage, and sought an immediate arrest warrant to be issued if the mother was not present for the hearing on 10 February 2014, saying to the solicitor then acting for the mother:-

    “Get ready, Mr Hey, your client is going to be charged formally.  No deals, no answer to a single request from you, I intend to ensure she is fully accountable for her lies (perjury).  Oh by the way Mr Hey, she supplied the necessary information in a little statement of “apparent fact”. Dated 28th August 2013.  She signed each page reaffirming she had read and understood it all to be “fact”.

    She also states in said document she is a “[occupation omitted]”.  She has breached her own professional ethics.  Those are the facts:  she also did so deliberately and blatantly for personal gain.

    There is no other way of stating it:  [Ms Moyes] has “criminally defamed” myself. 

    Another question I have:  perhaps you should ask Mr Hey:  Did Ms Ogge fail in her duties as an “officer of the court”? 

    and did she fully inform her client that she was not allowed to speak at the initial hearing on 14th August 2013?

    Because it is not really what I think or what you think Mr Hey:  but what would a “reasonable person” think?  I believe that question will be answered at some point over the coming months.

    The “truth” is coming out, regardless.

    I have been punished by the court ever since I walked into it. Because I would suggest that two people acted “selfishly, recklessly, without reason, and as well as:  unprofessionally and unethically” on 14th August…. Perhaps there may well be another Application for Contempt against another individual Mr Hey?  Perhaps Ms Ogge should be dragged before the court?  Lets see .... just wait and see….

    Mr Moyes.”

18. The father also sent harassing emails to the mother’s then employer, [omitted]. On the mother’s oral evidence at trial, her employer eventually took legal action against the father. The mother described the father’s forwarded emails throughout both proceedings containing material that was “insulting, harassing, very disturbing”. She had spent more than $30,000 in legal costs before being unable to further fund legal representation.

19. The Independent Children’s Lawyer was initially Ms Smith at Victoria Legal Aid, and thereafter Mr Lampe of a private firm.  Each of these persons and the Court were forwarded, from the father and from late 2013, inappropriate and voluminous correspondence.  Whilst the father was directed by the Court to copy the other parties into any correspondence that he forwarded to the Court, he indicated on 18 March 2014 that he:-

    “… refuse[d] to write or include Mr Hey in any correspondence, since his allegations.”

20. The Court forwarded to the father a Notice to Litigants and Legal Practitioners – Communicating with Judges’ Chambers, in an attempt to direct and contain the father’s communication with the Court.

21. The father filed, so that same was before the Court, though not in evidentiary form, a document which purported to be a will signed electronically by him on 12 March 2014.

Orders

1. Orders were made by the Court on 14 August 2013 on the father’s application which were as follows:-

   “1. UNTIL FURTHER ORDER, the child, subject to the Order, is restrained from leaving the Commonwealth of Australia.

   2. Each party MR MOYES born [in] 1971 and MS MOYES born [in] 1979 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said child [X] born [in] 2012 from the Commonwealth of Australia.

   3. IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child 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 Watch List until the Court orders its removal.

   4. This Order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done by consent in writing (authenticated as prescribed in accordance with reg.13 of the Family Law Regulations 1984).

   5. The mother file and serve a response and affidavit within 14 days hereof.

   6. Otherwise all extant applications be adjourned to 30 October 2013 at 9.45am for directions in the duty list and the mother is permitted to attend by telephone link.”

2. On 30 October 2013, Orders were made appointing an Independent Children’s Lawyer.  Other orders were made including order number 5, which was as follows:-

   “5. That within 21 days from this date the father file and serve:-

   (a) a report from his treating General Practitioner, Dr K as to the Applicant father’s mental functioning and capacity to spend any time with his one year old daughter; and

   (b) a report from his treating psychologist, Ms W as to the father’s mental functioning and capacity to spend any time with his one year old daughter.”

   I note the father agreed to the Orders that were made on 30 October 2013, as recorded in the transcript of proceedings that day.

3. In respect of the Orders made 30 October 2013, the father filed a Notice of Appeal on 11 November 2013. He appealed each and every order made. On 16 December 2013, the appeal was deemed abandoned pursuant to r.22.13(3) of the Family Law Rules 2004 (Cth).

4. On 15 November 2013, the father filed an unmeritorious and misguided contempt application against the mother.  On 10 February 2014, it was dismissed. Costs fixed in the sum of $1,500 and ordered to be paid to the mother by the father remain outstanding.  Order number 3 of the Orders made that day were as follows:-

   “3. To facilitate order 6 of the Orders made by the Court on 30 October 2013 requiring the father to attend upon Dr E for the purpose of psychiatric assessment, the father shall do the following:-

   a. attend upon Dr E on 25 February 2014 at 10am or other date as requested by Dr E or the Independent Children’s Lawyer; and

   b. in the first instance, the Independent Children’s Lawyer meet Dr E’s professional costs for the preparation of the report, save that the Independent Children’s Lawyer have liberty to make application for the father to reimburse the Independent Children’s Lawyer for all or part of the costs paid to Dr E.”

5. The father withdrew from the proceedings issued by him in August 2013 by Notice of Discontinuance filed by him on 24 February 2014.  No report from Dr K or Ms W, psychologist, had ever been filed by him. He no longer sought parenting orders with respect to [X].  In the following month, despite there being no proceedings on foot, the father filed an Application in a Case.  He sought the following orders:-

   “1. Immediate contact orders between the parties with regard to the Child

   2. Immediate contact orders between the Father and any person who cares for the child.

   3. Immediate orders for the return of the Child to Melbourne. So that the father can see the child for his Birthday on [date omitted] 2014.

   4. Immediate orders for the mother to attend upon Dr E.

   5. Immediate orders that the father has the right to spend any time he wishes with the child.

   6. That the Mother be ordered to pay the fee for Dr E’s services.

   7. That the order for costs be reviewed and the decision to award such against the Father has placed him under greater financial hardship, meaning he cannot fly to the Gold Coast and afford to stay there and visit the child.

   8. That the entire court matter be officially reviewed.”

6. The father did not file an affidavit in support of that Application in a Case as required by the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) but referred instead to an earlier Affidavit sworn by him in support of his Application for Contempt. The mother then filed an Initiating Application on 7 April 2014 which proceeded to final hearing on 15 April 2015. In that Application, she sought the following final orders:-

   “1. That the Applicant Mother have sole parental responsibility for the child [X] born [in] 2012.

   2. That the child shall live with the Applicant.

   3. That the child shall spend no time with the Respondent.

   4. That Orders 2, 3 and 4 of the Orders made by this Honourable Court on 14 August 2013 be revoked and the Applicant MS MOYES born [omitted] 1979 be permitted to travel overseas with the child [X] born [in] 2012.

   5. That the Australian Federal Police are directed to remove the child [X] born [in] 2012 from the Family Law Watch List.

   6. That the Respondent pay the Applicant's costs of and incidental to these proceedings.”

1. The father was ordered to file a response to that application and he did, it being dated 18 April 2014.  The final orders which he sought are as follows:-

   “1. THE CHILD REMAIN FOREVER ON THE AUSTRALIAN FEDERAL POLICE WATCH LIST

   THE CHILD BE FOREVER LISTED AS NEVER BEING ALLOWED TO LEAVE THE COMMONWEALTH OF AUSTRALIA

   2. THAT THE MOTHER UNDERGO AN IMMEDIATE AND URGENT PSYCHIATRIC ASSESSMENT BY DR E. THAT SHE PAY FOR HERSELF.

   3. THAT AN IMMEDIATE AND URGENT RECOVERY ORDER BE ISSUED WHEREBY THE CHILD RETURNS TO LIVE IN MELBOURNE WITH THE FATHER, UNTIL SUCH TIME AS A REPORT AND PSYCHIATRIC ASSESSMENT HAVE BEEN UNDERTAKEN OF THE MOTHER.

   4. THAT THE MOTHER WILL FORMALLY IN WRITING ACKNOWLEDGE THAT THE FATHER HAS EVERY RIGHT TO SEE AND SPEND TIME WITH THE CHILD.

   5. THAT POINT THREE (3) OF THE MOTHERS APPLICATION DATED 07^TH APRIL 2014 IS OFFENSIVE AND DEGRADING OF BOTH THE COURT AND THE FATHER AND SHOULD BE STRUCK OUT IMMEDIATELY.

   6. THAT THE COURT WILL FORMALLY WARN THE MOTHER AND HER LEGAL COUNSEL THAT LODGEMNT OF THE APPLICATION WAS LATE AND DONE SO DELIBERATELY. Not within the fourteen (14) day limit of the orders dated 20^th March 2014.

   7. That the Mother pay her own legal costs and instruct her solicitor to stop making threats of further financial harm on the father.

   8. That the child’s passport be immediate surrendered to the court for destruction by the father.”

2. Various procedural orders were made by the Court in respect of this resumption of proceedings between the parties, including the ordering of a family report, pursuant to s.62G of the Family Law Act 1975 (Cth) (‘the Act’), and the appointment of an Independent Children’s Lawyer. The father had attended upon Dr E, psychiatrist, for the provision of a report to be made available to the Court pursuant to the earlier orders, and provision of that report was anticipated.

3. In affidavits filed by the father, on which he relied, of 6 June 2014 and 29 May 2014, the father indicated his desire to reconcile with the mother.  The father was aware that the mother had commenced another relationship with Mr A whom the mother had met whilst [omitted] in [B].  Mr A runs a business known as [omitted]. The father was without any basis in reality, scathing and derogatory in his references to Mr A.

4. The mother had a baby, [Y], to Mr A on [omitted] 2014.  The mother indicated in her affidavit material that she would be on maternity leave from her employment on the Gold Coast for a 28 week period, and living in [B].  She then deposed in an Affidavit sworn by her on 1 August 2014 that she would return to the Gold Coast to continue her contract as a [omitted] until its conclusion.  She further indicated she was completing a diploma in [omitted] and that [X] would be attending a family day care centre throughout the week.

This Hearing

1. The mother relied upon the following:-

   a)her Affidavit filed on 28 August 2013;

   b)the Affidavit sworn by Ms Ogge and filed on 28 October 2013;

   c)her Notice Disputing Facts filed on 29 November 2013;

   d)the Affidavit sworn by Mr Hey and filed on 17 March 2014;

   e)her Initiating Application filed on 7 April 2014; and

   f)her Affidavit filed on 11 August 2014.

2. The father relied upon the following:-

   a)his Affidavit filed on 1 August 2013;

   b)his Affidavit filed on 11 November 2013;

   c)his Amended Response filed on 20 April 2014;

   d)his Affidavit filed on 25 May 2014;

   e)his Affidavit filed on 29 May 2014;

   f)his Affidavit first filed on 6 June 2014;

   g)his Affidavit second filed on 6 June 2014; and

   h)his Affidavit filed on 10 June 2014.

3. The Independent Children's Lawyer relied upon an Affidavit of Dr E filed on 4 April 2014, the s.62G of the Family Law Act 1975 (Cth) Family Report of Ms E dated 10 March 2015, together with an Outline of Case document filed 10 April 2015. The Independent Children's Lawyer and mother sought the same orders from the Court, save that in the Outline of Case document the Independent Children's Lawyer indicated that he did not presently support, in its current form, the mother’s application to travel overseas, and for the removal of the child from the Airport Watch List. Nevertheless, on hearing the mother pursue that application, and in the abandonment of the proceedings by the father, Counsel for the Independent Children’s Lawyer did not oppose the orders as sought by the mother, and noted no good reasons existed to support the Airport Watch List orders continued operation.

4. The Independent Children’s Lawyer noted that neither party had filed a trial affidavit, with the last affidavit filed by the father which was served on the Independent Children's Lawyer being filed on 10 June 2014, and the last affidavit filed by the mother that was served on the Independent Children's Lawyer being filed on 11 August 2014.  In response to that shortfall, the Court indicated at commencement to both parties that they would be given leave to provide oral testimony to the Court and give their evidence-in-chief in that manner.  That was acceptable to all parties.

5. At the commencement of these proceedings, the father indicated that he wished for me to disqualify myself from further hearing these proceedings on unspecified grounds.  The Court sought to discover whether he was making an application on the grounds of apprehended bias, or perhaps actual bias, but the father was unable to make his application with any specificity, nor did he particularise any grounds.  He did, however, make submissions which he indicated he had already conveyed by email to the Court, and he was permitted to read same into the transcript so that the Court would have some idea of that which he complained of.  The transcript records that submission as follows:-

   “Well, your Honour, basically, you’ve ignored and denied every request that I have made to see and spend time with my child, and I believe that it is racist, sexist and bigoted.  I believe that you’ve bullied and harassed my in your workplace.  I believe that you’ve possibly colluded and conspired with the ICL and the family report writer.  I believe that you’ve breached the International Charter of Human Rights, in particular, part 1, article 1, article 2, article 5 (a), (b), (c), (d), all and (f), article 6, article 7 and article 8.  I also allege that you have denied my child all of the above.  Right.

   Apart from the fact that you’ve bullied and harassed me in a public place, your court, the Australian Federal Circuit Court, whereby you act as the representative of the Crown, you have excluded myself from any and all involvement in my child’s life when I have requested so, based wholly on the grounds of exclusion based upon my sex and that you have repeatedly ignored my request to see my child.  You have not just acted in a sexist manner, not just bullied and harassed me, but you have blatantly acted in a racist manner.  But for the fact that you continue to deny my child access to her Aboriginal family, you have brought both my country and the Crown into disrepute, possibly breaching international law and international charters for human rights.

   Through your actions, you have breached a convention of international significance and importance.  In so doing, Australia has breached international law, the treaty which was signed and sealed by the people’s representatives and sent, sealed and signed by our Head of State.  In so doing, what you have done to myself and possibly others that you have breached multiple articles of that convention, breaching not only international law but breaching State and Commonwealth law.  But for the fact that you have acted in a sexist and racist manner, bullying and harassing myself based upon my sex, race and background.  You have failed to act independently and impartially.

   In so doing, you have denied my child her basis rights to identity and freedom, that you continue to act in a sexist, racial – racist and bigoted manner denying my child access to her Aboriginal culture and heritage which is directly inherited from her grandmother.  Not only have you acted in this manner, but you have acted in a shameful, disgraceful, degrading and humiliating manner, but you have acted with gross negligence, causing myself unnecessary and unwanted psychological duress and harm.  I allege, whether intended or not, you have continued the abuse I suffered at the hands of the mother.  In so doing, you have enslaved and tortured myself.”

6. There is, of course, a line between affording procedural fairness and natural justice to a litigant in person, and allowing a litigant in person to be inappropriately abusive and threatening in the courtroom.  The basis of the oral disqualification application had no proper grounds. It was meant to intimidate. The law concerning disqualification on account of bias or apprehended bias in a judicial officer is well settled.  In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the plurality of the High Court, Gleeson CJ, McHugh, Callinan, Hayne JJ, held at 19 to 37:-

   “19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.  They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause.  Judges do not choose their cases; and litigants do not choose their judges.  If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

   20.    This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified.  In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.  However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.  That would be intolerable.

   21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit.  Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted.  These problems usually arise in a context in which a judge has no particular personal desire to hear a case.  If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

   22.    The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

   23.    Bias, whether actual or apprehended, connotes the absence of impartiality.  It may not be an adequate term to cover all cases of the absence of independence.

   24. In Webb v The Queen[1], a case concerning a juror, Deane J identified four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias:  interest; conduct; association; and extraneous information.  It is not necessary to decide upon the comprehensiveness of such categorisation, and its utility may depend upon the context in which it is employed.  However, it provides a convenient frame of reference.

   [1] (1994) 181 CLR 41 at 74.

   25. The concept of “interest” is protean.  Its use in this context has a long history.  In the case of Dimes v Proprietors of the Grand Junction Canal[2], in 1852, Lord Campbell said that the maxim that no one is to be a judge in his own cause is not confined to a cause in which he is a party, but applies to a cause in which the judge has an interest.  It will be necessary to make further detailed reference to that case.  His Lordship did not explain what he meant by a cause in which a judge has an interest.  Subsequent judicial statements concerning automatic disqualification limited the concept to a direct pecuniary or proprietary interest in the outcome of the case[3], until that limitation was reconsidered and rejected, or at least modified, by the House of Lords in R v Bow Street Magistrate, Ex parte Pinochet Ugarte (No 2)[4].

   [2] (1852) 3 HLC 759 at 793 per Lord Campbell [10 ER 301 at 315].

   [3]     eg Webb v The Queen (1994) 181 CLR 41 at 75 per Deane J; R v Gough [1993] AC 646 at 661, 673.

   [4] [2000] 1 AC 119.

   26.    As a matter of principle, in considering whether circumstances are incompatible with the appearance of impartiality, there is no reason to limit the concept of interest to financial interest, and there may be cases where an indirect interest is at least as destructive of the appearance of impartiality as a direct interest.  It may be that, at a time when the focus of most civil litigation was some financial claim or right of property, it was easier to confine relevant interests to financial interests, but in modern times, when so much litigation is concerned with the enforcement of non-economic rights, it is difficult to do so.  And even at the level of purely financial interests, the variety of arrangements under which persons may order their affairs makes a rigid distinction between direct and indirect interests artificial and unsatisfactory.

   27.    Lord Campbell's recognition that people other than the parties to the litigation may have an interest in the outcome of litigation had implications going far beyond the circumstances of the particular case he was considering.  However, he found it unnecessary to explore those implications, or to formulate any principle beyond the maxim to which he referred, and which he said applied to the case with which the House of Lords was then concerned.

   28.    The concepts of interest and association will overlap in many cases.  Pinochet (No 2) provides an example.  If, in the present appeals, it had appeared that the value of the shares in the Bank might well have been affected by the outcome of the litigation in question, then they would have provided further examples.  There is no justification for having different principles for interest and association.

   29.    The potential forms of association between a judge and a litigant are manifold.  Banks provide a good illustration.  It may be assumed that all Australian judges have some form of relationship with a bank.   There are only four major banking groups in the country.  Banks are frequent litigants.  In the area of bankruptcy practice, they are creditors of many insolvent estates.

   30.    It is not only association with a party to litigation that may be incompatible with the appearance of impartiality.  There may be a disqualifying association with a party's lawyer, or a witness, or some other person concerned with the case.  In each case, however, the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits.  As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies.  Similarly, the bare identification of an "association" will not suffice to answer the relevant question.  Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.

   31.    Ownership, direct or indirect, of shares in a corporation is but one possible form of association with, and potential interest in, a litigant or a case.  In contemporary Australia, ownership of shares in a listed public company is a common form of saving and investment, both amongst members of the community generally, and amongst judges.  It is not confined to wealthy individuals.  In recent years, processes of privatisation and demutualisation of what were formerly public institutions or utilities, or mutual societies, have resulted in a further expansion of share ownership.  The nature of the association with, or interest in, litigation, of an investor in a listed public company, may be substantially different from that of a shareholder in a private company.

   32.    Issues such as the present are best addressed by a search for, and the application of, a general principle rather than a set of bright line rules which seek to distinguish between the indistinguishable, and which were formulated to meet conditions and problems of earlier times.  Furthermore, the brightness of the lines drawn by such rules sometimes dims over time, as circumstances change, or issues are raised in different forms.

   33.    The common law in both England and Australia in relation to this subject has come a long way since the middle of the nineteenth century.  In Australia, the common law has developed along lines somewhat different from the development in England.  In this country, an issue such as that which arose in Pinochet (No 2) would be resolved by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.  That is the test to be applied in the present appeals, and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance.

   34.    In the practical application of that test, financial conflicts of interest are likely to be of particular significance.  One reason why, in the earlier cases, pecuniary and proprietary interests may have attracted special attention has already been mentioned.  There are other considerations which continue to affect the practical significance of economic interests.  Usually, (although not always), they are more concrete in nature than other kinds of interest, and, when the primary facts are known, easier to identify.  Furthermore, at least in the past, there has been a public perception that they are more insidious than other forms of interest in their likely effect upon impartiality.  That perception may be changing, but it continues to be important.

   35.    Upon the application of the test stated above, neither Goldberg J nor Mandie J was disqualified.  That was conceded in the case of Goldberg J, and it was correctly decided by the Court of Appeal of Victoria in the case of Mandie J.

   36.    In both cases, the primary factual consideration that was addressed was whether there was a realistic possibility that the outcome of the litigation would affect the value of the relevant judge's shareholding in the Bank.  That was a relevant factual consideration, not the ultimate test.  In the circumstances of these particular cases, it was not suggested that there was any other factual issue to be explored.  It was not suggested that the judge in question had any interest in the outcome of the case other than its possible effect on the value of his shares in the Bank.  In neither case was there any difficulty about answering the question of fact.

   37.    There may be other cases where the facts are not so simple.  The nature of the judge's association with a litigant may be more complicated, as in Pinochet (No 2).  The possible effect of the outcome of a case upon the value of assets owned by a judge may be a matter of serious difficulty.  However, in the ordinary case, where a judge owns shares in a listed public company which is a party to, or is otherwise affected by, litigation, and there is no other suggested form of interest or association, the question whether there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a useful practical method of deciding whether a fair-minded observer might hold the relevant apprehension.  In such a case, if the answer to the question is in the negative, the judge is not disqualified.  If the answer to the question is in the affirmative, the judge is disqualified, not “automatically”, but because, in the absence of some countervailing consideration of sufficient weight, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.”

1. None of the above leads the Court to conclude that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide.  Determination of that question requires no prediction about how the judge or juror will in fact approach the matter.  The question is one of real possibility.  The bare assertions made by the father of my being sexist, racist and bigoted are of no assistance, given the asserted connection with the possibility of departure from impartial decision-making is not articulated.  There is nothing in the submissions of the father that provides the necessary evidence of an absence of impartiality.  I have kept firmly in mind that judicial officers have a duty to sit and should not accede too readily to suggestions of appearance of bias. Given the lack of particulars, the fact that such assertions were made before the trial had commenced, a trial which the father shortly thereafter walked out of and thus abandoned, and having given consideration to the submissions of the father, the application was dismissed.

Family Report dated 10 March 2015 prepared by Regulation 7 Family Consultant, Ms E

1. The Family Report was introduced into evidence on the final hearing of the matter on 15 April 2015.  The father was asked by the Court whether he wished to cross-examine Ms E.  He declined to do so.  He was informed that the expert evidence, as contained in the Family Report, would thus be unchallenged by him.  It was not his wish that the Family Report be relied upon and form part of the evidence before the Court, but he could provide no comprehensible or, indeed, any grounds to assert that such an important piece of the evidence should not be before the Court. The father complained that Ms E had no right to conduct a mental health assessment of him. She did not do so. She recommended that he undergo one. As none of the parties sought the attendance of Ms E for cross-examination, the contents of the Family Report were not challenged.

2. Ms E’s recommendations were as follows:-

   “At this time it is recommended that the child continue to live with the mother; and

   that the father seek professional mental health assistance.”[5]

   Ms E, in the preparation of her Family Report, interviewed the father, the mother, Mr A, and made observations of the mother with the child and with Mr A.  She had before her the affidavits of the parties, the Affidavit of Dr E, psychiatrist, and the Affidavit of Mr Hey.  She also set out the various other documents that she had read in a thorough preparation which formed the basis of her report.

   [5] Family Report dated 10 March 2015 at [67] and [68].

3. Ms E noted in her examination of the subpoenaed material that the Queensland Police records showed that in August 2013, the father rang Surfers Paradise Police Station and complained Queensland police were giving him the run-around.  The father was concerned for the safety of [X] in a child care centre.  Police followed up with the mother and found no concerns.  Ms E recorded that the police officer notes he thought the father was “police shopping” and had become angry during their conversation.  New South Wales Police Force records stated that in November 2013, Mr A, the mother’s partner, had reported receiving abusive text messages from the father.  She noted there were no records of a criminal history for the father with Victoria Police.

4. The Temporary Protection Order made against the father on 20 January 2014 had, as its grounds, as cited by the mother and recorded by Ms E:-

   “longstanding history of domestic violence during a five year relationship;

   physical violence on a weekly basis, bruising, being thrown to the ground, pushed kicked in the head;

   calling and emailing at work about personal and family law matters;

   leaving threatening message on her phone - 150 in the past two months;

   “Mr Moyes has a history of violence against my elderly grandmother.  Police were called on two occasions, once in [E] New South Wales and once in Melbourne, Victoria”; and

   has caused professional damage by contacting [omitted]Authority and telling them she was unfit to work as a [omitted].”[6]

   [6] Family Report dated 10 March 2015 at [7].

5. The Temporary Protection Order was extended in February 2014 and April 2014.  In August 2014, the mother advised the Court that she was now living in [B], New South Wales and was withdrawing the application for a protection order.

6. In response to the allegations made in the protection order, the father claimed the mother’s claims to be false.  He further claimed the mother to be mentally unwell.

7. Ms E noted that when the father was leaving on the day of his interview with her, he said he intended to make applications for protection orders that afternoon at the [omitted] Magistrates’ Court against:-

   a)Mr A;

   b)Mr T (Mr A’s brother-in-law, Member of Parliament, New South Wales);

   c)Ms T;

   d)the mother;

   e)Mr Leigh Rivers (solicitor, New South Wales);

   f)Mr Campbell McCallum (solicitor, Gold Coast); and

   g)Ms Rebecca Ogge, (solicitor, Queensland).

8. The father further said to Ms E that the mother had threatened him saying she would never let him see [X] again, but he would be sent to jail and she will then have him killed.  He said he had death threats which he has reported to the police.  He said as to the mother’s partner, Mr A:-

   “I believe he’s little more than a predator in my opinion.  I believe he is a danger to not only [Ms Moyes] but to my daughter and I will be doing everything in my power to ensure that he has nothing to do with the raising of my daughter – anything to do with her – anytime.”[7]

   [7] Family Report dated 10 March 2015 at [15].

9. At the time of Ms E’s report and interviews, she noted that [X] lived with her mother and spent no time with her father.  Despite this the proposal of the father at interview was that neither the mother nor her partner have any further time with the child.  The father was asked by Ms E several times if there was any middle ground.  He said:-

   “No.  I will never sit down and have a private conversation with the mother ever again.  I have no intention of talking to the mother ever again.

   I have no intention of sharing any time with her with my daughter – I have no intention of allowing her any access because she has denied me and denied my child.  She is really, really unwell.

   … The person who she has become - is – and she deserves nothing but heartache and pain after the way in which I have been treated …

   I don’t believe she’s is as well as they say she is and the ICL better start questioning her mental health because there’s some pretty horrific things that mothers have done to children – and I’m saying [Ms Moyes] with all the threats the abuse that I’ve suffered … and just continued by the Court alright and by them alright - She’s perfectly capable of killing my child.  I believe that, beyond reasonable doubt I believe she is capable of anything.”[8]

   [8] Family Report dated 10 March 2015 at [18].

10. The father was asked by Ms E if he would be prepared to travel and have supervised time with [X].  He said:-

    “No.  She can return the child to me.  And this child I do not even believe is in  [B] …under her piece of criminal defamation that she took out at [omitted] Magistrates Court I’m not allowed to use an agent to discover where she is …

    …and I say this - if any harm comes to my child I hold Caroline Smith, I hold those people personally responsible and I also hold Judge Hartnett personally responsible…it’s corrupt…it’s just disgusting …”[9]

    [9] Family Report dated 10 March 2015 at [19].

11. Ms E again asked the father if he could see any middle ground in terms of spending time with [X].  His response was that any offer the mother had made by way of spending time with [X] was not legitimate.  He said:-

    “She expects me to travel for eight or nine hours to spend half an hour with my child.  She can get fucked.”[10]

    [10] Family Report dated 10 March 2015 at [20].

12. The mother’s position, when asked by Ms E as to time spent with between the father and child, was that she did not wish the father to have any time with [X] because of his behaviour, particularly at the last court hearing.  He had not seen [X] for two years, and she did not know him. 

13. In her consideration of the issues in dispute and the issues identified during the assessment, Ms E set out the history taken by her from each of the parties and from Mr A.  She noted that the father presented as generally courteous, but tense and that he became more agitated and angry as the interview progressed. 

14. Ms E noted, as part of the father’s history, that he [occupation omitted] when he was 20.  He said he suffered post-traumatic stress disorder as a consequence of finding the bodies of two friends killed in a motor bike accident.  He left [occupation omitted] after four years because there were long periods of time [omitted] when he dwelt on the traumatic event.  Thereafter, the father had a history of employment and study.

15. Ms E, under the heading “Dissatisfaction with legal process” included the following in her Family Report, commencing at paragraph 40:-

    “40. Mr Moyes believes he has been treated with contempt in the course of this  litigation.  He said:

    “The Independent Children’s Lawyer, they may as well scrap that … they are not independent.  All they are is a patsy for the mother.

    … they do nothing about questioning the mental health of the mother – nothing.”

    41. Mr Moyes says he will file an Application that the Independent Children’s Lawyer be dismissed and that the mother and Mr A spend no more time with [X]. 

    42. Mr Moyes says the numerous emails he has sent to legal representatives are deserved.  He says he was entitled to send them because he was denied time with his child and nowhere in their content was there any threat.

    43. He said:

    “There will be no agreement because I believe she is not capable of it. She deserves to be punished for what she’s done.  She’s not the victim she’s the perpetrator and it’s also her mental illness …

    I have nothing but contempt for her…

    she’s evil pure evil and I don’t care what anyone says…

    she continues to make shit up.”

    44. Mr Moyes says [Ms Moyes] has perjured herself 15 or 16 times.”

16. In her interview with the mother, Ms E noted the study and employment history of the mother including that she moved to the Gold Coast in July 2013 as a [omitted], and that in her second year of training she moved to [B] where she met her partner, Mr A.  They have one child born [omitted] 2014. 

17. In her interview with Mr A, Ms E found him to present as obliging and courteous.  She noted he separated from his former partner in June 2013, and that he has two older sons aged 20 and 17 living with him.  He met the mother [omitted].  He travelled to the Gold Coast every second weekend to spend time with her. 

18. In her observation of the mother and child she noted nothing about their interaction which suggested anything other than a close and loving relationship.  The child also appeared relaxed and happy when being cared for by Mr A. 

19. In her evaluation, Ms E noted that the parties were completely opposed to each other.  Nevertheless, she accepted that in November 2014 the mother was amenable to making some arrangement for the father to see [X].  She observed the mother to be genuine when discussing a prospect of the father spending time with [X].  Because of his behaviour at a subsequent court hearing however, the mother withdrew from that position out of her concern for the child. 

20. Ms E noted that understandably the father had been mentally distressed by the loss of contact with his daughter.  She noted his anguish had manifest in deterioration in his attitude toward the mother.  She concluded the father has fixated on the mother as the cause of the pain he is experiencing.  This aspect of his function had apparently deteriorated since his assessment by Dr E.  The father generalised his feelings of anger and persecution to include a number of other people ancillary to the proceedings. Ms E said as to this:-

    “61. Unfortunately, Mr Moyes’ depressive mood has the affect of limiting insight and has made him less likely to be flexible in responding to mediation.  He says he does not want to share his time with [X] with the mother nor is he prepared to travel to see [X].

    62. Mr Moyes believes unerringly that [Ms Moyes] is psychiatrically unwell, has no merit as a parent and the child should be removed from her care.  He has expressed some confidence in Dr E and a psychiatric assessment by

    
    

    Dr E may address some of Mr Moyes’ misgivings about [Ms Moyes]. 

    63. On his current presentation Mr Moyes would not be a positive carer for [X].  His overt hostility towards [Ms Moyes] including his thinking her “pure evil” is unacceptable.

    64. [Ms Moyes]’s psychiatric history may have had factors which could have raised questions.  However, she has denied any need for psychotropic medication or treatment and the requirements for monitoring of the [omitted] expired six years ago.  There have been no notifications to Child Protection in relation to [X]’s care.  Observation of [X] with [Ms Moyes] indicated that [X] was confident and happy with her mother and that they had a close and loving relationship.  [X] presented as a healthy responsive child.

    65. Mr Moyes needs skilled professional intervention to address his perceptual set against [Ms Moyes], Mr A and those associated with the litigation of this case.  Whether a psychiatric assessment of [Ms Moyes] by Dr E would help Mr Moyes is speculative.  The purpose of an assessment would be to reassure Mr Moyes and perhaps defuse some of his animosity towards [Ms Moyes] and enable him to negotiate time with [X] more realistically.  On the available material an assessment is unlikely to reveal any particular deficits in [Ms Moyes]’s parenting.”[11]

    [11] Family Report dated 10 March 2015 at [61] and [65].

21. In conclusion, it was Ms E’s opinion that in his current state of mind, the father is unable to prioritise the child’s needs which would not be in her interests.  She observed the father would need to be willing to accommodate periodic supervised visits to re-establish his relationship with [X], which at present, he will not consider.

Dr E, Psychiatrist

1. Dr E’s Report is annexed to his Affidavit sworn 4 April 2014.  He has been practising as a psychiatrist since 1980.  He has extensive experience in matters concerning family court assessments, personal injury and common law.  He is also an accredited examiner.  His diagnosis of the father was that he had an adjustment disorder, with depressed and anxious mood. 

2. At the time the father saw Dr E he was residing in a caravan, purchased by the mother, in [omitted]. In respect of the history he provided to

   
   

   Dr E, the father claimed he was diagnosed with post-traumatic stress disorder at the age of 18 when a close friend of his died in a motor bike accident in Queensland in 1989.  He did not witness that, but saw the decayed body.  He was seen by a [omitted] psychiatrist and received treatment for over a year.  Otherwise, he denied those very serious matters raised by the mother in her Affidavit sworn 28 August 2013 at paragraphs 32 to 23 inclusive. Those matters that the mother deposed the father and/or his father had told her about himself, or his son, included that he was hospitalised in a psychiatric facility and suffered from mutism; had a history of compulsive gambling; had fought in the Iraq war; had a previous diagnosis of bipolar affective disorder, and that he had lived at the Sisters at Mercy male shelter at St Vincent’s Hospital in Melbourne having lost everything in gambling. The father did admit telling the mother he had been drinking with a friend [name omitted] when his friend was fatally shot, after which, he fatally shot the perpetrator.

3. The father further denied the mother’s allegation that after the breakdown of his previous relationship he was devastated and about to commit suicide, but was prevented by a priest who his father had contacted to check on him.  He described the mother’s Affidavit as:-

   “The best piece of criminal defamation ever written.”[12]

   [12] Affidavit of Dr E sworn 4 April at 8.

4. Dr E said, in paragraph 5, page 10, of his Report:-

   “5. If accurate, Dr T’s Affidavit raises questions as to Mr Moyes’ psychiatric history and is most concerning if true, in respect to his father’s alleged concerns about his history of compulsive gambling and extensive time in a psychiatric institution when he suffered from mutism. Further matters in regard to Mr Moyes being discharged from the [occupation omitted] on psychiatric grounds following an incident in a pub in which his friend was murdered and he killed someone and also that he fought in the Iraq War, as alleged by the Wife, raise other issues about his credibility, his tendency to either lie and make things up, or on the other hand, to firmly believe these things as a ·result of a psychiatric condition which would indeed be deemed serious and suggest a high level of disturbance.

   6. Throughout the assessment, Mr Moyes did not present in a manner which suggest that he was suffering from a serious psychiatric illness at the time I saw him. He was adamant in his denials of [Ms Moyes]’s account in regard to those matters which leaves open the possibility that he may well be someone who makes things up or believes his own stories, which serve to interest others, particularly a prospective partner.

   7. In respect to other matters, Mr Moyes’ account was cogent and internally consistent. He described a normal childhood. There was nothing which would lead one to believe that that trajectory would be consistent with a serious psychiatric illness of the proportions indicated by [Ms Moyes] in her account of his assertions.”[13]

   [13] Affidavit of Dr E sworn 4 April 2014 [5] to [7].

5. Dr E concluded by noting that the matter was one which could only be determined by the sifting of evidence in respect of the parties’ relevant contributions to the situation, and by the Court.  He said in paragraph 8:-

   “Having perused the extensive material provided by the parties, it is readily apparent that Mr Moyes has pursued [Ms Moyes] inexorably through the Courts. His material indicates a litigious bent on his behalf. Diagnostic considerations in respect to Mr Moyes were not able to be fully determined on the basis of the one assessment. His ability to care for his daughter and the degree that in fact he did do so was not assessable. Further, I did not assess [X].”[14]

   [14] Affidavit of Dr E sworn 4 April 2014 [8].

Conclusion

1. Pursuant to s.60CA of the Act, the Court must consider the best interests of [X] as the paramount consideration. The primary considerations that guide the Court are set out in s.60CC(2) of the Act and in respect of the facts of this case, s.60CC(2A) of the Act weighs heavily. There is a need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence wherein the father is the perpetrator. The presumption of equal shared responsibility as set out in s.61DA of the Act is also rebutted on these grounds, together with a consideration of the totality of the evidence as set out in s.61DA(4) of the Act.

2. Both the mother and Mr A gave oral evidence to the Court on [X]’s progress. As observed by Ms E, [X] has a loving relationship with her mother. Her mother described it as “she loves me very much… (she is) quite vulnerable and dependent on me, which is normal.” Whilst the mother did attempt to make an arrangement for the father to have supervised time spent with his daughter in Albury/ Wodonga at the end of 2014, her evidence was that the father declined such a visit and moreover has made “no reasonable or rational attempt to see the child”. The mother has, without input from the father and contrary to his assertions, sought to encourage the child’s knowledge of her Aboriginal heritage. Her evidence was:-

   “Well, I have endeavoured to make everything possible that, you know, she has access to that heritage.  The childcare centre, I have notified that she does have this background, and she has been provided with, you know, artefacts – Aboriginal artefacts at – at the time, so in that context, I have acknowledged that background”.[15]

   [15] Transcript of proceedings of 15 April 2015, 19.

1. The mother described the father as “impulsive and violent”. The unchallenged history of domestic violence as set out in her Affidavit filed 28 August 2013 is evidence of the father’s violent behaviours. The father’s harassment of Mr A is also violent behaviour. The father’s activities have included subjecting Mr A to a constant barrage of threats. The father has also defamed Mr A on his business Facebook page, posting that Mr A was a paedophile, and that readers should not attend his [business]. This may have caused considerable and intended damage to Mr A’s business.

2. The mother and Mr A provide exclusively for all of [X]’s emotional, financial and physical needs. Mr A describes them as “a very close-knit family” and he and [X] have a close relationship, as does [X] and her brother. The father’s behaviours present a very real threat to this family and its happiness and security.

3. The mother sought to have family holidays of three or four weeks overseas with [X] and other family members. The father offered no evidentiary basis or indeed opposition given his abandonment of the proceedings to support a continuation of the interim orders made. The mother has no plans to reside elsewhere. She is now an Australian citizen. Her [qualification] is not recognised in Europe. As she said, “my life, my job, everything is in Australia”. The mother needs to have no further litigation with the father. There will be much benefit to [X] in being able to travel, including overseas. The father does not seek to see or support [X] at the present time, save on his impossible terms. The mother should not be subject to orders for which there is no ongoing evidentiary support and in circumstances where she has been subjected to serious family violence from the father, as set out in paragraphs 39 to 62 inclusive of her Affidavit sworn 28 August 2013. This family violence warrants a minimisation, not escalation of ongoing litigation between the parties. The Court shall accede to the mother’s application to discharge such orders.

4. The mother and Independent Children’s Lawyer seek that [X] live with her mother and spend no time with her father. Further, that her mother have sole parental responsibility for her. On the evidence, those orders as sought are supported and shall be made.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  28 April 2015