NEAD & BARDEL

[2020] FamCA 943

FAMILY COURT OF AUSTRALIA

NEAD & BARDEL [2020] FamCA 943

FAMILY LAW PARENTING – Best Interests – Parental Responsibility – With whom the child shall live and spend time – Where final orders were made in 2018 which provided for the child to live with the mother and spend time with the father each alternate weekend – Where the child has been exposed to parental conflict and anger – Where the child currently lives with the mother and has not spent time with the father for two years – Where the child communicates with the father by telephone – Where the parties’ relationship is one of high dysfunction and acrimony – Where family violence was perpetrated by the father – Where the child has been exposed to such violence – Where the father breached an Apprehended Domestic Violence Order protecting the mother on numerous occasions which lead to him being charged, convicted and gaoled for two three month periods – Where the father lacks empathy and insight – Where, as a result, the father has subjected the child to emotional harm – Where the father is unable to prioritise the needs of the child over that of his own – Where the presumption of equal shared parental responsibility does not apply – Where the Court must give greater weight to the protection of the child than to the maintaining of relationships – Where the father has not been open to supervised time with the child and is unlikely to comply with the rules of a contact centre – Ordered residence and sole parental responsibility to the mother and no time with the father – Ordered restraints on the father for the protection of the mother and child.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Ms Nead

RESPONDENT: Mr Bardel

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 3879 of 2017

DATE DELIVERED: 19 November 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 12-14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Allen

SOLICITOR FOR THE APPLICANT: Joplin Lawyers

COUNSEL FOR THE RESPONDENT: Mr Flanigan

SOLICITOR FOR THE RESPONDENT: Grant & Co

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Blackman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All previous orders in relation to the child X born … 2009 are discharged.

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

3. That the child live with the mother.

4. That the child spend no time with and have no communication with the father.

5. Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), for the protection of the mother, Ms Nead, and the child, X, the father is restrained by injunction as follows:

   (a)       From entering upon or approaching within 100 metres of:

   (i)The child and the mother’s current residence being B Street, Suburb C or any other residence she or the child may reside from time to time;

   (ii)The mother’s place of employment;

   (iii)Any school attended by the child.

   (b)From contacting the mother or the child through any means whatsoever including but not limited to telephone, email, text messages, and social media;

   (c)From engaging, soliciting or using any other person to contact or communicate with the mother or the child by any means whatsoever including but not limited to telephone, email, text messages, and social media.

6. Pursuant to s 68C of the Act in the event that a police officer reasonably believes the father, Ms Bardel, has breached the injunctive orders pursuant to Order 5 herein by:

   (a)Causing, or threatening to cause, bodily harm to the mother, Ms Nead, and/or the child, X; or

   (b)Harassing, molesting or stalking either of those named persons;

   then the police officer may arrest Mr Bardel without warrant.

7. The father is further restrained from posting on any social media platform, any information about the mother, the child or these court proceedings or any other court proceedings involving the parties.

8. The Independent Children’s Lawyer shall, as soon as reasonably practicable, make arrangements with the mother to meet with the child and, together with a family consultant of this Court, shall explain these orders to the child and answer any relevant questions which the child may have.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3879 of 2017

Ms Nead

Applicant

And

Mr Bardel

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are applications for parenting orders by the parents of one child, X, (“the child”) a boy aged 11 years.

2. The parties began a personal relationship in mid-2008. The mother had two children from her prior marriage then aged almost five, and two years. One year later the subject child was born.

3. The parties’ relationship was unstable throughout. There has been episodic family violence of various kinds. The first breakdown came when the subject child was three months old. The relationship was thereafter “on and off”. Over the duration of their nine year relationship, the parties lived together for a total of about three years. They did not marry.

4. The mother refers to the parties finally separating in April 2017 but it was not a mutually definitive end to the relationship.

5. The father’s evidence on the point, in March 2020, was that “the mother and I are not currently in a relationship and I do not intend to resume a relationship with her”.[1]

   [1] Affidavit of father filed 19/03/2020, par 8.

6. I have concluded that the father is obsessed with the mother.

7. The child lives with the mother. He has not spent time with the father for two years. There has been telephone communication.

The Parties

The Applicant – Ms Nead

1. The applicant mother is currently aged 40 years. She is not in paid employment and is a homemaker.

2. The two children from her prior relationship continue to live with her. They are Y aged 17 and Z aged 14. Both young people are on the Autism Spectrum and have ADHD. Y has a severe anxiety disorder. Z has an intellectual disability.

3. The household of the mother consists of herself, the subject child, and those two older children.

The Respondent – Mr Bardel

1. The respondent father is currently aged 46 years. His occupation and address was undisclosed. He described his residence as being 10-12 kilometres, a 10 minute drive from the home of the mother.

2. He has three children from a prior relationship, Ms U aged 20 who lives independently, V aged 17 who lives with her own mother and W aged 15 who lives with the father.

3. The father asserts he has a close personal relationship of about two years standing with Ms D aged 43 years. They do not live together and have no immediate plans to do so. There was no affidavit of Ms D.

4. The household of the father consists of himself and his son W.

The Trial

1. The trial was listed for three days commencing 12 October 2020.

2. Both parties were represented by solicitor and counsel. An order had been made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) for the father to be represented.

3. The Independent Children’s Lawyer (“ICL”) had briefed an advocate.

4. The trial concluded within the allocated time.

The Applications

The Applicant

1. By her Amended Initiating Application filed 17 December 2019 the mother proposed sole parental responsibility for the child, residence with her, and for the child to spend no time and have no communication with the father.

2. The mother also seeks restraints on the father from all forms of contact with the child and from coming within 100 metres of the mother’s residence and place of employment.

The Respondent

1. By his Response filed 27 February 2020 the father seeks sole parental responsibility for the child, residence with him and for the child to spend time with the mother each alternate weekend, for half school holidays and at special times.

History of Relevant Events

1. On 4 April 2017 there was an incident in the home of the mother between her eldest son Y (13) and the subject child (seven) over sharing a games machine. The mother contacted the father and asked him to come to her house and take the subject child, so Y could more easily calm down.

2. When the father arrived, whether or not he was asked by the mother to do so, the father intervened. His efforts quickly led to the father physically restraining Y and berating him for his behaviour and language. The younger boy Z (11) rang the police.

3. On the next day the father was interviewed and charged with assaulting Y.

4. The father entered a plea of guilty. The evidence of the father in these proceedings was that he had wished to defend himself on the ground of self-defence but felt he could not afford to do so. It seems more likely to have been pragmatism based on legal advice.

5. About two weeks later the father was served with a provisional Apprehended Violence Order (“AVO”).

The Cruise

1. In May 2017 the parties, the subject child the mother’s two older children, the maternal grandmother and two of the father’s children went on a cruise.

2. Both parties readily agreed during cross examination that they understood it would have been better to cancel the cruise. The father was yet to be sentenced for the assault on Y and an interim AVO was in place. Both spoke of the money already spent and of the children’s anticipation. It seems however that both parties were also considering reconciliation.

3. The parties chose to have dinner together with the subject child and the father’s daughter (15) only. A horrifying series of events followed where Z was being teased by other children and was hurt, Y leapt to his defence, with the father later grabbing Y and restraining him while the boy tried to kick the father’s glasses overboard.

4. On 10 November 2017 a final Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother and her two older children. The order was made for a period of two years.

5. On 13 December 2017 the parties filed an Application for Consent Orders in respect of the subject child. A procedural hearing before a registrar was held to raise the issue of consistency between the proposed parenting order and the State order [ADVO].

6. On 5 February 2018 the parties filed Annexures to the proposed parenting orders.

Final parenting orders - 12/02/2018

1. On 12 February 2018 final orders were made by consent. The orders provide for equal shared parental responsibility, for the child to live with the mother and spend time with the father on alternate weekends (Friday to Monday), half school holidays and other special times.

2. Following the making of the 2018 consent orders there were changeovers where the child was crying and/or screaming due to the conflict and anger between the parents.

3. The father reacted angrily when the maternal grandparents attended on changeover instead of the mother.

Child withheld

1. In April 2018 the father withheld the child from the mother.

2. Both parties sought assistance from police. Four weeks passed. The child did not attend school. The father went to work. His then 13 year old son, W, stayed home from school to be with the subject child.

Fresh application for parenting orders - 7/05/2018

1. On 7 May 2018 the mother filed a further application in the Federal Circuit Court (“FCC”) including a recovery order.

2. On 22 May 2018 an order was made for the father to return the child to the mother. It is an agreed fact that the father clung to the child and cried when the child was returned.

3. The parties were directed to attend on a family consultant.

Child Inclusive Conference - 21/06/2018

1. The family consultant assessed the parents to have “a highly dysfunctional, acrimonious relationship”.[2]

   [2] Child Inclusive Conference Memorandum to Court [Nead v Bardel] dated 21/06/2018, p. 4.

2. The family consultant raised the behaviour by the father at changeover and in telephone conversations as a matter of “much concern”.

3. “... he appeared unable to regulate his emotions. He defended his ‘right’ to cry in front of the subject child by saying that crying is a human response and it enables others (such as his child) to see how sad he is”.[3]

   [3] Child Inclusive Conference Memorandum to Court [Nead v Bardel] dated 21/06/2018, p. 3.

4. The family consultant noted that the father showed little understanding of the impact of his actions on the child.

5. The concern expressed by the family consultant is readily understandable. The child was powerless in the situation. He was entitled to have his parents make the transition back to the mother and in a broader sense the separation of the parents as easy as possible. “Seeing how sad his father was”, to use the father’s words, would only have made the child feel more burdened and sad himself.

6. The family consultant also reported that the father believed that the mother loved him and wanted to be with him:

   He believes that the mother welcomes his attention and encourages it, even when she reports his behaviour to police and attempts to engage in romantic relationships with other men.[4]

   [4] Child Inclusive Conference Memorandum to Court [Nead v Bardel] dated 21/06/2018, p. 4.

7. The family consultant expressed the view that the father lacked insight and empathy and was creating loyalty demands on the child through his conduct.

Father in gaol - July to October 2018

1. The father spent three months in gaol for breaches of the ADVO.

FCC interim orders - 6/09/2018

1. On 6 September 2018, only seven months after those orders were made, the final parenting orders were discharged. The mother was allocated sole parental responsibility and residence.

Transfer to Family Court of Australia - 19/11/2018

1. On 19 November 2018 orders were made in the FCC for the child to have telephone contact with the father on three evenings per week. The parties were restrained from discussing court proceedings and from using the child as a conduit for messages.

2. The matter was transferred to this Court.

Father in gaol - March to May 2019

1. The father was again incarcerated for three months following breaches of the ADVO.

2. Early in that period the father made three telephone calls over five days to the mother and the child.[5] In every call the father expressed bitterness and blame towards the mother.

   [5] Exhibit 9.

3. The first call was revelatory of the father’s suspicion about the mother’s conduct but also of his love for her.

4. In the second call the mother told the father that she had not felt ready to tell the child about the father being in gaol and directed the father not to tell him.

5. Within a very short time the father bluntly told the child that he was in gaol and had been for two weeks. He went on to describe how distressed the child’s brother W was, alone at home. The subject child was crying miserably thereafter.

6. The mother expressed her view to the father: “he’s going to school and you have selfishly ruined his day”. It was in my view, a fair assessment.

7. In the third call the father chipped the child for not noticing the previous absence of telephone calls: “You can’t have been missing me much if you didn’t notice I hadn’t rung”. He bitterly complained to the child about the unfairness of them not seeing each other. The child is heard crying in the background.

8. Thereafter the mother ceased taking calls from the father in gaol.

9. The father also sent a letter to the child from gaol.[6] The letter is a confirmation of the concerns earlier expressed by the family consultant.

   [6] Exhibit 5.

10. It is a letter filled with adult concepts. It casts blame on the mother for the child not being part of “a normal family doing normal things and living a normal life” because she is said by the father to be “sick”.

11. The mother did not give the letter to the child, quite appropriately. However it was addressed to him and could easily have been read by him. In his oral evidence the father said both that he knew the child would not get the letter, but also that “I was hoping he’d read it.”

12. These communications by the father were self-indulgent. Probably the intention of the father was to use the distress of the child to punish the mother. Whatever the intention, the result was, or would have been in the case of the letter, distress and sadness for the child.

Family Report - 2/09/2019

1. The family consultant made strong recommendations that the child spend no time and have no communication with the father.

2. The recommendations were based on the emotional harm done to the child by the father “placing intense loyalty demands on him.”

3. There was also an analysis of the destructive impact on the subject child of the dynamic between the parents as follows:

   [126]There is a complex and dysfunctional relational dynamic between the parents. The father actively seeks to perpetuate a co-dependent and enmeshed dynamic through coercion of the mother, using a number of strategies to maintain power and control in the relationship. The mother is highly vulnerable to this style of coercion and attempts to protect herself and the children through a placatory approach which then further entrenches the father’s power and control in the relationship.

   [127]Although the mother has demonstrated some improved ability to resist the father’s coercion, the intensity of the father’s behaviour is unrelenting and she remains highly vulnerable to capitulation to the father’s tactics. Given this, it is important that the mother is braced by other strategies (such as Court orders) to ensure that she is supported in being able to make child focused decisions in relation to all of the children in her care.

   [129]Despite having had specific deterrent by way of incarceration on two occasions and the removal of his time with X, the father accepts no responsibility, blames others for inciting his behaviour, expresses absolutely no remorse for his behaviour and accepts that he is likely to re-offend if he felt it was warranted. Consequently, he presents as at an extremely high risk of re-offending. The potential magnitude of harm is very high, noting that the father has a history of physically violent behaviour towards others and he presents as intensely preoccupied with the mother and the maintenance of the parental relationship. The risk to the mother and the children is likely to be at its peak if the mother ceases placating the father, terminates all communication with him and/or if Final Court orders are made removing communication with the child. The father would experience such events with an intense sense of loss of control and the violent response may be severe, life threatening or lethal.

4. This assessment of the risks for the child resonates with the oral evidence.

5. In the context of the possible outcome of Local Court proceedings next year in relation to cross applications for AVOs the father spoke of the mother perhaps being restrained from coming within 100 metres of his house and from coming to the child’s school.

6. That is not to say that the father did think that would be the likely outcome in the Local Court. He was speculating.

7. I asked the father what effect it would have on the child if he lived with his father and his mother was restrained from coming to his house and school.

8. His response was: “not entirely sure. I don’t know how it would affect X. I’m looking for self-preservation of myself.”

9. This response in my view reveals the unwavering focus of the father on his relationship with the mother. The response also revealed indifference to the depth of the love for the mother and dependence on her that the child has.

Trial delayed

1. On 6 November 2019 the matter was set down for trial in April 2020. Due to health restrictions arising from the COVID-19 pandemic those dates were vacated and fresh trial dates in October 2020 allocated.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant – Ms Nead

   (a)Amended Initiating Application filed 17/12/2019;

   (b)Affidavit of mother filed 20/03/2020;

   The Respondent – Mr Bardel

   (c)Amended Response filed 27/02/2020;

   (d)Affidavit of father filed 19/03/2020;

   The ICL

   (e)Written summary dated 9/10/2020 of interview of ICL with subject child conducted 18/09/2020;

   Reports

   (f)Family Report dated 02/09/2019;

   (g)Child Inclusive Conference Memorandum [Nead v Bardel] dated 21/06/2018;

   (h)Child Inclusive Conference Memorandum [Bardel v Bardel] dated 16/05/2013.

The Law

1. The objects of the Act in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

4. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. There is a legislative presumption [s 61DA(1) of the Act] when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

2. The Court is being asked to make parenting orders here.

3. The presumption does not apply [s 61DA(2) of the Act] if there are reasonable grounds to believe that a parent of a child (or a person who lives with a parent of a child) has engaged in:

   (a)Abuse of the child or another child who, at the time was a member of the parent’s family (or that other persons family…); or

   (b)Family violence.

4. In this matter the father was convicted of an assault on the mother’s son, Y, from an earlier relationship. Y was at the time of the assault a member of the child’s household with the mother.

5. Further, there was an ADVO in place for two years from November 2017 for the protection of the mother and her two elder sons.

6. The father was charged and convicted and gaoled in respect of multiple breaches of that protective order.

7. Accordingly the presumption does not apply and as a result the provision for rebuttal of the presumption [s 61DA(4) of the Act] need not be considered.

8. With respect to parental responsibility the Court is asked by each of the parents to allocate parental responsibility exclusively to that parent.

9. These proposals reflect the knowledge of the parents that conflict between them arises easily and that blame for past events, especially by the father towards the mother, inflames arguments whether or not the child is present.

10. There is no prospect of cooperative decision making. As a complicating factor the mother is in the habit of appeasing the father to minimise pressure on herself. The risk is she will agree to something put forward by the father about the child which she does not believe is in the best interest of the child, particularly arrangements likely to bring the parents in contact with each other.

11. The child has lived with his mother all his life and she has met his needs adequately. Her older children have hostile, critical feelings towards the father whose role as step-father did not sit well with them. There have been some negative consequences for the child as a result of being teased about his father or blamed for his presence in the household.

12. The child has been present in the household of the father from time to time and the child has regularly spent time with him. Relationships with older half-siblings were formed and there was real closeness between the subject child and W, the youngest of the father’s elder children.

13. That bond has diminished. W may hold the mother and the subject child responsible for the father’s time in gaol for two periods of three months. It is unclear.

14. Over the past two years, the father has been angry, bitter and reproachful towards the mother. The father is unable to prioritise the needs of the child over his own, in particular he cannot or will not protect the child from his own feelings.

15. I conclude that for those reasons, and the matters which follow, that the child should continue to live with the mother and that she should be responsible for long term and day to day decision making for the child.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child loves both his parents and would, if there were no associated risk, benefit from free range with the extended family on both sides.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a need to protect the child from emotional and psychological harm. His parents have separated and reconciled throughout his life. The subject child has heard a great deal of information about adult issues. The father criticises the mother to the child in a particular way. When the child described the mother as “tired” the day after a party the father commented “hungover”. When the child responded “yes” to questions about the mother meeting him off the school bus the father responded with surprise which prompted the child to defensively explain a couple of occasions when the mother was late.

2. The father in gaol, railed to the child about the unfairness of the separation of father and son, leaving him with little doubt about the mother being responsible.

3. The child has been exposed to family violence although neither of his parents have physically hurt him.

4. The Court is required [s 60CC(2A) of the Act] to give greater weight to protecting the child from harm over maintaining relationships.

5. The sad reality for this child is that he cannot maintain relationships with each of his parents because exposure to his father’s views undermines his relationship with his mother making him feel defensive of her and sad.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

June 2018

1. Looking back to June 2018[7] when the child was first observed by a family consultant the mother reported that he suffered from social anxiety and tended to avoid playing with his peers. His behaviour at school was good but he became “oppositional at home particularly when exposed to conflict between his parents or between his maternal siblings.”

   [7] Child Inclusive Conference Memorandum to Court [Nead v Bardel] dated 21/06/2018, p. 5.

2. Aged almost nine years the child literally found conflict between family members intolerable.

3. He described how it made him feel when his father cried “both angry and sad at the same time. He feels powerless to help his father and blames his mother for making things worse. He thinks she should just let his father do whatever he wants because it will make things easier for everyone. [Court’s underlining]

4. The underlining reflects the concern of the Court that the child was wanting the father to be appeased by the mother, to do as the father wanted perhaps so the father would be happy perhaps so the child would feel less worried. The risk of the child becoming angry or disappointed with the mother if she did not do what the father wanted, is implicit.

5. At that time X said that the arrangement that would best suit his needs would be one where his parents got on well with one another and that he would like to keep living mainly with his mother and see lots of his father.[8]

   [8] Child Inclusive Conference Memorandum to Court [Nead v Bardel] dated 21/06/2018, p. 5.

6. Since that time the father has been in gaol and has blamed the mother. The relationship between the parties has deteriorated even further. The child’s hope that they might get on well with one another has not come to pass, quite the reverse.

September 2019

1. At the Family Report interviews the child was assessed as quiet and slightly anxious. He had telephone contact only at that time with the father. He described his father as cross and angry about not being able to see him, “When he gets angry and starts crying that’s when I start crying sometimes..…I try not to cry.”[9]

   [9] Family Report dated 2/09/2019, par 115.

2. The child spoke of the father getting upset when the mother did not want to talk to his father and when he had slept in the bed with him, the father would “normally start crying and saying ‘I wish I could see your Mum again’ or ‘I miss your Mum to the moon and back’.”[10]

   [10] Family Report dated 2/09/2019, par 119.

3. This is an enormous pressure to have put on the child, who himself has hoped for his parents to get on well. Perhaps the father was simply giving way to his feelings. Alternatively he may have been deliberately exposing the child to them in the hope that the child would advocate with the mother for reconciliation.

4. Whatever the motivation the result was the child feeling responsible for the father’s happiness.

September 2020

1. The child told the ICL, in the month before trial, that “he would be very sad if he was not allowed to spend time with his father”.[11] Asked if he could choose where he was to live, the child responded that he would rather live with Dad. He attributed his choice to his two older maternal half-brothers.

   [11] Exhibit 4.

2. He had no worries about either of his parents and thought his mother did a good job of taking care of him.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The subject child has struggled at times with the comments and complaints by his older brothers, particularly Y, about the child’s father. The mother has corrected them but the child felt it.

2. The older boys are now 17 and 14. They no longer have to contend with the father. The household is likely much more peaceful and harmonious as a result.

3. The older boys attended for the Family Report interviews and the family consultant reported as follows:[12]

   The formal observation of X with the mother and his maternal half siblings appeared to demonstrate a relaxed and comfortable relationship with all present. Y and Z voluntarily, and without prompting, came to the floor to engage in a game with X and the mother. They then all engaged in the game in a very calm and co-operative manner with lots of smiles and laughter evident. All of the children appeared to be very responsive to any direction given by the mother.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

[12] Family Report dated 2/09/2019, par 123.

1. The father has always wanted to spend time with and communicate with the child. He is pressing for the child to live with him.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. A change of residence would be a big adjustment for the child. He has always lived with his mother and older brothers.

2. The father’s son, W, may or may not welcome the child.

3. The view of the family consultant was that the relationship between the mother and child could fall away through the father withholding him from time with the mother.

4. If such a change was made the mother would very likely reconcile with the father in order to be with the child. She is a devoted mother.

5. If not full reconciliation, the mother would visit and be present in the father’s home as often as he would allow.

6. The child is likely to be pleased about that without having any understanding of the implications for the mother.

7. The mother’s older sons would be anxious for their mother, probably angry with the father.

8. The child would once again be in the centre of emotional turmoil and conflict.

9. Cutting off communication between the child and the father would be a shock for him, a sad event but also a relief from the father’s uncontained emotions.

10. The family consultant confirmed that the freedom which the child felt to express his views meant that he was not alienated from his father.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The mother

1. The mother has some impairment in capacity unrelated to love and care. She described herself as having been a “pushover”. She has been working on being stronger for herself and her children.

2. She is trying not to comply with the father’s wishes and desires.

3. The family consultant recommended that the Court made orders to support the mother’s parenting capacity.

The father

1. The father has some impairment in capacity.

2. He has suffered mental illness, depression and bipolar disorder. He consulted with a psychologist who ultimately terminated the professional relationship. The basis for her decision was that she could no longer provide assistance until the father was ready to “engage in inner focus”.

3. It may be simplistic but I interpret that to mean that the father was unable to accept that he was a contributor to the problems distressing him.

4. The three older children of the father came into his care for a period. The Child Inclusive Conference Memorandum reported a long history of violence in the relationship of the father with the mother of his older children. He was charged and convicted of assaulting his former wife’s partner who was hospitalised as a result.

5. Those three children all reported being afraid and anxious around parental conflict.[13]

   [13] Child Inclusive Memorandum to Court [Bardel v Bardel] dated 16/05/2013, p. 3.

6. There is resonance with this case in the father’s unshakeable belief that the mother of those children was the reason for any problems they had. Further with the fact that he broke down and cried in front of the children and was separated from them until he could bring himself under control.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is an 11 year old boy, not yet adolescent. The family consultant expressed the view that the child would probably enjoy short periods of time with the father in a supervised centre playing board games and chatting. Perhaps a couple of hours.

2. The father has not been open to supervised time with the child.

3. The father is unlikely to readily comply with rules associated with use of a contact centre, particularly rules about parents not coming in contact with each other before and after visits.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There has been family violence. There are current cross applications for ADVO protective orders due to be heard early in 2021.

2. The father breached the two year order which expired in November 2019 several times. He felt justified and victimised. He blames the mother for his being sent to gaol.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. It is preferable to make orders which leave the mother free to parent the child without pressure from the father directly and through the child. The Court accepts this opinion of the family consultant in that orders should support the mother’s capacity to parent.

2. The mother has not undermined the child’s relationship with the father. He can make his own decisions as a young adult.

Conclusion

1. Orders have been made in accordance with the proposal of the ICL and the mother.

2. The ICL is willing to meet with the child and a family consultant in order to explain these orders and answer relevant questions. The Court expresses appreciation for that assistance to the child.

3. It will be of particular value to the child to be told that both his parents love him and that his father has not given up on him, rather the Court has made a decision that telephone calls should stop now and time together for the child and his father must wait until the child is a young adult.

4. Orders are made accordingly.

I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 November 2020.

Associate: 

Date:  19 November 2020