NEWBERRY & NEWBERRY

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWBERRY & NEWBERRY

[2017] FCCA 1762

Catchwords:
FAMILY LAW – Interim parenting orders – Whether father should be permitted to spend unsupervised time with the child having spent prior lengthy supervised time with her-best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA.

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Applicant:

MR NEWBERRY

Respondent:

MS NEWBERRY

File Number:

PAC 4526 of 2013

Judgment of:

Judge Newbrun

Hearing date:

6 April 2017

Date of Last Submission:

6 April 2017

Delivered at:

Parramatta

Delivered on:

28 July 2017

REPRESENTATION

Solicitors for the Applicant:

Vaughan Zarb & Co

Solicitors for the Respondent:

CBD Legal

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Bankstown Family Law

ORDERS PENDING FURTHER ORDER

That the child X born (omitted) 2011 live with the mother.
That the mother have sole parental responsibility for the major long term issues affecting the child X born (omitted) 2011.
That the child X born (omitted) 2011 spend two hours per fortnight of supervised time at (omitted) House, (omitted), and such costs be borne by the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC4526 of 2013

MR NEWBERRY

Applicant

And

MS NEWBERRY

Respondent

REASONS FOR JUDGMENT

Introduction

This was the father’s interim application to spend unsupervised time with the child of the relationship, X born (omitted) 2011, and now aged 6 years.
His proposed interim parenting orders are set out in his Initiating application filed 30 September 2015; inter alia, he seeks interim parenting orders that the parties have joint parental responsibility for the child; that the child live with the mother; that the child spend time with the father between 5PM Friday to 5PM Sunday each alternate weekend, between 4PM and 7PM on each Wednesday of school term, and certain block time during the child’s school holidays.
The father’s proposed interim parenting orders are opposed by the mother. She seeks interim parenting orders that the child live with the mother; that the mother have sole parental responsibility for the child; that the child spend two hours a fortnight of supervised time at (omitted) House and that such costs be borne by the father. These proposed interim orders of the mother are set out in her Case Outline, Exhibit D.
The Independent Children’s Lawyer’s proposed interim parenting orders are set out in Exhibit A; that the child spend unsupervised time with the father as agreed between the parties and failing agreement as follows:
a)For a period of 12 weeks from the commencement of the first unsupervised period of time on each alternate Saturday from 9AM to 1PM and such time shall occur in a public place only;
b)at the conclusion of order (a), on each alternate Saturday from 9AM to 4PM;
c)At such other times as agreed between the parties.
The Independent Children’s Lawyer’s proposed interim parenting orders included proposed orders that changeovers for the purpose of the child’s time with the father occur at (omitted) House at (omitted).
The Independent Children’s Lawyer also proposed an order that both parties be restrained from physically disciplining the child and from allowing any third party to do so.

Material relied upon by the parties

The father relied upon the following material:
a)Initiating application filed 30 September 2015;
b)Affidavits of the father filed 30 September 2015, and 29 March 2016;
c)Child Dispute Conference Memorandum to Court dated 11 February 2016: Exhibit B; and
d)Child Inclusive Conference Memorandum to Court dated 22 November 2016: Exhibit B.
The mother relied upon the following material:
a)Response filed 14 December 2015;
b)Affidavits of the mother filed 14 December 2015, and 16 November 2016; and
c)Notice of Risk filed 14 December 2015.
Certain subpoenaed material was tendered in evidence, as follows (see the tabbed documents in that material):
a)Relationships Australia (omitted) (sleeve 3) (relating to the child’s time spent with the father at the Contact Centre): Exhibit E
b)(omitted) Hospital (sleeve 5): Exhibit F
c)NSW Police (sleeve 4): Exhibit G
d)NSW Police (sleeve 1): Exhibit H

Agreed or undisputed facts

The father is aged 31 years being born on (omitted) 1986. The mother is aged 30 years being born on (omitted) 1987. Both parties were born in (country omitted).
Since about early 2013, the father has been spending time with the child, on a fortnightly supervised basis, at a Contact Centre. The parties had agreed to such time commencing having attended mediation in late January 2013.

Relevant legal principles

The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship. The mother has been the child’s primary carer from birth to date.
The child appears to have a positive and affectionate relationship with the father and may well benefit from a meaningful relationship with him, subject to the child not being exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in his care.
The father did not spend time with the child for about six months after the parties’ separation in about July 2012. Then, in about early 2013, following mediation, the child began to spend supervised time with the father at a Contact Centre, which has continued to the present time.
Relationships Australia (omitted) subpoenaed material tendered, relating to certain supervised time between the child and the father at the Contact Centre, refers to, inter alia, the child and the father interacting positively with each other, playing together, and being affectionate with each other. One entry for 24 January 2017 refers to the conversations between the child and the father being age-appropriate and well-meaning.
At the Child Inclusive Conference on 22 November 2016, the child initially told the family consultant that she did not have a “Dad”. Then, on observing the father, the child told the family consultant that the father was “Dad, my friend from child care.” The child then ran to the father. They played together, and the family consultant observed that the child appeared familiar with and comfortable with the father. At the end of the observation session the child hugged the father goodbye. Later the child clarified with the family consultant that she calls the father “Dad” but that he is her friend and that she sees him “every Saturday” at the child care centre. The family consultant observed that it was unclear that the child understands that the father is her father.
At this interim stage, should the child continue to spend regular fortnightly supervised time with father, there is a significant prospect that the child’s present positive and affectionate relationship with the father will be maintained, however it may well be that this relationship may not progress to a more significant relationship.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The mother seeks interim parenting orders that the child’s time with the father continues to be supervised at the Contact Centre.
The mother raises concerns in relation to
The Court notes that in the Child Dispute Conference Memorandum to Court, relating to the family consultant’s interview with the father on 11 February 2016, the father reported to the family consultant “no history of concern regarding his mental health.”
The mother has concerns, inter alia, in relation to:
a)the current state of the father’s mental health; inter alia, the mother refers to previous mental health problems experienced by the father and which she contends are unresolved.
In this context, the mother has concerns that the father will psychologically and emotionally harm the child. She asserts that the father has extreme (omitted) religious views; inter-alia, she refers to what she contends are disturbing and threatening text messages sent by the father to her in 2012, 2013 and 2014. The mother expresses concerns as to how the father’s alleged extreme religious views will impact upon the child if the father had unsupervised time with her. She also refers to the father’s past use of illicit drugs
b)she does not want the child exposed to conflict in the paternal family’s household.
c)That the father will physically hurt the child or not return her to the mother to punish the mother for not following his extreme views.
d)The child being exposed to family violence; in this context the mother submits that nothing is known about the father’s current domestic circumstances with his last affidavit being filed on 30 March 2016.
The NSW Police criminal Record for the father was tendered in evidence (Exhibit H); the Criminal Record of the father dates back to 2004 and reveals a conviction in 2004 for assault occasioning actual bodily harm, in the company of others, to which the sentence was a community service order of 200 hours. In 2009 the father was convicted of the offence of possess/attempt to, prescribed restricted substance, for which a fine of $750 with Court costs was imposed.
The New South Wales Police subpoenaed material in relation to the father was tendered in evidence (Exhibit G).
A police entry, in relation to the father for 19 October 2009, refers to the police pulling over a vehicle in which the father was a passenger. The father admitted to smoking cannabis a couple of hours prior to police stopping him. He told the police there may be a small cone in the passenger’s door which was not found by the police. The father made admissions to owning the cannabis, which was believed by police to be negligible quantity. The father received a warning from the police.
A police entry, in relation to the father for 14 November 2009, refers to the police approaching the father in a car. The father’s eyes appear to be glassy and bloodshot. The father admitted to police that there was marijuana in the car. The father produced a bong in the form of a plastic drink bottle from the boot of the car. Admissions were made by the father that vials of liquid found in the car were steroids.
A police entry, in relation to the father, for 2 September 2012; the police appear to have attended a residence where a party was taking place. The father was spoken to by the police. The police are stated to have believed that the father was suffering from a combination of the effects of illicit drugs, “and mental health issue due to these effects. When asked about drugs (the father) said he had taken a number of ecstasy pills over the course of a few days. All POI’s were removed from the hotel room at this stage and taken to the car park area of the hotel…. The POI’s were displaying signs of drug effects as they were highly agitated and in a state of heightened energy.”
A police entry for 2 October 2012, in relation to the father, states:
“Mental health fears held by police: POI (the father) stated to family that he would jump out of moving vehicle. POI also made several threats to police that he would jump off the second story balcony. Mental health – drug-related: self-confessed cannabis user – ceased approximately 1 month ago (September 2012). Narrative: about 1 PM on Tuesday 2 October 2012, the P/R and the POI were travelling along the…. During which time the P/R and the POI engaged in an argument, after which the POI threatened to jump out of the moving vehicle. Once the vehicle came to a complete stop at a set of traffic lights the POI opened the vehicle door, but stayed in the vehicle. About 1:30 PM the POI and the P/R arrived at the AA, after which the POI locked himself out on the balcony of his unit and threatened self harm. P/R contacted police to attend. About 1:50 PM, police attended location. The POI made numerous threats to police that he would jump from the second story balcony, as his wife had left in a month ago and would not let him see his child. The POI allowed police to enter the unit to speak with him. The POI became visibly calmer, and police organised an ambulance to attend to convey the POI to the… Hospital. Police cancelled the Ambulance and conveyed the POI to hospital where he was scheduled under section 22 and admitted by mental health.”
A police entry for 9 March 2013 states, in relation to what appears to be allegations made by the mother to the police in relation to the father:
“Since July 2012 until today (9 March 2013) the PINOP (the mother) has been receiving calls and messages from the defendant (the father) up to 15 times a day. The PI NOP has asked the defendant on numerous occasions not to call or message her unless he is enquiring about their child. The calls and messages from the defendant to the PINOP are mostly about him taking her daughter and everything away from the PI NOP. On one occasion the defendant has called the PINOP’s mobile and stated to her that if they could not be a family and then he wished their daughter was dead. The PINOP became afraid of these comments made by the defendant and would only allow the defendant supervised visits of their daughter. During their relationship, the defendant has wanted the PINOP to dress in a full veil as per their religion. The PINOP has refused to and the defendant has called her names such as slut, whore and accused her of sleeping with other men.…. He has stated to her that he has been speaking with God and that God has told him that she has evil inside of her…. The PINOP also believes that the defendant has been smoking cannabis as she has seen text messages on his mobile asking him to buy cannabis and a cone piece. She has also seen resealable bag inside their garage which she believes contained cannabis. The defendant has also come home with red eyes and smelling of cannabis…. Police spoke to the defendant and he stated that he did not threaten that he wished his daughter was dead but that dead happens to children all the time and he has seen children die with just one parent looking after the child. He would not elaborate further on the comments. He admitted to frequently sending the PINOP several messages a day and stated that he was asking the PI NOP if his daughter was okay. Police applied for and were granted an urgent ADVO…. The defendant has been scheduled under section 22 of the Mental Health Act on 2 October 2012 where he wanted to commit self harm by jumping from a travelling vehicle.”
The mother’s affidavit filed 14 December 2015 is an extensive document.
The mother alleges that in about February 2009 the parties moved out of the paternal grandparent’s home and they moved into premises at (omitted). The mother alleges the father continued to abuse her and occasionally she ran out of the unit and to a park close by. The father asserts that he was never abusive towards the mother.

The mother alleges that in the first half of 2010 was living at (omitted) she recalls strange men coming downstairs of the unit to talk to the father. The mother alleges that the father had criminal associates, and she recalls the father had visited a friend in jail following which the parties had an argument. The father responds to this allegation by stating that there were other people living in the block of home units where they were living but he did not know them and he denies the conversations alleged.
The mother refers to travelling to (country omitted) in July 2010 and returning in October 2010. The father states that they both travelled to (country omitted) at this time.
The mother alleges that there was an incident between the parties in early 2012 when the father threw this telephone at her, but the mother was not struck by the phone. The father admits to throwing the telephone at the wall and it broke. However he alleges that at the time the mother laughed and she was not at all concerned.
The father in his first affidavit states that should the child spend time with him then she will come into contact with his parents and brother.
The mother alleges that the paternal grandfather was always drinking alcohol during the period when the parties were living with the paternal grandparents; she alleges that he was always drunk. She alleges that the paternal grandparents would get violent with each other, and would swear, spit and get aggressive physically. She alleges that one-day the paternal grandmother grabbed a kitchen knife and tried to stab the paternal grandfather who was drunk, in the chest, and the mother recalls seeing the father grab a knife off her. In relation to these allegations, the father responds by stating that the paternal grandfather does have a problem with drinking alcohol. He states the paternal grandfather was never used to it. When he came to Australia he took up with men from work going to the pub. He states that the paternal grandparents do have arguments: they have been married for over 30 years and have argued for years but he does not live with them.
The mother also alleges in relation to the paternal grandfather that on one occasion, at a time when the child was only a few months old, the paternal grandfather grabbed the child from her cot, he was drunk, he refused to give the child to the mother, he swung the child around and threw her onto the mother’s bed, with the child crying. The father, in response to this allegation states that this is the first time he has heard of this allegation.
The mother alleges that in about mid-2011, the father was heavily addicted to drugs. He would come home heavily drug induced according to the mother. The father responds to this allegation by stating that he was taking drugs to deal with his pain but they were all prescribed medication.
The mother alleges that the father was making her wear a headscarf. The father responds to this allegation by stating that during his convalescence he turned to (religion omitted), but that the mother was happy for him and encouraged him.
The mother alleges that in July 2012 she went overseas with the child to visit her parents in (country omitted). She alleges the father would telephone her and call her a slut. The father denies this allegation.
The mother alleges that the father became religiously fanatical in Australia while she was in (country omitted) at this time. She alleges that she would read material that the father was publishing on Facebook and became terrified. The father denies these allegations.
The mother alleges that on 26 September 2012 she arrived at Mascot Airport. She saw her friend, and the father was there calling her a slut and accusing her of wanting to turn the mother into a slut. The father does not respond to this allegation.
The mother alleges that at the airport she told the father that she was not going with him and that he scared her. There was an altercation between the parties and the police became involved at the airport. The father responds to this allegation by stating that he did not see the mother for three months, and was in shock when told by the mother that she was leaving him.
The mother alleges that following her return to Sydney from (country omitted), the father would ring her mobile telephone continuously and threaten the mother; for example, the mother alleges that the father threatened the mother that the moment the mother walked out of her friend’s unit, which was surrounded by a gang, the father would appear to get her. The father denies these allegations.
The mother alleges that one evening the father telephoned her and said that he had a gun and was going to go and hold an elderly (nationality omitted) couple hostage and shoot them if she didn’t return to him. The mother alleges that the father then started yelling and screaming over the phone for the (nationality omitted) couple to come out. The father denies these allegations.
The mother alleges that the father would also ring her and say that he was going to commit suicide if she didn’t return to him. The father denies this allegation.
The mother alleges that the father’s brother would telephone her and tell her that the father was trying to kill himself as he tried to jump from the balcony at (omitted) unit. (In this context, the Court refers to the New South Wales police entry is for 2 October 2012 referred to above.) The father denies these allegations of the mother.
The mother refers to the alleged incident where the father had threatened to jump out of a moving car 2 October 2012, and the father’s admission to hospital under Section 22 of the Health Act. The father responds to this allegation by stating, “I was sent to (omitted) Hospital. I was there for two hours. I was permitted to leave.”
The (omitted) Hospital subpoenaed records tendered in evidence (Exhibit F) refers to the father’s admission to hospital on 2 October 2012, and refers to the father “threatening to kill himself post argument with mother.” The clinical notes record the father denying any suicidal thoughts/self harm. The mental health assessment states, inter alia, that the father attempted to leave a car during an argument with his mother and brother in the car. The father states he has ongoing relationship problems with his estranged wife since she returned from (country omitted) a week ago, and is now separated and he doesn’t know where the mother is. He stated he just got angry and wanted to leave the car.
The mother alleges that on an occasion around end of 2012 the father appeared unannounced at (omitted) railway station. The mother ran away pushing a pram. She spoke to the police. The father had been following the mother and her friend and the father was saying to the mother’s friend that the mother was possessed by the devil and was evil. The father, according to the mother, was chanting in (language omitted) some form of prayer which the mother did not understand. In relation to these allegations, the father responds by stating he did believe the mother was possessed by the devil at that time. He states that he does “not believe in that following my studies in (religion omitted).”
The mother alleges that thereafter the father would ring her every day and harass her and he started to get very strange. She alleges that the father would say to her that he was speaking with God and that God told him not to divorce her and that later they were going to have twins. The father denies these allegations.
The mother alleges that on about 8 March 2013 the father called her and texted her and said to her in one message that, “if we could not be a family that he wished (the child) was dead.” The mother states she went to the police and immediately applied for an ADVO. The father denies these allegations.
Attached to the mother’s affidavit filed 14 December 2015 is a copy of the Ex-parte ADVO applied for by the police, and which notes that a provisional ADVO was made on 9 March 2013 against the father for the protection of the mother. The grounds of the application document annexed to the mothers affidavit, allege, inter alia, as follows:
“Since July 2012 until today (9 March 2013) the PINOP (mother) has been receiving calls and messages from the defendant (the father) up to 15 times a day. The PINOP has asked the defendant on numerous occasions not to call or message her unless he is enquiring about their child. The calls and messages from the defendant to the PINOP are mostly about him taking her daughter and everything away from the PINOP. On one occasion the defendant has called the PINOP’s mobile and stated to her that if they could not be a family then he wished their daughter was dead…… He has stated to her that he has been speaking with God and that God has told him that she has evil inside of her.
A final ADVO was made against the father for the protection of the mother on 15 March 2013 with such order being in force for two years.
The mother refers to the Contact Centre. She alleges the father would not leave at the end of the contact but would loiter around the Contact Centre so he could see the mother attend and collect the child. The mother alleges that she informed the Contact Centre and they gave the father warnings. The father responds to these allegations by stating that he did stay back a couple of times because he wanted to make sure the child was okay.
The mother refers to the communication book used by the parties at the Contact Centre for a certain period, namely from about April 2013 to mid-May 2014; copies of pages from this book are annexed to her first affidavit. She alleges, inter alia, that the father used the communication book as a mode of communicating with the mother the father’s requests and putting forward constantly the father’s religious beliefs. The mother alleges that she ceased using the communication book because she was scared of the father and would panic and feel distressed upon reading his messages. The mother alleges that the father would write in the communication book comments about the mother such as “the devil in me” and “the curse” and “(omitted) will provide a cure”. The mother refers to an entry in the communication book on 22 February 2014 by the father stating, inter alia, “You have to destroy that (omitted) around your neck. It’s making it worse and it’s delaying the cure.” The mother also alleges that during a contact visit at the Contact Centre the father placed a copy of the (omitted) into the child’s bag. These allegations are not responded to by the father in his Affidavit in reply filed 30 March 2016.
The mother alleges that on another occasion at the contact centre, the father slipped some packages which resembled “holy honey and water”, “as also referred to in the (omitted) language/(omitted) faith as “(omitted), translated as “holy water”. The mother discovered the items are notified the contact centre and they told the father to stop it. The mother asserts that in the communication book, the father makes reference to this and states that the mother should drink the water to cleanse her of the devil. He refers to it as the “cure”.
The mother alleges that just prior to the mediation held between the parties in January 2013, she saw on the father’s Facebook account, a picture relating to terrorism and terrorists acts. There were also comments about how a (omitted) girl should be covered. The father does not respond to these allegations.
The mother applied for an extension of the ADVO to the Local Court at Fairfield in early March 2015. The mother attaches to her Affidavit a copy of the father’s statement to the Local Court. In that statement of the father dated 19 June 2015, the father states inter alia, that he belongs to an (omitted) Organisation. He states that he is the President of the (omitted) Program. He states it is a moderate group that supports believers to search into (omitted) teachings. He states that one of its aims is to promote understanding between followers of (religion omitted) with non-believers. He states that he did post an entry on Facebook that he did not approve of makeup. He denied stalking or intimidating the mother.
The mother alleges that when she was at a refuge in October 2012 and later, the father would contact her and tell her that he wanted to go to (country omitted) to fight the Christians. The father denies these allegations.
The mother’s written statement to the Local Court is also attached to her Affidavit. In that statement, inter alia, the mother refers to the communication book used by the parties at the Contact Centre between April 2013 and May 2014. She refers to the father’s allegedly inappropriate comments in the communication book relating to his religious beliefs, and the father placing religious items into the child’s bag at the Contact Centre. The ADVO was extended for a further 18 months from 28 August 2015 with the Local Court Magistrate appearing to place reliance upon the father’s alleged behaviour in making inappropriate comments in the communication book at the Contact Centre, and placing material into the child’s bag at the Contact Centre, with a view to communicating with the mother.
The Court also observes that in the communication book there are entries written by the father of a quite innocuous nature and affectionate of both the child and the mother.
The father states, in his affidavit filed 30 September 2015, that following the commencement of his supervised time with the child at the Contact Centre, he was allowed one text per day to check on the well-being of the child. He then states that his emotions took over “and I abused this”. He states that he used the communication book as a means of contacting the mother to find out if she was willing to give the relationship another chance.
The The mother alleges that the father had posted on his Facebook page a photo of a man holding a gun and dead people lying on the ground next to him, with a tag which read “one of us, couple of them.” The father does not respond to this allegation.
The mother expresses concerns as to the father’s mental health and his drug use. The father responds by denying he has mental issues or problems with abuse of alcohol or substances.
The mother expresses her concerns as to the father’s religious beliefs and how the father’s alleged extreme views would impact on the child if the child had unsupervised contact with the father, including the mother’s concerns that the father would brainwash the child against the mother, put a scarf on her, and the father and his family would denigrate the mother to the child, the father responds by stating that the mother is a very anxious person, he has concerns about her mental health, and he believes “her beliefs are not good for (the child)”.
As to the mother’s concerns that the father will try and instil his (omitted) religious views in the child, and her concern that the father would promise the child’s hand to a friend of his as an arranged marriage, the father responds by stating that the mother “continues to hold extremely negative views towards myself and anyone connected to me.”
The father asserts that the Contact Centre visits are not meaningful visits and both the child and himself have a desire for home visits. The father expresses a desire to play a meaningful role in the child’s life. He would like to have input into her schooling and other educational and lifestyle choices. He states that he is resigned to the fact that the mother has moved on. He states that should the child be permitted to spend time with him unsupervised, the child would come into contact with his parents and brother. He states that he would supervise the child’s time with him at all times.
In the mother’s later Affidavit filed 16 November 2016, which affidavit is not expressly responded to by the father, she refers to text messages sent by the father to her in 2012, 2013 and 2014. The mother asserts that she finds their contents disturbing and threatening. She refers to a text message in which the father states to the mother, inter alia (the Court correcting some grammatical errors):
“I’m going to make sure you kill yourself and your family will have heart attacks because of what you became. I will tell everyone why you didn’t want to sleep with your husband… I will demolish you and your family and all your friends like you ruined me. I will get you all believe me. Just take care of my daughter and if you get married or have boyfriend and you live with them (the child) is mine no father is going to raise her like me… Because of your lies I will tell all on Facebook everything and your family will suffer… may (omitted) help you but you forget he doesn’t help people who rebel against him.. I don’t love you I hate you tried killing me but you’ll kill yourself at the end and I’m going to have (the child) you fuck watch your friends what is going to happen to everyone around you what is going to happen all I’m going to do is tell the truth and everyone is going to want to kill themselves…may (omitted) help you what is coming your way and your family way and your friends way I will take revenge also you living with the two biggest sluts in Sydney… You won the battle but I will win the war get ready the games begin”
In another text message sent by the father to the mother it is stated, inter alia (the Court correcting some grammatical errors):
“… I lost you the day you went to (country omitted) may be you are possessed by devils maybe you are brainwashed or you were hiding your true face from me and playing games I see you don’t care about me and I don’t care about you any more have (the child) I never want to see you again I’ll get married and I will have kids again that you went against (omitted) and me and the profit I have changed you made me do that on Sunday with your silence have your family you I’m grateful dogs you lived like a queen with me you went to (country omitted) every year I gave you everything you dog all your family are ungrateful dogs.. I promise you you won’t be happy have a good life and take care of our daughter..”
In another text message sent by the father to the mother it is stated, inter alia (the Court correcting some grammatical errors):
“(omitted) (the mother asserts that this word means the devil in (religion omitted)) you won’t win I’m a believer I fear (omitted) only and (omitted) helps the pure hearted it’s a matter of time and it’s over you will lose believe me”.
In the Child Inclusive Conference Memorandum dated 22 November 2016, the mother reported to the family consultant that the child says to her that the father asks the child about the mother’s care of the child, including whether the mother brushes the child’s teeth and hair and also about the mother, such as whether “(I) walk naked in the street?”. The mother expressed concern to the family consultant that the father is inadequately supervised at the contact centre and is able to ask such things of the child.
The above family consultant stated, under the heading “Future Directions”, that if the matter required a final hearing, the court would likely require a report by a single expert child and family psychiatrist regarding whether either parent has any diagnosable mental health condition or issues of personality function that may adversely impact on their capacities to understand and appropriately meet the child’s parenting needs. He also stated that it may assist if any available records pertaining to the fathers mental health be obtained under subpoena.

Discussion

At this interim stage, on the material before the Court, the Court has concerns in relation to the child spending unsupervised time with the father.
The Court has concerns in relation to the present state of the father’s mental health. There is a strong suggestion (without proceeding to make any finding of fact) that the father’s mental health was unsatisfactory following the parties’ separation in late 2012 when he arguably threatened to hurt himself and was admitted to hospital as a scheduled person under the Mental Health Act 2007, and the Court refers to the police material in evidence in this context.

Further, portions of the text message material sent from the father to the mother during the years 2012 to 2014 are of concern to the Court in that they arguably reveal an unstable and possibly dangerous state of mind in the father in that they arguably evince an intention on the part of the father to harm the mother, her family and friends.
Further, the mother’s allegation that the father sent a text message to her in about early 2013 stating that if the parties could not be a family then he wished the child was dead is of some concern, particularly in the context of the father’s alleged mental ill health.
In this context of the father’s alleged mental ill health, the Court notes that the father reported no history of concern regarding his mental health to the family consultant at the Child Dispute Conference on 11 February 2016, and would appear not to have mentioned any aspect of his past mental health history, including his arguable mental un-wellness in late 2012.
Further, the court notes the mother’s allegations made to the family consultant at the Child Inclusive Conference on 22 November 2016 that the father was asking inappropriate questions to the child, during his supervised time with her, relating to the mother, such as whether she walked “naked in the street”.
At this point, the Court observes that the father has not sought to put in evidence any health professional evidence relating to the state of his mental health. There is no report from a psychiatrist or indeed any mental health professional in respect to the state of the father’s mental health. In this context, the Court should state that the last Affidavit of the father was filed over a year ago on 30 March 2016; apart from the father’s time spent with the child at the Contact Centre, nothing is known about his life since that last Affidavit.
The Court has concerns in relation to the content of the father’s religious views, noting the father’s admission that previously he believed the mother was possessed by the devil (at least prior to his studies in (omitted)), and needed to be cured. The concern in this context is the prospect of the father suggesting to the child that the mother is, at a minimum, in some way unwell, which might adversely affect the child’s meaningful relationship with the mother.
The Court notes that these apparent religious beliefs of the father were at least in existence up until February 2014, by reference to the entries in the parties’ communication book at the Contact Centre. It is reasonably apparent that the father has strong religious views, again noting the text message material passing from him to the mother between 2012 and 2014, his presidency of the (omitted) Program, and his entries in the communication book and placement of religious items into the child’s bag at the contact centre.
In this context, the Court refers to the mother’s allegations that the father had posted on his Facebook page a photo of a man holding a gun and dead people lying on the ground next to him, with a tag which read “one of us, couple of them” and which the father did not dispute.
As to the mother’s allegations of historical family violence, the Court has some concerns. The father has a criminal record, albeit dating back to 2004, for an act of violence in company, and he admitted to throwing a phone in about early 2012 which did not hit the mother. The mother alleges there was an altercation between the parties at Mascot Airport on her return to Australia from (country omitted) and in about mid-2012 and in which the police became involved. And the Court refers to the Apprehended Domestic Violence Orders in place between early 2013 and early 2017 for the protection of the mother from the father. The Court notes again in this context that the last Affidavit filed by the father was that of 30 March 2016 and little is known, apart from the Contact Centre material in evidence, of his life since that last Affidavit to date.
The Court has some concerns relating to the father’s historical use of illicit drugs, albeit dating back to 2012, and in this regard notes that the mother’s allegations of the father’s illicit drug use arguably receive some support from the police material in evidence.
A further concern that the court has is that should the court permit unsupervised time between the child and the father, the father might expose the child to the paternal grandparents who may well pose a risk to the child, by reason of their alleged past behaviour and even the father’s admissions that the paternal grandfather has an alcohol problem and that his parents chronically argue. In this context, the court notes that the father arguably failed to abide by the intended use of the communication book at the contact centre, through seeking to communicate with the mother through its use.
The Court’s concerns, discussed above, considered cumulatively, lead the Court to the view at this interim stage, on the material presently before the Court, that there is an unacceptable risk to the child being exposed to abuse, neglect or family violence in spending unsupervised time with the father.
In reaching the above view, the Court has considered carefully the Independent Children’s Lawyer’s and father’s submissions. In particular it has considered the unremarkable Contact Centre material in evidence over a lengthy period of time, and that the child has been spending what appears to have been positive supervised time with the father. Despite such matters, the Court’s concerns remain.
The Court is of the view that the Independent Children’s Lawyer’s proposal (Exhibit A) that the child spend graduated unsupervised time with the father does not, with respect, address the Court’s concerns, referred to above.
At this interim stage, the Court’s concerns can be appropriately addressed and minimised by the child continuing to spend supervised time with the father.
The Court should state that it is always open to the father to request the Court to revisit his interim application to spend unsupervised time with the child on obtaining appropriate evidence addressing the Court’s concerns as expressed above, including, in particular, a report from a psychiatrist assessing the present state of the father’s mental health, such psychiatrist having had the benefit of reading this interim judgment, and having viewed the material in these interim proceedings. The court makes the general observation that the father’s affidavit evidence at this interim hearing was comparatively sparse, with his last affidavit being filed on 30 March 2016, when set against the mother’s detailed affidavit evidence.
The Court gives significant weight to this need to protect primary consideration (and the Court notes that pursuant to section 60CC(2A) of the Act, the Court is to give greater weight to the need to protect primary consideration as opposed to the meaningful relationship primary consideration).

Section 60CC(3) - Additional Considerations

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

The child is too young to express any relevant views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to its discussion above under the meaningful relationship primary consideration.
The child remains in the primary care of the mother.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

Both parents would appear to have taken such opportunities. There would appear to be a dispute between the parties as to the extent to which the father involved himself in the day-to-day health care needs of the child during the relationship.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

It would appear that the father does not pay child support for the child. The father alleges that he is trying to earn a living in the (omitted) industry and due to a disability he has a limited capacity to earn an income. The mother in her last Affidavit annexes correspondence from the Child Support Agency who indicate to the mother, inter alia, that they have been unable to collect child support from the father.

(d) 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 (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the need to protect primary consideration. Whilst the mother expresses her own significant concerns as to the child spending unsupervised time with the father, she has not produced any health professional evidence suggesting that there exists a significant risk that she will experience significant anxiety or emotional disturbance if the child was to spend unsupervised time with the father.
Should the child continue to spend supervised time with the father, her meaningful relationship with the mother should not be detrimentally affected.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother would appear to have such capacities. The evidence at this interim stage is quite limited in relation to the father’s capacities, whilst noting that the supervised Contact Centre visits between the child and the father appear to have been positive to date, and the Court refers to its discussion previously in this context.
The Court refers to its discussion above under the need to protect primary consideration.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

According to the mother and the father the child is progressing well.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother, as the primary carer of the child from birth to date, has demonstrated appropriate attitudes and discharged her parenthood responsibilities diligently. Again, there would appear to be a dispute between the parties as to the extent to which the father involved himself in the day-to-day care of the child during the relationship

(j) Any family violence involving the child or a member of the child's family.

The Court refers to the need to protect primary consideration discussed above.

(k) 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, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

The court refers to its discussion above under the need to protect primary consideration.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

These are interim proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

Parental responsibility

The father proposes an interim order that the parties have joint parental responsibility for the child. The mother seeks an interim parenting order that the mother have sole parental responsibility for major long-term issues affecting the child. The Independent Children’s Lawyer does not seek any parental responsibility order.
At this interim stage, noting the mother’s historical primary care of the child to date, the parties’ apparent lack of capacity to communicate or cooperate, and noting the continued supervised time of the child with the father, it will be in the child’s best interests for the mother to have sole parental responsibility in respect to major decisions relating to the child.
At this interim stage, noting the Court’s discussions previously in these Reasons, with the father to continue to spend supervised time with the child, it will not be in the best interests of the child to be subject to an equal time shared care arrangement, and nor will an order that the child spend substantial and significant time with the father be in her best interests.

Summary

At this interim stage, it will be in the best interests of the child, evaluating the above discussed considerations under section 60CC of the Act, to make interim orders as follows:
(1) That the child X born (omitted) 2011 live with the mother.
(2) That the mother have sole parental responsibility for the major long term issues affecting the child X born (omitted) 2011.
(3) That the child X born (omitted) 2011 spend two hours per fortnight of supervised time at (omitted) House, (omitted), and such costs be borne by the father.

I certify that the preceding one-hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 28 July 2017

[2017] FCCA 1762

28 July 2017

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