Noble and Pradchaphet

[2013] FamCA 494

FAMILY COURT OF AUSTRALIA

NOBLE & PRADCHAPHET [2013] FamCA 494

FAMILY LAW – CHILDREN – With whom a child lives – Undefended hearing – Where the Father suffers from paranoid schizophrenia but refuses to accept his diagnosis or seek treatment – Where there is evidence of abuse or family violence on behalf of the Father –Where the Independent Children’s Lawyer supports the final parenting orders sought by the Mother – Mother to have sole parental responsibility – Child to live with Mother

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 26 Fam LR 237

APPLICANT: Mr Noble

RESPONDENT: Ms Pradchaphet

INDEPENDENT CHILDREN’S LAWYER: Ms Keyworth

FILE NUMBER: MLC 8455 of 2011

DATE DELIVERED: 27 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 June 2013

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Seth Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Keyworth, Harris & Lowe Family Lawyers

Orders

It is ordered that

1. All previous parenting Orders be discharged.

2. It is declared that the presumption of equal shared parental responsibility does not apply in respect of the child, B born … May 2010 (“the child”), and the Mother shall have sole parental responsibility in relation to the child.

3. The child shall live with the Mother.

4. The Father shall have no time or communication with the child.

5. The Father be restrained and an injunction be issued restraining him from being within 200 metres of the Mother, including but not limited to her places of residence or employment.

6. The Court requests that the Australian Federal Police remove the name of the child, B born … May 2010, from the Airport Watch List at all points of international arrivals and departures in Australia.

7. The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various states and territories are required and empowered to take all necessary steps to give effect to Order 6 of these Orders.

8. The Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 8455 of 2011

Mr Noble

Applicant

And

Ms Pradchaphet

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant Father, Mr Noble (“the Father”), commenced proceedings on 19 September 2011, in the then Federal Magistrates Court, Melbourne, for the name of the subject child of these proceedings, B (“the child”), to be placed on the Airport Watch List.

2. The Respondent Mother, Ms Pradchaphet (“the Mother”), filed a Response to the Father’s Initiating Application on 26 September 2011. In this Response she sought parenting orders under Part VII of Family Law Act 1975 (Cth) (“the Act”).

3. Federal Magistrate Walters (as his Honour then was) made interim Orders on 26 September 2011 for the child to live with the Mother, for the child’s name to be placed on the Airport Watch List, and for the proceedings to be transferred to the Brisbane Registry of that Court.

4. The matter was then transferred to the Family Court of Australia pursuant to the Order of Federal Magistrate Coates of 6 February 2012. On 6 February 2012, interim parenting Orders were also made for the child to live with the Mother and for the Father to be restrained by injunction from being within 200 metres of the Mother, including but not limited to her places of residence and employment.

5. The Father filed an Amended Initiating Application on 21 May 2012 in which he spoke to the issues of parenting, but did not provide a clear set of proposed final or interim orders.

6. Pursuant to an Order for independent representation, Ms Keyworth of Keyworth, Harris & Lowe Family Lawyers (and formerly of Family Law Doyle Keyworth & Harris) has acted as the Independent Children’s Lawyer in these proceedings within the meaning of s 68L of the Act.

7. The matter was set down for “callover” on 14 June 2013. At callover, the Mother sought for the matter to be heard on an undefended basis pursuant to Registrar Stoneham’s Orders of 7 May 2013 and 7 June 2013, which provided that if the Father failed to comply with trial directions the Court may proceed to hear the matter on an undefended basis and the other party be at liberty to seek orders by default. The Father had not complied with Registrar Stoneham’s Orders and neither the Father nor a legal representative of the Father appeared at callover or at the hearing. Consequently, the matter was heard the same day on an undefended basis.

Procedural History in Respect of the Father

1. From the filing of his Initiating Application up until 21 May 2012, the Father was legally represented in these proceedings.  On 21 May 2012 the Father filed a Notice of Address for Service but no Notice of Ceasing to Act was filed on the Father’s behalf. Since then the Father has not been represented in the proceedings.

2. On 12 February 2013, the Father sent a hand written letter to the Mother’s solicitors informing them that he would not be pursuing further legal action and that he would consent to the final orders proposed by the Mother on the basis that each party bear their own costs. This letter was tendered by the Independent Children’s Lawyer and marked as Exhibit 1 at the hearing on 14 June 2013. 

3. On 14 March 2013, the Father filed a Notice of Discontinuance in respect of his Application in a Case filed 27 June 2012 and his Initiating Application filed on 19 September 2011.

4. Since filing his Notice of Discontinuance, the Father has not participated further in the proceedings. He has not filed any further material and he did not attend any of the compliance mentions before Registrar Stoneham which were heard on 5 February 2013, 7 May 2013 and 7 June 2013.

5. Trial directions were made by Registrar Stoneham on 5 February 2013; the Father failed to comply with these directions. On 7 May 2013, Registrar Stoneham made trial directions in accordance with those of 5 February 2013 and also ordered that, where there was non-compliance by a party to the proceedings pursuant to rule 11.02(2) of the Family Court Rules 2004 (Cth) (“the Rules”), the Court may proceed to hear the matter on an undefended basis and the other party would be at liberty to seek orders by default. The Father failed to comply with the trial directions of 7 May 2013.

6. On 7 June 2013, in the absence of any appearance by the Father or a representative on his behalf, Registrar Stoneham listed the matter to a callover on 14 June 2013. On 14 June 2013, in the absence of any appearance by the Father or a representative on his behalf, pursuant to rule 11.02(2), the matter was heard on an undefended basis.  

7. The Mother appeared with her solicitor and Mr Bowler of Counsel. The Independent Children’s Lawyer also appeared. Both the Mother and the Independent Children’s Lawyer sought that the matter be heard and determined on an undefended basis.

8. The Father, as noted above, has filed no material in accordance with the trial directions. The only material which has been filed by the Father since the first directions were made by Registrar Stoneham on 5 February 2013 has been his Notice of Discontinuance. The Father has been aware at all material times that the Mother was seeking orders as set out in her Response to Initiating Application filed on 26 September 2011. In his letter to the Mother’s solicitors dated 12 February 2013, he refers to these orders in the following passage:

   …Consent to final orders of the respondent, [the Mother] on the basis each party pay their own costs.

   Please forward without delay consent orders to the above address.

9. At trial, handwritten orders proposed by the Mother were tendered and marked as Exhibit 2. These proposed orders are substantively in accordance with those sought by the Mother in her Response to Initiating Application in that the Mother continues to seek the same parenting orders and care arrangements in respect of the child.[1]

   [1] Mother’s Response to Initiating Application, Orders 1, 2, and 6; Exhibit 2, Proposed Orders of the Respondent Mother (undated), Orders 1, 2, and 3. 

10. The proposed orders in Exhibit 2, in accordance with the final orders sought in the Mother’s Response to Initiating Application, seek that the Mother be able to travel overseas with the child, but differ in that the orders sought in Exhibit 2 do not refer to any limit on how long such trips can be for.

11. The proposed orders in Exhibit 2 also provide for the child’s name to be removed from the All Ports Watch List, the removal of the restraint on the Mother and her servants from removing the child from Australia and for the removal of the restraint on the child leaving Australia. These Orders were not referred to in the Mother’s Response to Initiating Application as they preceded the filing of her Response. However they are necessary for the operation of the orders in the Mother’s Response, of which the Father was aware. As such, I find that the Father, being the party who initiated proceedings for the purpose of restraining the child from leaving Australia, ought to have known that the removal of the orders associated with that restraint was required to facilitate her being able to take the child on holidays to Thailand.

Opportunity to be Heard

1. The rules of procedural fairness and natural justice need to be considered before determining the matter on an undefended basis. Within the rule of procedural fairness lies the indispensible requirement of the Court’s system of justice that a party being affected by a decision have the opportunity to be heard. As highlighted by Kirby J in Allesch v Maunz (2000) 26 Fam LR 237, where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

2. As was emphasised by Kirby J it is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before making orders. The principle does not require the decision-maker to actually hear the party. As Kirby J stated in Allesch v Maunz (supra) (at [38]):

   …Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is all that is provided. Affording the opportunity is all that the law and principle require.

   (emphasis added)

3. I have set out above the procedural history of these proceedings which demonstrates that the Father has been aware of the orders sought by the Mother and has had ample opportunity to be heard.

4. The Father has not complied with the trial directions of this Court and has chosen to file a Notice of Discontinuance. The clear inference to be made is that the Father has elected not to participate further in these proceedings.

5. I am satisfied, having regard to the procedural history recorded above, that the Father has had the opportunity to be heard and I consider that it is appropriate to proceed to hear and determine the Mother’s application for parenting orders on an undefended basis.

6. I am fortified in that conclusion by the fact that the child’s interests in these proceedings are independently represented by an experienced Independent Children’s Lawyer who submitted that the Father had been afforded procedural fairness in that he ought to have read the orders sought.

Factual Background

1. Much of the factual background has been taken from the Family Report of Ms A filed on 27 August 2012, the interviews in respect of which were attended by both the Mother and the Father, and affidavit material filed by the Mother and Father.

2. The Father is 47 years old, having been born in 1966. The Mother is 39 years old, having been born in 1974.

3. The parties began dating in February 2008. They were married in August 2008 and separated on 6 June 2011. There was one child of the relationship, B, currently aged 3 years.   

4. The Mother is a Thai national and arrived in Melbourne in July 2007 on a student visa. She has since become an Australian citizen. She intends to remain living in Australia but with the ability to travel with the child to her country of origin from time to time. The parties lived in Melbourne for the duration of the relationship.  

5. On the Mother’s case, during the marriage, the Father’s mental health became increasingly more concerning, and he displayed various symptoms including paranoia and perceptual problems. As detailed below, while the Father was eventually diagnosed with paranoid schizophrenia in 2008, during his first admission to a mental health facility during the relationship, he made disclosures out of which the inference can be drawn that the Father had been suffering from the condition from as early as 2002.

6. As detailed in the Family Report of Ms A filed on 27 August 2012, the Mother initially found the Father to be ‘…a quiet and honest person who worked as a [warehouse worker] while studying [science].’ While they were still dating, the Mother began to notice the Father had, as she described, a “very hot temper” and would become irritated easily. However, the Mother noted that this behaviour did not deter her because from her background, women were expected to be “patient”.

7. Approximately a month after the parties were married, the Father began acting in a very strange manner. Concerned that there were recording devices in the parties’ bedroom, he would choose to write things on paper in lieu of speaking to the Mother while in the room.  

8. Though the Mother initially put the Father’s behaviour down to the stress of studying and working simultaneously, it soon became apparent to her that something was wrong with his perceptions and that he was becoming more and more paranoid. The Father’s presentation deteriorated rapidly. He became increasingly concerned that he was under surveillance by both strangers and persons known to him. He expressed the desire to move to his sister’s house in an attempt to escape from the surveillance, and when the parties moved into a block of units, the Father became increasingly suspicious of the other residents who he believed were talking about him and intended on invading his privacy. At the time, the Father also changed his internet provider to ensure, as he perceived it, that people were not able to download illegal material onto his personal computer. The Father also became increasingly paranoid that he was being followed while driving, which impaired his ability to operate a vehicle.

9. At the hearing on 14 June 2013, the Independent Children’s Lawyer tendered a bundle of subpoenaed documents which were marked Exhibit 3.  In the Mental Health Case Closure Summary of the C Mental Health Unit marked as “A6” of Exhibit 3, it is noted that the Father’s belief that he was under surveillance first began some five years before his presentation to the Unit in 2008 when he had ‘…looked up some pornographic web sites, specifically about consensual incest as a means of understanding the experiences of his French girlfriend at the time.’ As a result, the Father ‘…became aware that he was under surveillance from his [then] partner’s brother … and this soon generalized to police, unions and other unknown people. They watch him in the streets in unmarked cars, take photos of him and bug his phone calls.’ The Father then explained that for this reason, he had moved to Victoria from Queensland. However, the surveillance did not cease, according to the Father.

10. The Father attended Hospital D on 28 September 2008. He presented in a distressed state and was experiencing “auditory hallucinations” of a paranoid nature. The Father was provided with medication and was linked in with the Crisis Assessment and Treatment Team. The Father, however, resisted further intervention, believing that he was cured. He did not continue to take his prescribed medication.

11. As outlined at page 3 of Ms A’s report, upon the Father’s return home, the Mother observed that while the Father’s behaviour was not violent, it was ‘… erratic, irrational, aggressive in mood and manner and unpredictable.’ The Father’s behaviour became increasingly more concerning and on 3 October 2008, an Involuntary Treatment Order was issued in respect of the Father. Under the Order, he was admitted to an inpatient unit and remained there for two weeks.

12. In the subpoenaed document dated 3 October 2008 and titled “Clinical Risk Screening and Management Assessment Tool” which is marked “A139” of Exhibit 3, it is noted that the Father was ‘…incorporating the Wife into paranoid persecutory ideas. Wrote disordered note to her speaking of knives and murder.’ In the section titled “Overall Level of Risk” of same, the Father was assessed as being at a high level and that he should be involuntarily admitted to a mental health facility the rationale for which being that he ‘…[p]resents risk to wife due to paranoid persecutory ideas.’

13. While at the inpatient unit the Father was diagnosed with paranoid schizophrenia. The Father, however, did not accept this diagnosis and ceased taking the medication he was prescribed once discharged from the unit.

14. Despite the Father’s attempts to conceal his mental illness, his behaviour became more and more concerning and he became increasingly paranoid. He believed the Mother to be a spy, and that she was poisoning his food.

15. Following the birth of the subject child in May 2010, the Father’s mental health deteriorated even further.

16. In February 2011, the Father became increasingly impatient and aggressive with the child when he cried, and got into a habit of “roughly” pulling the bottle out of the baby’s mouth in retaliation.  The Father had little patience when spending time with the child, and would become violent towards the Mother when she attempted to instruct him on how to deal with the child. The Mother also recounted an instance to Ms A where in April 2011, the Father slapped the child, who was nine months old at the time, in the face in retaliation to the child having playfully slapped the Father in the face. 

17. The Mother also recounted instances of the Father endangering the child. By way of example, she described his attempts to teach the child of two months the difference between “hot” and “cold”. The Father would do so by holding a boiled kettle in one hand and the child in the other and would then bring the kettle close enough to the child so that he could feel the heat; the Father would then state to the child that it was “hot”. In her affidavit filed 17 February 2012 the Mother described the Father dangling the child over a cliff edge at Mt Buffalo in November 2010, and then over a river in Tasmania in 2011. Both times the Mother described the Father to be laughing during the incident.

18. The Mother also noted that she was unable to leave the child in the supervision of the Father at the park as the Father would become distracted, go into his own world and forget to supervise the child.

19. The Father denied having a history of perceptual problems, and, in the expert opinion of Ms A, he ‘…tended to normalise his ‘past’ experiences.’ The Father described his marriage to the Mother as being “quite good actually”, despite having it’s occasional “ups and downs”, and considered that issues only arose in the marriage in the six months leading up to separation. The Father was of the view that following his discharge from the inpatient unit, there were no issues with his mental health. He denied that there had been any instances of domestic violence during the marriage.

1. The Mother travelled to Thailand with the child on two occasions before the parties separated on a final basis. On the second of these trips, the paternal grandmother telephoned the Mother many times requesting that she return for fear that the Father would commit suicide.    

2. As detailed at page 23 of Ms A’s report, the Mother’s decision to separate from the Father was borne out of an incident in which she miscarried on 17 May 2011, and the Father attended the hospital and ‘…accused [the Mother] of playing a game and demanded that she discharge herself and then demanded to leave with [the child] and roughly put him in the pram.’ The Mother became distressed and fearful at the prospect of leaving the child in the Father’s sole care. The Father became frustrated when the child began crying and ended up leaving the Mother to care for the child while in the emergency room and in a great deal of pain. The Mother’s version is corroborated by the Progress Notes from Hospital E dated 18 Mary 2011 which are marked as “B21” of Exhibit 3.  Upon the Mother’s release from hospital, she discovered that the Father believed that the Mother had secretly had an abortion.

3. The Father moved out of the former matrimonial home on 6 June 2011. However, he would continue to attend the home, often very late at night, asking to use the shower or sleep over. The Mother suspected that the Father was living in his car at the time.

4. The Mother travelled to Thailand with the child on 9 July 2011 and stayed there for a period of three weeks. On 1 August 2011, as arranged, the Father attended the airport to collect the Mother and child. When he arrived, the Father presented the Mother with a form to change the child’s surname to that of the Mother. The Mother later found out that the Father wanted to change the child’s identity as he was afraid someone was attempting to kidnap him. 

5. On 18 August 2011, an incident occurred at Flinders Street Station when the parties were en route to the Melbourne Arts Centre with the child. In her interview with Ms A, the Mother noted that she attended what was supposed to be an outing of the Father and child as she feared leaving the child alone in the Father’s care. Following an argument, the Father lifted the child out of the pram and proceeded to walk off quickly with the child, leaving the Mother behind with the pram. The Mother soon became unable to find the Father and alerted a railway officer that her child had been taken.  Security soon found the Father and an altercation ensued in which both the Father and child were sprayed with capsicum spray. Following this incident, a Summary Incident Report was prepared by the Victoria Police and the Victoria Police applied for an Intervention Order. These documents are contained in the subpoenaed material from the Victoria Police, marked as “D2” of Exhibit 3. 

6. The child’s name was placed on the All Ports Watch List on 26 September 2011 at the instigation of the Father, and on 4 October 2011, the Mother relocated with the child to Brisbane. At paragraph 61 of the Mother’s affidavit of 7 February 2012, she stated that she did so because she was ‘…too afraid to stay in Melbourne as [the Father’s] behaviour was too unpredictable.’

7. From 24 November 2012, the Father attended the Mother’s cousin’s residence in Brisbane, where the Mother and child were living, four times. Each time the Mother contacted the police.  

8. The Mother and child currently remain living in Brisbane. The Mother intends on remaining in Australia permanently and travelling to Thailand periodically to visit her family. As at the date of the Family Report, the Father had not had any recent contact with the child and the Mother had refused to disclose her address to him.

9. The Mother has remained in contact with the Father’s family. The Mother and child visit the paternal grandparents and aunt and the Mother has telephone contact as well with them approximately four times a week.

Statutory Framework 

1. In the handwritten orders sought by the Mother, tendered at trial by the Independent Children’s Lawyer and marked as Exhibit 2, the Mother seeks parenting orders namely, sole parental responsibility for the child; that the child live with the Mother; and that any contact between the Father and child be conditional upon the Father seeking appropriate treatment for his mental health issues. The  Mother also seeks that the Father be restrained by injunction from being within 200 metres of the Mother, that the child’s name be removed from the Airport Watch List and that the Mother be permitted to travel overseas with the child. The Mother made it clear at trial that she intended on permanently remaining in Australia, and travelling to Thailand for holidays.  

2. The Independent Children’s Lawyer supports the orders proposed by the Mother.

3. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

4. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

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

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

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

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

5. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

6. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

7. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. (s61DA(4) of the Act).

8. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents.[2]

s 60CC(2)(a) “primary consideration” – the benefit of the child having a meaningful relationship with both of the child’s parents

[2] Section 65DAA.

1. In the circumstances of this case, while the Father continues to refuse professional help or treatment in relation to his mental illness, it cannot be concluded that the child would benefit from having a meaningful relationship with the Father.

2. The circumstances include the Father’s history of paranoid, erratic and, at times, aggressive behaviour detailed above. His aggression has been directed at the Mother, and importantly, the child, when the Father has become agitated or frustrated while attempting to care for the child. Notably, much of the Father’s interaction with the child detailed above displays an inability to appropriately interact with the child.

3. As was emphasised at the hearing, as a result of the Father’s resistance to attend psychiatric assessments ordered by the Court, the most recent psychiatric report in relation to the Father is that of Dr F dated 16 February 2012. This report forms part of Exhibit 3 and is marked “F1”. In this report, Dr F states that the Father has suffered from schizophrenia and that it is likely he has suffered from relapses as a result of the separation from the Mother. He noted also that the Father was not willing to accept that he had suffered from a psychotic illness such as schizophrenia in the past, nor would the Father believe that he required antipsychotic medication. The Father denied having psychotic symptoms.

4. As noted by Ms A, when the Father found himself in a situation with which he did not agree – that being when his time with the child was up for the purposes of the interview – the Father’s demeanour changed and the child ‘…appeared uncomfortable…’ and sought for the Father to put him down. The report writer observed that ‘...[t]he father was unable to correct his demeanour so as to create a pleasant atmosphere and engage [the child] in a way as to leave him with a positive impression.’ This is but one of the many examples of the Father’s mental illness impeding the child’s ability to benefit from a meaningful relationship with his father.

5. In circumstances where I have found that the Father’s mental illness impedes the child’s ability to benefit from a meaningful relationship with his Father, and where the Father is unwilling to either undergo psychiatric assessment or accept ongoing treatment for this condition, it cannot be concluded that it would be possible for the Father to establish and maintain a meaningful relationship with the child or that such a relationship could be maintained.   

s 60CC(2)(b) “primary consideration” – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There is, on the evidence before me, which I accept, evidence of abuse or family violence within the meaning of the Act (s 60CC(2)(b) and s 60CC(3)(j)).

2. Ms A has reported the Mother’s account of the occasion on which the Father slapped the child in the face, and “roughly” tore the bottle from the child’s mouth when the child was crying during feeding sessions. This incident in particular caused the Mother to cease allowing the Father to feed the child for fear of him losing his temper and harming the child.

3. The report writer also detailed the Mother’s fear of leaving the child alone in the Father’s care both before and after the incident at Flinders Street Station where the Father recklessly endangered the child.

4. Ms A also referred to the Mother’s account of the Father’s threats over the telephone to ‘…kick [her] head or punch [her] head…’ if she were to attend Christmas with the paternal grandparents, as invited by them.  This occurred after separation when the Mother had moved to Brisbane.

5. The expert opinion of Ms A is that:

   …[in light of] the issues and incidents [which] have been reported [by the Mother] with respect to the father’s parenting capacity, which has at times placed the [the child] in situations of potential serious risk of harm and at other times caused [the child] unnecessary heightened distress…contact arrangements should be approached with caution.

   As a result of this risk, Ms A states that any unsupervised contact between the Father and child should be conditional upon the Father ‘…engaging regularly with a mental health practitioner and demonstrating treatment compliance…’

6. I accept Ms A’s opinions despite the difficulty which the Court is faced with in doing so as a result of the Father’s non-participation in the proceedings. 

7. The evidence of the Mother is uncontested in relation to the risk to which the child is subject while in the presence of the Father. Further, as detailed in Exhibit 3, the Father’s past history of mental illness extends back to at least 2002. In the absence of any material to the contrary and in light of the Father’s resistance to being psychiatrically assessed, I draw the inference that he continues to suffer from paranoid schizophrenia, the result of which is that contact between the child and Father would place the child at risk of harm. I find that there is a need to protect the child from this risk.    

Nature of the child’s relationships – s 60CC(3)(b)

1. On the evidence before me, and particularly the expert evidence of Ms A which I accept, the Mother and child share a close relationship while the relationship between the Father and child is limited.

2. At paragraph 117 of her report, Ms A comments that:

   … [The child] appeared to be a happy child with a strong and loving bond to his mother. Unfortunately he did not appear to have any bond with his father. He did not appear to recognise him as a ‘significant other.’ While I acknowledge the complete absence of contact over the past nine months and how that could contribute to the bonding process with a child of [the child’s] age, I have to say that I was left wondering as to the quality of [the child’s] time with his father and the otherwise bonding process that preceded the period of no contact.

3. In light of the evidence before me, I accept the above opinion of Ms A as indicative of the nature of the child’s relationship with each the Mother and the Father.  

Likely effect of any changes – s 60CC(3)(d)

1. The child has just turned three and it is uncontested that for the duration of his life he has lived in the primary care of the Mother. The natural consequence of this is that the child has a strong, primary attachment to his Mother. This was confirmed by the expert opinion of Ms A. Particularly, I refer to Ms A’s observation at paragraph 119 of her report in which she states:

   …He [the child] was happy, relaxed and responded well to his mother. He showed some signs of separation anxiety when the mother initially needed to leave him to attend for her interview but he settled well after feeling confident of her return on several occasions.

2. The evidence that, as at the time of the Family Report the child did not so much as recognise the Father as a “significant other”, satisfies me that any change in the care arrangements would have a significant and dramatic impact on the child’s life. This, coupled with the Father’s refusal to accept that he either does suffer or has in the past suffered from paranoid schizophrenia, despite a formal diagnosis of the condition, leaves me more than satisfied that a change in circumstances would be completely contrary to the child’s best interests.

3. Given that the Mother has been the primary carer for the duration of the child’s life and the Father has not spent significant time with the child since the Mother and child moved to Brisbane in early 2012, the orders sought by the Mother will not result in any change to the child’s current circumstances. 

The practicality of the child spending time with the a parent – s 60CC(3)(e)

1. As at trial, the Mother was in Brisbane and the Father was living in Town G, Victoria.

2. The Mother has expressed her intention to remain living in Australia and more specifically, Brisbane.

3. As recommended by Ms A at page 23 of her report, in light of this distance, a ‘…supervised arrangement at a contact centre in Brisbane is recommended.’

4. Of course that recommendation was made when the Father was actively participating in these proceedings and was pursuing parenting orders. That is no longer the case.

The capacity of each parent to provide for the child’s needs – s 60CC(3)(f)

1. This consideration in respect of the Father has already been dealt with above. However, in addition to that, and in support of my finding that the Father has a limited capacity to provide for the child’s needs, I refer to Ms A’s comments that the Father ‘…presented as unaccustomed to engaging with a child…’ and that ‘…[h]e did not adjust his vocal quality and seemed unable to use play as a form of communication and learning…’ Ms A also observed the Father commenting to the child that the female doll with which they were playing was ‘…not very sexy…’ These comments, in conjunction with the earlier stated evidence, indicate that the Father is unable to provide for the child’s emotional needs.

2. There is no evidence before me to suggest that the Mother, as the primary caregiver of the child for the duration of his life, has displayed anything but a capacity to care for the needs of the child.

Attitude to the child and to responsibilities of parenthood – s 60CC(3)(i)

1. The Father, as detailed above, during the time the parties were together and following separation, has displayed a poor attitude towards the responsibilities of parenthood most likely as a consequence of his mental illness. In support of this, I draw upon the instances detailed above in which the Father lost patience with the child and became frustrated and aggressive. As a result of this, the Mother did not allow the Father to feed the child anymore. I also rely on the Father’s attempts to teach the child “hot” and “cold” as detailed above.

2. As indicated by the Mother in her evidence, the Father has displayed a very limited attitude, lacking in insight when dealing with the child. In support of this I draw upon the instance in which the Father slapped the child on the face in apparent retaliation of the child doing the same.

3. In respect of the Father’s attitude towards being a parent and the support of the Mother as a parent, I rely on the evidence of the Mother in which she described to Ms A instances where, shortly following the birth of the child by caesarean section, the Father would refuse to drive the Mother to the shops to purchase household items. The Father informed the Mother that it was her fault that she could not drive. Consequently, the Mother was left with no other option but to walk the 40 minute round trip to the shops. On this point I also note the Mother’s comments to the report writer that the Father would criticise the Mother, telling her she was “handicapped”, a “burden” and “useless”.  

4. In light of the evidence that is before me, and in the absence of any evidence to the contrary, the Mother has shown a positive and mature attitude to the child and to the responsibilities of motherhood.  

Family violence – s 60CC(3)(j)

1. As detailed above, in summary, I am satisfied that there is evidence of abuse or family violence within the meaning of the Act (s 60CC(2)(b) and s 60CC(3)(j)) and that this risk is ongoing while the Father’s mental health issues remain unaddressed.

Balancing s 60CC considerations

1. Other specific considerations set out in s 60CC are absorbed within those specifically discussed and outlined above.

2. Given the findings made, and evidence referred to, relating to the Father’s mental health issues, unless and until the Father demonstrates that he has successfully addressed those issues no orders for time and communication can be contemplated.

3. As already noted, the Father has withdrawn from participation in parenting proceedings and no orders for time and communication are pursued by him. Thus, even the supervised time regime contemplated by Ms A is not in contemplation given the Father’s withdrawal.

4. In these circumstances it seems to me that rather than the Court simply making no orders for time and communication it is in the child’s best interests that the Court order affirmatively that there be no orders for time and communication with the Father.

1. If the Father ever accepts the reality of his mental health issues (which seems unlikely); and takes active positive steps to address those issues with expert medical assistance (which likewise seems unlikely); and demonstrates his willingness to comply with recommended medical treatment including taking medication; then the Father may be able to demonstrate a sufficient change in circumstances to justify an application to have a Court exercising jurisdiction under Part VII of the Act re-visiting the final orders now made.

Parental Responsibility

1. I am satisfied, having regard to my findings concerning family violence, that the presumption as to equal shared parental responsibility does not apply and that in any event, it would be contrary to the child’s best interests for his parents to have equal shared parental responsibility.

2. I find that there is no realistic prospect of the parties being able to consult each other with respect to major long-term decisions concerning the child’s welfare.

3. I am satisfied that it is in the child’s best interests that the Mother have sole parental responsibility.

4. I am therefore satisfied that the orders sought by the Mother meet the best interests of the child. I am fortified in that conclusion by the feature that the Independent Children’s Lawyer appointed to independently represent the child’s interests in these proceedings fully supports the making of orders as sought by the Mother. 

5. For these reasons I make the orders set out at the commencement.  

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 June 2013.

Associate: 

Date:  27 June 2013