OAKES & OAKES
[2014] FamCA 285
•2 May 2014
FAMILY COURT OF AUSTRALIA
| OAKES & OAKES | [2014] FamCA 285 |
| FAMILY LAW – CHILDREN – with whom a child spends time and with whom a child communicates – allegations of family violence - order that mother have sole parental responsibility and that father spend no time with the child and have no communication with the child. |
Family Law Act 1975 (Cth) ss 60CC (2), 60CC (2A), 60CC (3)
| APPLICANT: | Mr Oakes |
| RESPONDENT: | Ms Oakes |
INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
| FILE NUMBER: | MLC | 7723 | of | 2012 |
| DATE DELIVERED: | 2 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 26, 27 & 28 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Treyvaud |
| SOLICITOR FOR THE RESPONDENT: | Forte Lawyers |
| Mr Eidelson Legal Aid Victoria |
Orders
Previous Orders
All previous parenting orders in relation to J Oakes born … 2011 (“the child”) are discharged, including:-
a.The Order dated 24 July 2013 restraining the mother from removing the child from the Commonwealth of Australia.
b.The Order dated 24 July 2013 placing the child on the Airport Watch List. The child’s name is to be removed from the Airport Watch List as soon as is practicable.
c.A copy of this order be emailed, as soon as is practicable, to the Australian Federal Police Operations Co-Ordination Centre by the Melbourne Registry of the Family Court of Australia to request that the child’s name is removed from the Watch List noting that it may also be registered under the child’s birthday on … 2011 and or … 2011.
Parental Responsibility and Residence
Ms Oakes (“the mother”) have sole and exclusive parental responsibility in relation to the child including:-
a.The child J born … 2011 (who may have allocated on electronic records an incorrect date of birth namely … 2011) is permitted to travel internationally, and
b.The mother may apply for a passport for the child J born … 2011 without first obtaining the consent of Mr Oakes (“the father”) being the child’s father.
The child shall live with the mother.
Contact and Communication
The mother shall send one (1) photograph of the child to the father, once per year ; and
a.The father shall nominate an address in writing to the mother’s solicitor within twenty eight (28) days from the date of this order.
b.The mother will nominate an address in writing to the father within twenty eight (28) days from the date of this order; to which address the father can inform the mother of any change of his address.
Except as provided order 4 above, or as agreed in writing in advance between the father and mother, the father shall have no contact or communication with the child.
Injunctions
The father is restrained by injunction from having any communication with the child, including in person, by telephone, email, SMS, Skype or the like.
Each of the parties is restrained by injunction from speaking to the child or in the presence of or the hearing of the child in derogatory terms about the other party or members of the other parties’ family.
For the personal protection of the child and the mother the father is restrained by injunction from directly or indirectly;
(a)Approaching or remaining within one (100) hundred metres of the child and/or the mother;
(b)Approaching or remaining within one (100) hundred metres of the home in which the child and/or the mother lives or may be staying from time to time.
(c)Approaching or remaining within one (100) hundred metres of the child’s day care centre, kindergarten and/or school;
(d)Approaching or remaining within one (100) hundred metres of any function in which the mother and/or the child are attending or any venue they attend and if the father sees the mother and/or the child he shall forthwith remove himself from that venue or event;
(e)Abusing, assaulting, belittling or otherwise denigrating other members of the other member’s family via social media or any other electronic means or otherwise.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these parenting orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Procedural
Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Within twenty one (21) days from the date of these orders the Independent Children's Lawyer shall forward a copy of these reasons to the Officer in charge of the B Contact Service together with a copy of these orders.
All other extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation (other than costs applications – which are to be made in accordance with the Family Law Rules 2004 (Cth)).
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakes & Oakes 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 HOBART |
FILE NUMBER: MLC7723/2012
| Mr Oakes |
Applicant
And
| Ms Oakes |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Mr Oakes (“the father”) is an angry man. He has been angry most of his life and he has little or no insight into the pervasiveness, regularity and impact of his anger on others in general and the mother in particular.
Ms Oakes (“the mother”) was in a relationship or married to the father for close to a decade. She was subjected to the father’s anger in terms of verbal, emotional and physical abuse. She was humiliated by and scared of the violence and remains fearful of the father.
The child J (“the child”) was born in 2011. During her pregnancy the mother had been pushed to the ground and kicked in the thighs. At or around the time of the birth of the child the father’s anger and out of control behaviour was evident to the mother, her friend and members of the mother’s family.
On or about 5 or 6 October 2011 the mother separated from the father to protect herself and the child from the father’s behaviour.
The father has not yet adequately dealt with his anger and with his dismay at the failure of his relationship with the mother. When the parties separated in late 2011 the mother endeavoured to put in place safe arrangements for the child to spend time with her father. Consequently, the father spent time with the child, supervised by the mother and the child’s paternal grandmother, from late 2011 until June or July 2012.
Sadly, the father’s uncontained abhorrent behaviour continued. An endeavour was made to arrange for the father to spend supervised time with the child without the mother being present. That arrangement failed, albeit the conflict was inter family.
Endeavours were also made for the father to see the child with supervision provided by the child’s maternal grandfather and his wife. That process took place over a few months and it eventually failed.
In early 2013, arrangements were made for the child to spend time with her father at a Children’s Contact Service. Even in that venue, the father could not contain his angry and abusive behaviour. He breached the Children’s Contact Service arrangements to keep the parties apart. He demeaned and belittled the mother and her parenting in the presence of the supervisors and at times the child. On the final supervised visit the father made clear and unambiguous threats to kill the mother.
In addition, the father failed to contain his behaviour in the precincts of the Court.
In November 2012, in the precincts of the Court, he verbally abused and was aggressive to Ms T, the wife of the child’s maternal grandfather.
In 2013 a family report was ordered. Appointments were made for interviews with a Family Consultant on 14 May 2013 in the precincts of the Family Court Registry in Melbourne. The Family Consultant observed each of the parents with the child separately and then interviewed the parents and other important people in the lives of the child. As the interviews were coming to an end the father discovered that the mother and child were present in his vicinity (the Family Consultant had asked them to remain in what she thought was a safe place). The father sought to talk with the mother and the mother refused that approach. The father then asked to see the child, which request was accommodated. However, the child and then the mother became upset and the father became angry, aggressive and agitated. He behaved in an aggressive and threatening manner to the mother and to the child’s maternal grandfather. The end of this confrontation was observed by the Family Consultant, who became concerned, and as a result she intervened and asked that the father to leave.
The father denied that he is or was a violent and aggressive person. He describes himself as a decent and loyal person. As I have found in these reasons his evidence is tailored to meet the facts he asserts and at times he avoids important detail.
In terms of the physical violence the father denies that the physical violence asserted by and on behalf of the mother has ever happened. This denial is made despite the admissions he made about some aspects of it at the A Hospital and confirmation of some of those admissions by his mother to staff at that hospital.
In denying his anger the father sought to explain his behaviour as normal or in response to violence to him by the mother. He relies on the absence of intervention orders and police involvement as being indicative of his ‘innocence’.
There is clear and objective evidence that the father is the violent, abusive and angry man as claimed by the mother. The father has no insight or no admitted insight into this behaviour.
It has been recommended to the father that he undertake effective therapy to treat and manage his abhorrent behaviour. He has declined to do so in any meaningful way and has prevaricated in terms of this history in that respect.
The father’s family, including his mother, are aware of his violent disposition. The mother sought support from her mother-in-law to assist her in terms of the father’s behaviour. This did not bring about any effective intervention, except that the mother no longer trusts the paternal grandmother. This was despite some level of trust early after separation. The father’s family have ‘circled the wagons’ to protect him and in doing so have left the mother and child exposed to risk through the father’s violent behaviour.
As I said earlier, the mother is afraid of the father in terms of herself and for the child; given the father’s extensive history of controlling and abusive behaviour, I find that her fears are well founded.
The above preface to these reasons was not written as the starting point of these reasons. It was written at the conclusion and after consideration and reflection of the evidence and submissions. With the aid of technology, this conclusion has migrated from the end to the beginning.
The orders sought by the parties and the Independent Children's Lawyer
In this parenting application the father was nominated by order of a court as the applicant and the mother was nominated as the respondent. There is a dispute as to parental orders and arrangements for the child.
An Independent Children’s Lawyer was appointed and was active in these proceedings.
The father was legally represented earlier in the proceedings but for some time he has been self-represented. The consequence of this circumstance was that he had difficulties, from time to time, managing the court processes, although assistance was offered as much as could reasonably be provided. I have had regard to that circumstance when weighing the evidence and determining the issues.
The father sought orders as set out in a document prepared by or for him,[1] namely:-
[1] Exhibit F1.
a)The child (and presumably the mother) return from Queensland and live in the Melbourne area;
b)There be “50/50 custody”. The father had some difficulty explaining what he meant by this. As far as I could discern the equal time aspect related to residence and was aspirational, that is, something that could be built up over the years (bearing in mind that the child was aged about two and a half at the time of the hearing);
c)The father also sought equal shared parental responsibility. In his earlier application he had agreed that the mother have sole parental responsibility for the child. As a consequence, I took his application to mean that he was now seeking equal parental responsibility and I made a determination in that regard.
d)To spend time with the child each second weekend from Friday afternoon to 5.00pm Sunday, alternating Christmas Days, alternating Easters, the child’s birthday, the father’s birthday, Father’s Day and telephone calls once per week;
e)To have dinner every Wednesday night with the mother, father and family/friends;
f)That passport be permitted for the child as the mother’s family live in the United States of America.
g)After the mother returns to Melbourne, that any interstate trip be on the basis that the mother provide him with documentation and detail regarding flights, accommodation and the like;
h)Copies of the child’s Kindergarten photos and engagement in school and extracurricular activities;
i)Participation in naming day, including the choice of God Parents;
j)That he be provided with a Medicare card with the child’s name on it and a copy of her birth certificate;
k)The mother enrols in a Drug and Alcohol course;
l)The mother enrol in a parenting course;
m)The mother performs supervised drug screening until a date to be determined;
n)The parties to be able to make informal agreements.
The mother sought orders that:-
a)She has sole parental responsibility for the child (including the authority to solely consent to the issue of a passport for the child and for the child to travel overseas);
b)The child lives with her and spends no time with the father.
c)That the child has no communication with the father, except by way of a photograph once per year. At an earlier date she had sought there be orders that the father be permitted to send letters, cards or photographs on five occasions each year and each of the parties to keep the other informed as to relevant addresses for that purpose and that the mother supervise that material. Given the evidence (as she and those who advised her saw it), the mother drew back from that earlier position.
d)The child’s name be removed from the Airport Watch List and the Australian Federal Police be notified of that circumstance; and
e)Injunctions be put in place for the protection of the child and restraining:-
i)Either party from making derogatory remarks about the child to other members of the family (I have restricted this to restrain them in the presence or hearing of the child).
ii)The father from spending time with the child and approaching within one hundred metres from the child and the mother in specific circumstances.
The Independent Children's Lawyer sought orders in the same terms as the mother.
ISSUES
There was no issue that the child should continue to live with the mother. The father complained that the mother had used cannabis during her pregnancy and believes that she continues with her illicit drug use and was violent to him. He asserted this was not on the basis that the child should not live with the mother, but that his involvement in the life of the child would be protective of the child against the mother’s alleged drug use and violence.
The mother sought orders that she be permitted to send a photograph of the child to the father. That aspect of her application was uncontroversial, although it was not what the father considered in any way adequate in terms of the child’s relationship with him.
Accordingly, there was no issue that at least in the short to medium term, that the child should continue to live in the primary care of the mother.
The primary issues remaining to be determined in the context of the facts and the best interests of the child were:-
a)Whether the mother should be required to relocate from Queensland to Melbourne, as sought by the father.
b)Whether the child should communicate, live with and/or spend time with the father.
c)If there should be time and/or communication, how should it occur in practical terms and what time and what communication?
d)Whether the mother and father should share equally, parental responsibility.
e)Whether the child should be permitted to have a passport (obtained and held by the mother) and travel overseas, from time to time without the permission of the Court or the father. Alternatively, whether the child should be prevented from obtaining a passport, traveling overseas (without the father’s permission or that of a court) and whether the child’s name should or should not remain on the Airport Watch List.
f)Whether the father should be restrained from approaching the mother and child in terms of the orders sought by the mother or similar
g)Whether the parties’ application for mutual non-denigration orders ought to be made?
h)Whether the mother should be required to enrol in a drug and alcohol course and in a parenting course?
i)Whether the mother should be required to continue to undertake ongoing drug screening until a date to be determined, presumably by me.
BACKGROUND
The father was aged 39 years at the date of hearing. He is a self-employed personal services provider who claims that he is not presently in paid employment. He lives in Victoria.
The mother is aged 33 and is not in paid employment. She currently resides in South East Queensland with her father and his wife.
The parties commenced cohabitation in about 2003 and married in April 2004. They lived primarily in Victoria.
Shortly after the parties were married they travelled overseas for a honeymoon. The father suffered an electric shock whilst in that country and required hospitalisation. He has suffered health difficulties since that time and experiences depression, post-traumatic stress disorder and at times feels depressed and worthless.
The father was a regular user of cannabis up to the time of separation. He says that he has not used cannabis since late 2011. The mother challenged that assertion of fact.
The mother alleges that the father has subjected her to a long history of verbal, physical and emotional abuse. The father denies or minimises any violence or abuse to the mother.
The mother admits that she was a regular user of cannabis up until the time she fell pregnant with the child. The mother says that she has not used cannabis since very early 2011. The father has challenged that assertion of fact.
The child was born in late 2011. The mother has always been and continues to be the primary carer of and for the child.
The parties separated on about 5 October 2011, which was shortly after the child’s birth.
The father suffered a significant mental health event following the relationship breakdown and was involuntarily admitted to a hospital, the detail of which I make reference about later in these reasons.
After separation the parties managed supervised time between the child and father. The mother was always present and had the assistance of the paternal grandmother. That arrangement broke down in mid 2012.
In August 2012 an attempt was made for the child to spend time with the father, which was supervised by the child’s maternal grandmother at a McDonalds Restaurant. That experiment was a failure.
After that time the child saw the father and it was supervised by the maternal grandfather. The father said the arrangement worked well the maternal grandfather said it did not. In any event that arrangement broke down.
In late 2012 or early 2013 the child’s maternal grandmother and her partner, moved their residence from Australia to live in the United States of America.
In about January 2013 the mother and child relocated to South East Queensland and commenced living in the home of the maternal grandfather and his wife. The mother and child continue to live at their home. That was a unilateral decision of the mother without prior notice to the father and without his consent. There was an issue as to when he was informed that it had taken place. The father made no application for the return of the child to Melbourne, in circumstances where he had legal representation during that period of time.
During 2013 the father entered into another relationship, which he described in various ways. That relationship no longer continues.
In early 2013 the father commenced spending supervised time with the child in Melbourne at a Children’s Contact Service. That arrangement continued until mid April 2014 when it broke down. There were difficulties noted by the workers at the Children’s Contact Service.
The child has not spent any meaningful time with the father since mid April 2013. Although, at the interviews with the Family Consultant in May 2013, the father spent limited supervised time with the child.
A family report was obtained and the Family Consultant observed what she regarded as uncontained behaviour of the father in May 2013, which I have discussed elsewhere in these reasons.
Psychiatrist, Dr D, was appointed as a single expert and he examined and reported on the mental health of the mother and the father. Dr D provided to the court a written psychiatric assessment of the parties.
As the father was not legally represented I endeavoured to keep him informed of the Court processes during the hearing. On 25 March 2014, when the matter was listed before me for mention, to confirm the hearing the following day, I confirmed with the father that he had copies of all the affidavit material and that he understood that he could give oral evidence.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE LAW AS TO PARENTING
When determining orders the approach is governed by Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings were commenced after the 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do apply to these proceedings, and the provisions in force immediately before that date do not apply.
EVIDENCE
When the evidence of the father and the paternal grandmother was completed the father sought to rely on the statutory declarations of eight witnesses, who were apparently not available for cross-examination. Three of those witnesses were children under the age of eighteen, one as young as thirteen. No notice was given in relation to these statutory declarations. There had been directions made on a number of occasions requiring the father to file and serve affidavits upon which he relied. The father did not file and serve the statutory declarations. He did not provide advance notice of this material to the mother or to the Independent Children's Lawyer. Objection was taken to the father relying upon that material. The evidence of those children should not have been admitted. The balance of the material was rejected given the history of this matter and the father’s failure to have the documents served at some earlier date and have witnesses available for cross-examination.
The father had annexed part of his diary to an affidavit. He sought to tender the remainder of his diary. No notice was given in that respect and objection was taken to the admission of that material. The tender of the diary was, at the end of the father’s case, declined.
The father sought to have the Court read some two hundred and twenty text messages on an old mobile telephone. He had not provided details of those messages in his evidence or in advance notice to either the Independent Children’s Lawyer or the mother’s lawyer. The father was asked to make the telephone available to the Independent Children’s Lawyer. He gave the Independent Children's Lawyer the telephone but did not provide the information necessary for the telephone to be unlocked and the messages read. There was no reason why that material could not have been copied and provided before the father’s cross-examination. After cross-examination it would not have been fair. The tender of that material was refused.
The Family Consultant
Ms R is a Regulation 7 Family Consultant who prepared a report for the Court dated 3 June 2013. That report was admitted into evidence.[2] She gave evidence at the commencement of the hearing but it was made clear that if either party or the Independent Children's Lawyer wanted to ask her further questions at the end of the hearing, that the consultant was available and that such permission would be given.
[2] Exhibit ‘ICL1’ - Family Report dated 3 June 2013.
No serious challenge was made to the qualifications of Ms R (“the Family Consultant”). She is a highly experienced family consultant having worked with the Court from 1984 to 2008. She gave evidence in terms of her report and was cross-examined by the father, the Independent Children’s Lawyer and counsel for the mother. In her evidence she was not materially shaken in cross-examination. She was careful and thorough.
The Family Consultant was challenged in relation to the accuracy of her evidence about an event that occurred on 14 May 2013 when she was conducting interviews with the parties in the precincts of the Family Court in Melbourne. As she was concluding the interviews, she observed an incident between the father and the child’s maternal grandfather in the Family Court. She said:-[3]
32.Towards the end of the report interviews, there was an incident between [the maternal grandfather] and [the father] when [the father] confronted [the maternal grandfather] in a loud and abusive manner. When the family consultant intervened, [the father] expressed loud and strong frustration with [the maternal grandfather], [the mother] and the ‘system’ in general. He required very firm management and seemed close to losing control. Both [the mother] and [the maternal grandfather] were visibly shaken by this incident and unfortunately, it confirmed their (and the family consultant’s) anxieties about the father.
[3] Ibid - paragraph 32.
The Family Consultant observed that the father was endeavouring to speak to the mother despite her clear message to him that she did not wish to engage in communication. She said that the father was determined to do so despite the mother’s wishes to the contrary. The Family Consultant said the father had little insight into his behaviour. She said that the maternal grandfather and mother were visibly shaken by the events on that day but the father either did not notice, or chose not to notice, or had little concern about it.
The Family Consultant said the father is an angry person and reported to her that he felt ‘the system’ was against fathers and men and was focused on the allegations made by the mother. He tended to blame the mother for his problems.
The father disputed that part of the evidence of the Family Consultant and gave a much sanitised version. Having heard and assessed the evidence of the Family Consultant, the mother, the father, the maternal grandfather and the paternal grandmother, I prefer the evidence of the Family Consultant, the mother and the maternal grandfather. This was an aggressive and threatening outburst by the father which frightened the mother and the maternal grandfather and in which the father was approaching loss of control.
In her evaluation of the father, the Family Consultant concluded:-[4]
[4] Ibid.
77.The father was assessed as being very troubled, unpredictable and potentially explosive towards the mother and her family, even in a secure environment. The family consultant considered that the father needed to continue his attendance at counselling in the hope that it might be helpful to him.
…
79.Unfortunately, even a well structured contact centre, with its various security features has not deterred the father from acting inappropriately with [the child] and it is difficult to see how any time with him would be positive for her.
80.Despite the fact that she has spent supervised time with her father on a number of occasions, she continues to indicate her insecurity and discomfort around him and she needs the reassurance of other adults, even a stranger.
81.The father’s persistent negative feelings and comments towards the mother combined with the tense atmosphere [the child] has experienced whenever her parents meet or are in close proximity, would have negatively influenced her.
82.[The child] has continued to indicate her consistent reluctance to spend time with her father in contrast to her seeming ability to attach herself easily to people she does not know well (as evidenced by her ease in the playroom situation).
83.The family consultant considered that [the child]’s emotional welfare would be at significant risk if she was to spend time with her father in his current state. The potential risk to [the mother] also presents significant physical and emotional risk to [the child]’s future.
The Family Consultant recommended that the mother have sole parental responsibility for the child and that the child live with her. In addition she recommended that there be no orders enabling the father to spend time with the child apart from the limited contact in the mother’s application.
The Family Consultant recommended that the father continue counselling in relation to his ‘anger issues’ and the marriage breakdown. The father has not taken any meaningful steps in that regard since 2012.
The Family Consultant was concerned that the father’s behaviour was poor at a time when his behaviour should be at its best, such as in a controlled environment with her as the Family Consultant. The Family Consultant said, and I accept, that the mother was physically anxious as a consequence of the father’s behaviour and that, in the circumstances; the mother was justified in that reaction.
The father’s evidence in respect of why he behaved that way was obtuse and I am satisfied that he does not see his behaviour as a problem.
The child’s emotional welfare was, according to the Family Consultant, at risk with the sort of behaviour the father was exhibiting and she recommended that the father needed to have professional assessment and treatment to manage his present emotional and psychological well-being.
Given my assessment of all of the evidence including that of the Family Consultant, including having seen and heard the father give evidence, I am satisfied that the evaluations of the father by the Family Consultant are accurate and well founded. I accept the evidence of the Family Consultant and I have treated her evidence as being reliable.
The father
The father relied upon three affidavits, namely those filed by him on 15 October 2012, 28 June 2013 and 7 March 2014. That material was read into evidence, subject to weight. I gave leave to the father to give oral evidence.
The father sought to tender a number of his early photographs of the child. The purpose of that tender was to show that the child was happy and saw him on a number of days in the first half of 2012. I accepted that the photographs depict the father in happy times with the then infant child. Rather than run the risk of those valuable personally important photographs being mislaid and being lost to the father, I made notes of the dates and confirmed that the child appeared happy with him in those photographs.
The father’s evidence of the incident at Court involving the Family Consultant was of similar circumstances but he painted the event in a different light; it appeared that he was ‘sanitising’ his evidence to avoid or evade the reality of that high conflict and confrontational encounter. He denied the assertions of anger and aggression. He was not responsive to questions about that event, and having considered the father’s evidence, that of his mother, the maternal grandfather, the mother and the Family Consultant, I do not accept that the father’s evidence as to what happened at that time was reliable.
Generally when the father was asked questions he would often respond with accusatory questions or he would be non-responsive in his answers. On many occasions the father did not answer the question but simply made a speech. I informed the father of my concerns about this approach on a number of occasions, however, despite that warning the father continued with that approach.
The father gave evidence in respect of his former partner, Ms M. He said that it was only a passing relationship as she was younger than he. The father said the only reason she was interviewed for the Family Report was because they were on a date that day and he bought her along to save her travelling. That is different to what he told others including his plans to marry her and what he said to the Family Consultant. The father’s evidence about this relationship was unreliable. This evidence of the father was reconstructed to assist him in this case.
The father was cross-examined and challenged in relation to the allegations of violence to the mother. He generally denied or minimised any alleged violence and claimed it was the mother who was violent and abusive to him. He admitted to some verbal abuse and denied he exhibited any road rage.
The father said he was not aware that the mother had, in January 2013, moved the primary residence of the child and herself to Queensland. He said he first became aware of that change in April 2013. It was put to the father that he was aware of that move to Queensland in January 2013 and he denied that assertion. The denial and the father’s evidence were inconsistent with the statement he made to the staff at Children’s Contact Service as to that change of residence.[5] The father was not frank with the Court. I do not accept his evidence that he did not know the mother had moved to Queensland.
[5] Affidavit of Ms Y filed 28 August 2013 – visit 17 January 2013 pages -16 of 22
The father asserted he did not know why there was an escalation of supervision of his time with the child. I do not believe him. He did not accept the relationship breakdown and attempted to persuade reconciliation with the mother during supervised time from late 2011 to mid 2012, despite the mother’s objections. Such was his persistence that the mother was no longer willing to supervise time for the then very young child.
The father was cross-examined in relation to the events that occurred at the Children’s Contact Service and was non-responsive in his answers or obfuscated. He would answer with broad statements and would deflect the question or would provide no effective answers.
The father was not a reliable witness. Some important parts of his evidence was reconstructed, such as that relating to his former girlfriend, the events on 14 May 2013, his attempted explanation about the threats he made to kill the mother, stopping and approaching her as she went to a supervised contact visit and his explanations as to the claims of domestic violence. His evidence was replete with prevarication, obfuscation and avoidance.
His evidence is unreliable.
The paternal grandmother, Mrs L
Mrs L is the father’s mother (the child’s “paternal grandmother”). She gave evidence in terms of her affidavit sworn 10 July 2013 and filed 12 July 2013. That affidavit was prepared with the assistance of the father’s then legal practitioner.
Her evidence was that the father has lived with her since he was discharged from the A Hospital in November 2011. Her evidence was strongly aligned with and was supportive of the father. She was at times critical of the mother.
The paternal grandmother asserted that the mother had been smoking cannabis in the July 2011 before the child was born, but not during the mother’s pregnancy with the child. This was contrary to the evidence of the mother.
The paternal grandmother gave evidence of the mother’s alleged use of cannabis after separation in early November 2011. She said that the mother threatened to stab the father and had called him a ‘freak’. Her oral evidence was that the mother drove away with the child in the car at high speed.
The paternal grandmother gave evidence of the incident at McDonalds in the later part of 2012 and endeavoured to lay the blame for that difficult circumstance at the feet of the mother’s family. All the adults at that time ought to have taken responsibility for the conflict.
In terms of the visits between late 2011 and mid 2012 the paternal grandmother says that they went reasonably well and that she was struggling with the reasons why the relationship had broken down.
As to events on 14 May 2013 in the precincts of the Family Court, when the Family Report was being prepared, the paternal grandmother gave a very innocuous explanation of what happened. I do not accept her sanitised evidence of that event. The evidence of the mother, her father and the Family Consultant provide a different version of events, which version I accept. The paternal grandmother’s lack of frankness undermined the veracity of her evidence on this issue and generally.
The paternal grandmother was cross-examined about some notes from the A Health Services where it records:-[6]
From [the paternal grandmother]. States [the father] has been angry since a child. His biological father wanted a girl so he rejected [the father] … . [The paternal grandmother] is aware that [the father] is … and they have talked about it. She said he is very sensitive, is an artist and musician, excelling at both. She believes [the mother] will finish the marriage. She wants to support [the father] through this crisis and wants to take him back to stay with her … .
[6] Mother’s affidavit filed 29 April 2013 page 26 of 70 in exhibits (annexure “LMO-2”).
When cross-examined about calling her son ‘an angry man’ she initially denied that evidence and then prevaricated. The paternal grandmother denied that she validated the father’s anger to the staff at the hospital.[7] I do not believe her.
[7] Ibid page 24 of 70.
In the records from the A Psychiatric Unit of 23 November 2011 show:-[8]
Contacted … Police re stating mother [the paternal grandmother] stating [the father] has a gun and has threatened to use it on his ex-wife and daughter.
[8] Ibid page 49 of 70 (annexure “LMO-2”).
The paternal grandmother was cross-examined about that and denied that she had ever made such a statement and denied that her son had ever owned or had possession of a gun. Given that the staff at the hospital were not called, I give no weight to this assertion.
The paternal grandmother prevaricated in terms of what happened when the father was admitted and then absconded from the A Hospital in or about 19 and 20 November 2011. The father was subsequently involuntarily admitted. The paternal grandmother, when asked about the father and his aggression, said that it was the mother who was aggressive, but then made some concessions that the father was aggressive.
The paternal grandmother confirmed that the mother told her that she was frightened of the father. The paternal grandmother said she did not believe the mother when she made that claim.
The paternal grandmother is supportive of the father. In her evidence about the events at the Family Court on 14 May 2013, she omitted the salient features of the aggression and abuse to which the mother and her father were subjected. The paternal grandmother prevaricated in relation to some of the earlier disclosures made at the A Hospital.
The mother initially trusted and relied upon the paternal grandmother but that trust slowly evaporated over the first half of 2012.
Given the evidence, and having regard to inconsistences I am unable to accept that the paternal grandmother’s evidence is reliable and I give it little weight. She is aligned to her son and gave evidence in support of his cause rather than providing her frank observations.
Mrs T
Mrs T is the wife of Mr T (the child’s maternal grandfather). She swore an affidavit on 29 April 2013 which was filed on 30 April 2013. That affidavit was read into evidence without controversy, but subject to weight.
In that affidavit Mrs T described a confrontation with the father at the Family Court on 14 May 2013.
Mrs T was not seriously challenged on her evidence. In assessing her evidence I have considered that the mother and child live with her and the maternal grandfather and as such her evidence is likely to be coloured by her positive opinion of the mother and negative opinion of the father. However, her evidence was clear and given frankly, I generally accept it subject to its subjectivity.
Ms Y
Ms Y is an employee of the B Contact Service and swore an affidavit on 21 August 2013 which was filed on 28 August 2013. That affidavit was read into evidence without controversy.
It provided records of the father’s supervised visits with the child on 14 February 2013 and 11 April 2013. It also contained the letter of 17 April 2013 to the mother’s lawyers. It also attached the report in relation to the visits on 17 January 2013 and 14 February 2013.
I accept the accuracy of her evidence.
Ms G
Ms G is a supervisor at the B Contact Service who supervised the visits between the father and the child on 14 March 2013 and 11 April 2013. Ms G swore an affidavit on 26 August 2013 to that effect. That affidavit was read into evidence without controversy.
Ms G, for such of those visit as she was present, attached the reports for those dates to her affidavit.
I accept the accuracy of her evidence.
Ms S
Ms S is a supervisor at the B Contact Service. She was one of the supervisors present during the visit between the child and the father on 14 March 2013. Ms S swore and affidavit on the 22 August 2013 to that effect. She annexed to her affidavit her report prepared at that time.
I am satisfied that the contents of her report/s are accurate and describe the father’s behaviour and the mother’s reaction and that of the child in those sessions.
I accept the accuracy of her evidence
The mother
The mother provided evidence contained in her affidavits filed 30 April 2013, and filed 11 March 2014. By leave the mother gave oral evidence in reply to the oral evidence of the father.
The mother gave evidence that on 14 February 2013 she had stopped her car on the way to the Children’s Contact Service with the child. She pulled the car over to fix the child’s hair and adjust the time she arrived at the Children’s Contact Service. The father had apparently seen her, and despite the arrangements of the Children’s Contact Service he stopped and approached the mother. The mother said she was afraid (the father noticed her shaking – but prevaricated in evidence saying it could have been medication). The mother denied the father had been hugged and kissed by her. She said the she was shaking and said that she would ‘contact him by email as a way to get rid of him’. Her reaction was recorded in the Children’s Contact Service notes.[9] I have treated this as part of the evidence that the father was engaging in stalking the mother.
[9] Affidavit of Ms Y filed the 28 August 2013- annexure MR 1 page 6.
In cross-examination by the father, the mother was asked why she did not contact the police or apply for intervention orders. The mother said that during the marriage she had lived in fear. She felt humiliated about being in a violent relationship and that the father had told her if she ever left he would kill her. She was scared. She said she wondered how she could ever get out of that relationship. In terms of the pregnancy the mother said she was excited about having a child but she was not happy. It was only when she brought the child home that she realised she needed to protect the child.
The mother was asked about her refusing to allow the father to come to her home after separation. The mother answered and said she was ‘always afraid of [the father]’ but had suggested that they go to public venues in that area.
The mother made it clear that it was her belief that the child was not safe with the father and ought not to be left alone with him. There were only two occasions where the mother said that she had allowed the father to drive a car with the child in. The mother said that she feared his driving because of his history of road rage, which is referred by the mother in her April 2013 affidavit at paragraph 31.[10] As to one road rage incident the mother conceded it could have occurred in 2008, but she was in no doubt as to the occurrence of the incident.
[10]Affidavit of mother sworn 29 April 2013.
The father asked the mother if he had ever showed aggression to the child and the mother answered, that on one occasion shortly after the child was born, he forcibly shoved the child onto change table saying ‘I am tired, I can’t do this’ or words to that effect.
The mother made admissions against her own interests such as the removal of a photograph of the father kept on display in her house for the child.
The mother carefully explained to the father why she felt he was not safe with either her or the child, including that his behaviour failed supervised time regime conducted at the Children’s Contact Service.
The mother’s concerns about the father’s family were that they were more supportive of him rather than the protection of the child. Given the evidence of the paternal grandmother and the concerns I have about that evidence, that view is not unrealistic.
The mother is concerned the father had taken no steps to deal with his anger and his behaviour. The mother was not seriously challenged in relation to the material she had in her affidavit. She was careful and thoughtful in her evidence and I am satisfied that she endeavoured to give straightforward truthful evidence.
In terms of evidence against her interest the mother admitted on one or two occasions having a puff of a cigarette but denied the use of cannabis once she fell pregnant with the child.
The mother tried to be frank although her evidence was given through the prism of her subjective views. I am satisfied that her evidence is reliable.
Mr N
Mr N provided evidence contained in his affidavit sworn 30 April 2013 and filed 3 May 2013. This material was read into evidence.
Mr N does not know the father but was facilitating a course in July 2009 to staff at the mother’s place of work and the mother was a participant. Mr N observed a bruise on the mother’s face which had been attempted to be covered up with makeup. He asked the mother what happened to her and she replied ‘I fell over the wood pile whilst getting fire wood in the dark at night’. He did not take the matter any further.
His evidence was not seriously challenged.
Ms V
Ms V is a work colleague of the mother and provided evidence in terms of her affidavit sworn and filed 3 September 2013. She … worked with the mother from 2008 to July 2011. She gave evidence in relation to a number of events.
Ms V saw the father ‘exploding in rage’ at the hospital at about the time of the birth of the child.
In November 2011 Ms V visited the father’s home after a telephone call from him. She gave evidence that he appeared to be affected by some sort of drug or alcohol and said to her that he had been violent to the mother. I accept her evidence that the father made admissions to her as to his acts of violence against the mother.
The father asserted that Ms V was a user of cannabis and that the mother was her supplier. Ms V said she had never smoked cigarettes or taken drugs. Given that there was no other evidence to this effect and my findings of the reliability of the father’s evidence, I have not accepted that assertion by the father, much of which was conclusion without a factual basis.
I accept Ms V’s evidence and I am satisfied that she is a reliable witness who provided evidence to the best of her recollection.
The maternal grandfather, Mr T
Mr T is the child’s maternal grandfather (“the maternal grandfather”) and he provided evidence in terms of his affidavit sworn 29 April 2013 and filed 30 April 2013.
He gave evidence as to father’s visits with the child, supervised by him. These visits occurred on three occasions; in October 2012, November 2012 and December 2012.
The father asserted in cross-examination of the maternal grandfather that on 24 December 2012 the maternal grandfather said to him ‘what will it take for you to go away’. The maternal grandfather denied this conversation.
The maternal grandfather gave evidence as the events on 14 May 2013. His evidence was graphic. He said that the father approached him and asked first to speak to the mother and then to see the child. He said that the mother refused to speak with the father. However, the maternal grandfather facilitated the child seeing the father. The child became upset in leaving the maternal grandfather’s care and resisted. His evidence was then that the father became very angry and aggressive. The maternal grandfather said that the father’s face was red with anger and the veins in his neck were sticking out and that his fists were clenched. He said the father used foul and obscene language to him and the mother, this all occurred in the presence of the child. The maternal grandfather said such was the nature of the anger and aggression that he was in shock and was shaking. He said the mother and the child were both crying.
The maternal grandfather said that the paternal grandmother unsuccessfully endeavoured to intervene to take the father away, however, it was only with the intervention of the Family Consultant that this confronting situation was defused, with the father leaving.
The father put to the maternal grandfather that he, the father, was at that time polite. The maternal grandfather disputed that assertion and the father’s version of the event.
As I indicated earlier, given that the maternal grandfather’s evidence was corroborated by the evidence of the mother and the Family Consultant and the unreliability of the father and maternal grandmother’s evidence, I am satisfied that the maternal grandfather’s evidence was accurate.
He was clear and precise in his evidence and I believe him.
As to his evidence generally he endeavoured to be accurate. In assessing his evidence, I considered that the mother and child live with him and his wife, and as such his evidence is likely to be coloured by his relationship with his daughter and his positive opinion of the mother and negative opinion of the father. His evidence was clear and given frankly, I generally accept it.
Dr H
Given the allegations of illegal drug use both the mother and father had agreed to undergo random and regular drug testing to ensure that they were not exposing the child to the illegal drug culture.
All but one of the mother’s tests were clear. In the one concerning result the mother’s sample showed traces of an amphetamine type substance in her system.
Dr H is the mother’s medical general practitioner and she provided an explanation for that result. Dr H said that at that time she had prescribed Duromine to the mother for weight loss and gave expert evidence that this drug was likely the cause of the traces constituting the positive test result.
Dr H was not seriously challenged in her evidence. I accept her evidence.
The maternal grandmother, Ms K
Ms K is the child’s maternal grandmother, and had assisted the mother (her daughter) from time to time. Ms K now lives in the United States with her husband. She moved there in about January 2014. She provided evidence contained in her affidavit sworn 2 July 2013 and filed 8 July 2013.
She gave evidence of the incident at the McDonalds Restaurant in August 2012 that was different, as to causation, to that of the father.
Ms K was not aware of the violence which the mother alleged she suffered during the course of the marriage. She did provide evidence as to the father’s short temper, drug and alcohol abuse and lack of emotional and anger control during the relationship. She saw some episodes of verbal violence and abuse, which she set out in her affidavit.
Ms K was not seriously challenged in cross-examination. I generally accept her evidence as being reliable.
Dr D
Dr D was appointed as the single psychiatric expert to assist the court in this determination. He prepared a report in relation to the mental health of each of the parties. That report and details of his qualifications were attached to his affidavit sworn 25 January 2014 and filed 28 January 2014. That affidavit was read into evidence without objection.
No challenge was made to the qualifications of Dr D.
The single expert report of Dr De was dated 7 September 2013 and a copy of it was made available to the parties prior to the end of 2013 and well in advance of January 2014. The father disputed the time he received the report, although, he agreed it was in late 2013.
The father was asked whether he wanted Dr D to be available for cross-examination and quite properly he said he did. I asked the father whether Dr D’s evidence could have been given by telephone. The father said that he needed Dr D to be personally present for the father’s cross-examination. Accordingly, Dr D was called to be cross examined.
The father produced to Dr D a copy of a report prepared (apparently in respect of the father’s compensation claim in August 2008) by Dr E.[11] The father asked Dr D whether he had any adverse views in relation to it, he replied that he did not, although Dr D did say he was of course not present when the information was obtained. The report was tendered and admitted into evidence.
[11] Exhibit F3.
Dr D was not questioned in relation to any of his conclusions. As such his evidence was unchallenged as to his conclusions.
I am satisfied that Dr D’s conclusions are sound and that the factual matrix upon which they are based are generally accurate. His opinions are reliable.
Report of Dr E
As I indicated earlier, the father tendered in evidence a report of Dr E[12] dated 26 August 2008. The report was apparently prepared as a legal medical report to assist the father’s in a personal injury claim he was making.
[12] Ibid.
Dr E qualified his report by noting:-[13]
The information contained in this report is derived from the interview with your client [the father] and from the accompanying documentation. The reliability of the information is dependent on the accuracy of the information provided.
[13] Ibid page 1 paragraph 3.
Dr E concluded that the father suffered an injury in April 2007 and had likely developed a Chronic Pain Disorder and a Post-traumatic Stress Disorder. He reported as to the then condition of the father (August 2008) saying:-[14]
…He [the father] watches some television but he is easily angered and becomes angry at the television set and has had episodes of road rage …
[14] Ibid page 5, 3rd last paragraph
This evidence is consistent with the evidence of the mother and the remainder of the report is consistent that the mother had been supportive of the father at that time.
THE SECTION 60CC FACTORS
The primary considerations are set out in s 60CC(2) of the Act, they provide:-
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I am obliged and I did consider the benefit to the child of having a meaningful relationship with both of her parents.
The mother has a close and loving relationship with the child. The criticisms of her by the father are the allegations of violence by her to him (which I rejected), the alleged use of drugs (over which in recent times at least there in no cogent evidence and there is evidence that she is drug free) and that the mother has not permitted the child to develop a relationship with the father. As to the rejection of the father’s evidence of the alleged violence by the mother, I prefer the evidence of the mother to that of the father and the child’s paternal grandmother.
As to the mother’s use of drugs, she conceded such use prior to pregnancy with the child. The father and his mother claim that the mother’s use continues. The mother has undergone regular drug tests all of which, bar one, were clear. The ‘suspect’ test was clarified by evidence of Dr H. There is objective evidence that the mother is not using illicit drugs.
The father has asserted that the mother has not facilitated a relationship between the child and him. The evidence is that the mother endeavoured to foster and support the relationship between the father and the child but that the father’s behaviour was such that she was unable and unwilling to continue.
The mother is the primary carer of the child and there are great benefits to the child in continuing that meaningful relationship with the mother. The father supports that approach, albeit subject to the mother promoting a relationship with him, having counselling and regular drug tests.
As to the father, there is no doubt that he loves the child and wishes to be part of her life. The father has had opportunities to develop a relationship with the child but has in the first eight to ten months of their separation used those opportunities to try to encourage the mother back into a relationship with him, and in doing so has further estranged her from him and further consolidated her fears of him.
The father struggled with the concept of time being supervised by members of the mother’s family and the Children’s Contact Service. He was demeaning of the mother and made threats against her life.
The father has not taken meaningful steps to address the psychological issues that were raised by the Single Expert Psychiatrist and the Family Consultant. He continues to live in a state of denial or substantial minimisation as to his violence and its impact upon the mother and her desire to protect the child from his behaviour.
Given all of the evidence, I accept the conclusion of the Family Consultant that the child’s emotional welfare would be at risk if she were to spend time with the father in his current emotional state.
The benefits of the child having a meaningful relationship with the father are outweighed by the risks to the child and to the mother by the father’s anger aggression and the like and his failure to meaningfully address this behaviour.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations set out in the Act, I have given greater weight to the consideration of the need to protect the child from abuse neglect or family violence.
Family violence is defined by s 4AB of the Act as:-
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. (original emphasis)
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The father has engaged in family violence in many forms against the mother over the years of their relationship and following separation. This has included verbal abuse, threats and at some levels stalking. Examples of the father’s violence towards the mother are plentiful.
I accept the mother’s evidence of the assault in or about 2008 or 2009, which she endeavoured to hide from her work colleagues.
There is evidence that the father attacked a man at the front of his property and when questioned about that the father initially minimised the incident and then endeavoured to minimise his violence including asserting that the police had recommended such behaviour.
In her affidavit the mother describes an episode of road rage in September 2011 where she was subjected to abuse for failing to drive in a manner, which the father considered inappropriate. I accept the mother’s other examples of road rage set out at paragraphs 61, 62 and 63 of her April 2013 affidavit. Similarly, I accept her evidence of family violence set out at paragraphs 46 through to 56 of her affidavit.
As a result of the father’s conduct, the mother’s consequent concern for her safety and that of the then very young child, the time the father spent with the child moved from the mother’s supervision to family supervision and then to professional supervision. The mother then terminated time between the father and child. Given the history that termination was warranted.
In relation to the father’s claim of his treatment of his anger and aggression, he claims that he has continued active treatment. That is not the evidence; the father last saw his psychologist, Dr Z, in August 2012 and last saw Dr P in November 2011.
The father’s anger was such that he was barred from a medical practice. The father offered an explanation as to his behaviour at that time, saying that he had been racially vilified. That evidence was inconsistent with the evidence of the mother and that contained in the letter from the medical practice. Given my concerns about his evidence and the difference in the evidence, I am satisfied that it is an example of the father losing control and acting aggressively.
In his September 2013 report, Dr D noted:-[15]
…[The father] has not effectively and openly engaged in psychological therapy to work through difficulties.
[15] Dr D’s affidavit filed 28 January 2014 - Report page 13 (page 21 of 22 in affidavit).
Dr D recommended that the father be required to engage in therapy addressing a number of issues. The father did not take meaningful steps to address that recommendation.
Where the father has taken responsibility, such as his acknowledgement of his poor behaviour at the Children’s Contact Service in April 2013, it is as if the slate has been wiped clean and he did not go on from there to undertake the treatment or therapy necessary to address that threatening behaviour. The aggression continued and was exhibited in front of the Family Consultant and the parties and their family members in May 2013.
The father expressed anger to the experts that he has not seen the child and that his relationship has broken down. He quoted to me the precise number days since he had seen his daughter and, more concerning, the precise number of days since the relationship with the mother had broken down. The mother fears the father and given his history, and the assessments of him by Dr E, Dr D and the Family Consultant, that fear is well founded.
After separation in mid to late November 2011, the father was admitted to a psychiatric hospital. He was clearly out of control at that time but when asked that question, he prevaricated in his answers. The father was out of control the day he left that facility without permission. There was an issue as to whether he was scheduled and became an involuntary patient. Evidence established that he was at that time.[16]
[16] Exhibit ICL2.
The events at McDonalds in August 2012 were troubling. The father had the ability, if he had chosen to do so, to put the interests of the child first and defuse a high conflict situation. He did not do so. At some level the father participated in setting up the conflict by bringing his cousin along on that visit.
The mother says, and I accept, that she was the subject of verbal abuse throughout the relationship. The father concedes some level of abuse but in his evidence engaged in the same process as was observed by Dr D when he described the father as having:-[17]
Engaged in a superficial and seemingly sincere manner. He appeared to actively instil a positive impression of his character. He provided a trail of personal history, devoid on important detail.
[17] Dr D’s affidavit filed 28 January 2014 - Report page 11 (page 19 of 22 in affidavit).
I accept that assessment.
The mother claimed the father had assaulted her prior to separation when she was pregnant and he allegedly pushed her to the ground and kicked her in the thigh. The father denied that allegation. However, impeaching that denial was the admission made by him when he was admitted to A Hospital in November 2011. He informed them that:-[18]
…prior to giving birth, [the father] pushed the mother over because she had thrown a glass at his head, he then kicked her in the thigh. He feels absolute remorse for this assault…
[18] Affidavit of the mother filed April 2013 –annexure “LMO-2” – pages 24 and 25.
When asked about that admission the father said he was intoxicated and it was not a true statement. I do not believe him and I accept the mother’s evidence in relation to this violent incident.
The father was out of control in 2008 when he self-harmed and he prevaricated in relation to questions in that respect. I accept the mother’s evidence of rage (including road rage), assault and violence.
The father’s out of control behaviour was on display at the Court in November 2012 as set out in the affidavit of Mrs T (the wife of the child’s maternal grandfather). In November 2012 she was confronted at court and verbally abused by the father, there is no evidence that she provoked the behaviour. The father endeavoured to diminish the nature of the confrontation but could not offer a plausible explanation as to why he would engage in aggressive and abusive behaviour at a court. I accepted the evidence of Mrs T as to the verbal abuse and threats.
This is seen in the context of the assessment of the father by Dr D, which I accept:-[19]
…His inability to conduct himself appropriately whilst under supervision and in court settings perhaps highlights the difficulties he has with self-regulation. It is particularly alarming that he allegedly made remarks suggesting he would rather murder [the mother] and be incarcerated, than suffer the inconvenience and indignity of being supervised at a Contact Service.
[19] Dr D’s affidavit filed 28 January 2014 - Report page 13 (page 21 of 22 in affidavit).
The father’s behaviour is such that it is clear that he presents as an unacceptable risk to the child and to the child’s primary carer.
The father was not constrained in terms of his abuse of the mother even in public places and in demeaning her when he does so. His approach of the mother on her way to the Children’s Contact Service is an example. I have already commented on his evidence. The father was asked about this and initially acknowledged that the mother was shaking, but then endeavoured the excuse his behaviour at that time by claiming the shaking could have arisen from the mother’s use of medication. He has little or no insight as to the impact of his behaviour on the mother.
At the Children’s Contact Service on 11 April 2013 the father was uncontained in his anger and threats. On that day the father demeaned the mother to the child and later made threats to kill the mother when he was at the B Contact Service. It was recorded that the father said to the child:-[20]
…Oh I see you are wearing your jacket that I bought you. I didn’t think it would fit you with all the junk food they feed you
[20] Affidavit of Ms G filed 28 August 2013 - Exhibit “ER-2”- page 10 of 12.
The father obfuscated when he was asked what he meant by this and tried to deflect the meaning.
On that visit he later said to the child:-[21]
…You should be talking better than this, your mum is being lazy.
[21] Ibid.
I accept this was an accurate representation that the father was demeaning the mother. The behaviour continued.
The father fed the child a banana and said:-[22]
…Better than McDonalds. Better than the cheeseburgers your Nan give [sic] you. Look at Daddy, he will never be as big as your mum and nanny.
[22] Ibid at page 11 of 12.
He later, at that event, said to the child:-[23]
…You’re tired aren’t you that’s not your fault, that’s your mothers because she put you on a plane.
[23] Ibid.
It was then reported that father then looked at the worker and said:-
…she [the mother] spends all of her money on flying her over and back, and the only 4 hours I get to spend with my daughter a month she is bloody tired.
The father then said in front of the child about rules regarding photography, words to the effect:-[24]
…this is just fucked, I can’t even take a photo of my own daughter.
[24] Ibid.
He later said:-[25]
…I am going to put the shitty nappy back in Mum’s bag because she gives me the shits so I am going to give them back to her.
[25] Ibid.
He went on to say to the child:-[26]
…don’t you worry [the child] things are going to change soon and you will be back in Victoria in no time.
[26] Ibid.
The above evidence is the uncontested evidence of the workers at the Children’s Contact Service. In addition at that time the child was aged about one and a half. She was being subjected to abuse of her primary carer by her father. The father’s explanations of these terms was farcical, I do not believe him. This behaviour occurred in contained circumstances where the father knew what he was saying would be reported and yet he was not constrained.
The father’s behaviour became worse, when after the child was out of his presence he said to a worker at the Children’s Contact Service:-[27]
…I am going to fucking kill that slut.
[27] Ibid.
He then went on to say:-[28]
…honestly I would rather go to gaol for 5 years for murdering her than go through this head fuck.
[28] Ibid.
The father remained at the Children’s Contact Service and when the mother was leaving the father tapped on the windows and signalled her to call him. The father acknowledged that his behaviour was bad and said he was remorseful. That remorse did not prevent him engaging in similar behaviour with the mother at the Family Court when the assessments were being undertaken for the Family Report the following month.
It was troubling when asked about these threats in cross-examination the father said:-
…I didn’t mean it, look she’s alive isn’t she (or words to that effect).
He said when he made those threats he was not ‘out of control’. His evidence was that he was ‘in control’. Those threats were made menacingly in the presence of people who were bound to report and in circumstances where the father knew or ought to have known that such threats would be passed to the mother. If as the father says the threats were made when he was ‘in control’, they take on a more sinister feature.
The workers report further noted:-[29]
once the visit had ended [the father], while still in the centre, climbed up and knocked on a window that looks over the residential parent’s car park and yelled to [the mother]. Both report that he was asking her to call him and he had made hand gestures which support this.
[29]Affidavit of Ms Y filed the 28 April 2012.annexure “MR-2”- pages 12 and 13.
The father was spoken to by workers at the Children’s Contact Service and a letter was sent to the mother’s lawyer and the Independent Children's Lawyer.[30] Initially at least, the detail of the death threats were not reported to the mother or the Independent Children's Lawyer.
[30]Ibid annexure “MR- 3” - page 14.
The Children’s Contact Service was apparently prepared to continue the visits. That decision ought to have been made in the light of the mother’s knowledge of the threats and with input from the Independent Children's Lawyer.
As an aside, I note that the Children’s Contact Service’s response to this threat was troubling. If that response, in not fully informing the mother and Independent Children's Lawyer of the threats, reflects the protocols of that Service, then the Service should consider reviewing those protocols; if the particular response did not accord with the protocols then staff training should be reviewed.
If a threat to the safety and wellbeing of one party is made by the other party in the presence of one of their workers, at least the detail of that threat should be passed on to the other party and, if available, the Independent Children's Lawyer. Consideration should be given to reporting the threat to the police.
I understand and recognise the difficult task undertaken by Children’s Contact Services, often dealing with people in great distress and agitation. Services, such as this one, are an invaluable resource to children and communities when families are caught in the maelstrom of family disputes. I am aware that day to day decisions need to be made by experienced workers on the ground, but a party subject to a threat ought to know about it given their broader knowledge of the other party and surrounding circumstances.
In this case no direct harm followed the threats, and the lessons learnt may be of value to the Children’s Contact Service. I will direct the Independent Children's Lawyer to forward a copy of these reasons and the parenting orders to the Children’s Contact Service.
In his application the father seeks to have regular meals with the mother in the guise of the relationship with the child. As I have said elsewhere the father’s behaviour towards the mother, in many ways, is akin to or is stalking. This behaviour of the father may itself be a factual base for the injunction the mother sought against the father, to keep his distance.
The father’s evidence is replete with examples of his desire to reconcile. It was his constant demands and request for reconciliation that, in part, brought about the change in the parenting arrangement after separation, from the child being supervised in his care by the mother to the child being supervised by others. The father has little or no insight into his behaviour as a factor in this change.
The father has used violence, aggression and anger to control the mother in their relationship. The father has not come to terms with his violent and abusive nature and continues to make threats and exhibit that behaviour even in the most controlled circumstances, such as at the Children’s Contact Service and at the time of the assessments for the Family Report.
The mother has concerns about the father’s mental health and given his history and the father’s refusal to take seriously and address his mental health issues, the mother’s concerns in that regard are well founded. The mother is fearful and, in the circumstances, that response is reasoned.
The Family Consultant reported and I accept:-[31]
77.The father was assessed as being very troubled, unpredictable and potentially explosive towards the mother and her family, even in a secure environment. The family consultant considered that the father needed to continue his attendance at counselling in the hope that it might be helpful to him.
78.A psychiatric assessment of the father would be helpful to the court in terms of his capacity to focus on the child and her needs rather than on striking out against the mother. The experience of the family consultant pointed to significant alarm and concern about his capacity in this regard. He presented as a man who was more focussed on his anger and hatred towards his ex-wife than he was on his love for his child.
79.Unfortunately, even a well structured Contact Service, with its various security features has not deterred the father from acting inappropriately with [the child] and it is difficult to see how any time with him would be positive for her.
80.Despite the fact that she has spent supervised time with her father on a number of occasions, she continues to indicate her insecurity and discomfort around him and she needs the reassurance of other adults, even a stranger.
81.The father’s persistent negative feelings and comments towards the mother combined with the tense atmosphere [the child] has experienced whenever her parents meet or are in close proximity, would have negatively influenced her.
82.[The child] has continued to indicate her consistent reluctance to spend time with her father in contrast to her seeming ability to attach herself easily to people she does not know well (as evidenced by her ease in the playroom situation).
83.The family consultant considered that [the child’s] emotional welfare would be at significant risk if she were to spend time with her father in his current state. The potential risk to [the mother] also presents significant physical and emotional risk to [the child’s] future.
[31] Exhibit ILC1 – Family Report dated 3 June 2013.
The Family Consultant went on to recommend:-
84.It is recommended that the mother have sole parental responsibility for [the child] and that [the child] live with the mother.
85.It is recommended that there be no orders in relation to the father spending time, including supervised time, with his daughter.
86.It is recommended that the father receive non-identifying material about his daughter from time to time, e.g. annual photos.
87.It is recommended that the father continue counselling in relation to his ‘anger’ issues and his marriage breakdown.
I am satisfied that the father presents as a risk of physical and emotional harm to both the mother and consequently the child.
Section 60CC(3)(a) – Any views expressed by the children and any factors (such as the children’s 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 aged two and a half years and any wishes she might express carry no weight.
Section 60CC(3)(b) – The nature of the relationship of the children with:
j)each of the child’s parents; and
k)other persons (including any grandparent or other relative of the child);
On the evidence I have no concerns about the relationship between the child and her mother and the maternal family,
As to the relationship with the father, the Family Consultant notes in her report:- [32]
68.She [the child] was resistant to him [the father] picking her up, looked somewhat alarmed but recovered when [the father] put her back down on the floor.
69.[The child] became distressed a second time when [the father] picked her up again, asking for her “mamma”.
70.During the father’s thirty five minutes with her, [the child] remained apprehensive, quiet, mostly looked unhappy and was unresponsive to him.
[32] Ibid.
I am not satisfied that the father has the capacity to develop an appropriate and meaningful relationship with the child.
The nature of the relationship has been coloured by the factors to which I have outlined elsewhere in these reasons.
The child was developing a good relationship with her paternal grandmother. The mother is reluctant for that relationship and a broader relationship with that paternal family to continue out of her fears that the family are closely aligned to the father. Those fears are likewise realistic and well founded.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
Since the birth of the child, the mother has been the primary carer of the child and the mother has made all of the major decisions about her well-being.
There has been at least one occasion when the father was unable to spend time with the child, although, I accept that he has endeavoured to spend as much time as he possibly can with the child and is desperate to spend more time with her.
Section 60CC(3)(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;
The mother has fulfilled her responsibilities to maintain the child. The father, to the best of his ability, did so in the first eighteen months of her life and there is no submission made in relation to the father’s failure to do so, since that time.
Section 60CC(3) (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child does not know her father. She had limited contact with him for the first eighteen months after her birth and that time ceased in April /May 2013 when the father’s last contact with the child resulted in a high conflict interaction at the Contact Service and at the Family Court in April/May 2013.
The mother and her family are providing strong parenting arrangements for the care of the child and the orders the mother proposes do not change those circumstances.
The mother proposes that the arrangement of no time or communication with the father continue and, given the circumstances, asserted that this is in the best interests of the child.
The father wants a more traditional arrangement where he spends regular time with the child.
Given the violence, abuse and the father’s emotional disposition this cannot occur. I accept the evidence of the Family Consultant and the Single Expert Psychiatrist. A change to put the child in even the supervised care of the father would put the child at risk. It would also further undermine the parenting of the mother.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a 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;
There are practical difficulties in terms of the child spending time with the father, given the mother’s move from Victoria to Queensland.
However, if I had decided that the child was not at an unacceptable risk of harm in the care of the father (whether supervised or unsupervised) I am sure those issues could have been addressed.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) 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 and her family are well able to provide for the needs of the child.
The paternal grandmother is able to meet the needs of child although, given her strong alignment with the father, I am not satisfied that she would be protective of the child against the father particularly given her understating of the father’s anger and the need for that to be drawn out and her minimising of his angry and abusive behaviour.
Section 60CC(3)(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;
The child is aged two and a half and she is fully dependent on her mother to provide for all of her needs.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In terms of the mother, she has adopted a different lifestyle to that which was in place prior to the child’s conception. The mother has undergone drug tests to provide objective evidence supporting her assertion that she no longer uses marijuana, having been a regular user prior to the birth of the child.
In her evidence the mother was frank as to her concerns for the child’s wellbeing in the supervised and unsupervised care of the father, given the threats and other behaviour of the father, particularly at times when he ought to have had contained his emotions. The mother endeavoured to facilitate a relationship between the child and the father after separation but those efforts did not work as the father was struggling to accept the failure of the relationship and his anger, violence, threats and aggression continued.
The father has serious mental health issues, he has a violent and aggressive nature, which he has not addressed.
60CC(3)(j) any family violence involving the child or a member of the child's family;
and
60CC(3)(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Family violence was discussed earlier in these reasons. The father has been violent but has substantially denied that behaviour. I have found that he is violent and a threat to the mother and child. The father has taken no meaningful steps to address that violent behaviour.
There are no relevant violence orders for me to consider.
Section 60CC(3)(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;
The mother sought orders that the father spend no time with the child and that the time he spends with her be of a very limited nature. The Independent Children’s Lawyer supported that position and it is supported by the evidence, particularly the evidence of the Family Consultant and the Single Expert Psychiatrist.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
I have considered all of the evidence and applied it to the factors in relation to the various issues.
SUMMARY
There are three agreements supported by the parties and the Independent Children's Lawyer.
The first of which is that the child continues to live with the mother, at least in the medium term; this is not an issue and that order will be made.
The second is that mother sought orders that she be permitted to send a photograph of the child to the father. That aspect of her application was uncontroversial, although it was not what the father considered in any way adequate in terms of the child’s relationship with him. However, given the views of the mother, Family Consultant and the Independent Children's Lawyer, I will make that order.
Finally, the parties have applied for mutual non-denigration orders and given the history set out above, I will make that order.
Whether the mother and father should share equal parental responsibility?
Given the factors set out in these reasons and the findings, it is not possible for there to be an order for equal parental responsibility. It would place an impossible burden on the mother. It would impose upon her a need to communicate with the father in circumstances where she has serious fears about him and concerns about her physical safety in his presence.
The father is uncontained in his anger and is a danger to the mother. There could be no communication or negotiation of any meaningful nature given the mother’s fear.
Repeating all that is set out above, I am satisfied that the mother ought to have sole parental responsibility as recommended by the Family Consultant.
Whether the child should be permitted to have a passport (obtained and held by the mother) and travel overseas, from time to time without permission of the Court or the father.
Alternatively, should the child be prevented from obtaining a passport, traveling overseas (without the father’s permission or that of a court) and the child’s name remain on the Airport Watch List.
Given the sole parenting orders, the sole parental responsibility orders and the no contact or communication orders that I intend to make and that part of the mother’s family resides overseas, there is no reason why the mother cannot be the sole provider of authority for the issuing of a passport for the child, nor should the mother be constrained from removing the child from the Commonwealth of Australia at times that suit her. To do otherwise would in the circumstance impose a burden by way of a requirement on the mother to apply to a court exercising jurisdiction under the Act for visits to her mother and a new passport every five years or so. This requirement in all of the circumstances would be unreasonable.
I am satisfied, given the parenting orders I intend to make, that the mother should be able to travel and visit her mother as and when she chooses. I see no reason why the mother cannot have those duties of parental responsibility to facilitate the taking of the child overseas from time to time and arrange for the issue of a passport. The mother should not be exposed to further anger, violence and abuse in terms of passport and travel overseas. Given this approach it follows that the child’s name should be removed from the Airport Watch List.
Whether the mother should be required to relocate from Queensland to Melbourne, as sought by the father and whether the child should communicate, live with and/or spend time with the father?
Without wishing to be too repetitive; the father is violent, aggressive and has serious issues of anger control. He has little or no insight into the impact of his behaviour on the mother. He has little or no insight into the fear that he creates with his temper and with his inability to conduct himself in an appropriate way.
In his submissions counsel for the Independent Children’s Lawyer asserted that the father’s approach to these proceedings was indicative of his general unreliable nature. The father had complained that he did not understand the process but when directed by Thornton J to a produce case outline, he was able to do so in a short period of time. The father required Dr D to be made available for cross-examination, declined the opportunity of asking him questions by telephone and then undertook cross-examination of him in person which was, at best, cursory.
Counsel for the Independent Children’s Lawyer and the mother both submitted that the principal issue had been the question of the risk to the child and to the mother given the father’s aggression, threats, observed behaviour and violence.
The father clearly cannot control his anger, even in circumstances where he was being closely observed. I have dealt with aspects of this elsewhere in these reasons but they include his loss of temper and abuse at the hospital when the child was born, his abuse and following of Mrs T at Court on 16 November 2012, his denigration of the mother at almost each of the supervised visits at the Children’s Contact Service, his death threats to the mother at the Children’s Contact Service, his appalling abuse of the mother and the child’s maternal grandfather at the Family Court on 13 May 2013.
The reasons are replete with examples of his violence and his admissions of violence. These include his admissions at the A Hospital, his admissions to Ms V after separation and his mother’s acknowledgement of that behaviour.
There are also his admissions to Dr E in 2008 of his anger and episodes of road rage.
I give no weight to the entry in Dr Q’s notes of 14 January 2013 and, with some reservations, I give no weight to the report with regard to the paternal grandmother’s alleged comments about the father’s guns and threats to the mother.
However, absent this evidence there is ample and considerable evidence of long term anger, aggression, out of control behaviour, physical violence, verbal violence and emotional violence.
I accept the mother’s evidence of the attacks upon her contained in her affidavits including hitting the mother in the face in July or August 2008 or 2009 which is, to some degree, corroborated by the evidence of Mr N.
The father has a history of being unable to cope and has mental health issues, which are set out in the psychiatric reports and in the mother’s affidavit.
The father has little or no insight into his behaviour, or worse that if he has such insight, he ignores it.
When the mother gave evidence as to why time had stopped she said that she was scared for the child and for herself in the context of his violent and abusive behaviour. The father’s reply was to point out that the home had video cameras and many kinds of devices to protect against intruders. He seemed to have no insight that the mother’s concerns were not about strangers but were about him.
In his oral submissions the father raised issues of what he attempted to say was ‘parental alienation’. The implication was that the mother was doing all that she could to alienate the child from him and vice versa. I reject that submission. When the mother felt that she was not safe in the presence of the paternal grandmother, she arranged supervised time with her mother at McDonalds, which was a disaster. The mother then arranged supervised time using her father in Melbourne. The father was again oblivious to his surroundings (I accept the evidence of the maternal grandfather to that end). The mother then tried to facilitate time between the father and the child at the B Contact Service. The father would not accommodate that time and undermined those processes with abuse and threats.
The mother’s views to restrict the father’s time and then prevent the father having time have been a continuum as a result of the father’s behaviour. He has engaged in family violence to the mother over many years. That uncontained and abusive behaviour continued even into the corridors of the Court and into the Children’s Contact Service.
The father gave evidence that he knew details about the mother’s car and gave evidence that he knew where she lived in Victoria. The orders he sought involved the mother spending time with him and even in his submissions he said that he continued to love the mother. This has all the elements of stalking behaviour and is at the very least concerning behaviour.
Unsurprisingly, the father struggled with submissions and needed some direction to focus on the primary issues. His written submissions do not in any way meaningfully address his issues of violence, abuse, anger management and lack of control.
Initially the mother sought orders that the father be permitted to write and send letters and cards five times per year. The mother withdrew her application in respect of that order during submissions saying that the evidence was such that there ought not to be any contact. That approach is in accordance with the evidence of the Family Consultant. The father was asked to address me on that issue and did not do so, although I will take it that he opposed that change given the general nature of his submissions and applications.
Contrary to his submissions that the mother had alienated the child from him that is not what occurred. The mother facilitated time with this newborn child but in the presence of the paternal grandmother and with the mother being present at all times. The father persisted, despite the mother’s objections, to seek reconciliation. The mother raised with the paternal grandmother during that period of time her concerns for her safety. The paternal grandmother gave no weight to those concerns.
It was submitted by counsel for the mother and the Independent Children’s Lawyer that the paternal grandmother was, or has been, as shown in her evidence, an apologist for the father. Sadly, they are accurate submissions.
The father wants to resolve matters by way of a ‘chat’ with the mother. This submission completely ignores his abusive and violent behaviour to her and in many ways is indicative of his lack of insight as to that behaviour.
Added to the father’s lack of insight is his refusal to undertake proper treatment in respect of his aggression, violence, anger and lack of control. There was no evidence of him addressing those issues raised in the Family Report or in the joint experts’ psychiatric report.
In those circumstances I can only conclude that the danger identified by the Family Consultant and the concerns raised by the Single Expert Psychiatrist remain in place for the mother and for the child.
In addition to this there is the anger, violence, aggression and stalking behaviour of the father. The mother’s family support through the maternal grandmother changed when she moved to the United States. The mother’s other support through her father is in South East Queensland. Living with her father and his wife a substantial distance from the father provides her with support and reduces the level of her fears of him.
I accept the recommendations of the Family Consultant and the evidence of the mother that this is one of those rare cases where the father ought not to spend time with the child and ought not to in any way communicate with the child.
It follows that the father’s application for the mother and child to relocate to Melbourne could not succeed.
Drug Screening of the mother and whether she should be required to enrol in drug and alcohol course and in a parenting course
There was no reliable evidence which would enable me to impose such requirements upon the mother, and I will not do so.
Whether the father should be enjoined from approaching the mother and child in terms of the orders sought by the mother or similar?
In terms of this order I have again reflected upon all of the evidence and findings, the outline of which is set out earlier. Given the history of violence and the father’s uncontained behaviour, the mother has established the factual platform to base such an order for her protection and that of the child.
The Family Consultant recommended that the father continue counselling in relation to his ‘anger issues’ and marriage breakdown. The father has not taken any meaningful steps in that regard since 2012. Given the orders I intend to make and the father’s reluctance to address his anger and violence issues, such an order would be pointless.
I certify that the preceding two hundred and eighty eight (288) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 May 2014.
Associate:
Date: 2 May 2014
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Appeal
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