PATRICK & BISHOP
[2019] FCCA 89
•11 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
PATRICK & BISHOP [2019] FCCA 89
Catchwords:
FAMILY LAW – Parenting – where father is an illegal immigrant – order for recognition contact.
Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:
MRR v GR [2010] HCA 4
Applicant: MS PATRICK
Respondent: MR BISHOP
File Number: WOC 1142 of 2012
Judgment of: Judge Altobelli
Hearing date: 21 August 2018
Date of Last Submission: 21 August 2018
Delivered at: Wollongong
Delivered on: 11 February 2019 REPRESENTATION
Counsel for the Applicant: Mr Moutasallem
Solicitors for the Applicant: Hansons Lawyers
The Respondent appeared in person.
Counsel for the Independent Children's Lawyer: Mr Grew
Solicitors for the Independent Children's Lawyer: Acorn Lawyers ORDERS
(1)All previous Orders be and are hereby discharged.
(2)The Mother have sole parental responsibility of the Child [X] born … 2011 (‘the Child’).
(3)The Child live with the Mother.
(4)The Child spend time with the Father as agreed between the parents in writing, or otherwise failing agreement, on four occasions each year, being the Saturday immediately following 1 February and 1 May, on Father’s Day, and on the Child’s birthday, for a period of not less than 3 hours, and on each occasion, such time shall be supervised by Contact Centre Town A or such other agency as can be arranged to facilitate the time between the Child and the Father pursuant to these Orders.
(5)For the purposes of the time the Child spends with the Father pursuant to Order 4 above, that the Father be responsible for meeting all the costs of supervision (as and when required by Contact Centre Town A) and attend to payment prior to the scheduled time to Contact Centre Town A or such other facility, failing which the visit is cancelled.
(6)For the purposes of Orders 4 and 18, the Mother shall email the Father, at least thirty (30) days prior to each designated visit (as specified in Order 4 above) or communication with the Child (in accordance with Order 18 below), and nominate the time and a location for the visit or communication; and the Father is required to confirm in writing, within fourteen (14) days thereafter, that he will attend those visits with the Child and or undertake the communication.
(7)Any time the Child spends with the Father shall take place in a public place or such other venue as agreed.
(8)These Orders operate as the authority of the Mother, for the Father to obtain information he may seek from any medical practitioner as to prognosis, diagnosis and treatment rendered or educational service provider, copies of school reports and general information about the Child’s progress, in relation to the Child.
(9)The Mother notify the Father, of any decisions she makes in the exercise of her parental responsibility within 30 days of such decision occurring, by means of email.
(10)For the purpose of the parents communicating in respect of the time the Child spends with the Father, such communication is to occur by email, unless otherwise agreed.
(11)Each parent keep the other informed of their current email address, and of any change to such email address, within 14 days of any change occurring.
(12)Each parent be restrained from denigrating the other parent or any member of that parent’s household or family in the presence or hearing of the Child and shall immediately remove the Child from the presence of any other person who does so.
(13)The Father be restrained from contacting or approaching the Child by any means whatsoever except for the purpose of implementing these Orders or as otherwise agreed by the mother in writing.
(14)The Father be restrained from attending any school the Child attends EXCEPT with the express consent of the mother, in writing.
(15)Nothing in these Orders shall prevent the Father from:
(a)Providing a gift to the Child; or
(b)Bringing not more than one other paternal family member at a time to attend;
when spending time with the Child PROVIDED that the Father has first obtained the Mother’s consent.
(16)The Mother be at liberty to apply for the issue and/ or renewal of an Australian Passport for the Child, without the signature or consent of the father.
(17)In the event the Father is no longer living in Australia or otherwise is in an Immigration Detention Facility , the Father is to notify the Mother by email or via text message as soon as practicable.
(18)In the event the Father is no longer living in Australia or otherwise is in an Immigration Detention Facility, that the Mother is to:
(a)provide copies of school reports at least twice per year via email to the Father;
(b)email the Father in the event the Child is suffering a serious medical condition or a medical emergency;
(c)facilitate telephone and or Skype communication between the Child and the Father on the same occasions as detailed in Order 3 above for a period of not less than 30 minutes and pursuant to Australian Eastern Standard time.
IT IS NOTED that publication of this judgment under the pseudonym Patrick & Bishop is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 1142 of 2012
MS PATRICK Applicant
And
MR BISHOP Respondent
REASONS FOR JUDGMENT
Introduction
1.This case is about [X], born … 2011. [X] is 7 years old. These Reasons for Judgment explain why the Court has ordered that [X] should live with his mother and spend time with his father four times each year.
Background
2.[X]’s mother is the Applicant in this case. She is 36 years old. His father is the Respondent. He is 34 years old. The Mother lives in the Town A region of New South Wales; the Father in the Region 1. The Mother lives with her family, consisting of her mother and her partner. The Father’s precise living circumstances are unclear, though it is likely that he is sharing accommodation with other persons.
3.The Case Outline filed on behalf of the Mother on 15 September 2017 includes a useful chronology at pages 8 to 32 of the document. The chronology is reproduced in the First Schedule to these Reasons.
4.It is important to recognise in this case that both parents have had difficult, unhappy lives. Indeed, various degrees of dysfunction were present in their lives when they first met and continue to some extent today.
5.The parents met in or about September 2010 (nothing turns on this). At that time, the Father, who originally came from Country B on a student visa, became an illegal immigrant as a result of the expiration of his visa. As for the Mother, in 2003, she had been diagnosed with Bipolar and Schizophrenia and had spent time in a mental health facility. She struggled with alcohol addiction and, indeed, this led to a tragic accident in 2007 when she fell onto train tracks, was run over by a train, and as a result had one of her legs amputated.
6.The Mother also had drug addiction issues, which included amphetamine use. Her own medical records indicate that, at the time the relationship with the Father commenced, she was suffering a range of mental health issues. She had experienced a very difficult life as a child and young person. Her own mother, the maternal grandmother, referred to the challenges that the Mother would have experienced as a result of her father, the paternal grandfather’s violence, struggles with alcohol and mental health. In addition, there were periods in her life when the Mother’s relationship with the maternal grandmother was a very difficult one.
7.From the Father’s perspective, from 2010 he effectively began a life in hiding as he pursued every means, legal and illegal, to remain in Australia. This often meant evading authorities and obfuscation about where he lived, what work he undertook, as well as profound uncertainty about his future. Indeed the Mother’s case was summed up by a submission made by her Counsel in closing submissions: “the Father is living on borrowed time.” Be that as it may, that borrowed time has now extended to nine years.
8.During the course of a relatively short relationship, the Mother continued to experience mental health issues, converted to Islam (the Father’s religion), and took part in a traditional Muslim ceremony amounting to a wedding. The Mother continued to struggle with drug addiction, which included, at times, marijuana and Valium. Despite the upheaval in the Mother’s life the parents conceived [X] who was born in … 2011 at a time when the Mother was living with the maternal grandmother.
9.In early 2012, the Father commenced making child support payments. However, the evidence indicates that, since then, he made no more than 17 payments. The Father confirmed in his own evidence that he wasn’t paying child support because he wasn’t earning income. Indeed, he was earning income but to have paid child support ran the risk of the relevant authorities becoming aware of the fact that he was earning income, a matter prohibited under his bridging visa conditions, as well as the risk of the authorities becoming aware of where he actually lived and worked.
10.The relationship between the parents seems to have ended in April 2012, but it is quite possible, indeed likely, that physical cohabitation had ceased before then. A dispute arose between the parents about the Father spending time with [X]. The Father experienced a mental health episode in which he attempted suicide. This mental health episode was probably situational – related to the Father not spending time with his son. There is scant other evidence before the Court to suggest that the Father experiences ongoing mental health issues.
11.The parents appear to have entered into sporadic ad hoc arrangements for the Father to spend time with [X] on a supervised basis. Moreover, there was conflict between the Father, the Mother and the maternal family, and this appears to have resulted in an application for an Apprehended Violence Order which was then made on an interim basis, but not on a final basis.
12.In October 2012, the Father appears to have first applied for a protection visa, and as a result of the lodgement of his application was granted a bridging visa. Even though over 6 years has now passed since then, his status appears to be no different, that is, he is on a bridging visa pending the ultimate determination of his protection visa. It is clear that a condition of the visa is that he cannot work and has no entitlement to social security benefits. The basis of the protection visa was that the Father feared that, if he returned to Country B, he would be the victim of an honour killing or torture and significant harm due to his relationship with the Mother.
13.At a later stage, other grounds seem to have emerged, including that he would not have a passport because the Country B government cancelled his Country B passport when he became an illegal immigrant in Australia. This does not prevent the Father returning to Country B, but apparently the risk for him is that he would not be granted a further Country B passport when he returned, which would thus limit his mobility. A further basis of the Father’s application to remain in Australia is, of course, the relationship with his son.
14.The proceedings were initiated by the Mother in this Court in December 2012, over 6 years ago. The litigation had a very long genesis. The setting down of this matter for hearing was postponed many times in the hope, indeed expectation (forlorn as it was), that greater certainty would become apparent in relation to the Father’s visa status in Australia. As it turns out, the Court finds that this was very convenient for the Father, who actively misled the Court in relation to the review and appeal process he was pursuing. For example, he gave evidence that nothing was happening in relation to this process, because he was waiting to hear from his immigration agent. But when the immigration agent gave evidence, he explained that he was waiting to hear from the Father. In any event, what is clear is that the Father has engaged, at the very least, in seeking to review the decision declining him a visa through the Refugee Review Tribunal, and by ministerial intervention. There is no evidence to suggest that the Father has, as yet, filed an application in either this Court, or the Federal Court of Australia.
15.Early in the history of these proceedings, Orders were made placing [X] on the Airport Watch List, and Interim Orders for the Father to have supervised time with [X] at CatholicCare in Town C. There was much evidence before the Court about how [X]’s time with his Father went during supervised visits. The visits were not without difficulty, but, over time, there were positive elements to the visits as well. The first supervised contact occurred on 11 July 2014 and, as at the date of the Hearing, the order for supervised contact remained extant and the Court assumes that [X] continues to spend time with his Father at a supervised contact centre, albeit not at CatholicCare in Town C.
16.It is the Mother’s case that shortly after supervised contact commenced, [X] started to resist spending time with his Father, and commenced manifesting anxious behaviours, anxiety, and nightmares.
17.In September 2016, the matter was set down for a 2 day Final Hearing, commencing on 18 September 2017. As the matter was not concluded, it was then adjourned to 20 and 21 August 2018.
18.During this period, the Mother’s mental health appears to have stabilised. In December 2016, the Mother moved from the Region 1, presumably to the area where she presently lives. Supervised contact nonetheless continued.
The Competing Proposals
19.The Mother was represented at all times by her Solicitor and Counsel. Her initial proposal was that she have sole parental responsibility, that [X] live with her, and spend no time with his father, or have any communication with his father. During the course of the proceedings, however, and certainly by closing submissions, the Mother joined in with the Independent Children’s Lawyer in proposing that she have sole parental responsibility, that [X] live with her, and spend time with the Father 4 times each year. As noted, this was also the Independent Children’s Lawyer’s proposal. The Minute of Order proposed by the Independent Children’s Lawyer is reproduced in the Second Schedule to these Reasons. [X] was represented by an Independent Children’s Lawyer and Counsel.
20.The Father has represented himself since first filing his Response in April 2013. In his Response, he originally proposed equal shared parental responsibility, that there be equal shared time week about, that [X] be known by the surname Bishop, rather than Patrick, and that [X] have no contact with the maternal family. During the course of the proceedings, however, and after the Father was cross-examined, the Father’s proposals became clearer. He proposed joint parental responsibility, except in relation to religion, where he sought an order for sole parental responsibility. He continued to seek an order that [X] not be brought into contact with any member of the maternal family. He pursued orders seeking a change of surname, and that [X] be placed on the airport watch list. The Father was not able to specify either the frequency, or duration, of his time with [X]. He indicated that he was happy for the Court to decide this. He did not see any need whatsoever for his time to be supervised.
The Evidence
21.In the Mother’s case, she relied on the following documents:
a)Case outline document prepared on behalf of Ms Patrick, filed 15 September 2017;
b)Amended Initiating Application filed by Ms Patrick on 4 September 2017;
c)Affidavit of Ms Patrick filed on 4 September 2017;
d)Affidavit of Ms D filed on 14 September 2017;
e)Affidavit of Ms E filed on 5 September 2017;
22.In the Father’s case, he relied on the following documents:
a)Response filed by Mr Bishop on 3 Aril 2013;
b)Affidavit of Mr Bishop filed on 17 October 2017;
c)Affidavit of Mr Bishop filed on 14 September 2017;
d)Affidavit of Mr Bishop filed on 3 April 2013;
23.The following documents were relied on by the parties and were tendered during the proceedings:
a)Documents produced pursuant to subpoena on NSW Police;
b)USB of audio recordings produced by the Respondent Father;
c)Statutory Declaration signed by Mr Bishop dated 4 April 2017;
d)Bundle of text messages and photos between the Applicant and Respondent (various dates);
e)Applications for Bridging Visa E filed by Mr Bishop;
f)[X]’s School Report Semester One 2018;
g)Printout of ‘Electronic Application Status Inquiry’ (Mr Bishop) - Department of Home Affairs;
h)Documents produced pursuant to subpoena on Ms F (Registered Psychologist);
i)Documents produced pursuant to subpoena on Dr G;
j)Documents produced pursuant to subpoena on Department of Immigration and Citizenship;
k)Documents produced pursuant to subpoena on CatholicCare;
l)Documents produced pursuant to subpoena on Parish Patience Immigration Services Pty Ltd; and
m)Documents produced pursuant to subpoena on Hospital-Medical Legal Section.
The Applicable Law
24.The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
25.The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
26.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
27.If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
28.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The case law
29.In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
30.A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
31.At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Credibility Issues
32.This is, regrettably, a parenting case where there are pervasive credibility issues in relation to the evidence given by the Mother, the maternal grandmother, the Mother’s sister, and the Father. Each of these witnesses were unreliable historians. Each of these witnesses allowed their feelings towards each other to distort their recollection of past events. The closing submissions made by Counsel frankly acknowledged the difficulties in the evidence given by the witnesses. Only a few examples will be given below.
33.The Mother was frequently unresponsive. This reached its zenith during the Father’s cross-examination of her. It was nonetheless present during the Independent Children’s Lawyer’s Counsel’s cross-examination. The Mother has convinced herself that the Father presented a risk of harm to her son. She alternated between fearing that he would abscond with him outside of Australia, or kill him. At no time was there any objective basis for her belief. Nonetheless, it was a subjective belief, irrationally held. The Mother feigned fear of the Father. There was no objective basis for this fear. Indeed, in cross-examination by the Father, the Mother demonstrated herself to be assertive and feisty. Her contention that the marriage ceremony she went through was coerced beggars belief. When the Mother was challenged about the obvious inconsistencies between her evidence about [X]’s experience of supervised contact, and the objective records produced by the centre, her explanations were glib, unconvincing, and convenient. Regrettably, the Mother presented as a woman willing to say whatever was needed to be said, irrespective of the truth, in order to obtain her desired position of [X] having nothing to do with his Father. Regrettably, when it comes to matters pertaining to [X], the Mother’s evidence needs to be tested and assessed carefully. She is, unfortunately, a woman on a mission, the objective of which is to exclude [X] from his Father’s life.
34.The evidence of the maternal grandmother, was equally unconvincing. She was aggressive and unresponsive in cross-examination. Whilst claiming to be in fear of and intimidated by the Father, she manifested nothing but defiance during the course of his cross-examination. Her loathing of the Father was palpable. The profound impression created is that many, if not most, of her concerns about the Father were based on things told to her by either the Mother, or the Mother’s sister. Regrettably, a strong impression is formed about the toxic household that [X] must live in, insofar as his Father is concerned.
35.The concerns about the evidence of the Mother’s sister are not so acute, but nonetheless present. The Court accepts her evidence about what must have been a frightening chance encounter with the Father in the city after work in November 2014. Indeed, given that the Father did not cross-examine Ms E about the factual events that she deposes to in her Affidavit of 5 September 2017, the Court accepts that her evidence in this regard is correct. In particular, this means that after Ms E walked into a convenience store where the Father happened to be working, he then followed her out and threatened her not to tell anyone that he was working there. Where the Court does have reservations about Ms E’s evidence, however, is her evidence that she has never heard discussions about the Father in the maternal household. This is unlikely to be true, given the adverse findings the Court makes about the Mother and the maternal grandmother.
36.The Father’s evidence was problematic in many ways. Counsel for the Independent Children's Lawyer’s closing submissions referred to the Father’s evidence as being “honest in his dishonesty”. That is an apt description. The Court finds that the Father has lived a life of deception since he became an illegal immigrant in Australia. As mentioned earlier, he misled the Court about the status of his review application, suggesting to the Court that he was waiting to hear from his immigration agent when in reality, confirmed by the immigration agent in cross-examination, the latter was waiting for the Father.
37.The Father misled the Court, and probably misled the Immigration authorities, by maintaining a fear of family reprisals if he was sent back to Country B. He accepted in cross-examination that there was no reasonable basis for this fear. The Father was clearly aware of his obligation to pay child support, either legal or moral, and accepted that he often had income with which to pay child support, but that he did not because of the risk of the breach of his visa conditions being discovered by the relevant authorities.
38.The extent of the Father’s perfidy is demonstrated by the various addresses that he provided, even to the Court. His first two Affidavits deposed to him living in an apartment in Suburb H, but his third Affidavit refers to an address in Suburb J. At times during cross-examination, the impression the Court formed was that, in fact, he may well have been living in the city. He accepted that the Suburb H address was merely an address for the purposes of forwarding correspondence, particularly departmental correspondence relating to his visa status.
39.He accepted in cross-examination that he wilfully did not advise the Department of Immigration of changes of address, even though he was obliged to do so. In cross-examination he was forced to accept that a Statutory Declaration he made on 4 April 2017, in which he stated he had lived at Suburb H, was plainly false. He accepted in cross-examination that he did not tell the Department about change of address because they would probably find out that he was working.
40.When challenged about the date of separation from the Mother, he was unconvincing in trying to rationalise the events that took place, so that they were consistent with his assertion. When challenged about the extent of his knowledge of the Mother’s mental health issues at around the time that [X] was conceived, he sought to minimise the nature and extent of the Mother’s mental health issues at the time; issues which ironically he sought to amplify in his case against the Mother. His denial that the Mother was experiencing mental health issues at the time that she converted to Islam was plainly implausible.
41.Regrettably, the Court accepts the submission made by Counsel for the Independent Children's Lawyer during closing submissions, to the effect that, given the pervasiveness of the Father’s dishonesty, there is a real risk that he will say and do anything to achieve his desired outcome, which includes remaining in Australia, and having a relationship with his son. If the Father has not complied with so many Australia laws and obligations, how can the Court have confidence that he will comply with any orders of this Court, particularly the orders that he himself proposes?
The evidence of the Family Consultant, Dr K
42.Dr K’s Report is dated 17 August 2017 and was released to the parties shortly thereafter. The Report is based on interviews held on 16 August 2017, which involved the Mother, the maternal grandmother, the maternal step-grandfather, the Father and [X]. Much of the background information given to Dr K, consistent with the evidence before the Court, has already been adverted to above.
43.The different perspectives of the parents about risk of harm issues are summarised at paragraphs 8 and 9 of Dr K’s Report:
[8] The mother alleges that with unsupervised contact the father would withhold the child, and/or kill the child. She claims that the current contact arrangements distress the child, who has become highly anxious due to comments the father has made predicting the child’s imminent, permanent separation from his mother.
[9] The father alleges there is a history of drug abuse and highly conflictual family relationships between Ms Patrick and Ms D, and that the mother’s parenting capacity is impeded by her mental health. There is no history of FACS intervention.
44.It is clear from the Report that Dr K was aware of the Mother’s past mental health, alcohol and drug abuse issues. She was also aware of the Father’s self-harm attempt in May 2012.
45.At paragraph 13, she refers to the records of a psychologist who [X] had been seeing. Paragraph 13 states:
Notes of psychologist Ms F relating to 8 sessions with [X] 8/11/16 -11/7/17 refer to his sub-clinical anxiety specific to the visits to his father, and also indicate that the child said he feared Mr Bishop who had threatened the child with permanent separation from his mother. His teacher and his mother informed Ms F that [X] struggles with peer relations and shows anxiety around the time of visits. Ms F saw Ms Patrick for anxiety and panic attacks in June and July 2017, and found her to be normal on a Mental Status Examination
46.Dr K identifies the issues at paragraph 15 of the Report:
Two major issues on which a psychosocial assessment could assist the Court in its deliberations were identified. The first is whether the mother’s health status (physical and mental) impedes her parenting capacity below minimum community standards. The second is whether the child can have a meaningful and beneficial relationship with the father under the prevailing circumstances (which include the mother’s intractable opposition, signs of the child’s increasing resistance to visits, the uncertainty about the father’s visa status and the distance between the two homes.) Disputed facts with a bearing on family violence and the progress of the father’s immigration application remain for the Court to determine.
47.It is important to understand the Mother’s perspective on the issues before the Court. Dr K’s Report provides a useful summary of this at paragraph 17 to 20:
[17] Ms Patrick justified her parenting proposals in similar terms as set out in her pleadings. She conceded that there were no police records supporting her allegations of intimidating and abusive behaviour by the father but insisted that she is terrified of him, and has relocated so that Mr Bishop cannot carry out death threats against her and her family. Ms Patrick alleged prior verbal abuse rather than physical assault. She claims Mr Bishop exploited her for his own purposes, which she relates mainly to his attempts to obtain residency. She asserts that he has bullying, misogynist attitudes to women which set a bad example for [X].
[18] Ms Patrick asserted that she has seen videos of the father demonstrating fighting moves with large swords, and that he has scars on his back from sword cuts. The mother further alleges the father has recently intimidated one of her sisters who inadvertently entered the shop where he is working, contrary to his visa restrictions. She suspects he may be following her from visits, citing an occasion earlier this year on which a car ran into her on … Rd. The father pulled up immediately, shouting at her “What have you done to my son?” The police asked him to leave. Ms Patrick asserts that she and her family will be at most risk once the father exhausts all avenues for appeal against deportation (which would presumably include Orders made in these proceedings) after which time he will “have nothing to lose”
[19] Ms Patrick gave a brief psychohistory. Her psychiatric crises appear to have begun with drug-induced psychosis. She claims she is now stable on Zyprexa only (as well as daily pain killers for chronic pain) and has been well since [X] was born. She has sought help for [X] as he was exhibiting signs of stress and anxiety related to visits. The psychologist has also been assisting her with parenting strategies to assist [X] (such as calming breathing exercises, mellow music in the car en route) She claimed he gets stomach aches and/or vomits in the lead-up to a visit, begs and cries not to be made to go on the morning of the visit and is unsettled for several days after a visit. She prefers to start very early in the morning and drive 5-6 hours to the contact centre in Town C rather than have visits at a contact centre closer to her home, lest that should reveal her address to the father. About once per month she stays with her sister in Sydney before returning home, other times they drive back the same day. These struck me as wearisome arrangements.
[20] Although Ms Patrick is adamant that contact with the father distresses [X] to no good end, she said she would suggest changing to a contact centre in Canberra if supervised visits were to continue. Ms Patrick advocates the need for supervision to continue until [X] is 16. She realises that supervision by an agency could not continue indefinitely and suggested that she and/or another family member would supervise visits if the Court so ordered. Her thinking in this regard seems muddled, if the threat of violence is as she alleges. When informed this would not be recommended in the report, she suggested that her stepfather Mr L could provide visit supervision. She notes practical barriers to the child staying the father’s home environment – such as that immigration records indicate that Mr Bishop lives in a 2-bedroom unit with 4 other people who support him, that due to his visa status he cannot work or provide materially for the child’s needs during visits.
48.The Father’s perspective is neatly summarised at paragraphs 23 to 27:
[23] …Mr Bishop (33) presented as a neatly groomed man of pleasant unremarkable appearance consistent with his Country B ancestry. He was normally oriented to reality fully alert and showed no signs of being substance-affected. He was neither labile nor volatile. He was polite and cooperative with the assessment process. Although his presentation could fairly be described as pleasant, mild-mannered and reasonable, he was evasive about issues which reflected unfavourably on him. He initially denied, then minimized his “suicide” attempt in 2012, which he conceded had occurred when pressed saying this attempt involved only superficial cuts, and evading the question of how Ms Patrick was sent images of these. Mr Bishop denies all the mother’s allegations of family violence or threats of violence. He said he was “not fighting but dancing” in the videos Ms Patrick had referred to, which he said demonstrated a dance performed at weddings.
[24] Mr Bishop pointed out the logical inconsistency of the two fears the mother has expressed- firstly that he would abscond with the child, secondly that he would kill her and/or the child – saying that the first implies his paternal love and thus contradicts the second. With regard to absconding, he noted that although he has an Country B passport it has expired, so he cannot travel abroad and nor can the child, who lacks a passport. Furthermore, he would not do anything to jeopardise this immigration application. He was evasive and non-specific about the status of his application – conceding only when pressed that the Minister for Immigration had refused his last application, and claiming many avenues for appeal were still open so that deportation within a year is unlikely. He said he will plead on the basis of his relationship with his son, since those who are deported for overstaying their visas are refused re-entry. Furthermore, he contends if he returned to Country B that no matter what this Court ordered with regard to future visits, or contact by email, Skype, telephone or mail the mother would not obey Orders and he would have no effective legal recourse from Country B.
[25] Mr Bishop justified his parenting proposals in similar terms as set out in his Application and Affidavit. He did not raise any evidence of harm to the child but made vague allegations that the mother’s care was suboptimal due to her history of family conflict, drug-taking, mental health crises and her physical disability. He referred to the same car accident earlier mentioned by the mother, implying that it was caused by the mother’s negligent driving. He vaguely inferred that her disability contributed to the accident although, as when pressed on other topics, he digressed when asked about supporting details. Mr Bishop confirmed that he had a car and a current licence, and part-time casual work. I did not probe whether or not these claims were consistent with what his temporary visa permits.
[26] Mr Bishop was aware that the mother is intransigently opposed to his spending unsupervised time with his son despite (he says) having no reasonable basis for fearing him. He noted that in 2016 Ms Patrick had been on the brink of agreeing to Consent Orders, and proposed that contact occur under her supervision, and continuous presence which does not accord with her claims to fear his violence. (She said that she did this in desperation having lost her grant of Legal Aid) He explains her intransigence about unsupervised contact in terms of her personality – i.e. a petulance if she does not get her own way
[27] Mr Bishop confirmed that [X] (whom he refers to as [X]) was often reluctant to start a visit and had to be coaxed into the room by staff members. He construed the child’s most recent visit refusal in terms of feeling uncomfortable about starting visits again after a break due to illness. Apparently, the most skilled care worker was not on duty that day to ease the transition. Mr Bishop expressed the hope of progressing his time with [X] gradually but always with supervised handovers at Catholic Care or equivalent agency as he expects the mother will never facilitate contact. He expressed more faith in Mr L to conduct a handover. He said he was aware that [X] was young to suddenly separate from his mother overnight and suggested starting with short day time visits progressing gradually to overnights when the child felt comfortable. He struck me as realistic in his contingency planning in this regard, but unrealistic about the likelihood that, given the mother’s intractable opposition, [X] could overcome his anxiety about visits during his early primary school years – or indeed any time before puberty.
49.It is interesting to observe that Dr K found the Father to be evasive, non-specific, or vague about important issues.
50.Dr K met with [X], found him to be a handsome boy with black hair and dark eyes, with colouring favouring his Father. She observed his physical development, language and social aplomb to be normal for his age. Dr K concluded, quite correctly the Court finds, that the Mother was [X]’s primary caregiver, but other significant adults in his life included the maternal grandmother, her partner Mr L, and Ms M, [X]’s great-grandmother. All of these people live together.
51.Dr K was clearly aware of [X]’s history of contact with his Father at a supervised contact centre.
52.The observations of interaction are important, and are set out at paragraphs 32 to 33:
[32] In the secure waiting room [X] was observed in interaction with family members each time adults were invited to or returned from 1:1 interviews. He appeared to have warm, comfortable, trusting relationships with his grandparents. When observed in play interaction with his mother [X] behaved like a securely attached child – eagerly exploring the playroom with curiosity, occasionally checking in with his mother. Ms Patrick interacted very appropriately – providing structure, guidance and validation as required without intruding on the child’s play interests and encouraging pro-social behaviour (such as not throwing sand, packing up toys when finished, answering me politely if he was addressed). [X] was normally cooperative and compliant. A mutually warm affectionate relationship was observed to exist between mother and child.
[33] Although [X] was shy at first, he engaged with me cheerfully after a period of conjoint interaction which clarified that in was a mother-approved stranger, he declined an individual interview. He spontaneously asserted that he did not want to see “Mr Bishop”. In response to further probing he became more definite in his refusal, leading with his chin and shaking his head vigorously. His mother confirmed she had told [X] earlier that morning that his father would be present and he could see him. After escorting them back to the secure interview room I asked [X] whether he was sure he would not like to just come out with me and briefly greet his father. [X]’s facial expression seemed uncertain and uneasy (in contrast to how adamant he seemed earlier). He looked to his mother for a cue. She said nothing. [X] then shook his head. It was my impression that although [X] felt uncomfortable about meeting his father, had his mother urged him to comply with situational demands, and had provided verbal reassurance, [X] probably could have come with me.
53.Dr K did not, of course, have the same benefit as the Court did to observe the Mother, maternal grandmother, and the Father in evidence. Nonetheless, it is interesting to observe the impression that she formed at paragraph 33, to the effect that even though [X] was uncomfortable about meeting his Father, had his Mother urged him to comply and provided verbal re-assurance, [X] probably would have met with Dr K and the Father. Given the grave reservations that the Court has about the toxic environment in the Mother’s household, insofar as [X]’s relationship with his Father is concerned, Dr K’s impression is prescient.
54.Dr K’s evaluation is found at paragraphs 34 to 42 and will be reproduced in full:
[34] On the basis of this assessment it is my concluded opinion that there is no realistic prospect that any Orders designed to support a relationship between Mr Bishop and [X] will succeed at this stage of the child’s development. Ms Patrick resolutely insists that Mr Bishop is a dangerous, anti-social misogynist and denies any possible benefit to the child having a relationship with such a father. Her claims that Mr Bishop has amply demonstrated his contempt for the law by remaining in his country illegally and that he is likely to be deported, have face validity and would strengthen concern that Mr Bishop might carry out the violent reprisals, if these allegations were found to be credible. Family violence is a matter of disputed fact for the Court to determine. My opinion does not rely on a presumption of truth for the mother’s assertion of any intolerable risk of harm posed by the father but rather on the application of two general principles to case specifics.
[35] The first maxim applied is that the benefits to a child of maintaining a secondary attachment must clearly exceed the stress inherent in executing the contact arrangements. The second general principle is that young children are psychologically vulnerable during transitions -particularly transitions between parents who remained in high conflict- and therefore require at least one parent (ideally both) to act as external stress-regulators during a stressful transition which exceeds the coping capacity of a cognitively and neurologically immature child.
[36] Neither of these conditions are met in this case. There is no prospect that either conditions will be met any time soon. The long car trip to and from supervised visits would be onerous for both mother and child. The tedious journey provides an extended period during which [X] can anxiously ruminate about a forthcoming difficult separation from his mother. Young children take their cues about safety or danger from their primary caregivers. Observation at interview suggests a close attunement between [X] and his mother.
[37] The mother’s feelings towards the father are dread and repugnance. Given that individuals with Borderline Personality Disorder are prone to markedly over-reactive emotional responses to stress (especially to denigration, rejection or loss), maladaptive ways of coping with anxiety and confused thinking which compromises interpersonal problem-solving capacity, they usually show a pattern of engaging in chaotic, upsetting relationships. On that basis, it is equally plausible for someone with BPD that due to impaired information-processing she was readily victimised by an exploitative man OR that her feelings towards and ex-partner are over-reactions OR both.
[38] Whether Ms Patrick’s negative attitudes towards Mr Bishop are based on her veridical memories of lived experienced with him, or whether they arise from distorted-information processing really makes no difference to the psychological impact on the child. Ms Patrick is intractably opposed towards Mr Bishop whom she perceives as toxic. [X] cannot help but be infected by her anxiety about the father-son contact, whether or not it is well-founded. The treating psychologist’s assessment (which included consultation with his teacher) indicates that [X] is suffering from phobic anxiety specific to these visits, and that this anxiety is affecting his school adjustment, as well as his physical health. If his mother was supportive it may be that [X] could enjoy time with his father.
[39] Even though he says he hates going to visits [X] may not dread his father per se, he may just find the whole process noxious. Reports of challenging, non-compliant behaviour emerging during visits indicate the child’s growing anger about his predicament His recent visit refusal augurs badly for the success of continuing supervised visits at Catholic Care – who have already extended the period of supervision far beyond the usual arrangement. Progression to visits supervised by a family member (such as Mr L) is not deemed to be a viable option. It is inconceivable that a member of the maternal family would prevail against the child’s reluctance to transition when the efforts of trained workers have failed.
[40] It seems that Ms Patrick meets community standards of care for [X] in a stable home. Her mental health problems seem to be well-managed by treatment, with which she complies. No need for a change of residence has been demonstrated for child welfare reasons. Even so Mr Bishop would be an unsuitable candidate as a primary caregiver given the uncertainty about his future residence in Australia, and about his ability to provide a suitable home environment which meets the child’s material needs. Nor would international relocation be safe according to Mr Bishop’s own claims. I noticed in a brief scan of subpoena materials relating to his immigration application that one of his stated reasons for applying for refuge in Australia was that he feared violent reprisal (an honour killing) from his strict Islamic family for marrying outside his faith. If this is so, [X] accompanying his father to Country B even for a visit would be too dangerous an option to contemplate. Alternatively, if it transpires that this danger of lethal harm a fabrication for legal advantage, then it makes Mr Bishop look untrustworthy, and strengthens the mother’s claims that he exploits other people in pursuit of his immigration objective. At interview Mr Bishop justified his need to stay in Australia only in terms of maintaining a relationship with his son.
[41] If Mr Bishop’s application to remain long-term in Australia succeeds on some basis other than Family Law Orders, and if intervening events give no rise to the family violence concerns alleged by Ms Patrick, he could renew his application for time with his son when [X] is >12. That would take pressure off [X], and give him time to make normal developmental progress without being further impeded by the harmful impact of these proceedings. By age 12, a child of normal intelligence and normal stress-hardiness might be expected to have individuated psychologically sufficiently well to be able to tolerate holding a different view from his primary attachment figure without experiencing terrifying attachment anxiety. (The mother’s contention that supervision would be necessary until age 16 seems alarmist.)
[42] I predict that at this stage persistence with father-son visits in any form will quickly lead to [X] refusing to transition, and subsequently rejecting any all future contact of any sort with his father. This matter may then return to Court as dispute about alienation versus realistic estrangement. Protracted litigation would diminish [X]’s chances of a good social adjustment as a primary school child. Likewise, there is no realistic prospect that these parents could ever co-parent. Any arrangement other than sole parental responsibility to the residential parent is deemed unworkable.
55.It is important to make a number of observations about Dr K’s evaluation. Dr K is pragmatic in her evaluation. She focused on the benefits to [X] of maintaining the relationship with his Father and the importance of balancing this against the inherent stress in implementing such an outcome. She emphasised that this was a high-conflict case. Indeed, there are few cases which, the Court observes, have such clear indicia of lack of parental trust, absence of communication, and mutual strong feelings of ill will towards the other. Moreover, Dr K frankly grapples with the issue of the Mother’s negative attitudes towards the Father and pragmatically concludes that [X] cannot help but be infected by her anxiety, whether or not it is subjectively, or objectively based.
56.Dr K recommended sole parental responsibility to the Mother, with no contact or communication. As will be seen presently in the discussion of the cross-examination of Dr K, the Mother subsequently changed her proposal to that which was advanced after most of her evidence had concluded, i.e., that [X] spends time with his father 4 times a year.
57.Dr K was extensively cross-examined. She was made aware of the Mother’s proposal, as reflected in the orders sought by her, and the Independent Children’s Lawyer. She was appraised of the Father’s proposal having regard to the evidence that he had given. She accepted that the most recent evidence about [X]’s time with his father was consistent with him oscillating between enjoying his time with the Father, and not wanting to spend any time with him at all. Having been updated about these matters, she maintained the view that there should be an order for sole parental responsibility as there was simply no prospect for the parents to repair their relationship. Moreover, an order for no contact or communication was the order least likely to lead to further litigation, and the order most likely to avoid intolerable stress on [X]. Nonetheless, Dr K accepted that if the Mother was prepared to forward a proposal for contact four times a year, this suggested confidence that [X] could cope with this. Dr K appeared heartened by the possibility that, from [X]’s perspective, there would be less travel involved in spending time with his father. This would also make such an arrangement more acceptable for the Mother.
58.When the issue of why the Father’s time should be supervised was explored with her, Dr K emphasised what she described as the lack of transparency in the Father’s life. She raised concerns about whether the Court could be confident with his trustworthiness. She confirmed the almost inevitability of [X] picking up his mother’s anxieties in relation to the Father. Once again, she explained that even though the Mother’s feelings might be irrational, this is quite irrelevant from [X]’s perspective. She accepted that the Mother’s fears of the Father were probably genuine, albeit misguided.
59.Counsel explored with Dr K the possibility that the Father might be detained, or deported from Australia. Dr K did not believe this would adversely affect [X] in the short term.
60.The Court accepts Dr K’s evidence.
Orders in the best interests of [X]
61.The Court must have regard to a number of legal considerations in order to decide what order is in the best interests of [X]. The application of these legal considerations is dependent on the facts of this case.
62.The Court must consider as a primary consideration the benefit to [X] of having a meaningful relationship with both of his parents. There is no doubt that he has a meaningful relationship with his mother with whom he has lived all of his life and with whom he is primarily attached, according to Dr K. Does [X] have a meaningful relationship with his father? The evidence in this regard is conflicting. The Father’s evidence strongly suggests that he does have a meaningful relationship with his son. The Mother’s evidence is quite to the contrary. The more objective evidence from these supervised contact centres suggest that the truth is somewhere in between. [X] has a form of relationship with his father. It is neither consistently good, nor consistently bad. To the extent that the Court must consider whether, in a prospective sense, [X] would benefit from having a meaningful relationship with his father, the answer is a conditional yes. [X] would clearly benefit from having a meaningful relationship with his father, provided his father is consistently available to him, provided the benefit to him of this relationship is greater than the stress that he experiences in order to spend time with his Father and provided his mother is capable on a sustained basis of supporting and encouraging the Father’s relationship with [X]. Subject to those conditions, in a prospective sense, [X] would benefit from having a meaningful relationship with his father. Ultimately, however, this consideration is not determinative in its own right.
63.The Court must consider as a primary consideration the need to protect [X] from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
64.The Father’s case was that there were risks of harm in the Mother’s household and, to a lesser extent, from the Mother herself. The Father’s case was poorly supported and advanced during the Hearing. It is, in any event, quite inconsistent with his own proposal which was initially for equal time, and then later that he simply spend time with his child on an unsupervised basis as the Court orders. The Court finds, therefore, that there is no need to protect [X] from any risk of harm in his mother’s household in terms of abuse, neglect or family violence.
65.The Mother’s case was that unsupervised contact will expose [X] to an unacceptable risk that his father would withhold him, or indeed, kill him. The Mother’s case was that she was the victim of coercive and controlling behaviours as well as verbal abuse.
66.As foreshadowed earlier in these Reasons, there is no doubt that the Mother has subjective beliefs about risks of harm to both herself and [X] that have no objective basis. Even Dr K referred to these concerns as being genuine, but misguided. The Court finds that the Mother’s fear of the Father was exaggerated, and is, indeed, a convenient strategy consistent with her desire to exclude [X] from the Father’s life.
67.However, insofar as the Mother was concerned the Father absconding with [X] if his time were unsupervised, the Court accepts there is a reasonable basis to be so concerned. In short, any Court needs to have a measure of trust in a parent so that it may be reasonably assured that orders that it makes will be complied with. The Court does not have this reassurance in relation to the Father. Implicit in his case is the contention that he would abide by any orders that the Court makes for him to spend time with his son. But this contention is patently inconsistent with his actions since 2010 when he has, in reality and in substance, sought to live above the law. Counsel for the Mother’s closing submission that the Father, in effect, lived in hiding, had an unstable lifestyle, and was a pervasive and actual flight risk is a submission that is amply supported from the evidence. Some might say that the Father’s desire to remain living in Australia was understandable, at least at a personal level. His willingness to do so, by any means, and at any cost, reveals his willingness to go outside the law to do whatever it takes to achieve his two-fold desire to remain in Australia, and to have a relationship with his son. The end does not justify the means when it comes to assessing what is in the best interests of a child. The Father cannot turn to the law to assist him in this regard, but then selectively disregard the law. There is nothing on the evidence to suggest that the Father would intentionally physically harm his son, or abuse or neglect him, or subject or expose him to family violence. The Father’s lawlessness, however, does suggest that he might inadvertently expose his son to abuse, neglect or family violence, and that the harm might be psychological, even if not physical. Quite frankly, on the evidence before the Court, neither the Mother, nor the Court, could be reasonably satisfied that the Father would return [X] if unsupervised contact were ordered. The combination of his insensitivity to [X]’s needs, his enmity towards the Mother, and his indifference about the law, creates a serious risk in this regard. Unsupervised contact is out of the question. It presents an unacceptable risk of harm to [X].
68.At least implicit in the Mother’s case is the contention that the current supervised contact arrangement presents a psychological risk of harm to [X]. The Court does not agree that the evidence is so clear cut in this regard. The agency of the Mother, and the maternal family, in any stress that [X] experiences in spending time with his Father, cannot be discounted. Moreover, the Mother’s final proposal advanced to the Court is, in itself, inconsistent with the notion that supervised time presents a risk of harm to her son.
69.The Court must consider any views that [X] has expressed. The Court does not accept that any views purportedly expressed by [X] should receive any weight. The Court explicitly rejects the Mother’s evidence in this regard. The profound impression formed after hearing the evidence of the Mother and the maternal grandmother is that, so far as the Father’s relationship with [X] is concerned, a toxic environment pervades the Mother’s household. It surely follows that any views expressed by [X] should receive no weight.
70.The Court must consider the nature of [X]’s relationships with his parents, and the other significant persons in his life. To some extent, this has been discussed above. It must be acknowledged, however, that Dr K’s evidence, in particular, suggests that [X] has a good relationship with his maternal grandmother, the maternal great-grandmother, and the maternal grandmother’s partner. None of the proposals before the Court would detract from those relationships.
71.It is important to acknowledge Dr K’s evidence, however, to the effect that in the short term [X] would not suffer loss or adversity as the result of either not spending time with his father at all (a possible scenario should the Father be detained or deported) or if he should only spend four contact visits with him a year.
72.The Court must consider the extent to which each of the Child’s parents has taken, or failed to take, the opportunity to participate in decision-making, and to spend time and to communicate with the Child. The totality of the evidence before the Court leads to two clear findings. The Mother has systematically excluded the Father in any decision-making relating to [X]. Some of this may be explained and understood as sheer practicality caused by lack of trust, inability to communicate, and geographical distance. But that is not an entire explanation. The Mother’s evidence in cross-examination leads the Court to conclude that, if she had her way, [X] would have no relationship with his father. It is a pervasive attitude present within the Mother. There was nothing in her evidence that suggested that she even acknowledged the principle of having to consult the Father about making decisions about, for example, where he would live. As it turns out, however, the Court will find, based on the totality of the evidence, that the Mother and Father are singularly unable to make decisions together in [X]’s best interests. They cannot communicate. They do not trust each other. A measure of mutual loathing is palpable.
73.By contrast, the totality of the evidence leads the Court to conclude that the Father has sought, consistently, and persistently, to spend time with his son in accordance with the Court’s Orders.
74.The Court must consider the extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain [X]. The Mother has done what she can, with little or no financial assistance from the Father. The Father knew that he had to pay child support, in fact he paid child support for very limited periods, but consciously made the decision not to pay child support because of the personal adverse implications to him of the Australian Government, or an instrumentality thereof, finding out that he was working contrary to his visa conditions.
75.It is not as if the Father did not understand [X]’s need for him to provide financial assistance to his mother. It is not as if the Father did not understand the Mother’s need for his financial assistance. The inescapable inference available from the evidence he gave is that he was well aware of both these things, but consciously chose to advance his own interests to avoid detection, over that of his son’s interests. At times when he should have been paying child support for his son, he spent money on his migration agents and immigration lawyers.
76.At the Hearing, he gave evidence in cross-examination that he was working as a delivery driver and earning between $1000 - $1300 per fortnight. He had access to a motor vehicle and motorcycle. The Court acknowledges that this is not a significant income, given that the Father would need to accommodate himself and meet his reasonable living expenses. However, the Court can by no means be sure that his actual income is as he explained in cross-examination. The Court does not understand why he could not have provided more systematic (as opposed to ad hoc) informal financial support to the Mother. His inability to meet his obligations to maintain his son is a manifestation of the bifold problem that the Father has of living in hiding, and living on borrowed time.
77.The Court must consider the likely effect of any changes in [X]’s circumstances, including the effect on [X] of separation from one of his parents. It was common ground that [X] would continue to live with his mother. Dr K confirmed that if the Mother believed that [X] could sustain four contact visits with his Father each year, that suggested she believed it was in her best interests, and, thus, Dr K would support it as well. Dr K also confirmed that the prospect of no time with his father was not something that would be adverse to [X]’s best interests, at least in the short-term. The Father’s proposal is initially for equal time, but eventually he, in effect, threw himself at the Court’s mercy about what time he could spend with his son, provided it was unsupervised. The risk of harm consideration addressed above explains why his time must be supervised.
78.The Father’s current arrangement involves spending supervised time with his son each alternate weekend. It would be impractical, and quite frankly against public policy, to continue this order indefinitely into the future. It is neither in [X]’s best interests, nor is it the best use of very limited public resources in the form of supervised contact facilities. No other viable alternative supervisor was postulated in the evidence. Implicit in Dr K’s evidence was the view that [X] would not sustain more time with his father, in the current circumstances.
79.In reality, there appears to be limited options available to the Court. The Mother and Independent Children’s Lawyer’s proposal involves [X] spending time with his father four times a year. It is what is commonly known as a recognition contact arrangement. The Mother, the Independent Children’s Lawyer, and Dr K believe that [X] could sustain this sort of change in the current arrangements.
80.The only other real alternative is no contact at all. That is not the order sought by the Independent Children’s Lawyer or the Mother. It is, however, what could be the result, if the Father is either detained or deported. A curious feature of this case is that even after hearing the evidence of the Father’s immigration agent, the Court is still none the wiser about the current status of the Father’s applications to the Department of Immigration, and the Court still has no real assessment of the prospects of the Father being granted a protection visa, or being allowed to remain in Australia indefinitely. The Court cannot exclude the possibility that the Mother’s Counsel’s submission that the Father is living on borrowed time is in fact correct. He has illegally remained in Australia for nine years. Detention and/or deportation, is a real possibility for the Father, though the Court does not doubt his commitment and ingenuity in exploring every possible process and procedure to seek to vindicate his claim to remain in Australia. The issue for the Court, however, is the likely impact on [X] of the Father absenting himself, voluntarily or involuntarily, as a result of the matters referred to above. Again, Dr K had concluded in her Family Report that no contact was in [X]’s best interests. When cross-examined, she explained that in the short term there would be no adverse consequences for [X], but acknowledged that in his teen years issues may arise about his father’s absence in his life. One can only surmise that [X]’s physical resemblance to his father might only accentuate this risk. This is a matter that weighs heavily on the Court’s mind.
81.The best outcome for [X] would, on the evidence considered so far, be that he spend time with his father four times a year. If his Father ceases to be involved in his son’s life, either voluntarily or involuntarily, [X] would probably notice this and possibly even in the fullness of time grieve his Father’s absence. But if the Father is detained or deported, these are matters outside of the control of this Court, or indeed of the parties to this case. If the Father is detained, or deported, it will be the result of the application of due process, and will be the inevitable consequence of the Father’s own illegal acts.
82.The Court must consider issues of practical difficulty and expense of [X] spending time and communicating with his father, and whether that difficulty or expense substantially affects his right to maintain relationships with both parents on a regular basis. The Mother’s evidence, and Dr K’s evidence, confirms that the current spends time with arrangement places a considerable burden on the Mother, and [X], to travel great distances, so that the Father can spend supervised time with his son. That they have managed to sustain this arrangement reflects a number of pragmatic considerations. It was the Mother who unilaterally relocated [X] outside of the Region 1. It would also have been most unwise for the Mother not to comply with the order, pending the outcome of this case. The Court is prepared to accept from the totality of the evidence that this sort of travel has been difficult for [X]. Experience suggests that the difficulty may well be felt even more so as he develops into adolescence.
83.The Mother and Independent Children’s Lawyer’s proposal clearly addresses this issue by moving the contact venue closer to where [X] and the Mother lives, and reducing the frequency of time, so that less travel is involved. In the circumstance, this proposal addresses the consideration.
84.The Court must consider the capacity of each of [X]’s parents, and indeed his grandmother, to provide for the needs of [X], including emotional and intellectual needs. The Court has already adverted to a number of concerns about the toxic nature of the maternal household, in relation to [X]’s relationship with his father. Left to themselves, the Court doubts very much that they could support [X]’s relationship with his father. Indeed, at the risk of sounding cynical, the Court has concerns about the Mother’s capacity to commit on an enduring basis to the very order that she proposes. Nonetheless, the Court recognises that this is an order that can be enforced, and the Father has shown the skill and determination to invoke the appropriate legal process. Notwithstanding this, there is no evidence to suggest that the Mother, supported by the maternal family, cannot provide for all of [X]’s other needs. There are no extant concerns about her mental health, or drug or alcohol issues. The concerns are attitudinal, as noted above.
85.There are issues, however, about the Father’s ability to provide for his son’s needs. At a very basic level, there is a question about his ability to meet [X]’s physical needs. As mentioned earlier in these Reasons, the Court isn’t even sure where there Father is living: the city, Suburb H, or Suburb J? He gave evidence that he would seek better and more suitable accommodation for [X], should the orders that he seeks be granted. But how would that be achieved given his illegal status, non-entitlement to Centrelink benefits, and low disclosed income? Little is known about the Father’s emotional attunement to [X]’s needs. Concerns may be inferred, however, from the proposal initially advanced to the Court which suggested a lack of understanding of how [X] is experiencing the parental conflict as well as a failure to appreciate his developmental needs.
86.The Court must consider matters of maturity, lifestyle and background. The Mother is Australian. The Father is of Country B ancestry. This consideration was not raised as an important one in this case. There is no evidence to suggest that the Mother would do anything to maintain a cultural connection between [X] and his father’s cultural heritage.
87.The Court must consider the issue of the parents’ attitudes to [X], and to their responsibilities of parenthood. Much has already been said in these Reasons for Judgment about issues which relate to parental attitudes and responsibilities. Both parents are problematic in this regard. It is possible, the Court hypothesises based on its own experience in these cases, that the conclusion of these proceedings on the basis of the orders supported by the Mother might result in a positive attitudinal change in her. It will certainly reduce any anxiety that she feels, as misguided was the basis of the same. Even the change of venue for supervised contact will probably have an ameliorative effect for her. She might be willing to tolerate the Father’s presence in [X]’s life four times a year, rather than the current arrangement, or that proposed by him.
88.The Court must consider matters relating to family violence including family violence orders. There are no family violence orders. The Court doubts very much that the allegations that the Mother made about family violence reflect what actually occurred. In any event, this consideration is not determinative.
89.The Court must seek to make an order that is least likely to lead to the institution of further proceedings in relation to [X]. The risk of an appeal, or of contravention proceedings, is an ever present risk in this case. Short of making an order for no contact, a proposal advanced by no party, the Court is satisfied that the order proposed by the Independent Children's Lawyer and the Mother is probably the one that is least likely to lead to further proceedings.
90.Having regard to all of the evidence, and the considerations referred to above, the Court believes that it is in the best interests of [X] that orders be made as proposed by his mother and the Independent Children's Lawyer. The conclusion of these long running proceedings will not only benefit [X], but his parents as well. An order for sole parental responsibility is in [X]’s best interests. His parents cannot communicate. His Father’s unstable lifestyle contra-indicates his being available for consultation even if the parents could communicate. The risk of detention or deportation is a real one.
91.It is clear that [X] should live with his mother. The order proposed in relation to the Father spending time with him is in [X]’s best interests. Locating this contact in Town A obviously addresses many of the issues of practical difficulty and expense for the Mother and [X]. The Father should be able to manage this travel, if it is only four times a year. Imposing the cost on him is not unreasonable given the absence of any other support he provides for him.
92.The proposed Order 5 is, however, problematic. Given the findings the Court makes in relation to the Mother’s reluctance to support [X]’s relationship with his father, it would not be appropriate for her to nominate the day, time and location for the visit. Order 5 will need to be redrafted slightly so that it is not possibly inconsistent with Order 3. The Court’s intention is that unless the parties otherwise agree, the Father will spend time with [X] on the Saturday immediately following 1 February and 1 May, on Father’s Day, and on [X]’s birthday each year. To be very clear, unless the parties otherwise agree, these are the dates for contact.
93.Given that it is anticipated that Orders will be made, and this Judgment published, early in February, the Order is to start from the Saturday immediately following 1 May 2019. It must also follow that the existing Order is forthwith vacated. The remaining Orders appear proportionate, and well-tailored to meeting the best interests of [X].
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 11 February 2019
Schedule One
Chronology prepared on behalf of the Applicant Mother
| DATE | EVENT | EVIDENCE |
| … 1982 | Mother born | P 01.09.17 p1 |
| … 1984 | Father born | P 01.09.17 p2 |
| 2003 | Mother diagnosed with bi-polar and schizophrenia and spends approximately 4 weeks in mental health facility | P 01.09.17 p4 |
| 2007 | The maternal grandfather commits suicide | P 01.09.17 p5 |
| 2007 | Mother has leg amputated after falling onto train tracks | P 01.09.17 p5 |
| May/June 2010 | Father’s student visa expires and father becomes illegal immigrant | P 01.09.17 p8 |
| 2010 | The parties meet and commence relationship soon after | P 01.09.17 p12 |
| 4 September 2010 | Letter from Dr N to Dr O stating, “[the mother] reported a number of symptoms that don’t cluster into single condition or diagnosis, panic attacks, long history of generalised anxiety, intense grief, euphoric mood, intrusive memories of past stresses and PTSD, unintelligible pressured speech as in hypo mania and a long history of sleeping difficulties. Ms Patrick’s psychiatric history includes amphetamine related psychosis and a major suicide attempt..” | Subpoena to Dr G issued by ICL dated 11 June 2013 and marked at M7 |
| 2010 | The parties commence cohabitation | P 01.09.17 p12 |
| 2010 | Mother begins to experience delusions | P 01.09.17 p13 |
| 2010 | Mother converts to Islam | P 01.09.17 p14 |
| … 2010 | Parties take part in a traditional Muslim ceremony amounting to a wedding | P 01.09.17 p13 |
| 2010 | Mother stops smoking marijuana | P 01.09.17 p6 |
| 2010 | Mother admitted to Hospital psychiatric unit for treatment of mental health conditions as well as valium addiction | P 01.09.17 p15 |
| 2011 | Mother released from hospital, and parties commence living out of their car for one (1) week | P 01.09.17 p16 |
| 2011 | Incident occurs between Mother, Maternal Grandmother, and Mother’s landlord resulting in police taking Mother to hospital | P 01.09.17 p17 |
| 2011 | Mother admitted to Hospital | P 01.09.17 p16 |
| 2011 | Mother stops using valium | P 01.09.17 p17 |
| 2011 | Father attends hospital to see Mother and forces the Mother into having sexual intercourse | P 01.09.17 p18 |
| 2011 | Mother’s mental health condition stabilises | P 01.09.17 p85 |
| 2011 | Parties commence cohabitation with the Mother’s Aunt – Ms M | P 01.09.17 p19 |
| 2011 | The parties discover the Mother is pregnant and the father advises the Mother he does not want to live with her | P 01.09.17 p19 |
| 2011 | Mother moves in with Maternal Grandmother, Father resides elsewhere | P 01.09.17 p20 |
| … 2011 | The child subject of the proceedings is born | P 01.09.17 p20 |
| Early 2012 | Father commences making child support payments and stops after 17 payments | P 01.09.17 p88 |
| April 2012 | Mother ends relationship with Father | P 01.09.17 p23. |
| April 2012 | Father advises Mother that he wants child to live with him. Father threatens that he will take the child and never allow her to see him again. | P 01.09.17 p25 |
| April 2012 | Mother unilaterally withholds the child from the Father | P 01.09.17 p25 |
| 2012 | Mother receives a number of harassing and intimidating phone calls from the Father | P 01.09.17 p26 |
| 2012 | Father sends Mother a text message advising that he intends to commit suicide | P 01.09.17 p29 |
| 2012 | Mother receives a text message from Father’s friend ‘… blaming the Mother for the Father’s suicide attempt, and advising he is now in hospital | P 01.09.17 p30 |
| 2012 | Mother receives text messages from Father containing photos of cuts on his arms and stating that he will continue to cut his arms until the Mother answers his calls | P 01.09.17 p31 |
| 2012 | Mother tells Father that he will not see the child if he continues to threaten her | P 01.09.17 p32 |
| June 2012 | Father stops threatening Mother and time is resumed under supervision at the … Club | P 01.09.17 p33 |
| September 2012 | Father approaches Mother to reconcile and she denies his request. Father states, “if I can’t have yous in life, I will have yous in death. That way we can be together always.” Mother contacts the police who advise they cannot assist. | P 01.09.17 p34 |
| October 2012 | Mother unilaterally withholds child from the Father. | P 01.09.17 p33 |
| 17 October 2012 | Father contacts Mother again via phone and states “immigration is here. I cannot believe your mother dobbed me in. It’s okay my boss is hiding me.” | P 01.09.17 p35. |
| 18 October 2012 | Father contacts Mother again via phone and states, “you and your mum have disrespected my religion. People who disrespect my religion get hurt.” | P 01.09.17 p36. |
| 19 October 2012 | Father calls Mother again stating, “I do not want you to get into any more trouble than you’re already in. I want you to cancel your pension and marry me today.” | P 01.09.17 p37 |
| 19 October 2012 | Mother contacts the police and makes a statement, the police apply for an Apprehended Violence Order (‘AVO’) | P 01.09.17 p37, 38 |
| 25 October 2012 | Father applies for protection visa, and on lodgement is granted a bridging visa | P 01.09.17 p8 |
| 14 November 2012 | Father attends Mother’s property and states, “the police said it was okay for me to come and see my son.” The police are called and they attend and serve the Father with their Application and Provisional Orders. | P 01.09.17 p40 |
| 21 November 2012 | Interim AVO made | P 01.09.17 p42 |
| 7 December 2012 | Letter is sent by Parish Pateince Immigration Lawyers to Immigration and Citizenship on Father’s behalf asserting that the Father has stated in his Application for Protection Visa that he fears being victim to an honour killing should he be required to return to Country B. He also fears torture and significant harm due to his previous relationship with the Mother.” | Subpoena to Department of Immigration and Citizenship tabbed M1/M2, issued by Hilton King |
| 10 December 2012 | Father gives statutory declaration stating that he “will die if he has to be away from [his child]” The declaration refers to the Mother as his ‘wife’ and gives no indication that they had separated some months prior, or that Family Law proceedings had been commenced | Subpoena to Department of Immigration and Citizenship tabbed M3, issued by Hilton King |
| 13 December 2012 | The Mother initiates proceedings in the Federal Circuit Court | P 01.09.17 p44 |
| January 2013 | Mother enrols the Child in day care for one day a week and provides photos of the Father to the day care staff. | P 01.09.17 p76 |
| 9 January 2013 | Magistrate declines to make a final AVO | P 01.09.17 p42 |
| 1 March 2013 | Father’s visa application refused | P 01.09.17 p8; Subpoena to Department of Immigration and Citizenship tabbed M4, issued by Hilton King |
| 5 March 2013 | Dr N sends letter to Dr O stating, “[the mother] presented as mentally well young woman who despite significant currant psycho social stresses associated with her ex partner is managing life well. She religiously takes Zopraxa (sic) and fortunately does not report troubling side effects... [the mother] does not appear to require any psychological interventions at this stage.” | Subpoena to Dr G issued by ICL dated 11 June 2013 and marked at M6 |
| 27 March 2013 | Father applies for a review in the Refugee Review Tribunal and is granted an additional bridging visa | P 01.09.17 p9 |
| 28 March 2013 | Review in Refugee Review Tribunal unsuccessful | P 01.09.17 p10 |
| 16 April 2013 | Parties attend Child Dispute Conference appointments and memorandum is released recommending an expert report and highlighting that there are significant issues impeding a resolution in the Family Law proceedings. | CDC Memorandum |
| 30 April 2013 | Dr O writes letter to Dr G stating “[the mother’s] ex partner has made claim that [the mother] is mentally unwell and is using illicit drugs. As per recent letter from Dr N [the mother] has been very well mentally since the birth of her son and is managing very well with parenting.” | Subpoena to Dr G issued by ICL dated 11 June 2013 and marked at M5 |
| 7 May 2013 | The matter returns to the Court and Orders are made placing the child on the Airport Watch List for two (2) years | P 01.09.17 p46 |
| 9 July 2013 | Matter returns before Judge Foster, and is adjourned to allow for Father’s refugee applications to be finalised | P 01.09.17 p47 |
| 14 October 2013 | Matter listed for interim hearing in November | P 01.09.17 p |
| 8 November 2013 | The Court makes interim Orders for the parties’ to enrol in Catholic Care and for the child to have supervised time with the Father | P 01.09.17 p58 |
| 2014 | Father recommences child support payments | P 01.09.17 p88 |
| 5 February 2014 | Father has intake session with Catholic Care – these intake notes are recorded: “Trauma: STP has not experienced any trauma LWP has experienced loss of leg. LWP tried to suicide by throwing herself under a train. Loss of leg resulted. AOD: STP has no AOD issues. LWP used to drink alcohol and smoke marijuana regularly. Not sure of quantity or regularity. MH: STP has no mental health history. LWP has been admitted to a mental health institute 3 or 4 times due to schizophrenia and bipolar. LWP is still on medication/treatment. Relationship History: Separated in March 2012 after 1.5 year relationship. Separation occurred over numerous issues such as STP working away from home and only being present on weekends, conflict with religious upbringing of child (Islam v Muslim) and financial issues. Last contact with child was September 2012. Child is closest to LWP as more time was spent with her. STP would assist with changing nappies, washing and bathing and giving LWP a rest. Child Protection: No child protection issues. Support Parenting and Training: STP has friends as support. KKIMS course discussed. STP would like to find out what foods to bring. STP doesn’t want to interfere with [X]’s routine. Goals: To have a good relationship with child. Fulfill child’s needs and make him feel secure” | Subpoena of Catholic Care #17 tabbed M1 |
| 7 February 2014 | Mother has intake session with Catholic Care – these intake notes are recorded: “Trauma – LWP’s father committed suicide 7 years ago. 6 weeks prior to father’s death LWP was suffering depression and drinking alcohol and was hit by a train resulting in loss of her leg. AOD: No alcohol or drug issues for LWP or STP. MH: LWP was diagnosed with schizophrenia and bipolar at age 21 years. LWP admitted to mental health institution twice. At 21 years for 4 weeks and 3 years ago for 6 – 7 weeks. LWP is currently taking Zyprexa 5mg. LWP is currently suffering anxiety resulting from court proceedings. Relationship history: Separated in March 2012 after 18 month relationship. Separation occurred over different views and culture. STP tried to force Muslim culture onto LWP. When LWP was mentally unstable STP took LWP to a mosque and made her participate in a marriage ritual. STP wanted to marry LWP in order to gain a visa taking advantage of LWP when mentally unstable. Last contact STP had with child was in September/October 2012 at a Club supervised by LWP’s family. STP made numerous p/c to LWP threatening to kidnap child. LWP reported to Police but threats were of hearsay and AVO was denied. STP p/c LWP, “If I can’t have you in life, I’ll have you in death”. STP only held child when he was asleep or happy. STP would call for LWP to settle child or nappy change, feed etc. Child has only ever been babysat by MGM or MGF. Child Protection: None” | P 01.09.17 p59; Subpoena of Catholic Care #17 tabbed M2 |
| March 2014 | Mother participates in Keeping Kids in Mind program through Catholic Care | P 01.09.17 p50 |
| 14 May 2014 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| 1-2 July 2014 | The child has orientation sessions with Catholic Care | P 01.09.17 p60 |
| 11 July 2014 | Supervised contact commences – CW states, “[X] seems relaxed during the visit and played with toys and involved STP. STP went to give [X] an Oreo but CW suggested he eat some fruit first. STP cooperated and fed [X] an apple.” “[X] ran into the room and gave LWP a hug. LWP smiled and asked [X] if he had fun. [X] stayed for the entire visit and allowed STP to pick him up and give him kisses and cuddles. LWP and STP utilised the communication book.” “STP and [X] played well together. STP needs guidance on age appropriate play. [X] seems more interested in the toys than STP.” | P 01.09.17 p60; Subpoena of Catholic Care #17 tabbed M12 Subpoena of Catholic Care #17 tabbed M13 Subpoena of Catholic Care #17 |
| 25 July 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M12 |
| 1 August 2014 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| 5 September 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M11 |
| 19 September 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M11 |
| 3 October 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M11 |
| 15 October 2014 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| 17 October 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M11 |
| 31 October 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M11 |
| 14 November 2014 | Visit occurs at Catholic Care | Subpoena of Catholic Care #17 tabbed M11 |
| 30 November 2014 | Father confronts and attacks Maternal Aunt. | MEP 08.09.17 p5,6,7; P 01.09.17 p43. |
| 2015 | The Child starts attending a new preschool | P 01.09.17 p77 |
| 27 January 2015 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| 15 May 2015 | Incident occurs at Catholic Care where the child is unsettled, aggressive and destructive – throwing things and yelling. Caseworker notes state, “during today’s visit child appeared as though he was rather destructive and aggressive towards both STP and CW. C1 appeared as though he was yelling and throwing things around. At one point during this after STP asked C1 if he would like to go to the park C1 replied by yelling ‘Mr Bishop get out’ ‘No Mr Bishop will take me’ While also kicking the playground equipment. It was during this time that STP appeared shocked and stood back from the playground equipment. Whilst C1 continued to yell and say “get out go home” directed towards the STP. STP said to CW “he doesn’t know my name someone has said that to him.” CW tried to calm C1 down by telling him that “Dad is here to play with you” C1 replied “why” CW then directed the question at STP and said, “why did you want to play with [X] dad?” STP then said to C1 “I like to play with you with the cars and eat biscuits because you are my son and I love you.” C1 appeared to still be angry and yelled out “Get out to ......” CW questioned who was “get out” C1 replied “Mr Bishop get out to mummy.” STP appeared visibly upset and wiped his eyes. CW continued to try and calm C1 down and asked if he would like to come inside and play. C1 then asked CW for a glass of water. CW called STP into the room and SCW brought in a glass of water... unfortunately C1’s behaviour continued to be aggressive and destructive throughout majority of their visit today.” “… When hand back occurred C1 continued his behavior and appeared as though he was not listening to LWP and her requests. C1 in fact was hiding under the coffee table and it was with the assistance of CW that she was able to get C1 from underneath. It was also during this time that C1 pulled LWP’s hair. It was at this point that LWP stated that he did appear to be hyped up and asked if he had been given too much sugar. SCW stated that this had been the behavior throughout the whole visit. SCW went onto state that C1 had only had the normal Orio biscuits that STP had brought and a drink which she had packed him. Then as they were about to leave LWP said that she will follow up with the preschool teachers and see if he has shown any of these behaviours there as they have not mentioned it to her. As well as having a little chat around his behavior. SCW replied that sounds like a good plan. However, also as they were then leaving out the door C1 went to run off without holding her hand.” | P 01.09.17 p63 Subpoena of Catholic Care #17 tabbed M14 |
| 2 June 2015 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| Mid 2015 | The child starts demonstrating anxious behaviours and begins to assert that he does not want to attend sessions | P 01.09.17 p63 |
| 2 September 2015 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| 2015 | Child begins to beg Mother to go home rather than attend visits | P 01.09.17 p64 |
| 2015 | Child is christened | P 01.09.17 p80 |
| 2016 | Child begins to see a psychologist to manage anxiety | P 01.09.17 p68 |
| January 2016 | Child expresses to Mother that the Father had told him that he would be going to live with the Father | P 01.09.17 p65 |
| January 2016 | Child begins to have nightmares about the Father | P 01.09.17 p68 |
| 10 January 2016 | Father stops sending child support | P 01.09.17 p88 |
| 29 January 2016 | Matter comes before Court and is adjourned due to Father’s immigration matter | P 01.09.17 p51 |
| 6 February 2016 | Mother has interaction with Catholic Care staff and the interaction is noted by Catholic Care as follows: “...“LWP went onto explain ... that when she asks CCCS staff how [X] is during his contact she is always told that he really enjoys their time together. However, LWP sees and experiences a very different outlook of them. LWP stated the reason for this outlook on [X] and STP’s contact is because [X] tells her that he doesn’t like coming and that in fact [X] is actually aggressive the days leading up to their contact as well as the days after their contact. LWP stated that even her family members have seen this behaviour from [X]. LWP stated “It is days after till I get my [X] back because he is just so aggressive”. LWP also stated that [X] has even made a comment saying that he “hates Mr Bishop” and that he “wants to get a knife and stab him in the eyes”. SCW replied that she was concerned about these comments from [X] and that when he is at their contact they really do appear to enjoy each other’s company and are observed to interact well with each other. SCW also stated that there have in fact been times that [X] has been observed to be aggressive or boisterous with STP however STP appears to respond appropriately.” | Subpoena of Catholic Care #17 tabbed M4 |
| 5 April 2016 | Father speaks to Mother’s legal representative requesting to speak to Mother at Court – Mother agrees on basis that legal representative is present for the conversation | P 01.09.17 p52 |
| 5 April 2016 | Matter is mentioned before the Court, an additional airport watch list Order is made indefinitely | P 01.09.17 p55 |
| 5 April 2016 | At Court Father speaks to Mother and states, “I will get [the child] Ms Patrick you know I will and then you will see what happens.” The Mother’s solicitor is not present. The Mother becomes distressed and the incident is relayed to the Independent Children’s Lawyer | P 01.09.17 p53,54 |
| 5 April 2016 | The Mother reports the matter to Police who advise they cannot assist | P 01.09.17 p56 |
| 25 June 2016 | Time at Catholic Care does not go ahead due to the child being ill. The Catholic Care records note: “Issue: cancellation of contact. Summary: LWP left voicemail at 7.31 advising that [X] is unwell. LWP stated that [X] woke up complaining of a sore stomach and had vomited. LWP added that [X] has since vomited while walking to the car. LWP stated that she is unsure if [X] is nervous or if [X] is actually sick however LWP has recorded [X] being ill. ... SCW made the point that [X] has been unwell quite frequently lately and asked LWP if she would have any knowledge as to why this is. LWP indicated that she was unsure why [X] was sick. SCW went onto state that working with children requires SCW to work within child protection regulations and therefore must ask LWP what has been happening for [X] recently. ... LWP informed SCW that [X] recently had to have a whole month off from preschool after becoming ill with a virus and that [X] has since changed preschools. LWP stated that as a child [X] was never sick but since starting preschool LWP is finding [X] is becoming ill.” “SCW informed STP that contact today has been cancelled due to illness. STP asked if SCW had seen [X] and if [X] did actually look sick. SCW informed STP that SCW is unable to make a comment about whether [X] looked sick. STP added that if [X] is really ill then STP would accept the reason however voiced concerns around whether [X] was really ill. SCW advised STP that this is something that he will need to bring up with his SOL”. | Subpoena of Catholic Care #17 tabbed M5 |
| 25 June 2016 | Time at Catholic Care does not go ahead. Due to child being sick. Catholic Care records note: | |
| 9 July 2017 | Contact occurs at Catholic Care. The Case Worker notes: “During the farewell between [X] and LWP, [X] looked at LWP and said “You don’t want me to go”. LWP looked at SCW with what appeared to be a concerned look and said “No I didn’t say that don’t make up stories”. [X] replied “Yeah you did say that”. LWP looked at SCW and said “I didn’t say that”. LWP then commented “come on [X] I need to go and get the rest of your Christmas presents and I can’t get them if you’re with me”. SCW suggested “Maybe you can make mum a Christmas card with the craft items down in the room”. [X] looked up and said “No”. LWP rubbed [X] on the leg saying “Come on you always have fun when you see dad. You are doing at so much better at school when you say goodbye to mum as well”. [X] looked at LWP and said “Do you want me to go and see Mr Bishop”. LWP replied “Yes”. SCW said “See mummy wants you to go and see daddy just for a little while and then you can come back and see mum”. | Subpoena of Catholic Care #17 tabbed M7 |
| 20 August 2016 | Contact occurs at Catholic Care. The Case Worker notes: “STP had not arrived at the allocated time so SCW called at 9.25a.m. STP recognized he was late and explained that he was in the driveway. STP said to SCW “Sorry I was running late due to the traffic. I have never been late before”. SCW replied “That’s ok but you really need to call to let us know”. STP replied “Ok yes I know”. LWP arrived at the allocated time. When SCW greeted LWP ... LWP said “... I need to come and speak with you. We saw Mr Bishop at the driveway and he glared at me does that usually happen? “ SCW replied “No I am very sorry that you crossed paths but if you need to discuss the matter you will need to talk to the A/CM”. ... While [X] was hiding in the waiting room before seeing STP SCW said to STP that it is important that you are here at the allocated time in case of running into the other party. STP said “Did she say something?” SCW “You just really need to be on time, I understand you can run late sometimes but it is important to call and let us know. If it continues to happen you’ll get a warning”. ... SCW noticed at times that [X] displayed rough behaviours towards STP such as hitting, spitting in STP’s face and banging his glasses on the slides. At the park [X] was observed to not be listening, SCW was concerned with safety issues such as [X] riding the bike close to the road without a helmet. STP asked [X] not to ride the bike but [X] did not listen. CW and STP had to chase [X] on the bike.” | Subpoena of Catholic Care #17 tabbed M8 |
| 3 September 2016 | Contact occurs at Catholic Care. The Case Worker notes: STP called SCW at 9 o’clock and said “Hi … sorry but I am running late I won’t be there until about 10 because I have a flat tyre”. SCW said it was fine but to call with a definite arrival time. SCW called LWP at 9.05 but there was no answer. LWP called back and SCW explained that STP was running late and that SCW would call when STP arrived. STP arrived at 10.05a.m. ... it was observed that when [X] came in contact with STP [X] displayed an aggressive personality, for example [X] instantly started to throw things at STP. [X] was observed to be rough at times towards STP | Subpoena of Catholic Care #17 tabbed M9 |
| 17 September 2016 | Contact occurs at Catholic Care. The Case Worker notes: “STP arrived late at 9.30 ... STP did not give a reason for lateness. ... CW asked “Hello [X] how are you today?” [X] looked away and said “I feel sick”. CW asked “Where do you feel sick?” [X] did not respond but LWP replied that “He had a stomach bug yesterday”. SCW asked [X] “Are you ready to come through and have a play” [X] replied “I want to go home”. SCW explained that the room was new with some new toys and asked if he would like to see them. [X] responded “No I don’t want to”. CW and SCW told [X] he could take the toy train he was holding with him. [X] continued to refuse. SCW explained to [X] “I know you don’t feel well how about you just come through and say a quick hello”. [X] responded “No you’ll trick me ... you’ll close the door”. CW responded “We have to close the door”. [X] stated again “No I want to go home” and was observed to hug LWP’s arm. SCW said “I know you’re not feeling well, how about you hold my hand, we walk through and say hello, then you can go home, mummy will wait here”. SCW continued “I won’t close the door we will say hello and come back”. [X] was observed to get off the couch and kiss LWP. SCW walked through with [X] while CW stood at the door with the door ajar. [X] entered the child care room and was observed to avoid contact with STP. SCW explained that “[X] was not feeling well and he is coming in to say hello he might not say today”. STP smiled and said “Hello” to [X] who was observed to say a small “Hi” and then walk towards STP. STP crouched down and held his arms open. [X] was then observed to look at STP and run towards the door. SCW called to [X] and said “Do you feel like staying?” [X] stated again “No”. STP tried to draw [X]’s attention to the bike outside but [X] was observed not to respond to this. SCW said to [X] “Let’s stand at the door and wave goodbye”. [X] was observed to wave and walk quickly back to the waiting room. LWP was observed to greet [X] with a smile and hug. | Subpoena of Catholic Care #17 tabbed M9 |
| 26 September 2016 | Matter comes before the Court again and is set down for a two day hearing. This is the 15th appearance before the Court. | P 01.09.17 p57 |
| 1 October 2016 | Contact occurs at Catholic Care. The Case Worker notes: “LWP arrived on time. On arrival [X] was observed to be outside in the front garden. SCW complimented his sun glasses and [X] appeared to smile. SCW looked at LWP and stated that [X] appeared to be in better health than in the last fortnight. LWP commented that he was better and he had also had a cold and had been off school during that time. SCW asked [X] if he was going to come into the waiting room. [X] appeared not to respond and continued to play in the garden. SCW convinced [X] to come into the waiting room by pretending to have a race with him and discussing a toy train that was in the waiting room. [X] came into the waiting room running and was observed to sit on the couch smiling. [X] was observed to sit on the couch next to LWP. SCW then asked [X] “Are you ready to come through and see dad?” [X] appeared to stop smiling and place his head on LWP’s arm and say “No I’m sick” and was observed to make a small coughing sound. SCW observed that LWP smiled and appeared to give what looked like a small laugh. SCW also smile and said “[X] I think you’re much better than last fortnight”. [X] was observed by the SCW and CW to ignore requests to come through to see STP at times turning his head away or making noises. LWP was heard by SCW to ask [X] not to be rude. SCW and CW continued to encourage [X] suggesting that “we have another race, push the trains and cars through ... [X] was observed to decline these suggestions and stated at one point “No, I don’t want to go” and “I don’t like Mr Bishop”. | Subpoena of Catholic Care #17 tabbed M10 |
| 22 October 2016 | Contact occurs at Catholic Care. The Case Worker notes: SCW stated “OK [X] do you want to come through just to say hello” [X] responded “No”. When asked why he stated that STP was “bad”. | Subpoena of Catholic Care #17 tabbed M11 |
| December 2016 | Mother moves residence, child enrolled in new preschool | P 01.09.17 p78 |
| 3 December 2016 | Issue occurs at Catholic Care time. Case worker notes “At one stage [X] pointed at the SCWs and stated that the pair was “going to trick him.” When the SCW asked [X] what he meant [X] pointed at LWP and said “She said that you two were going to try and trick me into going down there”. LWP responded instantly by saying that we were “[X] into which way the SCW was going to take [X] inside” | Subpoena of Catholic Care #17 tabbed M12 |
| 17 December 2016 | Issues occur at contact session – Catholic Care: “[X] looked startled when SCW opened the door and playfully said “Boo”. [X] frowned and went behind LWP. [X] stated “No I don’t want to go in there I want you to come with me”. LWP entered the CCCS. [X] again stated that he did not want to go down to see STP. CW pointed at a wig and said “Why don’t you put that on and you can surprise daddy”. [X] put the wig on but shook his head indicating “no”. [X] sat close to LWP holding onto her arms. LWP said to [X] “Come on baby time to go”. [X] replied “No you told me that you don’t like daddy so I don’t like daddy that’s what you said at home”. LWP looked at [X] and replied “No I did not, I never said that”. [X] nodded his head indicating yes and said “Yes you did”. LWP stated “No I didn’t if you’re going to make up lies make them up about other people, don’t make them up about me”. [X] looked at LWP and stated “You are tricking me”. LWP looked at SCW and whispered “Do you want me to leave” SCW nodded her head indicating ‘yes’ however when LWP tried to leave [X] grabbed her arm and said “No stay here”. | Subpoena of Catholic Care #17 tabbed M13 |
| 14 January 2017 | Interactions between Mother and Catholic Care staff at contact session: LPW went onto state “I never talk to [X] about Mr Bishop, I never discuss what happens in court and I never discuss Mr Bishop with my family, we do not talk about Mr Bishop at all. [X] was young when he started to hear he is now old enough to make his own decisions on how he feels about Mr Bishop. None of how [X] feels has been influenced by me”. ... LWP went onto state that whenever [X] is asked by the ICL or his child psychologist about how he feels when seeing/ or going to see Mr Bishop [X] always points at the sad angry faces and says that he doesn’t like Mr Bishop. ... when the SCW and CW encouraged [X] to give STP a kiss and a cuddle [X] stated “No I don’t want to because I have to wash my hair if I cuddle Mr Bishop and I don’t like shampoo”. During the child and SCW debrief SCW debrief SCW asked [X] “[X] can you tell me why you didn’t want to cuddle daddy?” [X] replied “Because I have to wash my hair with shampoo if I cuddle him and I don’t like to”. SCW asked [X] who makes him wash his hair if he cuddles STP. [X] looked at SCW in the eye and stated “Mummy does”. | Subpoena of Catholic Care #17 tabbed M14 |
| 28 January 2017 | Issues occur at contact session – Catholic Care: “STP arrived at 1 o’clock. STP was very apologetic for running late. ... STP told SCW that he is concerned with [X]’s behaviour because [X] is so angry and that STP has always felt that [X] needs to see a counselor. ... [X] told SCW that he was feeling hot and that he wanted to go swimming in Suburb N. [X] smiled and giggled as he continually stated that he did not want to go down. SCW asked [X] if he could just come down and say hello. [X] looked at LWP grinned, pointed at SCW and stated “I’m not going down there you’re tricking me”. SCW asked [X] why he did not want to go down. [X] shrugged his shoulders and whispered to LWP (SCW was unable to hear). [X] then looked to SCW and stated over and over again “I don’t want to go, yes I do, no I don’t, yes I do”. SCW asked [X] to stop. SCW then looked at [X] and said “Well [X] you can go home then. We are not here to play games. You can go home then so please tidy up the room and you can leave with mummy”. [X] looked at SCW and said “OK I do want to go down”. | Subpoena of Catholic Care #17 tabbed M15 |
| 16 February 2017 | Caseworker notes observations about Mother and Father’s interactions and the occurrence of sessions: The caseworker explained to the ICL how staff are continuously observing the live with parent verbally encouraging to attend contact however [X] is observed and seen to be responding with reservations about leaving her. On many occasions she has been observed to notably encourage him in front of staff however he will then later verbally disclose that the live with parent verbally told him different statements before arriving at the cottage for contact. The acting coordinator said that their staff believe as a result of observing [X] with his father it would be more suitable moving to an unsupervised contact centre however Catholic Care stated staff were concerned about [X]’s diet as he states that he eats a lot of hot chips, drinks and says that in fact that he drinks large amounts of ice tea. | Subpoena of Catholic Care |
| 11 March 2017 | Issues occur at contact session – Catholic Care: [X] ran into the garden when he arrived with parents. Staff opened the door and called [X] in to which [X] did not respond. The staff decided to ignore [X]’s behavior and then they called the live with parent in. the live with parent then walked into the cottage with [X]. The staff verbally greeted [X] to which he replied with a frown and a growl. The caseworker then asked him if he was ready to go and spend time with parent. [X] growled at the caseworker and replied “No”. So the caseworker told [X] and the live with parent that she will leave them alone for a few minutes so that the live with parent could have a chat to [X] about her wanting him to go and see the parent. [X] closed the door and when the caseworker went back into the waiting room live with parent was not talking to [X] about him going to spend time with parent instead she was reading him a book. The caseworker returned to the room and asked [X] if he was ready to go through. [X] stated “I’m not going” caseworker told [X] if he was not going through it would be time to go home soon as we have other children coming in. [X] stated “that’s what I want to do” in a loud and angry tone. [X] was playing with large frame letters and the caseworker asked [X] if he would like to take them through to the show the spend time with parent. [X] again said “I told you I’m going”. Live with parent remained silent with her head down during the conversation with [X]. |
| 11 March 2017 | Mother and child are in a car accident after a Catholic Care session. The Father appears at the scene and states, “what have you done to my son?” The police ask the Father to leave. | P 01.09.17 p70 |
| 8 April 2017 | Issues occur at contact session – Catholic Care: The caseworker met the live with parent and [X] at the door and told them they would be using the rear entrance. There was an older man that was also present with the live with parent at arrival. The caseworker walked around the side of the building and entered with live with parent and [X] telling [X] it was time to say goodbye to his mum and she will return in 2 hours. [X] repeated a few times to the live with parent “you’ll make me very sad if you go”. The caseworker asked [X] why he will be sad if she left. [X] replied “because I don’t like it when Mr Bishop smiles at me” adding that it was because it gives him nightmares. The caseworker held the backdoor open for the live with parent to leave and it was observed that the live with parent was slow in saying goodbye to [X] kissing and hugging him multiple times saying in a low calm voice “I’ll be back you know I always come back”. It was observed that [X] held onto the live with parent and said “I don’t want you to go” however he did not show any obvious signs of distress or sadness. [X] was clam and smiling when he said this. [X] kept whispering to the live with parent and then looking at the caseworker and saying to the live with parent “don’t tell her ok” while the caseworker was retrieving a drink bottle that [X] had left at the centre at the last contact visit, the live with parent and [X] set up some duplo on the floor that they had been playing together. The caseworker returned the drink bottle and said to [X] “is it ok if mummy goes now” [X] paused and then nodded. The live with parent slowly got up off the floor and kissed and hugged [X] before saying goodbye. She then left the centre while [X] continued to play. The spend time with parent was brought into the contact room and when [X] saw the spend time with parent he said in a loud calm voice “you’ve got to be kidding” and continued to play with his duplo. The spend time with parent smiled and calmly greeted [X] verbally and walked over to where he was playing and sat down next to him. Spend time with parent asked [X] what he was building and immediately began engaging and playing with [X]. It was observed that during this initial interaction [X] referred to the spend time with parent frequently as dad and daddy. Spend time with parent brought twinky cakes, hot chips and an egg sandwich. [X] ate a small amount of hot chips however after a while he spat it out and stated he didn’t like it. [X] refused the rest of the food. [X] and the spend time with parent were observed to sit close to each other while building with the duplo together [X] asked the spend time with parent to help him taking certain parts of the duplo when the building fell down [X] and the spend time parent laughed. After a few minutes of building [X] said “I shouldn’t play with you” to the spend time with parent who did not respond. [X] then started to throw the blocks around and the spend time parent asked [X] to stop throwing toys. [X] followed these directions. The pair then ate some food while kicking the ball. It was at this point that [X]’s behavior changed as he became demanding towards the spend time with parent by shouting at him to do things and [X] spat food out on the ground and threw the sauce. [X] road the bike on his own for awhile and the spend time with parent ate some food and encouraged to eat. [X] responded by saying he didn’t like the food. It was observed that [X] referred to the spend time with parent as daddy. [X] and the spend time with parent conversations flowed naturally. However at one point [X]’s behavior changed dramatically and he stated “I don’t want to play anything with you” spend time with parent responded that maybe they could go to the park. [X] said “no I’m not going to the park” [X] then started to engage in a calmer way and they built together again. [X] again said “daddy I shouldn’t play with you” when outside [X] was observed to be demanding towards the spend time with parent as he screamed “just kick the ball already” when the spend time with parent was in the kitchen [X] stated to the caseworker “I’m going to kick Mr Bishop’s ass” the caseworker told [X] that it was not nice to kick people. The caseworker asked why [X] wanted to kick spend time with parent to which [X] replied “I just don’t like him” the caseworker asked “why don’t you like daddy” [X] replied “I don’t know why” while eating outside [X] threw the tub of sauce and the spend time with parent told [X] that he shouldn’t throw sauce to which [X] replied “I don’t really care”. It was observed that [X]’s behavior was not consistent, sometime she was aggressive and sometimes was happy and excited initiating physical contact. When it was time to leave [X] said he did not want to say goodbye to the spend time with parent. However spend time with parent made a game out of it and [X] ran towards spend time with parent while laughing and gave him a big hug. When it was changeover the live with parent immediately asked the caseworker if [X] had called for her. The live with parent asked if it was documented that she was encouraging [X] to go to the contact visit. Positives: During the contact visit [X] referred to the spend time with parent as dad and daddy despite referring to him only as Mr Bishop in front of the live with parent. It was observed that the parent and child interactions occurred during the contact. It appears that Mr Bishop effectively displayed consistent and calm responses to [X]’s difficult behavior. Negatives: That the contact was approximately 15 minutes shorter due to the additional time that it took for the live with parent and [X] to say their goodbyes and for the live with parent to leave the centre. [X]’s interactions were not consistent in the debriefing of the child. The caseworker asked [X] had he enjoyed the days visit. [X] looked up at the spend time with parent and asked in a worried tone “please don’t tell mummy I didn’t call her to go home”. | Subpoena of Catholic Care |
| 22 April 2017 | Issues occur at contact session – Catholic Care: After encouraging [X] to stay and play [X] gave a kiss goodbye and said “mummy I love you” to which she responded “I love you too”. She was then observed to request a kiss and a hug another 3 times requiring the caseworkers to reiterate “it’s time for mummy to go”. Caseworker and [X] were sorting through the Wii games in the red cupboard when the spend time with parent walked through and said hello to [X]. It looks like Mr Bishop was engaged in tickling and laughing [X] appeared to enjoy it and they looked like they were having fun. Conversation flowed naturally and continuously. Conversation between the two heard to be centered on tennis game while offering [X] food. After [X] won the match he asked the senior caseworker to call his mum. The spend time with parent asked for a running hug and [X] opened the back sliding door running around the play equipment a couple of times. They were giving each other high fives. When the caseworker opened the door [X] ran to the live with parent who was observed to smile. [X] smile and hugged live with parent and she was observed to stroke his head. The caseworker stated “next time maybe you will be able to stay a bit longer” [X] responded “yeah” and smiled. Live with parent smiled at the caseworker and said thank you before leaving the building. Positives: The time was positive for both [X] and the spend time with parent. They were laughing and having competitions. Negatives: [X] took a long period of time to farewell the live with parent who repeatedly asked for a kiss or hug goodbye. [X] respondent to be with his mum after 45 minutes. [X] insisted that he was ready to go for the day and began to keep saying “I want to go with mum”. He responded when asked why he just wanted his mummy. | Subpoena of Catholic Care |
| 6 May 2017 | Issues occur at contact session – Catholic Care: Mum and [X] arrived with paternal grandfather. Mum advised that [X] had been unwell. She was carrying [X] and he had his arms around her neck. Caseworker asked why she didn’t call to advise [X] was unwell and she said that she knew he had missed a lot of contacts due to illness and didn’t want to get in trouble. The caseworker asked [X] how he was and [X] told the caseworker he was sick and didn’t want to see Mr Bishop. The caseworker asked [X] if he would come just to say hello and then could come back out to see mum. After some discussion he agreed. [X] asked the caseworker “are you just going to trick me?”. The caseworker told [X] she was not tricking him and mum would wait here at the cottage for him if he wants to leave. The caseworkers when through the contact room while the mum and grandfather waited in the waiting room. He appeared to be fine and sharing stories about school with Mr Bishop. The mum expressed to the caseworker she thinks [X] will believe that he has been tricked and that he is staying with the spend time with parent. Caseworker advised her that [X] appeared well and comfortable and will be brought back through when he has had enough and as soon as he asks to return. The dad brought oreo biscuits which [X] didn’t eat. When leaving his father, [X] was giving him big hugs. | Subpoena of Catholic Care |
| 20 May 2017 | Issues occur at contact session – Catholic Care: Upon arrival the mum picked [X] up into her arms while approaching the front door. He then said he felt sick after he had been spinning at the park. The caseworker asked [X] to come through to see his dad. He said he would go for a little while. Caseworker told [X] she would call his mum to come back and collect him if he didn’t feel well. In his interactions with the father he was often rude and disrespectful yelling at the father and speaking at him through clenched teeth. [X] was unable to play appropriately. [X] requested to go home. [X]’s behavior was at times difficult for the spend time with parent to manage as he did not respond to any direction or attempts to implement boundaries. [X]’s use of aggressive behavior impacted the contact. The caseworkers were required to intervene on several occasions due to [X]’s bad behavior. | Subpoena of Catholic Care |
| 15 August 2017 | Family Report writer contacts ICL to discuss the Father’s immigration status. | Family Report dated 17 August 2017, page 1. |
| 16 August 2017 | Family Report interviews attended by all parties at the Wollongong Federal Circuit Court. | Family Report dated 17 August 2017, page 1. |
| 18 August 2017 | The Family Report by Dr K is released by the Court recommending that the Mother have sole parental responsibility for the child, and the Father have no contact with the child. | Order of the Federal Circuit Court dated 18 August 2017; Family Report dated 17 August 2017, page 16. |
Schedule Two
The Minute of Order proposed by the Independent Children’s Lawyer
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AT WOLLONGONGNo. (P) WOC 1142 of 2012
BETWEEN
MS PATRICK
(Applicant)and
MR BISHOP
(Respondent)and
INDEPENDENT CHILDREN'S LAWYER
PROPOSED MINUTE OF ORDER OF THE INDEPENDENT CHILDREN’S LAWYER
1.That the Mother have sole parental responsibility of the child [X] born … 2011 (‘the child’).
2.That the child live with the Mother.
3.That the child spend time with the Father as agreed in writing, or otherwise, failing agreement, on four occasions each year, at such times and days as agreed to between the parties or otherwise, failing agreement, the Saturday immediately following 1 February, 1 May, Father’s Day, and the child’s birthday, for a period of not less than 3 hours, and on each occasion, such time shall be supervised by Contact Centre Town A or such other agency as can be arranged to facilitate the time between the child and the Father pursuant to these Orders.
4.That for the purposes of the time the child spends with the Father pursuant to Order 3, that the Father be responsible for meeting all the costs of supervision and attend to payment prior to the scheduled time to Contact Centre or such other facility.
5.That for the purposes of Orders 3 and 17, the Mother shall email the Father, at least thirty (30) days prior to any visit or communication with the child (in accordance with Order 17), and nominate the day, time and a location for the visit or communication and the Father is required to confirm in writing, within fourteen (14) days thereafter, that he will attend those visits with the child and or undertake the communication.
6.That any time the child spends with the Father shall take place in a public place or such other venue as agreed.
7.These Orders operate as the authority of the Mother, for the Father to obtain information he may seek from any medical practitioner as to prognosis, diagnosis and treatment rendered or educational service provider, copies of school reports and general information about the child’s progress, in relation to the child.
8.That the Mother notify the Father, of any decisions she makes in the exercise of her parental responsibility within 30 days of such decision occurring, by means of email.
9.That for the purpose of the parents communicating in respect of the time the child spends with the Father, such communication is to occur by email, unless otherwise agreed.
10.That each parent keep the other informed of their current email address, and of any change to such email address, within 14 days of any change occurring.
11.That each parent be restrained from denigrating the other parent or any member of that parent’s household or family in the presence or hearing of the child and shall immediately remove the child from the presence of any other person who does so.
12.That the Father be restrained from contacting or approaching the child by any means whatsoever except for the purpose of implementing these Orders or as otherwise agreed by the mother in writing.
13.That the Father be restrained from attending any school the child attends EXCEPT with the express consent of the mother, in writing.
14.Nothing in these Orders shall prevent the Father from:
a.Providing a gift to the child; or
b.Bringing not more than one other paternal family member at a time to attend;
when spending time with the child PROVIDED that the Father has first obtained the Mother’s consent.
15.That the Mother be at liberty to apply for the issue and/ or renewal of an Australian Passport for the child, without the signature or consent of the father.
16.That in the event the Father is no longer living in Australia or otherwise is in an Immigration Detention Facility , the Father is to notify the Mother by email or via text message as soon as practicable.
17.That in the event the Father is no longer living in Australia or otherwise is in an Immigration Detention Facility, that the Mother is to:
a.provide copies of school reports at least twice per year via email to the Father;
b.email the Father in the event the child is suffering a serious medical condition or a medical emergency;
c.facilitate telephone and or Skype communication between the child and the Father on the same occasions as detailed in Order 3 above for a period of not less than 30 minutes and pursuant to Australian Eastern Standard time;
Key Legal Topics
Areas of Law
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Family Law
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Immigration
Legal Concepts
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Jurisdiction
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Costs
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Remedies
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