PEMBERTON & ELDRED

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEMBERTON & ELDRED

[2020] FCCA 3202

Catchwords:
FAMILY LAW – Sole issue – what if any time the father is to spend with the child – Serious history of crime and violence resulting in imprisonment of the father on and off over an 18 year period – whether the child spending time with the father is in the child’s best interests – single expert psychiatrist refers to father’s long criminal history and difficulties in police and others restraining the father –father’s uncontained and unpredictable anger places mother and child at significant risk – no supervisor able to contain the father – family violence perpetrated by the father – father to spend no time with the child.

Legislation:

Family Law Act 1975 (Cth), Pt VII, ss.60CC, 64D (2)

Cases cited:

Johnson & Page [2007] FamCA 1235

Stott & Holgar and Anor [2017] FamCAFC 152

Applicant:

MS PEMBERTON

Respondent:

MR ELDRED

File Number:

CSC 91 of 2017

Judgment of:

Judge Willis AM

Hearing date:

6 May 2020

Date of Last Submission:

6 May 2020

Delivered at:

Cairns

Delivered on:

24 November 2020

REPRESENTATION

Solicitors for the Applicant:

Bassano Law

Solicitors for the Respondent:	Self-represented
Counsel for the Independent Children’s Lawyer:	Ms Lawrence
Solicitors for the Independent Children's Lawyer:	Mr Wright

ORDERS

That the father is to spend no time of any kind with the child X born in 2013 (“the child”).

Restraint/ Recovery Order

The father is restrained from removing the child from the care of the mother, or from any person or place or institution (including school and day care) or extracurricular activity that the child is placed at by the mother.
In the event that the child is removed from the care of the mother by the father or his agents contrary to the terms of this Order, a Recovery Order is to issue for the return of the child.
The Recovery Order is to issue and lie in the Registry and be uplifted upon the mother filing an affidavit deposing to the removal of the child from her care, contrary to the terms of this Order.
That upon an Affidavit being filed by the mother as referred to in Order 6 herein, a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the child X born in 2013 and to deliver the said child to the mother, or such other place as the mother and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
This order remains in force until further order.

Passport/ Overseas Travel

That the mother be permitted to obtain a passport for the child and that the passport issue notwithstanding that the father has failed to sign the passport application or other accompanying documents.
The mother is permitted to remove the child from the Commonwealth of Australia at dates and times at her sole discretion and/or when the child is old enough to travel for school or sporting purpose, the child is permitted to leave the Commonwealth of Australia for such purpose at the sole discretion of the mother.

Other Orders

The Independent Children’s Lawyer is to be discharged with thanks 30 days from today, save and except for an appeal.
All outstanding Applications are removed from the pending cases list.

NOTATION
A.These parenting Orders are issued in conjunction with the final Consent Orders dated 31 January 2018 providing for the child to live with the mother and for the mother to have sole parental decision making for all major long term decisions associated with the child.
B.The restraints including Order 5 that “the Father be and is hereby restrained from approaching within 200 metres of any school, place of residence or employment of or other place occupied by the child and/or the mother” remain current as Final Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 91 of 2017

MS PEMBERTON

Applicant

And

MR ELDRED

Respondent

REASONS FOR JUDGMENT

The applicant mother is Ms Pemberton (the mother) who was born in 1984. The respondent father is Mr Eldred (the father) born in 1975. The Independent Children’s Lawyer is Mr Wright (the ICL).
The parties commenced cohabitation in February 2011 and separated on 25 January 2017 and finally separated on 26 February 2017.
X is currently six years and six months old and is the only child of this union.
Final Orders have already been made by Consent on 31 January 2018 that X lives with the mother and that the mother has sole parental responsibility.
The remaining issue is the time that the child might spend with the father.
To determine this, it is useful to understand the history of the matter and the context in which the application is heard.

Background

This litigation commenced 13 February 2017 with the mother seeking parenting Orders in relation to X, born in 2013 (the child). X then aged 3 years and 3 months old, was living with the father at the time. The mother asked that time be abridged and that a Recovery Order issue, that X be removed from the father’s care and live with the mother. The mother made reference to the father exposing the child to illicit drug use, family violence and drunkenness.
The urgent application was listed for hearing on 17 February 2017. The father filed his Response on that day seeking orders that the child live with him and that the parties attend a Child Inclusive Conference, and that the mother spend supervised time at B Contact Centre. The father showed his postal address as Suburb C. The father sought orders that both parties undergo drug testing.
By the 17 February 2017, the Department of Child Safety had made two home visits to the father and made observations which did not indicate any immediate harm for the child. Subsequently Orders were made dismissing the application for the urgent Recovery Order.
Other Orders were however made including for the mother to spend time with the child in South East Queensland where the father was living, changeovers were to be at a Police Station, the Independent Children’s Lawyer was appointed and a Child Inclusive Conference was to occur on 21 March 2017 in Brisbane which was the closest registry to where the father was living with the child. The mother was to travel to Brisbane to attend the Child Inclusive Conference.
The Court made it clear in the Orders that the Orders made on 17 February 2017 were made on the first return date and were made essentially until there was a full interim hearing.[1] At that time the father was living on the Region D with the child. Each of the parties requested that their respective addresses not be made known to the other party.
[1] Referred to in the Orders as “interim” Orders.
Six days after the Orders of 17 February 2017 were made, the mother filed a Notice of Discontinuance on 23 February 2017.
The father filed a Notice of Address for Service on 23 March 2017.
On 7 April 2017, the mother filed another Initiating Application. She sought Orders that X live with her and that the father have supervised contact. In the accompanying Affidavit material filed on 7 April 2017 the mother included an annexure showing a photograph of the father displaying his penis in what appeared to be an advertisement for a male prostitute. The mother said she did this to inform the Court that the father was a male prostitute. An Order was made for the sexually explicit material to be removed from the Court file.
Further material was tendered showing the father advertising himself for prostitution. The father subsequently denied that he was engaged in prostitution saying that he had requested the advertisements be removed from the internet in 2016 and it just happened to appear again recently. The matter was adjourned over to 7 April 2017.
On the Court date of 7 April 2017, the father did not appear in Court, in person or by phone from the Region D. There was no explanation as to his non-appearance.
On that day a Solicitor from the Department of Communities (Child Safety Services) (“the Department”) appeared as a Friend of the Court by phone. In the context of the father having opposed the Recovery Order at the previous hearing, the Court was informed that the father had now returned young X, then living with the father, to the Offices of the Department of Child Safety. It was reported to the Court that the father walked in to the Office of Department and left X on the counter and walked out abandoning X. The father emailed the mother, the Court and ICL advising that X is now in the care of child services and that he “no longer wants anything to do with Pemberton, her family or anyone associated with her lies”.
The Department advised the Court and the mother that they would be returning X to the mother and will be working with her to determine if she is a fit and proper person to have the child living with her permanently.
The Court noted that the father has indicated that he has no intention of having any further involvement in the child’s life. On that basis the father’s Response filed 17 February 2017 was dismissed, however Orders were also made that if the father is seeking any Orders he is to file an amended Response and Affidavit addressing his behaviour in handing X back to the Department and answering all of the mother’s allegations, by no later than 27 May 2017.
Orders were made by this Court for X to live with the mother, such Order to come into effect upon the child ceasing to be under the care of the Department.
Whilst the father failed to organise his own appearance on 7 April 2017, that Court file shows that he nonetheless emailed the Court to inquire as to the outcome of the day’s hearing.
The Court also made Orders for the father to be restrained from removing the child from the care of the mother, or from any person or place at which the child is placed by the mother. The matter was put over until 12 June 2017.
On 23 May 2017, the father filed another Response seeking both interim and final orders. Having handed the child back to the Department, the father sought Orders that X live with him, and that the mother have no contact until such time as she is assessed by a psychiatrist and the mother to only have time at a Contact Centre.
On 12 June 2017 each of the parties appeared, as did the ICL. Orders were made for the mother and father to attend for the preparation of a Family Report and the ICL was to organise for the preparation of a Psychiatric Report. At this stage of the proceedings, the Court had the subpoenaed material from Correctional Services in relation to the father. The matter was listed for a two day trial and trial directions made. Given the very serious allegations of violence, Orders were made pursuant to s 64D (2) of the Family Law Act 1975 (Cth) (“the Act”) that the Orders are only to be varied by way of a further Order.
Notwithstanding that a trial was listed, the father filed a Notice of Discontinuance on 14 August 2017 to discontinue his amended Response.
The matter was listed on 17 October 2017. The father failed to appear. Noting that the father had discontinued his amended Response and therefore had no application on foot and that he failed to attend Court, the matter was listed for an undefended hearing on 31 January 2018. Essentially the hearing was going to continue with just the mother and the ICL.
Just prior to the undefended hearing, the father filed another amended Response on 12 January 2018.
On the 31 January 2018, the mother and the ICL were ready to proceed with the determination of the final Orders. Unexpectedly, the father decided that he would again attend the hearing.
The father had not filed any material in compliance with the trial directions or in compliance with specific directions to file an amended Response and to provide Affidavit evidence about his current life and work and living arrangements.
The father indicated orally that he was seeking Orders for X to spend time with him and that he was not contesting that X would live with the mother.
After discussion with the parties, final Orders were made by consent on 31 January 2018 for the mother to have sole parental responsibility and for X to live with the mother.
All of the parties agreed that the issue remaining was the father’s wish to spend time with the X. The only document he had filed in that respect was filed on 12 January 2018 in which he sought Orders to spend time with X.
Up to this date, the father had expressly refused to have the psychiatric assessment undertaken in line with the earlier Orders. The mother had complied. I note that the father indicated he would attend for psychiatric assessment in June 2017 for such assessment, however contrary to the agreement, he did not attend.
When asked again about his failure to attend for the psychiatric assessment as Ordered, the father assured the Court that he would do so this time. Further Orders were therefore made for the father to participate in the psychiatric assessment such that the psychiatrist is able to provide a complete psychiatric assessment to the Court.
Given the father’s long criminal history of over 15 years, which included various offences of violence, the Court considered it critical that he present himself for psychiatric assessment in line with Orders. The Court made it clear that the Court would not be in a position to assess if the parenting Orders sought by the father to spend time with the child were in X’s best interests until such time as the father complied with the Orders for psychiatric assessment. The father has been in and out of jail over a period of 20 years.
Orders were also made on 31 January 2018 for the father’s response (such as it was) to be adjourned to a date and time to be fixed noting that the matter will be re-listed upon the ICL confirming that the psychiatric assessment of the father had occurred in compliance with Order 4 of the Orders of 12 June 2017.
The ICL was successful in organising further funding for the father to have a second opportunity to attend for a psychiatric assessment.
On 26 July 2018 the matter was mentioned. The psychiatric report was released. The father then complained strongly at the time that he had been waiting eight months without seeing his child, berating the Court for delay. The father was reminded that the delay came about through his own inaction in refusing to comply with Orders to attend the scheduled psychiatric assessment. During the hearing, the father said he did not wish to give his current address to the Court and did not wish to state what his email address was while the mother was listening.
The matter was listed again for a one day final hearing on a date to be fixed. Trial directions were made for the filing of material. The recommendation of the single expert psychiatrist at that time was that the father have nothing other than supervised time.[2] The father was opposed to this and said he regarded the recommendation as “ridiculous”.
[2] It subsequently changed to no time, given the father’s further criminal activity.
The Orders to file trial material were not complied with by the father. Having not complied with any Orders to file updating material, the father nonetheless travelled to City E to personally inspect the subpoenaed material in early March 2020 prior to this trial on 6 May 2020.
As will be seen in these reasons, the father has a fixation on the issuing of an updated subpoena to police by the ICL. The father has regarded the issuing of an updated subpoena as some sort of manipulation of the legal system by the mother. The father advised the Court that the mother’s solicitor has been manipulated by her.
The father, having failed to file and comply with the trial directions, nonetheless engaged in a barrage of emails with the ICL from 30 March 2020 through the rest of April 2020.

Father’s communications with the ICL

The ICL filed an Affidavit annexing approximately 17 of those emails and giving details of the father’s communications with the ICL. These emails indicate the father’s focus during this litigation.
The father has phoned the ICL on 5 May 2020 saying he wanted to discontinue the proceedings. That would have been the third time he has indicated that he is walking away from the proceedings.
He advised the Court he had been to two Courthouses to file the Notice of Discontinuance but was not able to. He said he knows he can file it online but was too busy. He said he did not wish to see the child any more. He was highly critical of the mother and her partner. He claimed the mother’s partner was a convicted drug trafficker who had just finished parole. He confirmed he would not be appearing at Court on 6 May 2020.
On 5 May 2020, he phoned the secretary of Mr Wright, the ICL. A copy of that message is annexed to the ICL’s Affidavit. There was a further phone call from the father about 15 minutes later with another message. There is a recurring theme to the father’s messages as seen in most of the messages. It is along the lines that “there is a very serious matter relating to the child and abuse of process by the mother”.
The father said in the messages that he and his partner were contacted by the police, awoken from their sleep on 4 April 2020 by the police inquiring about the wellbeing of his partner and wanting to sight her. The father said that the police reported to him that there had been a missing person’s notice or call come in to the Police Station.
The father then explained that he has linked that police attendance with the solicitor for the mother issuing an updated subpoena in this Family Law litigation, in preparation for the trial. The father is suspicious of all of the timing and he says he has concerns that the mother was playing games and, more importantly:
“My son, X, who is an innocent through all of this, has been involved.”
The father said he is concerned about what might happen to X if what he says is happening is proven. The father believes that the mother has abused this legal process to the fullest and, in particular, has and continues to mislead her legal representatives. The father says he is very anxious about this. The father says he has managed to stay away from the police and has built his life back up after his last release from prison. The father says his business and his relationship is all going well and that he has a good life. In his emails, the father asks the ICL to contact him.
There are several emails from the father to the ICL saying he wants to speak to the ICL urgently and that the mother is manipulating the Court system and that everything that he has mentioned to the ICL is now being used against him. He said that the new partner of the mother is an old friend of his and that due to an issue, they had a falling out. The father told the ICL that he had spent a few hours at the Police Station and that he said that the police had told him that the mother’s new partner was the informant in relation to advising them that the father’s partner was missing.
The father explained that he believes that Ms Pemberton, the mother, is setting him up. He said he has been paying child support. He said that the other, “…gentleman who Ms Pemberton is involved with is a police informant.”
The father said in his emails that he is at a point where he is ready to give up and let the matter go. He said that the mother is not only hurting him but also his son and now his current partner is sleeping on the floor. He said that he has now received a message from Ms Pemberton, the mother, advising that there is no need for him to be in Brisbane. These were the recurrent themes of the father’s email messages to the ICL, going through the 47 page of annexures of the father’s emails. The father’s reasoning is circular and he is seen ruminating on the issuing of what he says is “the games behind the recent subpoena.”

The father says that he is aware of the fact that the mother, along with others, were responsible for sending the police his way, involving his partner and her family. He directs comments to the solicitor for the mother saying:
“You are aware that your client is and has misled you and lied to you and is now manipulating you and your office and wasting a lot of people’s time and resources you have to be aware of this by now.
There for I believe you do not have X’s best Intrest and you are not doing your job properly.
This is it I want nothing more to do with this fucking circus.
And to your client involving others, you can tell the “others” that we will leave no stone unturned you don’t fuck with the kids or partners.”[3]
[3] ICL Affidavit filed 6 April 2020, annexure H.
In another email the same day, five or six hours later:
“I could not give a fuck about the issuing of the subpoena they can subpoena what ever they want.
Take the fucking kid and fuck off out of my life.
Ms F[4] can tell her fucking client that we are aware of her games and she wants to involve others in matters relating to my son and manipulate her lawyer and this process I’ve involved others now as well. Now I want nothing more to do with this fucking circus and lawyeres that stand that shit.
[4] Ms F is the Solicitor for the Mother.
FUCK THE SYSTEM
And fuck Ms Pembertons little buddy’s that want to fuck with my missus and my kids make sure ya tell Ma Pemberton she wants to cause shit for me the piece of shit.
Involve police through her little dog mate ring police on my missus send them to her family’s house and use my name as the person making the complaint fuck your fuk her and fuck anyone that wants to fuk with my life any more than they already have.”
That is on 6 April 2020 at 2.56. Another email on 9 April 2020 addressed to the ICL and the mother’s solicitor:
“Good morning to all you scumbags that are abusing the Federal Court process. Don’t worry, I haven’t forgotten to lodge my withdrawal. It’s coming. Have a great day.”[5]
[5] ICL Affidavit filed 6 April 2020, annexure L.
On 11 April 2020 the father says:
“I’ll be filing a notice of discontinuance shortly and I’m making it aware that not only myself but others are aware of the mother’s games including the reasons behind the issue in the recent subpoenas.”
On 11 April 2020, the father writes to the ICL and solicitor for the mother and the mother:
“Haha, haha bitten off more than I can chew is that a fucking threat???
Again, I will make it known we are aware of your games and your involvement of others.
That’s cool…
As for sending a porno to your messenger, was that after ya showed me ya tits or before??
Mate have the fucking kid keep playing your games with your little police informing mates and good luck to ya.
I have no reason to
Contact you anymore your nothing to me and either is that kid. Remember that…”
Another message on 15 April 2020, the father contacted the ICL saying he wants to discontinue his case. He said the Magistrates Court is over an hour away from where he lives. He was wanting to file it online but was not sure what he needs to do.
On 5 May 2020 the day before the final hearing, the father sent another email. The father phoned the ICL’s secretary and she has typed up a long message much the same as previous ones, wherein he continued to accuse the mother of associating with certain characters:
“I would like to bring to Mr G’s attention the fact that Ms Pemberton is highly associated with a known drug trafficker who has recently finished his parole period, who also recently purchased her a vehicle or gave her a vehicle (a car) and he is a known police informant.”
The message continues that:
“Now he obviously is a police informant you know what happens to them.
I feel that she is putting my son’s life in danger being associated with known criminals, not just traffickers and drug dealers. This is the individual who has been causing me a lot of issues of late and along with Ms Pemberton.
I have grave concerns about my son’s safety about these individuals. I know full well that people are after him that want to cause him grief and physical harm I’m assuming.
His name is Mr H. He also goes by the name of Mr H. There’s a lot of communication between him and her on Facebook, Messenger very close. He a convicted drug trafficker and he has footage talking to police and trafficking charges and I said he is a police informant and criminal. He also recently had some charges dropped against him for bashing a young girl, physically attacking a young girl. He has numerous, multiple restraining orders against him. Ms Pemberton is aware that he has knocked his partner unconscious and this is the individual she is associating with. She is aware that he is very violent towards women and in general. She is portraying herself well.
He is from Town J and she continues to cause grieve. I have grave concerns that I am going to be put in prison and set up. I feel like these people are punching pretty horrific things they’re trying everything they possible can do to have me incarcerated. Mr Eldred (the father) is not going to be pushed and Mr Eldred is considering the process and will possibly appear tomorrow at Court. He wants the Court to know the above.”
And another email after that, recording another phone call.
“The father said that he is going to send me a photo via his business email. However he doesn’t want this email given to any other party or disclosed. He doesn’t use his old email because it was hacked by Ms Pemberton.
I know Mr G is there it do what is best for my son.
The photo he is going to send to me is a photo of this Mr H who is holding a machete. Mr H refers to this as his new cold steel on Facebook.
Ms Pemberton was given a vehicle and it wouldn’t be hard to confirm that and the fact that he’s a convicted drug smuggler, commercial quantities of drugs. He was convicted of these drugs.
The father said he might ring Child Safety. He said Child Safety had concerns and he will ring them when he gets off the phone from me.
I would also tell you that she has obviously sent you guys emails portraying me as being associated with these undesirable characters. She is highly associated with these type of people.
And the father says, “Hopefully, this can be raised but I don’t know how it can be.”
As can be seen, despite all the suggestions that the father was not going to participate in the trial and his failure to comply with directions to file up to date material, he nonetheless contacted the Court on the morning of trial and wished to engage in the trial which was being conducted by Microsoft Teams, given that this is occurring in the Covid-19 pandemic.
The father indicated that he had questions for the expert psychiatrist. Subsequently arrangements were made and the psychiatrist was called and cross-examined.
The ICL and solicitor for the mother have provided Case Outlines where they indicate their material relied upon. The only material the father has filed in this matter is over two years old, being an Affidavit of 12 January 2018.
His Notices of Discontinuance are on the record. The father has never complied with Orders to file an updating Response. The only Response document he had was a document that indicated that he wished to have regular weekend time. That was in his second amended Initiation Application filed 12 January 2018 in which the father sought regular ongoing visits with X, pickup from kindy every second weekend and drop off to kindy. The Court had ordered that the father file an amended document specifically setting out the Orders sought because “regular weekend time” was not practicable given the different geographical areas in which the parties lived.
The Court permitted the father to participate fully in the trial, notwithstanding his failure to comply with all of the trial directions, and that he did not have a current document before the Court setting out the Orders sought.
The only issue to be determined at the trial was what, if any, contact the father would have with the child.

The competing applications

At the trial, I asked the father what Orders he was seeking and he essentially said he would be leaving it to the Court and that the Court was the one deciding.
The mother and the ICL sought Orders in line with the recommendation of the single expert, that the child spend no time with the father.
The father did not want any of the parties to know where he was ringing from or where he was living. He would not provide a Notice of Address for Service or the details normally on a Notice of Address for Service. The father was only content with the ICL knowing his most recent email address, not the mother. He did not want anyone to know his phone number and, certainly, no addresses.
From the outset then it seemed difficult for the Court to make any Orders not knowing where the father was even living and how any such arrangement for regular time could actually play out if all of those details were to be kept from the Court and the mother. As the transcript will show, I asked the father what Orders he was wanting and I was prepared to allow him to indicate to this orally to the Court. He was not able to articulate any Orders.
He did then take the opportunity, though, to say to the Court, in a circular and repetitive fashion and stream of consciousness manner, all of the issues that he had with the mother. That monologue continued until he stopped some 14 (fourteen) minutes later.
The parties and the Court sat in silence listening to the father’s non-stop commentary about the mother covering all the same themes as the emails previously referred to.
There was little to no information given up about himself, but rather it was to do with what the mother has been doing. The father did say he has “been in a few fights” and that he “is a big man” and that he “has not shied away from his criminal history”.
The father, after his long monologue, was then asked if he had any questions for the psychiatrist, which he did.

The Law

This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth).
In determining the best interests of X and the nature of any time that the father is to spend with X, I need to have regard to the primary considerations under section 60CC(2) which are:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I need to give greatest weight to the second of those primary considerations. The protection of this child from physical and psychological harm is a significant issue in this matter. Overwhelming the father’s violence and violent behaviour is the most serious consideration in this matter.
In this matter, the mother contends that there are a number of risks to X arising from the father’s proposal to spend regular time with X.
Mrs Bassano solicitor advocate for the mother has referred the Court to the Full Court authority in Johnson & Page [2007] FamCA 1235 at [68] in which the Full Court specifically endorsed the following 7 point summary by the Honourable Justice Fogarty when discussing “unacceptable risk”:
1.The decisive issue is and always remains the best interests of the child. All other issues are subservient.
2.The nature of the risk is best expressed by the term “unacceptable risk”. It is an evaluation of the nature and degree of the risk and whether with or without safeguards, it is acceptable.
3.Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done, the Briginshaw civil standard of proof applies.
4.This circumstance, if it be so, that the allegation of past abuse is not approved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.The concentration in these cases should normally be upon the question of whether there is an unacceptable risk to the child.
6.The onus of proof in reaching that conclusion is on the ordinary civil standard.
7.But the components which go to make up that conclusion need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
I am also referred to Stott & Holgar and Anor [2017] FamCAFC 152 where the Full Court said at [38]:
“We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303 per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and[67]).”

Dr K – single expert psychiatrist

Arrangements were made for the psychiatrist to appear by phone to give evidence and be cross-examined.
It is noteworthy that when Dr K prepared his initial report he did not have the prison medical records, nor did he have the subpoenaed material.
The father was described as:
“Well practised at interviews and it appeared to me that he wanted to give the impression of an honest reporter, prepared to reveal all. However, in keeping with an anti-social personality diagnosis, he acknowledged, I assume, he is a consciously self-serving and manipulative historian, and I cannot place any reliance on his account. At interview, there was no other psychiatric diagnosis to be made. He was not clinically anxious or depressed and there was no suggestion of alcohol or other drug abuse currently, or of paranoia or of psychosis. I would judge that the latter two conditions, if they had been present, as suggested by the mother, have been as a result of drug use.”
Dr K continued:
“The father expressed no concern for X’s welfare to me. He expressed no anxiety about X’s present care. The focus was rather on his own need. His attachment to and love for X appeared genuine, but he has reduced his access request, he explained to me, to fit in with his work schedule.”
Dr K initially made a recommendation for supervised access, two weekends a month, only as requested. He noted the father’s partner, at that time, was working in his business, and he was not confident that care for X is certain, at present, in the father’s home.
In the most recent material provided to him from the Department of Justice and Attorney-General (some two hundred or so pages) Dr K was deeply alarmed at the father’s continuing criminal and violent behaviour including in his most recent term of imprisonment in 2019.
Dr K said that in light of the material now studied, he retracted his previous recommendation and stated that it was “sad to say but it appears it will not be possible for supervised access to be available to the father, given the safety concerns he would have for the supervisors.” Dr K continued to explain that when he first saw the father at interview, now some two years ago, the father had already ceased seeing his son as soon as he commenced his business, but he was seeking access as a father.
Dr K said that he understood the father’s position and that he felt sad for the father as the father had another son who he also has no access to. However, given the father’s recent record of his behaviour in prison, it was now clear to Dr K that the father has no respect for the law and that the father could not be relied upon to stay within the regulations that would be made with any supervision setting. Dr K was deeply troubled about the father’s ongoing behaviour, hostilities, violence, criminal offences, and his reactions to people around him inside and outside the prison system including towards the public and the police.
Further, Dr K would be fearful for the safety of any supervisors unless there were two strong men on hand at all times.
The father cross-examined the psychiatrist for 25 minutes. Unsurprisingly as a self-represented litigant, there were various times during the father’s questioning where there were irrelevant questions. There were however, questions by the father when the father became quite heated towards the single expert and the father’s tone were ultimately objected to. There were also objections to his aggressiveness towards the single expert and to the ongoing irrelevance of some of the father’s questions. Nonetheless, I am satisfied that the father had every opportunity to ask the questions that he wished to ask and Dr K gave answers to all of the questions in a forthright, candid manner.
The father was slow to realise that it was his own conduct which led to the view being expressed by the psychiatrist, Dr K, that the father was too unpredictable and violent for supervision to be successful.
Dr K explained that the material he had viewed demonstrated a real lack of engagement and a lack of ability to abide by Court Orders or show any respect for the law and shown he will not follow directions. This is supported by the Correctional Services tender bundle.
Dr K said the father told him that he had been diagnosed with a severe anti-social disorder. His propensity for violence and deception is extreme. Dr K said in light of all the material he has now studied, he retracted his recommendation and it now appears that it will not be possible for supervised access to be available for the father on a safe basis for the supervisors.
Dr K said that the suggestion about the child spending time with the father was based on the father’s needs, not on the child’s needs, and that at the time of interview in April 2018, now two years ago, the father, at that stage, had already ceased to see X. As soon as he commenced his business, he chose to put that as a priority.
Dr K said he had understood that the father was seeking access as a father. Dr K said:
“I felt sad as he had another son who he has not had access to. However, the record of his behaviour in prison, recently, has persuaded me that Mr Eldred has no respect for the law and could not be relied upon to stay within the regulations that would be made with supervision for access. And I would be fearful for the safety of supervisors, unless they were two strong men.”
Dr K described the father as a tall and strongly built man. He said the father regularly drifted off point and was noticeably careless with detail and had difficulty responding other than to simple direct questions.
Dr K said he would be most concerned for the supervisors’ safety, because the father does not respect the law and there is a lifelong history of that, and any assurances that the father gives that he will not harm anyone, needs to be disregarded. The father could be drunk, he could be on another substance, he could be angry with the mother, he could be angry at someone else. All of these are possibilities that could aggravate his temper and create safety risks for any persons around him. He explained that an anti-social disorder is a vague term, but it embraces all the methods that he has just referred to.
The father said to Dr K:
“So you have grave concerns, my ability, my lack of control, or if I’m angry or under some sort of drug, that given my history I pretty much have the capacity to wipe everybody out?”
Dr K responded “Exactly”.
Dr K said that whilst anti-social disorder was a vague term, that:
“The father’s behaviour in the past tells me how you would predict time in the future. And ever since I have interviewed you, you have been in trouble.”
During the father’s own questioning of Dr K, the father became very angry and took issue with benign remarks made by Dr K, such as “Unfortunately, I had to read a full record of your time”. That became an issue and the father decided to become extremely angry, suggesting “Why was it unfortunate” and that “the psychiatrist gets paid to do the reading, so what is he saying? Could he not be bothered doing it” and other reactions.

Dr K had been provided with quite voluminous recent subpoenaed material. As is seen in the mother’s material, the subpoenaed material and the single expert psychiatrist’s evidence, violence is a strong theme in this matter. This material is particularised elsewhere in these reasons under consideration of the father’s criminal history and violence.

Conclusion of Dr K

All of this material has caused Dr K to come to the conclusion to retract any early recommendation about supervised time. The reference to incidents of violence within the prison system and reference to the nature of the current crimes that had been committed by the father caused Dr K to review his earlier recommendation and form the view that supervision of contact could not happen. Primarily this is because in the event that the father was under the influence of alcohol, illicit substances or just plain angry, that it would take, at least, two strong men to contain him, and, further, that everyone in the father’s sight would be at risk of being physically harmed.
I accept the recommendation of Dr K who concluded that given the father’s continuing violent behaviour, it would be likely that making Orders for the father to spend time with X would expose any proposed supervisor to significant danger. The mother and X would also be exposed to such dangers. Further, any time spent by the father with X would have to involve multiple supervisors who were capable of physically controlling the father when he became unpredictably angry or took offence. Effectively this makes supervision entirely impracticable.
I am deeply troubled with the litany of incidents recorded in this material which makes reference to the violent, unpredictable, dangerous behaviour of the father which has continued over many years in various settings.
The observations and conclusions of Dr K, are predicated on the evidence of the father’s own behaviour.
The father’s questions to Dr K reveal a complete lack of insight into the likely effect upon X, of being exposed to the father’s own violent and unpredictable behaviour, which as Dr K observed and commented on as being inevitable into the future.
I accept and agree with the views of Dr K. I give significant weight to his evidence.

Family Violence and criminal convictions

In turning to the relevant section 60CC matters, Family Violence is both a section 60CC factor and a primary consideration in s 60CC (2) of the Act.
The father’s criminal history covers 20 years and continues to be active, even whilst this matter has been on foot with the father being incarcerated during the proceedings in 2019.
I adopt the chronology as set out by the ICL in terms of the father’s lengthy history of violence and the history of the Domestic Violence Orders between the parties and as seen in the Tender Bundle prepared by the ICL, exhibit ICL 1.
At the time of this trial, the father has three Domestic Violence Orders against him taken out by the mother and separately, two other individuals. On 24 January 2020, there was a second Domestic Violence Order taken out against the father with an unknown aggrieved and that Order expires in June 2023.
The Domestic Violence Order in favour of the mother was issued on 15 June 2018 and expires in June 2023. There are very restrictive and extensive conditions on this Order.
The mother has outlined a litany of violent, coercive, demeaning and intimidating conduct directed to her by the father. I refer to her evidence outlined in the mother’s material but do not repeat it all.
In May 2018, the father was apprehended by police for driving over the alcohol limit and charged with mid-range blood alcohol limit and unlicensed driving. On 10 June 2018, the father broke up with the person he was in a relationship with at that time.
The father was charged with driving a vehicle, again without a license on 26 February 2019 and damaging police property, burglary and an indictable offence.
The father was inducted into prison in early 2019. He refused to leave his cell in 2019.
On 14 June 2019, he was charged with breaching the mother’s Domestic Violence Order by emails and harassing statements.
On the day after that Domestic Violence Order was taken out by the mother against the father, notwithstanding the Order, the father attended at the mother’s house and in doing so was breaching the Domestic Violence Order, yelling and swearing and damaging property. The father was subsequently charged with wilful damage. After the father attended at the mother’s house, he was charged for damaging property and being in breach of the Orders.
On 19 August 2019, the father’s behaviour was dealt with in Court. The father was convicted of: burglary and committing an indictable offence; assaults occasioning bodily harm whilst armed in company on 26 February; Contravening a Domestic Violence Order on 16 June and wilful damage on the same date; wilful damage on 26 February 2019 and wilful damage on police property on 26 February 2019. The father was sentenced to 15 months imprisonment to be suspended for 15 months after serving 178 days. Convictions were recorded and restitution was ordered of $3,708.
On 23 August 2019, the father committed public nuisance at the L Hotel and obstructed a police officer in the performance of his duties. The father was transported to the watch-house, released on bail with an undertaking to appear in late 2019 at City M Magistrates Court.
On 24 January 2020, a third Domestic Violence Order was taken out against the father.
Those are the most recent criminal matters. The subpoena material contains an extensive history of violent offences including violence caused by the father against the mother.
In relation to the subpoenaed material, there are rather disturbing records from the Department of Justice and Attorney-General Queensland Corrective Services[6] as to the father’s behaviour in prison which have caused great alarm to the single expert psychiatrist who, up to that point, was aware that the father had been a very experienced criminal. Reading of the father’s most recent conduct, Dr K was now satisfied that the father represented a significant physical risk to anyone supervising the father; or anyone that he comes into contact with when he is angry; when he is under the influence of alcohol or any illicit substance or when the father just becomes agitated.
[6] Exhibit ICL 2.
The father’s most recent behaviour is in the document Exhibit ICL2, which is subpoenaed material from the Department of Justice and Attorney-General Queensland Corrective Services (“QCS”). The document is over 50 pages. In summary, it canvasses the father’s time in prison and the extreme difficulties that were created by his surly and abusive attitude, his arguments, his obstinate and obstructionist behaviour. The father has become extremely agitated, shouting, being abusive, throwing things, working himself up and becoming very angry and agitated, spitting, making threats such as:
(a)I know where you live. Do you get scared at night when the lights go out and you hear someone walking around your house?
(b)I’m going to put you down;
(c)I’m going to bash the fuck out of that cunt –referring to a prison officer;
(d)Threats of taking people hostage.
The father was placed on suicide watch. He engaged in a hunger strike, for some 11 days. The records show that the father is routinely recorded as having non-compliant behaviour. It is observed that he made statements of intent to engage in self-harm. The father denied to Dr K that he had had any past attempts at suicide. It is however clear in his records that the father has, at different times, attempted to hang himself and to self-harm.
It is recorded that the father used a razor to cut parts of his own ear. He has had various assessments from psychologists. In the elevated baseline risk, those documents give a summary of some of the issues.
At page 39 of ICL2, the father was referred to as:
“Prisoner Eldred is a 43 year old Australian male in his third Queensland correctional episode. He has an extensive criminal history in South Australia, serving multiple periods of incarceration and was incarcerated in New South Wales briefly for escape lawful custody in 1993. He has multiple interstate escapes from lawful custody offences and a history of serious assault, domestic violence, drug related unlawful driving and a serious break and enter trespass offending in South Australia commencing in 1989 and spanning 63 pages. His Queensland criminal history commenced in 2013 and involved serious assault for obstructing police, public nuisance assault and domestic violence offending. He is currently remanded for like-natured alleged further domestic violence, assault, break and enter and wilful damage offences.”
In terms of self-harm or suicide history:
“The father was evasive in disclosing his historical suicide attempts and non-specific when prompted. He reported, however, that he had attempted to hang himself “from high” in 2010 and disclosed other attempts he did not detail. He reported attempting to choke himself in custody in South Australia a few times but could not recall the number of attempts and popping pills when he was younger. The father further reported attempting suicide by injecting two points of methyl amphetamines into his arm “hoping to have a heart attack” or words to that effect. He disclosed being unsure to being admitted to hospital and stated “maybe another time” or words to that effect, suggesting he may have more extensive history of suicidal and self-injurious behaviour in community or custody. He further described self-injurious behaviour without suicide intent in custody by “hacking my ears with razors” or words to that effect because of disagreement with staff. The father’s custodial records indicate he disclosed attempting hanging in approximately 2003, twice further by trying to cut his throat and hanging in 2013 all in South Australian custody. Further he has reported willingness to use violent, aggressive and/or threatening behaviour to prevent entering mainstream accommodation or units where he perceives there to be “too many other people”.

Coping Style

The father described instrumental use of self-injury in custody in response to disagreements with staff.
Further, he reported a willingness to use violent, aggressive and/or threatening behaviour to prevent entering mainstream accommodation or units, where he perceives there to be too many other people. And “IR flag is current” and was raised “as a result of interstate escape incidents, adverse interstate custodial behaviour and self-harm activity”. It refers to an incident report suggesting a propensity for disruptive behaviour.

Vulnerability Factors

The father reported co-morbid mental health diagnosis and newly implemented medication regime. The father described firsthand witnessing trauma by other prisoners, self-injurious and suicide behaviours in Queensland and South Australian custody. Further, he suggested an unspecified childhood trauma history. QCS records indicate, in 2016, the father was recorded as being in a holding cell adjacent and witnessing another prisoner twice attempting suicide over three days. The father was previously approved for protection status in 2016, due to the likelihood that stated associations would threaten his safety in custody as he entered custody experiencing substance withdrawals and was at heightened risk of suicide and self-injurious behaviour. He did not progress from the observation cells.
Looking at all of the risk factors, the bullet point lists includes:
·extensive criminal history 18 years spanning across different states, including escape and serious assaults;
·first Queensland incarceration, does not know the system.
·Current changes show a continuation of past offending behaviours, eg, assault, domestic violence, break and enter, which were the current charges;
·appeared to be evasive and reluctant when disclosing past self-harm and suicide history;
·2003: attempted hanging in SA custody;
·2010: attempted to hang himself whilst being “high”;
·2013: attempted to hang himself in SA custody;
·2013: attempted to cut his throat in SA custody;
·1993: in custody, reported to choking himself at different times in South Australia prison;
·in community, reported to popping pills and injecting methyl amphetamines for a “heart attack”;
·in custody, reported “hacking his ears with razors”;
·history of using self-harming behaviours after disagreements with custodial staff in interstate prisons;
·history of using aggressive and threatening behaviours to manipulate accommodation in interstate prisons;
·current high vulnerabilities in regards to recent incarceration, after a significant period in community;
·ongoing depression and anxiety symptoms reported since incarceration;
·not granted protection status due to his aggressive threats, could occur in either accommodation areas;
·remanded in custody, does not know length of sentence;
·reports having flashbacks to past incarcerations and trauma experienced, eg, visualising violence, blood everywhere;
·nil internal supports reported;
·recent breakdown with partner relationship;
·states he could engage in further violent behaviours if triggered by “environmental factors”.
The recommendation included that reviews occur, and that the father be recommended to be accommodated in a modern suicide resistant cell due to his hanging history. He has not been granted protection status, but remains in DU due to making threats of aggression towards others if placed in secure units. The father was described as currently vulnerable due to returning to prison after an extended period in the community. He has an extensive history of 18 years in interstate prisons.

Criminal Offences in late 2019

In relation to the further charge of committing a public nuisance in a licensed premises, which was heard in late 2019 in the Magistrates Court in City M, the details of that offence are recorded. They record that the father was at a licensed premises. Police attended and heard a male person upstairs, yelling.
The police observed one male person to have an injury to his nose. That was the father, who is the defendant. The defendant spoke to the police about the matter. At that point, “The defendant has started to yell out in a loud voice to venue staff, words to the effect ‘Yeah, we fucking rebels, fucking rebels and fucking dogs’.” The police have told the defendant to stop yelling and carrying on and that if he kept swearing he would be arrested. The police have, at that time, received information that whilst being removed, the defendant had spat blood in the face of security.
As the police continued to have a conversation, the defendant continued to act in a disorderly manner and continued to yell and swear and was subsequently arrested by police, for nuisance. He was placed in the rear secure part of the police vehicle and transported to City M to the watch-house.
Prior to that there is another public nuisance charge in late 2019, again at City M, when the father was at a different licensed premises. The father was also charged with obstructing police on that day. The police attended at 0240 hours in late 2019.
When entering the premises they immediately observed the defendant (the father) in the middle of the dance floor, five to seven metres away. The records show that the police noticed that the defendant saw the police and he immediately became aggressive, mouthing to the police “fuck the police” while “flipping the bird” to the police. The police activated a body worn camera and began to monitor the defendant’s behaviour. The father continued to deliberately and repeatedly “gave the police the finger”, and yelled abuse at the police. This occurred in the presence of various other persons within the premises.
The record continues that the police approached the father and the father approached the police in an agitated state, continuing to “give the police the finger” and yell “fuck the police”. The defendant has dropped his phone, at which time police and security have assisted the defendant in retrieving it. Once the defendant had his phone he began to record police, while still yelling “fuck you, fuck the police” and “flipping police the bird”. The defendant’s behaviour was causing a public nuisance within the licensed premises and forcing security officers at the premises to intervene.
When security did attempt to intervene, he immediately resisted their efforts in removing him from the premises. The police were required to take hold of the defendant to assist the security staff. As the police did this, the defendant immediately and forcefully began to resist both police and security. The defendant was told he was under arrest, however he continued to forcefully obstruct police with his removal from the licensed premises, as a result of the defendant’s actions, namely, twisting his body about in an attempt to break free, police and security were required to place the defendant on the ground and restrain him using handcuffs.
The defendant was eventually restrained before being removed from the licensed premises. Whilst outside the premises, the defendant was still very aggressive and verbally abusive towards police. The defendant admitted to giving police the finger and telling them to fuck off. In notes for the Prosecution, the notes recorded that the defendant has an extensive criminal history with several previous convictions in these matters. The defendant was extremely unpredictable, making numerous threats at the watch-house towards police, while hindering police within the watch-house throughout his time in custody.
On the evidence before the Court, the father’s anti-social and violent conduct is seen as a continuing pattern. This evidence is extremely serious and troubling in terms of contemplating Orders that the father spend time with the child. I refer to and rely upon the single expert psychiatric view expressed by Dr K that the father’s criminal conduct precludes the option of him having supervised time. I accept this evidence and find the reasoning of Dr K compelling.

Father’s relationship with the child and his capacity to provide for the intellectual and emotional needs of X

The evidence of the father’s criminal history coupled with the evidence of the psychiatrist, indicated that violence, including family violence, is a significant and overwhelming risk factor in this matter. The father’s conduct as referred to in the subpoenaed material and mother’s evidence also has a profound effect on the father’s capacity to parent and his attitude towards parenting.
Any contact with the child or the mother potentially exposes them each to the father’s hostile, aggressive, violent threats and actual violent acts, as has happened throughout the father’s life in a various number of venues and settings.
In looking at the time that the father has opted to spend with X, I am acutely aware that when it suited the father to do so, the father decided to give back X back to the Department of Child Safety.
The father’s decision to walk into the office of the Department and put X on the counter and walk out leaving X in the care of the Department well demonstrates his lack of capacity to appreciate the emotional wellbeing of X. The father showed no regard to the emotional welfare of X.
Mr N for the Department of Communities, Children and Services, advised the Court that “yesterday, unbeknownst to the father, some of our officers were walking behind him as he was walking through a shopping centre on the way to the service centre, and he was talking very happily and very contentedly with the child – with X, and that continued all the way until he got to the service centre, whereupon he walked in and put on a fairly well orchestrated turn, and handed X over, which must have been terrible for X”.[7]
[7] Exhibit ICL3 page 8, copy of a transcript of 7 April 2017.

The father stated that he no longer wanted anything to do with the mother, her family or anyone else associated with her lies. He said in an email, to this effect:
“Sometimes the only way to deal with lies is to let them live with their own. Justice will never show its face in my lifetime.”
He continued:
“I hope to God that some people are held accountable for their lies, the illness, and, clearly, their lack of understanding for the safety of any child, let alone their own. I don’t need to file a discontinuance notice. It’s now Ms Pemberton’s job to prove to the system that she is stable enough to have any child in her care, let alone my son. I would like to wish her all the best, but, honestly, she’s not worthy as far as I’m concerned. I will let her do the talking now. Thank you for your time.”
The child has not spent time with the father for the last two years, and that has been the father’s decision. Apart from the time he spent in prison, the father told the Court that he has now relocated to the Region O where he set up a new life. He says he lives in a nice house and has a good job. I am satisfied that he has not been genuine in his alleged desire to spend time with X.
The father has walked away from this litigation on so many occasions, filing multiple notices of discontinuance and regularly making threats that he would walk away. These statements continued for the duration of this trial, with the father saying that he would “walk away again” if there is no time given to him to spend with X. The father has stated in emails that he does not care about the mother or the child saying to the mother “your nothing to me and neither is that kid” as referred to in an email of 11 April 2020. The father also stated “take the fucking kid and fuck off out of my life” in an email on 6 April 2020.[8]
[8] ICL’s affidavit annexing emails.
I am not satisfied that the father is genuine in his pursuit of a relationship with X. I am satisfied that he is using the Court process to locate the mother and advance his theories about her alleged involvement in the police matters with the father’s partner. I am not satisfied that the father has the capacity to provide for the emotional and intellectual needs of X.
Upon invitation by the Court to state what it was that he was actually seeking, the father could not articulate any proposal. The father just said he would leave it to the Court. This response combined with a failure to prosecute any pragmatic application for any actual time with X, left a strong impression that the Court processes have simply been a vehicle for the father to use for other purposes including to pursue his suspicions about who reported his current girlfriend as a missing person. The father told the Court that he has made some link that the issuing of a further subpoena to the Commissioner of Police to update his criminal history proves his suspicions.
It is noteworthy that whilst the father refused to comply with any Orders to file his own material, the Court records show that the father contacted the Registry when he wanted to and made arrangements to personally travel to City E from South East Queensland to inspect subpoenaed material no doubt to satisfy his theories about the mother abusing the legal system and misleading her solicitor.
During this Court process the father has continued to call the mother “a piece of shit”. He has said she is “prostituting herself”, and suggests that somehow the mother has had something to do with the father having allegations made that he raped a girl two years ago. On that topic, the father said:
“I don’t want to be part of this court process she is running. Years ago I met a girl in a hotel; two other people were present. I had sex in the hotel – two others present – no issues – all good. The girl said I had done something to her, like, I had raped her. I will tell you now that Ms Pemberton – that girl – she is all right. I – I will – there was another person at the hotel.”
The father engaged in a monologue for 10 minutes explaining that he got a call from the police, and that the mother has taken up with this person who was also there and that this person is a police informer:
“…and he asks me, “Didn’t you rape that person?”
The father said he had received other phone calls from the police that his partner has been reported as missing:
“…as police have grave concerns because – and some turd suggested I am a rapist.”
All of these confused, circular ruminations utterly preoccupy the father’s thinking and, as can be seen in all of the father’s engagement with the Court during this process. His focus is not on X; it is on the mother and other criminal activities that he wants to accuse her of whilst playing down his own criminal activities. The father’s suggestion that:
“I am just a big guy who has had a few fights. So what?”
seriously understates the gravity and seriousness of his sustained criminal activity.
The charges and violence involved in the 2019 convictions are extremely troubling. There is no evidence that the father is, in any way, dealing with his propensity to violence or his very serious diagnosis of antisocial disorder. The father corrected Dr K when he said he had a social disorder, saying “I have a very serious antisocial disorder, not just a social disorder.”
All of the evidence of the father’s criminal activities, violence and anti-social behaviour is deeply disturbing including in particular the observations and evidence of Dr K who has comprehensively considered the voluminous material recording the father’s unacceptable and violent behaviour.
Dr K indicated that the father’s behaviour creates danger for all of those who come into contact with the father. Situations quickly spiral out of control with the father’s anger and violence becoming paramount.
I place significant weight on these issues in determining the parenting Orders which will be in X’s best interests.
It is inevitable that the child will be exposed to these hostilities and potentially extremely dangerous situations of fights and people being injured, in the event that X is to spend time with the father. I accept the views of Dr K that to even attempt to organise supervised time places those supervising at extreme risks, and therefore totally impracticable. The risks apply both to the child and the mother.

Submissions

The ICL, through his Counsel, Ms Lawrence, was invited to make her submissions. That became quite a difficult process as the father would not stop sarcastically interrupting. This was despite my initial advice to the father that he needed to sit and listen to the other parties even though he didn’t agree with their views. The father’s response was that he was “not a child and was able to stay quiet during the submissions.” In fact, the father could not sit and respect or listen or remain quiet during the submissions of the ICL.
Whilst Ms Lawrence of Counsel tried valiantly to go through the ICL submissions and ignore the father, the father interspersed routinely every couple of minutes with insults, swearing, smart remarks and aggressive questioning. After that continued for around 20 minutes, with me asking him to remain quiet 10 or more times, I adjourned the Court.
When the Court resumed I was provided with the technology to put the parties on a separate line each with the father on an individual line which meant I could mute the father’s microphone if necessary. It was only at that stage that Ms Lawrence had the first opportunity to speak without interruptions and insults for the balance of her submissions. The ICL proposed that the Orders which were in the best interests of X were Orders for no contact with the father.
Ms Lawrence said that this case is largely about family violence, and, despite any deficiencies in the evidence, the subpoena material is the basis of really all of the evidence. The nature of the risks in this matter are extremely serious. The father is a violent, controlling and aggressive individual and that has not abated since separation, nor since Domestic Violence Orders were taken out by the mother against the father.
Ms Lawrence submitted that the day after the mother took out her Domestic Violence Order in June 2018 the police had to attend at the mother’s house as the father was present, regardless of the order, yelling, and swearing and damaging property. He was charged with wilful damage as seen in the criminal history, and later convicted of breaching the orders and occasioning bodily harm.
The domestic violence against the mother is therefore beyond doubt. Ms Lawrence referred to the father demonstrating during the hearing, that he was and remains a very angry individual, and that the Court needs to be mindful of the definition of abuse and the primary consideration of protecting X from being exposed to abuse, neglect or family violence. It was submitted that the father denies, minimises or attempts to rationalise all of the incidents.
An example of this was during the evidence when, despite the father’s convictions, the father indicated to Dr K that “because Dr K had not heard the judge’s comments in sentencing that Dr K did not understand the nature of the violence.” Counsel for the ICL referred to the father and his time being stopped by the mother, but says that there were Consent Orders that he agreed to in 2018, and that when he claims that the Department said he was the preferred parent, the father took the opportunity of delivering up X back to the Department.
It was submitted that the difficulties associated with the father refusing to file a notice of address for service or having the mother know his email address indicate the level of mistrust and how difficult it would be to actually have any working arrangement between the parties in terms of any supervised time if that had been contemplated.
Ms Lawrence described the father’s behaviour in Court as argumentative and combative, and as a matter of practicalities pointed to the fact that there is not even any evidence that the father could pay the cost of supervision if it were ever ordered.
She referred to the violence in the case, with the father using coercion, and threats, and emotional abuse, and that he has been a perpetrator of domestic violence, and attempted to minimise and deny it, and that this has occurred time and time again. Reference was made to the father’s open hostility directed to single expert, Dr K, and the father’s behaviour in blaming others for his violent behaviour.
The submission of Counsel in terms of the father’s attitude towards the mother was that he still described her, even today, as:
“…his little piece of shit, Ms Pemberton.”
Counsel referred to the evidence of the mother wherein she had described that when the father was drunk or on drugs, he would throw things on her, urinate on her. On one occasion she went to hospital when she was punched in the region of the kidneys. Counsel submitted that the evidence of Dr K that regardless of any assurances of the father that he would not harm a person, the Court must disregard those as he has no respect for the law and that has continued for some 20 years. The ICL submits that there is an unacceptable risk of violence surrounding X spending time with the father as it is inevitable that X will be exposed to the father’s temper and violent actions.
Reference is made to the very current assessment of the father in prison in 2019. This evidence is deeply troubling to the Independent Children’s Lawyer.
Reference was also made to the current three Domestic Violence Orders made against the father, one against the mother and two others against other individuals, which are all current for the next three or so years. The orders sought by the ICL are that there be no contact of any kind between the father and the child, and that there be orders that the mother be permitted to obtain a passport in the event that she wishes to take X for a holiday at any time in the future and to save her having to come back to Court in the future.

Submissions on behalf of the mother

Mrs Bassano solicitor advocate for the Mother informed the Court that her client, having heard the evidence of Dr K, also sought an Order for no contact and adopted the submissions of the ICL.
The submissions by Mrs Bassano for the mother, who relied on her written submissions, said that the father's propensity for violence and his deception is extreme and is supported by the Correctional Services tender bundle. Reference was made to the father’s ruminations and suspicions about subpoenas and his fixation on that issue. Reference was also made to the mother’s evidence as to the extensive violence committed upon her by the father.
Mrs Bassano submitted that the father’s volatility and consistent demonstration of aggression during the trial and failure to follow the most basic of directions were very troubling. This, coupled with the father’s domestic violence and breaches of Orders towards the mother as well as other aggression noted in the police records tendered would cause the Court to be extremely concerned at the prospect of any contact between X and the father.
Mrs Bassano submitted that X could not be considered safe, even in a supervised realm, given the observations of Dr K, and that it is not in X’s best interests to have a relationship with a person who is as unable to control himself as the father who could not even control himself in the courtroom to the point where the Court had to adjourn and split the calls so it was possible to mute the father in order to enable practitioners to be heard their submissions.

Father’s submissions

The father’s submissions continued on for quite some time without interruption from other parties.
Many of the father’s final submissions were about the fact that if the Court made Orders that were not in his favour, he would be walking away and repeating all of the issues about the mother including asking how it is that the mother gets to have a Legal Aid lawyer. The father submitted that “no contact means no father. Where does that leave X?”
In making submissions, the father took the opportunity to engage in another long monologue for a period of time after which I then indicated that he should stop as he was now returning to the themes (regarding the mother and his suspicions of her involvement in a police raid conducted upon his current partner) that I had already heard him discuss at length.
Another strong theme of the father’s was the mother is not stable and that, in her relationship, she is constantly breaking up, and that the “mother is a piece of work and a piece of shit.” Further that the mother has just used and abused the father. Also that the mother is just making up excuses to stop contact between himself and X:
“I won’t take that shit. I’ve been set-up. I had a judge in the Supreme Court say that I had been set-up. In relation to the domestic violence, at no time have I ever done anything to get a domestic violence orders. I was told by a judge there was only one charge – there was only one charge where I assaulted a female.”
He relayed his history of being in foster homes, and boys homes and stated to the Court “You would be very surprised who – I’ve seen people blood and people bashed up, and it’s not about lack of respect for the law. You would be very surprised who I know. I don’t shy away from that. If you are making an order that I don’t see my child you’re going to see me walk away.”
He said there is only one charge where he assaulted a female. He said that he had seen “blood and people bashed up.” The father said that he has concerns that the mother’s lawyer is being misled and:
“I am in a position that I am not going to be seeing my son. If that happens, it’s going to change me. The child loves me and misses me.”
The father went on to say that there is no evidence that he would harm the child in any way. There is no evidence that he is a risk to his child other than for the fact that he has lived in a prison environment. The father said:
“Just because I am a big guy and I got into a few fights, no reason not to see my son. The mother is a prostitute.”

Evaluation

This application is solely about the time that father might spend with X. Final Orders provide for X to live with the mother and for the mother to have sole parental responsibility.
As is clear from these reasons, the issue of the father’s violent conduct, family violence and psychiatric assessment overwhelm consideration of the other section 60CC factors.
I have a strong impression that the father’s desire to actually spend time with X is not as important to him as it is to inform the Court about the sorts of people that he believes the mother is associating with.
Throughout the father’s addresses to the Court, it seemed clear that the father has little to no insight that his criminal and violent unpredictable conduct was a serious consideration in the determination of risk factors when considering any time he might spend with X. The father wishes to compartmentalise his life into his life as a father which he inferred should be seen completely separately from his violent conduct whether in prison or in the community or towards the mother.
As to the impact of the orders proposed by the father, I am deeply concerned that the father’s proposal to have regular time with X would place X and the mother (and any supervisors) at serious risk of future harm from the father due to serious diagnosis of antisocial disorder, coupled with his criminal history and violence.
The father’s criminal behaviour has even continued during the course of this litigation. His imprisonment saw further extremely combative, aggressive, violent behaviour whilst in the prison system. This ongoing behaviour, together with his mental health diagnosis and attempts at suicide that have happened in the past, illustrate the father is capable of erratic and unprovoked violence at random, in any situation.
Overall I accept the evidence and recommendation of Dr K. His evidence accords with the evidence and my own views.
I have listened to and accept the submissions of Ms Lawrence of Counsel on behalf of the ICL and Mrs Bassano solicitor advocate for the mother as the submissions are based on evidence which I accept and accord with my own views.
I am satisfied that whilst it is a serious matter to make an Order for no contact between the father and X, that after consideration of all of the evidence it is not in X’s best interests to spend time with his father.
I have referred to the profound effect that his propensity for violence and committing violent crimes has upon X’s best interests and X’s safety and wellbeing.
I am satisfied that the father represents an unacceptable risk in terms of any proposed Orders for him to spend time with X.
I am satisfied that any Orders for the father to spend time with X would place X and the mother and any supervisor at an unacceptable risk of harm.
I propose to make Orders as sought by the mother and the ICL that the Father spend no time with X. Given the father’s unpredictable behaviour I intend to make restraints as sought by the mother and the ICL. I also intend to make Orders permitting the mother to obtain a passport for X which is to issue notwithstanding that the father has not signed the application, as sought by the ICL and Orders to permit overseas travel by X.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Judge Willis AM

Associate:

Date: 24 November 2020

[2020] FCCA 3202

24 November 2020

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Jurisdiction

Injunction

Damages

Procedural Fairness