PENTON & DAWKINS
[2021] FCCA 1502
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENTON & DAWKINS | [2021] FCCA 1502 |
| Catchwords: FAMILY LAW – Parenting – family violence – child abduction – stalking – unresolved mental health issues – risks to child and mother outweigh what would otherwise be a significant benefit to the child in having a meaningful relationship with the father – no time or communication ordered – mother can be trusted to facilitate relationship in the future if the father adequately addresses his issues. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB(1), 60CA, 60CC(2), 60CC(2A), 60CC(3), 68B, 68C |
| Cases cited: Betros & Betros [2017] FamCAFC 90 Oberlin & Infeld [2021] FamCAFC 66 Rice and Asplund (1979) FLC 90-725 |
| Applicant: | MS PENTON |
| Respondent: | MR DAWKINS |
| File Number: | CAC 62 of 2018 |
| Judgment of: | Judge Hughes |
| Hearing dates: | 3, 4, 5, 6 and 21 February 2020 |
| Date of Last Submission: | 21 February 2020 |
| Delivered at: | Canberra |
| Delivered on: | 2 July 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Coleman SC |
| Solicitors for the Applicant: | Strong Law |
| Counsel for the Respondent: | Ms Christie SC |
| Solicitors for the Respondent: | Barker & Barker |
| Counsel for the Independent Children's Lawyer: | Ms McGregor |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
All previous parenting orders in relation to the child, X, born in 2015 (“the child”), are hereby discharged.
By consent the mother shall have sole parental responsibility for the child.
The child shall live with her mother.
The child shall have no time or communication with her father unless otherwise agreed in writing by the mother.
The mother is hereby authorised to obtain an Australian passport for the child without the consent of the father.
The mother is permitted to arrange for international travel for the child without the consent of the father.
The father may provide the following documents to any psychiatrist, psychologist or mental health practitioner engaged by him for the purpose of therapy:
(a)these orders and reasons for judgment;
(b)the family report of Ms B dated 11 November 2019;
(c)the reports of Mr C dated 20 June 2018 and 9 October 2019;
(d)the report of Dr D dated 19 December 2019; and
(e)the transcript of the father’s phone calls to various people while incarcerated which were tendered as exhibit M5 on 4 February 2020.
Pursuant to section 68B of the Family Law Act 1975, unless otherwise agreed in writing by the mother, the father is hereby restrained from:
(a)approaching within 100 metres of the child;
(b)approaching within 100 metres of the mother;
(c)approaching within 100 metres of the mother’s residence;
(d)approaching within 100 metres of the mother’s place of employment, except to obtain urgent medical attention or for a planned admission to hospital and, in that circumstance, the father shall advise the mother’s solicitors in writing with as much notice as possible prior to the admission;
(e)approaching within 100 metres of the child’s school or any venue at which the child is engaged in extra-curricular activities;
(f)removing the child from the care of the mother or from her school or any venue at which she is engaged in extra-curricular activities;
(g)communicating or attempting to communicate with the mother or the child except through the mother’s legal representatives;
(h)harassing, molesting or stalking the mother or the child; and
(i)causing or threatening to cause bodily harm to the mother or the child.
Pursuant to section 68C of the Family Law Act 1975, there being in force an injunction for the personal protection of the mother and the child, if a police officer believes on reasonable grounds that the father has breached the injunction by:
(a)causing or threatening to cause bodily harm to the mother or the child; and/or
(b)harassing, molesting or stalking the mother and/or the child;
the police officer may arrest the father without a warrant.
AND THE COURT NOTES the undertaking given by the father on 5 February 2020 that he will not:
(i)attempt to discover the place of residence of the mother and child;
(ii)attempt to discover where the mother works; or
(iii)attempt to discover where the child attends school.
Otherwise, all extant applications are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Penton & Dawkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
Table of Contents
Introduction…….…………………………………………………………………………..1
Background.………………………………………………………………………………..2
The incident on 25 April 2017.……………………………………………………...……..4
Events leading to separation……………………………………………………………….8
Post-separation events…...………………………………………………………………..10
The proceedings…..….……………………………..…………………………………….16
Supervised visits at E Contact Centre and the abduction of the child..…………………….…...19
Supervised FaceTime communication……………………………………………..….....28
Child dispute conference, 17 May 2018….……………………………………………...29
Mr C’s first report, 20 June 2018….…………………………………………….30
Dr F’s first report, 27 July 2018…..…...…………………………………..……….34
Suspension of supervised video calls…..………………………………………………...37
Dr F’s second report, 14 November 2018…...……………………………………..39
Resumption of supervised face-to-face visits…...………………………………………..41
The altered E Contact Centre report………………….…………………………………………42
The father’s criminal proceedings, 20 December 2018…..……………………………...43
The tracking devices….………………………………………………………………….45
The father’s incarceration…...…………………………………………………………...48
The father’s attitude to the mother while incarcerated…….……………………...……..48
Mr C’s second report, 9 October 2019…..……………………………….……..55
Family report 11 November 2019..……………………………………………………...62
Report of Dr D, 19 December 2019………………………………………..71
The father’s witnesses………………………………..………………………………….78
Credibility issues………………………………………………………………….……..79
The legal principles…………………………....………………………………………...83
Conclusion………………………………………………………………………………98
Parental responsibility…...……………………………………………………………..100
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 62 of 2018
| MS PENTON |
Applicant
And
| MR DAWKINS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings concerning the parties’ six-year-old daughter, X. The mother’s case is that, notwithstanding a loving and affectionate relationship between X and her father, it is not safe for the mother or X, for X to continue a relationship with her father due to his persistent aberrant behaviour, including family violence, abducting X from a supervised contact centre, and stalking.
The father concedes some adverse behaviour by him but asserts that, because of the various courses and therapy he had undertaken, he now presents no risk at all to the mother or the child and that X should not be prevented from exercising her right to a meaningful relationship with him. He proposed a gradually increasing regimen of time, commencing with two hours of supervised time each week, building up to extensive unsupervised time, and culminating in a week-about arrangement in two years.
Background
The applicant mother is a 44-year-old health care professional who works at several hospitals within the ACT. The father is a 56-year-old construction worker.
The parties were in a relationship for less than five years. They commenced cohabitation in 2013 and separated on 9 January 2018. Their only child, X, was born in 2015.
The father has an older daughter, Ms G, who is now aged about 26. At the time of the trial, Ms G lived in Sydney.
Both parents were very involved in X’s care from the time she was born. The mother has worked part-time since X’s birth, except for a six-month period in X’s first year during which the mother was required to work full-time to complete a particular qualification. The father took 12 months leave from work following X’s birth before returning to full-time work. All of the evidence points to the child having a close, loving and affectionate relationship with both parents.
The mother deposed that, during the relationship, the father was, at times, unable to control his anger such that it escalated until, as she described it, he was “seething with rage”.[1] She said she had observed him express intense anger towards his mother and about his brother but, until X was born, the anger had not been directed towards her. She said that the first time it was directed toward her occurred when X was about eight weeks old and the mother was preparing to go to Sydney to attend a post-birth obstetric appointment, to take X to a paediatric appointment and to visit the mother’s family. She said the father did not want her to go, became angry, went red in the face, came up very close to her, and yelled at her.
[1] Mother’s affidavit filed 7 January 2020 at paragraph 21
Both parties said that, during their relationship, they often held strong and differing opinions about various issues which led to major arguments. Each party asserted that they tried to discuss their point of view reasonably and that the other party became unreasonably angry and abusive during these discussions. The mother also said that in 2015 the father punched the brick lounge room wall and broke a drawer in her chest of drawers while angry.
The father said he enjoyed having robust conversations about issues and being challenged on his views but also felt that the mother deliberately took the opposite view to any he expressed. He said he wanted to marry but the mother did not, and this left him feeling insecure about the relationship.[2] The mother said the father made disparaging remarks about her views, called her a fraud and said she was stupid if her views differed from his.[3] She said this extended to minor things such as the direction she took when driving the car. She said the father’s volatility and abuse during arguments had an adverse effect on her over time and that she gradually stopped expressing contrary opinions, including when the couple was socialising with others. She said that, in order to keep the peace, she also began driving the way the father preferred, choosing television programs that he wanted to watch and not watching the news with him because he was so aggressive about news items that did not accord with his views.
[2] Father’s affidavit filed 20 January 2020 at paragraph 26
[3] Mother’s affidavit filed 7 January 2020 at paragraphs 44 to 45
During her pregnancy, the mother had befriended a woman next door who was also pregnant, and who was in a lesbian relationship. The mother said she enjoyed speaking to her about their shared experiences of first time motherhood. The mother said the father was scathing of the fact that the couple were lesbians, saying they had “stolen their baby”, that he did not want her or X associating with them and that he would decide with whom X could spend time.
In the lead up to the 2017 Australian national postal survey about same-sex marriage, the parties had different views. The mother said the father was intolerant of the idea of same sex marriage and became irate when the issue was discussed. When the mother expressed her support of people being able to marry regardless of their sexual orientation, the father accused her of being hypocritical because she had not wanted to marry him.
Text message communication between the parties about these subjects came into evidence. They are consistent with the mother’s evidence in that the language and expressions used by her were calm and measured whereas the father’s texts were emotive, made use of capital letters to denote shouting and were, at times, personally abusive of the mother.[4]
[4] Mother’s affidavit filed 7 January 2020 at annexure 10
The mother said that, in about early 2017, the father glared at her and said “You are the kind of woman that makes men murder their families and then kill themselves”. The mother said she was shocked by the statement and replied quietly, “You don’t mean that.” She said the father replied “Yes, you are”.[5] The mother said she was so stunned she did not know what to do. She went to the bedroom where X was sleeping and lay down with her. She said she could not recall anything that could have led to such a remark. In his oral evidence the father vehemently denied ever saying anything of the sort to the mother. In his trial affidavit he said he recalled one conversation about a friend’s relationship breaking down and him making a comment about how deeply men sometimes feel at that point in their lives. He said “I can’t recall the precise words that I spoke. I understand that saying such things may cause grave concern.”[6] This statement is vague but seems to be an acknowledgement that he said something to the mother at that time which caused her grave concern.
[5] Ibid at paragraph 29
[6] Father’s affidavit filed 20 January 2020 at paragraph 62
The incident on 25 April 2017
On 25 April 2017, the father’s adult daughter, Ms G, telephoned the mother, upset and crying about her father’s apparent anger and rejection of her for getting a small tattoo. The mother said Ms G told her that her father said she could not see X and could not receive her grandmother’s inheritance unless she used the money to have the tattoo removed. The mother said she tried to speak to the father about the issue but he refused to engage, saying that he did not want X to have contact with anyone who was “inked”, that he had told Ms G not to get a tattoo and that she, Ms G, needed to listen to him.
The mother said that, when she pointed out that Ms G was an adult and that the tattoo was only a small one, the father told her that it was none of her business. The mother said she pressed the issue because Ms G was X’s sister and it was unfair to prevent them seeing from each other. She said the father walked out of the room with his hands over his ears, singing “La la la” in a loud voice. When he came back into the room, she began to tell him that they had to find a way to discuss things about which they disagreed. She said that, before she was able to finish her sentence, the father put his hand over her mouth, put his other hand on the side of her head, shook her and said “Shut up”.[7] The mother said X was standing next to them and observed what happened.
[7] Mother’s affidavit filed 7 January 2020 at paragraph 32
The mother said she was shocked and frightened by this incident and told the father she was going to call the police. The father snatched her phone from her hands, ran outside and made a motion as if to throw the phone away. He then refused to return it to her. The mother said she left the house with the child as she was afraid for her safety. She drove to the police station and made a report. She then went to a friend’s house before driving to Sydney where she and X stayed for several days.
On 27 April 2017, the police contacted the mother to enquire about the location of the father as they had been unable to arrest him. The mother told police she did not want the father to be arrested but, rather, she was hoping the father would get some help and they would have some sort of mediated outcome to the incident. She told police she was not afraid of the father and did not think he would become violent again.[8] She said she asked the officer whether there was any option for the father to have counselling or some other form of intervention rather being arrested. She said the officer told her that this was possible but they needed to speak with the father first.
[8] Police notes of 26 April 2017 which form part of Exhibit F6
The mother sent an email to the father on 30 April 2017, in which he tried to explain the impact of his behaviour on her. She told him that 25 April 2017 was one of the worst days of her life and that his behaviour had scared and intimidated her. She urged him to work with her on improving their relationship and attached a brochure for relationship counselling.
The mother returned home four days after the incident. She saw a card from the police on the kitchen table, requesting that the father contact them. She said that, as far as she knew, the father never contacted the police.
In mid-June 2017 the father called the mother while she was at work. The mother said he was screaming at her about having received a summons from the police and demanding that she sort it out and tell police that she had lied about the incident on 25 April 2017. The mother said she did not agree to tell the police she had lied because she had not. She said she spoke to the police who told her they had tried many times to contact the father and he had not responded. The DPP then told her that she would need to see a solicitor and could write a supporting letter for the father.
The mother said she managed to calm the father down by telling him that she would write a letter of support about the couple trying to move on with their relationship and attending counselling. She also said she would pay for a lawyer. However, she said she was disappointed because the father’s reaction made it clear to her that he had no insight into the detrimental impact of his behaviour on her and X. A few days later she emailed the father a copy of the same letter she had sent to him in late April, explaining how his conduct had affected her. She said she felt this had no discernible impact.
The father’s evidence about these events was that, on the evening of 25 April 2017, he heard the mother receive a phone call from Ms G and asked her to leave the tattoo issue alone because it was an issue between him and Ms G and that he was dealing with it. He said that, when the mother hung up the phone, she told him he could not tell Ms G what to do. He said she kept arguing with him and said “I’m going to get an AVO”. He said the mother kept berating him so he put his fingers in his ears and walked out of the room singing “La la la”. He said he returned a few minutes later, expecting that the issue was finished, but the mother continued to yell at him. He said he moved towards her and placed the fingers of his right hand on the mother’s lips and his left hand on the mother’s shoulder and said “Stop talking”. He denied telling the mother to “shut up”. He said he was not forceful or aggressive. He said the mother then told him she was calling the police, which shocked him as, in his view, it was disproportionate to anything that had occurred. He conceded that he had grabbed the mother’s phone, hoping she would cool off before calling the police. Instead, she accused him of assault and said she was going to the police. She then left the house with X and did not return for five days. He said she later told him that she only went to the police to record the incident, given he was so angry. The father said he thought everything was resolved at that stage.[9]
[9] Father’s affidavit filed 20 January 2020 at paragraphs 30 to 37
The father said that, about two weeks after the incident, he found a card left by the police at the front door. He said he disregarded it as he assumed it was a courtesy call only. However, he was subsequently served with a summons for assault. He said that, when he told the mother, she said she had not intended that to happen. He told her she would have to fix it because it would prevent him getting a job and she agreed to try to sort it out. The next day she said she had been told it was too late and that it was best for him to contact a lawyer. She had been given the name of a lawyer whom the father subsequently engaged.
I found the mother’s explanation of the events of 25 April 2017 more compelling than the father’s. It is hard to understand on the father’s version how he could have gently placed his fingers on the lips of the mother when, according to him, she was yelling and agitated. He agreed that he had grabbed her phone which suggests a level of physical or emotional arousal in him, and he agreed the mother said she would call the police which suggests either that she was frightened or that she was manipulative. On the evidence as a whole, the former is far more likely.
The mother wrote a letter in support of the father in the criminal proceedings. In it she said that she had continued to pursue the issue about Ms G’s tattoo despite the father telling her it was none of her business. She said “My point in adding this is that while I don’t think our relationship is perfect, and I did feel threatened, I think we both have fierce personalities that clash and escalate during arguments”. She said in the letter that she and the father were attending counselling and had strengthened their relationship.[10]
[10] Ibid at annexure A
The father pleaded guilty to the charge of common assault and received a 12 month good behaviour bond. The police statement of facts was tendered in evidence in the current proceedings and was largely consistent with the mother’s evidence.[11] In the current proceedings, the father took issue with much of the statement of facts, reiterating that all he did was place his fingers on the lips of the mother and tell her to stop talking.[12]
[11] Exhibit M8
[12] Transcript 4 February 2020 at pages 153 to 154
Events leading to separation
An incident occurred on 4 January 2018 which led to the parties’ permanent separation five days later. The father said that he was sitting on the lounge room floor, leaning against the couch, watching TV with earphones on. He said an argument started between the parties after he made a comment about his assault charge arising from the events of 25 April 2017. He said the mother “came flying across the room” at him, taking him by surprise. He said she put one hand on his shoulder with her thumb on his throat, and her other hand across his mouth and jaw and pushed his head backwards. He said she screeched some words at him but he could not make out what she said. He said he was shocked and grabbed the mother’s right wrist, pushing it away from him and causing the mother to let go. He said the mother then picked up X and walked out.[13]
[13] Father’s affidavit filed 20 January 2020 at paragraph 46
The father said he attended the police station a few days later and said he wanted to make a statement about the incident without pressing charges. He said he was told that, if he made a statement, the mother would be charged. He said this information came as a shock and caused him to think the mother had lied to him about what she thought would happen when she made her statement to the police on 25 April 2017. He said that, on 8 January 2018, he tried to talk to the mother about this and said that, if he made a statement, she would be charged with assault. He said the mother replied that she had not assaulted him. He said the next day he received a text message from the mother saying that she was feeling sad and would be going away for a while with X, and that this, ultimately, was the date of separation.[14]
[14] Ibid at paragraphs 47 to 49
The mother’s version of events was that, on 4 January 2018, she heard the father saying to X, “Your mum is a bad person, she went to the police about me. She is a bad person”.[15] The mother said she reminded the father that she had gone to the police because she was scared of him, given what he did. She said he responded by saying he had only brushed his hand across her face and told her to shut up. The mother replied, “No, this is what you did” and showed him how he had held his hand over her mouth and shaken her with his other hand. She said she did not fully demonstrate the action because she was barely touching him with her hands while explaining it. She said the father grabbed her arm and pretended to twist it. She said she was frightened and did not know what he was about to do. She said she was not physically hurt but was uneasy about his behaviour.
[15] Mother’s affidavit filed 7 January 2020 at paragraph 48
The mother said that, on 8 January 2018, the father sent her a text message telling her that he was going to report her to police for assaulting him on 4 January 2018. She responded by text to say that she hoped he would not as it was not true but then moved on to ask whether she should pick anything up for dinner on the way home. She said she had learned that normalising the conversation quickly was the best way of preventing escalation.
The mother said the next day, 9 January 2018, the father glared at her and asked whether she was going to ask about him going to the police. He then told her he had gone to the police but had not yet made an official complaint but, if he did, she would be arrested. The mother said X was sitting with her on the couch and heard what he was saying. She said she responded that, if their relationship was that bad, they had nothing more to talk about. She said she decided at that point to separate from the father. She said she did not tell the father of her decision because she had raised the idea of separation on three or four occasions over the previous 12 months but the father had refused to talk about it and had simply stated, “We will not separate”. She said she was still frightened by the father’s comment that she was the sort of woman who causes men to murder their families, and she felt anxious about what would happen if she left him. For this reason, she left the home with X on 9 January 2018 while the father was at work. The next day she applied for a family violence order.
Post-separation events
On 10 January 2018 the mother obtained an ex-parte interim family violence order which included X but did not prevent the father from spending time with her. The solicitors she engaged wrote to the father on 11 January 2018. The letter was sent by post and email. It advised the father that the ACT Magistrates Court had made an interim family violence order and included a copy of it.
The letter clearly stated that the mother did not wish to prevent the father from having a relationship with X and that, once the family violence order was served on him, the mother would enter discussions through her solicitors about X spending time with him. The letter also advised that the mother would shortly file an application in the Federal Circuit Court seeking family law parenting orders. The letter urged the father to seek independent legal advice and directed him to two free legal services if he wished that assistance.
On 11 January 2018 the father sent a text message to the mother threatening to have her charged with assault, making false claims against him and abducting X.
On 12 January 2018 the father attempted to call the mother twice but she did not answer. She then received a phone call from a mutual friend who expressed concern for her safety and described how angry the father was.
The mother said she also received calls from other people which caused her to believe the father was trying to find her. On 15 January 2018 she received a call from Mr H, a friend of the father and a police officer in Town J on the Region K of NSW. The mother said Mr H told her that the father was angry and agitated and had stated that he was looking for her and did not care if he breached the family violence order. The father denied ever saying that to Mr H.[16] Another friend, Ms L, reported that she saw the father looking over the fence in the lane behind her house in Town M, also on the Region K of NSW. During cross-examination, the father denied looking over Mr L’s back fence but agreed he had been in the lane behind her property at that time.[17]
[16] Transcript 4 February 2020 at page 172
[17] Transcript 4 February 2020 at page 173
On 16 January 2018 it came to the mother’s attention that the father had sent a mock-up poster containing photos of her and X under a heading which read “Abducted and enforced by the State” to various of her friends and work colleagues,. In the document the father declared that X had been abducted by her mother who had committed perjury in obtaining a family violence order. He described himself as the child’s primary carer and the mother’s treatment of him as inhumane and barbaric. In the current proceedings, the father said he created the document because he wanted people to know what had really happened between the parties.[18] He conceded during cross-examination that he did not believe everything in the document but had never contacted anyone to whom he sent it to retract any part of it.[19]
[18] Ibid at page 174
[19] Ibid at page 177 to 178
From January 2018 to February 2018 the father was in Country N on a pre-planned trip with a group which included the mother’s parents. For at least some of the trip, the father was staying in the same hotel or close to where the mother’s parents were staying. The mother arranged FaceTime communication between the father and X, supervised by the maternal grandfather or by the parties’ mutual friend, Ms O. The mother said the FaceTime occurred almost daily. The father said it was not as frequent as the mother asserted, although he could not recall with precision how often it occurred.[20]
[20] Ibid at page 163
On 27 January 2018, while the father was overseas, the mother returned to the former matrimonial home; a property rented in her name. The father had changed the locks. The mother arranged a locksmith to change them again. On 30 January 2018 she removed all of her personal belongings and some furniture from the home. She said she left most of the furniture, white goods and other contents at the property. She left the new key and combination for the shed lock in the parties’ post office box so the father could access the apartment when he returned. She said she observed that, since separation, a hole had been smashed in the linen cupboard.
The mother said that, after the father’s return to Australia, she continued to facilitate almost daily FaceTime communication between the child and her father. She said the father was sometimes hostile to her, either directly or through the child. For instance, if she tried to assist X by prompting her about things to tell her father, he said “Don’t tell her what to say!” [21]
[21] Mother’s affidavit filed 7 January 2020 at paragraph 75
On 6 February 2018, the father spoke to X on the telephone while the mother and X were in the car. He said to X, “You can’t see me because mummy is a nasty person and won’t let you go home”. The mother hung up but the father rang back and the phone automatically connected through Bluetooth. He said to the mother “My childhood was terrible because my parents separated. I have thought about killing myself and your lawyers are lying to you and this won’t work out how you want it”.[22] Later that day, the father sent the mother an email in which he said “So much for death till us part. You have been sold a lemon by all your fem nazi heroes”.[23]
[22] Ibid at paragraph 77
[23] Ibid at annexure 29
These and other disparaging messages from the father had the predictable effect of reinforcing the mother’s concerns about the father’s anger.
On 13 February 2018, the mother’s solicitors wrote to the father to say that, because of his conduct, the mother was not prepared to agree to arrangements for him to spend time with X except remotely through FaceTime. However, her lawyers also conveyed that, if he continued to use the FaceTime communication as an opportunity to make derogatory comments about the mother, she would no longer facilitate that contact. They also encouraged the father to prepare his responding material so that an appropriate arrangement could be negotiated or ordered at Court on the first return date, 26 February 2018.
The father responded by email that evening to say that he had been trying to get legal assistance and should have someone engaged in the next few days. In his responding email, the father said that he had been pushed to the edge by the mother’s callous tactics which were a “terrible inhumane torture” of him.[24]
[24] Mother’s affidavit filed 7 January 2020 at annexure 34
The next day, 14 February 2018, the father wrote to the mother’s solicitors, pointing out that he had an understanding of the law and “solicitors’ ways” but the mother, although very clever at her job, was naïve about the workings of the world. He asserted that the mother and her solicitors had made it clear that he would only be allowed access to X once he had engaged a solicitor. This interpretation was quite wrong and clearly a misunderstanding on his part. The father went on to say this approach was designed to ensure that the legal costs could be ramped up. The email was long and finished with the following statement:
The truth about the sorry saga is soon to come out. At least a dozen of my friends have seen the emotional and physical state I have been in since X was taken away and I only have them to thank for keeping me from doing something much worse. When I’m successful and I’m sure I will be, I will be seeking compensation from Ms Penton which is commensurate with the depth of torture she has inflicted on me to the point of a breakdown. Ms Penton should know how tenacious I am when [it] comes to getting justice for myself and it is now, my life ambition to get justice for X and myself. I will, however get legal representation as you ask and waste more time on more solicitors, but there is an air of impending doom for all. That little girl X is not even 3 years old and yet, Ms Penton is intent on ruining her life and everyone involved.[25][Emphasis added]
[25] Ibid at annexure 35
On the same day, 14 February 2018, the mother’s solicitors wrote back to the father to reassure him that time with X was not dependent on him instructing a lawyer as he has a right to represent himself, but it was dependent on his capacity to conduct himself in a manner which did not cause emotional harm to X. They advised him that, if he intended to represent himself, he should file his response documents as soon as possible so that the matter could proceed effectively on 26 February 2018.
The father wrote back within the hour, again stating that he was being tortured and that he would sue for “massive damages” for pain and suffering. Part of his correspondence to the mother’s solicitor included the following:
Maybe one day your 2 year 10 month old whom you dearly love will be taken away from you for months without word. THEN YOU WILL SEE HOW IT FEELS.[26]
[26] Mother’s affidavit filed 7 January 2020 at annexure 39
The father did engage lawyers but, on 16 February 2018, sent the following email to the mother’s lawyers:
I just want to make one more statement before my solicitor takes over. I have changed that little girls nappies and spoon fed her every morning virtually since the day she was born. Her own mother abducted her away from me without a word doing untold damage to her and me and has hidden behind her perjured documents, (of which there is multiple) ever since and you have the gaul (sic) to say that I can’t see X because you are worried about her welfare. I know that you have orchestrated this whole campaign of terror from behind your laptop. I also know I will be punished now by limiting access to X. I think you’re all very sick.[27]
[27] Ibid at annexure 40
The father said in his trial affidavit that he was very angry, upset and confused when the mother left with X. He said he did not see a counsellor at that stage and, in hindsight, believes it would have been useful.[28] He also acknowledged that, up until he engaged a lawyer, he “…said some inappropriate and stupid things to both Ms Penton and her solicitor”.[29] This statement was typical of the manner in which, throughout his evidence, the father excused and minimized his behaviour.
[28] Father’s affidavit filed 20 January 2020 at paragraph 60
[29] Ibid at paragraph 61
The father said he engaged a lawyer on 16 January 2018 but this seems to be an error because everything else in the evidence points to that date being 16 February 2018.
On 24 February 2018 while the mother and child were walking through the P Shopping Centre to meet the parties’ mutual friends, Ms O and Mr Q, they ran into the father. X ran to her father excitedly. The mother agreed to the father spending a little over half an hour with X in the company of Ms O, and this occurred.
Despite repeated warnings to the father about inappropriate comments to or in X’s presence, the father was apparently unable to control himself. The mother’s evidence, which I accept, is that the father made the following comments during FaceTime communication with X, but which were directed at the mother:
i)On 24 February 2018 he said to X “When are you going to see me? You have been abducted or something” and “When are you going to see me? Mummy keeps saying soon but it has been six weeks”.[30] The father conceded he said this.[31]
ii)In a second FaceTime conversation on 24 February, the father showed X some kangaroos and then said “Look at the kangaroos. There is a mummy, daddy, a joey and they stick together always. They are not weak”.[32] The father did not respond to this allegation.
iii)On 27 February 2018 the father asked X if she would like to live with him. When she answered in the affirmative, he said “Don’t worry, you will be back with daddy soon. We will sort it out on Thursday”.[33] The father did not respond to this allegation.
iv)The mother said that the father frequently asked X why her mother would not let her see him and, on one occasion, then directly said to the mother “Ms Penton, you told her I am a danger, that’s right isn’t it? I am a danger”.[34] The father denied saying this.[35]
[30] Mother’s affidavit filed 7 January 2020 at paragraph 87
[31] Father’s affidavit filed 20 January 2020 at paragraph 213
[32] Mother’s affidavit filed 7 January 2020 at paragraph 88
[33] Ibid at paragraph 90
[34] Ibid at paragraph 91
[35] Father’s affidavit filed 20 January 2020 at paragraph 214
The father made a number of statements in his various communications to the effect that he was close to suicide as a result of being deprived of spending time with his daughter. This caused the mother to be concerned about his state of mind and X’s safety.
In his trial affidavit, the father acknowledged saying these things in emails to the mother or her lawyers but said he did not intend them to be taken seriously:
I am only concerned about the best interests of X… I wish to reassure the Court that I will never do anything to jeopardise X’s relationship with Ms Penton, or to harm X or Ms Penton. I understand that one of the worst things I could do to harm X would be to harm Ms Penton or myself. I will never do either of those things. I was stupid when I said otherwise and did not mean those things. I understand how frightening it would have been to Ms Penton to read what I said in some emails. In my first affidavit filed 26 February 2018 I unreservedly apologised to Ms Penton. I acknowledge that I should never have placed Ms Penton in a situation where she was worried about her safety, X’s safety or what I might do.
I understand that Ms Penton might never trust me again. I hope that she will come to trust me and I recognise that my actions into the future will be a significant part of rebuilding trust.[36]
[36] Father’s affidavit filed 20 January 2020 at paragraphs 68 and 69
The proceedings
On 15 January 2018, less than a week after separation, the mother commenced these proceedings. She sought orders for equal shared parental responsibility and for X to live with her and spend time with the father as agreed or as ordered by the Court. On an interim basis, she sought orders for the father’s time with X to be professionally supervised at a contact centre for at least two hours, twice each week.
On 26 February 2018 the father filed a response seeking equal shared parental responsibility and for X to live with him. He proposed that X spend time with her mother on alternate weekends, one night in the alternate week, half of school holidays and on special occasions. He sought similar orders on an interim basis.
The first return date was originally 26 February 2018 but was moved to later that week and the proceedings came before the Court for the first time on 1 March 2018. Both parties were legally represented that day. Interim orders were made by consent which provided for X to live with her mother and to spend two hours with her father each Sunday at the E Contact Centre. After four weeks this was to progress to two hours each Sunday away from the contact centre but in the presence of an agreed person. The orders also provided for a five-hour block on 31 March 2018 to occur at Town R, NSW, in the presence of an agreed person and for extra time as agreed between the parties.
In addition, the orders provided for the father to communicate with X by FaceTime each day between 6:30pm and 7.00pm.
The orders required the parties to engage in counselling with S Counsellors, for the father to complete an anger management course and for both parties to complete a post-separation parenting course. An order was made for the parties to participate in a reportable Child Dispute Conference with a family consultant on 17 May 2018. The proceedings were adjourned to 3 July 2018.
Throughout these proceedings, the father has sought to attribute and/or explain his subsequent adverse behaviour to being deprived of a normal relationship with his daughter. However, it was clear in the consent orders made on the first day that the requirement for supervision was only for four weeks, to be replaced by a requirement to have an agreed person in attendance. There was also provision for extra time as agreed. It was obvious that the matter was moving in the direction of rapid reduction of restrictions and the resumption of a “normal” relationship between X and her father.
During the evening of the first Court day, 1 March 2018, the father had a FaceTime call with X. The mother said she was holding the phone for X, who was not yet three, to ensure X and her father could see each other. The mother said that, during the conversation, X walked away from the phone. She said the father changed his voice to a menacing tone and said to her “You will pay for this.” The mother terminated the call. Shortly afterwards she received a series of text messages from the father asking her to let him say good night to X and asking “What’s happened to you???” The mother responded by text message to say that his communication with X was conditional upon him not exposing her to family violence and that hostile comments such as “You will pay for this” were inappropriate and threatening. She told him that she would not make X available again that night. The father responded “Sorry love you”.[37]
[37] Mother’s affidavit filed 7 January 2020 at annexure 45
During the trial, the father conceded speaking directly to the mother during FaceTime that night but denied using a menacing tone. He said his comment to the effect of “You will pay for this” was referring to the property settlement and meant that the mother would end up having to pay him some money. I did not find that remotely persuasive.
Later that evening, 1 March 2018, the father sent the mother a link to a video clip of Senator George Christiansen making a speech in Federal Parliament. The video clip was entitled “The feminist Trojan horse in family law”. In the speech, Senator Christiansen disparaged the family law system and referred to fathers being driven to insanity, taking their own lives and sometimes those of their children, in the context of losing everything in that system. The mother said she felt sick and threatened by the message in the clip which echoed the words used by the father during their relationship.[38]
[38] Ibid at paragraph 96
The father agreed he sent the link to the speech made by Senator Christiansen. He said he did not agree with many of the things said by Mr Christiansen but was hoping the mother might gain a different perspective if she heard about the pain caused to a parent being denied a relationship with their child. He said in his trial affidavit that he did not intend to make any threat to the mother.[39] During cross-examination he said he had not actually listened to the whole of the clip and had never heard the part of the speech referring to men being driven to kill their families.[40] A short time later he said he had, in fact, listened to the whole of the clip but not until after his solicitor had pointed out what was on it. Again, the father’s evidence about this not persuasive.
[39] Father’s affidavit filed 20 January 2020 paragraphs 73 to 77
[40] Transcript 4 February 2020 at pages 179 to 181
Senior Counsel for the father submitted that it was not open on the evidence for the Court to find that the father was aware of the reference in the speech to fathers killing their families or that he sent it to the mother with the intention of frightening her. I am well satisfied that this was the state of knowledge of the father and that this was his intention, and I so find. The father’s explanation reveals a distorted sense of reality because he was not being denied a relationship with his child. On the contrary, orders had been made that very day, by consent, to re-establish face-to-face time with his daughter, starting in two days’ time. Although I have no doubt the father was desperately missing his daughter, his hostile communication had little to do with his daughter but was rather an expression of his deep feelings of animosity towards the mother. I am satisfied on all of the evidence that, at that time, the father felt the mother was controlling his relationship with his daughter and this was intolerable for him. His threats that evening were an attempt to reassert control over the mother through fear.
On 3 March 2018 the father sent the mother’s solicitors an email asking that neither the mother nor her father be present in the room while he was having FaceTime communication with X. He suggested the mother have independent people to hold the phone for X. Given he was due to have FaceTime communication between 6.30 and 7.00pm each day, this was an impracticable request. In any event, the mother blocked the father from her phone after he threatened her on 1 March 2018. Senior counsel for the father submitted that it was inappropriate for the mother to unilaterally suspend the FaceTime on the very day it was ordered but, in my view, this was reasonable in the context of the father’s two threats that day.
Supervised visits at E Contact Centre and the abduction of the child
Although the parties had agreed on weekly supervised visits, E Contact Centre were only able to facilitate fortnightly visits which commenced on 3 March 2018. The first visit reportedly went well. The second visit on 11 March 2018 also went well but the E Contact Centre notes indicate the father made a number of statements to X, encouraging her to tell her mother she wants to see him. He also questioned X about whether she wanted to come to his house and whether she went to work with her mother.
During the third visit on 18 March 2018, a serious incident occurred in which the father removed X from E Contact Centre without permission. Ms T was the supervisor at E Contact Centre that day. She gave a statement to police which came into evidence as exhibit M1. According to that statement, the visit on 18 March 2018 proceeded largely without incident. She said X ran to her father at the beginning of the visit and they played happily together. She said X occasionally referred to her father as “Poppy” and the father corrected her and told her that he was “Daddy”. She said this happened a couple of times and then she noticed X self-correcting when she accidentally said Poppy. Ms T said that, on one occasion when this happened, the father turned to her, the supervisor, and said “X is being taken care of by Ms Penton’s father who is Poppy and he’s an alcoholic”.
Ms T said that, after morning tea, X told her father that she needed to go to the toilet. Her father took her nappy off and took her into the toilet cubicle and shut the door. Ms T said she was in the bathroom, standing directly outside the cubicle. She said she could see under the door and through the narrow gaps on the side of the door and could hear everything that occurred in the stall. She said she heard X urinate and heard her chatting to her father while she was on the toilet. She heard the father telling X not to forget to flush the toilet. She said X giggled, then she heard the toilet flush. The father brought X back to the change table and put her nappy back on. While he was doing that, he said to Ms T “I’m taking X to the police”. When she asked why, he responded “X has been molested and inappropriately touched by her grandfather”. Ms T said to the father “You can’t take X. You need to speak to the supervisor.” She said the father got X dressed, collected her bag and said he was going to reception. In the meantime, Ms T telephoned her supervisor, Ms U.
Ms T followed the father who was carrying X. She said he didn’t stop at the reception area but simply told Ms U that he was taking X to the police. Ms T said Ms U told the father that he could not take X and that they could call the police to come to E Contact Centre. Ms T said she stayed in reception while Ms U followed the father outside. Ms U then called out to her to call the police, which Ms T did. While she was on the phone to police, Ms U called the mother and asked her to come to E Contact Centre and then took over the phone call with police from Ms T.
Ms T said she collected X’s toys which had been left behind and returned them to the mother when she arrived. She also wrote up a report about the visit and a separate incident report with Ms U. On 4 May 2018 she gave her statement to police.
The mother returned to E Contact Centre that day and then went to the City V police station where she was informed that police could not enforce the family law orders. The police advised her that they were tracking the father’s phone and would triangulate where he was and check on him and X but would not return X to her unless they assessed her to be at risk.
Despite his clear statements to E Contact Centre staff that he was taking the child to the police, the father did not do so. The mother’s friend, Ms O, joined the mother at the police station. Just before 12:30pm, Ms O began a text message conversation with the father as follows:
Ms O:Hey Mr Dawkins. Ms Penton let me know that X is with you. Let me know if you want to talk or catch up. You’re a good person, and you know it. Speak soon, Ms O.
Father:Hi Ms O, tell Ms Penton I’m willing to comply with what she wants as far as adhering to the agreement but X has told me about the abuse she has been suffering at the hands of Ms Penton and her father. Tell Ms Penton to grow a spine and call me. I am not angry. I just want her to talk it over. Mr Dawkins
Ms O:Mr Dawkins, if you’ve got genuine concerns, I think it’s important that you report those concerns to the police ASAP. Do you [want] to meet me at the city police station?
Ms O:Hey, just making sure you’re okay. Let me know if you want to talk or want me to come and meet you. Or, if you want me to talk to your lawyer. It’s a shit situation, but let’s try and make it work.
Father:We’re okay. Don’t believe Ms Penton’s crap. X is fine and happy. I have spoken to the authorities. I’m going to take it further so that X is protected from Ms Penton and her family. Don’t worry. Get Ms Penton to call me. That’s the only way to stop a terrible tangle with the authorities for Ms Penton and her family. Mr Dawkins xx
Ms O:I’m heading into Suburb W by myself to get some groceries. Let me know if you want to meet. Happy to pick up X if you want. Hopefully talk soon.
Father:I have a caseworker and a reference number with the relevant authorities. I’m having Ms Penton charged with assault. She is fine. Tell Ms Penton not to worry. I’ve been through it. It’s absolute hell isn’t it! [41]
[41] Mother’s affidavit filed 7 January 2020 at annexure 58
Nowhere in this exchange does the father explicitly express concern about sexual abuse of the child by the grandfather. His focus seems to be more on the mother than on her father. It is clear that the father was attempting to force the mother speak to him as the only means of resolving the situation. He referred to having the mother charged with assault, presumably referring to the incident in January 2018 which led to the separation. It is also clear that he was wanting punish the mother by forcing her to experience what it was like to have the child removed from her. The exchange between the father and Ms O reinforces my impression that the father’s actions were an attempt to reassert control over the mother and child, rather than a response to genuine protective concerns for the child.
The father gave evidence about this incident in his trial affidavit. On his own evidence his actions on 18 March 2018 were a gross over-reaction to anything said by the child. His evidence is as follows:
On 18 March 2018 X appeared to me to be pleased to see me and greeted me affectionately. We commenced having an enjoyable time together. During the time at E Contact Centre on 18 March 2018 I took X to the toilet. While we are in the toilet X said to me words to the effect of “Poppy takes me to the toilet”. I asked her “is Poppy touching you?” She said “yes”. I asked “is he touching you down there?” I pointed towards the genital area. X said “yes”. She had her hands down on her thighs at the time. We left the toilet and I put X on a change table to put a nappy back on her.[42]
[42] Father’s affidavit filed 20 January 2020 at paragraph 80
The father said his “protective instincts were at play” during this discussion because he believed the maternal grandfather was taking on a significant caring role for X and is a heavy drinker and chain smoker. The father said he did not regard the grandfather as an appropriate carer for X.[43] The father conceded in his trial affidavit that he may have jumped to a conclusion about what X said arising from his general concerns about her grandfather caring for her. He said he can now see that X’s words are capable of an innocent explanation regarding toileting hygiene but he saw it in a more serious light at the time.
[43] Father’s affidavit filed 20 January 2020 at paragraph 81
The father deposed that he immediately told the supervisor at E Contact Centre he was taking the child to police. He said he had seen the E Contact Centre report about the incident and did not recall anyone telling him that he could call the police from E Contact Centre. He said he did recall someone saying “We can call the police”. There is no meaningful difference between those two statements.
Ms T was subpoenaed to give oral evidence and did so on 3 February 2020. She was cross-examined by senior counsel for the father and by the independent children’s lawyer. Nothing in her statement changed. She said she heard the conversation between the child and her father while they were in the toilet but it contained nothing of the sort described by the father. She conceded that it was possible some conversation occurred during the flushing of the toilet which she did not hear. However the father’s sworn evidence about how the conversation occurred was that it occurred while X was sitting on the toilet, with her hands on her thighs, not while the toilet was being flushed.
In my view the father has no credibility in relation to this incident. Even if I accept the conversation occurred as he said it did, it amounts to him asking leading questions of a child who was about to turn three, to which a yes or no answer was sought and, entirely predictably given her age, the child answered yes. This demonstrates a lack of understanding about the likely result of such direct questioning of a young child and a lack of common sense because, as he ultimately acknowledged, if the grandfather was caring for the child, it is highly likely he had wiped her bottom after she had used the toilet.
The father repeatedly asserted that he took the child from E Contact Centre because of concern for her safety. I do not accept that. My initial scepticism was reinforced by the father’s own evidence about what he did after he left E Contact Centre. If he was genuinely concerned for the child’s safety, he should have immediately attended the nearest police station but he did not. His evidence about this is as follows:
From E Contact Centre I drove towards the City V Police station. As I drove I changed my mind and headed for Suburb Y to get a bit more time to think and because it was less obvious than the City V Police station. I then decided to keep driving. I didn’t know what protection would be available on a Sunday and so I decided to drive to City Z. I have a place to stay there that I knew would be comfortable. I did not go home. I had nothing packed to go away that day.
While I was driving to City Z I stopped and made 2 calls to the New South Wales Child Protection Hotline. I informed the person I spoke to on that Hotline that X was in my care and that X was not at risk of any harm in my care. I told that person I had been X’s primary care giver and that I knew what care she required. I gave the person my personal details including my contact details.[44]
[44] Father’s affidavit filed 20 January 2020 at paragraphs 87 and 88
The father said that, while on the Child Protection Hotline, he was told he would be put through to a caseworker but, instead, his call went through a loop several times and he then terminated the call. He made another call to the Hotline and continued to drive to City Z.
Upon arriving in City Z, the father went to a vacant house belonging to the paternal grandmother before driving to the City Z Police Station. On the way there he received a phone call from an officer from the City V Police Station. He told that officer that he and X were in City Z, staying with relatives, and were safe. He advised the officer that he was on his way to the City Z Police Station. He held out the phone for X to speak to the officer but X said she did not want to speak to him. The father said the officer heard X speak. The father said he told the officer that he would return to the City Z Police Station on Monday so the police could carry out a further welfare check on X.
The father then continued on to the City Z Police Station and spoke to an officer. He and X then went to see a friend of the mother, Ms AA, and stayed at her home for a few hours.
The following afternoon, 19 March 2018, the father took X back to the City Z Police Station where she was removed from his care pursuant to an ex-parte recovery order obtained by the mother that morning. In addition to the recovery order, an order was made pursuant to section 68B of the Family Law Act 1975 for the personal protection of the mother and the child. That order contained a number of specific restrictions on the father. An order was also made pursuant to section 68C of the Act authorising a police officer to arrest the father without warrant in the event of a breach of the injunction.
The father’s actions after taking X from E Contact Centre demonstrate a determination on his part to avoid detection for as long as possible. In his own words, he initially chose to go to the Suburb Y Police Station rather than the City V Police Station, which was closer, to give him time to think and because it was “less obvious”. Calling the NSW Child Protection Hotline would also delay things given the child was a resident of the ACT which has its own child protection agency. He did not stay on the Child Protection Hotline long enough to be put through to a caseworker who may have alerted the ACT authorities and, when the ACT police officer rang him, he actively misled that officer by saying he was staying with relatives when in fact he was staying in an empty house. All of these actions by the father were designed to deceive and mislead the authorities and give him time to plan his next move.
In her ex-parte application for a recovery order on 19 March 2020, the mother gave evidence about the father’s text message exchange with Ms O the previous day. On 20 March 2020 when the father realised this, he sent Ms O a text message saying “Don’t ever contact me again”. Eight days later, on 28 March 2020, he sent a further text message saying, “Ms O I want to apologise for my rash text last Sunday week. Right now I need all the friends I can get. Sorry”. Ms O sent a warm and reassuring message back to him.
On 28 March 2018 the father bought a bunch of flowers and delivered them personally to the front doorstep of the mother’s new home. The mother received an email from the florist to advise her that they had been delivered. She made contact with the florist who confirmed that the father had bought the flowers and asked the florist to email the mother to say they had been delivered. This was a clear act of stalking and a breach of the family violence order. It was unsettling and frightening for the mother. She subsequently moved to a different and more secure home.
On 4 April 2018 the father filed an application in a case seeking the appointment of an independent children’s lawyer. He also sought orders for FaceTime communication with the child every day and contact with the child in person at E Contact Centre for two hours each Sunday. Ironically, he sought an order which restrained him from removing the child from E Contact Centre. In his supporting affidavit he gave an account of what had happened at E Contact Centre on the day he removed the child. He also deposed that the text message exchange between himself and Ms O on which the mother relied had not occurred on the day he took the child. He pointed out that the date of the text messages (which were annexed to the mother’s affidavit) was not 18 March 2020. The mother subsequently explained that she got Ms O to send her screenshots of those messages which then appeared to have been sent on a different day. The original text messages were produced and I am satisfied they were sent on the day the father took the child and that the father was wrong when he disputed that.
In his affidavit filed on 4 April 2018, the father said he felt sad that the mother had formed such a strong, adverse view of him and that she could believe that he could harm X or himself. Because he was not permitted to communicate directly with the mother, he wrote a personal letter to her which he attached to his affidavit, saying that he hoped that she would read it and accept that he was genuine.[45] The letter is self-centred, emotive and manipulative. It suggests the situation between the parties had become combative because of the involvement of solicitors; that the mother had not worked hard enough to save the relationship; and that the mother felt competitive and unhappy about the “wonderful relationship” between X and her father. The father took no responsibility for his actions and failed to acknowledge any wrongdoing on his part. He made it clear that he felt the victim of a power-play by the mother:
Just remember, I have lost everything and you have lost nothing. You have all the cards and have rightly or wrongly been given absolute power over everything I hold dear. I just wish that power was used compassionately because I’m struggling to correlate the person I knew with the one who is so inhumanely wielding it.”
[45] Father’s affidavit filed 4 April 2018 at annexure C
The proceedings were next before the Court on 6 April 2018. They were adjourned to 4 May 2018 for mention or interim hearing. An independent children’s lawyer was appointed.
In the meantime, on 5 April 2018, the father was charged under the ACT Crimes Act with unlawfully taking the child with intent to deprive the mother of lawful control of the child. He was also charged with stalking and breach of the family violence order. He was remanded in custody at the BB Centre in Canberra.
On 12 April 2018 the mother’s interim family violence order was changed to a special interim family violence order in light of the charges. The date for hearing of the original family violence order application, 31 May 2018, was vacated and those proceedings adjourned to a date to be advised after the criminal proceedings had been finalised.
On 17 April 2018 the father appeared by video link in the ACT Magistrates Court and was granted bail on certain conditions, including that he live in Town R, NSW, from that day. The father had obtained some handyman work in that area.
On 3 May 2018 the father’s bail was varied to permit him to live in rented premises in Suburb CC. He had obtained work in Canberra doing handyman work. He was permitted to enter the ACT only to attend work, S Counsellors, E Contact Centre and mental health appointments.
Supervised FaceTime communication
On 4 May 2018, orders were made for the father to undertake a forensic mental health assessment by an expert to be agreed between the parties or, in default of agreement, to be nominated by the independent children’s lawyer. Mr C was subsequently engaged for this purpose.
Also on 4 May 2018, interim orders were made by consent for X to have FaceTime communication with her father for 10 minutes each Thursday, with the father to be supervised by E Contact Centre during the call. Each party was at liberty to record the sessions. The father’s application for direct physical contact with the child was dismissed. The proceedings were adjourned to 3 August 2018 for further mention or interim hearing.
The mother then wrote to E Contact Centre to encourage them to take on the supervision of the FaceTime, despite what had happened on 18 March 2018. She emphasised how much X and her father loved and missed each other.[46] E Contact Centre agreed and the father’s FaceTime communication with X commenced on 31 May 2018 and continued until 2 August 2018.
[46] Mother’s email to E Contact Centre 8 May 2018, part of Exhibit F6
The mother said that, because of the father’s previous accusations that she was interfering if she tried to assist the child in the conversations, she simply held the phone for X and left it to the E Contact Centre supervisor to manage the call and determine whether or not it should be terminated. The mother said the father took the opportunity offered by the arrangement to make indirect critical comments to her. For example, he made comments about the room X was in being messy and, when X made a comment to him, he responded “That was a long time ago when I actually had a daughter”.[47]
[47] Mother’s affidavit filed 7 January 2020 at paragraph 126
The mother said the father made frequent comments to X about how much he missed her and told her he was not far away and was waiting to give her a cuddle. She said this was confusing and upsetting to X who did not understand why she could not be with him. The mother said she heard the supervisor regularly whispering guidance to the father and occasionally intervening to redirect the conversation but the father challenged the supervisor by saying things such as “What, I can’t say goodbye to my daughter?” and “I’m talking to my daughter, please don’t interrupt.”
The E Contact Centre notes about these sessions came into evidence. They indicate that, on 21 June 2018, the mother told E Contact Centre staff that the father had not understood what X was telling him that day. She volunteered to provide information to E Contact Centre about X’s experiences each week to be passed onto the father to provide context and assist in the communication. This indicates a genuine effort on the part of the mother to make the interaction between the child and her father as good as it could be. The same cannot be said of the father. The notes indicate that the father was frequently late for the sessions and on one occasion, 21 June 2018, he was 45 minutes late. After every session, bar two, E Contact Centre staff advised the father he needed to stay child-focused during his communication with X and gave him examples of how he had not been that day. Sometimes they went through the recording of the session with the father to help him understand the point. The staff also made suggestions such as the father planning in advance what he would talk to X about and suggested he bring some books to read with her. On every occasion the father made statements to the effect that his predicament was all the mother’s fault and that face-to-face time with X needed to resume.
Child Dispute Conference 17 May 2018
The child dispute conference occurred on 17 May 2018, conducted by Ms B, psychologist and family consultant. At that time, the child had just begun having the 10 minutes of FaceTime communication with her father each week, supervised by E Contact Centre. She had not spent any face-to-face time with her father since the recovery order was executed on 19 March 2018. There was a family violence order in place and the father was awaiting a hearing on charges of stalking, unlawfully taking away the child and contravening the family violence order.
For reasons which are unclear in the memorandum of 6 June 2018, the mother did not attend. During the trial on 6 February 2020 it was suggested to Ms B that the mother had requested to come on a different day to the father but this could not be accommodated. Ms B said could not recall that. In any event, the conference proceeded with only the father being interviewed.
The father told Ms B that he had commenced an anger management course, was attending upon a psychologist for grief counselling, and was due to attend upon Mr C on 2 June 2018 for the mental health assessment as ordered by the Court. He told Ms B that his grief arose from the mother pushing him out of X’s life.[48]
[48] Child dispute conference memorandum dated 6 June 2018 at paragraph 10
Ms B reported the following response from the father when asked about the co-parenting relationship:
The father said that, there is no co-parenting relationship because the mother is “totally in control, and she has become hooked on the power”. The father then explained how remorseful he feels about the distress he has caused the mother. Latterly, he said that, despite his remorse, he would like the mother to know how much she has hurt him, by not allowing him to spend time with X. The father said that he is “totally forgiving” of the mother, and he is not wanting revenge, but rather, would like the mother to stop being afraid of him.[49]
[49] CDC memo at paragraph 13
Ms B recommended the Court exercise caution regarding any increase in time between the child and her father pending the outcome of the forensic mental health assessment and the resolution of the criminal charges due to be heard on 5 June 2018. She suggested that it was reasonable for the father to demonstrate compliance with orders before any changes were made to the child’s arrangements.[50]
[50] Ibid at paragraphs 16 to 17
Mr C’s first report, 20 June 2018
The first report of Mr C, forensic psychologist, is dated 20 June 2018. Mr C was provided with a volume of documents which are set out in the report. He conducted a clinical assessment of the father over a period of two and a half hours. The father also separately completed a number of psychometric tests.
Mr C took a personal history from the father. In relation to the father’s report of his relationship with the mother, Mr C said:
[The father] had a delusion of persecution in relation to the mother, and did not believe that he had acted in a manner which was emotionally or physically threatening throughout the entirety of their relationship, or in recent months either”.[51]
[51] Report by Mr C 20 June 2018 at page 6
The father told Mr C he felt distraught and humiliated by being required to see X at a supervised contact centre after separation. When Mr C asked him why he removed X from E Contact Centre on 18 March 2018, he said he had an instinct to protect her from the possibility that the maternal grandfather had acted inappropriately. He told Mr C “My blood was boiling and her answers reinforced the fear”.[52] He said that, in hindsight, he knew he had prompted X and led her to say what she did.[53]
[52] Ibid at page 11
[53] Ibid
Mr C said there are two interpretations of the father’s actions in removing X from E Contact Centre. The first is that he was genuinely and immediately concerned that X was at risk from her maternal grandfather and, to protect her, took her from the premises. Mr C said this version of events suggests the father is a highly anxious and hypervigilant individual who is unable to self-sooth, reality test, or obtain relief from appropriate professionals.[54] The second interpretation is that the father was embarrassed at having to endure supervision and felt the injustice of the maternal grandfather spending more time with his daughter than him. In this interpretation, the father was calculating rather than reactive and consciously removed the child from E Contact Centre. Mr C said:
This speaks to a more concerning interpretation of the father’s mental health, in that he planned the actions to exert control over a situation knowing full well the emotional impact this would have on the child, the mother and her family, as well as the E Contact Centre staff. The former interpretation is less concerning, identifying an individual who simply requires to learn the ability to self-neutralise catastrophic thoughts”.[55]
[54] Ibid at page 2
[55] Ibid
Mr C said that the psychometric testing did not help to identify whether either interpretation was correct because of impression management engaged in by the father while undertaking the tests which undermined the validity of the results.
Mr C said that, while the father was able to report some behavioural and cognitive symptoms, his insight into his own psychological function was somewhat impaired.[56] He said the father stated “I can’t come to terms with the injustice of the situation. The main thing I can’t grasp is her lack of concern. It’s sadistic. Ms Penton has never had to be accountable”. Mr C said “This shows a ruminative, preoccupied cognitive style, which is also paired with an agitated and restless mood state which… intensified following their separation”.[57]
[56] Report by Mr C 20 June 2018 at page 11
[57] Ibid at page 11
Mr C diagnosed the father as suffering from Adjustment Disorder with Anxiety and Depressed Mood. He said the criteria for such a diagnosis included the development of emotional or behavioural symptoms which developed within three months of the onset of an identifiable stressor, and for which the symptoms or behaviours are clinically significant, that is, disproportionate to the severity or intensity of the stressor.
Mr C said the father’s interpersonal history and presentation suggested a problematic personality pattern, but he was not prepared to diagnose a personality disorder on the basis of a single interview.
In the briefing letter prepared by the independent children’s lawyer, Mr C was asked whether, on the basis of his assessment and the information provided to him, he thought the child might be at a risk of physical or psychological harm if she spent either supervised or unsupervised time with her father. Mr C responded:
Given the recent events, and the father’s continued distress over the situation, it is difficult to be confident that he would not repeat similar behaviours as that of the 18th March 2018 without significant and targeted intervention. As outlined in the mother’s affidavits, even facetime has not been without incident, which again speaks towards the difficulty of the father in placing his own agenda secondary to the needs of the child.[58]
[58] Ibid at pages 2 to 3
In relation to unsupervised time Mr C said:
I do not have confidence that the father is currently functioning to a degree whereby the child would be free of psychological harm if in his care unsupervised. His continued preoccupation with perceived injustice, as well as his belief that he has been persecuted suggest that he continues to struggle with placing his own emotional experiences secondary to the child’s emotional needs.
I have minimal concerns about the child’s physical safety in his care, I do not believe the father would knowingly endanger the child’s physical well-being.[59]
[59] Report by Mr C 20 June 2018 at page 3
In relation to whether the father is able to support the child’s relationship with her mother, Mr C said:
Similarly to the above, the father has again exhibited behaviours that suggest that he is unable to place his own drive to emotionally appeal to the mother secondary to that of the child’s well-being, as documented by the alleged statements made during facetime. His own self-report is that he would engage in conflict as a means of communication of vulnerability, which causes me concern about his ability to support the mother’s role with X before he has sufficiently grieved for the relationship, and come to terms with the current situation.[60]
[60] Ibid at page 3
Mr C said that he believed the father was “in need of sustained and regular psychological treatment”.[61] He said the father appeared to have a number of persecutory beliefs and an inability to manage the resentment and other strong emotions arising from such beliefs. He said the father’s Adjustment Disorder, Anxiety and Depressed Mood could be easily resolved using Cognitive Behavioural Therapy and recommended the father engage in such therapy to manage his symptoms. However, he said “It is the personality traits and patterns relating to his behaviour that are now more likely responsible for the above clearly disordered behaviour, and will take some time to target in therapy.”[62] He said the father’s complex personality patterns would be best addressed by Schema Therapy which examines core beliefs, often formed in childhood, in order to understand his current thoughts, feelings and behaviours. He said it was possible that the weight of the father’s childhood trauma was being carried into his current circumstances and the best therapeutic approach would be one that dealt with those childhood experiences.[63]
[61] Ibid
[62] Ibid at page 4
[63] Report by Mr C 20 June 2018 at page 4
Mr C said it was difficult to make an assessment about the suitability of the father spending time with the child. He recommended that any treating psychologist engaged by the father be provided with a copy of his (Mr C’s) report and various supporting documents to assist the therapist to work with the father in targeting the aspects of the father’s functioning which caused the most concern, namely, his persecutory beliefs towards the mother and his labile emotions.[64]
[64] Ibid
Dr F’s first report, 27 July 2018
The father commenced seeing Dr F, clinical psychologist, on 9 May 2018. Dr F prepared his first report on 27 July 2018 by which time the father had seen him 11 times.
Dr F said the father was referred to him for depression, anxiety and grief, following the breakdown of his relationship with the mother and loss of contact with his daughter. Dr F set out the material provided to him which included a copy of the report by Mr C of 20 June 2018, various documents produced under subpoena and the recordings of the FaceTime sessions between the child and her father, supervised by E Contact Centre.
Dr F outlined the history given to him by the father. He said the father identified difficulties in the relationship with the mother arising from him having strong conservative values and the mother being “too liberal in her values”.[65] He reported the father saying that the mother became jealous of his relationship with their daughter.[66] The father described to Dr F the incident on 25 April 2017 leading to him being charged with assault in much the same way as his evidence before this Court. He said that he found having to see his daughter at E Contact Centre humiliating and degrading to both himself and his daughter.[67]
[65] Report of Dr F 27 July 2018 at page 3
[66] Ibid
[67] Ibid at page 4
Upon separation, the father significantly lost control over the mother. He was very angry and engaged in various behaviour designed to reassert some influence over her. He immediately made a concerted effort to try to find the mother, which was unsettling and frightening for her. He tried to isolate her from her friends by distributing the poster accusing her of abducting the child.[184] When he ran into the mother in February 2018 in the shopping centre he told her, “Everyone knows the truth, I told them, they will know”.[185]
[184] Mother’s affidavit filed 7 January 2020 at paragraph 62
[185] Ibid at paragraph 71
It was put to the mother in cross-examination that the messages sent to her by the father in January 2018 were really focussed on the father being prevented from seeing X. The mother responded that they were partly about X but were also threatening towards her. I agree with her assessment.
The mother was also asked during cross-examination why she did not allow FaceTime communication between X and her father immediately after separation. She responded that she was worried because, prior to separation, the father had been very angry and volatile, including in front of X, and she was concerned about him being even angrier after separation and being unable to restrain himself in X’s presence. Her concerns were validated when she organised FaceTime communication and the father took the opportunity to make inappropriate comments to the mother. For example, on 6 February 2018, during a FaceTime session with X, he said to the mother “I have thought about killing myself and your lawyers are lying to you and this won’t work out how you want it.” This was a blatant attempt to frighten the mother and get her to acquiesce to his demands.
Later on the same day, 6 February 2018, the mother sent a text message to the father in which she said that she supported him having FaceTime with X but his comments to her were inappropriate. The father replied “It won’t happen again. I want to see X in a couple of days as soon as she is back in C. Don’t let me down like you have before. It is better to sort things out like grownups rather than hanging up because you don’t like what you hear. That’s for children…”[186] This message was demanding, condescending and designed to elicit an emotional response from the mother.
[186] Ibid at paragraph 78
On the very day the orders were made, 1 March 2018, the father made the threat to the mother: “You’ll pay for this.” He later sent her the link to Senator Christiansen’s speech which reinforced the implied violent threat made by him during their relationship. Both were designed to frighten the mother and they had that effect.
Things might have settled down with the court-ordered supervised time and communication but the father continued to threaten the mother during FaceTime and then, on 18 March 2018, he abducted X from E Contact Centre, which very significantly escalated the mother’s fears. This was an attempt by the father to wrest control of the child from the mother, dressed up in a flimsy excuse of child protection concerns. His lack of bona fides is demonstrated by the fact that he made no serious complaint to police or child protection agencies about those concerns. It also demonstrated the father’s short-term thinking as the recovery of the child was inevitable. However, an alternative outcome, as suggested by the father’s direct and indirect threats to the mother, including through the speech by Senator Christiansen, was a terrifying prospect for the mother.
To her credit, the mother managed her legitimate fears and suggested that supervised FaceTime calls recommence in early May 2018. This gave the father another chance to focus on his relationship with his daughter. The father again was unable to manage his controlling instincts and E Contact Centre staff again had to intervene when he told X that he was close by or made comments about the state of the mother’s house which he could see in the background. Ultimately, the suspension of the supervised communication with his daughter came about because he refused to comply with the E Contact Centre conditions about not filming staff on 2 August 2018.
Despite many failed attempts at supervised contact, the mother was again persuaded to trust the father after he had engaged in 20 sessions of therapy and because Dr F’s assessment was that the father had begun to get his emotions under control. Consent orders were made for the FaceTime to recommence with direct face-to-face supervised visits to occur from 21 December 2018. The plan was to gradually increase the time if all went well. In early 2019 the father posted a link on Facebook about mothers who do not let children see their fathers and asked one of the mother’s friends to bring it to her attention. No doubt this deflated any optimism felt by the mother about the father’s capacity to better manage his emotions.
In early April 2019 the mother discovered that the father had placed tracking devices in the child’s toy and on her car. Those actions required stealth and preplanning on the part of the father. The father’s previous conviction on 20 December 2018 for stalking and contravening the family violence order had obviously not been sufficiently sobering for him to refrain from again engaging in such behaviour. As the mother noted in her victim impact statement on 8 October 2019, she then had to move home for the second time in 18 months but had no confidence that the father would not again try to locate her. She said she worried that the outcome could be worse on the next occasion, given his escalating behaviour. She said:
It terrifies me that I have been watched and monitored to this degree. I am extremely fearful for my life and that of my child.[187]
[187] Exhibit M3 at page 2
The mother further stated that she worried about what to do when the father was released from prison and how to plan for the future to keep herself and X safe. She said she would love to live in a house with a garden but knows she would not feel safe in that situation and could not think of buying a house because she may need to relocate again if the father finds out where she lives. She said that she had spent holidays in Town R almost every year since she was two years old and that her parents are members of a small lodge there but she no longer feels safe or relaxed having holidays there because she is worried that the father might find her. These are all easily foreseeable consequences of the father’s actions. They are all coercive and controlling and harmful to her and, indirectly, to the child.
Although the father purported to understand the gravity of his behaviour, there was nothing in his trial affidavit which gave me the sense that he did. Toward the end of his affidavit, he stated the following:
I acknowledge that since separation I have done stupid things and made bad decisions. I have never done anything with the intention of harming or distressing Ms Penton or X. I just want to be able to be with my little girl and be her Daddy. We have such lovely times together but we have never been able to be just Daddy and X together from the time of separation. In that time I have always been subject to constraints or supervision because of the need to manage risk.
This is problematic on many levels. The father’s statement that he has “done stupid things and made bad decisions” significantly minimises and forgives his violent, frightening and controlling behaviour. The statement that he and X “have never been able to be just Daddy and X together from the time of separation” is nonsense. He has had multiple opportunities to engage with X alone on FaceTime and in person at E Contact Centre. No-one interfered with that time unless he began to act inappropriately. His statement implies that the supervision caused him to behave badly whereas, in reality, it was necessitated by it. The supervision would have reduced over time had there been no further difficulties. His statement that he did not intend to cause harm or distress to the mother or X but, rather, just wanted to have unconstrained time with his daughter is tantamount to saying he behaved badly when he didn’t get what he wanted which, on the evidence, is true.
The father went on to say:
I wish again to reassure the Court that I will never do anything to harm X or Ms Penton. Likewise, I will not harm myself. My wish is to work with the Court to find a way for me to re-establish with X the loving, caring role as the father that I played until January.[188]
[188] Father’s affidavit filed 20 January 2020 at paragraphs 162 and 163
The problem with this evidence is that the father has repeatedly acknowledged he behaved badly, has asserted he understood the inappropriateness of his behaviour and vowed not to behave that way again, and then did so. He has no credibility left.
The best way forward is for the father to do the difficult and intensive work required for him to address his personal history and the things that have shaped his beliefs and attitudes. This would be through the Schema Therapy, Narrative Therapy, Psychodynamic Therapy or similar as recommended by Mr C. It would not be a quick fix but, as Mr C said, there are good prospects of success if the father genuinely engages in such therapy.
Senior counsel for the father argued that, despite the evidence of the mother that she experiences fear and anxiety as a consequence of the father’s conduct, and despite the evidence of Dr D that stalking, by its very nature, causes psychological injury regardless of how robust the target of the stalking is, there is no evidence to suggest the mother requires regular professional support to manage any fear or anxiety and, importantly, there is no evidence that any such fear or anxiety has had a detrimental effect on her parenting capacity or on the child. She submitted that, in order to have an impact on the Court’s determination, there must be a direct link between the psychological injury caused by the stalking and some detriment to X.[189] I reject that submission. Although the best interests of the child are the paramount consideration, they are not the only consideration. There is no reason why a parent should have to accept ongoing family violence in order to promote a relationship between the child and the other parent, even if they have such highly developed parenting skills that they are able to shield the child from all or most of the adverse impacts of that behaviour. In any event, I am satisfied that the risks to the psychological wellbeing of the child either directly from the father’s inappropriate comments about her mother or through the effect of “emotional contagion” of her mother’s anxiety are real risks to which she has already been exposed. The legislation is framed in terms of risks to the child; it is not necessary to wait for actual harm to eventuate.
[189] Transcript 21 February 2020 at pages 454 to 455
The next matter under section 60CC(3) that the Court must consider relates to any family violence order in force. A two year family violence order was made by consent and without admissions in the ACT Magistrates Court on 11 October 2019.[190] The order prohibits the father from being on certain premises including the three hospitals at which the mother works, unless he is receiving emergency medical treatment or has been admitted to the hospital. He is restrained from coming within 100 meters of the mother and child with certain exceptions, including if he does so in accordance with a family law order. The family violence order also restrains the father from locating or attempting to locate the mother or the child. This order will expire in October 2021. I intend to make an order in similar terms as sought by the mother pursuant to section 68B of the Family Law Act for the personal protection of her and the child.
[190] Exhibit M17
The next matter to be considered under section 60CC(3) of the Act is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. It is hard to know which orders would least likely lead to further proceedings. In my view, it would be of benefit to both the mother and the child for the mother to know there can be no further proceedings for a specified period and then only if the father had engaged in extensive Schema Therapy, Narrative Therapy or Psychodynamic Therapy as recommended by Mr C and with a therapist who was aware of the history. During submissions, I raised the prospect of making such orders. Senior counsel for the mother resisted the proposal and urged the Court instead to make simple orders for no time or communication between the child and her father. Ultimately, I am persuaded that this is the preferable course. I am also mindful of comments of the Full Court of the Family Court of Australia urging caution in making orders which impose conditions on a party’s right to institute fresh parenting proceedings.[191]
[191] See Betros & Betros [2017] FamCAFC 90 and Oberlin & Infeld [2021] FamCAFC 66
Consequently, in order to commence further parenting proceedings in the future, in accordance with the principles in Rice and Asplund (1979) FLC 90-725, the father would have to establish that there had been a change of circumstances of such significance that further litigation concerning the child was warranted. Given the history in which the father has repeatedly asserted he has seen the error of his ways and can now be trusted, only to indulge again in behaviour antithetical to the child’s welfare, this will not be an easy task for him. Unless the father earnestly engages in the specifically recommended therapy, it is hard to imagine how he could be successful. However, I accept the submission by senior counsel for the mother that, if the father did adopt this course, he may not even need to commence further proceedings because the mother may be prepared to give him another chance.
A particular problem for the father to overcome is that, in his second report in November 2018, Dr F expressed a level of confidence in the father which was compelling enough to persuade both the mother and the Court that the father should be given such a chance yet, five months later, he planted the tracking devices. This suggests either that the father was able to fool Dr F into believing he had benefited from the therapy when he had not, or that the benefit he did obtain was short-lived. Any therapist assisting the father in the future should be aware of this history. To facilitate this, I will give the father leave to provide to any therapist he engages a copy of the orders and reasons for decision and a copy of the expert reports relied upon in these proceedings. This will give the father the best opportunity for real change and the prospect of a relationship with his daughter in the future.
The last matter required to be taken into account under section 60CC(3) is any other fact or circumstance that the Court considers relevant. Ms B said the Court could consider “recognition” visits with her father twice each year in a supervised setting to help her to maintain a sense of her father until such time as he has sufficiently addressed his issues to enable more extensive time or until the child reaches an age where she can be self-protective. It is difficult for me to assess whether such visits will be helpful to the child or not. The mother said the child sometimes found communication with or from her father confusing because she did not understand why she could not be with him. She said she would obtain professional advice about the issue if necessary. I have no information about whether, in the nearly 17 months since the trial ended, there has been any communication at all between the child and her father. If there has not, and the child has become accustomed to that, an order to now begin recognition visits might not be helpful. If she has had some communication with her father, the mother will know about that and whether it has been of benefit to X. The mother has good parenting instincts and a demonstrated capacity to help X maintain a positive image of her father. In my view she can and should be trusted to decide whether or not the child will benefit from limited recognition visits or from the exchange of letters and cards with her father. In the circumstances of this case, I am content to leave this issue to the mother in the exercise of her parental responsibility.
Conclusion
I am satisfied on all of the evidence that it is in the best interests of the child for orders to be made broadly in line with those sought by the mother and supported by the independent children’s lawyer and Ms B, that is, for X to live with her mother and have no time or communication with her father.
It is a very serious matter to end or significantly curtail the relationship between a child and a parent as this, itself, exposes the child to a range of psychological and emotional risks, as discussed by Ms B. The usual course in matters where there is problematic behaviour by a parent is that the parent is encouraged to get help to moderate that behaviour and, if they do, the relationship with the child gradually normalises. In this case, the father has had ample time, opportunity and encouragement to do this. When the proceedings began in 2018, I expected that supervised time would be required for only a short period after which X would begin to spend unsupervised time with her father, increasing in duration over time. I told the father directly and through his legal representatives of this expectation. I am satisfied the mother would have been happy for that to occur. However, over the course of the proceedings, the father has repeatedly demonstrated that, despite what he says, he profoundly lacks insight and self-control, perceives himself to be the victim of the mother’s behaviour and the family law system and that he is not capable of settling down and focusing on having a normal, healthy and functional relationship with his daughter. Consequently, and only because of the father’s choices, X will be deprived of her right to a meaningful relationship with him.
I am satisfied that the mother can be trusted to meet all of the child’s needs and that X will grow up in a healthy and nurturing environment with her.
If the father engages in the hard work necessary to change his behaviour and attitude, there is some prospect of X having a relationship with him in the future. If he does not, that will not occur until X is an adult or at least old enough to make her own decision about whether to reconnect with him.
I accept the father genuinely loves his daughter and does not really understand why he is being denied a relationship with her. I also accept the evidence of Mr C and Dr D that the complete removal of the prospect of a relationship with his daughter is likely to strongly reinforce the father’s feelings of resentment and hostility and thereby increase the risk to the mother. However, it would not be appropriate to make orders to appease the father or to encourage him to behave better. I hope that the prospect of being able to have a relationship with his daughter in the future will be sufficient motivation for him to fully engage in the recommended therapy.
Parental responsibility
When a Court makes a parenting order it is required to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[192] Such an order would require the parties to consult each other and make a genuine effort to reach a joint decision about any major long term issue concerning the child.[193] The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. I am well satisfied the father has engaged in family violence and the presumption, therefore, does not apply.
[192] Section 61DA of the Family Law Act 1975
[193] Section 65DAC
To his credit, shortly before the trial, the father conceded that the mother would make good decisions for X and said he would accept an order for her to have sole parental responsibility.[194] I agree that this is appropriate in the circumstances of this case in which the parties have not communicated directly since shortly after separation and will, in accordance with the parenting orders I am making today, have no direct communication in relation to the child. An order for sole parental responsibility also means the mother can travel overseas, change the child’s residence and make other significant decisions concerning the child without consulting the father. The freedom to get on with her life without having to consult the father about parenting issues will, in my view, ultimately benefit the child.
[194] Transcript 5 February 2020 at pages 307 to 308
I certify that the preceding three hundred and forty-eight (348) paragraphs are a true copy of the reasons for judgment of Judge Hughes
Associate:
Date: 2 July 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Remedies
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Procedural Fairness
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