Poblano and Millard

FAMILY COURT OF AUSTRALIA

POBLANO & MILLARD

[2007] FamCA 424

FAMILY LAW – CHILDREN – Father’s application to spend time with the child - where parties seven year old child has always resided with the mother - Where child is three months old when parties finally separate – Post separation father has little contact with child and none in over three years preceding the hearing – Family violence – Risk assessment - Where mother says she is a victim of prolonged physical, emotional and sexual abuse during the parties relationship – Where after separation father assaults the mother and her then partner – Where mother goes into hiding with the child – Father locates mother and thereafter harasses her – Where mother has long history of psychological and emotional disturbance – Father diagnosed with anti-social personality disorder – Where father unsuitable role model - Mother has no emotional ability to cope with child spending time with the father – Child has no relationship with the father and does not wish to establish relationship with him – Application dismissed

Family Law Act 1975 (Cth), s 60B, s 60CA, s 60CC, s 60CG, ss 61B, & (C)(1),
s 61DA(2), s 61DB, s 64A, s 65AA, s 65DAA, ss 60J(1), (2), & (3), s 60I(9), s 60K
Family Law Amendment (Shared Parental Responsibility) Act 2006 s 4,
Family Law Amendment (Shared Parental Responsibility) Bill 2005
Evidence Act 1994 (Cth) s 140, s 56

Goode and Goode (2006) FamCA 135
Jaeger (1994) FLC 92-492
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580
Blanch v Blanch and Crawford (1999) FLC 837
M v M (1998) 166 CLR 69
A v A (1998) FLC 92-800

APPLICANT:

MR POBLANO

RESPONDENT:	MS MILLARD
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

NCF

2493

2001

DATE DELIVERED:

10 May 2007

PLACE DELIVERED:

NEWCASTLE

JUDGMENT OF:

JUSTICE RYAN

HEARING DATES:

27, 28, 29, 30 November 2006

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Ms D Clarke

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER

Mr Graham

SOLICITOR FOR INDEPENDENT

CHILDREN’S LAWYER

Foat & Burgess

Orders

That the Father’s Amended Application filed 1 September 2006 is dismissed.
That the Father is restrained from communicating with or approaching the child, a daughter, born in May 1999. This is an order for the child’s personal protection.
That the Respondent Mother has sole parental responsibility for the child.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Registry Manager may return any documents produced on Subpoena.
That unless an appeal is lodged all exhibits shall be returned to their owner.
That all outstanding applications are dismissed.

FAMILY COURT OF AUSTRALIA
AT NEWCASTLE

FILE NUMBER: NCF2493 of 2001

MR POBLANO

Applicant

And

MS MILLARD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the father to spend time with his 7 year old daughter, who he last saw in July 2003. She was 3 months old when the parties separated and between separation and July 2003, saw her father on only a handful of occasions. The child cannot remember her father and has no relationship with him.
The mother opposes the father’s application. The mother challenges the father’s evidence concerning his ability to care for the child whilst she is with him. In their years together, the mother says she suffered relentless physical, emotional and sexual abuse. Since separation, the mother claims the father stalked and harassed her. When Apprehended Violence orders and other sanctions failed to ensure her safety, the mother disappeared with the child. Only by living anonymously in an isolated place does the mother feel safe. If the father’s application succeeds, the mother says she, the child and the child’s elder half brother B, will be devastated. Such is the mother’s fear of the father, she says her parenting skills will be seriously compromised and she and her children will be terrified.
As a consequence of the father’s treatment of her, the mother claims she suffers depression, anxiety and a form of post-traumatic stress disorder. She emphasised that during cohabitation, she attempted to take her own life and was seriously depressed. Because of the father’s violent and degrading treatment of her, the mother says she used cannabis during their relationship. Simply put, the mother claims the father is the reason for her emotional difficulties, drug use, depression and anxiety. Cross-examination revealed a different picture. For example, the mother failed to disclose her first suicide attempt at aged 18 years, more than a decade before she met the father. Nor did she disclose years of cannabis use prior to meeting him. In summary the mother’s medical records reveal significant psychological and emotional disturbance for many years prior to her coming into contact with him.
Because the case raised complex issues, the Court appointed an Independent Children’s Lawyer to represent the child. On the Independent Children’s Lawyer’s application, Ms S was appointed Court Expert to investigate and report upon the child’s circumstances. Ms S is a senior clinical psychologist. She holds a Master of Psychology (Clinical) from the University and is a member of the Clinical Board of the Australian Psychological Society. Ms S is attached to the Child Protection Team at a regional Children’s Hospital and conducts a part-time private practice. She has thirty years experience in child and family psychology, as well as holding numerous clinical and advisory appointments. Ms S is well qualified, both academically and through experience for the task she was asked to complete.
Concerning the father, Ms S says it is likely he has an anti-social personality disorder in terms of:
·his aggression and violence;
·his lack of empathy for others;
·his lack of remorse or guilt for wrong doing;
·his violation of social rules (that is criminality) and very anti-authoritarian attitudes; and
·his lack of responsibility, particularly in his parenting role.
Ms S described the father as being irresponsible with major parenting difficulties and “a very poor standard of morality – a significant issue to consider in terms of parenting capacity”. In Ms S’s opinion there is a significant risk the father would undermine and denigrate the mother to the child.
Ms S says the mother suffers from a borderline personalty disorder. This disorder develops in childhood and, in the mother’s case, is not caused by her experiences during her relationship with the father. Whilst the father’s treatment of the mother will have exacerbated symptoms of her disorder, it is not causative. The mother’s borderline personality disorder is established in her:
·severe splitting in relationships;
·marked mood lability, her depression is likely associated;
·recurring suicidal ideation;
·marked feelings of emptiness;
·identity disturbance; and
·major use of dissociation to deal with conflict.
In Ms S’s opinion the mother “has an intense need to keep portraying as the victim”. It was apparent to Ms S, as indeed it was during the hearing, that the mother “overstated” her case. There were numerous contradictions and inconsistencies in her accounts and in some instances it was difficult to find even a kernel of truth to her story. Even so, I agree with Ms S’s opinion that the mother is a victim of the father’s violence and intimidation and that she has virtually no emotional ability to cope with the child spending time with her father.
Ms S says the child has no attachment, positive or negative to her father. She has virtually no memory of him and, when asked, denied the applicant is her father. Throughout her interview the child revealed information critical of her father which the child could not know from her own life experiences. The child left Ms S in no doubt that the mother has inculcated the child with her “black” views of the father. The mother has exposed the child to her fears to such an extent that she is fearful and pre-occupied with being abducted.
Against this background, Ms S says there should be no contact in any form by the father with the child. Concerning the ultimate issue Ms S said:
“While [the child] may miss out on some developmental issues (identity with biological father) if contact is not resumed, her other developmental needs for emotional security, feelings of well being, attachment security with her primary figure (mother/brother), far outweigh this.”
In closing addresses, the Independent Children’s Lawyer submitted that Ms S’s opinions withstood cross-examination and should be adopted. With these submissions I agree.

Background facts

The father was born in March 1967 and is thus 40 years old.
The mother was born in March 1971 and is thus 36 years old.
The father’s eldest child, G, was born in April 1990.
The mother’s eldest child, B, was born in May 1990.
The father’s second son T was born in August 1995.
In 1996 the mother attempted suicide.[1]
[1] Exhibit “D”
The parties met in October 1996 and almost immediately commenced their relationship.
By mid 1997 the parties were living together in the mother’s rented premises at E.
The parties separated in October 1997. At about the same time a twelve months Apprehended Violence Order (AVO) issued against the father for the mother’s protection. This is the first of four AVO’s issued for the mother’s protection from the father.
In December 1997 the parties resumed cohabitation. The AVO was varied so that the parties could cohabit without contravening the AVO.
In January 1998 the father called an ambulance following the mother overdosing on drugs. She was admitted to hospital and told doctors that she felt depressed and confused by her relationship with the father. These and subsequent hospital notes corroborate the father’s evidence concerning the mother’s low tolerance for frustration and inability to control her anger without drugs. In particular that throughout their relationship the mother was verbally aggressive to the father and used belittling and offensive language towards him.
In May 1998 the parties married.
During 1998 the father commenced a Life Care “Living without abusing partners program”. He attended 17 out of 20 sessions at the end of which the father was advised he needed counselling from a specialist domestic violence therapist. The father did not act upon this advice.
On 2 August 1998 the parties argued. This coincided with a period when the mother was using drugs and, as she was on this occasion, was frequently so drug affected she was unable to get out of bed. After the father pulled the covers off the bed and demanded that she get up, he started yelling at her and said he wanted her out of the house. Afraid the incident might escalate into physical violence the mother locked herself in the bathroom and asked B to run to a neighbour’s house and telephone the Police. As soon as the father discovered this he left the house. Upon their arrival the mother made a statement to the Police. At her request Police made a successful application to reinstate the provision restraining the father from approaching or remaining in any residence the mother occupied.
Not long afterwards the parties resumed cohabitation, in so doing both parties flouted the criminal law.
Following an altercation with the father which she initiated, in September 1998 the mother attempted to kill herself. The father telephoned police who found her lying on railway tracks. His telephone call probably saved the mother’s life. The police took her to Hospital. There she described feeling depressed for weeks and wanting to kill herself. The mother was pregnant with the daughter and reluctant to take prescribed medication. Because she was pregnant the mother had greatly reduced her cannabis use. The mother was discharged with arrangements made for her to attend the local health service for psychiatric follow up. The mother saw a clinical psychologist on and off over the following sixteen months.
In late October 1998 the mother was hospitalised for two weeks suffering dehydration. Her dehydration was a symptom of her erroneously believing she was fat and limiting her food and fluid intake. Later in her pregnancy she was admitted to hospital for the same reason. Whilst the mother was pregnant with the daughter each party accuses the other of referring to the baby as “a dumb fucking wog baby”. Irrespective of who first coined this appalling phrase it appears each used it when angry.
Upon the mother’s discharge from hospital she returned home to the father.
In November 1998 the father assaulted the mother. This incident is dealt with later in these reasons. Following this incident the parties briefly separated.
The parties separated again in January 1999. Upon separation the mother moved in with her grandmother at M.
On 10 February 1999 the mother told her treating psychiatrist that she wanted to reconcile with the father but that he was refusing. This is inconsistent with paragraphs 30 and 31 of the mothers affidavit where she describes herself succumbing to the father’s relentless pestering that she returns to him.
In March 1999 the parties resumed cohabitation.
During March 1999 the father agrees that he used the mother’s and B’s tooth brushes on his anus and left faeces on them. When they went to clean their teeth the mother noticed the state of the toothbrushes at which the father laughed and said “I wiped my arse with them.”
In May 1999 the parties’ only child, a daughter was born.
The mother alleges that in June 1999 the father deliberately burned the child with a cigarette. This is an allegation to which I shall return.
In August 1999 in response to a “child at risk notification” concerning the child the Department of Community Services (DOCS) referred the parties to Mr R for counselling. Neither party attended and not long afterwards they separated. Following separation the father moved out of the parties’ E property where the mother and children remained until November 2000. They have not resumed cohabitation.
DOCS then referred the family to PANOC, a child protection and family services agency.
On 17 September 1999, DOCS and PANOC convened a protection planning meeting. The mother attended the meeting but the father did not. He had been in contact with DOCS regarding his concerns about the mother’s mental health and drug use. Somewhat surprisingly they were disinterested in his information. Irrespective of their concerns about the father a sound child protection response required investigation of his allegations. Particularly in circumstances where upon each of hospital admissions the mother’s treating doctors had contacted DOCS expressing concerns about the children. The minutes of this meeting show that the workers accepted the mother’s history concerning her depression and mental health difficulties as being of relatively recent origin and reactive to her relationship difficulties with the father. As a result of the exchange of information at the meeting DOCS decided that now the parties were separated the children were safe with the mother. PANOC agreed to undertake weekly home visits which included regular counselling for the mother and B. Shortly afterwards, on 1 October 1999[2], a Child Protection Report issued. This report focuses upon the father’s violence and abuse and does not consider the mother’s drug use or mental health problems.
[2] Exhibit “E”
For the following twelve months B and the mother received regular counselling, the focus of which was domestic violence. B had 20 individual sessions and the mother had 22. In addition the mother and B had three joint sessions. These had positive outcomes and, as far as the mother is concerned gave her a sound understanding of the impact of domestic violence and her need to protect the children (and herself).
Between separation and February 2001 the father saw the daughter on about five occasions. This commenced towards the end of 2000 after an AVO for the mother’s protection expired. It was the father’s belief that while there was an operative AVO he was unable to see the daughter. At that time he was unaware that he could apply to a court for orders to see her. The parties agreed the father would visit the daughter at the mother’s home each alternate Saturday for between two and three hours. This enabled her to watch over the father’s care of the child. Once or twice the father took the daughter out.
Between September 2000 and October 2001 the mother received numerous text messages from the father. Her phone storage space enabled her to retain 10 messages. Set out below are examples of the types of messages the father sent the mother. I accept her evidence that she received many more than those identified and that the messages was generally abusive.
In October 2000 the mother commenced a relationship with Mr D. Mr D is a long standing friend of the mother’s and also a heavy cannabis user. In November 2000 they moved into a rented property at W.
On 24 December 2000 the father sent the mother an SMS message which said: “U fuckin hoar tell dad when u suck my dick and I slapped leather u in the head u are a fuckin hoar and I’m guna bash you.” The reference to dad is a reference to Mr D.
On 24 February 2001 the father assaulted the mother and Mr D in the child’s presence. The mother and Mr D both required treatment at hospital, the mother for facial injuries and Mr D for rib injuries. The father was charged and convicted of assaulting them. Following this incident the mother stopped his contact with the child. This incident is dealt with later in these reasons.
In April 2001 at G Local Court the parties agreed upon orders the effect of which is that the child would continue living with her mother and have agreed contact with her father. Contact occurred on a couple of occasions before the mother moved away.
On 16 July 2001 the father sent the mother a message: “O know [P] the king of all king my solicitor rang me Friday and said I’m in the clear and you’re up for attempted murder o o know I’d leve the state to no shit king.” This SMS was intended for Mr D. After the father assaulted Mr D in February 2001 Mr D left the State for a time. He did not attend the hearing of assault charges laid against the father following the assault. Later in the morning, on 16 July 2001, the father sent the mother an SMS message which said: “If you had an idea how selfish you are living in the past your wright your gana die early” and “If you want to buy with your petty cash you be lieing upside down on a lounge chare blowing yourself and by the way she will always be my daughter”. This message was intended for Mr D.
On 7 August 2001 the father sent the mother an SMS message which said: “Come come you bitch and paly with me in court and say all the shit you want ha ha.” The same day, in response to an SMS message he received from Mr D, the father sent a return message on the mother’s telephone: “Where’s you divorse papers please please let me sign them thank you king shit.”
In response to an SMS message from the mother, on 11 August 2001 the father said: “Send them to your mothers and I will leave you and the kid alone that way we don’t have to met up by the way I live in [N].”
On 4 October 2001 the father sent the mother an SMS message: “Rub a muck whole you little fark hole.”

On 9 November 2001, the April 2001 contact orders were suspended and the proceedings transferred to the Federal Magistrates Court.
On 29 January 2002 the mother obtained a twelve months AVO against the father.
On 4 March 2002, following an undefended hearing, the Federal Magistrate’s Court ordered that the child lives with the mother and has contact with the father as the parties agree. The father did not know where the mother was living and did not see the child during 2002.
The mother and Mr D separated in March 2003 whereupon the mother and children moved to R.
On 25 June 2003 the father sent the mother an SMS message which said “Why was I your pet wog and you spook to me like shit fuck you. You don’t know me bitch.”
In July 2003 the father discovered where the mother was living. Although he knew that the mother was afraid of him, he arrived unannounced and entered the house. He was carrying a can of bourbon and was affected by alcohol. When the mother said she was going to telephone the police he grabbed the telephone from her and pulled it from its socket. Given the lengths the mother had gone to so as to protect herself from the father, I do not believe that the father’s simple request would alone have dissuaded her against calling the police. The mother’s version of events is consistent with a genuine fear of the father. The child was present and the father said to her “Hello, do you know who I am? I am your Dad.” This was the first time he saw the child in about two years. Unsure how to handle the situation the mother allowed the father to remain. He then took the child outside and sat her on the mother’s horse. Having spotted the B the father moved away from the child’s side. The mother grabbed the child and called the father “an idiot”. B had started running towards the front gate and the father chased after him. The child starting running after B who ran along the road and into the bush. The mother was calling out to the father to stop the child. By this stage the child was running adjacent to the road, screaming and crying. The mother caught up with her and took her inside. B remained hidden until the father left.
On three other occasions during July 2003 the father arrived unannounced at the mother’s home. On the first of these occasions when the mother tried to get to her telephone the father grabbed her wrist and pushed her into a lounge. Although she asked him to leave the father stayed for about two hours. Whilst he was at the house the father followed the mother from room to room. He said to her: “I have to convince you that you love me, and if you tried to be with anyone else I would kill all of you.” Whilst at the home the father saw the child. As soon as the father left the house the mother telephoned the police.
On the next occasion the father arrived unannounced carrying a six pack of bourbon. Within a few minutes of his arrival he took the child to the backyard and put her on a trampoline. From inside the house the mother could hear the child crying. Although she had an opportunity to telephone police the mother did not. In response to the child’s crying the mother went outside and saw the father playing roughly with the child. The mother remonstrated with him at which he lifted the child’s shirt and bit her on the stomach. His bite was sufficiently hard that his teeth marks were quickly visible and remained so for two to three days.
On the last weekend the mother says she awoke at about 2.00 am to find the father lying on top of her thrusting against her. The child was in the bed and awoke. The mother says she struggled to get the father off her and he then left. The father says the mother had agreed to reconcile and he had moved into her home. On his evidence the parties went to bed and the child was between them. Although he was uncomfortable by the child’s presence he welcomed the mother’s advances and says they had consensual sexual intercourse and that the mother’s version is simply fabricated. Given the frequency with which the mother telephoned police, if this incident occurred in the manner she alleges I would have expected her to telephone the police. Her failure to do so is troubling and suggests aspects of her evidence on this occasion are exaggerated. However, there is no doubt that something untoward occurred on this night after which the father left the mother’s home and she refused his requests to see the child. Given his subsequent pleading SMS messages seeking reconciliation it is likely that whatever occurred is closer to the mother’s version than the father’s. The father has not seen the child since.
On 12 July 2003 the father sent an SMS telephone message to the mother which said: “I’m sorry but I can’t stand not to be with you. I am leaving in the morning to come up.”
On 17 July 2003 the father sent the mother an SMS message which said: “I always said to you when we were married truly madly deeply and that will never stop because I love you […] with heart body and soul together forever.”
On 22 July 2003 the father sent the mother an SMS message which said: “If I was one to tell you for the last three years how many times I turned my head only to misplace the reading in my head and not to know it was you or the kids.”
On 24 July 2003 the father sent the mother an SMS message which said: “I don’t care that you’re not my wife now but in my heart you’ll always be my beloved wife.”
On 28 July 2003 the father sent the mother an SMS message which said: “What would you say if I pay you to have sex with me. I’m getting pretty frustrated. Can you tell me in a message back please when you get a chance. You know what I’d like to do to you is drink your hot piss cum juices and lick you hot arse until it bleed onto my taste buds that slid down my enbowled throat darlen.”
On 29 July 2003 the father sent the mother an SMS message which said: “Where moving into a house together on a property where the animals can wanda and kids and play and work to far darling.”
On 1 August 2003 the father parked his car outside the mother’s home. He left when a neighbour told him the mother had called police. Later that evening the father returned and entered the mother’s house. He told her he wanted to discuss the situation with the child, but denies threatening to kill her. The father left when the mother said she was calling the police. Concerning the mother’s allegation the father said: “It’s just an obsession she’s got that she’s some sort of desirable thing”.
On 2 August 2003 when the mother arrived home after collecting the children from school she saw the father sitting in his car outside her home and contacted the Police.
On 9 August 2003 the father sent the mother an SMS message which said: “I am so stressed and can’t do nothing needs 2 toals to y.”
On 9 August 2003 the father sent the mother an SMS message which said: “I still lust to feel you body against mine to feel you nipples rise in the intencity of my tongue cupping your breast as it glids down you lush body to the treshers that I would never let end for you unreal orgasm.”
Not long afterwards, the same day the father sent the mother another SMS message. In this message he said: “Do you remember the intencity in the bathroom as you put your cute little bum on the sink and lid I’d go to work on your lush lush juicy pussy as you spray your tonguey love juice down my smiling mouth”. Again, on 9 August 2003 the father sent the mother another SMS message which said: “If you give to me what I really need to give to you I’ll do anything please.”
About five hours later he sent another message which said: “Don’t cry loser”. From this message, the mother believed the father was able to see her and she started to cry. The mother showed B the message who also thought it meant that the father was watching them.
On 11 August 2003 the father sent the mother an SMS message which said: “I love you”.
On 21 August 2003 the father sent the mother an SMS message informing her that he had a new mobile telephone number. Two days later, using his new mobile number, the father sent the mother an SMS message which said: “[…] I’ve never told you but I like men even before we were married I’d been with a few men not to say don’t like women don’t.”
On 25 August 2003 the father sent the mother an SMS message which said: “I don’t want any more kids but someone I think is quite beautiful.”
Having received an SMS message from Mr D, on 30 August 2003 the father sent the mother a message which said: “If you haven’t got anything better to do than complain to DOCS loser get a job you can’t because you don’t know nothing except lay down your law and people feel sorry for you loser.”
The father arrived at the mother’s home, again at night, on 1 September 2003. He located himself on a hilltop overlooking her house. The parties agree that three men came to the mother’s house. They arrived at the mother’s invitation because B had seen the father on the hill. The mother’s neighbours approached the father in the woods and he says two of them threatened him. The father says: “I let the boys know that I was on the hill…. but I said I wasn’t in the mood for a fight from three try hards”. He then left. The same day the father sent the mother an SMS message which said: “I really do miss you please hold on.”
In September 2003 the father filed a contact application in the Federal Magistrate’s Court at P.
On 17 September 2003 a further 12 months AVO issued against the father for the mother’s protection.
In breach of an AVO the father contacted the mother by SMS message on 9 September 2003.
In breach of the AVO on 11 October 2003 the father telephoned the mother’s home in order to speak to the child. The child answered the telephone and told the father she did not want to go to his house. The mother was listening and when the child started to cry the mother took the telephone from her and told the father he should not call the house. When questioned about this, the father said: “I have to do, what I have to do. I did the crime and did the time”.
On 15 October 2003, in breach of the AVO, the father telephoned the mother to remind her she needed to attend court.
At Court the following week the father followed the mother to a counselling window, calling out to her that she was stupid. The next day, in breach of the AVO, the father telephoned the mother at home. He told her he thought she “looked gorgeous” at court and explained he wanted to see if they could agree about his desire to spend time with the child.
In October - December 2003 the mother says there were a series of incidents at her home which she believes involve the father stalking her at night. On 14 October 2003 her horses were let out. On another night, her power was switched off at the power box. On 24 November 2003 the mother heard someone banging outside her house, first near the kitchen and laundry then running along her veranda. The mother and children were petrified and the mother telephoned the police. By the time they arrived the noises stopped.
On 28 November 2003 the mother heard noises outside and stood in the laundry with the child while a friend searched the yard. The mother believes she heard someone running through the bush.
On 29 November 2003 and while she was out someone entered the mother’s house and rifled through her possessions. Later that night she heard someone near her washing line and on inspection saw wheel marks from her washing trolley. The mother telephoned the police. Although does not enable a finding that the father is responsible for each of these night time incidents the mother’s belief he is, is reasonable.
On 4 February 2004 the proceedings were transferred from the Federal Magistrates Court to the Family Court of Australia at Newcastle.
On 5 May 2004 the Family Court ordered an Independent Children’s Lawyer.
In mid 2004 the mother and children moved to an unidentified regional centre.
In June 2004 in response to the father’s interim contact application, the Court ordered: “That unless the parties and the Child Representative agree in writing there is to be no contact between the father and the child [a daughter] born [in] May 1999 until further order”. The parties were unable to agree upon a resumption of the father’s contact.
In December 2005 Ms S was appointed Court Expert to investigate and report upon the child’s circumstances.
On 10 March 2006 Ms S interviewed the parties and the child.

Governing law in parenting applications

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement necessary:
(i)       to explore the full extent of that culture, consistent   with the child’s age and developmental level and the                child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FamCA 136. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared.

Family violence and risk assessment

Family violence is a significant issue in these proceedings. With the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 it arguably has even greater prominence than beforehand. The definition of family violence is widened and is now defined as being “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.” (See s 4). In a note to the definition it is explained that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.” Thus the notion of fear has both an objective and subjective element.
In the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (8 December 2005) Parliament explains the significance and effect of its intention concerning the s 60B(1)(b) object and in doing so highlights its prominence. It states:
35.The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term ‘subjected to’ has been retained as well as ‘exposed to’ in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person.

At page 13 the Explanatory Memorandum says:

48.The amendment to section 60CC creates two tiers of considerations that the court must take account of in determining what is in the best interests of a child. The primary considerations are contained in the new subsection 60CC(2). They include the benefit to the child of having a meaningful relationship with both parents and the protection of the child from physical and psychological harm. The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents. The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B (inserted by item 8).
49. For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child’s views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.”

In addition to the objects (s 60B(1)(b) and inclusion of family violence as a primary consideration (s 60CC(2)(b), s 60CG requires the Court to “ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence.” The Court must do so to the extent possible consistent with the child’s best interests remaining the paramount consideration. As discussed earlier s 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence.
By s 60J people are not required to attend family dispute resolution where there has been child abuse or family violence by one of the parties to the proceedings but shall be provided with information about the services and options that are available to them. This will ensure that people are made aware of services and options (including alternatives to court action) that are available in circumstances of abuse or violence. Section 60J(2) provides an exception to the requirement in s 60J(1) where there is a risk of child abuse or family violence if the matter is delayed getting to court. While the intention of s 60J(1) is to ensure that victims of violence have information on the services available to them, the exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible
Section 60K places an obligation on the Court to take prompt action in relation to allegations of child abuse or family violence.
Section 60I(9)(b) provides that attendance at family dispute resolution is not required where the Court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.
In their totality these changes are consistent with principles which emerged, but which were not universally accepted, from a series of pre Shared Parental Responsibility Act 2006 cases. Particularly Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580. In Patsalou, as the trial judge, Moore J discussed the significance of family violence and in doing so said the following:
“Any suggestion that such behaviour is only relevant to the welfare of children if it ‘took place in the presence of the children’ or they were ‘made aware of it’ cannot be supported. In my opinion, the denigration of one parent by the other and the perpetration of violence by that parent against the other is of importance when assessing where the interests of children lie and what future arrangements might best advance their welfare.
Denigration and/or assault put the target of this behaviour under considerable unnecessary strain which may, in turn, impinge upon the quality of parenting able to be offered to the children for whom that parent bears or shares responsibility. For a parent to conduct himself/herself in such a manner towards the other parent reflects poorly on the assailant's capacity to recognise that by this behaviour they may erode the confidence, dignity and self esteem of the children's other parent and thereby place the quality of parenting able to be offered under unnecessary strain.
It also reflects poorly upon the assailant's capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress.
Moreover, the effect upon children of inter-spousal violence is now the subject of a considerable body of research. This shows that, though the effects may vary depending on a number of variables, including age and stage of development of the child and frequency and extent of the violence, they may be profound and long-lasting.”
Even if the issue was not addressed in submissions, the Court was previously required to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 837.
The legal principles to be applied in the case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. These principles are applicable to all allegations of risk of harm, including family violence. See A v A (1998) FLC 92-800. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. The High Court discouraged such findings saying that there are “strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so”. (at 77).
Before it can make a positive finding that a parent has abused a child, the Court needs to be satisfied according to the civil standard of proof (see s 140 of the Evidence Act 1994 (Cth).
If the Court determines that it cannot or should not make a positive finding that there has been violence, the Court must determine whether in all the circumstances there is an unacceptable risk of it. The manner in which the Court conducts an assessment of the risk of future harm is set out in A v A (supra). The approach there described is applicable to all allegations of future harm. The Full Court said:
“The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband … In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact. In cases of this sort, often it is not possible for the court to form a positive view at one end or the other end of this scale of dissuasion and it is not necessary for it to do so.”
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
“The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.”
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus.
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.”

The father’s circumstances and proposals

The father lives alone in a rented house at D. He is a kitchen cabinetmaker by trade but is presently and has for some time been unemployed. The father is one of his father’s four children. The father’s mother died when he was 13 years old and his father later remarried. He has one full sibling, a brother who is four years younger. Following his mother’s death, the father attended boarding school at S School at C. The father’s years at boarding school were unhappy, primarily because he was the victim of racial taunts which resulted in many fights. Whilst at school the father was molested and molested other students. The father’s relationship with his brother is troubled. The father sexually molested his brother when the brother was a teenager and it appears that since then their relationship has been difficult. The father’s brother is a drug addict and is presently in jail. He has two children, both of whom have been removed from their parent’s care by the Department of Community Services.
Upon leaving school, the father worked for a number of years in his father’s building business. The father’s relationship with his father is problematic and on 29 August 2003 culminated in the paternal grandfather obtaining an Apprehended Violence Order (AVO) against the father. The paternal grandfather has remarried and has two children, aged 20 and 19 years by his second wife. The father does not have any contact with his half siblings or father.
Curiously, the father claimed he has one, not two sons. With Ms S, he acknowledged he is his G’s father but refused to acknowledge that T is his son. Although he does not challenge a biological connection to either child, the father persisted with his disavowal of the T, who the father refers to as “it”, only eventually conceding the point when shown documents from the Child Support Agency. The father has no relationship with either son and does not seek it. He believes both children are being raised in good homes. Concerning G, he told Ms S: “I saw me in him, the particular person I didn’t want to be. I didn’t want to be old (and) know I created the person I didn’t want him to be. So, I had to let it go”.
When Ms S asked the father about his criminal history he told her his only convictions are for driving offences. The father’s history of court convictions was subpoenaed and forms part of the evidence[3]. In November 1987 the father was convicted of driving in a manner dangerous for which he was fined $400 and disqualified from driving for six months. In December 1988 the father was convicted of malicious damage for which he was fined $150. In September 1992 the father was convicted of offensive language and resisting arrest. One each charge he was fined $150 and $45 court costs. In January 1994 the father was convicted of not wearing a helmet and stating false particulars. He was fined $50 on each charge with $46 court costs.
[3] Exhibit “F”
On 19 August 1994 the father was convicted of breaching an AVO for which he was fined $200 and $46 court costs. This related to an incident involving G and his mother, Ms P. Ms P obtained two apprehended violence orders against the father one of which he breached. T’s mother, Ms C, obtained one apprehended violence orders against the father, which he neither opposed nor breached.
On 1 November 1994 the father was convicted of low range PCA, two counts of assaulting police and two counts of resisting arrest. He was fined $200 and disqualified from driving for the low range PCA offence. On the assault police charges, he received a $1,000 fine on each count and was sentenced to rising of the court in relation to the resisting police conviction.
In November 1997 the father was convicted of contravening an AVO for the mother’s protection. The mother had locked herself in the bathroom and when the father was trying to force the door open, B telephoned the Police. The father was placed on a s 558 Recognizance, fined $750 and restrained from coming within one kilometre of her address for two years. He paid court costs of $30.
In September 1998 the father was convicted of contravening an AVO for the mother’s protection. He was sentenced to the rising of the court with court costs of $51.
In July 1999 the father was convicted of contravening an AVO. He was placed on 18 months s 558 Recognizance, fined $1,000 and $52 court costs.
In February 2001 the father assaulted the mother by punching her in the face. The mother attended hospital where she was observed with black eyes and swelling to her face. The father kicked her partner Mr D and then left the scene with the daughter. Police negotiated her return later in the day. Arising from this incident in November 2001 the father was convicted of two counts of common assault for which he was placed on a two years s 9 Bond.
In July 2002 the father was convicted of common assault. This related to an assault upon a woman he had just met. The father was laughing as he described this incident which involved his screaming victim desperately trying to flag down a passing car so as to escape from him. He explained he was intoxicated and does not have a clear recollection of threatening the driver who stopped to assist his victim. The father was fined $1,250 and court costs of $58. He was placed on a two years s 9 Bond subject to supervision by New South Wales Probation Service.
In April 2003 the father was convicted of not driving left at a traffic island in a roundabout and two counts of resisting an officer in execution of duty. The father was fined $75 for the traffic offence and $58 court costs. On the remaining counts he was fined $500 with courts costs of $58 and placed on a 12 months s 9 Bond. That same day a warrant issued for failing to appear on a charge of breaching a good behaviour bond. The father received a seven months suspended sentence and was placed on a s 12 Bond for seven months.
In September 2004 the father was convicted of contravening an Apprehended Domestic Violence order. The father was placed on a six months s 9 Bond and fined $63 court costs.
In December 2004 the father was convicted on his guilty pleas of driving under the influence of alcohol, driving whilst uninsured, assaulting an officer in the execution of duty and committing an act of cruelty on an animal. This related to an incident on 2 May 2004 at 3.10 pm in which while driving the father was pulled over. He was breath tested and arrested. When asked to turn out his pockets he refused to hand over his wallet and other personal items. A physical altercation ensued during which Police were unable to contain the father. As he describes it, three times he fought his way up from the ground. Unable to contain him, Police sprayed the father with capsicum spray at which stage they completely lost control of him and he escaped. Unable to locate him in bush Police called in a police dog. The Police dog located the father and an alteration ensued during which the father was bitten, as was the dog. The father received a two year s 9 Bond subject to supervision by the New South Wales Probation Service. He was directed to attend counselling and commencing 28 October 2004, disqualified from driving for 18 months. He was fined $700 plus Court costs on driving whilst uninsured and sentenced to 300 hours community service in relation to assaulting an officer, $400 for committing an act of cruelty on an animal and court costs.
As the history above demonstrates, the father’s information concerning his criminal history given to Ms S was a significant misrepresentation.

The mother’s circumstances and proposals

The mother lives with the child and B in a rented three bedroom home in regional New South Wales. She provided her address to the Court which, because of her concerns the father may locate her, is suppressed. Recently, the mother commenced three monthly consultations with a visiting Psychiatrist. She takes low level anti-depressant medication which helps her sleep. In addition, the mother sees a psychologist on a weekly basis.

The child attends the local State school where she is in grade 1 and doing well. The child has formed a small friendship group with children she plays with after school. The mother assists at the child’s school, as a reading volunteer, time keeping in sports carnivals and photographing school events.
B has stopped school and does not have any friends in their community. He spends most of his time on a computer where he maintains internet friendships with people virtually none of whom he has met face to face. Socially and educationally B is isolated. When not on the computer, he spends his days watching television or composing songs. For the first seven years of his life, B had no relationship with his father. Basically, his father disowned him. At some stage B’s father sought regular contact, which the mother facilitated. This continued until approximately three years ago when B’s father decided to move to Tasmania. B has not seen his father since. He told Ms S: “Life goes on. I am not angry or anything”. Concerning his future, B is studying Japanese and, having become interested in Japanese culture via the internet, he would like to move to Japan.
Although the mother uses B as her confidant and claimed he is terrified of the father, B disavowed such feelings. Ms S concluded he seems quite disengaged from his mother’s fears. B was able to recall constant arguments during which the father hit his mother. He recalled the father hiding in the bush but said: “…. I wasn’t worried. I knew he wouldn’t do anything”. Although his opinion of the father is “he is not a real good person” and that he did “weird, sick things” B is basically disinterested in his mother’s fears of the father.
Just as the father gave Ms S a selective account of his circumstances, so did the mother. There are considerable inconsistencies between the mother’s history provided to Ms S and information she has provided over the years to hospitals and therapists. It appears that the mother has attempted to reconstruct her history provided to Ms S in a way she perceives is most advantageous to her case. When the mother attended hospitals and health services over the years, she was not involved in litigation and had nothing obvious to gain from providing misleading information. The mother does not dispute that the various hospitals and health services’ files accurately record the information she gave. When one considers her at times exaggerated evidence in these proceedings, I have formed a view that where there is a conflict in the mother’s history provided to Ms S, her evidence and the history and information she provided to hospitals and health services, I should prefer the information contained in the latter.
The mother is the youngest of her parent’s three children. Her parents separated when she was a baby. Her mother told her that her father was violent and she believes her father beat her mother, broke her jaw and left her with a permanent leg injury after he kicked her whilst wearing steel-capped boots. Having grown up without him, the mother established contact with her father in her late teens. After a few years contact ceased until she briefly re-established contact whilst living with the father. Following another falling out, the mother stopped visiting her father who she understands is now in a nursing home.
When the mother was four years old, her mother re-partnered. Her stepfather has four children who formed part of their household. The mother describes her stepfather as being physically abusive and preferring his own children to her. In a 1998 mental health assessment following a suicide attempt, the mother told Dr A her brother M sexually assaulted her for two to three years from the age of 10. She expressed concern that her brother also sexually abused B. The mother did not disclose this to Ms S and denied it during cross-examination. However, two years after the 1998 disclosure referred to, the mother repeated her sexual abuse allegation concerning her brother. She specifically sought assistance in June 2000 for issues arising from this past sexual abuse.
The mother cried when she discussed her relationship with her mother during her interview with Ms S. She told Ms S that she misses her mother and now only sees her during school holidays. They speak each Sunday and SMS each other daily. The mother’s mother lives on the Central Coast of New South Wales with the mother’s stepfather. The mother says that her mother wants her to move back to the Central Coast and believes she would benefit from doing so. The tenor of the mother’s evidence is that because of her fear of the father she is deprived of the opportunity to enjoy a close relationship with her mother and family. However the mother’s hospital notes[4] reveals the mother discussing her mother from a slightly different perspective. The mother says her mother knew she was being sexually abused by her brother but did nothing to protect her. She describes an unhappy childhood during which she received neither love nor support from her mother. In these hospital and health service notes, the mother does not identify her mother as supportive or provide information which suggests that theirs has ever been a healthy relationship. I consider it likely the mother’s lack of regular contact with her mother long predates her relationship with the father and that she is wrongly attempting to make him responsible for the situation she finds herself in with her mother.
[4] Exhibit “D”
The effect of these findings is that I am satisfied long before the mother and father met, her relationships with her family were troubled and in many respects dysfunctional. Whatever the reasons for this may be, the genesis for these difficulties does not arise out of the mother’s relationship with the father.
Ms S explored with the mother her prior drug and alcohol use. The mother told Ms S that during her relationship with the father she used cannabis, about eight times a day, in order to cope with him. She made no mention of prior drug use. In an alcohol and drug assessment on 19 June 1998, the mother reveals that she started using cannabis at 15 years of age and by the time she was 17, was using every day. She stopped using cannabis whilst pregnant with B but started again when he was four months old. For part of her pregnancy with the daughter the mother stopped using cannabis. The mother says she has been smoking 30 cones a day until five days before her assessment. This is consistent with the father’s evidence.
After they married, the father refused to give the mother money for cannabis. Although she was working as a cleaner for her drugs supplier, without the father’s financial support, the mother was unable to afford to continue her drug habit to the extent she wished. On referral from her general practitioner, she sought assistance from a drug and alcohol counsellor. Between mid June 1998 and 27 July 1998, the mother reduced her cannabis intake to something in excess of 15 cones a day. When she was seen for drug counselling on 27 July 1998, she had already taken eight cones that morning. Her drug counsellor assessed the mother as lacking motivation to stop cannabis use, which is consistent with her failure to attend numerous appointments before abandoning counselling altogether. It is also consistent with her decision during one separation to move in with her drug supplier.
I am satisfied that long before the parties met, the mother was a heavy cannabis user and that her cannabis use remained heavy throughout their relationship. Quite probably because of her drug use and depression, during their relationship the mother paid little attention to the day to day running of the home, preparing meals and the like. She had difficulty arising in the morning and on most days was angry and agitated. Coupled with the father’s emotionally abusive and violent outbursts, their relationship was volatile and from B and child’s perspective terrible.
The mother says she now lives a quiet life and is no longer using cannabis. I have no way of knowing whether the latter is correct. The mother has not re-partnered and has no plans to do so. Personally the mother feels she is now functioning better than she has for many years, a situation she attributes to feeling safe away from the father and to her counselling. If the father’s application to spend time with the child succeeds the mother believes she will be at risk of harm and further harassment from him. Apart from safety issues the mother believes her own level of functioning will deteriorate and the sense of stability she now feels will be lost. Because she is primarily responsible for the child’s care, inevitably the child’s well being will be significantly compromised.

Determining the child’s best interests

Both parties say they wish to have a meaningful relationship with the child. There is no definition of the term “meaningful relationship” in s 60CC(2)(a). Meaningful is defined in the Concise Oxford Dictionary as “1. Full of meaning; significant. 2. Logic, able to be interpreted.” In the family law context the former definition is apt. The words do not define the amount of time a child spends with the parent. As the notation to the provisions reveals, one of the purposes of the provisions is to promote the importance of s 60B objects. The words are qualitative and indicate different formulations for different situations will constitute meaningful relationships. In this sense the words are both contextual and directive. In essence, these words identify that a court must give real weight and prioritise the benefits to a child of having both of his or her parents involved in their lives.
Unless the Court intervenes, the child will have no relationship with her father. The existing situation, where she is exposed to her mother’s negative opinions of her father will continue unabated. The child may have a sense of being incomplete in circumstances where she does not know her father. Presently, the child accepts her father is a bad person who will abduct her if given the opportunity. She knows nothing good about her father and is comfortable denying her paternity. The mother says that during the February 2001 assault the father attempted to abduct the child at knife point. The father agrees he was holding a knife when he insisted the mother gives the child to him. I have no difficulty accepting the mother’s evidence that she handed the child to the father because she was afraid the father would continue his assault on her using the knife he was wielding. Without hearing from Mr D I am unable to determine whether he or the father introduced the knife into the melee. Although the father kept the child for a number of hours until police negotiated her handover, he did not intend to keep her longer than the period originally agreed. Given the incident, however, it is easy to understand how the mother feared the child’s non return. The child has no recollection of this incident and it appears the mother has repeatedly reminded her of it, thus creating the child’s fear she will be abducted. This is the only incident which could be described as an abduction.
In 1998, the father approached G’s school in order to see his son. He did this because G’s mother was refusing his requests to see G. There is no evidence that on this occasion the father attempted to remove G and this incident does not support the mother’s claim that if the father sees the daughter he is likely to abduct her and thus deprive her of a continuing relationship with her mother.
In a relationship sense, an obvious advantage if orders are made as the father proposes is that the daughter will know him. Also, that there is little likelihood he will abduct her. At least in this sense, the daughter would appreciate it is possible for her to have a relationship with her mother as well as her father. Her fear of abduction may dissipate, something which can only contribute to the child’s emotional well being. There is a real issue, however, concerning whether if given the time the father seeks with the daughter, they will be able to establish a meaningful relationship with him. This possibility is intrinsically linked to the mother’s family violence and abuse allegations and the father’s personality disorder.
Section 60CC(2)(b) constitutes one of the pivotal issues in the case. I must consider the need to protect the child from physical and psychological harm and being subjected to and exposed to abuse, neglect and family violence. My findings pursuant to this subsection carry significant weight.
The father says he has never physically abused the mother. However, as I have earlier found, he agrees that on 24 February 2001 he hit the mother in the face and attacked Mr D. Concerning the mother, the father called his punch to the mother’s face as “cupping” which he says was justified by her attempt to stop him driving away with the child. He is unconcerned that from his assault she suffered a black eye with obvious swelling to her face[5]. The father denies the mother’s allegation he was armed with a knife. The father agrees he produced a knife, which he says he discovered only when Mr D dropped it. The father justifies his attack upon Mr D by his warning to Mr D that unless he backed off the father would deal with him physically. When Mr D came towards the car, the father attacked him and beat him to the ground.
[5] Exhibit “J”
There is another incident in which the father agrees he used physical force upon the mother. In November 1998, the father agrees with the mother that they were arguing in a car. He agrees with the mother that she got out of the car and ran away from him. He agrees that he followed her in the car and was trying to get her back into it. Because she was just out of hospital the father says he was concerned she may again try to harm herself or become ill from walking in the rain. The mother says the father ran her down, grabbed her by the hair and pulled her back into the car. The father says he grabbed the mother around her waist and forced her back into the car. When in the car, the father says the mother attacked him, punching and hitting him before grabbing his groin. In her continued attempt to escape, the mother pulled on the car’s handbrake which caused the car to veer off the road. Notwithstanding the mother’s attempts to get away from him, the father kept her in the car and took her home. Upon their arrival, the mother telephoned the police. The father rejects any notion that his actions constitute violence towards the mother.
It is unusual to admit evidence concerning parties’ sexual lives. This is because this type of evidence usually offends the rule that evidence which is not relevant in the proceeding is inadmissible. See s 56 Evidence Act 1995 (Cth). The mother’s affidavit gives a detailed and explicit account of what she describes as a relentlessly abusive sexual relationship with the father. The father objected to the admission of this material, submitting it is irrelevant to his desire to spend time with the child. I allowed the material because I accepted it is potentially relevant to the mother’s family violence allegations and her concerns about the father’s suitability as a role model for their daughter.
The father agrees with the mother that their sexual life included her urinating upon him. The mother says she did so against her will and out of fear that the father would act upon his threats to hurt her if she did not comply. The father says, that early in their relationship, the mother told him she engaged in this type of sexual activity with a former partner. When the father expressed interest the mother agreed that it would be part of their sexual life. This developed with the father asking the mother to allow him to drink her urine. The father said the mother accommodated his request to abandon utensils and allow him to drink her urine directly from her. When giving evidence concerning this, he described it as “drinking her beer straight from the brew”. Also, that “a real man drinks his wife’s brew”.
The father agreed with the mother’s evidence that shortly before the child’s birth, on an occasion after they had sex, she was showering. Without any forewarning, the father entered the shower and from his anus sprayed the mother with faeces. The father shrugged off the mother’s distress at this incident, commenting that the shower washed his faeces off.
Concerning their sex life, the father explained that he used sex in order to encourage the mother. The sense I had of this evidence, is that he believes that by bestowing his sexual favours upon the mother, she should feel more valued as a woman. From the mother’s perspective, nothing could be further from the truth.
It is the father’s case, that during cohabitation the mother was depressed, suicidal, using cannabis excessively and unable to attend to even basic day to day household activities. To a significant degree this is correct. Even if, as he says, he did not need physical force in order to secure her cooperation with his sexual desires, I have grave reservations about the nature of the mother’s consent. I was left with considerable unease that the father opportunistically availed himself of a person who he realised he could bend to his will. The extent of his sexual disregard for the mother’s consent is epitomised in the occasion when he defecated upon her whilst she was showering. Whatever the situation viz a viz ostensible consent during their marriage, with the benefit of counselling the mother realises theirs was an unequal sexual relationship which she recalls with horror. Given her own experiences with the father sexually, I have no difficulty accepting that she genuinely fears the values which the father may expose the child to.
In a similar vein, the mother recalls visiting the father whilst accompanied by B, who remained throughout the visit. This is before the mother was pregnant with the daughter. At this time the father was living at his father’s factory premises. Although he was expecting their visit, when the mother arrived the father was playing loud music with lyrics “no way get fucked, fuck off”. He was wearing short shorts, which displayed his testicles. Whilst the mother was there, she saw him expose his penis and allow his pet German Shepard lick it. Concerning this incident, the father explained that his German Shepherd was then his closest friend. The father demonstrated no hint of embarrassment or regret when discussing this incident. Notwithstanding the father’s conduct during this visit the mother continued their relationship, with the parties alternating visits to the mother on the Central Coast and her visits to him in Sydney. This reveals that the mother’s attitudes to the father’s capacity as a suitable role model, in this incident for B was seriously lacking.
The father denied the mother’s allegations that he used foul language towards her. In his oral testimony, he said he does not use bad language. However, the father then conceded that he sent the mother SMS messages in the following terms:
These SMS messages are similar in tone and content to the language which the mother says the father used towards her. They plainly demonstrate that the father’s evidence that he does not use foul language is unreliable. The SMS messages corroborate the mother’s evidence that during their relationship and since separation, the father has used abusive and demeaning language to her. Far from being an isolated occurrence, I consider it is highly likely that whilst the parties cohabitated the mother was routinely subjected to language of the type she complains of.
In his oral testimony concerning the mother, the father said: “She wanted me to be violent to her. She wanted us to be Bonnie and Clyde. She wanted me to be violent to her because that’s all she knew. I did not accommodate this”. The father says the mother was also abusive, used foul language towards him and frequently hit him. I have no difficulty accepting that with her excessive cannabis use and depression, that throughout their relationship the mother was emotionally labile and that she lashed out at him verbally and physically. While the father regarded the mother’s behaviour as provocative and inviting violence, he was neither confronted by her language, nor afraid of her violence. Physically, the mother was no match for the father. There are no examples of violent altercations between the parties in which the mother coerced the father to her will. All examples result in the father coercing the mother to his.

Another distinguishing feature is that the father has had AVO’s made against him for the protection of numerous people compared to the mother against whom there are none. Although the mother was arrested for throwing coffee over a police officer, she has no criminal convictions involving violence. The father’s history of convictions is in stark contrast to the mother’s situation. Comparatively, there is a far higher risk that the daughter will be exposed to violence, including family violence, if she spends time with her father than when with her mother. The mother’s violence appears to be associated with her toxic relationship with the father and has not spilled over into other phases in her life. The father’s violence, abuse and anti-social behaviour is far more wide reaching and continuing.
The father was cavalier concerning the restraints imposed upon him by the four AVO’s made for the mother’s protection. Concerning the first AVO made while the parties were living at M, the father explains that the parties made their own rules concerning its operation. For his part he saw no reason to comply with the restraint that he not approaches within 100 metres of the mother’s home. While the mother’s approach was initially similarly contradictory, as time passed she made more attempt to abide the AVO’s than the father did. Over the years, though, it must be said that when it suited them both parties ignored the AVO’s and treated police attempts to limit the risk of further violence and harassment with contempt.
For her part, the mother has taken significant steps to improve her situation, including developing insight into how best to avoid similar situations. She is responding positively to psychiatric and psychological assistance and is likely to continue to do so. The father, on the other hand, does not appear to have benefited from the courses he has undertaken. The father has attended six anger management/counselling courses; three voluntary and three directed by his probation officer. The father was asked to leave the LifeCare program because his attitude towards women disclosed during the LifeCare sessions were contrary to those which the program sought to promote. He was disruptive and mocked other participants. I was initially pleased to hear the father’s evidence that in September 2006 he completed a six month TAFE Conflict Resolution Course. My initial notion that here was evidence of progress fell away when the father said he completed this course in order to learn how to deal with conflict more assertively. With respect to the father, he left me with a strong sense that he has little or no insight into the effect his behaviour has had upon the mother, or the other women who have obtained AVO’s against him. The father says he would not behave in this matter if the daughter is with him. I do not accept that the father has sufficient impulse control to not lash out verbally or physically merely because the daughter is with him. There is a real likelihood that the daughter would be exposed to the type of language and behaviour reflected by the father’s numerous convictions, AVO’s and findings in these proceedings. If the daughter adopted her father’s modus operandi, she too may find herself friendless and socially isolated. Alternatively, she is likely to be confronted and confused by his behaviour, afraid of him and develop a distorted notion of acceptable interpersonal behaviour.
The mother alleges the father deliberately burnt the daughter with a cigarette when she was four weeks old. Whilst smoking a cigarette the mother says the father leaned over the daughter and put its burning end on her face. In response to the child’s cry the mother said “Don’t do that you’ll hurt her”. The father then walked over to the mother and hit her in the head. The mother says she photographed the burn, which by the following day was sore and blistered, but did nothing more about it. Although she was seeing a doctor the mother did not tell the doctor, nor take the obvious step of leaving the father and notifying DOCS. The father denies the mother’s allegation. If the mother’s evidence is true, she demonstrates an appalling lack of responsibility for the child’s safety. The most likely scenario is that this is an entirely fabricated event. Nor did I believe her evidence that the father forced her to stop breast feeding. Although thin the mother was concerned about looking fat and it is most likely that she stopped breast feeding of her own accord. These are but two examples of the mother “overstating” her case.
The mother says that from 8 May 1998 until August 1998 about every second day the father beat and then raped her. This is inconstant with her many interviews with health professionals and police. This evidence is a gross exaggeration.
During the parties cohabitation the child was probably neglected. While she was fed and bathed, it would be surprising if her developmental needs were attended to. This follows from the mother’s cannabis use, depression, the toxic nature of the parties’ relationship and the father’s 10 to 12 hour working days. By the time of the hearing, however, the mother appears to be attending to the child’s physical and intellectual needs well and whatever the neglect may have been during cohabitation, it has not continued post separation.

Additional considerations

By s 60CC(3)(a) where a child has expressed views about its welfare, the child’s views must be considered along with any factors the Court feels are relevant to the weight given to the child’s views. Ms S describes the child as a friendly and engaging child of normal intelligence. She was cooperative during the interview and showed an appropriate range of affect during their discussion. The child denied she has a father and specifically denied that the applicant is her father. When Ms S asked whether he “used to be her father”, the child replied: “He used to be but he is not your (sic) dad now. He is nasty”. Ms S administered the Raven’s Projective Task to the child. This is a test in which a child tells a story about a hypothetical child in various neutral situations. The child told the story of a girl who was worried about being taken by a robber called Michael. Michael was not the girl’s father but pretended to be. Michael had stolen the girl and locked her in a garage. The girl’s mother was angry with her for going off without telling her. She was punished by being hit with a wooden spoon on the bottom. From the child’s story, Ms S’s discerns the child’s fear of being kidnapped by a father figure and her ambivalence about her mother’s role in seeing this pretend father.
The child told Ms S that she felt happy when “staying with mum all the time”. Concerning anger, she described “when your mum dies” and when “a robber is around”. Ms S explored the child’s worries with her. She reports on her discussion in the following terms: “[The child] told me, with pressured speech and with minimal pausing: ‘I worry about [the father]. That he will get me. He’s always around us. He’s been on a hill and making whistles. We called the cops and they found the car. And he bit my tummy once. And I was on the trampoline. He is looking where we are.” When asked whether she remembered these events, the child told me she remembers being on a hill at her old house at L when the father was out there. When asked why he was there:
[The child] said:          Because he wants to get me.
[Ms S]:           How do you know about this?
[The child]:Because he’s always hanging around us. Mum thinks he wants to get me and keep me.
[Ms S]: What does mum say about this?
[The child:      She says she’ll keep me safe.”
The father agrees that he bit the child on her stomach. She was very little and it would be surprising if she remembered this incident unless it has subsequently been recounted to her. He did not intend to hurt her, but bit her hard enough to leave clear teeth impressions in her flesh. Reference to the trampoline involves an incident when, under her father’s supervision, the child hurt herself trampolining. Whilst she may remember this incident, it would be surprising that she blames the father’s inadequate supervision for her injury. Her implied criticism of her father suggests this idea has been introduced by someone else. In both instances, I consider it likely that the mother has done so. The child does not appear to recall the February 2001 incident, which if she recalled it, she may regard as her father abducting her. Her fear of abduction, Ms S believes, is implanted by the mother. I agree. Her mother is also most likely responsible for the child’s belief that her father is “a bad man”. Combined, the effect of these findings is that although the child is afraid of her father and does not wish to spend time with him, her views have been manipulated by her mother. Although the child is achieving her developmental milestones in accordance with her chronological age, she does not have the maturity to understand the impact of her mother’s views upon her, or to weigh up the nuances of her parent’s competing proposals. In these circumstances, the child’s views carry little weight.
By s 60CC(3)(b) I am required to consider the nature of the child’s relationship with each of her parents, grandparents and other significant people. As I have earlier found, Ms S concludes that the child has no relationship with her father. This is consistent with his discussions of his relationship with his daughter. Ms S reports that when she asked the father about the child: “He became irritated and somewhat sarcastic, saying how could he tell me since he had not seen her since the age he was in the photo he had shown me (six months)? Initially, the father told Ms S he had not seen the child since the parties separated. When queried, he recalled more recent contact, the most recent being at McDonalds in September 2004. The MacDonald’s contact was 2003 and his last contact with the child was about two years ago when he spoke with her on the telephone. In that telephone call, the child told the father she did not want to see him. The mother initiated this call and in all likelihood prompted the child with what she must say.
The child’s young age at separation, the father’s fulltime employment during cohabitation, their lack of meaningful contact since separation and the mother’s strong and repeated message to the child that her father is a bad person intent on abducting her, have destroyed whatever relationship the child and the father previously had.
There is no evidence to suggest the child has ever met her half brothers, G and T. I infer she has not. I am unaware of whether the child is even aware of their existence. Neither the mother nor father appears to be motivated to assist the child establish her relationships with these half brothers. Irrespective of the outcome of these proceedings, it appears unlikely that the child will have any relationship with G or T.
The child has lived with B all her life. In B’s interview with Ms S, he did not mention his mother or the child unless Ms S specifically asked about them. B told Ms S that “I don’t feel things like sympathy” and explained that he is content with his isolated lifestyle. He says he has no need for close friendships and is satisfied with relationships maintained over the internet. He is aloof to the mother’s concerns about the father and made no suggestion that he is aware of the child’s concerns she may be abducted. Ms S concluded that B is “emotionally constricted” with an intensity that seems well entrenched. He expressed no concern for the child or even an emotional connection to her. Ms S described B as “an intelligent though quite unusual adolescent” which seems apt. The mother says the child regards B with affection and it is likely she sees him as a trusted and aloof older brother. Irrespective of the outcome of these proceedings, the child and B’s relationship is unlikely to be effected.
The child has no relationship with her paternal relatives. The father does not see his relatives and it is unlikely this situation will change. The mother does not have any relationship with the father’s relatives. Irrespective of the outcome of these proceedings, it is unlikely the child will ever have a relationship with her paternal relatives.
Ms S met the child’s maternal grandmother. Ms S interviewed the mother, maternal grandmother, B and the child in a joint session. During the interview, the child spoke quietly to her grandmother, who was seated nearby. The child appeared comfortable in her maternal grandmother’s presence. Other than a few brief periods when the child was a baby, she has never lived with her maternal grandmother. In recent years, they have seen each other during school holidays, a routine which appears likely to continue. The child has a satisfactory relationship with her maternal grandmother which relationship is likely to continue.
The child’s most important relationship is with her mother. From the child’s discussion with Ms S, it is apparent that the child feels happy with her mother and losing her is her greatest fear. The child’s relationship with her mother is fundamental to her sense of well being. From her more than any other person she draws her emotional and psychological support. There is no doubt that the mother is the child’s primary carer and the person to whom she is most strongly attached. This is a finding to which I attach significant weight.
Next, I must consider the parties’ willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother is strongly opposed to the child having any relationship with the father and has virtually no ability to facilitate or encourage its development. I agree with Ms S’s assessment that the mother:
“Has a strong need to paint [the father] in the most deviant light. She cannot acknowledge anything positive about him or their relationship and blames him entirely for all that has gone wrong. She has conveyed this attitude to both children… .”
Ms S says that:
“[The mother’s] identity is highly embroiled in her perception of herself as a domestic violence victim. This identity is intense and ongoing, despite it being almost two years since the father has tried to make any contact (even though he has her mobile phone number). She also uses this identity in the engagement of other to fulfil her attachment needs. [The mother] seems loathe to give up this ‘victim’ identity, despite the relative safety she has had in the last 20 months, but which has not led to an diminution in her preoccupation with [the father] or the domestic violence.”
These matters, in conjunction with the mother’s personalty disorder, make it virtually impossible for her to contemplate facilitating any relationship between the child and her father.
The father says he supports the child’s relationship with her mother and if given the opportunity to spend time with the child, he will do nothing other than support it. Ms S concluded that:
“There also appears to be a somewhat sadistic flavour in his interactions with others – his seeming delight in frightening his ex-partner; his reported bizarre behaviour (of licking eyes/eyelids and spitting into mouths) as confirmed by [B]; and his reported mocking of others in his domestic violence group.”
The father did lick the children’s eyes and spit into their mouths. Ms S said:
“[The father] is very self absorbed and [the child] featured very little in his narrative. He shows no remorse/guilt for his stalking/intimidation of the family and almost seems triumphant about this. He shows no insight/empathy into how this might have affected his daughter and no remorse about how the abuses perpetrated on his ex-partner in the presence of the child (a form of child abuse).”
These findings are consistent with my own observations of the father and coincide with my assessment of the evidence. They support Ms S’s conclusion:
“There are major concerns that if he had regular unsupervised contact with [the child] (a rather passive, dependent child), he could utilise significant manipulation, intimidation and coercion to denigrate the mother in the child’s eyes.”
These factors, combined with the father’s impulsiveness, indiscriminate verbal abuse of the mother often in the children’s presence and repeated breaches of AVO’s, means that it is highly likely he would be damningly critical to the child about her mother. Although his intention may not be to undermine their relationship, because of his lack of insight into the effect of his behaviour on others, this would be the effect. This is a finding to which I attach considerable weight.
The likely effect of any changes in the child’s circumstances is an important consideration. Ms S discusses the obvious advantages to the child in establishing contact with her father. She says:
“Since [the child] does not have an attachment to her father (or even any real remembrance of him), future contact would be for:
·identity purposes (for [the child] to know who her father is),
·to build, over time, a secondary attachment relationship which does not now exist.
These would be the advantages of contact if there were not any other concerns. Identity needs for a child of this age can be met through minimal contact (1 – 4 times per annum), whereas an attachment relationship would need regular contact over some years.”
The mother and Independent Children’s Lawyer submit that the advantages of orders re-establishing contact between the child and her father are outweighed by the disadvantages. Each relies upon Ms S’s opinion:
“ … because of the father’s past violence and intimidation of the family (without regard for [the child’s] well being); his potential to manipulate this vulnerable child if not supervised; his anti-authoritarian attitude; and the child’s fear (even if by default) of him, unsupervised contact should not be contemplated. This leaves the option of him seeing the child for brief, strictly supervised periods, with the aim of fulfilling her identity needs only. However, there would still be grave concerns even about professional supervised contact, namely:
1.The mother is highly stressed and emotionally fragile, even though there has been no contact with the father for so long. Resuming such contact (when the gains for [the child] are likely to be small) has the strong propensity to worsen the mother’s emotional state and therefore her parenting capacity for [the child]. The mother’s relationship is [the child’s] primary source of love and security and should not be threatened in any way.
2.[The child] is likely to take on the mother’s fears (whether realistic or not) about contact with the father, as she has no other reality basis on which to make such judgment. This has strong propensity to undermine the child’s current security and well being.
3.Even with professional supervision, there is the propensity for breaches of this in terms of subtle manipulation of the child/supervisor by this man, who is quite anti social, sadistic and manipulative in character.”
During the hearing, the father demonstrated his manipulative personality on a number of occasions. Although he agreed with everything Ms S said about the mother, he disagreed with her opinions insofar as they related to him. At the commencement of his cross-examination of Ms S, he questioned her concerning her clinical practice. At the end of this line of questioning, the father smiled at Ms S and said she was an attractive woman for her age. He claimed bemusement upon objection to his question. In his cross-examination of the mother, the father swung between flattering praise and contemptuous disdain. Basically, when one strategy appeared unsuccessful, he tried the other. These findings support Ms S’s opinion and carry considerable weight.

The child is able to manage brief separations from the mother. Separation per se is unlikely to have any negative impact upon the child or the mother. For the reasons Ms S gives, however, the child’s separation from her mother in order to be with her father is highly likely to be traumatic for the child and mother. In both the short and long term, re-establishing contact between the child and the father is highly likely to undermine the mother’s emotional stability and thus her ability to meet the child’s emotional and psychological needs. Against the mother’s long history of emotional disturbance, the risk is heightened as to both probability and severity. In the past, when emotionally distressed, the mother has attempted suicide. She has used drugs excessively and time and again ignored risks to her and her children’s safety. The child’s short and long term well being is not served by steps which are likely to lead to a recurrence of the mother’s earlier behaviour.
In Ms S’s opinion, the effect of continuing the child’s separation from the father is that: “Her developmental needs for emotional security, feelings of well being, attachment security with her primary figure (mother/brother)” are protected. The advantages to the child in preserving and promoting these matters far outweigh the few advantages to the child in addressing her identification developmental needs through contact with her father.
Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent. The Court but not the father and Independent Children’s Lawyer has the mother’s address. Having regard to the parties’ respective locations, although distance creates an impediment to alternate weekend visits, if the parties shared equally the effort involved in travelling to a point which is midway between their two homes, the father’s application could be facilitated. This is not a weighty consideration.
Section 60CC(3)(f) focuses upon the parties’ parenting capacity. In this context, I must consider role model issues. The father has never had responsibility for child rearing for any length of time. While he probably has sufficient parenting skills to physically care for the child, there are grave issues concerning his ability to meet her emotional and psychological needs or provide her with a suitable male role model. The father appeared genuinely bemused by questions which attempted to explore his personal values and those values he would seek to expose the child to whilst she is with him. Because he was basically unable to give any indication of his personal beliefs, one must examine his past behaviour and statements to others in order to determine his values and ability to meet this child’s emotional needs.
The father is totally estranged from his family and according to him, has no close friends. He describes himself as a loner and said he believes he is different to most people he meets. Simply put, the father said few people understand him or choose to spend time with him. The effect of this is that the father was unable to point to any continuing relationship or friendship that demonstrates he is capable of empathising with others or establishing the trust and respect implicit in long term healthy relationships. It is noteworthy that every serious relationship the father has had with a woman appears to have finished with the women obtaining AVO’s for their protection from him. In his discussions with Ms S, the father described himself as dominating, particularly in his relationships with women. The father noted that his father had been “the boss” which he extrapolated into his personal view that “most men discipline their women in their own way”. Concerning the mother, he explained to Ms S that in his opinion the mother “didn’t understand my discipline of her”. Ms S says that when she was discussing these notions with the father he “became quite challenging in a menacing manner. He told me with cold anger ….”. There were flashes of similar behaviour during the hearing. The father’s extensive criminal history demonstrates real anti-social values and behaviour. His SMS messages to the mother reveal him as a foul mouthed bully. Sadly, there is no evidence which would enable me to infer that the father is motivated to leave these values behind and the probability is that he will expose the child to behaviour and values which she will find confusing and which if she adopts, will bring her into conflict with most of the people she meets. In both the short and long term this outcome is highly likely to compromise her emotional and psychological wellbeing. These findings carry significant weight.
I have already made findings concerning the importance to the child of the mother meeting her emotional, psychological and intellectual needs. Provided the mother feels safe from the father and continues to receive mental health assistance whilst simultaneously remaining drug free, she is able to attend to these aspects of the child’s care. In forming this conclusion, I have not overlooked the incident following the mother and children’s interviews with Ms S. As Ms S explains, at the end of her morning interviews with the mother and children, the mother approached her and “with quite dramatic effect, told me she was scared to leave the building or go to the adjacent car park in case she ran into the father”. Ms S explained that he was not expected for 40 minutes. When this failed to address the mother’s apparent panic, Ms S spoke with security staff who arranged for the mother to wait in a safe room at the counselling unit until Ms S had the father in another part of the building. The mother would thus be safe and able to depart whilst Ms S was interviewing the father. When Ms S returned and outlined the proposed security plan, upon hearing she needed to wait 40 minutes the mother “immediately dropped her scared/anxious demeanour, said it would be alright and the family left the building”. For Ms S, this incident highlighted the mother’s use of dramatic effect to engage others in accepting the danger of her situation and ambivalence regarding the situation viz a viz the father. Her reaction is consistent with Ms S’s opinion that the mother meets the criteria for borderline personality disorder. Part of the symptoms of her personality disorder are “intense displays of emotion in regard to domestic violence side by side with some quite non-protective behaviours regarding this risk”.
There are no s 60CC(3)(g) and (h) factors which require further consideration.
The mother is focused on doing her best to meet the child’s needs and thus her parental responsibilities. Where her ability to do so is compromised, it appears this emanates from her personalty disorder. It is incumbent upon the mother to continue receiving psychiatric and psychological assistance if she is to adequately meet her parental responsibilities towards this child.
In the few opportunities he has had to demonstrate his approach to his parental responsibilities, the father has shown himself to be irresponsible. I have considerable reservations that even if orders were made which enabled the father to spend time with the child, that he would maintain regular contact with her. The most likely scenario is that although he may attend for a number of visits early on, it is most likely that he would loose interest.
I have already made findings concerning family violence and do not repeat them. In summary, I am satisfied that establishing contact between the child and the father exposes the mother to an unacceptable risk of family violence. The risk the father will question the child in order to locate the mother is high. Given the child’s age, while she may be able to recognise and avoid answering questions which will obviously reveal her location, she does not have the maturity to recognise and avoid subtle and manipulative questions the answers to which may inadvertently disclose the mother’s whereabouts. Having discovered the mother’s whereabouts, it is almost certain that the father will approach the mother’s home. There is a real likelihood this will result in the father’s continuing harassment of her and possibly also violence between the adults.
The father has hurt the child in the past, deliberately, by biting her. Although I accept his evidence that he did not mean to hurt her, plainly he meant to bite her. This incident highlights the father’s inability to adjust his behaviour from the manner in which he deals with adults to children. It suggests that in contact with him, the child will be exposed to an unacceptable risk of family violence. It is also likely that the child would witness the father’s abusive and violent behaviour towards non-family members, for example in arguments with police. These are findings to which I attach significant weight.
The prospect of further proceedings is no more or less probable on either party’s application. As must be clear by now, I am strongly satisfied that Ms S’s recommendation against contact between the child and the father in any form must be implemented. At some stage in the future, the father may contemplate commencing another application for orders enabling him to see the child. Before he does so, he should reflect on his circumstances. Specifically, he will need to be able to demonstrate that he has lived for a reasonably lengthy time without coming into conflict with the police or others. He should attend long term individual counselling for perpetrators of domestic violence. He should attend in depth psychotherapy which addresses his personalty disorder. Without these changes it is difficult to see how the father could satisfy the Court that there is a proper basis for changing the child’s circumstances.
There is considerable overlap between s 60CC(3) and (4). There are no further factors which s 60CC(4) requires me to consider. In summary, I am satisfied that the mother’s stance in resisting the father’s attempts to spend time with the child have been appropriate and, from a child protection perspective, necessary. The father has not been given the opportunity to participate in making decisions about the child’s long term welfare which, for the reasons already given, does not warrant criticism of either parent.
Neither party contends for an outcome by which the child would divide her time equally between her parents, or spend substantial and significant time (as defined in s 65DAA(2) and (3)) with the father.

Conclusion

This is one of those exceptional cases where this child’s best interests require that she does not have a relationship with the father. Ordering that the child’s spends time with her father, whether supervised or unsupervised, exposes her to an unacceptable risk of family violence and an inappropriate role model. the child has no relationship with her father and does not seek it. Establishing contact between them is almost certain to compromise the mother’s psychological and emotion wellbeing, the effects of which will be catastrophic for the child. the child is entirely reliant upon her mother for her physical, emotional and intellectual needs. Jeopardising the mother’s emotional and psychological wellbeing jeopardises the child’s emotional and psychological wellbeing. The advantages to the child in developmental (identity sense) involved in establishing contact with the father are greatly outweighed by the disadvantages to which I have referred. Thus, notwithstanding the primary considerations supporting the child’s right to a meaningful relationship with her father, her interests require that she is protected from abuse and neglect inherent in spending time with or communicating with him.
The mother already has a final order that the child lives with her. As the father does not challenge the order, there is no utility in making a further order in identical terms.
The mother seeks an order which restrains the father from spending time with or communicating with the child. Such an order goes further than merely dismissing the father’s application to spend time with her. Presently there are no operative AVO’s for either the mother or the child’s protection. An order restraining the father from communicating with or approaching the child is consistent with my findings and promotes her welfare. For abundant caution, I will attach to this restraint a condition which will enable police to arrest the father without warrant if in their opinion he has breached the terms of the injunction. The impact of this order should be that the child is able to move about her community without fear the father may approach or abduct her. The mother should make the school and others with whom the child regularly spends time aware of the terms of the injunction so that if the father approaches the child, these people and agencies know they should immediately contact police.
Having regard to the family violence findings the presumption of shared parental responsibility does not apply. Since her birth, the mother has made all parenting decisions concerning the child. Whether short or long term, she has decided these issues without reference to the father. The parties are unable to communicate and the prospect of them ever achieving a level of communication which enables them to discuss and compromise matters concerning the child’s care is remote. In the unusual circumstances of this case, the mother should formally have sole parental responsibility for the parties’ daughter.

For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 10 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as POBLANO & MILLARD

[2007] FamCA 424

10 May 2007

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort