Pottinger & Bainton

FAMILY COURT OF AUSTRALIA

POTTINGER & BAINTON

[2009] FamCA 124

FAMILY LAW – CHILDREN – Whether the presumption of equal shared parental responsibility has been rebutted – application of section 61DA(2)(b) and (4) – whether there be an order for sole parental responsibility – the terms and conditions of periods of time to be spent by the father with the child – ancillary matters

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 60CA

Whisprun Pty Limited v Dixon (2003) 200 ALR 447
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
R & C (unreported, Family Court of Australia Full Court, 25 June 1993)
Re Andrew (1996) FLC 92-692

APPLICANT:

Mr Pottinger

RESPONDENT:

Ms Bainton

INDEPENDENT CHILDREN’S LAWYER

Legal Aid Commission of New South Wales

FILE NUMBER:

SYF

2170

2006

DATE DELIVERED:

25 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

27 - 29 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	G Johnston
SOLICITOR FOR THE APPLICANT:	H A Miedzinski

COUNSEL FOR THE RESPONDENT:	J Lloyd
SOLICITOR FOR THE RESPONDENT:	Paltos & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	R Harper
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	K Shea

Orders

That by consent all previous parenting orders in relation to the child of the parties … born … August 2005 (“the child”) are discharged.
That the mother have sole parental responsibility for the child and in the exercise in that responsibility the mother shall:-
(a)Notify the father in writing prior to making decisions about major long term issues in relation to the child including but not limited to the child’s education and health;
(b)       Invite the father to indicate his views in writing;
(c)       Take the father’s views into account in making such decisions; and
(d)       Inform the father in writing of her decisions.
That the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That by consent the child live with the mother.

Periods of time with the child until he attends school

That the father spend supervised periods of time with the child as follows:-
(a)At Centacare Contact Centre (“Centacare”) operated by Catholic Social Services Australia each alternate Saturday from 10.00am until 12 noon and Sunday from 3.00pm until 5.00pm commencing on Saturday 7 March 2009 or in the event that the Centacare service is unavailable on that day then on the first Saturday or Sunday that the Centacare services are available.
(b)Each alternate Tuesday from 10.00am until 1.00pm at B Street, M, supervised by an employee of Dial an Angel and the expense be met by the parties equally commencing on the first Tuesday following the first weekend pursuant to order 5(a) PROVIDED THAT the father has given the mother seven days written notice of his willingness to exercise this period of time with the child.
(c)On Father’s Day from 3.00pm until 5.00pm at Centacare.
(d)For such alternative or other periods and at such alternative or other place for changeover of care of the child between the parties as they may agree upon in writing from time to time.
(a) That the father spend unsupervised periods of time with the child in accordance with order 6(b), 6(c) and 6(d) at the expiration of no less than 14 days after the father has provided to the mother and the Independent Children’s Lawyer a report from a psychiatrist in accordance with the father’s Undertaking to the Court dated 29 January 2009, varied as follows:-
1.That subject to such services being available through the public heath system the father attend upon a registered psychiatrist (“the psychiatrist”) within 14 days or such later time as the psychiatrist may appoint and provide the psychiatrist with copies of the reports of Associate Professor Q dated 26 September and 17 October 2008 and a copy of the Reasons for Judgment dated 25 February 2009.
2.That the father follow all directions and comply with all recommendations of the psychiatrist in relation to any psychotherapy and comply with all prescribed medicine regimes recommended in consultation with the father’s treating oncologist.
3.That the father obtain a report (“the psychiatrist’s report”) from the psychiatrist addressing the father’s ability to care for the child including a statement that in the opinion of the psychiatrist that the father poses no risk of physical or emotional harm to the child whilst the child is in his father’s care.
4.That the psychiatrist’s report contain an acknowledgement that the psychiatrist has read copies of the reports and the Reasons for Judgment referred to in paragraph 1.
(b)For a period of eight (8) occasions including each alternate Saturday and Sunday from 9.00am until 5.00pm on each of those days with changeover of the care of the child to take place at Centacare or as the parties may otherwise agree in writing and for the purpose of implementing this Order the mother shall deliver the child to the staff at Centacare or at such other agreed alternative place at the commencement of this period and the father shall return him to the staff at Centacare at the conclusion of this period whereupon the mother shall take the child into her care.
(c)Each alternate Tuesday in accordance with Order 5(b) without the need for the attendance of an employee of Dial an Angel or any other person.
(d)On Father’s Day from 9.00pm until 5.00pm with the changeover of the care of the child to take place at Centacare.

Periods of time with the child from his commencement at school in 2011

(a) Supervised periods of time in accordance with 5(a) unless Order 6(a) has been complied with whether prior or subsequent to the child commencing school.
(b)Upon the father having complied with Order 6(a), for the periods referred to in Order 6(b) unless the number of periods referred to in that Order have taken place whether before or after the child has commenced school.
(c)Following compliance with Order 7(b), each alternate weekend commencing Saturday 9.00am until 5.00pm Sunday, the first of such periods shall commence on the Saturday following the expiration of 14 days from the previous weekend day during which the child has spent time with the father and otherwise on condition that the father ensures that the child attends and participates in all sport, extracurricular and social activities which have been organised by the mother for the child and in respect of which the mother has given the father seven (7) days prior written notice.
(d)Upon the father ceasing to have supervised periods of time with the child due to his compliance with Order 6(a) he shall spend periods of time with the child during school holidays represented by one week in each of the school holiday periods following the completion of each school term or such alternative or other periods of time which the parties may agree upon in writing and the commencement of such periods of time with the child shall be in accordance with no less than 28 days written notice provided by the mother to the father and in any event shall commence at 9.00am and conclude at 5.00pm on the first and last days of such periods respectively.
(e)On Father’s Day from 3.00pm until 5.00pm if supervised or from 9.00am until 5.00pm if unsupervised in accordance with these Orders.
(f)That the parties ensure that changeover of the care of the child from one to the other shall take place at Centacare or such other place or places as the parties may agree upon in writing from time to time.
That the father may have telephone communication with the child on a weekly periodic basis upon him complying with Order 6(a) and upon the mother initiating the telephone call to the father to his nominated land-line or mobile telephone number on such days and during such hours as the mother may nominate in writing to the father or as otherwise agreed upon in writing between the parties.
That the parties shall communicate with each other in relation to matters affecting the child as follows unless otherwise agreed upon between them:-
(a)By use of a communication book which the mother shall cause to be provided to the father at the commencement of each period of time that he spends with the child and the father shall cause it to be returned to the mother at the conclusion of each period;
(b)Facsimile transmission or email; and
(c)If urgent, by mobile telephone.
That each of the parties shall ensure that the other is kept informed of his or her current residential address, mobile telephone number, landline telephone number, facsimile number and email address.
That in the event of the child suffering a serious illness or injury whilst in the care of one of the parties then that party shall promptly inform the other party of the detail of such illness or injury and the name, address and telephone number of the relevant medical practitioner or hospital.
That the mother shall ensure that the father is kept informed of all recommendations made by a speech pathologist and/or medical practitioner in relation to the attention that is required to be given by each of the parties to the child to address speech delay and any other health issue and the father shall follow such recommendations throughout the period of time that the child is in his care.
That the father is restrained from making any derogatory comment about the mother, Mr RM, AM or any other relative of the mother, Mr RM or AM to or in the presence or hearing of the child and he shall use his best endeavours to ensure that no other person conducts himself or herself in that fashion.
That the mother be permitted to remove the child from the Commonwealth of Australia for a period of not more than 28 days each year for the purpose of holiday travel provided that the mother has provided to the father in writing the full particulars of the child’s travel itinerary and accommodation and a copy of the tickets for return air travel not less than 14 days prior to the child’s intended departure and in such event, the father shall do all things and sign all documents necessary to permit the child to so travel from the Commonwealth of Australia.
That the child’s name be removed from the Airport Watch List forthwith.
That each of the parties may publish copies of the following documents to such health professionals as he or she may consult:-
(a)The reports of Associate Professor Q dated 26 September and 17 October 2008 respectively.
(b)The Reasons for Judgment given this day.
(c)The Orders made this day.
That the mother may publish the orders made this day to the principal of all schools attended by the child.
That by consent, a Family Consultant nominated by the Manager of Child Dispute Services in the Sydney Registry provide assistance to a party in relation to any of the parenting orders made this day as is reasonably requested by that party pursuant to section 65L(1)(b).
Liberty to apply to seek an Order setting aside, varying or suspending all or any of the parenting Orders made this day upon seven (7) days written notice being given.
That all documents produced on subpoena may be returned to the produced the same.
That the proceedings be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2170 of 2006

MR POTTINGER

Applicant

And

MS BAINTON

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings, each of the parties seeks parenting orders in relation to their child, a son, three years of age, having been born in August 2005 (“the child”).
There is no issue that the mother is the primary carer of the child and that an order be made by consent that the child live with her.
The applicant Mr Pottinger (who for convenience I shall refer to as “the father”) sought orders in accordance with his Amended Application filed 22 December 2008, subsequently further amended unopposed as reflected in the minute of orders sought by him, being Exhibit 15.
The respondent, Ms Bainton (who for convenience I shall refer to as “the mother”) sought orders in accordance with her Amended Response filed 15 January 2009, subsequently further amended unopposed by the minute of orders sought by her at first on an interim basis being Exhibit 6 and then substituted by proposed final orders being Exhibit 8.
The Independent Children’s Lawyer sought Orders in accordance with Exhibit 14.
The principal issues for determination are:-
i.Whether the presumption of equal shared parental responsibility has been rebutted on one or other of the grounds set out in sub-sections (2)(b) and (4) of section 61DA.
ii.In the event that he answer is in the affirmative to (i) above, whether it is in the best interests of the child that there be an order for equal shared parental responsibility as sought by the father, or that the mother have sole parental responsibility.
iii.Whether it is in the best interests of the child that periods of time to be spent by the father with the child be supervised or unsupervised.
iv.Whether there be other terms and conditions attached to the periods of time that the child may be in the care of the father.
There is no issue in principle that it is in the best interests of the child that the father spend periods of time with the child and be able to communicate with him.
The parties cohabited for a period of approximately 3 years which commenced in April 2002 and continued until they separated on 24 February 2005. They have lived separate and apart from each other continuously since that time.
The parties married in January 2004 and that marriage was subsequently dissolved by a Divorce Order made 16 May 2006 which took effect from 17 June 2006.
The father is 67 years of age. He is a retired company director and lives in M.
The mother is 45 years of age. The mother is engaged in home duties and lives with her partner at K in the south coast region. The mother’s partner is Mr RM, 62 years of age. He is a company director. The mother and Mr RM commenced their defacto marriage relationship in about May 2006. The mother had been residing with the child in Mr RM’s property at C Street in M together with Mr RM’s son AM aged 14 years.
The mother, Mr RM and the child relocated to commence living in their current residence at K on 20 October 2006.

Historical Background

The following are relevant orders that have been made in the proceedings.
On 11 January 2006, in the Local Court North Sydney, an Apprehended Violence Order was made against the father for the protection of the mother for a period of 12 months.
On 15 February 2006, Johnston JR ordered that the parties attend mediation. Directions were made.
On 17 February 2006, Johnston JR made interim parenting orders by consent which in substance provided for the father to have increasing periods of time with the child during the week apart from special occasions. Orders were also made, permitting the mother to take the child for a four week holiday overseas on terms that provided for her to lodge $50,000.00 with a firm of lawyers by way of security. In addition, it was ordered that the parties be restrained from taking the child on a boat, except for a ferry, until he is three years of age and thereafter to ensure that he wears an Australian standard approved life-jacket when in a boat; each of the parties have sole parental responsibility for decisions concerning the daily care of the child whilst in that party’s care, each of the parties was restrained from denigrating the other in the presence or hearing of the child. Directions were made.
On 6 February 2007 in the Local Court at Moss Vale an interim Apprehended Violence Order was made against the father for the protection of the mother.
On 7 February 2007 in the Local Court at North Sydney an interim Apprehended Violence Order allegedly was made against the mother for the protection of the father.
On 9 February 2007 in the Federal Magistrates Court, Altobelli FM ordered the parties to complete the intake process at Interrelate, Kirrawee in February 2007. Directions were made.
On 26 February 2007, Altobelli FM made interim parenting orders in relation to the period of time that the father may spend with the child at a contact centre. A Family Report was ordered.
On 24 May 2007 in the Local Court, Moss Vale all pending proceedings for Apprehended Violence Orders were withdrawn.
On 9 August 2007, Altobelli FM made parenting orders which provided for the father to spend periods of time the child each Saturday from 9.00am until 5.00pm; on Tuesday or Thursday each week (the hours were not specified) with terms and conditions in relation to the changeover of the care of the child between the parties. An order was made permitting the mother to travel with the child for fourteen days holiday in South Africa and she was ordered to provide security of $15,000.00 by payment to her solicitors.
On 6 November 2007 in the Local Court, Moss Vale an interim Apprehended Violence Order was made against the father for protection of Mr RM.
On 20 November 2007 in the Local Court, Moss Vale the last mentioned order was varied in that protection was provided to the mother, KM and AM.
On 20 December 2007, Altobelli FM made a parenting order which provided for the father to have supervised periods of time with the child at Centacare. An order was made appointing Associate Professor Q as the single expert witness and requiring her to prepare a written report for the purposes of the proceedings.
On 18 March 2008, Altobelli FM made orders which permitted the mother to travel with the child to Fiji on payment by her of $10,000.00 to a controlled monies account operated by Paltos & Co by way of security and that the periods of time that the father may spend with the child in accordance with the order made 20 December 2007 be varied in that the parties were required to do all things and necessary to increase the frequency from fortnightly to weekly. The proceedings were transferred to this Court.
On 7 April 2008, Le Poer Trench J made directions. The parties were required to consider the availability of Centacare to provided supervised periods of time that the father may spend with the child.
On 5 May 2008, Le Poer Trench J made an order appointing the Independent Children’s Lawyer. Directions were made.
On 17 June 2008, Loughnan JR made orders by consent in relation to the withdrawal by the father of pending Contravention Applications and the father was ordered to pay the mother’s costs of $1,500.00. It was noted that the father consented to the matter proceeding pursuant to Division 12A of Part VII of the Family Law Act.
On 10 September 2008, day 1 of the hearing took place in accordance with the Less Adversarial Trial procedure. Agreement was not reached in relation to any substantive issue. Directions were made.
On 17 October 2008, following the release of two reports by Associate Professor Q and upon hearing the legal representatives for the parties and the Independent Children’s Lawyer, the issues for determination were noted as follows, directions were made and the proceedings set down for continuation of the hearing before me for four days commencing 27 January 2009:
(a)The proposals by each of the parties for the future care of the child.
(b)The period of time that should be spent by the other party with the care of the child.
(c)The time to be spent by the child with the father.
(d)The capacity of the father to care for the child whilst spending time with him.
(e)The conditions under which such time is to occur including:
(i)whether such time is to be supervised;
(ii)whether such time is to be exercised; and
(iii)whether the father is to receive any form of therapy and/or counseling and/or participate in any parenting or other courses in conjunction with or prior to such time.
(f)The father’s physical and mental health.
(g)Whether the father has been verbally abusive, harassing and intimidatory towards the mother and other adults and children in the presence and hearing of the child and:
(i)the impact on the child of that behaviour;
(ii)the impact on the mother of that behaviour; and
(iii)whether such behaviour is likely to continue.
(h)The willingness and ability of the father to comply with parenting orders.
(i)The father’s willingness and capacity to maintain regular time with the child.
(j)The father’s attitude towards the mother, the mother’s partner and other children in a close relationship with the child including:
(i)the involvement of the child in disputes between the father and those persons;
(ii)the denigration of those persons to the child; and
(iii)the undermining of the child’s relationship with those persons.
(k)Whether the parties are able to communicate in relation to the welfare and needs of the child and the impact upon the child’s and mother’s welfare of the communication (or absence thereof) that has occurred to date.
(l)Improved communications between the parties in relation to matters affecting the child.
(m)The arrangements for changeover, including the travel to be done by the child and each of the parties and where changeover is to occur.
(n)Whether the mother is to have the benefit of an order permitting her to remove the child from the jurisdiction for the purpose of holidays and if so the terms and conditions attached to such an order being made.
(o)Whether any order for time is to be made:
(i)on a final or interim basis; and
(ii)in terms that provide for a “progression” and if so, the nature of any progression and the conditions attaching to same.

On 19 December 2008 further directions were made.

Relevant Legal Principles Pursuant To The Family Law Act 1975 As Amended (“The Act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. [emphasis added]
The principles underlying those Objects, in summary, include:
(a)children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration. Findings of fact in that regard are required for the purpose of making a parenting order.
[1] B and B: Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the three children, the subject of these proceedings.[2]
[2] B and B, ibid
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[3]
[3] B and B, ibid

RELEVANT MATTERS PURSUANT TO SECTION 60CC

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[4] The exception is found in section 60CC(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[4] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[5]
[5] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[6]
[6] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.
Expert evidence was given by the independent child expert Associate Professor Q as reflected in her two reports dated 26 September 2008 and 17 October 2008 being Exhibits 4 and 5 respectively as well as her oral evidence. Associate Professor Q’s evidence was given in a detailed, professional and insightful way and I accept it in all respects unless otherwise stated. The weight that I will give to her evidence will have to be considered in the light of other relevant findings of fact and considerations for the purpose of making orders that are in the best interests of the child.

Views expressed by the child and relevant factors

There is no direct evidence of the child’s views due to the child’s very young age and the evidence of speech difficulties in respect of which there is no dispute. It is clear from the evidence of Associate Professor Q, which I accept, that the child has indirectly expressed his desire to spend time with the father. I make a finding accordingly.

The nature of the relationship of the child with each of the parties and any other relevant person

I also accept the evidence of Associate Professor Q as set out in Exhibit 4 that the child “has a strong bond with both parents and also with his step-father and step brother”. Those two people are Mr RM and his son AM. Associate Professor Q also gave evidence of the manner in which the father related to the child, to which I will subsequently refer.

Family violence and any family violence orders

There have been a number of family violence orders to which I have earlier referred.
The mother alleges that subsequent to the separation of the parties the father has on numerous occasions harassed her by at times being verbally abusive and otherwise engaged in intimidating conduct. The mother further alleges that on many of those occasions such actions by the father have taken place in the presence of the child.
The father, for his part, alleges violent conduct by the mother and Mr RM towards him.
I do not propose to analyse the evidence in relation to each of the numerous incidents alleged. Rather I will refer to what appeared to me to be the most significant of such allegations. Findings of fact will be made by me.[7]
[7] Whisprun Pty Limited v Dixon [2003] HCA 48; (2003) 200 ALR 447 at 464 per Gleeson CJ, McHugh and Gummow JJ.
At the time of separation of the parties, which occurred on 24 February 2005, the mother was about twelve weeks pregnant with the child. The mother claims that during the following period of about two months, she repeatedly received voice messages from the father at times on a daily basis including that he had reported to the police that the mother stole the car that she was using and had been using prior to separation and she was driving that car which was unregistered. The mother claims that notwithstanding that allegation, the father removed her motor vehicle while she was in a café with a friend. The mother states that the motor vehicle was her only mode of transport which she needed, amongst other things, to attend medical appointments. The mother became distressed, ran after the motor vehicle and ultimately the father came to a halt. The mother alleges that the father assaulted her in the motor vehicle.
The mother also alleges that in the period between the separation of the parties and the birth of the child the father drove alongside the mother while she was driving her motor vehicle and followed her for several minutes causing her to be apprehensive in relation to her safety.
The father visited the mother in hospital the day the child was born. Whilst at the hospital on that day the father verbally abused her. The mother then received hospital care due to her becoming upset and the effect that had on her blood pressure. A few days later, the father again attended the hospital and allegedly whilst holding the child verbally abused the mother as well as making derogatory remarks about Mr RM.
The mother alleges that during the rest of 2005, the father engaged in further harassment of her. That included making derogatory comments about AM, who at times was in the care of the mother on occasions of changeover. Such comments included “I do not want that retard in my car.” Other instances of the father’s verbal abuse included derogatory comments about Mr RM, abusive telephone messages and threats to her safety such as “No matter where you are living you will have to look over your shoulder” and future intended harassment such as “I am on a mission to destroy you and make your life miserable.”
The mother alleges that on 19 December 2005 at M and while she was putting the child in his baby seat in the rear of the motor vehicle that she was driving, the father approached her with clenched fists, opened the car door, leant into the car, made threatening gestures and repeatedly shouted at her “You fucking slut. You’re no mother. You slut.” He then slammed the door, spat on the windscreen of the mother’s motor vehicle, walked away and then drove off. The child was upset and crying. The mother reported the incident to the police.
The mother alleges that during 2006 the father continued his verbal abuse and intimidatory conduct towards her.
The mother contends that on 26 December 2006 as she was in the process of handing over the child to the father for his care that day, and after he made reference to a fatality in a motor vehicle accident that morning, he moved closer towards the mother and the child and then said to her “Well, what a pity it was not you that was killed this morning.” He the proceeded to state “I cannot wait for the day that that ugly man and you wrap yourselves around a tree one day.” The mother assumed he was referring to Mr RM.
On 2 January 2007, shortly after the mother handed over the child to the father at McDonald’s, he allegedly said to her “Do yourself a favour and run yourself off the road on the way home.”
On 11 January 2007, the father allegedly made a threat of informing the Department of Community Services that the mother was “an abusive mother.”
On 15 January 2007, during the course of an argument between the parties, the father allegedly clenched his fists and said to her, amongst other things, “All of my friends think you are a slut and they do not want to know you anymore. You are a slut like his ex-wife.” Then by reference to both the mother and Mr RM, the father allegedly said to the mother:-
“You are a gold digger and my ex-wives think the same thing. You live with two animals and they better not touch my child otherwise their day will come. The AVO is no longer in place. I can do what I like. I know what buttons to push with that revolting man and he will not be able to hold back, he will assault me and I will get him on an assault charge.”
The references made to “two animals” implicitly refer to Mr RM and AM. Whilst these statements were made the child was in the mother’s arms. He was upset and distressed.
On 18 January 2007, whilst the mother was attempting to move the child into the care of the father and the child was crying, upset and holding onto the mother’s clothing, the father became annoyed and said to the mother “I am instructed to take the child whether he is screaming or not, it is my right to see him. It is you that is not allowing me to see [the child].” The father then allegedly “wrenched” the child from the mother.
On 22 January 2007, the scale of difficulties that had arisen between the parties in terms of moving a crying child from the care of the mother to the father had reached such a level that a male driver, whilst in his motor vehicle, said to the father that he should calm down and not be shouting. The father allegedly responded to that driver by saying “It is all her fault. She has my $300,000.00. Tell her to give it back.”
On 24 May 2007, whilst the mother with her father were outside the Local Court and following the conclusion of Apprehended Violence Proceedings resolved on mutual undertakings, the father shouted to the mother “You filthy slut.”
On 30 September 2007, during the course of a telephone conversation between the parties, the father said to the mother “I will destroy that man and by the time [the child\ is 4 years old he will learn how to hate that man as much as I do.” Implicitly, the reference to the “man” was a reference to Mr RM. The mother replied “That is an awful thing to do, to poison his mind at such a young age.” The father then allegedly replied “By the age of 4, he will know.”
The father has allegedly referred to Mr RM as “the animal” and “snake” in the course of making comments to the mother.
On 11 October 2007, after the child moved into the care of the father’s nominee for the purpose of the child spending time with the father, the father crossed the road with the child in front of the mother in her motor vehicle and shouted at her.
By letter dated 3 November 2007, sent by the mother to the father by facsimile transmission on that day, in which she explained that she had been ill with a “24 hour stomach bug” and that the child possibly had “picked this up too,” the father responded in writing with the remark “I hope you die with the bug ASAP.”
During the course of his cross-examination, the father made the following admissions:-
i.With regard to incidents that occurred between the parties and/or Mr RM at times of changeover whereby the child moved from the care of one of the parties to the other, the father’s conduct was “not my normal self – a fit of anger.”
ii.He has called the mother “a slut”, “a whore”, and “a gold-digger” in the presence of the child.
iii.He has referred to AM as “an autistic retard.” That was said by him on two occasions and he is now sorry that he made those remarks.
iv.He has said to the mother “I will destroy that man, he will [by reference to the child] learn to dislike that man.” That remark was made in the presence of the child.
v.He did say to the mother that “I hope you get a bug and die.” He could not recall if the child was present.
vi.He did say in the presence of the child, implicitly referring to the mother, that “she spends a lot of time on her back.” He said that he was conveying that she had a relationship of money with her partner.
vii.He gave evidence that he was not in a rage when he made the comments to or about the mother the subject of the above sub-paragraphs as he considered that he made statements that he thought were appropriate at the time.
viii.During the course of a meeting early in January 2009 between the parties, MR RM and one of the father’s sons, he described or held a view (his evidence was unclear) that AM was “an autistic retard.” He claims that he was provoked into making such a comment by Mr RM.
The mother was cross-examined. Her evidence was not shaken in relation to the substance of her allegations of family violence and/or verbal abuse which emanated from the father to her and/or Mr RM.
I prefer the evidence of the mother over that of the father wherever their evidence conflicts in relation to the allegations of his alleged violent and/or abusive behaviour. The mother gave her evidence during the course of cross-examination in a consistent and detailed fashion which was not departed from so far as its substance was concerned. The father on the other hand made admissions to which I have referred and otherwise sought to blame Mr RM and/or the mother for his unacceptable conduct.
The father alleged that on 22 January 2007, during the course of an argument between the parties whilst he was trying to lift the child from the mother, the mother swung her arm around whilst holding the child and hit the father with an open hand on his cheek. The child began to cry. A bystander sought to conciliate between the parties.
The father reported to the police the incident of the mother allegedly hitting him on 22 January 2007. A summons for an Apprehended Violence Order was issued and an interim order was allegedly made against the mother on 7 February 2007 in the Local Court, North Sydney, on an undefended basis in the absence of appearance by the mother. On 24 May 2007, the parties appeared in the Local Court, Moss Vale, and ultimately the pending Apprehended Violence Order proceedings brought against each of them were withdrawn.
During the course of cross-examination, the father reiterated that the mother swung her arm and hit him on the side of the face.
The affidavit evidence of the mother is that on the 22 January 2007, the father was abusive towards her, pushed her left shoulder with his right hand and attempted to pull the child away from the mother with his left hand. The child became upset. The mother called for help. A bystander intervened. The mother ultimately reported the incident to police at K Police Station.
The mother further alleges that on 7 February 2007, she was served with a complaint and summons in proceedings for an Apprehended Violence Order based on a complaint by the father. The mother states that she did not appear at the Local Court at North Sydney on 7 February 2007 being the return date of the summons as that was the day that she was actually served with it. The mother was subsequently informed that the matter was adjourned to 13 February 2007. On 13 February 2007, the proceedings were transferred to be heard simultaneously with proceedings with the father listed for hearing on 24 May 2007 at the Local Court, Moss Vale.
The mother was not cross-examined in relation to the incident on 22 January 2007.
Whilst Annexure “R” to the affidavit of the father sworn 22 December 2008 annexes copies of the complaint and summons issued against the mother, a copy of the interim Apprehended Violence Order alleged to have been made against the mother on 7 February 2007 is not annexed to that affidavit. That is a curious omission given that copies of Apprehended Violence Orders made on other dates are annexed.
It is common ground that proceedings for an Apprehended Violence Order were instituted against the mother on complaint of the father and that ultimately those proceedings were adjourned to 13 February 2007 and then again to 24 May 2007 in the Local Court, Moss Vale.
I accept the mother’s evidence that the circumstances of her non-appearance in the Local Court on 7 February 2007 were that she was only served with the complaint and summons on that day and implicitly had insufficient time to attend court. The lack of evidence of all of that Court’s relevant records does not enable me to make a finding in that respect or that an interim order was in fact made.
Given the state of the evidence of each of the parties in relation to the incident between them on 22 January 2007 and the lack of any exploration of it in any depth during the course of cross-examination of each of them, I am not satisfied on the balance of probabilities that the father was in fact assaulted by the mother as he has alleged. I am reinforced in that conclusion given the admissions made by the father as to his anger on a number of occasions of changeover of the care of the child between the parties.

The father alleges that on 29 August 2007 he was assaulted by Mr RM. He reported the matter to the police. A medical certificate and photograph are annexed to his affidavit. The medical certificate implicitly provides a history given by the father. The father does not allege that proceedings for an Apprehended Domestic Violence Order were instituted, let alone that an interim or final order was made against Mr RM. Rather, the father annexes to his affidavit a copy of an Interim Apprehended Violence Order made on 6 November 2007 in the Local Court, Moss Vale, in which the protected person is Mr RM and the defendant is the father. In the affidavit of Mr RM sworn on 19 December 2008 he denies that he assaulted the father. He alleges that the father was verbally abusive to him. Mr RM contends that he and two others reported the incident to the police and made statements. Neither the father nor Mr RM were cross-examined in relation to this incident. In those circumstances I am not satisfied on the balance of probabilities that the father was assaulted as alleged.

The capacity of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

There is no controversy that the mother has the capacity to provide for the child’s physical and intellectual needs. Associate Professor Q’s opinion that the child has speech delay is not doubted on the evidence before me. I find that the mother has been doing all that she can to assist the child in overcoming that problem.
So far as the mother’s capacity to provide for the child’s emotional needs are concerned, the father’s case is that she has been obstructive from time to time in his aim of ensuring that the child spends time with the father so that the child’s relationship with him will continue to be strengthened. The mother has supported the child spending time with the father. However, there is an issue regarding the terms and conditions upon which that such time should be spent. That is a matter to which I will subsequently refer.
At the time when the parties separated, the mother was approximately 12 weeks pregnant. Immediately prior and subsequent to that separation there have been increasing conflicts between the parties and especially once the mother commenced living in an intimate relationship with Mr RM and since the birth of the child. There have been a number of incidents between the parties which are the subject of my summary of evidence and findings so far as family violence and harassment of the mother by the father are concerned. The father has had supervised periods of care of the child for two hours each alternate Saturday at Centacare since February 2008. Under those circumstances, it is not surprising that there have not been any further incidents of concern as between the parties.
In light of those findings and my impression of the parties having regard to the substance of their oral evidence and the manner in which it was given I accept the mother’s case that she has been willing at all times to promote the relationship between the child and the father for the purposes of satisfying the child’s emotional needs in difficult circumstances and increasingly on a restrictive basis in accordance with interim parenting orders.
So far as the father is concerned, an issue arises in relation to his capacity to provide for the child’s physical, emotional and intellectual needs. So far as the child’s physical needs are concerned, the mother raises the problem of child safety as she sees it due to the internal flights of stairs in the father’s home and the width of the balustrades. This particular aspect of the matter was not explored during the course of oral evidence. However, I accept the tenor of the evidence of the father that he is focused on the safety of the child in all circumstances.
The father’s capacity to provide for the child’s emotional needs is one of the principal factual issues in these proceedings.
In Exhibit 4, Associate Professor Q made the following relevant observations:-
“[The father] was very affectionate and responsive but it was soon apparent that he was not able to cope at all with [the child’s] speech difficulties and there was huge difficulties with communication. [The child] tried his best to communicate and mostly [the father] looked and said how helpless he felt. He was unable to engage the child more productively.”
Associate Professor Q observed the father’s apparent helplessness in responding to the child’s comments and to use play equipment provided. Associate Professor Q further observed “It was apparent that his repertoire for relating to the child is extremely limited and relies heavily on his own interests and abilities.”
In Exhibit 4, Associate Professor Q provided the following summation:-
“At this assessment it was apparent that the father’s parenting capacity is extremely limited. He could not respond to the child cues and seemed quite helpless to distract or to entertain [the child].”
With reference to the father’s assertion that he was very involved with his older children when they were young, Associate Professor Q expressed the view that “It may be that his current difficulties are reflective of his very distressed state of mind.”
I accept Associate Professor Q’s evidence, and make findings accordingly which are tantamount to the father having a significantly limited capacity to provide for the child’s emotional needs. Given the child’s speech delay problems, there is an obvious relationship between the child’s emotional needs and that factor. Accordingly, it may follow that the father also has a limited ability to deal with the child’s intellectual needs.
The father’s capacity to provide for the child’s emotional needs is also significantly limited due to his ongoing, at times uncontrolled, bitterness and anger at the breakdown of the relationship with the mother, to which he has given vent in his comments to or about her and Mr RM, often in the presence of the child. His past derogatory comments about AM, a young teenage boy, have been reprehensible.

The parental attitude of the parties

There is no issue that the mother has a loving attitude to the child and has good parenting skills. Indeed, that was conceded by the father in his oral evidence.
I further find that the mother has supported the child in all aspects of his development, and that he has also received the benefit of appropriate financial support from her and Mr RM.
My findings in relation to each of the parties capacity to provide for the child’s physical, emotional and intellectual needs are relevant and do not require reiteration.
Whilst the father loves the child, his financial support for the child has been minimal. He pays the sum of approximately $26.00 per month for child support.
My subsequent findings in relation to issues of family violence and verbal abuse, particularly so far as the father is concerned and poor communication between the parties are relevant to the father’s parental attitude given that much of his conduct occurred in the presence or hearing of the child.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent

The father does have a willingness and ability to facilitate and encourage the type of relationship referred to between the child and the mother in that there is no issue that the child should continue to live with the mother and be primarily parented by her.
However, his conduct to the mother and the verbal abuse that he has engaged in, the subject of my findings so far as family violence and harassment are concerned, make it clear that at least since the birth of the child that type of behaviour and abuse is hardly conducive to maintaining a close relationship between the child and the mother in the sense of being a relaxed one free of trauma and stress when the parties happen to meet or after.
The father claims that he had overcome the anger that caused him to conduct himself in that way and has “moved on”. I am not satisfied that that is in fact the case. I accept the evidence in Exhibit 4 that the father:-
“is quite unresolved about the loss of his relationship with [the mother] and has been unable to move past his hurt and regret and disappointment that the relationship ended. He is having great difficulty prioritising the needs of the child over his own feelings of hurt and anger. His current mental state is of some concern since his unresolved feelings colour his reactions and limit his ability to prioritise the needs of the child.”
The mother has shown an appropriate willingness and ability to facilitate and encourage the appropriate relationship between the child and the father in the face of his unprovoked and repeated offensive behaviour at times in the presence of the child.
The mother does qualify her approach to the issue of time to be spent by the child with the father by seeking to impose terms and conditions centred upon the use of contact changeover places, supervision and the provision of a psychiatrist report that the father is capable of caring for the child without making derogatory comments about the mother and/or her partner, Mr RM and/or AM, to or in the presence or hearing of the child. The mother also expressed concern that the father may harm the child as a means of “getting back” at her. So far as that last matter is concerned, I am satisfied that the evidence does not support a finding that that is likely to occur.

The maturity, sex, lifestyle and background (including culture and traditions) of the child

The only relevant matters are that the child appears to have the maturity commensurate with his age. I accept the opinion expressed by Associate Professor Q in Exhibit 4 that the child is “boisterous and confident” with “obvious speech delays.”

The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There is obvious practical difficulty in arrangements that will promote the periods of time to be spent by the child in the care of the father subject to the best interests of the child.
That practical difficulty emanates from the considerable distance between the residences of the father and the mother which are in Sydney and the south coast area respectively. The evidence of the father is that it takes approximately 1 to 1½ hours from the mother’s residence to Kirrawee or Campbelltown and a further 1 to 1½ hours from either of those places to the father’s residence. Accordingly, in the event of the child being able to spend time with the father at his home in M, then allowing for changeover at a contact centre, the travelling time in one day for the child will be approximately 2½ to 3 hours assuming that he is able to stay overnight with the father at his home in M.
The additional issues that impact upon the practicability of travel between the residences of the parties are the very young age of the child who it could be reasonably expected may tire easily with such travel and the effect upon the father who is being treated for prostate cancer and lengthy travel is tiring for him.
The evidence of the mother is that return travel for the child in one day between K and M is tiring for him. The mother considers that the child is not ready yet to spend overnight with the father although that point may be reached perhaps in 12 months and provided that the father is more capable of caring for him in all respects. The evidence of the mother and Mr RM is that his daughter and her family reside in the C Street, M, property.
Neither party gave evidence that the expense of travel was an issue.

The likely effect of any changes in the child’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the child has been living

There is no issue that the child should spend regular periods of time in the care of the father as implicitly it is in the child’s best interests to do so.
As has been emphasised in this judgment, amongst the principal issues for determination are whether such periods of time should be supervised or not and any other terms and conditions which should apply in the best interests of the child.
It is common ground that the child has been in the care of the mother throughout his life, subject to relatively short periods of time which do not include overnight that he has spent in the care of the father. I accept the evidence of Associate Professor Q that the father has serious mental health issues which should be overcome by him receiving appropriate psychiatric treatment including therapy and if necessary, medication. Her evidence also is that there should be a graduated pattern that the child spend with the father including overnight periods, although not necessarily at the commencement of that regime. Implicitly, to do otherwise would not be in the child’s best interests.
I find that there is likely to be a beneficial effect for the child of changes in his circumstances such that there be a regime implemented of increasing periods of time that the child is in the father’s care, subject to my findings and conclusion in relation to whether or not any of those periods of time be supervised and other relevant terms and conditions that should be imposed by way of parenting orders. In that regard, section 60CA makes it clear that a parenting order should only be made if it is in the best interests of the child to do so and that that is the paramount consideration. For that purpose, I will give consideration to my findings of fact of all relevant matters which are not limited to the evidence of Associate Professor Q.

The extent to which each of the parties has fulfilled or failed to fulfil parental responsibilities by each of the parties in relation to major long-term issues, spending time and communicating with the child

The mother has fulfilled all of the requisite parental responsibilities. The mother has been the daily carer of the child since he was born, other than for relatively short periods of time that the child has been in the care of the father pursuant to either the parties own arrangements or interim orders.
The mother has provided the financial support of the child given the small amount of child support that has been paid by the father.
Communication between the parties has been poor since the child’s birth. The difficulties experienced in that regard the subject of earlier findings have been contributed to and exacerbated by the father’s abusive conduct earlier referred to in this judgment. The mother’s unilateral decision to move with her partner Mr RM to live in K, whilst ideally should have been the subject of constructive discussion between her and the father before it took place, realistically that was unlikely to have occurred given the strength of animosity that the father had been displaying to both the mother and Mr RM.

The preference for an order least likely to lead to the institution of further proceedings in relation to the child

There were scant submissions made in relation to this matter. That is understandable given poor communication between the parties and continued parental conflict.
The reality is that there is not one order least likely to lead to the institution of further proceedings as opposed to a different order, as whatever the terms of the orders are there will continue to be significant potential for further parenting proceedings to be instituted. That is underpinned by the lack of goodwill between the parties, the mother’s deep anxiety and lack of confidence in the father’s parenting skills and his limited capacity to avoid further verbal abusive outbursts to or about her or Mr RM and the father’s bitterness and anger towards the mother and Mr RM.

Other relevant matters

The father has been in ill health. He is due to have further treatment for prostate cancer this month including chemotherapy. There is no evidence from his oncologist other than a short report more than two years old. In the absence of evidence that the father is likely to be hospitalised for any considerable period in the immediate or near future or that his treatment is likely to disable him for a considerable period, I infer that he will be able to continue to lead an independent lifestyle, albeit attendant with tiredness and undoubtedly side effects from chemotherapy. The evidence does not permit any further findings to be made in that regard.
The father seeks to have orders made which would impose terms and conditions on the mother being able to travel with the child overseas and in particular to South Africa. The affidavit evidence of the father sets out the basis of his case in relation to this matter. He refers to the mother’s father living in South Africa, and that the mother does not have family members living in Australia. He states his understanding that the mother may wish to take the child to see his grandfather in South Africa for a holiday. He expresses a concern, that in the event of a breakdown in the relationship between the mother and MR RM, that the mother may desire to return to live in South Africa. He further states that South Africa is “not a Hague Convention country”. In those circumstances, he seeks that there be a condition imposed in the event that the mother seeks an Order for permission to take the child to South Africa, namely that the mother lodge a bond in the sum of $100,000 to ensure the child’s return to Australia.
During the course of the hearing I pointed out to counsel for the father that it appeared that the father was incorrectly informed that South Africa is not a signatory to the Hague Convention[8] as it has been such a such a signatory for many years. That was agreed. The father stated in his oral evidence that he nonetheless sought that the mother be required to provide security for the return of the child to Australia in the event an order was made permitting her to travel with the child to South Africa, to eventually live there, or indeed, anywhere else. His further evidence was that after the child was born and following her travel with him to South Africa, the mother had said to the father that “my money would buy me a nice house with a swimming pool.” Nothing further was said by her in that regard. That statement was apparently made prior to the establishment of the current relationship between the mother and Mr RM. The father conceded that subsequently the mother has travelled with the child overseas on more than one occasion and adhered to the timetable that she provided.
[8] Hague Convention on the Civil Aspects of International Child Abduction 1980
The evidence of the mother is that she did indeed travel with the child to South Africa in April 2006. The mother states in making the above mentioned comments to the father she was merely pointing out the cost of property in South Africa.
I find that the mother has travelled with the child overseas and fully complied with the terms of the orders made 17 February 2006, 9 August 2007 and 18 March 2008. I further find that I am not satisfied that the mother is likely to travel with the child overseas on a permanent basis having regard to the evidence before me, including her settled life with her partner Mr RM. In addition, for the reasons explained, one of the basis of the father’s opposition to the mother travelling with the child overseas, namely that South Africa is not a signatory to the Hague Convention, is erroneous.

Conclusion

Exhibit 14 sets out the orders set out by the Independent Children’s Lawyer. As is apparent from the submissions made by counsel and by reference to the final orders sought by the father and the mother being Exhibits 7 and 15 (father) and 8 (mother) respectively, it was made clear to me that certain orders sought by the Independent Children’s Lawyer could be made by consent. That includes, but is not limited to an order that the child live with the mother.

In relation to the issue of whether the presumption of equal shared parental responsibility in accordance with section 61DA has been rebutted and, if so, whether an order should be made nonetheless that the parties have equal shared parental responsibility, it was submitted on behalf of the Independent Children’s Lawyer and the mother that the presumption had been rebutted and that an order for sole parental responsibility should be made in favour of the mother.
The case for the father is that the presumption has not been rebutted and in any event it is in the best interests of the child that an order be made that the parties have equal shared parental responsibility for the child. The submissions made on behalf of the Independent Children’s Lawyer rely upon the “best interests” ground contained in section 61DA(4). It is submitted that the parties have “appalling communication” which has been the position since the child was born. In addition, the mother has been the primary carer of the child throughout his life, the child has benefited from the parenting provided by the mother and implicitly future decision making with respect to the major long term issues for the child as defined in section 4(1) are unlikely to be agreed upon between parties in a constructive child focused way due to a combination of poor communication, lack of trust and the father’s likely ongoing resentment of the mother and Mr RM.
The submissions made on behalf of the mother support the submissions made on behalf of the Independent Children’s Lawyer and in addition referred to the father’s apparent lack of commitment to the payment of reasonable child support demonstrated by outstanding arrears and the low level of child support provided by him, notwithstanding that it is in accordance with the child support assessment which stands in contrast to his financial resources. That child support is approximately $26.00 per month or the equivalent of $6.00 per week. In addition, counsel’s submissions were directed to and rely upon prospective findings of the father’s violent and verbally abusive conduct towards the mother.
The submissions made on behalf of the father are that the ground has not been established. With regard to historical poor communication between the parties, it was submitted that during the past 15 months approximately, the father has not conducted himself to the mother or Mr RM in a way which should be criticised and indeed “has not done anything which is not in the child’s best interests.” In addition, the father proposes child changeovers to take place at the Sydney Children’s Contact Centre Redfern, with a progressive regime of periods of time to be spent by the child with the father thereby avoiding difficulties which might arise through direct meeting of the parties and at the same time representing a child-focused approach to future periods of time that the child would be in his care.
I accept the submissions made on behalf of the Independent Children’s Lawyer and the mother that the presumption is rebutted due to the establishment of the ground in section 61DA(4) and having regard to the discretion which I should exercise in that respect. I find that it is in the best interests of the child that the presumption be rebutted due to a combination of the historically poor communication between the parties with little prospect of significant improvement in the foreseeable future, the inherent difficulties that that will create in terms of joint decision making on major long-term issues underscored by the father’s deep seated antipathy towards the mother and Mr RM, the mother having carried out sole parental responsibility for the child since his birth in ways that have been for the child’s benefit and that the mother has ensured that the child has been provided with all necessary financial support with little contribution by the father or, indeed any proposal by him for an improved level of such financial support in the future.
The alternative ground contained in section 61DA(2)(b) has also been established to my satisfaction. I have made findings of family violence perpetrated by the father towards the mother which of course lead me to be satisfied that “there are reasonable grounds” for the belief in accordance with the provisions of that subsection. There is no need for me to further analyse the definition of “family violence” in section 4(1) in the absence of any submissions made in that respect.
I do accept the submissions made on behalf of the Independent Children’s Lawyer that the orders sought in paragraph 2 of Exhibit 14 should be made in the child’s best interests as the father needs to be given the opportunity to participate in a constructive and child-focused way with the mother prior to decisions being made by her about major long-term issues in relation to the child, as that will be potentially for the child’s benefit and perhaps allay some of the father’s resentment towards the mother which also can only be in the child’s best interest. However, the ultimate decision making will be in the hands of the mother.
As earlier stated in this judgment, there is no issue that it is in the best interests of the child that an order be made that the father spend periods of time with him. The substantive issues that arise for determination in that regard are whether or not those periods be supervised, the duration of such periods and whether there be other terms and conditions imposed. Practical features of the evidence that I must give consideration to are the considerable travel time involved between the residences of the parties, the tiring effects upon the child at least in the immediate future of such travel having regard to his very young age and the tiredness that the father is likely to experience given the current uncertain state of his health. There does not appear to be any dispute that an order should be made which requires the parties to utilise a contact centre for the purpose of changeover of the care of the child from one party to the other, or to tailor an order for an alternative neutral place or mechanism for which would have the result of the parties not having to be in contact on a face to face basis at least for the foreseeable future, unless of course, circumstances require such a meeting or that the parties otherwise agree.
I have determined that it is in the best interests of the child to make orders that provide for the father to have supervised periods of time with him progressing to unsupervised periods after provision of a psychiatrist report in accordance with the substance of the father’s undertaking to the Court, being Exhibit 17 in the following terms:-
“1.That subject to such services being available through the public heath system the father attend upon a registered psychiatrist (“the psychiatrist”) within 14 days or such later time as the psychiatrist may appoint and provide the psychiatrist with copies of the reports of Associate Professor [Q] dated 26 September and 17 October 2008.
2.That the father follow all directions and comply with all recommendations of the psychiatrist in relation to any psychotherapy and comply with all prescribed medicine regimes recommended in consultation with the father’s treating oncologist.
3.That the father obtain a report (“the psychiatrist’s report”) from the psychiatrist addressing the father’s ability to care for [the child] including a statement that in the opinion of the psychiatrist that the father poses no risk of physical or emotional harm to [the child] whilst the child is in his father’s care and provide a copy thereof to the Independent Children’s Lawyer in relation to the father’s progress and compliance.”
Those Orders, for the reasons subsequently given, will enable the child to have the benefit of a meaningful relationship with each of the parties. Supervised periods of time on terms and conditions are likely to result in the child not being exposed to family violence and verbal abuse by the father directed to or about the mother.
The father has been consumed by anger and bitterness towards the mother since the birth of the child. His anger has also been directed to Mr RM, especially since the mother and Mr RM have been living at his property at K in the south coast area. The strength of the father’s feelings have been demonstrated on numerous occasions by his aggressive actions and verbal abuse, the subject of my earlier findings. The father has made derisive comments about AM, the young teenage son of Mr RM which are inexcusable. The father gave frank evidence that at times his verbal abuse of the mother and his manner of directing it towards Mr RM, sometimes in the presence of the child, was not during the course of him being in a rage, but were considered statements that he thought appropriate at the time. As such, that demonstrated his preoccupation with the mother and the cessation of his previous relationship with her, the depth of his anger and bitterness and lack of sensitivity to the effect that his abusive conduct may have upon a very young child, let alone the effect of the distress that he was causing to the mother. Indeed, there have been instances when the father considered it appropriate to give vent to strident verbal abuse of her and/or Mr RM in public and to members of the public, whether the child was present or not.
It was submitted on behalf of the father that during the last 15 months approximately, he has not conducted himself to or in the presence of the mother and/or child in the violent and/or abusive fashion to which I have referred and which occurred to the commencement of that time. On the evidence before me that appears to be correct, subject to the following qualifications. The period of approximately 15 months to which counsel referred has coincided with the father being limited to exercising supervised periods of time at a contact centre without the parties meeting face to face. The father in his affidavit sworn 22 December 2008 professed to “now understand the hurt I must have caused to [Mr RM], his former wife [KM] and [the mother] and [AM] in relation to my derogatory comment about [AM]. I will not engage in that behaviour again.” He also stated his understanding that it was not in the child’s best interest for the parties to have poor communication, that he was willing to try to improve his communication with the mother and he recognised unspecified “mistakes” in past written communication with her. No evidence was given as to why it took until 22 December 2008 for him to have the understanding that he claims he had. I consider it notable that his claim to understanding and acknowledgment of mistakes to which I have referred were not expressed in wider terms to include his verbally abusive and derogatory comments about the mother and Mr RM beyond the very limited expressions contained in paragraphs 105 to 107 inclusive of that affidavit. The father voluntarily attended a local community health centre. He stated that he did so in order to follow the recommendations of Associate Professor Q so that he could receive the benefit of psychiatric consultations. He had an interview with a person who he thought was a psychiatrist. He did not make personal enquiries as to her actual qualifications and experience. He saw the word “psychiatrist” on a door and assumed that the person who interviewed him was a psychiatrist. No treatment was prescribed or recommended, therapeutic or otherwise. The undisputed evidence in these proceedings is that the person concerned was a nurse. The father did not take with him a copy of Exhibits 4 and/or 5. It is understandable that he did not do so given that an order had not been made allowing the publication of both or either of the relevant reports by Associate Professor Q. Curiously, no application was made for the appropriate publication order. Presumably, the father’s solicitors did not receive the necessary instructions. The reason why such instructions were not provided is not the subject of evidence. In any event, the father considered that the consultation that he had should be for the purpose of benefiting him up to this month being the conclusion of the hearing which took place before me in the last week of January 2009. It is clear on that evidence that he either did not understand the recommendations made by Associate Professor Q, or he had decided not to follow them as perhaps he did not think it was necessary to do so.
In Exhibit 4, Associate Professor Q states her opinion that “until the father’s mental state improves so that he can let go of his preoccupation with the mother and begin to focus more appropriately on the child, there is limited benefit in him having substantial time with [the child].” (emphasis added)
In Exhibit 4, Associate Professor Q also provides the following diagnosis:-
“The father is agitated and depressed and feels greatly traumatised by the loss of the relationship with [the mother]. In effect he presents as with unresolved grief; he is intensely preoccupied with the relationship and is unable to move on and to come to terms with this loss. In psychiatric terms he is suffering from an adjustment disorder with mixed features of depression and anxiety and behavioural disturbance.” (emphasis added)
Associate Professor Q also raises the possibility that for the reasons stated by her it may be that the father suffers from a cluster B type personality disorder with “borderline and narcissistic features. In particular the volatility of the former and the lack of empathy of the latter are in evidence in [the father].”
In Exhibit 5, Associate Professor Q gave her opinion that the father “requires a combination of medication plus counselling or psychotherapy and so it may be simpler for him to attend upon a psychiatrist who can provide both.” Associate Professor Q proceeded to emphasise in Exhibit 5 that “in my view [the father] has significant personality disturbance which requires therapy with an expert psychotherapist; simply post-separation counselling would not be sufficient to address his difficulties.” (emphasis added)
The balance of Exhibit 5 emphasised aspects of the opinions to which I have referred. Associate Professor Q’s oral evidence re-expressed those opinions without qualification.
Notwithstanding the qualified expressions of acknowledgement of the effect of his past behaviour referred to by the father in his affidavit sworn 22 December 2008 referred to in paragraph 135 hereof, within a period of about two or three weeks he again directed his abusive comments to Mr RM in the presence of the mother to which I have referred by way of summary in paragraph 69(viii) hereof. I have preferred the evidence of the mother to that of the father who had put forward his mantra that he was again provoked. In those circumstances and having regard to the underlying causes of his unacceptable conduct reflected in the diagnosis given by Associate Professor Q and the need for him to undergo suitable treatment and therapy I do not attach weight to the oral evidence given by Associate Professor Q, towards the conclusion of her oral evidence, that future periods of time that the father may have the child in his care no longer require supervision.
My conclusion in that regard is based not only on the father’s behaviour early in January 2009 to which I have referred coming so close as it does after his expressions of acknowledgment and understanding in his affidavit to which I have made reference and the psychiatric causes of his uncontrolled anger at times, but also the following additional matters.
I accept the submission made on behalf of the mother that the very fact that there have been supervised periods of time for the past 15 months has meant that there has not been an opportunity for the father to conduct himself in a way which was not in the best interests of the child. In addition, I have also given significant weight to what I find to be the mother’s genuine deep anxiety and concern that the father is likely to resume making abusive comments about her and/or Mr RM and/or AM to or in the presence or hearing of the child including possibly in public as he has done in the past. Such potential conduct I have found to be an indicia of the father’s limited capacity to provide for the child’s emotional needs. It is understandable that the mother should hold such a degree of anxiety and concern in view of the father’s violent and/or abusive conduct which has occurred literally since the day that the child was born until the commencement of supervised periods of time approximately 15 months ago. The underlying causes of his conduct need to be addressed. The concern of the mother that there should be a psychiatric report provided demonstrating an appropriate level of improvement in the father’s mental state I find to be reasonable in all the circumstances.
Indeed, the father himself has given an undertaking to the Court to seek and become engaged in psychiatric therapy with provision of a report in the terms set forth in Exhibit 17 to which earlier reference has been made. In those circumstances the alleviation of the mother’s anxiety must inevitably enable her to provide parenting for the child free from the detrimental effects upon her of such anxiety referred to in her evidence and that can only be in the best interests of the child.
The principle in that regard is the subject of a number of Full Court Judgments over the years which not only reaffirmed it but considered it in a variety of different factual contexts.[9]
[9] R & C (Appeal SA 45 of 1992 dated 25 June 1993 unreported; followed in Re Andrew (1996) FLC 92-692 headnote 1 )
Given that the father has voluntarily made the commitment for therapy and report, it may well be that the report, the subject of his undertaking, will be forthcoming sooner rather than later resulting in a transition from supervised to unsupervised periods of time that he may have the child in his care.
I will provide for a regime of graduated periods of time that the child spends in the father’s care reflecting, to a considerable extent, the orders proposed by the independent children’s lawyer being Exhibit 14.
It is surely not a matter of controversy that the child should have the opportunity to take part in sport, extra curricular activities and development of friendships with children of his own age in the area in which he lives. The difficulty in that regard is that it represents another aspect of the considerable distance and travel time between the residences of the mother and father. The substance of the father’s case is that he loves the child and inferentially he is dedicated to the child’s best interests. In those circumstances it is a reasonable expectation that he would want the child to have the benefit of the activities and friendships to which I have referred as any other normal young child and would want to encourage the child in that regard. Each of the father and the child are likely to gain pleasure in the father’s active support.
As has been continually emphasised, the paramount consideration for any parenting order as required by section 60CA is the best interests of the child and not the best interests of the child’s parents, albeit that they are, of course, important matters to take into account. There will obviously be inconvenience to the father from time to time in remaining in the south caost area as the child becomes more involved in the range of those activities. However, that inconvenience will need to be secondary to the child’s best interests for the reasons that I have given.
It is also obvious that the reasonable needs and activities of the young child will change from time to time as he becomes older. The parties need to approach that factor with flexibility, sensitivity and understanding. Accordingly, I will make an order that enables the parties to vary arrangements for time to be spent by the father with the child as they agree upon from time to time.

It is common ground that the place of changeover of the care of the child from one party to the other should take place at a contact centre or failing its availability at a neutral place. It was submitted on behalf of the independent children’s lawyer and the father that the relevant contact centre should be at Redfern, notwithstanding that as a consequence the burden of travel will have to be solely borne by the mother. I do not accept those proposals. I consider that it is only reasonable that the matter of duration of travel be shared by the parties as equitably as possible. Consequently, the order will provide for the parties to utilise the Centacare contact centre at Campbelltown. In the event that it is unavailable, I will make an order which enables the parties to take responsibility for reaching agreement on an alternative suitable neutral public place, rather than for me to nominate it. Apart from the need for the parties to exercise responsibility in that regard, it may be that whatever alternative place I decide upon may also not be available at some time in the future.
It also appears to be common ground that the parties should use a communication book in relation to matters affecting the child in view of the poor state of communication that exists between them. An appropriate order will be made which also provides for other means of communication which are not face to face.
I have accepted the mother’s submission that until such time as the child attends school in 2011 the father should also have the opportunity for the child to be in his care on alternate Tuesdays whether supervised or subsequently unsupervised. That proposal was not opposed. The mother has sought an order that the parties equally meet the expense of the nominated supervisor. That proposal is reasonable in my view. An order will be made.
It is important that the father be kept fully informed of recommendations made by a speech pathologist and/or medical practitioner in relation to addressing the child’s speech delay and any other health issue. The father, of course, should not only be kept informed but should follow the recommendations. A suitable order will be made.
In view of the findings that I have made and the need for the father to address the underlying causes of his unacceptable abusive behaviour, I will also grant an injunction restraining him from making derogatory comments about the mother, Mr RM, AM or any other relative of them to or in the presence or hearing of the child and that he use his best endeavours to ensure that no other person conducts himself or herself in that fashion.
An issue arose in relation to the terms and conditions upon which the mother may be permitted to remove the child from Australia for holiday travel. I have made findings in relation to the mother’s history in that regard and the basis of the father’s opposition to her being able to take the child on overseas holiday.
The mother seeks orders that she be permitted to remove the child from Australia for holiday travel without the need to provide security and that the child’s name be removed from the Airport Watch List. The father seeks orders in that regard as set forth in Exhibit 7. Amongst the orders so sought are that the mother lodge a security bond of $100,000.00.
The independent children’s lawyer seeks orders as set forth in Exhibit 14. Those orders provide inter alia that the mother lodge a security bond of $10,000.00 and that the child’s name be removed from the Airport Watch List. It is difficult to appreciate the consistency between lodgement of the security bond and yet the child’s name not being on the Airport Watch List.
The mother has demonstrated that she has previously complied with the interim orders that have been made from time to time in relation to overseas travel with the child. I have found that the mother and the child live in a settled relationship with Mr RM. Whilst it is always possible that, as with any other relationship, it may breakdown. However, there is no evidence before me that indicates such an event is likely. I do not attach any weight to the conversation that the mother had with the father early in 2006 in view of the finding that I have made which accepts her version of it and the circumstances in which it took place. I do not consider it a proper exercise of the judicial power to make orders simply because it seems a good idea without there being evidence and findings to support it. Consequently, orders will be made as substantially sought by the mother.
I will make an order which enables the parties to publish to health professionals copies of Exhibits 4 and 5, this Judgment and the Orders which will be made today. It may well be helpful for a health professional consulted by the parties and in relation to the child to have copies of those documents. That is certainly likely to be the case so far as the father’s proposed therapist is concerned. Indeed that has been recognised by the father in part in view of the terms of his undertaking in Exhibit 17. It should be important for both the therapist and therefore the father as well as the mother for the therapist to not only have received all of such documents but that in the therapist’s report there be an acknowledgment that such documents have indeed been read. That should also provide reassurance for the mother.
It was agreed that an order be made pursuant to section 65L(1)(b) to enable a family consultant to provide assistance to the parties as may be reasonably required in the event of an issue developing between them rather than to immediately resort to litigation. However, I will make an order providing liberty to apply to seek an order setting aside, varying or suspending all or any of the parenting orders upon seven days written notice being given should a matter of urgency arise.
I will make an order that the father spend time with the child on Father’s Day whether supervised or unsupervised depending upon the point having been reached that unsupervised periods of time may take place in accordance with the orders that will be made. So far as other particular occasions such as the child’s birthday, Christmas Day or Boxing Day, given the difficulties which potentially will exist so far as arrangements for supervised periods of time are concerned, travel time and other practicalities, it will be a test of the parties’ ability to improve their relationship at least for the sake of the best interests of the child, if for no other reason, that they be left to make their own arrangements. I can only hope that the spirit of goodwill that is supposed to be attendant to such occasions will be demonstrated to exist.

I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 25 February 2009

[2009] FamCA 124

25 February 2009

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