Prendergast & Parsons (No. 12)

[2007] FamCA 1233

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. DGF 764 of 2004

IN THE MATTER OF:

Mr PRENDERGAST (Husband)

and

Ms PARSONS (Wife)

and

INDEPENDENT CHILDREN’S LAWYER

(No. 12)

JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:               26, 27, 28, 29 March 2007, 17 April 2007,
  10, 11, 12, 13, 17, 18, 19, 20, 21 September 2007
Date of Judgment:            17 October 2007

Appearances:

Mr Prendergast, the Applicant (husband) in person

Mr Eidelson of counsel instructed by Berry Family Law, on behalf of the Respondent (wife)

Mr Brewer of counsel, instructed by Robert Halliday & Associates, as Independent Children’s Lawyer

CATCHWORDS:

FAMILY LAW – CHILDREN - SHARED PARENTING – Competing applications for residence of 7 year old girl. Husband, a litigant in person sought child live with him and that the time spent with wife be supervised. At commencement of proceedings, wife sought child live with her then spend time with husband each alternate weekend and half school holidays. Husband seized with an “encapsulated belief” that wife psychiatrically disturbed and was emotionally and physically abusive of the child. Orders during trial for parties to attend psychiatric assessment. Wife attended and received favourable opinion. Husband refused to attend. Evidence led dealing with husband’s encapsulated ideation and potential impact upon child who was already evidencing withdrawal. Issue of unacceptable risk. Adverse inference drawn on husband’s refusal to attend psychiatric assessment. Order made for husband to spend time with child for six hours each alternate Sunday unsupervised.

Family Law Act (1975) (Cth) (as amended);
Family Law Act Amendment (Shared Responsibility) Act 2006 (Cth)
Evidence Act (Cth)
Family Law Rules 2004

L v B (2005) FamCA 242
Minagall v Ayers (1996) SASR 151 at 154
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4
Louth v Diprose (1992) 175 CLR 621
Prendergast & Parsons (No. 2) (2007) FamCA 445
Prendergast & Parsons (No. 4) (2007) FamCA 447
Prendergast & Parsons (No. 7) (2007) FamCA 538
Norbis v Norbis (1986) 161 CLR 513 at 524
Doherty v Doherty (1996) FLC 92-652 at p 82,684
Brandt v Brandt (1997) FLC 92-758 at p 84,340
Jones v Dunkel (1959) 101 CLR 298 at 320-321
H v W (1995) FLC 92-598
R v R (Children’s Wishes) (2000) FLC 93-000
Fabre v Arenales (1992) 27 NSWLR 437 at 449
Payne v Parker (1976) 1 NSWLR 191 at 202
M v M (1988) FLC 91-979 at 77,080
B v B (1993) FLC 92-357 at 79,778 and 79,780
Goode v Goode

36 FamLR 422 at 439

INTRODUCTION

The proceedings before me concern the welfare of T PARSONS who was born on … February 2000. She is seven years of age. In the course of the trial which spanned 14 days I have delivered a further 11 judgments arising from various applications made by the parties which include orders made by me on 18 May 2007 that each of the parties attend upon Dr E for the purpose of a psychiatric assessment. This the wife did, but not the husband who has at all times resisted a psychiatric assessment despite the terms, findings and conclusions set out in that judgment.
Following the parties’ separation in February 2003 and to this day, the central thrust of the husband’s case has been his inalienable belief that the wife is and remains psychiatrically disturbed and has “brainwashed” the child so as to detrimentally impact upon her physical and emotional well being and other aspects arising from her daily life.
Despite prodigious and persuasive evidence to the contrary, the husband has remained rigidly set in his utterly unsustainable position and which if maintained will impact upon and be detrimental to the general welfare of his daughter. Given all that I have heard, I am of the clear view that his unyielding perception of the wife will not be capable of change unless he accepts some form of psychiatric intervention, or at least, intensive counselling.
Unless he does so, there remains an unacceptable risk that the stability and development of the child, her happiness, general welfare and development whilst in his care will be in clear jeopardy. This is not, by any measure, designed to impute that the husband does not love and care for the child, for clearly he does. The issue is the potential impact upon the child of his obsessively maintained and unyielding negativity towards the wife, her mental health and care of the child and whether or not it is capable of resolution.
It is plain from the evidence that the wife suffered emotional and mental difficulties following the birth of the child, described in various of the subpoenaed documents and raised in evidence before me. It appears to have been a form of post natal depression. She did so within the confines of a profoundly unhappy relationship with the husband who, I am satisfied, was overbearing, dictatorial and at times physically aggressive towards her. At one stage, following a particularly disagreeable incident, the wife was obliged to seek shelter in a refuge. The husband was dominating towards the wife and treated her as a “lesser being”.
Inevitably their union failed and the wife fled the former matrimonial home, an environment in which she was grossly subjugated by the husband. Despite financial difficulties, with only marginal contribution from the husband, the wife rose above her past indisposition when free of the husband’s dominance. She has now progressed with her life. No so the husband who has utilised the litigation pathway to endorse his unshakeable view of the wife and in so doing has collaterally placed the general nurture and future welfare of the child in jeopardy.
One of the historic features of the proceedings is that any expert witness who reported favourably upon the wife was met or assailed with a stringent, indeed incomprehensible diatribe from the husband as he sought to impose upon them an endorsement of his own inelastic view of the wife. He sought to negatively influence the Principal of the primary school attended by the child by writing to her a lengthy denunciation of the wife consistent with his own encapsulated beliefs. His witnesses echoed his views in blind servitude, thus demonstrating a fundamental lack of objectivity and independence.
For reasons upon which I will expand in the course of this judgment, I propose to substantially suspend the time that the child spends with her father. In the meantime he may consider some form of treatment in order for him to better understand the worth of the wife as a loving and devoted parent and that his trenchantly held views of her are without substance. The orders I propose to make are, in my view, in the best interests of the child.
The key to resolution and reunion rests entirely within the control of the husband. To permit this quite untenable situation to continue will be damaging and utterly inimical to the child’s development, happiness and welfare. The evidence has demonstrated that stressors have already impacted upon her and unless rectified, will doubtlessly worsen with the effluxion of time. This cannot be permitted having regard to the best interests of the child.

BACKGROUND

The husband was born in Iraq in 1963 and is 43 years of age. He emigrated to Australia in 1992 and subsequently obtained Australian citizenship. He clearly worked hard and graduated with a Bachelor of Arts in 1998 together with a Graduate Diploma of Education from a University. He is a qualified teacher. The wife was born in Iraq on in 1970 and is now 37 years of age.
The parties first met in Jordan in early 1998. The husband was visiting Jordan, a country to which the wife and her family had fled as refugees from the turmoil of Iraq. Following a very short courtship, they married on in 1998 and after a period of approximately ten days, the husband returned to Australia. The wife subsequently travelled to Australia in July 1998, having obtained the necessary visa, and obtained Australian citizenship in February 2003.
The parties first lived in Sydney for approximately twelve months then relocated to Melbourne in 1999. Later, in 2002 they purchased the former matrimonial home at H in which the husband remained following their separation in February 2003. There is one child of their union, namely T PARSONS was born on … February 2000. She is 7 years of age.
Each of the parties painted a polarised view of their first meeting and of their relationship in Jordan. For the wife’s part, she deposed that the husband presented as a caring, sensitive and religious man, that they were both professed Christians and that the husband gave every indication of being deeply committed to her faith and to her religious, emotional and cultural needs. Following resumption of cohabitation in Australia, all that changed.
For the husband’s part, he deposed that before marriage the wife displayed incidents of “strange behaviour … irrational thoughts, sudden disconnection, different personalities and standards”. However, and notwithstanding, they married. It surprises me that the husband went through the ceremony of marriage if that to which he so colourfully deposed was in fact the position.
Whatever version of events is the truth is not particularly relevant to my exercise but I can indicate at this stage, and for reasons upon which I shall later elaborate, where the evidence of the husband and the wife are in contest on material issues I have no hesitation in preferring the evidence of the wife to that of the husband.
The husband commenced proceedings in July 2004 seeking various orders in relation to property and child welfare issues. They were opposed by the wife. Thereafter, with the passage of time the parties were locked in bitter litigation with the husband, for example, twice instituting proceedings for contravention which were dismissed. The current orders of the court governing the welfare arrangements for the child were made by Watt J on 21 January 2005. It was these orders that I varied however on 21 January 2007.
There were various proceedings brought by the husband and ultimately, on 25 July 2005, an order was made by Morgan J pursuant to s 118 of the Family Law Act 1975 declaring the husband a vexatious litigant. The matter was later prepared for trial and commenced before me on 26 March 2007.

THE LAW

The principles governing these proceedings are set out in the Family Law Amendment (Shared Responsibility) Act 2006, (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration. See s 60CA of the Act. In determining what is in her best interests I must consider those matters set out in s 60CC(1) of the Act. They are the “primary” considerations and the “additional” considerations referred to in that section. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of her parents. The second is the need to protect her from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and, as a note to s 60CC of the Act points out, are consistent with the first two objects of Part VII as set out in s 60B(1)(a) and (b). Accordingly, they are matters requiring my careful consideration.
In a parenting case such as this, I am also required to take into account the additional considerations set out in s 60CC(3) of the Act. I will indicate what these are later in my judgment. I am also to consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling those responsibilities. See s 60CC(4) of the Act. I will be guided by s 60B which sets out the objects of the Act dealing with children and the principles underlying it. There are other provisions of the Act which I will consider in relation to particular matters, but these are the general principles that apply in this case.
Insofar as the standard of proof concerning the various evidentiary issues for my determination is concerned, the level of persuasion is the civil standard, namely on the balance of probabilities. See s 140(1) Evidence Act 1995 (Cth). By reason of the manner in which these proceedings have been conducted, it will be necessary in the course of my judgment to make what may be perceived as some harsh comments, but in doing so I emphasise at the outset that any criticisms I make are not intended to insult, belittle, nor undermine the confidence of, in this case, the husband. On the contrary, it is my hope, and indeed my expectation, that the findings I make in this judgment will be considered carefully by him and used positively to benefit the child and for each of the parties to better understand an objective, independent consideration of the relevant matters necessary to facilitate her best interests.
It will be readily apparent from my judgment that the issue of credibility is an important one. That is necessarily so given the issues raised and submissions made to me from time to time. Accordingly, I will in the course of this judgment make a number of significant and crucial findings concerning the acceptance or otherwise by me of the evidence on different and important issues. Given this fact, I wish to emphasise that I have had the advantage of carefully observing the witnesses in the giving of their evidence which has been an important aid for me and one of considerable assistance, particularly when that observation spanned many days during which numerous issues were put to each of them.
I am not by any measure asserting it as a panacea, for it is patently clear that an assessment of truthfulness or reliability by demeanour can be nothing short of hazardous, if that is the only criteria. But in this case, in addition to my general observations of demeanour in the above circumstances, I also take into account the inherent likelihood or otherwise of the evidence given on a particular issue and its consistency overall with other evidence and documents relied upon. I have made such comments in earlier judgments including L v B (2005) FamCA 242.
The fact of a trial judge being in a privileged position of observing witnesses was commented upon in Minagall v Ayers (1996) SASR 151 at 154 per Hogarth J. See also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313 per Kirby J.:
“By conventional theory the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advantage which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of rehearing …”
As I discussed in L v B (supra), a trial judge is charged with the onerous responsibility of being given the task of affording weight to a particular fact in issue which will often not be capable of rationalisation beyond the statement "having heard him, I am not satisfied that I should accept what he says". See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4 per Mahoney JA. In that case I gain considerable assistance from his Honour's comment that:
“The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things.”
[See also Louth v Diprose (1992) 175 CLR 621 per Dawson, Gaudron and McHugh JJ]
This has been a very difficult trial for the impact of my orders may bear heavily upon the husband. I have accordingly been careful in evaluating the relevant evidence which necessarily brings into account matters such as credibility and the inherent likelihood or otherwise of the evidence of the principal protagonists. I have had recourse to authority in explaining my task.

EVIDENCE OF THE HUSBAND

The husband’s affidavits in both the child welfare and property proceedings were of inordinate and unnecessary length so that, in the result and following application by both Mr Eidelson and Mr Brewer, they were substantially truncated to a mere skeletal, but fundamental structure. My reasons for so doing are set out in my judgment dated 27 March 2007 (See Prendergast & Parsons (No. 4) (2007) FamCA 447.
The husband’s affidavit in the welfare aspect of the proceedings was a professionally unfiltered document which underscored in a most dramatic way his attitude to the wife, her emotional state and parenting of the child. It is a Doomsday document in which the husband berated, abused and besmirched the wife’s personality and her parenting of the child. He painted her as a grossly psychiatrically disturbed woman who had abused and manipulated the child in a Draconian and odious manner. The balefulness and chronicity of the accusatory depositions set out in his affidavit and held by him from separation and maintained to this day were directed to the wife and from which there has never been any resolution. Albeit that much of what he had to say was struck out as offending Rule 15.13.1(a)(b) of the Family Law Rules 2004, they nonetheless remained open for cross examination by counsel and commentary by expert witnesses called in the proceedings.
It is fair to say in relation to the welfare and property proceedings that the husband adopted an overzealous attribution to details of contribution. This sort of practice has been criticised and commented upon in a number of authorities, including Norbis v Norbis (1986) 161 CLR 513 at 524 (per Mason and Deane JJ), Doherty v Doherty (1996) FLC 92-652 at p 82,684 and Brandt v Brandt (1997) FLC 92-758 at p 84,340.
I have in prior judgments in these proceedings recorded my observations of the husband and which, in the result, underscored in part my reasons for ordering that he (and the wife, too) attend for psychiatric assessment. I make it clear, that what I have to say about the husband’s credit worthiness as a witness in these proceedings, his personality and temperament ought not be viewed as a personal attack upon his general integrity as a member of the community but as, regrettably, a necessary function of my task in deciding contested material issues between the parties and otherwise as evidence that support the findings, evaluation and opinions of the various expert witnesses involved in the proceedings.
I also emphasise that the evidence reveals that the husband feels a deep sense of love and devotion towards his daughter, who, doubtlessly, loves him. Commendation too must properly be accorded to the husband for having, as a refugee to this country from Iraq studied and succeeded in obtaining a tertiary degree and diploma. He is and has worked as a qualified teacher.
My findings on credibility are limited to the contest between the wife and himself and by no measure is it to stain the husband for all purposes. The singular tragedy in these proceedings is the deeply ingrained and encapsulated negative views that the husband holds of the wife that has been the assay mark of the evidence in this trial, given its impact both actual and potential upon the welfare of the child.
For the husband, the potency and vehemence of his attitude towards the wife both as to her parenting of the child and her emotional and psychiatric balance has overwhelmed the factual reality of the evidence in these proceedings. It has also spilled over into the property proceedings, for example, where the husband has become so consumed by the litigation that he has ceased to undertake gainful employment and contested financial issues in other jurisdictions which, on the face of it as it appears to me, he has acted in circumstances where it has been economically unwise and financially imprudent to do so. Both common sense and reality have been obscured.

I have listened to the evidence very carefully indeed and observed each of the husband and the wife in the giving of their evidence. I have no hesitation in preferring the evidence of the wife to that of the husband on the material issues in the absence of corroboration by independent third party evidence and/or admissible documentary evidence. The husband is utterly blinkered to any evidence that may support the wife and which he has irrationally rejected, generally accompanied by a closely typed documentary condemnation.
There are many examples within these proceedings that underscore this comment, including, but not limited to his 30 page single-spaced criticism, perhaps best described as a diatribe, of Mr P (and his consequent complaint to the Psychologists Board). Further, falling under the umbrella of this comment is his critique of Ms K, Dr E, the Independent Children’s Lawyer and the wife’s current and former legal practitioners. The husband has already perceived me as biased arising from orders I made in the Judicial Duty List on 3 January 2007. An application made by him early in the proceedings was dismissed (see Prendergast & Parsons (No. 2) (2007) FamCA 445).
An example of the husband’s lack of credibility may be seen from the incident concerning the cutting of the child’s hair in July 2007 (see Exhibit “ICL4”). The husband denied that he cut his daughter’s hair, and which he maintained in the face of overwhelming evidence. His was a false denial which grew in its content as he endeavoured to maintain his quite indefensible position. Put simply, in my view, he lied.
I have already dealt with the essential background material relevant to the husband. In his affidavit filed on 28 February 2007, he dwelled first upon events aged now in time by almost a decade and set the foundation for his view of the wife, alleging episodic events of self harm and “uncontrollable emotional and physical harm” to himself. He relied upon subpoenaed documents.
He next moved on to events headed “After [the child’s] Birth”, again referencing subpoenaed documents together with allegations of his perception of the events. Not once did he proffer a scintilla of understanding, let alone compassion or an objective narrative survey of the events that beset the wife and himself and the difficulties under which they laboured. The husband’s affidavit was accusatory, biased and subjective with his assertion of “countless incidents” of “self harm and abuse” of the child. His reliance upon hearsay information now aged in time in order to feed his version of events is disturbing.
The husband then headed his next assault upon the wife as “Continuous Physical and Psychological Threat to [The child] Before and After Separation” and raked over the burning coals of the past, fanned by his unswerving negativity. His conclusion from those early years and from which he cannot and will not deviate, the currency of which is maintained to this day is that the child “… has clearly been physically and psychologically abused” by the wife.
The husband maintained a review of past events fuelled by his own perception and otherwise rejected any evidence to the contrary or any contribution by him to the desolate situation in which the post separation events occurred. He wildly asserted that the wife’s former solicitors made new and false general allegations, analysing documents through his myopic view of the situation. His maintenance of those allegations for years that the child was being subjected to “brainwashing” in order to “hurt” him was typical of his perception which hardened and has been unwaveringly maintained.
In surveying the history of events, the husband deposed that the orders of Watt J of 21 January 2005 were “based on error” and his appeal “not responded to”, which influenced, he asserted, agencies, schools and the Department of Human Services. A survey of his affidavit as drawn prior to the strike out application clearly displays the chronicity of his complaints. His irrational pursuit of evidence to support his thesis included taking the child to medical practitioners for the slightest abrasion or bruise, the responsibility for which he claimed, at least by imputation, fell upon the wife. Any explanation by the child to the medical practitioner and contrary to his perception, was rejected by him as manipulation by the wife, being part of her “brainwashing” of the child. I will deal with this later in the course of my judgment.
Various proceedings were instituted by the husband. He was declared vexatious. Contravention applications brought by him were dismissed. He has been ordered to pay costs and which have, in the result, never been paid. He has displayed scant regard to the authority of this court, all fuelled by the fact of his belief into the righteousness of his cause.
What emerged in the course of the evidence and with some clarity, was the physical symptomatology displayed by the child whilst under his care, but not by her when in the care of her mother. To that, the answer is plain. The child clearly, as he deposed, displayed increasing “negative” signs whilst in his care. The husband surveyed his own broad extended family who doubtlessly have a good relationship with the child. However, the evidence given before me of his sister, his father and his neighbour has left me with little doubt that they too have blindly taken up his cudgel and assumed the wife is disturbed and responsible for the child’s lack of well being whilst in the husband’s care.
The husband next condemned the wife’s former legal practitioners, underscoring irrational and at times petty criticisms all replete with offensive, scandalous, argumentative and irrelevant material. His affidavit is gorged with a self serving censure, indeed vilification of the wife and her former practitioners, the former and current child representative and the family consultants. There is ample documentary evidence before me to underscore that observation. There is nothing in his affidavit that may be viewed as positive or helpful, nought but a continuing and verbally aggressive censure and denunciation of any professional that they have erred, in his eyes, by supporting the wife. His opprobrium of Ms K, for example, is quite without justification and speaks more against him as the maker of such unfounded criticism. It is a plain reading of this professionally unfiltered document itself that damages his own case. The husband is the maker of his misfortune. His continued complaint of the orders made by Morgan J declaring him a vexatious litigant measures the subjectivity of his commentary and is unsustainable.
In Section L of his affidavit, the husband deals with The Care and Future of [The Child] and in a series of paragraphs then following displays his current and alarming view of the wife. In that affidavit, he had this to say:
“201.[The child] is increasingly in danger of being permanently damaged, should [the child] remain in the residential care of [her mother] whom outwardly has shown shocking evidence of suffering from psychiatric condition. A total absence of self worth with repeated attempts to cause self mutilation, and unbalanced mental state as evidenced with [the mother’s] depressive behaviour and [the mother’s] Incontrollable outburst of violence, since the earliest days of marriage.
…
203.My family support [the child] 100% in the future residential care arrangement proposed before the court, on one basis and that is ‘[Ms Parsons]’ has a long documented history of suffering from psychopathic mental illness, depression.
…
205.[The mother] has told a plethora of outrageous lies about myself as to my own personal motivation toward [the mother] and I realise [the mother’s] entire focus now, is to find fault within myself, in order that [the mother] may be excused within her own family, for the failed nature of a lost and irretrievable marriage breakdown.
…
208.…from all evidence and more evidence to produce in court, I know that [the mother], suffers from long term depression, regularly displays advanced symptoms of schizophrenia and has never considered herself fit or able to care for her own child properly, according to her own admissions to Centrelink and other Authorities, concerned for the welfare of [the child].
209.I am seeking an order, that [the child] be transferred to my permanent residential care, in order to protect [the child] permanently from the current evil will of her mother
210.I consider as an urgent, outstanding priority, the need to recover [the child’s] spiritual, emotional and psychological health before it is too late.
…
213.I know that during this same period of time, [the child] has been seriously neglected and wilfully punished by her own mother, for no other justifiable reason, other than the fact that [the mother] is ill and cannot come to terms with her own psychological disorders.
…
221.[The child’s] welfare is such a crucial issue now and into the future because fundamentally [the child] wants to live full time with her own father and while [the child] naturally loves both of her parents, [the child] is now at the age to recognise that her mum is not well.
…
223.There is consistent evidence of [the mother] abusing [the child] and brainwashing [the child], in order that the child becomes confused about her father, featured throughout my ‘Affidavit in Detail’.
…
227.[The mother] has a known practice of making false and absolutely untruthful statements, in letters framed by her Solicitor Mr Cornelio and current solicitor Mr Byrne, as evidenced with most recent letter sent to myself by his legal office.
228.I’m appealing to the will of the court to protect [the child], from [the mother] (whom via her own self confession), is unable to care properly for any other person.
229.There is a need for the court to resolve this custody issue, based upon the full truth of the situation and I fear irreparable damage to [the child], in the event that [the mother] is able to succeed with her lies which clearly have not been acceptable to two previous solicitors whom she has employed …”
[See also p 2 of the husband’s Summary of Argument.]
The evidence of the husband in court was a difficult process for a number of reasons, none the least of which being his inability to focus on the welfare issues without recourse to past events as he viewed them from his highly subjective perspective. His determination to picture the wife as a psychiatrically disturbed, manipulating and abusive mother was the central theme of his presentation. Save that he said he would change the adjective “evil” (see par 209 supra) to “behaviour”, he deposed that every particular contained in that disquieting affidavit was both true and correct. Similarly too, his affidavit filed 5 March 2007.
The husband said that he has always maintained that the wife had “at times” physically abused the child and that the history of her “seeing a psychiatrist” was consistent with his observation of the child at his home “reflecting” her mother’s condition. Mr Eidelson referred the husband to his Summary of Argument and in particular the following:
“This is a usual (sic) case where it is demonstrated that it is not in the child’s best interests to spend significant time with her mother due to the mother history of violence behaviour, physical abuse, psychological abuse, brain wash, and denigrating the father and the child’s extended parental members from the father by the mother and denigration of the mother whilst the children are in his care”. (page 2)
The husband made it clear that those words reflect his current position and his views have not changed since conferring with Mr P. He was at pains to impress upon me that the views expressed by him in his affidavit were based “on facts” and denied that his material was devoid of factual substance.
Mr Eidelson referred the husband to that part of Mr P’s report where the husband had, as a “major issue” informed him that he “contracted genital herpes” from the wife following sexual relations during a period of “mediation and reconciliation” (Report page 6). The husband said he did not report this incident to Mr P in the manner recorded by him and that Mr P had “misrepresented” him.
This topic consumed quite lengthy cross examination and in the result, I am satisfied from all the evidence including that of the wife, Mr P and that revealed in various tendered documents on the issue, that it was in fact accurately reported by him and that the husband’s raising of this as an issue was based primarily on his highly negative view of the wife and that he did so without insight or justification. The husband freely accused the wife of lying to Mr P on this issue (report page 9) asserting that she had “genital herpes” when, from independent evidence, such is not the case. I observed him carefully in the giving of his evidence on this topic and formed the clear view that he was both evasive and unreliable.
The husband made it clear that the wife was “manipulative” and a person who “twists the truth”. This was quite consistent with what he told Mr P (Report page 6) asserting she had even turned the family priest against him.
The husband’s complaint to the Psychologists Board about Mr P was utterly unjustified and in the result, he did not even accept their response in summarily dismissing his complaint. Regrettably, the husband basically viewed Mr P as inimical to his cause and broadly rationalised the report as predicated on “wrong assumptions” based on the “many false representations” of the wife (par 150 of his affidavit). His position did not differ with respect to the report of Ms K who, he claimed, was influenced by Mr P and also asserted that her report was not “fair and equal”. His condemnation by way of review of Ms K’s report in his trial affidavit (pages 26 to 29 inclusive) is plain and obvious.
In his evidence and which I reject, the husband continued to maintain that the child was brainwashed by the wife, that she expressed her mother’s views and reaffirmed that he considered that the child had been “seriously neglected and wilfully punished” by her. It was for that reason that he required the wife to be treated by a psychiatrist. For himself, he made it clear that there was no need for him to consult a psychiatrist. I have in earlier judgments delivered during the course of these proceedings dealt with the husband’s attitude to assessment by a psychiatrist.
When referred to the comments made by the child and summarised in the notes of Mr Halliday, the Independent Children’s Lawyer, and arising from her interview with him on 26 February 2007 (Exhibit “ICL1”), the husband said that which the child asserted was inconsistent with comments made by the child to him and further, that her comments to Mr Halliday arose by reason of the wife brain washing the child. He said that the child was not yet at an age where she could recognise that her mother suffered a psychiatric illness (par 221 husband’s affidavit). He made it clear that the child needed to be “closely protected” from her mother’s “condition”, failing which she would suffer permanent damage. Further, that she had already been subject to physical and emotional abuse by her mother and required protection from her.
On the issue of delivery and collection of the child to and from school, the husband, despite his argumentative and at times non-responsive reaction, said that he attended to it “most of the time”. He accepted that the wife complained about the child being delivered late to school, but claimed it was her “grandfather’s fault”.
In his affidavit filed 5 March 2007, when dealing with his “interrupted career”, the husband said that the wife did not participate in the delivery or pick up of the child. It was the wife’s evidence that the husband frequently contacted her, demanding she travel some 45 minutes from her home to collect the child and then return her to school as he claimed he was “unable” to do so. In his Case Outline Document, the husband had this to say:
“The Mother has refused to cooperate in picking up and delivering the child in shared responsibility, disadvantaging the father from commencing work and also, forcing the grandfather from the father side, to deliver the child/pick up assisting the father to commence employment”. (page 5)
In his evidence, the husband agreed that the issue of the child being late for school was important. The issue was referred to in the child’s school report for Semester 2, 2006 (Exhibit “W3”) and the school attendance book from 30 January 2007 (Exhibit “W4”). I regard this issue as a very serious one, but despite that which he said, the husband appeared to take it for granted. He would make such excuses as claiming the child was experiencing “difficulty breathing” whilst asleep and would wake up tired. He otherwise blamed the wife for not co-operating in the collection of the child.
The husband was cross examined at length by Mr Eidelson about his failure to contribute in a meaningful manner towards the support of the child. He said he was employed from July 2006 until December 2006 on a full time basis as a teacher in receipt of a salary of $48,000 to $51,000 per annum. In addition, he said he received rent from investment properties during that period of $185 per week from the E property and “about the same” for the other investment property. He was not making mortgage payments at the time. Thus, the total rent he received was about $370 per week. He said that his brother, who lived at his home, was not paying rent during that time either.
Given that, the husband’s gross income was some $1,330 per week, he explained that he did not make any payments as “child support works on a two year cycle”. He went on to say that he paid for the child’s keyboard lessons of about $11 per week and swimming lessons in a similar amount. Total Court ordered costs in excess of $9,000 arising from orders made on 15 April 2005, 21 June 2005, 25 July 2005 and 2 February 2006 had also not been paid by him. He sought to rationalise that on the basis he had to pay legal fees to defend the welfare and property proceedings. Although plainly incorrect, the husband claimed he had never disobeyed court orders.
When cross examined by Mr Brewer, the husband said that he did not pay any monies by way of child support to the wife during the period of his employment in 2006 as any assessment was required to be “considered over 12 months”, and that in any event, he was paying for keyboard and swimming lessons together with other expenses when the child was in his care. He said that he purchased some items of apparel such as shoes, which he kept at his home. I thought the husband’s evidence dealing with items of clothing and the like he allegedly purchased for the child and retained at his home was not convincing. He did not know their source of purchase nor did he retain any receipts. He conceded, but reluctantly in my view, that the wife clothed the child “adequately”, that she tried to keep the house clean, quickly qualified by saying that when she gets sick, it’s “interrupted”. He said it was incorrect to say that the child was “generally in good health” or that she was presented to his home as a “healthy child”. He then reverted to his mantra of observing the child coming to his home, “consistently brainwashed”.
During the course of the evidence, an issue arose which was directly connected to information provided by the child to the Independent Children’s Lawyer on 26 February 2007 (Exhibit “ICL1”). In relation to that, the wife provided a statement of evidence concerning a conversation she had with the child on 28 March 2007 (see Exhibit “W5”). Following discussion, and in the result, Mr Brewer sought to renew an earlier application by him to suspend contact and to conduct, in essence, a voir dire arising from the information provided by the child to her mother. As a result, I received evidence from the husband, the wife and the husband’s sister.

I have carefully considered that evidence and accept that, despite the husband’s denial and that of his sister, he did in fact speak to his sister about matters relayed confidentially by the child to Mr Halliday and about which his sister questioned the child when she collected her from school for a contact period. When cross examined by Mr Eidelson, the husband denied that he discussed with the child or any other person the evidence given in court. On the other hand, the wife gave evidence consistent with Exhibit “W5”. She made it clear that she had not made up the contents of that document.
The husband’s sister gave evidence that she collected the child “at 10 past 5”, and returned with her to her own home. She denied questioning the child as alleged and launched into a non-responsive speech that the child was “very confused”, that she was “very scared” and that she was “always like that”, but after a few hours “would return” to “normal”. I carefully observed the husband’s sister in the giving of her evidence and in particular, when she suddenly and non-responsively said “I didn’t do it”, then became defensive and displayed a very uncomfortable demeanour about the position in which she was placed. She went on to gratuitously attack the wife, asserting “… for 4 years her mother has been teaching her how to behave with us” and that when she collected the child, the child was “upset”, “scared” and that there were signs of worry. She gave evidence that she told the child she looked “very worried and confused”, but denied that she discussed matters concerning the alleged lack of cleanliness of her father’s house. I reject her evidence as utterly unreliable.
The reason for the voir dire as conducted upon the application of Mr Brewer, was that, central to his submission, there was a risk to the child being subjected to serious psychological and emotional harm whilst in her father’s care during contact periods. The husband said that the contents of Exhibit “ICL1” caused him concern and rationalised that what the child said to Mr Halliday was consistent with the child being brainwashed. He did not dispute the fact that the child said those matters reported in Exhibit “ICL1”, but that she was “not telling the truth”, as she had been brainwashed.
The husband admitted that he had a discussion with his sister, but denied he said anything about the evidence in court, claiming that he was careful to ensure she did not see the document. Accordingly, so far as he was concerned, his sister could not have known about its contents, that the evidence of the wife could not be correct and must have been “made up” by her. When asked why, he said:
“That’s a very good question … if you go back to my affidavits … you will find a consistent history of the wife being psychiatrically diagnosed … it’s part of her psychiatric condition”.
I do not accept the evidence of the husband nor that of his sister on this issue. It is plain to me that they had discussed what the child had said to Mr Halliday. I accept that the wife faithfully reported what the child said to her and that the denials of both the husband and his sister were false.
When cross examined by Mr Brewer as to the sleeping arrangements in his home, the husband said that he has a bedroom for the child, however, as she expressed a concern to be “close to” him, he permitted her to use another bed in his bedroom. He said a little later that he slept on a mattress on the floor whilst she slept in his bed.
The husband was cross-examined about the allegations made in the wife’s affidavit concerning domestic violence. These are matters I referred to in my judgment of 18 May 2007 and for ease of convenience on this particular issue I incorporate the following into this judgment:
“14.With the progress of the husband's evidence, I rapidly became increasingly concerned about what he had to say, accepting of course that he has been thus far, save for the interposed and discrete evidence of the wife and [the husband’s sister], the only witness. The wife is yet to give her evidence on the various issues for my determination. For example, the wife in her trial affidavit filed 15 January 2007 at paragraphs 25 and 26 deposed as follows:
“25:The Husband was frequently violent towards me during our cohabitation in Australia. His actions included:
(a) Striking me with his fists;
(b) Physically picking me up and throwing me across the room;
(c)Shoving me violently against walls or furniture;
(d) Pulling my hair violently to compel me to move in a particular direction;
(e) Spitting at or on me;
(f) Violently grabbing and shaking my upper body;
(g) Forcing me physically to engage in sexual intercourse with him.
26:The violence did not abate during my pregnancy with [the child]. During this period of time, the Husband continued to punch me, to pull on my hair and spit at me. After one particularly violent episode, the Husband stated that he had decided to divorce me and to ‘put you (me) in prison’. This threat was to counter-act the possibility that I may leave the Husband.”
15.In relation to the allegations made by the wife, the husband at first made a blanket assertion that they were "unsubstantiated". He denied that he ever struck his wife, and claimed that he had "stopped her from hitting herself". He said that she engaged in “self-harm”, and it was she that broke furniture, not him. He denied that he "pulled her" hair, asserting that she “pulled her own hair”. He denied non‑consensual sexual intercourse.
16. At paragraph 32 of the wife's affidavit, she deposed:
“32:In December 2001, and for a period thereafter, I sought assistance from a service called “[S Organisation]”. In particular, I attended an 18-week course with regard to Domestic Violence, in an attempt to change the ongoing cycle of violence which was occurring during my cohabitation with the Husband. It is true that the workers at the service considered that I was suffering from some mild depression, but this was greatly assisted by the end of the relationship between myself and the Husband. Now shown to me and marked with the letters “FP1” is a true copy of a letter from the [S Organisation] dated 30 June 2004.”
17.The husband agreed that the wife did attend [S Organisation]. However, in relation to the 18-week course on domestic violence, he claimed that the paragraph, as drawn "was misleading". His evidence was that the wife's attendance was for "self-harm violence". That is, she attended the course to assist herself in "not self-harming".
…
19.In order to better place the husband's evidence in narrative context, and subject to my caveat, I set out the letter which is in the following terms:
“To Whom it may concern
[The mother] has been receiving services from [S Organisation] since December 2001 until August 2003. Fatin requested our services for issues relating to isolation, mild depression and relationship problems.
[The mother] attended an eighteen week women's Domestic Violence support group to address issues of isolation, self-esteem, Assertive Behaviour and understanding the cycle of violence and male privilege.
[The mother] also received our Family support service which comprised of a worker visiting her home and discussing a variety of topics relating to parenting, connecting to community services, being linked into child care services, play groups and help with language difficulties.
[The mother] was observed to be a very protective and loving mother at all times, her home was also extremely clean and well managed. [The child] was provided with healthy home-cooked food, was always dressed beautifully and [the mother] appeared to have a good relationship with her.
The mild depression that [the mother] was suffering when she contacted our service seemed to be a result of her relationship problems with her husband, and greatly improved after she left the relationship.
I have found [the mother] to be honest, reliable, capable and a good parent.”
By reason of court commitments, there followed a break in the evidence when last before me on 29 March 2007 until its return on 10 September 2007. In the meantime, the wife underwent a psychiatric assessment with Dr E in June 2007. The husband refused to do so. Upon the resumption of the proceedings, Mr Eidelson made application that until further order, the husband’s time spent with the child be suspended.
The basis of his application centred on the husband’s failure to comply with my order that he undertake a psychiatric assessment which has caused the wife to suffer serious concern for the child’s welfare and well being. Mr Eidelson submitted that given the husband’s failure to attend Dr E, I should draw an adverse inference in accordance with the principles laid down by the High Court in Jones v Dunkel (1959) 101 CLR 298 at 320-321. It was his application that the time spent with the child pending compliance with that order be suspended relying otherwise upon concerns expressed by me in my judgment of 18 May 2007 (see Prendergast & Parsons (No. 7) (2007) FamCA 538).
Mr Eidelson informed me that in mid July 2007 the child attended upon the Independent Children’s Lawyer who, following what the child had to say, recommended a “time out” period of four weeks. The wife acted upon that recommendation and the husband’s time spent with the child was suspended between 17 July 2007 and 14 August 2007, a period of four weeks. It then resumed. Mr Eidelson reminded me that the wife had always supported the time that the child spent with her father and that the wife had opposed an application for suspension of that time made earlier by Mr Brewer in the proceedings. He submitted that this demonstrated a balanced and measured approach by the wife and with which observation I agree.
It was his submission that matters had now changed by reason of a “fundamental concern” arising from the husband’s state of mind and his refusal to attend for a psychiatric assessment. He submitted that the husband, whilst making the most scandalous allegations against the wife’s psychiatric health, himself refused to be scrutinised. His allegations, Mr Eidelson reminded me flew in the face of the fact that no concerns were expressed by Mr P, Ms K, or Dr E. He also referred to the report of S Organisation (2004) which I considered in my judgment of 18 May 2007. Mr Eidelson submitted that it was overwhelming that an adverse inference should properly be drawn against the husband. In that regard, he referred me to paragraph 20 of that judgment in which I said:
“20.I have included this aspect of the husband's evidence and that of the wife, albeit untested, in this judgment for it sits somewhat seamlessly with the husband's impoverished view of the wife across the board, both as to her parenting and mental health. Is his set opinion such that it is reasonably foreseeable he would be unable to restrain himself, either deliberately or unconsciously, from permitting it to impact upon [the child]? Given all the issues to which I have referred and given the significant provision mandated in section 65AA of the Family Law Act 1975 (as amended), there are matters of real concern to me and upon which I require professional assistance.”
It was the earnest submission of Mr Eidelson that the wife could not now, in good conscience, continue to support her original position. In reply, the husband sought to tender a document which, following argument, I received and marked Exhibit “H6”. It appeared, in summary, to be a series of submissions drawn by the husband who then sought the assistance of a Duty Solicitor. The matter was stood down to enable that assistance to be rendered. Indeed, it was welcomed.
On behalf of the husband, it was submitted by the Duty Solicitor that to suspend the time he is to spend with the child pending the completion of the proceedings was inappropriate and may be viewed as a punishment for his non-attendance upon Dr E. I was referred to the family reports of Mr P and Ms K which addressed the husband’s good relationship with the child. It was further submitted that contact had resumed and should continue in light of the circumstances that the good relationship between the child and her father was not in dispute. It was also submitted that there was insufficient material to make such an order, which should continue, for otherwise it may be argued that I was pre-empting an order ultimately to be sought by the wife. The Duty Solicitor argued that to rely upon the actions of the Independent Children’s Lawyer without further information being put before the completion of the proceedings was “basically unfair”.
Mr Brewer supported the Application. He submitted that it was not a unilateral action taken by the Independent Children’s Lawyer, but arose from discussions between Mr Halliday and the parties. The notes made by Mr Halliday of his attendance upon the child on 13 July 2007 were tendered and marked Exhibit “ICL3”. In reply, Mr Eidelson submitted that the application was not “about punishment”, but about the best interests of the child. He argued that the husband’s refusal to “clear the air” concerning his psychiatric health has raised very serious concerns with the wife. In the result, and very late in the afternoon, the application of Mr Eidelson was discontinued but not abandoned on the basis that it would be renewed following receipt of further evidence before the Court.
The husband’s evidence resumed and he made it clear that his position was that the child live with him and that the time she is to spend with her mother be supervised. His rationale for this concerned the wife’s psychiatric disposition as pleaded by him in his affidavit material. That still remains his view. For example, in Exhibit “H6”, tendered 10 September 2007 he had this to say:
“8.I believe there is a combination of all these element of [the child’s] head pain, and other physical harm, hit and neglect incidents, and psychological effect and place of living and other neglect incidents such as, exposing [the child] to the sun in summer delivering red face and not allowing [the child] to have the car aired before jumping in the car in an extreme hot weather, and [the child’s] pre-packed food in her lunchbox, and [the child’s] room, and her living with [the mother] on a very busy street.”
The husband said that too remained his current position.
The husband made it clear to Mr Brewer that the former matrimonial home is subject to litigation in VCAT. He accepted that although he had not made any mortgage payments since January 2005 he had tendered a cheque for $1,000 in November 2005, which was returned to him. If the former matrimonial home was sold, the husband said that he would rent a property. He currently received $210 per week from Centrelink and $35 per week by way of a family tax benefit. The husband said that he last worked full time between June and December 2006 and since then he has worked part time, earning a total of approximately $2,500. He was unable to provide precise particulars dealing with that employment or his earnings. The husband said that he had not inspected any alternate properties or considered other areas in which he could reside. However, his preference would be to remain in the E area and to obtain employment as a teacher.
The giving of the husband’s evidence was far from cohesive and at times descended into chaos. He was argumentative and difficult to such an extent that I was obliged to caution him.
Mr Brewer addressed the husband’s attention to paragraph 5 of Dr E’s opinion set out in his report of 2 July 2007, namely that the wife did not present with signs or symptoms of a psychiatric condition that would render her as a risk to the child, and that there was nothing in the reports of either Mr P or Ms K which would cause him concern. However, notwithstanding the opinion of Dr E, the husband made it clear that the report did “not satisfy” his concerns and further, that he had concerns about the report in any event which, he said were set out in his submissions (see Exhibit “H6” and particularly at par 26).
In that document, the husband entered into, as may be expected in the whole of the circumstances, an attack upon Dr E as having “misrepresented” his statements. It was the husband’s evidence that there was no written material to the effect that he personally need be assessed and relied upon a letter from Dr S as part of his material.
The husband was, in my view, unabated in the pursuit of what he perceived to be the wife’s psychiatric condition and her treatment of the child. He repeated his belief that the wife “hits [the child]”, and that subpoenaed documents “prove that”. It was asserted by the husband that the wife had physically harmed the child since separation, claiming that he saw her face was bruised on one occasion and upon enquiry made by him, was allegedly told by the child that she was hit with a tennis racquet by the wife. Subsequently, in the course of cross examining the wife, the husband tendered a letter from the … Medical Centre, D (Exhibit “H20”) recording a “3 cm abrasion” on the mid frontal area of the child’s face. The letter goes on to record “the patient said she hit the door … had also been hit in the head at school – but was not reported to the teacher”.
I have earlier in this judgment referred to a credit issue arising from the husband’s denial that he had cut the child’s hair. In the course of his evidence, the husband explicitly denied that he had done so, claiming at first that he had taken the child to a hair dresser in E to have her hair cut, later correcting that to a hair dresser at P Shopping Centre, D. He made it clear that the child’s hair was cut by the hair dresser at D. He denied that he did so. The husband was referred to the file note of Mr Halliday dated 13 July 2007 in which the child reported that her father had cut her “hair with the scissors”. The husband said that the child was wrong and that it was a worry to him that she had made such an assertion which, he said, reflected “the mother’s condition” and “her brainwashing”.
There were other matters complained of by the child to Mr Halliday (as set out in Exhibit “ICL3”) which the husband denied. For example, he denied that his house was dirty and said that the child was brainwashed by her mother to say that. The husband agreed that he did not consult with the wife about cutting the child’s hair, and said that when she came to his home with “hair all over her eyes”, he had to adjust her hair with his hands and took her to the hairdresser. He went so far as to broadly assert that the child was happy with the haircut. I regard the husband’s evidence on this issue as a bald faced lie.
At the conclusion of his evidence, the husband said that his “whole view” of the wife was that she should undertake treatment for the long term benefit of the child.

THE HUSBAND’S THREE WITNESSES

The evidence of the husband’s sister, the husband’s father and Ms D demonstrated their commitment to the husband’s cause, their manifest lack of objectivity, independence and impartiality. When one carefully considers the content of the husband’s trial affidavit filed 28 February 2007 and weighs its contents, commentary and concepts against that of each of these witnesses, the conclusion is obvious.
Having carefully read each of the affidavits and listened to each of the witnesses giving evidence in court, I am satisfied to the requisite standard of persuasion that the affidavits were drawn in concert with the husband, that each of the three witnesses mindlessly embraced his thoughts and rabid view of the wife and were, essentially, the voice of the husband through another. I found each of them to be biased, devoid of individual opinion and subject to the banal influence of the husband’s entrenched view of the wife.

I am also to consider the likely effect of any changes in the child’s circumstances, including the likely effect upon her of any separation from either of her parents or any other person, including for example a grandparent. I have given this my very careful consideration and for that reason have crafted the orders in the manner that I have. Those orders, by their very structure, impose a markedly different regime from that to which the child has been used to. I am confident that any collateral impact upon the child (if at all) will be handled sensitively by the wife and it may be that it would be useful for the Independent Children’s Lawyer to meet with the child and explain the orders to her. What is important is that the child will nonetheless maintain a connection with her father and his family in circumstances from whence, subject to any action taken by the husband, there is an avenue to a positive future.
I am also to consider the capacity of each of the husband and the wife, including any other person such as a grandparent to provide for the needs of the child, including her emotional and intellectual needs. I have already made it quite clear within the confines of this long judgment that the wife has, without question, the capacity to care for the needs of the child as prescribed in s 60CC(3)(f) of the amending legislation. As matters presently stand, given the husband’s wholly negative attitude towards the wife as described, for example in his affidavit of evidence in chief, I am of the view that he has but a limited capacity to care for her emotional needs. It seems to me that he places his own needs and requirements before that of his daughter. He has, with respect, conducted himself appallingly in his quest for evidence seen, for example, from his actions in taking the child to the medical clinic (Exhibit “H20” and “H21”) and his own revelation that he endeavoured to have her speak on the Kids Helpline (par 80).
I have little doubt that the husband is capable of caring for the child’s intellectual needs. Insofar as her actual physical needs are concerned, the evidence is clear that he has delivered and/or caused the child to be delivered to school in a dirty, unkempt and smelly condition. He appears to have rigid ideas as to her diet demanding, for example, that the wife provide “fish tablets” to the child as supplied by him. It also appears from the evidence that it is the wife who, upon the child’s return to school from the care of the husband, provides her with nutritional food for the day. Further, there is evidence to suggest that the husband plays only a marginal role in the actual care of the child when spending time with him and that he fails to oversee her general health and cleanliness. The wife, for example, gave evidence of the child being returned from the husband’s care with scratches, bruises and mosquito bites. I accept that evidence.
Finally, the other additional consideration of relevance requiring my attention is the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the husband and the wife. It is unnecessary for me to dwell any further on this consideration as I have comprehensively addressed this issue throughout the course of my long judgment. Put in essential terms, the wife has demonstrated, despite the straitened circumstances in which she has found herself an unwavering responsibility towards the development, nurture, protection and welfare of the child. She alone has borne the onerous financial responsibility of supporting the child, save for some modest contributions from the husband. She has been supportive of his role in the child’s life despite the rabid, insensitive and diabolical accusations he has made against her. She has been resolute and calm in the face of his abuse and never permitted any negative feelings she may have to impact upon her daughter. Not so the husband who has, for the reasons I have set out in this judgment, been quite irresponsible in his parenting of the child.

PARENTAL RESPONSIBILITY

The question of parental responsibility was also a contested issue before me with the husband seeking an order for equal shared parental responsibility and the wife seeking an order for sole parental responsibility. The Independent Children’s Lawyer supported the order sought by the wife. Section 61C(1) of the amending legislation provides:
61C(1) [Each parent has responsibility for child] Each of the parents of a child who is not 18 has parental responsibility for the child.
Section 61DA of the amending legislation provides:
61DA(1) [Presumption of equal shared parental responsibility] When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
61DA(4) [Presumption may be rebutted] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The operation of those Sections was best summarised by the Full Court in Goode v Goode 36 FamLR 422 at 439 as follows:
“[65]In summary, the amendments to Pt VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
…
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
…
9.The child’s best interests are ascertained by a consideration of the objects and principals in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.”
In my view, having regard to the whole of the evidence and my findings, I am satisfied to the requisite standard of persuasion that it would not be in the best interests of the child for her parents to have equal shared parental responsibility of her. On that, the evidence is clear.
Firstly, as I have recorded (par 230), Ms K said that if one parent perceived the other as inadequate, as a parent unable to protect the child, it was her view that there was no way they could possibly come to an agreement about any of the major issues to do with their child. When challenged by the husband, Ms K made it clear (par 243), that in the circumstances of this case, she could not recommend shared parenting. That too was the opinion of Mr Pa (par 272), who gave support for the wife being the primary resident.
I accept the evidence of both Ms K and Mr P on this issue which is plain common sense given the discrete circumstances of the case. In my view, the presumption is overwhelmingly rebutted by the evidence and I am satisfied that it would not be in the best interests of the child for the husband and the wife to have equal shared parental responsibility.
I do not propose to repeat the findings I have carefully made in the course of my judgment. In summary, the husband’s view of the wife both as to her mental well being and parenting of the child is so grossly distorted and in palpable error that it is clear there could never be, as material presently stands, a sensible communication between them dealing with important decisions associated with the child’s needs and requirements. As at this time, the husband is pathologically incapable of being supportive of the wife as a parent and mother. To the contrary, he is destructive.
It is the wife, in my view, who should alone be responsible for (inter alia) the supervision of the child’s education and health. The husband should not be free to take the child to a medical practitioner as he has in the past, for it is clear to me that his purpose in so doing, certainly in respect of his taking the child to the … Medical Centre, has been his determined quest in the pursuit of evidence to impugn the wife and not for genuine medical purposes. I accept that his attendance upon Dr C was not so obvious and had elements of concern, but it nonetheless, in my view, it still carried the hallmark of an evidence gathering exercise. Any issue relating to the child’s sleep patterns can be more than adequately supervised by the wife which would be made a lot easier were the husband to contribute financially to the child’s general nurture. Given these circumstances and the evidence I have heard, it will be appropriate to restrain the husband from so acting.
I regard the husband’s failure to contribute child support in a meaningful way to assist the wife in the general care of the child to be shameful. To portray himself as an essential contributor by reference to some keyboard and swimming lessons is plain claptrap. The husband has elected not to work, relying upon his claim that he is committed to the court proceedings. I do not accept that, for it is far deeper as is his attitude towards meeting the necessary mortgage payments in respect of the former matrimonial home and the two investment properties. His disobedience of the court orders in respect of costs orders made against him is palpable.
Given the whole of the circumstances discrete to these proceedings, the orders I propose to make for the time the husband shall now spend with the child demonstrates that the responsibility for making all the necessary decisions for the child must vest with her. That is, in my view, clearly in the child’s best interests.
As matters presently stand, I also propose to make an order restraining the husband from attending the child’s place of education. I am satisfied on all the evidence I have heard that it is appropriate to do so given the callous and indefensible attitude he has displayed in the past seen in his various pieces of correspondence to the school.
The orders of the court will be as follows:
1.That all previous parenting orders with respect to T PARSONS born on …February 2000 (“the said child”) be and are hereby discharged.
2.That the said child live with the wife AND THAT the wife do have sole parental responsibility for the said child.
3.That the said child do spend time with and communicate with the husband:
3.1on each alternate Sunday between the hours of 10.00am and 5.00pm to commence on 28 October 2007 and at such other times as may be agreed between the parties;
3.2from 3.00pm until 5.00pm on each of Christmas Day, the said child’s birthday, Fathers Day and at such other times as may be agreed upon between the parties.
4.That the husband do collect the said child from and return her to the wife’s residence for the purpose of the orders referred to in paragraph 3 hereof.
5.That the operation of paragraph 3 be suspended during the month of January in each year commencing in 2008.
6.That the wife authorise the proper officer of the school or schools at which the said child attends or might attend from time to time to provide to the husband at his expense (if any) copies of all school reports, school newsletters, order forms for the purchase of school photographs and other school publications ordinarily provided to parents.
7.That the wife as soon as practicable advise the husband of any significant illness or injury suffered by the said child and identify the treating medical/health professionals charged with the care of the said child.
8.That the husband, by himself and his servants or agents be and is hereby restrained:
8.1from attending at the school or schools to which the said child attends or might attend from time to time, or be within 100 metres of such school; and
8.2from taking the said child to a medical practitioner save in an emergency and upon forthwith providing notice thereof to the wife.
9.That upon the Independent Children’s Lawyer explaining the nature, effect and impact of these orders to the said child, the Independent Children’s Lawyer be otherwise discharged.
10.That those parts of the husband’s amended Form 1 Application filed on 28 February 2007 and the wife’s amended Form 1A Response filed on 15 January 2007 that seek relief by way of children’s orders be otherwise dismissed and removed from the Active List of Pending Cases.
11.That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.
12.That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.
13.That the wife’s costs and those of the Independent Children’s Lawyer be reserved for further submission.
I certify that the preceding 360 numbered
paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.

Associate to Guest J

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Prendergast & Parsons (No. 12)

[2007] FamCA 1233

17 October 2007

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Abuse of Process

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