Pryor and Judd - [2016] FamCA 820

FAMILY COURT OF AUSTRALIA

PRYOR & JUDD

[2016] FamCA 820

FAMILY LAW- CHILDREN – Where the father partially engages with final hearing – Where the father seeks an adjournment via email – When the father seeks an adjournment because he is sick – Where the father only appears on the first day of hearing – Where the hearing proceeds undefended – Where there is family violence between the parties – Where the father has criminal convictions for personal violence offences – Where the child visits the father in prison – Where the child discloses physical violence perpetrated by the father – Where the father continues to threaten the mother – Where the father has a propensity to act in a violent and abusive manner – Where there is an AVO protecting the mother from the father – Where that AVO expires – Where the child expresses views on parenting arrangements – Where the child’s views are influenced by the father – Where the father pressures the child in relation to his views on care arrangements – Decision to give no weight to the child’s expressed views – Where the mother protects the child from her feelings about the father – Where the father does not take the opportunity to have supervised contact with the child – Ordered that the mother have sole parental responsibility – Ordered that the child live with the mother – Ordered that the child spend no time with the father – Ordered that the father is restrained from approaching the mother and the child

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:

Ms Pryor

RESPONDENT:

Mr Judd

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

FILE NUMBER:

(P)NCC

3004

2014

DATE DELIVERED:

28 September 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

22-23 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bithrey

SOLICITOR FOR THE APPLICANT:

Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

Orders

That all prior parenting Orders in relation to B born … 2005 (“the child”) are discharged.
That MS PRYOR (“the mother”) have sole parental responsibility for the child.
That the child live with the mother.
That the child spend no time with MR JUDD (“the father”).
Pursuant to s 68 of the Family Law Act the father is restrained from entering or remaining in:
(a) Any residence of the child; and
(b)Any place of education of the child including but not limited to Suburb C Public School, Before and After School Care (OOSH Care) and Vacation Care.
That the father shall within 28 days of these Orders file and serve any written response on which he relies to the Application by the mother for her costs [Order 5 Amended Initiating Application filed 21 December 2015].

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pryor & Judd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC3004 of 2014

Ms Pryor

Applicant

And

Mr Judd

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Pryor for parenting orders in respect of one child B, aged 11.
The proceedings were commenced in November 2014 in the Federal Circuit Court.
The Applicant is the mother of the child. The child lives with her and for the past year has not seen or spent time with his father despite there being an interim order for supervised time in a contact centre.
The Respondent is the father Mr Judd.

Participation of father in the proceedings

The hearing commenced on 22 August 2016. The mother was present at court represented by her solicitor and counsel, the Independent Children’s Lawyer and her counsel were present.
The father had sent a message[1] which could be interpreted as an application for indefinite adjournment in circumstances where the father said he was ill.
[1] Exhibit 1 to Interlocutory Application
The court advised the parties of the message containing the request and also of the fact that the court had emailed the father on the last working day before the hearing, that is 19 August 2016, advising him that if he did intend to participate in the proceedings he would need to attend at court and that if he did not do so the matter might proceed on an undefended basis.
The father sent his response to the address of that email. The request was considered, opposed by the other parties and not granted for reasons given at the time.
The matter began and proceeded on the basis of submissions.
Shortly after court had resumed following the lunch break I was advised of a telephone call to the National Enquiry Centre (“NEC”) to find out what had happened to the father’s request. The NEC was advised that the matter was proceeding undefended.
At 3.08 pm on the first day of trial the father appeared at court. In response to my question he said there would be no medical evidence explaining his absence from court but that he had always intended to attend and participate.
I advised the father that as he had not filed any material as directed, or at all, that the matter would have likely proceeded undefended even if he had appeared at 10.00 am. However, over the opposition of the mother and the Independent Children’s Lawyer, I allowed the father to use the rest of the court day to look at the material which had been tendered into evidence, in particular, directing him to Exhibit 3, the tender bundle put forward on behalf of both the mother and the Independent Children’s Lawyer which contained extensive records from police, the child’s school and the Department of Family and Community Services.
I also indicated to the father that he could, if he wished, attend the following morning at 9.00 am to continue inspecting those documents. The father took up that opportunity stating that he could be available from 8.00 am; 9.00 am was confirmed. The father also said that he had many questions for the Applicant mother, her husband and also for the Family Consultant who prepared the two Family Reports. I also indicated to the father that he would be able to cross examine those parties.
I further advised the father who spoke of having put some papers together in the form of a draft affidavit that “the door to filing affidavits had closed” and that his involvement in the proceedings would be limited to what I had outlined.
The father spent the rest of the afternoon reading the exhibits.
On 23 August 2016 the father did not attend at 9.00 am or at all. By 10.30 am there was no appearance by or on behalf of the father, no message had been received at the court or through the NEC. On that basis, the matter proceeded taking up the original course, of submissions being made on the basis of the evidence already filed.
The matter concluded prior to lunch time on that second day.

History of Relevant events

In January 2004 the parties began living together. They were both aged 19.
The father had a child D, then aged about 12 months old. That child lived with his own biological mother.
Within six months of cohabitation the mother was pregnant.
In 2005 the subject child was born.
The parties’ relationship was a violent one, characterised by assaults on the mother during the course of argument:[2]
During the course of these arguments Mr Judd would:
(a)Push me and throw me into walls;
(b)Grab me around the neck and squeeze my throat which caused me difficulty in breathing;
(c)Punch holes in the walls; and
(d)Yell and swear at me.
[2] Affidavit of the mother filed 11 July 2016, par 5
When the mother mentioned leaving the relationship the father would threaten to take the child and not allow contact, and on other occasions, he would threaten self-harm.[3]
[3] Affidavit of the mother filed 11 July 2016, pars 7-8
Approximately 12 months after the birth of the child, the mother did leave the relationship, taking the child with her. She obtained her own independent accommodation.
Later that year, in either late 2006 or early 2007, the father moved to Queensland and did not spend time or communicate with the child for a period of two to three years.
Although he had advised the mother that he was going to Queensland for employment the father did not pay child support or make any financial contribution to the care of the child.
During the period of the father’s absence, in about April 2008 the mother met and commenced a relationship with her now husband Mr Pryor.
Also during this period, in September 2007 the father was convicted of assault occasioning actual bodily harm.[4]
[4] Exhibit 3 – subpoena 18, tag ICL1
In 2008 the father returned to the Newcastle area and began spending some time with the child.
In 2008 the father was convicted of several serious charges including grievous bodily harm, assault occasioning actual bodily harm, firing a weapon at a man likely to cause harm and take or detain in company with intent to get an advantage occasioning bodily harm. This was an extremely violent crime which I will turn to later in these reasons.
In early 2009 the father was sentenced to prison for 26 months. The mother learnt of his imprisonment through the paternal grandmother. The mother agreed with some trepidation to a request by the paternal grandmother for the child to visit his father in prison once per month. The mother agreed because she trusted the paternal grandmother.
In August 2010 the father was released on parole after serving 22 months of his sentence. A parole record from August 2011[5] refers to the father as follows:
Parolee [the father] reported generally as directed with some difficulties due to work, continued to present with an inflated sense of self and an over familiar attitude. Also continued to minimise his offences.
[5] Exhibit 3 – subpoena 17, tag M1
The report concludes with this sentence relevant to these proceedings, “Generally a difficult client with little insight into his offending behaviour and personality traits. Little gained during parole other than monitoring role”.
Soon after his release the father began a new relationship with his current partner with whom he now has two children, daughters aged four and two.
In 2011 the child began spending every second weekend with the father at the father’s home.
A record was tendered into evidence of a COPS report for 7 October 2011 where the father is alleged to have threatened his partner’s father and other family members after he was told that the flat which he shared with his partner (and which was owned by the partner’s father) was to be sold. The reported threat is as follows, “If you want to go, go. I have got mates. I’ll blow the place up. I’ll take you, and you and you. You don’t know what I am capable of”.
There is also a threat allegedly made to the partner’s aunt, “I’m going to fucking kill you and I’m going to come up there and blow the farm up. I’m going to fucking kill you. This will be the end of you”. This is untested material and I am unable to make a finding about whether or not the father issued those threats. However in that context, this observation was made by police of the father and his current partner,
During the conversation [between the father and his partner] the accused [the father] was observed to behave in a dominant and standover manner, constantly interrupting [Ms E] [the partner] whilst trying to explain she wanted a few weeks apart from him and that they were not breaking up. The accused was observed to be very highly emotional and despite police attempts to calm the situation the accused would not heed advice to provide [Ms E] with some time apart to sort her emotions out.
The police made an observation of the father’s partner that she was extremely timid and submissive in the company of the accused, even with police and family presence around her and “appears to be mentally fragile at this time and also the fact that she is pregnant with the accused’s child”. An apprehended violence order (“AVO”) was taken out by police. The father denied the threats and any intention to harm. The father’s partner restored their relationship thereafter. Police note there have been nil issues since the provisional AVO was enforced. Charges were not laid.
In 2011 the mother gave birth to the child of her marriage to Mr Pryor, a boy F, now aged almost five. That same month the father’s partner gave birth to a girl who is now also almost five.
On 15 March 2012 orders were made in respect of the father’s oldest child D, now aged about 13. Those orders were made on an undefended basis, the orders being, that the child live with the mother and that she have sole parental responsibility, there was no order providing for the child to spend any time with the father.
Over the following two years the father’s behaviour appeared to escalate in terms of aggression and violence involving third parties. Throughout this period the subject child was spending at first, substantial time and, then from mid-2013, equal shared time with the father.
On 6 November 2014 the mother says that the child told her that he was scared to go the father’s home. There had been a complaint appropriately raised with the mother by the father that the subject child had said something to the father’s young daughter that had been sexual in its nature. The mother raised the topic with the child and told him that they would go over to the father’s home to talk about it. At that point, the child began to cry and wondered if his father would be angry with him. The mother reassured him that the father might be a bit upset but that would be alright. At that point, the child asked the mother whether the father would hurt him and there was this conversation:
Mother         What do you mean, is Dad going to hurt you?
Child            Sometimes when I get into trouble, Dad punches me.
Mother         What do you mean?
ChildWhen I do something wrong, Dad punches me in the arm. He then makes me run to my room and if I am not fast enough he then punches me on my hands.
The mother then observed the child to be scared and frightened.[6]
[6] Affidavit of the mother filed 11 July 2016, par 63(d)
The mother did go to the father’s home but first of all raised the issue of physical discipline,
Mother [B] told me that you punch him. Is that true?
FatherFucking oath I do. You’ve got your way of disciplining him and I’ve got mine. You know what, I’ve had enough of that kid and the lot of you. I am done. You can keep him. Good luck to the lot of you.
At that point the mother returned home with the child having sat in the car throughout the conversation.[7]
[7] Affidavit of the mother filed 11 July 2016, pars 63(e)-(g)
Thereafter, the father became extremely threatening. The unchallenged evidence of the mother and her husband is that the father sent messages such as: “Let [Ms Pryor] know that [Ms Pryor] is going to have her nose broken for causing a scene at my place and for not dropping [the child] off to me” and “Fucking watch yourself cunt, you are on the brink of having your legs broken. Seriously fuck off” and “[Ms Pryor] is just luck (sic) I didn’t have [Ms E] come out and jump on her head” and “I don’t want nothing to do with the kid” and “… you make sure that he knows that I don’t want to see him and that he has just lost his daddy …”.
Subsequently, the evidence of the mother’s husband is that the father sent an apology in this form on Facebook, “I am really sorry bro, sincerely your right I shouldn’t have snapped like that hope you know that I really didn’t mean it and I wouldn’t hurt any of you I love you all PS I am a cunt I blame my Dad”. The mother’s husband did not respond and subsequently it appears the father’s mood changed, subsequent messages were “No worries you ignorant cunt you want an enemy in me that you just got one” and “I will be at your place later today see if you grow some balls when we are face to face” and “I will be picking [the child] up next Friday going back to the usual make sure that you and [Ms Pryor] are far far away got it”. The mother reported these matters to G Town police.[8]
[8] Affidavit of the mother filed 11 July 2016, pars 65-67 and Affidavit of Mr Pryor filed 15 July 2016, pars 12-14 and Exhibit 3 – subpoena 5, tags ICL5.19 and ICL5.20
The mother withheld the child from spending time with the father and took the decision to commence court proceedings.

History of Litigation

On 14 November 2014 the mother filed an Initiating Application in the Federal Circuit Court. She sought final orders for sole parental responsibility, residence, time with the child as agreed between the parents and a restraint on the father using physical discipline.
On an interim basis she proposed time at H Contact Centre for the child to spend with the father and a restraint on the father removing the child from school.
On 17 November 2014 the mother received a number of threatening text messages from the father. The police were called; the mother and her husband made statements on 19 November 2014 and an interim apprehended domestic violence order (“ADVO”) was made against the father.
On 21 November 2014 there was an incident at the child’s school discussed in these reasons.[9]
[9] See below at [100]
On 15 December 2014 interim orders were made by consent providing for the child to live with the father for defined periods, and otherwise live with the mother. Directions were made for further proceedings.
On 8 January 2015 the AVO for the protection of the mother and her husband was made as a final order for a period of 12 months.
On 8 January 2015 the mother filed an Amended Initiating Application with a different approach to time between the child and the father, proposing alternate weekends, half school holidays and special occasions.
On 19 January 2015 the parties attended a Child Inclusive Conference.
On 20 January 2015 the father filed his Response proposing equal shared parental responsibility and that the child live with the parties on a week about basis, with changeover on Friday at the conclusion of school. The father also filed a Notice of Risk where nothing was alleged.
On 22 January 2015 interim orders were made in the Federal Circuit Court for the parties to have equal shared parental responsibility and for the child to live equally between the parents on a week about basis, as proposed by the father. Various other orders, directions and restraints were made.
On 15 April 2015 the parties attended interviews for a Family Report. The Family Consultant noted that the father’s partner did not attend her scheduled interview and did not respond to the Family Consultant’s messages requesting her to make contact so that an alternative appointment could be arranged.
The father himself was described as ‘extremely reluctant to participate in the Family Report process on the basis that the parents had already reached agreement for equal shared care. The Family Consultant noted that the father became ‘increasingly belligerent’. At one point in the telephone discussion the father questioned whether the Family Consultant was scared of the Independent Children’s Lawyer. The father was also ‘obviously annoyed’ when the Family Consultant insisted that all members of the father’s household were required to attend.[10]
[10] Family Report dated 1 May 2015, par 44
The Family Report was released. Concerns were raised about the possibility of the father having a propensity to act in a violent and abusive manner.

On 5 May 2015 interim and procedural orders were made in the Federal Circuit Court including a request for intervention by the Department of Family and Community Services (“the Department”). The Family Report was released to the Independent Children’s Lawyer and the Department only.
On 15 June 2015 further interim and procedural orders were made in the Federal Circuit Court including the suspension of then current interim orders for a period of 28 days; the parties were prohibited from causing or allowing the child to come into contact with the father; the Independent Children’s Lawyer was directed to interview the child as close as is practicable to the 28^th day following the making of today’s orders; the parties were restrained from allowing the child to contact the father; the parties were restrained by injunction for a period of 28 days from contacting each other or members of the other parent’s family; and the matter was transferred to the Family Court.
The notes to those orders reflect the concerns that the orders were designed to address:
a)That the child was 10;
b)That the Family Report set out that the child held strong views that he wished to spend time with the father;
c)That the Independent Children’s Lawyer expressed concern that the father may have placed pressure on the child or the mother to continue a relationship between father and child;
d)That the orders had been made suspending the orders for time so that the mother could reflect on the orders she was seeking and the effects such order will have on the child;
e)The Independent Children’s Lawyer to reinterview the child for the purposes of ascertaining the child’s views. That interview to occur about the time that the suspension order was due to cease.
An order for suspension of current interim orders for a period of 28 days was subsequently taken by the father to mean that the interim orders would continue thereafter. The order which prohibited the parties from causing or allowing the child to come into contact with the father was taken by the mother to mean that there would be no further contact between the child and the father pending further hearing in the court. Certainly the two orders were inconsistent.
On 29 July 2015 a Registrar of this court directed the proceedings be conducted pursuant to Division 12A. By that time, the 28 day suspension had elapsed.
On 26 August 2015 the mother filed a Further Amended Initiating Application reviewing her position to the child spending time with the father as determined by the court and returning to her interim position that contact be at the H Contact Centre for two hours a fortnight.
On 29 August 2015 the mother attended G Town Police Station to report a perceived threat in a text message from the father. The father had asked as to why he was not allowed to see the child. As previously discussed, the parents were in very different positions in terms of their interpretation of the then current orders.
On 27 August 2015 the father sent a message to the mother, “You are now preventing me from being a father to my son. If you know me, you know how much I love my children. This ain’t gonna end well for you”. The police involved noted their belief that “she [the mother] was primarily motivated by gaining advantage at Family Law Court”. I do not consider that is what the mother was doing. The father conceded to police that he had sent the message but also informed the police of his view of the continuation of the orders. The father sent the police what the police described as “a selection of the relevant Family Law orders via email”, when asked for the full document the police received the father’s reply, “[Mr Judd] re. family law orders, just call my lawyer [Mr I], it’s pretty cut and dry, call [Mr J] [the father’s solicitor].[11]
[11] Exhibit 3- subpoena 26, tag M4
On 4 September 2015 the solicitors for the father were contacted by police and did forward a full copy of the current orders. The police, not unreasonably, interpreted the orders as meaning that the father could continue to see the child with the consequence that they concluded that there had been no breach of the current AVO.
On 16 September 2015 the matter came before me and interim orders were made discharging all previous parenting orders, sole parental responsibility to the mother, residence to the mother and the child to spend time with the father at H Contact Centre for no less than two hours per fortnight. A direction was made for an updating Family Report to include observations and interviews with the father’s partner and his oldest son D. Leave was given at that time for the legal representatives to have access to the file in relation to Family Law proceedings between the father and D’s mother.
On 17 September 2015 the mother completed intake procedures for the H Contact Centre.
On 19 October 2015 the father’s partner attended for interview with the Family Consultant. The report was released nine days later.
Ms E attended for her interview. She was then aged 24 and reported that her relationship with the father was her first serious relationship. She was stoutly supportive of him as a partner and as a non-violent person, “[Ms E] volunteered that [Mr Judd] was a really nice person and that he has never been violent other than in 2008 when he was convicted and gaoled”. The father’s partner went on to say that she did not consider that the father had been violent because he had not hit anyone. She is reported as smiling and at times almost laughing as she explained that the father “… sometimes says stupid things but that he doesn’t mean any harm”.[12]
[12] Updating Family Report dated 19 October 2015, par 7
The father’s partner was dismissive of police reports in November 2011 that she had appeared timid and frail in a conflict between the father and members of her family. She explained that “[Mr Judd] had not meant anything when he had threatened to kill various members of her family and burn down their house”. She explained that this was an example of Mr Judd saying silly things if he felt he was being ganged up against and that he did not mean those things.
The father’s partner was equally dismissive of allegations that D’s mother had made against the father. She expressed her view that D’s mother “… had lied to police on each of those occasions because she wanted to get custody of [D]”.[13]
[13] Updating Family Report dated 19 October 2015, par 13
The father’s partner went on to reiterate that the father was not physically violent and was prone to say silly things.
By the date of interview, the father’s partner had had two children to him, then aged not quite three and one year old. Her experience of the father may have been entirely different to that of the mother and others or her defensive statements may have been made through loyalty and/or fear. It is impossible to know.
On 24 November 2015 trial directions were made for the matter to be heard for four days commencing 24 May 2016 overlisted. The parties identified at that time who their witnesses would be.
On 8 February 2016 updated trial directions were made appointing clear trial dates for the four days commencing 22 August 2016 and filing dates for affidavits were adjusted accordingly.
The applicant mother filed an Amended Initiating Application and affidavits in accordance with orders and directions. The respondent father filed no material at all.
On 9 June 2016 a Notice of Ceasing to Act was filed by the solicitors who had consistently represented the father up to that date.
On Thursday 18 August 2016 the court made contact with the father about his intentions in relation to participation, there having been no document filed and no case outline.
The father responded at 7.57 pm that evening as follows:[14]
Hi thank you for your email honestly I have no idea what to do what to file to who my legal aid grant was canceled (sic) my lawyer has left my case up to me I’m on my mind I’m sorry but no idea what to do no one has called me so bit lost right now
[14] Exhibit 1 to Interlocutory Application
On 19 August 2016 the court sent an email to the father advising him that if he was intending to participate in the proceedings he would need to be in attendance at court and that if he did not attend, the matter could proceed undefended.
The hearing commenced on 22 August 2016 with some transitory involvement of the father and concluded on the second day.
An order was made suspending provision for supervised time at the contact centre pending delivery of judgement, which was reserved.

Evidence

The documents relied on in respect of the application were as follows:
The mother
(a)Amended Initiating Application filed 21/12/2015;
(b)Affidavit of the mother filed 11 July 2016;
(c)Affidavit of Mr Pryor filed 15 July 2016;
The father
(d)Response filed 20/012015;
(e)Notice of Risk filed 20/01/2015;
Reports
(f)Child Inclusive Conference Memorandum dated 19/01/2015;
(g)Family Report dated 1/05/2015;
(h)Updating Family Report dated 19/10/2015.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
The issues, arising from the additional considerations of s 60CC(3), raised by this case relate to exposure of the child to family violence, the capacity of the parents to meet the child’s needs and the weight to be attributed to the expressed views of the child.

Additional Considerations

Views expressed by the child

The child is 11 years old and in his final year of primary school.
The weight to be attributed to his views is a matter for careful consideration by the court. The child has expressed a consistent view to two different Family Consultants since his first interview in January 2015. That view is that he wants to spend time with his father.
In January 2015 in a Child Inclusive Conference the child reported that he was ‘happy in both homes and wants the current shared care arrangements to continue as he does not want to lose any time with his father’. He expressed a worry that ‘the Judge will stop him seeing the father’. The child went on to discuss the benefits of the week about arrangement then in place, in particular that it gave him a break from preschool aged step-siblings in each household. Also that he ‘gets to spend time with each parent’. He thought the arrangement was ‘fair’.[15]
[15] Child Inclusive Conference Memorandum dated 19 January 2015, pages 2&3
By then, the equal shared care arrangement had been in place for about 18 months. The Family Consultant observed the child as being ‘somewhat anxious and guarded about what he said, particularly in relation to the father’. There is at least to some extent an inference to be drawn from that observation that the child was under pressure to express positive opinions about shared care week about. He may also have been influenced by the father’s willingness to allow him to stay home from school. The Family Consultant noted “An exorbitant amount of days absent from school and late to school whilst in the father’s care”.
In April 2015 during an interview for a Family Report, the child then aged just 10 expressed his views to a second Family Consultant. This time it was observed that the child ‘appeared to be very keen to express his view that he wanted the current week about shared care parenting arrangements to continue’.[16] He is reported to have made that statement several times. He adamantly rejected all hypothetical parenting arrangements other than equal time week about.
[16] Family Report dated 1 May 2015, par 59
There are two significant observations about the child in this section of the report. Firstly, that “He appeared anxious and was near tears on a few occasions. He answered all questions put to him but his answers were generally not free flowing”.[17] He was noted to be guarded in his responses when discussing his family and his parents’ households but spoke freely and comfortably when discussing enjoyable pastimes such as playing video games. The second observation was that the child was not sure what parenting arrangements his mother proposed for the future but guessed that she liked the current arrangements. The child did know what his father wanted which was to keep the shared care week about arrangements in place. The child again stated “… it is fair – I get to see them both”.
[17] Family Report dated 1 May 2015, par 57
From these two observations I draw the conclusions that the child was conscious of the significance of his stated views, knew what his father wanted and felt under pressure. Since he had no sense of what arrangements his mother wanted. I infer that the pressure related to his father’s wishes.
I am supported in this conclusion by an incident on 21 November 2014 reported by the principal of the child’s school to the Family Consultant. This incident was also raised by the mother.[18] Each parent had gone to collect the child on a Friday afternoon. The disagreement over who should take him quickly escalated; police were called. The bell rang. The child emerged, saw his parents one on each side of the waiting area and began to cry. Both parents approached the child. The father began to lead him away. The principal arrived and spoke to the parents. The child then said this to his mother, “Mum, I am going with Dad. He said that he won’t do it anymore. He is going stop it now” [this was taken by the mother to be a reference to the father punching the child as a method of discipline]. The child told the principal he felt safe to leave with his father and did so. Police arrived after the event. The principal told the Family Consultant that on that occasion he [the principal] felt the child had been pressured by his father and that “… [the child] appeared to eventually agree to go home with [Mr Judd] in an attempt to placate [Mr Judd] and protect [Ms Pryor] [the mother]”.[19]
[18] Affidavit of the mother filed 11 July 2016, par 69
[19] Family Report dated 1 May 2015, par 67
Further, in an updating Family Report in October 2015 there was a statement by the father’s current partner. The purpose of the report was to rectify her absence from the first report. The father’s partner expressed her concern about the child as follows:
… [the child] had been consistently expressing his desire to continue the shared care arrangements and she thought that he would likely be feeling very stressed as he had not seen his father (and extended paternal household) for several months. She explained that [the child] was a shy boy and would not want to say anything that would jeopardise his chance to live in a week about arrangement.[20]
[20] Updating Family Report dated 19 October 2015, par 15
This stressing through continual reference by the child’s step-mother of the child’s commitment to, week about shared care, is indicative in my view of the issue being a matter of firmly held principle in the father’s household.
I have come to the conclusion that the child has been placed directly under pressure by the father to both comply with the father’s wish for an equal shared time arrangement and to be an advocate for that position in this litigation.
The child loyally and, most probably, fearfully, did just that in interviews with two Family Consultants. On one occasion in November 2014 he left school with his father in order to placate him and to protect his mother from the father’s reaction if crossed. That was the view of the principal who was present for the incident and spoke to the child and both parents. I have no basis or reason to doubt the assessment of the principal in that regard.
It has to be said that in 2011 when the father was released from prison, the mother recounts the child wanting to see the father and spend time with him after there had been a few re-introductory telephone calls. The mother agreed to day time visits and, then after a period, alternate weekends. There is no reason to doubt the child was genuinely interested to develop his relationship with his father. He had been taken by his paternal grandmother, with the mother’s consent, to visit his father in jail which kept the relationship alive.
However, within a fairly short time the father began to discuss spending more time in the presence of the child despite the mother’s clear statements that the child should not be present. The mother said that soon after the parenting arrangement increased to Friday afternoon to Sunday afternoon she received a phone call from the father where he told her that he had the child with him and wanted to talk to the mother about having more time and that the child was old enough to make his own decisions.[21]
The child at that time was almost seven. The parents agreed to meet at a family restaurant and when the mother arrived the father was present with the child sitting beside him. The following conversation took place:
Father:           I want 50/50. [The child] wants it. Ask him.
Mother:         No, things shouldn’t change.
Father:           I want to be part of [the child’s] schooling.
The mother then makes this statement, “[B] then started begging to spend more time with [Mr Judd]”.[22]
[21] Affidavit of the mother filed 11 July 2016, par 35
[22] Affidavit of the mother filed 11 July 2016, par 35(c)
By mid-July 2013 a shared care arrangement was in place Friday to Friday. The father would not step back from it even when he moved from Newcastle to K Town. The child then attended two different schools, week about, over the opposition of the mother and her best efforts to keep him in one school. It was only when the father returned to live in Newcastle in late 2013 or early 2014 that the child returned to full time attendance in his original school.
The Independent Children’s Lawyer was present when the child was interviewed by the Family Consultant in May 2015. She then asked the child some additional questions.
Counsel for the Independent Children’s Lawyer advised the Court that in an interview less than two weeks prior to trial the child was expressing a clear wish to see his father although he was no longer making specific reference to equal time. The context for this wish is the child not having seen the father since September 2015 due to the father having taken the decision not to take up the opportunity to have supervised time in a contact centre.
I am unable to determine the exact motivation for the view expressed but am reasonably satisfied that fearful loyalty, genuine affection and a desire to protect his mother from his father’s reactions are all components. Accordingly, although the child may well feel affection for his father and wishes to see him, I give no weight to his expressed views to do so given the history outlined above.

Capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs

The mother has been the primary carer for the child since his birth. She became a single parent from the time the child was twelve months old. She structured her life to meet the child’s needs and called upon the assistance of her own parents, together with the paternal grandmother and the paternal aunt who all willingly involved themselves in the care of the child at times when the mother needed to work. She did not receive child support from the father.
It is apparent that the mother has protected the child from knowledge of her feelings about the father. It is apparent that he has freely expressed his wishes to her about wanting to see his father and has confided in her about matters that concerned him about his father.
In response to his expressed wishes, the mother agreed to increasing amounts of time leading up to equal shared time in 2013 although the mother held the utmost reservation about the exposure of the child to violent and aggressive conduct by the father towards third parties.
When the father insisted on the child attending two different schools week about for a period of almost two terms, the mother did all that she could, including contacting the Board of Studies, in an attempt to cause that practice to cease.
There is nothing to suggest in any document that the mother has been critical of the father to, or in the presence of, the child.
The mother has been focused on the child’s education, both in ensuring his attendance and supporting him in moderating his behaviour which has been a significant issue.
The father has chosen to go in and out of the child’s life from the time of separation. He has not supported the child other than providing for his immediate needs when staying with the father.
The father told the Family Consultant[23] that “the parents had always had a private agreement whereby they would each provide for the child’s needs whilst the child was with them”.
[23] Family Report dated 1 May 2015, par 48
The mother advised the Family Consultant that she had applied to Centrelink for an exemption from claiming child support from the father due to the violence of the father. The consequence of this is that the mother and, later the mother together with her husband, have borne the full financial responsibility for the child.
The father’s attitude appears to be encapsulated by his statement to the mother after he had first seen the child in 2008 after a period of about two years away in Queensland, “He is my son, if I want to see him, I will see him. You can’t stop me”.[24]
[24] Affidavit of the mother filed 11 July 2016, par 20
The father allowed the child to stay home from school having expressly told him that if he said he was sick he need not go. His attendance was poor whilst in his father’s alternate weekly care.[25] He had a total of 62 whole or partial absences from school in 2014. The great majority of which occurred in his father’s care.
[25] Affidavit of the mother filed 11 July 2016, Annexure C
I also take into consideration the father’s decision not to take up the opportunity to see the child in a contact centre after those orders were made in September 2015. The father did not complete the intake process until the month before this hearing. This choice cannot be interpreted as the father meeting the child’s needs.

Family Violence

There is ample evidence before me that the father is an aggressive and violent person. It cannot be said, as his current partner has said that he makes empty threats that are silly statements that he does not intend to implement.
The offence for which the father was jailed in 2009 was one of calculation, where he kidnapped a person who allegedly owed him money and subsequently threatened him with a weapon. When the person ran to escape the father, the father fired the weapon, hitting the man. There could have been death rather than injury. It was a vengeful crime.
Records tendered into evidence[26] reveal a range of police attendances involving the father’s conduct. In March 2012 an investigator for an insurance company was threatened by the father, the subject of investigation. The expressed threat was follows:
Look here you cunt, don’t hang up on me, You’re in my fucken bad books and the next time I see you on the street I gunna fucken cut your head off and kill you and I’m capable of it so watch your back because I’ll fucken get you, you’ll regret the day you crossed paths with me.
[26] Exhibit 3, subpoena 5, flags 5.1-5.20
There was more. The experienced investigations officer who told police that he received threats as part of his duty and understood that was concerned enough to make his own statement once he became aware of the father’s criminal history. The matter proceeded to court and police applied for a provisional personal protection order for the investigator.
On 21 December 2012 the father was told in a toy shop that a particular item would not be available for Christmas the father responded with threats of personal violence towards staff.
There are reports of violent confrontations between the father and; a real estate agent, a motor vehicle repairer and, a boating supply shop employee, invariably with reports made for future reference.
When police spoke with the father about his conduct in a tattoo parlour he is described by police as “very belligerent with police”.
In a hardware store the father conceded that he had introduced a knife as a threat during an argument over a wheelbarrow, and again, there was the production of a knife in a dispute in a chainsaw and mower shop.[27]
[27] Exhibit 3, subpoena 5, tag ICL5.16
I accept the unchallenged evidence of the mother that she left the relationship with the father as a result of his direct personal violence towards her. She also observed a violent assault by the father on his own mother when he stood over her in order to obtain money from her, which he did.
On behalf of the mother it is raised that there is an unacceptable risk if the child continues to have contact with the father, of being exposed to family violence in the father’s household, and in addition of accepting the father’s conduct with third parties as a role model for his own future. I conclude that there is such a risk.
There is evidence before me of a marked improvement in the child’s behaviour in 2015 and 2016.[28] In 2014 for the child, there were 23 negative incidents and nine occasions on which he was sent to the Reflection Room (the equivalent of detention). In 2015 that reduced to 12 negative incidents and no referrals to the Reflection Room. In 2016, six negative incidents and no referrals to the Reflection Room.
[28] Exhibit 3, Suburb C Public School records, tag ICL2
His attendance at school has improved from 2013 and 2014 when there was patchy attendance during the child’s time with the father, to attendances in the high 90 or 100 per cent in 2015 and 2016.
His academic education and conduct have stabilised. There are still some problems for the child.[29] The incidents in 2016 have involved throwing objects in a dangerous manner, disrespectful attitude to a teacher, knocking food out of another child’s hand, uncooperative and rude conduct in class, but the occasions are greatly reduced and on at least one occasion, the child apologised to another student unprompted.
[29] Exhibit 3, Suburb C Public School records, tag ICL2

CONCLUSION

This is a matter where violence and family violence orders have been a significant feature in the life of the child. His mother is fearful of his father and has had to draw on courage to take this matter to conclusion. I am satisfied that she has done so, motivated by a desire to protect the child and to meet his need for a stable life.
I have given consideration to ongoing supervised time with the child with his father. However I have to take into account the father’s unwillingness to date to take up the opportunity to see the child in that context; and the child’s age, he will be at high school next year. I am persuaded that there would be insufficient benefit for the child balanced against the risk that there might be violent and aggressive outbursts by the father in the event that the contact centre was utilised.
There was an interim order made for sole parental responsibility for the mother. I am obliged to reconsider the issue of parental responsibility. In these circumstances the presumption of equal shared parental responsibility is easily rebutted by a history of violent conduct and a lack of child focus by the father on the child’s needs. The father does not provide financially for the child and was willing to insist that he attend two separate schools to suit the father’s needs when he moved away; and his failure to complete the intake for the contact centre in order to see the boy is a reflection of his unwillingness to spend time with his son other than on his own terms. Accordingly, an order is made for sole parental responsibility.
The child should continue to live with his mother as he has done all his life.
In circumstances where I have found that the father placed pressure on the child to advocate for equal share care in order to meet the father’s wishes and needs, where the father has a propensity to violent and aggressive conduct, both impulsively and in a calculated way, I consider that the relationship which undoubtedly does exist between the child and father, is outweighed by the need for the child to be safe, physically and psychologically.
I also take into account the mother’s willingness over the years to protect the child from her feelings and to allow him to openly express his own wishes to her. I am satisfied that the mother will not denigrate the father to the child and that she has been motivated by a wish for a safe and stable upbringing for him.

Section 68B Family Law Act

A restraint is sought by the mother on the father for the welfare of the child. The restraint is on the father coming to the child’s home or school. Given the orders to be made, there is no need for him to do so, however the father has a history of confrontation with those who have displeased him.
On 24 November 2014 the principal of the child’s school wrote to the father raising his conduct, “You acted in an aggressive manner in front of children and staff”.[30] This was the incident where both parents had attended at the school in order to take the child home. The principal describes the father as being “very verbally aggressive towards the [mother]” in the statement in relation to that incident contained in the school file.[31]
[30] Exhibit 3, subpoena 21, flag M2
[31] Exhibit 3, subpoena 21, flag M1
There was an AVO in place for the protection of the mother and her husband. It expired in January 2016.
There is an AVO in place for the protection of an unrelated parent at the child’s school in relation to the father.
I consider it appropriate for the welfare of the child for there to be an order restraining the father coming to the child’s home. The father has no reason to do so. The order is therefore not an imposition on him and represents a protection for the mother and her husband, their child and the subject child in the event that the father acts as he has done in the past to confront them in an aggressive or threatening way.
For all these reasons, orders will be made as sought by the mother and the Independent Children’s Lawyer. In less than seven years time the child will be an adult and can make his own decisions about restoring a relationship with his father if he chooses to do so.
Orders are made accordingly.

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 September 2016.

Associate:

Date: 26 September 2016