QUINCY & ROBERTS

[2011] FamCA 840

FAMILY COURT OF AUSTRALIA

QUINCY & ROBERTS [2011] FamCA 840

FAMILY LAW – CHILDREN – With whom a child spends time - No contact permitted - Family violence involving parent and child - Father has limited understanding of parenting responsibility - Tragic background.

Family Law Act 1975 (Cth)

Loddington & Derringford (No. 2) [2008] FamCA 925
Moose and Moose (2008) FLC 93-375
Re F: Litigants in person guidelines (2001) FLC 93-072
Wenlock and Torrens [2011] FamCA 218

APPLICANT: Ms Quincy

RESPONDENT: Mr Roberts

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 919 of 2010

DATE DELIVERED: 2 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 17 and 18 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horvat

SOLICITOR FOR THE APPLICANT: Alderman Redman Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That the mother have sole parental responsibility for the children K born … October 2006 and S born … December 2008.

2. That the children live with the mother.

3. That by injunction, the father is hereby restrained from spending any time with or communicating with, the children.

4. That if at any time hereafter, the Domestic Violence Restraining Orders of the Magistrates Court of South Australia either cease or are discharged, then by injunction, the father is restrained from contacting or harassing the mother (save as provided in paragraph 5 hereof) and from attending at her place of residence or work or the places at which the children attend.

5. That the father may send to the mother at a postal address nominated by her, such letters, gifts and photographs as are aged-appropriate for the children and subject to the mother being satisfied that the objects are age-appropriate, she shall give them to the children.

6. That the mother undergo such therapy as may be suggested by Mr L.

7. That Paragraph 2 of the orders made 22 July 2011 is discharged.

8. That the appointment of the Independent Children’s Lawyer is discharged.

9. Should any party desire to seek costs arising out of these orders, such application shall be made by way of written submission filed and served by no later than 4 pm on 11 November 2011 and any response thereto shall be filed and served by no later than 4 pm on 25 November 2011 and upon the receipt of any such submission, they shall be determined in chambers.

10. Otherwise, the application of the mother filed 12 July 2011 and the response of the father filed 21 June 2011 are dismissed.

11. That pursuant to s.65DA(2) and s.62B, 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.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 919  of 2010

Ms Quincy

Applicant

And

Mr Roberts

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. K aged five and S aged two have a secure attachment relationship with their mother, 25 year old Ms Quincy (“the mother”).  The question in this case is whether that stability should be risked by creating a largely non-existent parenting relationship with 25 year old Mr Roberts (“the father”) who is the father of S but not K. 

2. These tragic parenting proceedings focus on these children who are at the crossroads of their lives.  In my view, unfortunate as it may be, there is no evidence that these children will benefit in the foreseeable future from any relationship with the father.

3. These opening remarks have to be put in the context of parenting proceedings which have been on foot for 18 months during which various orders have been made by this Court. 

The final hearing

1. The mother was the applicant and the father the respondent.  The children’s interests were represented by an Independent Children’s Lawyer.  The mother was represented by counsel and the father represented himself.  I endeavoured to explain to the father the guidelines set out in Re F: Litigants in person guidelines (2001) FLC 93-072, however, even those guidelines have limitations. The Court cannot create a case for a litigant. Even in an environment where the obligation is on the trial judge to positively inquire into the various proposals that will best promote the future welfare of these children, without evidence of how any such proposal would work, the Court’s hands are largely tied.

2. I have no confidence that these children would benefit from any relationship with the father.  To perpetuate a relationship which is going nowhere and has nothing to commend it, is contrary to the objects of the Family Law Act 1975 (Cth) (“the Act”).  The father will be hurt by these remarks and for that, I am troubled but I cannot see what he has to offer these two very vulnerable children.

3. My concerns arose because the father provided no substantive material.  His observation was that he was not a lawyer but that had no merit.  He had been before the Court a number of times and had ample opportunity to rectify glaring problems in the evidence (as I shall show).  He was told in a number of preliminary hearings what was required of him and at various times had legal representation.  He failed to assist his own cause let alone the Court trying to work out what was appropriate for these children.

The material of the parties

1. The mother relied upon the material set out in the annexure to these reasons.  The father required the mother and her parents to attend for cross-examination but not other witnesses.  He was evasive about other witnesses but I am satisfied that cross-examination of them would not have assisted him.

2. The father filed a simple affidavit and with some prompting (and contrary to the Family Law Rules 2004) I allowed him to rely on an affidavit earlier prepared for him and filed by his then lawyers.

3. At the end of the first day of the final hearing, I asked the father to consider his position overnight and to contemplate the problems that I had explained to him which I saw as largely unanswered.  On the following day, he did nothing further to assist.

4. The Independent Children’s Lawyer relied upon the evidence of the family consultant as well as that from the contact centre.  The material relied upon by the Independent Children’s Lawyer is also referred to in the annexure to these reasons. 

The nature of the dispute

1. This dispute was a contact case arising out of an abusive and violent relationship between the mother and father.  The mother’s position as the primary carer of the children into the future was never challenged. 

2. The father not only denied the mother’s assertion of violence and aggression but alleged that she was making it up to exclude him from the lives of the children.  On any objective analysis of the evidence, the father’s denials and assertions could not be sustained.

3. The uncontroversial evidence about the background of the parties deserves now to fade into history having regard to the changes that the mother has made to her own life and that of the children.

The mother

1. The mother is an only child to parents who are public servants.  She has steady employment, good health, a commitment to her children and a desire to study at a tertiary level.  She is involved in a sporting pursuit.  She was able to explain to me the routines that she fulfils in caring for her children.  She is settled and dedicated to the parenting task.  That was not always the case.

2. On all accounts, notwithstanding the father’s assertion to the contrary, the mother had a normal childhood.  In her teenage years, that tranquillity  fell apart.  The mother was seriously sexually assaulted, engaged in prostitution, committed an armed robbery and was involved in drug taking of a serious risk-taking style.  She married at a very young age to a drug taker who committed suicide.  She gave birth to a child when she was 20 years of age.  K was that child.  His father, the mother’s husband, died when K was ten months old.

3. In the environment mentioned, the mother’s relationship with her parents was strained.  She suffered from a mental illness and was hospitalised for some days in 2005.  She then met the respondent. 

4. The mother’s new relationship with the respondent father was hardly a life-changing event but she followed his peripatetic drug-related lifestyle only to fall pregnant and give birth to S. 

5. Tragic as much of that history may be, the mother has had an “epiphany”.  She is now close to her parents, distanced herself from the father and most importantly, has a planned future for herself and the children. 

6. A question for the Court is whether that should now be destablised by contact orders even of a supervised nature. 

The father  

1. The father was described as a production worker. He currently has a job which he has kept for 6 months working with machines. His employment records suggest that he has had difficulty committing himself to anything in the long term.  He made no secret of the fact that he had had a tough childhood with parents whom he loved.  The style of parenting that he endured could only be described as violent.  It was noticeable however that his mother (“the paternal grandmother”) who had been a supporter of the father in interim proceedings and who was interviewed by the family consultant, was absent.  He stood alone.  He said that his mother would not have assisted him.

2. The father’s drug of choice seemed to have been marijuana.  I have no idea what (if any) his current illicit use is.  Initially, he resisted me taking into account a psychiatrist’s evidence in an affidavit that he had filed.  He said that the psychiatrist had only had a one half hour with him and had relied on the mother’s statements to form an opinion of him.  That simplistic assertion belied the fact that there were serious and unresolved behavioural issues permeating what he said and did.  At the bar table, at times he smiled, smirked or jumped up to proclaim that he had been misunderstood or to refute assertions being made by witnesses.  I am seriously troubled by what appears to be his immaturity and his lack of insight into the needs of his children.  In his view, all they needed was to have “fun”. 

3. I find the father is an aggressive, abusive and violent man.  The State of South Australia has intervened in this family’s life by a family violence order to control the father’s behaviour because of his conduct yet he dismissed that as insignificant.  Extraordinary though it may seem, the father has been before the State Magistrates’ Court on a number of occasions for breaches of the family violence orders.  The father’s view was that the results reflected that court’s view that his breaches were not important.  In his statement to the family consultant, he insisted that the magistrate dealing with his case condoned the breaches or at least, was not troubled by them.  Be that as it may, the circumstances that gave rise to the breaches show a clear picture of a man who has no respect for the law, no respect for his child’s mother and no insight into his own bedevilling behaviour.  I see no prospect of change. 

4. Because of all that, I intend to make orders which are unashamedly protective relating to these children.  That is appropriate for not only the children but also the mother. 

The parties as witnesses

1. The absence of representation of the father placed a large burden on counsel for the Independent Children’s Lawyer to be balanced and rigorous in her cross-examination of the witnesses.  That exercise was undertaken professionally and properly. 

2. The mother was a calm and insightful witness.  With her background and relative youth, I expected her to be defensive.  She was not.  She acknowledged her failures as a person and a parent. 

3. Being cross-examined by the person whom the mother saw as a threat to her physical and psychological stability was a daunting exercise but she was measured and thoughtful.  Her credit was not seriously challenged.  I am satisfied she has left her past behind and is now a dedicated and protective parent.

4. The father was erratic, self-absorbed and a tangential witness.  He saw much of the dispute as being the fault of the mother.  He saw himself as providing what the children needed; “fun”.  His ideas about the significant responsibilities and roles of parents were non-existent.

5. Doing the best I could, I understood the father’s position to be that the children should not be “wrapped in cotton wool” but should be involved in risk-taking ventures. 

6. Hence, I have no hesitation in finding that the father has no insights into the needs of these children nor as to the problems of his own conduct. 

7. Wherever there is a dispute on the facts between the father and the mother, I have no hesitation in accepting the evidence of the mother.

The procedural history

1. The procedural history in this case is very important because of my earlier remarks about the father.  Lest it be thought that he had been caught unawares by the nature of the proceedings or had not had sufficient time to prepare, the following history is important. 

2. In the early stages of the proceedings, the father was represented by lawyers.  He was very critical of what they had done for him but in the context of the evidence of the witnesses including the family consultant and the father’s own psychiatrist, I am satisfied his criticism says more about him than them.

3. It was noticeable that an order was made on 3 August 2011 by Registrar Thomas for the filing of affidavit material by all parties.  Being conscious of his obligation, the father’s response was to file an affidavit that contained two paragraphs.  It is worth noting what each of those paragraphs said.

4. The first paragraph said:

   Well one thing about this case is there is no evidence at all, just a bunch of storys (sic) and there is no way to prove these storys (sic) right or wrong!      

   The second paragraph read:

   I am a good dedacated (sic) father that loves his boys as much as any father ever could.

5. The proceedings were begun on 12 March 2010 by the mother filing an application.  Days later, an Independent Children’s Lawyer was appointed.

6. Burr J made procedural orders on 19 April 2010, 18 May 2010 and 5 July 2010.  In that last hearing, Burr J ordered a psychiatric examination to be undertaken and a report to be provided to the Court conditional upon which, the father could have some supervised time with the children at a contact centre. 

7. On 29 November 2010, Burr J had a procedural hearing in which it was noted that no psychiatric assessment had been undertaken.  There were further hearings on 6 January 2011, 21 February 2011 and 9 May 2011.  By this stage, supervised time at the children’s contact service had begun because the father had filed the affidavit attaching a report of his psychiatrist Dr W.

8. On 22 July 2011, the matter was back before Burr J following which there was a further hearing before Registrar Thomas and on 6 October 2011 at a callover, the matter was fixed for hearing before me. 

9. It must therefore be obvious that the father and mother had not been able to resolve matters.  At all times, there had been the assistance of an Independent Children’s Lawyer.  The father well knew what was required of him.

The proposals of the parties

1. The mother’s proposal was that she have sole parental responsibility for the children and that there be no time spent with them by the father.  Her alternate position however was that there be two occasions annually under supervision at a contact centre.  No period of time was proposed either for the duration of the visit or the life of the order.  The mother also proposed that the father be at liberty to forward letters and gifts to the children. 

2. The mother otherwise sought injunctive orders.

3. The father’s position was set out in his amended response filed 20 July 2011.  He wanted to “share” parental responsibility and that the children spend three hours unsupervised with him every second weekend.  He sought orders that the parties attend counselling to work towards “better co-parenting relationship” and that he be able to give the children presents without breaching family violence orders.  He also sought orders for the mother to be restrained from consuming alcohol or illicit substances and that she not denigrate him. There is no evidence that would support any of these latter orders.

4. Although it was not specifically sought, the father’s position was clear when he was interviewed by the family consultant because he said that his ultimate objective was to have a “shared care arrangement”. On any view, that was optimistic and unrealistic.

5. The Independent Children’s Lawyer sought to test the evidence and indicated that at a preliminary level, there should be ongoing supervised time at a contact centre but if the Court found that the mother’s position was correct on the evidence, the mother’s proposal should be supported. The Independent Children’s Lawyer’s hesitant approach at the start of the hearing changed to a strident recommendation of no contact at the conclusion of the case.

The evidence of the mother

1. Much of the evidence of the mother was not challenged. 

2. The parties had commenced living together in September 2007.  The mother had married in February 2006, given birth to K in October 2006 and her husband had died in August 2007.  When her husband died, she had already separated from him physically by only a few weeks.  It was therefore in September 2007 that the mother took K into a new relationship.

3. She said that when the parties were together, she had employment and until October 2008, the father’s limited role was to take took K to childcare.  After October 2008, she took over that role. 

4. The mother said that between July and November 2008, the father began disciplining K by putting him in the “naughty corner” for short periods but that that discipline intensified and the father became irritable and critical of everything about K. 

5. The father ceased his employment in October 2008 and decided to travel on a working holiday to New South Wales and the mother went with him.  The relationship at that stage was 12 months old. 

6. In December 2008, S was born and there were complications requiring medical treatment thereafter.  The mother’s evidence was that the father was uncaring of her difficulties. The relationship with the father must be seen as having been unsettled because when S was four weeks of age, the father took work in Brisbane and the mother remained in Adelaide.

7. I accept the mother’s evidence that by the end of 2008, the relationship between the father and K was poor.  He described K as “revolting”.  There was a dispute between the parties as to whether the father called K “disgusting” or that his behaviour was “disgusting”. Having regard to the overall approach of the father to parenting, I find that he did denigrate the child by calling him disgusting.

8. The relationship between the parties was not much better.  I accept that the father was abusive and unnecessarily critical of the way the mother was fulfilling her role.

9. The father began disciplining K requiring him to sit for hours at a time in the “naughty corner”.  It became clear in cross-examination that K was a difficult child but he was only three.  The father’s dominant personality within the relationship however meant that he was the person primarily responsible for the routine and discipline and the mother adopted a passive role.  I am satisfied that that is no longer the way she disciplines the children or deals with their routine.  When I turn to the evidence of the mother’s parents, I am satisfied that there is objective evidence to show that she is no longer an incompetent parent. 

1. The mother was challenged by both the father and counsel for the Independent Children’s Lawyer about whether she had smacked K with a metal egg flip.  She denied doing so indicating that she had certainly held up an egg flip to threaten K because of his defiance.  I have no evidence as to the cause of the child’s problems but it does not take much imagination to conclude that in a dysfunctional relationship where parents are arguing and a three year old child is watching, bad habits are formed.  It must also be remembered that the mother was immature and unsettled.  It must also be understood that the father was using marijuana daily and at times heavily.

2. In January 2009, the father went to Melbourne for employment but stayed a very short time and then returned.  He had employment again in South Australia but quit his job and the parties were on the move to New South Wales.  The mother went with the children where they stayed with the father’s mother and her partner.  There I accept that the father frequently yelled at K disciplining him as he had done in the past but for longer times.  He began smacking K on the bottom and ultimately across the head. Apart from the fact that the mother’s evidence was not challenged by the father on this issue, it would have been the perfect issue to call his own mother about to deny his conduct. He did not.

3. If there was to be any criticism of the mother, it was the fact that she did not understand her own obligations as a protective parent.  In May 2009, she obtained employment because the parties were financially straitened.  That required parenting assistance from the father but even then, there were problems.  The parties moved to rental accommodation in a north eastern New South Wales town and on one occasion, K was taken by the father to his place of employment where he sat on a blanket for five hours in the full sun.  It was the mother’s unchallenged evidence that a number of people expressed concern as to what was happening and the father seemed oblivious.

4. The father constantly complained that K was bad or naughty and the problem was all K’s.  This was a child aged three.

5. Towards the end of 2009, the father indicated to the mother that he did not want anything further to do with both children whom he said were disturbing his sleep and as a consequence, the mother began taking them away to avoid upsetting him.

6. The father began occupying his time in leisure activities leaving the mother to take responsibility for the care of both children.

7. The father during this period of time was also significantly using drugs.  Although the father was not observed smoking marijuana, the maternal grandfather gave evidence that he was very much aware of it. He did not need to observe it because in evidence, the father conceded significant daily usage.  This was an alarming admission.

8. The father’s behaviour towards the mother was conflictual.  He described her in the most denigratory of terms during their relationship.  Whilst that sort of language might be used in a fit of anger, it had significant ramifications in this case because of the mother’s past history.  She had been sexually assaulted and involved a limited form of prostitution.  The father described her as a “fucking slut”, a “whore”, “a bikie rooter” and a “prostitute”.  That sort of denigration from a drug-affected and angry man could only have further damaged the mother’s self-esteem.

9. The mother’s evidence which I also accept was that she was publically humiliated in the street and in front of her work colleagues.  By his cross-examination, it became obvious that the father did not dispute that he had done what was alleged.

10. In his cross-examination of the mother, the father was very well organised and on a number of occasions, I gave him assistance in directing his mind to the question of challenging her evidence.  None of her important evidence was challenged and accordingly, I accept it. 

The assault on the child K

1. In this environment, a serious assault occurred on the child K.  It was the subject of considerable focus in the hearing. 

2. In May 2009, with S only a few months old, the parties on the move regularly, the father’s employment variable and the father’s constant drug abuse, K not quite three years of age was difficult to discipline.  The parties discussed amongst themselves how the father had been slapped over the face and had his hair pulled when he was a child as a form of discipline.  It was the mother’s evidence and I accept, she agreed for that to occur once.  Contrary to that however, the child was sat upon by the father and struck a number of times across the face.  Watching the mother being cross-examined, I accept that she did not agree that that was an appropriate course of action at the time but the father was out of control.  I am satisfied that she was embarrassed and contrite insisting that it would never happen again.  The father’s cross-examination of the mother however indicated he has little understanding of the dilemma.  His defensive position was that that was how he was brought up as a child and I was to infer that it had not done him any harm because he still loved his mother.  It was in that context that he made the comment about not placing the children in cotton wool.

3. The evidence of the mother showed the father has no parenting capacity.  The father’s cross-examination not only corroborated that but showed that he saw no dilemma. 

4. In December 2009, the mother underwent surgery for ovarian cysts and with those problems, the relationship between the father and the children worsened.  The parties went to C on the Victorian coast for a holiday which was a lengthy car trip.  The mother’s evidence which I accept was that she was frightened of rejecting the father but the father’s behaviour towards the children was appalling.  He was critical of the children and said things such as that he wanted to throw K off a cliff.  There had been an earlier incident where the father encouraged K to jump off a jetty when he was not four years of age and unable to swim.  This too was the subject of comment by the father from the bar table in which he indicated that the children just needed to have fun. In his evidence, the father denied the jetty incident occurred as the mother had described it but conceded that he said to the child that if he kept leaning over, he would fall into the water. Having regard to the father’s concession about his anger and drug-usage at that time, I am safe in accepting the mother’s version.

5. At C, the father struck K over the head and caused bruising.  The father denied such an assault and maintained that the mother had photographs which would have established the contrary but the mother was able to satisfy me that the photographs had not been provided to her.  In this case I do not think it matters.  There is sufficient evidence to indicate the father’s paucity of parenting capacity.

6. Separation between the parties occurred in early 2010 but within days, the father created trouble.  He sent text messages complaining about the mother’s capacity to deal with household chores.  Why that would be relevant then was hard to understand other than that the father was out of control.

7. On 9 February 2010, the father assaulted the mother.  The exact sequence of events will always remain unclear but in evidence, the father said that he put his legs behind the mother, took her by the shoulders and dropped her to the ground.  The mother’s evidence was that he proceeded to kick her twice in the right side of her abdomen but the father denied that.  Having regard to the father’s evidence to which I shall later return which amounts to admissions as to his difficulty controlling his anger, I accept the mother’s version.

8. Subsequent to this assault, the mother left the home with the children but then received threatening telephone calls from the father who said that he would search every motel in town until he found her.  He used expressions such that as that he would “bash the shit out of” her.  The mother waited in a motel until her father was able to take her back to Adelaide.

9. The mother subsequently arranged for the removal of her personal effects with the assistance of removalists.  In their presence, the father described her in the most vivid terms.  The accusations of the mother were put to the father which included that in the presence of the removalists, he called her a slut and a whore.  When this was put to the father, he said that he could not remember but then oddly remarked that it was in the privacy of the home.  This was presumably to make me think that there was some distinction.  Even if there was, he then added that the removalists were present.  The language used by the father was not only of the most denigratory type but cutting having regard to the fact that in earlier times, the mother had had a chequered history.  In addition to conceding he made those remarks, in his evidence, the father also admitted that he told the mother that his own mother was right about him “going out with a hooker”.  His mother had been critical of him for his association.

The family violence order

1. The mother’s evidence then turned to the question of a family violence order.  An application was made on her behalf, albeit on her complaint, by the South Australian police.  It was based upon what could only be described as harassment by the father.  The mother had received over 300 mobile telephone messages over a space of six weeks.  Those messages were alarming, abusive and denigratory but also show a man completely out of control.  It is clear that the father’s concentration at that time was on his relationship with the mother rather than on any issue of parenting responsibility. 

2. By May 2010, the father’s harassment resulted in the mother changing her telephone number as a consequence of which, the father resorted to email communication.  The correspondence amounted to threats that he would travel to South Australia and take the children from her and he made statements of self-harm and of suicide ideation. 

3. The family violence was quite explicit.  The fact that it was made in the absence of the father is irrelevant.  It contained a provision that described not only the mother as a protected person but also each of the children.  It restrained the father from contacting, harassing, threatening or intimidating any of the mother and children let alone attending at her premises of residence or work.  None of that deterred the father. 

4. On 21 May 2010 the father attended at the mother’s residence and was let into the home by K.  His opening remark to the mother was that he wanted to see the children and his “stupid lawyer could not organise it”.  The mother with two very young children, had little choice but to allow him to remain.  She agreed to have dinner with him and said that he was calm.  He assured her that he was having psychiatric treatment.  Sensibly, in relation to his request to stay overnight, she refused.  He took her statements as leaving open the possibility of a reconciliation. 

5. Subsequent to the father’s departure, the mother contacted the police whereupon he was arrested.

6. Further breaches of the family violence order occurred in July 2010, August 2010, October 2010 and November 2010.  These included the father attending with gifts and requests to see the children.  The record of the Local Magistrates’ Court shows an escalation of concern by that court because although initially the father was released on a good behaviour bond, subsequent attendances resulted in a suspended sentence albeit for only seven days.  On the evidence of the mother not denied by the father, there have been breaches of the family violence order subsequent to the suspended sentence being imposed.  There is an application pending in relation to further breaches where the allegation is that the father attended upon the home of the maternal grandparents with a set of blankets for the children.  In evidence, the father’s position was that that was not a breach of the order and he expected that the magistrate would ultimately agree with him.

7. I observed the mother giving evidence about these incidents none of which the father cross-examined her about in any challenging way.  He could not challenge her in reality because he did not deny them but rather took the view that they were not serious and that they were the only way that he could get to see his children.  I find they show a complete absence of responsibility and respect for the law.  As I pointed out, the family violence legislation at state level requires the instruments of the state (usually police) to intervene in family situations to protect individuals.  All states treat those public law interventions as serious.  The penalties in South Australia are severe for breaching orders.  Contrary to the view of the father that they were not serious and even if he went to gaol, that was not a problem, he ignored the impact of the constant invasion into the mother’s life where she had decided to separate for good reason.  Even during the hearing, the father espoused undying love for the mother and indicating that at some stage in the future, the problems would be sorted out and he would look after her again.

8. One of the ways in which the mother has got her life in order is to resume a sporting pursuit.  It is something in which she has been involved for many years and includes her parents.  It was something that the father was also involved in and at which,  he was very successful.  In December 2010, the mother attended a function at the club house whilst the father was practicing the sport.  When he returned, he endeavoured to enter the club only to be refused entry.  The mother’s evidence which was not challenged by the father was the sports event on 11 December 2010 was cancelled and most of the competitors left but the father remained.  His version was that he wanted to undertake some preparation for a forthcoming event.  He said that he was oblivious to the mother’s presence at that time and when he returned, he was refused entry to the clubhouse.  His reaction however was to say that his “exclusion” from the clubhouse must have been as a result of the mother who then had the children with her.  The father’s justification for his behaviour that day was that he could not control the fact that the mother attended whilst he undertook practice.  He ignored the fact that his reaction when excluded from the club was probably a breach of the family violence order and a continuation of the harassment of the mother.  That was certainly not the way he saw it when giving evidence.  The mother’s evidence was that the father said to a club member that the mother had brought the children to “see him”.  Her embarrassment would have been obvious.  The father’s justification for his conduct was that this was an important club for him to be involved in if he was to pursue his goal at the national titles.  What he clearly ignored was that there was a specific family violence order which restricted his movements for the purposes of the protection of the mother and the children. 

9. In early 2011, the father sent the mother emails which included detail about employment positions.  On the same day, there was an email addressed to the mother from the father enclosing an advertisement for the drug Viagra.  The time and date are remarkably close.  When challenged about that email, the father responded by saying that it must have been spam.  I do not accept his explanation.  It is too coincidental. 

10. In May 2011, as a result of correspondence between the solicitor for the mother and the solicitors then acting for the father, various correspondence was sent to the mother which included a number of photographs.  This was not a breach of the family violence order because it was done properly through lawyers.  The circumstances however were contentious and quite disconcerting.

The photographs

1. The mother’s evidence was that the father had sent a disk with a significant number of photographs on it.  Among them and exhibited to her affidavit were two photographs of what could only described as two adult males engaged in some sort of prank conducting a mock hanging.  The sensitivity of that scene was obvious having regard to the fact that the mother’s husband had died that way at his own hand.  When challenged about the photographs, the father’s enthusiastic description was that it was a picture of a “couple of his mates” but he did not know who took the photographs because his camera was left “lying around” at the sporting club.  No plausible explanation was given for why such an unusual prank might occur and having regard to the totality of the father’s evidence, I am content to find that he deliberately knew that the photograph was on the disk and he sent it as part of his obsession with the mother.  I reject his assertion that it was just a couple of photographs hidden amongst a number of others.  When he was cross-examined about it, ironically, he said that he had forgotten they were there.  He knew therefore that the photographs had been taken yet he tried to say that he did not know the circumstances of them being taken. 

2. He volunteered that he was “pretty certain” that there were no photographs “inappropriate unlike the mother giving a man a head job on a video”.  This bizarre answer adds to my concern about not only his lack of respect for the mother and his refusal to accept that she has tried to distance herself from her past but also that he did not see the significance of his conduct as creating a fearful environment for her.

The sporting club

1. As late as June 2011, the father attended the annual general meeting of the sporting association.  It was not held at the club rooms but rather at a private home.  Even if there was some innocent explanation for the father’s attendance, by that time, he was well aware of the existence of the family violence order and prudence would have dictated that he kept away.  He did not.  It was the mother’s evidence and I accept it to be correct, the father was making derogatory remarks about her, culminating in his exclusion by one of the members of the club.

2. It was the father’s view that his role in the sporting organisation was very important.  He applied for a variation of the family violence order to the State Magistrate on 23 June 2011 but that application was refused.  This was two weeks after he was excluded from the meeting.  He had learned nothing.

3. Undeterred, he attended an awards ceremony of the sporting association in July 2011 and there, contrary to the orders, confronted the mother.  He insisted on sitting at the same table as the mother.  He made loud remarks about the mother.  The mother said that she was so severely stressed that she could not bring herself to eat her meal.  I accept that evidence.  The father did not deny his conduct on that particular day.  I find that the mother is severely affected by the presence and harassing conduct of the father which shows no sign of abating. 

4. The mother is the most important attachment figure in the lives of these children and as will be seen from the evidence of her psychologist, destabilising  her has a  real prospect of impacting upon her parenting capacity.

5. The police ultimately removed the father from the sporting association dinner but not before the father made a public pronouncement which humiliated the mother.  This incident gave rise to the father being convicted of breaching the family violence order and being sentenced to seven days imprisonment which was suspended.  Logic dictates that as there were further breaches subsequent to that date, the suspended sentence will most likely become a sentence to be served.

The father’s view about the breaches

1. In his evidence, the father maintained that the original family violence order made in March 2010 had either been varied or ameliorated in such a way that he was able to attend either the mother’s home or her parents’ home to provide gifts for the children.  Initially he maintained that the family violence order handed to me was not the correct version but then went on to say that Burr J had varied the order.  Apart from that not being correct as a matter of law, the mother provided transcript indicating that the subject had been a matter of discussion before Burr J in one of the interlocutory hearings and his Honour clearly told the father that he was not able to vary the relevant order.

The mother’s capacity to parent

1. The mother’s evidence was that she could not communicate with the father.  She gave explicit evidence in cross-examination by the counsel for the Independent Children’s Lawyer about what the father could do to become a parent acceptable to her.  Her evidence showed foresight but it also reflected what she is endeavouring to do with the children.  She clearly has not closed the door.  She was able to describe the arrangements that she has made for K to undergo therapeutic counselling with a psychologist in which she has a very significant role.  That counselling was stressful for her but she saw the importance of being involved. 

The impact on the mother and children of attending the contact centre

1. Consequent upon the orders of Burr J for there to be supervised time between the father and the children, the mother’s evidence was that K was reluctant if not resistant to attend when told that the law required him to go to the contact centre.  That evidence was corroborated by the maternal grandmother.  Subsequent to the visits, K was noted to be distressed and angry despite the fact that the contact centre thought that it went well. 

2. The children seemed to enjoy their limited time with the father.  It was the mother’s evidence that K broke out in cold sores which her general medical practitioner thought had something to do with generalised anxiety.  By September 2011, K was pleading with the mother not to attend.  S on the other hand seemed ambivalent  about any problems but I accept that he has a limited understanding of what is going on having regard to his age.  K however showed signs of bedwetting and disturbed sleep patterns.

3. The father cross-examined the mother about his bringing gifts to the contact centre as indicative of his love for the children.  Whilst conceding that he could bring gifts, her concern was the inappropriateness of what he brought.  She pointed to metal hand drill, long nails and a hammer. These might indicate the father was wanting the children to emulate his use of his hands but they were not brought to the attention of the mother and when she saw K with the drill, he was waving it above his head and using it as a gun.  She said she found the nails in the child’s bag and they had not been brought to her attention by the contact centre.  The absence of communication between the parties is as a result of the family violence order but under no circumstances should the father have simply given those sorts of tools, as they were not toys, without first contemplating how the mother would deal with the problem.  Even on his evidence, the best way to deal with the children using them was to be under supervision. How that would have occurred without some explanation in advance to the mother is hard to know. It must also be remembered that S is now two.

4. When challenged also by counsel for the Independent Children’s Lawyer on the issue, the mother said that those were not the only inappropriate gifts.  The matter was not taken any further by counsel.

5. All of these matters simply show the absence of parenting capacity.

6. I accept that the mother has significant insight into the needs of the children.  Her observations of the children are consistent with those of the maternal grandparents.  They are troubling because of the father’s attitude of brushing aside any dilemma in indicating that he has so much to offer the children and that they just need to have fun.

The evidence of the maternal grandparents

1. Both of the parents of the mother swore affidavits for the proceedings which largely corroborated the evidence of their daughter.  They were required for cross-examination but the father’s questions were really not about challenging their evidence.  In cross-examination and at other times, the father asserted that the maternal grandparents had some ulterior motive in supporting the mother. If they had, there was no evidence of it. The allegation was scurrilous.

2. The grandfather observed the father hit K.  The grandmother heard the father berating the children.

3. The importance of the evidence of the grandparents lay in the fact that they acknowledged the difficulties of watching their daughter through her drug-crazed days.  The grandfather said that he had always been there for the mother regardless of her aberrant behaviour.  I accept that evidence.

4. Both parents said that their daughter had been largely drug-free but importantly had become settled and was very child-focussed.

5. Neither parent was able to think of anything positive about the father as a parent.  Each appeared to give the issue considerable thought.  These were not just partisan witnesses.  They were able to describe for me the significant parenting role that their daughter fulfilled.  Each of them works long hours but they independently of each other described the role that their daughter played in preparing meals, disciplining the children and getting them ready for bed. The lifestyle now being led by the children is far more stable and healthy than at any time when the father was involved.

6. It was clear from the evidence of the parents that they are conscious of the impact that the father has on their daughter and how they provided security for her around the time of court appearances.  Having regard to the evidence about the breaches of the family violence orders, I could only find that they were responsible and protective.  They have a very strong regard for their grandchildren and want the best for them.

The father’s evidence

1. As earlier indicated, the father’s evidence in affidavit form did not address any relevant issue.  Because of the serious nature of the proposals of the mother, the “recommendations” of the family consultant and the apparent flippant approach of the father, I searched through the affidavit he had filed in 2010.  The material which is referred to in the annexure to these reasons, adds nothing that was not already in evidence.  However, it did join issue on a number of matters on which I have already made findings.  I was cautious about how to obtain the father’s views about the future of the children and mindful of the comments of Kirby J that sometimes a trial judge has to search for litigants’ evidence in case there is something of significance otherwise hidden. 

2. After the father said that he wished to give evidence, I led him through a number of propositions that might have assisted me in making findings.  It was a painstaking process but the futures of these children are important.  The father did not see it that way by his various derogatory remarks about the Court and counsel but none of those have infected my determination.

3. The father is currently assessed by the Child Support Agency to pay $30 per month.  His obligation is only in respect of S because K is not his child.  He told me that with overtime, he is taking home approximately $1000 per week.  That position has existed since April 2011 and since September 2011, his probationary period of employment has turned into a full-time job.  From his earnings, he pays $150 per week for a private room in what he described as a mansion where a number of other people live.  I probed the question of why $30 child support was appropriate and he maintained that he was paying what was required. 

4. His evidence was that he did not have an obligation to support the children if he was not having them. He was at pains to tell me how the child support formula worked and what he would be paying in the future but at the same time, acknowledged repaying his mother significant sums of money and setting aside his own savings so that he could compete in the national sporting championship. A practical indication of the attitude to parenting responsibility can be seen in what a parent provides by way of financial support for a child. The father’s mantra about child support assessments might be a consideration in s 60CC of the Act but where, as here, money is really no object, a refusal to accept responsibility to positively assist financially with the support of children, gives a very clear indication of lack of parental responsibility.

5. The father was quite happy for the mother and her parents to take on that financial responsibility.  Importantly, he acknowledged that the formula assessment system would only apply to S because K was not his biological child yet somehow, that distinction became irrelevant when his desire to be a part of the lives of both children became the issue in these proceedings.

6. In his evidence, the father largely did not dispute the evidence of the other witnesses.  In relation to the evidence of the assessment by his psychiatrist, he was extremely critical saying that it was difficult to get the appointment.  He blamed his lawyer for that.  The interview took place on a Friday afternoon at 5.30pm and he saw the psychiatrist as wanting to get away and constantly telling him to hurry up because of his long-winded answers yet in the report of the psychiatrist, that hurrying-up became the subject of criticism.  He said the psychiatrist wrote four to five lines of notes. He quibbled with some of the statements in the psychiatrist’s evidence but when I gave him the affidavit and asked him to pick out where the psychiatrist was wrong, he was largely unable to do so. 

7. The father conceded a dreadful history of drug-taking which included heavy marijuana use on a daily basis.  He said that some days it was heavier than others.  He volunteered that during the relationship with the mother, he got “very sick”.  He said that as a result of the mother crying every day, he took on the responsibility of standing up for her against her parents.  I am satisfied that what he was doing was endeavouring to alienate the mother from her parents.  I have earlier set out the details about the breaches of the family violence order.  Nothing I heard from the father in his evidence ameliorated my concern about his respect for the mother or the law. 

8. The incident of slapping the face of K was probed by counsel for the mother as well as counsel for the Independent Children’s Lawyer.  His evidence was that he grabbed three year old K by the shoulders and put him on the ground.  He disputed that he “straddled” the child but conceded there was a significant power and weight difference between he and K.  He said he slapped K with his right hand and then his left hand and then his right hand again.  The use of both hands must have meant that he was holding the child in some way.  He then said that he picked K up and told him to look at his mother.  He said he turned to the mother and asked what she had to say to K whereupon she came over and hit  K to such an extent that it sent the child “flying”.  I do not accept his evidence.  The mother’s evidence had been that she had struck the child with an open hand but she denied the brutality and force asserted by the father.  Whatever the mother did, it paled into insignificance by comparison to the behaviour of the father.  Disconcertingly, he saw no problem with what he had done save that he said that on the following morning just after breakfast, he apologised to the child.  Why he would do that is perplexing having regard to the fact that he said this had been the agreed way of disciplining the child as it had been for him when he was a child.  He told me that having apologised to the child, he then added that he told K that he and the mother were not going to “put up” with his behaviour in the future.  There is no ring of reality about the father’s version of what happened.  This was nothing short of a brutal assault on a very young child and I have no confidence that the father understood its significance.

9. The father did not present any evidence about his state of health other than the evidence of the psychiatrist Dr W.  Counsel for the mother probed the father about what medical assistance he had had subsequent to separation.  He said he had seen lots of general practitioners and had had six counselling sessions with a psychiatrist who had not prescribed him drugs.  He then volunteered that he was “completely crazy” but the psychiatrist told him to keep his head up and that within a year he would get over the separation. 

10. The father however did admit that he had been given a variety of medication including Valium and other anti-depressant drugs such as Zoloft.  When queried about what impact they had, he said that he did not take those for very long.

11. Again, disarmingly, when talking about prescribed medication, the father said that he was always going to be a person who had “highs and lows”.  He said that he had stopped taking medication in about March or April 2011. 

12. The father knew the importance of the state of his mental health in these proceedings.  It had been the subject of orders of Burr J at a time when the father was represented by lawyers.  He knew of the importance of the psychiatric assessment because he had changed lawyers and his new lawyer arranged for Dr W to see him.  He was not happy with the report of Dr W but filed the affidavit because he knew it was a condition of his having supervised time with the children but he did nothing further about producing any evidence that would have cleared up any argument about his mental health.  I express concern about it still.

13. In the period immediately after separation, the father conceded that he had made statements about suicide.  He conceded that he had talked about throwing a fire hydrant through a window just so that he could get himself admitted to a psychiatric hospital.  He described himself as uncontrollable and that he had “been a downright arsehole to the children”.  A description that had apparently appeared in a subpoenaed record was that he admitted having been “sick for a decade” and in cross-examination, he acknowledged that he made that statement but that it was in a “bit of humour”.  I could not see the funny side of that.

14. During the period of the relationship, the father acknowledged that he was taking Vitamin B by injections in his muscles because he said he lacked energy.  He maintained that he did not need a prescription for this purpose and he was self-medicating.  No evidence was produced by the father to show the impact of such self-medication but I found it alarming that someone who was clearly angry and troubled as well as smoking marijuana heavily during the day, could self- diagnose an energy problem and treat it that way.  That was consistent with his approach to treating the children.  It was his way or nothing.

15. The father admitted that after separation, he had been crying at various times and had contemplated how easy it would be to drive into a tree but then added that he did not want the children to end up having two fathers who had committed suicide. 

16. I do not know what the husband’s current view is about drug usage.  He did not dispute that he had been dismissed at his employment for failing a drugs test.  He acknowledged the heavy use of the drugs during the relationship and conceded that it affected his parenting capacity through his moodiness, low level of tolerance and his anger.

The father’s proposals

1. Counsel asked him just exactly what he was proposing for the future.  His response was that notwithstanding what he told me at the commencement of the hearing, he was “fully adjustable” and what he had said had been “just an idea”.  He said he was pleading to be a part of his boys’ lives so that when the children turned 17 years of age they did not have to go “through the Red Cross to find out who their dad was”. 

2. The father said he did not want supervision although he would accept it. He expressed concern about the restrictive nature of the supervision because he just wanted to take the children “to the beach and dig a hole”. 

3. He said he had to rebuild his life and he had no stable house but he could find one if necessary.  There was nothing concrete in his plans or proposals.

4. He said he wanted to be a good co-parent with the mother.  He acknowledged the difficulty with that having regard to the family violence order and his current relationship with the mother but then added that it was the mother’s main mission in life to cut him out of the lives of the children. 

5. He said that if the Court felt it was necessary for him to be seeing a psychologist or a psychiatrist, he would comply. This was hardly new and only something that he said as the trial came to its conclusion. In some circumstances, a court might see some benefit for the children in allowing a parent to pursue such a concept but having regard to the evidence of the family consultant, I could see little point.

6. The father’s lack of insight as to the needs of the children became evident when he was cross-examined about the gift of the drill, nails and hammer.  He vehemently maintained that that was the way he had been taught as a child and all it needed was supervision by a responsible adult.  He could not see the fact that these children were very young and did not understand the nature of the gift.  He did not understand that the supervision required the assistance of the mother.  He did not understand that it might have been more beneficial to the children to have had a toy rather than real tools particularly having regard to the age of S. 

7. Even at the contact centre under supervision, concerns were expressed about his capacity.  S was seen climbing on a table albeit not very high from the ground.  When criticised by counsel for the Independent Children’s Lawyer about his inability to understand the dilemma, his response was that he could only focus on one child at a time.  If that was to occur under supervision, what would happen without assistance let alone supervision.  The children would be at risk in his care.

The psychiatric assessment of the father

1. As I have already indicated, Burr J ordered a psychiatric assessment take place prior to any supervised contact beginning.  The father was clearly reluctant for me to take into account the psychiatrist’s evidence for the reason to which I have already referred.  I am satisfied that the psychiatrist did have sufficient time to make the objective professional judgment that he did.  What Dr W who is a consultant psychiatrist in Brisbane wrote to the father’s lawyers was follows:

   You ask as to his willingness and ability to address mental health issues.  I believe he has a very limited capacity in this respect as he does not have a lot of insight into his personality difficulties and his difficulties controlling his impulses.

   I believe that he has some capacity to implement some aspects of responsible parenting but might be prone to do this in a somewhat rigid way with perhaps not a great deal of sensitivity towards the child’s individual needs.

2. The psychiatrist did not exclude the father as a parent providing it was under supervision but the personality difficulties referred to and the lack of control mean that supervision would be the only option open if there was to be any time at all.

The mother’s psychiatrist Dr B

1. Dr B is a psychiatrist.  No one challenged his expertise.

2. The importance of the evidence of Dr B was that he saw the mother in 2005 before the relationship began and again in 2010 after the separation had occurred.

3. The mother was admitted to the Royal Adelaide Hospital in 2005 and in turn, referred to the Adelaide Clinic.  Dr B became involved in her care as her consultant psychiatrist.  When he saw her in 2005 she reported to him a decline in the level of her functioning in the previous four years and that she was experiencing auditory hallucinations and thought disorder.  This was immediately after the period of the sexual assault and no doubt, her drug usage.  In 2005, the mother was accompanied by her parents.

4. Contrary to the assertions of the father about the mother’s childhood, Dr B noted that the mother reported being raised in a supportive family environment which included her grandmother.  She gave a history of being popular at school and doing well but things deteriorated from around her 14^th birthday.

1. Counsel for the Independent Children’s Lawyer’s submission was that the approach I had taken was correct.  Counsel for the mother adopted the submissions of counsel for the Independent Children’s Lawyer.

2. In Loddington & Derringford (No. 2) [2008] FamCA 925 I referred to the fact there was no legislative definition of meaningful relationship and said that for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.

3. For the reasons I have outlined above, having pursued the evidence that I could ascertain from the father, there is nothing I can find for the foreseeable future for these children whether in a supervised or an unsupervised environment.

4. It is equally important that there is a risk in this case that the mother’s psychological health will be affected as a result of ongoing contact between the children and the father let alone her contact with the father.  I am satisfied that her stable relationship with her parents and all of the things that she told me she was now doing would be undermined unless there was a significant alteration in the father’s approach to things.  He used the expression that he needed to “rehabilitate” himself.

5. I could not take the risk in this case that the children would be placed back in the situation where there was violence and drug taking.

6. Section 60CC has a number of additional considerations.

7. It is not appropriate in this case that I take into account the views of the children.  They are too young to understand the adult concepts associated with protection and developing a relationship.  The father seemed to disagree with that but I have no doubt that these children should not be involved in the adult concepts.

8. The evidence is overwhelming that the nature of the relationship between the children and their mother is a strong and protective one.  She is the antithesis of what she was whilst in the relationship with the father.  She failed appalling to protect the children during that time but I am satisfied she has resolved never to return to that situation.  She was able to articulate her plans for these children and the future is bright.  Her evidence was corroborated by her parents.  Notwithstanding the father’s cynical view about those parents, I am satisfied that they have never abandoned their daughter and are very concerned about the future welfare of their grandchildren.

9. Nothing the father said of a similar nature could satisfy me that he understands parenting concepts.  His relationship with the children is now reduced to one where he considers having fun the most important thing in the lives of these children.  Whilst parental styles can often be part of the rich tapestry of life in a child’s development, where lifestyles, routines and aspirations of parents are so far apart, the Court has to look at whether one party’s lifestyle is destructive of the benefits for the children provided by the other party.  This is one such case.  I do not know what the father has to offer these children beyond fun.

10. The evidence shows that the mother is providing for the physical needs of the children.  She does so by working in a job that she enjoys and she has aspirations of studying which is something supported by her parents.  She gets little financial assistance from the father.  Notwithstanding the legislative scheme, the failure to provide proper support for a child indicates an attitude which is not consistent with responsible parenting.

11. Section 60CC requires the Court to consider the willingness and ability of each of the child’s parents to facilitate and encourage a relationship between the children and the other parent. Nothing the father said would convince me that he would encourage the children to respect their mother. On the other hand, the mother was willing to facilitate a relationship between the children and the father providing he obtained assistance. Although prompted by me, she gave evidence in very clear terms of what she thought he needed to do and he was audibly heard to say from the bar table that he could not do those things. The mother has not closed the door on the relationship between the father and the children.

12. I have taken into account in this difficult case, the impact of the absence of the father in the life of the children.  It is a serious step to remove a parent but in this case it is justified on the basis of the serious risk that the father poses to them and a continuation of the existing arrangement provides no long term benefit. 

13. Section 60CC also requires the Court to take into account the practical difficulty of a child spending time with and communicating with another parent. That practical difficulty is not just a geographical consideration. It includes contemplating what might be described as the fallout both before and after various visits. It is no doubt stressful for parents of children who are resistant to attend handovers where there is a limited relationship between the child and the other parent and a conflictual relationship of the nature in this case. The practical difficulty here is that the mother has to forcefully take K to the car. It is difficult in her fragile emotional state to force him to attend something that she finds risky for his development. It is difficult for her in circumstances where there is a family violence order and she faces the prospect of constant breaches of that order. It is also difficult for her to deal with the aftermath where K otherwise inexplicably developed cold sores. The otherwise stable routine has been disturbed subsequent to the supervised visits more so for K than S. Those are practical difficulties that have to be added into the balance of whether or not there is a benefit for these children in circumstances where their mother’s capability as a parent is challenged emotionally.

14. I have also dealt with the question of the capacity of each of the parents to provide for the emotional and intellectual needs of the children and their respective attitudes to the responsibilities of parenthood.  Those matters need no further elaboration.

15. One of the considerations that s 60CC requires is whether or not making final orders is of benefit to the children rather than some interim arrangement. The difficulty here is that I agree with the opinion of the family consultant that the father needs long term therapy. In this case, a final order which is less likely to lead to further proceedings can only benefit the children.

16. Section 60CC(4) requires the Court to consider the things that have happened since separation and how the parties have taken up the various options and facilitated the relationship of the other parent. I am satisfied in this case that the mother has not been obstructive for any improper or inappropriate reason. I am satisfied that the father sees nothing wrong with what he has done subsequent to separation because he maintained that all he was endeavouring to do was to the spend some time with his children. All of those matters indicate a complete absence of insight into the needs of his own children.

Equal shared parental responsiblity

1. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. 

2. That presumption is rebutted if the Court has reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.

3. Family violence is defined in s 4 of the Act to mean conduct, whether actual or threatened, by a person towards a member of the family that causes that person to reasonably fear for or, reasonably to be apprehensive about, his or her personal wellbeing or safety.

4. In this case, I am satisfied that the mother did fear for her personal wellbeing and safety.

5. Section 61DA(4) provides that the Court may rebut the presumption if it is satisfied that it would not be in the best interests for the children for the parents to have equal shared parental responsibility.

6. Equal shared parental responsibility is not defined in the Act. Parental responsibility is defined as meaning all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

7. On any view of the evidence, there can be no positive relationship between the parents and there is no prospect that the requirements of s 65DAC could be met.  In those circumstances I must find that it is not in the best interests of the children for the parents to have equal shared parental responsibility and the only person who is likely to provide responsible decisions in this case is the mother.  She should therefore have sole parental responsibility.

Injunctions

1. The mother also sought injunctions and clarified that those orders were pursued only on the basis that they would only take effect if the state family violence order expired.  I agree that that is an appropriate course in this case having regard to all of the evidence and the behaviour of the father.  I propose to make orders in those terms.

Costs

1. At the conclusion of the case, the mother but not the Independent Children’s Lawyer indicated that there would be an application for costs.  It is not appropriate that I deal with that issue now nor is it appropriate in the circumstances that the matter should be given another hearing date.  Accordingly, I propose to make orders that if any party desires to seek an order for costs, they can do so in writing by way of written submission served upon the other party and I shall make that determination in chambers based on all of the evidence that I have heard and the submissions I ultimately receive.  It is clear in this case that the mother had altered her position in relation to the costs having learned about the father’s financial position in April.  For that reason, I will leave open the question of whether any costs order might be made in the circumstances.   

LIST OF DOCUMENTS THAT THE PARTIES RELIED UPON

The mother

1.        Amended initiating application filed 12 July 2011

2.        Affidavit of the mother filed 4 October 2011

3.        Affidavit of maternal grandfather filed 4 October 2011

4.        Affidavit of maternal grandmother filed 4 October 2011

5.        Affidavit of Mr L filed 13 October 2011

6.        Affidavit of Ms H filed 13 April 2010

7.        Affidavit of Dr B filed 14 October 2011

The father

1.        Amended response to the initiating application filed 20 July 2011

2.        The affidavit of the father filed 9 December 2010

3.        The affidavit of the father filed 31 May 2010

4.        The affidavit of the father filed 28 September 2011

5.        The affidavit of the father filed 28 March 2011

Affidavit material relied upon by the Independent Children’s Lawyer

1.        Affidavit of Mr R filed 21 April 2011

2.        Affidavit of family consultant Ms T sworn 27 May 2011

3.        Affidavit of family consultant Ms T sworn 29 April 2011.

I certify that the preceding Two Hundred and Twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 November 2011.

Associate: 

Date:  2 November 2011