Quinlan and Guilfoyle

[2015] FamCA 1160

FAMILY COURT OF AUSTRALIA

QUINLAN & GUILFOYLE [2015] FamCA 1160

FAMILY LAW – CHILDREN – Application by mother seeking orders that child live with her and that the child spends no time with the father - Application by mother seeking orders for sole parental responsibility of the child – Allegations of violence - Order by consent that child live with the mother – Order by consent that mother have sole parental responsibility for the child - Orders by determination that the father spend no time with the child and have no communication with the child except as agreed, in writing, by the parties, or by order of a court exercising jurisdiction under the Family Law Act1975 (Cth)

Family Law Act 1975 (Cth) s 60CC

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

APPLICANT:	Ms Quinlan
RESPONDENT:	Mr Guilfoyle

INDEPENDENT CHILDREN’S LAWYER: Mr Lewis

FILE NUMBER: LNC 15 of 2015

DATE DELIVERED: 9 November 2015

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 9 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Verney

SOLICITOR FOR THE APPLICANT: Mathew Verney

COUNSEL FOR THE RESPONDENT: Mr Guilfoyle in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Lewis

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

David Lewis Barrister at Law

Orders

1. BY CONSENT B born … 2010 (‘the child’) live with Ms Quinlan (‘the mother’).

2. BY CONSENT the mother have sole parental responsibility in relation to the child, such parental responsibility does not extend to the changing of the child’s name without the consent of Mr Guilfoyle (‘the father’) or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

IT IS FURTHER ORDERED BY DETERMINATION

1. The father spend no time with the child and have no communication with the child except as agreed, in writing, by the parties, or by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

2. 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.

3. Leave be given for the father to make copies of Dr A’s report in respect of this matter, available to any treating medical practitioner whom he consults, together with a copy of these orders.

4. All extant applications be dismissed.

5. Any application for costs ought to be made in accordance with the Rules under the Family Law Rules 2004 (Cth).

6. All subpoenaed documents and exhibits be returned to the persons or institutions from which they emanated following the appeal period.

IT IS NOTED

1. The father was informed of the provisions of s 121 of the Family Law Act 1975 (Cth) in terms of his Internet page.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: LNC 15 of 2015

Ms Quinlan

Applicant

And

Mr Guilfoyle

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is a particularly sad proceeding.  It relates to parenting arrangements for B (‘the child’) who was born in 2010 and who has just celebrated his fifth birthday.  The applicant in this case is Ms Quinlan, (‘the mother’), and she seeks orders that the child live with her, that she have sole parental responsibility of the child and that the child not see the father.

2. Mr Guilfoyle, (‘the father’), is acting for himself.  He has had a pretty tough life and I accept that acting for yourself is equally as tough, coming into a strange courtroom with people dressed in funny clothing and using a different language.  He is seeking to spend some time with his son and he does not oppose the child living with the mother.  He does not oppose the mother having sole parental responsibility of the child.  At the end of the day, he just says, “I want to spend some time with my son.”

3. The evidence before the Court is contained in a number of documents.  The mother relies upon her three affidavits, the first filed 15 January 2015.  The second is her affidavit filed in August 2015 and her third is contained in her affidavit sworn and filed 5 November 2015.  Part of the mother’s material is a report by Mr B dated 19 May 2014, which was provided by way of an annexure to her affidavit, which was not seriously challenged by the father, except insofar as he says that the mother was totally unreliable.  Therefore, if her evidence is unreliable, the conclusions of Mr B would have been unreliable.  I take that as an unstated but clear position on the part of the father. 

4. The father gave evidence in terms of an affidavit he prepared and swore on 27 April 2015.  He also gave oral evidence and confirmed what he had said earlier in the proceedings.  The Independent Children’s Lawyer relied upon a lengthy report prepared by Dr A dated 14 July 2015.

5. I have before me three police reports:  one in relation to events on 25 December 2011 at the time the parties’ relationship broke down; another one in relation to events which occurred or apparently occurred on 15 September 2009; the third, relates to events in October 2011.

6. The October 2011 police report, relating to an incident at a service station is Exhibit M5.  The incident which occurred between the mother and her present partner in July 2014 is Exhibit F1.  The incident which occurred at Christmas, that is 26 December 2011, is Exhibit ICL4; and the incident which occurred in September 2009 is Exhibit ICL5. 

7. I also have in evidence before me the father’s criminal antecedents.  Dr A gave evidence in terms of his report and I have given significant weight to his evidence.  It is a thorough report and in that report he notes a number of factors:  firstly, that the father conceded only those offences proven against him and that he comprehensively denied a longer, broader pattern of interpersonal violence.  The father largely blamed the mother for instigating those altercations.

8. Dr A said the father showed limited insight into his past violence and the effect it had on the mother and, consequently, the child.  He accepted the mother’s diagnosis by Mr B of post-traumatic stress disorder and major depressive disorder and he considered the impact of those on the mother.  He also noted that the child has a secure relationship with the mother.  As to the father, Dr A was concerned, not only in relation to the broader aspects of the impact of time on the mother, but also what he sees as the risk to the child given the father’s temper and the father’s inability to acknowledge the issues of his temper and to deflect those issues.

9. Dr A was concerned about what he considered to be as morbid jealousy on the father’s part.  There are queries about the father’s parenting capacity.  Dr A said words to the effect that if the father had time with the child, he may be so preoccupied with his view that the mother cheated on him and he may be motivated to seek retribution, using the child against the mother.  He went on to say that the mother would be unlikely to find him cooperative.  He said the father needs to address these issues in a direct way through psychological or psychiatric work.  In many ways, he said the father was in denial and needed individual counselling plus group sessions.  Part of his lack of insight to which Dr A referred to has been, in many ways, shown up by the father’s Internet site.  He said that the child would find it confusing.

10. The mother gave evidence in terms of her affidavit.  Obviously, her evidence is coloured by her own perceptions and her own subjective ways of seeing and doing things.  However, her evidence, in some ways, is supported by a number of factors:  firstly, the statement she made to the police and, secondly, in some respects, the concessions made by the father when he pleaded guilty to a number of offences.  The father says these arose out of some arrangements he had with the mother not to defend those proceedings.  I am satisfied that, at some stages, there is some level of exaggeration in the mother’s evidence but, generally, given the history, it is likely that the mother has endeavoured to tell the truth as she saw it.

11. The mother avoids social contact.  She gave evidence of their fears in terms of the father being under her bed to the extent that she looked under her bed for some time and then changed her bed.  She says that she fears the threats made to her by the father; that, if he was stopped seeing the child, there would be consequences that would flow.  The mother was challenged in relation to violence between herself and Mr C.[1]  The father raised that in cross-examination.  The mother was, at first, somewhat reluctant to concede that, but, when pressed, made those admissions as to that unfortunate event.  However, she said that much of that arose out of the unhappy circumstances with the father.  In terms of the mother’s evidence, I am satisfied, as I said, that she is generally reliable.

    [1] The mother’s current partner.

12. Mr Guilfoyle gave evidence in accordance with his affidavit filed 30 April 2015 and confirmed that the statements he had made earlier were accurate.  He was cross-examined by the Independent Children’s Lawyer.  The father, in many ways, feels hard done by in the case and has set up within the last six or eight or 10 months an Internet page.  He told us in evidence today that there was some 14,985 followers and that he has somewhere between 500 and 600 friends, whatever they may be.  In that group, he has raised money to assist him in this litigation.  He has attached copies of documents in relation to the family violence proceedings and has, on his evidence, inadvertently disclosed the address of his son to those 14,985 people.

13. He was cross-examined in relation to that and prevaricated in those answers.  He did likewise in terms of the impact of the material on the mother.  He asserted that certain documents cleared his name and that the mother was denying his right to see the child and will have to wait two years.  He is in a relationship and initially said he had been in that relationship for eight months.  He took a step back from that a bit later when he was challenged in respect of his affidavit where he said he lived alone on 27 April 2015.  There was some evidence that he was mendacious in that regard.

14. The father denies the jealousy and says that it is not a matter of concern to him, yet in a recent email to the Independent Children’s Lawyer and to the mother’s lawyer, he had a statement from the mother’s boyfriend before they met of some seven or eight years ago in respect of her alleged unfaithfulness.  He is seeking assistance from his Internet page to prove the mother had been unfaithful to him.  He says he was constantly told this by his friends and he did not believe them.  He then said that the mother told him she was having affairs; he says now that he did not believe her.  When you put all of those together, they just cannot sit together.

15. He conceded that he dragged the mother through the house in 2009 by the trousers and used appalling language to her.  When he was giving evidence about these events and what was happening, his evidence was inherently implausible.  I am quite confident that the father feels hard done by.  I am also confident that, in his mind, he is not the person that the mother paints him to be.  I am not confident that the father is frank when he gives evidence and I am not confident that his evidence can be relied upon in any meaningful way.

16. Interestingly though, the only evidence on which he managed to persuade me was in relation to the four-wheel driving on the day his son was born, although I have to see that in the light of the other evidence.  These were very young people when they commenced a relationship, which was some time in October 2008, and in 2010, the child was born.  On Christmas Day 2011, the relationship came to an end.  There are numerous examples of family violence.

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent

   consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. In Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 His Honour Justice Tree gave consideration to the notion of unacceptable risk and said:-

   51.It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

   52.In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke[1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

THE SECTION 60CC FACTORS

1. In terms of section 60CC(2)(a) the benefit of a child having a meaningful relationship with both of their parents, in this case the child has a deep and meaningful relationship with the mother, who has been the child’s primary parent since birth.  No real complaints have been made about that and Dr A observes strongly of the mother’s role in this respect.  The father did not have a meaningful relationship with the child up to the time of separation, given the facts to which I have alluded elsewhere in these reasons, and has had no effective relationship with the child since separation.

2. This Court strongly supports children knowing both of their parents and it is only in the most unusual and extreme cases where a Court will not make such an order.  Section 60CC(2)(b) provides that the Court needs to protect a child from physical and psychological harm or being exposed to neglect, abuse or family violence.  Section 60CC(2A) says, in applying the considerations set out in subsection (2), the Court is to give greater weight to subsection (2)(b) than to subsection (2)(a), that is, to protect the child.

3. Given that I accept the evidence of the mother and the evidence of Dr A what are the risks?  Firstly, there is the risk that the father could, in anger or spite, harm the child as some act of spite or violence against the mother.  I make no such finding, but I am satisfied that there is an unacceptable risk in that respect.  The second of those matters in terms of unacceptable risk is the damage to the mother.  The mother has serious issues which need to be addressed including the post-traumatic stress disorder and the major depression to which Dr A and Mr B referred.  It seems to me in this case that the mother’s parenting of this child is likely to be undermined in the circumstances of an order for time or communication.

4. In terms of the other relevant sections, the child’s age is such that his views would not and could not be taken into account.  In terms of the nature of the relationship with the child and each parent, the mother has a close and loving relationship and the father has not had the opportunity of a relationship since separation.  Given the matters to which I have alluded to elsewhere, it is understandable why.  The father has not had the opportunity to participate in decision-making, spending time with or communicating, given the matters to which I have otherwise referred.

5. The father has not provided child support for the child, although he says no application has been made and, of course, I make no criticism in relation to that. 

6. The likely effect and the changes in the child’s circumstances in this case are quite significant.  I have, on one side, the undermining of the mother as a parent and, on the other side, denying the child of a parent for at least the next two, three, four, five years which, either way, is a terrible thing for this child.

7. I have considered the effect, particularly on the mother, of section 60CC(3)(b).  There is no practical difficulty or expense for the child spending time with the father. 

8. Except, of course, in terms of the matters to which I have otherwise alluded, there are no issues about the mother’s capacity to parent. 

9. There are no issues in relation to section 60CC(3)(g) and (h). 

10. In terms of the attitude to the child and the responsibilities of parenthood, I accept the evidence of Dr A that the father has not addressed those matters to which I referred.  His Internet page is a fine example of that.

11. He seeks support and yet puts his child at risk.  He demonises the mother in that Internet page to thousands of people.  He has no idea who those people are; he has no idea if they are mentally balanced or mentally unbalanced.  He sees little concern about disclosing the address of the child and, presumably, the mother in those circumstances.  It shows a poor insight and poor responsibility to parenting.  He still drives his concern about the mother’s purported infidelity.

12. The issues of family violence are set out in the mother’s affidavit and I do not intend to go through those in detail.  They are considerable and over a period of time.  I am aware of the family violence orders, the pleas of guilty and, as I said, the violence in this case during the course of the relationship has been significant and there has been no acknowledgement of that violence; in fact, quite the contrary.  In terms of residence, the only possible candidate for residence in this case is the mother and, given the evidence before me and the consent of the father, I will make that order.

13. In terms of parental responsibility, I will make the normal order for parental responsibility but I will not permit the mother to change the child’s surname without the consent of the father or the consent of a court exercising jurisdiction under the Act. It seems to me that a change of a child’s surname is one step too far in this case. This is not a case to where the presumption under section 61BA could or should apply, given my findings of evidence and the acceptance of the evidence to which I have alluded to earlier.

14. The real issue relates, in my view, to time.  Until the father addresses those serious issues as set out in the report of Dr A I am concerned for the wellbeing of the mother in terms of her parenting and I am concerned for the wellbeing of the child.  This is not a matter where I would take the risk with the child because of my finding that the child is at unacceptable risk.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin J delivered on 9 November 2015.

Associate:     

Date:              9 November 2015