Raben and Maddocks

FEDERAL CIRCUIT COURT OF AUSTRALIA

RABEN & MADDOCKS

[2019] FCCA 2909

Catchwords:
FAMILY LAW – Parenting – Application by father to spend time with a child aged 4 – where the father has committed acts of family violence since separation and has been relentless in denigrating the mother even during supervised visits at a contact centre – where the mother is fragile and vulnerable – where the child’s faith in the mother would be lost and the mother’s parenting capacity undermined if an order was made for the child to spend time with the father – where an order for no time and no communication is regrettable because the father and child are Aboriginal and the mother is not but where it would not be in the child’s best interests when all relevant matters are considered for the child to spend time with the father.

Legislation:

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

Cases cited:
Mazorski & Albright (2007) FamLR 518

Applicant:

MS RABEN

Respondent:

MR MADDOCKS

File Number:

NCC 2650 of 2017

Judgment of:

Judge Terry

Hearing date:

6 September 2019

Date of Last Submission:

6 September 2019

Delivered at:

Newcastle

Delivered on:

25 September 2019

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondent:

Resolve Legal Professionals

Counsel for the Respondent:

Mr Bates

Solicitors for the Independent Children’s Lawyer:

Foat Roberts Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Court

ORDERS

All previous orders are discharged.
The child X born … 2015 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The father shall spend no time and have no communication with the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2650 of 2017

MS RABEN

Applicant

And

MR MADDOCKS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These are parenting proceedings involving X, aged 4.
X lives with the mother and she proposes that he continue to do so.
When the family report was prepared the mother was proposing that X spend one overnight per fortnight with the father. At the commencement of the hearing she was proposing supervised time and at the end of the hearing she fell in with the proposal of the Independent Children’s Lawyer that there be a no time order.
The mother has consistently sought an order for sole parental responsibility.
The father is currently seeing X supervised at a contact centre. He proposed that X commence spending unsupervised time with him on a reasonably extensive basis. He proposed that in the end his time with the child be substantial and significant.
At the commencement of the hearing the father was seeking an order for equal shared parental responsibility but at the end of the hearing he conceded that an order for sole parental responsibility should be made.
The Independent Children’s Lawyer’s proposal at the end of the trial was that there should be an order for no time and no communication. The Independent Children’s Lawyer acknowledged the benefit to the child of being connected to the father with whom he shared Aboriginal heritage but said that there was an unacceptable risk that he would become unsettled and the mother’s parenting capacity stretched beyond her coping ability if the child spent time with the father because of the father’s inability to cease denigrating the mother and undermining her parenting.

The evidence

Evidence was given by the mother, the father and in the form of a family report prepared by Mr A, a Regulation 7 Family Consultant.
The mother became self-represented shortly before the trial and she did not comply with trial directions and file a trial affidavit. However there had been no critical events since she last filed an affidavit. I was of the view that we just needed to get on with the matter and everybody agreed that the trial should commence and that the mother should be permitted to rely on the affidavits she had filed earlier in the proceedings.
The father did file a trial affidavit and he relied on it. When the trial commenced his counsel said that he also intended to rely on an affidavit by his daughter Ms J which had been filed earlier in the proceedings. However I was later informed that the father did not wish to rely on that affidavit.
There was a problem with the family report because the father did not attend the report interviews. He later sought an opportunity to be interviewed and requested that an addendum report to be prepared but after reflecting on the appropriate use of resources I declined to order the preparation of an addendum report.
I was of the view that it was unnecessary because there would be evidence about the father’s interaction with the child in the contact centre notes and that turned out to be correct although it did not assist the father.
The mother and father were cross-examined; the family report writer was not required.
I had many concerns about the father’ evidence. In some ways he seemed a frank witness because when he was being cross-examined he often blurted it all out and was his own worst enemy. However at the same time there were notable occasions when he showed an easy facility to change an abrupt answer which did not assist him into a bland and acceptable answer.
The father’s evidence was not reliable. It was not even internally reliable if you consider his affidavit. For example at paragraph 28 of his affidavit he said that the mother did not see the incident where he damaged the car with a rock. However he attached to his affidavit a police statement the mother made about the incident in which she described seeing the father with the rock, seeing the window being smashed and seeing the father unlatching the bonnet. She also described going to the car shortly after the incident and seeing the broken glass, the broken window and the rock. Despite all of that in paragraph 28 of his affidavit the father said something contradictory.
A big concern about the father was that he said in his affidavit that he had found the EQUIPS program which he did at the behest of Community Corrections after he was convicted of charges arising out of the rock incident very useful.
The EQUIPS program is designed to help offenders understand the factors which have led them to them offending and develop the skills they need to reduce the risk of offending again and it is designed among other things to assist people who have been convicted of family violence offences.
Documents from Community Corrections contained in the Tender Bundle indicate that they despaired of ever getting the father to acknowledge that the mother was the victim in that incident or to reflect on the impact of his behaviour on her. The father repeatedly insisted that he was the victim and made it clear that he could not understand why Community Corrections was requiring him to do the program because it wasn’t something they ever used to do.
I do not accept the father’s assertion that he found the program useful.
Against that background of difficulties namely the mother not filing a trial affidavit, the father giving problematic evidence and the family report writer providing a report which did not include an interview with the father (through no fault of the family report writer’s) I have to decide what to do for X.
I finally note that the family report writer suggested in his report that the proceedings not be finalised at this point and that a Chapter 15 Expert’s Report be prepared and that perhaps the Department of Communities and Justice (“the Department”) be invited to intervene.
I consider it highly improbable the Department would ever have intervened. They have had constant involvement with the mother and her children over a number of years. They have never taken steps to remove any of her children from her. The chances of them intervening would have been remote and I do not accept that the Legal Aid Commission would have been likely to fund a Chapter 15 Expert’s Report in this matter.

Background

There is a 29 year age difference between the parties. The father was a friend or is a friend of the mother’s father. However they commenced a relationship and the mother fell pregnant with X who was born on … 2015.
The mother has a daughter F who was born on … 2013 from a relationship with Mr B. F lives with the mother and there are orders in place for parental responsibility for F to be shared between the mother and Mr B’s adult daughter, Ms G and for F to see Mr B under the supervision of Ms G.
The mother informed the Court that Ms G had moved to Western Australia for work and was not having much involvement with F at the moment and it may be that Mr B is having none. The mother still appears to be on good terms with Ms G.
The mother also now has a younger child H who was born in … 2019. H’s father is her current partner Mr C.
The father has a daughter Ms J who is aged about 30. Ms J was present in Court during the hearing but she was not called by the father.
The mother and father separated on 15 August 2017 when X was just over two. It was common ground that there had been no family violence in the relationship to that point but there was a violent incident very shortly after separation.
It was the mother’s case that the father prevented her taking X on the day of separation. The following day she drove to a shopping centre in a car which was registered in her name. She saw the father and Ms J there and Ms J was holding X. They had a discussion and the father refused to hand X over. He then demanded the keys to the car.
When the mother would not give him the keys he went out to the car park, picked up a rock, smashed the car window, reached into the car and opened the bonnet and took all the leads out of the car so the mother could not drive it.
The father insisted at trial that he had not done anything wrong because the motor vehicle was his and he had paid for it. He said that it was only registered in the mother’s name because she was eligible for a concession for the registration.
The mother did not agree that the father had paid for the car on his own but that was the father’s case and he continued to insist at the trial that he had not done anything wrong. He also continued to insist this endlessly in discussions with Community Corrections.
Nevertheless he was charged over the incident and 14 September 2017 was convicted of destroy and damage property and was placed on a 12-month bond and an ADVO was made for the mother’s protection.
The mother alleged that there were other incidents around this time. She complained to the police on 23 August 2017 that the father obtained access to her Facebook page and put a post on it saying she was suicidal. The police declined to take any action but the father admitted during the hearing that he had done that.
After the incident with the rock the mother filed an application for a recovery order and in due course an order was made for X to live with her and spend time with the father.
The mother alleged that following the court event at which that order was made the father rang her and gave her an earful of abuse, calling her a “cunt” and a “slut” and saying that he was going to get her.
The mother reported that to the police as well. They did not take any action but I accept that it happened. It is consistent with the father’s behaviour to the mother.
The mother complained to police about calls the father made to her on 17 September 2017. Again no action was taken by the police.
On or about 8 October 2017 the father obtained possession of the mother’s phone after she left it in his car. He made use of it to post on her Facebook wall photos of her showing her breasts. The mother complained to the police but again the police declined to take any action.
The father admitted during cross-examination that he had done that. He said that he had been careful to make sure that the mother’s breasts were slightly covered up so she wasn’t naked.
After X was returned to the mother’s care pursuant to the court orders the father spent time with him in accordance with the orders.
On 8 April 2018 there was an incident at a changeover at the D Shop. The father had been due to return the child to the mother on 6 April 2018. He did not do so but agreed to return him on 8 April 2018. He insisted that the changeover take place at the D Shop.
The mother said that she took a friend with her because she was afraid of the father and that when she arrived the father began yelling that she was a “fucking slut”, a “whore”, a “useless junkie” and a “homeless junkie bitch”. She said that he kept yelling the whole time she was there.
The mother got X into her car but said that when she drove off the father followed her and as he passed her on the motorway made a gun motion with his hand. The mother said she was too scared to keep driving and she pulled over and called the police.
The father denied that he had behaved in the way the mother alleged. He said that he had simply made one snide comment about the person who was with the mother along the lines of “nice friends you've got”. However I accept the mother’s evidence. The father was very aggressive following separation. He posted the Facebook photo. He posted the comment on her wall about her being suicidal. He admitted during cross-examination that on occasions he had called her names such as “slut”.
I do not accept the father’s denials about what happened at the changeover.
There was another incident on 8 April 2018 which is referred to in the mother’s affidavit although it was not the subject of much focus at the trial. The mother said as follows:
On 8 April 2018 while Police were in attendance at my friend’s home Mr Maddocks sent me a series of SMS messages that were distressing and threatening in nature as follows:
a.“…now you’ve been told you fucking creature…” and the message outlined the traits of a sociopath according to Mr Maddocks.
b.“…you are a fucking nutter…you think you can get away with it will bring it slut!...”
c.“lazy arsehole”, “wake up arsehole”, “answer you putrid excuse for a mother”, “answer me you ignorant piece of shit”.
I showed the messages to the police officer who was in attendance that day, Senior Constable Mr E.[1]
[1] Paragraph 14 of the mother’s affidavit filed on 2 July 2018.
The police charged the father with using a carriage service to menace and harass. He was also charged with breach of ADVO and stalk intimidate harass.
It is unclear to me exactly what behaviour led to the last two charges and whether they arose out of what happened at the D Shop or were associated with the calls.
The stalk, intimidate charged was later withdrawn but the father was convicted of the other two offences and was placed on a bond in respect of one and given a community corrections order in respect of the other.
After the incident at D Shop on 8 April 2018 the mother stopped making X available to spend time with the father.
The matter came before me on 4 July 2018 and after hearing about what had been happening I made an order suspending the father’s time and ordered that he do a hair follicle test because he has a history of drug use.
In October 2018 I made an order for X to spend supervised time with the father at K Children’s Contact Centre. This commenced in December 2018 and at the time of trial the father was still seeing X at the contact centre.
As noted earlier the issue at trial was the time the father should spend with X, not where X should live, but I am going to make some comments about that issue at the end of the judgment and the reason for that is that both of these parents have had significant problems during their lives.
The father had a difficult upbringing. His father was violent and an alcoholic. He has been in trouble with the law since he was 13 and he has an extensive criminal record. It begins with a break, enter and steal goes on to include illegal use, stealing and driving offences which include drive in a manner dangerous.
In 1976 when he was 16 the father was charged with possessing housebreaking implements and the sentence interestingly is “committed to institution.”
There are more break, enter and steals and in 1977 the father was charged with a drug offence for the first time. These matters are historically curious; he was charged with possessing Indian hemp.
In 1980 the father was sentenced to a lengthy term of imprisonment for armed robbery. In 1982 he was charged with escaping lawful custody. There are then charges for demanding money with menaces, malicious injury and making a harassing phone call and in 1988 he was charged with assault police and breach of a domestic violence order. Interestingly he was also charged that year with fail to pay for petrol so his offences are wide-ranging.
In 1989 the father was charged with assaulting a female and malicious damage.
In 2005 the father was convicted of importing heroin from Country L and was sentenced to a lengthy term of imprisonment.
In 2013 he was charged with stalk, intimidate which predates his relationship with the mother.
Sadly the father’s daughter Ms J has had drug problems. When the mother and father started living together she was in prison. After she was released she began to live with them. She was on the methadone program and according to the father’s trial affidavit still is and she is still living with him.
The mother’s evidence was that there were issues with Ms J when she was living in the parties’ home. Ms J did not give any evidence to contradict it and I will refer to that evidence later.
In summary the father has had significant difficulties in his life and has an extensive criminal history. Whether he will remain out of the criminal justice system in the future has to be open to question given his history.
A positive for the father is that X appears to be very fond of him and from the contact centre notes he can be caring and kind to X in a physical sense.
The mother had a rough abusive upbringing and she has a significant drug use history and has faced other issues which are referred to in considerable detail in the family report.[2]
[2] Family report paragraphs 26-28, 35-36
The mother has some criminal convictions. They are mainly for driving offences in 2011 but on 24 April 2012 she was charged with goods in custody as well as driving offences.
She has not had any convictions since then.
The mother has a history of mental health issues. The report writer said as follows:
According to Ms Raben she has been diagnosed with Post Traumatic Stress Disorder and anxiety as well as “slight” Borderline Personality Disorder. However the mother couldn’t elaborate further on the diagnoses, whilst indicating that she was previously on a “suicide watch”, having self-harmed following the death of her twins. The mother was clear to say that she attempted to overdose in her suicide attempt.[3]
[3] Paragraph 30 of the Family Report.
The mother is living with Mr C and he has a troubling criminal record. In 2011 he was charged with goods in custody and break, enter and steal and in 2012 he was charged with robbery with an offensive weapon and sentenced to a term of imprisonment. This involved a hold up at a petrol station and may have involved a knife.
There is an AVO in place in relation to Mr C to protect another adult.
The mother’s choice of partners includes Mr B, who is not permitted to see his child unsupervised, the father, who wasn’t violent to the mother during the relationship but lashed out after it ended and Mr C. They are all somewhat problematic people and the mother has had her own issues including mental health issues.

The positive in relation to the mother is that all three of her children are still in her care despite numerous notifications to the Department over the years.

X’s best interests

Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act 1975 contains the matters to which I must have regard in order to determine X’s best interests.
I am going to start with the additional considerations in s. 60CC (3) and the first of those is the views of the child but X was too young to talk to the family report writer and neither parent suggested that he was expressing a view about parenting arrangements.
I must consider the nature of the relationship of the child with each of his parents and any other relevant person.
There was a dispute about who was X’s primary carer when the parties were together. The father insisted it was him. The mother did not concede this but she admitted in the witness box to being severely depressed during the relationship and the father does have some positive aspects to him in terms of being able to provide day-to-day care for children so it might be that he was more extensively involved with X than the mother now is willing to admit.
Nevertheless apart from the brief period after separation when the father retained X the mother has been the child’s primary carer since separation. That is a period of two years and is a significant part of the child’s life.
The family report writer said as follows about his observation of the mother and X:
During my observation of the mother spending time with the subject child, Ms Raben sat on the floor with X and engaged him in play. It appeared that X was happy in his mother’s presence, and Ms Raben demonstrated an educational approach in her play with X. When X’s half sibling F came into the room, the mother appropriated her time capably between both children. However when the mother indicated that it was time to pack up the toys both children initially screamed and commenced crying uncontrollably. Whilst the mother attempted to soothe the children, they both continued to cry. [4]
[4] Family Report paragraph 55
This passage does not suggest that there are problems with the mother’s relationship with X save that he did not want to leave playing with the toys. That issue has also arisen at the contact centre and there is also no doubt that X does have some behavioural issues.
The mother cares for X and is caring for him which is something different and at various times X has been observed to relate well enough to her. There are positive references to that in the contact centre notes as well as to X throwing a tantrum because he didn’t want to leave the toys.
X relates well to the father at the contact centre although that also has not been without its problems. There is a reference in the notes to X having a tantrum because he didn’t want to leave playing with a particular toy. However the father has been patient and affectionate with X at the contact centre. X is more than happy to see him and I am satisfied that X has a good relationship with the father from that perspective.
I will make some comments about the way the father speaks to the child or about the child in his presence later on in the judgment but the relationship seems to be satisfactory. X isn’t scared of his father and I suspect would be quite happy if his father came along and took him off somewhere.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or make decisions about the child.
That does not assist me. Both parents have taken that opportunity.
I must consider the issue of payment of child support or who is supporting the child.
The mother is solely supporting X even though she is on a limited income. The father is not paying child support. The issue of whether the mother had actually applied for an assessment was not raised at the trial and sometimes people who have been subjected to family violence seek an exemption but for whatever reason the father is not paying child support and not only that, he demonstrated a concerning attitude to the payment of child support which makes it likely that even if the mother applied for it she would battle to get it.
The father was asked about payment of child support during cross-examination and it was clear that he was not happy about the idea of being required to pay it. He made a comment along the lines of:
I was in a relationship with the mother for three and a half years. She’s getting paid by the government and when she gets money, do the kids get anything?
That shows a regrettable lack of insight into the fact that most people feed their children and do spend money on them.
The father also has a habit of taking clothes and shoes to the contact centre rather than offering the mother any money to support X.
Given the father’s attitude as expressed in cross-examination the likelihood is that even if the mother applied for child support she would not get much if any. The father I might add is currently working and said that he was earning about $1,000.00 a week.
I must consider the practical difficulty and expense of the child spending time with a parent.
That do not assist me. The parents do not live that far apart and neither said that this was a problem.
I must consider the likely effect of any change in X’s circumstances.
Both parents proposed a change. The mother proposed that there be no time from this point on. The father proposed that time become unsupervised and quite extensive.
I will have to make findings at the end about the likely effect of those changes on X. I cannot do it without making some further findings about the s. 60CC (2) and (3) matters.
I must consider the capacity of each parent to provide for the needs of the child including his emotional and intellectual needs.
The father was highly critical of the mother’s capacity to provide for her children’s day-to-day needs.
He said that when they were together she did not get up in the morning so he had to get F and X up and get F to school. He was highly critical of her capacity to feed the children and suggested that she was not feeding X properly. He said that the child was skinny and pale. He said that the mother gave her children too many chocolates and sweets. He had nothing good to say about her capacity to provide day-to-day care for her children.
The mother has faced significant challenges in her life. She has some mental health issues. She has taken medication over a lengthy period of time. She said that she had been diagnosed with postnatal depression after the birth of H. She said that she had a bit of an incident not long before the trial in which she struggled to cope for a short period. She is clearly fragile and vulnerable. She admitted that when the parties were together she did struggle to get out of bed because she was severely depressed.
What I have to consider though is whether the mother is failing to properly feed and look after X at the moment and I cannot find that that is the case.
The mother is fragile and she has her vulnerabilities but she also has a lot of support around her. She had a support person sitting with her at the bar table. She accepts assistance and said that when she had her bad episode not long before the trial the workers were very supportive and would ring her every day to see if she was okay.
X is also what the Department often call “visible in the community”. He is attending an Aboriginal preschool run by M. M have arranged for X’s speech and hearing to be thoroughly tested and he has seen a GP and a psychologist about some of his issues. There is nothing in the evidence to suggest that M has concerns about X’s day-to-day care.
There is nothing in the subpoena material to suggest that X is being neglected and I am satisfied that the mother is actively cooperating with services to ensure that his medical needs are met and his issues investigated.
There is nothing in the evidence to suggest that the mother is failing to feed him and notwithstanding repeated notifications no steps have been taken by the Department to take the child from the mother or even to require her to enter into a safety plan.
There is also nothing to suggest that the mother is not able to provide for X’s emotional needs. The report writer did not express a concern that she was a distant or uninterested mother. M has not made that suggestion. She struggles with some aspects of parenting and finds certain things very challenging but there is no evidence that she is failing to provide for X’s emotional needs.
I must also consider the father’s parenting capacity.
The father is well able to feed and clothe X. However he is conspicuously unable to attend to his emotional needs, in fact he rides roughshod over them. That is evident not only from the things he said in Court but from the contact centre notes.
The father was challenged during cross-examination about whether there was any basis for him to say that the child was underfed and was not being properly looked after by the mother. His immediate response was:
One of the first things I’ll do when I get my hands on him is take him to a doctor. I believe he’s not being fed properly.
The father was relentlessly critical of the mother while he was in the witness box and it has been the same at the supervised visits. He does not stop even when the workers ask him to stop.
There are numerous references in the contact centre notes to the father asking the child questions such as “Are you happy? Has anyone hurt you? Are you all right? Are you being looked after? Why are you sick all the time? Do you go to school?”
On one occasion the father brought some shoes to the contact centre and said to the child:
Let’s take those rubbish thongs off and put these shoes on.
He continually tells the child that he has toys for him at home, has Christmas presents for him at home or has a remote control for him at home which is highly likely to cause the child to be unsettled.
When the father is pulled up by the workers at the contact centre he usually stops eventually, but not before protesting about being asked to stop. He says things to them like:
I don’t think there’s anything wrong with it really.
I can’t see how I’m doing anything wrong. You need to mind your own business.
When the father was challenged in cross-examination about saying those things he did not accept that he had done anything wrong. He said:
I was talking normally. I wasn’t violent.
Another answer the father gave which implied that he did not believe that he was doing anything wrong is:
One day X will come to me and I’ll tell him the whole truth.
If an order is made for X to spend unsupervised time with the father the child will be exposed to relentless criticism of his mother and a relentless tirade suggesting that the mother is failing to look after him properly, is giving him the wrong food, is not giving him enough food, is giving him the wrong clothes, is giving him the wrong shoes and is allowing Mr C to be called “Dad”.
If X spends unsupervised time with the father there is no doubt that he will be subjected to this tirade and the father shows no insight into the impact that will have on the child and into the fact that it is highly likely to cause the child to disrespect the mother and to act out in her home and make her parenting difficult and that it may ultimately cause the child to lose his relationship with the mother.
There is no prospect of the father doing any course or listening to any advice which will lead to this behaviour stopping. He was ordered earlier in the proceedings to do a parenting after separation course. He did not do it. The explanation he gave for that in the witness box was that it was too hard given that he was living in Town N. That is not a satisfactory explanation.
There are issues with X’s behaviour. The child has night terrors. The mother said that he was unsettled when he came home from the contact visits. She said that he had come home and swung punches at her and called her a slut.
If the child is allowed to spend unsupervised time with the father and he is subjected to a tirade of abusive criticism of the mother, which he inevitably will be, the mother’s job of parenting him is going to become exceptionally difficult, and the mother is already a vulnerable person with mental health issues.
There are two other potential issues in relation to the father’s care of X. One is that the father has a history of drug use. He has been a heroin user. He has been on the methadone program and he has also used cannabis.
The father said that he had not used drugs for somewhere between 6 and 10 years and at some point early in these proceedings he did do a urine drug test which was negative for illicit drugs but he has resisted every attempt to get him to do a hair test. He has flat-out refused to do it.
In the witness box the father said that this was because it was too difficult to get to a collection point. That is simply not credible.
I do not know what to make of the father’s refusal to do the hair test. He might be refusing to do it because he is using drugs. That is a possibility and it would be concerning if that were the case. However there is no external evidence that the father is using drugs. He has not been stopped for drug driving and he has not recently been involved in any incidents with the police in which drugs are referred to and given the father’s nature as it appears in the Community Corrections records it is not beyond the bounds of possibility that he is refusing to do the hair test because he just stubbornly thinks no one has a right to ask him to do it.
I do not quite know what to make of that issue but it is an additional background concern in terms of X spending unsupervised time with the father.
The other issue of concern is the fact that Ms J is living with the father.
Ms J has a long-term drug problem. She has been to jail. She has been on the methadone program and according to the father’s trial affidavit still is. The mother gave quite extensive evidence in one of her affidavits about issues in the home when Ms J was living there. She said she found methadone bottles and syringes in her room and that her room was filthy and there was mouldy food.
The father failed to call Ms J to give evidence so I have no reason to believe that the situation in the father’s home with Ms J there is any different to what it was when the mother was living there and if there is methadone or syringes in the home or the home is unhygienic because of Ms J’s actions then it would be very concerning if X was going there to spend unsupervised time with the father.
It is impossible to believe that things have changed when Ms J was sitting in the back of the Court and was not called to give evidence.
I must consider the child’s maturity, sex and background and any other matters particular to the child.
An issue which I cannot resolve is whether X has any problems of his own such as ADHD or ASD. There are aspects of his behaviour which are concerning. That is still being investigated and I do not know what the future may hold in that regard.
I must have regard if the child is an Aboriginal child to the importance of the child spending time with people who share that heritage.
The father is a O man and his Aboriginality is important to him. He does not engage in any particular activities connected with his Aboriginality but as I observed during the hearing that is not the end of it. It is very important for an Aboriginal child to be able to spend time with his Aboriginal family and to develop pride in the fact that he is Aboriginal.
The father’s sister is an elder of the O people and she was in court during the hearing. During the parties relationship she had contact with the mother and got on well with her. However she has been on the father’s side since separation and has been quite unpleasant to the mother on occasions. The mother said that she was not likely to connect with the father’s sister in the future to ensure that X was connected with his Aboriginality.
I cannot blame her for that because toward the end of the trial the father’s sister became upset about something and walked out of Court.
The mother respects the child’s Aboriginality. F is also Aboriginal through her father. X is attending an Aboriginal preschool and the support worker who sat at the bar table with the mother was Aboriginal.
The support worker said that they had looked at preparing a family tree for X. She said that this was frequently done for children who were taken into care. When I asked her whether she thought the father’s sister would cooperate if M wanted to do that she said that she did.
I must consider issues of family violence.
The father committed a number of acts of family violence after separation. He used a rock to break the car window when the mother would not give him the keys. He posted offensive material on the mother’s Facebook page namely the comments about her being suicidal and the photographs of her breasts. He agreed in cross-examination that he had most likely called her a cunt and a slut in text messages and I am satisfied that he subjected her to a tirade of abuse at D Shop in April 2018.
The father shows no remorse for his behaviour in breaking the car window and that is obvious from Community Corrections records.
Community Corrections asked the father to fill in a worksheet headed “Impact of Offending” and one box in that worksheet asked him to identify what had happened as a result of his offending to inter alia the victim. He wrote in that box “I’m the victim.” [5]
[5] Tender Bundle page 51
A Community Corrections officer said as follows about an interview with the father on 31 October 2017:
Said day before Offence the couple had separated, victim stated that she wanted to remain friends which the offender was satisfied with. Within 24 hours the victim had ceased taking offender’s phone calls which had made him confused. Reported that he had seen victim park car at local shopping centre so he went in and asked for the keys, she refused to give them. He then went outside, broke car window and altered car so it wouldn’t start.
Denied an offence taking place as he owned the vehicle and wanted it back. Through further discussion, offender identified that he had felt confused and hurt at time of offence due to victim not taking calls and may have contributed to his behaviour. Stated that he does not want CCO to refer to his ex-partner as the victim as he is the primary victim – has been placed on bond and is still going through court re son. Denied any violence taking place and could not understand how his actions may have impacted upon victim.[6]
[6] Page 74 of the Tender Bundle.
On 29 January 2018 a Community Corrections officer tried to engage the father in a discussion with a view to exploring relationships that offenders have with people in their life and their positive and negative influence. In notes made by the officer the following appears:
Mr Maddocks was exceptionally difficult to engage in the exercise and appeared to not understand the purpose. He persistently tried to turn conversation to paint himself as victim of ex-partner. He advised that he didn’t believe he needed to do work sheets or report as often comparing to a previous parole period many years ago. Advised changes & reasoning behind pgis, discussed process to move towards ET and that this is a current requirement of his bond.
Mr Maddocks continued to remain adamant that his offence wasn’t DV as it was his own vehicle. Challenged this however he remained strong in his opinion. He failed to see any alternatives, stating that the car had been registered in his ex-partners name because she was a pensioner. Nil insight into offence.[7]
[7] Page 197 of the Tender Bundle.
Community Corrections worked tirelessly to try to get the father to reflect on his behaviour but were unable to get anywhere with him.

The father ran off at the mouth in court even when it was harming his case. He has a number of prior convictions for offences against women. Some of them were a long time ago but some of them, in relation to the mother, were quite recent.
There is a considerable risk that the father may be violent to females in the future. Given his inability to keep his mouth shut on occasions I am also concerned that he could subject the mother to verbal abuse again in the future, perhaps at changeovers if they happen to be together at that time.
The father is an exceptionally poor role model for his son in being a family violence perpetrator and demonstrating no insight into the impact of his behaviour on others and in endlessly attempting to justify his behaviour.
The other person of concern in relation to family violence is Mr C because there is an ADVO in place in relation to him. However there was no evidence that there had been any family violence in his relationship with the mother.
A positive about the mother is that she does not seem to be someone who is prone to live in domestically violent relationships. There was no violence in her relationship with the father when they were together. There is no evidence of violence in her relationship with Mr C. There have been no police call-outs or anything which would give rise to a concern there.
I must consider whether there have been any family violence orders.
An ADVO was made for the mother’s protection on 14 September 2017 after the father committed the offence with the rock. It was varied after he was charged with further offences on 8 April 2018 and after he was convicted of further offences a 2 year ADVO was made for the protection of the mother. It remains in force until 27 September 2020.
The ADVO may provide protection for the mother to an extent because it is clear from the Correctional Services records that the father does not want to go back to jail. However there seem to be times when the father just cannot stop himself. He has priors for breaching an ADVO so the existence of an ADVO is not a perfect protection for the mother.
I must consider the parties’ attitude to the child and the responsibilities of parenthood.
The mother’s attitude is good. She has really stepped up since separation. She has been doing her best and has been engaging with services. The father has shown a very poor attitude, first in not paying child support and second in endlessly badmouthing the mother.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
Predicting what order that might be is a tough one.
If I make an order for no time that might be the end of it as far as the father seeking time with X is concerned.
If I make an order for the father to spend time with the child, even supervised, it is highly likely that the child will become unsettled and there could be further incidents and further applications.
However it is a tough one because there is a concession that the child should live with the mother and I am only being asked to determine a dispute about the time he should spend with the father but the mother has fragilities and vulnerabilities. I cannot entirely exclude the possibility that at some point in the future an issue might arise about the mother’s capacity to care for X.
I must consider any other relevant matter.
A relevant matter is the father’s attitude to the mother.
This trial took place just prior to the commencement of s.102NA of the Family Law Act 1975 so the self-represented mother had to cross-examine the father personally and the father was rude and belligerent to the mother when she was cross-examining him. Some of their exchanges included the mother asking him, “How can I trust you when you just snap and get angry and denigrate me?” The father’s response was “Baloney.”
That was the kind of cross-examination that occurred and it indicates their relationship is poor and the father’s attitude to the mother is poor.
Another example was when the father was asked by Counsel for the Independent Children’s Lawyer if he had thought before not letting the mother take X at separation given that X was still being partially breastfed. His response was:
What I mainly thought about was that Ms Raben is a nut-job. She knows she is a nut-job.
The father’s attitude to the mother is extremely poor and there is no likelihood that this is going to change in the future.
I then have to turn to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Generally it is better for children if they can have a meaningful relationship with both of their parents.
If X does not see the father at all or only sees him supervised he is not going to have a meaningful relationship with him; in other words, a relationship which is significant, valuable and important to the child.[8]
[8] Mazorski & Albright (2007) 37FamLR 518
However the father will not have a relationship with X which is significant, valuable and important to the child if he sees him unsupervised and says things to him which cause him to learn to disrespect the mother and other females.
There is a high risk that X’s relationship with the mother will be undermined and perhaps even lost if he spends unsupervised time with the father and there is a high risk that his relationship with the mother could be undermined even if he spends supervised time with the father because the father just cannot stop himself from running off at the mouth.
I do not consider that the child’s relationship with the father will be lost because of the mother’s attitude or anything the mother does. Her position that the child should not spend time with the father is explicable by the father’s behaviour.
I must consider the issue of risk of harm and there has been violence post-separation. After the parties separated the father let loose with a whole lot of intimidating behaviour and verbal abuse.
He has prior convictions for offences against females and the fact that there was no domestic violence during the relationship does not mean that X is not at risk of being exposed to family violence in the father’s care in the future.
That could happen if the father comes into contact with the mother for any reason, because the father never restrains himself from saying exactly what he wants to say even though X is there. He let fly extensively at the mother at the changeover on 8 April 2018 while she was trying to put X in the car. He yelled vile abuse at her over the top of X’s head.
The father does not see anything wrong with his behaviour. He blames others whenever these events happen. There is a very high risk of the father behaving in that way in the future even with an ADVO in place if the mother and father happen to come into contact.
I could try and prevent that by making an order which means they do not come into contact at changeovers. It would not entirely remove the risk because the father has been abusive of the mother on the telephone but it would reduce the risk.
The father is not currently in another domestic relationship and he was not violent to the mother during their domestic relationship so it may be that if the parents are kept apart there is not an unacceptable risk of the child being exposed to family violence.
However given the extremity of the father’s behaviour and his verbal abuse of the mother, there is a risk of the child being abused by the father and I will explain why I say that.
I do not think the father would physically touch a hair on X’s head. I think he loves his child and he can be very warm and caring with him. There is no risk of him physically abusing X. However abuse is defined in the Family Law Act to include:
…causing the child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to or exposed to family violence.
There is an unacceptable risk of X suffering serious psychological harm as a result of the father at the very best badmouthing and criticising and at the very worse verbally abusing the mother.
It is inevitable the father will behave in that way if he spends unsupervised time with the child. It is difficult to stop him saying harmful things even in a supervised setting. Therefore in my view there is an unacceptable risk of this child being abused if he spends time with the father.
I commented earlier that Mr C is of concern because of his history and the fact that there has been an ADVO against him. However I also commented that the mother does not have a history of living in violent relationships. I cannot find that the risk of X being exposed to family violence in the mother’s care is unacceptable.

Parental Responsibility

In the end the father conceded that the mother should have sole parental responsibility. He did not have a lot of choice because after his performance in the witness box the Court could not possibly consider making an order for equal shared parental responsibility.
Before the trial commenced the self-represented mother said to me “You won’t let him have a go at me, will you?” I told her I wouldn’t but I was powerless to prevent the father from mouthing off at the mother and making some very unpleasant comments while he was in the witness box.
The mother is fragile and vulnerable. The father shows extreme disrespect for her. I could not possibly consider making an order that would require her to attempt to communicate with him about major long-term issues for the child. The only order open to me if the father had been arguing parental responsibility would have been an order that the mother have sole parental responsibility. She has shown a willingness to accept advice and assistance in relation to dealing with X’s medical issues and I do not consider that order will place X at risk of harm.
However in the end the father conceded parental responsibility and I will make an order that the mother have sole parental responsibility for X.

Conclusion

I mentioned earlier in the judgment that although I was being asked to consider the father’s time with X, not where he should live, I was going to also look at that issue because I felt that it needed to be discussed.
The mother had a difficult upbringing. She had a significant issue with drug use in the not too distant past. She has mental health issues and she frankly admitted that she had a bit of a collapse only a short time before the trial. Over the years she has had some issues with homelessness. Her choices of partner have not been the best. Her current partner has a criminal record although it is nothing like the one the father has. The father has an extensive criminal record and there were issues with F’s father Mr B.
F and X have some challenging issues. F has a developmental delay. X has some behavioural issues. The mother faces some challenges parenting those children.
I can understand why the family report writer, reading the subpoena material, was concerned about the mother’s capacity to parent X. He said as follows:
However it is reasonable to suggest that the Family Consultant retains a range of concerns with regards to the mother’s parenting capacity, and the associated complexity with her history of mental health issues. Given the history of the mother’s childhood and adolescent trauma, her longstanding use of illicit substances, the loss associated with the death of her twins, when all combined raises concern about whether Ms Raben can not only care for X and his sibling F but her child which is due in April this year.[9]
[9] Paragraph 33 of the Family Report.
Later he said this:
The Family Consultant remains concerned about the long term welfare and safety of Ms Raben’s children and her current relationship does not inspire any further confidence that Ms Raben is now able to make discernible choices with regards to her partners. Furthermore, the complexity of the mother’s traumas and mental health issues would suggest that an expert clinical assessment will be required in order to determine whether the Department of Family and Community Services need to be joined to these proceedings.[10]
[10] Paragraph 44 of the Family Report.
However on the positive side there is no evidence to support the father’s case that the mother is not feeding X or properly attending to his needs. She has consistently attended Court when this matter has been on. She has cooperated in the Court process. She has engaged with support services and as a result X is receiving extensive assessments and interventions.
There is a risk that the mother may face parenting difficulties in the future, although I do not consider it an unacceptable risk, and that X may be placed at risk as a result of the mother’s choice of a problematic partner. I cannot say that there is no reason to be concerned about the mother’s parenting and that I can be 100% confident that she is going to parent X uneventfully until he turns 18.
However despite the fact that there have been many notifications to the Department about the mother’s children over the years the Department have never intervened in these proceedings. They have never attempted to take the mother’s children from her. They have never asked the mother to sign a safety plan and the evidence before me at trial was that the mother had support services and accepted support and that at present things were on about as even a keel as they can get for her.
The father’s case at trial was that he was the better parent. The Independent Children's Lawyer’s counsel put that question to him and he said “I am the better parent.”
Certainly there are positives about the father. He seems to have a calm temperament except when he is mouthing off at or about the mother. He has a calm temperament with X. That is evident from the contact centre notes.
There was no evidence that he had any mental health issues. He has a job and he is earning an income. He is better able than the mother to provide financially for X and the contact centre notes suggest that the child responds very well to him. He has displayed considerable patience with the child at supervised visits in the face of poor behaviour by the child. I have some unease about the drug use issue but there is no external indicia that he is using drugs at the moment.
There are some big concerns about the father though. One is what is happening with Ms J. I cannot dismiss my concern about her. An even bigger concern is that if X lived with the father two things would follow. One is that he would very quickly learn to disrespect his mother and may act out toward her and lose his relationship with her. The other is that he may also grow up to be disrespectful and defiant toward others and have a very poor attitude to females.
The father is very unlikely to change his behaviour. He is not very empathic to X. He makes comments which unsettle him or could unsettle him such as the fact that there are toys at home or a car at home. He is very focused on proving that he is the better parent and that the mother is substandard. He is incapable of reflecting on the impact on the child of his self-indulgent behaviour, mouthing off over the child’s head to anyone who will listen.
Those issues mean that I would be very reluctant to make an order at the moment anyway that the child live with the father.
I wanted to make that comparison between the parents because I cannot be sure about what the future holds for X. However as I noted the father did not press for a change of residence. The case he presented was only a case for him to be able to spend time with his son.
The mother is a vulnerable person and that makes it preferable that X has other reliable adults in his life so that there is someone with whom he has a bond in case issues arise for the mother which mean she cannot cope.
It is also important that he has other reliable adults in his life so that the mother can have some respite from his difficult behaviours and some respite from the relentless grind of parenting duties and also so that he can experience the love and care of another individual who focuses on him and plays with him.
There would be a benefit to X in having a relationship with the father who shares his Aboriginality. It is very important that X grows up to value that. It will also be a great shame if X cannot spend time with an adult, his father, with whom he relates very well.
In summary there are numerous reasons why it would be beneficial to X if the Court could make an order that he spend regular time with his father. He would have another adult he could bond with. It would give the mother some respite. The father does love the child and care about him and X gets on well with the father and X and the father are both Aboriginal.
However in the circumstances of this case I simply cannot make an order for time. The father is relentless in his denigration of the mother. He has no qualms about denigrating her in front of X. Supervisors of the father’s time have trouble stopping him. It is inevitable that he would badmouth the mother and undermine the child’s faith in her if he spent unsupervised time with the child. That in turn would undermine her parenting capacity. It is also highly likely to teach X to be disrespectful to women. It would be setting him up for endless problems in his life.
There is no likelihood of the father gaining insight or changing his ways. He is nearly 60. He has a lengthy criminal record going back to when he was a juvenile. He does not listen to others. He does not obey the rules. In an exchange during submissions I mentioned that one of his early convictions was for failing to obey the rules of a shelter. The father chipped in and said:
Yes, that led to me being put into Prison when I was 17.
The father cannot see anything wrong with his behaviour. He has no capacity to put himself in someone else’s shoes and think about how his behaviour must be impacting on them. That shines through in the Community Corrections notes.
The mother is a vulnerable person. She is doing her best. She has not had the easiest upbringing herself. She needs support, not constant denigration, and the father is unable to provide that support. The child’s relationship with her is likely to be lost and the mother’s capacity to cope stretched to breaking point if unsupervised time occurs.
I cannot order a continuation of supervised time because even when supervised the father’s behaviour cannot be restrained and a long-term order for supervised time is not viable in any event. Such orders so frequently break down and they do not deliver much benefit to children.
Sometimes if there is a prospect of a person changing the Court might make an order for supervised time for a period, even on a final basis, but I cannot find that there is that prospect here.
It is unfortunate because X is very young and he will lose a connection with the Aboriginal side of his family. However the mother respects her children’s Aboriginality and engages with Aboriginal services and we cannot have everything.
It is in X’s best interests that I make the orders proposed by the Independent Children's Lawyer. They are fairly brief. They are contained in exhibit E. And I will make orders 1 to 4 as contained in exhibit E.

I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 28 October 2019

[2019] FCCA 2909

25 September 2019

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort