Redmond and Redmond

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND

[2014] FamCA 309

FAMILY LAW – CHILDREN – Interim – Best Interests – Risk – The time the child is to spend with the father – Supervised time – Where the child is at an unacceptable risk of physical or psychological harm in the unsupervised care of the father – Parental responsibility in relation to education - The child’s schooling – School authorised to provide the father with reports, photographs, certificates and awards obtained from the school
FAMILY LAW – Injunction – Where the father has published material on the internet identifying the child and the parenting matters – Where the father has published material on the internet about the child’s school – Where the father is required to remove websites containing articles about the child’s school and the parenting matter between the parties.

Family Law Act 1975 (Cth) s 121

Xuarez & Vitela [2012] FamCA 574
Sitwell & Sitwell [2014] FamCAFC 5

APPLICANT:

Mr Redmond

RESPONDENT:

Ms Redmond

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

4493

2011

DATE DELIVERED:

15 May 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

12 May 2014

REPRESENTATION

FOR THE APPLICANT:

Mr Redmond in Person

FOR THE RESPONDENT:

Ms Redmond in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley
Dooley Solicitors

Orders

The father shall forthwith take all steps that are necessary to remove or cause to be removed all material published by him or caused or permitted to be published by him on any of the following internet websites that relate to the mother, the child E, X School or any of that school’s past, present or future directors, employees or agents:
(i)URL omitted
(ii)URL omitted
(iii)URL omitted
(iv)URL omitted
(v)URL omitted
(vi)URL omitted
(vii)URL omitted
(viii)
The father shall forthwith take all steps and do all acts and things necessary to ensure that internet service providers remove all content (including cached content) referred to in Order (1) above.
The father is restrained from publishing, causing or permitting to be published on any internet website any information, comment or remarks about the mother, the child E, X School or any of that school’s past, present or future directors, employees or agents.
All previous orders of this Court or the Federal Circuit Court of Australia for the child, E, born … 2005 to spend time with the father are hereby discharged.
Commencing forthwith, until further order, the child E shall spend time with the father for up to two hours each weekend with such time to be supervised at the N Contact Centre or the C Contact Centre, whichever of those centres, individually or in combination, can accommodate this family in accordance with these Orders, such that the child’s supervised time with the father may commence as soon as possible and be able to occur each weekend.
The mother and the father shall share equally the costs charged by the children’s contact centre or centres for using the services of the said children’s contact centres for the supervision of the child’s time with the father.
Prior to the final hearing of the competing parenting orders applications of the mother and the father, the Independent Children’s Lawyer shall use his best endeavours to obtain an updated psychiatric report in respect of each of the mother and the father from Professor V.

IT IS ORDERED BY CONSENT

The mother shall continue to provide the father with copies of the child’s school reports, school photographs and any certificates or awards obtained by the child from the school.

IT IS FURTHER ORDERED

That the Independent Children’s Lawyer shall inform the administration of X School in writing of the content of paragraph 58 of the reasons for judgment published with these Orders and of paragraph (8) of these Orders.
That all other interim applications of the mother and the father in which parenting orders were being sought that were heard by the Court on 12 May, 2014 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond 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 BRISBANE

FILE NUMBER: BRC 4493 of 2011

Mr Redmond

Applicant

And

Ms Redmond

Respondent

REASONS FOR JUDGMENT

On 8 November 2013, just a few weeks before competing applications for parenting orders and property adjustment orders were to be heard in a three day trial in the Federal Circuit Court (“FCC”), this matter was transferred to this Court from that Court where it had been progressing towards that trial since it had been commenced in 2011.
An Independent Children’s Lawyer has been a party to the proceedings for much of the time since it was commenced. Three family reports from a very experienced social worker have been prepared in respect of this family and two psychiatric reports in respect of the mental health of the parents have also been prepared in the time the matter has been in the FCC. The matter has also produced an appeal to the Full Court of this Court against interim orders of the FCC and an application for special leave to appeal to the High Court that was refused.
Now whilst in the list of matters waiting for trial in this Court, the matter came before me in the judicial duty list on Monday 12 May 2014, for the hearing and determination of a number of applications for interim orders, some brought by the mother and some brought by the father.
At the conclusion of the hearing, on a very busy duty day when matters were still awaiting hearing, I reserved my judgment in the matter.

Some Background

This former couple married in 2004 after having already been living together for some time. Their only child, E (“the child”), was born in 2005 and is now nine years of age. The father moved out of the home he shared with the mother and the child in 2011 and the child has been living with the mother ever since. The parties have been in conflict about parenting arrangements and property adjustment as between them ever since.
Numerous interim parenting orders have been made in the time since the proceedings have been in the FCC. On 23 August 2011, with the consent of the parents, orders were made providing for the child to spend time with the father from after school on Friday to 4:00 pm the day after in one week and from after school on Friday to 4:00 pm on the Sunday after in the other week. On 15 December 2011, that order was varied after a contested hearing so that the child was to spend time with the father from after school on Thursday to before school the following Monday each alternate week from the commencement of the 2012 school year. Half school holidays with the father were also ordered. Those orders also provided for the parents to equally share parental responsibility in respect of the child.
On 24 June 2013, orders that were made on 15 April 2013 were amended again to reflect that by consent the previous order conferring equal shared parental responsibility on the parents was being changed so that the mother was given sole responsibility for the child’s education including but not limited to deciding the school the child should attend. The same orders also contained an order made by consent that the child continues to attend X School. That has quite some significance in this case because the evidence establishes that the parents have been in quite extraordinary conflict over this issue over the last couple of years.
Furthermore, the orders amended on 24 June 2013 also included a new order that the child was to commence spending time with the father on alternative weekends during school term from 7:00 pm on Friday until 6:00 pm on the following Sunday. Half school holiday time was left untouched.
The evidence establishes that the father had formed a relationship with a new partner in late 2012 and that he was living with her and her children at a suburb on the northern outskirts of Brisbane from March 2013. That, no doubt, explained the changes to the arrangements by which the child, still living on the Gold Coast, was to spend time with the father from around the middle of 2013.
Social Worker, Ms S, saw the family in mid-October 2013 for the preparation of a third, updating family report that was to be used to assist the Court in the trial that was pending at that time. At that time, the father, a qualified lawyer, reported to her that he had “moved his business to north Brisbane and was working part-time as a lawyer”. He reported to her that he was “in good health” but was “very stressed and upset about “constantly dealing with legal stuff”. Ms S referenced that to “this dispute”. She observed that during the interview, the father looked distressed and “repeatedly said “I just want the litigation to end”.
At the same time, Ms S reported that the mother and the child had moved into their own home on the Gold Coast which was near to the school that the child attended, in Grade 3. The mother, also a qualified lawyer, was working 51 hours per fortnight as a part-time solicitor at a practice not far from her home.
Professor V saw the father on 9 August 2013 and the mother on 2 September 2013 for the purposes of preparing a psychiatric report updating an earlier one he had prepared in 2012. His report was not written though until 6 February, 2014 and filed on 7 February 2014. It is important, in my view, to reinforce the observation though, that it was based on the interviews he had with the parents in August and September 2013 and the information he had been provided with at that time.
It is relevant to note that the Professor recorded that the father’s “demeanour and presentation was quite different compared to when I last interviewed him... he was almost immediately tearful…[and] he was keen to deny that he had acted inappropriately…[and] is always thinking about Family Court issues (that have) all been very stressful for (him)”. The Professor reported that the father told him that he had cut back on his work and discontinued his study and was finding things financially difficult. The Professor said that the father reported that he had been to see a psychologist and was seeing one every month, having five to six visits already. The report goes on to include the fact that the father informed that he was “currently receiving sickness allowance” and had been since February 2013. The father is reported to have gone on to say that he was being psychologically abused by the mother and that was causing him to suffer from an adjustment disorder. He had commenced proceedings for a protection order against the mother under domestic violence family protection legislation.
Professor V reported that the mental state examination of the father revealed that he had indeed deteriorated since the last assessment. Less than optimal self-care was observed and the father was noted to be “generally dejected”. The Professor remarked that the account the father gave was not as well organised and was a bit “rambling and circumstantial and… difficult to follow.” A pervasive but mild depressed mood was observed with tearfulness on occasion, as well as irritability and anger.
Professor V provisionally observed that the issues with respect to the father are “quite complex and also uncertain… (with a) deterioration in the father’s emotional state since the original assessment”. He opined it likely that the father was suffering from a Depressive Disorder rather than Adjustment Disorder but there was no Major Depression at the time of the evaluation.
Professor V said that the father would benefit from psychiatric treatment. He said he hoped that the father was continuing to see Dr L who he had seen earlier in 2013 and was hoping that he was receiving psychotherapy from a psychologist, but observed that such therapy needed to be therapy that did not accept or re-enforce his sense of having been harmed by the mother.
The Professor did conclude with the following remarks:
The father’s atypical depression is likely to be a transient state and ought not to affect his capacity to be an effective parent. Further, any underlying personality issues are not of an extent that would make him incapable of being an effective parent. I very much doubt that the father constitutes any threat to the safety of the child.
For much of 2013, however, the father had been involved not only in proceedings in the Federal Circuit Court, but also in other proceedings in other courts and tribunals, principally related to an ongoing dispute he had with the school the child was attending, X School. The basis for the dispute does not, at least in my view, really need to be discussed. Arising out of the dispute, however, the father had, on his own sworn evidence, established an internet website. That website became a forum on which he published many articles that were extremely critical of the school, its Board of Directors, its administration, its staff and its policies. Unsurprisingly, the school took umbrage at this and defended its position as well as the court and tribunal actions taken against it by the father.
Ultimately, by Deed of Settlement signed by the father, X School and the mother on 13 November 2013, the father and X School agreed to settle all claims between them in full and final settlement on terms set out in the Deed. The school agreed to make available to the father copies of all relevant documents and information pertaining to the child, E, that it ordinarily provided to other parents of children at the school, at no cost to the father by the means it generally applies to other parents. For his part in the settlement, the father agreed as follows:
(a)To do all acts and things necessary to immediately remove and procure that internet service providers remove all content (including cached content), relating to [X School], any of its officers, employees or agents (past, present or future).
(b)To never again at any time publish, cause to be published, encourage, request or enable to be published, including without limitation by response to questions or request for comment from others including journalists, by an [sic] means whatsoever any comment about [X School] or any of its officers, employees or agents (past, present or future).
The evidence is that the father conditioned his execution of the Deed of Settlement on the mother also being a party to it and agreeing, for her part, to enter into a child support agreement to fix the child support payable by the father at $1 per year. The mother entered into the Deed and, therein, agreed to enter into such a child support agreement. I am satisfied that she did so for the child-focused reason of meeting the father’s demand in order to get him to agree to cease actions against the child’s school and, in particular, to get the father to remove all of the material he had published to the internet website about the school and the parenting orders case he was involved in with the mother.
A few days after signing that Deed of Settlement, for a reason not explained in any evidence I was referred to by the father, he sent an email to the solicitors for X School and to the mother saying:
Just to let you know that I’ve been in contact with [a current affairs television program] about your settlement deed. There will be a story run on [that program] shortly. Taking advantage of parents in the way you have done is absolutely disgusting.
Consequently, lawyers for X School and the mother herself took immediate action in the Supreme Court of Queensland. That culminated in a hearing before Byrne SJA in November 2013. In late November, 2013 Byrne SJA ordered the Deed of Settlement be specifically performed and that the father do all things that he was required to do by the Deed, with the father’s claim to have the Deed of Settlement set aside dismissed with the father ordered to pay the others’ costs.
As it transpires, the father did not cause the content of the internet websites to be removed and did not otherwise comply with Byrne SJA’s orders. One of the consequences of that has been the bankruptcy of the father with X School claiming debts owed to it by the father of approximately $190,000. The Child Support Agency is also a creditor to the extent of approximately $4,396 and according to the father’s Statement of Affairs there are other creditors, including five different credit card providers, who are owed in total approximately $91,000.
Furthermore, the Independent Children’s Lawyer filed an affidavit in the proceedings on 28 February 2014 sworn by Ms M. She had been the father’s partner with whom he was living throughout most of 2013. Her relationship with the father had ended suddenly, and also in significant conflict and, according to the father, in bitterness. It had ended on Christmas Eve in 2013. Ms M had contacted the ICL of her own initiative out of her concern for the welfare of the child, E, given what she considered was the father’s “current mental state”. Ms M wrote a very detailed seven page letter to the ICL at his request and that was attached to the affidavit she swore. The letter lists numerous matters of concern including:
·The father often let the child stay up until 11pm on weekends when she stayed with them without caring about it.
·The father would call the mother a bitch and other things and also swear about her in front of the child.
·The father, when asked about court, would say “its my crazy ex-wife, she is just a vexatious person and keeps taking me back to court all the time.”
·The father would spend abnormal amounts of money when the child was with him whilst saying he could not otherwise afford to pay child support.
·The father made the child defecate in the garden outside his office building in full view of a public car park rather than take her to the toilet at a restaurant a few hundred meters down the road.
·In Christmas holidays when the child was staying with them, the father let her go for three whole days without a bath or shower, saying she could just swim in the ocean the next day and get clean.
·The father had installed spyware on Ms M’s laptop computer to monitor her use of it.
·The father turned the power to their home off as Ms M was entering the house at night so that lights could not be switched on by her.
·The father reset Ms M’s Iphone so that she could not use it.
·The father sent Ms M many messages telling her he had control over all of her bank accounts.
·Whilst Ms M was interstate after Christmas for a few days the father had gone to her home one night. On her return, she found that the power had been turned off for days, causing all of the food in her fridge and freezer to spoil and begin to rot.
·Ms M was forced to apply for a protection order under domestic violence protection legislation and had obtained an order.
·The father had caused everything on Ms M’s Iphone, IPad and IMac computer to be erased.
·She received a text from the father saying “I know where you keep your knives, sleep well.”
·When the father moved out he refused to take the bed that the child slept in on her weekends with him.
·The father threatened Ms M that he would have her in the court system for years and would make her bankrupt.
·The father sent her text messages saying “you’re so white trash”.
·The father caused a Justices Examination Order to be taken out against her requiring her to be psychiatrically examined and when that happened the psychiatrist complained that it was a waste of his time.
·The father used an alias on Facebook to try to serve her with court documents over that medium.
·The father has applied for orders giving him 100 per cent of her property plus a cash payment, property much of which she owned for years before the relationship with him.
·The father always demonstrated a clear lack of empathy.
·When the child hurt herself, the father never comforted her.
·The father had said that the way to get at the mother is through the child.
·The father called Ms M’s children retarded.

In another affidavit of Ms M filed by the ICL, Ms M swears to the following matters:
·Whilst Ms M has the benefit of a domestic violence protection order prohibiting the father from contacting her or attempting to contact her, on 18 March 2014 he sent an email to her saying:
[Ms M] if you think you will win you won’t. I’m a great liar and I know the law whereas you don’t.
·He sent her another email to her that same night saying:
[Ms M], You are the most pathetic person on this planet. You seem to forget that I was a lawyer and I will manipulate everything I know about the law to cause you pain and make your life a living hell. If you think what I have done so far is bad …it’s only the beginning. Just you wait and see what I am capable of. I will make the court believe that you made death threats against me and I will make sure you or … for that matter never see [E] again, EVER. It’s funny what I can get away with just by saying I go to church. All I can say is bring iy [sic] on. You were lucky you had me, no one will ever come near you cause you are so fat and two of your children are retarded. See you in court, I’ll be the one smiling.
Both of the emails were sent from the email address used by the father when he and Ms M were together, according to Ms M.
On 5 March, 2014, the mother filed her application for a change to the orders in respect of the child’s time with her father. In that, she seeks orders that the child only spend time with the father, supervised at the C Contact Centre and that the father undergo a further psychiatric assessment with that report to be considered before any further review of the parenting orders. The mother had also sought to have the matter heard urgently, but it was administratively listed for hearing on 12 May, 2014.
On 7 March, 2014, the father filed his own Amended Application in a Case. In that, he makes application for the orders providing for the mother to have sole parental responsibility for the child in respect to the selection of the school she attends and for the child to attend X School until further order to be vacated. He seeks an order that the mother authorise X School to give the father information about the child’s educational progress and other school related activities and to supply the father with copies of the child’s school reports, photographs, certificates and awards obtained by the child.
The father also applies for an order that the mother provide the father with the child’s homework book on weekends that she is with him, for an order that he can publish these orders to X School and that the Court appoint a psychiatrist to prepare an updated family report. The father also sought an order that a valuer be appointed to prepare a historical valuation for his law firm as at the time of the commencement of cohabitation and an order for the “current parenting orders” to be enforced due to the mother’s non-compliance.
The original Application in a Case that the father filed in which he sought most of those orders had been filed in the FCC shortly before the matter was transferred to this Court.
On 10 April, 2014, the mother filed a further document, seeking orders requiring the father to “shut down” the internet websites that he was publishing material on about the school, the mother and the child.

The Hearing of the Matters and the Evidence

At the outset of the hearing of these competing applications, the ICL informed the Court that he supported the mother’s applications, particularly for the change to the arrangements by which the child spends time with the father, so that her time with him is supervised until further order.
The mother and the father were both unrepresented but the mother, a practising solicitor, had prepared comprehensive written submissions, handed up cases upon which she relied, was confident and articulate and very capable of making considered submissions to the Court.
The father informed the Court that he has had his practising certificate taken from him by the Queensland Law Society. He no longer practices law, is barely studying, having failed his only subject last semester, is on sickness benefits and is living in university accommodation whilst bankrupt. In contrast to the mother, the father’s demeanour demonstrated a real lack of self-control. His mood ranged from anger and arrogance to defiance, despair, agitation and crying throughout the course of the hearing. He was repetitive and unable to stay focused on one point, seemingly intent to point out what injustices are being done to him on a daily basis by many.
The mother, supported by the ICL on the point, submitted that the evidence supports findings that the father’s mental health has apparently deteriorated significantly since Professor V’s last reported opinion based on an August 2013 interview with the father. She made the following points:
(i)The father is now bankrupt and has separated from his former partner, Ms M in circumstances where Ms M’s affidavits raise serious concerns regarding the father’s state of mental well-being with a reported assertion that the way to get to the mother is through the child;
(ii)The father’s own written correspondence about the mother such as a letter he wrote to the Child Support Agency on 12 February , 2014 shows “hate and resentment” for the mother;
(iii)The father’s own communication with the mother is aggressive and abusive. In a recent text to the mother, the father said:
Let’s make it clear you fucking retard. [The child] will stay at mums or a hotel or camping. I do not agree to [the child] attending [X School]. Please do not send any further texts dickhead.
(the father conceded in Court that he had sent that text message and tried repeatedly to justify it on the grounds of provocation)
(iv)The father’s postings to the internet website are becoming more obscure and bizarre, and include biblical quotes and references;
(v)The father’s posts on the internet website are becoming more aggressive, profane and threatening, demonstrating an increasing lack of self-control and more desperation;
(vi)The father’s internet website shows a complete lack of insight or concern for how his conduct impacts on the child, making it difficult to understand how the father’s ability to be an effective parent has not been significantly compromised.
(vii)The opinions expressed by Professor V in his last report are based on an inaccurate history provided by the father in any event;
(viii)The father continues to engage in ongoing vexatious litigation against numerous parties, demonstrating that his behaviour is not just transient.
The father informed the Court that he denied all of the assertions by Ms M, including the allegations that he had sent the emails that she attributed to him from his email address. He told the Court that he had asked the ICL to make her available for cross-examination, which the ICL confirmed. It is unlikely, in the context of a busy duty list, that cross-examination of Ms M would have been allowed in any event, even if she had been present. He told the Court that he believed that Ms M had been coached by the mother to say what she had. In effect, he was submitting to the Court that the mother and Ms M had conspired to commit fraud and pervert the course of justice by concocting emails to make them look like they had come from him so as to damage him.
I found this an intriguing submission. The language used in the email that Ms M attributed to the father where she is described as fat and her children are described as “retards” is very similar to the language used in the text messages that the father does not dispute were sent to the mother not long after the email was received by Ms M.
The father asserted in his affidavit evidence and from the bar table that the police had investigated the matter of the emails alleged to have been received from him by Ms M and had allegedly cleared him of responsibility. He tendered a copy of one page of a three page document from police records which he submitted supported that assertion. It did not. In my view, it shows that the father had gone to the police and protested his innocence, demanding that they seize Ms M’s computer to investigate the matter further. It does not support a finding that the matter has been subject to a police investigation that has cleared the father.
The mother put evidence before the Court of the material posted to the internet websites in recent times. Her submission that the material shows increasing descent into desperation, anger, profanity, and loss of self-control is one that I absolutely accept. That he has not complied with the Supreme Court Orders of late November 2013, in any event, demonstrates the father’s deteriorating regard for the authority of the courts, that, on the other hand, he seems so intent on invoking when he considers it suits him.
On the internet website issue, the Court was met with a number of assertions by the father. He claimed that he could not close down any of the websites that are currently on the internet. He asserted that one of them, is “owned” by a company, of which he is the sole director and shareholder and that since he is a bankrupt he is not permitted at law from acting in the capacity of a company director. He asserted that his trustee in bankruptcy only had that capacity. When the notion of him asking the trustee to take the necessary steps was raised with the father, he made it absolutely clear to the Court that no matter what orders might be made about the websites, he would not be causing them to be shut down. He went on to assert that some of the websites are controlled by third persons over whom he has no control. The evidence shows that some of them are said to be owned by third persons, one of whom is listed as “HB”. He asserts that third persons just copy the material and reproduce it repeatedly on the internet.
Although it was an interim hearing without cross-examination and the Court’s ability to make determinations of fact on disputed issues is limited, I have absolutely no doubt on the material that I read, the content of the father’s submissions and assertions to the Court and the demeanour and conduct of the father that I observed, in Court, his personal circumstances having deteriorated so badly since August last when Professor V saw him, that his mental health has in all probability deteriorated significantly since then also.
He is now living in student accommodation at a university. He becomes irascible and vilely abusive simply when asked by the mother whether he now has appropriate accommodation for the child when she is staying with him. His best response to that question from the mother is that he will be staying either at his mother’s home, at a motel or camping with the child when he has her. The evidence satisfies me that on one weekend he stayed with her at a five star hotel in Brisbane. The wasteful extravagance of that alone, in all the circumstances the father finds himself in, is demonstrative of a complete lack of balance and insight in his thinking processes as to what is appropriate parenting of the child.
Significantly, the father put no evidence before the Court that would satisfy the Court that he continues to address his psychological health issues as Professor V said he should. All the Court was told by the father, from the bar table, was that he tried to get another appointment with the psychiatrist, Dr L, but the doctor refused to see him whilst he was still engaged in these proceedings.
In that respect, Dr L’s report on the father, written in March 2013, was in evidence. He opined then that the father has struggled to cope with the “severe and overwhelming stressors” in relation to the issues before the Court and was at risk of developing Major Depression. Dr L expressed the opinion that the longer the stressors (associated with these proceedings) persist, the greater the risk that the Adjustment Disorder (that he thought the father had) will impair his day to day functioning and the greater the risk of the development of a more severe psychiatric disorder in the way of Major Depression. Dr L described Major Depression as a mood disorder which requires assertive assessment and treatment.
Dr L’s alleged unwillingness to see the father again, in itself, if true, would support a view that the doctor considers the father unlikely to progress to improvement whilst still engaged in these proceedings. Although one must be careful to avoid speculating about this in the absence of further evidence from the doctor.
The father told the Court that he had arranged an appointment at a hospital for this Friday to see a psychiatrist in the public health system. He was unable to give any more detail than that at all.
In all the circumstances, I am very concerned about the apparent deterioration in the state of the father’s mental health and the commensurate increase in the risk of harm to the child in his unsupervised care where he might simply be taking her to a motel, a hotel, camping or even to his mother’s place. In my view there is currently a significantly increased risk of the child suffering either psychological harm or physical harm if she continues to spend unsupervised time with the father. I consider that risk for the moment, unacceptable.
Accordingly, I am satisfied that it is in the child’s best interests to discharge all existing orders that provide for her to spend time with her father and to make a fresh order, until final order, that she only spends time with the father that is supervised at a children’s contact centre as the mother and the ICL both urge upon the Court.
However, conscious as I am that the waiting time to get into the supervised program at the C Contact Centre can be up to six months but that the waiting time at the N Contact Centre is currently not nearly that long, I will make orders that permit the parties to make arrangements through both of those centres so as to best ensure the weekly, supervised visits can commence as soon as possible and can actually be accommodated weekly.
I will not accede to the application of the mother for an updated psychiatric report to be done immediately but rather will order that be a matter for the ICL to arrange in the course of preparing the matter for trial in due course, as he submitted it should be.
I dismiss the father’s application for the previous orders in respect of sole parental responsibility in respect of the child’s schooling and the school the child is to attend until further order to be vacated. He argued two grounds for the vacation. First, the orders were made by consent and that because he now withdraws his consent the orders cannot remain in force any longer. The other, that in any event best interest considerations demand that those orders be vacated.
As to the first, with respect to the father, he is fundamentally incorrect. Where orders are made by the Court with the recorded consent of the parties, those orders are no less valid than an order made by the Court after a contested hearing. The order cannot simply be made invalid or unenforceable months later by one of the parties asserting that he no longer consents to the order remaining in force.
As to the second, when the father was asked what would happen if the orders about the school were vacated, he responded with the assertion that the parents would then again share responsibility for the decision as to where the child was to attend school. When I asked him what his position on that might be, he informed the Court that he would not want the child to continue to attend X School and would seek to move her to a State school. When I asked him what would happen if the mother did not agree with that and insisted that the child continue to attend X School, without any qualms the father calmly responded “she would have to go to a State school then”.
That exchange demonstrates, in my view, the father’s complete lack of focus on what is best for this child and his unabated, escalating obsession with issues surrounding the school.
The child’s most recent school report from this year is in evidence. She received straight A’s for every subject. The weight of evidence supports a finding that she is happy there and wants to keep attending that school. Her academic performance is, in my view, testament to her mother’s ability to maintain a home environment conducive to good performance at school as well as the child’s intelligence and resilience. It is remarkable, given the tumult surrounding the issue of the schooling that the father has generated over the last couple of years, that she is doing so well.
The father failed to persuade me in any way that the child’s best interests require those orders that he consented to last year to be vacated now on an interim basis. That the father continues to single-mindedly pursue final parenting orders that the child live principally with him, that he has sole parental responsibility and that she go to a different school demonstrates, on the preponderance of the evidence I have seen (even untested to the extent that it is) a disturbing lack of insight and demonstrably poor parental capacity on his part. It calls into serious question the current state of his mental wellbeing.
The father asserted from the bar table, crying as he did, that the mother and the school do not give him any information about the child, including report cards. Over the lunch break during the hearing, the mother prepared an affidavit in which she set out evidence that she had sent the father the child’s school report and photographs. She annexed copies of the covering letters. She had not had time to swear the affidavit. I allowed her to be sworn in and to give evidence in the witness box verifying the truth of the contents of the unsworn affidavit and made it an exhibit in the proceedings. The father was given the opportunity to cross-examine the mother. He took that opportunity with apparent enthusiasm but made no impact on the mother’s credibility at all, not even suggesting to her that she had not sent the things to him. I am satisfied that she did and that his assertion that she had not was simply wrong.
In any event, the mother informed the Court that she would consent to an order that she would send the father copies of the child’s reports, photographs, certificates and awards obtained from the school. I will make such an order. She also indicated that she would consent to an order that she authorise the school to give the father information about the child’s educational progress. That is a further matter to her credit, but, in the circumstances, I do not consider that to be a requirement that is currently in the child’s best interests. Given the state of the relations between the father and X School and particularly whilst the material that is published on the internet websites about the school remains there, I do not consider it in the child’s best interests to have the school put in a position where it must communicate with the father and accommodate his demands. I do not have confidence that the father could act in a responsibly restrained manner in any ongoing communication with the school and I am satisfied that any such ongoing unrestrained behaviour in communication might potentially impact upon the child’s relationship with the school. I will not order that the mother authorise the school to provide any information about the child to the father. The information the mother is to provide the father pursuant to the order that she has indicated she would consent to is sufficient information for the father’s needs at the moment. Should X School continue to eschew any form of contact or communication with the father or otherwise, that is a matter, in my view, entirely for them at this point in time, but they should not be under any misapprehension that this Court considers they are obliged to for the child’s sake. Indeed, as the evidence currently stands, I am satisfied that the child’s best interests would be served by a cessation of contact between the school and the father, at least until the father demonstrates greater insight into the consequences of his actions and complies with the orders of this Court and the Supreme Court of this State.

I dismiss the father’s application for an order that the mother provide him with the child’s homework book on the weekends that the child is with him. Pursuant to my orders, the child will only be spending two hours supervised time with the father each weekend until further order. I do not consider it necessary for her to take her homework book with her on those occasions. The mother has deposed to completing the child’s homework with her each week before she spends time with the father. She frankly expresses concern, in the light of the father’s internet behaviour, as to the father’s motives for wanting to see the homework book. I accept that this is a valid concern. In any event, given the child’s straight A’s report, the father can be satisfied that she is doing very well at school at the moment. There is no need for him to see her homework book at this point in time.
I dismiss the father’s application for permission to publish orders of the Court to X School but will give the ICL permission to communicate the content of paragraph 58 of these reasons to the Principal of the school.
I dismiss the father’s application for a psychiatrist to be appointed to do a family report. I informed the father that I would dismiss this part of his application during the hearing itself. He referred to an intention to appeal against any such order and I gave him my reasons. There are three family reports already in this matter from a very experienced family report writing social worker who has, I expect, written hundreds of family reports over the years. There are two psychiatric reports from a very senior psychiatrist who has been giving evidence in this Court for years. The Court is already adequately assisted by this abundance of social work and psychiatric expertise. When asked for his reasons why a fresh psychiatrist should now be appointed at significant expense, no doubt to the legal aid budget or even this Court’s budget, the father could only submit that there were “incongruences” in the existing reports. I was not persuaded that the best interests of the subject child required a further report from a different psychiatrist that was sought to be given on matters outside a psychiatrist’s expert knowledge in any event.
The father expressly withdrew his application for a valuer to be appointed to prepare a historical valuation of his now non-existent legal practice.
As to the father’s final application, that the Court enforce the current parenting orders due to non-compliance, the best the father could do when asked to explain what this was about was to inform the Court that the mother texted him when existing orders prohibited such communication with him.
The only evidence I saw of that were texts where the mother was simply seeking reassurance, in the light of the known significant changes in the father’s living circumstances, that the arrangements to accommodate the child during her overnight weekend visits would be appropriate. In response to reasonable requests for such assurances, she received inexcusable, violent abuse. That application of the father is dismissed.
I turn finally to the mother’s applications in respect of the internet websites. The evidence that the mother adduced in support of this application included many pages that have been downloaded from the internet website [URL omitted], including pages of articles posted on the website in the period between 6 and 10 May, 2014. Those articles include one headed “[title omitted]” and one headed “[title omitted]”. The articles also include one headed “[title omitted”. That article has a photograph of the mother and a link to her profile displayed on the internet website of the solicitors’ firm she is employed by.
The content of the material published on the website is generally offensive to the school and individuals connected to the school and also identifies the mother and the child, directly and indirectly, in respect of various issues that trouble the father. The mother deposes in an affidavit that recently she was called in to meet with the Principal and other senior members of staff and informed that the school was now aware that Year 12 students had become aware of the website and that they were concerned that this awareness would become more widespread through the student and parent body at the school, with potential consequences for the child, E. The mother was informed that the school was concerned for the child’s welfare as a consequence and wanted the mother to be aware of that.
The evidence adduced by the mother, confirmed by the father’s own evidence, is that the father established the website and that the registered owner of the website is the company, K Pty Ltd, the company of which the father is the sole director and shareholder. The evidence establishes that the registrant email address is ... I am satisfied that the father controls this website. I am also satisfied, on the balance of probabilities, that he controls all of the other websites that mirror this one and that he has published or caused the publication of the material on those websites and on YouTube and the CNN website that includes the same type of content. I am satisfied that the names of the other people registered as the owners of the other websites are mere pseudonyms created by the father for his own purposes, such as attempting to hide his own personal responsibility for creating the websites and publishing the content of those sites.
The mother’s submission, supported by the ICL, is that allowing the content of the father’s website and the others that the mother lists in her affidavit evidence that mirror this one to remain published is simply not in the child’s best interests and should be subject to a mandatory injunction to remove it. The mother also submits that s 121 of the Family Law Act 1975 (Cth) and the prohibition it contains is also contravened by the publication and that the circumstances are sufficiently exceptional to justify injunctive relief to prevent such contravention. The mother refers to my own decision in Xuarez & Vitela [2012] FamCA 574 and the Full Court’s decision in Sitwell & Sitwell [2014] FamCAFC 5 approving of the principles I applied in Xuarez in support of her submissions.
As I determined in Xuarez, I am quite satisfied that the power to grant injunctions in the form sought by the mother is available to this Court in factual circumstances such as these where the welfare of a child may potentially be quite adversely affected by allowing the continued publication of material such as that already published by the father on the various websites to remain published and by permitting him to continue to publish in an unrestrained fashion.
As I have already observed, the father informed the Court during the hearing that he could not and would not cause the published material to be taken down. He submitted that as a bankrupt he cannot act in his capacity as director of K Pty Ltd to close down the website and that only his trustee in bankruptcy could. That is, in my view, easily remedied by ordering him to take all steps necessary to close down the offending websites, including asking his trustee in bankruptcy to do all things necessary in his stead.
That the father informed the Court that he would not act in compliance with any Court order that required him to remove content from the internet websites should not, in my view, be a deterrent to this Court exercising its powers where it considers they are appropriate to be used. I will be making orders that require the father to act to close down the offending websites or to cause them to be closed down as I consider that is what is in the overriding best interests of the child who is the subject of these proceedings.
I am satisfied that the father, a former solicitor, must be clearly aware of the full gamut of potential consequences of wilful contravention of orders of this Court. Indeed, during the hearing of these matters, the mother informed the Court that if the father contravenes any such orders she will apply to this Court for him to be dealt with for such contravention, seeking imprisonment as an outcome. Of course, that is a matter for another day.
I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 May 2014.

Associate:

Date: 15 May 2014

[2014] FamCA 309

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Injunction

Remedies

Jurisdiction

Procedural Fairness