REEVES & MORGAN

[2014] FCCA 1547

FEDERAL CIRCUIT COURT OF AUSTRALIA

REEVES & MORGAN [2014] FCCA 1547

Catchwords:
FAMILY LAW – Parenting – child 11 years old – father has been an inconsistent presence in the child’s life – relationship between father and child has broken down – whether or not any orders for time should be made.

Legislation:

Family Law Act 1975, pt.VII, ss.60B, 60CA, 60CC, 61 DA, 65DAA

AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175
W & P [2010] FMCAfam 1108
McCall & Clark [2009] FamCAFC 92

Applicant: MR REEVES

Respondent: MS MORGAN

File Number: DNC 135 of 2010

Judgment of: Judge Harland

Hearing dates: 29 & 30 May 2014

Date of Last Submission: 30 May 2014

Delivered at: Darwin

Delivered on: 17 July 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Mr Gordon

Solicitors for the Respondent: Powell & Co Legal

ORDERS

1. That the mother have sole parental responsibility for the child [X] born [in] 2002.

2. That the child live with the mother.

3. That the father spend no time with the child.

4. That pursuant to section 68B of the Family Law Act 1975 the father is restrained from:

   (a)directly or indirectly approaching and/or communicating with the mother MS MORGAN born [omitted] 1974 and/or the child [X] born [omitted] 2002 (including but not limited to) in person, by telephone, email, SMS, letter or any other means;

   (b)going within 500 metres of any home or place of residence where the mother or the child are living or staying;

   (c)going within 500 metres of any place or school where the child attends, visits or is enrolled;

   (d)going within 500 metres of any place of employment where the mother may be working;

   (e)going within 500 metres of any other place where the mother and/or the child may be present;

   (f)harassing, molesting or stalking the mother and/or the child.

5. That pursuant to section 68C of the Family Law Act 1975, the purpose of Order 4 is for the personal protection of MS MORGAN and [X].

6. That the mother of the child be permitted to apply for an Australian passport without first obtaining the consent of the child’s father.

7. That provided he does so within 21 days of the date of these orders, the father is granted leave to seek to relist this matter for argument with respect to the injunctions set out at Order 4 above.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 135 of 2010

MR REEVES

Applicant

And

MS MORGAN

Respondent

REASONS FOR JUDGMENT

1. The father radiates barely contained anger. It was palpable every time the father appeared in court for directions hearings and the final hearing.

2. The father was unrepresented at the final hearing. For the most part he contained himself and did his best to present his case. He did not return to court after the adjournment on the second day of the hearing. The hearing continued without him.

3. The proceedings concern the best interests of ([X]). She is eleven.

The history of the proceedings

1. It is important to set out the history of the proceedings to give the final hearing context. It will be evident why it is important for these proceedings to be brought to an end.

2. The mother filed an application on 11 September 2006 seeking permission to obtain a passport for [X] without the father’s consent and permission to travel to (country omitted) for a holiday.

3. On 4 December 2006 the mother filed an application for parenting orders. She sought an urgent recovery order. The mother says the father withheld [X] and threatened not to return her unless she agreed to sign an order stating that she would not pursue child support. The parties entered into consent orders on 7 December 2006. Those orders provided for the mother to have sole parental responsibility and for [X] to live with the mother. The notations stated that the father did not want to pursue a relationship with [X] at that time and that the mother had agreed not to pursue child support. [X] was four years old.

4. On 16 March 2010 the father filed an application for parenting orders. He was unrepresented. The father filed a Notice of Discontinuance on 26 August 2010, just over a month before the final hearing. The father also filed a Contravention Application on 24 May 2010 which was dismissed on 3 August 2010.

5. The father filed a further application for parenting orders on 19 July 2012. He was legally represented. The parties entered into interim consent orders on 5 October 2012, requiring the father to undergo drug testing and allowing for him to spend time with [X] at CatholicCare NT (CatholicCare). 

6. The father filed an Application in a Case about child support in April 2013.  He filed that application on his own. It was flawed and when he was legally represented on the next occasion in court he withdrew it.

7. The mother filed her Response on 12 June 2013 together with a Notice of Risk.

8. The father filed a Contravention Application on 18 November 2013 without legal advice. When he appeared with legal representation on the next occasion he withdrew the application.

9. On 4 December 2013 the mother filed an Application in a Case seeking to suspend the father’s time. On 10 December 2013 orders were made for the father to have supervised time. He was also ordered to see a psychologist to address his emotional stability and was ordered to undergo drug tests. By this stage the family report had been released. Those orders were made by consent. The father was legally represented at that time.

10. On 25 March 2014 the father attended court unrepresented. The Court made further orders for drug testing for the father, made trial directions and set the matter down for a 2 day hearing starting on 29 May 2014.

11. The father did not comply with the trial directions.

12. The mother filed an Application in a Case seeking an extension of time to file her material. That application was listed before the Court on 27 May 2014. By that stage the mother had filed her documents. The father was represented by Ms McLaren on that occasion. She made an oral application for an adjournment of the hearing. I refused the application for several reasons. On the material before me I had real concerns about the impact of ongoing proceedings on [X]. The father had not complied with the orders for drug testing or for a psychological assessment. I had no confidence that the father would comply with orders if the adjournment was granted. I also referred to the High Court decision of AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175. As I stated at the time the adjournment of the hearing has implications not just for this case but for the other cases in my docket. I refused the adjournment application and extended the father’s time for filing.

13. Ms McLaren appeared for the father again on the first day of the hearing. Instead of preparing a trial affidavit for the father she prepared and filed an Application in a Case seeking an adjournment of the hearing in spite of the fact that I had already refused her oral application just two days before.  I refused the application and Ms McLaren withdrew. I allowed the father to rely on the affidavit he filed in support of his adjournment application as his trial affidavit as it touched on some of the relevant issues for the trial.

Legal principles

1. In cases about children under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: section 60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

2. There are objects set out in section 60B that help to clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objects: section 60B(2).

3. The concept of best interests is explained in section 60CC. The primary considerations are set out in section 60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

4. There are additional considerations set out in section 60CC(3). These include: the views of the child, the nature of the child’s relationship with the parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

Issues in dispute

1. The issues in dispute at the final hearing were:

   a)The nature and extent of the father’s drug use;

   b)Whether or not the mother should continue to have sole parental responsibility for [X];

   c)Whether or not the father should spend time with [X] and if so under what conditions;

   d)Whether or not the mother should be able to obtain a passport for [X]; and

   e)Family violence.

Child Support

1. It is clear that from the father’s perspective child support issues are connected to the parenting issues. He is resentful of the mother seeking child support from him. He sees the mother as having reneged on an agreement not to seek child support if he walked away from [X].  I pointed out to the father that there are no child support proceedings before this Court. The only proceedings are parenting proceedings.

2. The mother says that after the Child Support Agency collected approximately $3,000 from the father the father started sending threatening and abusive text messages to the mother.

3. The mother annexes a child support assessment for the period 1 February 2013 to 30 April 2014 which reveals that the father was assessed to pay child support of $967.75 per month.

4. The mother says in her affidavit that the father has often said that he will have nothing to do with [X] as long as he does not have to pay child support. The mother says that on that basis she waived arrears of child support of $12,000 in 2006 and about $26,000 in 2010. The mother says that since the father initiated the current round of proceedings she again sought child support assessment. She says the father is currently in arrears of approximately $30,000.

5. One of the aspects of parental responsibility is providing financially for your child.  Paying child support is a responsibility which is quite separate to spending time with a child.

6. The father conceded when cross-examined that for him the proceedings were not entirely about seeing [X] but were also about child support.  He said quite bluntly that he has never willingly paid child support. This does not reflect well on him.

History of the father’s time with [X]

1. The mother says the father’s time with [X] has been sporadic. He spent limited periods of time with [X] between 2003 and the end of 2006.

2. On 19 November 2012 the parties entered into consent orders providing for the father to spend unsupervised time with [X] after having provided a clear drug test.

3. On 11 June 2013 the parties entered into consent orders providing for the father to spend time with [X] from Thursday to Sunday every fortnight. On the first occasion the father spent time with [X] after the consent orders were made he took [X] to a [omitted] practice session instead of taking her to school. He did not tell the mother.  This is not the action of a responsible parent.

4. On 29 June 2013 the father called the mother and asked her to collect [X] early as she had a headache.  The mother said she was unable to do so as she was working at the [employer omitted]. [X] turned up at the [employer omitted] crying.  She told her mother that her father had put her in a taxi with $70.  The mother says [X] was scared riding in the taxi by herself.  The father denies that [X] was scared and says the mother agreed to him sending [X] to her in a taxi.

5. On 6 September 2013 the mother took [X] out of school and suspended the father’s time with her after seeing subpoenaed material produced by the Northern Territory police of the particular statutory declaration made by the father’s former girlfriend Ms S.  Ms S accused the father of making admissions that he liked little girls in a sexual manner and the father was growing commercial quantities of cannabis. The mother caused her solicitor to write to the father’s solicitor that same day outlining her concerns stating that the mother did not necessarily accept everything Ms S said but the allegations needed to be investigated further before she would allow unsupervised time between the father and [X]. The mother contacted the sexual assault referral centre. [X] was interviewed and counselled including being taught protective behaviours. After a worker at the centre informed the mother that she was of the view that there was no immediate risk because of their investigation and the protective behaviours [X] was taught, the mother recommenced unsupervised time with the father. In the circumstances I am satisfied that the mother acted in an appropriately protective manner.  As soon as her concerns were alleviated she recommenced the father’s time.  This is to her credit.

6. On 5 October 2013 the father saw [X] at a food court in [omitted] for [X]’s birthday.  The mother was sitting with a friend a short distance away.  After about five minutes the father ran out of the food court in tears. [X] was upset and confused.

7. The father resumed his time with [X] on Thursday, 9 October 2013. The mother received a text message from the father on Saturday afternoon, 12 October 2013 stating “[X] doesn’t love me for me”. The father asked the mother to collect [X] straightaway. She collected [X] at the [omitted] car park opposite McDonald’s in [omitted]. Whilst the mother was sitting in the car the father drove in and took a photo of the mother on his mobile telephone and said “that’s to prove you’re not scared of me”. The mother says it took about an hour to settle [X]. [X] told her mother that her father had told her that as she was eleven she should “know adult conversation”.  She says that the father showed her court documents and told her that he did not want to see her any more.  These incidents are concerning.  The father is not able to protect [X] from his emotions and from adult issues.

8. The mother says that [X] had some behavioural problems after 12 October 2013 and often did not want to go to school. She had trouble sleeping and alternated between being very quiet and being angry and aggressive.  This is not surprising given the emotional burden he father had placed on her.

9. The family report interviews took place two days later on Monday, 14 October 2013. Mr V asked the mother if the father was suicidal and expressed concern about the father’s mental state. The mother caused her lawyer to write to the father’s lawyer raising issues of concern about the father’s behaviour and recent family report interviews on 21 October 2013.

The father’s drug use

1. The father’s drug use was an issue of concern addressed in the family report.

2. The father has been convicted of growing commercial quantities of marijuana.[1]

   [1] Exhibit A

3. The father says that he no longer smokes marijuana and feels unfairly penalised. He claims not to be able to afford the drug tests. He says three clean drug tests are dated 21 December 2012, 20 February 2013 and 11 July 2013. He says that he did those tests within the timeframe of the request but does not annex the requests to verify this. The mother says that he has not provided the tests within the timeframe stipulated in the court orders and in some instances simply not provided test results at all. She says the most recent request by her lawyer was 25 March 2014. The father was well and truly on notice about his marijuana use being of concern to the mother. The whole purpose of random drug tests being required to be undertaken within a short time frame is to avoid the possibility of a person to remain off drugs long enough to provide a clear test. It is also not satisfactory for the father to simply say that he could not afford the tests. He knew how much the test cost and he is employed. He consented on more than one occasion when he was legally represented to orders requiring him to undergo drug testing. If [X] was his priority he would have ensured that he had the money for the tests saved and that he complied with the request for the tests promptly.  If he had done so and had provided clear tests this issue could have been laid to rest.

4. At one point the father claimed the orders required the mother to pay for the drug test.  The orders he consented to when represented by Ms Marris on 10 December 2013 require him to pay for the test.  The mother’s Counsel pointed this out to him and the father said he did not understand.  I do not accept his evidence.  It is convenient for the father to say he does not understand when he is caught out.

5. The mother’s lawyer wrote to the father asking him to undergo another drug test on 15 April 2014 in accordance with the orders which were made on 25 March 2014. He did not provide a drug test. In a further letter from the mother’s lawyer the father was asked to undergo a drug test on 13 May 2014 noting that he had not complied with the previous request. He did not comply with that request either even though he knew the final hearing was fast approaching.

Family report interviews

1. At the family report interview [X] described enjoying some of the time with her father but that the father bursting into tears on several occasions made her upset and she did not know what to do with him.  The father acknowledged that his crying in front of her could not be good for her but also talked about [X] needing to know what was going on with respect to the mother limiting his relationship with her.

2. Mr V noted that at various times during the family report interview and the previous child inclusive memorandum interview the father referred to the 2006 consent orders and the notation that the mother would not seek child support.  He again talked about discontinuing the proceedings and wanting the mother to stop seeking child support.

3. [X] told Mr V that she was confident that if she wanted to see the father for additional days her parents would arrange that.  She was very clear that her father would need to stop upsetting her with his strong emotions, stop quizzing her and stop calling her mother a liar.  Mr V identified a key issue during the assessment was the “palpable adverse emotionality exuded by Mr Reeves”.

4. [X] said she understood from her father that he telling her that she did not love him for him meant that he thought she was only spending time with him out of obligation and to get stuff from him.  [X] argued against this with passion saying she loved her father but wanted to see him on her terms.  She noted in recent weeks his crying had increased and that the periods of crying and questioning followed by periods of silence unnerved her.  [X] expressed concern for her father.

5. Mr V recommended that the father seek psychological assistance to deal with his acute emotional behaviour and drug use.  There is a danger that if the father continues to be so emotional in front of [X] and if he continued to talk about adult themes with her that she would resist seeing him.  Unfortunately the father did not heed this warning and his relationship with [X] has now broken down.

1. Mr V’s recommendation is at [54] where he states that it is critical for [X] not to spend regular time with her father until he has accessed appropriate medical and or psychological help to deal with his emotional fragility and drug use.

2. Mr Gordon put to the father by not addressing the recommendation the father was not acting in [X]’s best interests.  He denied that.

3. The father says his GP told him he did not need psychological assistance.  He relied on a letter from his GP annexed to his affidavit filed 28 May 2014.  It calls into question what information the father gave his GP and is suggestive of the father not telling his GP about his inability to control his emotions in front of his daughter.

4. The father says he could not afford to get a psychological assessment.  The father is working.  He is not paying child support.  As was put to him it is a question of priorities.

5. The father showed a lack of insight when it was put to him that it was unfair for a child to be told by a parent that the parent does not want to see that child again.  The father did not agree.

6. During cross-examination the father denied talking to [X] about adult issues.  He did admit to telling [X] that he did not want to see her anymore.  When asked why he didn’t discontinue the proceedings he said because of the maintenance aspect.  I do not accept the father’s evidence that he has not discussed adult issues with [X].

Incident at [X]’s school

1. The father’s behaviour in October and November 2013 was erratic.

2. Just a few weeks after telling [X] that he did not want to see her anymore he filed a Contravention Application.  He did not tell his lawyer about this.  The day after he filed the Contravention Application he consented to orders suspending his time so he could get professional assistance.  He was legally represented.

3. The father’s attendance at [X]’s school needs to be seen with this background in mind.

4. The father attended [X]’s school on 26 November 2013.

5. On 26 November 2013 there was an incident at [X]’s school. The mother says that the then school principal contacted her expressing concern because an unidentified man had attempted to take [X] as students were leaving school that day. The bus driver safely saw [X] on to the bus. The mother says that when she collected [X] she was upset and said that her father had been at the school and had wanted her to go with him. [X] told her mother that she was scared as her father was angry and aggressive. She says that when she got on to the school bus the father was standing outside pointing at her, and making a fist and saying to her “call me”.

6. The mother says she called the police. She contacted Mr M, the then school principal, and obtained work for [X] and kept her home for the next few weeks. The mother says that she learnt from [X]’s classmates that the father had turned up at school again the following two days and also turned up on 3 December 2013.

7. The mother’s solicitor wrote to the father’s solicitor on 27 November 2013 about the incident at school and embraced the fact that the matter was adjourned on 19 November 2013 to enable the father to seek professional help before his time with [X] was to be resumed.

8. The father denied the version of events at school. He was permitted to call Mr M to give evidence even though he did not provide an affidavit.  Mr M gave his evidence in a careful and considered manner.  Mr M did not see the father near the school bus.  He relied on reports he received from staff members.  He did talk to the father personally the next day.  The father admitted to him that he had been at the school.  Mr M was concerned to emphasise that he was relying on information from others.

9. The father does admit that he attended school. He spoke to Mr M. The father disputes behaving in an angry manner and disputes shaking his fist at [X] as she sat in the bus. He wanted to subpoena the bus driver to give evidence.

10. To some extent the father misses the point. Given the recent history which he admitted when he told [X] that he did not want to see her it was inappropriate for him to attend her school seeking to see her.  The father says he did so because the family report writer told him that [X] still loved him. He went to the school to ask [X] what she wanted him to do.  It would have been unsettling for [X] to see her father at school.  The father would have received the family report before attending the school.  This also has to be seen in the context of having recently been in court with his letter and having the benefit of the family report which raised serious concerns about the father’s mental health. Attending the school was about the father’s own needs not [X]’s.

11. Ms Powell, the mother’s lawyer swore an affidavit with respect to the school incident and conversations she had with Mr M at the time.

12. The father required Ms Powell for cross-examination.  Somewhat oddly he did not ask her any questions about what she recorded in her affidavit about her conversations at the school.

13. Ms Powell refers to the conversation she had with Mr M the day after the incident at the school.  It is clear from Mr M’s evidence that he did not disagree with the accuracy of what Ms Powell asserted but that he wanted to make it clear that he was relaying what other people had told him as he had not witnessed the incident.

14. I think it is more likely than not that the father did approach the school bus and that he made a sign with his hand for [X] to call him.  I find it likely that others found his actions to be intimidating.  The father has no awareness of how he comes across to others and so is unlikely to feel that he behaved in any inappropriate manner.  In the context of the recent events the father seeking to approach [X] at school at all was inappropriate.

Should the father spend any time with [X] and on what conditions

1. The father’s relationship with [X] has unfortunately completely broken down.  I am satisfied that this is not because of anything the mother has or has not done but is because of the father’s own behaviour and [X]’s own experiences of her father.

2. [X]’s experiences of her father have been such that she cannot rely on him to be a safe haven for her.  She cannot simply be a child when with him but has to be concerned about his emotional wellbeing.  She has experienced him as being volatile and unpredictable and therefore unsafe.

3. By the time the family report writer, Mr V, was cross-examined the father had left the courtroom.

4. The father denied telling the family report writer that he wanted to discontinue the proceedings. Mr V said that the father told him he wanted to discontinue the proceedings on two or three occasions during the course of the interview.  He also said that the father was on a roller coaster emotionally and was not surprised that the father had changed his mind.

5. The father claims that he understands how his actions impact on [X].  If this was true it would make the matter worse.  I do not think the father does understand how his actions impact on [X] and others.  That is the sad thing about this case.  He lacks that insight.  He has not taken on board the recommendations of the family report.  He has not complied with orders he has consented to.  There is nothing in the evidence to suggest that the father will change and that he will get the psychological assistance he clearly needs.

6. The father has some limited self-awareness in that he identified that he should not be crying in front of [X].

7. In response to my point to Mr V that the father had expressed the desire for [X] to live with him, Mr V said that would be extremely emotionally damaging for [X].

8. Mr V was not surprised to hear that [X] has been refusing to see the father at the contact centre.  The incident at school would have been confusing for [X].

9. Mr V commented that when he saw the father in July 2013 his anger was obvious.  When he saw the father in October 2013 he was strung out emotionally and tearful and also still showed undifferentiated anger.  Mr V said that the father lacks insight and does not see himself as radiating anger so he does not see his behaviour as impacting on other people.

Supervised time at CatholicCare NT

1. Consent orders made on 10 December 2013 provided for the father to spend supervised time with [X] at CatholicCare. The first visit was scheduled for 8 March 2014. The mother says that when she told [X] a few days beforehand that she would be seeing her father there [X] said she did not want to see him. The mother outlines the discussions that she had with [X] over the next couple of days encouraging her to see her father.  On 8 March 2014 [X] told the supervisor that she did not want to see her father because he always gets angry. [X] refused to see the father on the next scheduled visit of 15 March 2014.

2. The mother arranged for [X] to see a counsellor and [X] has been receiving weekly counselling through Relationships Australia. The mother says that [X]’s behaviour has improved and that her teacher has told the mother the same thing. The mother says whenever she raises with [X] the issue of seeing her father [X] says “please don’t make me see him”.

Passport

1. The mother has previously made an application to the Court to obtain a passport for [X]. She recently asked the father to sign a possible application for [X]. He did so but in the wrong coloured ink.

2. It is possible that in the future the mother may need to seek further passports for [X] before she turns 18. In the circumstances of this case, rather than having to seek the father’s consent or make an application waving his consent, it is appropriate to make an order enabling the mother to apply for a passport for [X] in the future without the father’s consent.

Family violence

1. The mother says she is afraid of the father. She says that he was verbally abusive and physically violent during their relationship. She says they were in a de facto relationship from January 2000 until February 2003.

2. The mother says she remains frightened of him.  The father challenged the mother about this during cross-examination of her.  The father says he took a photo of the mother at the handover to prove the mother is not afraid of him.  That does not follow.  When cross-examining the mother the father picked up a phone book in an agitated manner.  He put it to her that if she was frightened of him she would not have her number in the phone book.  It does not necessarily flow that this is inconsistent with the mother being afraid of the father.  The father has her number.  I accept the mother’s evidence that she is afraid of the father.

3. He also suggested that the mother sending him text messages was inconsistent with her being afraid of him.  Shortly before the court case the mother explained that the messages were about the case and putting the father on notice that she would seek costs if the hearing proceeded as she has had enough.

Injunctions

1. During closing submissions Mr Gordon asked the Court to make injunctions to protect the mother and child.  I made the following orders before reserving my decision:

   1. That pursuant to section 68B of the Family Law Act 1975 the father is restrained from:

   a)directly or indirectly approaching and/or communicating with the mother MS MORGAN born (omitted) 1974 and/or the child [X] born (omitted) 2002 (including but not limited to) in person, by telephone, email, SMS, letter or any other means;

   b)going within 500 metres of any home or place of residence where the mother or the child are or living or staying;

   c)going within 500 metres of any place or school where the child attends, visits or is enrolled;

   d)going within 500 metres of any place of employment where the mother may be working;

   e)going within 500 metres of any other place where the mother and/or the child may be present;

   f)harassing, molesting or stalking the mother and/or the child.

   2. That pursuant to section 68C of the Family Law Act 1975, the purpose of Order 1 is for the personal protection of MS MORGAN and [X].

   3.That the father spend no time nor communicate with the child including via electronic communication.

2. Mr Gordon referred to the decision of W & P [2010] FMCAfam 1108 where Demack FM (as she then was) made similar injunctions. In that case she made the injunctions on a permanent basis. That case involved serious violence which continued to negatively impact the mother and the children.

3. I made the injunctions in this case because of concerns about the father’s volatility and his emotional state after the hearing.

4. I now have to consider whether or not to continue those injunctions and if I do continue those injunctions whether or not they should be made indefinitely or for a fixed period of time.

5. The father was not in court when I made those injunctions and was not on notice that the injunctions could be made. This is not a criticism as the need for the injunctions really arose because of the father’s conduct during the hearing and the evidence which would have compounded any previous concerns the mother may have had.

6. I think it is appropriate to continue the injunctions because of the father’s emotional volatility and previous conduct. The father will find the Court’s decision difficult to accept. It is hoped the injunctions will dissuade the father from approaching the mother or [X]. As the father has not been accorded procedural fairness with respect to the injunctions I propose to allow him to apply to relist the matter for argument about the injunctions only, provided he make such application within twenty-one days of the date of this judgment.

Parental Responsibility

1. At the core of Part VII of the Family Law Act 1975 is a presumption of equal shared parental responsibility. Thus section 61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (section 61DA (2)), or rebutted (section 61DA(4)).

2. If the presumption applies, the Court is required to consider certain time arrangements as between parents and children: section 65DAA.  Thus the Court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: section 65DAA (1) and (2).  Equal time means what it says, and substantial and significant time is explained in section 65DAA(3).

3. Another important concept used in section 65DAA is that of reasonable practicality.  That is explained in section 65DAA(5).

4. The father said when he was cross-examined that he wanted shared parental responsibility.  When asked why he did not seek that in his application he said that his lawyer told him it would be too hard to change.  He then said “I don’t understand the court mumbo jumbo”.

5. The mother has had an order for sole parental responsibility for many years now.  The father has not shown any capacity to communicate effectively with the mother or insight into understanding [X]’s needs which would persuade me to change this order.  This would be the case even if the father’s and [X]’s relationship had not completely broken down.  It is in [X]’s best interests for the mother to continue to have sole parental responsibility for [X].

The application of legal principles to the facts of this case

1. The Full Court of the Family Court discussed the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92. The focus must be on the benefit to the child of having that meaningful relationship with a parent.

2. The relationship between the father and [X] has broken down because of the father’s actions.

3. The most significant primary consideration in this case is the need to protect [X] from psychological harm.  The father has demonstrated that he is unable to protect [X] from adult issues and his own emotions and unpredictable behaviour.

4. I set out the relevant additional considerations below.

5. [X] is eleven years old. She has expressed her views clearly. She loves her father but does not want to see him. It is clear that she has found his unpredictable behaviour very hard to deal with emotionally and she has had enough. [X] needs to be free to enjoy her childhood and to not be worried about her father’s mental well-being and having to deal with his unpredictability where he will want to see her and then tell her he will not see her anymore and then turn up at school unannounced. Although the father said he knew he should not cry in front of [X] he did not show any insight into the impact of his other behaviours on [X].

6. [X] has a close and loving relationship with her mother who has been a consistent presence in her life. Although [X] loves her father and at times has enjoyed spending time with him she did not have a close relationship with him and did not experience him as a safe protective adult.

7. The mother has shown a willingness to encourage the father’s relationship with [X]. The situation has reached the point now where she needs to protect [X] from being further emotionally and psychologically harmed by her father.

8. I have no concerns about the mother’s parenting capacity.  I do have concerns about the father’s parenting capacity. These concerns have been detailed sufficiently elsewhere in the judgment.

9. Again I have no concerns about the mother’s attitude towards the child and the responsibilities of parenthood but I cannot say the same about the father. To a large degree the father has shirked his responsibility as a parent and has failed to financially provide for [X]. He also has shown an inability to separate [X]’s needs from his own.

10. I am satisfied that the orders I will make are the least likely to lead to further proceedings. Any orders that the father spend time with [X] could lead to further proceedings including Contravention Applications which would not be in her best interests.

Conclusion

1. I expressed some concern about whether or not the mother would feel pressured into agreeing to the father spending time with [X] if the orders were expressed to be that [X] spend time with the father in accordance with [X]’s wishes. There is evidence before me that the mother has given in to pressure from the father before and this is particularly with respect to her waiving child support arrears. The mother agrees with my concerns. I am satisfied that if [X] genuinely wishes to spend time with her father she will communicate that with her mother and her mother will facilitate that if she thinks it is in [X]’s best interests.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  17 July 2014