Rocacelli and Seles (No 2)
[2019] FamCA 296
•10 May 2019
FAMILY COURT OF AUSTRALIA
| ROCACELLI & SELES (NO. 2) | [2019] FamCA 296 |
| FAMILY LAW – CHILDREN – Parenting orders – Where the father’s application for an adjournment to obtain legal representation dismissed – Where the father has exposed the child to family violence – Where the father has a significant criminal history – Where the court satisfied the father poses a risk to the child by continually exposing her to violence – Where the court satisfied the father presents an unacceptable risk of harm to the child face-to-face, unsupervised – Where the child will gain benefits from having a relationship with the father as long as it does not expose her to harm –Where joint decision making not practicable given coercive and controlling family violence – Order that the mother have sole parental responsibility for the child – Order that the child live with the mother – Order for regime of communication between the father and child. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 79ZN Evidence Act 1995 (Cth) ss 140 |
| Romano & Simic [2019] FamCA 105 Bloch v Bloch (1981) 180 CLR 390 Sali v SPC Ltd (1993) 67 ALJR 841 |
| APPLICANT: | Mr Rocacelli |
| RESPONDENT: | Ms Seles |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Falcomer |
| FILE NUMBER: | DGC | 1007 | of | 2017 |
| DATE DELIVERED: | 10 May 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 8 and 9 April 2019 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Trevino |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Spina Kyle Waldon Solicitors |
Orders
To the extent that they are inconsistent with these orders, all previous parenting orders made in these proceedings are forthwith discharged (noting that the Airport Watch List order made 9 May 2007 therefore remains in force).
That X born … 2008 (“the child”) live with the mother.
The mother has sole parental responsibility for major decisions relating to the child’s long term care, welfare and development.
The father have supervised communication with the child by electronic means, for one occasion, during each school holiday period, for a minimum of half an hour and a maximum of one hour, such time to be supervised by a Children’s Contact Centre nominated by the mother and at the mother’s expense.
The child be at liberty to communicate with the father by electronic means (for example telephone, Skype or Facetime) at all times as she may choose, for such periods of time as she may choose, with such communication to be supervised by the mother, or such other person and in such a manner that she may nominate.
The father be permitted to send cards and gifts to the child to mark her special occasions including her birthday, Christmas and Easter by sending to a PO Box address nominated by the mother.
The mother will provide her PO Box address for the purpose of order 6 to the Independent Children's Lawyer within 30 days of the date of these orders.
The father be permitted to write to the child not more than once in each month and the child is permitted to write to the father as often as she wishes.
Pursuant to s 121(9) of the Family Law Act 1975, the mother may provide a copy of the Family Reports prepared in this matter to any psychologist or counsellor engaged for, and on behalf of, the child.
For the purpose of these orders, the father will keep the mother informed of his relevant contact details by sending them to the mother’s PO Box address.
The Independent Children's Lawyer is discharged with the thanks of the court, upon the provision of the mother’s PO Box address to the father.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rocacelli & Seles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: DGC1007/2017
| MR ROCACELLI |
Applicant
And
| MS SELES |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Rocacelli (“the father”) commenced these proceedings by filing an Initiating Application in the Federal Circuit Court of Australia on 3 April 2017. Although he then declined to articulate any final orders which he sought, on an interim basis, he sought equal shared parental responsibility with Ms Seles (“the mother”) in relation to the only child to the relationship, X, born in 2008 and hence presently 11 years of age (“the child”). He further sought that on an interim basis the child live with the mother, but have unspecified time and communication with him. He also sought what is commonly referred to as an airport watch list order.
Thereafter the father’s position in relation to final orders remained unclear until the conclusion of the trial before me. At that time he identified that he accepted that sole parental responsibility for child should lie with the mother (although there should be an obligation on the mother to consult with him) and that the child should reside with her. Further, he did not seek any orders requiring that the child spend time with him (although she should be able to spend time with him at times and of durations of her choosing). Finally, he sought orders that the child be a liberty to communicate with him by electronic means, at all times as she may chose, for such periods of time as she may chose, with such communication be supervised by the mother or such other person as she may nominate.
For her part, the mother (who was supported by the Independent Children's Lawyer) sought orders that she have sole parental responsibility for the child, who would live with her, and whilst spending no face-to-face time with the father, would be obliged to communicate with him on four occasions per year, and be at liberty to communicate with him on additional occasions as she may chose. Whether communication with the father was mandatory or voluntary, all such conversations were to be supervised.
When the trial commenced before on 8 April 2019, the father initially sought an adjournment, in order that he could obtain legal representation, or at least advice. I dismissed that application for reasons to be given in due course.
Ultimately the trial concluded before me on 9 April 2019, at which time I reserved my decision. This is that decision and the reasons for it. It is convenient to also include in this judgment my reasons for refusing the father’s application for an adjournment.
BACKGROUND FACTS
The father
The father was born in Country Q in 1964, and hence is presently 54 years of age. He told Dr B, a psychiatrist who examined him for the purposes of these proceedings, that he completed schooling to year 12 in Country Q, and went on to do studies in Economics. He moved to Australia when he was 20 year of age, and learned English as a second language at an English school, followed by Accounting. At aged 21 he married his first wife, to which marriage there were three children, Mr H (presently 32 years of age), Ms J (presently 27 or 28 years of age) and Ms K (presently 23 years of age).
Not long after he arrived in Australia, in November 1985, the father was charged with offences of dishonesty in relation to property, albeit those charges were dismissed. Two years later, he was charged with criminal damage, which resulted in him being placed a good behaviour bond. In 1990, he was charged with blackmail, and intentionally or recklessly causing injury, albeit he was acquitted of those charges. In 1991 he was convicted on some charges in relation to stolen goods, and sentenced to community service orders.
Whilst I know little of his earlier activities in Australia, I do know that by 1998, he was in some way associated with a company in Melbourne, and it was whilst in that year, when he was 33 years old, and whilst still married to his first wife, that he met the mother and commenced a relationship with her.
The mother
The mother was born in 1977, and hence is presently 42 years of age. Although born in Australia, she is of Country L ethnicity and grew up in a very close knit family environment. She completed her education (seemingly in Melbourne) to year 12, and then did some further studying before, in around 1998, obtaining employment with the same company where the father was working. That was in 1998, when she would have been about 21 years of age.
The relationship
I know little about the parties’ early relationship, other that the fact that it was initially conducted in a clandestine way. Ultimately in about 2000, the father and his first wife separated, and the parties’ relationship became more public.
In June 2000 there was a domestic violence incident between the father and his first wife. It was alleged that grabbed her by the hair and dragged her towards his car and pushed her into it. It is then said he drove about 10 metres before his wife opened the car door and got out.
At some stage which is unclear on the evidence, the father’s interest in the company ceased, and he commenced other businesses. It seems that those businesses involved licenced premises, seemingly including at least one adult entertainment venue. It was likely in that context that, in 2000, there was a report to police of the father having orally raped a staff member and having some involvement with the use of cocaine.
On 7 August 2001, a significant event of domestic violence between the father and his first wife occurred. An intervention order that had previously prevailed between the father and his first wife had shortly before expired, hence the father’s attendance was not a breach.
In April 2002 the father was convicted of failing to act honestly in relation to his duties as a director, and incarcerated under a head sentence of 20 months, albeit released after 10 months on a good behaviour bond for 20 months. It appears as though during the father’s incarceration the mother managed whatever businesses they were then controlling.
In 2003 the father was discharged in relation to charges of administering a drug for sexual penetration, false imprisonment and rape. It seems these charges likely stemmed from the December 2000 complaint, but it is unclear.
Next, according to Victoria Police records, on 3 January 2004, there was a further domestic violence incident between the father and his first wife. Apparently the father was attending her address for the purposes of spending time with his children, but noticed that the mother had a male friend visiting, and became upset and abusive towards her.
Considering that the father had by then been in a relationship with the mother for something approaching six years, his jealously at his first wife also having moved on seems at best, a bizarre double standard, and at worst, jealous, possessive and controlling behaviour. That assumes some significance in this case.
In August 2004 the father was convicted and fined in relation to an assault of police. That appears to have arisen out of him being refused entry to licenced premises.
In 2008 the parties married. That seems likely to be, in part, because by then the mother was pregnant with the parties’ child.
In June 2008 the father was convicted and fined in relation to uttering threatening words in a public place.
In 2008 the child was born.
In February 2009 the father was charged with obtaining property by deception. The outcome of that charge is unclear.
At some stage the parties moved to live in North Queensland (although keeping connections with Victoria). Whilst living there, in May 2010, a significant assault of the mother allegedly occurred. According to Police records, the father was alleged to have attacked the mother and strangled her in her bedroom, with the child hiding under the bed. The mother says that this is when she regards the parties as having separated, although for many years thereafter they continued to reside together, co-parent the child, and engage in sexual relations.
In August 2010 the father was charged with assault of police. In October 2010 the father was charged with stealing tools and equipment from Company N, to a value of a little under $1,200.00. It appears as though both of these offences were dealt with in April 2011, with convictions being recorded in relation to both, and a fine imposed.
On 30 November 2010, again according to Queensland Police records, the father assaulted a tradesman who had attended his rented premises in North Queensland, to replace electrical equipment. The assault comprised pushing the tradesman and making threats towards him. The father also refused to let him retrieve his tools from inside the house. Ultimately the victim withdrew his complaint and the matter did not proceed.
In 2012 the father was convicted in the County Court of recklessly causing serious injury, and recklessly causing injury. Precisely when those offences occurred is not clear, but I assume it was in about 2011. The father gave evidence as to the circumstances of those offences, which occurred in a shop that he was operating. He says that two large footballers in some way offended the mother, and he responded by striking the larger one in the face with his fist, then striking the other man in the face with his fist, before returning to the larger man and striking him in the face again, and doing the same again to the smaller man. It was the larger gentleman who suffered the serious injury, apparently comprising a permanent impairment to the vision in one eye.
The father was sentenced to 27 months of imprisonment in relation to those offences, and had a non-parole period set of 12 months. He was thereafter incarcerated, and did not return to the family residence at F Town until August 2013. However prior to leaving Melbourne, in 2013 he faced a further charge of obtaining financial advantage by deception, although his criminal record notes that he was discharged in relation to that offence, as there was insufficient evidence to support a conviction.
In August 2014 there was an incident of domestic violence between the father and Y, the daughter to his first marriage. Whilst the father in his oral evidence before me sought to downplay what occurred, I am well satisfied that the relevant police records accurately detail the event. Relevantly they provide:
[The father] has recently finished parole and lives with his mother. [The father] and [Y] do not have a good relationship. [Y’s] younger brother does not have a good relationship with [the father] either. On Tuesday 14th of August 2014, [Y’s] brother has had a verbal and physical fight with [the father] where [Y’s] brother received scratches to his face and neck. [Y’s] brother phoned [Y] extremely upset and asked her to attend at [the father’s] home to pick a brief case that he had left there. [Y’s] brother told her that [the father] had punched him. [Y] attended the address and was confronted by an agitated [father] holding a screwdriver in his hand. [Y] spoke to [the father] about her brother and then [the father] started making lude comments about [Y’s] mother. The comments upset [Y] and she started yelling at [the father] to “shut up.” [The father] has stood over [Y] screaming in her face to “get the fuck out.” [The father] was intimidating [Y] and she left. [Y] met up with her brother where she noticed blood on his clothing and face with visible scratch marks. [Y] spoke with her brother who urged her to go back and retrieve his brief case. [Y] has returned to the address and [the father] was ranting and raving. [The father] went outside into the back yard when [Y] spotted the brief case under the couch. [Y] grabbed the brief case but [the father] caught her and grabbed [Y] by the throat applying pressure. [Y] was pushed onto the couch and then into the door. [The father] had a hold of [Y] by the front of the jumper. [Y] was frightened. [The father] held onto the front of [Y’s] jumper and started pushing her towards the front door. [Y] was held up against the brick wall at the front of the house. [The father] broke the neckless from the neck of [Y]. [The father] then flung [Y] across the bonnet of her car and attempted to kick her. [Y] phoned 000…
The father would have it that at the time he was attempting, by some means, to assist his son to break an alleged addiction to methamphetamine. He further says that his agitation related to Y’s lack of understanding of her brother’s situation. I am satisfied that the event occurred as recorded in police records, and reject the father’s contrary version.
On the following day a family violence order was made against the father in which Y was the aggrieved.
In January 2015 the father was charged with stealing a $47.00 product from a D Town retail businesses. The outcome of that charge is not clear.
In September 2015 there was an incident between the parties. Given that, most unusually, the mother did not rely upon any material in the trial before me, I do not have her version of events, however it appears that the mother had then fallen pregnant again, but the father did not want the pregnancy to go to full term. The father’s version of events is at paragraph 759 to 764 of his affidavit filed 16 October 2017, and he concedes that after the incident the mother fled their home in North Queensland, and went to Melbourne with the child, and sought an intervention order from Melbourne Courts. Apparently she in due course miscarried, and thereafter returned to North Queensland on about 4 November, albeit the father shortly then went to Melbourne to deal with further criminal proceedings as detailed below.
Next, in October 2015, after being asked to leave licenced premises, the father assaulted bar staff by throwing a can of beer at them. He was arrested, but according to the police reports “upon being arrested the suspect became aggressive and violent and refused to be placed in the rear of the police vehicle.” The outcome of the ensuing charges is unclear on the evidence.
In late 2015 the father was sentenced in the County Court, having pleaded guilty to one count of obtaining financial advantage by deception. It related to a period many years prior, between 16 June and 26 July 2006. The amount of the advantage obtained was $250,000.00. It had to do with a proposed joint real estate transaction between the father and a woman. In due course, he was sentenced to imprisonment, with 16 months of that sentence suspended for a period of two years. He was released from jail in August 2016, and returned to live in North Queensland with the mother and the child.
In late 2016 the parties divorced. Notwithstanding that divorce, the parties intermittently continued to live together. It seems likely that sexual relations also continued between them.
In February 2017, a serious incident occurred, although the parties are in disagreement about the events. The police notes of that day record that the mother told the father she was going for a walk, which upset him, as they were supposed to work on some paperwork together. An argument ensued, and the father started to throw some unspecified plastic items at the mother where she was standing outside the house. She tried to calm him and went back inside, but the father then picked up a metal dining chair, as if he was going to throw it at her. The mother went back outside the house, but was chased by the father, who caught up with her, and then tried to drag her back into the house. They struggled in the carport area, with the father ending up on top of the mother.
The police notes state that the father then picked up a metal bar, and held it like he was going to hit the mother with it, before he dragged her back inside, where he stood over her as she sat on the couch with the bar. The father was telling the mother not to go, to which she agreed in an effort to try and calm him. However eventually the father told the mother to leave, and she ran from the house to the road with the child, and flagged down a passing car, who took them to the police station. At the police station it was noted that the mother had grazes to her left elbows, skin off her left ring finger, a ripped singlet and also other minor scratches.
A history of violence was taken from the mother by police. It is noted that she told them that there had been at least two choking events in the relationship, and there was detail given of an incident about a year and a half earlier in which the father had slapped her about 20 times across the face until she stopped flinching.
One of the choking incidents happened when the child was about two years of age and was hiding under the bed. It is said that the father had both of his hands around the mother’s neck as she lay on the floor of the bedroom.
Unsurprisingly police made an application for a protection order, and an order was made by consent on 22 February 2017, albeit without admission.
The father denies virtually all of these events. However I am satisfied that the mother’s statements to police were accurate, but more worryingly, there is a further reason to accept the evidence in the police records, because it was substantially related by the child in similar terms to Ms P, the Family Report writer, as recently as 7 March 2019. At paragraphs [67]-[68] of the report there appears as follows:
67. [The child] indicated that she felt closest to her mother, and not her father, because, “she mainly raised me, dad was barely there. When he was there, there were fights. I started to realise he was just problematic.” She further stated she did not feel close to her father because she did not feel safe around him.
68. [The child] recalled experiences of family violence. She stated she and her mother had to run out of the house about four times. In particular, she remembered when they lived in a farm house and her parents were “fighting.” She reported that she ran outside and hid in a bush in the front yard and could hear her father “screaming.” Her mother then ran out and flagged down a car. The driver let her mother into the car, then [the child] started running towards the car. She described seeing her father and she “bolted to the car.” She reported she and her mother went to the police station.
Post-separation
Both parties identify that their final separation was on 19 February 2017. The parties have not thereafter lived together, although it appears as though there may have been intermittent sexual relations, notwithstanding.
As I have earlier indicated, in 3 April 2017 the father commenced these proceedings in the Federal Circuit Court. Essentially conceding that the child should live with the mother, he was seeking to use those proceedings to establish an interim regime of spending time with the child. He also sought an airport watch list order, which was granted on 9 May 2017.
The mother says that the father, contrary to the February 2017 domestic violence order, attended her home on 2 July 2017. In the subpoenaed materials in evidence is the mother’s witness statement in support of the subsequent prosecution for the father’s breach of those orders. In it she says that the father rang her, and she became apprehensive that he was in the area. She told him in no uncertain terms not to come to her house, and to leave her alone. However a couple of hours later, whilst she was checking her washing in the back yard, the father appeared at her back door and forced his way into her home. He grabbed her with his right arm and scratched her head in the process. She exited the house and ran up the driveway, but eventually spoke to the father in relation to some alleged paperwork he was trying to have her sign, albeit then refused to do so, and ran back into her house and locked the door. She called the police.
From the Family Report, it seems likely that the child witnessed this event, as at [69] there appears the following:
…When [the child] was asked why she did not miss her father, she stated, “I have heard him be physical with my mother.” [The child] described a time she remembered her mother collecting washing from the line and she heard her mother scream. She then reported seeing “half of my mum on the floor,” as her father was dragging her by her legs. [The child] stated she tried to call the police but described the call not going through properly. Eventually she remembered her mother coming inside, locking the door and calling the police.
The father was subsequently contacted by police, but denied touching the mother or going inside her home. Notwithstanding those denials, the father was arrested and charged with breaching the domestic violence order. He was granted bail. However a week later on 9 July 2017, the father again attended the mother’s home, and was standing outside a window. The mother looked up and screamed when she noticed him. The father then asked to see the child and asked for the mother to sign some paperwork in relation to a property. Eventually he left. In due course the father was charged with a breach of bail, and in August 2017 was dealt with by the Magistrates Court, where a conviction was recorded, but he was not further punished.
A variation to the extant domestic violence order was made in July 2017, again by consent without admissions. Also on that day, the father attended the child’s school and advised the mother that he was going to pick up the child to take her to her dance class, rather than have her catch a bus there. The school contacted the mother, who called the police. Police records note as follows:
On arrival [at the school] police spoke to [the father] who was extremely irate and upset. Upon arriving at the school to collect the child, as is his right of the father of the child and with no Family Law Court in place. The school whilst talking with the respondent quickly put the child on the bus to go to [redacted] for dance classes as was the existing arrangement with [the mother] who is in … working late. [The father] felt deceived and the actions of the school to be unlawful. The respondent was in a rage and original contact with police was of hostility. Police communicated and calmed the respondent who provided police with a copy of the domestic violence order that had been issued in the Magistrates Court that day. Police also confirmed that there was no Family Law Court in place. The respondent merely wanted to take his daughter to dance classes and then for an ice cream. [The father] was distraught and broke down in tears at not having seen his daughter for a period of time due to the separation with [the mother]… [The father] requested the police accompany him to dance class at [redacted] school so that he could see his daughter and to provide a safe environment if [the mother] turned up. At the school police were present when [the mother] arrived on scene. Again there was a very tense emotional situation with [the father] wanting to see his daughter. Police spoke to the daughter who informed her father that she did not want to go with him or speak to him at that time. [The father] very hurt and emotional spoke at length with police and advice was given in relation to Family Law Court options…
The following day police spoke to the child’s school again, and the principal stated that the child “was in fear of her father and did not want to go with him so they chose to stick her on the bus.”
Another police report of the events of 11 July 2017 notes that the father “was in tears .. asking [the child] why she didn’t want to speak or be with her father.” The child replied, “you are too up and down.” The child then said “I don’t want you to come to my birthday party.”
On 19 July 2017 a not dissimilar episode occurred again, albeit that this occasion resulted in the father being charged with contravening a domestic violence order, public nuisance, and disorderly conduct, comprising resisting arrest.
Police records of the events note:
…The offender has attended the [D Town] Police Station to request the company of police to see his daughter who is attending her dance school. The daughter’s mother had previously arranged for a friend to transport her from school to the dance school and then home to her address where she lives with her mother. Police attended the dance school with the offender where he remained outside the building whilst an officer attended inside the dance school and [took up with] the daughter. The officer asked if she would like to see her father/offender and she gave a fearful response and said she didn’t want to see him. Police observed the child to [be] fearful and advised her and the person who is taking her home to vacate through the rear of the building. The officer returned to the offender who was still waiting outside and advised him that his daughter didn’t want to see him and she was scared of him. The offender has then displayed violent and disorderly behaviour towards police on the street front to the point where a taser was presented to and the offender was then taken into police custody.
Other police records note that the father’s “aggression has escalated towards police causing police to fear injury to themselves and others, as such taser was presented, subject to his challenge several times, once subject observed taser was out, subject was compliant with directions.”
As it transpired, this was the last occasion that the father spent face-to-face time with the child.
On 3 August 2017 the father again attended the mother’s house, in breach of the domestic violence order. Unbeknownst to him, his actions were recorded on CCTV. That footage showed that he removed a flyscreen from the bathroom window and, by standing on a garbage bin, entered the house through that window. He then searched the home and removed personal documents of the mother, together with a laptop computer and charger. He later left the home by the back door, leaving the door open. The mother told police that she and the child were at home at the time, and that the house had security grills, window locks and deadlocks. The father was charged with burglary and a further breach of the domestic violence order.
In August 2017 the father was apprehended by police for being in breach of his bail conditions, which prohibited him from being within 20kms of the D Town centre, and within 20kms of the mother’s address. He was arrested and charged.
In October 2017 the father was dealt with for his several breaches of the domestic violence orders, and his public nuisance, assault and obstruct police offences. He was sentenced to four months imprisonment, wholly suspended for twelve months.
Relevant procedural history
On 20 October 2017 Judge Willis made interim orders in the Federal Circuit Court prohibiting the father from having contact with the child.
On 22 November 2017 this matter was transferred to the Family Court of Australia. On 20 March 2018 the father filed an interim application seeking a regime of telephone communication and face-to-face time with the child. On 5 June 2018 that application came on for hearing before me, but resolved by consent on terms which afforded the father 30 minutes of supervised Skype communication with the child every three weeks, or as frequently as the Contact Centre could accommodate it, and provided that the father be at liberty to send a card and gift to the child for her birthday.
On 9 October 2018 I listed this matter for trial in April 2019. However earlier that day the father had filed a further application, seeking a variation to the 5 June 2018 interim consent orders, namely that the telephone calls move to unsupervised time of one hour duration each weekend, and for the commencement of supervised face-to-face time, moving to unsupervised time, culminating in the child spending weekends with him from Friday after school until 6:30pm on Sunday. Some other ancillary of relief was also sought. On 14 February 2019 I heard that interim application, and for reasons given on 28 February 2019, dismissed it.[1]
[1]Rocacelli & Seles [2019] FamCA 105.
Although the trial plan settled with the parties on 9 October 2018 showed that the father, and indeed the mother, proposed to call a large number of witnesses, in fact neither party complied with the trial directions, and did not file any affidavit thereafter.
Current situation
As at the time of the trial before me, the mother and child lived in an undisclosed location. The mother has obtained qualifications as a Professional, and is employed in that field.
The father is also presently living in Melbourne, with his mother. He is recuperating from some surgery. Once he has recuperated, he intends to return again to North Queensland. He is not presently in employment.
The child has not spent time with the father since July 2017. However she has been continuing to speak with the father by telephone from a Contact Centre on a fortnightly basis for 30 minutes. I will discuss the progress of those calls in due course.
THE ADJOURNMENT APPLICATION
At the commencement of the trial on 9 April 2019 I dismissed the father’s application to adjourn the hearing, for reasons to be published in due course. These are my reasons for dismissing that application.
In his affidavit filed in support of the adjournment, the father said that it had just dawned upon him, once he had seen the Independent Children's Lawyer’s proposal, that he was not properly equipped to handle the litigation by himself. He said “I now recognised I do not have the legal expertise to litigate in these proceedings and I will be seeking expert legal advice for which I need extra time to do so.” He also advanced a collateral benefit of an adjournment, namely that it would allow the present arrangement of supervised communication to continue, and perhaps enable him to better engage with his daughter in those calls.
Section 79ZN of the Family Law Act mandates the court to give effect to principles there enumerated, not only in performing duties and exercising powers in relation to child related proceedings, but importantly, by sub-paragraph (b), also in making other decisions about the conduct of child related proceedings.
The principles relevant to these proceedings are principles 2 and 5, contained respectively in sub-sections (3) and (7). They provide:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality inform as possible.
The following matters emerge from relevant case law:
·The decision to grant or refuse an adjournment is a matter of practice and procedure within the discretion of the trial judge;[2]
·Generally speaking, if there is no injustice to any other party, and a refusal to grant the adjournment would result in a denial of natural justice to the parties so applying, the application should be granted;[3]
·However the effect of an adjournment on court resources, including the displacement of claims by other litigants are relevant, as there is a public interest in the most efficient uses of court resources;[4]
·The lack of legal representation may, in an appropriate case, compel an adjournment.[5]
[2]Bloch v Bloch (1981) 180 CLR 390 at 395; Elgin & Elgin [2015] FamCAFC 155.
[3]Sali v SPC Ltd (1993) 67 ALJR 841 at 843.
[4]Sali v SPC Ltd (supra); AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94].
[5]See for example Forster & Forster [2014] FamCAFC 88 at [8]ff, accepting that there were unusual facts in that case.
These proceedings were commenced by the father on 3 April 2017, and therefore have been on foot for in excess of two years. The trial has been set down since 9 October 2018, and despite a detailed trial plan, the father (and indeed the mother) have not made any attempt to comply with it. Moreover, the father has not explained why he has not complied with the orders preparing the matter for trial, beyond saying that he believed he would be able to rely upon his old affidavits, notwithstanding the very clear prohibition on doing that contained in paragraph 5 of my 9 October 2018 orders.
The father’s application to adjourn the trial was made at the last minute, and although he identified a need for legal representation, he provided no detail of any realistic prospect of him being able to engage such assistance, his available means of satisfying the cost of such, or indeed when it is that such lawyers could be ready to conduct the trial on his behalf. Although the father said that the Independent Children's Lawyer’s foreshadowed proposal has made him apprehensive at the prospect that the orders made may be significantly adverse to him, that has always been the possibility, particularly since the Family Report of Ms P filed 27 March 2019 was released.
Further, such disadvantages as the father suffers by virtue of not having legal representation can, to a degree, be ameliorated by the usual practice of the Court itself providing some rudimentary assistance to self-represented litigants, for example, by explaining the processes to them, and reformulating questions if they are having difficulty casting them in a coherent form.
Weighing those matters in the balance told strongly against the father’s application for an adjournment, and I was well satisfied that the interests of justice favoured the trial commencing.
For those reasons I dismissed the father’s application.
THE ISSUES
With the assistance of the parties, at the Trial Management Hearing I identified the following as being the issues which this litigation gave rise to, in the sense that their determination will substantially impact the outcome of the exercise of my discretion. They are as follows:
1.What is the nature of the relationship between each parent and the child.
2.What risk, if any, does each parent and parent’s household pose to the child and what, if any, means are available to mitigate such risk.
3.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
4.Would each parent facilitate a meaningful relationship between the child and the other parent/parent’s extended family.
5.What is the likely impact on the child of each parties’ proposal.
6.What is the likely impact on the mother if the child were to commence spending time with the father, and what effect would it have upon her parenting capacity?
7.Would the parties’ communication and relationship history be sufficient to support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.
Once I have addressed the relevant statutory provisions and legal principles, but in advance of a traverse of any residual s 60CC factors, I will address those issues, before considering the exercise of my discretion in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[6]
[6] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) 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; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
For reasons that I will publish in due course, the father’s Application for Adjournment is dismissed.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[7]
[7] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings, albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[8]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[8] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Plainly however, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND CHILD
I did not understand there to be any dispute that the child has a good relationship with the mother, from which she derives nurture, comfort and support. Ms P supported such a view, and further said that the child’s primary attachment is, and always has been, with the mother.
On the other hand, Ms P’s evidence was that the father’s relationship with the child is much less meaningful than that of the mother. She said that the father creates stress and anxiety for the child, and their relationship in the past has been characterised by the child being exposed to family violence, as the child directly recounted to her in her interview. She said that against such a background, having continued contact with the perpetrator of the family violence can re-trigger trauma.
She thought that the child derived minimal nurture, comfort and support from the father. To the extent that the father provided the child with any benefit, she identified it as him encouraging her to be aware of, and engage with, her Country Q background and culture, and she thought the child would likely also benefit from any praise which the father might lavish upon her from time to time.
As I have identified, the child herself, both in 2017 and in her interviews with Ms P, identified that she did not perceive she derived any benefit from the father. To the police in 2017 she said that he was “too up and down” and she expanded upon those themes in the Family Report interview. At [69] of the Family Report there appears as follows:
69. [The child] described the video calls she has with her father at [Contact Centre]. She stated, “I feel like I have to hide my feelings. I feel like he’s a five year old.” She explained this further by saying her father once asked her if she wanted to have calls for an hour rather than half an hour but he told her that she could think about it, and he cried “crocodile tears.” “At the end he says, “I love you and I miss you,” I don’t say that. I don’t really love him anymore and I definitely don’t miss him.” [The child] emphasised the “definitely.” She stated that she hid her feelings because she did not want to give her father “the idea I love him when I don’t. I feel sorry for him sometimes than I don’t for what he has done.” When asked why she did not love him anymore, she stated, “he’s betrayed me. If you love someone, you wouldn’t go chasing them out of the house. You wouldn’t yell at them. You would show them affection.”
At [83] of the Family Report, Ms P continued:
83. [The child’s] description of her supervised video calls with her father gave the impression she is engaging in the calls because she thinks she has to. She said as much to the [Contact Centre] worker. She does not appear to find the interactions meaningful. Also of concern is that there is some suggestion [the child] is feeling responsible for her father’s feelings with her comments that she has to hide her feelings, that sometimes she feels sorry for him and that on one occasion she had to “calm him down.” Notes from the [Contact Centre] support the notion that she is trying to manage her father’s feelings as well as her own. The observational notes convey the impression that [the child] is able to “put on a happy face” and engage with her father for the duration of the call. However, this is at the expense of putting her own feelings aside and prioritising her father’s feelings and his agenda.
Ultimately I conclude that the value to the child of a relationship with her father is slight, albeit nonetheless tangible, in large part because of his personality, and his past display of family violence, including exposure of the child to family violence.
ISSUE 2 – RISK POSED BY PARENTS AND MEANS AVAILABLE TO MITIGATE IT
The mother
Neither Ms P nor the Independent Children's Lawyer identified that there was any risk attaching to the child in the mother’s household. Even the father conceded that the mother provides an excellent environment for the child. I accept that the mother poses no risk of harm to the child, whether physically, emotionally or otherwise.
The father
I have already, in discussing the facts, traversed the very considerable criminal history of the father, which speaks of a lifelong propensity to violence, including family violence, and dishonesty. He has had a long association with the law, and appears to have little regard for it, including officers enforcing it. Moreover, he appears to have little concern for his victims, of which his assault of the two footballers, and his repeated breaches of the domestic violence orders in relation to the mother, stand as stark examples.
As to the latter, the father denied that he had in fact breached the restraint orders, notwithstanding that he had pleaded guilty to them. In evidence, his explanation was that he had been assaulted in prison whilst he was unable to obtain bail awaiting the hearing of those charges, and pleaded guilty to them, merely to enable him to leave jail. I reject that evidence. The father was competently represented in his criminal proceedings in 2017, and I am satisfied that he breached those orders which he pleaded guilty to.
Both the father and mother were assessed by a consultant psychiatrist, Dr B, in connection with these proceedings. In relation to the father Dr B said:
Based on all the information available in my interview with [the father], I believe that [the father] displays significant traits of Dissocial Personality Disorder or Anti-social Personality Disorder. He also does not appear to have any regret for his past actions and he appears to be impulsive, has poor anger control and has significant instability in all his relationships. He also does not seem to have any regret for any pain he may have caused although he may verbally express that he does.
.. I do not believe however, that [the father] would show any improvement in his anger discontrol or his dissociative personality and his poor judgment as well as impulsivity will continue to make him prone to anger outbursts and violence.
The father cross-examined Dr B, who was at pains to distinguish between a cross-sectional assessment, and a longitudinal one. He said that in a cross-sectional assessment, a diagnosis should not be made, because to do so would need to be confirmed over time, and by reference to other sources, including, for example, other family members.
At [88] of the Family Report, Ms P said as follows:
88. [The father] has not taken responsibility for his behaviour. This means family violence remains a risk in a number of ways. Not taking responsibility means [the father] may continue to use abusive behaviours in his interactions with others including [the child]. This includes the possibility he is using or will use abusive behaviours in his current relationship with his fiancée. If [the child] was to spend unsupervised time with [the father], she may then be exposed to this. In additions, family violence can be used to undermine the relationship between a primary parent and child. If [the father] is allowed unsupervised time with [the child], this is a possibility. Furthermore, as long as [the father] is allowed unsupervised time with [the child], this is a possibility. Furthermore, as long as [the father] fails to take responsibility for his behaviour, there is no possibility he will apologise or try to make amends to [the child]. Apologising and making amends may be the only way he can repair his relationship with [the child]. [Dr B’s] assessment of [the father] was that he would continue to be prone to anger and violence. Some research has shown that adolescents whose fathers have anti-social personality disorder are more prone to depression than adolescents whose fathers do not have a personality disorder.
I accept that evidence. There is no suggestion that the father in the past has taken, or now takes, responsibility for his actions in the past, which predicts that he will continue not to do so in the future.
His assault on his own daughter, Y, in 2014 is particularly troubling. Although the father protests that he has not harmed his children, and would not harm the child the subject of these proceedings, he does not appear to appreciate that his personality pre-disposes him to do so. Dr B roundly rejected the father’s suggestion that his personality traits would see him protective of family members, albeit disregarding of non-family members.
I am therefore satisfied that the father poses, principally, a risk of continued exposure of the child to family violence, or violence more generally, and there is some risk that he may perpetrate violence directly on the child. Ms P’s evidence was that exposure of children to both physical and emotional family violence has long term adverse impacts on them in all domains. She said that there is an established link between exposure to family violence and self-harm, including suicidal ideation. In this case that was significant because, in her interview with Ms P, the child identified that she had recently wished to self-harm, to the point, perhaps, of suicide. Although there was bullying of her at school, nonetheless the child herself identified that her relationship with her father was part of the stresses she was feeling.
In addition, Ms P said that exposure to family violence can lead a child to have poor interpersonal relationships in their adult life, whether intimate or otherwise.
Before me the father experienced episodes of emotional dysregulation, albeit tending towards tears rather than anger. That is the child’s experience of her father too, although she also has clear memories of his violence also.
Unfortunately I am well satisfied that the father presents an unacceptable risk of harm to the child if he were to spend face-to-face time with her in an unsupervised setting. In any event the father did not seek it.
As to communication, there are means available to render that communication safe, as has been undertaken to date, by supervision. I will consider the appropriate regime in due course.
ISSUE 3 – BENEFIT TO CHILD OF MEANINGFUL RELATIONSHIP WITH PARENTS AND MEANS OF FACILITATION
It was not in dispute that the child would benefit from a meaningful relationship with the mother, and that the best means of facilitating that benefit being conferred on the child, would be by the mother being involved in all areas of the child’s life, and for the child to live with her.
As to the father, Ms P was emphatic that, so long as though the child’s experience of a relationship with him was safe, there would be real benefits derived by her. She said that research has unequivocally established that there is a benefit to children in having a meaningful, but safe, relationship with both parents, which advantages them both academically, socially and in all other respects. Conversely, she identified that there are recognised disadvantages in a child not having a meaningful relationship with a parent. Those include feelings of negative self-image, which can in later life impact on the child’s relationships with others, and their development more generally.
I have already adverted to the fact that the father is likely the best means of the child experiencing her Country Q heritage.
Therefore I am satisfied that the father does represent a potential benefit to this child, but the critical matter is to allow the child to obtain such benefits as she can derive from that relationship, in a safe way which does not expose her to harm.
ISSUE 4 – PARENTS’ ABILITY TO FACILITATE MEANINGFUL RELATIONSHIP BETWEEN THE CHILD AND THE OTHER
This issue was distilled at a time when it was possible that the father would seek that the child move into his care. However that was not his ultimate position, but rather the parties were only in disagreement in relation to a communication regime.
As to the mother’s capacity to facilitate a relationship between the child and the father, there is now a considerable history of the mother taking the child to a Contact Centre each fortnight, so that she can have supervised communication with the father. That speaks volumes to her capacity to put the child’s interests ahead of her own interests and experience, because she recognises the long term damage that a child can have from being denied a relationship with a parent. However that said, there is nothing in the evidence which would suggest that the mother has been active in facilitating a relationship between other paternal family members and the child. That may be because, as Ms P identified, the child did not seem to differentiate between the father and the paternal family more generally, when indicating a disinclination to engage with them.
Although the point is probably moot, I am not satisfied that the father would facilitate a meaningful relationship between the child and mother in a healthy way. I say that because of his long history of coercive and controlling family violence against the mother, which would predict that he would likely use the child as a means of further engaging with the mother in a coercive and controlling way.
ISSUE 5 – LIKELY IMPACT ON CHILD OF PARTIES’ PROPOSALS
At the time that Ms P gave her evidence before me, the father’s proposal had not finally crystallised. However the mother and Independent Children's Lawyer’s position was relatively clear. As to their proposals, which would see a reduction in the frequency of the current supervised communication regime, Ms P thought that the present difficulties which the child was experiencing with the contact with the father would abate, and particularly she thought that there would be an opportunity for more natural conversation if the child had a full term of school to report to the father about in her conversation. Ms P said that she hoped that the reduction in the frequency of time would relieve the psychological burden which the child identifies communicating with her father imposes on her, leaving her free to develop a more meaningful relationship with him. To that end, she thought that the child should be able to initiate other calls with the father should she wish, again provided that they were in some way supervised.
To the extent that the father’s ultimate proposal contained the opportunity for unsupervised communication with the child, I am very troubled. Particularly the father’s emotional dysregulation is worrying, in that he does not appear to appreciate the impact that it has upon the child. Ms P thought that the father needed psychological intervention, not necessarily from a strictly therapeutic point of view, but from an educational perspective, to firstly, give him an opportunity for insight into his own personality issues, but secondly, give him strategies for engaging with the child. Although before me the father expressed a willingness to submit to such an order, the fact that he has not previously sought any psychological assistance, suggests that his adherence to any regime that may be ordered is unlikely.
ISSUE 6 – LIKELY IMPACT ON MOTHER’S PARENTING CAPACITY IF CHILD COMMENCED TO SPEND TIME WITH FATHER
Ultimately this issue evaporated, as the father did not seek orders which required the child to spend time with him, but rather orders which would permit her to do so should she wish.
In any event, Ms P’s evidence was that there would not be a substantial diminution in the mother’s parenting capacity if the child were to commence spending time with the father. Rather there may be some reduced emotional availability if the mother was anxious, but Ms P did not postulate any reaction beyond that. This is not a Russell & Close case.
ISSUE 7 – WOULD PARTIES BE ABLE TO DISCHARGE EQUAL SHARED PARENTAL RESPONSIBILITY OR AN OBLIGATION TO CONSULT THE OTHER IN DECISION MAKING
In the event that I was satisfied that the father’s engagement with the mother demonstrated a history of coercive and controlling family violence, Ms P was adamant that there should be no joint decision making. She said that the father’s capacity to control the mother, given their long history of family violence, meant that there could be no equality in bargaining between them.
There is little room for doubt that the father’s engagement with the mother has been coercive and controlling. The review of the subpoenaed material which I have undertaken in discussing the background facts, compels such a conclusion. However there was a further telling illustration of it in the courtroom itself, when the father was disputing the suggestion that he had slapped the mother 20 times during one violent episode. To add force to his evidence to the effect that, if he had slapped someone 20 times, they would be seriously injured, he struck the side of the witness box with his open hand. It made a considerable noise, and to my observation surprised most, if not all, of the other people in the Court room by its unexpectedness, and the aspect of menace that it seemed to introduce. However, tellingly, the mother started to cry, and had to turn away so she was no longer looking at the father from the bar table.
That was not the only courtroom incident which troubled me in relation to coercive and controlling family violence. As I have said, the mother chose not to read any material, including affidavits of herself. That is likely because she did not wish to subject herself to cross-examination by the father, although I did not enquire of her the purpose behind that decision. However what was obvious was the palpable disappointment of the father at the loss of opportunity to cross-examine her. I have little doubt that he wished to seek to challenge her allegations against him, in a forceful way. In a sense therefore, he had been expecting that cross-examination of her would give him a further opportunity to bend her to his will, or at least seek to do so.
In concluding that there was coercive and controlling family violence, I do not overlook the fact that the parties’ relationship seemed to continue on, including at a sexual level, even after their divorce. However I must say that, far from suggesting to me that therefore there was not coercive and controlling family violence, it suggests precisely the opposite, in that the mother has demonstrated an inability to free herself from the controlling influence of the father, notwithstanding separation and divorce.
I am therefore satisfied that joint decision making in relation to these parties is not reasonably practicable.
However I am satisfied that the mother could nonetheless consult with the father in relation to decisions made in the exercise of sole parental responsibility, although the Independent Children's Lawyer opposed any such notion on the basis that doing so might expose the mother’s location to the father. I will consider that issue when addressing the particular orders.
SECTION 60CC CONSIDERATIONS
It will be appreciated that, in discussing the issues, I have addressed both primary considerations, and a number of additional considerations. However I make the further following observations.
The child has expressed a disinclination to engage with the father. I am well satisfied that her basis for doing so is justifiable, in that she has clear recollections of being exposed to the father’s family violence. However I temper the weight which I give to those wishes by virtue of the child’s age, as she does not have the cognitive ability to understand the impact, in the long term, which a complete loss of her relationship with her father would have.
The father appears to be the most likely route to the child’s relationships with her paternal family generally, but the child does not appear to place any value upon those. Certainly I could not conclude that she has a close relationship with any member of the paternal family.
There has been extensive family violence and numerous family violence orders. The conclusion which I draw in relation to that is that the father has perpetrated, and if given the opportunity, will likely continue to perpetrate, coercive and controlling family violence in relation to the mother, and further, such behaviour is likely to flow through into successive relationships between him and other partners, particularly in the event of their breakdown.
PARENTAL RESPONSIBILITY
As I understand it, ultimately the father conceded that the mother should have sole parental responsibility. Even if I misunderstood the father’s position, such an order is the only one which is in the child’s best interests. I am satisfied that the father has a long history of coercive and controlling family violence, both towards the mother and others, and as such, the mother could not equally bargain with the father in relation to decisions. The father would likely use such engagements as an opportunity to further coerce and control the mother, which would be nothing more than a perpetuation of the violent relationship.
There will be an order that the mother have sole parental responsibility for the child.
The father’s suggested that the mother should be obliged to consult with him, in the exercise of her sole parental responsibility, prior to any decision being made by her. As has been seen, I am satisfied that requiring the mother to consult with the father would not impact upon her parenting capacity to such a degree that requiring her to do so would not be in the child’s best interests. However, the Independent Children's Lawyer opposed such an order on the basis that it would require the mother to therefore disclose details in relation to the child, from which her whereabouts might be able to be discerned. For instance, decisions in relation to the choice of a school would require the identity of the competing school to likely be disclosed, and hence the residential area of the mother. Medical issues might also potentially disclose such information.
The father’s response to this was quite troubling. He bluntly said that, if he wanted to find out where someone was living, he would have no difficulty in doing so. To my observation, the father, in making that statement, was doing more than simply stating his belief, but rather was telling the mother that despite her best efforts, she could not hide from him. Indeed, most worryingly, notwithstanding the fact that the trial was conducted in Cairns, where I am prepared to take judicial notice that there are a considerable number of accommodation facilities, the father in fact stayed at the same accommodation as the mother on the night of the first day of trial. Apparently that led to police being called, as the father being there was arguably a breach of a present restraint order between the parties.
I am satisfied that to require the mother to consult with the father in the exercise of her sole parental responsibility would indeed require her to disclose information from which her whereabouts might be inferred, and hence enable the father to, as he has done on at least three occasions previously, breach the restraint order by attending her home. He plainly has no respect for such orders, and plainly has no respect for the mother’s right to get on with her life independently of him.
Additionally, I am not persuaded that the father really has much to offer in relation to decision making about the child. Any benefit which might be conferred to the child by the father being engaged in decision making, albeit only by consultation, seems slight.
Finally I am again satisfied that any engagement with the mother is likely to see the father continue his coercive and controlling behaviours, and as such is not likely to genuinely be a decision making process, but rather a perpetuation of some species of family violence.
Therefore weighing all of those matters in the balance, I am not persuaded that there should be an order requiring the mother consult with the father in the exercise of sole parental responsibility.
WITH WHOM SHOULD CHILD LIVE
Ultimately the father conceded that the child should live with the mother. She has always primarily resided with her, and indeed that was the child’s own observation, saying that she had been mainly raised by the mother, and “Dad was barely there.” The child’s primary attachment lies with the mother, and her relationship with the father is not presently one of great significance.
The child’s best interests lie in her living with the mother, and there will be an order to that effect.
TIME AND COMMUNICATION WITH THE FATHER
The father proposed that the child should be able to spend time with him if she chose to, including her being able to determine the times and duration of any such time. Otherwise he proposed that there be a general liberty on the child to communicate with him by electronic means at all times as she may choose, for such a period of time as she may choose, with such communication to be supervised by the mother or her nominee.
For their part, the Independent Children's Lawyer and mother proposed that the father have supervised communication with the child for something between 30 and 60 minutes once each school holidays, with supervision to be undertaken by a Contact Centre. They further proposed that the child be at liberty to communicate with the father electronically at all other times and for such periods as she may choose, provided that it be supervised by the mother or her nominee. They further proposed that the father be permitted to send cards and gifts for the child’s birthday, Christmas and Easter, by sending them to a post office box. They further proposed that the father be permitted to write to the child not more than once in each month, with the child being permitted to write to her father so often as she wishes.
With the assistance of the parties, I identified that the points in favour of the mother’s and Independent Children's Lawyer’s proposal, or contrary to the father’s proposal, were as follows:
(a)The mother’s proposal keeps the child safe from the risk of exposure to family violence, and/or emotional dysregulation, which the father poses to the child;
(b)The mother’s proposal permits the child to maintain some relationship with the father, albeit sub-optimal and perhaps not qualifying as meaningful;
(c)The mother’s proposal substantially reflects the child’s wishes, although the child is only 10 years old, and hence the weight her wishes deserve cannot be determinative;
(d)The mother’s proposal accommodates the child’s primary attachment with her;
(e)The mother’s proposal protects her parenting capacity from the effects of any anxiety which she might experience if the father was to spend face-to-face time with the child;
(f)The father’s proposal does not achieve certainty, and is likely to see the parties either required to negotiate about changes or increases in the father’s time with the child, or further litigate those issues in the future.
On the other hand, the following points were in favour of the father’s proposal, or against the mother’s and Independent Children's Lawyer’s proposals:
(a)The father’s proposal might optimise the benefit which the child obtains from her relationship with the father (albeit it might in fact cause the relationship to deteriorate further);
(b)The father’s proposal might appease the father, and hence reduce the parental conflict (albeit it might also just further entrench the effects of any coercive and controlling family violence);
(c)The mother’s / Independent Children's Lawyer’s proposal might prove too conservative in managing such risks of harm as the father poses to the child, and hence unduly restrict her relationship with him.
Weighing those matters in the balance firmly supports the position argued for by the Independent Children's Lawyer. Particularly, it provides the child with an opportunity to remain engaged with the father, but at a reduced level from the presently problematic communication regime. It therefore may realistically stand the best chance of reinvigorating the relationship, or at least creating a greater interest in the child about the father. That would then enable her to obtain optimal benefit from the relationship, as contemplated by Ms P. It will also ensure that she does not altogether lose her association with the father, and hence hopefully avoid the disadvantages of the lack of a relationship as identified by Ms P.
I appreciate that a permanent regime of supervision has been adversely commented upon by several Full Courts.[9] Particularly it is thought that there usually should be some opportunity afforded to remove the requirement for supervision. However this is an unusual and difficult case. The father’s personality traits are pervasive, and are unlikely to abate. It is most unlikely that he will submit to the discipline of attending, much less meaningfully engaging with, a psychologist, even if ordered. However because of the risk of the father’s personality, and the way it causes him to behave, supervision is the only way in which the child can continue to maintain some relationship with the father, and obtain benefits from it, in a safe way. I am therefore satisfied that permanent supervision of the father’s communication with the child is warranted, and I am satisfied that the father’s personality traits (and their violent and coercive consequences) provide a compelling reason why no opportunity for the lifting of supervision ought be afforded under the orders.
[9] Moose & Moose (2008) FLC 93-375; Fitzpatrick & Fitzpatrick (2005) FLC 93-227; Slater & Wright (2013) 48 FamLR 573; Gorman & Huffman [2016] FamCAFC 174.
I am otherwise satisfied that the regime of communication proposed by the Independent Children's Lawyer and mother is in the child’s best interests, and will so order.
OTHER ORDERS
Otherwise there will be orders as sought by the Independent Children's Lawyer, save that I am not persuaded that there should be an order requiring the father to attend upon a psychologist or counsellor. Firstly, absent consent, I am not satisfied that the Court has jurisdiction to make such an order. Secondly, although the father indicated that he would consent to such an order, I do not see any point in making an order for something which he says is prepared to voluntarily do anyway. Thirdly, I am not satisfied that the father would in fact comply with any such order, but was rather announcing his consent as a means of trying to gain some traction with the Court. Finally, the father is perfectly at liberty to seek such counselling, having heard the benefits which such a professional could afford him.
Therefore, with that exception, there will otherwise be orders as contended for by the Independent Children's Lawyer.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 May 2019.
Associate:
Date: 10 May 2019
0
14
2