Rowell and Keogh
[2009] FMCAfam 395
•1 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROWELL & KEOGH | [2009] FMCAfam 395 |
| FAMILY LAW – Parenting – whether equal or sole parental responsibility – whether the father should spent time with the child, or not at all – whether the father’s name should be included on the child’s birth certificate. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 65D, 61DA, 65DAA |
| Cave & Cave [2007] FamCA 860 |
| Applicant: | MR ROWELL |
| Respondent: | MS KEOGH |
| File Number: | SYC 447 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 2, 3, 4, 5 & 6 February 2009 |
| Date of Last Submission: | 6 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2009 |
REPRESENTATION
| The Applicant: | Appearing in person |
| Counsel for the Respondent: | Mrs Cleary |
| Solicitors for the Respondent: | AWM Dickinson and Son |
| Counsel for the Independent Children’s Lawyer | Ms Carr |
| Solicitors for the Independent Children’s Lawyer | Redleaf Family Lawyers |
ORDERS
That the Mother have sole parental responsibility for the child [X], born in 2007 (“the child”).
That the child live with the Mother.
That there be no contact between the Father and the child save and except for 3(i) below:
3(i)That the Father and his family be at liberty to send cards and gifts to the child on the child’s birthday and at Christmas, such items to be sent to a post-office box address.
For the purposes of clause 3(i) above, the mother be required to make all reasonable endeavours to have Mr H inform and keep informed the Father of a suitable mailing address.
That the Mother take all steps, and sign all documents necessary to amend the child’s birth certificate to add the Father’s name.
That the Mother within 7 days provide to the Father a recent photograph of the child via registered post to [P] Prison.
The Father, by himself, his servant or his agent is hereby restrained from removing or attempting to remove the child [X], born in 2007 (male) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Father from removing or attempting to remove the said child from the Commonwealth of Australia
The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia
The father be restrained from using the child’s birth certificate for the purposes of obtaining or attempting to obtain any passport, including any Australian or Israeli passport, for the child.
The father be restrained from obtaining or attempting to obtain or using or attempting to use any passport, including any Australian or Israeli passport, upon which the child is to be or is included.
The mother to have sole responsibility for the renewing of the child’s passport without the consent of the father being required for such renewal.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Rowell & Keogh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 447 of 2008
| MR ROWELL |
Applicant
And
| MS KEOGH |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the child, [X], born in 2007, who is currently 17 months old as at the date of the hearing. The applicant father, MR ROWELL, born in 1975, aged 33, and the respondent mother, MS KEOGH, born in 1965, aged 43, commenced cohabitation in July 2006. They finally separated on 17 January 2008, but did not live together continuously throughout the 18 month period of their relationship.
The mother has had the primary responsibility for the child since birth. The child has continued to live with the mother since the separation of the parties at the [B] home of Mr H who is a close and long-term friend of the mother.
Background
The father was born in Israel. He came to Australia in 1998. He was previously married in 1999, and after this marriage broke down in 2001 he returned to Israel to live until 2004. The mother was born in London. She migrated to Australia in April 2001 and has permanent Australian residency. Neither parent has any extended family in Australia. As at the date of the hearing, neither parent had re-partnered.
The parties met in Melbourne in July 2006, with the father moving into the mother’s flat after she says she felt sorry for him when he told her he had been wrongly accused of stalking and burglary and that he was on bail with only a “dirty hostel” in which to live.
The mother alleges that during this period in Melbourne, the father had a serious gambling problem, that she constantly gave him money to escape from his abuse, that she made repeated unsuccessful attempts to have him vacate her flat, and that she was subjected to almost daily verbal abuse, lying, spitting, demands for sex, threats, intimidation and physical violence from him, with his controlling her behaviour and her becoming isolated from friends.
When the mother became pregnant with [X], she sought the assistance of the police to leave Melbourne and alleges that she did not proceed with protection orders at that time “as I feared how [Mr Rowell] would react to this given all the abuse, threats and physical abuse he had been subjecting me to” and that she “fled from Melbourne to get away from [Mr Rowell]’s abuse and to make sure that the rest of my pregnancy was safe” (mother’s affidavit of 17 April 2008, paragraphs 82 and 85).
The mother moved to Sydney after leaving Melbourne and resided in the [B] premises owned by Mr H. Mr H provided her with both financial and emotional support, both at an earlier point in time when the mother lived in his house from April 2001 to April 2005, and when she was in Sydney again after leaving Melbourne in 2007 when she was pregnant with the child. As at the date of hearing, Mr H continued to play a strong supportive role with both the mother and the child.
The material relied upon
The father relied upon the following documents:
·Amended Application filed 1/9/08
·Affidavit of the father sworn 25/1/08 and filed 29 January 2008
·Affidavit of the father affirmed 9/6/08 and filed 10 June 2008
·Affidavit of the father affirmed 28/8/08 and filed 1 September 2008.
The mother relied upon the following documents:
·Amended Response filed 27 August 2008
·Notice of Child Abuse or Family Violence filed 14 May 2008
·Affidavit of Ms Keogh sworn 10 November 2008 and filed
12 November 2008·Affidavit of Ms Keogh sworn 25 August 2008 and filed
27 August 2008·Affidavit of Ms Keogh sworn 17 April 2008 and filed 22 April 2008
·Affidavit of Mr H sworn 27 August 2008 and filed 27 August 2008
·Affidavit of Mr H sworn 18 April 2008 and filed 22 April 2008
·Affidavit of Mr W sworn 15 August 2008 and filed 27 August 2008
·Affidavit of Mr B sworn 26 August 2008 and filed 27 August 2008
·Affidavit of Ms A sworn 27 August and filed 27 August 2008
·Affidavit of Ms L sworn 26 August 2008 and filed 27 August 2008
·Affidavit of Ms S sworn 27 August 2008 and filed 27 August 2008
·Affidavit of Dr P sworn 18 April 2008 and filed 22 April 2008
·Affidavit of Ms N sworn 9 June 2008 and filed 11 June 2008
·Affidavit of Ms G sworn 10 June 2008 and filed 11 June 2008
·Affidavit of Ms W sworn 9 June 2008 and filed 11 June 2008.
The Court also had before it an expert Report from Dr RX Wotton, Psychiatrist, dated 22 September 2008 (the Report). Dr Wotton was cross-examined in these proceedings by both parties and the Independent Children’s Lawyer. Mr H and Ms V, both witnesses in the mother’s case, were called for cross-examination by the father and the Independent Children’s Lawyer.
The competing proposals
The father sought orders, in particular, that:
·the parents have equal shared parental responsibility for the child.
·the child live with the mother.
·the child spend time with the father on a graduated basis as follows:
a) Until the child attains the age of 2 years, for 3 occasions per week for a period of 3 hours on each occasion as agreed between the parties or as ordered by the Court.
b) Upon the child attaining the age of 2 years,
(i) each Saturday from 9.00 am to 1.00pm and
(ii) each Wednesday from 9.00 am to 1.00pm or as agreed between the parties.
c) Upon the child attaining the age of 3 years,
(i) each Wednesday from 9.00am to 5.00pm.
(ii) each alternate Saturday from 9.00am until Sunday at 4.00pm.
d) Upon the child attaining the age of 4 years,
(i) each Wednesday from 9.00 am to 5.00pm
(ii) each alternate Friday from 5.00pm until Sunday at 5.00pm.
e) When the child commences school
(i) each alternate Wednesday from after school until Thursday before school.
(ii) each alternate Friday from 5.00pm until Monday before school.
(iii) for half of all school holiday periods such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
f) Any other times or variation of the above to be agreed between the parties in writing.
·the child’s residence not be located from the Sydney metropolitan area.
·each party be restrained from removing the child from the Commonwealth of Australia.
·the child be placed on the Airport Watch List.
·the child’s birth certificate be amended to add the father’s name to the birth certificate.
The mother sought orders, in particular, that:
·the mother have sole parental responsibility for the child.
·the child live with the mother.
·there be no contact between the father and the child.
·the father, by himself his servants or agent be hereby restrained from removing or attempting to remove the child from the Commonwealth of Australia, and the child be placed on the Airport Watch list.
·The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Applicant Father from removing or attempting to remove the said child from the Commonwealth of Australia.
·Until further order of the Commissioner of the Federal of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australian. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
·That the mother be permitted to remove the child from the Commonwealth of Australia for two periods of four weeks in each calendar year.
Relevant legal principles
Part VII of the Family Law Act1975 (the Act), following the Family Law Amendment (Shared Parental Responsibility) Act 2006, sets out the relevant law in parenting cases. Section 61DA(1) provides for a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for their welfare. The presumption relates to parental responsibility about major long term issues, not to the time that the child spends with each parent. Major long term issues are defined in s.4 of the Act as:
a)the child's education (both current and future); and
b)the child's religious and cultural upbringing; and
c)the child's health; and
d)the child's name; and
e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Section 61DA(2) provides that the presumption of equal shared parental responsibility 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:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family; (or)
(b) family violence.
Section 61DA(4) further provides that the presumption of equal shared parental responsibility may be rebutted:
by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Where a court finds that the presumption does apply, it must then consider whether the child/children spending equal time with each parent would be in his/her/their best interests: s.65DAA(1)(a), and whether it is reasonably practicable to do so: s.65DAA(1)(b). If so, the Court must consider making an order for equal time: s.65DAA(1)(c).
If a court does not make an order for equal time, it must consider whether the child/children spending substantial and significant time with each parent would be in the child’s/children’s best interests: s.65DAA(2)(c), and whether it is reasonably practicable: s.65DAA(2)(d), and then consider an order for substantial and significant time: s.65DAA(2)(e).
“Substantial and significant time” is defined in s.65DAA(3). The criteria that the Court must consider in determining whether it is reasonably practicable for the child to spend substantial and significant time with each parent are set out in s.65DAA(5) as follows:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Section 60B(1) of the Act sets out the objects to ensure that the best interests of the child 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)to, or exposed to, abuse, neglect or family violence; and protecting children from physical or psychological harm from being subjected
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.
Section 60B(2) sets out the principles underlying those objects. They 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).
In determining what is in the best interests of the child, the Court must first consider the primary considerations set out under s.60CC(2), followed by the additional considerations under s.60CC(3) of Part VII.
Section 60CC(2) provides that:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations set out under s.60CC(3)(a) to (m) are set out in the body of this judgment. In considering both s.60CC(3)(c) and (i), the Court must also take into account s.60CC(4) and s.60CC(4A).
Sub-sections 60CC(4) and (4A) provide that:
s.60CC(4) – Relates to s.60CC(3)(c) and (i)
Extent to which each parent has fulfilled/failed to fulfil responsibilities as a parent.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 65D provides that, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
The Issues
The parties are in agreement that the child live with the mother.
The issues in dispute in this case are:
·Whether the mother and father should have equal joint parental responsibility or the mother should have sole parental responsibility for the child
·What time the child spends with the father, or not at all
·Whether the father should be placed on the child’s birth certificate.
These issues will be dealt with below within the context of what is in the child’s best interests as ascertained by a consideration of the objects and underlying principles set out in s.60B(1) and s.60B(2) of the Act, respectively, and within the framework of the primary considerations under s.60CC(2), and then the additional considerations under s.60CC(3), and taking into account how each parent has fulfilled or failed in their parental responsibilities to date, as required under s.60CC(4) and s.60CC(4A) of the Act.
In this regard, the Court has carefully considered the respective submissions of the parties and of the Independent Lawyer. I note that the father made his submissions without specific reference to the s.60CC(2) and (3) primary and secondary considerations, which is clearly understandable given that he was not legally represented in these proceedings. Accordingly, the Court has taken his submissions into account where relevant to each of these statutory considerations, including that:
·he (the father) “has been getting no chance to be a relationship with the child”
·he “was there around at time of birth. I keep himself around”
·he “deserves, and the baby deserves to be with me after all his own father”
·“the mother have her problems; maybe I have my problems but … it doesn’t mean the father doesn’t have the right to have a relationship with the son”
·“I think [the child] need loving from both sides and it’s what will make him open his mind – open his heart and personality.”
·“When I look at his eyes I see that he is calling me.”
·“I have never had a plan to take [the child] away from the mother and I am more than happy to have both sides”
·“I lost my accommodation and his girlfriend and his son.”
·The mother is “refusing to give me my right and the baby right to put my name in the certificate.”
·“I am not to blame … for anything.”
·“I always have full respect for Mr H As well I have full respect for [the mother]”
·the expert Report writer “wasn’t professional. He used lots of emotion … he took sides. He didn’t use his profession as professional ”
·“So all these allegations we find in Court most of it is not truth.”
·“I missed his best age like a child when he just start to walk”
·“I admit I was doing some gambling, but as well I was so stressed from everyday habits and the same argument, just I feel like I am living with a child who is not mine and I fel I am living with a girlfriend who is not mine.”
·The mother “can turn into violence and … the baby has nowhere to go, nowhere to come and explain to his father or to anybody. … To close this option [of going to the father] is what I think the baby to have fears in his life and aggression, maybe panic because he will have no place tom come and maybe feel relief”
·The child “deserves to have a normal start, to have both families – both parents like a normal child. He is not a child come from violence or come from abusive – as they say and this will effect him forever. It’s what’s been told and it will poison him. I would love to give him a chance to have the truth from his father.”
·he would “love to … share the care of [the child.] … I would love to provide for him security and development by knowledge and teaching him, by giving him confidence”.
·The child “have the right to see me like any good example. He have the right, me to help him with education and the finance and support.”
·he “would love to teach [the child] about things I know.”
·“I done parenting course as well.”
·“Department of Housing gave me a house” (see Exhibit 10).
·“I’ve got accommodation and I start with a very successful business … I just have to organise it and establish it”
·“I would never steal a child from his mother”.
·“It would be nothing worse for me in life to be without to be with my father and my mother at the same time.”
The primary considerations: s.60CC(2)
(a) The benefit to the child of having a meaningful relationship with both parents.
Ms Carr referred to the decision of Cave & Cave [2007] FamCA 860 at paragraph 101 in which Benjamin, J sets out some guidelines of matters that might assist a court in what is meant by a meaningful relationship, namely:
a)The nature of the relationship which has existed in the past between the parent and the children;
b)The extent to which the parent in question has sought to be involved in the children’s lives;
c)The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
d)The general social behaviour of and the role model which would be provided for the children by the parent in question;
e)The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
f)What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
g)The other considerations under ss.60CC(2)(b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
h)If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.
In considering these matters in this case, I have carefully considered the expert evidence of Dr Wotton who recommended that the child should live with the mother and that the father should have no contact with the child. Dr Wotton made it very clear to the Court that his recommendation that the child have no contact at all with the father was “a very unusual decision” and indeed “in thirty years in coming to this Court, I have never come to that conclusion before”.
In support of this recommendation, Dr Wotton observed that:
My feeling in speaking with Mr Rowell was that the strongest part of his personality was a psychopathic part, that is that he was prepared to lie about very serious issues to do with his own behaviour, his aggression, his drinking, his gambling … In fact most areas of his life which I probed him on and his relationships, I was left with a very worrying sense of how he conducted himself in the world, how irresponsible he was and how contemptuous he was of other people. And so I felt from my interviews with him that he had almost no capacity to understand how to relate to another person or how to understand what their needs might be. He was driven by satisfying his own needs. I couldn't see what he had to positively offer a child, and I saw a lot of negatives…
In other words, I thought he would give a child a view of the world very similar to his own. That if you want something; you take it, or you steal it. And if you're caught you make up a story about it. And then if somebody tries to arrest you; you claim you have been assaulted unfairly. If you feel like going into a relationship you don't have to know the person. You just go with them on a whim or because they might offer you something.
I felt every area that I explored was negative in terms of what he might offer a child in terms of values that a normal society needs to work. And beyond that - and this is just as important - the sort of person he is - the sort of experiences he has visited on [X]'s mother are very traumatising for her even to recall. She has a history of mental instability and if that bond - if the stability is disrupted by continuing contact with the father then the bond with [X] is at risk. So I think although there are negatives in denying the father contact it is not worth putting the child at risk doing it the other way, and it would be a severe risk …
I did observe that [X] is regarded as a possession by his father. In other words, he is not seen as an individual in his own right and it's the mother's fear that the father will just simply impose his will on [X] as if he was a non-person, perhaps very much the way he did to her … She also has fears that [X] may be kidnapped. I think she fears the father's impulsivity, his aggression; all those sort of things that would make her highly, highly anxious if [X] was in his father's company.
… And when she is anxious … she can become quite unstable. She can become irritable, angry, emotional, depressed. She has a history of severe depression. So you have to regard her as a person of considerable vulnerabilities. I think we're looking at an overall situation that shouldn't be stressed beyond its coping point and the mother is very central in all of that and her relationship with [X] is central.
Now, it's not just a perception of dangerousness. It's not some kind of paranoid idea that she has that [X]'s father can be dangerous; he can be. He has violently resisted arrest. He has been aggressive and he denies those actions.
… he was prepared to lie about his aggression, his drinking and his gambling. Let's just concentrate on he can be dangerous. He can be depressive. He is violent. He resisted arrest …
The fact is the mother does have a very vulnerable personality … She has broken down. She has been hospitalised. She has attempted suicide. These things do have to be taken into account because we're dealing with a child … I saw somebody who was deeply and genuinely disturbed and distressed (transcript 4/2/09 pp 3, 12).
To date, the father has had limited contact with the child since birth. In his Report, Dr Wotton stated that this was reflected in his observations of [X]’s interaction with the father:
[X] in fact resisted quite actively [Mr Rowell]’s many attempts to be intimate with him. He did not establish eye contact with [Mr Rowell] until well into the second half of the contact. He was far more engaged with the supervisor and the other child at the centre, than he was with [Mr Rowell]. As time went on however, [X] did respond to [Mr Rowell], and allowed himself to be fed. There seemed to be a very weak bond between the two (p.43) …
… [X] at this stage does not have a significant relationship with [Mr Rowell]. This is not to deny that [Mr Rowell] does not have positive aspects to his personality from which [X] might benefit. [Mr Rowell] can be loving, and is obviously very proud of [X]. However, there are doubts over [Mr Rowell]’s capacity to act in the long tern in a sustained, responsible fashion. He has on his own account had problems with alcohol and gambling – both of which point to an impulse-driven aspect to his personality.
It is hard to imagine how he would place the needs of [X] ahead of his own instinctual drives. [X] is at too vulnerable a point in his life for this to be tested. [Mr Rowell] is unreliable and makes easy rationalisations for his failures – even making them seem like the fault of another person. I find it very difficult to imagine him complying with unsupervised contact schedules, as he is a law unto himself. When he falls foul of the law, then he simply dismisses any consideration of the serious issues at hand by saying that others are lying about him. For all these reasons, I would imagine that [Ms Keogh]’s anxiety about [Mr Rowell]’s interactions with [X] would be heightened to unacceptable levels should the current arrangements be significantly altered.
… [Mr Rowell] is untested as a parent of [X]. However as a citizen of society, he has already demonstrated a number of alarming personality characteristics which would inevitably impinge on any child in his care. These include his irritability and aggressive behaviour, his gambling and drinking, his shifting of the truth to suit his circumstances, his stealing, and his impulsive manner of forming relationships. His discussion of the emotional bonds he established showed him to be superficial in this area (e.g. his discussion of his separation from his first wife.
In the observation I conducted with [Mr Rowell] and [X] none of these personality traits were in evidence. However, [Mr Rowell] did not seem to have a concept of discovering what interested [X], and following his lead. Rather he sought to impose himself on [X]. He was affectionate and was seeking affection from [X]. He later interpreted signs of relatedness from [X] to him which I was unable to observe. [Mr Rowell] also appeared contemptuous of taking advice or assistance from an adult qualified to assist him. It is therefore hard to imagine how he could benefit from any parenting course, as he is insistent that he already has the answers (p.45).
And at p.47,
… I have total confidence in saying that [Ms Keogh] and [Mr Rowell] would be unable to communicate with each other in a cooperative way.
… [Mr Rowell] is an unknown and untested parent. He has a number of antisocial personality traits which do not bode well for a future role as a parent. He is self-centred, entitled, aggressive, impulsive and gives no impression of being able to plan in a responsible manner for the future of his son. He is contemptuous of people who dare to question his behaviour, or challenge him. He has a poor sense of boundaries.
Dr Wotton concedes there are negatives in the child having no contact at all with his father, including that he will:
… only have his mother’s account of why that was the case and not having a direct experience of his father he may not know whether in fact his mother is telling the truth. He may be constantly curious about what sort of person his father really is … it may make him feel that there’s something bad about him, [X] … so if you grew up knowing that a court had said that your father was not to have any contact with you it would make you feel that your father must have been a pretty difficult or bad person, and that may affect your image of yourself … you might for example well how much [sic] am I like my father or how much of him is in me? So that could be a negative but in general terms the fact that there is no father is a negative because father's are meant to be there as a role model, as an alternative figure for identification for play and for all kinds of stimulation, encouragement.
Notwithstanding these negatives, Dr Wotton was of the opinion that, given the father’s psychopathic personality traits and taking into account the specific vulnerabilities of the mother, the maternal-child bond should not be subjected to “any potentially traumatising influences”.
I found Dr Wotton to be a most impressive witness on these matters. Indeed, overall, I found his expert evidence to be highly cogent, based on careful analysis of the relevant documentation and on his lengthy interviews with the father, mother, Mr H and their interactions with the child. Dr Wotton points to the father’s criminal antecedents and his dealings with authority figures, as evidence of aggressive, sociopathic or psychopathic personality traits as well as the way in which the father conducted himself in interview with him.
I accept the opinion of Dr Wotton that the Court should have significant concerns over the benefit to the child of ever having a meaningful relationship with his father.
I further accept that this is a case where the benefit to the child of having a meaningful relationship with his mother would be substantially at risk should the father be an ongoing presence in his life. I accept that the mother’s childhood and background experiences, including bulimia, an attempted suicide, and difficulties in her relationship with her own mother, have potentially made her more vulnerable to both forming a relationship with and being significantly adversely affected by a person with sociopathic or psychopathic personality traits. Simply put, I accept the submission by Mrs Cleary that:
events in her own life made her vulnerable to the impact of this kind of abusive relationship … [there is] no prospect of the child having a meaningful relationship with both his parents.
I further accept her submission that the child has:
a strong prospect of having a meaningful relationship with his mother but in the event that any kind of relationship with his father was implemented that relationship with the mother is likely to be severely negatively impacted … it is just one of those rarer situations where a child can only have a relationship with one parent or the other and it isn’t a case where the child could have a meaningful relationship with the father in the absence of his mother … the evidence of Dr Wotton just simply rules that out.
In this regard, I accept the opinion of Dr Wotton that any very limited supervised time that the child might otherwise have been able to spend with the father, would place the fragility of the mother’s personality too much at risk and would thus not benefit the child. I accept his opinion that this is a case where the vulnerabilities of the mother cannot be discounted. As Dr Wotton states:
[Ms Keogh] has a number of vulnerabilities. She was a child who experienced disapproval and rejection from her own mother, from whom she is now alienated. She has few family supports. She is living in a country where she feels isolated from aspects of life which enliven her. She has a history of bulimia, and has at one stage of her life attempted suicide. She has histrionic aspects to her personality, and finds it hard to listen to another person when she is agitated …
[Ms Keogh], although having survived childhood abuse, is at risk for decompensation of her personality functioning under conditions which replicate her original trauma. She perceives [Mr Rowell] as abusive, and no doubt has major concerns for [X], should [Mr Rowell] become increasingly involved in his care. She very much needs to separate herself from [Mr Rowell] is [sic] she is to maintain emotional equilibrium. If this is compromised, then [X] will be at risk. [Ms Keogh] would be unable to sustain any arrangement where [X] was consigned to [Mr Rowell]’s care. She does not believe he has this capacity to care for another person. Such an arrangement in her mind, would be equivalent to her agreeing to having her child neglected and emotionally abused (Report, p47; and see also the notes of Dr F, the mother’s treating psychiatrist during her pregnancy, and the Prince of Wales hospital notes: Exhibit 3).
I accept the submission by Mrs Cleary in this regard that:
there is some very detailed evidence there from Dr F. There's some material that arises out of Prince of Wales notes about just how much this stress my client suffered during the pregnancy for fear that the child might have been hurt on one occasion. Your Honour will come to notes that say that she came to the hospital and asked for a further ultrasound; so fearful was she that actions by the father where he had poked a pole into her stomach [see below] might have damaged the baby. She feared the baby was dead and the hospital at first was very resistant to do a further ultrasound, made notes about her fears and concerns. She suffered again in that way when the child was born from fears and concerns about her own and the child's safety.
To date the mother has shown her strong capacity to be a most competent and loving parent in whose care [X] has thrived. I consider that it is imperative, in the best interests of the child, that nothing be done to jeopardise this situation and the child’s relationship with his mother. I accept the expert opinion of Dr Wotton that:
From my own observations, [Ms Keogh] to date has shown herself to be an involved, loving and attentive mother. Her child is thriving in her care. [X] is a sociable engaging happy little boy, who is reaching out to the world in a trusting manner. He could only be doing this if his attachment to [Ms Keogh] was a secure and loving one. He is currently confident that the world is a predictable and happy place. It is critically important that all the factors which can stabilise this situation for [X] are maintained. [Ms Keogh] most importantly has the emotional and financial support of another adult [Mr H] who is not only closely attached to her, but also to [X] (Report p 47).
I also consider that there are significant matters regarding the father’s capacity to ever be a positive role model for the child and his general social behaviour which mitigates against the benefit to the child of having a meaningful relationship with his father.
In this regard, as at the time of hearing, the father had been in custody, bail refused by the New South Wales Supreme Court awaiting the hearing of charges, including contraventions of the Apprehended Violence Order taken out by the police in favour of the mother and the child.
The father’s Victorian criminal record (Exhibit 2) indicates that he received convictions for personal violence type offences. Partial concurrent suspended custodial sentences were imposed in August 2007 for stalking and resisting police; and he received a non-conviction fine for an unlawful assault in 2006. I accept the submission by
Ms Cleary in regard to the stalking offence that:
He gave an explanation for [the stalking offence]… where, in my submission, he effectively blamed that woman for having got him into trouble. His evidence about what that was that she had lied because her husband was unexpectedly home and that had landed him in trouble. That would be consistent with other evidence that he gave such as … he blamed my client when it was asked if he had any friends. His answer in Australia - in Sydney - he said, "It's too hard to make friends because of [Ms Keogh]." When he was asked about why he didn't have a job … He said, "[Ms Keogh] wanted a one year break so I stopped work." So he blamed her for that.
He was asked about his drinking. He said, "[Ms Keogh] bought me beer at the casino. I didn't know it." So again there was blame. He gave evidence that he thought that my client and Mr H had persuaded Dr Wotton what to say or even had paid him to say what he did. And he blamed the lady who was the subject of the conviction for encouraging him to come to her home. There was no hint in his evidence that there was anything unusual about going into her home in that way having only just met her and I would suggest that the reason for that … is that it is something that Mr Rowell has done more than once and the evidence of
Ms V (see below) is supportive of that.
I also accept that the father has demonstrated a disturbing disrespect for authority figures and for people in general in a number of forums. His pattern of refusing to leave premises, both public and private upon request, or causing disturbances or acting out aggressively are matters of concern in this regard. In particular, I refer to the circumstances surrounding the above-mentioned stalking conviction; his refusal to leave the mother’s premises in Melbourne; his refusal to leave Ms V’s premises and his violent action towards her (see below); his persistent refusal to accept the withdrawal of his license to enter the Crown Casino and his acting out aggressively when confronted (see below); his concerning conduct at the hospital when [X] was born resulting in his being banned from the maternity ward and a 24 hour security guard being placed around the mother; his destructive behaviour at the pizza restaurant in [B] (see below); and the very dismissive attitude he displayed towards the supervisor at the Contact Centre when spending time with [X].
In this regard, Dr Wotton made the following observation of the father at the Contact Centre:
[Mr Rowell] showed he was totally unable to take direction from another person, more qualified than himself, in the care of children. It is not hard to imagine, that should he have unsupervised contact with [X], that he would totally disregard anything of importance that [Ms Keogh] or any other person might attempt to communicate to him about [X]’s needs (Report p.43);
and at p.36 of his Report:
[Mr Rowell] appeared to scorn the supervisor who was in fact trying to facilitate the contact. He acted as if he was an authority on [X] and how he should be managed. He gave the impression that he could not hear another’s point of view (and see also pp.33, 34 and 35 of the Report).
In regard to an incident on 30 May 2008 with Ms V, a 64 year old [B] resident who employed the father to walk her dog and as her personal trainer, Ms V made a Statement to police on 2 June 2008 that she told the father to leave her home, whereupon:
all of a sudden he kicked me, just right out of the blue he kicked me. It was like some sort of professional martial arts kick … I went flying back into the wall. As he kicked me he threw the full bottle of beer on the floor, it shattered and put beer and glass everywhere … the new puppy … got covered in beer and glass too … I swore at him and told him to get out of my house. He spat on my floor and yelled at me … “Fucking old woman”… I was devastated that someone would kick a woman twice their own age and throw a bottle at a puppy … A few hours later my leg to begin [sic] to really hurt, I realised I couldn’t move my leg. The pain was so bad, I was limping for 3 days …
Ms V threatened to call the police if the father did not stop calling her after the incident. Pertinently, Ms V stated in her Statement that:
I am in fear of him. I am not a timid woman by any stretch of the imagination. I have never been assaulted before in my life, I’m a 64 year old woman, [Mr Rowell] is 32 years old.
Ms V was subpoenaed to give evidence in these proceedings. In her oral evidence she continued to maintain that she was kicked by the father to her upper thigh; that he threw a bottle of beer on the floor; that he spat on her floor and yelled out “fucking old woman”; and that she agreed she was in fear of him and wanted the relationship to stop at that point.
In cross-examination, when asked if the father was a madman, she agreed that she had “seen him as a madman on one incident”. She further agreed that in her discussion with the mother a few weeks later when she invited the mother to afternoon tea to talk about the father:
· she told the mother that the Pizza restauranteur had said that the father had refused to leave his premises and had picked up some plates and thrown them on the ground
· she would have cautioned the mother, and she may have told her that she was “terrified” of the father
· the father would not leave her house when she asked him to on that occasion.
She denied however, contrary to the mother’s evidence, that she ever told the mother that:
· she should never let the father near [X] and that he was dangerous
· the dog needed treatment from the vet to have glass removed
· the police officer said the word “maggot” and that she ever used that word
· the father had jumped over her front fence when the gate was locked (since she had a 12 foot tall front fence which you cannot get over and with a tight security system already in place for her large gallery on site)
· she was “petrified of the man and he is a swine” and that she had to “install a $6,000 security system and now I am too afraid to walk my dogs at night”
· she had been told by some of her friends that they have seen the father “mistreating my dogs when he walked them, dragging them along by the lead and kicking them when they did not move”
· her friend [E] had said the father spat on the floor.
There are clearly some differences in the accounts given by the mother and Ms V of what Ms V told the mother over afternoon tea. In considering their respective credibility, I note first that Ms V was clearly a most reluctant witness in these proceedings. She pointedly stated to the Court that she had felt that the verbal harassment she had received from the “mother’s side” to get her to give evidence in this case had been “equally as harassing” as the father had been.
Nonetheless, in her oral testimony she adhered to the core matters stated in her Police Statement and in her discussions with the mother, namely that the father kicked her, that he threw a beer bottle onto the floor causing it to smash, that he spat on the floor and swore at her, and that she was terrified or in fear of the father.
Otherwise, as to the different accounts by Ms V and the mother on other matters, I am aware that the mother took no notes of their conversation at the time but that she “remembered very precisely as [Ms V] told me in great detail over six and a half hours”, and relevantly, that she went home and made notes immediately afterwards. No such notes, however, were tendered in evidence by the mother.
Ms V for her part, gave no evidence that she took any notes of what was, on any view, a very lengthy conversation.
I accept that one would expect that the contents of the conversation would be extremely important to the mother. I also found the discrepancies in their respective versions to be on more peripheral matters, not on the core matters of the conversation. Furthermore, I formed the view that Ms V was seeking to distance herself from her discussions with the mother as a protective measure, including her making it clear that she considered the kicking incident an isolated incident in her relationship with the father. I am satisfied from her own evidence that she was in fact terrified by the incident and in fear of the father.
I accept that the mother was mistaken on her version of the conversation concerning when Ms V installed her security system and that the father had jumped over her front fence. Nonetheless, I am satisfied that these matters were not fatal to her overall credit and otherwise reliability in regard to this conversation with Ms V.
Indeed, overall, I found the mother to be an honest, forthright and credible witness who was not discredited under careful cross-examination by both the father and the Independent Children’s Lawyer. I consider that her errors in regard to Ms V’s security system and her further evidence, pointed to by Ms Carr, that she incorrectly stated that she had never been involved in an abusive relationship before that with the father, went rather to her reliability. I do not consider that these matters, however, detracted from her overall reliability on all other matters upon which she gave evidence.
In any event, Dr Wotton was of the opinion that even if it were established by the Court that the mother had lied on certain things, “it doesn’t obscure the core issues in this case” and that it would not alter his recommendation that the mother have sole parental responsibility for [X] and that [X] have no contact with the father (transcript 4/02/09 pp.17, 19).
The father denied ever kicking Ms V, deliberately smashing the beer bottle or spitting on the floor. Rather he asserted that Ms V had slapped him across the face. In cross-examination by the father, Ms V firmly denied this, rather stating that “I saw you go mad one day, I cant deny that. I saw you lose control”.
I accept Ms V’s version of the incident over that of the father’s. I am satisfied that the father was seeking to provide a spurious explanation to the Court to explain away his action of violence against Ms V on the day. Indeed, overall, in his evidence, I found it difficult to accept the father’s version of events on all matters where it differed from the other witnesses in this case. He appeared to present the truth through his own view of the world, through his own imputed mindset of how he perceived others were behaving, without recourse to the reality of the actual events themselves, and the people involved.
As to the father’s capacity to lie, and to deny the allegations made against him, Dr Wotton was of the opinion that:
the feature of people with psychopathic traits to their personality is that they do not tell the truth. So trying to take a history from them is almost impossible because they deny things or they lie about things or they shift the focus somewhere else and they’re never accountable (transcript, pp.6-7).
I accept Dr Wotton’s opinion in this regard.
In regard to the father’s conduct at the Crown Casino, which remained unchallenged in these proceedings, the subpoenaed documents (Exhibit 6) disclose that the father was banned from entry originally from
26 October 2005 for one year, but due to his repeated re-entries on approximately thirty occasions and his repeatedly being escorted off the premises, the original Withdrawal of Licence was extended on two further occasions on 25 October 2006 and on 13 August 2007, with the net effect that the father was banned from entry for a continuous period from October 2005 to March 2008.
The initial Crown Casino incident report of 23 January 2005 indicates that the father had been asked to leave the premises on that occasion. On 26 October 2005 the father was verbally abusive to staff and when he failed to desist with his verbal abuse, security sought to restrain him whereupon he resisted violently. The incident report for that day states:
He was extremely violent and unpredictable and Crown restraints were very difficult to apply … He was violent and abusive throughout the entire removal … his behaviour towards the patrons and staff is very concerning … [he] was physically assisted from the premises as he was abusive and threatening to Security staff for no apparent reason. This male has been asked to leave a number of times recently for verbal abuse of patrons and staff, as of now he should be considered dangerous to both patrons and staff, especially Security.
Some five days later on 31 October 2005 the father tried again to gain entry to the Gaming Floor, he was refused and tried to re-enter and was again refused and issued with a Withdrawal of Licence. The incident report for that day states that “The male refused to take [the Withdrawal of Licence] and threw it on the floor … as he was walking away he was very abusive and making threats of getting in here”.
Overall, I consider that the aggressive behaviour exhibited by the father both in the private context of Ms V’s home and in the public forum of the Crown Casino, to be most concerning, in particular in terms of the father’s general social behaviour and the role model that he would provide for the child in these circumstances. I also accept the opinion of Dr Wotton, in this regard, that it is not a question of the potential risk that the father may be dangerous but that he is dangerous in situations where he is challenged.
In addition, the pattern of the father’s lifestyle, to date, mitigates against his being in any position to provide a positive role model for [X], notwithstanding that he has undertaken a parenting course in the past. Indeed since his coming to Australia, there is simply no evidence to support any stability of lifestyle, both as to accommodation and employment. The father’s reliance on the letters from the Department of Housing, (Exhibit 10), indicate that the housing offered would only be held until 27 January 2009, at which point in time the father was still in custody, bail refused.
Contrary to the father’s submission that he has “started a very successful business”, there is simply no demonstrated evidence of this. I accept the submission by the Independent Children’s Lawyer in this regard that:
He seems to have met up with certain women and used - well, made use of their accommodation and the amenities at their houses and eaten food, et cetera. There is no suggestion that he has at any time got himself his own accommodation, gone to his own job and settled himself into a lifestyle where one might say, well he could at least be able to pay for some expenses when it comes to spending time with [X] and this is very worrying given what Dr Wotton says about him.
Furthermore, I accept that the father has failed to demonstrate that he can be a responsible and reliable parent for [X]. I accept the submission by Mrs Cleary in this regard that:
… It chimes with the evidence of the mother about those four occasions when the father was with [X] in his very early life in the pram when the mother's at the gym. Your Honour will recall that she said on the fourth occasion the father became quite angry and agitated because he couldn't stop the child crying and she put an end to any more times when he sat with the sleeping baby while she was at the gym.
The Court has also carefully considered the concerns raised by the Independent Children’s Lawyer over the credibility of the mother’s evidence in light of her continued relationship with the father in Sydney and her failure to seek Police protection by taking out an Apprehended Violence Order against him, notwithstanding her having allegedly fled Melbourne to escape the father, and her allegations of the father’s stalking, harassment and continued abuse of her in Sydney.
On these matters, Dr Wotton concedes he does not “fully understand” the mother’s actions in this regard (transcript 4/02/09, p.11). However, he went on to say that “I think she was fearful of him and fearful of what saying no would mean but she was involved with him and I can’t fully explain that” (transcript 4/02/09 p.11).
In cross-examination, the mother gave evidence of her reasons for continuing to see the father at this point in time. She explained that she went to meet the father at the Central Bus Station as she was aware that the father already had Mr H’s address where she was staying; that she had already notified the police that she wanted no contact with the father; and that the Sydney and Melbourne police, as a result, had both been present in court in Melbourne on the father’s stalking and burglary charges and had been able to stop the father’s bail application seeking that he be permitted to come to Sydney. However, on appeal, this was overturned and the father was able to travel to Sydney pursuant to his bail conditions. The mother stated, in effect, that she did not have any option but to see the father in these circumstances, where she was four months pregnant with his child, she was 42 years of age, where she had been subjected to months of abuse, and where the father already knew where she was living. She explained that: “I feared for my and my son’s life”.
When further probed by the Independent Children’s Lawyer, the mother explained that:
Question: So why see him?
Answer: It seemed the easiest way – [I] hadn’t found new doctors and hadn’t booked into a hospital and at the risk at 42 years of age of a miscarriage, I saw him because I feared him and have been fearing him ever since. The police went to the Courthouse to stop him coming to New South Wales. He is a very determined man, hating my guts.
Question: Why not go to the Police?
Answer: I fear him, I didn’t want to aggravate him. If I got an Apprehended Violence Order when pregnant, there was a chance the unborn baby or I would be harassed … and through not getting an Apprehended Violence Order at that time I was able to keep my unborn son and myself alive …
Question: After the birth of [X], [you were] more able to seek an Apprehended Violence Order?
Answer: there’s a huge distinction, [X] was alive and born.
Question: You thought the father would harm you [when pregnant]?
Answer: He already threatened to do so and I believed he would.
I found the mother’s explanation of these matters convincing and her continuance of the relationship with the father in Sydney during the pregnancy and her failure to seek an Apprehended Violence Order until after [X]’s birth to be fully explicable in the circumstances in which she found herself, having previously sought police assistance both to leave Melbourne and the ultimately unsuccessful attempt by the police to have the father restrained by his bail conditions from coming to Sydney, and given the history of the relationship and her fears for the safety of herself and her pregnancy. I accept the mother’s evidence on these matters as credible and reliable. Overall I found her to be an impressive witness, who was doing the best she could to explain her initial embarrassment in getting herself involved so quickly in a relationship with the father; and her emerging ambivalence and fear of him as she was subjected to aspects of his abusive behaviour. Perhaps Dr Wotton describes it best, in this regard, when he states that:
It seems to me that [Ms Keogh] had a genuinely ambivalent relationship with [Mr Rowell] and that … there were aspects of him that she did not like in the beginning and she was taken in by him as have other people been taken in by him because, as I said, psychopaths can be charming. They can manoeuvre you into a position of giving them what they want … And then I think she started to experience some of the more cruel and aggressive aspects of his personality and she felt trapped … she was gradually able to get to the point where she could separate or not want to have any more to do with him because she saw him as … toxic to her … I think she was genuinely caught up with him in the beginning and then discovered through talking that really this wasn’t a very healthy relationship for her at all (transcript 4/02/08 pp.10-11).
I accept Dr Wotton’s opinion on these matters that the mother’s response to the father must be considered in the context of a process of gradual awareness and insight by her of the nature of her relationship with the father.
Taking all these matters into consideration, and the matters discussed below under s.60CC(2)(b) and s.60CC(3) additional considerations, so far as they are relevant, I am satisfied that there is an overwhelming benefit to the child of having a meaningful relationship with the mother. Equally, I am satisfied that any benefit to the child of having a meaningful relationship with his father must be outweighed in this case by the father’s psychopathic personality traits, as identified by
Dr Wotton, and how these traits have the potential to impact directly on [X], in particular, as his role model, and directly on the mother by putting at significant risk her own fragile personality structure. I accept the submission by Mrs Cleary in this regard that:
… there being such a young child involved, it is just one of those rarer situations where a child can only have a relationship with one parent or the other and it isn't a case where the child could have a meaningful relationship with the father in the absence of his mother … the evidence of Dr Wotton just simply rules that out.
(b) The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
Section 4(1) of the Family Law Act defines family violence as:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Dr Wotton in his Report considered that the effect on the child of any family violence to which he may have been exposed was “none of significance at this stage” (p.7). This, of course, is only part of the matters to be addressed in this consideration.
In this regard, I refer to the mother’s evidence that when [Mr Rowell] came to Sydney the mother alleges that:
he grabbed my hair and a huge wooden pole with his other hand. It was like a broomstick handle. [Mr Rowell] then forced me to have sex by digging the pole into my belly and saying in angry tone words to the effect:
[Mr Rowell]: “Either I kill the baby or we can have sex.”
I started to cry and the more I cried the harder he dug the pole into me … I was very scared that I was going to get hurt or the baby was going to be harmed by the pressure on my stomach. I had to make a decision and I chose to keep my baby boy alive … I really knew now that I was in serious trouble and an impossible situation (mother’s affidavit of 25 August 2008, paragraph 167; mother’s affidavit of 17 April 2008, paragraph 97).
The mother further alleges that a few weeks after the birth of the baby:
[Mr Rowell] started trying to have sex with me. He would be forceful and climb on top of me, usually when I was lying down with [X]. He would straddle me and pin me down with his eyes bulging and his hands around my neck. I remember feeling petrified that [X] would fall off the bed. Finally, [Mr Rowell] would get up and laugh and spit at me (mother’s affidavit of 25 August 2008, paragraph 193).
and that, on another occasion, when the mother refused to have sex with the father:
[Mr Rowell] got more aggressive the more I said no until he was shouting at me and had his hand on my throat. I was crying and screaming for [Mr Rowell] to get off and [Mr Rowell] was trying to put his hand over my mouth to muffle my cries and screams. As much as I was panicking about the danger to myself, I was also trying to make sure that [X] was not squashed or harmed. I was pleading with [Mr Rowell] to leave me alone and be careful of [X] but he did not care (mother’s affidavit of 17 April 2008, paragraph 122).
In the Notice of Child Abuse and Family Violence filed by the mother on 14 May 2008, in addition to her allegation of being poked in the stomach with a wooden pole whilst pregnant, she itemises further allegations of abuse, including that the father:
·threatened to kill the baby
·
threw the baby on the bed from a height. In her affidavit of
17 April 2008, the mother states in this regard that she heard [X] crying and moved towards the bedroom where she saw:
[Mr Rowell] in the mirror shaking [X] and I heard him telling him words to the effect “shut up”. Then I saw [Mr Rowell] throw [X] down from onto the bed from a height of about one foot … [X] was only approximately 3 months old at that time (at paragraph 109).
·attempted to bathe the baby in hot water In the affidavit of Mr H sworn 18 April 2008, Mr H states that:
Early one night in September 2007, I was in the flat and [Mr Rowell] and [Ms Keogh] was also there. I overheard [Ms Keogh] ask [Mr Rowell] if he could try and give [X] a bath. I then went into the bathroom where [Mr Rowell] was adding water to the baby bath that [Ms Keogh] had recently purchased. This bath was the type that had a temperature gauge built in to ensure the water was the correct temperature. [Ms Keogh] had shown me how to use this on a previous occasion. I noticed the gauge was at the top end of the red section as [Mr Rowell] added hot water. I said to [Mr Rowell] words to the effect “see the gauge, that shows the temperature and you need the needle to be in the yellow section otherwise [X] will get burnt”. [Mr Rowell] replied to me with words to the effect “the water is not too hot and that I know how to do it and to leave me to it”. I then responded “no [Mr Rowell], the water is too hot and [X] will be burnt”. I then went into the kitchen and got [Ms Keogh]. We both went back into the bathroom where [Ms Keogh] said to [Mr Rowell] words to the effect “The water is too hot and [X] will be burnt”. I recall [Mr Rowell] appearing to be angry, saying something to himself and leaving the room. [Ms Keogh] then added cold water to the bath until the needle dropped and she went and got [X] from his cot and proceeded to give him a bath (at paragraph 35).
I note that Mr H’s evidence in this regard is corroborative of the mother’s on this incident (mother’s affidavit of 17 April 2008 at paragraph 110). I accept his evidence on this incident.
Overall, I found Mr H to be a most impressive and reliable witness on all matters upon which he gave evidence.
·pretended to punch the baby in the face and stomach
·held the baby on his erect penis (and see further the mother’s affidavit of 17 April 2008, paragraph 119, where the mother states that this happened several times and that the father would laugh at this).
·pushed the baby in his pram so that it crashed into a tree. The mother in her affidavit of 17 April 2008 states that:
On two occasions when [X] was three weeks old and also when he was 2 months old, [Mr Rowell] in his anger just shoved the pram forward and stormed off. The pram crashed into a tree on the side of the road and fortunately did not tip over or roll out onto the road. I was distraught about this but by then [Mr Rowell] had disappeared (at paragraph 123).
The father denies these matters. He says that when [X] was crying:
I deny “shaking” [X] or telling him to “shut up”. I would pick him up and rock him slowly in my arms to calm him. I deny throwing him as alleged.
I accept the evidence of the mother and Mr H, where relevant, over that of the father, given my general findings on credit in regard to them both. I also accept Dr Wotton’s opinion that the mother was genuine in her recounting of her history of the relationship with [Mr Rowell].
Apart from the matters identified in the Notice of Child Abuse or Family Violence, Dr Wotton observed that:
[Mr Rowell] did seem to hold to rigid and stereotypical views of what would make [X] “strong”. In this way he seemed quite out of touch with [X]’s own developmental needs. [Mr Rowell]’s comments on [X]’s various forms of prowess had a narcissistic quality to them – they seemed to reflect something in his mind about himself as a powerful man who was above other men. He thought [X] had been damaged by [Mr H]’s softness, when it seemed more likely that he was simply jealous of [Mr H]’s access to [X].
More worrying during the observation was the fact that [Mr Rowell] rarely if ever took cues from [X] as to what he felt comfortable with or wanted. It was as if again [Mr Rowell] had a predetermined view of what [X] should enjoy, and he was determined to impose this on him …
[Mr Rowell] seemed quite impulsive and seemed to conduct his life, and engage in relationships in quite a random manner. There are so many examples of this – his relationship with [Ms Keogh], his impulsive plan to go to Fiji with a woman he barely knew, his garbled account of following the woman home whom he was later charged with stalking. He seemed to be driven by impulse – to gamble, to drink; to enter others lives in quite a chance fashion. As such, it is hard to imagine him placing the needs of a small and vulnerable child ahead of his own needs, as there appears to be so little constructive planning in his life (emphasis added). It seems significant that he was late for two of his contact times with [X] – particularly when he is so adamant that he has been unjustly deprived of his rightful contact with his son.
I found the father to have a totally self-focused and predetermined view of [X], lacking in insight as to the developmental needs and welfare of the child. His demonstrated unreliability, impulsivity, and lack of a stable lifestyle further detract from his capacity to provide for [X]’s needs in any proper or meaningful way which could place the child at risk of physical and/or psychological harm.
I also accept that the father has already demonstrated a low frustration-tolerance level in his dealings with [X] on a number of occasions, including when [X] was crying in his care at the gym (and see the mother’s affidavit of 17 April 2008, paragraphs 120,121); when he kept wrapping and re-wrapping [X] at the hospital after his birth (see mother’s affidavit of 17 April 2008, paragraph 114); and his holding [X] too close to the balcony ledge (see mother’s affidavit of 25 August 2008, paragraph 192). I accept the mother’s evidence in this regard that the father:
can be affectionate [with [X], but] not for long, for a very short time until he is bored, or fed up or wants to go to the casino, or [X] is crying. He becomes impatient … if he tires of [X], he will give [X] back, or throw him onto the bed or just leave him.
This impulsivity trait was recognised by Dr Wotton in his Report (at pp.43, 45). I am thus unable to see how the father could provide [X] with the consistency and stability of parenting necessary to meet [X]’s ongoing care, welfare and development.
Taking all these matters into consideration, the Court must have considerable concerns, in particular, as to psychological harm to [X] and to his being subjected to or exposed to abuse, neglect or family violence by his father. This is all the more concerning where the father has demonstrated little regard for authority. In this regard, the Court must have grave concerns over the potential for physical harm to [X] in the future where his father has, according to Dr Wotton, a personality structure that cannot be challenged and that he can “act out quite dangerously” in such circumstances. I accept the evidence of
Dr Wotton that:
So let's look into some kind of the future where somebody needs to talk to [Mr Rowell] about [X] or about some aspect of his behaviour. I don't think [Mr Rowell] has the capacity to take on board another person's point of view. So supposing - let's supposing that in some future scenario [X] was being handled roughly or he'd opposed his father about something and didn't want to do it and [Mr Rowell] became … quite angry suddenly because, "How dare you challenge me?" sort of thing. I don't think if anybody tried to intervene that [Mr Rowell] could do anything about that. I think he would just go on that course.
Additional considerations: s.60CC(3)
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Given [X]’s age, this consideration is not relevant in this case.
(b) The nature of the relationship of the child with:
i) each of the child’s parents; and
ii) other persons (including any grandparent or other relative of the child)
I accept that the mother has developed a loving bond with [X] and that she has been his primary and very positive attachment figure from birth. I refer to the matters raised under s.60CC(2)(a) above, in particular at paragraph 41; and at paragraphs 105 and 110 below.
Mr H, in whose [B] premises both the mother and [X] live, has provided a most supportive role for the child emotionally, physically and financially. I accept he has indicated an on-going dedicated commitment to support both the mother and [X] in the future. He told Dr Wotton that the mother and [X] are “my beneficiaries. I will buy them a house at the right time” (Report p.29) and that he recently forewent a move to the USA “for [Ms Keogh] and [X]’s sake”.
According to Dr Wotton’s observations, and I accept his opinion on these matters, [X] is a “very socially competent little boy … very dextrous” (Report p.19) who is “completely at ease with [Mr H] and [Ms Keogh], moving from one to the other happily. He was not distressed to be left in Mr H’s care when his mother left briefly. [Mr H] demonstrated a familiarity with [X] which was indistinguishable from that of a parent or carer” (Report p.23); that “it was clear … from [Mr H]’s conversation how involved with [X]’s life and development he was” (Report p.19); and that “as a friend, he was deeply committed to [the mother’s] welfare and the future well-being of [X]”. From his observations of [X] with the mother and Mr H, Dr Wotton reports that:
[X] was completely at ease with his mother who seemed to understand the need to take her cues from [X] as to what he wanted to focus on at any one time. She was affectionately and imaginatively engaged with him in his play. [X]’s whole being was responsive to [Ms Keogh] – he squealed, clapped, raised his arms in pleasure, and often looked cheekily at her.
[Mr H] took a deliberate ‘back seat’ approach during the observation I made. However he was totally confident and competent with [X] and appeared very much as a father during this time. [X] was also very easy with [Mr H] and seemed used to being attended to by him. [Mr H]’s movements around [X] were quick and efficient and totally geared to meet his needs (Report p.44).
In conclusion, Dr Wotton states that:
[Mr H] is a relevant attachment figure to [X]. He has supported [Ms Keogh] to minimise her anxiety in a very fraught situation. He is prepared to be part of [X]’s life for as long as this is necessary. He is prepared to adapt his working arrangements to minimise the disruption to [X]’s life. He would be guided by professionals if necessary in the future. He has a collaborative working relationship with [Ms Keogh] and respects her as a parent.
I accept Dr Wotton’s opinion of Mr H and the positive and supportive role he has, and continues to fulfil in [X]’s care, welfare and development. I found him to possess clear insight into the needs of [X]. I also found him to possess commendable qualities of genuine caring and admirable altruism which he focused on the mother and [X] for their benefit and with [X]’s best interests ever present.
In contrast, the father has had very limited contact with the child and according to Dr Wotton there seems to be “a very weak bond between the two” (Report p.43). I accept the submission by the Independent Children’s Lawyer in this regard that:
… the case is that [X] has seen his father, I think, on four occasions in the last 12 months it seems. The father has been incarcerated for a number of months now, since October, and prior to that there were just four occasions at a Contact Centre. I think it would be fairly safe to say that he’s unlikely to have any relationship with his father at the moment, and from Dr Wotton’s Report it seems that he has an appropriate relationship and a close relationship with his mother, and also with Mr H who has been in his life for some time, since his birth (and see the matters discussed above under s.60CC(2)(a) in regard to the father’s relationship with the child, in particular at paragraphs 31, 32, and 67; and at paragraphs 124 and 126 below).
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and ss.60CC(4) and (4A)
The Independent Children’s Lawyer submits on this consideration that:
… it’s fair to say that the mother would have very little, if any, capacity to encourage and foster a close relationship between the father and [X]. There have been some concerning aspects to this case, and that’s been one of them, that she seems to have, certainly from the father’s point of view and from even some of the things that she has said herself, that she has basically not intended to put his name on the birth certificate from the beginning. She has given reasons for that.
She has said that she feared that had she put his name on the birth certificate that might have made it easier for the father to somehow take the child out of the country …
She has gone overseas without asking the father’s permission, but said she was going. She’s gone off to Perth for five months which led to the father filing proceedings, and I think she’s quite straightforward about saying basically that she did not want to have this father in the child’s life. I think you could conclude on the balance of probabilities that she does not have any capacity to foster a relationship between [X] and his father, save and except to say, that she did say that should there be an order for no contact she would facilitate [X] receiving cards and gifts from the father at birthday and Christmas.
Taking these matters into consideration, I consider that the mother’s actions in this regard must be considered in the historical context of the abusive relationship in which she had become involved with the father where she had previously left him in Melbourne and had sought to do so again in Sydney. I accept that her leaving Sydney and going to Perth without notifying the father was done in the context of her genuine fear for her and [X]’s safety.
I accept that the mother does not wish the father to participate in the future parenting of [X]. I further accept however that she feels traumatised by him and in fear of him, and that he is presently in custody charged with contravention of an Apprehended Violence Order which the police have taken out to protect her and the child. In these circumstances, I accept Dr Wotton’s conclusion that:
I did not think there would ever be the possibility that [Ms Keogh] would modify any of her attitudes towards [Mr Rowell]’s involvement with [X] (Report p.44).
In regard to the father’s capacity to facilitate and encourage a close and continuing relationship between the mother and [X], the Independent Children’s lawyer submits that:
The father … made some very positive remarks in the witness box about the mother and the mother’s parenting capacity. They appeared to be genuine in the way he expressed them. I put that to Dr Wotton who said that basically that’s all very well for now but it may not be what is really the case. In other words he was suggesting in fact that the father may have been putting on a front, if you like, and he didn’t really feel that way. But I have to say from the children’s representative’s point of view it seemed to certainly be a genuine admiration for the mother’s parenting to date.
This consideration is not relevant in this case
i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; and ss.60CC(4) and (4A)
This consideration has already been fully discussed in the context of the above considerations. The Court adopts those matters discussed therein to the extent that they are relevant to this consideration.
j) Any family violence involving the child or a member of the child’s family.
The Court has before it the affidavit and oral testimony of the mother in which she makes allegations of on-going verbal, sexual and physical abuse including spitting, threats, intimidation, stalking, non-consensual sex and physical violence over the period of her cohabitation with the father first in Melbourne, and then in Sydney; that she sought on two occasions to flee from his verbal and physical abuse by leaving Melbourne with Police assistance in February 2007 and coming to Sydney; and then from Sydney to Perth in January 2008. She stated that she feared for her own safety, and for her unborn child.
In her affidavit of 25 August 2008 she deposes to:
·forced anal sex:
A couple of times [Mr Rowell] forced his penis into my anus for a short time while he was holding me down. I screamed so loudly and I was in so much pain. [Mr Rowell] just laughed. I was in shock and crying because it hurt (paragraph 55).
·spitting in her mouth:
[Mr Rowell] began to spit in my mouth. He would force me to lie down on the bed and he would climb on top of me. He would then pin my arms down and tell me to open my mouth. [Mr Rowell] spat in my face. It was a huge lump of spit and it hit my face. He kept his arms pressed down forcefully and demanded that I open my mouth. I started crying and said “No I don’t want to”. [Mr Rowell] became angry and aggressive and said in a raised voice: “Come on, come on, open, open, do it, do it babes”. He persisted with this and when I did not open my mouth, [Mr Rowell] then said “what’s the problem, come on, come on”. I eventually did what he said because I was so scared (paragraph 56).
·ordering her to put her finger in her anus:
[Mr Rowell] was very forceful and got violent after he ordered me to put my finger in my anus and then in my mouth. He would sit on top of me to stop me from moving (paragraph 57).
·And at paragraphs 80, 81 and 83:
When he got angry and aggressive, he would … spit on me, grab hold of my neck and shout in my face … [Mr Rowell] would intimidate me by standing over me and holding his penis and then just laugh and leave to go to the casino … there were many times when I was screaming at [Mr Rowell] as he was on top of me or pulling and pushing me or pretending to raise his hand and strike me …
·and at paragraph 91
I admit I scratched [Mr Rowell] on one occasion. At that time, [Mr Rowell] had his hands on my throat and was holding me down.
·and at paragraph 93
for a long time, I had not wanted [Mr Rowell] anywhere near me sexually. This caused lots of aggression, shouting and arguments with [Mr Rowell] as he was constantly demanding to have sex.
… He was always pulling his penis out and standing over me, pulling me and pulling my clothes and spitting on me. This constant aggressive behaviour got to me and on a few occasions sexual intercourse took place. This was horrible, I would be lying under him with my head turned to the side with tears running down my face. He could see me and my reaction but he ignored this. In fact afterwards he would say to me words to the effect “you enjoyed it.
·and at paragraph 100, the mother described her getting pregnant in the following terms:
This was a forced sexual encounter with a man who would not leave my house and who was constantly mentally, sexually and physically abusing me.
·and at paragraphs 106 and 107, that when pregnant:
He was always spitting on me and abusing me and pulling at my clothes. He would hover over me and put his fist in my face. He insisted on having sex no matter how upset I was … [Mr Rowell] was always putting his hand over my mouth to muffle my screams, intimidating me when I was crying or begging him to stop with his abuse and his continued pulling me around.
·On 16 February 2007, the day before the mother left Melbourne to get away from [Mr Rowell], she says that he was:
prodding and pulling at my clothes and putting his penis in my face. I screamed at [Mr Rowell] and told him to get away from me … once again I asked [Mr Rowell] to leave. He walked over towards me, spat on me and grabbed me around the throat … I was extremely scared and could see a very angry and violent look on his face. [Mr Rowell] then seemed to calm down. I made a decision then to get away from [Mr Rowell] and the abuse … I walked out of the house and went to South Melbourne Police Station … I was so emotional I was sick in the Police waiting room … I decided I had to get away from the abuse and leave Melbourne for the welfare and safety of myself and my baby … I fled from Melbourne to get away from [Mr Rowell]’s abuse and to make sure the rest of my pregnancy was safe (paragraphs 140, 141, 145).
·and in cross-examination by the Independent Children’s Lawyer, the mother described the cupboard incident, to which the father deposed in this affidavit, in the following terms:
the father did something to upset me terribly. I was hysterical. He didn’t carry me like a baby. I didn’t know what to do. He put me in a cupboard and I sat there crying. I was screaming when he put me in the cupboard. I had been trying to go to another room … he closed the door. He was opening and closing the doors and saying “I love you babe”. I was quiet, in a mess.
and later in cross-examination by the father she said:
you opened and shut the cupboard laughing in my face.
The father denies all such acts of violence, all intimidatory behaviour, spitting and all acts of non-consensual sex, as alleged by the mother. In this regard, the father further alleges that on a number of occasions, the mother
became physically aggressive towards me scratching and hitting me … on one occasion I recall [the mother] punched me with a fist in my mouth (father’s affidavit of 9/6/08, paragraph 21; and father’s affidavit of 28/8/08, paragraph 8).
In regard to the cupboard incident, the father gave evidence in cross-examination that:
I knew she was screaming, maybe – maybe in the end she screamed and sometimes she used to have fits. I used to hold her – to hold her, used to put her sometimes in the cupboard just, you know, to hold her to calm her down … like to play with her like a baby… Carry her, put her in the cupboard and I open the cupboard. I missed her. I say “you all right? You calmed down?”. Then she started to laugh, then again sweet …
Question: And in your view, did she enjoy being put in the cupboard?
I think … it was … a great idea by doing this to her. I just carry her, put her in the cupboard. It’s like she’s a baby screaming. She liked this game …
Question: Mr Rowell, as you think about it now, as you reflect back on your conduct then, do you consider that you may just have frightened Ms Keogh by putting her in the cupboard when she was screaming?
No, that’s far away from it.
Question: Is it possible?
… It absolutely was a sense of humour of anything. She liked it … in one minute, she calmed down, she was screaming for 15 minutes, in one second she calmed down and all is sweet.
Even on the father’s own version, he admits to picking the mother up, carrying her and putting her in a cupboard and opening and shutting its doors several times. Having considered the respective versions of the parties of the incident, I do not consider that there was any implicit consent on the part of the mother to being dealt with in this way, nor that she in any way viewed it with a “sense of humour”, nor that she “liked it” as the father suggests. I accept the opinion of Dr Wotton on this incident that:
…[it] sounds like a very bizarre way to deal with somebody who is out of control and it has a sort of magical element to it … I am able to do something mysterious that nobody else would be able to do. So in that way, it sounds – it sounds very much like the way he explained to me that by having sex with [Ms Keogh] 10 times a day he cured her constipation … It had that same kind of bizarre quality to it, like I am some sort of magic healer and I know ways of reaching people that no other person could possible know and I am able to cure things quite magically … It’s sort of in the same area of his thinking where he’ll be told to leave a casino and has to be told to leave, and the next day he will just walk in … It’s hard for me to imagine a scenario where one person is hysterical, out of control either threatening or doing actual harm and they would then somehow – and I will use the word again, magically melt into somebody else’s arms and allow themselves to be carried and put into a cupboard. There’s something missing in that story; it just does not ring true to me.”
In assessing the very serious allegations of violence made by the mother against the father the Court has also had regard again to the evidence of Dr Wotton that:
… it’s not just a perception of dangerousness. It’s not some kind of paranoid idea that she has that [X]’s father can be dangerous; he can be. He has violently resisted arrest. He has been aggressive and he denied those actions … he was prepared to lie about his aggression, his drinking and his gambling. Let’s just concentrate on he can be dangerous. He can be aggressive. He is violent. He resisted arrest …
My feeling in speaking with Mr Rowell was that the strongest part of his personality was a psychopathic part, that is that he was prepared to lie about very serious issues to do with his own behaviour, his aggression, his drinking, his gambling… In fact most areas of his life which I probed him on and his relationships. I was left a very worrying sense of how he conducted himself in the world and that … we do know that he has capacity to act out quite dangerously, that… he has aggression, that he has a kind of certain personality structure that can’t be challenged.
Dr Wotton refers to the father’s history of aggressive behaviour based on police records (Report, pp. 12 and 47). He based his conclusion that the father had an aggressive personality trait on the police records of the resisting arrest and “also his way of interacting with me when I pushed him into areas that he was uncomfortable with that I felt he got very irritable and dismissive at those times” (transcript p.23).
I also accept Dr Wotton’s opinion that the mother was genuine in her recounting of her history of the relationship with [Mr Rowell]:
… through her recounting of her history with him she became extremely agitated. She was crying a lot of the time. She was shaking in ways that you can’t manufacture. It’s like if you’ve been in a terrible accident and somebody asks you to talk about it, the same thing will happen. You might go into a similar state of shock if it’s too close to the event. Those sorts of reactions that she gave me when she was talking about their relationship they were very genuine and even a good actress couldn’t have put them on … I saw somebody who was deeply and genuinely disturbed and distressed (transcript pp.11,12)
Dr Wotton thus provides some crucial support for the mother’s allegations of violence and the genuineness of the fears from her relationship with the father. I accept the mother’s evidence on these matters. Particularly concerning in this regard is that the father has persisted in a pattern of behaviour before, during and after the birth of the child, where it appears that he is prepared to disregard the child’s best interests in pursuing his own interests and to place the child’s safety and welfare in jeopardy.
The Independent Children’s Lawyer submits that in terms of the likelihood of violence, Ms V’s evidence of being struck by the father with a martial arts kick tends to suggest that on the balance of probabilities the father has the capacity to react in a violent way:
… in terms of the likelihood of violence I think Ms V's evidence tends to suggest that on the balance of probabilities the father may well have and certainly has the capacity to react in a violent way.
I accept this submission.
In conclusion, given my findings of overall credit in relation to the parties, I am satisfied, on the balance of probabilities, that the father has been violent to the mother and that this has been the case on some occasions when the mother has been holding [X], and given
Dr Wotton’s concerns over the demonstrated dangerousness of the father’s personality, the Court must have considerable concerns in this regard, notwithstanding that there has been no overt physical violence by the father directed to the child.
k) Any family violence order that applies to the child or a member of the child’s family, if:
i) the order is a final order; or
ii) the making of the order was contested by a person.
On 17 May 2008 a provisional Apprehended Violence Order was made against the father to protect the mother and the child. Interim Orders were made by [B] Local Court on 4 June 2008.
The father was arrested for breach of such Orders on 6 June 2008, and was bailed on 9 June 2008. The father was arrested for further breach of the Apprehended Violence Order on 8 July 2008 and was again granted bail on 10 July 2008.
On 28 October 2008, a Final Apprehended Violence Order was made for a duration of 2 years. The father was taken into custody and has been refused bail since, including in the Supreme Court of New South Wales on 27 January 2009.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
No submissions were made by the parties on this point. I do not consider that it has any relevance to this case.
m) Any other fact or circumstance that the Court thinks is relevant
In regard to the contentious issue as to whether the father’s name should be added to the child’s birth certificate, Mrs Cleary submits that, for much the same reasons in relation to the evidence by Dr Wotton about the mother's fears, but also for practical reasons, that the father should not be added to the child’s birth certificate. She contends that:
The first of the practical reasons is this; [X]'s knowledge of his biological father is going to come in his infancy from his mother primarily and to some extent … also from Mr H. They are the ones who are going to talk to him about his father, perhaps show him photos of his father, tell him about the family of origin in Israel and so on. The knowledge of his father isn't going to come from the fact of the father's name on [X]'s birth certificate.
Indeed, if the mother … had a birth certificate with [the father’s] name on it, [X] need never see it until he first came to go to work or wanted to get married, [or] the school will require it but that doesn't mean that [X] will … set eyes on it. So he could easily go to age 18 or 16 without knowing anything about his birth certificate in the way that a lot of [people] don't … In a sense the issue, in the event that your Honour took the view that there should not be any contact, then what your Honour is left with is the willingness of my client and to some extent Mr H to sensitively advise [X] about his circumstances about why he's a little boy who doesn't see his father and doesn't have any independent knowledge of his father.
If your Honour comes to the conclusion that between the mother and Mr H there would be a thoughtful and sensitive approach to helping [X] to understand his circumstances then that's the matter that has the most significance about [X]'s knowledge, not an order that compels the mother or directly causes a birth certificate to be endorsed with Mr Rowell's name. Indeed, such an order could have an unhelpful effect given the mother's fears about the father perhaps using it in some way.
One of those ways, as she gave evidence, was that it might be used to obtain an Israeli passport and the other practical consideration of course is your Honour would be aware that [X] has his own Australian passport at the moment. He has already … because he's already been overseas.
… So he has an Australian passport but there will be times when it needs to be renewed and the evidence before your Honour is that my client has been a traveller and that she's hoping to continue in that way so [X] will need fresh passports and in the event that there's a birth certificate with both names, even in the event that there is an order that she has sole parental responsibility - it may well be that she has to make a further application in order to get an updating passport for [X].
I accept that the mother’s concerns that the father will be able to more readily obtain a passport for [X] if he is placed on the child’s birth certificate are motivated by her genuine belief that the father will thereby be able to remove the child from her and take him to Israel where the father’s extended family reside, as he has threatened to do in the past.
I also accept that the mother genuinely fears that the father will take [X] away from her when he is older and that there is some reasonable basis for her fears in this regard given the past threats to this effect made by the father (see the mother’s affidavit sworn 17 April 2008, paragraphs 132-133; and the mother’s affidavit sworn 25 August 2008, paragraph 236). I accept the mother’s evidence on these matters.
I further accept that all the father’s extended family resides in Israel, and that he appears to have very transient ties to Australia. It is also the case that the father left Australia for an extended period of some years earlier this decade.
If the Court were to make an Order that the father’s name not be placed on the child’s birth certificate, I also have no doubt that the mother and Mr H would most carefully and sensitively assist the child in understanding the circumstances for such a decision. I accept the submissions by Mrs Cleary in this regard. Notwithstanding these matters, however, I consider, on balance, that it is in the best interests of the child that he have the right to know, in this formal and recognised way, via his birth certificate, who his father is, not merely from what his mother and Mr H may tell him.
I consider that the mother’s very legitimate concerns that the father may seek to remove the child from Australia can be addressed, first, by an order of the Court placing the child on the Airport Watch List and restraining the father from removing the child from this jurisdiction; and secondly by restraining the father from seeking to obtain or use any passport, whether Australian or Israeli, upon which the child is, or may be, included.
Whether the presumption of equal shared parental responsibility applies
Both the Independent Children’s Lawyer and Mrs Cleary made submissions to the Court that the presumption of equal shared parental responsibility is rebutted in this case in the best interests of the child pursuant to s.61DA(4) of the Act. Both rely on the evidence of
Dr Wotton as the primary body of evidence to support this proposition. In particular, I refer to the submission on this point by Mrs Cleary:
… equal shared parental responsibility is rebutted by the evidence in this case … the primary body of evidence that your Honour would rely on as having rebutted the presumption is the evidence of Dr Wotton. The evidence of Dr Wotton which was in my submission stronger in his oral evidence than in his report is that the father is a psychopath. That a consequence of that is that his conduct is self-interested conduct because that's the nature of the illness or disorder depending on how you regard it. That he sees [X] as an extension of himself. That [X] is self-enhancing for the father. That he has a fixed idea of who [X] is and attributes knowledge to [X] about the father that [X] couldn't have; not just because he hasn't had much contact but because he's just simply too young to have it.
But there is, in the essential nature of the father, a risk to [X] because part of having a sociopathic or psychopathic personality is, as Dr Wotton described it, an enormous charm and ability to say and do what it takes to achieve a personal end. So that in itself - that evidence about the father which Dr Wotton says was enhanced for him by the evidence of the father's conduct around the casino - a sense of entitlement to return having been excluded, the anger that he was not being allowed re-entry when in his own view nobody should be able to stop him was a strong example for Dr Wotton of this tendency and nature of the father which would represent a risk to [X] …
So that evidence alone would rebut the presumption in my submission … But further than that, of course, is the evidence of Dr Wotton about vulnerabilities in my client and of course your Honour has seen some of the evidence and there is some very detailed evidence there from Dr F. There's some material that arises out of Prince of Wales notes …
This is the essence of the vulnerability … that because of the childhood and background experiences that my client has had, she … was obviously vulnerable to having earlier incidents aggravated by a situation like this where she has formed a relationship or formed an entanglement with somebody who it turned out was a sociopathic personality. So events in her own life made her vulnerable to the impact of this kind of abusive relationship …
… this is not the kind of case where the conduct of … these parents [is] measured against some reasonable standard of parenting and found wanting or ticked off. This is a case where the psychiatric evidence alone rebuts the idea that these two parents could ever work together and raise a child together.
I accept these submissions and those made by the Independent Children’s Lawyer to the same effect. I further accept that this is a case where the parents will never be able to communicate about [X]’s care welfare and development on the major issues in his life, given their respective personality traits as identified by Dr Wotton, and any such communication may be fraught with trauma for the mother and may put her capacity to effectively parent the child at high risk, which would not be in his best interests.
I also accept, in this regard, that the father’s psychopathic personality traits predispose him to an egocentric view of the world, and of his own child, which precludes his capacity to have any insight into what are the best interests of [X], not only in the longer-term but also on a daily basis should he spend time with him. I am also satisfied that the father has had limited if any input into the decision-making affecting the care, welfare and development of the child to date, and has not thus been able to demonstrate any present capacity in this regard.
As to the future, I consider on the evidence before me that the father does not present as a viable paternal role model for the child. The Court would have to seriously question his capacity to make reasoned decisions and to exercise his judgment in the best interests of [X]. His itinerant, erratic, impulsive and unpredictable history, including the particular nature of his Victorian criminal antecedents; the most concerning abusive and violent way in which he treated the mother throughout their relationship; Ms V on the one occasion; and security staff at the Crown Casino, provide no support for his capacity in this regard.
By contrast I accept that the mother has been doing an admirable job in raising [X], which is all the more impressive when one considers that she has done so notwithstanding her own considerable vulnerabilities where she could have become overborne by the continued abusive behaviour of the father. I accept that she has demonstrated a resilience to withstand this behaviour by putting the care, safety, development and welfare of [X] as her first priority. I have no doubt that she has been greatly assisted in this regard by the immense support she has received, and I accept will continue to receive, from Mr H, including emotionally, financially and physically.
In conclusion, I am satisfied on all the evidence before me, in particular the expert evidence of Dr Wotton, that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child. Accordingly, the presumption is rebutted in this case pursuant to s.61DA(4) of the Act. I am therefore satisfied that it is in the best interests of the child that the mother have sole parental responsibility for the child.
If I be wrong in this regard, having carefully considered the mother’s evidence of allegations of family violence and abuse by the father and having accepted her evidence on these matters, and the supporting evidence of Dr Wotton in this regard, I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence. Accordingly, pursuant to s.61DA(2) of the Act, I am satisfied that the presumption of equal shared parental responsibility does not apply in the present case. On this basis, I am also satisfied that the evidence supports the mother having sole parental responsibility for the child.
Whether the child should spend time with his father, or not at all
Given the Court’s determination that the presumption of equal shared parental responsibility is rebutted, (or does not apply in this case), it is not therefore necessary for the Court to consider whether it is in the child’s best interests that he spend equal time and, if not, substantial and significant time with his father pursuant to s.65DAA of the Act.
The issue remains what if any time should the child spend with his father. In summary, as discussed above, Dr Wotton recommends that the child spend no time with his father. Ms Cleary and the Independent Children’s Lawyer adopt his recommendation for the same reasons he gives.
Taking into account the matters discussed above, in the context of the primary and additional considerations as to what is in the best interests of the child, the Court is left with significant concerns given the dangerous nature of the father’s personality, as identified by
Dr Wotton, that the child’s physical safety may be placed at an unacceptable level of risk, in particular as [X] grows older and if he seek to challenge his father or express a contrary view at any time.
The Court must also have significant concerns on the evidence of
Dr Wotton, and as already referred to above, in regard to the father’s impulse-driven personality, in particular his problems with gambling and alcohol and his disregard for authority and morality, which would mitigate against his capacity to ever maintain any sustained and dependable contact regime. In the particular context of parenting, the Court is most mindful in this regard of the father’s demonstrated contemptuous attitude towards the supervisor at the Contact Centre, as pointed to by Dr Wotton.
I am also mindful that child has not yet developed a strong bond with his father and that the father has, to date, played a very limited role in the child’s life.
Furthermore, on the basis of the mother’s vulnerable personality, as identified by Dr Wotton, which has already had required to withstand considerable physical, verbal and emotional abuse and violence from the father in a most destructive relationship, I am satisfied that any time that the father might spend with the child, even in a supervised setting, would be extremely traumatic for the mother. In the circumstances, any contact between the child and his father would serve to exacerbate the mother’s already heightened fears, which would have the potential to impact negatively on [X]’s care, welfare and development. The mother’s resilience in this regard has already been significantly borne down by the nature of the relationship with the father. I have no doubt that any continuing role of the father in the mother’s life could have the effect of completely overwhelming her internal fragility. This would not be in the best interests of the child.
In conclusion, notwithstanding the negative considerations identified by Dr Wotton in the child not spending time with his father, given the particular circumstances of this case, the Court would have to question what benefit, if any, there would be to the child in spending time with his father in a supervised setting.
Having most carefully considered this question, given the very real risk of psychological and physical harm to the child from the father’s psychopathic personality, and where the father has no supportive network which might assist the child or provide some buffer for the child in any time that he might spend with his father, and where the mother’s fragile personality has already been significantly tested by her relationship with the father, I am satisfied that it is in the best interest of the child that he not spend any time with the child.
However, I accept that some more limited involvement of the father and his family in Israel (who I accept, on the mother’s evidence, to date, have not sought to play any role in [X]’s life) may be appropriate in this case whereby they be permitted to send cards and/or gifts to [X] for his birthday and at Christmas. I also accept the submission from the Independent Children’s Lawyer that the father should be provided with a recent photograph of the child.
In conclusion, as stated above, I am satisfied that the mother and Mr H are committed to getting expert assistance, as required from time to time, in ensuring that the child, as he grows and asks questions is told about his father in a most sensitive manner and in a manner that is in his best interests for his emotional and psychological well-being so that he can continue to thrive.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: K Lambert
Date: 1 May 2009
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