Rush and McFadzean (No. 2)

FAMILY COURT OF AUSTRALIA

RUSH & MCFADZEAN (NO. 2)

[2007] FamCA 1451

FAMILY LAW – CHILDREN – sole parental responsibility – unacceptable risk for unsupervised time – father’s inability to control anger – father’s serious difficulties with his personality – parental conflict – dealing with the issue of ‘a fantasised father’

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 60 CG

APPLICANT:

Mr Rush

RESPONDENT:

Ms McFadzean

INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

FILE NUMBER:

NCF

2223

2002

DATE DELIVERED:

14 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

Watts J

HEARING DATE:

26 - 29 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Ticehurst Foat Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

Orders

The orders made by the Family Court of Australia in the matter of Mr Rush and Ms Fadzean, No. NC2223 of 2002, dated 20 November 2003, be discharged.
The child …, born … September 1999 (herein after referred to as “the child”) live with the mother.
The child spend time with her father for two hours once every six months on the following conditions:-
3.1.This time be supervised at a child contact centre to be nominated by the Independent Children's Lawyer.
3.2.The Independent Children's Lawyer or his nominee do all things to facilitate the arrangement proposed by this order.
3.3.Each party shall:
3.3.1.contact the Children’s Contact Service (“the Contact Centre”) at the address or by using contact details provided by the Independent Children's Lawyer within 7 days of receiving notice of that address and contact details, and arrange an appointment for assessment for suitability for supervised time;
3.3.2.attend the assessment and I request that the father be able to do that by telephone;
3.3.3.comply with any appointments made by the Contact Centre for supervised time at times nominated by the Contact Centre or the Independent Children's Lawyer;
3.3.4.comply with all reasonable rules of the Contact Centre;
3.3.5.comply with all reasonable requests or directions of the staff of the Contact Centre;
3.3.6.both parties pay one half of any fee charged by the Contact Centre.
3.4.This order be suspended until further order if the father fails to attend the child contact centre at the appointed time when the child was there to see him.
3.5.If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order, then each party or the Independent Children's Lawyer has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
The father be at liberty to communicate in writing with the child on her birthday, at Christmas, on the father’s birthday and on one occasion each three months on the basis that:-
4.1.The content of the letter or card:
4.1.1.set out factual matters about what has been happening in the father’s life;
4.1.2.not contain statements to the effect that the father wishes to have face to face unsupervised time with the child;
4.1.3.not contain statements about how the child not having face to face time with her father, is affecting him.
4.2.The father not use language that lays blame on the mother for any act or circumstance.
4.3.Any terms of endearment be aged appropriate and that the father be sensitive to possible sexual overtones in any term of endearment.
4.4.The mother read any document from the father before passing it onto the child and that she not pass it onto the child if in her view the father has not fulfilled the conditions of this order.
The mother have sole parental responsibility for the child.
The mother be permitted to relocate anywhere within Australia provided:
6.1.The mother provides to the father written notification within 14 days of moving of:
6.1.1.The new address to which the father can send written communication;
6.1.2.The city or town to which the child has moved;
6.2.There is a facility proximate to the new location which would allow the mother to fulfil her obligations under order 3.
Subject to any other requirements of the Department of Foreign Affairs and Trade (or such other Australian Government Department or agency which issues or has the power to issue passports), the said Department issue passports to and for the child notwithstanding that the consent of the father has not been obtained.
The mother have liberty to remove the child from Australia as she sees fit and without the father’s consent provided that that move is not on a permanent basis and the mother can otherwise fulfil her obligations under order 3.
The father be restrained from approaching within 100 metres of the residence of the mother, the child’s school and of the child’s sporting or cultural venues.

10.1The father is granted a certificate under section 128 of the Evidence Act 1995 (Cth) regarding evidence given in these proceedings by him on 26 to 29 November 2007 inclusive, concerning
10.1.1an incident that took place on 13 April 2007;
10.1.2an incident that took place on 25 June 2007.

10.2The Registry Manager is to prepare for signature the certificate but that certificate need not be in accordance with form 1 of the Evidence Regulations.
11.1Mr W is granted a certificate under Section 128 of the Evidence Act 1995 (Cth) regarding evidence given in these proceedings by him on 29 November 2007 concerning an incident that took place on 25 June 2007.
11.2The Registry Manager is to prepare for signature the certificate but that certificate need not be in accordance with form 1 of the Evidence Regulations.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 2223 of 2002

MR RUSH

Applicant

And

MS MCFADZEAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case is primarily about what time the parties’ child, a daughter born in September 1999 (now aged 8 years and 3 months) will spend with each of her parents. The mother seeks an order that the child spend no time with and have no communication with her father. Both parties agree that orders made by the Family Court of Australia on 20 November 2003 be discharged. The mother also seeks orders that would allow her to relocate to Brisbane with the child; in relation to the child’s passport; taking the child from Australia and restraining orders against the father.
The father wants the child to spend week about with each of her parents.
The hearing of this matter took place in somewhat unusual circumstances. In the week before the hearing commenced the father had been convicted by a Magistrate of the Newcastle Local Court of a charge of assaulting a security officer at the Family Court building on an occasion that I will refer to more extensively in the evidence. On 22 November 2007 an order was made under section 77 Crimes (Administration of Sentences) Act 1999 for the father to be brought from a correctional centre to the court for the purposes of conducting the hearing. The father attended on each of the four days of the hearing with two uniformed officers of the Department of Corrective Services who had brought him from prison. At the commencement of the hearing I had the father sworn in. I indicated to him that anything he said at any time during the hearing would be evidence that I could take into account. The father was provided with a photocopy of all material read in these proceedings. He also tendered at the end of the proceedings material from papers that were apparently in his possession.

APPLICATIONS

Father

The father, in an application for final orders filed 6 July 2006, sought orders which substantially remain the orders that he seeks before me.
Slightly paraphrasing them the orders sought are in the following terms:
1.The orders made 20 November 2003 be discharged forthwith.
2.The child born in September 1999 equally live with each parent, ie 7 days at the mother’s house and 7 days at the father’s residence.
3.The mother pick the child up from school on Fridays after school in one seven day week and the father pick the child up from school on the next Friday after school between 2.30pm and 3pm.
4.In school holiday periods the mother deliver the child to the father’s house between 9am and 10am. The mother is to drop the child out the front of the house and not get out of her car when the mother has the first half of the holiday period in even years.
5.In odd years when the father has the first half of the holiday period the father is to drop the child at the end of the street or 100 metres from the mother’s house between 9am and 10am.
6.The father requests unlimited phone contact.
7.The father requests that when the father has the child in his company that he is allowed to make all independent decisions concerning the child’s sporting and social calendar. The father no longer wishes to follow the mother’s pre-organised sport or social activities. At the commencement of the hearing the father indicated that he didn’t necessarily want to interrupt the child’s involvement with gymnastics but was keen to see her re-engage in athletics. The father however during the hearing and in final submissions did not detail any order that he sought to enable that to happen.
8.The father has the child the day before Father’s Day between 9am and 10am if the mother has seven day access and returns the child the day after Father’s Day. If the father has the seven day access and Mother’s Day occurs then the father must return the child between 9am and 10am on Mother’s Day and the mother must return the child the next day between 9am and 10am to the father’s residence.
9.The same order applies (as referred to in the previous subparagraph) for both the mother and the father on the father’s birthday and the mother’s birthday (ie on the father’s birthday, the child is to be dropped at the father’s house between 9am and 10am) and on Mother’s Day the father would drop the child to her mother’s home between 9am and 10am.
10.The mother must ensure that when the child is in her company, that the child sleeps in her own bed.
11.The mother within six months of these orders complete anger management and after separation counselling.
12.If the mother does not comply then the mother’s contact be suspended.
13.The mother does not denigrate the father or the father’s other children to the father or in front of the child. If the mother denigrates the father then contact be suspended.
14.During the school holiday period (NSW- Christmas holidays) for 2006 and each even year, the mother pick up the child between 2.30pm and 3pm on the last day of school. Nineteen days later the mother is to drive the child and deliver her to her father’s residence. In school holiday periods the mother is to deliver the child to the father’s house between 9am and 10am. The mother is to drop the child at the front of the father’s house and not get out of her car.
15.On the child’s birthday, if the mother has seven days residence, the father be allowed to pick the child up the day before at 9am and return the child on the child’s birthday, between 9am and 10am.
16.On the child’s birthday, if the father has seven days residence, the mother be allowed to pick the child up at 10am the day before her birthday and return the child on her birthday between 9am and 10am.
The father indicated that he also wanted the ability to take the child overseas. He agreed that the child’s mother could hold her passport.

Mother

The mother sought the following orders in a Response filed 23 October 2007:
1.That the orders made by the Family Court of Australia in the matter of [Rush & McFadzean], No. NC2223 of 2002, dated 20 November 2003, be discharged.
2.That the child […], born […] September 1999 (herein after referred to as “the child”) live with the mother.
3.That there be no Order made for the child to spend time with or communicate with the father.
4.That the mother have sole parental responsibility for the child.
5.That the mother be permitted to relocate anywhere within Australia.
6.That, subject to any other requirements of the Department of Foreign Affairs and Trade (or such other Australian Government Department or agency which issues or has the power to issue passports), the said Department issue passports to and for the child notwithstanding that the consent of the father has not been obtained.
7.That the mother have liberty to remove the child from Australia as she sees fit and without the father’s consent.
8.That the father be restrained from approaching within 100 metres of the residence of the mother, the child’s school and of the child’s sporting or cultural venues.

The mother’s proposal

The mother’s proposal is set out at paragraphs 16 and 17 of her affidavit sworn 22 October 2007. In oral evidence she said she had no immediate plans to sell her house in Newcastle. She would lease it out for six months. She would obtain a six month lease in Brisbane with the intention of there being a three month trial (she has been told that it is relatively easy to get out of a six month lease if you want to cease it early). In the event she came back to Newcastle because the child did not settle down well in Brisbane, she would stay at one of her sister’s houses until her own home became available again after the lease of that property had expired.

Independent Children's Lawyer

The Independent Children's Lawyer at no time provided the court with a minute of orders which he sought.
The Independent Children's Lawyer opposed the father’s application for shared care and was ambivalent about the mother’s application for no contact.
The Independent Children's Lawyer said that he was torn by the evidence. The child wants to spend time with her father but she has a degree of anxiety in relation to that. The Independent Children's Lawyer said that an order should be made that did what was possible to remove conflict from the child’s life.
The Independent Children's Lawyer submitted that an order should be made that allowed the child to relocate to Brisbane as proposed by the mother.
The Independent Children's Lawyer suggested that there should be some form of contact on a limited supervised basis and some form of communication between the child and her father.
The Independent Children's Lawyer acknowledged that there was a real risk that the father could not control himself when writing to the child and he consequently implied some filter should be placed on that communication.
The Independent Children's Lawyer agreed to undertake any arrangements necessary if an order was made for the child to see her father at a contact centre.

SHORT HISTORY

The father was born in February 1957 and is now aged 50. The father had worked 27 years in the construction industry, before commencing a university course to become a teacher.
The mother was born in August 1960 and is now aged 47.
The child has three step-sisters who live in Adelaide. They are J born in January 1988, E born in March 1991 and P born in February 1994. The parents of these three girls are the father and Ms A. She has a new step brother. The mother of that baby is Ms S.
There was at one stage some confusion as to how long the parties had lived together but it was eventually agreed that they lived together from late 1998 through to the middle of 2002. The mother said that in 1997 they had had a relationship for about three months but had not lived together in that time.
The subject child was born in September 1999 and is now aged 8 years and 3 months.

DOCUMENTS READ

I have read the following documents:
21.1.The father’s affidavit filed 27 February 2007 which has attached to it a document of seven pages.
21.2.A document entitled “Report” in the husband’s handwriting dated 22 February 2007 (a document of seven pages that has attached to it a statement made by Constable H on 24 April 2006; a statement by Mr B dated 12 May 2006 and an affidavit by the father sworn 11 September 2006).
21.3.An unsworn document entitled “Affidavit [the father]” 26 June 2006 which seems to have been updated and redated 22 August 2006.
21.4.Affidavit of the father for interim parenting orders filed 6 July 2006, which document has attached to it a letter from Mr B dated 29 June 2006; a letter from Mullane & Lindsay dated 27 June 2006 and an annexure 2 and annexure 3.
21.5.Affidavit of the mother sworn 14 August 2006, filed 12 September 2006.
21.6.Affidavit of the mother sworn 6 October 2006, filed 2 November 2006.
21.7.Affidavit of Dr T sworn 12 December 2006, filed 14 December 2006.
21.8.Affidavit of the mother sworn 12 February 2007, filed 23 February 2007.
21.9.Affidavit of Ms R sworn 13 February 2007, filed 23 February 2007.
21.10.Affidavit of Ms G sworn 17 October 2007, filed 22 October 2007.
21.11.Affidavit of the mother sworn 22 October 2007, filed 23 October 2007.
21.12.Judgment of Justice Mullane dated 20 November 2003.
21.13.Family report (read with the consent of the parties) by Mr D dated 1 September 2003.
21.14.Report of Dr M dated 6 December 2006.
21.15.The exhibits tendered during the hearing.

CREDIT

Father

During the hearing and particularly when the father was being cross examined, the father had considerable difficulty focusing on questions that he had been asked and responding concisely.
The father was a poor witness and from time to time amended his evidence. I will mention a few examples.
The father gave inconsistent evidence as to whether or not on 17 January 2007 he left the Newcastle area to work at F for two days or for “four to five days”.
The father shifted his evidence in relation to whether or not he was hit with an apple core in November 2003 or half an apple on an occasion when he hurled a drink bottle at a group of students. I also do not accept the father’s evidence that the bottle was empty given Mrs I’s statement as to the injury she received.
The father originally denied in cross examination that he had spat on someone at the child’s school. When that issue was discussed when Mr B gave evidence I concluded from my conversation with the father that in fact the report to Mr B by the Deputy Principal was accurate and the father had spat on her.
The father originally freely admitted that he pulled Ms A’s hair during an incident of assault upon her in 1997 but a few minutes later in oral evidence recanted saying that he did not think he actually pulled her hair.
I find applying the standard in Briginshaw v Briginshaw (1938) 60 CLR 336, that the father did not accurately relate the head butting incident on 25 June 2007 (referred to in detail later). That goes to his credit and is, in my view, related to the father not being able to accurately recall what his behaviour was during periods of time when he lost control of his anger.

Mother

The father asked the mother a question to the effect of whether or not she would lie if she thought that that was in the child’s best interests. She said that she would. That answer cuts both ways in terms of the issue of the mother’s credit. On the one hand it might imply that I should treat some of her evidence suspiciously where it conflicts with the father’s evidence given that there is no doubt that the mother has a conscientious conviction that it is not in the child’s best interest for her to have time with her father. On the other hand it is a very frank and honest response to the question that was asked. The mother was not asked whether or not she would lie under oath. I formed the view when observing her in the witness box that she was not fabricating responses to questions that she was asked.

None of the mother’s witnesses or the mother were impeached in any way by the questioning of the father and I am able to accept without reservation evidence given by them.

Conclusion on credit

Where the mother’s evidence differs from that of the father’s and there is no other compelling objective evidence I will accept the mother’s versions in preference to the father’s versions of events.

LONGER HISTORY

Between September 1982 and October 1990 the father was convicted of a number of criminal offences which will be referred to in more detail later.
On 23 May 1997 the father was convicted of assaults upon Ms A. The offences were committed on 29 January 1997 and 16 April 1997.
On 31 July 1997 the father was convicted of breaching an AVO in relation to Ms A on 25 June 1997.
In late 1998 the parties commenced to live together.
On 17 June 1999 final orders were made in relation to the father spending time with J, E and P.
The father made mention on a number of occasions during the hearing of the fact that he had made a successful application against Ms A arising out of the retention by Ms A of J, E and P at a time when they were due to be with him. The father said a recovery order (or its equivalent) was issued and the police recovered the girls from Ms A and delivered them to their father. They stayed with him for approximately three months until the court heard the case, at which time they were turned to Ms A.
In September 1999 the subject child was born and she is now aged 8 years and 3 months.
The parties separated in the middle of 2002.
In 2003 the father made an application to the Family Court for orders in relation to the child.
In September 2003 Mr D, a court counsellor, saw the parties and the child and prepared a report for the court.
The matter came before Mullane J and final orders were made in the Family Court of Australia, Newcastle, on 20 November 2003. These orders were partly made by consent and were partly the result of a determination by Mullane J following a contested hearing. Mullane J’s reasons for judgment are Exhibit B. The parties initially commenced changeover at a police station and that arrangement lasted for about one year.
The text of orders 16 and 17 made on 20 November 2003 are in the following terms:
16.The orders for contact are conditional upon the father within six months of today attending and completing a parenting after separation course and an anger management course both of which are approved or nominated by the Director of Mediation of the Family Court of Australia at Newcastle.
17.If the father does not comply with order 16 the contact orders are suspended from 20 May 2004 pending further order.
In April 2004 changeovers moved to the mother’s home by agreement (see paragraph 44 of the mother’s affidavit filed 15 August 2006).
In January 2005, the father took the child to South Australia without advising the mother and returned two days after the time the child was to be with her father under the orders.
In March 2005 the mother approached the Legal Aid Commission to see what her position was under the orders. The mother had a continuing concern about the father’s behaviour, particularly on occasions at changeover. I accept her explanation as to why she did not do anything at that point in time as being a credible one.
In March 2006 the mother employed Mr Bruce Foat as her solicitor.
The mother at some point became aware that on 16 March 2006 the father sent an offensive SMS to his daughter E (who was then aged 15). That note was alleged to be in the following terms: “I’ll smack you in the head when I see you next. I’m dad have respect answer me ignoramus ring me or else”. (paragraph 11 of the mother’s affidavit sworn 12 February 2007).
On 31 March 2006 the mother says, and I accept, that at a changeover the father walked into the mother’s home uninvited and commenced yelling “I will be taking [the child] to [South Australia] during the school holidays…if you don’t fucking like it take it back to court….”. This incident took place in the child’s presence.
The mother says, and I accept, that on 3 April 2006 the father was yelling at changeover and the mother says that the child returned with three pairs of soiled underpants. The father in cross examination did not deny that the child may have had soiled underpants (see paragraphs 17 through to 24 of the mother’s affidavit filed 15 August 2006).
The mother said, and I accept, that the father’s use of offensive and inappropriate language in the presence or hearing of the child and increasingly aggressive demeanour was becoming more concerning to her.
On 10 April 2006 Mr Foat sent a letter to the father in the following terms, inter alia:
“Final orders were made in the Family Court of Australia, Newcastle, on 20 November 2003 in relation to your child […]. In part, those orders, which were made by your consent, specify (at paragraph 17) that if you did not comply with paragraph 16, ie that within six months of 20 November 2003 you attend and complete both a Parenting After Separation and an Anger Management Course approved by the Director of Mediation of the Family Court at Newcastle, then the orders enabling you to have contact with [the child] were to be automatically suspended.
In the absence of evidence that you have completed either prescribed courses, then, it would seem that the orders mentioned are indeed suspended pending further order.
I am instructed that any further communication in relation to this matter is to be made through this firm. In the event of any inappropriate approach to [the mother] or [the child], you are put on notice that the police will be requested to intervene immediately. Further, I am instructed that you are in breach of other orders to which you consented in 2003, including orders that you are restrained from using offensive or inappropriate language in the presence or hearing of [the child]; and that you ensure that [the child] attend her sporting and recreational commitments when she is in you care. [The mother] desires that arrangements be negotiated that are in [the child’s] best interests and we will look forward to discussing such proposals with you.”
The assertion in this letter that the father had not completed the anger management course was incorrect. He had completed the anger management course.
The father had not however completed the parent after separation course because of a philosophical dispute after three sessions with the provider of that course. The provider refused to allow him to continue to do the course.
As from 10 April 2006 the mother suspended contact “as the father failed to provide any evidence of attending parenting after separation and anger management courses”. At paragraph 15 of her affidavit filed 15 August 2006 the mother categorises the letter sent by Mr Foat to the father on 10 April 2006 as an “effort to communicate with [the father] to renegotiate the existing orders”. In paragraph 16 she says “these efforts were unsuccessful; and documentary confirmation as to whether [the father] had completed the course as required by him by the orders was not forthcoming”.
An incident that took place on 13 April 2006 is a pivotal event in the history of this matter. The father was arrested and charged by police. The details of this incident are dealt with in more detail later. As discussed during the hearing there were some minor errors on the statement made by the police which set out the reasons for applying for the apprehended violence telephone interim order (see annexure C of the mother’s affidavit filed 15 August 2006 and my notes on that text set out below).
The interim telephone apprehended violence order made on 13 April 2006 stopped the father going within 100 metres of the mother’s home. It was made returnable at the Local Court at Newcastle on 18 April 2006.
I am unsure as to what happened at court on 18 April 2006 but the proceedings seemed to have been adjourned to 25 July 2006. On that day a further interim order was made which included the child as one of the protected persons (the April order had not). The order stopped the father approaching the mother or the child unless permitted under family law orders.
On 19 April 2006 Dr T, the child’s paediatrician, wrote a report to the child’s general practitioner about her encopresis.
On 5 June 2006 the father consented to an order by this court that allowed the mother to obtain from Relationships Australia and Interrelate letters in relation to the courses that he did.
In around June 2006 the father was evicted from his premises at C.
On 16 June 2006 the father decided to spend time with the child. He went to the school and took the child out of school. He then took the child to be examined by a general practitioner. The father then went to the Family Court to file a contravention application however he was too late and the child and the father then caught a ferry. It seems common ground that this occasion was not an occasion when the father would otherwise have had time with the child under the orders which the mother was saying at that time were suspended in any event.
After collecting the child from school on 16 June 2006 the father returned the child to school Monday immediately following that weekend.
On 27 June 2006 Mullane & Lindsay wrote a letter on behalf of the child’s school saying that the school did not want any order made that would enable contact changeover between the parents to take place in, at or near the school.
On 6 July 2006 the father filed an application for final orders which is the application that he proceeds before me. He also filed an application in a case seeking compensatory time with the child.
On 24 July 2006 Dr T provided a further report in relation to the child’s encopresis.
The proceedings at the Local Court at Newcastle in relation to the AVO on 25 July 2006 was adjourned to 16 August 2006 and interim orders were made.
The mother on 15 August 2006 filed a response to an application in a case seeking a suspension of the child’s time with her father. The child at this point had not spent any time with her father apart from the weekend in June since 13 April 2006.
On 15 August 2006 Judicial Registrar Johnston ordered an Independent Children's Lawyer be appointed and noted that the father proposed to file a contravention application. The Judicial Registrar gave a return date for that application (notwithstanding the fact that it had not yet been filed), being the first available date for hearing which was 23 August 2006. The father was not satisfied with that return date and filed a application to review the Judicial Registrar’s decision about the date that had been set for hearing.
The apprehended violence order proceedings came before the Local Court at Newcastle on 16 August 2006. I am not clear as to what happened on that day but I infer that the apprehended violence orders were continued against the father.
On 23 August 2006 Mullane J dealt with the father’s application to review the Judicial Registrar’s order setting down his contravention application. The Court dismissed the father’s application. The father was ordered to pay $300 contribution towards the mother’s costs.
On 29 August 2006 the father filed a further contravention application which was removed from the active pending cases list on 11 September 2006 and on that date the proceedings were adjourned to 18 September 2007 in anticipation of the appointment of a single expert and the allocation of both parties’ parenting applications to the Children’s Cases Program.
On 18 September 2006 the proceedings were adjourned to 2 November 2006 for the first day of the Children’s Cases Program before Ryan J.
On 2 November 2006 the court appointed Dr M to prepare a report and the matter was adjourned to 15 December 2006.
Dr M did an interview with the mother and the child on 21 November 2006. He did an interview with the father on 5 December 2006. That interview lasted about one hour. Dr M did not see the child with her father.
Dr M’s report is dated 6 December 2006 and was released on 12 December.
There is a further report from Dr T, paediatrician, in relation to the child’s encopresis dated 12 December 2006.
The matter came back before Ryan J on 15 December 2006 and was adjourned to 21 December 2006 (with the mother and the Independent Children's Lawyer’s costs being reserved on that day).
On 21 December 2006 Ryan J made orders in the following terms:
PENDING FURTHER ORDER
1.That the applicant father shall spend time with [the child] as follows:
(a)on 22 December 2006 from 10.00 am until 2.00 pm; and
(b)on 25 December 2006 9.00 am until 1.00 pm.
2.That upon the father’s daughters arrival from South Australia in the first four days of their arrival for two x 1 day periods from 10.00 am until 6.00 pm on days nominated by [the mother].
3.Within 3 days of the second day referred to in the above order, for two consecutive days including overnight.
4.The pattern referred to in the above two orders to continue for each week that the father’s daughters are in Newcastle from Adelaide until the resumption of school.
5.Upon the resumption of school and commencing the first weekend after school has resumed, from 1.00 pm Saturday until 6.00 pm Sunday and each alternate weekend thereafter.
6.Changeover shall take place at [the local] McDonalds.
7.In the event the father is more than 30 minutes late to collect [the child], the order enabling him to spend time with her on that occasion is suspended.
8.When spending time with [the child] overnight, the father shall ensure he fully supervises her and that she spends the night at his home at [H].
9.I give liberty to all parties and the Independent Children’s Lawyer to apply on 48 hours notice.
10.This matter is listed for further hearing before me on 27 February 2007 at 9.30 am. On this occasion the court will consider:
(a)a brief report from both parties as to the operation of the above orders;
(b)whether weekends should be extended so that they commence on Friday afternoons;
(c)the arrangements for [the child] to spend time with her father during the Easter 2007 school holidays;
(d)whether the changeover venue should continue at [the local McDonalds], Ms [R’s] home or the school.
THE COURT NOTES Ms [R] will attend changeover on the mother’s behalf and her mobile phone number is […].
11.In the event the father is running late to collect [the child] he shall contact Ms [R] on the above telephone number and advise her accordingly. Unless given specific permission by Ms [R] to do so, the father shall not use that telephone number for any other purpose.
12.The mother shall give the father written notice, which includes notice by SMS of the dates upon which he will spend time with [the child] during the forthcoming holidays in accordance with the above orders. This notice is to be given no later than 48 hours prior to [the father’s] daughters arrival from South Australia.
13.That the parties be restrained and an injunction is hereby granted restraining each of them from denigrating the other in the presence of or within the hearing of the child or allowing any other person so to do.
THE COURT NOTES [the mother’s] mobile telephone number is […].
14.As soon as the father obtains a new mobile telephone he shall give the mother written notice of its number. Written notice shall be by ordinary pre-paid post and by SMS message to [the mother’s] mobile phone.
15.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Pursuant to these orders the father spent time with the child on 22 December 2006. I will comment later on how the father’s behaviour at the end of this time was inappropriate, lacking in insight and damaging for the child.
The father spent time with the child on Christmas Day 2006, but was late returning her.
The matter came back before Ryan J on 27 February 2007. The father behaved in a disruptive way in Ryan J’s court room. The matter was listed for one half day to complete the hearing at 2.15pm on 15 March 2007.
In anticipation for that hearing Her Honour read, amongst other things, a document prepared by the father dated 22 February 2007.
The matter came before Ryan J on 15 March 2007 and certain events occurred which are dealt with in more detail later. Ryan J, on her own motion, disqualified herself from further hearing the matter and asked that the matter be given new trial dates as a matter of urgency.
The matter was listed as a reserve matter before Rose J on 25 June 2007. The matter was not able to be reached because the matter that had been fixed for hearing ahead of it did not settle.
The matter was heard by me on 26 – 29 November 2007.

SPECIFIC EVENTS

A number of events, which have cumulative weight, point to the father’s inability to control abusive outbursts. They include:-

1997 assaults

As set out elsewhere, the father’s record shows that he was convicted on two occasions of assault in 1997 (charge dates 29.1.97 and 16.4.97). It was put to the father in cross examination that he had climbed up a drain pipe, gone over a balcony and assaulted Ms A. The father denied he climbed up a drain pipe but agreed he jumped over a front balcony.
The following exchange took place between the father and myself:
“His Honour: Mr [Rush], your criminal record shows you were convicted of assault in May 1997? ... yes sir I remember that.
Do you remember it?.... yes.
Who was it you were alleged to have assaulted? ... it was the other mother. I pulled her hair.
Right, ok.
Witness: pulled her hair, she took three daughters to South Australia and the Federal Police arrested her, sir.”
A little later it was put to the father in cross examination that he had chased Ms A and grabbed hold of her by the hair and dragged her along the ground by the hair. The father’s response was:
“Rubbish. I tell you what happened. I went up, I was stressed, and I went up to […] Pub.... I had some beers.... I was banging on the door and going ‘I love you [Ms A]... I don’t think I pulled her hair actually.”
(This isn’t the entire text of what the father said but the essential elements of it for the purposes of my discussion)
Then there was the following exchange:
“His Honour: I am a bit confused now Mr [Rush]. You originally told me you pulled her hair, now you say you can’t remember? .... yes I know because they charged me with it.
Right, they charged you with pulling her hair? ... yes that’s right, if you read the transcript.
And did you plead guilty to that or did you defend it? ... I can’t recall sir. I done a lot in [that local area] and I – like I said, I had four AVOs on all the women, I went through all that for that period.
No no, I’m just talking about this assault charge? ... I don’t – I might have pleaded guilty, sir, I can’t remember.
You might have pleaded guilty? ... I can’t recall sir.”
During the hearing I misread the father’s criminal record. It was clear that he was convicted of two charges of assault on 23 May 1997, one which has a charge date of 29 January 1997, the other which has a charge date of 16 April 1997. It is clear that one of those assaults was on Ms A and it is probable that the other one was as well.

11 November 2003

Exhibit I is an incident report written by Professor F to the father on 11 November 2003. It informed the father that Mrs I had made a written complaint about an incident that had happened at an athletics carnival for disabled athletics. Mrs I was hit by a full bottle of water thrown by the father. Mrs I says in her email that she experienced a fair amount of discomfort from the bruising that he had caused. She reported that the father then swore and carried on (Mrs I concedes that she also did let a few fly which she was not proud). She then took herself home. Before she did she was approached by two parents unimpressed by the father’s behaviour and those parents encouraged Ms I to make a formal complaint about his behaviour. Ms I was of the opinion that the father had showed a complete lack of respect for any sort of child safety “to throw an object with that much force towards a group of children like that is incredibly irresponsible and hot headed. I am not sure where he intended the water bottle to go, but his actions reflected poorly on the rest of us that volunteered (in the eyes of the parents who witnesses it at least)”. She records that the father had apologised but that that had not excused his actions. Ms I also records in that note “I did not see what happened but evidently an apple core was thrown and it hit [the father]”. Mrs I’s complaint uses balanced and reasonable language and I accept that it is accurate.

The father in his oral evidence said that the water bottle was empty (I do not accept that given what is in the statement of Ms I). The father initially said on a couple of occasions he was hit with an apple core and changed that evidence to say “it was really half an apple”. However, the father in cross examination agreed that he “saw red for a moment” at the time he threw the bottle.
Ms I at the time was standing next to Ms N (who was quite pregnant at the time). Ms I was glad that the water bottle hit her as opposed to Ms N or any of the students.
The father’s attitude to this incident when being asked questions about it showed little remorse. His position seemed to be that it was an understandable whilst unfortunate reaction to being hit with an apple core.
I accept that Ms I in her email of 7 November 2003 accurately has set out what happened. I find that on 7 November 2003 the father lost his temper, hurled a bottle filled of water at a group of people and used foul language.

January 2005

The father insisted that he had told the mother one month before he went to South Australia that he intended to do so. The mother denied that. I accept the mother’s version.
The father says that on the way he had a back tyre blow out which delayed him a couple of days. The child told Dr M that the car spun off the road because her sister P had put too much air in the tyres. Although it was not explored with the father, that comment by the child might indicate that P in some way was blamed by the father for the back tyre blow out. The father said things happen when you travel 5,000 kilometres. The four girls were in the motor vehicle when the back tyre blew out. The more important aspect of what happened after the father’s motor vehicle became disabled was that he made no endeavour at all to advise the mother that he was going to be significantly late in redelivering the child to her. It was not until they had arrived back in the Newcastle area very late at night, two days late, that the father thought to have the child telephone her mother.

26 July 2005

The father gave oral evidence about an occasion when he was doing practical teaching at CN College and gave his version of an altercation with another teacher, Ms WE. The father when talking about this incident disparagly referred to Ms WE as a teacher who was still on stress leave as he understood it.
A complaint was made about the father’s behaviour. Exhibit H is a communication from Ms X from the Professional Experience Unit, School of Education, University of Newcastle, informing the father on 26 July 2005 that the principal of CN College had requested him to be withdrawn from the school immediately.

26 October 2005

Exhibit G is a formal warning by Professor F to the father dated 26 October 2005. It states that a staff member at the School of Education had complained to him that the father had been verbally abusive towards her and shouted at her when she had spoken to him concerning a complaint from another student about his behaviour in a tutorial. The Professor told the father that the staff member had advised him that she had found his behaviour intimidatary and confronting.
Exhibit K is an email from Ms V to Professor F. It encloses a complaint made against the father by a student by the name of Ms EA. The complaint was that the father showed up late for a tutorial and insisted that his teaching exercise proceed immediately. Ms EA indicated she was offended by the father’s “male chauvinism” and complained that at the end of his presentation he stated that he was leaving and had more important things to do than ‘this shitty subject”. In response to that complaint, Ms V requested that a Mr MS sit in with the group to observe the father’s behaviour. The father was late, went to the wrong group and disrupted that group. He was referred by Mr MS to see Ms V who was the program coordinator. She records, in part, the following:
“I wish to complain about a student ([the father]) who has just abused me in the doorway of my office....
He was upset because he had received a letter from the university asking him to explain why he should continue in his studies. (I instantly understood that he was under pressure). He asked what he had ‘done wrong’ in 1006 and why he needed to see me. I calmly and politely explained that he needed to act in a more professional manner and could be at times a little intimidating. He stated that this was just my opinion. I explained that a student had also expressed concerns and suggested we could discuss some ways.....he cut me off and said that he didn’t have time to do this because he had to fight to stay at uni and left.
Two hours later he returned to verbally abuse me for lying about a student complaining about him (I had not) as he had confronted all of the students and ‘they all denied it’. [The father] has got no right to behave this way and intimidate others – both peers and tutors.
He therefore assumed that I was lying and proceeded to abuse me. I suggested that I was happy to discuss it with him when he calmed down. He told me not to be condescending and continued to yell. He was screaming at me and yes I was intimidated and perhaps a little scared so I suggested he forward his complaint to the ‘Head of School’ or his program coordinator as I was not going to discuss it while he was yelling.
He stormed off to the office where he continued to badmouth me to the staff. I know this because they came to see if I was ok.”
The father confirmed in cross examination that he still today believed that Ms V was condescending during this exchange.
The father agreed that he had an acerbic tongue. He thought the incident was a bit of a “beat up” and the father commented to counsel for the mother words to the effect “a bit like yourself; sensationalising everything”.
The father was suspended from university for three semesters including the whole of 2006. The father put this down to having missed a deadline in relation to challenging the suspension. The father minimised the reason why he was suspended in the first place.
The father on more than one occasion when referring to complaints about this behaviour during his university course indicated that he had been moving house to the early hours of the morning and his weariness had contributed to his uncontrolled angry outburst.

13 April 2006

Exhibit “J” sets out the police facts in relation to what the police say happened on 13 April 2006. Those facts are in the following terms:
“About 3.00pm Thursday 13 April 2006, police attended [Y Street] in relation to a domestic violence complaint. They spoke to a female at the location.
As police were about to get into their vehicle parked opposite [Y Street] they were approached by the accused [father]. The accused identified himself to police.
He immediately became aggressive and abusive. He was yelling and waving his arms around. He made threats towards the victim, [the mother]. He stood face to face with Constable [H] he was centimetres away from her and yelling. He was told to step back several times before he was pushed away by her.
Following LEPRA protocols the accused was given a move on direction. He failed to comply he was informed a second time that failure to comply may be an offence. He turned and walked away.
He walked past is [sic] vehicle parked a few metres away. Police patrolled and located the accused around the corner. Police believed he intended on returning to [Y Street]. He was approached by police and told he was under arrest for the purpose of obtaining and serving a TIO.
While waiting for a caged police vehicle the accused continued to be abusive. He said to Constable [H] ‘I hope someone kills you so your family suffers”. Constable [H] said, “I don’t appreciate your comments and I feel they are threats.” The accused said, “Well then I hope someone in your family dies or is killed so you have to suffer.”
Constable [H] felt intimidated by these comments and the accused appeared highly agitated when he said them. When a caged vehicle arrived the accused was searched before being placed in the rear. In his right front pocket of his pants police located a small black pocket knife. A blade was located on both sides of the knife. This was confiscated.
The accused was conveyed to Newcastle Police Station. He was yelling out the rear of the vehicle the whole time.
On being entered into custody the accused remained hostile. Each time Constable [H] approached the accused he abused her. When attempting to serve a TIO on the accused he said to her, “You can go get fucked. I can do what I want”.
The accused is now charged with the matters before the court.”
Annexure “C” to the mother’s affidavit of 15 August 2006 is the apprehended violence telephone interim order of 13 April 2006. The police record in the facts that (the bold type are my comments):
“The police were told by the mother the father had come to her house at about 2.30pm banging on the door demanding to see their six year old daughter. The mother told the father to leave but the father refused. She called the police. When a neighbour came out he left. When the police were leaving the father flagged them down. He said to police ‘I am going to get them…your laws mean nothing to me…”. There had been previous violence and an AVO years ago (whilst this is a correct statement, it did not apply to the mother and father in these proceedings. There were previous assault charges, AVOs and breach of AVO in relation to the father and Ms A). The defendant was very agitated and hostile towards the mother in front of the police. The mother has fears of further violence. The police request an interim order to protect the mother. The mother intends to stay away from her residence tonight. The father was taken into custody. It was asserted that he had prior offences for assaulting the PP as well as for breaching an AVO as well as other serious indictable matters (As mentioned above, the father has never been convicted of assaulting the mother. Whilst it is true the father had been convicted of breaching AVO that was an AVO relating to Ms A).
The father gave a different version as to what happened on 13 April 2006. At pages 3 and 4 of his affidavit of 26 June 2006 the father gives the following version (the bold type is that of the father):
“(1.8) On Thursday, 13/04/06 I attended [S] Primary School in the suburb of […], “Approx between 2:45 and 3:00pm it was the last day” of school, I went inside the school and conversed with [the child’s] teacher Miss [WN] at the front door of [the child’s] classroom. She said words to the effect ‘[the child] did not attend school today”. Response: I then stated words to the effect,-tell me something I don’t know and wouldn’t expect”. [The mother] is selfish and vexatious and she kept [the child] away from school many TIMES IN SEMESTER 1 so she can cheat me and my other 3 daughters of our access.” I then said words to the effect “have you got anything of [the child’s]. Mrs [WN] replied I have [the child’s] completed Easter egg project, you can take that with you if you like and hence I decided to do so! I left the primary school and then proceeded to [Y Street] – [the mother] and [the child’s] residence which equated to 1 to 2km drive?
(1.9) I left her school I conveyed by car, [the child’s] 1^st class School Project, (2 Easter eggs and I chicken made out of white paper mache in a bastke! I then parked my car approximately 400 metres up the road on the opposite side of the road, so I could have a clear view of proceedings that could occur at the premises. I had done this because I had received a letter from Burgess Foat making false alligations [sic] referring to and insinuating that my access had been revoked, as I had not completed anger management and after separation counselling. I realised that [the mother] was up to her old tricks.
(2.0) I walked to [the mother] and [the child’s] house and proceeded down the driveway to the front of the house and then knocked on the front door, then stated words to the effect [the child] I have your Easter egg project from school, for you my little baby I’ve brought […] your new puppy, to show you how big he’s becoming! [The mother] then replied, [Mr Rush] “Go away from my home” [The mother] answered verb ally, from behind the door”. I then stated words to the effect:
“[Child] are you alright?” NO ANSWER was given by [the child]!
I then repeated the same words again!
I then replied: words to the effect “I’ll go to the police”
I was not there one minute overall! And I left immediately!
I and [the dog] have not heard from or seen [the child] since that date!
As I had [the child’s] dog […] to show her also, and accepting that [the child] was not at school today, and the disappointment of [the child] not being at school at my access times, has transpired 10 times over the semester one. This pattern of [the child’s] abstinences from school increased immediately after I informed [the mother] within the rules (1 months notice) that I would be taking [the child] to [South Australia] in the second half of the autumn school holidays 2006.”
The father attached to his material dated 22 February 2007 (annexure D) a letter from Mr B, the principal of S Primary School dated 12 May 2006. In that letter Mr B says:
“This is to certify that [the father] visited [S] Primary School, [address] on Thursday 13 April 2006. [The father] visited his daughter’s classroom; year 1; where he spoke to the teacher, Mrs [WN]. Mrs [WN] informed [the father] that his daughter [the child] was absent from school on the day. [The father] had a small pup with him which he showed a number of the children at the classroom door. Following this Mrs [WN] gave [the father] a small cardboard basket of Easter eggs, which he said he would give [the child]. [The father] visited the office following speaking with Mrs [WN] and requested that the school newsletter be sent to his home address so that he can be better informed of what is happening at [S Primary School]. I witnessed [the father] speaking with Mrs [WN] and the children as well as his visit to the school office. At all times [the father] appeared calm and was polite to the people he spoke with.
After leaving the office [the father] left the school grounds.”
This statement by Mr B confirms at least that at some point on Thursday 13 April the father was calm and also confirms that the father left the school with a basket of Easter eggs. The father asserts that during his encounter with the police those eggs were crushed.
The father asserted during the trial that the incident on 13 April 2006 would not have happened had he not been the subject of police harassment. I do not accept that that is so. Thursday 13 April 2006 was the commencement of Term 1 school holidays. Under the existing orders the father was not due to have the child at that time. He was to have her during the second half of the school holidays. The father’s attendance at the mother’s home therefore was something that was neither anticipated nor welcomed by her.
The father asserted that he often went inside the mother’s house. The mother denied that that was true. The mother said there had only been two occasions when she had let the father into her house. One being at Christmas where his other daughters from Adelaide were over and they had been invited into the home by the child and the father followed in and she was not going to make a scene on Christmas Day. She said the other occasions were when she invited the father to bring the child by on a Monday morning before she went to school so that she could comb her hair or some other excuse that she would use so that she could check on the child’s clothing and general state of cleanliness.
I accept the mother’s evidence that her allowing the father into her house was an exceptional event.
The father asserted it was he who called the police and not the mother. I do not accept that that was so. The father would have no reason to ring the police given that he had no right to be at the mother’s property at that time and that the orders, if they were not suspended, did not provide for the child to be with him at this time. It is an agreed fact that when asked to move on by the police the father walked towards his car then passed it and walked on towards the home of the mother. The father said he was going to a telephone box. I conclude that on balance it was reasonable for the police to assume that he was heading back in the mother’s direction. The description of the father’s behaviour by the police on 13 April 2006 is very consistent with his behaviour on other occasions as described elsewhere in these reasons. It is behaviour that stems from the father’s inability to control his anger and act in an appropriate way when he feels frustrated. I have no doubt that the father felt some frustration on that day as he had gone to the school expecting to see his daughter at assembly (even though there was no order that actually allowed him to do that).
The father also alleged on a number of occasions during the hearing that his problems with police stemmed from a conspiracy or collusion between the mother’s sister and the police. The mother’s sister was a police officer about ten years ago. There is nothing in the evidence or documents which would corroborate in any way this assertion by the father and I find that allegation to be baseless.

16 June 2006

The father talked of an “annulment” that he had obtained in relation to his AVO. No document was tendered and I took what he said to mean that he got the AVO amended in some way so that he was able to pick the child up from school on 16 June 2006.
The school principal indicated that they did check out the fact that the order no longer restrained the father from coming to the school and that the child was taken from assembly and given to her father. The school principal said that the child’s teacher Mrs HE tried to ring the mother unsuccessfully (she was in fact in the car park awaiting the child). After Mrs HE gave the child to her father her father left the school in a waiting taxi. The mother came into the school 5 or 10 minutes later very distressed and upset.

25 October 2006

Dr T gave evidence that his secretary had received an abusive phone call from the father on Thursday 25 October 2006. He indicated the father had been rude to the secretary and the secretary had felt threatened. As a result of this contact Dr T took the decision not to engage the father in any discussion about the child.
The following exchange took place when the father was questioning Dr T:
His Honour: Doctor, did your secretary make a record of what she said the conversation was?---She just said that – that, in her words, “He was very abusive and quite upsetting. In the end I had to hang up as he wouldn’t let me get a word in. I was going to give him the complaints number. I took note of his number and didn’t answer the next three times. Then he left three voicemail messages.”
Thank you.
[The father]: I think that was deserved, don’t you sir? You didn’t know me. I didn’t know you, but I thought I’d defame you like you were trying to defame me. Is that a fair assumption? That’s fair in love and war. It’s all fair – everything is fair in love and war, and that’s as far as I have to go because this is – it’s not true, is it? You’ve got no proof of any of this. You’ve – it’s something that could ruin me and you’re just willing to put down – it’s – yes, it’s obvious and it’s because of this ---“
At this point I asked the father to formulate his next question to Dr T. The above statement by the father is an example of his confrontational style.

22 December 2006

On 22 December 2006, the first occasion the child has seen the father since June 2006, Ms R, another sister of the mother, attended to receive the child back at McDonalds. She describes in her affidavit how when the child arrived with the father she had a rat that the father had given the child to take back to the mother’s place with her. The father said he thought about telling the child to hide it in her bag and take it home and by the time the rat got home the mother would be stuck with accepting it and having to care for it. The father did not seem to have followed through with that thought because it is clear from Ms R’s evidence that at this changeover she became aware that the child had a rat with her that the father had brought the child and had told the child to take home. Ms R rang the mother and said:
“[The father] has brought [the child] a rat and told her to bring it home. Is it ok?”

The mother replied:
“No, the rat is not to live at my house.”
Ms R says that the child became upset because her father had told her to keep it and to take it home. When asked questions about this the father showed no insight as to the extremely difficult situation that he had placed the child in by giving her the rat and instructing her to take it back to her mother’s house. He must have known, given what was going on between the parties, that this behaviour on the first contact occasion after Ryan J had made orders was likely to create conflict and was likely to place the child in an impossible position. He showed little insight that this was the consequence of what he had done. There was an altercation between Ms R and the father at McDonalds on this first contact changeover after Ryan J’s December order. This was because Ms R when asked by the father whether or not she would vary Ryan J’s orders so that she delivered the child on Christmas Day to him and pick the child up from his house. She replied “I am an agent only and will go by the black and white that is written by the court, so I won’t make any changes”. I find that that response angered and frustrated the father. I find that the father, in the child’s presence, raised his voice and said things about taking the case to the High Court and the Federal Court until he got what he wanted. The father was continuing to raise his voice and talk about “the system”.
The child’s aunty invited her to say goodbye to her father. As her father lent down to kiss her goodbye he was still continuing with raised voice to talk about “the system”. The child then took her aunty’s hand and they went to cross the car park. The father then grabbed the child’s other hand and was dragging her back for another kiss. The child’s aunty released her hand “as she was in a tug-of-war type of position”. After the child had been placed in the car by her aunty and they were then first in line to turn at the traffic lights, the father came running up to the car. I find that Ms R was scared when the father behaved in that manner. All he did however was pass lollies through the window to the child.
The father’s version was slightly different to the aunty’s but I accept that what the aunty says is accurate. The father had little insight as to how any of this could have had an adverse impact on the child.

25 December 2006

The father conceded that he was late returning the child and kept Mrs R waiting on Christmas Day without contacting her or letting her know that he was running late. This is despite the fact that Ryan J four days before noted when making the orders what Ms R’s telephone number was and had specifically made an order that if the father was running late he was to telephone Ms R on that telephone number and advise her accordingly. He seemed totally unapologetic. The father said that Santa Claus came to the public event at 1pm (which was the time he was due to have the child back). He had to drag her away and intimated that it was the mother who would not allow the child to see Santa Claus.
The evidence that was given by Ms R about what happened on Christmas Day 2006 was not challenged in any way by the father. Pursuant to the orders made by Ryan J, the child was to be with the father for four hours on Christmas Day. There had been complaints about the father’s lateness previously and one of the orders Ryan J made was that in the event the father was more than 30 minutes late to collect the child then the order enabling him to spend time with the child was to be suspended.

13 January 2007

On 13 January 2007 Ms R gives unchallenged evidence that the father was uncertain as to where the pickup point was going to be (notwithstanding the clear order of Ryan J).

16 January 2007

On 16 January 2007 the father did not choose himself to deliver the child back to the changeover point. He left the child with E (then aged 15, who was visiting from South Australia) to return the child. E took the wrong bus and got lost. She contacted Mrs R who then drove to find where they were.

17 January 2007

In his affidavit the father says that E and P came to visit with him on 11 January 2007. He hadn’t seen them for a considerable period. At paragraph 1.3 he says:
“The following Wednesday (17.1.07) I was allocated work on short notice to attend [F] to undertake four to five days work as a rigger on a new industrial site.”
The father went away to F to work on 17 January 2007. The father left E and P alone with Mr TY who has an extensive criminal record involving the cultivation and possession of cannabis; malicious destruction of property; behaving in an offensive manner; resisting police officers; multiple accounts for common assault for which he has been in prison; use of offensive language in public; possessing house breaking implements; break, enter and steal; stealing; and offensive language.
There was confusion in the father’s evidence about how long it was that he intended to say at F for work. On a number of occasions in his oral evidence he asserted that it was for two days. This evidence flies in the face of the statement made by the father in his affidavit filed 27 February 2007 (set out above). When confronted with this evidence in cross examination, the father said that he had only ever intended being away two days then to come back from F and then perhaps he would go back again. This shifting in the evidence of the father is one of a number of examples where the father changed his position when confronted with contradictory evidence.
The mother says in her affidavit sworn 12 February 2007 that Ms A had called her on Thursday 18 January 2007 and told her words to the effect:
“[The father] has left them alone in a flat with some man they don’t know while he is working in [F]. This man is drunk and has been following [E] around. He went into the bedroom while she was getting changed. There is no food and he has left them no money. [E] said that she had some money and so they got hot chips for tea. Apparently this man came home drunk. [E] is really scared of him. Don’t send [the child] for her visit with him as he’s in [F]. I am going to get [E] and [P] out of there. I won’t be allowing the girls to come over and stay with him anymore.”
Ms A then made arrangements for the girls to be picked up.
Exhibit E is a COPS entry which notes that the police had received information that E and P were residing at their father’s home and saying that there was no food in the unit and that their father had been leaving them alone whilst he had gone to work. The police record was made so that any subsequent complaint made by the father could be dealt with by the police on the basis that the children were now in a place where they were not at risk.
The father had not seen E and P for the last couple of school holidays.

Proceedings before Ryan J

It is clear that Justice Ryan attempted to encourage the parties to adopt a less adversarial approach to the hearing of this matter after Dr M provided his report. She made a set of orders which held out some hope to resolve the matter. These arrangements broke down after three occasions.
Initially the father was content with the way Justice Ryan dealt with the matter.
The matter came before Ryan J on 2 November 2006 for the first day of a Less Adversarial Trial to which the parties had consented.
Her Honour identified issues, made a number of directions and ordered an expert report. One of the issues identified was “whether either parent has a personality disorder which impinges upon their capacity to meet [the child’s] intellectual and emotional needs”. The order for Dr M to prepare a report made by Ryan J on 2 November 2006 included an order that Dr M comment upon “the mental state of each parent in so far as it relates to parenting issues”.
Dr M did not specifically deal with that issue in his report. He was asked questions about it in cross examination (referred to elsewhere in these reasons).
The matter came back before Ryan J on 21 December 2006. The transcript of that event is not before me. Her Honour made orders on 21 December 2006 (referred to elsewhere in these reasons).
The orders made by Justice Ryan broke down after the mother became aware that the father had gone to F leaving two of his elder daughters with Mr TY. Also, the father’s behaviour in giving the child a rat on 22 December 2006 and being late on 25 December 2006 had not helped ease the mother’s concerns.
The mother unilaterally stopped complying with Justice Ryan’s orders. When the matter came before Justice Ryan on 27 February 2007 it was clear that the interim arrangements that she had put in place needed to be relooked at in light of what the father had done on 17 January 2007.
Ryan J in her judgment dated 15 March 2007 (Exhibit L) states that on 27 February 2007 it became clear that the orders that she had made on 21 December 2006 had broken down. Her Honour says:-
“My attempts to try and understand what had occurred were thwarted by [the father’s] disruptive behaviour. This was not the first time he had seriously disrupted the hearings. In the end, I determined I needed to give this matter the first available trial date.”
On 27 February 2007 her Honour made orders to prepare the matter for the final stage of the less adversarial trial. The parties were required to file further documents.
The father filed a number of documents. In one of them the father commences with the following preamble:-
“The handling of this case [Rush] versus [McFadzean] in the children’s cases court Newcastle in front of Justice Ryan has been handled abhorrently, clearly through bias, discrimination and predjust [sic] towards the father ([Mr Rush]) and his connection and quality time allocated with his daughter [the child].”
Her Honour in her judgment sets out part of what happened before her on 15 March 2007. Without setting out the whole of the transcript quoted by Her Honour, reference to part of it gives the flavour:
“Mr [Rush]: I am going to report you sir. This is ridiculous. (it seems from the transcript quoted by Ryan J that the father more than once referred to Her Honour as “sir”). This is out of control. What, I’ll have you disbarred, this is wrong. You’ve just – you haven’t taken my evidence, you haven’t taken me seriously. You let her break the law, you let Foat (the mother’s solicitor) lie about me, you don’t care about anything. You’re just trying to punish me. I want my daughter back, please, for God’s sake. This is some kind of joke.”
Her Honour recorded that for most of the appearance before her on 15 March 2007 the father was speaking loudly and using an aggressive tone. She recorded on previous occasions that she had informed the father of the importance of allowing others to speak, not shouting or engaging in personal invective. She concluded that the father had not heard or remembered these instructions. She adjourned the court on 15 March without concluding what she had set out to do. She comments in her reasons dated 15 March 2007:
“Based on past experiences in this matter it seems my choices were to surrender any resemblance of order in the proceedings or adjourn. As I was leaving I could hear [the father] shouting.”
The father behaved in a total inappropriate way in front of Justice Ryan on 15 March 2007. He confirms in oral evidence that he had told her amongst other things that she was a “incompetent bigot”.
The father believed the proceedings before Ryan J were more adversarial not less adversarial. His view was that the body language and the atmosphere in the court room was appalling.
Although the father did not seek any formal order that Her Honour disqualify herself, Her Honour concluded from comments made in documents filed by the father that he had implicitly made such an application. Her Honour considered the issue in chambers without input from the parties or the Independent Children's Lawyer. Her Honour applied the test set out in Johnston v Johnston No. 2 (2000) FLC 93-041 to be applied in determining apprehended bias.
Although Her Honour had difficulty with the notion that a fictional observer familiar with the history of the matter would regard her as biased against the father, she concluded that the father strongly believed that she was. Her Honour opined that that is why the father behaved as he did in her court room. Her Honour concluded that the only way to complete the hearing process would be to have the father removed from her court room. Her Honour believed that as he was an unrepresented person that would result in a one sided and to the father an unfair process. Her Honour was also concerned about the impact upon the mother should she fail before Her Honour and whether or not the mother would feel that she has been denied a fair hearing if the father was permitted to continue to interrupt the hearing and abuse it and the other participants. Her Honour opined that in those circumstances the mother may be concerned that ultimately the father cowed the court. Her Honour, not lightly, made a decision to disqualify herself. She also requested the list clerk to advise the parties as a matter of urgency of new trial dates.
The new trial date that the parties were given was not a special fixture but rather the matter was listed as a reserved matter on 25 June 2007. As set out next, the matter was not able to be reached on that day and whilst that is not an unusual event given the heavy demands placed upon the current judicial resources, it did nothing to improve the father’s frustration with the “system”.

25 June 2007

The father has been convicted of assaulting (involving a head butt) Mr W, a security officer of the Family Court, whilst waiting for his case to be called by Rose J in June 2007. The father has appealed that conviction to the District Court and the rehearing of that charge has not taken place. During the week before this hearing, the father had been sentenced by the Local Court to six months imprisonment for this offence.
When originally asked about it the father described himself during this incident as being “over acerbic” and “irrational”. He initially told me there had been a “clash of heads” but he denied head butting the Mr W.
Mr FG, solicitor, was called to give evidence as to his observations of the incident that took place in the Family Court building on 25 June 2007.
Tendered (exhibit S) is a statement that he made to the police. That statement was adopted by Mr FG in his oral evidence and reads as follows:-
“I [Mr FG], Solicitor with […], Solicitors of […] make the following statement in relation to my observations of an incident in the Family Court building on 25 June 2007:
1.I was at the Family Court on 25 June 2007 for a matter before the Federal Magistrates Court.
2.On level 4 of the Family Court building, while I was waiting for my matter to be called, I heard a man who I now know as [the father] yelling and swearing very loudly and offensively in the open waiting area between the court rooms.
3.[The father] in an abusive tirade walked into the Legal Aid Solicitors room/office and was yelling and swearing at whoever was in the office.
4.A Security Guard walked into the Legal Aid Solicitors room/office and upon hearing the abusive tirade from [the father] I stood approximately three metres from the door of the Legal Aid Solicitors room/office in the open area of the level 4 court rooms.
5.I asked [Mr HN], another solicitor, to stand with me as I was of the opinion that [the father] would behave in a hostile, if not violent manner, towards the Security Guard.
6.I had a completely clear view of [the father] and the Security Guard in the Legal Aid Solicitors room/office and nothing was impeding my view. [The father] and the Security Guard were standing approximately one metre to 1.5 metres inside the doorway of the Legal Aid Solicitors room/office.
7.[The father] and the Security Guard were standing extremely close to each other and I would estimate that their faces were no more than 10-15 centimetres apart. [The father] was yelling and swearing at the Security Officer and the Security Guard with a raised voice was asking [the father] to calm down and to leave the Legal Aid Solicitors room/office.
8.The verbal argument between the two continued for a few minutes and I observed [the father] head butt the Security Guard. The Security Guard from my observation was taller than [the father] and [the father’s] forehead in the head butt action clearly came into contact with the Security Guard’s nose.
9.Immediately after [the father] head butted the Security Guard [the father] left the Legal Aid Solicitors room/office, turned right and approached the lifts on level 4 of the Family Court building and I saw him enter the lift. During the whole time he was yelling and swearing obscenities.
10.A short time later the police arrived and I spoke to two police officers in relation to the incident.
11.I am accurately able to recall and record my observation of the incident as when I returned to my office on 25 June 2007 I made notes of what I had observed.”
Mr FG was cross examined by the father, particularly in relation to Mr FG’s observation that the father had head butted the security guard. Mr FG’s evidence was unshaken by that cross examination and I accept Mr FG’s evidence on the balance of probabilities applying the standard of Briginshaw. The father asked Mr FG about what he meant in paragraph 3 when he said the father was “yelling and swearing”. Mr FG said the father was using the word “fuck” and used the word “cunt” on about a dozen occasions. When the father challenged Mr FG about his recollection of the number of occasions, Mr FG indicated that he believed he was able to accurately estimate the number of occasions that the father had used the word “cunt”.
Mr FG did not agree with the father’s description of their being a “clash of heads”.
Mr W gave a statement to the police which was recorded in a notebook following the incident on 25 June 2007. Those notes were converted into a statement which he subsequently signed on 1 August 2007. That statement is Exhibit U. It reads in part:
“3.I am currently employed as a security officer at the Family Law Court in Bolton Street, Newcastle. I have been employed as a security officer at the Family Law Court for the past five (5) years.
4.On Monday the 25^th of June 2007 I was performing my duties at the Court. At this time I was in the Duty Solicitors room on floor 4 of the Court house. Legal Aid requested my presence as they were no longer representing a male person. I know as [the father]. Solicitor further told me that they had requested [the father] to leave their officer but was refusing. I’ve walked into the duty solicitor’s officer and saw [the father] swearing at 2 solicitors. I approached [the father] and said, “Come on they can’t help you its time to go”. [The father] continued to swear and abuse the solicitors. I said, “enough is enough. It’s time for you to leave. They can’t help you”. [The father] refused to leave. I’ve stood in between [the father] and a solicitor.
5.At this point [the father] has placed his face about 5cm away from my face. I said, “enough is enough its time to go”. [The father] said, “I haven’t seen my daughter for a long time”. I said, “I can’t help you with that”. I said, “lets leave the room”. [The father] has again pushed his face closer to my face. The next thing [the father] head butted me to the bridge of my nose. I said, “Don’t head butt me again”. [The father] again placed his face into my face and said, “Get out of my face”. I said, “Get out of my face”. [The father] continued to abuse and swear at the solicitors. A duty solicitor […] came from behind me and talked [the father] out of the room. [The father] then was called into the court room for his matter.
6.As a result of the assault I sustained soreness to my nose. No permanent disfigurement.
[Grammatical errors are contained in the initial document]

STATUTORY CONSIDERATIONS

In deciding what parenting orders to make for the child I must regard her best interests as my paramount consideration: s.60CA Family Law Act (“FLA”).
The parties each suggest proposals for the child which are starkly different.
The mother says she wants to trial a relocation of the child to Brisbane, which would be a permanent relocation if the child settled into her new life there. This would be accompanied by an exclusion of the child’s father from her life.
The father proposes a co-parenting model so that the child spends equal time with each parent in the Newcastle area, although he does not discount the possibility of himself and his studies moving to Queensland (although he did not detail how he would achieve this).
I must consider which of these two competing proposals (or some modification of either) is in the child’s best interests.

PRIMARY CONSIDERATIONS

In determining those best interests, I must primarily consider pursuant to s.60CC(2)FLA:
252.1.The benefit to the child of having a meaningful relationship with both her parents; and
252.2.The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

First primary consideration

I find that the child currently benefits from having a meaningful relationship with her mother. The child would benefit from having a meaningful relationship with her father were it not for the psychological harm and possible neglect that the child is exposed to as a result of episodic uncontrolled behaviour by the father.

Second primary consideration

There is a need in this case to protect the child from being subjected to psychological harm and abuse as a result of the behaviour of her father. I find that there is an unacceptable risk of the child being exposed to psychological harm and neglect in her father’s care. I reached that conclusion based upon the engrained pattern of behaviour demonstrated by the father as discussed throughout these reasons. It is the accumulation of incidents that becomes so weighty as to compel a conclusion that the child should not be with her father. When looking at the incidents that I have detailed, the father’s criminal record, assessing him over a four day period and Dr M’s evidence that it was possible the father had a personality disorder, I have also reached the conclusion that the father has significant problems with his personality which have not yet been fully diagnosed. It is in my view probable that the father has a personality disorder which, based on Dr M’s evidence, would require long term treatment in order for there to be any significant improvement.

ADDITIONAL CONSIDERATIONS

Expressed views and their weight

As set out above, the child commented to Dr M that “she enjoyed being with her father, though she does not like it when he argues with his friends”.
The mother was asked about what the child had said to Dr M about enjoying being with her father. The mother responded by saying the child wants to see him but she is also scared of him. The mother asserted that the child did not want to stay overnight with the father. The child knew that she would be with the other girls when she was there. The mother said that she was able to sense things about what the child wanted.
The father attempted to suggest to Dr M that the statement by the child “she does not like it when he argues with his friends” was in some way “coached” by the mother. Dr M repudiated that suggestion. The fact that the child would spontaneously mention that to Dr M, in my view, means that the child has witnessed situations where her father and his friends have argued and those arguments have either been intense or frequent or both.
Although the child expresses the view that she wants to see her father, I am of the opinion that she is also “caught in the middle”; caught both in the parental conflict and between the two sides of the personality that the father can display.
The child’s statement to Dr M is consistent with the doubled sided nature of the father’s personality. The father can be attentive and focussed on the child. He can show her a good time. He can also behave in an explosive manner in her presence. The child’s statement that she enjoys being with her father has to be weighed in that context.

Relationships

With mother

The child has a warm, close and loving relationship with her mother. The child is primarily attached to her mother.

With father

Dr M agreed that the father’s personality difficulties would be a problem for the child in the long term (although he was guarded as to how serious the problem would be).

Relationships between the parties

The mother conceded that there were some good times in the relationship (a nine day trip to Fiji) but since the separation and now I find that the relationship between the parents has totally broken down. It is unlikely in the foreseeable future that there could be any repair to that parental relationship.
There is usually something which the father called a “pageant” at the child’s school each Friday. Mr B, the school principal, explained that this was only an assembly. There was an issue about how many times the parties had happily been together at the assembly. The mother said that the parties were only at the assembly on one occasion together. The father put it at about 20 times. The father asked the school principal to give some objective evidence on this point. The father seemed surprised when Mr B said he had only seen the child’s parents together once at the assembly.
During the father’s cross examination of the mother I had the advantage of being able to observe the interaction between the two of them. There was underlying aggressiveness to the tone of the father’s questioning. It was clear to me that the mother was intimidated by that aggression.

Contact with the maternal grandmother and the father’s extended family

The father asked the mother why she had not allowed the child to remain in contact with his mother. The father on a number of occasions during the hearing highlighted his mother’s poor health and indicated that her current life expectancy was poor. The mother’s response in relation to the paternal grandmother was the father had used the assertion that his mother was dying in the litigation over a 15 year period. She said that during the period of time that the child had been with her father regularly on alternate weekends the father had rarely taken the child to see his mother. As a particular example she pointed to Christmas Day 2006. The father had the child for four hours on that day. Relatives who had motor vehicles were available for transportation. She made the point that the father chose not to organise a five minute motor vehicle trip for the child to see her grandmother on Christmas Day but rather took her to a community event.
The father also during cross examination explicitly criticised the mother for not facilitating the child having contact with her paternal aunty and her husband. Again the mother’s general response was that during the period the child had spent regular time with her father, the child had not regularly seen the paternal aunt and uncle whilst the child was with her father.

Willingness to encourage an attitude to relationship between child and other parent; attitude to the responsibilities of parenthood

Section 60CC(4) FLA requires the court to consider the extent to which each of a child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular (in the context of this case) how each parent has facilitated or failed to facilitate the other parent’s participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child.
Section 60CC(4A) FLA requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred.
As set out above, the mother stopped the child seeing her father as from 10 April 2006 until December 2006 and then again from end January 2007 until now.
In explaining why the mother took the action that she did in relation to the interpretation of the orders in April 2006, at paragraph 14 of her affidavit sworn 14 August 2006 the mother says the following:-
“After changes occurred in [the father’s] and [the child’s] behaviour; and a number of changes occurred which meant that the orders of November 2003 could not be implemented as originally intended, I consulted my present solicitor in March 2006. [The father] was shouting and swearing in my presence at my home when he called to collect clothing for [the child] after school before weekend contact. Sometimes he was glassy eyed and I could not understand what he was saying. [The child] was present when this was occurring; and she was soiling herself on return from contact, as well as calling out in her sleep and having nightmares.”
The mother confirmed in oral evidence that these were the types of changes that led her to seek further legal advice from Mr Foat. She said that the father had become really aggressive and was on some occasions when he came to her home “off his head”. She believed he was taking some type of drug, his eyes were bloodshot and his speech slurred. He could not on occasions remember what had happened five minutes before and would ring her up after he had taken the child away to reconfirm some direction the mother had given him before he had departed her home. He threw suitcases into the back of his car.
The child’s behaviour had changed, the soiling had got worse, the father would return soiled underwear in the suitcase unwashed. The child was having nightmares and the language coming from her mouth was language that the mother would not repeat. When pressed by me she said the child was saying things like “you fucking arsehole”.
In relation to the nightmares the mother said that after the child came back from her father it took her a couple of days to settle down emotionally and between April 2006 and December 2006 there had been no nightmares.
The mother said that one of the things that had changed was the passing of the maternal grandfather which moved the changeover point.
It was a common theme during the four days for the father to assert that he had benefit of Federal orders and that he was being cheated by them not being enforced.
The father has brought a number of contravention applications in the time that the child has been stopped by the mother in seeing him. None of those contravention applications have been successful. I do not have complete evidence before me as to why those applications were not successful and that issue has not been explored before me. Whether it was because the father’s applications were not in proper form; the mother established a reasonable excuse or the father behaved in such a way during the proceedings as to demonstrate the mother’s case in relation to the concerns about this behaviour, is something I can only speculate about.
There is some force in the argument that the mother and “the system” might have better handled this case. The mother, instead of unilaterally stopping the child’s time with the father, could have brought an urgent application to vary or clarify the existing situation under current orders.
I also have no doubt that “the system” has found it difficult to deal with the father. Not many parents head butt a security officer whilst waiting for their matter to be called. I find that the father has been belligerent and aggressive in asserting “his rights” and when the “system” has not provided expedition for his case in circumstances where he was not seeing the child, this has led to frustration. That has been frustration that the father’s underlying personality has not coped well with.
At one point during his cross examination of the mother the Independent Children's Lawyer pulled the mother up when she referred to the child as “my child”. The mother readily conceded when it was pointed out to her that she more appropriately should have used the expression “our child”. I have no doubt that in the mother’s mind she wishes to exclude the father from the child’s life and the use of the expression “my child” is a genuine reflection of her attitude towards the child continuing to have a relationship with her father.
It seems common ground that the mother did not make any inquiry of the father at any time soon after 20 May 2004 as to whether or not he had completed the two courses. The mother said that she made a telephone call to the director of mediation at the Newcastle Registry of the Family Court and in a conversation with her was told that a judge would look upon what the father had done at that course as being deemed to have completed that course. The issue in relation to the compliance with order 16 was not raised with the father until April 2006, that is almost two years after order 17 of 20 November 2003 became operative.
When the issue about the father not completing a course was raised, the father assumed that it was the anger management course that it was said he had not completed. He arranged to do an additional session in anger management.
The father said he did not agree with their ideology of the course provided by Interrelate. He agreed that the course was run by “ladies” and that he had been “obstreperous”.
In this case, I find that it is understandable that the mother’s ability to facilitate the father spending time with the child and participating in decision making about the child has been worn out over time by the volatility in the father’s behaviour.

Obligation to maintain the child

The father is not in paid employment. The father’s obligation to maintain the child has been met by a small mandatory deduction from his Centrelink benefit.

Effect of change

Separation from parent

The mother showed some insight as to the problems the child would have, if the mother’s application was successful, by not having her father in her life. When asked about a male role model the mother nominated Mr EN who is the partner of the mother’s sister Ms T McFadzean. It is the mother’s intention (subject to the child settling) for her to move to Brisbane. This is the area where her sister and Mr EN will be. She describes Mr EN as calm, gentle and a person who pays attention and who is an asset to have in the family. Mr EN had a previous relationship, there are three children of that relationship who he sees regularly. The mother did not call Mr EN or her sister T as witnesses in her case and it is not suggested that Mr EN would be a member of the mother’s household.
The father in response to a question from the Independent Children's Lawyer said that he did want the child to fulfil her full potential as a gymnast. By this answer, the father was conceding some advantage to the child in the mother’s proposal to move to Brisbane for a trial period which could become a permanent arrangement.
The mother’s proposal in relation to moving to Brisbane and testing whether or not the child is able to settle into the new environment (whilst maintaining the capacity to be able to return to Newcastle, if things did not work out for the child in Brisbane) seems to me to be a considered proposal that focuses on the child’s best interests.

Practical difficulty and expense of being with and in touch with other parent

If I choose the mother’s proposal which allows the move to Brisbane then it would be practically difficult and expensive for the child to spend regular face to face time with her father. I will conclude, however, that other considerations under s.60CC are so weighty that the child’s right to maintain personal relationships and direct contact with her father needs to be subordinated to the need to protect her from the unacceptable risks to which the child would be exposed if I allowed regular direct unsupervised contact with her father. Consequently, in this case, the practical difficulty and expense of spending time wither father if she is in Brisbane is a less weighty consideration.

The capacity of parents and others to provide for the needs of the child (including emotional and intellectual needs)

My findings about the father’s personality means that his capacity to provide for the child’s emotional needs is significantly compromised.
Dr M said that the father had the intellectual capacity to meet the child’s needs but whether or not he had the ability to give those needs priority over his own was something which Dr M doubted.
The father did not complete the post separation parenting course because it was run by women and ended in conflict. The father formed the view that that program was biased against fathers.
I find that the father is impulsive, acerbic and passionate about certain issues. He was also intimidatory and on occasions that intimidation can lead to actual physical violence. It is that type of behaviour that has been experienced by the mother.
Dr M described the father as “affable and loquacious”. There was no doubt that at certain times over the four days the father appeared before me he presented himself in that way. I have no doubt that most of the time which the father spends with the child, the father presents himself that way to the child.
The father described himself in various ways including “clamorous” and “obstreperous”. The second word is the Latin root of the first. Obstreperous means “resisting control in a noisy manner; unruly” (Macquarie Dictionary).
There is however clearly a “Jekyll and Hyde” aspect of the father’s personality. The father can be easily moved to anger at which times he becomes explosive, belligerent and confronting. I have no doubt that when the child sees him like this it would cause her significant stress.
The father put to Dr M that it may be the mother who has a personality disorder. Dr M said he did not have enough information one way or another to comment upon that question other than to say the odds did not favour it.
The father lacks insight into what is appropriate parenting practices. An example is the episode on 17 January 2007. It is unlikely in my view that the father would have had no inkling as to what type of person Mr TY was. If in fact he had no idea, then that in itself is a concern. I find it is more likely however that the father knew what Mr TY was like but did not consider that it was a problem to leave his 13 year old with him. Even in hindsight, the father could not see anything wrong in relation to what he had done.
The father showed no remorse for any of his behaviour.
Whilst the father described himself as an extroverted person and described the mother as an introverted person, the differences are far greater than that.
My observation of the mother in the witness box was that she was a gentle person who seemed subdued when having to interact with the father by answering his questions. Although I accept that the mother’s behaviour, in keeping the child from him has provoked the father, I have no doubt that it has been extremely difficult for the mother to cope with the ongoing problems that the father’s behaviour causes.
The father during the hearing referred to the fact that the mother’s previous husband could not give her a baby and that he had been able to achieve that for the mother and now he was being treated by the mother just like a sperm donor.
Exhibit N is a statutory declaration of the mother declared on 10 August 1998. It was executed by the mother just after the parties had got together and at a time the mother said that she had known the father for approximately 12 months. The declaration gives a glowing reference of the father as honest, trustworthy, caring, a wonderful father who exceeded all expectations in creating a safe and happy environment in which to raise children. She said the father spared no effort in ensuring that his children were content by regular planning in advance of various activities to provide quality time together. She expressed the view that “the charges” brought against the father were unjustified and she believed a “simple act of discipline had been misconstrued”. I have no evidence which would indicate what these “charges” or “act of discipline” were. In oral evidence, the mother said that her 1998 opinion of the father had dramatically changed as a result of her experience of living with him and her experiences of him since the separation. I accept that she was being truthful when she told me that.

The father has recently had another child, a boy. The mother of that child is Ms S. The father, who has not yet seen the child, understands that he is a beautiful boy and commented “I need someone to love”. He indicated that he intended to attempt to locate the mother and child and then make an application for a recovery order. He also expressed his happiness at having fathered a boy commenting that it was “hard to get girls off their mothers”.

Father’s attitude to women

There is a theme in the evidence that the father gets into conflictual situations with females, mostly those in authority. Examples of this are:
304.1.The teacher Ms WE;
304.2.The personnel at university in charge of his assessment;
304.3.Constable H in relation to the incident on 13 April 2006. The father referred to Constable H as the nemesis of his life (notwithstanding that Exhibits F and J disclose that the father otherwise had involvement with a number of male police officers);
304.4.Justice Ryan in March 2007;
304.5.Dr T’s secretary;
304.6.The Deputy School Principal.
The father was convicted of assaulting Ms A on two occasions.
The father agreed that during 2006 he had a sexual relationship with Ms NS “who loved him for a while”. He described her as incoherent, babbling and was aware that she was a intravenous drug user and addicted to ice. He further described her as a fruit loop and blowfly who had a fascination with him. It is unclear what contact, if any, the child had with Ms NS.
If not a misogynist, the father certainly, during the four day hearing before me, on occasions said things that showed a somewhat jaundiced view of women.
The Independent Children's Lawyer asked the father whether or not he had a problem resolving conflict with women. He replied:
“No sir, they just seem to want to stand over you and – you know, trivialise what you’ve got to say all the time and especially the Education Department, they’re very prominent and they seem to run all of it, you know, secretaries, I know a few teachers that I was talking to a few recently and ‘its our domain get out’. I basically want to get out because of that reason, but you know, I can adjust around that.”
The Independent Children's Lawyer pointed out to the father that he had through his evidence made some fairly disparaging comments and generalisations about women. The father responded by saying he had lost four children and that he did not take it lightly. I asked him whether or not he was blaming women for doing that and his response was:-
“No, no - no. Women – the courts and the system are giving the crutch to use that against – as a tool to stop them as opposed to something of protection and they seem to – sir, I’ve talked through my travels, I’ve talked to a lot of court – I’ve talked to a few chamber magistrates and said it’s habitual, they come down one after another, I mean the husband works in the mines, you want to take his money, take his cars and he hated it, but he used to write them out, I won’t go into who it was. I’ve met a lot of them and that’s come from people like that, you know, telling me – I’ve said – he said ‘look, they just won’t stop, one after another, we want, we want, we want, we want, we want, we want....”

Conclusion about the father’s parenting capacity

I conclude that the father’s personality problems cause him from time to time to act in a way which puts the child at an unacceptable risk of being exposed to psychological harm and neglect.

The maturity, sex, lifestyle and background of the child and of either of her parents

The child is a girl aged eight years and three months. There is nothing to indicate that she has not achieved normal milestones. The child has a talent of gymnastic ability which may be exceptional and currently spends a good deal of her time developing that talent.

Family violence

I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount: s.60CG.
There is currently an AVO in force restricting contact and communication between the father and the child to that allowed by Family Court order.
The mother in her oral evidence said that there had never been an AVO made against her and that the statement made by Mullane J in his reasons (exhibit B) that one had been made against her was inaccurate. She said the situation was that she had sought and obtained an AVO against the father. He had cross summons against her but his complaint was struck out and no AVO was ever made against her.
The incident involving Ms A involved the father denying that he had climbed up a drain pipe to get through a balcony. He did however get through a balcony and I find he was convicted of pulling Ms A’s hair.
I find the father’s behaviour from time to time is more than “clamorous” and more than “obstreperous” both words used by the father to describe his behaviour). There is no doubt that the father’s behaviour from time to time brought members of the father’s family into apprehension of violence and that this behaviour clearly falls within the definition of “family violence” in s.4 FLA.

Order least likely to lead to the institution of further proceedings

The father said during the hearing that he saw himself as another “Eddie Mabo” and that he intended to take his appeal in this case all the way to the High Court. He wanted to establish a precedent for men’s rights. He expressed the opinion that the “constitution” of the Family Law Act had changed to acknowledge the right of the father to see their child.
The father repeated these sentiments on a number of occasions in circumstances that were sometimes quite unresponsive to the topic that he was being asked to address
The father said that there were a lot of angry fathers. There is a lot of decent of fathers who cannot love their children. He referred to it as a battle and a war in which it was very hard not to become disgruntled. He referred to the suicide rates amongst men being appalling (Dr M did not give any indication that the father was suicidal). I did not take it as a threat by the father that he would suicide if the orders were not what he wanted. Whilst I am very sensitive to male suicide rates, my focus always has to be on what is in the best interests of a child in an individual case.

EQUAL SHARED PARENTAL RESPONSIBILITY

Section 61DA FLA creates a presumption of equal shared parental responsibility. This presumption does not apply if there are reasonable grounds to believe there has been abuse of the child/children or family violence. I have made a finding that there has been family violence and consequently this presumption dos not apply.

EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME

Even in circumstances where I have found that the presumption of equal shared parental responsibility does not apply, it is still open to the court to consider the child spending equal time or substantial and significant time with her father.
Neither of those arrangements are in the child’s best interests given:-
322.1.The statutory considerations set out above;
322.2.The fact that at least in the short term, if the child is to move to Brisbane, the parents will live too far apart;
322.3.The parent’s current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with the father is minimal;
322.4.The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of this kind is negligible;
322.5.Such an arrangement is likely to have a negative and adverse impact upon the child; Dr M said that the history of habitually getting into altercations would have implications, particularly for shared care (I took Dr M to be saying it was a contra indicator for shared care).
Dr M gave evidence that the father’s proposal of moving from the time provided under Ryan J’s orders to a genuine 50/50 live with arrangement would be an extreme move with the consequent risks to the child’s stability. Dr M said shared care works well where parents are genuinely cooperative. He could not say that that remotely describes the current relationship between the parties in these proceedings.
Dr M said that for any shared cared arrangement to work in the child’s case it would have to be introduced progressively and certainly not imposed abruptly. Dr M however clearly said he did not support the father’s application for shared care.

CONCLUSION

The father has serious problems with his personality. There is an unacceptable risk for the child to be with him unsupervised.
I find that the child is also at serious risk arising from the cloud of conflict that exists between her parents. Much of that conflict is to do with and is triggered by the father’s inability to control his anger.
As a result of the father’s personality and parental conflict arising from the father’s inability to control anger, the child has displayed behavioural symptoms. She has been anxious, stressed, has suffered encopresis and nightmares. I accept the mother’s evidence that all these symptoms have ceased since the child has stopped spending time with her father.
I acknowledge that the father feels aggrieved by what he believes the “system” has done to him but it is the child’s best interests on which I must focus not any “rights” he feels he has. I conclude it is in the child’s best interests to make an order substantially in the terms sought by the mother.

Dr M commented that if the mother’s application was successful she risks the build up of a “fantasised father” in the child’s mind. This fantasising of a “distant daddy” may have a negative impact upon the child’s future relationship with her mother. Dr M said that that could be countered by some supervised visits each year which would give the child an opportunity of some reality testing in relation to who her father was.
Counsel for the mother was asked how he suggested I deal with the evidence of Dr M that a “no contact order” could possibly create problems for the child in her teens and problems for the child’s mother if the child developed a idealised “phantom” view of her father. His response to that was that it was a lesser evil than having the child exposed to her father.
The father indicated in submissions that if I made a restricted order aimed at the child having some knowledge as to who her father was then it was unlikely that the father would think it worthwhile to travel to Brisbane for the purposes of seeing the child for only a short period of time. The father indicated that he needed enough time with the child to “satisfy my needs”. Given that is his attitude, then I have to seriously ask whether or not it is in the child’s best interests to set up a situation which the father might choose not turn up to. The option I have settled upon is to have a self executing order which is suspended if the father failed to turn up on any one particular occasion when the child was at the child contact centre to see him.
Given my conclusions in relation to parental responsibility, it is appropriate for the mother to have sole parental responsibility for the child. It follows that the mother should be permitted to relocate to anywhere within Australia but she should inform the father of her intention to do so and provide the father with a contact address. Any move by the mother would need to be to a place where there is a facility to fulfil the mother’s obligations under order 3. It also follows that the mother should be free to travel with the child outside Australia.
The restraining order sought by the mother is appropriate given the orders that I have otherwise made in the child’s best interests.

SECTION 128 CERTIFICATES

As indicated during the hearing, I shall:
334.1.Give the father a s.128 Certificate for any evidence that he gave about the incident that took place on 13 April 2007. This incident is the subject to an appeal by way of rehearing to the District Court.
334.2.Give the father and Mr W a s.128 Certificate in relation to anything they have said about the incident on 25 June 2007. This incident is the subject of appeal by the father. The father has also threatened to commence some type of suit against Mr W over the incident.

I certify that the preceding three hundred and thirty-four (334) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 14 December 2007

[2007] FamCA 1451

14 December 2007

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