SALTERN & MINK

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALTERN & MINK

[2020] FCCA 1635

Catchwords:
FAMILY LAW – Parenting – family violence – relocation – best interests of the child – presumption rebutted.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAB, 68

Cases cited:

Mazorski & Albright [2007] FamCA 520

Applicant:

MR SALTERN

Respondent:

MS MINK

File Number:

BRC 7393 of 2019

Judgment of:

Judge Vasta

Hearing dates:

25, 26 May 2020 and 2 June 2020

Date of Last Submission:

16 June 2020

Delivered at:

Brisbane

Delivered on:

19 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bolovan

Solicitors for the Applicant:

Smart Legal Group

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:

Georgia Flynn Solicitor

ORDERS

That the child X born in 2018 (“the child”) shall live with the mother in Town B.
That the mother have sole parental responsibility for the child.
That the child shall spend time and communicate with the father at all times as can be agreed between the parents in writing and failing agreement as follows:
(a)Commencing the third Saturday of every month from 9.00am until 5.00pm Saturday, and from 9.00am until 1:30pm Sunday;
(b)Via telephone/FaceTime once per week on a date and time agreed between the parents in writing and failing agreement from 6.00pm to 6.15pm each Tuesday with such call to be facilitated by the mother.
That changeover pursuant to Order 3(a) shall occur outside the C Cafe at Town D.
That the parents shall communicate via text message, email or by the Our Children website in relation to the child only.
That the mother shall keep the father informed of any medical issue/concern or any other emergency relating to the child as soon as reasonably practicable.
That upon the child attending school, the mother shall provide to the father a copy of the child’s report cards.
That the father be restrained and an injunction shall issue pursuant to s.68B of the Family Law Act 1975, restraining the father from:
(a)Telephoning the mother unless in case of an emergency, and
(b)From harassing, provoking, assaulting or insulting the mother.
That pursuant to s.121 of the Family Law Act 1975, the mother be at liberty to provide a copy of these orders and Reasons for Judgment to the New South Wales police.
That pursuant to s.121 of the Family Law Act 1975, the father be at liberty to provide a copy of these Reasons for Judgment to any treating mental health professional, psychologist or psychiatrist.
That pursuant to s.11 of the Passports Act 2005 the child X born in 2018 be permitted to leave the Commonwealth of Australia.
That the requirement for the father’s signature on the passport application for the child X born in 2018 be dispensed with and an Australian passport issued for the child.
That the child X born in 2018 be permitted to leave the Commonwealth of Australia in the company of the mother, Ms Mink born in 1992.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parties shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parties shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that the parties cannot agree on a Family Dispute Resolution Practitioner, the party wishing to make the change to the Orders shall nominate three practitioners and advise the other party in writing of their fees, experience and availability;
(d)The other party shall choose one of the listed practitioners within seven days of receipt of the list; and
(e)If the other party fails to choose, then the party wishing to make the change to the Orders will choose the Family Dispute Resolution Practitioner.

NOTATION:

A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7393 of 2019

MR SALTERN

Applicant

And

MS MINK

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders. The Applicant father, Mr Saltern, was born in 1991. The Respondent mother, Ms Mink, was born in 1992.
The parents met through the dating application “Tinder” in 2016. The mother lived most of her life in the Town B/Town D district of New South Wales and came to the Brisbane area in 2015. The father has lived most of his life in the Brisbane area.
The relationship between the parents was somewhat casual for the year of 2016. At the end of that year the mother relocated back to Town B to live with her family. After a few months of the mother living in Town B, the parents made contact with each other again. The father travelled to Town B on a number of occasions to visit the mother.
In December 2017, the mother and father relocated to an address in Suburb E and recommenced their relationship by cohabitating. The mother fell pregnant in 2018 and X was born in 2018. X is the subject of this application.

Relationship of the parents between the birth of X and separation

A great deal of time has been spent in this trial going through the relationship between the parents that existed from X’s birth to the final physical separation on 30 March 2019.
During the relationship, the father had been working full-time. He describes himself as a tradesman. The mother had been working as an allied health worker during her first stint in the Brisbane area, upon her return to Town B and once again upon her relocation to Queensland. On that last occasion, she worked at a facility called Employer F, as an allied health worker, until 2018 when she went on maternity leave.
The father describes the mother becoming “harsh, negative and controlling” after X’s birth. He claims that she limited his interaction with X. He said that if they had an argument, the mother would take X and leave the house and not return until the early hours of morning. He claims that the mother refused to allow X to leave the house with the father and forbade him from taking X to visit the paternal grandmother. The father juxtaposes this with the mother’s behaviour in taking X to her place of work to show him to her fellow workers.
The father claims that the mother’s behaviour worsened after a visit that the parents had with the maternal extended family in Town B when X was approximately eight weeks old.
The father describes that, because of the constant negativity and the bad environment that had developed in their household, he sought the assistance of a psychologist to deal with his situation.
The mother describes that she was a victim of family violence during her relationship with the father. She describes physical assaults upon her and controlling behaviour that was present throughout the relationship.
These claims of both the father and the mother will be examined in some detail in the Reasons.

Assaults on Christmas Day

The mother speaks of non-particularised assaults on her from the father. The mother talks of these assaults leaving bruises on her which she covers up. She concedes that she had never made any complaint about these assaults until she spoke about them in her affidavit for this matter.
The mother does particularize assaults that occurred upon her on Christmas Day 2018. This was during the visit with the extended maternal family in Town B. She said that, with respect to the first assault, she and the father were at the house of the maternal grandmother and they were in the house alone because the maternal grandmother and her partner had gone for a walk with X. The mother said that she was standing at the end of their bed, near the father, and they argued about when they would be leaving. The mother wanted to stay until New Year’s Day and the father wanted to leave on Boxing Day.
The mother describes, during this argument, that the father stood up in front of her and pushed her with force with both hands and slapped and slammed his hands into her chest numerous times. She described that the force of these blows jolted her backwards into the sliding doors of the cupboard. The mother said that she told the father to stop but he kept repeating that “we’re going home tomorrow so you better start telling them”.
The mother said, with respect to the second assault, that later that night, she was struck to the back of her head twice whilst in bed with the father. She said that she was frightened and crying in pain and that the father said “stop; fucking shut up”. The mother said that she was so distressed that she went out and slept on the lounge with X.
The mother said that she made no complaint to the maternal grandmother or anyone else about these incidents. However, the next morning, she went to the Boxing Day sales. When she arrived home, she noticed bruising to her chest. She took a photograph of herself. This photograph was reproduced and is Annexure A to the affidavit of the mother filed 29 April 2020. The photograph has a time of 1:22pm 26 December 2018 stamped on it. The photo is reproduced below because one needs to see the photo to understand many of the comments that are made from hereon in.

(photograph omitted)

The Photograph

Obviously, this photograph is powerful corroboration of the tale that the mother has told. The father has attempted to discredit the mother by claiming that the photograph is not a true depiction of how the mother looked on Boxing Day 2018.
The father claimed that the parents had professional photographs taken on that day and that none of the professional photographs depict any such injury. However, it turns out that the professional photographs were taken on 23 or 24 December 2018. Exhibit 1 is a text message from the photographer, which was sent at 10:06pm on Christmas night, and it explained that the photographer had just uploaded 217 photographs to the Dropbox folder of the father. This means that the father’s assertion is plainly incorrect.
The father annexed a photo that he claims was taken on 31 December 2018. He claims that this photo shows that the mother has no bruising or marks on her chest. However the photo does not show the area where the mother had the bruising. Her breast area is covered in a striped top in this photo that the father claims was taken on 31 December 2018. This photo does nothing to add to the denial of the father.
The father then attempted to give himself an “alibi”. The father said that he was playing with a drone on Christmas Day and so therefore could not have had the opportunity to have committed this assault. However, there is no evidence from anyone else to say that the father did not go inside the house during the day because he was outside the whole day playing with a drone. This assertion by the father simply lacks credibility.
The father claims that records from his drone’s flight recorder shows that he was outside around midday flying the drone. The father has annexed these records. All that can be made of these records is that take-off for the drone on 25 December 2018 was at a time recorded as 12.49.36 and on another record, that the drone flew 1415 m that day for a duration of eight minutes with the maximum altitude reached of 64 m. That hardly gives him an alibi for an incident that occurred, according to the mother, about “midday”.
The father then claimed that the mother had altered the photo in some way, especially with the date stamp. He claims that, because he works as a tradesman, that he knows that such alterations are possible. In cross examination of the mother, it was suggested that the mother put her phone in to “airplane mode” and then manipulated the date before taking the picture.
The father claims that he has asked for the original of the photo so that he can check the metadata to confirm that the photograph was taken when the mother says it was taken. But, when one looks at the photograph, at the bottom there are a number of “thumb scale” photographs which display photographs taken before this particular photograph and photographs taken after that particular photograph. The photographs, taken before, show the child, X, dressed in Christmas attire and the photographs, taken after, show X sitting on the lap of his maternal grandfather which the mother has testified was taken later on Boxing Day.
When the mother was cross-examined, it was obvious that she was genuinely unaware of the manner of digital storage; she did not even understand the concept of photographs from her iPhone being “backed up on the cloud”. The mother denied, in any way, interfering with the mechanism by which a time and date is stamped on the photograph.
Finally, the father has alleged, during cross examination of the mother, that the coloration of the bruising would show that the injuries are older than the 25 hours that the mother claims. It may be said that “common knowledge” would indicate that “fresh” bruising discolours from red to purple to blue to brown and then to yellow/green. I have grave doubts that such information is “common knowledge”. I may know of this information, however such information was gleaned from my experience gained before I joined the Bench.
Even if this were “common knowledge”, there is no evidence of the time periods in which such discolouration occurs. There are far too many factors such as personal physiology, environmental temperatures and what “first-aid” has been administered to the area, to be able to age a bruise simply on colour alone. There has been no expert evidence called to even venture an opinion as to how old these bruises may be.
The mother no longer has the original digital photograph. The mother explained that she sent the photograph to her former solicitor. That solicitor requested to have some record of the date and time. The mother then took a screenshot of the photograph which then depicted the date and time and sent that to the lawyer. Now that she had sent both photographs to her lawyers, the mother said that she did not want to keep those photos and she then deleted them.
I have looked at all of the matters regarding the photograph that have been raised to convince me that the photograph cannot be relied upon by the Court. I accept the mother’s evidence that the photograph depicts the aftermath of the assault perpetrated by the father upon her on Christmas Day 2018. I accept her evidence that she has not altered the date/time stamp on the photo. There is no reason for me to doubt that the photograph was taken at 1:22 PM on Boxing Day 2018.
The attempts by the father to discredit this photograph smack of desperation. I infer that this is because the father understands the powerful corroborative effect of the photograph on the mother’s claim that the father had perpetrated family violence upon her.
I do find that the father did assault the mother in the manner in which she described on Christmas Day 2018.
Having accepted the evidence of the mother regarding the first assault, I also accept her evidence of the second assault.
The father has pointed out that the maternal grandmother heard nothing that night, nor did she see the mother emerge from the “media room” the next morning. Given the circumstances, I am not surprised by what the maternal grandmother has said, but this does not cause me to doubt the veracity of the mother.

January 2019

While the father has claimed that the mother’s “negativity” caused him to see a psychologist, the mother testified that the father was becoming distant. She said that she was not receiving any help or support with X from the father. She claimed that the father would be out of the house most evenings and would come home late. The father had told her that he had been at the gym. The mother said that, when the father came home, he did not speak to her or interact with X.
The mother said that she arranged an appointment with the father’s GP because she was concerned about the father’s well-being and behaviour. She said that the GP gave the father a referral to a psychologist by the name of Dr G. (When discussing this time period with the family report writer, Dr H, the father acknowledged that the mother was assisting him at this time. This does undermine his description of the mother being harsh and negative.)
The father saw Dr G on 14 and 15 January 2019. The mother testified that after seeing Dr G, the father told her “my psychologist said it would be a good idea for you to go to New South Wales with your family for support while I discover myself and learn to love myself’. The mother claimed that the father purchased a plane ticket for her.
The mother went to Town B on 19 January 2019. The mother testified that, whilst in Town B, she had heard from third parties that the father was telling people that he and the mother had broken up. The mother said that she still considered that they were a couple. The mother said that she was receiving text messages from the father to the effect that she had left him and taken X. The mother returned to Queensland on 31 January 2019.

February 2019

The parents attended couples counselling on 1 February 2019. The mother said that during that counselling session, the father agreed that it would be best that the mother and X returned to Town B for a while so that he (the father) could get better. (The mother actually joined the father in his fourth appointment with Dr G as I will detail later in these Reasons).
On 2 February 2019, the parents got into an argument after the father had received a somewhat unsavoury text message on his phone, from one of his male friends, which the mother just happened to see. The mother described that, during this argument, the father stood in front of her and pushed her away using both hands against her chest with such force that he bruised her chest. (The maternal grandmother gave evidence that she saw these bruises either the next day or the day after).
The mother said that the father picked X up and walked away with him telling the mother “you’re not allowed to touch him”. The mother tried to take X back but the father said words to the effect “no, I will be placing a relocation and injunction order on you, so you can’t leave the state and I will make sure you never see your son again”. The mother said that the father also said to her “what would you do if I tried to kill myself?”
On 3 February 2019, the mother left Suburb E to meet the maternal grandmother. The mother said that she, X and the maternal grandmother then travelled back to Town B. The mother claimed that she received a phone call from the father while she was driving to Suburb J. He told her to take his name off X’s birth certificate. The mother tried to contact the father but he would not respond.
Given the father had made a threat of suicide to the mother, the mother asked a neighbour to check on the father. She received a message the next day (4 February 2019) from the father which simply said “can you and X come home now?”
There are a number of text messages between the mother and father which have been reproduced in Annexure 1 of the father’s affidavit filed 29 April 2020. The tenor of those text messages is that the father has interpreted this trip to Town B, by the mother, as being the end of their relationship. The final text the father sent said “so far you’ve told me your [sic] coming home in the next few days. You’ve told me your [sic] leaving me for good. You’ve told me I won’t hear from you again and you’ve told me I mean the world to you. All in a matter of a few hours. I don’t think that’s going to look very well”.

The mother said that she called the father soon after and said “I’ve had enough and I no longer want to be with you”. She said that the father replied “you’re not allowed to leave me. You are using X as a weapon. You need to stay with me because of X. You’ve taken my life away and I will be the one that suffers. There’s no point in living”. She said that the father then hung up.
The mother said that she then phoned the paternal grandmother to report this conversation to her because she was worried about what the father might do to himself. The mother said that, later that afternoon, she received a phone call from the father. She said he sounded sleepy and he said “I set up a trust for X and he’s set for life, make sure my boy grows up”. The mother then contacted the authorities.
The father did make a suicide attempt in February 2019 and he was treated by paramedics who attended because the mother had raised the alarm. The father was treated in hospital for some days afterwards. At paragraph 192 of his trial affidavit, the father tries to lay the blame for the suicide attempt at the feet of the mother by obliquely claiming that the cause of his actions was that the mother had told him that he would not be seeing her or X again.
The mother said that the father later called her and told her “you’re the reason I tried to end my life. If you didn’t break up with me, it never would’ve happened”.

The father’s interaction with Dr G

The father had seen Dr G on four occasions before the suicide attempt; the sessions were on 14 January 2019, 15 January 2019, 22 January 2019 and 1 February 2019. The reason that the father was seeing Dr G was that he was having panic attacks and feeling detached from X. He told her that he felt no bond with X.
The father recounted that the first time that the mother had gone out since X’s birth meant that he had been alone with X for the first time. He told Dr G that “he didn’t feel anything and when Ms Mink (the mother) came home X was on the floor screaming”. He told Dr G that he did not want to hold his son.
At the second appointment, the father told Dr G that after he had come home from work the day before, he went for a ride on his bike. He then tried to hold X for 15 minutes but he felt nothing. He said that he started crying because of this and that he and the mother then had a discussion about their relationship. He also spoke of how he was unable to support her at that moment.
He told Dr G that the mother “had nobody up here” but that he had his friends and his mother. He said that his mother (paternal grandmother) and the mother did not really get on. He told Dr G that he and the mother had decided that she would go back to Town B for a couple of weeks and then return with her mother (the maternal grandmother) around 9 February 2019.
At the fourth appointment on 1 February 2019, the father attended with the mother. Dr G noted that this was an emergency appointment because the mother was about to leave Queensland with X. The mother told Dr G that things were not going well and that she and the father had argued the whole time that she was away.
In that session, Dr G noted that the mother was very tearful and that she was attempting to voice to the father that she just needed some support. Dr G noted that the father was more focused on the idea that the mother “was trying to take X away”. The father was discussing long-term matters regarding custody.
Dr G discussed with mother and the father on “just focusing on the here and now and what was best for X right now”. Dr G provided both of them some education on the importance of the mother’s mental health at that moment because she (the mother) was the primary carer in those early stages. She also discussed that the father was not able to provide her (the mother) any support.
Dr G noted that the father was very focused on his needs and what he needed. Dr G noted that she “gently affirmed this but that the focus was on X at the moment”. The father commented that “he could see why men committed suicide”.
Dr G discussed some options that would help them in the short term such as the mother going backwards and forwards between Town B to get the support that she needed. Dr G discussed with the parents that they should focus on the short term and not bring up past issues and that they needed to start a “clean slate to be able to move forward”.
The father saw Dr G a week later, 8 February 2019. He told her that he and the mother were happy after speaking to her and that they had a good weekend following that session. He reported that the mother and X had left on the Sunday (3 February 2019) and that about an hour after they left, the mother texted him to say that that was the last time that he would see X and that they were not coming back.
The father then told Dr G that he had attempted suicide on the Monday. The father told Dr G that he was disappointed when he woke up but that he would not do it again. He said that he now sees suicide is a bad idea that will affect him seeing X.
The final time that the father saw Dr G was on 12 February 2019. He told Dr G that he had a good weekend and that he was keeping busy. Dr G discussed the relationship with the mother and the lack of trust that they both had in each other. Dr G suggested that the father think about what he wants with the mother, and what that might look like in relation to X.
What has also emerged from the notes of these consultations is that the father had told Dr G that he had been in a relationship with a person called Ms K.
The relationship with Ms K was not mentioned in the material filed by the father. In evidence before me, the father testified that he had told the mother about his relationship with Ms K in early 2019. The mother does not mention Ms K in her material. In her evidence before me, the mother testified that the father mentioned Ms K for the first time on 8 January 2019 (this was the date of the “pillow incident” of which I will talk later in these Reasons).
The mother said that the father had told her that he felt bad about leaving Ms K when they (the mother and the father) got back together at the end of 2017. The mother said that this was all that was said and that Ms K was never brought up again.
The father told Dr G (at the first appointment on 14 January 2019) that his relationship with Ms K had ended 1½ weeks ago. He told Dr G about the ending of this relationship. He told Dr G that he had phoned the men’s helpline and that “Ms K ending the relationship triggered everything” for which he was consulting Dr G.
At the second appointment (15 January 2019), Ms K was discussed and the father reported to Dr G that he was “feeling heartbroken over this”. Dr G told the father that he had to stop seeing Ms K.
At the next appointment (22 January 2019), the father told Dr G that he did go to see Ms K after the mother had left for Town B (on 19 January 2019) and that he had also been texting Ms K. He told Dr G that he had said to his own personal trainer, regarding Ms K, “I’m going to marry that bitch one day”. Dr G advised him to focus on his relationship with the mother at that point in time and to minimise contact with Ms K.
At the final appointment, on 12 February 2019, the father told Dr G that he had been thinking a lot about Ms K but had not contacted her.

Aftermath of the suicide attempt

The mother remained in Town B and the father was recuperating in Queensland. The parents were still in contact with each other and some of the text messages that were passing between the two of them on 16 February 2019, are reproduced in Annexure 2 of the father’s affidavit filed 29 April 2020. The text messages are reproduced below:
16/2/2019
I love you and my son, I only ever want the best
Yeah that’s what I mean I would much rather talk to you over the phone then text, people wanted me to take an avo out on you as well
But I said there was no need for any of that
Do you know what would happen if you did that
I’d literally only ever see X at a police station for one hour a week
That’s cruel. Whoever is saying this stuff had their own agenda
  Has
Yeah I know but that’s how much you scared people Mr Saltern
So next time you call me my mother daughter I suggest you rethink all of that
Huh
The other day you said I was like my mother and I am far from that
Good
Cause if she is saying this stuff I at least know you won’t listen
So maybe next time I say something you better believe that’s what I mean
Do you know what an AVO is
I have my own thoughts and concerns
Yes Mr Saltern I am not an idiot
Did you know they last 5 years
  Ms Mink you left our family for your family
  Taking avos out on me and stuff is not what we do to our own
No I left so you could get better
I never said I was taking any out
Yet
Ms Mink I haven’t been violent towards you
I don’t mean you
OK
17/2/19
Would you like to talk on the phone when I get home
Yeah ok
Its so fucked the shit I am copping from mum because I am going home on Sunday
Fill me in
Tell her I said hi
Its not funny hey
Give her a hug for me
  :) :) :)
  Na what’s going on
Okay I am not talking to you, you are coming across as an asshole
I’m sorry was trying to lighten the mood
Well its serious
Ok so she’s not happy
  What’s she saying
That you may hurt X while I am sleeping
Are you serious
Yes I am
She’s trying to get into your head
  That’s wrong
  Ridiculous
I feel like I am getting played at both ends here
I honestly just want to run away from everyone
Its like she ran out of excuses so she’s trying everything she can
  WHY WOULD I HURT MY SON!!!
  He’s a baby
  Farkkk
I know Mr Saltern, but when someone keeps saying stuff like this, you do second guess yourself
Exactly, she keeps saying it
  Trying to fill your head
Would you ever consider or even think of hurting X?
You know what hay if you do
Happens
No. Hell no
  What would it achieve. He’s my son
  I love him to bits
People have been known to do shit out of the ordinary
She’s also worried you are going to hurt me

Your mum’s good at games
I think she’s the real person doing the damage here
Take a step back. And think about it for a second. She’s spinning whatever she can so you don’t leave. That way she has you and X.

I understand that but what do you actually want?
Huh

Don’t worry
I would never hurt either of you
Or anyone

Righto
‘
What else is she saying

That I am silly if I take you back
What else
She drinking

No we just finished at the movies.
That’s it.
Ok

So looks like we are done for good
What
How. Where did that come from

Just seem like everything is way to messed up now. Don’t think we could have a future together

That’s doubt in your mind. Thinking like that your mum wins
Your mum knows how to manipulate you so well. Look what she’s done. She how completely different its become since you left your dads
She gets into your head

Yeah she ask what dad thought, I said he supports me in whatever choice I make. She said something nasty and I was like excuse me
So you think we even have a future

Your dad is the only supportive human around. He thinks about X
What did she say thats nasty
Can only work on it

Righto

Don’t take that wrong
It wasn’t meant to come across as bad
But if your gonna let your mum say nasty stuff then it will tear us apart
What did she say that was mean

Talk to you tomorrow I am going to sleep.
It was about dad. Don’t worry

The father relies upon these text messages to suggest that there was never any family violence perpetrated by him and that the mother could not have written what she did in the text messages if she truly had concerns about the father and his behaviour.
The mother moved back to Queensland to help the father in his recuperation. Whilst they were living together, they were separated under one roof. The mother details that the father returned to his controlling ways.
The mother spoke of the father buying a new double door fridge. The mother said that the father told her that she could not use the fridge, watch TV or sit on the lounge because he had bought all of those items and that she did not deserve anything. She said that she was forced to use an Esky to store food for X and herself, and that she had to sit on the floor.
The father denied such an allegation. He agreed that they did have an argument where he did say something of that nature in frustration. He said that the mother then put all of her food into an Esky and kept it there out of spite. He said that he was working away from the house for 10 hours each day and that he was sure that the mother did watch TV and sit on the lounge during the times that he was not there.
The mother testified that on 25 March 2019, she told the father that she wanted to move out with X. She said that the father told her “no, you’re not moving out, X will not grow up in a broken home. You can stay here and live here even if we are not together”.
The mother said that she went to see a counsellor who gave her certain advice. After this session, she went home and told the father that she needed to do things for herself. She said that the father replied that “I bet you didn’t even tell the counsellor that you are mentally ill. You would have told her bullshit stories and lied through your teeth”.

The final separation

The mother said that, on 30 March 2019, she spoke to the father and told him that she wanted to move out. She said that the father said to her that he would go down and end the lease tomorrow. The father said to her “you have ruined my life”. The mother said that the father threw X’s chair across the lounge room which caused X to cry.
She said that the father was yelling at her and told her “don’t start crying because I’m yelling. I will hunt you down. You’ve got another thing coming if you think you can leave this house with him”, which the mother took as a reference to X. The mother said that she went into the bathroom and texted a code word to one of her friends. She told the father that he needed to calm down and that she and X were going for a walk. She said she got the pram and packed some necessities and walked out of the house to the house of her friend. From there she phoned her father and the police.
The mother testified that when she phoned the police, she was advised not to return to the home. She said she was told by the police that the father had tried to report her missing and that the police told the father that she was not missing and that she was safe. The police advised the mother that the father was yelling and that he “threatened to knock on every door until he finds you”. The police advised the mother to call 000 or police link if he turned up.
The mother said that she received text messages from the father saying that her childhood memories and photo albums were all on the front lawn.
The father said that he received a visit from police sometime after midnight. He said that the officers were enquiring about an allegation of domestic violence: specifically, they wanted to inspect a baby swing. The father said that the officers noted that there was no disturbance visible and they left the house.

Claims made by the father

For some inexplicable reason, the father said that he left his house after the police had left. Presumably this would have been around 1.00am. The father said that he went to see some friends in the city but did not elaborate. The father said that he returned later that morning. He said that he noticed that the front door was open.
He said in his affidavit filed 28 June 2019 that no damage was caused however X’s bedroom dresser had been removed from the property. The father said that, later that day, a male person, of Islander appearance, attended his house and began to hurl abuse and physically assault him. He said that this person wanted to collect the car of the mother. The father said that the male hit him in the face and that he (the father) retaliated with a bat.
The father said that he hired a mobile private security firm to guard his house, as well as his mother’s house and his brother’s house. He said that an electronic security system was installed with 24/7 back to base monitoring.
The mother said that she received a message from the father which said “your car is getting towed. I’ve also hired a security guard with the patrol dog and I’ve got 24/7 cameras been monitored. There is a panic button installed around the house”. The mother said that the father had told her that he had taken all of her things and X’s things out of the house so that she could not get them.

2 April 2019

The mother attended the house together with the police. The father was home as was the paternal grandmother. The police put the father in a room whilst the mother was allowed to go inside and retrieve her belongings. The mother noticed that X’s room was “trashed”. She said that that the drawers with X’s clothes in them were gone; the photo album that she had been doing up was gone; X’s baby book was gone, X’s toys were gone; and, the ultrasound pictures that she had when she was pregnant with X were also gone.
She said that in her room, her jewellery box had been taken apart, all her make-up had been ruined and her laptop now had a broken screen.
The mother started packing her car and noticed that the car seat had been removed. The police had to retrieve the seat from the father. When the mother tried to start her car it would not turnover. The mother opened the bonnet and the police officer noticed that the battery terminal and fuse were missing.
The police went and spoke to the father and the father eventually returned the battery terminal and fuse to the mother. The police officer was able to fix the car temporarily so that the car would start and that the mother could drive it away.
When questioned about these matters in cross examination, the father said that the damage done to X’s room and to the mother’s room were done when the house was broken into in the early hours of 31 March 2019.
That answer is in contradiction to his affidavit where he had said that there was no damage to the house, but only that X’s bedroom dresser had been removed (see paragraph 47 of the father’s affidavit filed 28 June 2019).
The father admitted that he had interfered with the car of the mother and inferred that he had done this because of the attempt by the Islander male to take the car.

Consideration of these claims

I do have grave reservations about the father’s tale regarding the Islander. The father was asked, in cross examination, why it was that he had not made a report to the police about both the alleged break in and the attack by the Islander. The father replied that he did go to the Suburb L Police Station to make a complaint and that he was told by the police that the incident “was in the past” and that they could do nothing about it.
Because such an answer was so astonishing, I asked the father whether he was truly saying that an officer of the Queensland Police Service told him, when he reported an assault upon himself, that the police could do nothing about it. The father then backtracked and said that he went to the police station and he told the officer there that an assault had occurred but that he did not want to do anything about it.
I then asked the father why it was that he went to the police station if it were that all he wanted to do was to tell them that he did not want them to do anything about the assault. The father said that he just wanted the incident to be “put on the record”.
The problem with that answer is that there was nothing put on the record. If it were that the father did go to the police, as he says he did, there would be a record of it. The subpoenaed material from the QPS discloses no such approach by the father.
This contrasts with an approach that the father made to the Suburb L Police Station on 13 June 2019. On that date, the father asked the police for assistance in making a domestic violence order against the mother. According to the police records (Exhibit 3), the father told the police that he wanted the DVO to assist him in his custody battle against the mother. The police told him that a DVO is not a tool to be used as leverage in custody cases.

If what the father says is correct, it is inexplicable as to why there would be a record of his approach regarding a DVO but no record of his approach regarding an assault. I do not accept that the father made any report to, or even approached, the police about an alleged assault by an Islander male.
When the father spoke to the family report writer, Dr H, he told Dr H that the Islander told him that he had been sent by the maternal grandfather. This information was not in the affidavit of the father and was not repeated by the father during his evidence before me.
Even more concerning is the fact that the father told Dr H that the Islander came back and assaulted him on a second occasion. The father told Dr H that on this occasion the Islander told him to “give the mother’s shit back”.
If this is the case, it makes the father’s decision not to report the matter to the police even more inexplicable. Even more surprising is that when the police did come to the house with the mother on 2 April 2019, he makes no mention of the Islander, especially when it is that he gives the police the battery terminal and fuse.
I do not accept that the house of the father was entered by any person, other than the father, in the early hours of 31 March 2019. I do not accept that the father was assaulted by any person, let alone an Islander male, between that date and 2 April 2019.
I find that the father was responsible for the damage that the mother saw when she entered the house on 2 April 2019 and that the father was responsible for taking the items that the mother testified were missing.

Other concerns detailed by the mother

The mother detailed a number of other concerns that she had regarding the father’s interaction with X. One matter involved the father taking a photograph of X who was lying naked on the floor. The father has explained that he was taking a photograph to send to his mother. I have accepted this explanation. However, I also accept the mother’s evidence that she saw the father sending a photograph on Snapchat to people in his contact list. Nevertheless, I am not greatly concerned by this event as it does seem to be a very isolated incident.
The mother has detailed that, in early January 2019, the father was acting differently towards her. She said that he would not look at her and refused to hold X. She claims that he said to her “I know I should love you and want to hold X but I don’t feel anything for you. I don’t want to see X ever again”. A few days after that she said that the father told her “don’t leave me alone with X because if he makes a noise, cries or whinges, I don’t know what I might do”. Those sentiments expressed by the father are concerning, however they are consistent with what the father told Dr G about how he was feeling. It is of great credit to the father that he recognised that he needed help and he did something about it. The question remains, however, as to whether what he has done is sufficient.
But there is one other matter that still gives me a great deal of concern. The mother claims that on 8 January 2019, she and the father were talking in the main bedroom of the house about “what was going on inside (the father’s) head”. (It would seem that this was the one and only time that the father spoke to the mother about the existence of the woman, Ms K.) The mother describes the father lying on their bed next to X.
The mother walked out to get X a bottle. When she walked back in, there was a pillow over X’s face. The father was still lying a short distance away just looking at X. The mother said that she removed the pillow quickly and asked the father why he did that to his son. The father replied “I just wanted to see what he would do”.
The mother said that the father subsequently asserted that X had pulled the pillow over his own face. When asked about this incident in evidence before me, the father agreed that he had told the mother that X was pulling at the pillow. The father said that there was a tear in the pillow slip and that X’s fingers had gone through the tear and he was able to pull the pillow.
The concerning aspect is that X was aged around seven weeks at this time. I am of the view that it is simply not possible for a seven-week old child to physically pull a pillow over their own face. The facts are that the pillow was over X’s face. I do not accept the father’s explanation as to how the pillow got there. I find that the father put the pillow over X’s face.
The father detailed a concern that he had as well. He claimed that X was calling him “dada” or “daddy”. He said that he had recently noticed that the child was not referring to him by those names any more. He also claimed that the mother would not refer to him as “dad” in front of X.
When the mother was questioned about this, she said that she had only heard X say “da” once referring to the father. She said that X had only just started saying “mum” in the last four weeks. She said that she did refer to the father as “dad” in X’s presence.
If I accept the father’s tale, it would mean that X had been calling the father “daddy” well before he began referring to the mother as “mum”. It would also mean that having started referring to the father as “dada”, he then stops doing that at the same time that he starts referring to the mother as “mum” for the first time.
I do not accept that X had been calling the father “dada” or “daddy” and therefore, I do not accept that X has stopped calling the father those names. I am of the view that the father has fabricated this tale with an ulterior motive.

After the separation

The mother stayed in the Region M area for a short time after she had retrieved what she could of her belongings on 2 April 2019. The mother made a decision to go back to Town B on a permanent basis about a week later. She did not tell the father of this decision.
The mother admitted that she did not tell the father that she was moving because she did not want him to go to the Court to try and stop her from leaving. She said that she did get some advice from a family lawyer before she made the move.
The father claims that he attempted to communicate with the mother so that he could spend time with X after they separated. The father said that he sent a proposed parenting plan to the mother but there was no response. The father said that he tried to arrange mediation but that the mother would change her mind about attending.
The correspondence I have seen details a very frustrating circumstance where, because the parents are living in two different states, mediation did not happen. The father did spend time with X in Town B during May 2019 and again in July 2019.
The mistrust between the parents continued. Exhibit 5 details three occasions where the mother made complaints to New South Wales Police regarding messages that have been sent by the father to her. The first complaint was made on 30 June 2019; the second complaint was made on 27 August 2019; and, the third complaint was made on 23 September 2019.
On each occasion the police objectively looked at the messages that were sent. The police have noted that they did not consider the messages to be harassing, abusive or intimidating. The police advised the mother that “…perhaps these messages were signs of frustration from the father of the child who since has had very limited access to his son and who is unable to get in contact with him, and also to arrange the upcoming visitation on Saturday…”

History of this litigation

On 28 June 2019, the father filed his initiating application in this matter. The matter came before me, in Suburb N, on 16 August 2019. The father asked me to order a relocation. I declined to make that order but instead made an order for a child inclusive conference. I also made an order that the father should spend three occasions with the child between 16 August and 4 October 2019. I adjourned the proceedings until 4 October 2019.
Following the advice received in the memorandum compiled by the family consultant, I ordered a family report and made orders regarding time between the father and X which alternated between Town B and the Region M area. I purposely left the arrangements “loose” to see to what extent the parents would cooperate and agree during this time.
On 31 January 2020, I was now in possession of a family report. I set the matter down for trial to commence on 25 May 2020. I also made an order that if the father was able, he would spend two weekends out of four with the child in Town B. I also made orders that the mother take three trips to the Region M between 31 January 2020 and 25 May 2020 for the purpose of the father spending time with X.

Issues with spending time

The communication between the mother and the father has been suboptimal but, given the history that I have outlined, this is not really surprising. Apart from the communication issue, a major hurdle between the parties is the sheer distance between them.
The father now lives at Suburb O and the mother still lives at Town D/Town B. That is a distance of more than 600 km and it is an approximate seven hour drive between the two residences. Neither the mother nor the father are particularly ‘flush with funds’.
If either party drives between the residences, there really needs to be a deal of planning. If X is travelling by car, it means that he will have no less than seven hours in a car if there are no stops along the way.
A child travelling those distances for those length of time is far from an ideal situation. At his tender age, it is doubtful that X would have a great disposition upon arrival.
The costs for the mother and father are not insubstantial. For the father especially, if driving, he would begin his journey the day before he would be spending time with X to allow him the appropriate rest so as to be able to enjoy the most out of his time with the child. This means that he needs to plan for a night’s accommodation before he spends time with X.
On the Sunday that he spends time with X, he must decide when it is that he should begin the journey back to Queensland. If it is that he must be in Queensland by the Monday morning, this can curtail the time that he spends with X.
Town P is less than an hour’s drive north of Town B and City Q seems to be just over an hour’s drive south of Town B. There are regular flights from Brisbane to both of these centres but plane travel is not cheap and there would still be a need to rent a car from the airport.
For the mother, the problems are similar if it is that she is to travel to Queensland. The difference for the mother is that the majority of her travelling is actually with the child and such provision has to be made for X’s comfort and well-being during such travel.
These arrangements are very frustrating for both parties.

Difficulties complying with the orders

In the last six months, this country has been hit with the most devastating bushfires in decades and the coronavirus pandemic. During the bushfires, the mother and X needed to be evacuated from their home and to seek shelter in a community hall. These disasters have also played their part in curtailing the time that the father has spent with X pursuant to the orders put in place.
This has particularly frustrated the father because he feels that the mother has not done enough to facilitate his time with X. He argues that once the highways were driveable, that the bushfire emergency was not such that would have stopped the mother from driving X up to Queensland to spend time with him. He also argues that the closing of the Queensland border during the coronavirus restrictions should not have stopped the mother from coming to Queensland for the child to spend time with him.
Quite apart from these two extraordinary phenomena, the parents have still found it extremely difficult to agree on times in which the father is to spend time with X. Both the affidavit of the father and the affidavit of the mother, annex numerous emails and correspondence between the parties and their legal representatives regarding arrangements for the father to spend time with X.
I do not plan to trawl through this myriad of correspondence in these Reasons. What does ring true is that there is no trust between the mother and the father and there is certainly no communication. The mother refuses to speak to the father and the communication is only through text messages. The mother uses a second phone solely for the purpose of text messages with the father regarding X.
Any orders that I make regarding time to be spent by the father with X will need to be very proscriptive because it is obvious that these parents simply cannot agree between themselves.

Costs of travel

Both parties have detailed the costs they have incurred in complying with the orders for X to spend time with the father.
The mother has estimated that the costs are $520 every time she travels to Queensland to facilitate time between X and the father. This sum is made up of $200 for fuel, $150 for accommodation and $170 for food.
The mother has estimated her weekly living expenses at $708 and her weekly income as $722 (made up from Centrelink payments and child support).
The mother has investigated other means of travel to Queensland; plane travel, bus travel or train travel. None of these options saves her money and some of the options are worse for X’s well-being.
The father swore, in his affidavit filed 28 April 2020, that his weekly income was between $900 and $1150. He admitted in evidence that, because of the coronavirus restrictions, his employment was reduced to part-time. He could not give the Court any details as to how this has exactly affected his weekly income.
In his affidavit, he said that he spent $385 per week in rent, $100 a week in child support and $60 per week in food. He said that he paid registration for a jet-ski and motorbike as well as paying “lease fees” for a car.
It emerged, in cross examination, that the father had sold the jet-ski and motorbike. It also emerged that his child support was $400 a month which equated to $92.30 a week.
The father had been paying a large amount of money for legal expenses (for this litigation) and he detailed that he was around $35,000 in debt from this enterprise.
The father said, in his affidavit filed 28 April 2020, that it cost him over $400 to “lease the car” that he would use to drive to Town B. He said that he also had to pay for fuel. He detailed what he did to minimise the cost of accommodation but he was still paying over $150.
There was cross examination about the car that the father said that he leased. It would seem that, upon the separation from the mother, the father divested himself of as much property as he could and put the property into some form of trust. It seems that this was done so as to defeat any claim the mother may end up making for de facto property adjustment. The mother has never indicated that she would be making such a claim.
The car, that the father says that he leases from his brother so as to travel to Town B, is the same car that the father used during the time that the parents cohabitated. The car still has the personalised number-plates of the father.
Despite the father producing invoices/receipts dealing with his use of this car, I do have doubts as to the legitimacy of such an arrangement. This has been questioned by the mother and it has been put to me that this is a device of the father to paint an inflated picture of the father’s costs.
Nevertheless, given the incomes of both the mother and father and the expenses of travel between Town B and Suburb O, maintaining any form of relationship between the father and X, will be an expensive exercise if the mother and father remain in their respective locations.

Private Detective

As has been indicated, the mother has alleged the father has committed family violence. One of the aspects to the family violence is that the father has exhibited controlling behaviour. It was put to the father, in cross examination, that he hired a private detective to follow the mother and to report back to the father on her activities. If such an allegation were true, it would be quite indicative of controlling behaviour.
The father denied this allegation. However, in September 2019, the father applied to the child support agency for a reduction in the amount of money that he had to pay the mother for child support. He was paying the mother approximately $100 a week or $400 a month.
In that application, the father had to tick a number of boxes as to what the reason was for his applying to change the assessment. Significantly, he ticked that the assessment did not correctly reflect one or both parents’ income, property, financial resources or earning capacity. In the next section he had to briefly explain why the assessment should be changed.
In this section (which is at page 4 of 14 of the application, which in turn is founded Annexure C of the affidavit of the mother filed 28 April 2020), the father had to briefly explain why he thought the assessment should be changed. In this section he explained, the mother “boasts of the lifestyle she lives. Paying no rent, single pension income as well as cash work”. Lastly he says, “Private detective hired posing as a ‘Friend’. Can produce multiple recordings detailing her use of the money as well as vexatious threats”.
When confronted with this form during cross examination, the father made the bizarre claim that he did not write that last paragraph. He made an even more bizarre claim that the mother had somehow hacked into his application and added that paragraph herself. He gave the explanation for his reasoning as being that he can see minor marks at regular intervals on both sides of the box upon which he wrote his explanation. He claimed that these markings were not visible when he wrote his explanation and therefore must be part of the hacking.
I explained to Counsel for the father that I could not accept that explanation because such markings are consistent with documentation that I view in child support matters and in migration matters. Notwithstanding this statement, the father maintained his explanation when re-examined by Counsel for the father.
The first thing that must be said is that it is extremely difficult to hack into a government department website. To suggest that the mother, who struggles with the concept of photographs being backed up “in the cloud”, could have perpetrated such a hack, borders on ridiculous.
The second thing that must be said is that the disputed paragraph is written very much in keeping with the extensive reasons that had been written by the father in that particular section of the application. Whilst the mother is not an unintelligent woman, I cannot accept that she could write using “the father’s voice”.
The third thing that must be said is that there would be very little reason for the mother to go to such extraordinary lengths to hack the website and to write this particular paragraph. The paragraph only becomes relevant if, in a trial some nine months down the track, the father is cross-examined about this issue and gives an answer inconsistent with this particular paragraph. For the mother to have such foresight and to plan a trap nine months before it would be needed, displays a criminal mind of incredible ingenuity. I cannot accept that the mother is such a person.
The fourth thing that must be said is that this application is a form to increase or decrease the amount of child support. One would think that, if the mother were going to the trouble of hacking this form, she might instead take the opportunity to change the application into one where the father is applying to increase the amount of money he would give to her.
In a similar way to the photograph of Boxing Day 2018, the bizarre explanations given by the father reek of desperation. I find that the father did write that paragraph.

I also acknowledge the evidence of Dr H who was of the view that the child should stay with the mother in Town B.
Whilst the father submits now that the mother could make the move to South-East Queensland, it is at variance with what he said to Dr G on 15 January 2019. As I have already detailed, during that appointment the father spoke of “how he was unable to support the mother at the moment. He stated that she had nobody up here. He stated he had his friends and his mother.”
The application by the father for the mother to relocate is an illustration of what Dr G noted on 1 February 2019 when she commented that the father “was very focused on his needs and what he needed” and that the focus needed to be on X instead.
I decline to order that X live in South-East Queensland.
The father has said that he would not move to the Town B region, or even Town P or City Q. The father has family in the Brisbane/Suburb O area but he lives alone. He has no assets. He is renting a house. He is in a relationship with Ms K but there are no plans for marriage or cohabitation on the horizon. He is employed but that employment has been affected by the coronavirus fallout, and the father does not know if his employment will ever be restored to its pre-coronavirus level.
It would seem to me that the father has very little that anchors him in South-East Queensland. Yet, the father has not truly contemplated a move by him to other areas where he would be closer to X.
The unfortunate consequence of this is that the father, and, to a lesser extent, the mother, will be continuing to expend time, money and emotional energy for X to spend time with the father.

Time between X and his father

Given I have concluded that X should remain living with his mother and that there is a need to protect X from family violence perpetrated by the father, I must now look at what time X should spend with his father to further his best interests, whilst still keeping him safe.
The mother has submitted that if I were to make the conclusions that I have made, that I should order that the father have supervised time with X on four occasions a year. Dr H did not give a real opinion as to what time the father should spend with X if the allegations were substantiated. The father did not make any submissions as to what time he should spend with X if I make the findings which I have made.
Whilst I am of the view that X needs to be protected, I am not convinced that supervised time is the only option. The current regime that sees the father spend a Saturday and a Sunday every month with X has not been detrimental to X.
X remains safe because he is not with his father overnight. X remains safe because the environment, in which he spends time with his father, is one that he knows and with which he is familiar. The time that the father spends with X is sufficient to maintain a meaningful relationship without exposing X to the more unsavoury aspects of the father’s personality. In other words, because the father has such limited time with X, he is always on his best behaviour.
If the father were to have the opportunity to spend a Saturday and a Sunday with X, in Town B, once a month (to be proscriptive, the third Saturday of every month), then such a regime would promote the best interests of X as well as keeping him safe.
I am of the view that such a regime is in X’s best interests. Of course, it is a matter for the father, and his financial position, as to whether he would be able to take advantage of the opportunity to spend time with X. I do realise what a financial burden this places upon the father, but it is the only regime that I can see that actually reflects the best interests of X.
I do not see the need to make any order for X to visit his father in Queensland. X would be taken out of his familiar environment and, in all the circumstances, this would only benefit the father and not X.
I do not see the need to make any orders regarding special days. I accept that the father does not celebrate Christmas or Easter, because of his adherence to the doctrines of Jehovah’s Witness. If the father wished to spend part of X’s birthday or Father’s Day with X, that is something that can be negotiated with the mother in substitution for the visit that the father would have with X in that particular month.
I would think that such a regime should remain in place until X has at least reached the age of seven years, but that there needs to be a number of demonstrated changes in the father before any change to this regime could be seriously contemplated.
I would think that the father would need to undertake a men’s behavioural change course so that he can understand the true nature of how he has behaved and the consequences that such behaviours have on all of those around him.
I would also think that the father would need to undertake psychological/psychiatric treatment that is far more intensive than has occurred to date. I would allow the father to give to any therapist a copy of these reasons so as to inform that therapist of the issues identified by this Court.

Conclusion

I will make orders that enable the father to spend the third Saturday of every month from 9.00am until 5.00pm and the next day (a Sunday) from 9.00am until 1:30pm with X. The changeovers will occur outside the C Café at Town D.
I will also make orders enabling the father to have telephone/FaceTime communication with X once a week.
Those arrangements can be changed by agreement between the parents in writing. Communication between the parents should remain via text message and email or by use of the “OurChildren” website.
I will order that the mother keep the father informed of any medical or other emergency relating to X as soon as reasonably practicable.
Once X begins school, the mother is to provide any report cards to the father.
I will issue injunctions, pursuant to s.68B, prohibiting the father from telephoning the mother unless there is an emergency and from harassing, provoking, assaulting or insulting the mother. I authorise the mother to give to the New South Wales Police Service a copy of these reasons.
I will make the orders that the mother seeks regarding a passport for X and international travel for X. There were no submissions made by the father regarding this aspect and the exercise of sole parental responsibility by the mother encompasses this aspect.
There had been a misguided claim for “spousal maintenance” in the mother’s case outline but this has not been pressed and, in any event, I would decline to make such an order.
There was also the suggestion by the father of the Court making a s.68B injunction to the maternal grandfather to restrain him from coming within 200 m of the father or the residence of the father. I do not consider that there is any such risk that would justify the Court making such an order and I decline to do so.

I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:19 June 2020

[2020] FCCA 1635

19 June 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness