Sandala & Nerandon (No. 3)

FAMILY COURT OF AUSTRALIA

Sandala & Nerandon (No. 3) [2021] FamCA 227

File number(s):	SYC 4956 of 2019
Judgment of:	REES J
Date of judgment:	26 April 2021
Catchwords:	FAMILY LAW – PARENTING – Application by the mother for the child to live with her overseas and spend supervised holiday periods with the father in Australia – Relocation opposed by the father – Where the father has been incarcerated and charged for multiple criminal offences – Where the Court finds the child would be subjected to continual psychological harm in the father’s care – Where the Court finds the father is not a viable custodian for the child – Where it is impracticable for the child to spend supervised holiday periods with the father in Australia – Orders for the mother to relocate overseas with the child and have sole parental responsibility – Orders for the child to have contact with the father and paternal family by post and electronic means only.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	169
Date of hearing:	19-20 April 2021
Place:	Sydney
Solicitor for the Applicant:	Mr O’Sullivan
Respondent:	In Person
Solicitor for the Independent Children's Lawyer:	Stanford Solicitors & Mediators
Counsel for the Independent Children's Lawyer:	Mr Macpherson

ORDERS

SYC 4956 of 2019
BETWEEN:	MS SANDALA Applicant
AND:	MR NERANDON Respondent
STANFORD SOLICITORS & MEDIATORS Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	26 APRIL 2021

THE COURT ORDERS:

That the child X born … 2009 live with the mother in Country B and that the mother have sole parental responsibility for her.
That the mother be permitted and authorised to remove the child from the Commonwealth of Australia.
That the Watch List Order, being Order 7 of the Orders made 28 September 2016, be discharged
AND THE COURT REQUESTS THAT the Australian Federal Police give effect to these Orders by removing the name of the child X (female) born … 2009 from the Airport Watch List at all points of international arrivals and departures in Australia.
That the father be permitted to initiate contact with the child by electronic means, including but not limited to telephone, email, video conferencing and appropriate social media, and by post.
That in order to facilitate these orders, the mother is to ensure that, at all times, the contact addresses of the child, both postal and electronic, are provided to the father.
That the child be permitted to have contact with her paternal grandfather and her paternal aunt by electronic means, including but not limited to telephone, email, video conferencing and appropriate social media, and by post.
That in order to facilitate these orders, the mother is to ensure that, at all times, the contact addresses of the child, both postal and electronic, are provided to the paternal grandfather and the paternal aunt.
That the mother ensure that, at all times, the child is provided with a device suitable to facilitate such electronic contact.
That the mother is restrained from interfering with the contact between the child and the father, her paternal grandfather and her paternal aunt.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandala & Nerandon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

X, who was born in 2009, is the child of Ms Sandala (“the mother”) and Mr Nerandon (“the father”). These proceedings will determine the parenting arrangements for X.
The mother who lives in Country B with her husband, Mr E and their daughter Y aged four years, seeks orders that would provide for X to live with her in Country B and have supervised contact with her father in Australia for two weeks in June/July and for two weeks at Christmas, subject to conditions that included, in summary:

That X wanted the contact.
That the father undertake supervised urinalysis testing not more than five times each year for four years.
That the father undertake hair follicle testing twice each year.
That the father engage a psychiatrist for treatment in relation to his mental health and continue that engagement until the psychiatrist recommends in writing that continued attendance is not necessary.
That the father engage in drug and alcohol counselling until the counsellor recommends continued attendance is not necessary.
The father would be required to give an authority to his psychiatrist and to his drug and alcohol counsellor to advise the mother that his attendance continues.

In the event that the father failed to comply with any one of those conditions, or returned a test result positive for illicit substances, then the contact orders would be suspended, presumably indefinitely.
As will be discussed later, the mother’s proposal is impractical and, in reality, is a proposal for X to spend no time with her father.
Because of the father’s criminal convictions, which will be detailed later in these reasons, it is unlikely that the father would be granted permission to enter Country B.
The father reluctantly agrees that X should live with her mother but he seeks orders that would provide for X to live in Australia and spend every holiday period with him. In the event that X lives in Melbourne, he wishes to spend alternate Wednesday evenings with her.
If an order were made requiring X to live in Australia, the mother will return to Country B without her.
If X lives in Country B, the father seeks orders that she spend the whole of Country B summer holidays of three months with him in Australia and two weeks at Christmas, with the costs of travel for one holiday to be paid by him and the other by the mother. He seeks telephone or video contact, at a minimum, once each week. During periods when X is on holidays with her father, he proposes that he be allowed to travel internationally with her. Specifically, he says that he intends to buy an ocean going boat and cruise.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) and by a report from a single expert, Dr C, who is a child and family psychiatrist.
The mother relied on affidavits sworn by her and by Mr E, her husband.
The father, after the commencement of the hearing, provided a written document which was not sworn or signed. However, no objection was taken to the document and the father was permitted to rely upon it as his evidence in the proceedings.
Neither the paternal grandfather nor the paternal aunt gave evidence in the proceedings although both were interviewed by Dr C.
It is necessary to understand some of the history of this family.
When X was born, the family was living in Country F. The mother is a Country F citizen. The father is Australian.
Both parents made allegations of violence against each other.
In 2011, the father returned to Australia. In 2013, the mother and X joined the father in Australia and they lived in Location H in a house belonging to the paternal grandfather.
The mother met her present husband, Mr E, in Country F in 2014. Mr E is a citizen and resident of Country B. He is employed as a professional.
In September 2014, orders were made in Country F, on the mother’s application, which provided that X live with the mother. It is not clear that the father knew of those orders when they were made.
The mother and X moved to Sydney and the father followed. They separated in 2014 and subsequently divorced. X remained living with the mother but spent time with the father.
The mother deposed that, in May 2015, she relocated to Country F.
In May 2015, X passed into the care of the father in circumstances which are disputed but not relevant to this decision. Whatever may have transpired, the father did not consent to X’s being taken by the mother to live in Country F.
In December 2015, the mother moved to live with Mr E in Country B and they married. She has lived there permanently since.
The mother travelled to Australia at the end of 2015 and in June 2016 to see X. It is her unchallenged evidence that the father did not allow her to see X.
From May 2015, X lived in the sole care of the father.
The mother instituted parenting proceedings in the Family Court. Those proceedings were resolved by consent orders made 11 October 2017. Those orders provided, relevantly, that the parents have equal shared parental responsibility for X and that she live with her father.
Provided the mother arranged for the discharge of orders made in Country F in relation to X, or substituted those orders with orders mirroring the current orders, X was to spend time with her mother in Country B for five weeks at Christmas and in Country F for two weeks in the June/July school holidays. If the mother did not procure the discharge or variation of the Country F orders, the time X spent with her mother was to be in Australia.
The orders provided for the father to sign any document required to enable the variation or discharge of the Country F orders.
It is not in dispute that the mother did not secure the variation or discharge of the Country F orders. In cross-examination, she suggested that it was the father’s responsibility to do that. I reject that suggestion. The mother is a qualified professional in Country F and she must have understood when she entered into the consent orders that she was responsible to procure the variation or discharge of the Country F orders.
The orders required the father to keep the mother informed in relation to X’s schooling and that he ensure that X regularly attend school.
The mother was less than diligent in pursuing her contact with X and the father is rightly critical of her failure to spend time with X.
In cross-examination, the mother said that she spent as much time as she could in Australia, given her holiday entitlements from her employment.
The mother came to Australia in July 2018 with Mr E and Y and X spent time with them.
There is no evidence that she came at any other time. The father said that X was disappointed when she did not see her mother at Christmas in 2018 or on her birthday in 2019.
There were concerns about X’s school attendance. Dr C reported what X told him about school:
[X] had not always gone to school because her Dad told her to stay at home for months because he had a sore ear and didn’t want to take her to school. He had decided to home school her but hadn’t asked about her opinion. They would do half an hour of work and then go surfing together. She had liked school better as she liked her friends and teachers.
Documents produced by the Department of Health and Human Services in Victoria (“DHHS”) record a referral to DHHS expressing concern that X:
…had not attended school for 103 days out of roughly 180 days. Report also of concerns for the Fathers (sic) mental health and wanting to home school X.
Although it is not clear when that notification was made, it appears to have been in the 2018 school year or early in 2019.
In 2019 the father removed X from her school and home schooled her.
He sent the mother an email on 25 or 26 February 2019 informing her of his intention to home school X. The mother responded, pointing out that the orders made in 2017 required him to ensure that X attended school. She stated:
The court order states that X is to attend school in Australia and specifically states that X should not be removed from school for the purpose f (sic) travel as you have informed me is your intention. We both know this was added to the court order because of your inability to wake up in the morning to take X to school. Since you are in violation of the court order, I am writing to inform you that I will be filing this with the court if you do not immediately return X to school.
The father replied:
And don’t preach to me about my ability to wake up in the morning when you are in another country making no physical contribution to her life or needs. You send $120 a month which barely covers a weeks (sic) worth of food for her. Move to Australia I fyou want a say I Her life…
(As per the original)
The mother made a notification to DHHS and contacted the principal of X’s school who told her that X was missing a lot of school and had not attended in 2019.
The mother telephoned the father who told her “I can do whatever I want with X’s life. I have sole custody and your opinion does not matter”.
On 24 April 2019, an incident occurred in the home of the paternal grandfather. X was present. The police were called and the father was arrested, charged and convicted in relation to the incident.
Neither the father nor the paternal grandfather gave evidence in these proceedings about what occurred. X gave her version of the incident to Dr C.
Dr C reported:
87.When asked why she had stopped living with her Dad, she discussed the intervention by child services, DHHS, after her father broke into her paternal grandfather’s house. He had taken her with him and to (sic) her to wait at the front door as he climbed the fence and broke in the back door. She explained that her Grandpa went to sleep early. She and her Dad had driven to his house in Location H. Her father had told her to wait at the front door while he went round the back. Once inside, she had heard her grandfather’s voice and footsteps. Her father had opened the door. X drew a map of the layout of her grandfather’s house (enclosed at appendix). She identified her position in the room and explained that she was “technically in the same room. I just watched my Dad beat up my Grandpa.” X paused and sighed. “I don’t even like talking about it. He pushed my Grandpa into a bin, like that.” (Pointing to a metal bin in the report writer’s office). “And then my Grandpa’s head went into the bin and my Dad started laughing. My Grandpa asked me to get him a cup of water. My Dad was in his study and said, ‘No. Don’t get him a cup of water’, so I just sat there in the small living room. And my Grandpa said that he had to go to the toilet. And my Dad said, ‘Right. Give me your phone then if you are going to the toilet’. Because my Dad thought that he wanted to call or text someone in the bathroom. And then my Grandpa said fine. He put his phone on the table. He went to the bathroom and went back out.” Her Grandpa had subsequently confirmed that he had been planning to make a call but he had already texted her auntie to call the Police. Soon after, there had been a knock on the door and she opened the door to the Police. Her Dad had been angry and stared them down. The paramedics had helped her Grandpa. Her father had been arrested by the Police. She described this as scary. Her father had asked to have a smoke and had argued with the Police. She had witnessed her father being forced into the back of the Police car. X concluded, “I was so relieved when my auntie came. I ran up and gave her a hug.” She had then stayed for five months with Ms J, whom she described as “nice”…
The version of the event recorded by Victoria police largely coincides with X’s:
Today the 24^th of April 2019 at approximately 1900 the [father] visited the [paternal grandfather] at his address with his daughter. The [father] and the [paternal grandfather] had been having an argument about personal issues recently about a house the [paternal grandfather] owns in Location H. The [father] obtained documents dating back 20-30 years ago about the [paternal grandfather] and demanded answers from him. The [father] started getting up in the face of the [paternal grandfather] in a very angry state. This made the [paternal grandfather] scared of the [father].
The [paternal grandfather] has gotten up to get some water and the [father] has pushed him, making him fall on the kitchen tiles. The [paternal grandfather] then became shocked and went to his bed to lay down with his walking stick. The [father] has come into his room in a threatening manner which made the [paternal grandfather] scared.
The [paternal grandfather] then left his bed and went back into the kitchen where the [father] started to ask more questions to the [paternal grandfather] about the documents. The [father] then hit the [paternal grandfather] on the left side of his face but does not know how he hit him or with what hand…
The paternal grandfather’s account was reported by Dr C:
125.He reported that Mr Nerandon had financial problems. [The paternal grandfather] had thus provided [the father] with a house and limited financial support. [The father] had become obsessed with his father having large sums of money and had demanded that he provide him with information. When [the paternal grandfather] declined, [the father’s] demands had escalated. One night, this had blown up when [the father] had turned up with X and his dog. [The father] had been immaculately dressed. He insisted on running a formal meeting. When [the paternal grandfather] had refused, [the father] had pushed him over and thrown papers at him and punched him. The Police had intervened after he contacted them. He understood that X had not been exposed to this as she was in an adjacent room.
The father’s account, given to Dr C was as follows:
26.[The father] had last had contact with X on ANZAC Day 2019, “Lest we forget”. He explained that this was due to “somebody making reports to DHHS” with allegations of drugs. He had had personal issues with his father about his accountant, which resulted in a verbal altercation. He explained that it was “not really physical”. The Police had been called. He had been detained. There were multiple accusations. He had then driven home with X. After 2am, the Police had arrived at his premises. They had shone torches around his property. [The father] had explained, “I thought that it was a bit inappropriate. So I ignored it. I thought X had already been through enough with her father being arrested”…
On 24 April 2019, a Family Violence Safety Notice was issued for the protection of the paternal grandfather and a notification was made by police to DHHS in relation to X.
It appears that the following day, DHHS placed X in the care of her paternal aunt. The record produced by DHHS notes that X spoke lovingly of her father “and initially argued that she was safe and did not want to be removed from his care”. X was described as “mature and articulate”. The record of conversation with X on 25 April 2019 states:
X later confirmed that her father has had issues with his “thinking” and that he had become fixated of late upon certain conspiracy theories. X confirmed that she had been present and was exposed to a significant incident of family violence perpetrated by her father against her grandfather. X further disclosed that her father had punched her to the stomach two weeks ago and that she was in pain and winded for a short period of time. X stated that she was isolated within her home as she doesn’t attend school, has limited friends, no phone and no contact with extended family. She was unable to identify a safety plan for herself.
[The father] has denied protective concerns for X. He presented as paranoid and fixated on his father’s estate and his belief that he was having finances and information withheld from him. [The father] referred to the incident involving his father as “an alleged assault” and stated that he was not mentally unwell and had not used substances for many years.
It is important that X’s expressed concerns about the father’s “thinking” and conspiracy theories were recorded at a time when she had not spent any time with the mother and could not have been, as the father submitted, a result of the mother’s influence.

In relation to X’s accusation that her father punched her in the stomach, the father gave evidence that he and X were discussing the meaning of “Boxing Day” and play boxing and that he accidentally hit her too hard.
The DHHS notes record:
X was asked about alleged recent assault by her father. She confirmed this but stated “when he did it I didn’t necessarily feel unsafe”. She stated “every time he yells he says sorry”. She stated that her father is stressed out and that “he is doing actions on the wrong people”. She stated that her father is in an “unhealthy state” and he is not thinking like normal people might…
The report states:
X stated that she felt the current DHHS intervention could go one of two ways “he could be new, fresh and amazing or he could go on a downward spiral and get worse…”
The DHHS record states that the father was told that X would need to be placed with family overnight and the father’s sister was suggested:
[The father] stated that he does not like his sister and that she is not his family. He denied her true identity and stated that no one could prove she was his sister.
The father, in cross-examination, downplayed the seriousness of the incident. He said that X was removed from his care because of a conspiracy between the police officer husband of his next door neighbour (with whom the father had an affair) and a friend of the neighbour who worked for DHHS, motivated by revenge. When he was asked whether X might had been removed because he assaulted X’s grandfather in her presence, the father conceded that was “possible”.
On 27 April 2019, the father telephoned X and, in the course of the supervised conversation, it is alleged that the father stated that he would kill the paternal aunt if she kept X away from him. On the same day, the father is alleged to have called his sister and left messages on her answering service stating “You watch your back I am coming to get you”. Police issued a Family Violence Notice for the protection of X and the paternal aunt.
Dr C reported the father’s version of this incident;
27.…“It was a blur. I was distraught. My daughter was being held from me.” He had not been legally represented in the subsequent Court proceedings culminating in an Interim Accommodation Order. As the paternal aunt had been rude towards him, he had tried to reassure X that he would “be there for her no matter what” and had told her, “Don’t worry. I’ll kill anyone who tries to take you away from me.” This had been “a stupid choice of words”, which had been in response to the comments of the paternal aunt.
The father was arrested on 28 April 2019 and bailed to attend court on 30 April 2019.
On 30 April 2019, an Intervention Order was made for the protection of X and the paternal aunt as protected persons. Relevantly, the father was ordered not to attempt to locate the protected persons; follow them; contact or communicate with them; approach them or cause another person to do so.
It is alleged that the father breached the Intervention Order by contacting the paternal aunt daily.
The father was charged with assaulting the paternal grandfather; threatening to kill the paternal aunt and breaching the Intervention Order in relation to X and the paternal aunt. He pleaded guilty to all charges although in cross-examination he said that he was not guilty but pleaded to save time and so that X would not be cross-examined. He was sentenced to a 12 month Community Corrections Order.
Dr C reported the father’s statements in relation to these events:
28.[The father] felt that he deserved empathy for his experience. He had been X’s sole carer for five years with little help from her mother. He felt that he had failed X by allowing her to be taken away from him, “so I said some stupid things, in hindsight”. In response, the paternal aunt called the Police, resulting in an Intervention Order. He had been charged with threats to kill. He explained, “It was just wild how things went on.” He explained that he had not attended Court. DHHS had proposed that the Orders be amended to not allow contact unless initiated by X. He viewed this as “a little calculated and deceitful. It was all setting me up for the kill and then I had a huge list of charges building up. I was losing my mind. It was just so surreal.” DHHS had then ceased contact due to concerns about his mental health. He had refused to consult a doctor as required, “because I didn’t think that I had any problems except what had been caused by DHHS. The major concern was that my voice was not heard.”
29.DHHS had obtained an Order for a psychiatric assessment. He explained that he had not refused to attend, rather he had been given an incorrect date. Two days before the planned appointment, he was told that he had been incorrectly notified of the date. He complained that this was a stupid mistake as the office was not open on Fridays. When he was required to attend the following day, he had refused to attend, “because it was not convenient”. He explained that he would have to travel three hours each way from home and that it was not appropriate for this to be required without adequate notice. A further psychiatric assessment had not been arranged. When asked if he regretted not attending, he responded that he did not because it was their fault and responsibility for such circumstances.
On 2 May 2019, X complete a questionnaire given to her by DHHS. Among her answers she said she would like to live with her aunt. Asked “What’s good about where I live?” X wrote “more routine and diet, more family and more normal”.
Other statements by X in the questionnaire were:
What worries me?
Dad getting mad at me because I told everyone about what he’s like.
What I wish was different:
I wish that dad could be like normal dad. (Being happy and not worried about opposite worlds).
How are things at school or work?
I want to go back to normal school, Because (sic) I’ll be able to see my friends again and more of a routine.
What would help me do better?
Go back to normal school.
How healthy do I feel?
Mental: is probably that I have a mix of different emotions when I think about all the stuff thats (sic) happening now.
Is there anything I or others could do to help me feel fitter?
When I’m with aunty…I feel a lot happier. I’d rather stay with aunty…
Who is special to me? This might be your mum, dad, aunts, uncles, friends, neighbours, teachers…
My dog
What can they do to help make things better?
My dad needs to think normally, have a routine and get a job.
Is there anyone else in your family, mob or community you would like to have contact with?
My school friends.
X filled out the questionnaire again and nominated as people special to her “Aunty…Mum, Grandpa, friends”.
In answer to the question “What can they do to help make things better?” X wrote “Dad: Care about other people…”.
On 9 June 2019, X was placed in the care of her mother. Orders were made permitting the mother to take X to New South Wales where she has relatives who could accommodate her.
On 14 June 2019, an Intervention Order was made for the protection of the mother. The father was restrained by that order from contacting the mother, attempting to communicate with her or attempting to locate her.
On 23 July 2019, the father was arrested and charged with breaching the Intervention Order in relation to X. A Helpline Assessment produced by the Department of Family and Community Services in NSW (“DFCS”) dated 30 July 2019, records “[The father] has now traveled (sic) to Sydney in search of X and [the mother]. He is continuing to contact the mother in breach of intervention orders dated 14 June 2019”. The police alleged that the father had travelled to Sydney and was attempting to find X and the mother.
I infer that the terms of the orders made in the criminal proceedings included orders for reporting to police and required the father to reside in Victoria.
In a document prepared by DHHS for court proceedings, it is stated:
[The father’s] aunt and uncle reside in NSW. He attended a club in NSW where he knows his aunt and uncle are members. This information confirmed [the father] was no longer in Victoria. [The father] was asked to leave by his aunt and uncle, however he continued to ask for the location of X adding his intentions were to locate, contact and take X.
The father was held in custody. Corrections Victoria reported:
[The father] has failed to attend community work, an intake phone assessment in relation to his drug and alcohol use, has breached the order by travelling interstate without permission and by further offending, therefore Corrections has issued a warrant for contravening his order.
Corrections will be recommending the Community Corrections Order (CCO) be cancelled, therefore [the father] will be resentenced in relation to threats against his father, threats against his sister
I infer that the father was returned to Victoria.
On 30 July 2019, the mother filed an application in the Family Court seeking orders that X live with her in Country B.
A report produced by DHHS dated 12 December 2019 notes:
…[the father] was referred to Men’s Behaviour Change Program (MBCP)…[The father] was found not suitable to attend the MBCP given his attitudes and beliefs which the intake worker advised he would have concerns in relation to the affect (sic) [the father] would have on the other participants of the program.
The interviews with Dr C were conducted in February 2020.
On 3 May 2020, the father was arrested in Sydney and charged with driving offences including speeding and driving under the influence of alcohol. There was an open can of a mixed alcoholic drink beside him in the car and he told police that he had consumed five cans of the double strength drink. Those charges have not yet been dealt with.
On 6 June 2020, there was another incident between the father and the paternal grandfather. The father was remanded in custody. I am unable to find any evidence of what occurred on that day.
In June 2020, the father was convicted of unlawful assault, persistent contravention of a family violence order, recklessly causing injury and contravening a bail condition. He was sentenced to a term of imprisonment of one month.
On 20 July 2020, there was another incident at the home of the paternal grandfather. Records produced by Victoria Police state:
This is the 5^th reported incident between the parties. …The [father] has been living at the [paternal grandfather’s] home for approximately 2 weeks after being released from prison. The [father] is currently undergoing a custody battle for his young daughter and suffers from an undiagnosed mental health issues (sic). The [father] believes that the [paternal grandfather] has lots of money that he is not sharing with him and also believes that it’s the [paternal grandfather’s] fault that he doesn’t have custody of his child and believes that the [paternal grandfather] is stopping him from contacting his daughter (even though the [paternal grandfather] doesn’t have any contact at all). On Monday the 20^th of July, 2020, the [father] was extremely paranoid and was hassling the [paternal grandfather] about these ongoing issues. The [father] became increasingly aggressive, he held the [paternal grandfather] captive in the household and refuse (sic) to let him leave the lounge room, constantly hitting him across the face and yelling at him for approx. 4 hours. The [paternal grandfather] managed to get out the front door to go and get help from a neighbour but before he could the [father] pushed the [paternal grandfather] back inside. Over the 4 hours the [father] has damaged property, hit the [paternal grandfather] across the face, whipped him with a folded towel, hit him across the face with a [designer] watch leaving the [paternal grandfather] partially unable to see. The [father] has then said to the [paternal grandfather] that he was going to kill him and strangled the [paternal grandfather] until the [paternal grandfather] couldn’t breathe, also shoving his hands down the [paternal grandfather’s] throat. The [paternal grandfather] suffered extreme bruising to his collar bones and neck. The [paternal grandfather] fought with everything causing extremely (sic) bruising and bleeding to 80% of the victims forearms. The [paternal grandfather] was thrown to the ground and left there. [He] managed to call his daughter to ask for help without the [father] knowing and she called for police. On police arrival, the [father] was in a bedroom. He resisted arrest and it took 8 police officers to subdue him. 4 police officers were assaulted…
The father was taken to the police station and remained in custody.
Neither the father nor the paternal grandfather gave evidence before me in relation to this incident. Since only the father and the paternal grandfather were present, I infer that the version of events set out above is the version recounted to the police by the paternal grandfather.
The father was charged with a number of counts of resisting arrest and assaulting police; and, in relation to the paternal grandfather, with criminal damage; unlawful assault; making a threat to kill; assault with a weapon; reckless conduct endangering life and false imprisonment. He was sentenced to a term of imprisonment.
The final hearing of the Family Law proceedings was scheduled to commence on 31 August 2020 but was unable to proceed because of the logistical difficulties created by the father’s being in prison.
On his release, a Community Correction Order was made requiring the father to complete 100 hours of community work; to be assessed and treated for alcohol abuse and to attend an offender behaviour program. Other than the father’s statement that he has participated in those programs, there is no evidence about his progress and he gave no evidence of having learned anything from the programs.
In cross-examination, the father was dismissive about the seriousness of this assault on his own father.
I am not confident that this recitation of the father’s history of offending is complete but the history which is set out is sufficient to demonstrate that the father has a history of violence against his own father and a history of making threats against his sister.
The mother has remained in Australia with X for almost two years, except for periods when she was required to leave Australia to renew her visa. For those periods, X has remained in Australia with relatives. The mother is presently in Australia on a visitors’ visa. X has been granted permanent residence in Country B. Mr E and Y have travelled to Australia to spend time with the mother and X.

THE FATHER’S MENTAL STATE

Throughout the hearing, the father complained that Dr C, who was paid to complete an assessment of his mental health, had not done so. That is clearly not the case. Dr C stated:
31.[The father] was informed that I would conduct a psychiatric assessment. When asked if he viewed himself as having any mental health issues, he dismissed this but joked that he was “not qualified”.
Dr C stated:
47.When asked again if he had any other anger issues, [the father] responded, “I’m sure I have had anger issues. We all do. But there are none that come to mind.”
48.When asked about his resist of arrest by Police, he agreed that this had occurred; however, denied that this was out of anger. He viewed this as “more of a stubbornness”. He had refused to comply and stood his ground.
49.It was noted he omitted the assault of his father. When taken to this, he provided an account.
50.[The father] stated that he had been “pretty worked up that night” and had thrown papers around which had cut his father’s cheek. When asked if he had been intoxicated, he stated that he had had a couple of drinks. He had pushed his father over concerns that had built up over a long period. He had lashed out at his father. He agreed that the alcohol had affected his judgement. This was inconsistent with his own values that physical violence was not acceptable in any form.
The paternal grandfather told Dr C that the father “had a previous history of violent behaviour, excessive alcohol use, ice use and demonstrated a belligerent attitude towards authority”.
In relation to the father’s mental state, Dr C stated:
192.The father’s mental state had affected his parenting capacity. He was identified to have limited insight into his mental health. He had consistently minimised issues related to his unstable mental state, drinking behaviour, drug use, impulse control problems, anger and aggression. He denied excessive use of alcohol or substance use, despite evidence to the contrary. He normalised his obsessive paranoid preoccupations and the impact of this on his parenting capacity.
193.The father had experienced symptoms indicative of undiagnosed Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder dating back to childhood. This had resulted in his expulsion from J School in Year 9, enrolment in a special school for children with behavioural problems in Year 10 and failure to complete Year 11. He had subsequently pursued an apprenticeship despite his high IQ. It was unfortunate that he had not received a diagnosis or effective intervention for this. He did not identify residual symptoms of inattention and impaired impulse control diagnostic of Adult ADD. The paternal grandfather and paternal aunt identified anger management problems dating back to childhood. The paternal aunt was of the view that he was particularly dismissive and abusive towards women. The mother’s account of his dismissive attitude and abusive behaviour towards her was consistent with this as was his dismissive attitude expressed during the assessment. His oppositionality was evident in his response to authority. He was dismissive of the intervention by the DHHS and the police. His narcissistic approach had resulted in persistent difficulties in interactions with family members and authority figures. He thus needed to restrain himself when complying with the instruction of my female Practice Manager to remain in the waiting room rather than going for a smoke. He justified his refusal to comply with the DHHS request that he attend a psychiatric assessment as he had been belatedly informed of a change of date. It was likely that his response to women and authority related to an insecure attachment relationship with his mother, who had been an inconsistent figure in his childhood given her excessive drinking. He had also been exposed to parental conflict related to this. At the age of 11, he had been placed in his father’s care. Although he had maintained regular contact with his mother, it was probable that his exposure to her unstable mental state related to her drinking behaviour and impaired parental capacity had resulted in core personality vulnerabilities. He had subsequently had a difficult relationship with his stepmother, while in his father’s care. It was likely that he had undervalued the importance of his daughter maintaining a relationship with her mother in this context.
194.He minimised his current substance abuse but readily acknowledged excessive drinking behaviour, heavy marijuana use and use of ecstasy, amphetamines and LSD as a young adult. He denied subsequent substance use. This was disputed by the mother and paternal grandfather, who were of the belief that he had continued to use ice and marihuana. He minimised the impact of his drinking behaviour. His police records identified excessive drinking behaviour which culminated in charges of Driving Under the Influence of alcohol. This culminated in the removal of his driver’s licence and the necessity of a control device to prevent driving under the influence of alcohol. He reluctantly acknowledged the negative influence of alcohol on his relationship history. He denied that this was a current problem. Based on his account and the recent clean alcohol and drug screens, there was no evidence that this was a current issue. That said, it was uncertain as to how long he had been in remission from his excessive alcohol and substance use.
195.The father had a brief psychiatric admission under the Mental Health Act in Victoria approximately 10 years ago. He had reportedly presented in a paranoid and agitated state. This had spontaneously resolved. This was suggestive of a drug-induced psychotic state. He was released after several days and refused psychiatric follow-up.
196.X’s account of her father’s behaviour was strongly suggestive of Bipolar Disorder. His assault of the paternal grandfather was consistent with either a drug-induced state, which the father denied, or Bipolar Disorder. The father, however, denied that he had symptoms of a Psychiatric Disorder excepting his acute distress on the removal of his daughter and subsequent incarceration. Interestingly, her treating psychologist, Mr L, had been informed of this diagnosis. There was no family history of Bipolar Disorder or Schizophrenia.
197.At the time of this assessment, his Mental State Examination revealed a narcissistic and obsessive world view. His affect (emotional responsiveness) was labile and fatuous. He was emotional and distressed on seeing his daughter. Although this should be regarded as being within the range of normal experience, his dismissal of the importance of his acknowledged violent behaviour was not. He repeatedly joked about this. He suggested a conspiracy involving the Police and child protection services. In his view, this had contributed to his current predicament. These views were not currently held with delusional intensity. It was probable that at times such views had been held with greater intensity such as when he assaulted the paternal grandfather. X, her mother, her paternal grandfather and paternal aunt all expressed concern regarding this. This had informed his view of religion. He denied that he had a special role or purpose. His episodic anger and aggression had been frightening to his family. It was possible that he had experienced transient psychotic episodes, possibly related to a Mood Disorder, substance use or exacerbated by alcohol. He, however, denied that this was the case. He lacked insight into the impact of such behaviour. He thus minimised strangling the mother when frustrated at her nagging about his drinking with mates she deemed a bad influence. There were disputed accounts between the father and the mother regarding their violent altercations. Even if the father’s account is accepted, his behaviour was not deemed acceptable. Based on the mother’s account, he had been repeatedly violent and abusive. This was consistent with the report of the paternal aunt.
198.X had extensive exposure to the father’s intense preoccupations. She reported distress in response to his behaviour on repeated occasions. It was probable that she had responded in a compliant manner at such times. The father failed to recognised (sic) the impact of his actions on others. This lack of insight was of concern.
199.Following X’s removal, the father had experienced depressive symptoms indicative of an Adjustment Disorder with Depressed Mood. His fleeting suicidal ideation had been exacerbated by his drinking behaviour. It was likely that the father had been at risk at that time. As he normalised this, he had not sought therapeutic intervention. This was characteristic of his world view. In his view, he did not require psychiatric or psychological assessment or support. This placed him at greater risk and limited his capacity for change. He consistently identified his difficulties to be a response to his circumstances and the actions of others, particularly the mother and the paternal extended family. This extended to his dismissive attitude towards the intervention by the DHHS and the Police. This was consistent with Narcissistic and Paranoid Personality traits.
200.Given this history, the father will be vulnerable to a recurrence of depression and suicidality should his contact with his daughter not be sustained. This risk will be heightened by further drinking and substance use. It was also possible that he may have further episodes of hypomania and depression related to Bipolar Disorder. It was not, however, possible to conclusively diagnose this condition. He should abstain from substances and seek psychiatric intervention should he experience further destablisation of his mental state. The maintenance of his current employment will be a protective factor. It was of concern that he had previously been unable to maintain stable employment. There was no indication that he would be willing to engage and comply with psychiatric treatment. This was a function of his lack of insight.

REPORT OF DR C

Dr C conducted interviews in February 2020 and prepared a report dated 5 March 2020.
Dr C was not required for cross-examination and his evidence is thus unchallenged.
Dr C spoke to X’s counsellor, Mr L to whom X had been referred by her general practitioner. Mr L provided a report at Dr C’s request. He had seen X for five sessions of therapy, between September and December 2019. He stated:
She presented as a child who had significantly developed past what was typical for her age, having an excellent ability to articulate herself, have psychological insight into her own mind the mind of others including her peers, mother and biological step father. Generally she presented as psychologically stable, upbeat and happy to attend sessions.
Mr L stated:
She reported being reprimanded and punished when her behaviours were childlike and so was forced to behave and think like an adult to maintain a harmonious relationship with her father. X reported being confused by delusions and paranoid thoughts her father had when there was a mismatch with reality. She eventually became afraid to correct him due to his abrasive responses although had the psychological insight eventually to understand he was unwell. She had developed a rigidity about having to be right due to the fact that often her reality was denied and her father would continually argue a point knowing he was wrong (or was in delusion about it). This was worked through to a large degree in the intervention (seemingly successfully).
She reported being afraid and often terrified for most of the time she spent with him and often contemplated escaping the home, mentally planning out how she would do it and evaluating the risks. She wasn’t able to execute her plan due to fear.
High levels of terror was experienced after her father reportedly punched her in the stomach. Another event where her father violently and without provocation attacked her paternal grandfather (his own father) who had always been seemingly patient, calm and supporting instilled a deep fear in her of him. She was deeply afraid of her fathers (sic) unpredictability and rage.
Mr L commented:
When discussing her father, her demeanour in the room could change and she appeared slightly unnerved although did well to maintain composure and progress with conversation often voluntarily proving deeper explanations into her situation. She described herself as being highly anxious around him, and was terrified of the potential that she would have to see him again although was able to remain empathetic towards his condition. Her mother reported X asking curiously and anxiously about his whereabouts often finding solace in the thought he was in gaol or a (sic) institutionalised in a mental facility and could not find her.
Mr L stated that X reported ongoing nightmares about her father and flashbacks of distressing events. He said that her body language, when talking about the flashbacks “was guarded and indicated distress”.
Mr L concluded:
Overall, there remains a high level of terror around thoughts of her father and the potential of further time spent with him whilst he was mentally unwell. She was anxious generally around the topic of her father but her anxiety didn’t seem to generalise to (sic) many other areas of her life and she enjoyed positive social interactions with friends, the community at large and other family members.
Dr C saw the family about two months after the last session with Mr L.
Dr C reported that X spoke enthusiastically about living with her mother and about living in Country B with her mother, stepfather and half-sister. She told Dr C:
84.“It’s so nice compared to my Dad. It just feels like a normal family again. When I was living with my Dad I wished I could live with her. When my sister came, I played with her. She would come into my room and nag me. She can’t speak properly. So I missed her when she went back to Country B. I started crying. I just missed the times that we had together.”
85.X told me about her stepfather, Mr E, and laughed about their shared interests. This included their interest in sports and Star Wars. She smiled and laughed as she spoke in an enthusiastic manner about their interactions. He would treat her and her sister, Y. (sic) the same. They would play together. She described him as being “really soft”.
Dr C asked X about her experience of living with her father. He reported;
88.…X explained, “It was OK. He was super nice in front of other people. But he yelled at me a lot for not going surfing with him. He acted so different in front of people. He was nice to everyone else except for me”. When asked if there were some good times, she sighed and said that there were. She spoke about the “crazy things” he did, “it was like two whole personalities, one nice and then the bad personality”. She identified that the bad personality would be “crazy”. He would talk about being Jesus and God, Judgement Day, spying, going to die and nothing being real. Her father would speak in a pressured and agitated manner. If he drank a lot, this made him worse. At other times he was “super silent” and locked himself in his room. He would walk around in an agitated manner looking at old photos, documents and papers.
89.At other times, they surfed together and enjoyed ice-cream with friends but, after one Bourbon, he would want another and more and more and more. The next day, he would be super paranoid. Sometimes he was “super paranoid” even when he did not drink.
X could not remember living with both parents together. She told Dr C:
91. …“My Dad told me that she left because she didn’t care about me. But my Mum said that that wasn’t true. My Dad said that he needed to sign a passport but he didn’t want to because she wanted to move to Country B but my Dad didn’t want her to and was annoyed.” She recalled packing up all her toys in a box. She had been lying on the couch crying and her Mum was crying because she was leaving.
In relation to X’s conversation about her father, Dr C reported;
80.Although X did not recall her nightmares, she related their onset to exposure to her father’s assault of her paternal grandfather. The memories of this had precipitated the nightmares.
81.X patted the therapy dog as she spoke of her distress at witnessing her father throw her grandfather across the room…
X told Dr C that, when she lived with her father, she had occasional contact with her paternal grandfather and had “barely seen” her paternal aunt, Ms J.
X told Dr C that she felt “sad and scared” when she thought she might not be able to live with her mother and sister in Country B and “I may have to go back and live with my father”.
Dr C reported his observation of the interaction between X and her father in the following terms:
97.X was hesitant prior to her father’s arrival. She went to the bathroom. On her return, her father had already arrived.
98.[The father] was tearful. He gave her a big greeting and a big hug. He smiled as he said, “It’s been a while! What’s happening?” X responded with a detailed description of her life experience. She spoke about her success in Maths, nice teacher and outings to the movies with her mother and Y.
99.[The father] spoke enthusiastically about his work with M Company. He apologised for crying, “Sorry. I’m feeling a bit sad but also happy. It’s been a long time. One tenth of your whole life I haven’t seen you. 1/38th of my whole life. Did the Maths coaching help?” X responded that she had gone further with Maths now.
100.The father told X “I’m not angry about anything. I’m your Dad.” X responded, “I don’t know if you’ve already heard, but I want to live with Mum”. The father responded, “We can discuss that in time. I’m happy for you to live with Mum but not in Country B. I’ve said that. It just sucks that your Mum wants to be in Country B. It would be easier in Australia. We can discuss that all in good time. We’ve been apart for a long time.” He continued to cry. He apologised again and spoke about the awkward situation. He repeatedly stated that he didn’t want her to feel pressured and that she was his daughter. He repeatedly stated that he wanted her to be happy and that he wanted her to be in his life. He continued, “It all sucked. You know how I said that I wished that I never left Suburb N.”
101.X chatted about playing with Y. Although initially hesitant and cautious in interacting with her father, she chatted enthusiastically. Father and daughter smiled at each other. He chatted about Christmas and birthday presents for her. He asked if she was still skating and surfing but X was hesitant in her response. Her father spoke of how proud he was of her competence in the water.
102.He discussed their shared interests in Star Wars and offered her logins for Netflix, Stan and Amazon Prime. He expressed interest in her sports watch and talked more about his life at M Company.
103.[The father] remained intense, emotional and jokey in their interactions. He commented, “I’m still the same Dad. I don’t know what people say about me.” X responded that people didn’t talk about him. He asked about Ms J and her boyfriend. She responded that he was nice. [The father] said that it had been hard for him but she had had the opportunity to hang out with her Mum for a year. He recognised that now that she was a young woman that she needed her Mum. He told her that she could call her at any time. He repeatedly stated that it was not her fault, not her doing and that he needed to fix it up with Mum. He spoke about them both loving her and that the distance made things hard. X responded by talking about how it was currently snowing in Country B.
104.The father commented on “the awkward first step, breaking the ice”. He reassured her, “Don’t stress, dude!” He recalled their shared joke about “Bop, she bop, she bop”. Although X looked awkward, she told him that she remembered. He showed her photos of his furnished apartment in Suburb N and discussed his plan to convert his van to a camper. Although X responded, “That’s cool”, she looked to the report writer with evident discomfort.
105.The father spoke of the importance of not growing up as a traumatised child. He hoped that he had given her “enough life skills to figure that out”. He asked if anyone had said that she could call him. X appeared nervous, increasingly hesitant and uncomfortable. When he told her that they could talk about other stuff, she provided a further detailed narrative of her life experience.
106.The father asked her whether she would like to go to Country B. X affirmed that this was the case as she had been away from her Mum for so long. When asked if this was OK, her father responded, “Yeah. It’s up to you. I won’t believe what other people say. It’s been good to hear from you. Just so long as I get to see you. You know how me and your Mum don’t get on.” X responded that her Mum had said that she could come to see him in the long school holidays in Australia. The father responded that it had been “a long and drawn out process” and that she still might change her mind again but added, “If that’s what you want, you’re not my property.”
107.When X spoke of the “really cool milkshakes” in D City, he responded that he didn’t like Country B. He talked of how it had been “just you and me for so long… I have hated every day not having you around. It’s been pretty crap. I do miss you. I love you so much. Don’t worry about your Dad. We could go for a surf sometime and arrange it sometime. I’m glad that your Mum’s around and your Dad’s around”. Despite these reassuring words, the father was unable to contain his emotional distress. After chatting about TV shows, he spoke of spending time in the future together, getting a yacht and going sailing. He asked her if she still loved chips. X joked that she had told Mum that it was Dad’s fault that she loved eating chips; she was only allowed them once a week. He responded that her mum ran a tight ship and was super smart. X spoke about doing her homework with her mum and that she was good at everything.
108.The father again reassured X, “It’s not your fault. Your Mum chose... it’s bad but it’s not your fault. You haven’t chosen. It’s not your fault. Unfortunately, the decisions are not made by you.”
When Dr C spoke to X at the end of the assessment, she said that she had found spending time with her father “difficult and awkward”. She said:
133.…“I want to go and live with my Mum and my Dad doesn’t want that. I’ve been with him for four years. I don’t have any memories of living with my Mum.” She repeated her motivation to reside in Country B and maintain visits with her father and paternal extended family in Australia. At present, she was uncertain about seeing her father, “It’s just hard. I feel bad not to see him but I haven’t seen him for so long. I’ve been trying to forget about it. I want to live with my Mum but I don’t know what to do. What do you think is the best choice?”
Dr C observed X with her paternal grandfather and noted an affectionate interaction.
The paternal grandfather spoke separately to Dr C who reported;
127.[The paternal grandfather] respected [the father’s] love of X. There had been many good times. They had got on extraordinarily well. They had shared a love of the surf. X had enjoyed her engagement with the kids’ surf club and had won many awards. Her mother was unable to support such activities and did not swim herself.
128.He identified that [the father] had not complied with the intervention by the child protection services.
129.[The paternal grandfather] expressed his concern regarding the future. He had previously experienced difficulties in his relationship with [the mother]. He did not regard her to have previously been adequately interested in supporting X’s activities. She had difficulty in attending to domestic duties as she was used to having servants in Country F. [The father’s] stepmother had been very involved with X. On one occasion, [the mother] had secreted their family silver in her suitcase prior to returning to Country F.
130.That said, [the paternal grandfather] understood that X wanted to live with her mother and sister, Y, in D City. He supported this. In a perfect world, it would be possible for X to be parented by both parents in Australia but he understood that this was not possible. He also understood that [the father’s] criminal record would limit his contact with X in Country B. He expressed concern about [the father’s] reaction should X be allowed to relocate with her mother to Country B. That said, he understood that [the father’s] stint in gaol had given him motivation to act in a different manner.
131.He understood that [the paternal aunt] had refused to tolerate [the father’s] bad temper, moods and oppositionality. She had volunteered to care for X on her removal from her father. He understood that [the father] had frantically tried to locate X on her removal. He identified [the father’s] behaviour to have been paranoid at times. He noted his preoccupation with Scientology in the past. Nonetheless, he viewed [the father] as having a very good brain and being very perceptive.
Dr C also spoke with X’s paternal aunt with whom she had lived immediately after being removed from her father’s care. Dr C reported;
146.[The aunt] had longstanding concerns regarding [the father]. Since the age of 15, he had been volatile with severe temper issues. She alleged that he had assaulted her and other family members. Once an adult, she discontinued contact due to his volatile and violent behaviour.
147.When asked about the family history of psychiatric illness, she identified [the father’s] involuntary admission 10 years ago. The paternal grandmother had a history of alcoholism and addiction. She spoke of the breakdown in the relationship between [the father] and the paternal grandfather and herself which resulted in Intervention Orders to protect them. This was despite [the father’s] financial dependence on the paternal grandfather.
148.When X had been placed in her care, she lacked table manners. She did not know how to use cutlery. She had behavioural issues and a problem with discipline. She asserted that [the father] had kept X isolated when in his care. It was her view that X required a stable family structure.
149.She expressed longstanding concerns regarding [the father’s] character and nature. In particular, she observed his aggressive attitude towards women. She questioned how he would manage X when she hit puberty and became a teenager. She questioned whether he would have the capacity to manage her likely challenging behaviour. She emphasised that X needed her mother.
Dr C’s recommendations are set out:
207. I would respectfully recommend to the Court the following:
1. Sole parental responsibility for the child with the mother.
2.For the child to be permitted to relocate to Country B in the care of the mother in line with her proposal. This would enable her to establish a stable family life with her mother, stepfather and younger sister. It was likely that her developmental needs would be best attended to under such circumstances.
3.For regular telephone and Skype contact to be established between X and the father.
4.Contact visits should proceed provided that the father has a stable mental state at the time. The father should make an undertaking to be abstinent from alcohol and other substances immediately prior to, and throughout, any periods of contact. The provision of chain of custody urine drug testing and an assessment of his mental state may be required immediately prior to visits given the lack of trust that the father will comply with such requirements.
5.The maintenance of regular contact with the paternal extended family, including the paternal grandfather and paternal aunt as arranged by the mother.

CONSIDERATION

The father reluctantly concedes that X should live with her mother but only if she and the mother remain resident in Australia.
The mother clearly stated that she would not remain in Australia and that she would return to Country B, to her husband and Y, with or without X.
The mother’s proposal that X have two periods of supervised contact each year in Australia was disingenuous.
She did not even attempt to explain how supervision, for 24 hours each day for 14 days could be organised. In her trial affidavit, she deposed:
86.Provided [the father] completes the conditions …and, in accordance with X’s wishes, I will arrange flights for X to spend time with [the father] and the paternal family for two weeks during the Country B summer school holiday period and for 2 weeks during the Christmas period. I propose that during these times X reside in [the paternal aunt’s] home and supervised visitation be arranged by a supervised service provider of my choosing, assuming [the paternal aunt] does not wish to perform that role. If [the paternal aunt] cannot or is unwilling to have X stay with her then I am willing to accompany X to Australia.
The mother had Dr C’s report for over a year before she swore her trial affidavit and must have been aware of the paternal aunt’s attitude towards the father. There is no indication in the mother’s affidavit that she had discussed her proposal with the paternal aunt and there is no evidence from the paternal aunt about her willingness to facilitate contact between X and her father.
The mother deposed that X has contact with her aunt by telephone at X’s instigation but she does not suggest that X has spent any time with her aunt since coming into her mother’s care.

The mother does not give any evidence of X having telephone contact with her paternal grandfather and there is scant evidence of X’s spending any time with him since she has been in the care of her mother. The mother deposed that there was a farewell dinner with the paternal grandfather and aunt in June 2019. The father in his statement referred to one telephone call between the paternal grandfather and X.
The mother’s evidence is that she encouraged X to call her father on her birthday in 2020 and that, after a brief conversation, X became distressed and ended the call.
I accept, however, that X has her own mobile phone and can phone her father or grandfather freely if she should wish to.
I do not regard the mother’s proposal for supervised holiday visits as genuine and, despite her protests to the contrary, I do not accept her evidence that she believes that it is important for X to have a relationship with her father and the extended paternal family.
But this court has no power to order the mother to remain in Australia.
If X is not permitted to leave with the mother, where and with whom will she live?
I accept the evidence of Dr C that X has been, and would continue to be subjected to psychological harm in the father’s care and that he is not a viable custodial parent.
Dr C stated:
171.X had been exposed to an incident of family violence which precipitated her removal by DHHS. X’s own account of this traumatic incident, during which she was exposed to her father’s violence towards her paternal grandfather, was consistent with the account of the paternal grandfather and documentation provided by the Victorian Police and child protection services. Her father had taken her to the home of the paternal grandfather on the evening when he had assaulted the paternal grandfather. He lacked insight into the inappropriateness of exposing X to such stressful circumstances and the psychological harm of such exposure. During the subsequent investigation by DHHS, X disclosed other incidents of physical and psychological harm while in the care of the father as a result of abuse, neglect, exposure to family violence and parental conflict. This was consistent with X’s account to the report writer and the mother’s expressed concerns. There was no suggestion that coaching had contributed to such disclosures. She disclosed the father’s unstable mood, anger and aggression, exacerbated by his use of alcohol. X did not have any recollection of related events from her early childhood. The father’s background unstable mood, episodic anger and aggression, particularly in interactions with women, was detailed by the mother, paternal grandfather and paternal aunt. This was denied and minimised by the father. The report writer, however, formed the view that it was probable that he had repeatedly exposed the child to psychological harm as a result of such behaviour…
I accept the evidence of Dr C, at paragraph 192 of his report, that the father’s mental state has affected his parenting capacity.

any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

X’s views were made clear to Dr C. He described her as bright and articulate. Both DHHS and Mr L commented on her maturity and intelligence.
X clearly expressed to Dr C her desire to live in her mother’s care in Country B with her sister and step-father. Dr C reported:
173.…She detailed such views in a mature manner, consistent with her age. While the father was correct in identifying that she had never visited Country B, let alone lived there, there was no indication that her motivation related to unrealistic expectations of Country B culture and society. Her priority was to reside with her mother, sister and stepfather. She was aware that it was not possible in Australia. She had been influenced in such views by her life experience, including the years in her father’s care, loss of regular contact with her mother and the re-establishment of her mother’s primary care over the past 11 months. There was no indication that she had been coached in her expression of such wishes. She was thoughtful and responsive to the impact of such views on her father. After repeatedly expressing her desire to relocate with her mother to Country B, she acknowledged that it was difficult to be sure that this was the correct decision, thus asking the report writer for guidance, which I could not give. Although aligned with her mother, I did not identify her to be alienated from her father.

the nature of the relationship of the child with:

each of the child’s parents; and
other persons (including any grandparent or other relative of the child);

Dr C identified a close and loving relationship between X and her mother and a positive connection with her sister and step-father. Dr C also identified a positive relationship with her paternal grandfather and aunt.
Dr C stated that X’s relationship with her father was important to her.

the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

to participate in making decisions about major long term issues in relation to the child; and
to spend time with the child; and
to communicate with the child;

The father’s criticisms of the mother’s failure to spend time with X between May 2015 and June 2019 were justified.

the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

There is no evidence that the father currently pays any child support.
The mother paid Child Support of $120 per month while X lived with the father.

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Dr C stated:
180.X had already had the experience of being separated for extended periods from each of her parents. This had been a disruptive and disorganising experience. The priority at present is to provide her with a stable base for her psychosocial development.
That evidence was unchallenged.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

Both the practical difficulty and the expense of face to face contact are extreme as has been explained earlier in these reasons.
Setting aside the cost of international travel, it is difficult to envisage a scheme or orders which would allow X to travel to Australia and spend supervised time with her father.
Unsupervised time with the father is unsafe for X because of his unpredictably violent and volatile behaviour.

the capacity of:

each of the child’s parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

Both the mother and the step-father have the capacity to provide for X’s needs. They will provide her with a stable home and support her educational and emotional needs. The exception to that statement is that I am not confident that the mother is supportive of X’s having an ongoing relationship of any nature with her father.
That being said, the evidence does not suggest that she will do anything to prevent X having some contact with him. It may be that her attitude will be that X can contact him if she wants to.
I do not accept that either parent is likely to encourage X’s relationship with the other. There is no evidence that the mother has done much to help X mend her relationship with her father.
The father, throughout his evidence, emphasised the mother’s failings in keeping in contact with X and the mother consistently blamed him for keeping X from her. It would appear that telephone contact that X had with her mother, while she lived with her father, was instigated by X’s phoning her mother.
Dr C stated, in relation to the father:
183.The father highlighted his intelligence and competence as a parent. His love and connection with his daughter was evident both in his statements and observed interactions. He identified his capacity to attend to the child’s developmental needs. He was thus proud of her capacity to surf, skate and self-care, as a result of his parenting. He lacked insight into his areas of vulnerability when addressing this. He failed to identify the impact of his unstable mood and obsessional preoccupations on his daughter. He failed to identify the limitations in his idiosyncratic approach to her general development and education, including her removal from formal education and failure to support her relationship with her mother. He repeatedly expressed a lack of respect for social norms, including the need to cooperate with educational, child protection and law enforcement agencies. He considered his approach to the child’s intellectual needs to be at a high level and lacked insight into his shortcomings as an educator. It was noted that he had failed to complete Year 11. He had been asked to leave K School due to his oppositional and defiant behaviour as a young adolescent and had been placed in a special school for children with behavioural problems in his own childhood. The paternal aunt identified that [X] lacked basic X (sic) living skills related to the use of cutlery at the time of removal from her father’s care. She raised questions regarding his capacity to care for X as an adolescent as she goes through the process of separation and individuation and develops into a young woman. The report writer shared this concern.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

X has both Country F and Australian heritage. She has extended family both in Australia and in Country F.
The mother has travelled frequently to Country F and no doubt X will also travel to Country F in her mother’s care and be exposed to that culture.
In circumstances where I do not propose to make orders that X come to Australia to spend time with her father, it can only be hoped that, at times in the future, she will be able to travel to Australia to spend time with her paternal aunt and grandfather and thus maintain some ties with her Australian heritage

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Dr C stated:
185.Both parents demonstrated a loving attitude to the child and emphasised their desire to attend to the responsibilities of parenthood. Each blamed the other for obstructing their capacity to do so…
The father cared for X as a sole parent from May 2015 until April 2019. Whilst his commitment to her welfare is undoubted, the decisions that he has made in relation to her have not, in respect of some major issues, been of benefit to her. That is particularly so in relation to her schooling which was neglected, at least in 2018, when her absences from school were very significant.
Dr C identified the deficits in the father’s parenting:
202.…her father’s dismissive attitude towards her mother; loss of contact with her mother for an extended period; her father’s assault of her paternal grandfather; her removal from her father’s care; suspension of contact and multiple changes in her home and school environment.
Nevertheless, Dr C identified X as “a highly competent individual” and the father must be given some of the credit for that circumstance.

any family violence involving the child or a member of the child’s family;

The issue of family violence is extremely significant in informing the parenting arrangements for X.
This is particularly so in relation to the assault on the paternal grandfather in the presence of X which has had a long standing and serious effect on her.
Dr C stated that X’s exposure to family violence and parental conflict has had a significant impact on her emotional development.
Any mandatory consideration of the benefit to X of spending equal time with each parent must fall away in the face of the violence against the paternal grandfather.

CONCLUSION

The father is not a viable custodian for X.
The choice is therefore whether she lives with her mother in Country B or whether her parenting arrangements are made by the appropriate state welfare authority.
There is no other proposal.
The orders will permit X to live with her mother in Country B.
In relation to the difficulties of X’s maintaining a meaningful relationship with her father, I am conscious of the primary considerations set out in the Family Law Act 1975 (Cth) in the following terms:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The benefit of maintaining a meaningful relationship with her father must, in the circumstances in which X finds herself, give way to the need to protect her from the consequences of his volatile and unpredictable behaviour and mental state and the resultant psychological harm that Dr C has identified.
The overwhelming priority for X is that she have a safe and stable home.
X is not safe in the care of her father and I am unable to craft any regime of supervision that would be practical to achieve face to face contact.
However, it is important that X have to opportunity to maintain contact with her paternal grandfather and her paternal aunt, if only by electronic means.
It is also important that her father has some opportunity to have electronic contact with her and the orders will provide for him to be provided with the relevant contact addresses. Whether X chooses to engage with her father will, ultimately, be up to her.

PARENTAL RESPONSIBILITY

Any presumption in favour of equal shared parental responsibility is rebutted by the family violence to which X has been exposed.
Dr C identified the long-standing problems between the parents interfering with the possibility of respectful communication between them and mutual problem solving.
Observation of the behaviour of both parents during the father’s cross-examination of the mother confirmed Dr C’s view. Their interaction was loud, volatile, rude and mutually disrespectful and disparaging.
It is not practical for these parents to share decision making in relation to X and the mother will have sole parental responsibility.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated: 26 April 2021

[2021] FamCA 227

26 April 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness