Scalero & Belmonti
[2021] FCCA 1073
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Scalero & Belmonti [2021] FCCA 1073
File number(s): BRC 14212 of 2019 Judgment of: JUDGE MIDDLETON Date of judgment: 20 May 2021 Catchwords: FAMILY LAW- parenting – where there is one child of the relationship – where there are findings of family violence - whether the father poses an unacceptable risk of harm to the child – where an order for no time is made. Legislation: Family Law Act 1975 (Cth) pt VII ss 60B, 60CC, 61DA Cases cited: Amador & Amador [2009] FamCAFC 196
Betros & Betros [2017] FamCAFC 90
M & M [1998] FamCA 1742
Mazorski v Albright [2007] FamCA520
McCall v Clark [2009] FamCAFC 92
Number of paragraphs: 96 Date of last submission/s: 5 May 2021 Date of hearing: 23 & 24 March 2021 Place: Brisbane Counsel for the Applicant: Ms Bertone Solicitor for the Applicant: McNamara Law Counsel for the Respondent: Mr Neaves Solicitor for the Respondent: GLG Legal Counsel for the Independent Children's Lawyer: Mr Hughes Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
BRC 14212 of 2019 BETWEEN: MS SCALERO
Applicant
AND: MR BELMONTI
Respondent
ORDER MADE BY:
JUDGE MIDDLETON
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS:
1.The mother have sole parental responsibility for the child X born in 2017 (the child).
2.The child live with the mother.
3.The child spend no time with the father.
4.All previous orders are discharged.
The Independent Children’s Lawyer is discharged.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Scalero & Belmonti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
This is a parenting matter involving X born in 2017, she is three years and 11 months old at the time of hearing the matter.
The Applicant Mother (the mother, aged 40) and the Independent Children’s Lawyer (the ICL) seek orders that would prevent X having any relationship with the Respondent Father (the father, aged 47).
For the reasons that follow, I am satisfied that it is in the best interests of this child for her to have no contact with her father at all.
The parties commenced cohabitation in 2003, married in 2007 and separated on a final basis on 25 November 2018. The parties lived under one roof after separation until the mother left the former matrimonial home on 27 April 2019.
X has not seen her father since 31 May 2019.
The mother alleges that the father perpetrated significant family violence in the form of coercive controlling behaviour, threats to kill her, threats to have her and her mother bashed and gang raped and repeated derogatory comments towards her. Furthermore, the mother alleges that the child is petrified of the father due to his aggressive behaviour toward the child including smacking her leaving hand prints, shaking her and yelling in her face on many occasions.
The father denies all of the allegations save for admitting to telling the mother that he would “put a bullet in her”.
There is a current domestic violence order made on 14 August 2019 and expiring on 13 August 2022. The domestic violence order names the mother, maternal grandmother and the child as persons in need of protection.
ISSUE
The issue for determination is whether the father poses an unacceptable risk of harm to the child.
MATERIAL
The Mother relied upon the following material:
(a)her case outline filed on 11 March 2021;
(b)her initiating application filed on 22 November 2019;
(c)the trial affidavit filed on 19 February 2021;
(d)the affidavit of the maternal grandmother filed 19 February 2021;
(e)a notice of risk filed on 22 November 2019;
(f)her written submissions filed on 7 April 2021.
The father relied upon the following material:
(a)his response filed 8 July 2020;
(b)his trial affidavit filed the 19 February 2021;
(c)his case outline filed 18 March 2021;
(d)his written submissions filed on 21 April 2021.
The ICL relied upon the following material:
(a)the affidavit of Ms C filed 13 November 2020;
(b)the written submissions filed on 5 May 2021.
ORDERS
The mother seeks the following orders:
(a)That the mother have sole parental responsibility for making decisions regarding the major long-term issues for the child X born in 2017, currently 4 years (here in after referred to as the child).
(b)The child live with the mother; and
(c)The child spend time with the father
The father seeks the following orders:
(a)that the mother and father retain equal shared parental responsibility for the long-term care, welfare and development of the child X born in 2017;
(b)That the child live with the mother;
(c)The child spend time with the father at all times to be agreed between the parties but failing agreement as follows:
(i)each alternate weekend from 5:00pm Friday until 5:00pm Sunday;
(ii)upon the child commencing school in 2020, for half of each school holiday period including the Christmas school holidays at times to be agreed between the parties or in the absence of agreement, with the father, for the first half in even-numbered years and in the second half in odd-numbered years
(d)that notwithstanding anything stated in paragraph C, the mother and father shall each spend time with the child on each of the following special days:
(i)For half a day on the child’s birthday (1:00pm until 5:00 pm) with the parent who would not otherwise spend time with the child and the child’s birthday or if the child’s birthday is in a school day for at least three hours after school at times to be agreed;
(ii)if the mother would not otherwise spend time of the child Mother’s Day, with the mother from 9:00am until 5:00 pm on Mother’s Day or otherwise as agreed;
(iii)if the father would otherwise spend time the children Father’s Day, with the father from 9:00am until 5:00pm on Father’s Day or otherwise as agreed;
(iv)for half of Christmas Day at times to be agreed in the absence of agreement;
(A)in even-numbered years:
(i)with the father from 5 PM Christmas Eve until 2 PM Christmas Day;
(ii)with the mother from 2 PM Christmas Day until 5 PM Boxing Day
(B)in odd-numbered years:
(iii)with the mother from 5 PM Christmas Eve until 2 PM Christmas Day;
(iv)with the father from 2 PM Christmas Day until 5 PM Boxing Day
(e)That for the purposes of changeovers, the parties will meet at a local police station.
(f)This order shall authorise all schools, day care, medical practitioners, general or special dentist or other professional persons dealing with the child provide to the other parent any and all information including school reports, newsletters, school photographs, order forms sought by him/her and after his/her request and that his/her expense (if any).
(g)That the parties are to keep each other informed of their current residential address and contact telephone numbers and are to notify each other of such change to those details occurring within 48 hours.
(h)That each party shall forthwith notify the other of any medical emergency affecting the child.
THE LAW
As this decision involves parenting orders for a child Part VII of the Family Law Act 1975 (Cth) applies.
Informed by the objects and principles contained within section 60B I must make orders in the best interests of this child. In determining what is in the best interests of this child I must give consideration to those matters set out in section 60CC.
As there is a current domestic violence order in place, section 60CG is particularly relevant. Consistent with the child’s best interests, I must ensure that the orders I make are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
The mother seeks an order for sole parental responsibility and in those circumstances section 61DA must be considered and a determination made as to whether the presumption applies or otherwise.
CONSIDERATION AND FINDINGS
The mother was cross-examined by both Counsel for the father and the ICL. The mother was responsive at all times and she was not shaken at all in relation to the allegations of family violence. I found the mother to be a witness of credit and that she was a truthful historian.
The maternal grandmother was also cross-examined. She was a very honest, very forthright and very believable witness. She too was unshaken in relation to her evidence concerning family violence.
The father was cross-examined by both Counsel for the mother and the ICL. The father contradicted his own evidence at times. For example:
(a)he gave evidence that he never took holidays and that he always worked and only took public holidays and sick days. He later changed his evidence to say that he took two weeks off when the child was born. When it was put to him that he changed his evidence in relation to holidays, he stated that he “wasn’t asked about it.”
(b)The father came into possession of the mother’s iCloud messages. He said he did not want those and that he sought advice from his friends Mr B and Ms D as to how to stop the messages coming in. Those messages were in annexed to the mother’s affidavit and clearly show that the father’s friends told him to “keep taking photos of the messages as it is evidence against her LOL.”
(c)The father gave conflicting evidence as to the number of times he saw the child at McDonald’s after the mother left home.
(d)The father could not provide an answer to questions about the anger management course that he had undertaken with E Counselling. There was a distinct lack of clarity concerning the father’s answers.
I formed the view that the father changed his evidence a number of times in an attempt to cast himself in a more positive light. At one stage, he even accused the Counsel for the mother of changing his answers.
I also formed the view that the father was minimising his own actions, not taking responsibility for his own actions, attempting to blame others for his actions and having absolutely no insight into how his behaviour may have affected others.
Overall I formed the view that the father was a dishonest historian and a very poor witness. He simply was not credible.
Primary Considerations
The child has a loving and meaningful relationship with her mother. There is no evidence to support a finding that the child has any relationship with the father and indeed the evidence satisfies me that the father had a distinct lack of interest in the child when the parties lived together.
The child has not seen her father since 31 May 2019. There were a number of times when the father was being cross-examined that I formed the view that he was more aggrieved at the loss of his two dogs “F” and “G” than he was at the loss of his relationship with his child.
Justice Brown in the decision of Mazorski v Albright [p2007] FamCA520 at [25] and [26] said:
[25] the Macquarie dictionary, 4th ed, Macquarie University press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] what these definition convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant”. Which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations in the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in the best interest, substantial and significant.
The evidence of the mother and maternal grandmother were that the father did not want to have a child with the mother. Indeed she miscarried on a number of occasions. It was the mother’s evidence, together with the maternal grandmother’s evidence, that the father was happy about the miscarriages. The father conceded that he did not want a child.
I am satisfied on the evidence of the mother and maternal grandmother that the father played a very little role with the child when she was first born. Indeed the father gave evidence under cross-examination, that the first two weeks was a bonding experience for the mother only.
It is an agreed fact between these parties that the father worked night shifts and that he would sleep until 1:00pm or 2:00pm most days. The father conceded that he wanted the home to be quiet whilst he slept. Whilst he denied at all times being angry, he did accept that it was frustrating when the house was noisy.
The mother gave evidence that the father would yell and scream if he was woken by the child crying and that the child became terrified of loud noises. The father conceded that he raised his voice but denied ever screaming in the faces of either the mother or the child.
It is the father’s evidence that he took two weeks off work when the child was first born. I do not believe the father when he tells me this. However, even if I accept it is true, it is quite clear that in the two years that the child lived with him and the mother in the former matrimonial home, the father was either working through the night or sleeping through most of the day. In short, he had very little quality interactions with the child.
The Full Court, Bryant CJ, Faulks DCJ and Boland J in McCall v Clark [2009] FamCAFC 92 when considering how section 60CC(2)(a) should be interpreted found that a prospective approach was the preferred interpretation saying at [119]:
“We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant…….”
It follows that I must be satisfied that it is in the child’s best interests for her to have a relationship with the father before I turn my mind to framing the particular orders.
The evidence establishes a finding that there is no present relationship between the father and child and I must now consider whether I should frame orders that would afford this child an opportunity to have a meaningful relationship with her father in the future.
I can only do that if I determine it is safe for me to do so.
The mother makes serious allegations regarding family violence perpetrated against her and in the presence of the child by the father including[1]:
[1] At Paragraph 26- 27 of the mother's affidavit filed 19 February 2021
(a)calling her a “fucking whore and slut” when she fell pregnant the first time;
(b)when the mother was losing the second baby in 2011 screaming in her face whilst she was on the toilet and refusing to take her to the doctor;
(c)blaming the mother because the child was not a boy;
(d)screaming at the mother because the child was crying at a time when the mother was recovering from a caesarean section birth;
(e)banning the mother from seeing family and friends;
(f)threatening the mother that he would kill her, put a bullet in her head and put her in a coffin;
(g)telling the mother that she was “useless, have no brains, don’t think, fat, lazy, if it wasn’t for him she might have nothing. I’m not as good as my mouth, I’m just like my fucked up parents.”
(h)telling the mother that he would “show me what a Belmonti can really do to keep someone quiet”
(i)telling the mother that she should be “brutally bashed and gang banged”
(j)throwing the then 12-month-old child into the car seat, removing her and repeating that on another two occasions whilst screaming into the child’s face to “shut the fuck up or else.”
(k)in November 2018 picking the child up from the floor and throwing her onto the lounge telling her not to fucking move”
(l)becoming aggressive if the child became upset and regularly threatening the child with physical violence, yelling and screaming at her and throwing things around the house;
(m)smacking the child with such force that he would leave marks on the child and in doing so, scream at her saying that he would give her “something to fucking cry about and shut the fuck up or else.”
The mother was cross-examined about her allegations concerning family violence and she was not shaken from her evidence.
The mother told Ms C, the family report writer:[2]
“In relation to the violence from Mr Belmonti, she noted that this was throughout the relationship, including when she was pregnant with X. This included “pushing me and shoulder charging me….. He never punched me. There was so much verbal and emotional abuse, I was so happy and outgoing and I was a size 8 and had so many friends. I put on 30 kg and don’t have any friends and he destroyed me in every possible way.”
[2] paragraph 4.13 of the family report filed on 13 November 2020
It is the mother’s evidence that she had to wait for an opportunity when the father was away from the home before she could leave as she was frightened that there would be retaliation from him. She says that opportunity arose on 27 April 2019 when the father was away in City H.
It is the mother’s evidence that she had to disconnect the security cameras, put duct tape over the video doorbell and had to secure separate accommodation for herself and the child so that she could move away safely from the father. When she left, she took minimal possessions with her.
The father admitted taking screenshots of the mother’s iCloud messages. It was put to him that he should not have done so because it was none of his business and he replied “yes it was because I want to know what this was all about.” He admitted that he had no issue breaching the mother’s privacy on that occasion.
The father denies perpetrating any family violence and gave evidence that he completed a Men Choosing Change program towards the end of 2019 and the beginning of 2020. His evidence as to how that program was conducted was confusing and I am still not clear as to whether he attended in person or by phone and how often he attended. He was asked what insight he had learnt about his past behaviour from that course and he said “not to scream when you have a fight like it was alleged.”
He gave evidence that he completed the course because the allegations were “put on me.” He later gave evidence that his general practitioner had suggested an anger management course.
The father accepted that there was a potential issue with his behaviour because of the way he expressed himself and the names he called the mother. He admitted to raising his voice but denied screaming in the faces of the mother, maternal grandmother and child. Having completed the course, he was asked whether he now accepted that some of his behaviours amounted to family violence and the father said “no.”
The father conceded that he said he would put a bullet in the mother but then denied that he threatened her life. The father accepted that the child was present during a lot of interactions between himself, the mother and maternal grandmother. He said the child would not have been affected and said that only when a child can talk will domestic violence impact upon the child.
As I have said previously, the father’s evidence concerned me in that it was contradictory and full of blanket denials. Furthermore, the concessions the father made amount to family violence on any objective view but the father did not have the insight to accept that. He is simply in denial that his actions amount to family violence and that they have caused the mother to be petrified of him and the child to be equally petrified of him.
Ms C in her family report provides evidence that the child became agitated and fearful when she asked the child to talk about her father. Her evidence is that the child initially did not answer and then stated “no, no, no.” Ms C then asked the child if she’d like to see her father today and she says the child quickly said “no” and jumped off the mother’s lap and ran to another part of the room.[3]
[3] paragraph 5.3 of the family report filed 13 November 2020
In terms of the father’s presentation on the day of interviews Ms C says at [7.1];
“Mr Belmonti presented as an extremely intense individual who was casually dressed and indicated he understood the purpose of our interview, as well as the confines of confidentiality. I informed Mr Belmonti that X would not be spending time with him today and he appeared quite angry and his leg repeatedly bounced under the table. I observed him to be fuming with anger throughout our interview and it was clear he was trying to contain himself.”
It was put to Ms C under cross examination that the father would have been shocked to hear that he would not be seeing the child and she agreed. However, she went on to say that she stood by her observations and said:
“The level of what I observed and that it was sustained throughout, his general presentation, body language, the way he was speaking, his eye contact, he appeared to be trying to contain himself. He had very limited insight particularly as to the amount of coercive control and the level of domestic violence within the home.”
Ms C asked the father about verbal abuse between he and the mother and she says that he agreed there was and in doing so told her;
“This was when she had a safety breach….. She put X on the kitchen bench and she fell off the kitchen bench and we had made a deal two days before for her not to do this and I woke up and X was on the bench and I had a chat to Ms Scalero and while I was having a chat X grabbed a knife and cut her pinky.[4]”
[4] paragraph 7.9 of the family report
When the family report writer asked what was meant by a chat the father replied:
“I was having a go at her as we had an agreement that X would not be on the bench, when she cut herself I panicked and when I was trying to stop the bleeding……. I’m not proud of what I said, she could have poked herself in the eye or something like that.”[5]
[5] paragraph 7.10 of the family report
The maternal uncle was also interviewed by the family report writer and he gave evidence of his observations of the father including:
Observing the father to say, “Get that fucking dog out of my house or I’m going to kill it, his father Mr J would have tears in his eyes and would say I hope I don’t die before K (the dog), what will happen to him? I am also aware he would bash his cockatoo L’s cage with a stick and yell I am going to “fucking kill you.[6]”
[6] paragraph 8.11 of the family report
The maternal uncle also told the family report writer that he recalled seeing the father holding X once when she was very young and he used to get upset when she would make noise. He went on to tell the family report writer that the father told him:
“If she does that when she is older I will throw her through the wall, that’s the Country M way and I said no you will not, if I see any of that shit I will report it immediately and he said I am her father and I will do what I want.”[7]
[7] paragraph 8.14 of the family report
Ms C provides an opinion as to her views of the father as follows:
“I believe Mr Belmonti to be a dangerous and abusive individual who has caused significant harm to Ms Scalero, X and her family. I believe the risk associated with X spending time with her father outweighs any benefits and she should not be made to have contact with him.[8]
[8] paragraph 9.15 of the family report
The maternal grandmother also gave evidence that the father was abusive to the child whilst in her presence. Her evidence was that the father would often say to the child, “Shut the fuck up” and that he was constantly upset about the child crying.
It was both the mothers and maternal grandmother’s evidence that the child had been exposed to these serious acts of family violence and that as a result the child had engaged in self harming behaviours inclusive of:
(a)scratching her eyes, cheek and breast until she bled;
(b)pulling clumps of her hair out;
(c)ripping at her chest until it started bleeding;
(d)having night terrors and waking up screaming saying “no, no, no”;
(e)ripping at her eyelids and eyelashes;
(f)gritting her teeth; raking her fingernails across the face until she bled and
(g)having screaming tantrums.
The mother’s evidence is that the behaviours slowed down after separation and eventually stopped.[9] It is the mothers evidence that after she attended an intake session at N House on 21 January 2021 and told the child that she might have to go back there to see her father, that the child reacted by becoming upset, that she started to shake her head and body and biting her nails until they started to bleed. Thereafter the child regressed and she resumed self-harming behaviours.[10]
[9] paragraph 61 of the mothers trial affidavit
[10] paragraph 80 to 84 of the mother's affidavit
The maternal grandmother gave evidence that she witnessed the father shaking the child and that she intervened and told him that if he ever did that again she would call the police. It is her evidence that the father responded by saying that he would have her, “brutally bashed and gang banged.”[11]
[11] paragraph 13 of the maternal grandmother's affidavit
The maternal grandmother’s evidence is consistent with the mother’s in that the father would scream at her and get right up in her face and that she felt frightened. It is the maternal grandmother’s evidence that when the father had these outbursts the child would be crying.
The mother also makes allegations that the father was violent towards his parents and his brother. Her allegations are serious and include that the father assaulted his mother by choking her on the bed, assaulting his father and that he held his brother up against the wall by the throat and threatened to kill him.
The paternal grandmother is now deceased. However the paternal grandfather and paternal uncle are still alive. The father was unable to comply with trial directions and have either his father or brother provide an affidavit in support of his denials. The allegations by the mother have been known to the father for well over 12 months and it beggars belief that he did not arrange for his relatives, who he says he did not threaten and assault to provide affidavits.
Ms C asked the father about whether he had held his brother up against the wall and he denied that noting, however, that he and his brother “had a brother thing, just play fight, that kind of thing.”[12]
[12] paragraph 7.20 of the family report
I of course had the opportunity of watching the father give his evidence and I too am of the opinion that the father is a very intense man. I formed the view that the father was minimising his own behaviours and/or blaming others for incidents that may have occurred. He referred to the mother’s “safety breaches” and explained that some of his reactions were as a result of her “safety breaches.”
Overall, I do not accept the father’s version of events and I accept the evidence of the mother, maternal grandmother and family report writer. I also accept that the family report writer accurately recorded the maternal uncle’s recollections of the father’s abusive behaviour.
It was submitted on behalf of the father that the fact that the mother did not report any incidents of family violence to police until after separation could leave me to the view that her failure to act was because either the conduct was not of such a grave nature or that it did not occur at all. In the Full Court decision of Amador & Amador [2009] FamCAFC 196 their Honours considered a lack of reporting of allegations and said at [79]:
“To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. When domestic violence occurs in a family, it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third-party or a document or an admission. We have not been referred to any authority in support of such a proposition.”
Similarly, Counsel for the father could not take me to any recent authority for the proposition.
I find that the father perpetrated ongoing and consistent serious family violence in the form of coercive and controlling behaviour, derogatory remarks, physical abuse of the child, and homicidal threats to the mother and maternal grandmother.
I am satisfied that the behaviour of the father on many occasions would have caused not only the mother but also the child to be fearful. We cannot condone family violence and I am of the view that judicial officers faced with serious allegations of family violence and having made findings that the family violence occurred must do all that they can, in keeping with the legislative intent and best interests of children, to prevent children from being exposed to that violence. In short terrorising family members has to stop. There has to be consequences for that type of behaviour and children must be protected from family violence.
It is well recognised that family violence poses a significant risk to the developmental well-being of young children and that is because as Justice Mullane said in M & M [1998] FamCA 1742 at [94]:
“The father’s abusive behaviour presents a multifaceted danger for the children. There is a risk of violence to them personally an injury. There is a risk that violence poses when it involves living with fear, insecurity and vigilance. There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father’s abusive behaviour that abuse is part of life of females and become even more accepting of such behaviour. There is a danger that both children will come to believe from the father’s abuse of the mother, that women are lesser beings.”
I am satisfied that the father poses an unacceptable risk to this child and that the child is in need of protection from him.
This child has exhibited behaviours in the past that are consistent with a finding that she has been traumatised by the father at times. Her reaction to the suggestion, almost 2 years after leaving the father’s presence at the age of two, that she might see her father is remarkable and consistent with the mother’s and grandmother’s evidence.
I am of the view that this child’s emotional wellbeing has been affected by the father’s behaviour and that there is a real risk that her developmental wellbeing will be disadvantaged from exposure to the father in the future.
Additional considerations
Whilst the child was too young to express a view, her reaction to the mere suggestion of seeing her father speaks volumes about her views regarding him.
The child has a loving secure bond with her mother and the maternal grandmother. The observations of Ms C show that the child seeks out her mother for security, protection and support.
The child has no relationship with her father.
I am satisfied that the mother has taken every possible step available to her to be as fully involved in the child’s life as possible. Furthermore, I am satisfied that the mother took positive steps to protect the child as soon as she could and with the assistance of professional domestic violence counsellors.
The evidence of the mother and maternal grandmother satisfy me that the father has taken very little if any opportunity to be involved in this child’s life and I am concerned that these proceedings were brought about by the father not to gain a relationship with the child but to further intimidate and control the mother.
It was put to the father that he was behind in child support and a call was made for his latest child-support statement. That call remained unanswered at the close of the evidence. I note that the father conceded that child-support is garnished from his wages. Having regard to the father’s attitude towards the child and mother, I am satisfied that unless the collection of child support is taken from his control, the father would not meet his obligations to maintain the child.
The orders that the mother and the Independent Children’s Lawyer seek would bring about no change to the secure loving safe environment this child currently enjoys.
I asked the father when he thought it would be appropriate for the child to spend each alternate weekend with him if I found in favour of his case. The father said that I could make an order that the time commence on the first weekend after the trial finished.
Clearly, if I made orders consistent with the father’s position there would be a significant change in this child’s life. She would be placed in the care of a man who I have found causes her to be petrified. She may again regress and develop self-harming behaviours. She would effectively be placed in the care of a person with whom she has no positive relationship with. I am satisfied that this would be a traumatic event for the child and certainly not something that is in her best interests.
I am satisfied on the evidence that the mother has the capacity to meet the needs of the child. I am satisfied that she has created a loving stable and safe environment away from the father and that it was necessary for her to do so.
I am satisfied that the father has very little insight into his own behaviours and into the needs of this child. To suggest that yelling and fighting in front of a toddler could not impact her unless she could speak shows a remarkable lack of insight into the child’s development. To suggest that I could immediately order the child to spend overnight time with him also shows a distinct lack of insight into the child’s emotional needs.
The father gave evidence that he did the Men’s Behaviour Change program and I am satisfied that he gained nothing from it. He has absolutely no insight into his behaviour and how it amounts to domestic violence.
It was put to the mother that she would not allow the child to enjoy her Country M culture. The mother replied by noting that the child was one quarter Country M and said if the child asks about the Country M culture, she will do all that she can to allow the child to understand it and potentially enjoy it. I have no doubt that the mother will continue to meet the child’s needs in this regard.
The evidence supports a finding that the mother has a very positive attitude towards the child and towards the responsibilities of parenthood and that she has demonstrated this.
The evidence supports a finding that the father has a poor attitude towards the child and his responsibilities as a parent. I am satisfied the father was more concerned with controlling the mother than he was for parenting this child.
I have made a finding that the father perpetrated serious ongoing family violence. Section 60CG provides that when I am considering what order to make I must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence.
There is a current family violence order in place naming the child as a protected person. On the evidence before me I am satisfied that the child is in need of protection. If I were to make an order that this child spend time with the father in any setting, I am concerned that this would expose the mother and child to further family violence. I am satisfied that my orders are consistent with the requirements set out in section 60CG.
It is a relevant consideration to note that the courts over time have long recognised that permanent supervision of visits between a child and a parent is undesirable.[13]Having regard to my findings I can see no benefit to this child in spending anytime with the father.
[13] for example Betros & Betros [2017] FamCAFC 90 at [13].
Parental responsibility
Section 61DA provides a rebuttable presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in either abuse of the child or family violence.
I have found that the father has engaged in family violence and as a result, the presumption does not apply.
The mother and father have no co-parenting relationship at all. I have found that the mother was and remains petrified of the father. They have made no decisions regarding long-term issues for the child together at all. The father’s attitude towards the mother is not consistent with a finding that there is a potential for the parents to cooperate when it comes to making decisions for the child.
For these reasons, I am satisfied that an order for equal shared parental responsibility is not in the best interests of the child. I am satisfied that it is in the best interests of this child that the mother have sole parental responsibility.
For these reasons, I am satisfied that the orders sought by the mother and the Independent Children’s Lawyer are the orders that are in the best interests of the child and I have made those orders.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Middleton. Associate:
Dated: 20 May 2021
Key Legal Topics
Areas of Law
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Family Law
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