Seinfeld and Rank

FAMILY COURT OF AUSTRALIA

SEINFELD & RANK

[2010] FamCA 1173

FAMILY LAW – CHILDREN – With whom a child lives – Family violence – Best interests of child

Family Law Act 1975 (Cth)

B & B (1986) FLC 91-758
Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Seinfeld

RESPONDENT:

Mr Rank

FILE NUMBER:

NCC

484

2010

DATE DELIVERED:

19 November 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Collier J

HEARING DATE:

19 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O’Bradovic

SOLICITOR FOR THE APPLICANT:

Ticehurst Foat Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Craney

SOLICITOR FOR THE RESPONDENT:

Craney Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Stephen Marks Solicitor

Orders

That not recoverable agreement and authority entered into by the mother and S Community Services.
That the child J born … October 2006 live with the mother.
That the mother have sole parental responsibility for the subject child.
That the father shall neither spend time nor communicate with the said child in any way.
That the appointment of the Independent Children’s Lawyer shall remain in force from 12 months.
That the mother shall within 48 hours of receiving a written request from the Independent Children’s Lawyer, attend upon a licensed medical practitioner of pathology service for the purpose of providing a sample for urinalysis screening and provide to the Independent Children’s Lawyer within seven days of receipt of same or authorise the licensed medical practitioner or pathology service to provide to the Independent Children’s Lawyer within seven days the urinalysis results certifying compliance with AS:NZ 4308/2008, provided that such request shall not be made more than once per calendar month. The medical practitioner shall be a medical practitioner who will bulk bill for such pathology services.
That the mother shall remain engaged with F Organisation until her eligibility for that service terminates and shall then engage with S Community Services or its successor for a further period of 12 months and accept weekly visits from the social worker assigned to her by S Community Services and accept their recommendations including but not limited to, a mental health assessment, drug relapse prevention or drug abuse counselling or services and shall engage as with any mental health recommendations for as long as deemed necessary by the relevant treating mental health practitioners.
That to facilitate Order 7, the irrevocable authority given by the mother and the agreement between the Independent Children’s Lawyer and S Community services as annexed to these Orders, the mother shall authorise any third party treating mental health practitioner or service engaged in as required by S Community Services for a period of 12 months from the date of these Orders to provide to S Community Services and the Independent Children’s Lawyer if he so requests, a copy of any document produced by them and to discuss with S Community Services and the Independent Children’s Lawyer her engagement with that service despite any confidentiality.
That the mother shall ensure that the child is examined by a paediatrician at least once every six months prior to him attending school and shall comply with all reasonable directions of the paediatrician including the child’s participation in any occupational therapy or speech pathology recommended by the paediatrician and shall authorise S Community Services and the Independent Children’s Lawyer to discuss the child’s needs with such paediatrician for a period of twelve months from the dates of these Orders.
That the Independent Children’s Lawyer is granted liberty to communicate directly with the mother for the purpose of these Orders.
That the mother shall advise the Independent Children’s Lawyer of any changes to her telephone service numbers (either land line or mobile or both) within 48 hours and shall advise the Independent Children’s Lawyer of any change to her residential address within fourteen days of such change.
That the father be and is hereby restrained from:
(a)attempting to contact the child by any means, including through any third party;
(b)approaching or coming within 100 metres of any place where the child might from time to time reside;
(c)approaching or coming within 100 metres of any day care centre or preschool which the child might attend or be enrolled in.
This is an Order for the personal protection of the child and in relation to which if an officer of a State Police Force reasonably believes the Order has been breached the father may be arrested without warrant.
That the Independent Children’s Lawyer is hereby authorised to provide to S Community Services and any treating mental health practitioner a copy of the report of Dr R dated 22 September 2010 and the mother shall advise the Independent Children’s Lawyer in writing within seven days of the appointment of such treating mental health practitioner.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 484 of 2010

MS SEINFELD

Applicant

And

MR RANK

Respondent

REASONS FOR JUDGMENT

Introduction

The matter in which I am about to deliver judgment has occupied some four and a half days of evidence and submissions. It has been a difficult case, and it has been hard fought on all sides. The matter concerns the future arrangements for the parties’ only child, J, who is now four years and one month of age. The child lives with his mother. He has done so since his birth. He has seen his father on a limited number of occasions, the last in January 2008. The mother seeks that she be granted sole parental responsibility in respect of the child, and that the child live with her. She asserts the father should have no time with the child, for reasons which I will endeavour to deal with later in this judgment.
The father seeks time with the child. His position has altered and been refined during the course of the hearing. Indeed, two sets of proposed orders were tendered, becoming, respectively, Exhibit A and B. Exhibit B, which is the most recent and, therefore, I would consider, the final proposal, seeks that he start by having supervised time with his son on two occasions each week for four hours a time. He then seeks to move through graduated periods of time, culminating in him spending alternate weekends and half school holidays with his son. Thus, it can be seen, the argument is whether the child spends any time with his father or not.

Brief Background

A brief background to the matter is as follows:
·The father was born in 1957.
·The mother was born 1969.
·In late 2009 the parties commenced living in the same premises.
·It appears common ground, which was certainly not cross-examined on, that the arrangement was that the mother would provide sexual favours to the father in lieu of paying any rent for her occupation of part of the premises.
·In about August of 2006, the mother moved from the premises that the parties had shared.
·As I understand it, she then moved with various people, and the father lost contact with her.
·The child J was born in October 2006.
·The father’s evidence, which I accept, is that he heard about the birth of the child from somebody else who was in the same hospital at the same time. He asserts, and I accept, it some four days after the child’s birth, that he received this information,
·In November of 2007, the father located the residence of the mother and child. He thereafter saw the child, as I apprehend from reading the documents, on 15, 17, 19, 21, 23, 25, 27, 28, 29 and 31 December 2007.
On 8 January 2008, the father again spent time with the child. There is significant dispute between the parties as to what occurred on that occasion. Indeed, I will return to that episode later in these reasons for judgment.

The Parties’ Applications

The mother commenced the proceedings by an application filed on 25 February 2010, and thereafter filed an amended application on 17 May 2010. The husband filed a response on 26 July 2010.
Both parties have refined their positions as the matter proceeded, and so far as the independent children's lawyer is concerned, he furnished to me a document setting out the orders that he proposed in this matter. That document, with some minor modifications, has been adopted by the mother.
In addition, as Exhibit ICL2 before me is a document titled Irrevocable Authority and Agreement, which has been signed by somebody on behalf of Ms H for the organisation known as S Community Services, and by the solicitor for the mother. I accept that the mother has been present in Court and intends to be bound by those parts of that document that bind her, and I accept that the execution on behalf of Ms H will, in turn, bind the organisation.
The affidavits that the parties relied upon were as follows:
·The mother, in her case, relied upon her affidavit of 13 October 2010.
·The father relied upon his affidavit of 18 October 2010. He was, however, cross-examined in respect of an earlier affidavit, and I am satisfied that that now forms part of the documentary record in this case.

Reports

There was also before the Court a report of Dr R of 30 September 2010.

The Judgment of Watts J

At the commencement of the trial, counsel for the wife, supported by the independent children's lawyer, put that I could have regard to the judgment of Watts J, delivered on 14 December 2007.
That judgment was in relation to a matter between the father, on the one part, and Ms P on the other. Ms P is the mother of a child of herself and the father; that child is V. Counsel relied, before me, on s 69ZD, located within Div 12A of Pt VIII of the Family Law Act, in relation to dispensation with the rules of evidence. I heard argument from all parties. At the conclusion, I directed that the wife’s solicitor provide a list setting out the specific paragraphs of the judgment to be relied upon, and this was duly handed to me. I will place that document with the exhibits before the Court.
I then determined that I would allow into evidence those parts enumerated in that document, and give to those parts such weight as I saw fit. The reason I allowed the material to be placed before me and relied upon was that I did not consider that exceptional circumstances existed in accordance with s 69ZD3(a). It seems to me that the paragraphs of that judgment, between paragraphs 33 and 64 comprised what his Honour referred to as “the longer history.” As I understand it, they are not disputed. Under the heading, Specific Events, his Honour, in paragraphs 87 to 169, dealt with individual events in more detail. It seems to me I can have regard to these matters, however, it seems to me that whilst they record his Honour’s findings, they are of limited assistance to me.
In my view, it is my responsibility to determine what I make of the father, and what I make of the mother. Paragraphs 176, 180 and 181, which were nominated by the solicitor for the mother under the heading “Management of the Father’s Anger”, I take into account, and I give them some weight because it seems to me that the father’s mental condition is one of the major matters in this case. Finally, at paragraph 254, his Honour dealt specifically with the second primary consideration which, of course, is the protection of a child from family abuse or violence.
A number of documents were tendered during the course of the hearing, and I will refer to those documents as necessary in these reasons for judgment.

The Mother’s Case

The mother’s case was that the father had assaulted her whilst she had the child in her arms on 8 January 2008. She further stated that he intimidated her and caused her to be fearful.
She was concerned, it was put, of the effect on the child of being introduced to his father, not having known him as his father, if at all, in his young life. The mother conceded she has had considerable difficulties in her own life, both before and after the birth of the child, including but not limited to an extensive use of amphetamines. The mother asserts that she is now much improved in her condition and will continue to improve with the help of the organisation, F Organisation in the immediate future, and thereafter with the help of another organisation, S Community Services.
Unfortunately, no material had been placed before me from either organisation at the commencement of the trial. Ms A was in Court as a support person for the mother. She was from F Organisation and had a connection with S Community Services. She was able to prepare a statement which she adopted in the witness box, and which became Exhibit 2. That document tells me, in some detail, what is proposed for the future of the mother.

The Father’s Case

It is the father’s case that the mother is a drug user, and that drug use has made her a poor parent.
He was of the view that there would be no trouble at all for the child if he, the father, were introduced to the child immediately and, indeed, he said that he had endeavoured to find the child by going to various day care centres so that he could introduce himself to the child. His proposal contained in Exhibit B is, as I have said, that he spend time with the child leading up to alternate weekends and holiday time. At no stage does he seek that the child live with him or be removed from the mother in that respect.
Part of the father’s proposal and, indeed, the starting point of his proposal is that he have two months of time twice a week for four hours on each occasion with Interrelate. A difficulty I have here is that I have absolutely no evidence before me that Interrelate can or will accommodate the father in any program of supervised contact. I will, in fact, return to that aspect later in these reasons.

The Evidence Before Me

In this matter I heard oral evidence from Dr R, the mother, Ms A and the father. I then heard helpful submissions from counsel for the independent children’s lawyer, the mother and the father in that order. Whilst I certainly do not propose to read into this judgment the entirety or any part in detail of the evidence given by any of the witnesses, where necessary I will make reference to issues that I consider to be of significance.
Dr R gave his evidence in a straightforward and professional manner. He said that he still adhered to the findings that he had made in his report. His position, as I understood it, was that he believed that the mother, whilst acknowledging her difficulties, had coped well since the birth of her son and was in a position, with proper and adequate support, to continue to provide a high level of care. Dr R was asked if he had been aware when he interviewed the mother that she had, indeed, not refrained or abstained from the use of drugs for a period from either May or June through to September, and he indicated he was not. He indicated that having that knowledge was, for him, a matter of concern.
The Doctor indicated that, in answer to a question from the father’s representative as to whether the mother could cope with the child’s problems relating particularly to a hearing difficulty which, I understand, is profound, the Doctor said she had coped remarkably well, and that ensuring treatment for his speech delay was proceeding remarkably well.
The Doctor was asked a number of questions about his findings of the father, and he continued to assert, and certainly did not resile from, the findings he had made in that regard. Dr R’s report goes into significant detail, as one would expect from an expert witness. He dealt in his report with the presentation of both the parties. He said, at page 6 of his report dealing with a history of the father, that he has had problems with family law issues. He dealt with the father’s exchange with Ryan J and his description of her. He reported that the father felt that he had been “hard done by” and that his former partner’s sister, a police officer, was creating difficulties by colluding with the Court.
He (the father) went on to say that, when asked about his university studies, he gave a history, and then went on to talk about being bullied by a Family Court security guard and, indeed, assaulting that man and being sentenced. I will return to that with some specificity later.
When he reported on the mother, he spoke of her drug use from 16 to 36, her involvement with F Organisation, and recorded that there was no history of psychiatric illness nor, as reported to him, had she ever been in trouble with police.
At paragraph 4 on page 15 of his report, he deals with the mental health of the mother. He says that she has no social network and it is extremely important that she establish some degree of social supports. She will need ongoing psychological and social support. The Doctor was asked about this in cross‑examination. It was put to him that the organisation that was assisting presently was F Organisation. The organisation that would take over and continue to assist the mother in future was S Community Services. As I understand it, the Doctor indicated that, provided the persons with whom she was dealing had appropriate expertise, that she could be well supported by S Community Services.
It is noteworthy in my view that the mother has never, as I understand it, availed herself or been the subject of any mental health assessment carried out by a psychiatrist, up until the time of her interview with Dr R. He indicates that she could become depressed and find it difficult to cope if circumstances deteriorated. However, he says if she is well engaged with the services, this is much less likely.
He anticipated that there will be significant changes as the child gets close to the end of preschool and the start of formal schooling. Doctor was asked in cross-examination about the stresses that might be imposed with the child moving from preschool to school, and he conceded that this may well be a stressor for the mother.
Doctor dealt with the mental health of the father from paragraph 5 on page 15 onwards. He expressed a major concern, which does not seem to be in any way ameliorated or lessened by the oral evidence that he gave. He gave a description of the father probably suffering a personality disorder with narcissistic, paranoid and antisocial features. He described a sense of entitlement and an inflated view of his ability. He referred to an emphasis on sporting prowess, his right to challenge the judiciary, and his ability to attract women and impregnate them.
The Doctor said that he has paranoid features to his personality. His belief is that there is a conspiracy between legal representatives and ex‑partners and Ms P’s sister, a police officer, and the Court. He commented on the father being very erratic. On page 16, Doctor found that the differential diagnosis from a psychiatric point of view was that he could have a chronic manic illness. His other concern was that there might be organic brain syndrome. He agreed that his diagnosis was made on the basis of clinical interview, rather than the administration and results of any tests.
Speaking of the father, and this is something I perceive was relied upon by Mr Cranny in his most helpful address, he says this:
The situation could change if the father were able to demonstrate that he could undertake social and psychiatric rehabilitation and improve his emotional regulation.

The Doctor goes on to speak of the desirability of him voluntarily admitting himself and undergoing a neuropsychological assessment, as well as dialectic behaviour therapy. It seems to me, as I understand it, that the husband is now seeking that he be given an opportunity to do this. I am unable to accept that the husband believes such a course may be of benefit to him. Rather he is saying what he thinks will find favour with the Court.
The next witness to give evidence was the mother. She was clearly a nervous witness, but making every allowance that I could on that basis, I am still left concerned with aspects of her evidence. I am concerned as to the manner in which her evidence concerning her resumption of drug use changed throughout the course of the evidence. She had at least three attempts in telling me when she started and when she finished. As I understand it, the last of her efforts in this regard was to tell me that she started in February, finished in May and told Ms A in June. She said first that she did not tell Dr R but later said that she had.
There is in existence before me as Exhibit ICL1 a test performed in respect of a urine sample from proper custody from the mother. The document, as I read it, indicates under the heading Further Confirmatory Testing: Mass Spectrometry that there were detected amphetamines, methamphetamines and cannabis on test. As I understand it, she finished consuming marijuana in May and the sample was collected on 10 November 2010, some five and a half to six months afterwards. The mother said that she believed that THC could remain in her system for that period of time but that she had no explanation other than the taking of over the counter or prescribed medication for the presence of the amphetamines or the methamphetamines in her system.
Regrettably, I have no evidence before me that would assist me in reaching a determination as to whether or not the source of the amphetamines and methamphetamines could be innocent. I express for myself a concern that a reading establishing the presence of THC was obtained at least five months after it is alleged cannabis was last used. It is a particularly long time if, as I understand her to say, her usage during that time was light. She also said in her evidence when asked when she used the drug that she used it only after her son was in bed. Later the evidence was that she smoked when the child was at preschool. I find myself puzzled by the contradiction and as I have said, puzzled by the entirety of her drug use.
The mother’s evidence concerning the episode of 8 January when the father came to her home was the subject of significant cross-examination by Mr Cranny. What is clear is that which the mother placed in paragraph 16 of her affidavit is very different from the information she gave to police when she spoke to them when applying for an AVO.
The material to police does not seem to indicate any actual assault. By that, I mean actual physical contact to her by the father. In her affidavit, she speaks of the father hitting her and there being a general melee in progress whilst she had the child in her arms.
The father, as I understand it, asserts that there was no pushing or shoving. He concedes that he arrived late. He thinks that having given a time there is absolutely no responsibility upon him to contact the mother if he is unable to attend at that time, to inform her of this. His evidence was that having given an approximate time that was all he need do, that he would turn up when he chose, and everything would be fine. Nonetheless, he says there was no physical interaction on that occasion.
The mother’s evidence as to her present condition was that she relied significantly on F Organisation. It is Ms A particularly who has been her constant support throughout this matter. However, it seems from both the mother and Ms A that the mother is becoming more and more self-sufficient and able to do more and more for herself without the direct assistance from Ms A.
As I understand the mother’s evidence and that of Ms A, the mother will pass from the assistance of F Organisation to the assistance of S Community Services, as I would call them, within approximately a month. The main difference between the services that can be offered by each of those organisations – again, as I understand it – is that there will no longer be direct financial support or brokerage as it was called by Ms A. The reason for the difference between the two services is to be found in the funding arrangements and the requirements within which they are each required to operate.
All in all I found the mother to be, as I say, a nervous person, but I found her to be in some respects less than frank with the Court. However, at the end of the day I was left with the impression that she certainly is a person highly concerned for her son, to whom she has devoted her time since the child was born. I would say here concerning drugs, I find it of real concern that the mother concedes that she stopped taking drugs on the day the child was born. How much better it might have been had she stopped before the pregnancy was advanced I cannot say.
The next witness to give evidence was Ms A. Ms A is obviously a person with professional qualifications who has been involved with the mother and the child for nearly two years. Her position, as I understand it, is one of support for the mother in all respects. A concern that may be held is that she is perhaps too close to the mother in this respect.
It was put by Mr Cranny that the relationship between the two ladies is perhaps one more of friendship rather than counsellor and client. I am satisfied this is so.
I am of the view that the service might have endeavoured to be more directed of the mother. That is a matter for the service. It seems to me that the level of assistance that the mother will receive from S Community Services must and will be less than the service that has been supplied to date by F Organisation.
At one level, notwithstanding the finding I have made about a friendship relationship rather than a counsellor relationship, it is a pity that the services of Ms A will apparently have to be dispensed with. I asked her specifically if she could continue. She told me she could not.
However, I am also assured that a person appropriately trained, and that may well mean in some advanced aspects of counselling, will be the person assigned by S Community Services at the appropriate time.
The last witness before me was the husband. His evidence caused me real concern. At times he rambled. It seemed to me that he had difficulty in understanding what I would have thought were moderately if not completely straightforward questions asked of him.
It further seemed to me that he was incapable of allowing a silence to lay over the Court. If no one else was speaking he felt compelled to talk. Even when others were speaking, and asking him to stop, he felt compelled to talk. The reason I make reference to this is that that behaviour is in complete accordance with the behaviour observed and commented upon by Dr R. His language was grandiloquent. He was cruelly descriptive of various people and he also appeared to show no real remorse or contrition for a number of the matters that are clearly established against him.
I particularly refer to the situation where he assaulted a security guard in this Registry, and a situation where he made threats against a Judge.
The reason I make much of these issues is that it was put on his behalf that I must look at those things in a timeframe when he was seriously distressed and found himself in a situation where his temper was hard to control. Indeed anger management seems to play a significant part in the evidence in this case. The father, it seemed to me, changed his mind on several occasions because he perceived the way the wind was blowing and altered his position to take advantage of the matters that were coming out, or to minimise the damage to him of matters being agitated.
I do not believe he has given any real thought to this matter. I am concerned that this litigation does not only concern the child, but in the father’s view is largely a forum for him to vent his displeasure at the orders that were made involving his three older girls, and particularly that which occurred in respect of his daughter V. It seemed at times to me, indeed, that he was presenting the case as a case concerning V, and not the subject child J.

The Issues for Resolution

It seems to me that the matters requiring determination in this case may be described as follows: the mother’s drug use and particularly her recent period of drug use. I have spoken on my dissatisfaction as to her evidence in this regard. I am satisfied on that evidence that I cannot accept what she says as to the extent of her recent drug use, either as to the substances she ingested or the period over which she ingested them.
I am concerned at the fact that she has not had psychiatric testing other than an interview with Dr R to this date.
I am satisfied that the mother has chosen not to undertake drug testing before the drug test was organised for November of this year.
As to the episode of 8 February, I am satisfied there was an incident on that occasion between the father and the mother. There is significant difference in the evidence she gave in relating that episode in paragraph 16 of her affidavit and that which she told police when she made a report to them. Her evidence to me is that she told the police that there had been physical violence and the police did not record that. I do not accept that statement. However, and on the father’s own evidence, I am satisfied that there was physical interaction between the parties on that date.
The husband agreed that on that day there was grabbing and pushing, and to my mind that is sufficient for me to accept at least in part that it was not just a verbal argument with the mother running away, but that there was, indeed, some physical interaction between them. On balance I accept that that occurred whilst the mother had the child in her arms and that he was, if not directly involved in the sense of being struck, certainly in the midst of a melee which must have had some effect upon him.
So far as the father is concerned, my concerns regarding him are significant. Leaving aside past history, which I will return to in a moment, I am concerned at his apparent lack of empathy and insight into dealing with his son. I was particularly concerned with his statement that all he needed to do was to see his son, tell him he was his father, they both had testosterone, they would bond and all would be well.
In a situation such as this that evidence is, to my mind, indicative of the fact that the father does not see, or if he sees chooses not to care, that there is far more involved in this matter than simply seeing his son and all will be well.
As to his mental health, I have dealt with particular passages in Dr R’s report. I am satisfied that the diagnosis is properly expressed and soundly based. I am satisfied that I can find that he could potentially have chronic manic illness.
I am satisfied that there is at least a cause for investigation of organic brain syndrome. I am satisfied that I can accept that he has a personality disorder with narcissistic, paranoid and anti-social features, with a sense of entitlement, and an inflated view of his own ability. The very things the Doctor noticed, his emphasis on his sporting prowess, his sprint coaching, his right to tell the Judiciary (calling Ryan J a bigot) and his ability, as Doctor described it, to attract women and impregnate them.
My main concern is the evidence that was given as to what treatment is available, and it certainly appears from what Doctor said in his evidence that any form of treatment would be a long, drawn-out and difficult process, requiring inpatient treatment.
There is his history of unsatisfactory behaviour. Watts J, as I have said, made findings of things that occurred. In paragraphs 33 and 34, his Honour dealt with assaults upon Ms M, committed respectively on 29 and 16 April 1997. Whilst no detailed evidence concerning those matters was given, there is no evidence to contradict that they occurred. The husband was subsequently convicted and sentenced in respect of those matters.
There is, in paragraphs 56 to 58, mention of an incident on 13 April 2006. Subsequently his Honour went into detail in respect of that matter at paragraph 108. His Honour found that there had been an attendance by police, and the husband made a comment to a police officer, as recorded by police, that he hoped “someone kills you so your family suffers.” The husband was clearly dealt with in respect of that matter for intimidating police in the execution of their duty. To my mind, that episode, which I am satisfied occurred as described by police, shows that the father has an inability to behave in a manner that would indicate that he can control his temper and his emotions at all times.
It will be remembered that the father made it clear in his evidence that he respects authority by police and by the courts for just so long as they are doing what he wants them to do. When he feels his rights are in any way infringed, it seems to me that he was saying, even now, that he reserves his right to take action as he sees fit.
There is the assault on a security guard in this building in June 2007. The father says that the guard in some way interfered in his discussions with his then legal representative. He was convicted in respect of this matter. He was sentenced to imprisonment. He appealed, and was given a bond and served only time that he had been in prison. He was ordered to pay compensation in the sum of $600.
It seems to me again that this is a situation where, in a place that would normally call forth the best behaviour that a person was capable of, he was entirely incapable of controlling his feelings. Perhaps he acted out of a justified sense of frustration. On the face of it, he appears to have acted out of anger. That does him no credit. His calling of Ryan J an incompetent bigot is something he again says was brought about by frustration in relation to a number of contraventions he sought to have dealt with relating to V.
In my view, a person who cannot behave in an appropriate fashion in a situation where one would be expected to behave as well as one could, indicates his lack of control.
There is then the threat made to Watts J in December 2008. As I understand the situation, he made a telephone call to the Court and spoke to somebody and said something which was clearly conceived as a threat. The father, of course, when this was brought up, said, “hearsay” and here I should say the father tells me that he has done at least one year of a law degree. It is clear that he was subsequently convicted and imprisoned in respect of that matter.
None of those matters are really seriously disputed. The father, where it relates to conduct of a physical nature against others, relies upon frustration and anger because his needs were not being met. The very best light that could have been put upon those actions was put upon them by his counsel. I am left in the position that I find his conduct is such that notwithstanding his completion of an anger management course, and his completion of the latest course, as evidenced by Exhibit D, he is still a man who has great difficulty in controlling his temper and emotions under any form of what he perceives injustice or lack of entitlement given or shown to him.
As I have said, it appears to me that the father in his presentation of this case, has focused upon V, and the wrong he perceives done to him in proceedings concerning her, and his three oldest children, rather than having a direct focus on the needs and best interests of J in the present case.
The submissions on behalf of the husband point quite clearly to the uncertainty in the mother’s situation and proposals for dealing with her difficulties. There is weight in what is said. However, the father’s proposals are totally unsupported by evidence. He proposes that he have supervised time on two occasions, four hours each time, with Interrelate. There is nothing before me to indicate that Interrelate, or for that matter, any other contact service, can accommodate that which he seeks. Further, I am aware that in 2008 Interrelate assessed the father as being unsuitable to participate in a supervised contact arrangement within their organisation.
I find it to be highly significant that the mother has demonstrated some awareness of her own faults and weaknesses and has taken some steps to address them. I am satisfied that she has focused as best she can on the needs of her son. I would have been greatly assisted by proper affidavit material from persons in a position of authority, able to speak in detail of the services of each of F Organisation and S Community Services. In saying that I am not to be seen as suggesting I do not accept the evidence that was given by Ms A. I am grateful for her assistance. However her evidence was that many matters had to be cleared or presented to those in authority, a case coordinator for example, and I would have thought that in a case such as this someone in such a position of authority would have sworn an affidavit and filed it well before the hearing date.
The father does not acknowledge any difficulty in himself, his mental health, or his manner in dealing with other people. He does not see any need to change. He does not see any need for any form of treatment that might lead to behaviour modification. Certainly he has said he would like an opportunity to do things so as to improve his behaviour. I am not, however, satisfied that he is doing more than saying that which he wants the Court to hear.
I am satisfied that he did tell Dr R that he undertook an anger management course only to appease the Court.
I am satisfied that the mother has an ability to cope with the child, his difficulties, and with the appropriate help, his transition from pre-school to school. I have real difficulties, and I will return to this later, as to her ability to cope with the concept of the father being in the child’s life.
Those, to my mind, are the matters that I need examine from an evidentiary point of view.

The Law to be Applied

I turn then to the law to be applied.
The first of the sections of relevance is s 60B, which sets out the objects of the Act. The first two of the objects which create to my mind a balancing exercise, are that children are to have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child, and protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. There are other objects, ensuring the children receive proper parenting, and ensuring the parents fulfil their duties.
The principles under the Act are that children have a right to know and be cared for by both parents. Children have a right to spend time on a regular basis with both parents. Parents should jointly share the responsibilities of care and should agree about future parenting of their children, and children have a right to know and enjoy any particular culture in which they ought be raised.
To my mind, however, what is of importance are the two objects (a) and (b) – a meaningful relationship and the need for protection. Meaningful relationship is incapable of precise definition. What is meaningful in one case may well be less than meaningful in another. The object of creating and fostering such a relationship, to my mind, clearly encompasses, by use of the words “to the maximum extent consistent with their best interests” that in some circumstances the relationship must give way to the need to protect children.

The next of the matters to which I have reference is s 60A, which talks about the child’s best interests being the paramount consideration.
Section 60CC then deals with how the Court determines what is in the child’s best interests. There are two primary considerations. They are in similar but not identical terms to the objects. They are that I must consider the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm.
There are a number of additional considerations expressed or rather set out, to which I would have regard. The first are the views of the children or child (s 60CC(3)(a)). In this case there is certainly no clear expression, nor would I expect, having regard to the child’s age and particularly his speech difficulties, of anything that might be taken as an express wish by the child. However, I am satisfied from Dr R’s report, that when he saw the mother and child together at the interview (page 13), the child was happy and relaxed. It took some little coaxing for him to settle down, and the mother described him to the Doctor whilst the child was sitting on her lap and talking quietly.
Regrettably, at one level, there was no observation of father and son, which might enable me in any way to assess the relationship between them. Accordingly, the only view or any material approaching a view to which I can have regard is the child appearing happy and contented in the presence of his mother.
The next of the matters I must take into account is the nature of the relationship with the child with each parent and other persons (s 60CC(3)(b)). There seemed to me no other persons nominated or involved whom I need to take into account. As to the relationship with parents, it is clear that the child has a close, loving and dependent relationship with the mother. Notwithstanding the mother’s own difficulties, it appears clear from the material that has been produced by F Organisation, and from the evidence of Dr R, that the child is closely attached to the mother and she is the person who, with help, has been providing for all of the child’s needs from the time of his birth.
The father’s relationship with the child is completely unknown. Indeed, it has been put that there is no relationship between the father and child. The father spent a number of visits with the child at the mother’s home, the last of those being in early 2008. The father and son have not seen each other since that time. The visits, to which I have made reference, led to an altercation, which I have already dealt with in these reasons for judgment.
Section 60CC(3)(c) talks of the willingness and ability of the child’s parents to facilitate a close and continuing relationship between the other parent. Clearly, the mother proposes that there should be no ongoing relationship and, accordingly, there is no examination possible of her willingness to do so. I am satisfied the mother will not encourage such relationship. It seems to me that, even in the face of an order, she would have some difficulty in genuinely encouraging the relationship between father and son.
The father, for his part, in my view, is entirely dismissive of the mother and gives her no credit for anything she has done. Whilst he says that the child should remain living with the mother and he have time with the child, I am satisfied that he presents as a man who would do everything he could to minimise the child’s relationship with the mother whilst maximising the child’s relationship with him.
I then must consider the likely effect of any change in the child’s circumstances and the effect on the child of separation from either parent is a very significant factor in this case (s 60CC(3)(d)). It is the father’s proposal, on the basis there would be absolutely no difficulty in achieving it, for the child to come with him in a situation of supervision for two months and that that would be entirely uneventful.
I am of the view that the introduction of the father into the child’s life – and I use the word “introduction” advisedly rather that “reintroduction” – would, if it were to happen, be a matter that would have to be handled with skill and with some real sensitivity for the child’s needs. I have no indication from the father’s point of view that he is even conscious of that need. He is not capable of doing anything that would ameliorate or decrease his son’s anxiety. He says he would engage with expert assistance that might achieve this. However, two matters are against him in this regard. Firstly, he holds very clearly to the view that once he sees his son the son will immediately love him and bond with him. Secondly, I am concerned that he is saying what he thinks the Court would like to hear.
I turn next to s 60CC(3)(f) which considers the capacity of each of the child’s parents, or any other persons, to provide for the needs of the child, including the child’s emotional and intellectual needs. The mother’s capacity as a parent is less than optimal. However, she has support, which I accept, although in a slightly changed form, would be ongoing. I am satisfied with that support she is in a position where she has a sufficient capacity to care for the needs of the child, including the child’s emotional and intellectual needs. I am satisfied, for example, that with appropriate help she can ensure that he attends pre-school or school, that he attends medical appointments required by his hearing difficulties. She encourages him, to the best of her ability, to learn and to interact with other people.
The father says, of course, that he is a good parent and, at one stage, I was somewhat taken aback when he said he was the father of 11 children. His view of his own ability is that he is a good parent and, of course, all that needs happen is that he be given the opportunity to parent and that capacity would become obvious. But to my mind, having regard to events that have occurred in the past, that is certainly not a fact that I am prepared to accept. I have difficulty in assessing how he would care for this little boy if the child were to spend time with him.
Further, I remain concerned that in this present case his focus is not solely on J, but upon other children of his, and the injustices that he perceives have been done him in respect of those children.
I do not need to deal with the maturity section, lifestyle of the child, and subsection (h) dealing with Aboriginality is not applicable.
I turn next to the attitude to the child or children in s 60CC(3)(i). The mother, in my view, has, to the best of her ability, focused on the needs of the child. She is, in this case, of the view that the father should spend no time with the child, and she advances reasons for that. A great deal of the reasons she advanced have to do with the past and activities that did not directly involve her.
I am satisfied that whilst the father has expressed concerns relating to the child that is not his sole or major activating cause behind the conduct of these present proceedings.
I have the uncomfortable feeling and concern that, at the end of the day, he is running these proceedings because of what occurred in respect of V and his three older children. I am also satisfied that at least a significant part of his motivation is that he be proven right and the mother proven wrong in respect of all matters in dispute between them. In other words, the father is focused on the fight and the winning of it, rather than what is best for J.
Family violence is certainly an issue in this case (s 60CC(3)(j)). It was put to me with some force by the counsel for the mother that family could involve any members of an extended family group. There is some weight in that argument, even if I am not convinced of it. I find that there has been violence perpetrated by the father upon the mother. I am satisfied that the violence need not be offered towards the child. I accept that which is submitted on behalf of the husband that no matter what else is established, there is no evidence of the father, directly or deliberately, involving the children – any of them – or offering any violence to the children or any of them. Of course, that is not what is in issue here. Family violence of any kind can, and does, have a disastrous result on children. People, and particularly children, are to be protected from it if at all possible.
Section 60CC(4) requires the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities. In my view, the mother has done all that it is in her power to do insofar as caring for the child. She has not taken, for the reasons she has set out, the opportunity to encourage the father to participate in the child’s life. Indeed, she has set her face against that. However, it must be remembered that in the December ‘07/January ’08 visits to her home, until the matter escalated, she did not seek to restrict the father. I accept the evidence that it firstly became difficult when he turned up at any time, including 11 o’clock at night, having indicated he would be there much earlier. There followed the altercation on the last occasion and thereafter the child spent no time with the father.
I am satisfied that, in the circumstances, the father has not taken any real opportunity to participate in making major decisions concerning the child. I am satisfied, rather, what he has done is seek to assert his right and completely ignore, or minimise at least, the rights of the mother when they conflict with his.
The next of the relevant section, is s 61DA of the Act. Section 61DA says that there is a presumption of equal shared parental responsibility when considering a parenting order.
However, s 61DA(2) says that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Section 61DA(4) goes on to say the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interest of the child for the parents to have equal shared parental responsibility.
I approach my examination of that section in two parts. Firstly, I am satisfied that there is, in this case, domestic violence which satisfied s 61DA(2)(b). If I am wrong in that, then I am satisfied that the totality of the evidence indicates to me that whatever other order I made it would be impossible for these parties to communicate at a level that would make the discharge of equal shared parental responsibility in any way possible. Put another way, it would be impossible because these parties could never communicate at the required level. Accordingly, I am satisfied that the presumption would be rebutted.
Section 61DA is normally a stepping stone or trigger to section 65DA, which talks of equal or significant and substantial time. However, their Honours of the Full Court in Goode & Goode[1] made it clear that even if s 61DA is not in play – in other words, there is not to be an order for equal shared parental responsibility – I must have regard to the best interests of the child to determine if it would be in the child’s best interests to spend either equal or significant and substantial time with both parents.
[1] (2006) FLC 93-286

Discussion

These are the matters that I am required to take into account in reaching a determination. The situation reached is this: I am satisfied that there cannot be equal shared parental responsibility. Therefore, I must determine which of the parents should have responsibility for parenting the child.
The mother has accepted help from F Organisation. She accepts her difficulties to some substantial degree. She is prepared to do something about those difficulties. My concerns in this regard are allayed to some extent by the Irrevocable Authority and Agreement (Exhibit ICL 2). Pursuant to this document, the mother is to accept assistance. Significantly, she authorises notification be given to the Independent Children’s Lawyer in the event of any difficulties experienced by her.
The father, I am satisfied, is not prepared to actively seek help to assist him overcome his difficulties. I do not, as I said, accept his assurances in this regard.
I am satisfied that any degree of meaningful cooperation between these parties in respect to the child is impossible. There is no communication between them whatsoever. I see no hope or prospect for this to improve in the future. I have come to the conclusion that the mother should have sole parental responsibility for the child.
The next matter is then where the child should live and the amount of time he should spend with each parent. There is no argument that could be advanced that the child should live with anyone other than the mother. The father indeed by the orders he proposes accepts that this should be so. I therefore propose to order that the child live with the mother.
The question that remains, and which to my mind is the heart of this matter, is whether the father should spend any time with the child, and if so, what time.
The father, as I have said to the point of boredom, seems to have no concept that there would be any difficulty in the event that there was an order for the child to see him. The mother’s case, supported by Dr R, is that, apart from anything else, there would be such upheaval in the child’s life and, further, in the mother’s ability to cope and provide the best parenting that she can for the child, that for the father to be reintroduced to the child in any fashion would be counter-productive.
For some years in this Court there was a line of authority based on one of the many cases reported as B & B. The case to which I refer is B & B (1986) FLC 91-758. It was a decision by Gee J. Bearing in mind this was a 1986 decision, well before the most recent amendments made to the Act, his Honour held with great forevision:
Whilst it is desirable for children to maintain a meaningful relationship with both parents, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the children.
His Honour went on to deal with a situation where the mother had an impeccable belief about certain things, even if mistaken, that made the concept of contact, as it then was, entirely unacceptable to her. Let it be clearly recognised I am not saying that just because the mother in this present case says she could not cope with the farther spending time with the child, I would refuse such time.
However, I am aware that the mother has her own difficulties. I am satisfied that the concept of the father spending time with the child would increase the possibility of the mother having difficulty in parenting the child.
In this matter I am satisfied that the risk to the child is very great. I am satisfied that the father’s anger and lack appropriate control may well result in harm or injury to the child. Further I am satisfied that the father’s inability to see any position other than his own reflects and demonstrates a complete lack of insight into what is needed in forming an ongoing relationship with his son. The father throughout the proceedings has seemed to express a view that it was his right to spend time with the child as he chose. That is simply not so, any right is the right of the child.
It may well be that if the father’s situation were different then different orders might be made. However, as was pointed out to me, I must take the parties, as I found them. I can not wish they were better or different than they are. I should record that the situation of each of the parties has caused me real concern. My determination in this matter is what set of orders do the least harm to this child.
In all the circumstances I am satisfied it is appropriate that there be an Order that the father spends no time with the child.
I note that the orders sought are for the Independent Children’s Lawyer not to be discharged for 12 months, and I will gladly make that order. I note the assurance of counsel, on behalf of the wife, that her lawyer will remain in the proceedings for the same period of time so that in the event anything arises she is there as a contact point for the mother.
I am satisfied that the orders proposed by the Independent Children’s Lawyer, which are agreed to by the mother, are proper and adequate orders in all the unfortunate circumstances of this case. I do not propose to deal at any length with orders that were originally sought for restrictions being placed upon the father in the event he wishes to make a further application. To my mind, if the father were in a position to be able to indicate to this Court that he has done all, or at least some of the things that Dr R has recommended, then he would be well on the way to establishing a change in circumstances or fresh circumstances, which would entitle him to re-litigate the issue should he choose to do so.

I certify that the preceding one hundred twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 19 November 2010.

Associate:

Date: 22 December 2010

[2010] FamCA 1173

19 November 2010

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