Setter and Howe

[2016] FCCA 2208

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETTER & HOWE [2016] FCCA 2208

Catchwords:
FAMILY LAW – Parenting – family violence – young child – no meaningful relationship with father – sole parental responsibility – no time with father.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DAA, 69ZT, 60CG

Cases cited:

Slater & Light [2011] FamCAFC 1at [45]

Mazorski & Albright [2007] FamCA 520 at [26]
MRR & GR [2010] HCA 4 at [15]

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

McCall & Clark [2009] FamCAFC 92 at [121]

Applicant: MR SETTER

Respondent: MS HOWE

File Number: PAC 4555 of 2014

Judgment of: Judge Obradovic

Hearing date: 8 August 2016

Date of Last Submission: 8 August 2016

Delivered at: Parramatta

Delivered on: 9 August 2016

REPRESENTATION

For the Applicant: No appearance

Counsel for the Respondent: Mr Pickering

Solicitors for the Respondent:	Sarah Bevan Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr Ladopoulous
Solicitors for the Independent Children's Lawyer:	O'Donnell & Associates Family Lawyers

ORDERS

1. That the mother shall have sole parental responsibility for the child X born (omitted) 2014.

2. That X shall live with the mother.

3. That X shall spend no time with the father.

4. Remove all outstanding applications from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4555 of 2014

MR SETTER

Applicant

And

MS HOWE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings for final orders. 

2. X was born on (omitted) 2014.  He has been living with his mother since birth. 

3. He has seen his father twice.  This occurred in (omitted) 2014. 

4. The father, Mr Setter, who is the Applicant in these proceedings, did not appear at the hearing of this matter on Monday, 8 August 2016, nor was he in Court on the second day of hearing, when Judgment was delivered.  This was the second listing of the matter for final hearing. 

5. The father filed an Initiating Application on 24 September 2014, together with an Affidavit in support sworn 23 September 2014 and filed 24 September 2014.  At that time, he also filed an Affidavit of his mother, Ms D, that Affidavit being filed on 24 September 2014. 

6. On 14 October 2014, the mother, Ms Howe, filed a Response to initiating application together with two Affidavits. On 15 October 2014, orders were made by Judge Harman, inter alia, by consent, for X to spend time with his father for one hour each week, supervised by Connecting Families. 

7. On 15 December 2014, an order for a Family Report was made and the matter was adjourned to 20 August 2015. 

8. On 20 August 2015, the Family Report of Mr P, dated 16 July 2015, was released to the parties. Also on that date, the matter was listed for final hearing at 10am on 15 and 16 March 2016 and trial directions were issued.  An order appointing an Independent Children’s Lawyer was also made.

9. On 2 November 2015, the mother filed an Amended Response seeking orders for sole parental responsibility, that the child live with her and that he spend no time with the father. 

10. On 15 March 2016 when the matter came on for hearing, the father sought an adjournment on the basis that he had been incarcerated from November 2015 until his release on 7 March 2016 and had been unable to effectively prepare for these proceedings. On 16 May 2016, the matter was listed for final hearing before me to commence at 10am on 8 and 9 August 2016.  Apart from his Affidavits which he filed on 24 September 2014 as at 8 August 2016[1], the father had not filed any further affidavits. None of the father’s Affidavits were read in these proceedings at final hearing. 

    [1] And also as at 9 August 2016

11. At the commencement of the hearing, shortly after 10am on 8 August 2016, there was no appearance by the father.  The mother was represented by her Counsel and the Independent Children’s Lawyer was represented by her Counsel. The Court understood from the Independent Children’s Lawyer that she had made some enquiries of the paternal grandmother before the matter had commenced and from the information that was received she understood that the father was on his way to Court.  There was no communication received by any of the parties, or by the Court, from the father which might have explained the father’s absence from the Court at the commencement of the hearing of this matter.  In any event, to allow the father further time, the matter was stood down for a short period and the hearing did not commence until after 10:30am, at which time there was still no appearance by the father, despite the matter being called outside the courtroom and the father being paged by security in the Court complex. 

12. At the hearing, the mother sought orders as set out in her Amended Response filed 2 November 2015 and relied upon the following evidence: 

    a)Affidavit of Ms Howe, filed 3 August 2016; 

    b)Affidavit of Ms Howe, filed 23 February 2016; 

    c)Affidavit of Ms L, filed 14 October 2014; 

    d)Affidavit of Mr J, filed 8 August 2016;  and

    e)Exhibit ‘1’, being the final Apprehended Domestic Violence Order, dated 19 July 2016, issued by Penrith Local Court for the protection of the mother from the father. 

13. A Case Outline document was also prepared on behalf of the Respondent mother and handed up to the Court, that document being marked ‘MFI 2’. 

14. The Independent Children’s Lawyer supported the mother’s position as set out in her Amended Response, filed 2 November 2015;  namely, that the mother have sole parental responsibility for the child, that the child live with the Respondent mother and that the child spend no time with the father. 

15. A Case Outline document was also prepared on behalf of the Independent Children’s Lawyer and handed up to the Court, that document being marked ‘MFI 1’. 

16. The Independent Children’s Lawyer relied upon the following evidence: 

    a)Exhibit ‘2’, which was the Family Report of Mr P, dated 16 July 2015; 

    b)Exhibit ‘3’, documents from the bundle produced by Blacktown Local Court pursuant to Orders made by Judge Harman in these proceedings, both marked with a pink tag being,

    i)the application for an Apprehended Personal Violence Order, filed 1 July 2013, naming the father as the Defendant, being a three page document; and

    ii)the father’s Antecedents, being a twelve page document; 

    c)Exhibit ‘4’, being documents produced by the New South Wales Department of Justice and tabbed ‘ICL 10’, ‘ICL 11’ and ‘ICL 3’, being;

    i)Mental Health Assessment of the father, dated 13 February 2015;

    ii)the father’s Pre-Sentence Report, dated 24 March 2015; and

    iii)the Fact Sheet in relation to the three offences with which the father was charged, arising out of his conduct on 11 February 2015; 

    d)Exhibit ‘5’ from the documents produced by Connecting Families, being the document tabbed ‘ICL 1’, which was a File Note dated 23 December 2014;  and

    e)Exhibit ‘6’, being from documents produced by (omitted) Children's Contact Centre and tabbed ‘ICL 2’, which was a File Note dated 10 February 2015. 

17. Counsel for the mother relied on his Case Outline document in relation to the submissions in the mother’s case and also submitted and I paraphrase, that the way that the father had conducted himself had made it impossible for him to have a relationship with the child and to spend any time with the child. 

18. Counsel for the Independent Children’s Lawyer adopted the mother’s submissions and submitted that the father had a particular pattern of behaviour over many years and that there was no evidence by the father to address this pattern of behaviour. 

19. The submission was also made that there was no evidence of any meaningful relationship between the child and the father.  It was said by Counsel for the Independent Children’s Lawyer that the need to protect the child from harm swayed the balance in favour of an order that there be no time between the child and the father. 

Short History

1. The father was born on (omitted) 1978.  The mother was born on (omitted) 1993.  The parties commenced a relationship in (omitted) 2013, started living together in July 2013 and separated on a final basis in January 2014.  There is one child of the relationship, namely, X, born (omitted) 2014, the subject child of these proceedings. 

2. Both the mother and the father have one child each from a previous relationship. 

3. X lives with his mother and his half-sister Y, who is almost six years old.  Y was born on (omitted) 2010. 

4. There is no evidence of any relationship between X and his other half-sister Z, who is approximately 14 years old. 

5. In her Affidavit filed 23 February 2016, the mother describes a series of incidents of the father’s behaviour which she calls violent.  For example, the mother says that the father threw a lit cigarette at her head and that when a friend of hers picked up Y and walked towards the door to take her outside away from the father’s yelling, the father picked up a bottle of tomato sauce and sprayed it all over the mother’s friend. 

6. The mother also gives evidence of her knowledge of the father selling marijuana during the relationship and, in particular, that he did so from the mother’s home.  When the mother raised her concerns with the father about this, she says that he yelled at her and, consequently, she did not raise her concerns again with him.

7. The mother observed the father to have smoked marijuana throughout the relationship. She, however, does not give any evidence of her observations of the father’s behaviours whilst she says he was smoking marijuana as she alleges, nor any evidence of her observations of the father consequent upon the use of the drug as she alleges. 

8. After she found out that she was pregnant with the parties’ child, the father said to her on one occasion, “I’m going to take the baby off you when he’s born”.

9. Between September 2013 and January 2014, the mother tried to leave the father and move out of the home on at least three occasions.  On each of those occasions, except for the last, the father convinced her to return.  The parties finally separated in January 2014, months before X was born. 

The Applicable Law

1. The central inquiry is for the Court to determine the outcome that is best for the child.  Parenting proceedings are governed by provisions of Part VII of the Family Law Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC.

4. Section 60CC outlines the primary and the additional considerations that the Court is to take into account in determining what is in the child’s best interests.

5. In applying these considerations set out in subsection (2) of section 60CC, the Court is to give greater weight to the considerations set out in subparagraph (b).

6. In addition, in considering what order to make, the Court 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 does not expose a person to an unacceptable risk of family violence[2].  The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order[3]. 

   [2] S.60CG(1)(b)

   [3] See s.60CG(2) such safeguards are for the purposes of sub-paragraph (1)(b)

7. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.  That presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. 

8. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interest.[4] 

   [4] S.61DA(2) and (4)

9. In the event the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions in section 65DAA, which provide for a consideration of the child spending equal time with each of his parents.  If the Court finds that it is not in the child’s best interests or reasonably practicable, then the court must consider the child spending substantial and significant time with each of the parents.  Section 65DAA is expressed in imperative terms. 

10. The Full Court in Goode & Goode[5] mandated that this legislative approach must be followed in all parenting cases.  The High Court in MRR &GR[6] affirmed the legislative pathway. 

    [5] (2007) 36 FamLR 422

    [6] [2010] HCA 4

11. The Act does not mandate the discussion of any considerations under section 60CC in any particular order. It is well recognised that additional considerations may outweigh the primary considerations[7]. 

    [7] See Slater & Light [2011] FamCAFC1 at [45]

12. In applying the primary considerations set out in subsection 60CC(2), the Court must give greater weight, as has already been mentioned, to the considerations set out in paragraph (2)(b), namely the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

13. It has been held that a meaningful relationship is one which is important, significant and valuable to the child[8].  The focus is not on the relationship as such but on the benefit the relationship might have for the child. 

    [8] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC at [121]

Risk of Harm and Violence

1. While much of the evidence below may strictly speaking, be termed tendency evidence, it is relevant and otherwise admissible as a result of section 69ZT of the Family Law Act. 

2. At a time early in the parties’ relationship in May 2013, the father made a number of threats to “(omitted)”, one of which was to the effect of, “I’m going to come down there and punch you in the face and bring the Court papers”. These threats resulted in the police applying for an AVO, dated 1 July 2013. 

3. The threat made on that occasion did not concern the mother or their unborn child.  It is a matter which is only of peripheral importance in these proceedings but is relevant because it is a pattern of behaviour in which the father has engaged in over many years. 

4. After separation, the father’s behaviour fluctuated from verbally abusing the mother to telling her that he loved her.  As a result of the father’s behaviour, the mother stopped taking his calls and the father’s behaviour was placing extra stress on her. 

5. After she stopped taking the father’s phone calls, the father began attending at her home.  The mother then arranged to move in with her mother and to terminate her lease.  On the day that she attended the real estate agency to return the keys for the property, the father was parked out the front.  After she left the agency and began to walk to the shopping centre, the father followed her and began to yell.  The mother walked into a pub and hid in the bathroom where she stayed for approximately 15 minutes.  That evening, she blocked the father’s number from her mobile.

6. The father then began contacting the mother from different mobile numbers, from private numbers and from payphones.  He also began sending her letters which were delivered to her mother’s letterbox.  Copies of those letters were annexed to the mother’s Affidavit and include statements such as:

   I treated you wrong by yelling and my moods and disrespect you.  I did not mean to… Please don’t think I’m going to do the same shit I did with Z… Sorry for all stress and shit I put to you as I did not want to let you down…  Sorry I disrespect Y bye yell at you in front of her or yelling at all.  Giveing up smokeing pot will be ezyer then giveing up you. (sic)

7. Both the mother and the maternal grandmother give detailed evidence about the father’s persistent and consistent attempts at contacting the mother and the maternal grandmother.  It is clear that the mother did not invite such behaviour from the father and did her best to block the father from contacting her via the mobile and social media. 

8. The mother also attended upon the police and made complaints about the father’s behaviour towards her.  On 27 March 2014, after making a statement to the police at (omitted) Police Station, the police applied for an Apprehended Violence Order for the protection of the mother.  A provisional ex parte Apprehended Violence Order was made on 1 May 2014, which was ultimately extended and a provisional order was made. 

9. The conduct which the mother complains of post-separation and before the birth of the parties’ child included text messages to the mother’s sister which read:

   Let your mum and that know I’m popping around their to see about my son as no one will be keeping him from me.  I don’t care what I have to do I will be there for my son.  Tell your mum the game have to stop before someone git hurt and it will not be me. 

   (sic)

10. Before X was born, the mother contacted Relationships Australia to organise mediation but was placed on a waiting list. 

11. On the day that X was born, the father attended the hospital but due to the mother informing the staff that she did not want to see him, he was prevented from seeing either the mother or the baby. 

12. There then followed:

    a)text messages from the father to the maternal grandmother which contained phrases such as “You’re nothing but a dog slut.  I will see my fucking son, you dog slut.”;

    b)telephone calls to the maternal grandmother’s place of work;

    c)telephone calls to the maternal grandmother’s mobile number;

    d)on 2 June 2014, a phone call to (omitted) Police where the father said that if the police didn’t help him see his son, he would go down to the mother’s house and smash her door down.  As a result of that threat, the police attended the mother’s home;

    e)a letter was left on the mother’s front porch which read “dead” on 17 June 2014;

    f)the electricity was turned off at the mother’s home from the power box, which was something that the father had previously done to the mother;

    g)there were threats by the father to the mother’s lawyer and the lawyer’s staff, as a result of which the mother’s lawyers ceased acting for her; and 

    h)on 23 August 2014, a deliberately lit fire out the front of the mother’s home in circumstances where the father had previously told the mother that he had lit a tyre and threw it through his ex-partner’s window. 

13. On 13 August, the parties attended mediation but there was no agreement reached in relation to the father spending time with X. 

14. Following the Orders for time which were made by consent on 15 October 2014, on 23 December 2014, because the child was unwell, the mother contacted Connecting Families with a Medical Certificate as the child could not attend time with the father. 

15. On the same day, being 23 December 2014, a letter from Connecting Families was sent to the mother, notifying her that they had ceased all supervised time because of the father’s behaviour. 

16. The letter states that the father used abusive language towards the supervisor, called him a “rude cunt”, that he rang Connecting Families 27 times and made threats towards the mother to the effect, “I will go burn her house down if she doesn’t bring the child tomorrow”. The mother understood that these threats were reported to the Police by Connecting Families.

1. On 11 February 2015, the father was arrested and charged with three offences of use carriage service to menace/harass/offend. These charges related to the father telephoning the National Enquiries Centre located at the Family Law Courts in Parramatta on three different dates.

2. On 12 January 2015 the father said, during the telephone call, the following words:

   Judge Harman is lucky I didn’t smack him in the mouth and he’s left me with no option but to do something silly to get my son back.  I’m giving you 10 days or I’ll have to do something unthinkable and unspeakable…  I’m a father at wit’s end ready to do the most unthinkable things to get my kids back.  I need help.  You have put me in this you will help me get out of it.  I’m sick of this rudeness, but I guess when I do what I’ve gotta do to get my kids back, everyone will realise.

3. The father called the National Enquiries Centre a second time that day and spoke with a different operator.  During that second conversation, he said:

   You’ve got 10 days or unthinkable things will happen.  I’m at wits end unless the Court does something…  Pass the message to the Judge that he’s lucky I didn’t smack him in the mouth and he has 10 days to fix this or what I do is his and the Court’s fault.  Tell Judge I’m a father with no other choice but to do unthinkable things.  All I want is an emergency date.  He’s got a week or I’ll be locked up, severely hurt or have my son and I’ll be happy. 

4. On 16 January 2015, the father telephoned the National Enquiries Centre on three separate occasions, speaking to different operators.  He spoke again of “unthinkable” and “unspeakable” things he would do if the Court did not assist him in acquiring an earlier Court date. 

5. On 19 January 2015, the father again called the National Enquires Centre and said words including:

   What I’ve been thinking about doing, I’ve never done before…  Let the Family Court know I’ll ring back everyday for four days.  If they haven’t helped me, God help them.  Everything I do is on the Family Law Court.

6. In February 2015, the father approached Relationships Australia to organise supervised time.  After the intake assessment, the mother received a letter from the contact centre advising that they will not supervise time between X and the father. That letter indicates that the centre held concerns that the father might be using illicit substances and that they held safety concerns for the child as the father had mentioned abducting the child if he was given supervised time. 

7. In July 2015, when he was supposed to be attending the interviews for the purposes of the Family Report, the father threatened to abduct X at the conclusion of his appointment. The interview did not take place and the Family Report consequently is very limited.

8. Between 27 October 2015 and 30 October 2015, the maternal grandmother received voicemails from the father as follows, “I’m out of jail and going to burn her house down”, and “Tell her, since she likes taking people’s children, I’m going to take one of hers”.

9. The father was in gaol between November 2015 and March 2016. 

10. After his release from gaol, the mother says that the father has continued to send her messages from varying Facebook accounts using multiple names, including his own name.  A further Apprehended Violence Order was made on 19 July 2016 for the protection of the mother with the father being named as the Defendant. That Apprehended Violence Order is in force for a period of 12 months from 19 July 2016. 

11. On 5 August 2016, the Friday before the Monday the matter was listed for hearing, a telephone call was made to the mother’s lawyers, during which the caller said:

    Your client, Ms Howe, she is in for final hearing next week.  I just want you guys to know if I don’t get to see my kids after next week, I’m going to track down everyone of you and make sure you never ever see your kids again.

12. The belief held by the paralegal from the firm of solicitors who act for the mother who took the call is that the caller was the father.  The phone number from which the call was made was identified.  It is not known whether that matter was reported to the police. 

13. Given the context and timing of the call to the mother’s solicitors, together with all of the other evidence, I infer that the phone call made on Friday 5 August, 2016 was made by the father or on his behalf. 

14. The father has what might be called, a lengthy criminal history starting from the time when he was a juvenile in 1993 (with offences including obtained financial benefit by deception, malicious damage, stealing, driving in a manner dangerous and driving whilst disqualified) to then offences as an adult (starting in 2001) of common assault,  larceny,  resisting police in execution of duty,  shoplifting,  break and enter,  possess prohibited drug,  contravening an Apprehended Violence Order (2009, 2011 and 2014) and use carriage service to menace/harass/offend (2010 and 2015). 

15. Amongst the sentences which he received for the various crimes which he committed, the father was imprisoned, he served periods of home detention, he was placed on good behaviour bonds and he was fined. 

16. The most recent charges relating to use carriage service to menace/harass/offend in 2015 resulted in a period of eight months imprisonment with a non-parole period of three months. These last charges clearly relate to the issues currently before the Court, namely the father’s desire to spend time with and see his child and his actions and consequences as a result of that desire. 

17. In considering the evidence of violence and the threatening and intimidating conduct of the father, I have not come to any conclusions about whether the father had any intention of bringing any harm to any of the persons who have reported the various threats he has made.  It is enough that he has made the numerous and concerning threatening statements which I find on the evidence as specifically referred to in the earlier passages of these Reasons.  I am, however, not making any findings of the likelihood of the father carrying out any of these threats, which I am unable to do on the evidence before me. 

18. The father has engaged in behaviour which falls within the statutory definition of family violence as contained in s.4AB of the Family Law Act and in particular, he has engaged in behaviour which has caused the mother to be fearful. 

19. Consequently there is a need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse or family violence within the meaning and requirements of section 60CC(2).

Meaningful Relationship

1. The child spent time with his father on two occasions. Both of those have occurred through Connecting Families and took place on 3 December 2014 and 10 December 2014. The child has not seen his father at all since December 2014. 

2. The child has only recently turned two years old and that it is highly unlikely that he would have any memory of his father as a result of the time that he has spent with him. There is no meaningful relationship between the father and the child at present.

3. There is no evidence of the benefit which the child might have from having a meaningful relationship with his father particularly in circumstances where the father having engaged in family violence and there is a risk of harm to the child being exposed to such violence. 

Section 60CC(3) Factors. 

The Views of the Child

1. X is too young for his views to be taken into consideration and in any event, there is no evidence of any views expressed by the child. 

The Nature of the Relationship

1. The mother has been X’s primary carer since birth and the father has had very limited time with the child.  There is otherwise no evidence of the child’s relationship with the father. 

Spending time with the child, practical difficulty maintaining the child and the likely effect of change. 

1. The father has not availed himself of all the available opportunities to spend time with the child and communicate with the child.  Despite the orders which were made by consent in October 2014, the father saw fit to behave in a manner which has ensured that two supervisory services have refused to assist the parties in supervising time between the child and the father. 

2. The father has threatened to abduct the child both from supervised time but also more importantly from the interviews which were to take place for the purposes of the preparation of the Family Report and while this matter was before the Court for the purposes of hearing the father’s application.

3. The father’s threats of abducting the child are evidence of his poor insight and capacity. 

4. The refusal of the supervisory services also means that there is a significant practical difficulty in the child spending time with his father on a supervised basis which is an order that I had considered making but based on the father’s history and behaviour, I do not consider there to be any utility in.

5. There is no evidence of the father providing any child support or making payments towards the maintenance of the child.  The child lives with the mother and she has been responsible for meeting all of his needs:  physical as well as emotional. 

6. The likely effect of change is not a matter which has been the subject of any evidence - if there was to be an order for the child to spend time with the father or, indeed, if he was to be away from his mother for any prolonged period of time.  I do note the child’s tender age and the fact that the mother has been the child’s primary carer and that in all probability the mother is the child’s primary attachment figure.

The Attitude to the Child and Responsibilities to Parenthood

1. The father has not demonstrated any sensible attitude to the child or to his responsibilities as a parent.  His post separation conduct represents a serious concern as to his ability to be child-focused and, indeed, is contraindicative of such an ability. 

2. He has been violent towards the mother: intimidating and threatening her and making other various threats including against a Judicial Officer of this Court during the course of the proceedings. Such conduct by the father appears to be because of his inability to deal with his circumstances and, in particular, the fact that he has not spent time with his child.

3. The Pre-Sentence Report dated 24 March 2015 states:

   Mr Setter stated that his offending behaviour was a venting of his frustration and anger at being prohibited from seeing his son.  He claimed that his actions were a plea for help in the hope of getting some assistance with his predicament…  The underlying issue for Mr Setter appeared to be his embargo from accessing his son.  It would appear that his offending behaviour was driven by his inability to properly manage his frustration and anger regarding his predicament.  Mr Setter admitted that he may have been affected by cannabis which may have impaired his decision making…  He appeared to be willing to address his behaviours and engage in appropriate intervention as well as seeking assistance via community support groups. 

4. The Mental Health Assessment dated 13 February 2013 conducted for the purposes of the father’s sentence in respect of the charges laid in early 2015, indicates that the father reported a history of cannabis and amphetamine abuse. Whilst the father did present as likely to be suffering from a depressive mood disorder at the time, in view of the person preparing the report, the father did not present as likely to be suffering from mental illness as defined in the New South Wales Mental Health Act 2007.

5. At the hearing of this matter before me, there was no evidence of the father having sought any appropriate intervention or assistance in respect of the matters which the Pre-Sentence Report indicates were troubling the father or, indeed, what appeared to be his longstanding behaviours as reflected in his criminal history and also as reflected in his behaviour towards the mother post-separation. 

Family Violence

1. These matters have been dealt with earlier in these reasons. 

Further Proceedings and Other Matters

1. While the fact that these proceedings were dealt with in the absence of the father due to his non-attendance at the hearing of the matter on both 8 August 2016 and also when Judgment was delivered on 9 August 2016 might lead to the father ultimately making further applications whether to this Court or to some other Court, I consider this factor itself to be of very limited weight in all of the circumstances. 

2. The mother has made reasonable attempts at facilitating a relationship between the child and the father.  She has facilitated mediation initially and then consented to an order for time to occur while X was very small and she ensured that such time occurred in accordance with the orders.

Parental Responsibility 

1. There is sufficient evidence of family violence, poor behaviour and lack of child focus from the father and poor communication between the parties due to the father’s behaviour that make the sharing of parental responsibility very difficult and not in the child’s best interest. 

2. The presumption in section 61DA is, therefore, rebutted and an order for the mother to have sole parental responsibility is in the child’s best interest. 

Conclusion

1. Having regard to the matters set out earlier in these Reasons and matters pertaining to in particular to section 60CC(2), (3) and (2A) and section 60CG, I am of the view that an order for no time as sought by the mother and the Independent Children’s Lawyer is an order that is in the child’s best interest.

2. There is an unacceptable risk of harm to the child based on the findings of family violence, the lack of child’s relationship with the father and other relevant matters for there to be any order for time that is not supervised at present.  An order for supervised time at this juncture is simply not practicable.  I, therefore, make the orders as set out at the forefront of these Reasons.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 9 August 2016