Skinner and Finn and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKINNER & FINN & ANOR

[2017] FCCA 2590

Catchwords:
FAMILY LAW – Parenting dispute – father seeking 12 months’ supervised time followed by review – child living from very early age with maternal step-grandmother – grandmother and Independent Children’s Lawyer opposing father’s application and seeking no time – child’s upbringing chaotic while in care of parents – father unable to accept grandmother as primary carer of child – father’s endeavours to address his difficulties coming only very late – not in child’s best interest to spend time with father despite the father’s sincere desire to do so.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 11F, 60CC, 67Z

Goode v Goode [2006] FamCA 1346

Applicant:

MR SKINNER

First Respondent:

MS FINN

Second Respondent:

MS A FINN

File Number:

DGC 2509 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

12, 13 & 17 October 2017

Date of Last Submission:

17 October 2017

Delivered at:

Dandenong

Delivered on:

3 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr O’Connell

Solicitors for the Applicant::

Victoria Legal Aid

Counsel for the First Respondent:

Ms Mandelert

Solicitors for the First Respondent:

Lampe Family Lawyers

Counsel for the Second Respondent:

No Appearance

Counsel for the Independent Children’s Lawyer:

Ms Elleray

Solicitors for the Independent Children’s Lawyer:

Dandenong Family Lawyers

ORDERS

The First Respondent maternal step-grandmother, Ms Finn (“Ms Finn”) have sole parental responsibility for the child X born (omitted) 2006 (“the child”).
The child live with Ms Finn.
The father’s time with the child be reserved, save that the father be at liberty to send cards, letters and presents to the child for birthdays and other festive occasions.
The mother Ms A Finn spend time with the child as agreed with Ms Finn.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2509 of 2016

MR SKINNER

Applicant

And

MS FINN

First Respondent

MS A FINN

Second Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of X born (omitted) 2006 and therefore now 11 years old. The applicant father seeks that he spends supervised time with X for a period of 12 months following which there may be a review of his time with the child. This is the position advocated by the family report writer. The first respondent, maternal step grandparent, seeks that X live with her and spend no time with the father. She is strongly supported by the Independent Children’s Lawyer. The second respondent, the biological mother of X, has played no meaningful part in this proceeding.
For the reasons that follow I am going to make the orders sought by the first respondent whom, for convenience, I will refer to either as first respondent or grandmother as the case may be, and supported by the Independent Children’s Lawyer. It should be noted at the outset that this is a very sad case and this outcome is one I have reached with both a measure of natural reluctance and great sympathy for the father, a man who still has many demons to deal with.

Agreed or Uncontroversial Facts

X’s date of birth has already been given. He was conceived during a relationship between the applicant and Ms A Finn between 2002 and 2005. That relationship produced an older sibling, Y, born (omitted) 2003. Y was the subject of Department of Health and Human Services intervention soon after birth and he has lived with foster parents, effectively, all his life. He has had no relationship with the mother and although he had some ongoing contact with his father in recent years that has come to an end. The reasons for that cessation are in issue.
Following X’s birth a first report was received by the DHHS in May 2006 and led to a protection order being in place. As noted in the DHHS s.67Z response dated 16 September 2016:
Concerns pertained to a highly conflictual relationship that escalated into significant violence between Mother and Father during which it was assessed that the parents had no capacity to protect or had any insight into the risks to their children. X was placed on an Interim Accommodation order to Mother and was having supervised contact with Father, which led to X being later placed on a Supervision order on 5 June 2006. Mother spent a period of time transient, moving between Victoria and Queensland from January and until March 2007 remained in his Mother’s care in Queensland, whilst living with the maternal grandfather.
That recitation does not quite correlate with the parties’ version of the events which as recorded at paragraph 3 of the family report suggests that the mother was advised by DHHS to live with the maternal grandfather in Queensland. Nothing turns on this discrepancy.
It is common cause that the first respondent was married to the maternal grandfather, Mr G, for 10 years until his death in (omitted) 2015. They lived for this period of time in rural Queensland. The first respondent has been the primary carer of X since he was 11 months old.
X has been diagnosed at an early stage with foetal alcohol syndrome. He has later been diagnosed with oppositional defiance disorder, attention deficit hyperactivity disorder, and anxiety. So much is formally confirmed by exhibit ICL3 being the relevant diagnosis from Dr C, consultant paediatrician.
The father undoubtedly travelled to Queensland and spent time with X from time to time although its extent has been in issue.
The first respondent and X returned to live in Victoria in (omitted) 2016. In (omitted) 2016 they attended a birthday party for X organised by the father following contact between him and the grandmother. How well this went is a matter in dispute. It is common cause that the paternal grandmother attended this occasion together with other family members but none of them, save the father, have seen X since.
Time was spent by the father with X, arranged by the grandmother, on various occasions up until April 2016 when it was ceased following a disputed incident at a (omitted). Telephone time was stopped thereafter for reasons likewise in dispute.
The parties were the subject of a section 11F interview on 13 November 2016. Both of X’s biological parents attended and he appeared, according to the report writer, to interact well with both of them. A subsequent family report was prepared by Ms M dated 28 July 2017 to which it will be necessary to return.
The father was born (omitted) 1975 and the mother (omitted) 1981. The grandmother was born on (omitted) 1966.
The mother has four other children born between 1998, A born (omitted) 1998, B born (omitted) 2001, C born (omitted) 2007, and D born (omitted) 2000. The father has an extensive history of criminal offences ranging from 1998 to 2014. Although there is argument about a number of the outcomes recorded in the police records tendered, on any view of the matter he is not a person unknown to the law.

The Party’s Affidavits

Much of the party’s affidavit material has already been traversed in the agreed matters above. I will, however, refer to their filed affidavits simply to extract relevant additional matters.
The father’s first affidavit filed 16 August 2016 notes his date of birth, (omitted) 1975, and that he suffered, at the time, post-traumatic stress disorder and depression. I note that he had not seen his oldest child, E, then 16, for 10 years. The mother, whose date of birth was 16 (omitted) 1981 as earlier indicated, has six children then aged from four to 18.
The father deposed to having visited Queensland twice at the expense of the DHHS to see X. He also noted a conviction for an assault on the mother for which he received six months’ suspended sentence. He deposed to still consuming alcohol despite having attended a PenDAP course and that he used cannabis on “a casual basis”.
The father deposed to an argument at the (omitted) on 16 April 2016 and the fact that he was subsequently required to take a DNA test (parenting having been put in issue by the grandmother on a hearsay basis from information received from the mother). He deposed to a relationship for three months in 2015 with Ms N and to the fact that he was facing assault charges and was the subject of an Intervention Order in respect of that person.
The grandmother’s first affidavit filed 17 October 2016 indicated that she was born on (omitted) 1966. She commenced a relationship with the maternal grandfather in (omitted) 2003 and they married on (omitted) 2005. He died on (omitted) 2015. The grandmother gave the dates of birth of A, B, C and D. She deposed that she had moved to Victoria with X in (omitted) 2016 because X was desperate to meet his siblings. He had met them all save B. She deposed to X’s medical condition and the fact that he was violent at primary school. She deposed to the father visiting Queensland in 2008 and two further visits there in 2009 to 2010 all of which had been supervised. Telephone time which had subsisted previously ceased in about 2010 but the father took up calling again in 2014.
The father was allowed a period of unsupervised time for two days in November 2014 with Ms N at Ms N’s uncle’s home. It emerged that X, then eight, had fired a loaded gun.
The grandmother deposed to the birthday party held on (omitted) 2016 and the difficulties occasioned by the father’s failure on various occasions to attend for time with X. On (omitted) 2016 he failed to attend because it was raining and on two dates in March 2016 he had simply not turned up.
The grandmother deposed to the incident on 16 April 2016 at the (omitted) park which she said X was exposed to, following which time and telephone time were stopped.
The grandmother deposed that on 20 April 2016, X advised the grandmother that during telephone contact the father had said he was going to move closer to him. The grandmother deposed that she regarded this as threatening and stopped all time with the father, including phone time, thereafter. The grandmother deposed to a number of insulting texts sent to her by the father thereafter (see paragraph 37 of the affidavit).
The grandmother deposed to family violence allegedly perpetrated by the father against both X’s biological mother and Ms N.
In his affidavit filed 12 December 2016, the father deposed to having been prepared to accept supervision by his mother (who filed an affidavit to this effect on the same day). He deposed that the charges brought in relation to Ms N were withdrawn on 14 November 2016. He admitted the incident with the air rifle in Queensland. He deposed to being on Seroquel.
In his further affidavit filed 13 January 2017 the father deposed at paragraph 6 he would be content to see X at a supervised contact centre and that he wanted to send letters, cards and presents to him.
In his affidavit filed 15 August 2017 the father deposed to various positive steps he had undertaken. He has completed a positive lifestyle course through the (omitted). He deposed to having established a new business, albeit that this had been interrupted by injuries following a (hobby omitted) accident. He deposed to being under the care of a psychologist, Ms K.
His further affidavit filed 14 September 2017 annexes a report by Ms K. The father denied breaking the mother’s arms twice in the past. He deposed to a visit from B and A and asserted that the grandmother was seeking to alienate X from him.
The annexed report from Ms K dated 13 September 2017 notes that she has been treating the father since June 2016. She asserted:
His presenting complaint was allergies and chronic tension in his shoulder, along with difficulty controlling his temper. He reported that he was triggered by events and would black out, often coming to later to discover he had been in an altercation.
Ms K also noted that the father needed marijuana to feel normal.
The report was generally supportive of the father noting that while he still remained vulnerable to anger management concerns, he had sufficient ability to regulate his emotions to manage triggers effectively and avoid further instances of dissociative explosive anger. Ms K had no concerns that his anger would be directed at his children.
A further annexure to the affidavit notes that the father had self-referred to the (omitted) and (omitted) Drug and Alcohol Services on 18 August 2017 and undertaken an initial intake interview.
The only other matter to be noted before turning to the family report is the report of DHHS dated 16 September 2016 which noted that in May 2006, as earlier indicated both parents were wholly insightless and incapable of looking after their children.

The Family Report

The family report has to an extent been overtaken by the evidence given at court. I note that at paragraph 21 the father described the maternal grandfather as powerful with political connections and asserted that the grandfather had tried to get him killed as he did not like him being with his daughter (X’s mother). I note that at paragraph 46 X stated, “Maybe I’m like dad. I hurt people.” He also shared that his mother’s brother, Mr S, had told him that his father had broken his mother’s arms twice in the past. That assertion was also repeated on a hearsay basis by the grandmother. At paragraph 48 X disclosed that he was afraid that his father wanted to take him away from the grandmother.
I note that at paragraph 61 the report unequivocally recommended sole parental responsibility to the grandmother. The report noted, “Given the issues of violence and intimidation, she believes that it is not feasible or practical to conduct consultations with the father or mother. The writer supports grandmother’s proposal.”
The report went on to recommend supervised time for 12 months and that a progress report be obtained thereafter before further determination of the matter.

The Subpoenaed Material

Exhibit ICL1 is a record of the father’s criminal convictions which as earlier indicated covers the period from 1998 to 2014. It makes depressing reading. A number of the convictions unequivocally (for example, Frankston Magistrate’s Court 7 November 2014) involve what can only have been family violence.
Exhibit ICL2 is an extensive record from LEAP records of family violence proceedings. They record successive complaints of significant family violence by the father against the complaining female partners of the father concerned. It is fair to say that there is something of a pattern, as counsel for the Independent Children’s Lawyer submitted, of violence following separation when the father sought to collect his possessions.
The exhibit, ICL3, is the formal diagnosis of X’s medical conditions to which I have already referred.

The Evidence Given at Court

What follows is taken from my notes. It is not a transcript but records the aspects of the evidence that I found significant.
Counsel for the father indicated in opening that he was now seeking orders consistent with Ms M’s report and was prepared to accept that he have a psychiatric assessment funded by Victoria Legal Aid.
The father adopted his affidavit as true and correct as his evidence-in-chief.

The Father Under Cross-Examination by Counsel for the Mother

The father indicated that the mother had been drinking whilst she was pregnant. He was asked if he was aware that X suffered from ODD and ADHD and separation anxiety and responded that he had not seen any evidence. He would like to look into it. He was not aware that he could dispute these diagnoses.
When asked if he was aware of extra-curricular assistance given to X he said he had never seen any. He said the GPs were not interested in how X was going at school. He was told about incidents involving X’s school but not told the details. He had conceded there was a very strong relationship between X and the first respondent. He had nonetheless asserted that there were a lot of weekends when X was palmed off to friends. He was in crèche when he was very young for up to 12 hours a day. (Some of these assertions were not in his affidavits.)
When asked if it was important there was consistency in X’s life he responded with questions. He asked if there had been any improvements at school. He said he did not know whether X had improved or not. He said he would not be surprised if X had improved since the grandfather died. He did not know if X has foetal alcohol syndrome but wanted to know.
The father said that the grandfather had put a contract on his life for four years. He contacted the police but no charges were made. The grandfather was too political and well-connected. He had conceded that the grandparents were always accommodating if he went to Queensland. He said the grandfather gave Ms A Finn illicit drugs.
The father said he used cannabis daily and conceded he had a considerable police history. When it was put to him that he had fled to Queensland after a complaint of abuse he said he remembered this. It was about B. He did not remember what the allegation was. He agreed he had an extensive criminal history going back to the 1900s but it was not almost every year.
The father conceded that there was a family violence report in 1996 from Ms R. He said no charges arose.
The father admitted that there was a history of drug and alcohol abuse when he was living with Ms A Finn. He still drinks but not daily, perhaps two to three times per week. He drinks mid-strength beer and might have between two and a dozen. He has never committed family violence in front of any of his children. He has not seen E for six years because that is the way E’s mother wants it. There were two round table agreements made which E’s mother broke. The matter did not come to court.
He has not seen X since April 2016. When it was put to him that he had only seen X 10 times he said it cost him $2500 each time. He did not see X for a period of four years because he was terribly depressed. When he was working he would go up for 10 days at a time, four times per year, to Queensland. He wants to be closer to X.
When cross-examined about his failure to attend because it was raining he said that with his issues three hours on the train would have been too much. He said when he sees X they click. He does not know why X does not want to see him but said X was told things. X is always comfortable with him.
The father said he had made a lot of bad decisions. He is now better and working on his problems. Ms A Finn is trying to clear her act up. The father said he had mental health issues and Ms A Finn was trying to resolve her problems. He got rid of Ms A Finn five weeks ago because she was back on drugs and not working. The father said words to the effect, “Marijuana is acceptable to me and for me.” He wants a chance to be in X’s life.
B has a criminal record which occurred after he left the father. The first respondent has sought to alienate X from him. “She is doing this for financial gain.” He said, “Why has she been doing this then”, when questioned further.
He blames Ms N for telling the first respondent things. Ms N made up allegations of family violence. Police have the records.
The father has not done all the drug screens requested. Some showed cannabis and one showed amphetamine but this was because of medicine. When he went to the doctor in March 2017 he wanted Valium and Seroquel. He denied being loud and abusive to the treating doctor and said the doctor was rude to him.
He used to deal drugs with Mr G (the maternal grandfather). He said that Mr G made him sell Mr G’s drugs to finance (omitted) political campaign.
The father has undertaken a course with the (omitted) in (omitted) and is starting a drug and alcohol course next week. He had done such courses several times before and did not find them helpful. He is better on cannabis. He has stuck to five milligrams of Valium per day for the last year and also takes Seroquel. He has more control of himself now than ever. He is putting money away. He has been renting a house for a couple of years now and is no risk to his son. He always takes his medication and is only going by his lawyer’s recommendations. He said X’s attitude was all because of what he has been told.

The Father Under Cross-Examination by Counsel for the Independent Children’s Lawyer

The father said his mother was prepared to come to court and she supported his case. He conceded a longstanding police history from 1994 to 2014. The last occasion was 7 November 2014 when all charges were dropped except breach of the Intervention Order for which he received a $750 fine. This was in relation to Ms N.
The cross-examination traversed the various LEAP records constituting ICL1. He said he is not now facing any other charges but there is an Intervention Order concerning Ms N until 2018. He conceded numerous complaints had been made by former partners of his including Ms R, Ms J, Ms B, Ms N, Ms A Finn and Ms N. He said they were all lying. “Of course they are.” He denied breaking Ms A Finn’s arm. He said it happened but he did not break her arm.
He did not recall pushing Ms A Finn into a brick wall in 2004 and said he could not recall punching her numerous times. He did not recall knocking out her front teeth. When it was put to him that on 29 November 2004 a warrant to arrest him was executed, he said this would not have happened if it had not been for Ms A Finn.
When it was put to him that he had punched Ms B in 2010 three times with a clenched fist he said he did not hit her. She was jealous because he had rejected her. He said after she hit him he left. He said, “I know what they’re like.”
The father was asked if he was prepared to accept supervision at a contact centre. He replied that he would do whatever it takes but did not believe supervision was necessary.
He was then cross-examined about the (omitted) park incident in April 2016. The grandmother was to supervise on that day. She was not there when he took X to the farm to use an air rifle. Mr G was there.
The father says he does not want the grandmother there and sees the need to prove this to the courts.
He was cross-examined about his relationship with Ms K which lasted for five and a half years. Her child, (omitted), is not the father’s child. When cross-examined about records dated 21 July 2013 he said he kicked her out several times. He waited for police to turn up. She then called police several times. He had made a lot of bad mistakes. If she had been injured he would have been charged. He asked, rhetorically (a number of his answers were rhetorical questions), “If I was so bad why did she come back?” He said the neighbours called the police. He did not accept that there was a pattern where he returned to get possessions and arguments occurred. It did not occur that he put an arm around her neck. He denied, in effect, all the assaults alleged by the various complainants against him.
When his court record from 1998 to 2014 was put to him that the majority of offences were for violence or dishonesty, with the majority being for violence, he took issue although it emerged that he thought theft was not an offence of dishonesty. He accepted that there were serious counts of assault and said that he was asking the court to believe that he had changed. He takes responsibility for himself. He said people had been paid to bash him and he stuck up for himself.
The father was cross-examined about his alcohol consumption. He said he drinks less than a slab of beer a week. He takes 5 milligrams of Valium per night and 100 milligrams of Seroquel. That is an antipsychotic. He also takes cannabis daily. He needs it. He uses a bong and consumes about three grams a week. He consumes every night but not every daytime. The doctor gave him Seroquel to help him sleep. Before that he took other drugs. He takes them with alcohol and he goes to sleep. He takes the same amount of medication every night and it puts him to sleep in five minutes. He has undertaken drug and alcohol counselling in the past and is now enrolled in PenDAP.
When taken to the DHHS report from 2016, he conceded that Y was removed at birth. There has been extensive departmental involvement over the years. DHHS paid for two of his visits to Queensland. He enrolled in PenDAP in 2007 because someone told him to do it. When asked why he had not undertaken alcohol counselling before 2017 he replied this was because his lawyer told him to enrol. He wants to make changes. He wants help with marijuana. It is not healthy. He does not want to keep smoking. Three grams a week is not overboard. He was told to go by his lawyer.
When taken to the report from Ms K, he conceded that the blackouts referred to in her report were due to alcohol. He has seen Ms K in June 2016 till June 2017 and has seen her since then. He has bulging discs. When it was put to him that he had difficulty controlling his temper he said all his blackouts were caused by alcohol. When it was put to him that he needs marijuana to be normal he replied that that was right. He is going to apply for medicinal marijuana in the near future. Marijuana is better than other medication.
When it was put to him that he had not complied with the Independent Children’s Lawyer’s request for drug screens he said he had done some. He is self-conscious and is unable to urinate.
The father sometimes buys marijuana. He does not grow it because you do not get the same potency (he has obviously clearly tried or is otherwise conversant with such practices). He buys from a dealer. He first said that he mows his lawns in exchange but then went on to say that $60 is two weeks’ worth of marijuana.
The father had been at the (omitted) Hospital on 3 June 2017 with a rib problem. He was put on heavy painkillers as a result of (hobby omitted) injuries and broken ribs. He took Endone for six weeks. When it was put to him that his drug screen showed amphetamines and not opiates he said he was not taking amphetamines. He was in hospital for four or five days and had lots of morphine because he was in agony. He had $970 in cash on him in hospital and had been paid the day before. He said he could produce the invoice and bank account to prove this (they were not subsequently produced). He only got one job done before his accident.
When cross-examined about records from the medical centre at (omitted) it was put to him he abused a Dr G because Dr G refused to give him scripts for medicines. The father said he might have said something rude. He was upset because Dr G would not look at his file.
The father said he consumes three grams per week and had told the psychologist this. He thinks of suicide every day. It would be a relief from pain. (The father’s evidence about these matters was clearly distressing to him and he was in tears.)
The father pays Ms G $85 per session and she is enormously helpful.
B is not living with him but was. His date of birth was (omitted) 2001. The father pleaded guilty to assault of B when he was two years old. He was, in fact, not guilty. He was initially subjected to a custodial sentence but appealed and the sentence was hardly suspended. He has never been in jail. He said the DHHS records were all inaccurate. He had a bad lawyer and it was bad timing.
The father was then cross-examined about the (omitted) park incident. He said this was not close time with X. It did not provide a chance to bond. It was not long since he had seen X. He was explaining to the grandmother that travel makes him anxious. He is not comfortable in a public area. He was not angry during the conversation. When it was put to him that he had raised his voice and clenched his fists, she said this was not right. He was not angry. There was no argument. He handed his lawyer’s card to the grandmother and she took it.
When asked why X did not wish to see him when interviewed by Ms M, he said this was so out of character it was amazing. X was being told things.
When asked if he accepted the diagnosis of foetal alcohol syndrome, ADD and ADHD, the father said he was not doubting these diagnoses but they had only been done recently.
The father said he had a good relationship with Y and saw him all the time. Mr G was jealous. Y stopped seeing him when the first respondent saw him. He did not know who is to blame. He had not done anything. Ms N had caused all this.
The father was cross-examined about Ms T. He was not in a relationship with her. She is the registered carer of B and they met at the Magistrate’s Court. He sees B regularly. B is disturbed and has issues. He sees him a couple of times per week.
His own mother runs a (business omitted) from home. She is 72 and lives in (omitted) also. Ms A Finn had been with him from April 2017 until five weeks ago. He does not now have a partner. Ms A Finn was okay when she saw Ms M but has made no attempt to see X. X always said, “I love you, dad.” Some meetings with X did not occur. Once it was raining. On other occasions the grandmother had taken off immediately if he was delayed. He saw Ms A Finn last night and days ago. He had told her she did not need to come to court. She could come to court but he would rather not have her here. He conceded that the (omitted) park visit in April had not gone well.
In re-examination the father said he got a lot out support services. He had no idea he had anxiety until he was told. He deals with anger so much better and handles things so much better now.

The Evidence from Ms T

Ms T has known the father since March 2017. They met at the Children’s Court. She had taken over care of B who had warrants out against him. She told him to surrender. He had been couch surfing from friend to friend before this. B has improved with the father’s assistance. He has only broken the law once while under her roof. He still has friends he should not have. She has become friendly with the father because of B. The father sees him two to three times per week, sometimes at her home.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms T said she felt the father should have an opportunity to form a relationship with X. She had never met X. She had volunteered to give evidence. The father had told her he had stuffed up in the past and lost his right to his children. She saw the way B takes on board the father’s advice. The offence for which B had been more recently convicted was shop lifting a (omitted) from (omitted) for which he received a good behaviour bond. She had met Ms A Finn but did not respect her as a mother. When they met Ms A Finn seemed fine. She had just come back from Queensland.

The Evidence of Ms E (the paternal grandmother)

Ms E adopted her affidavit as true and correct. Under cross-examination by counsel for the grandmother, she said she had met X once. She was aware he had some problems, a learning difficulty. He was born with foetal alcohol syndrome. She wanted to learn more about her grandson. She had not read the first respondent’s material but would like to get to know her grandson. The father has seen him for 10 days in 10 years and he went when he could go. She was aware of family violence committed against the mother.
When cross-examined about other family violence she replied that this is what the father was going through at the time. She was aware her son takes marijuana. She does not take it. She had not seen the father drunk. She said she knew her son.
Under cross-examination by counsel for the Independent Children’s Lawyer she confirmed that her son lives about 10 minutes from her. She sees him weekly. She gave details of her other children. She does not see Y because the DHHS said she should not see him. She is aware that the father does not see Y. They had all met X last year or the year before. It was not in her affidavit. She asked the first respondent if she had booked X into a school when she came down from Queensland, this was in January 2016. A number of the extended family had met X. The first respondent would not tell her where she lived. She did not wish to pressure Ms Finn. She thought they were going to keep in touch. She did not recall the father seeing X after that. She did not recall that the grandmother said that the father did not turn up but was threatening on the last occasion he did.
The father was concerned about not seeing Y any more. He was shattered not being there when his two sons met which was on the same day as they met Ms Finn. Ms Finn has a relationship with Y’s foster parents. The father phoned Y’s house several times. The father does not blame Ms Finn for Y stopping spending time with him. She had no permission to ring Ms Finn. DHHS gave her the address for Y and she went to see him which was wonderful. Then another person from the department said she had no right to go and if there was any more contact they would have her in court. She does not know her rights.
She signed an undertaking to supervise because the solicitor asked her to. She had never met Ms A Finn. Her own husband died 17 years ago and she has not re-partnered. She would like to get to know X. X was overjoyed to see his father.
She still works on Wednesday, Thursday and Friday and has four pre-school children in her care each day.

The Evidence of the First Respondent

The grandmother adopted her affidavits as true and correct.
Under cross-examination by counsel for the father she said that the father stayed with her and her husband in Queensland once for four to five days and seemed fine. On other visits he stayed in a hotel. She only knew he was in Queensland when he visited X for four to five days on each occasion. Either she or Mr G were there all the time.
She recalled a visit in November 2014 when the father attended with Ms N. The father had X on Saturday to Sunday but not overnight. She left decisions to her husband. She was concerned that X fired a firearm. She had other concerns which were not in her affidavit. She did not know about the firearm until X told her. The father said this was an air rifle.
The grandmother was cross-examined about a birthday party on X’s birthday in 2016. This was at (omitted) and X met the paternal relations. X was excited. He thought, however, that the birthday party would be typical with balloons and other such matters. In fact, he was not excited at meeting the paternal grandmother. She had told him he would meet the paternal grandmother and X went “okay”. She said he is always like that in everything.
X was not happy but was slumped in his seat and wanted to leave. He was excited to start off with but then very disappointed because he did not get what he expected. She accepted that X walked with the father to the pier. She was not able to say whether he enjoyed it because they were somewhat far away but she was watching. They had left when the meal was over and X said goodbye to the father.
The father had phoned for up to three times per week for a very short period. This upset X too much. Then he phoned about once a week until he stopped. She said there was no way there were weekly calls from 2014 to 2016. Not a chance. Phone calls were sporadic without any pattern. She has spoken to the father about helping with X’s schoolwork. She had tried several other strategies. The one with the father did not work so she stopped it.
When cross-examined about the (omitted) park meeting on 16 April 2016 she said X was excited to go. He loves the (omitted) park and was riding his scooter. It is a large (omitted) park. X said hello to his father and talked to him for three to five minutes and then went (hobby omitted). The (omitted) park has a length of approximately 50 metres. She sat down on a seat to watch him.
The father said he did not want to sit and watch his son. He became angry. X moved around near them and was going round and round. The father was loud. People were looking at them. She did not agree that X was not aware of this. She went to Victoria Legal Aid (the affidavit material asserts that the mother refused the father’s request for overnight time and this is what made him angry).
Mr Skinner has said at the (omitted) park that he wanted a court event. She was partly concerned about paternity but also what might happen if a case occurred. The grandmother lost her train of thought at this point.
Telephone contact stopped about that time. X told the grandmother that the father has said he would move closer to him. In her mind she thought maybe the father knew where they were. This was a safety risk. The main thing was that he was using X to his own advantage because she had cut off contact.
When questioned as to whether X wanted to see the father she said the only thing X has said is more relief he does not have to deal with it, not to have to travel to see the father. X is relieved not to have anything to do with his father. X has said, “I do not want anything to do with Mr Skinner”, several times, usually when court events are coming up most of the time. She responds, “If that is your choice you are entitled to have your opinion”. She tries to support X in his choices.
The grandmother said when X was younger she hid everything about the father from him. X is now older and she talks differently now. She had never told X that his father did not love him. She said the father loves him in his own way. She said that X understands people love him when he gets what he wants. Contrary to paragraph 32 of the family report, she had not told X about the court proceedings and affidavits. X asks about court and she says she cannot answer. She tells him she will not break the law for him.
X is aware he does not live with his parents because they are drug users. He goes to an organisation that helps children with this difficulty. He has been with that organisation most of the time they have been in Melbourne and started three to six months after they came to Melbourne. X has activities with them for one full day each school holidays. They do fun stuff. The last time was (omitted). There is another girl in his class with the same problem and he talks about her a lot. X says his parents use drugs. The grandmother would be honest and say so. There are no complaints by X that his father is violent.
X is now less physically affectionate as he gets older. She could not say when this had changed. On one occasion she had told X to give the father a hug and he said he was not comfortable. He said she had told him he did not have to. X tries so hard to be a good boy. He hugs her and her daughter and also the rest of her family.

The Grandmother Under Cross-Examination by Counsel for the Independent Children’s Lawyer

The grandmother said that when Mr G died in 2015 she was alone with X. X wanted to meet his siblings. Her daughter also asked her to help financially. This was (omitted), who is 21 years old. Details of the other siblings were provided.
She lives with (omitted) who is in a relationship with a woman who has a child of her own. The four have moved together since they first came to Melbourne.
She knew that X’s parents had a violent relationship. She had seen them and been in their house. X asked why his parents were not together. Adult stuff is for adults and she protects X so he can be a kid. She has seen the parents smoking marijuana when they visited in Victoria on two occasions. The grandmother said, “Violence is not on in my book”, the way the father behaved when he was in his house. He was swearing, punching and throwing things.
She had no interest in the father’s life if it did not affect X. She had heard the father say he had turned his life around before. He said this when he came to their house in Queensland. She said he was lying and trying to fool the Court.
When cross-examined about the meal at (omitted), she conceded this took place. X was not as happy as was asserted. She agreed it was possible she had refused to give the paternal grandmother her phone number. This was because of threats to take X. The father had come to Queensland and said he wanted X in his care.

She had not played in any role in Y stopping seeing his father. She speaks to his foster mother. The two boys do not want to see each other as they irritate each other. She had lost contact with Y’s foster mother for a while because each of them has successively lost their telephones. Normally she speaks to Y’s mother once a fortnight or a month. She has A on Facebook but not often.
The DHHS facilitates sibling get togethers and these have not stopped. The (omitted)’s organisation (the organisation for children with drug affected parents already referred to) was recommended by a psychologist who came to the school. The school asked for a care plan through the GP. Ms P sees X now. He has been in care from very early on for his conditions. Ms P was recommended by the paediatrician to help X with skills. Ms P commenced seeing X in March 2017. X is not happy to continue with her but his behaviour at school is currently okay. He always passes at school.
X is very nonchalant. He does not care. This is part of his foetal alcohol disorder. He is a very social boy but he is not good at being kind to people. He does not keep friends. They keep (hobby omitted) up because X likes to do it. She has found a group for boys who get together once per week and this does help. She has not spoken to X’s mother for so long she has no idea what she is doing. X is active and would not sit in a room.
The father had told her in February 2016 not to have contact with Ms B. She did not know why. The father failed to turn up for meetings with X. X gets over everything in five minutes.
She was further cross-examined about the incident at the (omitted) park. The father got bored after about five minutes. He then said he wanted X the whole weekend at his mother’s house. She said no. His voice got louder. He said, “You have no fucking right to keep my son from me”. She had told the father he could not have X each weekend as she had to arrange times with the siblings. He said he did not care about the siblings. X was riding nearby at the time. The father called him over to give him money and said he was leaving. She had tried to calm the father down and he said to her, “You had fucking better”. She said the father was using X as a pawn to control the situation. The father has sworn at her in April 2016.
There had no time between his mother and X for about 16 months. If she rang she would ask her if she was still in Victoria. If the mother was okay with the grandmother being present she would probably allow some time. If she behaved inappropriately the grandmother would leave.
When she went to see Ms M she told X that she would decide if he spent time with the father. She tells X that his father loves him in his own way and X rolls his eyes and gives up. She is enrolled at Berry Street and is aware time is available in December. She said if X had to see his father she would do her level best to get him there. She said it will upset X so much and upset his schooling and home life. It will upset her because it upsets him.

The Evidence of Ms M

Ms M adopted her report as exhibit M1.

Ms M Under Cross-Examination by Counsel for the Independent Children’s Lawyer

Ms M gave details of where the interviews took place. She was quite clear that X did not want to see his parents on the day. He did, however, indicate that he would see his father provided his grandmother was there or it was at a contact centre. X was curious about his father. He was concerned he gets bad like his father and wants his father to be normal.
Ms M had tried as hard as she had ever tried to get him to see his father, but X was still not 100 per cent negative about seeing his father. Children who are totally decided against seeing a parent present differently to how X had.
She had tried to phone the father once or twice after interviews. She mentioned Ms B in her report who is a recent partner of the father’s. She was aware the father had a terrible history of family violence with the mother and previous partner. She had not seen criminal records. She has not contacted Ms P as there was no point. Such inquiries are always met by privacy concerns. She felt also she had enough understanding of X in any event.
X is vulnerable because of his needs. He was secure on the day with his grandmother there. She was not sure X did not want to meet the father, but certainly did not want to see him on that day. If the father did not turn up to a contact centre X would be disappointed but will realise that the father is unreliable. The father had said he missed his son.
Ms A Finn had said that she might come to court but did not say she had lied (contrary to the father’s assertion at paragraph 20 of the report).

Ms M Under Cross-Examination by the Father

Ms M confirmed that X has a bad picture in his head of his father. If the father improves X may realise this. If the father loves him it may improve X’s self-esteem. When asked whether X having lost his father figure there might be risks in his future relationships, Ms M said the mother is not in his life and also his father. Time at a contact centre would be good. Noteworthily she said that she was not the one to say that there should be no relationship with the father. This was up to the Court. X has an idea of seeing his father and if he does not do so he will grow up thinking he is not loved by his father and mother. This is not going to be good for X in the future.

Ms M Under Cross-Examination by Counsel for the Independent Children’s Lawyer

Ms M agreed that family violence was relevant. She agreed that the records go back to the 1900s. She was not aware that the father was convicted of violence on B and would be concerned about this. She did put weight on the section 11F report (which noted that X is happy with both parents) but it was also the way the child presented.
She said if the grandmother was present or time took place at a contact centre X had a definite interest in seeing his father. X did definitely not refuse totally to see his father. She had thought that after the (omitted) park incident, X would not want to see his father at all but this was not the case at the section 11F report or with her. A contact centre would not force the child to see the father but would try their best. She knew they had both applied for Berry Street by the time they saw her. The father’s drug use is concerning but a contact centre is safe. She would not talk to the contact centre. Some parents are taking drugs but if they are affected by drugs they do not see the child.
These parents are unusual. They just seem to move on to the next child. The father has not seen E for 10 years. He saw Y until about a year ago. The grandmother told her that she had come to Victoria to enable a relationship between the father and the son.
When asked if the father should be given an opportunity to see X she replied it was not the father who should be given an opportunity. She said it was the child who should get the opportunity. If the father commits suicide and X does not have the opportunity to see the father this would be bad for X. She had expected the father to be angry when he did not see X but he was not. She had to go by how he presented to her. When pressed she said, “A contact centre would be very careful, believe me”. She did not believe the grandmother’s denials about not denigrating the father.
Noteworthily, in response to a question from the Court, Ms M confirmed that it would be very difficult for the father ever to accept that the grandmother was or should be the primary attachment for X. He will always want to be the father.

Observations About the Credit of the Witnesses

The father, I regret to say, was not an impressive witness. I have already commented on his tendency to answer questions with rhetorical questions of his own. His hostility to the grandmother was very marked and obvious from an early stage in his evidence. He was frequently combative and argumentative in his answers but unresponsive to the question particularly put. While he was at times labile, the predominant impression I got was of anger.
When cross-examined about the numerous records of family violence, his answers were effectively that it was always someone else’s fault. He was dismissive of his criminal record and appeared to make much out of the fact that he had not actually been to jail even though he had received at least one custodial sentence. His evidence must be approached with considerable caution.
Ms T was a thoroughly decent and honest woman who likes the father and has formed a good view of the way he influences B. She was clearly truthful.
The paternal grandmother impressed me as being an honest enough witness. She was, however, like many a mother before her, entirely partisan. She grossly underplayed the father’s violence and criminal record.
The grandmother was a very impressive witness. She had an excellent memory. Her answers were direct and responsive and clearly truthful. It should be noted that she did not deny or qualify her dislike of the father, and it is clear that in discussions with X she would, at the very least, do nothing to promote the father as a desirable influence. She simply does not see him in this light.
Despite the strong cross-examination of her, Ms M stuck to her position which was that the father should be given a chance to see X, notwithstanding the father’s limitations. Ms M’s evidence was clearly truthful, although this does not mean that I am required to accept her recommendations. It should be noted that Ms M did not seem to me fully perhaps to have been made aware of the extent of the father’s criminal record and family violence.

Findings on the Facts

X was born during a relationship between his parents characterised by violence and drug and alcohol abuse. The quality of that relationship is well illustrated by the fact that the DHHS took his elder sibling, Y, away at birth and he has been raised thereafter by foster parents. The position was so bad that whether advised by the department to do so or otherwise, the mother decamped to Queensland to live with the grandmother and her husband, Mr G. The mother’s condition was such that she decamped also, leaving X with the grandmother and grandfather. It is quite clear that the grandmother has been effectively X’s mother ever since.
While the grandmother clearly deferred to her husband in some aspects of X’s upbringing, it is perfectly clear, and no one seriously suggests the contrary, that she has been his primary carer and mother figure ever since he can remember. Indeed, it is quite clear that she has adapted her lifestyle effectively primarily to care for X, although obviously she keeps up other relationships with her own family.
The father in truth has spent little time with X over the years. He had at least one DHHS funded visit to Queensland and others that he self‑funded. These were not fleeting or momentary. They lasted some four to five days. Nonetheless, there were periods of time when the father did not go at all, and these related quite clearly to his depression and other significant mental health and drug difficulties at the time. As he said himself, he has made a lot of mistakes.
The father, most unfortunately for him, has had a very troubled history. He has a criminal record of unenviable scope and duration. His offences in large part are offences of violence. While he disputed the various assertions made by former partners who had complained about him in or shortly after the end of their relationships, having seen him give his evidence in court over a reasonable period of time I have no doubt that these complaints were, at least in the enormous majority, well made.
I agree that there is a pattern of assaults following closely upon the end of relationships. He himself told Ms K that he had in the past been prone to alcoholic blackouts following which he realised he had been in some form of fight or altercation. While it is more probable than otherwise that this was revealed at intake interview in early 2016, it is clear that this sort of revelation sits all too comfortably with the previous assertions of violence made by former partners.
The contemporaneous complaint records made of the breaking of the mother’s arm in 2003 strongly suggest that the father did indeed break her arm, although in the ultimate nothing turns on this. It is clear that he has assaulted Ms A Finn on a number of occasions.
The father has significant mental health difficulties. He needs marijuana to feel normal. He is clearly a heavy user and it is equally clear that he will continue to be a heavy user indefinitely into the future despite him expressing some passing desire to cease in the witness box.
The father likewise takes other significant drugs such as Valium and Seroquel together with significant alcohol use. It is up to a dozen mid‑strength cans per day. He consumes a slab a week.
The fact that the father is so unwell that he thinks about suicide every day, an assertion I accept, is not a matter for criticism but rather for sympathy. Nonetheless, it speaks to a state of mental health that can only be a source of ongoing concern.
Most regrettably, X’s mother plays no meaningful part in X’s life. One can only imagine what her history has been, bearing in mind the total absence of any relationship on her part with any of her six children. It seems more probable than otherwise that she will remain, at best, a fleeting and probably disturbing influence.
X has met his paternal family only once at (omitted) in early 2016. While I fully accept that the paternal grandmother is not a person aware of her legal rights, the fact that she has taken no initiative to seek time with X thereafter is concerning. In any event, and on any view of the matter, X has no meaningful relationship with any of the father’s family.
In the end it should be noted that the father blames everyone else for his faults. His florid assertions of criminal conduct on the part of the maternal grandfather, Mr G, are not in any way made out. His assertion that he only dealt drugs because the grandfather forced him to is scarcely one to which I can give any weight whatever as a self‑exculpation.
The father has belatedly taken a number of steps allegedly to address his problems. These rather reek of steps taken too late and too little. He has only sought to enrol with drug and alcohol counselling because his lawyer told him to. He does not seem, despite previous anger management courses, to have obtained any real assistance in this regard at all.
I have no doubt that the father swore at the grandmother at the (omitted) park in April 2016 in exactly the terms to which she deposed. Likewise, I have no doubt that he sent her the insulting text messages recorded in her affidavit material which led to the cessation of telephone time. I do not think that if time with the father was to commence the father would be able to conceal his dislike of the grandmother.
Likewise, the grandmother could not conceal, and in a sense to her credit did not attempt to do so, her distaste for the father. According to her she has heard it all before and does not believe that the father will change. I am quite satisfied that she cares for X out of love and does not do so for financial gain. Equally, however, I have no doubt that her attitude towards the father has been communicated to X.
With a child of X’s age and difficulties it is readily understandable that he asks questions about court proceedings and the like. While the grandmother’s answers that she refuses to discuss the matter are ones I accept as far as they go, it is obvious he knows all too much about the proceedings and this can only have come from her. She will not foment a good relationship with the father under any set of circumstances.
One area of evidence that occupied a substantial amount of time, naturally enough, was Ms M’s recommendation that supervised time commence. I should make it clear that I accept Ms M’s observation that X did not present to her as one of those children who have formed a definitive and conclusive view that they do not wish to see a parent. This was so even though he did not wish to see his father (or his mother) on the day of interview. I accept that X may have some residual curiosity about his father. This is consistent with his presentation at the section 11F interview.
Nonetheless, I do not accept the father’s evidence that in some almost magical way he and X click immediately every time they see one another. X is a child with a number of difficulties and the grandmother’s evidence about X’s more muted response when she has observed him with his father is one that I accept.
Having made these findings, I turn now to the statutory pathway.
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Equal Shared Parental Responsibility

This matter may be dealt with shortly. X is 11 and the grandmother has had sole parental responsibility for him effectively all his life. Ms M, whose report is otherwise relied upon by the father, opposes equal shared parental responsibility for the reasons already given. The presumption in this case is plainly rebutted by the extensive history of family violence. The (omitted) park incident alone would represent family violence within the extended definition in section 4AB of the Family Law Act1975 and I do not accept the submission of counsel for the father which sought to suggest that X was not exposed to it. The father was, on that occasion, extremely angry and swearing loudly at the grandmother over what I fear would have been a relatively protracted period of time. X would undoubtedly have been aware of it.
The presumption clearly should not be applied. The previous orders have indeed given sole parental responsibility to the grandmother. This conclusion is only buttressed by the father’s continuing use of drugs and the difficulties he has in communicating in a civil way with the grandmother.

Whether X Should See His Father at a Contact Centre Initially For 12 Months

This question is best addressed by looking at both the primary considerations and secondary considerations set out in section 60CC. In saying this, I acknowledge the force of the submission of counsel for the father that the Court should pay proper concern to the overarching aims and objects of the Act which include the right of the child to have a meaningful relationship with each parent.

The Primary Considerations

This is a case in which it is by no means agreed that it is beneficial to X to have a meaningful relationship with his father. The grandmother, strongly supported as I have said by the Independent Children’s Lawyer, submits not. The father, in effect, pleads for a second chance. He says that he has done a lot of bad things in the past but has changed. He seeks that the relationship subsist.
It is important to note the long and, in truth, quite appalling record that the father has. It is also important to note that his incapacity to control himself when he does not get what he wants is not something that has gone away. This was evident most recently at the (omitted) park incident and in the email texts sent to the grandmother thereafter.
I have seen the father give evidence. He is an angry man. He has little self-control. His mental health is fragile, emphasising again that this is a matter for sympathy rather than obloquy. Nonetheless, it is a matter of significant concern in contemplating the furtherance of the relationship with X.

The Additional Considerations

Section 60CC(3)(a)

X has not expressed any views save that his grandmother is the closest person on Earth for him (paragraph 48). He is afraid that his father might seek to take him away from her. These views must be approached with some caution in the light of the grandmother’s obvious antipathy to the father and X’s likely awareness of it. He is only 11 in any event and has the various difficulties already referred to which means that any views he might express would need to be approached with caution

Section 60CC(3)(b)

X regards the grandmother as his mother. He has a well‑established and secure relationship with her. She is the only person he has known as a parental figure all his life. This relationship is marked by the pronounced attempts made by the grandmother, for which she receives no credit whatever from the father, to produce a routine that will cope with X’s not inconsiderable difficulties arising from his various medical conditions.
Although it is not touched on in any detail, it would appear that X has a good ongoing relationship with members of the maternal family, one of whom lives in the same household. X used to have a relationship with Y but it appears that this has ceased because the two siblings irritate one another.
Y’s relationship with his father is difficult to evaluate. He was perfectly content to see him at the 11F interview in 2016. Criticisms advanced to the effect that Mr M, the counsellor, had not full recourse to the subpoenaed materials are, in my view, misconceived. Mr M was reporting what he actually saw.
Nonetheless, X was adamant he did not wish to see his father with Ms M. She tried as hard as she has ever tried to get him to do so and was unable to do so. The highest that can be said is that X has a residual curiosity about his father which is inconsistent with the behaviour of children who have achieved a total alienation from a parent. This outcome is scarcely surprising. The father spent four to five days on a number of occasions in Queensland seeing X when he was much younger. He has not seen his father since April 2016 and not spoken to him since then otherwise, save at the 11F interview. The family gathering in 2016 appears to have been the first time he saw him for some time.
The fact that X’s relationship with his father must, on any view of the matter, be extremely tenuous is scarcely surprising. While he may be pleased to see his father on occasion, and this is consistent with the father’s suggestion that they click, the suggestion that this gives rise to any kind of developed and secure relationship is fanciful..

Section 60CC(3)(c)

Neither of X’s mother or father have meaningfully taken the opportunity to participate in making decisions about him. Relevantly for these purposes, the father’s attempts to spend time with and communicate with X have been fitful and marked by significant time lapses.

Section 60CC(3)(ca)

Both of X’s parents have conspicuously failed in their obligations to maintain the child.

Section 60CC(3)(d)

This, of course, is an important subsection in the context of this case. There is no suggestion that X should be taken from his grandmother’s primary residence at present. Any attempt to do so would be traumatic for him. Nonetheless, the question is whether he should start regularly to see his father. Indeed, this is the crux of the dispute between the parties.
The father’s position is undoubtedly sincerely held. I have no doubt that as things presently stand he wishes to see X on an ongoing basis. Indeed, as Ms M confirmed, he sees himself ultimately first and foremost as the father and will never be able to accept the grandmother’s role as the primary carer. This is important. What he is seeking is that there be supervised time for a year.
Should it occur and go well, it requires no foresight to see that there will be an application sooner or later for change of residence. I would not credit the father with sufficient insight to understand the grandmother’s primary carer role and its vital significance. Ms M is clear that he will never achieve this.
Accordingly, Ms M’s view that there were advantages to a spend time regime with the father (albeit supervised) need to be approached in their totality. I accept that it is possible that should X not see his father, as the grandmother and Independent Children’s Lawyer desire, there is a very real chance he will grow up feeling diminished by his perception that his father and mother do not love him. He may face all the difficulties that adhere to children with this deficiency so often referred to in the social science literature referred to in this court.
In my view, however, there are further considerations which bear upon this aspect of the matter. The father’s history in terms of spending time with X is grossly inadequate. He missed several occasions in March 2016 for reasons that are simply not acceptable. It may well be that the father finds travel on public transport difficult. This may have contributed to these failures. His failure to attend because of rain is incomprehensible. His behaviour when he did attend at the (omitted) park in April 2016 was deplorable. What is important to note is not only the father’s disgraceful behaviour, but his insistence upon immediate overnight time, something utterly unsupported on any reasonable view of the overall circumstances obtaining at that time.
It should also be noted that the Berry Street centre enrolled in is a long way from where the father lives. He would have to confront public transport regularly to go there. In my view, it is more probable than otherwise that he will not in fact attend as he says. In truth, he has made very little advances in self-awareness and in treatment of his various difficulties. As I find, he will not even seek treatment for his chronic marijuana usage and will continue to take the cocktail of drugs and alcohol that he presently consumes.
I accept that a contact centre would intervene immediately were the father to misconduct himself in any way, but with the father there is a real risk that if the contact centre experience is in some way not proceeding as he wishes, whether X is in his immediate presence or not, ill temper of the sort previously undoubtedly occurring will repeat. I should note in passing that there is no doubt in my mind that the father quite unreasonably abused and misbehaved himself at the (omitted) Medical Centre as the records record.

Section 60CC(3)(e)

There may be significant practical expense and difficulty with supervised time. The father’s travel costs to the centre will perhaps not be insignificant given his overall financial situation and the travel itself presents a difficulty for him.

Section 60CC(3)(f)

There is no doubt that the grandmother has a full and well developed capacity to provide for X’s needs. The father’s capacity to do so is untested. He has simply not spent enough time with him for the court to know. Nonetheless, while no definitive answer can be given, the father’s startling lack of insight generally, together with the deficiencies already referred to, leave this as, at best, a very open issue.

Section 60CC(3)(g)

The child, of course, is only 11. X is apparently passing at school but he has a number of considerable difficulties. These difficulties mean that he finds it difficult to be kind to people and does not keep friends. This is so even though he is a very social boy. He is plainly a child who needs careful attention, which is what the grandmother gives. She sets boundaries and is keenly conscious of his difficulties in doing so.
The father, by way of contrast, scarcely seemed fully to accept X’s diagnosis. Because he has been so little involved in X’s life he has not understood the various medical conditions that X has in any kind of significant way. Indeed, at some points he scarcely seemed to accept them. His lifestyle remains one that is at best slowly starting to change. He appears to have started a new business. It is even possible that he deals in drugs given the cash on him when he went to hospital. More importantly, he has not got to grips in any significant way with his various drug and alcohol dependencies.
He has not, in my view, advanced to a point where one could say with any confidence that he is capable of conducting himself without anger if he does not get what he wants in the terms that he himself desires it. His lifestyle over the years has been characterised by numerous disastrous relationships which have very frequently ended in family violence committed by him upon the women concerned. To his great credit, he has been playing a positive role in B’s life, and I pay proper regard to the fact that he has advanced to the point where he is able to do so. He has also been living in the same home for several years, so these are also points in his favour. They do not, however, in any way, in my view, balance out the other negative factors.

Section 60CC(3)(h)

This is not relevant.

Subsection 60CC(3)(j)

The family violence that runs so disturbingly through this case cannot be ignored. It is less directly relevant insofar as X is not in the care of either of his parents but of the grandmother. Nonetheless, the last time that the father spent any meaningful time in the presence of the grandmother he became extremely angry and threatened her (“you had better”). His denigration and abuse of the grandmother on that occasion can certainly not be ruled out in the event of any contact between him and the grandmother in the future. It should be noted again that the end point the father seeks will lead to direct interaction with the grandmother even though it will not occur for at least another year while supervision takes place.

Section CC(3)(k)

Although there appear to have been a plethora of family violence order proceedings in the past, no relevant such order is extant.

Section CC(3)(l)

Plainly if the father’s application is to succeed then orders would have to be interim orders. For the reasons I give in this judgment it is plainly better there be final orders.

Section CC(3)(n)

At the risk of repetition, I point out that Ms M’s evidence, which is really the touchstone of the father’s case, rises no further than this. Children who are utterly alienated from a parent say so and present in a particular fashion. X did not present in that fashion to her. He had a residual curiosity about his father even though he made it clear to Ms M that he did not want to see her despite her very, very best efforts. That is, in my view, not enough.
Given the distress this will cause the father, it is a matter of regret to me to have to find, as I do, that X’s best interests will be met by making the orders sought by the Independent Children’s Lawyer and grandmother. The father has not done enough. It is, as counsel submitted, too little too late. He is still, despite his best endeavours, a person readily prone to anger. He has no insight about his past conduct and blames everyone else for anything that has gone wrong. Crucially, he will never accept the grandmother as the primary carer. This can only lead to further disputation in the future were I to make the orders that he seeks.
Without reiterating each and every matter, it is plain that orders should be made excluding the father save to the extent of presents, cards and the like.

Conclusion

I have said already that this is a very sad case. This will be a devastating judgment for the father to read. I know he desperately wishes to see his son. As counsel for the Independent Children’s Lawyer submitted, the path is clear before him. If he continues to adjust his behaviour and address his issues and to send cards, letters and presents to X, X will know his father loves him. As he gets older, the curiosity Ms M observed may then move to a desire on his part at an appropriate age to see his father. That is the outcome in which X’s interests would be best served, providing only the father can meet the milestones and behave in the way that I have indicated. It is to be hoped that he is able to do so.

I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 3 November 2017

[2017] FCCA 2590

3 November 2017

Key Legal Topics

Areas of Law

Family Law