Slynt v Slynt

[2017] FamCA 812

FAMILY COURT OF AUSTRALIA

SLYNT & SLYNT  [2017] FamCA 812

FAMILY LAW – CHILDREN – With whom a child spends time – Family violence – Where the child has no meaningful relationship with the father – Whether the child would benefit from an attempt to manufacture a relationship with the father – Where the risk of harm the father poses to the mother and child by subjection or exposure to family violence is high enough to justify the preclusion of any interaction between them – Where the father’s evidence betrayed the absence of any real contrition and the failure to comprehend the scale of his abhorrent behaviour – Concluded the child’s best interests demand peace and tranquillity in the mother’s house – Ordered the child lives with the mother and spends no time with the father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 114AB
Mental Health (Forensic Provisions) Act 1990 (NSW)

A & A (1998) 22 Fam LR 756
Amador v Amador (2009) 43 Fam LR 268
H & K [2001] FamCA 687
H & R [2006] FamCA 878
Hepburn & Noble (2010) FLC 93-348
Khalil & Tahir-Ahmani (2012) FLC 93-506
Marriage of Blanch (1998) 24 Fam LR 325
Marriage of JG & BG (1994) 18 Fam LR 255
Marriage of Sedgley (1995) 19 Fam LR 363
Re Andrew (1996) 20 Fam LR 538
V & V [2001] FamCA 78

APPLICANT: Ms Slynt

RESPONDENT: Mr Slynt

INDEPENDENT CHILDREN’S LAWYER: Ms Lovell-Jones, Legal Aid NSW, Newcastle

FILE NUMBER: NCC 1178 of 2016

DATE DELIVERED: 4 September 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 14 & 15 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Hannaway, Hannaway Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Russo, Dean Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Betts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lovell-Jones, Legal Aid NSW, Newcastle

Orders

1. The mother shall have sole parental responsibility for the child B, born … 2014 (“the child”).

2. The child shall live with the mother.

3. Pursuant to s 68B of the Family Law Act, the father is restrained from:

   (a)Approaching or remaining in the physical presence of the child or the mother;

   (b)Communicating with the child or the mother by any means; and

   (c)Entering upon or approaching within 500 metres of:

   (i)The mother’s residence;

   (ii)The mother’s place of employment; or

   (iii)The child’s school.

4. Leave is granted to the mother to provide a copy of these orders, together with the reasons published for them, to:

   (a)The Commissioner of NSW Police; and

   (b)The Secretary of the NSW Department of Family and Community Services.

5. Leave is granted to the mother to provide a copy of these orders to the principal of the child’s day care centre or school.

6. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

7. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

8. Costs are reserved for 28 days.

9. Any and all other outstanding applications are dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1178 of 2016

Ms Slynt

Applicant

And

Mr Slynt

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Surely it is now prosaic to say so, but domestic violence is a pernicious blight on the families it afflicts, which this case served to vividly remind. The father’s despicable treatment of the mother, sometimes in the child’s presence, means there is no tenable option but to formalise his elimination from their lives. The risk of their injury or death is otherwise too high.

2. Such an outcome reflected the mutual proposals of the mother and Independent Children’s Lawyer, premised on the advice of the Family Consultant that there was:

   …a very high level of risk posed by the father to the mother and child. The reports made by the mother with regard to the father choking her and repeatedly threatening to kill her and the child warrant a “red flag” with regard to future serious abuse and fatality.

   (emphasis added)

3. Until final submissions, the father sought orders for him to share the child’s parental responsibility with the mother and for the child to spend time with him, following a period of their structured re-introduction, but that proposal merely demonstrated his complete lack of insight, which compounded the risk of harm he posed to the mother and child.

Short history

1. The parties cohabited between September 2013 and March 2015. Their only child was born in 2014 and was aged nearly three years at the time of trial in August 2017.

2. The parties lived upon a property in rural NSW but, when the mother and child vacated the property, they moved to live near the maternal grandparents in a NSW coastal township. The parties’ households are now separated by a drive of at least four hours duration.

3. Aside from the father’s unwelcome visits to the mother’s home on two separate occasions in the first few months after their separation, the child has not seen or spoken with the father since the mother moved away with him.

4. Notwithstanding his absence from the child’s life, the father did not commence these proceedings to repair the situation. Instead, the mother commenced the proceedings in February 2016, in the Local Court of NSW, though the proceedings were later transferred to this Court for determination.

5. No interim parenting orders were made during the course of the litigation. The proceedings reached the trial management hearing in December 2016, the Family Report was prepared and released in March 2017, and the trial ensued in August 2017.

Proposals

1. The mother pressed for the orders set out within her Amended Initiating Application filed on 12 April 2016. She simply sought her sole parental responsibility for the child, for the child to live with her, and an embargo upon any interaction between the child and the father.

2. The father’s position changed quite significantly during the course of the trial, though he consistently maintained the child should live with the mother. He originally sought to share the parental responsibility for the child with the mother, but he abandoned that proposal and accepted the mother should have exclusive parental responsibility for the child.[1] He also abandoned his former proposal for the child to eventually spend as much unsupervised time with him as the large distance between the parties’ homes would allow, following their re-introduction under supervised conditions at a contact centre. Rather, he finally acknowledged the child should only visit him four times each year at a contact centre, though he apparently believed that arrangement should be reviewed when the child attains five years of age,[2] which is only about two years hence.[3]

   [1] Exhibit F2, Order 1

   [2] Exhibit F2, Orders 3-5

   [3] Exhibit F2, Notation A

3. The Independent Children’s Lawyer supported the mother, which attitude was fairly foreshadowed prior to the commencement of the trial, and the minute of orders he proposed was tendered after the evidence closed.[4] The Independent Children’s Lawyer sought extra injunctions against the father to supplement the provisions of an existing family violence order.

   [4] Exhibit ICL1

Evidence

1. The mother relied upon only her affidavit filed on 24 June 2017.

2. The father relied only upon his affidavit filed on 31 July 2017 and no issue was taken with its lateness.[5] The father did not avail himself of the opportunity afforded him to adduce evidence from the paternal grandmother or his treating psychiatrist,[6] about which failure more is said below.

   [5] Order 5 made on 3 April 2017

   [6] Order 7 made on 3 April 2017

3. The parties and Independent Children’s Lawyer also relied upon the Family Report, dated 15 March 2017, which annexed an earlier assessment from 16 August 2016, upon which the Family Consultant was cross-examined.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. A presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The child was barely six months old when the parties separated in March 2015 and they have not seen or interacted with one another since then, save for two brief encounters at the mother’s home in April and June 2015. Due to the father’s absence from most of the child’s young life, they have no relationship and are virtual strangers. Their biological connection is their only nexus.

2. Section 60CC(2)(a) of the Act requires the Court to consider the benefit the child would derive from having a meaningful relationship with each parent but, given there is no current meaningful relationship between the child and the father, the question transforms to whether the child would benefit from any attempt to now manufacture a meaningful relationship with him. The answer to that question must be negative, essentially for two reasons.

3. First, without intending any disrespect, the father has little to offer the child besides identification as his biological father. True enough, the Act embodies the principle that a child’s best interests are generally advanced by both parents being meaningfully involved in his or her life (ss 60B(1)(a), 60B(2)(a), 60B(2)(b)), but not at any cost (ss 60B(1)(b)). When the father was asked during cross-examination what he could offer the child, his considered response was confined to his ability to teach the child to ride a horse and, in the future, also a small motorcycle. He seemingly lacks the sophistication to understand the important wider implications of the parental role: to nurture children; to develop in them virtues like self-respect, respect for others, trust, and morality; and to model socially-responsible behaviour.

4. Second, even if the father does offer value to the child, there is an overarching need to protect him from the physical and psychological harm he is liable to suffer in the father’s care, which conveniently leads to discussion of the second primary consideration prescribed by the Act, because it takes precedence over the objective of the father’s beneficial and meaningful engagement in the child’s life (s 60CC(2A)).

Section 60CC(2)(b)

1. The mother and Independent Children’s Lawyer both contended the mother and the child require strict protection from harm they are liable to suffer through their subjection or exposure to family violence or abuse by the father, which is the pre-eminent consideration when determining how to promote the child’s best interests in this case (s 60CC(2)(b)), but also an important coincidental consideration in ensuring the mother’s safety (s 60CG(1)). It was submitted the risk posed by the father to the safety of the mother and child was unacceptably high and could not be satisfactorily contained, which submission was amply vindicated by the evidence.

2. Not long after the parties first met, the mother learned the father’s nickname is “Agro”, which name presumably derives from his notorious propensity for aggression rather than any interest he has in agronomy. Knowing as much, the mother could have exercised much more caution about her entry into a committed relationship with him, but no doubt things are clearer in hindsight.

3. The father informed the mother at the beginning of their relationship that he suffered from depression and she was aware he drank alcohol heavily. From the very outset, he often treated her aggressively and disrespectfully. The mother gave clear and concise evidence about the father’s past aberrant behaviour, including her physical abuse by him and his threats to either harm or kill her, the child, and himself.

4. In his affidavit, the father brazenly denied he committed “any physical violence or emotional abuse” upon the mother,[7] which evidence he revealed to be false within moments of the commencement of his cross-examination. Among many other concessions, he made admissions to the following effect:

   I probably was a scary fellow.

   I probably wasn’t real good to live with.

   A lot of it [ie. the mother’s version of violence] is true.

   95 per cent of it [ie. the mother’s version of violence] is true.

   Back then I posed a really serious risk to [the child].

   I told [the mother] to get the hell out [ie. because he was fearful he would harm the mother and/or child].

   [The mother] probably was living in fear in our house.

   [7] Father’s affidavit, para 30

5. The father also conceded his memory was very poor, and has been so since 2002, which was the time from which he said he was “mentally ill”. Whether there is any correlation between the father’s history of unstable mental health and his deteriorated memory remains medically unverified but, significantly for present purposes, he either admitted that many of the mother’s allegations against him were true, or alternatively, he could not remember and could not therefore refute her version of events. Consequently, reliance upon the mother’s evidence to make factual findings about the past occurrence of family violence is both safe and uncontroversial.

6. The father cleaned his firearms in the mother’s presence and pointed them directly at her, which she understandably found very frightening. In November 2013, the police attended the parties’ home to confiscate all of the father’s firearms and ammunition due to either the expiration or cancellation of his firearms licence but, notwithstanding the confiscation, members of the paternal family still allow the father to use their firearms and he still shoots when he wants.[8] He is highly experienced with firearms so, given the multiple threats he made to the mother both during their relationship and since their separation, his proficiency with and access to firearms worries her.

   [8] Mother’s affidavit, para 29-34, 133

7. In fits of rage, the father punched walls and doors, threw tools at the house and family pets, bit the family dog on the ears causing it to yelp, and hunted and killed feral pigs by bashing their skulls with a hammer.[9] The father admitted in cross-examination he once told the mother he enjoyed bestialising sheep and was “turned on” when he “cut their throats after fucking them”,[10] though he denied “cutting their heads off”. One might think such restraint, after first abusing and then killing them, is of little moment in the scheme of things.

   [9] Mother’s affidavit, paras 35, 42, 43

   [10] Mother’s affidavit, para 103

8. In January 2014, the father celebrated the news of the mother’s pregnancy by intoxicating himself at a local hotel. When he came home he locked the mother in the laundry for the night and, when he intermittently checked on her, spat on her and laughed at her.[11]

   [11] Mother’s affidavit, paras 38-39

9. In February 2014, knowing the mother was pregnant, the father called her and said “if you don’t get home now, I will find you and kick you in the guts and kill your cunt of a dog”.[12]

   [12] Mother’s affidavit, para 50

10. In May 2014, the father referred disparagingly to the meal cooked by the mother as “shit”, emptied the contents of the plate over her head, pulled her ears, and said he wanted “normal food” not her “fucking wog shit”.[13] The next day he approached her in the kitchen, admitted he was “a real cunt” to her, then raped her from behind against a kitchen cupboard while he pulled her hair and said “fucking say ‘I’m sorry Agro’ or this cock is going in your ass you slut”. After he ejaculated he said “now clean this house up and don’t ever feed me wog food again you cunt”, then left the house laughing loudly.[14]

    [13] Mother’s affidavit, paras 56-59

    [14] Mother’s affidavit, paras 60-67

11. Besides such contemptuous physical and verbal abuse, the father controlled the mother financially and socially. He isolated her from friends, monitored her conversations with family members, refused to allow friends to visit the home, reviewed the mother’s Facebook communication, and kept a close check on her when she went shopping.[15]

    [15] Mother’s affidavit, paras 70-74

12. In June 2014, the mother experienced some brief respite from the father’s oppressive control, which coincided with his medication being changed and him not drinking alcohol so excessively, but his misconduct resumed following the child’s birth and the mother’s return home from hospital with the new baby in September 2014.[16]

    [16] Mother’s affidavit, paras 75-81

13. In September 2014, the father was upset by the child’s crying. He admitted he told a visiting nurse he felt like throwing the child out the window, which was a threat he made to the mother if she could not stop his crying.[17] The mother found the father was increasingly agitated with the child and decided she could not leave them alone together.[18]

    [17] Mother’s affidavit, para 82

    [18] Mother’s affidavit, para 84

1. In October 2014, the father returned home intoxicated from the races. He annoyed the mother in bed and then head-butted her repeatedly (which he admitted in cross-examination, but said the butts were not hard), choked her, shook her vigorously, then punched her with a closed fist to the side of the face. The mother feared for her life. The child woke in the commotion so the mother tried to breastfeed him to soothe him. In response, the father grabbed the child off the mother, pushed her off the chair, dragged her by the hair to the door, and pushed her out of the house into the yard. He threw keys at her and said “get off my fucking property you cunt of a thing. I’ll fucking kill you.” The father locked her out of the house and then held the child up like a rag doll so the mother could see the child through the window. She was distraught and begged him to give her the child, but the father laughed at her and said “you are never going to see him again”, amongst other profane verbal abuse.[19]

   [19] Mother’s affidavit, paras 88-93

2. The paternal grandmother came to help when the mother called, but she simply used a key to gain entry to the house, recovered the child from the father, and told the mother “he’s just drunk and does not mean it”.[20] Unfortunately, the paternal grandmother is really just the father’s apologist.[21] She either lacks the insight to identify the father’s conduct for the disgrace it is or she recognises it and conveniently chooses to ignore or minimise it. She was apparently aware of the injuries the mother suffered as a consequence of the father’s beating, which comprised scratches, a swollen cheek and a lump on her forehead,[22] but nothing more was then done to alleviate the mother’s predicament. The paternal grandparents actively encouraged her not to report the father’s criminal conduct to the police.[23] How the paternal grandmother could honestly assert to the Family Consultant that the mother “manufactured or exaggerated” her reports of family violence defies credulity, as she did not live with the parties to see what occurred and, when she was summoned by the mother to intercede, she witnessed her distress and injuries.[24]

   [20] Mother’s affidavit, para 94

   [21] Family Report, paras 29, 59, 78

   [22] Mother’s affidavit, para 95; Family Report, para 37(c)

   [23] Family Report, para 37(c)

   [24] Family Report, paras 29, 59

3. The mother attended a medical appointment with the father several days after that particular incident but, when she told the father she may seek medical advice about her injuries which were still sore, he warned her not to mention the injuries or he would give her a “proper fucking belting” and “slit [her] throat”.[25] Understandably, she said nothing about her injuries in the face of such threats.

   [25] Mother’s affidavit, para 98

4. Thereafter, the father continued to denigrate the mother and criticise her parenting skills on a daily basis. He told her “you’re not a mother’s cunt”.[26] The mother sought sanctuary at the paternal grandparents’ home for some weeks around that time.[27]

   [26] Mother’s affidavit, paras 99-102

   [27] Mother’s affidavit, paras 106-107

5. In January 2015, the father’s mood deteriorated. He drank excessively, refused to wash, and stayed in bed. One day the mother returned to the house to find him asleep on the bed, in which he had defecated and urinated. Empty rum cans were scattered about him. When the father awoke, the mother told him she could no longer live that way. He asked her to get him to the mental health unit before he committed suicide. With the paternal grandmother’s help, the father was taken to a psychiatric medical unit, where he was detained for several days.[28] About a week after the father’s discharge from hospital, the mother told him she no longer wanted to be in a relationship with him, to which he responded by wrapping a rope around her neck and saying “this is the only way you are going to leave me”.[29]

   [28] Mother’s affidavit, paras 110-113

   [29] Mother’s affidavit, para 116

6. Later that week the mother consulted her general practitioner and confided she was planning to leave the father secretly. The doctor encouraged her and helped put her in touch with support services in the coastal township to which she intended to move.[30] She moved with the child not long afterwards when the father was not home.

   [30] Mother’s affidavit, para 117

7. The father disingenuously said in cross-examination the mother could have moved out of their home at any time, implying his treatment of her must not have been so bad if she did not want to leave at the first available opportunity, but his evidence conveniently overlooked his threats to kill either her or himself if she left him. The mother saved money and hid it under the house for months before she finally made good on her escape in March 2015, when he went to work temporarily in C Town.[31] Before then, the mother was too frightened to report her abuse by the father to the police because she believed he enjoyed a friendship with a local police officer.[32]

   [31] Mother’s affidavit, paras 53, 69, 119, 121

   [32] Mother’s affidavit, paras 69, 96

8. The mother’s relocation with the child to the coast, which caused their significant geographic separation from the father, did not cause his harassment and intimidation of her to cease.

9. In April 2015, the father informed the mother he was watching her new house from the street and, when informed by the mother she was alone, he entered the house and stayed for two days. The mother did not consent, but she was too afraid to ask him to leave.[33]

   [33] Mother’s affidavit, para 124

10. About a week after he left, the father called the mother and told her he would kill himself if she did not return to the relationship.[34] When she failed to do so, about a week after that, he called her again and threatened her by saying “you are going to pay the price for leaving me. You are going to pay you cunt of a thing. I’ll make you pay”.[35] When that tactic did not work, he reverted to threats of suicide, telling the mother “if you don’t love me I’m just going to neck myself”.[36]

    [34] Mother’s affidavit, para 125

    [35] Mother’s affidavit, para 126

    [36] Mother’s affidavit, para 127

11. In May 2015, the father called the mother and told her “I feel like gutting you like a pig in front of [the child] so he can see what a pig his mum is. I will turn up when I want and you will not even know when I am in the house”.[37] Only two days afterwards, the father sent the mother a text message saying he loved her and the child.[38] He seemed not to appreciate the grotesque incongruity of threatening to murder the mother one day, but telling her he loved her the next.

    [37] Mother’s affidavit, para 132

    [38] Mother’s affidavit, para 134

12. In June 2015, the father called the mother to announce his intention to deliver some personal property to her home. He ignored her request to stay away. Two days later, shortly before his arrival, he called the mother and said “I can see you at the kitchen window. Let me in cunt face. Daddy’s home”. Given the mother’s obscured position within the house, the father must have been watching her covertly. Moments after his arrival, he confiscated the mother’s mobile telephone and checked her call history, threatening her she had better not have received any calls or texts from a male “or else”. During the father’s unwelcome stay at the mother’s home, he tried to drug her drink so he could have unobstructed sexual intercourse with her. He left two days later and, while that was the last time he had any contact with the child,[39] it was not the end of his communication with the mother.

    [39] Mother’s affidavit, paras 135-151

13. The mother was convinced the only way in which the child could safely interact with the father in future was under closely supervised conditions at a contact centre. She telephoned the father to inform him of her decision, but he would not accept it. He told her “how dare you tell me how I visit [the child]. If he is ever put out in front of me I will snap the little cunt’s neck so you will have nothing”,[40] which threat he later repeated.[41] Those threats helped convince her the child would not even be safe in the father’s company at a contact centre.

    [40] Mother’s affidavit, para 152; Father’s affidavit, paras 9, 15

    [41] Mother’s affidavit, para 159

14. The father continued to send the mother text messages, despite her request that he desist. His harassment escalated to about 200 abusive text messages and telephone calls each day, which motivated her to seek help from the police, though at that stage they only offered to contact the father and tell him to stop. In September 2015, after media coverage of a woman’s murder by her partner, the father called the mother and said “another slut dead. She was number 66 for the year and you will be number 67”.[42]

    [42] Mother’s affidavit, paras 153-164

15. In January 2016, the mother emailed the paternal grandmother asking for her help to stop the father from contacting her continuously, but she decided she still needed police intervention. While the mother was at the police station seeking a family violence order for her protection, she received an abusive text message from the father informing her he had read the email she sent the paternal grandmother,[43] so any help the paternal grandmother was prepared to give was of little use.

    [43] Mother’s affidavit, paras 165-168

16. On 7 January 2016, the police provisionally issued a family violence order against the father for the protection of both the mother and the child.[44] At or about that time, the police also charged the father with offences of assaulting, stalking, and intimidating the mother on several occasions over the preceding 15 months.[45] Once those proceedings were before the State court, the family violence order was made against the father on an interim basis in February 2016 and then converted into a final order in October 2016,[46] simultaneously with the disposal of his prosecution under the Mental Health (Forensic Provisions) Act 1990 (NSW).[47]

    [44] Mother’s affidavit, para 169; Father’s affidavit, para 17

    [45] Exhibit F3; Father’s affidavit, para 16

    [46] Mother’s affidavit, paras 10, 170-171

    [47] Mother’s affidavit, para 172; Exhibit F3

17. When the Family Consultant conferred with the family in March 2017, she concluded the father was a perpetrator of “coercive controlling violence”, which was intended to induce the mother’s fear and submission.[48] She considers he poses a “very high” risk of harm to both the mother and child.[49] Her opinion was unmoved in cross-examination and her evidence should be accepted as correct.

    [48] Family Report, paras 36-40

    [49] Family Report, paras 43, 102

18. The risk of physical harm posed by the father to the child and the mother is unacceptably high and should preclude any interaction between them, unless orders could be fashioned to ameliorate the risk. The father thought his occasional identification contact with the child under supervised conditions at a contact centre would work, but the mother, Independent Children’s Lawyer, and Family Consultant did not. They were right. The father needs to be bound by very tight injunctions to ensure the safety of the child and the mother.

Child’s best interests – additional considerations

1. Few other features of the evidence were addressed as relevant to the application of s 60CC(3) of the Act. In essence, they were confined to the father’s psychological instability, his apparent profound lack of insight, and the mother’s incapacity to cope with any re-introduction of the father to the child’s life, let alone her own.

2. The father’s psychological instability has been evident for many years – the Family Consultant said from his “early 20’s”,[50] while the father told the Family Consultant for about the last 13 years[51] and in cross-examination he said since 2002 (when he turned 23). The evidence did not reveal his exact diagnosis, but he is suspected of suffering from Schizoaffective Disorder, Bipolar Disorder, and/or Depression.[52] He has suffered suicidal ideation on multiple occasions in the past[53] and he made threats of his suicide to the mother.

   [50] Family Report, para 6

   [51] Family Report, para 44

   [52] Family Report, paras 6, 37(e)

   [53] Family Report, para 37(a)

3. In the early stages of the parties’ relationship, the mother was so concerned about the father’s bizarre behaviour she made an appointment for him to consult the local doctor, who then referred him for psychiatric evaluation in Sydney. Since then, he has been subjected to regular psychiatric assessments.[54]

   [54] Mother’s affidavit, para 44

4. When the father’s offences against the mother were finalised before the State court in October 2016, under the Mental Health (Forensic Provisions) Act 1990 (NSW), it was conditional upon his regular consultations with both a psychiatrist and mental health nurse and him taking his prescribed medications,[55] but some doubt attends his commitment to that regime. Despite his assertions to the contrary, there is independent evidence that he has not always taken his prescribed medication.[56]

   [55] Family Report, para 4

   [56] Family Report, paras 8, 16

5. The father told the Family Consultant he is now “quite well” and he no longer posed any danger,[57] which was also the flavour of the evidence he gave during cross-examination. However, in the absence of reliable medical evidence to that effect, his self-assessment is not probative. His lawyer explained he voluntarily decided not to adduce evidence from his treating psychiatrist but, when asked why, he explained there was insufficient time to acquire it. His answer was patently false. Procedural orders were made months before trial permitting him to adduce evidence from his psychiatrist.[58] In the absence of any plausible explanation, it may be inferred the evidence would not have assisted his case. In the absence of any expert medical evidence at all, there is no proper basis upon which to conclude the safety risk posed by the father has been eradicated.

   [57] Family Report, para 51

   [58] Order 7(c) made on 3 April 2017

6. Despite some prevarication by the father about the effects of his psychological ill health upon his behaviour,[59] he asserted during his cross-examination it did cause or worsen his violent propensity. He volunteered remarks like:

   I’m mentally ill

   People who are mentally unwell have got no control

   [59] Father’s affidavit, para 18

7. Therefore, regardless of whether he actually believes it to be true, the asserted connection between his psychological condition and his misconduct means the maintenance of his psychological stability is essential, otherwise he remains prone to violent outbursts. Accordingly, his disregard of medical advice, by failing to medicate as prescribed and by drinking alcohol, is alarming.

8. There is no doubt his psychological stability is compromised by his continuing consumption of alcohol.[60] He admitted he still regularly drank alcohol on at least a weekly basis[61] and, in cross-examination, he admitted he defied the advice of his psychiatrists and medical practitioners to abstain from alcohol consumption, just as the mother alleged.[62] He said he knew alcohol accentuated his depression, for which he is still medicated with daily doses of lithium, but he could not articulate any logical or intelligible explanation for why he still drinks alcohol contrary to medical advice. His insistence on doing so must either be foolish or foolhardy. His belated attempt in cross-examination to distance himself from his admissions is rejected as untruthful, particularly since he was once considered dependent on alcohol and he has falsely minimised reports of his alcohol consumption to his doctors.[63]

   [60] Family Report, para 14

   [61] Family Report, para 10; Father’s affidavit, para 35

   [62] Mother’s affidavit, paras 46, 52

   [63] Family Report, paras 11-13

9. The father’s contest of this litigation was, to some extent, intriguing because his past interest in the child has been passive at best. In May 2015, he told the mother “have fun bringing [the child] up. I don’t want anything to do with him”.[64] In September 2015, he told the mother “…the only way I will see [the child] is through my rules no one else’s rules otherwise I’ll never see him”.[65] In December 2015, he told the mother “…I’m not going through the courts you can have him”.[66] In January 2016, he told the mother “…I don’t have to pay child support”.[67] Despite the cessation of all contact between the father and child from June 2015, he did nothing to rectify the situation. The mother commenced the proceedings. Although the father’s participation in the litigation does imply his interest in the child’s future, there is still nagging doubt about whether his interest is in the child or really the mother.

   [64] Mother’s affidavit, para 131

   [65] Mother’s affidavit, para 162

   [66] Mother’s affidavit, para 163

   [67] Mother’s affidavit, para 165

10. The father’s lack of empathy and insight was the subject of adverse comment by the Family Consultant and even some of his own medical practitioners.[68] It was exemplified by his former unsuitable proposals for his contact with the child and his lack of remorse over his past violent conduct, about which he said in cross-examination the mother “provoked a lot of [it]”. His evidence betrayed not only the absence of any real contrition, but his failure to comprehend the scale of his abhorrent behaviour. Family violence has a pervasive psychological effect upon children, which is just as insidious as any physical harm they may suffer through direct involvement as a victim. Children who are exposed to the violent or coercive domination of one parent by another, particularly when it is systemic, are modelled unhealthy family relationships which are antithetical to modern, acceptable societal standards. Those children suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance from such experiences, which seriously compromises their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33]-[37]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmani (2012) FLC 93-506 at [189]).

    [68] Family Report, para 100

11. Unfortunately, the paternal grandmother does not constitute a bulwark against the father’s shortcomings. She similarly lacks insight. She insisted to the Family Consultant the father has a “right” to have a relationship with the child,[69] but in fact any such right vests in the child rather than the parent and is conditional upon the relationship promoting the child’s best interests. Despite a wealth of evidence to the contrary, the paternal grandmother continues to maintain the father poses no risk of harm to the mother or the child and she remains unconcerned about either his unstable psychological state or his continued use of alcohol.[70] She is inclined to criticise the mother instead.[71] In such circumstances, her proposal to supervise the child while in the father’s care was an artifice,[72] because she does not genuinely believe in the need for any such supervision. The mother’s fear the paternal grandmother either would not or could not satisfactorily protect the child from the father’s impulses is objectively reasonable.[73]

    [69] Family Report, para 58

    [70] Family Report, paras 29, 59, 62

    [71] Family Report, para 64

    [72] Family Report, para 68

    [73] Family Report, paras 76, 103, 105

12. The mother endured a troubled past. Her adverse experiences caused her to suffer from panic attacks and Post-Traumatic Stress Disorder.[74] She took that psychological fragility into her relationship with the father, but her subsequent experiences with him probably worsened her condition. Although she is presently well supported emotionally, she remains vulnerable. She would be gravely disturbed if forced to deal with orders that compelled her to deliver the child into the father’s care, even if his care was professionally supervised. The emotional upheaval would most probably impinge upon her capacity to provide proper care to the child, as the Family Consultant theorised.[75]

    [74] Family Report, para 31

    [75] Family Report, paras 30, 33, 37(e), 91, 106

1. The child’s best interests demand peace and tranquillity in the mother’s household, which would not exist if any orders were made requiring her to facilitate some form of relationship between the child and the father. The probable impairment of her parenting capacity in the face of any such orders necessitates, in order to preserve her parenting capacity for the child’s benefit, severance of any personal connection or communication between the child and the father. The need to accommodate the child’s best interests overrides any sense of injustice between the parties (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; A & A (1998) 22 Fam LR 756 at 768-769; V & V [2001] FamCA 78 at [54]; H & K [2001] FamCA 687 at [36]-[38]; H & R [2006] FamCA 878 at [43]-[53]; Hepburn & Noble (2010) FLC 93-348 at [43], [49]-[64]).

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because of the family violence committed by the father (s 61DA(2)). The parties cannot possibly share parental responsibility for the child, as the Family Consultant observed.[76] Consequently, the mother must have exclusive parental responsibility for the child, since it was uncontroversial he should live with her. The father eventually agreed with that outcome.[77]

   [76] Family Report, paras 25, 104, Recommendation I

   [77] Exhibit F2, Orders 1-2

2. The father ultimately pared back his proposal about the manner in which the child should spend time with him. His final proposal was for four supervised visits each year at a contact centre.[78] The Family Consultant expressly considered, but rejected, the idea of the child visiting the father on only a few occasions each year at a contact centre.[79] Given the features of the evidence already discussed under the rubric of ss 60CC(2) and 60CC(3) of the Act, her opinion is accepted as valid.

   [78] Exhibit F2, Orders 3-4

   [79] Family Report, para 106, Recommendation II

3. The family violence order made against the father in October 2016 will apply until April 2018. It expressly prohibits him from approaching or contacting either the mother or the child by any means, other than via his legal representative.[80] This Court is enjoined to make parenting orders which are consistent with family violence orders where possible (s 60CG(1)(a)), but remains at liberty to make contradictory parenting orders (s 68P), provided the child’s best interests are thereby served (ss 60CA, 65AA). No aspect of the evidence suggested the family violence order should be overridden. There is no evidence of any breach of the family violence order by the father, suggesting it is achieving its objective, in which event there is no demonstrated reason to make parenting orders that might dilute its effect.

   [80] Mother’s affidavit, Annex A

4. The Independent Children’s Lawyer proposed the existing family violence order be supplemented by injunctions under s 68B of the Act.[81] Such injunctions are warranted and are not precluded by s 114AB(2) of the Act, because the Independent Children’s Lawyer is not the person who instituted the proceedings before the State court for the family violence order which already protects the mother and the child. That application was made by the police. There is no need for the operation of the injunction to await expiration of the existing family violence order, as the Independent Children’s Lawyer proposed.[82]

   [81] Exhibit ICL1, Order 3

   [82] Exhibit ICL1, Order 3(g)

5. The Independent Children’s Lawyer proposed that the orders and these reasons be released to the police and the child welfare authority as an “extra layer of protection” for the mother.[83] The proposal was not opposed by either party so the order is made. Similarly, there is no reason why the child’s day care centre and school should not have a copy of the orders, as was proposed by the Independent Children’s Lawyer.[84]

   [83] Exhibit ICL1, Order 4

   [84] Exhibit ICL1, Order 5

6. Although the father wanted the Court to note the parties’ agreement the child’s care arrangements would be reviewed about two years hence,[85] there should not be any such caveat to the orders now made. First, the mother disavowed her agreement with the father to review the orders, so any notation suggesting otherwise as he proposed would be false. Second, any invitation to review parenting orders in the absence of any material change of circumstances would be anathema to the statutory preference for the Court to make orders that are least likely to lead to the institution of further proceedings in respect of the child (s 60CC(3)(l)).

   [85] Exhibit F2, Notation A

7. The orders set out at the commencement of these reasons promote the child’s best interests.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 4 September 2017.

Associate: 

Date:  4 September 2017