Snell and Snell & Ors (No 5)
[2015] FamCA 420
•1 June 2015
FAMILY COURT OF AUSTRALIA
| SNELL & SNELL AND ORS (NO 5) | [2015] FamCA 420 | |
| FAMILY LAW – CHILDREN – PARENTING ORDERS – Where both parents have history of alcohol and drug abuse – Where father has extensive criminal history including offences for violence – Where mother has mental health issues – Family violence during the relationship involving gross physical assaults by the father upon the mother – Where family violence included pattern of coercive and controlling behaviour by father – Where in advance of final trial father opposed drug testing and psychiatric assessment – Where father refused to participate in family report process – Where father’s conduct throughout trial proceedings of an extraordinary kind – Whether parents have respectively addressed past issues of alcohol/drug dependence and psychiatric issues – Where child has not spent time with father since 26 March 2013 – Whether orders for the child to spend time and communicate with the father pose unacceptable risk – Orders to address any risk FAMILY LAW – PARENTAL RESPONSIBILITY – Where presumption rebutted and in child’s best interests for mother to have sole parental responsibility FAMILY LAW – APPLICATIONS FOR RECUSAL FOR BIAS AND DISCHARGE OF INDEPENDENT CHILDREN’S LAWYER – No merit in applications – Applications dismissed | ||
Family Law Act 1975 (Cth)
Federal Court Proceedings Act
Cox & Pedrana (2013) FLC 93-537
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725
Sayer & Radcliffeand Anor (2013) 48 Fam LR 298
SCVG & KLD (2014) FLC 93-582
| APPLICANT: | Mr Snell |
| RESPONDENT: | Ms Snell |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Patrick Dooley |
| FILE NUMBER: | BRC | 4332 | of | 2012 |
| DATE DELIVERED: | 1 June 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 27 to 30 January 2015; 17 to 18 February 2015; and 30 March 2015 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
SOLICITOR FOR THE RESPONDENT: | Muir Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Slade-Jones |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
The Father’s application that the Independent Children’s Lawyer be discharged be dismissed.
The Father’s application that the Honourable Justice Kent recuse himself for bias be dismissed.
All previous parenting orders be discharged.
The Mother shall have sole parental responsibility for decisions about major long-term issues in relation to the child, B born … 2006 (“the child”).
The child live with the Mother.
The Father shall forthwith remove from Facebook or any online social networking service or any website, all references to any proceedings under this or any other Act that identifies:
(a) The child;
(b) The Mother;
(c) A party to the proceedings;
(d) Any other person who is related to, or associated with, a party to the proceedings or is in any other way concerned in the matter to which the proceedings relate; or
(e) Any witness in the proceedings.
The Father be restrained and an injunction is hereby granted, restraining him from publishing or otherwise disseminating to the public or to a section of the public over the Internet or by any other means, any account of any proceedings, or of any part of any proceedings, under this or any other Act that identifies:
(a) The child;
(b) The Mother;
(c) A party to the proceedings;
(d) Any other person who is related to, or associated with, a party to the proceedings or is in any other way concerned in the matter to which the proceedings relate; or
(e) Any witness in the proceedings.
The orders for the child’s time and communication with the Father as provided for in these orders are subject to, and conditional upon, the Father complying with order 6, which compliance shall be demonstrated by the Father filing and serving an affidavit within fourteen (14) days of the date of these orders, confirming the steps taken by the Father to comply with the order and demonstrating such compliance.
The Director of the Child Dispute Services of the Brisbane Registry of this Court is requested, within twenty-one (21) days of the date of these orders, to arrange for a family consultant or consultants to assist the child with the reintroduction of the Father to the child, and the child spending time with and communicating with the Father, as provided for in these orders.
Both parents shall do all acts and things reasonably necessary to comply with any reasonable directions or requests from the family consultant or consultants including, in the case of the Mother, ensuring that the child attends such appointment or appointments as are arranged by the family consultant and for such duration as the family consultant or consultants nominates or requests.
The family consultant or consultants are authorised pursuant to s 65L of the Family Law Act 1975 (Cth) to supervise the compliance by each party with orders 10 and 12(a) of these orders and otherwise to render such assistance as reasonably requested by either party in relation to these orders.
The child shall spend time with and communicate with the Father:
(a) At all such times as is directed by the family consultant or consultants appointed pursuant to orders 9 and 10; and
(b) At such other times as may be otherwise agreed in writing between the parents, and otherwise as follows:
(i)Commencing Sunday 4 July 2015 and for the following two (2)
consecutive Sundays thereafter, from 10.00 am until 12 midday;
(ii) For the next following two (2) consecutive Sundays from
10.00 am until 2.00 pm;
(iii)For the next following two (2) consecutive Sundays from
10.00 am until 4.00 pm; and
(iv)Thereafter, on each alternate Sunday from 9.00 am until 4.00 pm.
That for the purpose of changeovers, within fourteen (14) days of the date of these orders the Mother is to nominate in writing to the Father and the Independent Children’s Lawyer a public place with closed circuit surveillance coverage situated between the Mother’s residence and the Father’s residence for the purpose of such changeovers, and the Mother shall be responsible for causing herself or her agent or agents to attend at the nominated place of changeovers at the times and dates provided for in these orders, to effect such changeovers.
Each party is at liberty to have in their possession at changeovers listening or recording devices for the purpose of recording those events provided that each party takes all steps necessary to ensure that the child is unaware of such recording.
The Father is to comply with any written directions provided by the Mother concerning the child’s medication requirements during any period that the child is spending time with the Father or to permit the child to maintain compliance with his medication regime from time to time.
Commencing Wednesday 8 July 2015 and each Wednesday thereafter the Mother is to facilitate the Father having telephone communication with the child at 6.30 pm with the duration of those calls to be in accordance with the child’s wishes up to a maximum of twenty (20) minutes, and for this purpose the Mother is to provide to the Father within fourteen (14) days, in writing, the telephone number for the purpose of such telephone communication.
Each parent is restrained, and an injunction is granted restraining them, from denigrating or insulting the other parent or any member of the other parent’s family in the presence or hearing of the child and each parent shall use their best endeavours to ensure that no other persons denigrate or insult the other parent or any member of their family in the hearing or presence of the child.
Each parent is restrained, and an injunction is granted restraining them, from attempting to engage the other parent in any conversation or discussion at changeovers other than formal greetings or farewells.
Each parent is restrained, and an injunction is granted restraining them, from communicating with the other, other than by means of email or text message with such communication being confined to urgent messages concerning the child’s health or like matters.
Neither parent is to use, and an injunction is granted restraining the use of, any form of physical means whatsoever as a method of discipline for the child.
The Mother is to provide the Father with copies of the child’s school reports as and when such reports are issued and is to provide the Father with copies of any medical reports or assessments of the child that she receives.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Snell & Snell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4332 of 2012
| Mr Snell |
Applicant
And
| Ms Snell |
Respondent
REASONS FOR JUDGMENT
These parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the child, the child B born in 2006 (“the child”) who is now 8 years and 7 months of age.
B currently lives with his mother, Ms Snell (“the mother”) and has not spent time with his father, Mr Snell (“the father”) since 26 March 2013.
Whilst both parents have other children from their earlier respective relationships, the child B is the only child of this relationship between the parents. Their relationship commenced in 2004; the parties married in 2004, and they separated in mid-2011.
In his final submissions the father, who represented himself throughout the course of these proceedings including the trial, repeated earlier oral applications he had made from time to time throughout the trial, namely, that the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the child’s interests in the proceedings be removed; that I recuse myself for bias and that these proceedings be “discharged” and relisted for a new trial with a new ICL; and such trial be heard by the Chief Justice of this Court. For reasons which will be further outlined below there is no merit in these applications and they are dismissed.
Parties’ proposals and central contentions
The father
As regards the parenting case, the fundamental contention in the father’s case is that the mother has acted malevolently, and will continue to act malevolently, to deny the child the benefit of a meaningful relationship with the father; and to deny the child’s right to have the meaningful involvement of the father in his life, including by experiencing the father’s care; and spending time with the father.
As part of, or in addition to, that fundamental contention the father advances in his case a number of central and to some extent overlapping propositions which may be summarised and paraphrased (in no particular order of priority) as follows:
a)The father’s serious criminal history, which he admits, which includes crimes of violence and extensive periods of incarceration, ended prior to the commencement of his relationship with the mother in 2004 (and thus well prior to the child’s birth) and is now long behind him;
b)The father’s significant history of alcohol and drug addiction and abuse, which was controlled or largely controlled by him between about 2005 and about 2009; is now behind him and finally ended on and from the date he nominates as his “sobriety date” of 5 November 2012;
c)The mother has, malevolently, emphasised and relied upon both the father’s historical extensive criminal history and his historical abuse and addiction to alcohol and drugs, together with an embellished or exaggerated case about family violence; to portray the father as a risk to her safety and the child’s safety when in reality there is no such risk;
d)The mother has actively sought to alienate the child from the father and will continue to do so;
e)The mother has significant mental health issues and her own history of drug and alcohol abuse. Her parenting capacity has historically been substantially compromised and the father was in fact the child’s primary carer from the time of his birth until 2011. The father has the parenting capacity to appropriately care for the child;
f)The father’s conduct throughout these proceedings and the trial is a reflection of his anger towards, hatred towards, and resentment of, the Court and the Court’s complicity (with the mother) via orders made historically which have operated to preclude a father-child relationship. That is, this display of anger and the nature of the father’s conduct is not truly reflective of the manner in which the father conducts himself outside of the environs of the Court or these proceedings;
g)The mother’s mental health issues include attention deficit disorder (“ADD”) and/or attention deficit hyperactivity disorder (“ADHD”) and the mother has caused the child to be diagnosed with and treated for ADHD when he in fact does not have that condition.
The father proposes that parenting orders be made by which the father has sole parental responsibility for the child; that the child be immediately “returned” to the father’s care to live with him; and that there be a moratorium on the child spending any time with the mother for a period of 12 months; and with the child’s communication with the mother being limited to monthly telephone calls.
The mother
The fundamental contention in the mother’s case is that the father’s capacities for aggression and violence, which he cannot control, particularly in association with his long-standing history of alcohol and drug abuse, places the child at such risk that there is no prospective benefit to the child of having any meaningful relationship with the father; or that any prospective benefit is overwhelmed by the unacceptable risk of harm to the child that would be inherent in the child spending any time with the father.
As part of, or in addition to, that fundamental contention the mother advances in her case a number of central and to some extent overlapping propositions which may be summarised and paraphrased (in no particular order or priority) as follows:
a)The relationship between the parties was characterised by family violence, in one form or another, perpetrated by the father against the mother; her other children; and the child. Such conduct included verbal abuse and controlling behaviours and excessive physical discipline of the child;
b)The father is unable to control his aggression and propensity to resort to violence or verbal abuse whenever things do not go his way, or in accordance with his wishes;
c)The father’s propensity for violence and to resort to physical means of discipline would place the child at an unacceptable risk if the child were in the father’s unsupervised care;
d)The father’s conduct during the trial is a true reflection of the father’s manner of conduct more generally and the child ought not be exposed to that;
e)The father may well have mental health issues that remain untreated, as reflected in his manner of conduct;
f)Historically, the child has mimicked the father’s aggressive conduct as a result of being exposed to that conduct;
g)Historically, the father has denigrated the mother to the child and would continue to do so in future;
h)The father is a flight risk and may choose, given the opportunity, to abscond with the child;
i)The father does not, and will not, accept the expert medical diagnosis that the child suffers from anxiety and ADHD;
j)The mother maintains her own mental health and stability with ongoing medical assistance from her general medical practitioner and her treating psychiatrist and is in a position to provide the child with stability and adequate care;
k)Orders for the child to spend time with or communicate with the father would adversely impact upon the mother’s mental and physical wellbeing and thus her capacity to provide for the child’s care;
l)The father refused, in advance of this trial, to cooperate in proposed investigative processes including drug testing; evaluation of the parties by a single expert psychiatric assessment; and participation in the family report process; each of which was designed to provide sources of evidence for the Court to properly determine parenting orders in the child’s best interests and to assist the Court in assessing the parenting capacity of each parent.
The mother proposes that parenting orders be made which provide for her to have sole parental responsibility for the child and that he live with her with no provision for the child to spend time with or communicate with the father. The mother seeks injunctive orders restraining the father, or any agent of the father, from coming into contact with the child in any way; and from filing any further application without first obtaining the leave of the Court.
The ICL
A central contention in the ICL’s case is that in refusing to participate in the family report process; or in the other investigative processes that were proposed or foreshadowed in advance of this trial, as earlier referred to, the father has precluded matters such as whether he has truly effected change to his historical pattern of alcohol and drug abuse; the status of his current mental/psychological functioning; and thus his parenting capacity; to be adequately assessed.
On this basis the ICL contends that orders “cannot safely be made for the child to spend unsupervised time with the father”.
The ICL emphasises the following propositions and evidence (again in summary and in paraphrased form with no particular order of priority):
a)The evidence of Ms O, the mother’s now adult daughter;
b)The extreme nature of the father’s conduct throughout the trial of these proceedings directed to each of the Court; the lawyers; other professionals involved and others;
c)Evidence of the father’s historical propensity for extreme aggression and violence, both within the parties’ relationship and towards the mother and members of the household; as well as to third parties;
d)The father’s non-acceptance of the medical diagnoses of the child’s anxiety and ADHD;
e)Evidence of the father publishing on the Internet, via Facebook, the private information of the child and of the mother concerning these proceedings and his stated intention to continue doing so;
f)Evidence of the mother successfully engaging with medical and allied health professionals to address her mental health issues and associated difficulties and her resulting parenting capacity as it now presents.
The ICL proposes orders for the mother to have sole parental responsibility for the child and for the child to live with the mother. The ICL proposes that via a notation to the orders it ought be left to the mother, within the province of her having sole parental responsibility for the child, when and in what circumstances in future the child should communicate with, or spend any time with, the father. The ICL also seeks a range of injunctive relief concerning the father’s publication of material relating to these proceedings on Facebook or any other online social networking service.
Statutory framework
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) requires that in applying the primary considerations the Court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider whether it is in the best interests of the child and reasonably practicable to make an order for substantial and significant time with each of the parents.
The operation of the statutory framework and the manner in which the Court approaches its application including the determination of the s 60CC “best interests” considerations is well-settled by authority (see, for example, Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; Sayer & Radcliffeand Anor (2013) 48 Fam LR 298; Cox & Pedrana (2013) FLC
93-537 and SCVG & KLD (2014) FLC 93-582).
Whilst substantial amendments to Part VII of the Act took effect from 7 June 2012 which, inter alia, significantly widened the definition of “family violence” as it now appears in the amended Act; the guidance or guidelines provided by those of the cases referred to which were decided prior to the amendments is not materially affected by the amendments to Part VII, save only that it is to be recognised that s 60CC(2A) now requires greater weight to be given to the second of the two primary considerations.
As these are child-related proceedings within the meaning of the Act, the principles and objects underlying those principles for the conduct of such proceedings which are set out in Division 12A of Part VII of the Act apply.
The parents and their relationship
Father
The father is 47 years of age having been born in 1967. He has for many years relied upon a disability pension for his income but from time to time has undertaken some work. He gave evidence to the effect that he is qualified as a carpenter and that he plans to undertake some work in this field in the future. He currently resides in the C Region area with his sister.
In terms of being on social security benefits the father explained to Mr E who undertook a family report assessment in 2012 that the Department of Social Security put him on a disability pension saying something to the effect of “you’re a career criminal, here is a pension”.
The father has two older children from a previous relationship but as a result of Court proceedings in about 2001 he did not see or spend time with those children. He referred in evidence to a decision of McKenzie & McKenzie and explained that the Court had determined in those proceedings that it would be detrimental for the mother if orders were made for him to spend time with those children.
The father grew up in the C Region and finished school during year nine. He explained in evidence that his father was a violent alcoholic and the father himself spent time in a boys’ home. He was also cared for as a teenager by a family friend.
The father reported to Mr E that he commenced smoking cannabis at about age 13 and used solvents as a teenager. From about age 14 to 16 he occasionally used LSD and mushrooms and then progressed to using speed in the early 1990s.
The father has acknowledged his extensive criminal history including offences for violence. He referred to being incarcerated or institutionalised for total periods cumulatively of about 17 years up until 2004. The father sought to emphasise throughout this trial that he has not been convicted of any criminal offence for more than a decade.
The father’s extensive criminal record is set out in exhibits before the Court.
The father acknowledges that his criminal history is extensive as reflected in those exhibits. Moreover in the course of evidence he acknowledged other conduct even if it were not the subject of a specific conviction. He gave an example of such conduct which occurred, likewise long ago, when he abducted a woman and held her at gunpoint whilst driving a vehicle. On the father’s version the woman was apparently in such fear for her life that when the father had to slow the vehicle whilst driving through a section of road works on the highway, the woman leapt from the vehicle.
The father’s criminal history essentially speaks for itself and reflects that historically and over many years up until 2004 the father had a significant propensity to commit criminal offences including crimes of violence.
Likewise the father has a lengthy history of alcohol addiction and abuse of drugs. He essentially acknowledged in his evidence that he was consumed by these addictions throughout 2004 when he met and married the mother. He told Mr E that between 2005 and 2010 he was abstinent from both cannabis and alcohol but that in 2010 he and the mother started smoking cannabis again such that they were “smashed all day, every day”.
The father’s evidence included reference to a number of attempts at rehabilitation and attending rehabilitation facilities and/or Alcoholics Anonymous. In his affidavit of 16 May 2012 the father refers to attending Recovery Centre V in 2004 and during cross-examination he referred to both he and the mother attending Alcoholics Anonymous for some three and a half years from 2005.
In about June 2011 the father commenced attending a substance abuse rehabilitation centre. He attended the centre known as Recovery Centre W and later transferred to a Recovery Centre V in Brisbane. He later obtained an admission to EE Recovery Centre located on the C Region.
The father sought to emphasise throughout the trial that he has been abstinent from alcohol or drugs since November 2012, specifically 5 November 2012, which he nominates as his “sobriety date”.
The father frankly admitted that he had maintained sobriety since that date other than having “a few drinks” when he was holidaying in Bali with his then partner Ms W and her children.
The father told Mr E that he suffers from Hepatitis C which was diagnosed about 15 years ago. He told Mr E that he had made applications to receive Interferon treatment. He told Mr E he was diagnosed with depression in September 2011 by a general practitioner and commenced taking antidepressants for that condition after he was convicted of a driving under the influence offence in 2012, but the side effects of that medication caused him to cease taking it.
The father acknowledged to Mr E that he was diagnosed by a psychiatrist, Dr X as a sociopath. However, he told Mr E, as he informed this Court, that under cross-examination Dr X’s process was found to be fundamentally flawed and that the father had “ruined” Dr X’s career as a result.
I upheld the father’s objection to any weight being placed upon Dr X’s report if that witness could not be produced for cross-examination (he could not). The father also referred to involvement with the psychologist Ms Y whilst he was in gaol in early 2000 (approximately) and the father told Mr E, as he informed this Court, that he was assisted by the psychological support he received from Ms Y.
The father acknowledged to Mr E that he was drinking heavily up until April or May of 2012 and that he had been receiving assistance for alcohol use from time to time since about 1996.
As referred to, the father maintains that he has been free of alcohol and drugs since November 2012, other than his minor use of alcohol during the Bali holiday.
The mother
The mother will soon turn 42 years of age having been born in 1973. She receives a disability pension and commenced to receive that in or about 2010. She told Mr E that she was eligible for the pension because she was diagnosed with depression, attention deficit disorder, post-traumatic stress disorder and a neck injury. She addressed her depression with antidepressants and also takes Dexamphetamine for attention deficit disorder.
The mother has previously had a diagnosis of bipolar disorder but it seems her current psychiatrist, Dr Z treats her for depression. At the time of interview with Mr E the mother acknowledged that she suffered pain from a neck injury for which she took regular pain killers. She told him she was diagnosed with depression in 2007.
The mother informed Mr E that her diagnosis of attention deficit disorder and post-traumatic stress disorder stems in part from childhood trauma issues including sexual abuse. She acknowledged having a suicide attempt at age 12 and also having suicidal ideation as an adult. She was hospitalised for depression in 2004 and she was again hospitalised in 2010 for mental health issues.
The mother acknowledged that she first smoked cannabis at age 12 and that she has a history of heavy cannabis use. She acknowledged to Mr E that she was smoking cannabis “very heavily” from early 2010 until September 2011.
She reported using benzodiazepines in around 2004 to 2005 and would attend doctors for prescriptions of Temazepam and Valium.
She acknowledged abusing her Dexamphetamine “on a few occasions”.
The mother has four older children from other relationships. Her sons Mr AA and Mr M are in their 20s and her daughter Ms O, who provided evidence in this trial by affidavit and in oral evidence, is now an adult. The mother has a younger son BB who is now aged about 14 years and BB lives with his father’s parents west of D Town and from time to time BB has spent school holiday time with the mother.
The mother finished school in year nine and acknowledged to Mr E behavioural problems at school and described an unhappy childhood characterised by violence and sexual abuse.
As at trial the mother had been living in the C Region area with the child, but did not wish to disclose her address.
The relationship
As will be discussed there were significant episodes of family violence perpetrated by the father against the mother during the 2004 year.
Both parents have acknowledged that in the first 12 months after the child was born in 2006 the father was heavily involved in the child’s care.
The father’s evidence is to the effect that he was the child’s primary carer (as he was for the mother’s other children whenever they were part of the household) from the time of the child’s birth until the parties’ separation in 2011.
However, the father acknowledged to Mr E that one reason for tension in the relationship was “my addiction to World of Warcraft. I was on it for 17 or 18 hours a day, for two years.” Each of the mother and Ms O has also addressed evidence to this aspect. The point is that the father was unlikely to be doing much else but sleep, let alone be a primary carer for a child, if he was spending 17 or 18 hours each day playing a computer game in the two year period he refers to.
It is also to be noted that the mother was involved in a motor vehicle accident in 2007 and succeeded in obtaining compensation for the injuries she sustained in that accident. There is evidence to suggest that part of that compensation related to gratuitous care the mother received from the father, so it would seem that at that stage in addition to providing care for the child, the father provided care for the mother subsequent to her accident.
In 2010 the mother admitted herself to the D Town Base Hospital Mental Health Unit for depression where she was hospitalised for some 10 days. The mother’s affidavit filed 3 May 2012 also refers to her having attended a detoxification course at V Recovery Centre which she undertook for about seven days.
In September 2011 the mother commenced rehabilitation at CC Recovery Centre in DD Town but did not complete that program. The mother asserts that she did not complete the program due to the father harassing staff because under the program it was to be undertaken for some six weeks with no contact with the outside world. The mother deposes to leaving CC Recovery Centre because of fear of the father and sought protection in a refuge where she remained for six weeks.
There is evidence that the mother in fact chose to leave CC Recovery Centre and at the time of her departure was making threats herself against the father.
The bundle of documents tendered by the ICL as Exhibit 7 includes CC Recovery Centre records including the early departure kit containing forms completed by the mother at the time that she elected to depart from that rehabilitation centre without having fully completed the program. It is clear from the notes that the mother was highly agitated at the time of her departure and the notes record her being offered a person to speak to her about anger management, which she declined. The mother is recorded as follows:
She said she is going to kill her husband she will gladly do time to get rid of the prick
Relevant history of post-separation parenting arrangements and parenting orders made
Particularly in circumstances where the mother now proposes final orders that the child have no time or communication with the father whatsoever; and most of her contentions in support of her position (as outlined above) are based upon what she says are her fears relating to the father’s criminal history and/or the history of family violence she alleges; it is relevant to consider some of the central features of the parenting arrangements and orders that have been made in the past in respect of the child, subsequent to the parents’ separation.
The topic of family violence is addressed separately below, but in this context it is worth noting that on 10 October 2011 the mother obtained a temporary Protection Order and she obtained a two year Protection Order on 21 December 2011. The point to be made here is that in advance of any parenting orders being made, orders had been sought and made on behalf of the mother under the relevant domestic violence legislation.
I interpolate here that the father sought to emphasise adverse credit findings made by Magistrate Vasta against the mother in respect of domestic violence. Obviously, this Court is bound to reach its own conclusions on the topic of “family violence” as defined in the Act.
The other matter of context relevant here, is that it seems that at about the time of the parties’ separation it had been resolved by both of them that both needed assistance in dealing with their addictions. The father’s evidence was essentially unchallenged that it was agreed that once he had sought detoxification from alcohol and marijuana he would then care for the child whilst the mother sought like assistance for her difficulties.
The family was living in D Town at the time of separation and the father attended a number of rehabilitation centres including one in Brisbane.
The father’s evidence that he left the centre to assist the mother with her then 16 year old daughter Ms O did not seem to be disputed. Nor was it disputed that there was some form of agreement for the mother to attend CC Recovery Centre in DD Town to obtain assistance for her difficulties.
Thus it was that the mother and the child attended a facility known as CC Recovery Centre in DD Town whilst the father attended a facility known as EE Recovery Centre.
Notably, on 26 August 2011 arrangements were made for the child to spend the day with the father. He was delivered to the father by the mother’s brother at about 9.00 am and collected after 5.00 pm.
Several days later the father left EE Recovery Centre he says, and I accept, because he felt he was missing the child too much. It was whilst the mother was at CC Recovery Centre that the first of the Domestic Violence Orders was taken out and I accept on the evidence that this occurred at the instigation of staff of CC Recovery Centre requiring the mother to obtain such an order.
However it is clear that by late 2011 communication between the parents had ceased in that the mother was avoiding any attempts by the father to communicate with her about parenting arrangements and the mother was not in fact facilitating the child spending any time with the father. Indeed it was in the latter part of 2011 that the mother permanently relocated with the child to the C Region without the father’s knowledge.
In early 2012 the father was informed by the mother’s stepfather that the child was attending K School. Thereafter the father pursued attempts to have some communication with the child via the school. This aspect will be addressed further below but suffice to note here that the father was successful in having telephone communication with the child at the K School as well as a subsequent visit at the school. However, beyond that communication the mother had essentially prevented the father from having any time or communication with the child over many months following about August 2011.
Against that background it is important to note the terms of the orders made in the (then) Federal Magistrates Court on 31 July 2012. The mother, then legally represented by Mr Muir who has continued to represent her, consented to orders for the child to spend unsupervised time with the father whilst he was staying on the C Region. There was a gradual introduction of such time during August 2012 but relevantly the consent orders (paragraph 2(b)) provided for the child to spend time with the father on an unsupervised basis every second weekend on either the Saturday or the Sunday from 10.00 am to 4.00 pm. By paragraph 4 of those orders the changeover was to occur at the FF Town Shopping Centre McDonalds.
Thus it is that the mother consented to the father’s time being unsupervised and the place of changeover consented to was not at a contact centre or the like but in a public place, bringing the two parents together.
That order having been made on 31 July 2012, the parties attended for interviews for a family report conducted by Mr E for the purpose of a family report on 25 October 2012. Mr E’s report dated 16 November 2012 was in evidence before me and Mr E gave oral evidence.
Relevant to what is discussed below as to the mother’s subsequent actions concerning parenting arrangements in early 2013, there is this recorded at paragraph 16 of Mr E’s report:
16.The mother is concerned that the father is aggressive, violent and abusive in his interpersonal relationships, in his parenting relationships and more generally. She alleges that she was subject to longstanding family violence from the father. She is concerned that he continues to have issues with drug and alcohol use. She is concerned that the child is exposed to the father’s negativity and anger about her. She is concerned that the father is untreated for long-standing mental health issues.
In circumstances where the mother had then recently consented to unsupervised time, she relayed to Mr E her preference that the time be supervised as is recorded in paragraph 83 of Mr E’s report as follows (errors in original):
83.She said in terms of her proposal that she would like the arrangements to stay the same but she would prefer that the time between [the child] and his father be supervised. She would like it to be supervised by the contact centre or from a suitable person. She is happy for the time to continue, up to six hours a fortnight at this stage. I asked her what she thought might need to occur in order to allow [the child] to spend more time with his father. She said that she would like there to be some evidence that the father is abstaining from drugs and alcohol and that he is engaged in some kind of treatment or therapy. She said, “My job is to protect [the child]. I’m his Mum and if I could see that things, I just want to do the best I can to protect him and it is difficult.” She added, “I have a good relationship with my other children’s fathers and I would like to have the same thing with [Mr Snell].
Mr E challenged the mother as to why she had agreed to unsupervised time as is recorded in paragraph 85 of his report as follow:
85.I asked her why she agreed to an Order, allowing for [the child] to spend time with his father on an unsupervised basis every fortnight when she has had these concerns. She spoke of a recent experience in the Magistrates Court at Southport, “The Magistrate believed [Mr Snell] and not me. I was scared the Family Court Magistrate would be worse and I could have lost the child.” She saw the agreement she reached as, “The lesser of these evils.”
I interpolate here that at paragraph 109 of his report Mr E records that time in accordance with the order of 31 July 2012 had been “occurring smoothly” and that “changeovers had been occurring without incident”.
As a result of concerns Mr E had (as set out in his written report) about the father following Mr E’s interaction with the father on the day of interviews, Mr E was concerned about the father representing a risk to the mother. Mr E took the unusual step of causing the proceedings to be revisited by the Federal Magistrate on the day following Mr E’s interviews.
The result was that on 26 October 2012 Federal Magistrate Coates ordered that the orders made on 31 July 2012 be suspended until further order. There was an order made “that the child not spend time or communicate with the father until further order”. There was an injunction made restraining the father from coming into contact with, or approaching, the child and from having any agent come into contact or approach the child.
On 5 December 2012 Federal Magistrate Coates made an order transferring the proceedings from the Federal Magistrates Court to this Court.
These following events occurred against the backdrop, discussed below, of the informal shared parenting arrangement that occurred in early 2013. In any event, at a directions hearing before Registrar Spink on 11 January 2013 (obviously after the proceedings had been transferred to this Court) there is a notation on the orders to the following effect:
1.The Father contacted the Court earlier this week and indicated that he did not intend to proceed with his application;
2.The Mother’s solicitor indicated to the Court today that he had received emails from the Father stating to the effect that the Father did not intend to proceed with his application; and
3.There was no appearance by the Father today when the matter was called at 10.00 am. The Father was telephoned and the call went to message bank. A message was left that the matter would proceed today in the Father’s absence.
On 22 February 2013, plainly in circumstances where no formal relevant steps had been taken by the father, an order was made for all applications to be discontinued.
Given what had transpired to the point of the “no contact” order made by the Federal Magistrate on 26 October 2012 (including all that the mother had asserted as to her fears to Mr E); the fact that the mother then, by January 2013, instigated with the father an informal “shared care” arrangement for the child’s care to be adopted between the parents, begs a number of questions.
If the mother genuinely held to the views about the father, including questions in her mind as to his untreated medical health issues, as expressed by her to Mr E only weeks earlier, how could the mother rationalise these care arrangements reached so soon afterwards?
Further, if the mother genuinely held views to the effect that unsupervised time with the father posed some risk to the child’s welfare, how can that be reconciled with the mother instigating this proposal so soon after expressing such views? As referred to above, the mother emphasised to Mr E her role as a mother and as a protector of her child.
In this context it is important to note that the mother’s position was not that the father’s family violence as alleged by her was directed only to her. She had raised issues of the father’s physical disciplining of the child and his capacities for intimidation, aggressive and controlling behaviours and verbal abuse.
In this context it is also important to note that the mother was not simply proposing that there be unsupervised visits. She instigated discussions leading to the position being reached that the parents would have shared care for the child.
I interpolate here that, undoubtedly, by reason of her acknowledged mental health issues and the compromises to her functioning by her historical abuse of alcohol and drugs, the mother can be characterised as a person with vulnerabilities. Moreover, experience teaches that vulnerable people and victims of family violence, usually women, may remain in, or pursue, abusive or unhealthy relationships for a host of reasons even though the fact that they stay in or pursue such a relationship appears to be completely illogical.
However, having seen and heard the mother give evidence and be
cross-examined, even with due allowance for the features referred to, it is difficult to reconcile the mother’s stated position, as to her allegations and asserted fears in respect of the father surrounding his spending unsupervised time with the child, with her conduct in instigating a shared care arrangement so soon after the events referred to.
The mother’s explanations in oral evidence were, in my judgment, in the category of “vague in the extreme”, a description given more generally to the mother’s evidence (at times) in the ICL’s written submissions. Moreover, to some extent her evidence seemed contradictory. At one point the mother implied that she was driven by some fear of the father to enter into the shared care arrangement yet, at another point, and seemingly in a contradictory way, suggested to the effect that she thought the father had changed and that this thus justified the shared care arrangements. In that context there is a letter of apology and an intention not to pursue proceedings from the father annexed to one of the mother’s affidavits. She further suggested at one point that some relapse by her into alcohol or drug abuse may have played a part, even though her own letter to “Mr GG” now to be discussed stands in contradiction to this.
The shared care arrangements subsisted between January and 26 March 2013. Sometime within that period, the precise date was unable to be specified by the mother under cross-examination (but probably sometime in February 2013), the mother wrote to an associate of hers by the name of Mr GG. A copy of that letter is included as part of Exhibit 1 in the proceedings. The letter is important because it does not convey that at the time of writing the letter the mother was overwhelmed by alcohol or drug abuse (the letter suggests to the contrary), but importantly it provides the mother’s own description as to the child’s interaction with the father at a time when the shared care arrangement was on foot. The most relevant parts of the letter read as follows (errors in original):
Hi [Mr GG] J
How are you? Hope you are well and doing OK. I’m alright, I’ve got a bit of an infection and have been on antibiotics for weeks (they are awful) but apart from that and a bit of chronic fatigue all is well.
So what have you been up to lately? It’s been like a year and a half since we caught up. It was so good to say hi the other day and hear a bit of your news.
[B] and I have been living here [in Region C] since late Sep 2011. We’ve got a cute little old beach shack 2 blocks from the beach. It’s got 2 bedrooms and my washing machine is in the kitchen J but it’s spacious and affordable and Coles is in the next block south so I’ve a cheap corner store J We’re happy here and there is enough room for when my other kids come and visit.
I go to Narcotics Anonymous – ha ha cant even spell it – meetings 5 times a week and apart from a few busts I’ve been living clean. It’s been a hard road these past 18 mths with all that’s happened. It’s so nice to have things sorted with [Mr Snell] and the child is really happy to have his dad back in his life clean & sober.
…
(emphasis added)
Whilst it is not in issue that the mother brought the shared care arrangement to an end on 26 March 2013 the parents have completely divergent versions as to the reasons for this.
The father contends that part of the motivation for the mother was to seek a reconciliation of the relationship. The father contends that only when it became clear to the mother that he, the father, was not interested in effecting a reconciliation of the relationship did the mother act to bring an end to the shared care arrangement.
In her affidavit filed on 16 October 2013 the mother deposes as follows with respect to this period:
9.During this time I suffered a relapse and recommenced using marijuana.
10.I made contact with the applicant during this time and suggested that he ought to resume contact with the child and that commenced on a sporadic basis.
11.It soon became obvious that the applicant had not changed his ways. He became verbally abusive to me, intimidating and he was verbally and physically abusive to the child.
12.The applicant had spent time with the child on a sporadic basis between that period and the beginning of March 2013 when I finally realised what I was doing to myself and my son the child.
13.At this time I had told the applicant he was not to attend at my place of residence and if he did so I would contact the police to seek their assistance.
14.I stopped using marijuana in late March with the help of my drug and alcohol counsellor who I have been seeing constantly for the last two years. I sought also the assistance with the Domestic Violence Service and Kids in Focus in respect of the child.
It is to be noted that the shared care arrangement does not seem to have been entered into by the mother on some short-term or trial basis, or reflective of “sporadic” time given that Exhibit 1 includes the email the mother sent to the administration of the child’s school on 20 January 2013. Relevantly, that email reads:
Dear Admin,
Please adjust your records to show that the child is now in a share care arrangement between his father – [Mr Snell] – and I.
We do not have a court order for this as it is a private agreement.
[Mr Snell] will be delivering the child to school and collecting him some days each week.
[Mr Snell’s] contact details are
address: HH Street, Suburb II, Q, …
ph: …
Please add [Mr Snell] to the persons to contact in case of emergency as well.
…
It is plainly wrong and contrary to the mother’s own evidence otherwise, for the mother to assert in her affidavit referred to that the father was spending time with the child only “… on a sporadic basis between that period [early January 2013] and the beginning of March 2013 …” The fact is it was not sporadic time but an arrangement for essentially shared care. Moreover it continued until 26 March 2013.
Notably, on this version the mother makes no reference to an attempted reconciliation. However, she has done so in other contexts. Indeed her case outline document filed on 13 January 2015, in the chronology supplied, has an entry “Jan 2013 the parties reconciled for a period of six weeks”.
In her oral evidence the mother attempted to depart from any version to the effect about an attempted reconciliation. She then attempted to assert that “reconcile” meant something different to what it is commonly understood to mean and what I am satisfied it did mean to the mother when the mother used that expression. I find that the mother was seeking to pursue a reconciliation of the relationship with the father at that time.
The mother gave evidence that the child reported to her to the following effect:
Daddy yelled and sweared [sic] at a man at Coles and I was really scared.
The mother also asserted that, in the child’s presence, when the arrangement was coming to an end or at the day it came to an end, that the father said to her something to the effect:
Is it any wonder he is so fucked up with you for a mother?
The father acknowledges saying something to that effect to the mother at that point but is adamant that this did not occur in the child’s presence.
Given the mother’s attempts in evidence to distance herself from the prospect that she was attempting to “reconcile” with the father in early 2013, which conflicts with other evidence sourced to the mother herself, I consider it is more likely than not that the father’s explanation of why the arrangement came to an end was at least an important ingredient. That is, I consider that it is more likely than not that the mother embarked upon the shared care arrangement in early 2013 as part of an effort to reconcile the relationship with the father but terminated that relationship at least in substantial part because it became clear to her that the father did not wish to pursue any reconciliation.
Fundamentally, the fact that the mother instigated the shared care arrangement in January to March 2013 against the background of what she had said and done previously, as discussed, places a question mark over the mother’s credit. So too does her subsequent affidavit evidence of the topic.
The fact is that the child has not seen the father since 26 March 2013 when the mother unilaterally acted to bring this arrangement to an end.
At this point it is worth noting the changes that had occurred from the child’s own perspective. From soon after the parental separation he did not see his father for some eight months or so until there was a meeting at his school as will be further discussed below. There was then the July 2012 orders made, earlier referred to, under which the child again commenced spending time with the father on weekends. That then terminated in October 2012 with the making of the further order referred to.
The child then again commenced not only seeing his father but living with the father on a shared care basis for about three months between January and March 2013. Then it has been his experience to have no time with the father at all.
I also interpolate here that in circumstances where the mother alleges that the father is a “flight risk” and might abscond with the child; the history would seem to be completely contrary to that. That is, the father did not act to remove the child from the K School when he discovered in early 2012 that the child was attending that school even though at that time there were no parenting orders in place; and the child had not been included in the domestic violence orders that were made to that point. The father did not otherwise act to remove the child from the mother’s care in that period but brought an application to the Court, even though a lengthy period had passed when he did not see the child.
Perhaps more significantly, despite it being completely contrary to the father’s wishes, when the shared care arrangement was brought to an end by the mother on 26 March 2013 the father did nothing (beyond instituting these current proceedings) to redress the position from his point of view. Clearly, there were orders in place but relevantly the father complied with those orders. That is he did not act contrary to orders that were in place from October 2012 by which the child was to live with the mother and have no time with the father, despite what occurred between January to March 2013.
I do not accept the mother’s assertions to the effect that she genuinely believes that the father presents as some kind of “flight risk”.
Not only did the father, against his own wishes, comply with the mother’s unilateral decision to bring an end to the shared care arrangement on 26 March 2013, it cannot be seen that the father has done anything between then and now as to give any substance to an asserted fear that he would act to remove the child from the mother and is some kind of “flight risk”.
On 27 August 2013 the father instituted these proceedings. He then sought parenting orders by way of final order that the child “be returned” to his primary care but spend equal time with each parent. He also sought permission to be able to return to D Town with the child to live.
The interim orders sought in that application came before her Honour Justice Hogan for hearing on 21 October 2013 and her Honour delivered orders and reasons for those orders on 8 November 2013. In short, her Honour ordered that the child spend time with the father at a Contact Centre on the C Region.
I am satisfied on the father’s evidence that he did all that he could in terms of intake procedures for the relevant Contact Centre. However, when the Contact Centre learned of the father’s criminal history (from the mother’s solicitor) the Contact Centre refused to undertake the relevant supervision and it did not progress.
As I stated in the course of oral submissions on 30 March 2013, I reject the proposition within the mother’s written submissions that the father somehow failed to avail himself of supervised time. The fact is that provision for interim supervised time failed because the Contact Centre would not undertake supervision in light of the father’s criminal history.
Thus it is that the child has not in fact spent any time with the father since the shared care arrangement came to an end on 26 March 2013.
I note in passing, by reference to the reasons for judgment delivered by Hogan J on 8 November 2013 (see [22]) that by reference to the mother’s affidavit earlier referred to, Hogan J was left with the impression that in the period from January 2013 until the end of March 2013 the mother was asserting that the child spent time with the father only on a “sporadic” basis. As already noted, this is clearly wrong and the mother’s evidence in this respect is, at best, disingenuous and misleading.
History of family violence
The definition of “abuse” in s 4 of the Act is as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
As is self-evident, serious neglect of a child constitutes abuse of that child ((d)); and causing a child to suffer serious psychological harm by the child being subjected to, or exposed to, family violence constitutes abuse of that child ((e)).
Family violence is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Self-evidently, when people are in the grip of drug and alcohol addictions (as both parents undoubtedly were from to time during the relationship) their capacity to function normally as people, let alone as parents, is likely to be dramatically compromised.
For example, as is recorded in paragraph 84 of Mr E’s report, the mother acknowledged to Mr E that her daughter Ms O was right to be concerned about the mother’s parenting in 2011 because the mother was using drugs and drinking heavily at the time. This was at a time when the father had entered rehabilitation but he left that rehabilitation early when he became aware that there were difficulties with Ms O when the mother contacted him.
That aside, the evidence of the mother and of her daughter Ms O (further discussed below) is to the effect that even in periods when the father was abstinent from alcohol or drugs, he nevertheless remained aggressive and verbally abusive and exerted control in the household including via excessive means of physical discipline of the child.
Before dealing with the father, by her own acknowledgement the mother was also guilty of perpetrating family violence during the relationship. She admitted to Mr E (paragraph 73 of Mr E’s report) some episodes of her being physically violent towards the father.
There is also within Exhibit 1 the email from the mother’s now adult son Mr M dated 15 September 2011 which relevantly records this (errors in original):
… I have witnessed no domestic violence in the last three years, however they’re [a reference to both parents] are both as bad as one an other when they fight, shit does get heated. Mum has a tendency to start saying that she will use weapons and threatens hurtful things. I also know that if my mother doesn’t have her medication she will definitely be unstable.
…
The mother asserted that this email did not reflect Mr M’s true views but she did not obtain evidence from him, her son, to say that.
I have earlier referred to the mother’s recorded assertions about the father when she discharged herself early from the CC Recovery Centre rehabilitation program.
There is also within Exhibit 1, whilst not being in the category of family violence, evidence of the mother’s historical capacity to act in an abhorrent way involving threats to another person.
The mother created an email account in the name of Ms JJ and sent an email in the name of Ms JJ to a customer of her husband’s computer shop business which was then being managed by the father.
There is an email dated 4 December 2011 which purports to be written by Ms JJ but which was in fact written by the mother using the name of Ms JJ. The tone and the language of the email authored by the mother is troubling and it is as follows (errors in original):
Hello, my husband (tall man with long hair – rides a bike) [Mr N] is not available, you fucking husband stealing whole. Who the fuck do you think you are giving him an open invitation for FREE massage – in lou of free computer work?? – you slut!! You don’t go around offering free body rubs and flirt with married men you desperate pathetic moron. What…doesn’t [Mr KK] do it for you anymore??? You keep trying to hit on married guys like mine and maybe I will go and fuck yours and see how you like some bitch sniffing about your man. You might think you are some hot milf but you are NOT. You’re an old wrinkly peroxide blonde with NO style, you cant compare with us young women. [Mr N] laughed when he told me you were sleazing onto him – in front of your daughter – and said you would have got your pants off there and then you were so hot for him. He said he was disgusted but amused by our blatent attempts and wouldn’t touch you if you paid him. Stay away from my husband and stay away from his computer shop on [LL Street], mole!! I know all about you, where you live, what you do, etc etc so you better just fuck the hell off slag! I suggest you pay your account by mail and find another computer repairer asap because you don’t want me in your life causing strife – and I will if you step one foot in his shop again!!!!!
I note in passing that police became involved as a result of that email and Exhibit 1 includes an email containing the mother’s apology to the woman to whom she had earlier addressed her disgraceful email. Notably within that apology the mother recorded:
…
It does not excuse my actions at all, but I want you to know that I suffer from several chronic mental illnesses.
Currently I am not medicated but my condition is slowly stabilizing.
…
Exhibit 1 also some contains some postings by the mother on a forum website for persons concerned with ADD and ADHD. The mother did not dispute that these were postings by her. Relevantly the posting of 3 July 2008 reads (errors in original):
Hi all! How are you all going? Not well I guess. As we are all a bit screwed up and have a struggle with every day life. Well, my name is Sony and I am a new recruit to the Adult Attention Deficeit Disorder clan. I have Bipolar disorder as well which makes things a little bit difficult for me and my family. I am 33 yrs old and have been through the ringer as far as life goes. Everything has been so confusing and i though that it was everyone else that had the problem and not me. Now i realise that i have a problem and it’s up to me to fix it. My husband is very understanding and my kids are very accepting but they all still have a hard time living with me. i forget things that are important and am very unpredictable. i am aggressive and unpredictable which causes a lot of stress for my family and friends. My main aim is to get some support and assistance from this forum and also to give the same in return. i am a very understanding and supportive person. I am a devout Christian and want to be therew for others with the same condition as me. I just got a call from my husband so i gotta go. hope to hear from you all soon. Help and support is what I need. I will give whatever is neded to others if it is if my copacitiy. Love …………..[Ms Snell]
There is a further posting by the mother dated 3 October 2008 which reads as follows (errors in original):
Hi [Ms MM], I’m [Ms Snell]. Your symptoms are the same as mine, except that i get very agitated about small things and explode at my husband on a regular basis. My psych told me a couple of weeks ago that i have ADD and bipolar. He said that the 2 are almost impossible to tell apart and that only the medication, once tried, will say for sure what the problem is. I have to wait till my next visit for the medication as he said to go home and research them and choose which one i want to start on. The are dexamphetamine; lithium and carbamazepine. I have looked them up and found that the last 2 cause huge weigh gain so i’m gonna try the first one and see how it goes.
Try looking up your medication on “wikipedia”. They have a lot of info and also links to other sites where you can get more information.
In meeting the case advanced against him, the father tendered in evidence previous affidavits filed by the mother in proceedings concerning her son BB as between the mother and BB’s father, Mr NN. The father contended that those affidavits contained sworn evidence of the mother at odds with the assertions made by the mother in these proceedings as against the father.
Upon review of those affidavits it would seem that the following are the relevant assertions (errors in originals):
Mother’s affidavit filed 20 July 2014 at paragraphs 1, 3 and 4 as follows:
1.[Mr NN] and I were having a heated discussion about my contact with BB in May 2004. I became upset and asked [Mr Snell] to try and reason with [Mr NN] on my behalf. [Mr NN] became angry, yelling at [Mr Snell]. [Mr Snell] asked him to settle down so they could work out an agreement. [Mr NN] became irate and continued abusing [Mr Snell]. They argued but no threats were made.
3.[Mr Snell] has not made any threatening phone calls. In fact the only contact [Mr Snell] has made has been in the attempt of reconcilliation between [BB] and his family.
4.Our family have strong loving relationships, we are in constant contact with [Mr AA] and [Mr M] by phone and mail. [Mr Snell] and I provide a loving and stable home environment.
(Obviously, this affidavit pre-dates the November 2014 incident discussed below).
Mother’s affidavit – interim residence, contact or specific issues order filed on 21 October 2015 at Part F – Care of Children, page 13, fourth paragraph:
My husband [MR SNELL] has an extensive criminal history involving drug and alcohol related violence. After his imprisonment in November 2004 he went in Rehab. We reconciled after he was released from Rehab because he indicated to me a commitment to changing lifestyle as I have. He has demonstrated the sincerity of that commitment to me since our reconciliation.
Mother’s affidavit filed 13 August 2007 at paragraphs 368, 397, 398, 404 – 406, 410 – 412, 414, 428, 429, 451 and 452:
368.[Mr Snell] supported me in the drug screening and attended also. All of [Mr Snell]’s drug tests also returned negative results.
397.However, despite [Mr Snell]’s history with the assistance of our church and our faith we have been able to turn our lives around.
398.In January 2005 [Mr Snell] began attending rehabilitation and since that time he has not used drugs, alcohol or committed any criminal offences.
404. [Mr Snell] completed a Certificate IV in an Alcohol and other Drug course in 2006. He completed this course in 2006 and subsequently held full time position at the YAAMBA Drug and Alcohol skills and Training Centre, as a support officer, for five months.
405.[Mr Snell] has completed the required training to work on the voluntary Drug Arm service in D Town. [Mr Snell] is able to apply for a Blue Card issued by the Commission for Children and Young People in November this year.
406.Once he has obtained a Blue Card [Mr Snell] will be able to work on the Drug Arm Outreach Service van assisting people with substance abuse problems and homelessness.
410.[Ms O] and [Mr Snell] are very close. They attend Aikido lessons together and [Mr Snell] often helps [Ms O] with her school assignments and homework. [Mr Snell] also takes time off work to attend [Ms O’s] parent teacher interviews with me.
411. [Mr Snell] has a great sense of humour and is now very patient.
412.Especially recently when we were having problems with [Mr M] [Mr Snell] was very calm and dealt with the situation in a very tolerant way.
414. [Mr Snell] is a doting father to our son the child.
428.[Mr Snell] has a good relationship with all of my children. My eldest son [Mr AA] frequently drops in to see us and has a good relationship with [Mr Snell].
429.Even when we are dealing with the problems that arose between [Ms O] and [Mr M] [Mr Snell] was supportive and we made decisions together that we thought were in the best interests of our family as a whole.
451. I have also seen a lot of changes in [Mr Snell].
452.He is also very willing to facilitate a relationship with [Mr NN] to see if we can work amicably to make arrangements for [BB].
Whilst the father did not put specific paragraphs from any of the mother’s earlier affidavits to her in cross-examination, he did put the general proposition that her evidence in those affidavits could not be readily reconciled with her evidence in these proceedings. The mother seemingly accepted that there were irreconcilable differences, but I gained the clear impression from the dismissive nature of her answers to the father that what she said in those earlier proceedings could be explained by the need as she perceived it to achieve the objective rather than necessarily being completely accurate or truthful. That of course poses difficulties for accepting all the mother has to say in the current proceedings.
There is no doubt, however, even on the father’s own admission that within the first 12 months the parents were together in 2004, there were episodes of severe family violence perpetrated by the father.
The father explained that he was a “blackout drinker” at this time meaning that he would drink to the point of intoxication that he had no real recollection for events. He had some recollection for one event, which will be discussed shortly, and acknowledged that it occurred. By reference to his position concerning being a “blackout drinker” the father’s position was that whilst he could not remember other episodes in 2004, he could not dispute that they occurred.
On 28 November 2004, in circumstances where the mother had apparently indicated to the father that she was leaving the relationship, she was reversing her motor vehicle when the father stopped the car by opening the door. The father began yelling, “How could you do this to me you fucking cunt. I’m going to kill you.” The mother began calling out for help. The father then assaulted the mother in a most violent way by punching her with both hands with a closed fist causing her injuries including broken glass from her glasses becoming embedded in her skin. Fortunately for the mother a neighbour intervened and the police were called. Perhaps the most troubling feature of this entire episode is that it played out in the presence of the then nine year old Ms O, the mother’s daughter.
The father spent some six months imprisoned for convictions with respect to this event. Notwithstanding its occurrence, the parents subsequently reconciled their relationship.
I interpolate here that many of the particulars of the mother’s case concerning family violence were not contained in her affidavits relied upon for the trial but were elicited by counsel for the ICL when cross-examining the mother in testing her case concerning the issue of family violence. That led to the need for the father to have the opportunity to cross-examine the mother on the particulars she gave in oral evidence, as well as the father being re-called to give evidence in chief responding to the allegations.
Without traversing all of them, there were two other incidents in 2004 referred to by the mother which the father did not deny, again on the basis that because of his alcoholism and that he is a “blackout drinker” he had no recollection of the incidents.
By the mother’s description on one occasion the father grabbed her by the throat and threw her to the ground. On another occasion the father grabbed her by the throat and by her description “smashed” her into a wall. Beyond occurring during the course of 2004 it was unclear as to precisely when those events occurred, but the mother referred to two of the three incidents that occurred in 2004 as occurring in the presence of Ms O. I accept that these events occurred as described by the mother.
Clearly there was serious family violence perpetrated by the father during 2004 and particularly significant was the episode of the assault upon the mother in Ms O’s presence leading to the father’s conviction and imprisonment.
The mother gave evidence as to an event at dinner when her son Mr AA, then aged 15 or 16 years, was present. Some point or points of difference arose between Mr AA and the father. These were not specified by the mother, nor by the father in relation in his evidence in relation to this event. By the father’s description Mr AA was being, to adopt my own term, “oppositional”.
This culminated in the father challenging Mr AA to go into the backyard of the home and engage in a fist fight to sort out their differences. The father described himself as 5 foot 10 inches tall and weighing 95 kilograms when fit as he apparently was at this time. The mother emphasised in her evidence that Mr AA was only 15 or 16 years old at the time and there was obviously a substantial disparity between Mr AA on the one hand, and the father on the other, physically.
Understandably Mr AA did not take up the father’s challenge but on the father’s evidence it was indeed a challenge seriously made. The father’s evidence revealed that he could really see nothing wrong with resorting to a physical fight to resolve the differences between he and Mr AA that arose.
As already noted, each of the mother and the ICL urged the proposition that the father does stand to be judged by reference to his conduct throughout these proceedings.
It is clear, as the ICL submits, that the father was keen to portray himself as a victim and was keen to voice his protest directed to the Court and all involved as being complicit in his victimisation. Indeed, at times it was difficult to discern whether the father was more focussed upon using these proceedings as a venue for mounting his protests as opposed to any focus at all upon parenting orders with respect to the child.
The father emphasised, rather than attempted to conceal, the postings he has made on Facebook and his intention to upload to the Internet anything he possibly can related to the proceedings in pursuit of his protest. Attempts were made to explain to the father that provisions such as s 121 of the Act and of the Federal Court Proceedings Act are designed to protect the privacy of persons and their reputation. I attempted to emphasise that it was in the child’s best interests that his privacy and reputation be maintained. I attempted to point out to the father that he was perfectly entitled, in a democracy, to mount whatever criticisms he chose to mount about the Court or the system as he perceived it, but that the child’s best interests dictated that he not be identifiable by third parties accessing this information via the Internet. Those attempts were unsuccessful in that the father made it clear that he was not prepared to remove postings on Facebook and he maintained his position that he would upload to the Internet anything he possibly could relating to these proceedings.
It is clear from the father’s criminal history that he has historically had significant difficulties with any authority figures. He told Mr E that his criminal offences largely related to offences against police officers or in the context of engagement with police personnel.
As compared with the father’s grossly abnormal and extreme behaviours in Court there is a body of evidence in the father’s case supporting the father’s proposition that outside of the Court environment and these proceedings, the father does not in fact conduct himself in any similar manner.
It is utterly wrong, and completely disingenuous, for the father to assert as he does in his written submissions that I refused to allow any witnesses the father sought to rely upon to give evidence. Indeed, the Court and with respect to them, both the ICL and the solicitor for the mother, went to significant lengths to accommodate the father in this respect.
The only affidavit (other than his own affidavits) the father had provided in advance of the trial was that of Ms W. With the cooperation of the ICL and the mother, admitted into evidence by consent as Exhibit 1, were statements of various witnesses including Mr N, Ms JJ, Ms P, Mr Q, Ms R, Ms S, Mr T and Pastor U.
When the father indicated at the trial that he intended to call one or more of these witnesses to provide further evidence beyond what is contained in their statements, after initial objections by the ICL and the mother, there was further accommodation provided to the father. He was invited to outline particulars of the further evidence each of those witnesses would give. He also referred to evidence from his sister Ms QQ. In each case the father was assisted in providing particulars as to what further evidence any of those witnesses would provide.
Once that process was completed, each of counsel for the ICL and the solicitor for the mother confirmed that their respective parties would not take any issue with any of that evidence. That is, all of that evidence was the subject of admissions without the need to produce any of those witnesses for
cross-examination.
Thus it is that the Court received all of that evidence in its expanded form, and as the evidence goes unchallenged it is open to be accepted, and on that basis the father’s contention in his written submission as referred to, has no substance.
Mr N and Ms JJ own a computer repair business in D Town. They have at times employed the father in that business. Mr N refers to his knowledge of the father over the period of five years to October 2011 and it is admitted that his evidence in expanded form would be a continuum of what is contained in his statement in Exhibit 1 concerning the positive statements he makes about the father. Both of Mr N and Ms JJ also address in their evidence the mother’s abhorrent behaviour earlier discussed of her pretence in creating a fake email address and sending a threatening message to a customer of the business.
These witnesses also speak of their observations of the child as a normal little boy in attempting to address the issue of his diagnosis of ADD or ADHD. Given my findings in that respect it is unnecessary to further address these aspects of that evidence.
Ms QQ’s evidence is admitted. Her letter was admitted as Exhibit 4. She had the opportunity to observe the father and the child’s interaction over the period between January and March 2013 and she has never observed anything of the child that would suggest behaviour beyond the normal behaviour of any boy of his age and his stage of development. She speaks of the positive relationship between the child and his father and that she decorated and designed a bedroom for the child at the father’s instigation when the father commenced to live on the C Region.
Mr Q is a long-term friend of the father who speaks of the father’s loving nature with the child and of his observations of the father/son relationship and interaction on the occasions he has observed in the period between January to March 2013. Mr Q is also a member of the Fellowship which the father engaged in and he had the opportunity to make his observations of the father also in that setting.
I have earlier dealt with the evidence of Ms P. The only further or expanded evidence from Ms P is to the effect that she never observed anything untoward in the interactions between the mother and father in that period and did not observe the mother to be frightened or scared of the father in that setting.
Ms R, who the father describes as his mother or foster-mother, also provided a statement by email which is part of Exhibit 1. It is admitted that her expanded evidence is that she too had the opportunity to observe the child with the father in the period immediately after the relationship broke down in May 2011. Her further evidence is that when she had the opportunity to visit the family home in D Town, which was quite often, she did not make observations to the effect that the mother was anxious or scared or nervous in the father’s presence. She had the opportunity to make observations for periods of about 10 days on visits to the family home on two or three occasions.
Ms S is a member of the AA Fellowship participated in by the father and her evidence has already been commented upon. Ms SS had the opportunity to witness the father’s parenting of the child in the period from January to March 2013; she attended most of the AA meetings that the father attended in that period; he was attending three mornings a week during that period; and Ms SS observed him then and on two visits to the father’s house; and on all occasions she observed him to be loving and caring of the child.
Pastor U also provided a statement which forms part of Exhibit 1. The expanded version of his evidence which is admitted is that he has never witnessed any violence, any abuse, verbal abuse, or anything else between the mother and father.
As earlier noted, Ms W did provide an affidavit in the father’s case and she also provided oral evidence in the trial.
The particular significance of Ms W is that she became the partner in a relationship with the father from late October 2011 and that relationship subsisted until not long before the trial albeit that it was in the context of changes in the father’s location at times. She confirmed a cumulative period of about two years as the period the parties were living together. Both the father and Ms W confirmed that the relationship ended on good terms and that the father and Ms W remain on good terms with each other.
One impressive feature of Ms W’s evidence is that after the shared care arrangement commenced in January 2013, Ms W encouraged the father in the idea that he might consider reconciliation with the mother in his and the child’s interests.
I have earlier noted Ms W’s own experience of working in a day care centre and currently as a dental nurse and more particularly as the mother of her own three children who live in a shared care arrangement between Ms W and their father. As earlier noted, as at the time of swearing her affidavit on 30 May 2014, Ms W’s children were aged 16, 14, and 10. It follows that when her relationship with the father commenced in October 2011 those children would have been about 13, 11 and 7 years of age respectively.
Ms W sought to emphasise to the Court that the presentation of the father in Court was likely to be completely different to how the father presents and conducts himself in normal everyday life.
I have earlier discussed in relation to Ms W’s evidence her observations as to the interactions between the child and the father. In this context, what is significant about Ms W’s evidence is that she and the father lived together for a cumulative period of about two years. Ms W had ample opportunity to make observations of the father particularly in difficult circumstances for him where he was not seeing or spending time with the child and the stress of these proceedings was in the background. Ms W accepted the proposition that any children can be testing of parents from time to time and that was no different with respect to her own children. Ms W particularly referred to her oldest daughter as being a “very strong-willed girl and likes to push many boundaries”. Whilst she described the father’s method of parenting as “old school” she never once had any worry with her daughter as regards the father. She acknowledged that every now and then they would “butt heads” but that nothing in the father’s conduct towards her daughter caused her any concerns whatsoever.
Ms W also referred to the pizza nights or dinner nights that occurred
post-separation of these parents which were attended on some occasions by each of Ms O and her brothers Mr AA and Mr M.
Ms W also gave evidence of an occasion when she collected the child from the mother’s house. She confirmed that the mother was not negative towards her and indeed she was actually made to feel quite comfortable. She was welcomed into the home and sat on the lounge and spoke to both the child and his mother.
Ms W had also had the opportunity to inspect the room prepared in the home of Ms QQ by her and made positive observations as to the adequacy of that accommodation. Ms W explained in her oral evidence that the father and mother appeared to be getting on so well in the period between January and March 2013, and because the child was apparently enjoying having both parents, was the reason she suggested that for the sake of the child having a family, a reconciliation ought be attempted.
Ms W gave evidence as to the stress upon the father of the events that unfolded post-March 2013 and in relation to these proceedings. She confirmed that the father’s stress had resulted in him losing some 20 or 25 kilograms in weight. She agreed that he had become reliant upon antidepressants over a period of about 18 months. Ms W confirmed that the father had visited psychologists and had engaged with Alcoholics Anonymous “constantly” to seek support in dealing with the stressors.
Ultimately, Ms W confirmed that notwithstanding the degree of pressure it was obvious the father was under, she maintained her evidence that she never had a concern about the father’s behaviour towards her children. In contrasting the father’s conduct in Court to his conduct elsewhere, Ms W said:
[Mr Snell] is showing you a very different side to anyone else that he would show to. His – this is his son. He has been going through this for three years, and I can guarantee you, any of you men in there, if you weren’t allowed to see your son because of a complete stranger telling you you can’t, I’m pretty sure you would be damn angry too. I consider [Mr Snell] to be a marshmallow. Okay?” That’s how I describe him, as much as he hates me saying it. He has got a heart of gold. He would do anything for anyone, including his son. He would bend over backwards to see him. I – I have been married for 20 years before this, and never once did I feel as much love as what I did from him.
In cross-examination by counsel for the ICL, Ms W confirmed that she has never made a complaint to the police or any authority about the father’s conduct towards her or anybody else.
Cross-examination of Ms W by the solicitor for the mother confirmed that Ms W was aware of the father’s criminal history and his history of alcohol/drug abuse and that her evidence was given with knowledge of these aspects.
Resolution and orders
In my judgment the s 60CC considerations are overwhelmingly in favour of an order that the child continues to remain in the primary care of the mother. The preceding discussion and many of the findings already recorded within that discussion resonate with most, if not all, of one or other of the s 60CC considerations and it is unnecessary to repeat them.
It is clear that the mother has historically had significant emotional and psychiatric vulnerabilities for which she requires ongoing treatment and support. She has demonstrated by her evidence that she has insight into these vulnerabilities and her need for medical support and assistance and it is clear that she has availed herself of such assistance.
She engages regularly with her treating general medical practitioner and perhaps more significantly has now engaged for a lengthy period with her treating psychiatrist Dr Z.
The mother has acted to achieve stability of circumstances for the child. More particularly, she engaged with Ms RR to pursue therapy to address issues in her relationship with the child, particularly the attachment issues referred to in the written records of Ms RR and as referred to by her in the oral evidence she gave at trial, which I accept.
As already discussed, the mother has appropriately and diligently engaged with mental health professionals to address the child’s issues of anxiety and ADHD. That seems to have been successful given the evidence sourced to the school/Education Department relating to the child’s improved school performance. The child himself conveyed to Mr PP during his interview with Mr PP that the child found the medication to be successful in helping him.
In my judgment, the mother is to be given significant credit for the stability of circumstances she has achieved for the child and the fact that she appears to be diligent in addressing both her own medical health issues as well as those for the child.
The history of care arrangements establish, particularly in circumstances where the child has lived exclusively with the mother since March 2013, that the mother represents the child’s primary attachment figure and is the parent he currently looks to for his sources of support and stability. The child is also able to maintain, in the mother’s care, his continuing relationships with the mother’s older children.
Now more than a year ago, Mr PP made the assessment in his observations of the child with the mother that their interaction supports the conclusion that the child is able to obtain support and comfort from her and that the child has a close and dependent relationship upon his mother.
There would obviously be significance for the child of any changes in his current circumstances including with respect to any separation from his mother and his current circumstances. The child has been assessed as having anxiety and ADHD and he has endured more than his fair share of changes in his life to date, given the history earlier discussed. Thus it is that regard must be had to the likely effect of changes for the child of any orders for time and communication with the father.
It is clear that there is benefit to the child in maintaining his meaningful relationship with his mother and in the circumstances that she has now achieved there would appear to be no need to protect the child from any risks in her care.
Plainly, orders for the child to continue to reside primarily with the mother would be consistent with the views he has expressed given his close and dependent relationship with the mother.
For the reasons already discussed the mother has fulfilled her obligations to maintain the child and has demonstrated capacity to provide for his needs including his emotional and intellectual needs.
The mother has a now demonstrated positive attitude to the child and to her responsibilities of parenting the child.
In my judgment, the mother’s current unwillingness to contemplate the child spending any time with, or communicating with, the father is to be viewed in context. That context includes:
a)The mother was the victim of gross acts of physical violence perpetrated by the father during the relationship;
b)The mother, and her children, were victims of the father’s pattern of controlling and coercive behaviours during the relationship;
c)The mother witnessed during the relationship the father’s propensity to engage in verbally and physically violent confrontations;
d)The mother witnessed the father exerting excessive discipline upon the child who, it is to be noted, was only four years of age when the parties separated in mid-2011;
e)The father’s refusal, in advance of this trial, to participate in a proposed regime of drug testing of both parties; his opposition to undertaking an independent psychiatric assessment of both parties; and his refusal to participate in the family report process; all of which denies the mother (and the Court) those sources of evidence of the father having effected real change;
f)The mother is aware of the father’s postings to his Facebook page at least some of which are threatening and intimidating.
In terms of the mother’s capacity to parent the child, whilst she referred to risks for her given her vulnerabilities of there being any time or communication between the child and the father (and Mr PP also referred to that in his report), there is in fact no medical evidence before me that the mother is likely to decompensate or for her parenting capacity to be compromised if there are any orders at all for time and communication between the child and the father. As already noted, the mother has been treated now for a long time by Dr Z psychiatrist. There is no evidence provided from Dr Z to the effect that the mother’s parenting will be compromised or that she is likely to decompensate if there are orders for time and communication for the child and the father.
Given the findings I have made as to family violence the presumption as to equal shared parental responsibility is rebutted and I do not propose to make an order for the parents to have equal shared parental responsibility.
Aside from the feature that there is no realistic prospect of these parents communicating in the manner envisaged by s 65DAC, I am satisfied that that inability would bring about, immediately, an issue as to the child’s medical diagnoses. Given my findings concerning the mother’s diligent efforts in this respect, and the fact that it is in the child’s best interests that he remain primarily residing with the mother, I am satisfied that it is in the child’s best interests for there to be an order for the mother to have sole parental responsibility.
Having observed the extraordinary manner in which the father conducted himself throughout the seven (7) days of the trial of these proceedings (including in the circumstance that several federal police officers were present) I cannot be satisfied, in the absence of current expert medical evidence in relation to the father, that this is explained away entirely by the father’s professed need to mount a protest and to display his anger and resentment at the Court and all involved with the Court.
Put another way, at least the possibility that there is an underlying mental health reason contributing to the father’s manner of conduct cannot be excluded. However, absent expert medical evidence I am not able to resolve that question one way or the other. What does seem clear is that the father’s longstanding issues with authority remain, and questions then arise as to the kind of role-modelling the father would provide to the child concerning authority or authority figures.
With respect to the father’s mental health status I place no weight on either the psychiatric report of Dr X dated 18 November 2001 nor upon the psychological report of Ms Y. The latter report is undated but the reference in it to the father’s age dates it as having been prepared in 2000 or 2001, some 14 or 15 years ago; and so too Dr X’s report was prepared in 2001 and for other reasons already referred to is not a report upon which I intend to place any weight.
The father deliberately chose, in advance of this trial, not to cooperate in attempts to have up to date psychiatric assessments available. Whilst there are references in his evidence to attending upon a psychologist, he would not disclose the identity of that treating professional and there is no evidence otherwise provided in the father’s case.
Given the lapse of time between the report prepared by Ms Y; and more particularly that within that intervening period the father by his own admission has engaged in further criminal conduct as well as abuse of alcohol and drugs for extended periods since that assessment was undertaken, I cannot legitimately place any weight upon that historical report.
I am satisfied, notwithstanding some reservations expressed with respect to the mother’s evidence, by her evidence and more particularly the evidence of Ms O that aside from physical acts of family violence, the father perpetrated family violence in the manners discussed in which he coerced or controlled members of the family during the period the parents were together. Plainly the child was exposed to family violence perpetrated by the father.
The critical question is whether the child spending time with or communicating with the father would pose any unacceptable risks to the child including exposure to the father’s manner of conducting himself. If there exists any unacceptable risk the question is then whether there are orders that can be made that address the risk to reduce it from being an unacceptable risk.
In my judgment, the father was sincere in the evidence he gave to the effect that he has put his unfortunate past behind him, both as regards his criminal past and as to his abuse of alcohol and drugs. I accept that the father loves the child and wants the best for the child.
More particularly, I accept the father’s evidence that he would not wish to see the child repeat, in any way, the mistakes the father acknowledges that he has made.
The evidence in the father’s case, particularly that of Ms W, supports the proposition that the father has had success in conducting himself differently than the manner of his conduct during this relationship. Importantly, part of that relates to the period between January to March 2013 when the shared care arrangement subsisted. Importantly too, Ms W’s observations of the father occurred over the lengthy period he was not seeing the child and against the background of these proceedings.
Even by the mother’s own evidence (her letter to the person Mr GG) when the father is “clean and sober” he is capable of normal and appropriate interactions with the child. That is also evident from the report of Mr E and various sources of evidence. In particular, Ms W gave very positive evidence, which I accept, as to the manner of the father’s interaction with the child during the January to March 2013 period.
There cannot be any doubt that the father loves the child and, provided that the father maintains appropriate conduct in the child’s presence, that the child would benefit from having a meaningful relationship with the father. The essential reservation is the question whether the father can maintain such conduct consistently over any lengthy period in the child’s presence.
In my judgment, and particularly absent the independent sources of evidence referred to, there is a need for a conservative approach to balancing the benefit of the child achieving and maintaining a meaningful relationship with the father, but at the same time addressing any potentially unacceptable risk to the child of his interaction with the father, or his exposure to the father’s conduct when that descends into aggressive or violent kinds.
In my judgment that balance can be achieved by providing for regular periods of day time interaction between the child and the father.
Obviously, in circumstances where the child has not seen the father since 26 March 2013; and he was expressing the things he did express negatively about the father to Mr PP; there is a need for a gradual reintroduction to the child of having the father in his life.
For that reason I propose to make an order pursuant to s 65L of the Act so that via the Child Dispute Services within this Registry there is opportunity for the reintroduction to occur.
Thus it is that in my judgment, the balance between the child achieving and having a meaningful relationship with the father, but at the same time meeting any unacceptable risks, would be achieved by the child continuing to live primarily with the mother and having some time and communication with the father in a manner and to an extent which addresses such risk.
Historically, the child has exhibited views to the effect that he is positive about having some relationship with the father. His more recent negative views expressed to Mr PP, such as the risk of the father abducting him, do not seem to be borne out by the father’s actual past conduct but rather apparently reflect the views of an anxious child who takes up his mother’s views. Mr PP expressed the opinion, which I accept, that the child has been exposed to these or similar views in the mother’s household.
There is, within the evidence attending the child’s attitude to the father as earlier discussed; an underlying foundation for both the child being willing to spend time and have communication with the father and him achieving the benefit of having a meaningful relationship with his father, subject to the father’s manner of conduct.
The fact is that the father has not had a relationship with the child since 26 March 2013 which is a long time in the life of a child of the child’s age. As noted, the father refused to participate in the family report assessment process which might have further addressed this aspect.
It thus cannot be said that currently the child has a strong or any real relationship with the father but it seems that there is a historical foundation for a relationship to be renewed, within the constraints already referred to, exists.
I have given careful consideration as to whether the child’s time with the father should be limited to time in a supervised setting. In my judgment, supervision would not be necessary to address any relevant risk. I reach that conclusion for these main reasons:
a)If the father has the opportunity to maximise the quality of the time he spends with the child in the periods contemplated, the limited nature of those periods of themselves are an inherent safeguard;
b)On the evidence of Ms W, which I accept, the father demonstrated a capacity during January to March 2013 of interacting well with the child and not having to resort to physical means of disciplining him;
c)The evidence of Ms W more particularly confirms that the father has demonstrated changes in his manner of conduct, albeit outside any setting relating to this Court (or the Federal Circuit Court) or these proceedings.
In circumstances where both parents now seemingly reside in the C Region or South East Queensland area, the practical difficulty and expense of the child spending time with the father really rests upon the manner in which that time is spent and where changeovers occur. It is not likely that any contact centre would be available to the parents given the father’s criminal history but in any event I am not persuaded that on balance supervised contact or time, to the extent I intend to make orders for such time, is necessary to guard against any risk as earlier referred to.
In my judgment, if changeovers occur at a public place with closed circuit television there is adequate protection for the parents and there is no reason that the mother cannot enlist a support person if she feels that need. The parties should be at liberty to record changeovers as an added means of protection.
I am satisfied that the mother acts appropriately with respect to dealing with the child’s medical conditions. I am not satisfied that the father would so act. For reasons earlier discussed, it seems to me that the father remains implacably opposed to even the idea that the child suffers from the medical conditions that his medical specialist has diagnosed. Whilst I propose to make an order that the father comply with any written directions of the mother concerning the child’s medication, I am by no means confident that the father will in fact comply given his entrenched views about this issue. In circumstances where the duration of time the child spends with the father will be limited in the manner proposed, that should address this issue in any event.
I do not propose to make injunctive orders of the kind advanced by the mother in terms of the father filing any further parenting application. However, the orders I make are final orders. If the father elects to pursue further parenting proceedings he will face the initial hurdle of what is known as the rule in Rice v Asplund (1979) FLC 90-725 of demonstrating significant or sufficient changes in circumstances as to justify any Court exercising jurisdiction under Part VII entertaining such an application. It seems to me that at the least that would involve the father in obtaining a comprehensive psychiatric assessment with that expert being fully informed as to the full history of the father including relevant evidence within these proceedings.
On balance, I am satisfied that the competing considerations require that orders be made in the child’s best interests for him to have some time and communication with the father, but that this be limited to daytime periods only in the absence of the father having demonstrated, by expert evidence, that there is no underlying issue concerning his mental health which impacts upon his capacity to provide consistent and appropriate care for the child over more extended periods; and which establishes that the father has indeed successfully brought about and maintained significant changes in his manner of conduct as compared to that manner historically.
Section 68B of the Act provides the source of power for the Court to grant such injunctions in relation to a child as the Court considers appropriate for the welfare of the child.
I accept the submissions on behalf of the ICL that it is in the child’s best interests and in his welfare for there to be an injunction requiring the father to remove the Facebook postings which identify the child or the mother. Both of them are entitled to their privacy and to their reputation. It would not be in the child’s best interests, given the age he is reaching, for school associates or friends to be able to access information personal to him on the Internet because it has been posted by the father. I therefore intend to impose such an injunction as a condition upon the other orders for the father to have time and communication.
I decline to make the order sought by the ICL to the effect that it should be left to the mother to determine when the child has time and communication with the father. In my judgment, it is important that a balance be achieved between any risk within the meaning of the second of the primary considerations expressed in s 60CC(2) but at the same time preserving the scope for the first of those primary considerations to have effect. That ought not be in the exclusive preserve of the mother’s choice in the circumstances of this case.
That noted, the mother will have the protection that the father is unlikely to enjoy success in pursuing further parenting applications or proceedings unless he can show a substantial change in circumstances. In the context of this case that would likely involve the father, at the least, presenting comprehensive psychiatric evidence addressing relevant issues including issues surrounding his history of family violence.
I am conscious that the orders I propose to make may not eliminate the need for further proceedings in the future, but in a context where the father will have to meet some onuses, which he did not meet in the current proceedings as to independent investigative processes, that would seem the only means currently available to eliminate further proceedings.
For essentially the same reasons as expressed previously in relation to the father’s applications for recusal or discharge of the ICL (which I incorporate in these reasons without repetition) I dismiss the father’s further applications within his final submissions that the ICL be discharged and that I recuse myself for bias. As explained above, the father was not in fact denied the reasonable opportunity to present evidence; nor has the father demonstrated incompetence on the part of the ICL to warrant discharge.
For these reasons I make the orders set out at the commencement of these reasons.
I certify that the preceding three hundred and thirty-four (334) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 1 June 2015
Associate:
Date: 1 June 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Standing
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Costs
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