South and Pritchard

[2017] FamCA 62

FAMILY COURT OF AUSTRALIA

SOUTH & PRITCHARD [2017] FamCA 62

FAMILY LAW – CHILDREN – best interests- where the mother seeks sole parental responsibility and for the children to spend no time with the father – where the father seeks equal shared parental responsibility and for one child to live with him – where the father has consistently failed to attend supervised time with the children – where the father has not complied with relevant Orders and trial directions - where the father is unable to protect the children from his views and belief system – where the father poses an unacceptable risk of harm to the children – where the children are to spend no time with the father

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Re: H & Ors (1996) 1 All ER 1
M & M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375
In the Marriage of N & S (1996) FLC 92-655
SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr South

RESPONDENT: Ms Pritchard

INDEPENDENT CHILDREN’S LAWYER: Jan Kingston

FILE NUMBER: BRC 9848 of 2013

DATE DELIVERED: 10 February 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 1 February 2017

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITOR FOR THE RESPONDENT: James & Co. Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. Ms Pritchard (“the mother”) shall have sole parental responsibility for B born … 2003 and C born … 2005 (“the children”).

2. The children shall live with the mother and spend no time with the father.

3. All previous orders are discharged and all extant applications are dismissed.

4. The Independent Children’s Lawyer is discharged.

5. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. These particulars are included in this Order.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9848 of 2013

Mr South

Applicant

And

Ms Pritchard

Respondent

REASONS FOR JUDGMENT

1. Mr South (“the father”) and Ms Pritchard (“the mother”) have two children together, B born in 2003 and C born in 2005 (“the children”).

2. Unfortunately for the children, the father and mother have been in dispute about their care for most of their lives.

3. The father is seeking an order for equal shared parental responsibility and for B to live with him and spend time with the mother during school holidays (if he chooses to do so) and for C to live with the mother and spend holiday time with the father.[1] In the alternative he proposes an order that the children spend holiday time with him.[2]  

   [1] The precise terms of the order sought are set out in the amended Initiating Application filed 31 January 2017

   [2] The father’s alternative proposal was given in oral evidence

4. The mother is seeking an order for sole parental responsibility and for the children to continue to live with her and spend no time with the father.[3] In the alternative she proposes a continuation of supervised time at D Contact Centre with conditions requiring notice etc. 

   [3] The precise terms of the order sought are set out in the amended Response filed 18 January 2017

5. The Independent Children’s Lawyer proposes the mother have sole parental responsibility and for the children to continue to live with her and spend no time with the father but that he be at liberty to communicate with the children by post on two occasions each year.[4]  

   [4] The precise terms of the order proposed are set out in the Case Summary filed 24 January 2017

background

1. On 19 November 2008 a final parenting order was made providing for the parents to have equal shared parental responsibility and for the children to live with the father each alternate week from Wednesday afternoon to Friday afternoon and each other week from Friday afternoon to Sunday afternoon and to live with the mother at all other times (“the 2008 order”).

2. The 2008 order also provided for the father to attend upon a mental health care professional and to continue to so attend for as long as recommended by that person. There is no evidence that the father has done so.

3. On 31 October 2013 B broke his arm while in the care of the mother’s husband, Mr Pritchard (“Mr Pritchard”).

4. On 1 November 2013 the mother took B to hospital upon discovering his arm swollen and painful. This had not been the case on 31 October 2013. Upon being informed that B’s arm was broken the mother informed the father.

5. On 2 November 2013 the father recorded a question and answer session between himself and B about the 31 October incident.

6. On 3 November 2013 the father made a complaint of child abuse against Mr Pritchard to police and the Department of Communities, Child Safety and Disability Services (“the Department”) alleging that Mr Pritchard had intentionally broken B’s arm.

7. On 6 November 2013 the mother collected B from E School to take him to a fracture clinic appointment. The mother told the school that Mr Pritchard was “no longer living at the house at the moment”.  

8. It appears the children returned to the father shortly thereafter and he then withheld the children from the mother citing the 31 October incident. The father filed an Initiating Application on 12 November 2013 seeking an order that B live with him. The father then enrolled both children in a new school.

9. On 29 November 2013 an interim order was made by consent returning the children to the mother’s care and providing for the 2008 order to continue in force. An order for a family report was also made.

10. On 24 January 2014 the Department advised the mother that their investigation in relation to concerns received about the children had concluded with an outcome of “unsubstantiated – children not in need of protection. … the children have not suffered harm of a significant nature at this time. … [the mother] assessed … [as] a parent that is able and willing to provide for the care and protection needs of [the] children”.

11. On 7 March 2014 a family report was prepared by Ms F, a social worker with some twenty years’ experience at the time of her report, who recommended a continuation of the 2008 order and a further family report within three to six months despite opining:

    12.4 …I do consider that the father should obtain an assessment of his mental health before the court could consider the child being placed in his care without supervision.

12. On 19 May 2014 an order was made by Judge Coates of the Federal Circuit Court reducing the children’s time with the father to two hours each fortnight to be supervised at D Contact Centre in G Town, where both parties then lived.

13. After a psychiatric assessment of the parties by Dr H in December 2014 and a family report by family consultant, Ms I on 2 April 2015 the matter was transferred to this Court on 5 May 2015.

14. On 30 August 2016 the matter was listed for trial and trial directions were made.

15. The father spent time with the children in the supervised setting for a total of eight hours between July 2014 and 31 December 2014 and a total of two hours between 1 January 2015 and May 2015. He has not spent any time with the children since May 2015.

16. The father is thirty-eight years of age and the mother is thirty-one years of age. The father and mother commenced a de facto relationship in about 2001. The parties do not agree on when they separated on a final basis, the father contending final separation occurred on 1 February 2004 while the mother contends final separation occurred in May 2005. Nothing turns on that in these proceedings.

17. The father lives at an undisclosed address[5] in the J Town area, near K Town, Queensland. He moved from G Town in mid-2016. Prior to his move he lived around the corner from the D Contact Centre.

    [5] The father’s actual address is held in a sealed envelope by the Court marked for “Judges’ eyes only”.

18. The father currently lives in a rented property with his daughter L aged four. The father had a brief relationship with this child’s mother, Ms M. It is not apparent where Ms M lives or whether she spends any time with L. L apparently attends kindergarten.

19. The father also has another female child, N, about whom there is no evidence but it seems he has no relationship with her. The father has not been employed for the past seven or eight years. His income is derived solely from Centrelink in the form of a parenting payment and he also receives Family Tax Benefit A and B. His fortnightly income is about $1,184 per fortnight. He pays rent of $390 per fortnight. In December 2014 the father informed Dr H that he was supplementing his income doing odd jobs.

20. The children live with the mother, her husband Mr Pritchard and their child, O aged three and a half. Mr Pritchard’s fourteen year old daughter, P, spends alternate weekends and school holidays with them, although rarely stays overnight. It seems her relationship with the mother has at times been strained. They continue to live in G Town. The mother is employed part time and Mr Pritchard is employed as a tradesman.

21. The parties currently live about three hundred kilometres apart and travelling between the two places would take over three hours each way.

22. On 12 January 2006 a protection order was made in favour of the mother against the father on an application by police. It remained in force until 11 January 2007.

23. On 4 October 2007 a protection order was made in favour of a former partner of the father’s, Ms Q. It remained in force until 3 October 2008.

24. On 22 May 2008 a protection order was made in favour of the father and a former partner of his, Ms Q, against the mother. It remained in force until 12 May 2010.

25. On 11 June 2008 a protection order was made in favour of the mother against the father. It remained in force until 12 May 2010.

26. On 1 February 2012 a protection order was made in favour of another former partner of the father’s, Ms M against the father. It remained in force until 23 January 2014.

27. On 26 May 2015 a protection order was made in favour of the mother and on 23 November 2015 a variation added the children, against the father. It remains in force until 25 May 2017. The conditions of this order prohibit the father from going within twenty metres of the mother and children. Exemptions apply including when the father is having contact with the children pursuant to written agreement or order.

conduct of the trial

1. The trial was conducted in the unusual circumstance of the father not appearing in person but by telephone. This arose as a result of his written request made two days before the commencement of the trial for leave to do so. The matter was listed for mention the day before the trial was due to commence to deal with this request.

2. The father did not place before the Court any evidence to support his request but submitted that he could not afford to travel to Brisbane, could not afford to pay for a nanny to care for his four year old daughter and could not afford to pay for accommodation. Despite opposition from the mother his request was granted. The Independent Children’s Lawyer did not oppose the request.

3. Notwithstanding the trial directions made on 30 August 2016 the father did not file his affidavit of evidence in chief until the day before the trial was due to commence. The father’s excuses, that he was an “idiot”, “not legally trained”, “has tried to comply” etc., were not persuasive. He did not seek to have the matter brought back to Court for mention until two days before the commencement of the trial.

4. A further order was made on 31 January 2017 for the father to file his affidavit of evidence in chief and an amended Initiating Application by 1.00pm on that day. The father did not comply with that order. He filed his affidavit electronically at 5.37pm and his amended Initiating Application at 2.31am on the first day of trial. His affidavit comprises 551 pages (48 pages of which are the affidavit and the balance annexures). Thus the mother was not made aware of the father’s evidentiary case or the order he was seeking until the first day of trial.

5. Despite the father failing to comply with the order to file his material as ordered he nevertheless managed to send to the mother’s solicitors on 11 November 2016 a thirty-eight page typed document entitled “Notice of Truth”.

6. The application of the mother to have the matter proceed on an undefended basis was dismissed, it being conceded that in the circumstances of this case the mother would not suffer any particular prejudice having regard to the content of the father’s affidavit and leave was granted for her to give further evidence in chief in response to allegations made by the father. Ultimately, the mother simply denied all allegations made by the father.

7. In addition to failing to file his material in accordance with trial directions the father also failed to attend the interviews for the updated family report on 28 November 2016 or answer Mr R’s telephone call on that day (Mr R being the author of the most recent family report). The father did not address in his affidavit his failure to attend the family report interviews but said in oral evidence it was because he was involved in a motor bike accident on 26 November 2016. He attended the hospital on the day of the accident but was not admitted. He was at home on the 28 November 2016 and when asked why he did not make a telephone call to rearrange the family report interviews he said he “couldn’t get to the phone” and “couldn’t walk”. No medical evidence was produced. When asked why he did not contact Mr R or the Legal Aid office to request the interviews to be rescheduled, the father’s response was – “Yeah well I couldn’t get to the phone and to be quite honest with you, it didn’t enter my mind. I didn’t recall that that was the date”. I note that on 31 October 2016 the father had written a letter to the mother’s solicitor saying, among other things, that he was “ecstatic to the very thought of seeing” the children at the upcoming family report interview on 28 November 2016. The father was unable to explain how he was able to electronically file a Notice of Address for Service at 1.52pm on 28 November 2016 given his alleged incapacity.

8. I do not accept the father was indisposed on 28 November 2016 such that he was unable to attend the interviews and/or involve himself by telephone and/or make arrangements to attend on another day. Any shortcomings in the family report are entirely a result of the father’s own making.

9. There were at times some practical difficulties with conducting the trial in the physical absence of the father which is why proceeding in such a way should generally be avoided. Those practical difficulties at times delayed the progress of the trial but no injustice resulted thereby.

10. It is unfortunate that Mr Pritchard was not a witness in the proceedings but I am not prepared to draw any adverse inference arising from his absence given that Mr Pritchard has been interviewed in the past by the family report writers (although not the most recent one) and it was not until the first day of trial that the mother knew what allegations were being levelled against Mr Pritchard. The mother addressed the 31 October 2013 incident in her own affidavit and relied upon the findings made by the Department and police. It is also true, as Mr George for the mother submitted, that Mr Pritchard is really only a relevant witness in relation to the ‘live with’ order and as such Mr Pritchard’s presence is not crucial save if there were to be a finding that there was an unacceptable risk of harm in the mother’s household.

11. The other unusual feature about this hearing was that the father was referred to throughout as ‘S-T’. I will say more about that later in my reasons.

issues requiring determination

1. Neither party nor the Independent Children’s Lawyer sought any findings of fact in relation to the alleged events that led to protection orders against each party.

2. The following issues were identified as requiring a determination:

   a)Whether there is an unacceptable risk that B will be exposed to physical, psychological and emotional abuse in the mother’s household if he remains in her care;

   b)Whether there is an unacceptable risk that C will be exposed to family violence because of B’s behaviour if B remains with the mother;

   c)Whether there is an unacceptable risk of harm to the children if they spend time with or communicate with the father; and

   d)What weight should be given to B’s wishes.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[6]

   [6] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[7]

   [7] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and 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.

1. Section 60B(2) provides that 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;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

2. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes causing a child to suffer serious psychological harm.

3. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

4. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

5. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

6. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[8]

   [8] Banks & Banks (2015) FLC 93-637

Applicable principles in cases where allegations of abuse are made

1. The High Court said in M & M[9]:

   …it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of … abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. …

   …
   

   [9] (1988) 166 CLR 69 at 76

   In resolving the wider issue the Court must determine whether on the evidence there is a risk of … abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. … In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. …

2. In considering the ‘unacceptable risk’ assessment Fogarty J observed in The Marriage of N & S:[10]

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.

   [10] (1996) FLC 92-655 at 82713-4

Standard of proof

1. Section 140 of the Evidence Act 1995 (Cth) provides:

   (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject-matter of the proceeding; and

   (c)the gravity of the matters alleged.

1. In Re: H& Ors[11] consideration was given to the relevant standard of proof to be applied in civil proceedings relating to an application to place a child in the ward of the relevant authority.

   … Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
   The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the  evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the  evidence  before the court concludes that the allegation is established on the balance of probability. … Deliberate physical injury is usually less likely than accidental physical injury ... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
   Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

[11] (1996) 1 All ER 1 at 16, 17

is there an unacceptable risk of harm to B should he remain with the mother?

1. On 3 November 2013 the father made a complaint to police and the Department alleging that on 31 October 2013 Mr Pritchard had broken B’s arm. B was present with the father at the police station when the complaint was made. This incident was the catalyst for the institution of these proceedings by the father.

2. Annexed to the father’s affidavit is a transcript of a recording he made of himself and B on 2 November 2013. The father concedes that on the face of the transcript it appears that he was coaching B to make allegations against Mr Pritchard. That is certainly my view. He asks leading questions and has the child confirm what he suggests.

3. The account given to police by B on 2 November 2013 was that he had been grounded and was in his room. Mr Pritchard wanted to come into his room but B locked the door. Mr Pritchard used a knife to unlock the door. As Mr Pritchard was pushing the door open B was trying to push it closed. In the process of both of them pushing the door, B was sandwiched between the door and the wall and his right arm was pinned against the wall and the door resulting in a fracture of his arm.

4. On 20 November 2013 police contacted the hospital where the child had been taken by the mother on 1 November and were told by two doctors that the injury was consistent with the explanation provided at the hospital by the mother. The hospital notes record that the mother had said that the child had been naughty and was in his room with the door closed. She tried to open the door which resulted in the injury. When B was asked what happened he said “… I wanted to be in the room alone, there were people drinking downstairs …” and then the mother cut off B’s story. The mother was asked why she had not brought the child in the day before and she replied that she put ice packs on his arm and put him to sleep but the following morning noticed swelling and B complained of pain.

5. The mother provides a detailed account of the circumstances leading up to and following the incident in her affidavit including why she cut off B’s account at the hospital. She also provides an account of the incident itself although she was not present at the time. Her account accords with Mr Pritchard’s account given to police during interview on 28 November 2013. The account provided by B during formal interview with the Department and police on 27 November 2013 is also largely in accord with Mr Pritchard’s account although B attributes to Mr Pritchard an intention to harm him.

6. The police investigated the father’s complaint against Mr Pritchard including interviewing all relevant persons and concluded –

   This incident is an accident and the suspect is not criminally responsible … the matter is unsubstantiated criminally however child protection concerns in relation to multiple presentations to hospital have been referred to DChS as a joint participant in this investigation.

7. The reference to multiple presentations to hospital refers to B’s numerous shoulder dislocations. It seems the mother took him to the hospital on forty-six occasions up to May 2014. Dr U, orthopaedic surgeon, provides evidence by way of letter dated 7 May 2014 which forms part of exhibit 2. Relevantly he says:

   On examining him today, his shoulder appears to be relatively lax. He can actively sublux his shoulder posteriorly. He simply contracts the muscles around the shoulder girdle and the humeral head can be noted to travel posteriorly. He is very lean.
   When his shoulder subluxes posteriorly, it is relatively easy to reduce it with some gentle pressure from the posterior aspect. I suggested that if this is the extent of the dislocation, he does not require any sedation or analgesia and probably doesn’t warrant a trip to hospital. This can easily be reduced and I suspect that once his muscles relax it should pop into position.
   On moving his shoulder joint, he did not appear to be particularly tender. The humeral head can sublux posteriorly very easily and I suspect there is an element of voluntary control with this. He is contracting his musculature and helping to force the shoulder posteriorly. None the less there must have been some issue that has arisen that has given rise to the commencement of this problem.
   He has had an MRI scan which suggested there is a defect of the posterior labrum. There appears to be a small detachment of the posterior labrum.
   …
   His mother mentioned the main problem appears to be that he puts his hand behind his head and dislocates and gets stuck in that position. This has been the cause of multiple attendances at the Emergency Department.
   Interestingly the next day following our review, he presented to the Emergency Department at the [V Hospital]. I saw him there and his arm was indeed stuck with his hand behind his head. …
   He was placed in a shoulder immobiliser at that stage … Unfortunately, on his way home he slipped his arm out of the sling and put his hand behind his head and promptly re-dislocated. He presented to [G Town] Hospital that eventing.
   …
   … concerned there is a behavioural element to his problem.  …
   … we will endeavour to have an external rotation brace fitted … This will need to stay in position full time for a complete six week period. …
   He presents a very difficult challenge. …

8. The mother says that the problem has been fixed and there have been no further issues with B’s shoulder. I accept her evidence and that of Dr U.

9. In 2009 the father made a complaint to police and the Department alleging that Mr Pritchard had been “putting his hands around [B’s] neck and strangling him… kicking him, pinching him, throwing him into his bedroom and onto his bed really hard  … and smacks him a lot”.  Police attended B’s school and interviewed him. He said that “[Mr Pritchard]” had been doing mean things to him such as “strangling him by using his hands” but it was noted that B was unable to elaborate, only that it hurt but did not leave a mark. He also stated that he was thrown on the bed really hard and was smacked a lot and that the mother tried to stop Mr Pritchard. He also stated that he was “usually happy at home”. After interviewing the mother and Mr Pritchard the police formed the view that the allegations were unsubstantiated.

10. A further complaint was made by the father to police in 2012 alleging that Mr Pritchard had grabbed B off the bed by his arms and pushed him up against the wall by grabbing him around the throat with his hands. It is alleged that Mr Pritchard then picked B up by his arms and threw him on the bed. The father attended the police station with B to make the complaint.

11. There were no injuries and no marks on B. The complaint was investigated and the following notation appears in the police records:

    The case officer has reviewed this matter and based on no evidence of injury and the incident being minor in nature and falls within the parameters of domestic discipline although borderline excessive there are no injuries to substantiate harm. Therefore this matter is unfounded as evidence indicates that it is highly doubtful the offence occurred.

    The school and the informant are monitoring the child and will report any further incidents to police and child safety.

12. I note that up until 2014 the father and mother shared the day to day care of the children and further, that despite the father’s stated continuing belief that Mr Pritchard has intentionally harmed B, he has not attended D Contact Centre to see his children since May 2015 and from May 2014 only saw the children for ten hours. As will be discussed later in these reasons I do not accept that the father has been unable to attend the Contact Centre.

13. It is apparent that B has a history of misbehaviour at school and at home. Dr U expressed the view that there was probably a behavioural element to B’s frequent shoulder dislocations. Dr H upon review of the material provided to him opines that B appeared to be showing “features of Oppositional Defiant Disorder”.

14. Mr Pritchard was interviewed by Ms F for the purposes of a family report in March 2014. He described some positive times that he and B spent together but stated that it took a number of days for him to settle upon return from his father’s. He denies intentionally breaking B’s arm but accepted that B believed it was deliberate.

15. When the children were observed with the mother and Mr Pritchard, Ms F noted B avoid Mr Pritchard and look at him from time to time with “what seemed to reflect contempt”. She formed the view that B “clearly indicates that he does not want to live in the mother’s household” and that his “animosity towards [Mr Pritchard] was palpable”.

16. In a 2015 interview with Ms I, Mr Pritchard described that when B returned from spending time with the father “he thinks he can do whatever he wants and no one can stop him”. He gave an example of B refusing to go to bed late at night and the mother screaming at him after he kicked her. He separated them on that occasion and B went to bed. He said that B sometimes “starts conflict for fun”. He said that he now stands back and lets the mother deal with it. That is consistent with the mother’s evidence and represents a change in their manner of disciplining B. Given the issues involving B and Mr Pritchard that seems to be a sensible change.

17. By contrast, when Mr Pritchard was observed with B in March 2015, Ms I noted that B appeared comfortable with Mr Pritchard and they talked quietly and calmly together. When the mother, C and O were also in the room with them Ms I noted that B occasionally called out to Mr Pritchard in an excited tone asking him to look at something. Ms I describes B as being “ambivalent” when talking about Mr Pritchard - “On the one hand he said [Mr Pritchard] was mean to him but on the other he wishes he could do more fishing and driving with [Mr Pritchard]”.

18. In my view, it is more likely that not that B resented Mr Pritchard’s presence and in particular his attempt to discipline him. It is also likely that there were some physical altercations between B and Mr Pritchard that had regrettable consequences such as B breaking his arm but I reject the allegation that Mr Pritchard has at any time intentionally caused harm to B. Given the content of the discussion that occurred between the father and B on 2 November 2013 I find it more likely that the father encouraged B to make allegations against Mr Pritchard that were untrue.

is there an unacceptable risk to C arising from B’s behaviour?

1. B’s behaviour in 2014 and 2015 has been described by the mother as aggressive, defiant and manipulative and that he makes up stories. He had on occasions hit the mother and Mr Pritchard had intervened.

2. The father argues that if B is removed from the household C will not be exposed to B’s behaviour.

3. In her interview with Ms I in March 2015, C said there could be “big fights with [Mr Pritchard], Mum and B” and that she would “just stand back and block my ears”. She complained that B “punches me and pinches me”.

4. The father has not had any contact or communication with B since May 2015. The mother’s evidence and the evidence from the school indicate that there has been a significant improvement in B’s behaviour since 2015. I accept that evidence. I am not persuaded that C is at risk of harm from B in the mother’s household.

5. The father concedes that C is not otherwise at risk in the mother’s household stating in his oral evidence:

   Well she isn’t in contempt in her reality of living where she is as opposed to [B], that is his reality, he is in contempt, he is in fear, he doesn’t want to be there, it is against his wish whereas [C], she hasn’t been abused or assaulted, she hasn’t been amongst any physical abuse or assaults there and she thrives quite well there and it is in her best interests and that is all that matters to me, the best interests of the children, that is where the difference lies between the two.

is there an unacceptable risk of harm to the children if they spend time with or communicate with the father?

1. The risk of harm has been identified during the proceedings as follows:

   a)The nature of the father’s beliefs and the impact on the children if the father fails to protect the children from those views;

   b)The impact on B if the father continues to promote the idea that Mr Pritchard will harm B; and

   c)The impact on the children if the father is unreliable in spending time with the children.

The father’s beliefs

1. The father adheres to the tenets of his religious belief’ which include that:

   a)Followers of his belief are is only bound by religious not State law;

   b)Commonwealth governments are not valid where they engage in anything outside that prescribed by the religious law;

   c)One can escape State control by abandoning "your person" and becoming solely governed by religious law;

   d)One has to really, really mean it and one has to restructure your actions to follow religious principles;

   e)One must always cite the basis for one’s actions in religious scripture and defend your activities by calls to faith;

   f)One must not use postal codes; and

   g)Members must use "notice" documents to "private persons" since they are not recognising authority that one has to rebut within a narrow time frame or they are deemed accepted.

2. Dr H undertook a psychiatric assessment of the father in December 2014. While considering the father’s beliefs represented overvalued ideas he was not of the view that the father was delusional or psychotic. He opined that if the factual matters presented to him were established he was of the view that the father would meet the criteria for a ‘Personality Disorder (not otherwise specified) with mixed Cluster A and B traits’. As it is not clear what facts Dr H relied upon to express this opinion and a number of apparently relevant facts (such as an alleged history of violence) were not established before me, I do not place significant weight on his opinion that the father suffers from a Personality Disorder.

The father’s conduct in Court 

1. The father does not recognise titles such as ‘Mr’ or Sir’ as he “is not a member of the military” nor does he use his surname. When trial directions were made on 30 August 2016 the father insisted that he be referred to as “S-T” in the proceedings. The father was treated with the utmost courtesy throughout the trial and was referred to as ‘requested’. On one occasion during cross-examination Mr George, counsel for the mother, referred to him as “Sir”. The father would not respond to the question until he was referred to as S-T. At the end of the trial when the parties were being informed that judgment would be reserved until the following Friday the father was referred to as “Mr South”. That led to the father repeatedly stating:

   I don’t have any titles as I’m not in the military. Ahhhh I don’t have any titles as I’m not in the military. I don’t have any titles as I’m not in the military. Do you understand? For the third time …

2. He kept speaking despite it being pointed out to him that he was interrupting the Court.

YouTube posts by the father

1. Ms F prepared a family report dated 7 March 2014. Ms F had available to her two videos that had been uploaded to YouTube by the father. The transcripts of those videos are in evidence before me. The transcripts are titled ‘Nazi Police G Town’ and ‘Nazi Stop Woolworths’ posted on YouTube on 22 January and 8 February 2014 respectively.

2. The first transcript involves the father challenging a parking officer at the airport who asked the father to move on as he had parked in a ten minute drop off zone. The father refuses to do so stating the sign is “irrelevant to me” and refers the officer to a notice on his windscreen declaring the car is “private property under the … Financing Statement”. The father continues to film the officer even after the officer objects to being filmed. It is clear from the transcript that the father’s behaviour is menacing and oppositional.

3. The second transcript involves the father being pulled over by police for a random breath test. The father objects to providing a breath sample but ultimately complies claiming to be doing so under duress. He corrects the police officer’s reference to his driving a ‘vehicle’ and says - “No it’s my wheels conveyance. I don’t perceive it as my vehicle”. When asked to produce his licence the father says he does not have it but has a ‘certificate of acknowledgement’ and then says – “Do you have any ink? I have my living will here and I got a thumbprint, so if you’ve got some ink we can compare my thumbprint that’ll identify me”. When advised that he would be issued with a traffic infringement notice the father disputes that the law applies to him. He says “I’m not on duty and not part of any corporation so your statutes do not apply to me. … I’m off duty and I’m not performing any function of government”. The father’s comments are bizarre and challenging.

4. Having viewed the videos Ms F opines that they indicate:

   8.13 [the father] embraces laws other than those accepted by this society, and refuses to operate within the laws of the country. [Mr South] conduct suggests a respect for and engagement with lawlessness, a rejection of social norms, and a complete disregard for authority. These film clips suggest that [B] would be at risk of long term emotional harm living with his father.

   …

   12.4 … Certainly there is a genuine risk that the child [B] may be harmed by the father’s strong anti-authoritarian activism…

   12.5 It is noted that [Mr South] is very influential upon [B] who clearly absorbs all his father tells him. There is a mutually adoring relationship between them. Disrespect of authority as a fundamental principle in a child’s life can only bring significant harm to a child’s life chances over the long term. [B] risks social alienation, unemployment, criminality and incarceration if he is raised in an environment that promotes and rewards anti-authoritarian views and disregard for the law of the land.

   12.8 [B] is very vulnerable to being influenced by [Mr South] ideas. He is looking to his father to model the values and norms which he shall take on for his life. His conduct at the school suggests that he is rejecting certain social norms and demonstrating antisocial traits.  

   [errors in original]

5. During the period from about 2012 to 2014 it seems uncontentious that B’s behaviour included punching holes in walls and hitting the mother and students at his school. In my view there may have been a number of reasons contributing to B’s poor behaviour at school at the time he saw Ms F in 2014 in addition to the influence of his father. It may be that his rejection of Mr Pritchard as a step-father and being unable to live with his father were also having an impact. Subject to that caveat I accept Ms F’s opinions.

6. During his interview for a family report with Ms I in March 2015 the father disagreed that his strongly held views would relate to parenting. He gave as an example the YouTube videos referred to above and reasoned that if the children had been with him at the relevant times he would have “toned it down a bit” and “cut it short”.  The father informed Ms I that he was pursuing the police officer he video recorded for “illegal used of his title and misusing his powers on the day”.

Father’s conduct during 2015 family report interview

1. Ms I is a clinical psychologist and family consultant with over thirteen years’ experience. Ms I conducted interviews with this family on 30 March 2015 with follow up telephone interviews on 1 April 2015.[12]

   [12] A follow up interview with the father was attempted on two occasions. On the first occasion he said he was too busy to talk and on the second occasion he said he could not hear.

2. Ms I describes the father as “often trying to maintain control over the interview by avoiding questions, making counter questions to respond to questions, and loudly initiating his own topics”. In relation to her interview with the father, Ms I reports:

   19. [Mr South] threatened “accountability will be held” for Judge Coates for his alleged “parental alienation” of the children for Ordering supervised time. [Mr South] disputed the jurisdiction of the Court to make decisions for himself or that of the children. [Mr South] considers his only allegiance to the “Supreme Being” which is “Queen …, defender of the faith”. He said [scripture] was the only law he followed. … He presented as irritated by questions about his beliefs, often responding that “people with low intelligence can’t see the truth” and that “I speak the truth” and this caused upset for people who did not live in reality.

   20. He extrapolates from his allegiance to Queen … that he is a “national” who belongs to [Country W] and “not a citizen” of Australia. This is what [Mr South] bases his reason that he is therefore exempt from state and federal laws of Australia or anyone who purports to exercise them or wants to operate within them. He considers the children stolen.

   21. With regard to supervised time… he angrily stated that Judge Coates’ Order for supervised time was “extortion” and “servitude” to expect he would comply. He does not recognise the Order as valid.

3. The father also told Ms I that he did not want ‘custody’ of C because she was “materialistic” and this meant B thought “pfffft” of his sister.

B’s conduct during family report interviews with Ms I

1. Ms I’s interview with B presented some challenges. His behaviour was somewhat erratic and he was delighted when the report writer wrote things down that he had made up. Ms I describes B trying to unsettle her by “mimicking her presentation, voice and trying to scribble on the interview notes, repeating questions and comments”. She describes him as:

   …strategic sometimes asking a lot of questions about what the report writer thought of [Mr South] and what would be said about him. Other times he appeared to be trying to challenge along the themes of his father’s beliefs (e.g. “has anyone from the parliament come here?” “they might like to give you some Court Orders”).

Ms I’s opinions

1. Ms I offers the following opinions:

   77. [Mr South] reacts to what most people would consider minor offences to his ego, authority and his entitlements. This ego fragility and need for admiration by others is masked by a dense, complicated and complex dogma about “defenders of the faith”, arbitrary references to his and his exemption from. This underlying emotional fragility fuels his insistence that other’s pay attention to his rules and faith. [Mr South] presents as constantly monitoring the level of admiration and respect other’s show him. This acute sensitivity in combination with aggression as a justifiable response makes [Mr South] volatile.

   78. When parents are frequently suspicious, aggressive and experience threat easily in day to day living, the effect on the children is particularly disabling.  Children living in this emotional environment maintain very high levels of anxiety.  This consumes such a large degree of the child’s cognitive capacity to try to ready themselves for what frightening experiences might occur next, that it effects a child’s capacity to learn, listen and self manage their own behaviour.  Typically they present as children with attention deficits, poor concentration, aggression and poor ability to interpret normal caring or social behaviours.  These traits become more ingrained as long term personality traits as time goes on.

   79. The other way that [Mr South’s] aggressive and reactive parenting behaviours are emotionally disabling for children occurs via alienating a child from other attachment relationships.  This occurs in two ways – one by the adult having recurrent high conflict with other adults which results in separation.  The second way it alienates children is because [Mr South] is so easily threatened by other adults and the children’s attachment to them, so children’s important relationships would likely become narrowed to only [Mr South] over time.

   80. This pattern is already clearly emerging with [B] and [Mr South].  [Mr South] is contemptuous of [B’s] attachment to his mother, and his sister to such a degree that he perceives there being no loss to [B] from being relocated away with himself.  This is not to say that [Mr South] does not experience a significant amount of feeling and concern for his children.  The issue is that [Mr South] distorts the children’s needs because he interprets them according to how to meet his own needs.

   81. Often the aggressive parents do not detect that children are made significantly anxious by their behaviour, unpredictable responses and suspicion of others.  One of the responses to fear and anxiety is to cling to the available parent for protection.  This means that aggressive and emotionally fragile parents often misunderstand why their children are clingy or without a response.  These two behaviours can reflect fear and uncertainty about what to do.  [Mr South] is very unlikely to comply with any recommendations for treatment.   The more this the need for treatment is emphasised the greater his insistence that there has been wrongdoing and unlawfulness by others.

   …

   85. Whilst it is possible that the only way to completely protect the children from [Mr South] antisocial personality would be to spend no time with him at all, it remains that the children have a relationship with him.  Therefore managing their feelings of love and enjoyment for [Mr South] is important to manage sensitively in order to prevent the harm associated from cutting off an existing relationship.  If there was to be supervised time with [Mr South] ordered this would still contain with a risk of emotional harm associated with the father’s erratic and unreliable attendance.  The children would likely experience fluctuating excitement, disappointment and anger.  Some of these emotions will likely be acted out onto [Ms Pritchard] by [B].  It is suggested that this approach would afford the children time to recognise particular recurring features of [Mr South] and have a relationship exchange without the harm of unsupervised time.

   [errors in original]

2. While there was limited if any challenge to the father in relation to his beliefs during the trial, the two occasions earlier referred to, elicited a similar response to that experienced by Ms I. I found his response remarkable in that he exhibited an inability to contain his irritation and insistence of compliance with his views. I find Ms I’s opinions compelling.

Mr R’s opinion  

1. Mr R is a family consultant with formal qualifications in both social work and psychology. He has been in practice for nearly thirty years. While the father did not participate in interviews with Mr R who prepared the most recent family report in November 2016, based on the information provided to Mr R about the father’s beliefs he opined:

   16…. the risk of psychological risk to the children is quite high should they be constantly exposed to the father’s belief system. In my view, if this were to occur, the children, via the process of socialisation, are likely to integrate at least some of the father’s beliefs and values which, I think can reasonably be said to be contrary to, or incongruent with what the children will learn in mainstream education and society.

2. I accept Mr R’s opinion.

The father’s continuing belief that Mr Pritchard will harm B

1. In late 2015 the father posted on his Facebook page the following:

   My sons 12^th birthday tomorrow; However due to “The System” and a lousy mother putting her “lonely” needs (Remaining with a child abusive Husband) before her children’s best interests, I will not be able to hug, kiss, hold, speak to, smile at, My Son at all …

2. He also posted a photograph of B. The post is disturbing on so many levels but in particular because it identifies B. The father does not appear to have turned his mind to the possibility of it coming to B’s attention.  Secondly, it makes a derogatory comment about the mother. Thirdly, it makes an unsubstantiated allegation about Mr Pritchard. Fourthly, it ignores his own behaviour as the reason he was not seeing his son. Fifthly, it ignores the fact that had the father wished to spend time with his son he was able to do so at D Contact Centre. It demonstrates his complete lack of insight into the potential harm to his son of such a post.

3. The father dismisses the investigations undertaken by police and the Department in relation to his allegations against Mr Pritchard. He maintains the view that Mr Pritchard intentionally broke B’s arm and intentionally physically harmed B on other occasions. He maintains the view that B holds the mother’s household “in contempt” and that he is fearful of Mr Pritchard.

4. What I find particularly remarkable about the father’s position is that despite these strongly held views he has not taken any opportunity to see his children since May 2015 so that he could at least monitor his children’s welfare. It causes me to doubt therefore, the genuineness of his stated views.

The father’s unreliability in spending time with the children

1. In my view this is the most difficult issue in this case. The father has had the opportunity to spend fortnightly time with his children at the D Contact Centre since May 2014. He has rarely taken the opportunity to do so and has not spent any time with the children since May 2015 despite living around the corner from the Contact Centre until mid-2016.

2. I reject his claim that he could not afford to pay the modest $30 per fortnight fee to see them. He has managed to save $800 despite being on Centrelink. Since moving to his current residence his rent has reduced from $640 per fortnight to $390 and he at no time argued that travel costs impeded his ability to attend the Contact Centre. I consider it more likely that he refused to see the children at D because he did not regard the order as valid as he told Ms I.

3. It is clear that B, in particular, is desperate to have a relationship with the father. It is not in contention that the children love the father and want to see him. The children have a right under the Act to spend time with the father if it is otherwise in their best interests. It is likely to have a detrimental impact on them if they have no relationship with the father. Both children enjoyed spending time with the father at D Contact Centre and it is evident from the mother’s oral evidence that she would completely support the children spending time with the father at D Contact Centre with certain conditions relating to notice etc.

4. The mother told Ms I during the 2015 interview that B, in particular, loved and idolised the father but was very susceptible to the father’s suggestions to dislike Mr Pritchard and make false allegations. Further, she said the children enjoyed seeing their father at the Contact Centre but that he had only booked six to eight times and generally opted to take one hour instead of two and was always late. She described how “very disappointed” the children were when the father did not “show”. The mother then introduced the practice of not telling the children they were going to see the father until she received confirmation from the Contact Centre that he was there. The father no longer attended at all after May 2015. I accept the mother’s evidence.

5. There are a number of other problems with a long term order for supervised time. The first and most significant is the impact on the children if the father does not attend. I have no confidence given experience to date, that the father will commit to attending. The children have endured many a disappointment when the father has failed to show up in the past. The most recent occasion was in November 2016 when the father failed to attend the family report interviews. B expected to see his father and had bought a gift for him. Mr R’s description of his abject disappointment when his father failed to show up is palpable. When asked about the impact of continuing disappointment in such circumstances Mr R opined:

   … if that continues, the risk of harm would manifest in thoughts of abandonment, self-doubt, loss of self-esteem, self-efficacy, questioning of himself.  Developmentally he is at that stage, he is at risk.  Both of them really but we are talking about [B] here and he will start to ask himself those questions, “Why doesn’t my dad…” and his answer will be one of rejection, perhaps abandonment and I think that is terribly detrimental to a child’s development.

6. Ms I expresses similar views to those of Mr R. I accept their opinions.

7. Another problem with making an ongoing order for supervised time is that it is unlikely to completely protect the children from exposure to the father’s bizarre and anti-social beliefs.

8. Finally, as it is unlikely that circumstances will arise where supervision could be reviewed I do not consider an ongoing order to be appropriate.[13]

   [13]Moose & Moose (2008) FLC 93-375

Conclusion in relation to whether the father poses an unacceptable risk of harm

1. The overwhelming evidence from Ms F, Ms I and Mr R is that exposure to the father’s beliefs and attitudes will be emotionally and psychologically harmful to the children. While there is limited evidence that the father has exposed the children to his beliefs to date I have to assess the risk of future harm and based on the following:

   h)Ms F’s assessment that B’s history of poor behaviour is attributable to the father’s influence (which I accept in part);

   i)The father’s recorded interrogation of B on 3 November 2013;

   j)The father’s behaviour in the encounters with the parking officer and police officer and posting of those encounters on YouTube;

   k)The father’s acknowledgement that having the children in his care would not rule out such conduct;

   l)B’s behaviour during interview with Ms I and reference to parliament and court orders;

   m)Ms I’s opinion on B’s level of maturity (although somewhat dated now);

   n)The father’s Facebook post naming B (referred to below);

   o)The father’s inability to regulate his behaviour when challenged about his beliefs even during family report interviews and court proceedings;

   p)B’s particular susceptibility to influence from the father; and

   q)The opinions of the experts

   I have come to the conclusion that there is an unacceptable risk of emotional and psychological harm to the children if they were to spend unsupervised time with the father.

1. In addition, given the father’s unwavering opinion that B is at risk of harm from Mr Pritchard, I am of the view that if the father were to spend unsupervised time with the children he would influence B into making further untrue allegations and it is likely the father would withhold B and further court proceedings would be inevitable.

2. Finally, the impact on the children of ongoing disappointment if the father failed to attend supervised time is likely to be significant and given my finding that the father is unlikely to commit to attending, the risk of emotional and psychological harm is unacceptable. 

B’s wishes

1. I have come to the conclusion that there should be no time between the father despite B’s very clear views to the contrary.

2. In 2014 B told Ms F that he wanted to live with his father. In 2015 he told Ms I that he wanted to live in a shared arrangement between his parents like he used to but predominantly with the father. In 2016 he told Mr R that he wanted to spend time with his father. C also wanted to spend time with the father.  

3. In her interview with B in 2014 Ms F opines:

   9.5 He was very clear that he wanted to live in his father’s care. [B] gives the impression he is anxious and fearful living in the mother’s home given the broken arm incident. [B] appears to be convinced that the break was intentional and noted some conduct which in his view supported this interpretation. …

   9.6 … It is not clear to me whether the child’s anxieties are genuinely felt or whether he is aligned with the father, and influenced in this way. …

   9.7 I gained the impression that the child considers that he is not believed in relation to the broken arm incident.

   12.7 … while it [is] apparent that the child wants to live with his father, I do not consider the child has any insight into the potential for emotional harm in this environment derived from the father’s bizarre behaviours and rejection of authority, the country’s legal system and social norms.

4. In her evaluation, Ms F opined that B was unhappy in his mother’s home “primarily as a result of the broken arm incident”.

5. In her interview with C, Ms F notes that C “was very clear that she wanted to stay at her mother’s and see her father every second weekend. She had no issues with [Ms Pritchard]”.

6. Both children told Ms F they would not be troubled by living in separate households.

7. Ms F’s observation of the children with the father was very positive describing the father - “immediately relaxed and affable, stimulated conversations about the children’s world and interests they share”.

8. Overall Ms F opined that B and the father had a strong bond although the bond between C and the father was less obvious. Ms F described B appearing to -“hang on every word his father says”.

9. Although B also expressed a wish to live with the father in 2015 to Ms I in a shared care arrangement Ms I’s opinion was that B:

   65. … is not of sufficient maturity to be able to independently express a view which he understands the consequences of or can imagine the future. He has also been experienced what appears to be an insecure attachment to his father characterised by [Mr South] ignoring him when he asks for normal requests, letting [B] down but attributing it to others. … At his current age he is not able to understand where his anger, fears and disappointments come from …

   66. Consistent with the descriptions of [B’s] interactions by [Ms Pritchard], [Ms X] [B’s counsellor], the school, he presents as having an attachment pattern where oppositional and defiant reactions become expressed toward adults he cares about and wants to spend time with. This is because he craves closeness and attention but is very afraid of trusting the adults to provide it without rejecting or hurting him in some way. He acts out against the adult in anticipation of being hurt or rejected. These are patterns which can take significant time and parenting energy to change. The last six months of almost no time at all with [Mr South] in conjunction with therapy appear to have reduced the severity of this attachment pattern for [B].

10. I reject that B is currently anxious or fearful in the mother’s household. I accept the mother’s evidence that the relationship between B and Mr Pritchard is now largely positive and that they go fishing and camping together. I also note Ms I’s positive observations of B’s interaction with Mr Pritchard in 2015. Without the father’s influence I find that B is largely happy and content in the mother’s household but for the fact that he would like to see his father.

conclusions in relation to significant issues

1. I reject the father’s allegations that the children, and in particular, B, face an unacceptable risk of harm if they remain in the mother’s household, for the reasons stated earlier.

2. The children have lived all their lives with the mother and have a close relationship with her and a developing relationship with Mr Pritchard. They also live with their half-sister, O, and spend time with their step sister P. They also spend regular time with the maternal grandparents and to a lesser extent, the paternal grandparents. They are settled and performing reasonably well at school. There has been a marked improvement in B’s behaviour since he has ceased to spend time with the father.

3. This is a tragic case because the children, and in particular, B, desperately want to have a relationship with the father. I have formed the view that the father has no inclination to pursue a relationship with his children unless it is on his terms. I reject his argument that the mother or this Court has alienated the children from him. It is clear to me that the children are not alienated from him. Unfortunately, the children have missed out on a relationship with the father and their half-sister, L, because he could not be bothered turning up to see his children when he had the opportunity. He is more intent on proselytising than meeting his children’s needs and desires to see him and spend time with him.

4. Much of the father’s affidavit material, communication with the mother’s solicitors and other documents filed in Court is concerned with promoting, explaining or defending his bizarre beliefs. It has no relevance to the important task facing this Court, namely, deciding what parenting order is proper.

5. It is, of course, not the beliefs themselves that are an issue in these proceedings. The father is entitled to hold whatever beliefs he chooses. It is the likely impact of those beliefs on the children and the likely impact on the children of any challenge to those beliefs. The father denies that he has ever exposed the children to his beliefs and contends that he knows right from wrong and understands what is and is not age appropriate. I do not accept either proposition. The father has demonstrated a propensity to disregard the laws of the land and rather than reject the possibility of exposing the children to such scenes as he video recorded and posted on YouTube he merely said he would “tone it down a bit” or “cut it short”. I also consider it noteworthy that on the two occasions the father’s requirement to be called ‘S-T’ were challenged he became oppositional and challenging. I therefore have no confidence whatsoever that the father will not seek to inculcate B with his beliefs and given B’s adoration of the father he will be no match for resisting those beliefs. In my view the risks to B of developing oppositional anti-social behaviours if exposed to the father are unacceptable.

6. The father’s initial concerns arising as a result of B’s complaints about Mr Pritchard were reasonable but his conduct in eliciting allegations from B, repeatedly presenting him to the police station for interview and refusing to accept the outcome of the investigations were, in my view, unreasonable. His actions had the effect of undermining the parenting of the mother and Mr Pritchard.

7. It is unlikely that the father will accept that Mr Pritchard has not intentionally harmed B and my concern about his spending time with B in those circumstances is not that he has that view but that he is unlikely to be able to contain that view as is evident in his recorded interrogation of B. It is more likely in my view that the father would withhold B, which in turn will lead to further court proceedings. 

8. What I find particularly striking in this case is the father’s lack of remorse for causing his children repeated and ongoing disappointment by failing to see them at the Contact Centre.

9. I have nevertheless considered the benefit to the children of spending time with the father in a supervised setting but I have no confidence the father will turn up and the risk of them becoming distressed by the disappointment and questioning their own self-worth is unacceptable.

other matters

Parental responsibility

1. As noted at the outset there is a significant history of protection orders made in this matter involving both the father and mother as perpetrators. In those circumstances there are reasonable grounds to believe that a parent has engaged in family violence. The presumption in favour of equal shared parental responsibility does not apply. In any event, given my findings above, it would not be in the children’s best interests for there to be equal shared parental responsibility. In my view the parents have no capacity to make decisions jointly.

Communication

1. The Independent Children’s Lawyer proposes that the father be at liberty to communicate by post on two occasions each year. The mother opposes that order because in her view it will merely unsettle the children. I agree. I am not persuaded that that communication as proposed would be of any benefit to the children.

Passports

1. The mother applies for an order enabling her to obtain a passport for the children but as I propose to make an order that she have sole parental responsibility it appears to me that no such order is now required having regard to s 11 of the Australian Passports Act 2005 (Cth).

Conclusion

1. For the reasons outlined I propose to order that the children live with the mother and that she have sole parental responsibility and that the father spend no time with them.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 February 2017.

Associate:

Date:  10 February 2017