Stella and Edwin

[2020] FamCA 580

FAMILY COURT OF AUSTRALIA

STELLA & EDWIN [2020] FamCA 580

FAMILY LAW – CHILDREN – where the father presents as an unacceptable risk to the child – where if the child had contact with the father the child could be the subject of physical or psychological harm as a result of the father’s inability to control his emotions and behaviour – where the presumption of equal shared parental responsibility is rebutted by the family violence found to have occurred – orders made for the child to spend no time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
APPLICANT:	Mr Stella

RESPONDENT: Ms Edwin

FILE NUMBER: BRC 3340 of 2010

DATE DELIVERED: 22 July 2020

PLACE DELIVERED: Townsville

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 13 & 14 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Cahill

SOLICITOR FOR THE APPLICANT: Gary Rolfe Solicitors

COUNSEL FOR THE RESPONDENT: Mr S Neaves

SOLICITOR FOR THE RESPONDENT: Richard Zande & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Murphy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms V Khushal
Bridges Family Law Specialists

Orders

1. That the mother have sole parental responsibility for the child, X born … 2009 (“the child”).

2. That the child shall live with his mother.

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

4. That the mother have leave to provide a copy of this Order to the child’s school and all treating health professionals.

5. That the father be at liberty to send gifts, cards and letters to the child at an address nominated by the mother.

6. That within seven (7) days of the date of these Orders, the mother shall provide to the father a postal and email address to which the father may send those items pursuant to Order 4 herein.

7. That the mother shall maintain the address nominated by her in Order 5 herein, and notify the father within twenty four (24) hours of a change to same.

8. That the mother shall use her best endeavours to encourage the child to respond to any communication received from the father pursuant to Order 5 herein.

9. That not less than once per school term, the mother shall send to the father an update in relation to X, including a copy of his school report card, with words that could identify the school or where the child lives, redacted by the mother.

10. That within seven (7) days of the date of these Orders, the father shall provide to the mother a postal or email address to which she may direct such updates.

11. That pursuant to s.121 of the Family Law Act 1975, the mother be granted leave to provide a copy of this Order to the child’s school and treating health professionals.

12. That the Independent Children’s Lawyer be discharged.

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 Stella & Edwin 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 TOWNSVILLE

FILE NUMBER: BRC 3340 of 2010

Mr Stella

Applicant

And

Ms Edwin

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of X, born in 2009 (now aged 11), had a highly dysfunctional relationship which ended prior to the child’s birth.  As the history that follows reveals, X has not had the opportunity, really, to form a relationship with his biological father, the Applicant Mr Stella.  He has, since the parties separated, lived consistently with his mother, Ms Edwin.  The reasons for this sad situation are explained later in these Reasons.  The dilemma for the Court, in circumstances where the child has spent no substantial physical time with his father since February 2012 (eight and half years ago), is what orders for the rest of his infancy are likely to be in his best interests.

Competing proposals

1. At the conclusion of the hearing, Counsel for the Independent Children’s Lawyer (“ICL”), Ms Murphy, submitted a minute of order sought by the ICL.  It is Appendix One to these Reasons.  The effect of the order is clear.  It provides for the mother to have sole parental responsibility and for the child to live with her, and by order 3, “the child shall spend no time with the father”.  Further orders (proposed orders 4 to 9) seek to have a process by which the father shall be at liberty to send gifts, cards and letters to the child at an address nominated by the mother, and with the mother being required to provide to the father, at least once per school term, an update in respect to the child’s progress at school.

2. Counsel for the mother, Mr Neaves, adopted, ultimately, the submissions of Counsel for the ICL and the form of order proposed by the ICL.  In fact, the mother’s case outline document filed 16 April 2020 sought similar orders.  The differences between the case outline and the orders were that the mother no longer proposed that the child should have a discretion to indicate when he wished to spend time with his father.  The reasons for that change of position on the evidence heard by the Court will become obvious.

3. The father’s lawyers retained, through the assistance of the section 102NA amendment to the Family Law Act 1975, were provided with a difficult case to articulate, and I give credit to both the father’s solicitors and Counsel retained, Mr Cahill, on saying all that they could to advance the position that the father articulated in his case outline filed 15 April 2020. The effect of the father’s proposal, which was maintained in final submissions to some degree, was that the mother would have sole parental responsibility and that X would live with her; that the child would spend time with the father each fortnight at the contact centre for not less than six months, and thereafter, spend overnights with the father from 10.00am Saturday to 4.00pm Sunday.  The father’s proposals sought to provide for the child to spend time with the paternal grandparents.

4. I indicated to Counsel retained on the matter that it was difficult for the Court to contemplate such orders for the paternal grandparents, where:

   a)the paternal grandparents, themselves, were not applicants for any orders in their favour; and

   b)neither of the paternal grandparents offer any evidence to the Court.

5. As a result, it was impossible to make any assessment as to what orders in relation to time with the paternal grandparents might be in the child’s best interests.  The father’s case outline, in addition to the physical time each alternate weekend, sought orders in relation to telephone time and half of school holidays, and special days such as Christmas and Father’s Day.  Certain other specific orders in relation non-denigration, not consuming or being under the influence of illicit drugs or excessive alcohol was sought by the father.  Clearly, such conditions in respect of time have an application if, as opposed by the ICL and the mother, physical time orders were made for the child to spend time with the father.

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

Chronology

1. To give some context to the reasons which follow, the following chronology is set out.  Statements of fact which follow should be regarded as findings of fact.

2. The chronology cannot possibly be, and is not expected to be, a full recount of every piece of evidence that was put before the Court.  In that regard, the chronology is meant to provide a context for the decision the Court is required to make.  In that regard, I should acknowledge that despite the Orders made as to one Affidavit of evidence-in-chief in respect to this matter (but perhaps because of the limited funding for Legal Aid) both the mother and the father’s trial Affidavits were very short and sought to rely on earlier Affidavits.  Even then, however, the material before the Court was limited.  The Court was greatly benefited by the involvement of the ICL, Ms Khushal who retained Ms Murphy of Counsel.  Although the ICL relied upon earlier family reports by Mr B that were dated 30 July 2010, 11 October 2011 and 28 May 2015, they were offered by way of historical context and Mr B was not required for cross-examination.

3. I indicated to the parties during the trial that the family report of the only single expert witnesses with recent involvement with the family, Ms C, to the extent that it relied on earlier observations made by Mr B, was the only single expert witness in respect to the parenting issue before the Court other than the evidence of Consultant Psychiatrist Dr D. 

4. The mother was born in 1970 and the father was born in 1976 and they ended their relationship of short duration in or about January 2009 after which, in February 2009, the mother obtained a Domestic Violence Order against the father. 

5. X was born in 2009.  I am satisfied that there were some weekly visits of approximately one hour supervised by the mother which progressed for about six weeks before that time broke down.  The father brought his initial application to the Federal Circuit Court of Australia in April 2010 and after two family reports from Mr B (as earlier referred to), final Orders were made on 23 November 2011 by Federal Magistrate Spelleken (as she then was) which provided essentially that:

   c)the child live with the mother;

   d)the parties have equal shared parental responsibility;

   e)the child spend time with the father on alternate weekends progressing to ultimately 5.00pm Friday until 5.00pm Sunday and time on on Father’s Day and Christmas with (as set out by order 4);

   f)all time to be in the presence “of one of the paternal grandparents”; and

   g)any overnight time with the father shall be at the paternal grandparents’ residence or in the company of either of the paternal grandparents.

6. The orders had a notation which, on the evidence that I heard, might have been misconstrued by the father.  Notation 2 provided that:

   “…it is the intention of the parties that they attend a Dispute Resolution Conference prior to the child attending school for the purposes of reviewing the supervision requirements for the father and for additional time for the father to spend time with the child.”

7. As I note later, the father interpreted the Orders of the Court made 23 November 2011 as indicating that supervision would cease when the child reached the age of about five years (just prior to him attending school).  No such order was made and that would be an incorrect interpretation of the notation.  Nonetheless, supervised time in accordance with the Orders seemed to have progressed from November 2011 until mid-February 2012.  Although there is no evidence before the Court relied upon by either party from the paternal grandmother, the evidence overwhelmingly identifies that in mid-February 2012 an incident occurred whilst the paternal grandmother was supervising the time her son was spending with X.

8. The father gives a version of that event in his evidence.  There is no evidence from the other person who was present, namely, the paternal grandmother.  Nonetheless, Exhibit 8 is a police record tendered to the Court which sets out what occurred on 25 February 2012 at 2.00pm.  It speaks for itself.  The result of that incident was the father says that he took the view his mother was undermining his parenting (the father saying that all he was seeking to do was to discipline X who he felt had been bullying a small female child on a trampoline) and expressed to his mother, he says, that he did not want X to be brought for time with him in the future, but that he was happy for X to spend time with his cousins, those being the children of his sister.

9. The father asked the Court to accept that his then failure to do anything to spend time with his son between the end of February 2012 and his filing an application in the Federal Circuit Court of Australia on 14 August 2014 was because he took the view that he should not be required to have supervised time with his son and was not prepared to spend time in any supervised environment.  Notwithstanding that the incident on 25 February 2012 included some very erratic behaviour by the father, including placing his hands around the neck of his sister (the father says loosely) in what could be described as an attempt to choke or suffocate her and attendance thereafter at the hospital where he had to be restrained by four security guards because of his level of agitation and thereafter was admitted involuntarily it seems for observation for a short period of time.  It was a credit to the mother, in my view, that even when she became aware of this ugly incident that she still sought to suggest to the father a proposal for contact at a contact centre.  In my view, that was the entirely proper and appropriate action by the mother at that time and was not, I am satisfied, taken up by the father because he was not prepared to undertake supervised time, believing, perhaps, from his perception correctly, but clearly incorrectly, that when the child turned five unsupervised time would occur.

10. The result of the cessation of time in February 2012 meant that when the father brought proceedings in August 2014 the Federal Circuit Court of Australia did not immediately order time, but it seems appointed an ICL and indicated that a psychiatric report should be undertaken.  A further family report by Mr B was also procured by the ICL.  That report was in some way shaped not only by the observations made by Mr B as set out in his report, but by the assessment of independent consultant Psychiatrist Dr D who saw both parties as his report filed in the Court on 2 April 2015 reflect.

11. I refer later to the evidence of Dr D.  I have no doubt that by this stage the father was becoming highly frustrated with the lack of progress towards him seeing his son.  It is likely, in my view, that his level of frustration was not assisted by the Order made 19 May 2016 (he at that time still represented whilst the mother was actually unrepresented) that provided at paragraph 4 the following order:

    “That upon the Independent Children’s Lawyer being satisfied that the visits between the Father and the child X born in 2009 (“the child”) ought to commence, then the parties arrange for visits to commence at F Centre or other Contact Centre nearest to the child’s place of residence, if the F Centre has long waiting period and the other contact centre is available to commence contact sooner.”

12. That contact never commenced because, it seems, the ICL was not satisfied that visits between the father and the child “ought to commence”.  I made the observation that I think it is inappropriate that such an order be made placing such pressure on the ICL to make that assessment.  Nonetheless, contact did not commence.  I am prepared to accept that one of the reasons why contact did not commence, at least, was the father’s failure to produce to the Court adequate evidence of dealing with his psychological and emotional dysfunction (as identified in Dr D’s report) of a satisfactory nature, together with his consistent resistance to spending any supervised time with X because it was simply, in his view, not necessary.

13. The evidence reveals that as the matter approached the end of 2016 and early 2017 the father’s frustrations became so marked that he sent a number of text messages to the mother which were of a highly inflammatory, provocative and, as Dr D described “concerning” nature.  In the witness box, the father was given the opportunity to explain his actions but, frankly, in my view, his insight into some of the text messages that he was taken to in cross-examination did him no credit.

14. He generally took the view, it seemed to me, that his remarks were understandable in view of his frustration; that anybody reading them would regard them as a joke and/or an expression of childish behaviour.  The mother did not see those text messages in that form and the Court does not see them as such either.  Without in any way seeking to encapsulate all the text messages in these Reasons for Judgment, the evidence which can be found at pages 33 onwards of the mother’s Affidavit that she relied upon for this hearing included comments such as this:

    “Do nothing get a dvo don’t matter I’ll do the time everyone is free to do anything they want in the end after the 25th if you have chosen to do nothing I’ll pop up when you least expect it so I leave this in your hands ok know anyone good at blowing candles out now that’s a threat it’s not to late yet.”

    “If you haven’t shared our kid by christmas day I’m coming to light you on fire how’s that?  Hahaha.”

    “I got some high octane racing fuel.”

    “You should get rid of some of that hair.”

    “Fuck xmas you won’t bother anyway I’ll be in your area this week I’ll come over and light ya up.”

    “You had a chance now you have no chance paper can’t save you bahahahaha.”

15. There are many other comments of a clearly threatening nature that the father chose to send.  Additionally, he made threats via Facebook at about this time to a person who he thought was in a relationship with the mother and may have been called by the child “dad”.  Again, whilst I can accept that this father was particularly frustrated – the level, intensity and frequency of his text messages that are contained in the material are seriously troubling and reflect an absolute lack of emotional regulation and control.  Not surprisingly, with such significant family violence being directed towards the mother through these text messages, the mother sought a Domestic Violence Order.

16. I am satisfied a Domestic Violence Order was ultimately made on a final basis in July 2018 for a period that continues in force to and including December 2022.  The Domestic Violence Order names not only the mother as an aggrieved person but her friend, Ms G and the child, X.  The terms of the Order made by the Magistrates Court were described, correctly in my view, by Counsel for the father as containing many very strict conditions which are not often found in domestic violence orders, including:

    “(3)     The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved.

    (4)      The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.

    (5)      The respondent is prohibited from following or approaching to within 50m of the aggrieved when the aggrieved is at any place.

    (6)      The respondent is prohibited from making telephone calls or sending text messages to the aggrieved.

    (7)      The respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved.”

1. I have no doubt that the father, from his comments under cross-examination, is well aware of the consequences that could flow if he were found to have contravened these very serious conditions contained in the final Domestic Violence Order.  I regard it as in many ways being the main reason that the father cannot be shown to have sought to contact the mother and send any further offensive texts.  In that regard, I accept that there were further text messages sent of an offensive and abusive nature by the father to the mother in April 2017 and November 2017.

2. I regard it as unfortunate in this case that the Orders made in May 2016 did not, despite, no doubt, the best case management intentions, result in a trial taking place or further steps being taken to consider alternatives for time between the child and the father before the Federal Circuit Court of Australia transferred the matter to the Family Court of Australia 18 months later in November 2017.  Thereafter, the ICL obtained an updated family report from report writer Ms C.  Ms C provided her report on 30 July 2018.  The Report Writer was the subject of cross-examination before me.

3. This Court was well aware that the delay in a trial being set was causing the father agitation. On some case management events, when the matter came to this Court, the father was unrepresented and found it difficult to control his emotions. He was at all times accompanied by his companion dog in Court, but even that was not always able to prevent him from saying things inappropriately. The Court listed the matter for trial in April 2020 on the basis that there was representation provided to the father under the section 102NA scheme.

4. However, all parties agreed, when it was not possible in April 2020 to conduct the trial face-to-face, that seeking to conduct the trial through Microsoft Teams would be unfair, particularly to the father, and that the matter should be adjourned until a time when a face-to-face hearing could take place.  This matter was listed for a face-to-face hearing to commence on 13 July 2020 and it proceeded for two days.  It is appropriate, in my view, to deal with the competing proposals within the matrix of the relevant primary and additional considerations, but before doing so, there are two discrete issues that are best dealt with by making findings first.

Violence Issues

1. As the chronology above sets out, the father’s behaviour in February 2012, when his mother was supervising time, and the nature, extent and consistency of text messages sent in late 2016/early 2017 and then again in April 2017 and November 2017, together with the Domestic Violence Orders that have been made by the local Court, all combine, in my view, to reflect that the father has been domestically violent towards the mother within the meaning of the Family Law Act 1975.  The evidence, in my view, is overwhelming.  It is not to the point, as Mr Cahill at one stage adverted to, that the mother has not been the subject to physical abuse by the father.

2. The evidence reveals that the father, in the opportunities he had to explain himself to report writers Mr B then Ms C and also, to some degree, Dr D, just failed to do so in any way that would have given the mother any comfort that his behaviour would improve without some form of treatment.  The mother, as a result, says, and I accept, that she felt that she had to protect both herself and X from the possible ability of the father to turn his serious threats into action that could have significant, even fatal, consequences.  The mother has lived with this behaviour circling her and the child at least since 2012.

Insight with treatments

1. It is a sad result of perhaps the failure by the father to have legal representation at all times, and/or because of the insight he has into his past behaviour, that he was not able to offer to the Court any independent evidence that could assuage the Court’s concerns about the risk he presents to the mother and the child when his emotional behaviour is dysregulated.  Again, I accept that to some degree, this might have been as a result of his lack of consistent legal representation, and no criticism of the lawyers who were retained under the section 103NA scheme is intended.

2. However, in my view, the father’s lack of insight and inability to obtain consistent treatment is demonstrated by at least the following aspects of the evidence:

   a)Prima facie, the father’s evidence in cross-examination reveals little insight at all into his actions or the effect his actions may have had on others, including the mother and the child.  He sought to justify the event in February 2012 because the paternal grandmother was seeking to “undermine” his parenting.  That could hardly justify his actions, which I accept were to some degree fuelled by excessive alcohol consumption, in loosely – if that is what it was – putting hands around his sister’s neck and doing the damage he did as set out in the police report;

   b)There is no doubt that alcohol has played a part in this man’s behaviour.  Exhibit 2 is a note of his general practitioner of 30 November 2012, in which he is recorded as indicating he was drinking upwards of 10 standard drinks a day.  That is excessive alcohol use on any test; and

   c)I have already noted his lack of insight into the seriously abusive and threatening text messages he sent, set out in the material and briefly identified earlier in these Reasons.

3. After the report of Dr D, which expressed some concerns about the father’s dysregulated behaviour and the need for him to obtain some treatment, there is evidence that the father did attend upon a Psychologist.  The best that is offered to the Court is Exhibit 4 (letter from Ms H, Psychologist dated 29 October 2015 and letter of 15 August 2016).  Ms H was not called for cross-examination.  His notes are not before the Court.  There is a dispute between the father and the evidence that he presents as to how many visits he actually had with Ms H. However, the letter of 29 October 2015 directed to the father’s General Practitioner at N Town confirmed that the father had:

   “…continued to attend the K Medical Centre for psychological treatment after being diagnosed with Persistent depressive Disorder and adjustment disorder.”

4. Ms H identified that the “psychological treatment goals” for the father had been “slow due to his lack of insight” such that Ms H requested the General Practitioner’s “support to make a referral to a psychiatrist for a revaluation of pharmacological intervention.”

5. The subsequent letter of 15 August 2016 from Ms H (addressed to “Whom it May Concern”) confirms that although Mr Stella, the father, initially consulted him on 1 June 2015 he only attended six therapy sessions between June and October 2015.  There is nothing in the letter of 15 August 2016 that indicates any other treatment of the father by Ms H after the last visit in October 2015 where after the father was referred to a Psychiatrist.

6. On 9 September 2016 Mr J (Psychiatrist) provided the report to the father’s General Practitioner at N Town.  The report is Exhibit 3.  It appears that the cross-sectional interview was undertaken by way of some form of electronic means.  I have read the report, but I agree with the submission of Ms Murphy for the ICL that little weight can be attached to the evidence of Mr J because at least:

   a)the evidence has not been properly tested, but more importantly

   b)the doctor does not appear to have had any collateral information available to him. Orders had been made in 2016 for information to be provided to Mr J and the notes from the medical service suggested notes may have been given to doctor after this report (on or about 8 November 2016 – see Exhibit 5), it is totally inconsistent with the evidence and is a flawed foundation for the opinion expressed by the learned Psychiatrist to say that the father:

   “…does not appear or has any history suggestive of emotional dysregulation.  This is evidenced by a lack of past history suggestive of impulsive behaviour including deliberate self-harm, incarceration or impulsive behaviour.”

7. As already indicated, such a foundation is not an appropriate one on the evidence before this Court.  A subsequent assessment made on or about 4 July 2019 (see Exhibit 6) only came to light after Dr D had given his evidence.  Again, the report, now to a General Practitioner at M Town in the area in which the father now lives, is similarly factually flawed.  It is noted that the Psychiatrist says in respect of the history that the father:

   “It appears that he received the diagnosis from the Psychiatrist allocated in 2014 from the family court as chronic dysthymia and emotional dysregulation.  He also reported that he was known to have anger outbursts ??emotional [sic] dysregulation which prompted him to have regular sessions with a psychologist.  During his contact with the psychologist, he was told he does not have any issues with emotional regulation.  There is no history of deliberate self-harm, contact with emergency services, incarceration or contact with Queensland Police Services.  He does not have a history of ADHD, Alcohol dependence which can increase his risk of aggression.”

8. Mr J’s report goes on to say that the father:

   “…does not give any history of impulsive behaviour, a history of incarceration related to assaults, impulsivity or any other involvement in social activities.  He denied having any history suggestive of aggression towards others.  Although he reported he previously commenced on a trial of antidepressants a year ago, which he took briefly, he does not have any history of psychiatric hospitalisation.”

9. That being the asserted reporting by the father to the doctor on or about 4 July 2019, it is totally inconsistent with the evidence before the Court, some of which the father now accepts as the case.  Sadly, the father saw the report from the Psychiatrist as a complete assessment of his psychological and psychiatric state and gave him effectively, as he would see it, a “clean bill of health”.  There is nothing further from the truth.  Dr D bided by the concerns he raised in his initial assessment of the father in 2015 and when, as directed by the Court, the ICL indicated that there was a recent report from a doctor, it was presented to him.  Dr D indicated that he would not change his opinion of the father which included significant concerns about the father’s aggressive behaviour and lack of emotional regulation.  Dr D was suitably cautious, bearing in mind that he had not seen the father for over five years.

Mother’s ability to facilitate time

1. I should indicate that I was very impressed with the mother in the witness box.  With the history that is set out above, I would not have been surprised to see a mother who was entirely negative about any possible future contact between the child and the father at any level.  Rather, she impressed me as an experienced parent who understood that this 11 year old boy, although expressing to Ms C in the more recent family report that he “does not have a father”, knows that he has a father and will ultimately be asking some questions. 

2. The mother expressed, and I accept comfortably, that she does hold a genuine concern reaching a level of fear that, if the father was to know of her whereabouts or that of the child, he could (not necessarily would) cause her physical harm.

3. The fact that the father has not been demonstrated to have made any comments to the mother since about mid-2017 seems to me to be partly for that period reflective of his understanding of the serious consequences that run from the final Domestic Violence Order, but also the fact that the mother assiduously blocked any contact with him, including him accessing her via telephone.  Nonetheless, she has maintained the same email address and so I acknowledge that the father has, pending this matter coming to the Court, not been shown to have repeated his behaviours as late as November 2017 in his abusive and threatening comments to the mother.  It was the mother with an eye to the future who, in her case outline, identified the benefit of the child of at least having some contact from the father by non-physical.

Primary considerations

1. Section 60CC(2)(a) of the Act that the Court must consider “the benefit to the child of having a meaningful relationship with both of the child’s parents” reflects the principles set out in section 60B(2) that:

   “… (except where 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).”

2. However, the words, “except where it is or would be contrary to a child’s best interests” are a prescribed reservation. Those best interests’ considerations, being the paramount consideration (see section 60CA), shape the Parliament’s intention and direction that section 60CC(2)(b) be given greater weight.

3. With no father figure available, X would benefit from a relationship with his father, if it is safe.

4. Section 60CC(2)(b) provides that the Court must give consideration to “the need to protect the child from physical and psychological harm from being subjected to, or exposed to abuse, neglect or family violence.”  In my view, on the evidence before the Court, the father presents at this stage as an unacceptable risk to X, and if he had contact with him the child could be the subject of physical or psychological harm as a result of the father’s inability to control his emotions and behaviour.  This finding, of course, is significant and is not made lightly.  It, however, is such a significant finding it shapes to a large degree the other considerations to which I now turn.

Additional considerations

1. I deal with these considerations as described by the Family Law Act 1975 in a narrative fashion. 

2. The most recent opportunity for the child to express some feelings or views about the father was the reported interview by family report writer Ms C in July 2018.  Ms C, at paragraphs 6.1 and 6.2 says as follows:

   “6.1On 22 June 2018 I conducted an age-appropriate interview of X at my office at L Centre.  X appeared to be well groomed and able to articulate his views about living with his mother but had no knowledge of his father and did not refer to his father at all during the interview process.  I spoke to X about my role and that I speak to children whose parents are no longer living together, but he appeared to have no knowledge of the court process or about his parents having separated.  X stated that he knew the difference between feeling safe and unsafe.  He said when you are safe, no one can hurt you and you are protected.  He said when a person is unsafe, someone can get hurt.”

   6.2X said that he lives with his mother and is in Year 4 at school.  He said it is very cold where he lives and he likes school and has a couple of friends.  I asked X if he had a father and he said he doesn’t have a father or grandparents.  He stated he has an older brother and an older sister who both have children of their own, making him an uncle.  X said he loves his mother very much and feels safe in her care as they spend lots of time together and she looks after him well.”

3. I explored with the report writer the context for X’s comment that he does not have a father.  My impression from the evidence given by Ms C was that because he has little recollection of his early parenting and contact with the father, coupled with lack of any reminders of his father, it suggests that the child has simply moved on, and it is not a matter that concerns him.  It is not a matter that he has made inquiries about at this stage, and he simply does not see it as necessary to have a father at this point in time.  I accept that at one point in time there is evidence that the mother’s then partner (a relationship which ended some years ago now) may have been described by the child as “dad”.  I accept that when this appeared in the report of Mr B, it would have been a distress to the father.  However, there is no other father figure in the child’s life, it seems, and therefore his comments to Ms C about not having a father within that context are perfectly understandable.  I return to this issue later in these Reasons.

4. The child has no relationship with his father at this stage and his primary, if you like, almost sole exclusive relationship on the evidence is with his mother who he treats well and who he believes treats him well.  Because of the history of the matter, the father has not been involved in decisions about any major long-term issues in relation to the child. He has failed to spend time and communicate with the child.  In this regard, it was, it seems, part of the father’s case that in some way the lack of time with the child should be attributed to the conduct of the mother.  I reject such a suggestion.

5. I am satisfied that initially the mother did what she could to facilitate time, but the father’s view that he would not spend supervised time with the child prevented that from progressing.  Thereafter, after he commenced proceedings and with his aggressive behaviour, it became problematic for any time to begin and none was ordered by the Court.  I accept that these facts prevented the father from really having an opportunity to be involved in major decision-making.  In the conclusions to these Reasons for Judgment, I deal with the additional consideration at section 60CC(3), mainly, “the likely effect of any changes in the child’s circumstances”, when considering the likely effect on the child, at least, and the mother of the orders being sought by the father being imposed upon the mother.

6. I have real concerns about the father’s capacity to provide for the child’s emotional and intellectual needs because of his psychological deregulation and his failure to have an insight into the effect of his behaviour upon the child and the mother.  I have no such concerns about the mother, nor do I hold any concerns about her attitude to the child or to the responsibilities of parenthood.  As I have already indicated, the mother, I think with some degree of concern, still prefers to see the father having the opportunity to send letters and/or cards to the child at appropriate times because of the reality that one day this child may seek out the biological father.  In this regard, at one level the Court expresses some concerns that the mother felt the child had a “right” to documents filed in this Court, including assessments of the father and/or other records available for the trial, as he got older.  Ultimately, children need to make their own decision up about their parents.  It may well be that this child will never seek a relationship with the father.  It may be that he will.  Whilst I accept that as an adult he is entitled to have an understanding of his mother’s perspective of the history (most of it accurately depicted by the evidence I have heard in this trial),  nonetheless, a parent needs to be careful about the way in which such messages are conveyed to the child.

7. It is for that reason, as well as other reasons, that during the course of this trial the Court indicated to the mother (but has chosen to make no such order) that after delivery of these Reasons, she may well benefit from attaining some personal therapeutic counselling, so that she has some strategies available to herself to manage the child’s future behaviour, which may include grappling with the father taking advantage of the orders I proposed to make about sending letters and the like to the child.

8. I am conscious of the Domestic Violence Order that was pronounced by the Magistrate’s Court at Suburb P, to which I have earlier referred, and to the history of family violence perpetrated by the father towards the mother in this case.  Whilst it seems likely the child was exposed to the family violence which occurred on 25 February 2012, the absence of evidence from the paternal grandmother and others makes it difficult to understand how much exposure to that sad family event the child was subjected to, and he was only two (2) years old at the time. Certainly, the child would not have been reading or had to process the very ugly, threatening text messages the father chose to send to the mother repeatedly from about November 2016 for some weeks. 

1. The Court is required by section 60CC(3)(l) to consider making an order which would “least likely to lead to the institution of further proceedings in relation to the child”.  In that regard, none of the Counsel invited the Court to consider making interim orders.  Although Ms C, in her assessment, said that if the Court was to order the commencement of some supervised time, it would be necessary for some initial and/or at least parallel counselling of the child to take place. In the circumstances, that could only occur if the Court was prepared to make an interim order to prolong this litigation.  I regard it as clearly contrary to the best interests of the child, and likely to have a significant effect upon the mother if these proceedings were further prolonged. 

2. The Court is required to consider at section 60CC(3)(m) “any other fact of circumstance that the court thinks is relevant”.  In my view, the mother’s care of X is not able to be sensibly criticised on the evidence before me.  She has, under significant circumstances of stress, uncertainty, constant litigation and the like (particularly these proceedings), had to manage a child as a single parent, and she has done a very good job.  That is even more to her credit when one considers the range of issues that this young boy had to deal with, as set out in the paediatric assessments attached to the mother’s most recent Affidavit.  Whilst it may be true that there are children who have greater “special needs”, X does have needs which need to be taken into account and are best achieved by reducing stress to him and proving him with a safe and stable environment in which to learn, play and live.  The mother is the focus of his life and, in terms of her history, he has been lucky to have her.  However, I am comfortably satisfied that any orders which were to provide for the mother to both facilitate even supervised time with the child and have the fear of supervised time moving to some unsupervised time, would have a significant and adverse effect upon the mother’s focus on parenting X as she does.  Coupled with that is the mother’s fear of the father identifying her whereabouts – a fear which is well-established on the evidence before me at this time.

3. Whilst it might have given further support to this finding to have the mother undertake psychological assessment and counselling and have a report from that person, reflective of the comfort the mother has that she is currently safe and protected (either by the inability of the father to find her, hopefully, and the orders made by the State Court), the mother has not sought out such treatment.  She presented in the witness box as a person now of robust character who has a plan for her son which she wants to execute.  In my view, it is overwhelmingly in the best interests of this child that the mother be entitled to do so.

Conclusion

1. The presumption of equal shared parental responsibility is rebutted by the family violence as I found it to have occurred.  As a result, the Court is not required to consider, and in this case the Court would not consider, it is remotely in the child’s best interests that the child have unsupervised time either equally, substantial, or at all. 

2. In my view, commencing a journey of supervised time that the father seeks would not be in the best interests of the child at this time.  I agree that the father’s attitude to parenting is such that he has not persuaded the Court that he would maintain consistency of any supervised time.  He has still a view that supervised time is not necessary, and there is nothing in his evidence to suggest that this is a view he is likely to change.  The child should not have to confront, either with or without therapy, preparing for visits which may not continue.  But even if they were to continue, the evidence is not sufficient to show that the child will even engage with the father in a meaningful way merely because he is the biological father.  He has had no relationship with the child for over eight years.  The child does not recognise him as a father figure.

3. Ms C, in her considered report, strongly recommended against commencing supervised visits.  I adopt her reasoning and her opinion as well-considered and founded on the evidence. 

4. This is a case which is tragic in many ways.  The ideal is for children to have a relationship with both of their parents.  Children do not get a right to choose their parents.  However, the father must take responsibility for the sad situation he is now in in terms of his relationship with his son.  Whether that was entirely consistently shaped by his lack of insight; his mental health issues; the fact that he blames the mother and/or the Court for all the delays, is not known.  However, although on the evidence I am satisfied that the father loves this boy and that he would want to have a relationship with him it is not in X’s best interest for that to be ordered in any form. 

5. In making orders which appear at the commencement of these Reasons as proposed by the ICL, I make these further observations:

   a)It is appropriate in this case, in view of the findings that I have made, that the order actually prescribe no time.  Clearly, others may be seeing this order, particularly the schools and other people who care for the child, as a highly adverse statement against the father.  That is regrettable but the “no order” words suffice.  At the very least, this might be interpreted as an expression of the mother’s sole parental responsibility and the need to be able to make decisions without consultation with the father.  The orders as proposed by the ICL will include a provision that the mother have liberty to provide the order to the child’s school and treating health professionals;

   b)The Court does make orders for the father to have the right to send cards and gifts as prescribed to the child.  They may sent in a way which would not be threatening to the mother.  The mother, as a matter of courtesy, should invite the child to respond.  If the father was silly enough – and I hope he is not – to use the order to seek to disparage or criticise the mother, then the mother would be entitled, in my view, not to pass on such communications to the child. However, the purpose of the order is to actually deal with the reality of the situation.  The child has a biological father who, I accept, loves him.  The child, at one stage of his life, either before he reaches majority at age 18 or after, is quite likely to want to investigate, if not meet, his father; and

   c)As a child, the mother can regulate the information he has, to some degree.  As an adult, she cannot.  If the child, as an adult, seeks out his father either by way of curiosity or for some other purpose, then it would be helpful to that relationship, if it is to develop, that the father have at least built some awareness in the child that he cares about the child and that one day he may see him.  The provision of reports from the child’s school are meant to allow the child’s progress to be known at some level to the father (although I accept such reports should be redacted so as to reduce any identifying remarks or comments about the child’s school or where he lives) so the child gets letters from the father which are shaped by the father having some awareness of what is going on in his life at school.

6. The order which I make is least likely to lead to further proceedings because, being a final order, there is little prospect of proceedings recommencing unless there is evidence of a substantial or material evidence about a change of circumstances from the position which exists today can be placed before a Court exercising jurisdiction under the Family Law Act 1975. 

7. For the reasons which precede this final paragraph, the orders appearing at the commencement of this Judgment are orders in the best interest of the child.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 22 July 2020.

Associate: 

Date: 22 July 2020

APPENDIX ONE

1. Ms Edwin, the mother, shall have sole parental responsibility for the child, X, born in 2009.

2. The child shall live with his mother.

3. The child shall spend no time with the father.

4. The father shall be at liberty to send gifts, cards and letters to the child at an address nominated by the mother.

5. Within seven (7) days of the date of these orders, the mother shall provide to the father a postal and email address to which the father may send those items pursuant to clause 4 herein.

6. The mother shall maintain the address nominated by her in clause 5 herein, and notify the father within 24 hours of a change to same.

7. The mother shall use her best endeavours to encourage the child to respond to any communication received from the father pursuant to clause 4 herein.

8. Not less than once per school term, the mother shall send to the father an update in relation to X, including a copy of his school report card.

9. Within seven (7) days of the date of these orders, the father shall provide to the mother a postal or email address to which she may direct such updates.

10. The independent children’s lawyer be discharged.