Vargas and Clarke

[2014] FamCA 109

FAMILY COURT OF AUSTRALIA

VARGAS & CLARKE [2014] FamCA 109

FAMILY LAW – CHILDREN – Family Law Act 1975 (Cth) – Where the father seeks joint parental responsibility – Where the father seeks a week and week about parenting arrangement – Where there has been family violence – Where the father’s child support payments are in arrears – Where the father was found to have capacity to make child support payments – Where the father was found to be obsessive in relation to the child – Where the father has indications of narcissistic personality traits and is paranoid – Where the father was found not to put the welfare of the child first – Where the mother was ordered to have sole parental responsibility – Where the child was ordered to live with the mother – Where the father was ordered to have permanent supervised contact with the child.

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Vargas

RESPONDENT: Ms Clarke

INDEPENDENT CHILDREN’S LAWYER: Ms Keyworth, Solicitor

FILE NUMBER: BRC 10951 of 2011

DATE DELIVERED: 28 February 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 10 February to 14 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	The Applicant Father appearing in person
COUNSEL FOR THE RESPONDENT:	Ms Frizelle of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Whitehead Payne

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson of Counsel appearing for the Independent Children's Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Keyworth Harris & Lowe Family Lawyers

Orders

IT IS ORDERED THAT:

1. The Mother have sole parental responsibility for the child C born … March 2011, but she shall keep the Father advised in writing as to any decisions she makes in relation to major long term issues, including health and education in the child’s life.

2. The Mother shall inform the Father in writing of any serious illnesses or hospitalisation of the child.

3. The child shall live with the Mother.

4. The child shall spend time with the Father at a supervised contact centre, preferably B Contact Centre that offers supervision operated by D Organisation, for a period of two (2) hours each week, if that can be accommodated, but at least for two (2) hours each alternate week if that is all that can be accommodated by B Contact Centre.

5. The Father shall have telephone communication with the child between

   
   

   5.00 pm and 5.30 pm each alternate Wednesday commencing on 5 March 2014.

6. If required, the Mother and Father shall do all things necessary to register with B Contact Centre forthwith and to participate in all necessary intake sessions so that the time that the child spends with the Father in the supervision of the Centre can commence as soon as possible. 

7. The Mother and Father are to share equally in the costs charged by the Contact Centre for such supervision.

8. The Independent Children’s Lawyer be discharged within six (6) months of the date of this Order.

NOTATION:

IT IS REQUESTED that Legal Aid Queensland do favourably consider extending further funding for another six (6) months to support the Independent Children’s Lawyer in this matter.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10951 of 2011

Mr Vargas

Applicant

And

Ms Clarke

Respondent

REASONS FOR JUDGMENT

1. An initiating application was originally filed in this Court in 2012 by Mr Vargas (hereinafter referred to as the “applicant”) for orders in relation to the parenting of a child, C born in March 2011, who was born as a result of a relationship by the applicant with Ms Clarke (hereinafter referred to as the “respondent”).  Very briefly, the parties entered into a relationship in or about 2009 and the relationship eventually ceased in or about the month of October 2011.

2. The final separation was engendered by an incident which took place in July 2011 in which it is alleged by the respondent that she had been assaulted by the applicant and injured, more of this anon.

3. An amended initiating application was filed on the 14 April 2013 in which the applicant sought that he have sole parental responsibility of the child, that the child live with him and that the respondent spend time with the child at I Contact Centre each alternate weekend at the convenience of the contact centre and the respondent to pay the costs associated therewith.  There are other incidental orders sought including communications and non-denigration.  I refer to and incorporate into these my reasons for judgment the original final parenting orders of the applicant.  I say in passing that the applicant has now resiled from such application and is seeking orders, as I understand him, for joint parental responsibility and shared parenting in that the child resides with each of the parents week and week about.  I would assume that subsequent mechanical type orders are sought by the applicant.

4. Considerable material has been put before the Court by the applicant, the respondent and the Independent Children’s Lawyer, and I indicate that I have read such material and that most, save for one crucial document, are referred to in each of the list of documents filed by the parties.  I point out that this crucial document is a report of a Dr P, who is a clinical psychologist and clinical neuropsychologist, dated 20 February 2013.  I note in the applicant’s list of documents he does refer to an affidavit of Dr P to be filed.  It was never filed and it staggers me that it was only on the second day of the trial that this document was put before the Court by the applicant.  As I have said, I consider this to be a crucial document since it in many ways corroborates the evidence of Dr F, a psychiatrist whose evidence has been of great assistance to me.

5. Needless to say the parties’ relationship has been very fractured in this case.  There are allegations by the applicant that the respondent is mentally ill; that she suffers from schizophrenia; that she has on occasions been admitted to hospital for mental ill health; that she consumes alcohol to excess and I emphasise this as being perhaps the most crucial part of the applicant’s case, is violent and abusive towards the child C. 

6. The respondent has another child by a previous relationship named S.  The applicant not only refers to this child but indicates that this child is a “psychopathic predator” and is abusive towards the child C.  S was born in April 2006 and consequently is now aged almost eight. S’s school teacher in 2013, Ms Q, gave evidence that she had no concerns about S being violent towards the other children in the class. She agreed that S gets along well with, and plays with the other children.

7. The respondent denies the allegations of the applicant and in particular she alleges that it is the applicant’s physical violence towards her; his excessive and almost obsessive attitude towards the child being taken to medical practitioners virtually every time that he had unsupervised contact with the child; his obsession with the child’s injuries and that he photographs the child on virtually every occasion that the applicant has contact with the child.  More of this anon.

8. The evidence surrounding the creation of a relationship between the applicant and the respondent was somewhat brief. It appears as though the parties have a mutual interest in Type A livestock and they met in or about June 2009 at a sale.  Thereafter they commenced a sexual relationship and moved in together in or about the month of September 2010, when the respondent moved into the applicant’s home at Town R. 

9. From his initiating application the applicant alleges as I have already said, that the respondent would consume large amounts of alcohol that he says had seemingly no effect.  He also alleges that the maternal grandparents would care for S.  He further alleges that the respondent’s personality was such that she would frequently have arguments with people at venues where she was working with Type A livestock. 

10. The applicant further alleges that it is he who was the principal caregiver of the child.  I do not accept this, but I note at paragraph 17 of his affidavit filed 29 May 2012, of an incident where the applicant alleges that the respondent left a prepared bottle of formula beside the bed when she left for a Type A livestock venue at about 5.00 am.  Surely this shows some concern for the welfare of the child?

11. The applicant goes on and particularises in this affidavit the amount of work that he did in relation to the child.  In particular he points out at paragraph 21 that he was concerned about the child’s health and as a result he was satisfying himself that the formula as prepared by the respondent would not be drunk by the child, and consequently he added a little bit of Cadbury drinking chocolate to the formula.  He alleges that he contacted his doctor about introducing the child to solids (see paragraph 21) and he noted thereafter the child had trouble with constipation and after being taken to the hospital he was diagnosed with anal fissure with reducible rectal prolapse most likely secondary to constipation, secondary to rapid dietary changes and inadequate fluid intake.  It is quite clear on the evidence before me that the person who insisted upon the diet changes including the child taking solids at a time which was clearly too early for the child, was the applicant (see report of Dr T of Town L Hospital dated 27 August 2011 being subpoena number 7).

12. Thereafter the child was accorded proper medical support by the respondent and it necessitated the child taking certain medication and also on occasions suffering some form of enema.  This caused the applicant great cause for concern in that on one occasion, when the parties were before the report writer and the respondent indicated it was time for the child to have an enema, the applicant became very distressed, but in no way as far as I am concerned stopped the respondent from in any way carrying out the enema procedure.

13. No doctor has in any way made any contrary complaint about the use of these matters and the applicant still is of the view that the respondent abused the child in relation to the use of enemas.

14. The first signs of the obsession of the applicant with the child is contained in his affidavit filed 29 May 2012, which I refer to and incorporate into these my reasons for judgment as examples of his obsessions.  The paragraphs are 22, 23, and 24 and the applicant also alleges that as a result thereof he was the full-time carer of the child.  I do not accept this.

15. It is alleged by the applicant that in or about the month of October 2011 the respondent did not return the child to his possession and he did not have any time with the child until early January 2012.

16. This affidavit to which I am referring supra, raises the question of the respondent’s schizophrenia and her alcohol abuse in that quite clearly and particularly at paragraph 43.

17. On 14 July 2011, an incident took place, to which I have already referred, which in my opinion does not in any way give the applicant any credit at all.  He sets this incident out in paragraph 44 and I might generally set out the complaints of the applicant.  He indicates that the respondent had been drinking all day and had consumed two bottles of wine and eight small cans of Rum and Coke.  He said that she had been at the Type A livestock venue early in the morning; that she had returned and at about 2.30 pm after drinking this considerable amount of alcohol she placed the child in the car and went up to the school to pick up S.  She then went to martial arts class and returned home at about 9.00 pm.  I asked the applicant certain questions as to whether he was of the view that the respondent was intoxicated at this time and he said; yes he was of that view.  I asked him why he did not restrain the respondent from taking the child in a car and he said that he did not wish to have a “confrontation with her”.  I must say in passing that I consider that the applicant has gravely failed in his duties to the welfare of the child, if he was right, in that he allowed his son to be put into a car and driven by a person he alleges was intoxicated by clearly the excessive consumption of alcohol.  The only reason that he gives is that he did not want a “confrontation”.  The applicant accepts that he was “derelict” on this occasion.  This is not the only time in my view that he has been “derelict” in his care of the child and his failure in putting the child first.

18. I have had the opportunity of seeing videos produced by the applicant from the police interview after the incident on 14 July 2011.  The video showed the respondent exhibiting considerable distress and the second video indicates that the former matrimonial home at Town R exhibited signs of damage and blood being around on the floor.  The applicant was arrested on a question of assault and subsequently a domestic violence order was served on him and a final order was made.  In passing I must say this is not the only domestic violence order the applicant has had made final against him for assaults upon women.  He had one earlier in relation to a Ms U who was a neighbour and he has had another against him from a Ms V who is the mother of his other child, W who is aged approximately 23 or 24 years of age, more of her anon as well.  The police have also attended as a result of phone complaints of W, who is a child of the applicant’s from a previous relationship.  W was about 17 at this time (see transcript of applicant’s evidence dated 12 February 2014 page 20 line 5 etc.).

19. The domestic violence order relating to the incident on 14 July 2011 was made on the 19 July 2011.  The applicant alleges that the respondent damaged him by causing him pain to his thumb.  He had a bad shoulder and this caused him pain as well and at paragraph 46 he alleges that he took three Nurofen for the pain to his thumb and shoulder and then went back to drawing on the computer.

20. There have been considerable approaches to this Court and I refer in particular to the Independent Children’s Lawyer’s chronology which is set out in their case information document filed 17 February 2014.  I note that since that time there appears to be no allegations made by the applicant as to injuries upon the child because as he said he was unable to examine the child in the presence of personnel at Relationships Australia Contact Centre.  I will be referring particularly to the evidence of Ms X in relation to this.

21. The applicant filed a further affidavit on 12 November 2013 in which he outlines his case.  He says that his case is that the child has been abused physically by the respondent; that he has shown consistently injuries to himself, some worse than others; that the applicant is of the view that the medical profession have supported him in his view that such injuries have been caused by the respondent; that further the child S (to whom I have previously referred) is a “psychopathic predator” and causes injuries to the child and as well S has caused injuries to a rabbit and a dog. The evidence that the applicant has in relation to the child is that only on one occasion did he observe S hitting the child C on the head.  Explanations have been given by the respondent in relation to the rabbit and the dog incidences, and I accept such explanations.

22. It is clear to me on the evidence before me that in fact the applicant is obsessive in relation to this child.  At every opportunity, he takes the child to a medical practitioner, to a hospital or to the Independent Children’s Lawyer’s office.  He has, on his own admission, on two occasions breached the Order of Principal Registrar Filippello made on 8 May 2013.  She ordered that the applicant not take the child to any medical practitioner and/or any hospital unless in the case of emergency and as well informing the respondent and/or the Independent Children’s Lawyer.  Obviously he has done this, as I have said, on two occasions at least, thereby breaching the Order of Principal Registrar Filippello.

23. The Independent Children’s Lawyer has extracted from the evidence a list of the approaches made by the applicant to medical practitioners and/or hospitals, being a list of the child’s medically identified being page 6 of the second submissions lodged by the Independent Children’s Lawyer on 19 February 2014. These, as I indicate, are medically identified injuries.  The applicant also alleges that the child has suffered other injuries which he did not refer to medical practitioners and/or the hospital, since it was his weekend for contact and he did not want to lose any time with his son.

24. An order was made by Principal Registrar Filippello on 6 March 2013, as a result of an application made by the respondent for the return of the child which, inter alia, ordered that the child be returned to the respondent by 6 March 2013; that the child live with the respondent and subsequent orders were made in relation to contact between the applicant and the child and with handovers to take place at contact centres.

25. Orders were made by Principal Registrar Filippello on 17 December 2013 that the parties were to attend upon appropriate medical practitioners to undertake liver functioning tests; such tests to include a Gamma GT; blood serum; and a carbohydrate deficient transferrin.  On the 24 January 2014 the Order was amended to indicate there should also be testing done of an ultrasound of the liver with such test to determine the damage of long term alcohol abuse.  In passing I may say that these tests appear to have been carried out with nothing abnormal detected.

26. Prior to this order an order had been made on 2 August 2012 by the then Federal Magistrate Lapthorn in which he noted that the parties should undergo a psychiatric assessment and he then ordered on 25 October 2012 that the parties attend upon Dr F psychiatrist for psychiatrist assessments to be prepared and that a family report be prepared by Ms E.

27. I have had the opportunity of not only reading Dr F’s report which was filed on the 19 April 2013, but also the two reports from Ms E, one dated 13 May 2013 and the other the 24 January 2014.

28. On 31 July 2013 the matter came on before Justice Forrest in which the respondent was seeking an order that the child be returned to her, the applicant having retained the child contrary to current parenting orders.  This was the second time the applicant had done this.

29. In Justice Forrest’s reasons for judgment dated 31 July 2013 (I must say that I find this judgment of great help to me and incorporate into these my reasons for judgment generally what his Honour has found therein), he ordered that the applicant’s contact with the child be limited and that such contact be supervised.  Justice Forrest noted that notwithstanding the order of the then Federal Magistrate Lapthorn the applicant has not complied with it at all.  He did not even suggest that the retention of a Dr P for a report was in any way an endeavour to comply with the orders of this Court.  I note that in fact none of the orders in relation to medical assessments and things of that nature, save for the blood tests, have been complied with by the applicant, eg. completing a Triple P Parenting course.  It was the order of Principal Registrar Filippello dated the 8 May 2013 which prevented the applicant from presenting the child to any medical practitioners without first consulting the respondent and obtaining the consent of the Independent Children’s Lawyer, unless in the case of a medical emergency.  I have referred to this supra.

30. It was not until the second day of the trial that we heard anything about a Dr P notwithstanding, as I have previously mentioned, there was some suggestion that an affidavit was to be filed. 

1. It is worth noting at this point that when I asked the applicant whether he had read Dr P’s report, he answered that he had not read much of it. I clarified the issue by stating that the report cost him $1,400.00 and asked again if he had read it, to which the applicant confirmed that he had not.

2. Dr P’s report is, in my opinion, exceptionally enlightening as in many particulars it corroborates and supports the evidence of Dr F.  I refer to this report which is dated 20 February 2013 and is Exhibit 5.

3. As Dr P sets out at paragraph 2, the reason for the referral was that the applicant self-referred to this service, following a recommendation from the child’s treating psychologist a Ms Y.  At paragraph 22 of this report Dr P states that the applicant wanted:

   …to undergo a psychological and parenting capacity assessment with regards to his own functioning.  He reported that he intended to use the report as part of his current Family Law Court Proceedings.  He stated that he wanted a non-biased report, as he was concerned that reports in the past had been biased.

4. Dr P in her extensive report set out those documents she has read (see paragraphs 6.1, 6.2 and 7).

5. The extensive report of the Queensland Police records and other matters to which Dr P refers (see paragraphs 7.38 etc.) shows a clear indication of aggressive and almost bullying conduct on the part of the applicant.  I note in passing that the applicant has indicated that he was a martial arts champion and considered himself good at it.

6. Dr P, after extensively reviewing the material put before her by the applicant and it was extensive material, I particularly note that at paragraph 9.11.1 under the subheading “Parenting Weaknesses” she stated that the applicant had…“begun to speak negatively about [the respondent] in front of [the child] and had to be promoted to talk about such issues later.”  This is one of the prime concerns that Ms E the family consultant has.

7. At paragraph 13.16.1 Dr P stated:

   13.16.1It is recommended that [the applicant] seek some sessions of psychological support to assist him with his adjustment and coping around the situation involving [the child]…

8. At paragraph 13.27.1 Dr P stated:

   13.27.1It is recommended that [the applicant] engage in some parent training classes, to improve his awareness of strategies to manage misbehaviour and promote positive behaviour.

9. These matters were referred to by the then Federal Magistrate Lapthorn and as I understand it has not been carried out by the applicant.  The applicant put up an excuse to the effect that he was waiting for Dr P to be finished with this matter and he would go back to her for the Triple P Parenting course and for the parental separation programs.  I do not consider that he has in any way endeavoured to comply with the orders of the Court.  At page 7 line 15 of the applicant’s transcript of evidence dated 12 February 2014, he said in answer to a question from Anderson of counsel as follows:

   ANDERSON:           Why should his Honour believe you when you say that when every – just about every recommendation – to be fair to you – or I think all recommendations that have been made by experts in these proceedings have not been complied with by you?

   APPLICANT:           Some I’m on the way to doing and some I haven’t done.

10. It was pointed out by myself that Dr P was the applicant’s own expert and that her report was some twelve months old.

11. Dr F to whom I have already referred, was of a similar view that in fact the applicant should receive psychological assistance and support and also he should undergo a parenting program.

12. I will say in passing that Dr P was of the opinion that the respondent should undergo a similar type of support as suggested for the applicant and this she has done.

13. Dr F was called to give evidence and did so in his normal fashion which was of great assistance to the Court.  But, after hearing of matters that he was not referred to, particularly the three domestic violence orders against the applicant and the fact that it appears that the applicant has breached the domestic violence order which came about as a result of the incident with the respondent in July 2011, tightened up his view of the applicant and came to the conclusion that the applicant, in all probability, has indications of narcissism and is suffering from paranoia.  This is somewhat of a concern.  Dr F is not of the view, notwithstanding that Dr P was, that the regime for the contact the applicant has with the child should in any way be changed.  Dr P was of the view there should be more contact by the applicant with the child, but that has been opposed not only to a certain extent by Dr F, but in particular Ms E the person to whom I have referred, who is the family consultant and gave two reports in this matter.

14. Further, Dr F has given his evidence and insofar as the respondent is concerned, Dr F says, after having been referred to Dr Z’s report, a psychiatrist who is assisting the respondent (see page 10; commencing at line 10 of Dr F’s transcript of evidence dated 14 February 2014):

    I would point out that it is my view that the mother has significant personality vulnerabilities herself, separate from any possibility of a recurrent psychosis in the context of significant stressors.  And that, as with the father, the fact that the mother has engaged in relationships which she herself describes as controlling and being every [sic] negative to her wellbeing, as well as the children’s, suggests that the mother would benefit from some exploration of that within a therapeutic relationship.  Whether that’s with a psychiatrist or with a counsellor or psychologist, I would leave that up to discussion with the mother and the general practitioner.  But I do think, again, the mother would benefit from some ongoing support in that regard.  And I would think that, longitudinally, the mother, whilst generally managing well, from time to time has struggled with her emotions and, I think, in those times of crisis, if the mother was able to reflect and learn some skills to more appropriately manage with them, I think that would be in the best interests of both her children as well as herself.

15. The respondent is, as I have indicated above, receiving support from Dr Z and she has complied with the recommendations in relation to further assistance contra the applicant.

16. Ms E in her first report expressed some concern about parental responsibility being shared and she says at paragraph 11.12:

    …the animosity between these parties at this time is clearly evident; it is also acknowledged that at the time of this report the parties had been separated for a period of less than twelve months…Notwithstanding this however, it is noted that incidents of domestic violence did and do characterise these parties interactions.  Whilst this remains the case, it is likely to be in [the child’s] best interests that communication between the parties occurs via written form and that both parties learn more effective skills to effectively communicate as co-parents without placing themselves in a position of exposure to further incidents of domestic violence….

17. At paragraph 11.13.1 Ms E notes that, “…[The child] shares a positive attachment with his mother…”

18. At paragraph 11.13.2 Ms E also notes that:

    [The child’s] current living arrangements allow him to spend time with [the applicant] each week; the frequency of this contact promotes [the child’s] opportunity to continue to share a meaningful relationship with the father.

19. The applicant has alleged that he is supported by medical practitioners and departments in his view that the child has been badly treated and has suffered injuries caused by, in particular, the respondent and perhaps to a lesser extent by S.

20. I refer and incorporate into these my reasons for judgment the following paragraphs of Ms E’s second report filed 24 January 2014 in which at paragraphs 9.1 etc. she goes into great detail. I compliment her as her reports have been of great assistance, setting out in those paragraphs the material gleaned from one Ms O a Child Safety Officer. 

21. In paragraph 10.1 she refers to the Queensland Police Service subpoenaed material and in paragraph 10.2 she refers to the Department of Communities Child Safety & Disability Services’ (“DoCS”) subpoenaed material.

22. I note the first reference in DoCS’ subpoenaed documents is a child concern report as far back as 2006, but that was in relation to the respondent and S’s father who subsequently died. 

23. The first child safety concern about the subject child in these proceedings appears to be 15 July 2011, none of which I see were substantiated, save in paragraph 10.2.15 there appears to be some concern about bruising; in 10.2.16 no injuries were sighted notwithstanding the applicant presenting with a folder, a USB and photos, but the photos were not sighted.

24. On the 7 January and 24 January 2013 the applicant presented the child showing, as he says, a pattern of bruises and alleged once again that S was a “psychopathic predator”.

25. On the 19 February 2013, DoCS said the following:

    Concerns in relation to [the child] previously presented to hospital with suspicious bruising and a poor relationship being observed between [the respondent] and the child.  [The child] was upset at that time unless mother left the room.

26. This view is clutched at by the applicant who says that Dr F falsified the evidence relating to this and alleges that Dr F said that the child was not upset unless the respondent left the room.  The applicant is of the view that Dr F wilfully falsified this evidence, and I have mentioned this before, but a registered nurse was called from the hospital and indicated that it was his writing and that the small circle in this document contained in the Town L Hospital subpoena, was the word “not” and in other words should read, …”the child was not upset unless the mother left the room.”

27. The applicant after hearing the evidence of the nurse withdrew his allegations of Dr F wilfully falsifying evidence.

28. The in-depth investigation by Ms E into all of the allegations made by the applicant, show that he is totally obsessive in relation to the child’s wellbeing.  Only on one occasion did Dr CC indicate that he viewed the injuries suffered by the child being two small finger type bruises, as being not consistent with normal childhood injuries.  Dr CC indicated in his evidence that he was of the view this was brought about by a hard pressure being applied by a hand to the child.  I do not see much moment in that evidence.

29. I find it necessary to once again incorporate into these my reasons for judgment statements made by Ms E at paragraphs 11.4, 11.5 and 11.6.  In particular at paragraph 11.6 I wish to emphasise what Ms E says:

    …Without substantiation of [the child] sustaining injuries, [the applicant’s] actions for [the child] are considered to be progressing towards a trajectory of detrimental and cumulative harm and are likely to result in not only a high risk of [the child] experiencing issues with medical facilities/examinations as he ages, but his actions are also likely to diminish the relationship [the child] currently possesses with his father.

    [my underlining].

30. Ms E further emphasises the comments of Dr F relating to the failure of the applicant to desist from making adverse comments in front of the child.  She says this demonstrates the long-term incapacity to prioritise the child’s needs before his own. 

31. She is of the view that on the information before her, and I am of a similar view, that the applicant’s behaviour has escalated and in paragraph 11.9 she says:

    Should the Court agree that the pattern of behaviour exhibited by [the applicant] has not desisted and has indeed escalated, it is my professional recommendation that [the child’s] time with him now occur under supervision;

    ….

    [The child’s] best interests are only likely to be further compromised the longer he is exposed to these circumstances…

32. At paragraph 11.10 of Ms E’s report (supra) she suggests that there may be facts supporting a Russell & Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993) finding. I note that counsel for the respondent has raised this suggestion also, but I have indicated that it was never pleaded. Having considered paragraph 11.10 as it suggests that there would be insufficient strength to support the Russell & Close doctrine.  Ms E did not refer specifically to Russell & Close.

33. As I have said before, I am particularly impressed with Ms E.  I was also particularly impressed with Dr P and Dr F and with the enormous amount of time and trouble being offered to the applicant in his obsessive quest to denigrate the respondent at every opportunity he possibly can.

34. I am satisfied on the evidence that the respondent does not have mental problems of any substance and that she does now not drink to excess.  I am more than satisfied on the evidence before me that the respondent has not abused the chid in any way which would concern this Court and is capable of looking after the child (see Dr F).

35. Neither am I of the view that the child’s half-brother S, has in any way acted as a “psychopathic predator” towards the child. 

36. I am more than satisfied on the evidence before me that the applicant is obsessive and that his continued taking of the child to medical practitioners and to hospitals is in no way benefitting the child.  Further, I consider that the applicant does not put the welfare of the child first.  I have already expressed my concern in relation to the alleged intoxication of the respondent when she put the child in the car and the applicant did not intervene.  Secondly, if in fact the view of the applicant is that the respondent is such a physical abuser of the child, I am staggered that he in fact now suggests that there should be week and week about residence of the child.  This would in effect put the child into a position in where he would be physically abused by the respondent.

37. I am also concerned that the applicant has been ordered as and by way of child support to pay an amount of $31.50 per month.  The applicant has failed to do so for the last 20 months and is in arrears to the extent of some $600.

38. The applicant alleges that he has little or no money, but points quite proudly as I see, to a trust which he set up in about 2004 in the name of his daughter W, which is called The W Trust, in which on his own evidence he has said since that time, has had a turnover of approximately $34 million in property development.  The applicant’s evidence about this trust is such that whilst it is not for me to determine whether in fact this trust is bona fide, it concerns me in that I am of the opinion that it smacks very much of an alter-ego situation.  I cannot make any finding of this for several reasons, one of which is that W who is the alleged beneficiary of this trust is not a party to these proceedings, secondly that there is an application for property settlement in the Federal Circuit Court and I would have thought that the existence of this trust or no or the validity of the trust or no, would be of extreme importance since the trust has according to the applicant, at least $3.4 million in assets in a property at Town AB.

39. The applicant alleges that he is the manager of the trust and that he takes such money as he would like from it.  He says that one Type A livestock, it is not clear whether it is his or the trust’s, costs some $2,600 per month by way of fees and that the trust pays for these fees.  As I have said, I have such doubts about the validity of this trust and further that it indicates the lack of sympathy with his child that he would not pay an amount of $31.50 per month but is responsible for an amount of $2,600 being paid for the fees for this one Type A livestock. 

40. The applicant has also indicated that he owns some nine or 10 Type A livestock, seven or eight of which are purebreds (see lines 15 to 35 on page 27 of the transcript of the applicant’s evidence dated 12 February 2014); he owns one Type A livestock for which he paid some $200,000 only a little while ago; and at this stage he has insufficient moneys to pay $31.50 per month child support for the maintenance of his child.

41. The respondent is on a disability pension and one would have thought would be struggling to make ends meet.  Fortunately the respondent is living with her parents and this does relieve her of paying rent.

42. I am more than satisfied on the evidence in  relation to this trust that there is some extreme doubt as to whether or no it is really an alter-ego of the applicant.  I note that the respondent filed an initiating application relating to property settlement on 11 October 2013.  This application is currently before the Federal Circuit Court and I also note that the alleged beneficiary of the trust, W, has not in fact been joined as a party, but I expect that that would probably change before the property matter comes on for hearing in the Federal Circuit Court.

43. Insofar as the credit of the witnesses are concerned, I am more than satisfied that the applicant’s credibility has been severally damaged by his subsequent admission that when he attempted to get a Justices Examination Order of the respondent’s medical condition, he used false statements in such an application.  I abhor any person who endeavours to mislead not only the Court, but in this case the State Body by his misrepresentations.  Further, the applicant has alleged that Dr F, a well-known psychiatrist and well-respected in this Court, was in fact falsifying medical records.  The applicant subsequently resiled from such allegation.

44. I have found the applicant to be a person with little credit and also a person who as Dr F said, is showing signs of paranoia and narcissism.  The applicant, in my view, does not put the interests of the child before his own.

45. The applicant has not realised that the continued taking of photographs of the child being on 14 occasions in a period of approximately six months, the removing of the child’s clothing in front of Ms X who is the CSS supervisor at the Relationships Australia Contact Centre, is in no way advancing the child’s welfare.  It tends to make the child become concerned, I would have thought, about his own physical being and it would obviously affect the child in relation to his relationship with the respondent and in his relationship with his half-sibling, S.

46. I must say that in my 38 years of experience in this Court, I was staggered at the selfish, self-centred view of the applicant who would do anything to blacken the name of the respondent in relation to the child.

47. The respondent herself is not well.  She most likely suffers from a Schizotypal condition as said by Dr F and she has had admissions to psychiatric hospitals on occasions  The respondent presented as a person who was somewhat aggressive and domineering, but obviously in my view she is much more preferred to look after the child than the applicant in any way whatsoever.

48. I note that whilst it was not clearly raised, there was a mention in the material before the Court that the child was of Aboriginal extraction.  No one has mentioned this with any force of validity during the trial but I note in the submissions of the applicant emailed to the Court on the 17 February 2014, he indicates, “the child is of [BB People] decent through paternal side of family”.  I do not believe in any way that the Aboriginality of the child looms in any way  at all in this case.  Nobody seems to have considered the right of the child to enjoy his Aboriginal culture and whether any order will in any way impinge upon his Aboriginality.

49. One further matter which I must emphasise is the evidence of Dr CC, medical practitioner, in which he was convinced by being verbally assured by the applicant that the respondent had suffered Hep C.  The evidence put before Dr CC by the applicant, was according to the applicant, a pathology report.  Dr CC gave evidence that he does not remember seeing that but did say to the applicant that if, in fact, she had Hep C it would be advisable to have the child tested.  The applicant went ahead with this test which as I understand, required three people to hold the child down who was extremely distressed, to take the test.  It appears that even if the respondent had had Hep C, the percentage likelihood of the child having it was 6 per cent to 7 per cent. 

1. I put to Dr CC this was an invasive procedure of the child, which he accepted and I also put to him, would he have made such a request for the child to have a blood test if he was aware that the respondent had an order in her favour for parenting the child?  Dr CC answered in the negative.  I further said, did he refer this matter to anybody and he said he had been told that it had been referred previously and I am of the view that Dr CC was not that particularly concerned about the welfare of the child. 

2. The applicant did not in any way, in or about March 2013, indicate to the respondent that it was his intention to have the child tested for Hep C and fortunately the report was negative in relation thereto.

3. Generally I found the applicant’s conduct towards the child and his view of the respondent quite disturbing and I have no hesitation in saying that, as far as I am concerned, considering that the parties do not communicate whatsoever, that in fact there could be no question of joint parental responsibility.

4. Having determined that, see MRR v GR (2010) 240 CLR 461, I have to decide whether or no there should be contact between the applicant and the child. If in fact it had not been for the evidence of the Contact Centre wherein the child does enjoy his time with the applicant and grudgingly the evidence by the respondent, I am of the view that in fact there should be contact. The contact must be supervised in order to enable the child to be, to a great extent, protected from the applicant continuing to take him to medical practitioners.

5. I note that since the order of Principal Registrar Filippello made on 8 May 2013 ordering that the applicant have supervised contact, the child has not been taken to medical practitioners notwithstanding on at least two occasions previous to this, the applicant breached the orders of this Court and took the child to a medical practitioner notwithstanding that the Court ordered that he not do so without informing the respondent.  The applicant says this was done on the request of governmental bodies.

6. Overall I have to look at the provisions of s 60CC.  The s 60CC factors are, I sincerely hope, patently obvious in these my reasons for judgment.

7. In my view, the applicant has failed in any way to endeavour to encourage a relationship between the respondent and the child.  He has not put the child’s welfare first; he considers his own position more important than that of the child.  His obsessive, narcissistic and paranoid personality can in no way allow this child to develop in a proper manner.  Generally his conduct is such that as Dr F has said the child can come to psychological harm.  I also find he has failed to maintain the child notwithstanding he has the capacity to do so.

8. Notwithstanding my findings above, as I have said, I have considered the question of reasonable contact.  I believe that it is reasonable for the applicant to have contact but that such contact be supervised and I will be ordering in accordance with same.

9. I note that permanent supervision according to the Full Court, is not in the best interests of anybody. But in this case, the applicant has not endeavoured to comply with suggestions of experts to seek help. Should he carry out such suggestions and seek help, the onus is upon him to make an application for unsupervised contact with the child 

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 28 February 2014.

Associate: 

Date:  28 February 2014