Verize and Hume

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERIZE & HUME

[2017] FCCA 922

Catchwords:
FAMILY LAW – Parenting – ability of parents to communicate – where one parent seeks to undermine the child’s relationship with the other parent.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Collu & Rinaldo [2010] FamCAFC 53

Applicant:

MS VERIZE

Respondent:

MR HUME

File Number:

BRC 11197 of 2010

Judgment of:

Judge Howard

Hearing dates:

3, 4, 5, 6, 7 & 10 April 2017

Date of Last Submission:

10 April 2017

Delivered at:

Brisbane

Delivered on:

10 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms Lyons

Solicitors for the Applicant:

Hooper Family Lawyers

Counsel for the Respondent:

Mr Clift

Solicitors for the Respondent:

Aylward Game Solicitors

Counsel for the Independent Children's Lawyer:

Mr Carlton

Solicitors for the Independent Children's Lawyer:

Sarah Cleeland Family Lawyers

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

That all previous Orders be discharged.
That the child X born (omitted) 2010 (“the child”) live with the mother.
That except as otherwise provided for by these Orders, the mother have sole parental responsibility for the major long-term parenting issues of the child of the parties, including decisions regarding the child’s:
(a)Education, both current and future;
(b)Religious and cultural upbringing;
(c)Health;
(d)Names; and
(e)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the child to spend time with the other party.
That the child spend time and communicate with the father at all times as may be agreed between the parties and failing agreement as follows:
(a)That there be no time and communication between the father and the child for a period of six (6) months immediately following the making of this Order;
(b)Thereafter the child spend time with the father supervised by an independent professional supervisor with the “Life Care” facility at (omitted) on a one on one basis each alternate Saturday or Sunday for a period of three (3) hours as can facilitated by the supervisor and at the father’s sole cost;
(c)On special occasions supervised (as can be facilitated by the supervisor and at the father’s sole cost and subject to Order 4a) as follows:
(i)On Father’s Day for a period of three (3) hours supervised;
(ii)On Christmas Day for a period of three (3) hours supervised;
(iii)On the father’s birthday for a period of three (3) hours supervised;
(iv)On the child’s birthday, by telephone call as can be facilitated by the Supervisor.
That the father’s time with the child shall be suspended on Mother’s Day.
That the parents do all acts and all things necessary to enrol in an intake contact centre at the “Life Care” facility at (omitted) within twenty-eight (28) days of the date of these orders.
That the father is enjoined and restrained from:
(a)Communicating with the mother verbally or via email and text message;
(b)Approaching the mother or child and/or the mother’s partner;
(c)Approaching or communicating with the child’s school and/or health practitioners and/or the (language omitted) school and/or extracurricular activities.
That this Order is authority for the mother to provide this Order to the child’s school.
That this Order is authority to release these Orders and the associated reasons to the Department of Communities, Child Safety and Disability Services.
That the father release the child’s passport to the mother’s solicitor’s office by 5:00pm on 12 April 2017.
That the mother shall attend upon the (omitted) facility or any other suitable organisation to obtain assistance and/or counselling for the child as appropriate.
That during the time the child is with either party, that parent shall:
(a)Respect the privacy of the other party and not question the child unduly about the personal life of the other party;
(b)Speak of the other party respectfully; and
(c)Not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the other party’s family in the hearing or presence of the child.
That within fourteen (14) days of the date of these Orders, the father attend upon his General Medical Practitioner for a referral to a Psychiatrist or Psychologist as determined by the father’s General Medical Practitioner.
That on receiving the referral from General Medical Practitioner that the father is to notify the Independent Children’s Lawyer of the Psychologist or Psychiatrist.
The Independent Children’s Lawyer is authorised and directed to provide to the father’s treating General Medical Practitioner, Psychologist and/or Psychiatrist a copy of the Family Report of Ms. Ms R dated 12 February 2017, the Report of Mr S dated 6 October 2015, the Report of Dr. Ms M dated 23 November 2015 and any published Reasons by his Honour Judge Howard.
That the father is to attend upon his treating General Medical Practitioner, Psychologist and/or Psychiatrist as required and continuing to attend upon them as directed by the relevant Practitioner.
That the Independent Children’s Lawyer have liberty to apply upon the giving of three (3) days written notice to the Court and to the other parties.
That this matter be adjourned for Mention to a date to be fixed in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED:

(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11197 of 2010

MS VERIZE

Applicant

And

MR HUME

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

A.These reasons were delivered ex tempore on 10 April 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

This is an application for parenting orders. The case relates to one little boy whose name is X. He was born on (omitted) 2010. X has recently turned seven years of age. X currently lives in a week about shared care arrangement with his parents.
The applicant mother in these proceedings, Ms Verize, lives at (omitted), and the respondent father, Mr Hume, lives at (omitted) or (omitted). The child attends the (omitted) School at (omitted).
Proceedings in this Court were originally commenced as long ago as November 2010. To the extent that I need to correct any of the dates, when I have said all these reasons I will do so. To the best of my recollection, one or probably, in fact, two sets of final orders have been made. The current proceedings before the Court, as I understand it, looking at the Court files here, date back to 3 February 2015 when the mother filed an initiating application. So for just over two years the matter has been before the Court in its current format in these proceedings, but on and off over a period of six to seven years there has been litigation, applications of one kind or another.
The matter was set down for a final hearing earlier this year in February. But the matter could not proceed because the father’s material was not ready. So the matter was adjourned and the matter was commenced last Monday, 3 April, and it was set for five days.
The matter reached a stage where, late last week, it became apparent that there was a diary kept by the father. It has become exhibit number 14. It had not been disclosed by the father until last week, and notwithstanding the very late disclosure, it was fortunately possible for counsel for the mother, Mr Lyons, and counsel for the Independent Children’s Lawyer, Mr Carlton, to read the diary and cross-examine the father on the contents of the diary.
Now, obviously that was a completely unacceptable situation. But counsel did the best they could in the circumstances, because the Court was very much inclined to avoid any situation that would delay a finalisation of the trial. Indeed, it was possible for the diary to be sent, after directions from the Court, in an electronic form by the solicitors for the father to the Independent Children’s Lawyer who then passed it on to the family report writer, Ms R, and to the psychiatrist, Ms M, for their views. My recollection is that it was only Ms R who was then available to be heard, subsequently.
But also Mr S, who had provided an earlier family report, was able to peruse the diary, read the diary, as necessary, to the extent that he needed to, and Mr S gave evidence late last week, having read the diary. But then during the course, I believe, of Friday’s evidence it became apparent that yet another diary existed, referred to as the “personal diary” of the father. I should say, part of it has now become exhibit 16. There is more to come.
Parts of that personal diary apparently have or contain legal advice which the father received which, of course, is privileged. It also apparently contains musings of the father, thoughts of the father, in relation to his legal advice and to the extent that there is any connection with the legal advice or reference to it – it seems to me that it would be the subject of privilege, but the difficulty at the moment is that that diary has not as yet been completely redacted and has not been provided in its entirety to the other parties.
Exhibit 16, so far, is a white folder with a large number of photocopied pages, hundreds of pages. The reason that this matter has been prevented from being finalised at this stage is because of the failure by the father to make timely disclosure of relevant documents – in particular, as it turns out, exhibit number 16. It was possible to get by with exhibit 14’s late arrival. But exhibit 16 was a step too far. And in order to accord procedural fairness to the mother and to the Independent Children’s Lawyer (which really means the child) there needs to be a break now before the matter is considered further.
The question for consideration is – what should happen? How should what has occurred to date be characterised; namely, should the trial be part-heard and adjourned for further hearing? Or should what has occurred over the last five days be, in fact, viewed as one very long interim hearing? And my conclusion in that regard is very much guided by my conclusion in relation to the case generally.
The matter will be considered as an interim hearing. The reasons are that the overwhelming weight of the evidence leads the Court to draw certain conclusions. And I will begin to refer to those conclusions shortly. But they have led me to conclude that the child’s best interests, which always is the paramount consideration, can only be served if there is a moratorium of the father’s time with the child of six months. And I will begin the long process of providing the reasons for that. The overwhelming weight of the evidence leads the Court to that conclusion, as I said earlier.
Because there will need to be a moratorium of the father’s time, there will, then, need to be a period of supervised time. The Independent Children’s Lawyer is correct in this respect. As to whether the father ever does move from supervised time remains to be seen. And it will depend upon the evidence at that point in time. The Court, therefore, is in a very difficult situation. Having heard five days of evidence, the matter cannot be part-heard. To do so would mean a delay of a year before the next day of hearing takes place.
This is an impossible position in which to place the Court, the lawyers for the mother, the lawyers for the child, the Independent Children’s Lawyer and, frankly, an impossible position for the father’s own lawyers. When I say “impossible”, what I really mean to say is it is an unacceptable position, and one which I will not tolerate, and nor will I allow it. Obviously, anything is possible with the use of transcripts.
But decisions of this Court in the parenting jurisdiction, whether they relate to adjournments, whether they relate to parenting orders, whether they relate to this sort of decision – that is, should it be a part-heard trial or should it be an interim hearing – they still come back to this paramount consideration of best interests of the child. And the child’s best interests cannot be served, it seems to me, by putting his parents in a position and putting his parents’ lawyers in a position where they would be required to, at some stage in about 12 months time, review many, many hundreds of pages and hours of evidence and then begin an adjourned hearing.
It is simply not feasible. And in any event, the evidence is such that the delay is needed. And frankly, whilst I am certain that as we sit in this Courtroom this afternoon, the father will be feeling very despondent and upset, what I hope that he eventually comes to realise is this – that without this time, without this adjournment, in fact, if it had gone to a final hearing today or tomorrow, the father has to be aware that the situation was likely to be much worse for him because the Court would have been compelled to make final orders. After what I have heard in the last five and a half days it may not have been possible to make a final order that took this matter beyond supervised time for the father.
So, in fact, on reflection – and I urge the father to reflect on this, because I know he loves this child dearly, and the child loves him. I urge the father to reflect and to keep this in mind: that he – that is, the father – must use this time, for X’ sake, to receive any and all necessary counselling, whether by a psychiatrist or a psychologist – and I will come to that later. But the father needs to do that because these issues that I will identify and what’s called by Ms M as the “risk factors” that the father portrays (that impact upon his parenting capacity) – and I am reading from page 24 of 29 of Ms M’s affidavit filed 30 November 2015:
“…Mr Hume has risk factors that impact on his parenting capacity, noticeably personality traits in the dissocial spectrum which impact on his capacity to make child-centred decisions and to support X relationship with his mother.”
Now, the reality is that these issues, according to Ms M and according to Ms R, can be addressed through counselling, but only if the father engages with the counselling. What that means is – I think Ms R might have used these words – if not, to use the vernacular, the father must “own” this situation. The father must “own” this situation in which he finds himself. The weighing of the child must stop. The photographing of the child must stop. The obsessive documenting of the child must stop. The continual reporting of the mother in relation to alleged abusive behaviour towards the child must stop.
Unless the father can stop those things, unless the father can completely compartmentalise his own concerns (if they persist) and leave them separate from the reality of his day-to-day life, I cannot see a situation where a Court would be willing to order anything other than supervised time. There was one “substantiated” finding by the Department of Child Safety against the mother many years ago which was not long thereafter changed to “unsubstantiated”. But the father has continued to photograph every bruise, mark, scratch, and so on.
The Court, therefore, having reflected on what should happen throughout the course of today, whilst I heard submissions from this morning, has come to the conclusion that there does need to be a moratorium. The Court must provide reasons for judgment. At this stage, the Court is in a position, as opposed to most interim parenting cases, where there is normally no oral evidence, the Court has had the benefit of five days’ worth of evidence which allows the Court to make findings. Indeed, the Court is not only in a position where it can make findings, the Court is in a position where it is obligated to make findings.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) states, inter alia:
“SECTION 60B OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60B of the Act is where I will start therefore sets out the objects of Part VII of the Act. That objects include that the best interests of children are met by (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives. The next words are crucial. The words are “to the maximum extent consistent with the best interests of the child”. And (b) the objects of Part VII are to ensure that “the best interests of children are met by protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence”. So they are two of the guiding objects or principles in Part VII.

“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER

60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Turning to section 60CA. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act sets out how it is that a Court is to determine what is in a child’s best interests, and section 60CC(2) sets out the primary considerations. Section 60CC(2) and (2A) state:
“Primary considerations
60CC(2)    The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

In relation to the primary considerations, obviously, there is benefit to X in having a meaningful relationship with both of the child’s parents. Mr Clift of counsel on behalf of the father has pointed out, and quite rightly so, the evidence of Ms R about the close attachment that young X has to his father and to his mother and there is other evidence there from Ms R about the excellent relationship between the child and the father. But of crucial importance in this case (at this stage) is section 60CC(2)(b) which talks of the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence – and section 60CC(2A), in applying the considerations set out in subsection 2 the Court is to give greater weight to the considerations set out in section 60CC(2)(b).
So greater weight must be given to the second primary consideration; namely, the need to protect the child from physical or psychological harm, from subjected to or exposed to abuse, neglect or family violence. In considering the evidence so far as it relates to these issues, I will start with a concession that was made by the father. The concession was made by his counsel on his specific instructions. The father does not seek any finding by the Court against the mother in respect of the father’s allegations that the mother was abusive towards the child or that the mother neglected the child’s needs.
When I first heard that concession, I was heartened because I thought that that may mean that some significant steps forward may be achieved through the process of the litigation and the trial. Some significant steps forward may have been achieved because up until that point in time the father had maintained for a very long period of time that the child was at risk in the mother’s care and, indeed, that the mother was both abusive of the child and/or neglectful of the child.
So having heard that concession by the father, I was heartened. However, in truth, it amounted to an utterly useless concession which was inherently dishonest for the following reasons. On the one hand, the father claims not to seek any findings against the mother for the alleged abuse and neglect but the problem is – the father does not believe it. The father still holds all the beliefs that have been documented in the father’s own trial affidavit (the reconfigured version).
I pause here to note that the Court was provided with an intolerable affidavit from the father. Many hundreds of pages of affidavit material which made reference and sought to incorporate thereby other affidavits of the father, and at the direction of the Court the father was required to reconfigure his affidavit to at least reduce any extra references in the trial affidavit to other material or other affidavits. As it turned out, several affidavits were still annexed to the trial affidavit. One of those was the 27 January 2017 affidavit. That seems to be the date it was sworn. In paragraph 29, under the heading of History of Court Proceedings, the father states:-
“29. There is a lengthy history to this matter. I have held a number of serious concerns for X whilst in Ms Verize’s care related to her mental health issues and parenting capacity. My concerns include:
- Ms Verize physically, emotionally and psychologically harming of X.
- Ms Verize being incensed and offended by the closeness of the love and bond between myself and X.
- Ms Verize being motivated by malicious retribution for my impeding her abduction of X and holding her accountable for her mistreatment of him, her anti-social behaviour and the imposition of Court Orders to address same.
- Her use of X to cause the maximum amount of personal and financial trauma to me, by persistently engaging in all manner of anti-social, passive/aggressive behaviour and undermining of X’s and my relationship.
- Ms Verize neglects and denies the right of X to sufficient nutrition, hydration, sleep routine and healthcare.
- Ms Verize exposing X to foreseeable and preventable harm.
- Ms Verize delivers X home to me ill and/or injured without any explanation.
- Makes false allegations about me, my good character and parenting ability.
- Lies about her responsibility for the neglect and harm of X whilst in her care.
- Blames me and/or provides implausible unsupported stories for X neglect and harm.
- Coaches X to make negative references in relation to myself.
- Ms Verize abjectly refuses to communicate/co-parent in a pro-active/supportive manner in X’s best interests.
- Regularly orchestrates circumstances whereby X cannot attend events and functions that X and I are scheduled to share.
- Engages in and supports the online denigration of myself and X and our relationship.
- Coaches X to fear police and remain silent with regards to his neglect and harm.
- Habitually impedes communication between X and I.
- Fails to support X’s academic and religious education.
- Ms Verize refuses to contribute to or reimburse the funding costs of X medical, educational and extracurricular activities expenses.
- Denies X freedom of expression/experience through family, sport and religious restriction.
- Incites conflict so that she can claim to be a victim of it, including habitually contravening Court Orders.
- Ms Verize cannot be relied upon to maintain her mental health medication regime or sessions in X’s best interests, court ordered or otherwise.
- Ms Verize is disrespectful and verbally abusive towards X’s care providers.
- Ms Verize rejects all genuine opportunities for the improvement and settlement of matter in X’s best interests.”
The father starts that paragraph by saying, “There is a lengthy history to this matter. I have held a number of serious concerns for X whilst in Ms Verize’s care related to her mental health issues and parenting capacity. My concerns include Ms Verize physically, emotionally and psychologically harming X”. Another subparagraph reads in paragraph 29:
“Ms Verize neglects and denies the right of X to sufficient nutrition, hydration, sleep routine and healthcare. Ms Verize exposing X to foreseeable and preventable harm.”
When cross-examined by counsel on behalf of the mother (at the commencement of the cross-examination of the father), the father confirmed that he still holds all of those views in relation to the mother. They are not only historical views; they are his current views in relation to the mother. That is why I say that the concession made was inherently dishonest. The father puts it forward and then tries to convince the Court that he has turned the page and that he is looking to the future. They were the words used by the father.
The truth is he is not looking to the future. The truth is he holds all of these concerns, some of which I have just outlined. Not only does he hold all of these concerns, the father continues to weigh the child. He either weighs the child himself or takes the child to a doctor to be weighed. My attention has been drawn to a reference in the most recent exhibit (number 16 – disclosed today on day 6 of the hearing) to the fact that after a visit to the doctor where the doctor weighed the child, the father then took the child home and weighed the child himself. The father weighs the child and documents it. The father photographs the child and documents it.
Exhibits 10 and 11 show an extensive number of photographs of this child by the father in the most invasive manner, and the father, on two occasions last week – was given the opportunity to confirm that he no longer photographs the child, but I do accept that in answering this question he was indeed telling the truth. He stated on two occasions, to my recollection, that he does continue to photograph the child if the child has suffered an injury or if the father thinks the injury is serious enough.
So there is this underlying mistrust by the father of the mother still, and any childhood incident that may occur, any childhood accident that may occur, any childhood injury that may occur to the child in the mother’s care becomes, in the father’s mind, the mother’s fault caused because the mother is either abusive or neglectful or both.
The father weighs the child and documents the weight, the inference of course being – or I do not even need to worry about inferences – the very clear allegation by the father is that the mother does not feed the child appropriately or adequately and the child loses weight whilst in the mother’s care. But there is no evidence at all that this child is suffering from malnutrition. The boy might not be in the highest percentile of the population in respect of his weight for his age, but there can be any number of reasons for that.
The abuse or neglect of the mother has not been proved. We have had all of the mother’s evidence concluded. We have had every other witness concluded, except the father. There was some talk that Dr M might come along. Dr M made a note about the child’s weight and that it had reduced by two and a half kilos over the course of a couple of months, with no explanation. I am not satisfied as to precisely whose care the child was in throughout that period of time. I am not satisfied that no matter whose care he was in, that it amounted to anything approaching neglect or abuse or deprivation of food or deprivation of nutritious food or anything else.
It may just be, I think as Ms R said, that the child was off-colour. There was some reference, I believe, to the fact he may have had tonsillitis at the time. It may have been any number of reasons. It may have been that he runs around a lot more at his mother’s house and is more sedentary at dad’s, noting, as I recall the evidence, that dad lives in an apartment, and I think they were explanations given by Ms R – plausible explanations.
There is no expert evidence that this child has suffered from malnutrition, and yet the father tells the Court (the other day in his evidence) that he maintains the view that the mother neglects or denies the right of X to sufficient nutrition and hydration. Probably it is the case, or certainly it is the case that the father and the mother might have different parenting styles in relation to the child, but the problem for the father is, and it seems inevitable that the conclusion to reach is that the opinion of Ms M is correct, that because of the personality traits displayed by the father in the dissocial spectrum – that he is not able to come to a conclusion that anything other than his precise style of parenting is less than appropriate.
That is the conclusion he reaches in relation to the mother, but unfortunately it is a lot worse than a conclusion of less than appropriate, because he seriously thinks that the mother is abusing or neglecting the child.
There is before the Court an affidavit that the father swore on 30 April 2015, it was filed on that date, at least, and in that affidavit itself there is annexure H25. The father puts this before the Court himself. The lack of insight by the father is breathtaking and is to an extent that I have rarely seen in 10 years of deciding parenting cases.
The father continually questions the child. There is nothing to suggest that he has stopped doing this. The inference, in fact, that I draw is that he continues to do it. He asks the boy leading questions. By way of example, 2 May 2014, part of H25 to the father’s affidavit to which I have just referred:-
Father: “Daddy loves you, so you do not need to be worried. Okay? So you’re not worried.”
Child: “I am.”
Father: “What are you worried about?”
Child: “I don’t know.”
X ends the sentence “I don’t know.” The father says, of his own volition, “Are you worried about going to Mummy’s?” “Yes”, says X. The father says – “What are you worried about going to Mummy’s for?” The child says – “I do not know.” How the father could have thought that was a good idea to put it into the boy’s head by means of a leading question of that kind is simply beyond me.
The father gave some detailed evidence about this, too. And he said he starts to prepare dinner at home. X sits up on the couch. Sometimes, X is quiet. And the father knows that that is when X wants to tell him some things. So the father turns his recording device on, if I remember correctly, and records the child. The only possible reason that this father is recording the child, or has recorded the child, is to gather evidence against the mother.
That is a conclusion that is simply unavoidable. The father thinks the mother abuses the child and is neglectful of the child. So the father questions the child and records what happens. The same goes in relation to the photographing of the child. The father tried to maintain at one stage that he was able to photograph this child without the child knowing that he was being photographed. How that is possible is beyond me. I do not accept that evidence.
I do not accept that – it is possible to photograph the child without the child knowing. Looking at exhibit 11 is like nothing I have witnessed in 10 years on the Bench. The number of photographs, the number of issues, whether it relates to mosquito bites or flea bites, marks, scratches, bruises. Exhibit 10 shows the bruise to the child’s penis. The urologist concluded, if I remember correctly, that the bruise was not likely to have been caused by abuse.
That’s my recollection of the evidence. There is no existing conclusion by any independent expert, any doctor, that any of the issues, any of the matters photographed and currently in evidence, were as a result of abuse or neglect by the mother, but amount to, put it this way, things that happen to children in their childhood.
The child is happy. Remarkable, at least to this extent. The child has a good relationship with the mother and a good relationship with the father. The problem, as identified by Ms R and Mr S is that the father’s behaviour, if it does continue into the future, will lead to a situation where the boy will be old enough to become acutely aware of what is going on. There is already some reference to this in the evidence of the mother, I believe, who indicated that the boy has already said that, “Dad takes photos of me”. And the impression I gained from the mother’s evidence and the inference I draw is that the boy is uncomfortable about that.
The father was advised by the police. Exhibit number 1, page 93 makes it clear that in March of 2014 the police told the father to stop asking the child inappropriate questions. The father, in fact, played for the police to listen to, a recording on his iPhone of an interview with the child. This confirms my conclusion that the purpose of the father recording the child is to gather evidence against the mother. Page 93 of Exhibit 1 reads:
“He then played a recording on his iPhone of him interviewing the child, clearly after an earlier conversation. The father stated during the earlier conversation whilst the child was on the toilet, the child said nothing happened, and then changed to being hit. Then he recorded the conversation. During the conversation, the father used leading and judgmental questions.
The child’s version changed during questioning by the father. However, the crux was that he was at the shops looking for a toy (omitted) and found the model he wanted. He took it and a girl/woman hit him in the chin. Police came to look for the naughty girl. During various stages, he was with his mother or alone with this girl and his interactions with the girl changed. The father has an interest in (omitted) and looking for this model.
It was brought to the father’s attention that the type of questioning he used was inappropriate and could damage the credibility of the child.
He disagreed with the police, stating he was just trying to protect the child. Police investigators informed the father the injuries were insignificant and did not by themselves present as being suspicious, the father disagreed.
It was discussed with the father that any distortion of the seriousness of any injuries, questioning a child in a leading manner, and multiple trips to doctors, DoCS and police could have effects that include emotional harm to the child by embroiling them in the parents’ conflict and damaging his and the child’s credibility to a point where any criminal case could be compromised.
The father said he stated he understood, but stated the system couldn’t protect his son from the mentally ill mother. He stated to investigators the child was being harmed in a serious and systematic manner. And the system was against him. The roles of the QPS, DOCS and the Family Law Court was explained. He stated it was no use as DOCS lied the first time.”
So the father was told in March 2014, essentially, “Don’t question the child like this”. And yet the father continued to do this. This is one of many examples in the evidence, of the father not accepting guidance, not accepting advice, from experienced professionals in relation to his conduct. This was March – 3 March 2014. On 2 May 2014 there is the note that I just read earlier from annexure H25 of the father’s affidavit filed 30 April 2015. The father was again questioning the child with leading questions.
This is a serious issue. The father to date has shown that he is not willing, or not capable, of actually taking on board advice and directions from professional people. The police, for heaven’s sake. The father has indicated he wasn’t happy with DOCS. The father has indicated – he mentioned that several times. I do not recall there ever being any direct complaint by the father in the witness box, whether he was happy or not happy, with the police. I can only infer that he is not happy with them. He may have stated it directly. It makes absolutely no difference to my conclusion.
He was told – the father was told in March of 2014, “Don’t ask leading questions. Don’t question the child.” And yet two months later – the father was again questioning the child. One would think that after being, frankly, directed by the police not to do something that he might listen. Obviously the police that they employed in this process are used to helping investigate allegations involving children. So that they are police who are experienced in this area.
The problem is that the father simply did not listen to the police. And approximately two months later continued to ask the child leading questions in another attempt to gather evidence against the mother.
This matter has been in my docket for many years. The father could not ever complain that he hasn’t been given a full chance to be heard because
I utterly reject that the father does not understand this process. I utterly reject his assertion that there is somehow any form of miscarriage. And I utterly reject that he does not or he has not somehow been allowed to be properly involved in the litigation process. Like every litigant in this Court, he has had every opportunity. He has been represented by able solicitors on this occasion and by able counsel.
As to Exhibit 14 – the father’s first diary. He has called it at one stage a “departmental” diary. He insists that the department told him to keep it. Somebody at the department at some stage may have told him something about that. I am not sure. I do not need to make a finding about that. But one thing is for sure, that exhibit 14 provides to this Court something which the Court rarely has. And that is a detailed analysis of the views, thoughts and processes in the mind of a parent in a hard fought parenting case.
The father has very, very little or no regard for the mother. There is no positive comment in this document (Exhibit 14) in relation to the mother. On the one hand, the father says to the Court, “I understand X needs to have a relationship with his mother.” But on the other hand, I find this is an inherently dishonest comment by the father because he does everything he can to undermine the child’s relationship with the mother. There is no other conclusion that this Court can reach, having read the evidence.

I point out at this stage that Mr Clift of counsel submitted that the Court would not be in a position to make findings at this stage. I entirely disagree with that submission. The evidence is overwhelming. The amount of evidence is overwhelming. The according of procedural fairness to the Independent Children’s Lawyer and to the mother by now proceeding down this path comes about by yet another failure by the father on this occasion to provide disclosure in a timely manner. Exhibit 16 is the exhibit to which I am referring.
The Court has heard a significant amount of evidence. The Court is in a position to make findings. The Court is obligated to make findings. To make an order in X’s best interests at this stage requires the Court to make findings. That is precisely the process that I am in the middle of attending to. This exhibit number 14 shows that the father contacted various parties, third parties, Dr H, the day care centre; the school; a Dr T, and a Mr P, who I believe was the child’s godfather. The evidence in relation to Mr P is quite incredible. The father notes on 26 August 2012:
“Ms Verize delivered X home to me with a large bruise to his right hip (3 photos) and a large bruise on his right shin, to go along with the previous bruises down both legs, once again as usual without mentioning a word to me about any of it. I showed Mr P (godfather) and Ms S the bruising that morning as X and I went over to visit them at the cabin they had rented for the week … I also brought the bruising to the attention of Ms T, the Director of X's Day Care centre...”
The father attempted to maintain that he did not (in speaking to Mr P) blame the mother. But it’s very clear to the Court from the notation made by the father here on that date where he says:
“Ms Verize delivered X home with a large bruise.”
I have absolutely no doubt that the bruising was brought to the attention of Mr P, and to the attention of the day care centre director, for the very reason of blaming the mother for the child’s condition. The father maintains that it was to protect his own position on the basis that, “Look, he wasn’t in my care at the time. It wasn’t my fault.” Or the other string to that argument by the father seemed to be the day care centre needed to know what bruises he had so that they couldn’t be accused of – it having happened in their care. The upshot was that the mother was blamed.
There was the evidence led during the hearing in relation to the nappy rash and 22 November 2012 is the notation in exhibit 14. Having regard to exhibit 14 and the father’s evidence, I have come to the conclusion that it simply was not possible to actually pinpoint when the nappy rash had arisen. The father said it was perhaps something else. But precisely what it was is neither here nor there. The problem is that whenever an issue arises, the father’s immediate response is to blame the mother.
Now, I seem to recall that the evidence was that at the time in question the little boy was going from mother to father on a less than week about arrangement and perhaps with only a couple of days in between. There was an issue in relation to nappy rash. There was no evidence that it was caused by neglect. No evidence at all, in fact, that it was caused by the neglect of the mother.
There was an issue in relation to an infection that the child had, a lung infection. The evidence showed that the boy had been in the father’s care, then in the mother’s care for not very long, and back in the father’s care. It was around Australia Day one year. And the father concluded, “This child is returned to me in an unhealthy state. The mother is neglectful. She should have taken him to the doctor”. No evidence whatsoever from any expert to say how long the illness would have taken to come to light. No evidence of how long the incubation period would have been. No evidence as to how long the first symptoms could be expected to appear. It could have taken many, many days for this to come to light.
The father says, “Yes, but my real concern is that the child was returned to me and the mother mentioned nothing about it”. This comes to the question of communication between these parents. There was some reference to some sensible text messages. But the communication is at an extremely difficult level, extremely difficult. The mother, I find, has done her best in very trying circumstances.
Ms M highlighted this, pin-pointed it, and it makes me think that the father either did not read it or did not comprehend it or was not willing to accept it, but Ms M, an independent psychiatrist, says that, “Yes, indeed, the mother has presented with an adjustment disorder with symptoms of anxiety and depressed mood”. Ms M noted (page 24 of 29) that there were no substantiated allegations of abuse of X by Ms Verize despite multiple investigations and reviews and noted that observation of X and the mother interacting did not identify any concerns.
Ms M said that the ongoing allegations, the disputed parenting and education issues, are a significant source of stress for the mother and have been assessed as being the “main perpetuating factors to her symptoms of anxiety and depression…and have likely impacted on the mother’s ability to trust her parenting and to involve her in X’s normal childhood activities.” The mother has engaged in counselling over many years. Ms M’s opinions are worth noting precisely:-
“From the assessment and available information, I conclude that Ms Verize presents with risk factors to parenting capacity, particularly that she is suffering from an Adjustment disorder with symptoms of anxiety and depressed mood. I note that there are no substantiated allegations of abuse of X by Ms Verize despite multiple investigations and reviews and that observation of her and X interaction did not identify any concerns. The ongoing allegations, disputed parenting and education issues are a significant source of stress for Ms Verize, and have been assessed as being the main perpetuating factors to her symptoms of anxiety and depression. They have likely impacted on Ms Verize’s ability to trust her parenting and to involve her and X in normal childhood activities. Ms Verize reports trying to make a good, safe home for X, support him to the best of her ability and seeking support and parent education so that she is a good mother to him. This has included engaging with counselling regularly to address stress and gain support in parenting. She has also taken medication for a period of time under her GP to address anxiety symptoms. She has and continues to attend parent education programs.
…
Mr Hume’s actions have resulted in Ms Verize feeling unable to trust senior school staff or other parents and being alienated from the school. This has prevented her from having an equal role in X school community. X would benefit from having both parents involved in his education and in activities at the school. Also, it would benefit Ms Verize to be able to develop friendships with other parents, to increase her social engagement and peer support for parenting challenges and to aid her to develop age-appropriate expectations for X.”
So that the father’s continual undermining of the mother by presenting the child to various agencies – DOCS; the police; doctors – this is what the psychiatrist has concluded is the main perpetuating factors to the mother’s symptoms of anxiety and depression.
The father refers to the mother in the notes that he took and, frankly, to other people, third parties as well, as being “mentally ill”, and as it transpires the evidence shows (from the expert psychiatrist, Ms M) that the mother’s symptoms of anxiety and depression are caused by the father’s actions. They are the main perpetuating factors. To put it another way, if the mother continues to suffer from these medical issues, depressed mood and anxiety, it is caused by the father’s actions. The father needs to reflect upon this for a very long time. The conclusion which I draw having regard to exhibit 14 is that the father continued throughout that entire period to undermine the mother and the mother’s relationship with the child in the most destructive way.
I have not had a chance yet to have a close look at the most recent exhibit number 16 but from the father’s own evidence in the witness box last week – he still believes that the mother is abusive toward the child and neglectful of the child.
The father’s withholding of the child X to ensure that he, the father, got his own way in relation to the enrolment at the (omitted) school at (omitted) was nothing short of appalling parental conduct. The father completely excluded the mother from the decision-making process in relation to probably the most important decision of childhood, namely what school should the child attend.
Of course, it is always easier to make a decision on your own (in the context of a separated family). That is precisely the conclusion the father reached. He did not consider that he needed to get the mother’s agreement. He might have tried to convince the mother about (omitted) but the mother was not willing to agree to it, so the father took matters into his own hands.
For the father to construe the orders in such a way that he maintained that he was able to take three weeks of holiday time with the boy during the first term of that particular school year is nothing short of utter dishonesty on the part of the father. To maintain a position in the witness box as late as last week that he was “within his rights” to take holiday time with the boy during the boy’s first weeks of school, is dishonest and a distortion by the father of a situation to suit his own ends; namely, to achieve the outcome which he wanted; namely, to get young X into the school in question.
The truth of the matter is that it is probably a good school for young X. We know that he likes it. He has told someone he likes it. We know that he has friends there. We know that he has been there for a while now. This is an example of the situation in which the father has put this child on the basis of – on his view – trying to look after the child’s interests.
The boy has gone into a school. He seems well-established there, he seems happy there, he has friends, he likes the teachers, he has got a history there already, but by cutting the mother out of that arrangement, by undermining the mother by making comments to other parents derogatory of the mother (I find as a fact that that occurred) by making comments to the principal which were, at the very least, very unhelpful to the mother’s relationship with the school, and by putting the child in with an enrolment form that did not mention the mother as a person to contact, all of these lead to the conclusion that in the boy’s best interests the school now has to be changed. There is no way around this.
The submissions made on behalf of the Independent Children’s Lawyer and the mother are correct. And indeed, this is the opinion of the expert, Ms R, and I think Mr S mentioned it as well, but I stand to be corrected. Ms M agreed. There is no way around this. The boy’s school has to be changed. I will leave it to the mother as to how she proposes to do this. I note the school holidays are on and I am told the boy is currently in the care of the mother.
It will be a matter for the mother what she does with this. I mean, it seems to me she may have to organise some sort of a situation where the little fellow can say goodbye to his friends at that school, but that is a matter for the mother. She will have sole parental responsibility, and he may have to be able to say goodbye to some of his teachers, too, because he cannot stay there. The mother is going to be the primary carer for the foreseeable future, and the mother’s situation at the school has been so undermined that it is simply not in X’s best interests for the mother to have to attend at that school.
As to the evidence in relation to travel, I agree with the submissions made by Mr Carlton of counsel on behalf of the Independent Children’s Lawyer, that the father’s evidence in relation to travel of the father was inconsistent. On the one hand in some parts of the evidence he maintained it was too far for the boy to travel out to (omitted) and then he maintained it was not too far at all.
If the matter had been settled last week, it probably would have settled on the basis of an eight-week moratorium and alternate weekends with the father unsupervised thereafter. For X’s sake I am very glad that did not occur, because the evidence is so overwhelming that that order would not have been in his best interests. The best interests can only be achieved by a six-month moratorium, then supervised time and then a review of the matter.
I find as a fact that this mother has not purposefully harmed this child in any way. I accept the mother’s evidence. The mother gave unbelievably restrained evidence in the circumstances. Her demeanour was of a patient person. The evidence shows that the main contributing factor to the perpetuation of the mother’s own depressed mood and anxiety has been the actions of the father. The mother has continually had to try to defend herself because of the father’s photographing of the child, documentation of photographs, weighing of the child, attendances upon the police, doctors, and the Department of Child Safety.
The section 93A interviews were incredible. I say that because it provided the Court a more vivid description. This little boy, he may have been prompted by the police, I am not sure about that, in relation to some issue concerning his feet or his legs, and the little boy whipped his shoes and socks off so quickly, I agree with the observation made by Ms R – of concern in that regard. Concern that the little boy is used to, to put it another way, the routine or the drill, which is, on presentation to independent experts or people, he knows what he needs to do. He needs to show them the injury, the mark, the bruise, the scratch, or whatever the situation might be, and this leads to one of the conclusions in this matter which is just so soul destroying to have to make. The truth is it is quite emotional and I do not know how the parents can even listen to it. Mr S said that unless the father’s actions stop, the boy himself will conclude that his own body is “evidence”. Mr S said:
“101. If it is accepted by the Court that the father’s concerns are without basis, the continuation of his behaviour will continue to affect X’s emotional development and his capacity to have a balanced relationship with both parents.”
That is the situation in which we find ourselves. The father’s concerns about the mother are, I find, without basis. Mr S concluded in paragraph 104:
“104. Given his presentation here and the graphic extent to which Mr Hume will go to prosecute his case, and if the conclusions by the Department of Child Safety are accepted by this Court – I would concur that Mr Hume’s conduct constitutes a long-standing pattern of emotional harm to X.”
Paragraph 105 is the paragraph to which I referred just earlier:
“105. The consequence of such behaviour carried out over a long period of time is that it shapes the behaviour of X by instilling in his awareness that everything that happens in his mother’s care will be voraciously scrutinised, and that his body is the evidence…”
This was a compelling feature of observations made within the child protection documents. I accept the evidence of Mr S. He was called as a witness and shown exhibit 14. Having looked at exhibit 14, he gave evidence in the manner that he did last week. I note, of course, that his report was 6 October 2015. It’s exhibit 8.
His views haven’t changed, and he was able to provide the Court with his opinion, having had regard to his own report and the history that he had with this family in preparing that report, and having had regard to exhibit 14, that the child’s best interests can only be served by a six month moratorium of the father’s time or contact with the child. And then Mr S said a period of three to six months of supervised time. Ms R said, whilst agreeing with Mr S after being shown exhibit 14 when she was recalled, Ms R said three months of supervision.
The fact of the matter is that the father cannot move to unsupervised time without, in my view, a further consideration of the matter by the Court upon the receipt of further evidence. We have therefore had conducted in front of the Court a long interim hearing. But for the reasons that I have given, it transpires that it was a necessary way to proceed. Because as I think I said earlier, the evidence now before the Court has led the Court to conclude that the best interests can only be served by a moratorium of six months. Then a period of supervised time.
So there needs to be this long delay. This will give to the father time. And I want the father to really think about this. As I said to him earlier – this is one of the benefit of the docket system. This family has been in front of me for a long time. If you go back to 2010, it’s 70 per cent of my time on the bench in one way or another, this family has been here. I accept that it wasn’t every single year, but nonetheless. And I have listened, and I have listened, and I have listened to the father and to the mother. And I have listened to the father’s concerns.
But now the father needs to listen to the Court because there will be no unsupervised time in the future unless the father can demonstrate that he has changed his ways, that he has received the necessary counselling. I reject that the father has thus far engaged in any meaningful way in any appropriate counselling. Relationships Australia is not an appropriate counsellor. It did not seem to go on for very long and the father stopped when that one counsellor left Relationships Australia. I do not know the qualifications of the person who was the counsellor. The finding I make is that the father, to date, has not really accepted that he needs counselling. But this father does need ongoing monitoring by his own counsellor.
Ms R said the father needs a counsellor specialising in family situations. I do not know whether the recommendation was for a psychologist. I am not sure about that. But if it is then that is what will have to happen. There is simply no way there can be any order other than a sole parental responsibility to the mother.
The presumption in section 61DA of the Act has been rebutted. That being the case, there is no need to consider section 65DAA. It would be contrary to the boy’s best interests to make an order in accordance with that section. I have certainly considered the situation, lest there be any doubt.
I should have pointed out earlier that the photographing of the child has to stop. The unbelievable intrusiveness of the photographing went so far as photographing of the child’s genitals, hands in the child’s mouth, photographing the child’s faeces because the father was convinced that the boy was constipated, and gave vivid evidence several times last week of the consistency to the faeces that the father considered was inappropriate. There being no medical evidence that the child was constipated or was constipated more than little children might occasionally be constipated. There is no medical evidence at all of malnutrition or constipation. None that would be of concern to the Court. Or indeed of any other illness or indication of neglect. The previous orders have to be discharged.
There should be an order for the mother to now be able to enrol the child at the (omitted) State School. The injunctions sought by the mother are appropriate. The orders sought by the mother are generally appropriate. I do not think it is a good idea after the six-month moratorium – not requiring “consultation” in the decision-making process. Not requiring it – until further review by the Court. The passport must be returned to the mother immediately, and the mother has sole parental responsibility. Making an overseas holiday travel order as sought by the Independent Children’s Lawyer is likely to lead to the instigation of further proceedings; I will not make it.

The mother has sole parental responsibility. I do not consider the mother is a flight risk. The mother has lived here for many, many years. Her partner lives here. He was an impressive witness. There is no indication to the court that the partner was (nationality omitted), for instance. Even if he was, there is no possible evidence upon which the Court could conclude that the mother is a flight risk. Yes, I think the orders actually sought here, 13, 14, 15, 16 by the Independent Children’s Lawyer are correct, and it should be a psychiatrist or a psychologist. Frankly, from what I have read and heard from the experts, this is beyond the realm of a counsellor unless that counsellor is a psychologist or, indeed, a psychiatrist. If someone has a different view in that regard, based upon the evidence, I would be willing to at least consider that.
The mother has raised allegations of financial abuse during the relationship. What I would say is this: the evidence in relation to finances shows to the Court conclusively, to use the vernacular, from the father’s perspective, was “his way or the highway”. The father laid out chapter and verse the budget for this family. There is nothing wrong with that, but he then proceeded to dictate, I find, where each person’s income should be directed; how it should be directed and to what extent the individuals in the relationship, namely himself and the mother, were able to actually spend the money.
He said they were allowed within the budget that he had formulated – he maintained that the mother had been involved in all this and agreed with all. The truth is, I find, that the father came up with it and the mother had no choice but to go along with it, and the situation is that they were allowed $75 each per week to spend on private expenditure. Frankly, it seems like a very low amount of money but I understand people have budgets for a reason. I have seen the mother’s evidence in relation to what occurred. I have heard from both the parents about it.
I do not consider at this point in time that I am in a position to make a finding that he unreasonably withheld financial support needed to meet the reasonable living expenses of the family member or of a child in accordance with section 4AB(2)(h).
I am willing to make a finding that the father, as I said, controlled the finances, and this was another example of the father, as it were, sidelining the mother because he took the view, and he has up to date taken the view, that his opinions in relation to all issues, financial or parenting, are to be preferred to the mother’s views or opinions.
The mother had given some evidence about all of her income being diverted to a particular mortgage. The evidence from the father about the mortgage was startling. They never seemed to reduce it at all. But I do not need to make any further findings about that.
I reserve the right to provide further reasons for judgment.
In relation to section 60CC(3), I have referred during the course of giving these reasons for judgment to all of the topics covered in the subsections in section 60CC(3) without naming them specifically. For instance section 60CC(3)(a) – the findings I have made about the children having a good relationship with both parents is consistent with the inference I draw – namely that he would like to spend time with both parents. But he is very young. The moratorium is in his best interests for the reasons stated. The nature of the case is such that particular attention needed to be paid to section 60CC(2)(b) and section 60CC(2A).
From the reasons that I have provided, it will be apparent that the Court has provided more significant weight to section 60CC(2)(b) and 60CC(2A), more significant weight to those sections and subsections than to any of the other matters in section 60CC(2) or (3) (Collu & Rinaldo [2010] FamCAFC 53).
On balance, it seems to me that section 60CC(3)(l) in making this an interim order and in designating that what has occurred as an interim hearing, it seems to me it has enabled the Court to make orders which are preferable because they are less likely to lead to the institution of further proceedings in relation to the child. Any other course, it seems to me, would have been more likely to lead to the institution of further proceedings if the matter had gone to final determination this week, that is for sure.
The urgency with the case, having had regard to all of the evidence during the course of these last five days – is such that in X’s best interests, the Court really needed to give a prompt decision. The Court needed to make findings as appropriate, and put in place orders – keeping in mind that the paramount consideration is X’s best interests.
It will be abundantly clear, therefore, that I have accepted the overall opinions of Ms R and Mr S, as well as Ms M. Ms R actually said in paragraph 476 in her comprehensive report where she considered an extremely large amount of material – that if the Court determines that Mr Hume is able to adequately support X’s relationship with his mother, then the status quo should continue. Unfortunately for the father, he has not been able to convince the Court that he is able to adequately support the child’s relationship with the mother, for the reasons which I have stated.
And the way the hearing has unfolded, the manner in which it has been conducted by the late disclosure by the father of the diaries, the recalling of witnesses such as Ms R and the calling of Mr S and the consideration by those experts of exhibit 14 – as things have turned out, I said earlier, it has worked out in X’s best interests because the Court is able to get an opinion up-to-date from two experts who have had significant involvement with this family. I think I already made reference to the fact that there’s evidence that the father continues to photograph the child. I do not believe there’s any further issues requiring reasons, at the moment.
All the previous orders do need to be discharged.
My conclusion is that, apart from the contact centre, which is now going to be the independent professional – I think the orders are pretty much what the mother was seeking.
Except for numbers 13 to 16, are requested by the Independent Children’s Lawyer. And the special days.
I do not require the mother to consult or advise about overseas holiday travel. That will lead to further proceedings that are not in the child’s best interests. The mother has sole parental responsibility. Obviously, that’s unusual, at an interim stage. But this is an unusual interim. And most of the evidence is now before the Court. If there’s an issue with the orders, I will allow the Independent Children’s Lawyer to relist this.
But so far as matters are concerned now, the child is with the mother; the child will stay with the mother. There is to be no contact with the father; not by telephone, text, Facebook, FaceTime or in person. The injunctions are in place. The father has to stay away from the mother and the child.
It is a heart-breaking situation for the father – utterly, utterly heart-breaking – I have absolutely no doubt. Courts can only decide cases on evidence. The evidence is overwhelming. Most of it is independent. To the extent that it is not, the mother has given evidence and I have made findings as to her credibility. I have made findings in her favour on her credibility. And I have made findings about the father’s evidence.
I can only assure this family as follows – and I want the mother and the father to listen to the Court. If the father can demonstrate an ability to engage with counselling; to take ownership for the issues that have arisen; to stop his obsessive documenting of the child’s physical condition, and the child’s mental condition (for that matter) to stop his questioning and to begin to trust the mother. If the father can demonstrate all of these things, then, there will be a future for this father and this child which is in something other than a supervised context. There will be an unsupervised future.
But the way things currently stand, there is a lot of work for the father in front of him. He is an intelligent man. The mother is also intelligent, I have no doubt. The mother definitely realises the importance of the father in the child’s life. The father has said that he accepts the importance of the mother in the child’s life, but his actions portray something entirely different.
It was either Mr S or Ms R who stated that the evidence shows that practically from birth the father has waged a campaign against this mother. I accept that evidence. It, in fact, is correct. It is borne out by the large amount of independent evidence, the documentation from DOCS, the police evidence, medical evidence, and the opinion evidence of the experts.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 8 May 2017

[2017] FCCA 922

10 April 2017

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Natural Justice

Procedural Fairness

Remedies

Injunction