Walford and Dore (No. 3)

FAMILY COURT OF AUSTRALIA

WALFORD & DORE (NO. 3)

[2007] FamCA 654

FAMILY LAW - CHILDREN - With whom a child shall live - Family violence - Undefended hearing

APPLICANT:

MR WALFORD

RESPONDENT:

MS DORE

FILE NUMBER:

CAF

1094

1995

DATE DELIVERED:

24 May 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:	MULLANE J
HEARING DATE:	22 May 2007

REPRESENTATION

THE APPLICANT:

There was no appearance by or on behalf of the applicant father

THE RESPONDENT:

The respondent mother appeared on her own behalf

SOLICITOR FOR THE INDEPENDENT LAWYER FOR THE CHILDREN:

Ms Lloyd of Messrs Jeanine Lloyd & Associates

Orders

All previous parenting orders for the parties’ child W born in December 1993 are discharged.

The child is to live with the mother and she has sole parental responsibility for him.

The father must within 6 months attend and complete:

3.1a course or course of counselling (approved or nominated by the Manager of Child Dispute Services of the Family Court of Australia at Canberra) appropriate to address his use of abusive behaviour (including verbal abuse, put downs, threats and violence) towards the child, the mother and others, and management of his anger;

3.2a parenting course or course of parenting counselling approved or nominated by the Manager of Child Dispute Services of the Family Court of Australia at Canberra to address the child’s interests, the child’s needs regarding his peer relationships, activities the child would enjoy sharing with his father, better communications between the child and his father and ways of ensuring the child better enjoys any time with his father; and

3.3the Parenting Orders Program conducted by M in Canberra, or if not available, a similar program approved or nominated by the Manager of Child Dispute Services of the Family Court of Australia at Canberra.

In particular the father must:

4.1contact the Manager of Child Dispute Services of the Family Court of Australia at Canberra within 14 days to obtain the necessary approvals or nominations under order 3;

4.2contact the provider of each course or course of counselling or program under Order 3 within 21 days and arrange an initial appointment and thereafter attend the initial appointment and each session of the course or each appointment as the counsellor or provider reasonably requests or advises;
4.3pay any reasonable fees charged him for any course or course of counselling or program under Order 3;

4.4upon completion of any course or counselling or program under Order 3, obtain a letter from the provider certifying:
a) the sessions or appointments he has attended;
b) the topics covered at these; and
c)that he has completed the course, course of counselling or recommended program; and,

4.5promptly provide each of the mother and the Independent Lawyer for the child with a copy of any letter under 4.4.

The mother must ensure the attendance of herself and/or the child at such appointments for the program under 3.3 as the provider advises.

Until provision of letters to the Independent Lawyer for the child under 4.5 in respect of paragraphs 3.1, 3.2 and 3.3, the father is to spend no time with the child and is to have no communication with him.

Once all such letters have been provided to the Independent Lawyer for the child in respect of each program under paragraphs 3.1, 3.2 and 3.3:
7.1the Independent Lawyer for the child is to meet with the child, inform him of the father’s completion of those programs, explain how the child can initiate spending time with the father and communication with him, and provide a written version of such advice to the child for the child to take with him; and,

7.2then the child is to spend such time with the father and have such communication with the father as the child initiates.

The mother must keep the father informed of any significant issues arising in relation to the child’s health or educational needs by communicating such information in writing to the father.

The mother must continue to ensure that the child acknowledges the father’s birthday, Christmas and father’s Day with a card or other such appropriate gesture.

Each party must provide to the other a postal address for the purposes of any communication pursuant to the terms of these Orders and the mother must keep the child informed of the father’s postal address and any telephone numbers he may provide from time to time.

For the personal protection of the child, the mother, the child’s half-sister A and the child’s step-father (first name “[K]”), for 3 years from today the father is restrained from:

11.1assaulting, molesting, harassing, stalking, abusing or otherwise interfering with any of them;

11.2entering upon or loitering near the residence of any of them or any school the child or his half-sister attends or the mother’s place of employment;

11.3it is noted that these are Orders for the personal protection of the child, his mother, his half-sister and his step-father, a breach of which attracts the power of arrest without warrant pursuant to Section 68C of the Family Law Act, 1975.

The father is restrained for 2 years from today from:

12.1 discussing with the child any proceedings between the parties; or

12.2making any derogatory statements about the mother or her husband to the child or in his hearing or presence.

These Orders incorporate and have attached to them a document setting out:

13.1 the obligations that these Orders create;
13.2 the consequences that may follow if a person contravenes an Order;
13.3the availability of programs to help people understand the responsibilities under parenting orders; and

13.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.

Otherwise the mother’s Response filed on 20 August 2004 is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Walford & Dore.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1094 of 1995

MR WALFORD

Applicant

And

MS DORE

Respondent

REASONS FOR JUDGMENT

introduction

This was an undefended hearing of the mother's application for parenting orders regarding the parties' son, W, who turned 13 last December.

evidence

The evidence comprised oral evidence of Dr S and the mother and the following documentary evidence:
(1)the father's amended application, filed 31 May 2005;
(2)the mother's amended response, filed 20 August 2004;
(3)the mother's minute of orders sought, filed on 4 May 2007, pursuant to orders of 30 March 2007, served on the husband and incorporated in her amended response, as her orders sought by amendment of the amended response at the hearing;
(4)orders of the Court of 12 July 1996, 25 February 2000, 30 August 2004, 17 October 2005, 22 August 2006, 25 August 2006 and 30 March 2007;
(5)the mother's affidavit, affirmed on 24 April 2007; and,
(6)the family report of Dr S, dated 30 April 2007.

brief background

The father is an artist, 52 years of age, and the mother is a parent educator, 45 years of age. The parties cohabited from about August of 1993, when the mother was pregnant with the child, and separated in August 1994, when the child was eight months of age. For most of the more than 12 years since the separation, the parties have been litigating about the parenting of the child.
In March 1995 consent orders were made for the father to have monthly supervised contact visit with the child, who was then 15 months. Only two such visits occurred.
In July 1995 Frederico J made orders suspending the contact, after the husband stood trial in the B Local Court for breach of an apprehended violence order made for the protection of the mother, and also stood trial for 53 charges of breaches of the Telecommunications Act, by harassing, abusive, obscene and threatening telephone calls to the mother, the maternal grandparents and the maternal great-grandmother. In the course of the proceedings the father was remanded in custody, after he breached bail conditions by telephoning the mother and the maternal grandparents. The outcome of the trial was that the father was required to enter into reconnaissance to be of good behaviour for 12 months and to accept treatment from the mental health service.
On 6 March 1996 Faulks J made orders refusing any interim contact.
In July 1996 there was a 2 day hearing before Hannon J. The outcome was orders made for the child to reside with the mother, for the mother to have responsibility for the child's care, welfare and development, and the father to have no contact with the child.
There was also an order made restraining the father for a period of a year from commencing any proceedings regarding the child, except by leave of a judge.
Between July 1997 and February 2000 the father made 10 applications in the Court.
In October 1997 Faulks J ordered supervised contact between the father and the child. Subsequently, pursuant to orders Frederico J made in April 1998, unsupervised weekend contact commenced in December 1998.
In April 1999 the father attended at the mother's home and forcefully removed the child, who was then five, from the mother's arms, despite her resistance. The father was subsequently ordered to return the child.
Further consent orders were made in April 1999, providing for overnight contact. They included non-denigration orders and an order for the father to attend an anger management course. In the eight years since those orders, they have not been discharged but the father has still not completed an anger management course.
By orders of 17 May 1999, the contact reverted to daytime contact only until the end of June 1999, when overnight weekend contact was to resume. It appears that it did resume. Subsequently, proceedings between the parties were concluded in February 2000 by consent orders providing for the child to have increasing contact with his father in 2000 to 2004. By 2003, there were to be alternate weekends in school terms, from Friday evening to Sunday evening, up to three weeks in the 2003/04 summer school vacation, and also time on Father's Day and the child's birthday. There was also an order restraining each parent from denigrating the other. The orders did not provide for contact after the 2003/04 summer school vacation.
When the consent orders expired, the father often implemented contact to suit himself, without agreement of the mother, and, where there was agreement, he often did not comply with the times. He often made arrangements with the child and did not consult, notify or confer with the mother about such arrangements. Not surprisingly, the parties continued to be in dispute.
On 30 August 2004 interim orders were made continuing the weekend contact in school terms and defining it as being from after school Friday to 4 pm Sunday (Monday if it was a public holiday). Also, in other weeks of school terms, there was contact on Wednesdays and Fridays from end of school to 5 pm.
There were other proceedings under way. After release of a short welfare report, on 17 October 2005 Finn J made interim orders for contact to revert to Wednesday and Friday contact, and delaying the reintroduction of weekend contact. The father did not then exercise contact from 26 October 2005 until 7 December 2005. Between October 2005 and June 2006 he exercised contact only nine times out of 53 possible contact occasions. On 9 June 2006 the father had an abusive conversation with the child. The mother then terminated the contact.
The proceedings went back before the Court on 22 August 2006 and Faulks J made orders for the parties and the child to attend the Parenting Orders Program conducted by M in Canberra. He also ordered that contact was to be suspended until the Parenting Orders Program commenced. When the Parenting Orders Program commenced on 18 September 2006, the contact resumed, but the father failed to attend any subsequent session of the Parenting Orders Program after the first. He has not since attended any session of the program, or any similar program.
The present proceedings were commenced in July 2004. In May 2005 the father amended his application, to seek orders that the child reside with him. Until then he had been seeking orders for contact with the child. The father did not seek an order in his amended application of May 2005 for the child to have any contact with his mother. The father sought no other order than a residence order.
On 30 March 2007 Waddy J made orders, listing the proceedings for hearing before me on 22-24 May, and made also directions regarding the filing of affidavits, issue of subpoenas, preparation of the report by Dr S and other orders for preparation for trial. The father appealed those orders and the appeal has not been heard. There was no stay ordered in respect of the orders of Waddy J, and so they remained in force.
On 22 May, when the hearing commenced, at the stage of first dealing with a contravention application which the father had filed against the mother, the father became agitated, shouting, and threatening. He continued with threats such as, "I'll see you in the High Court." He then decamped from the courtroom and did not return. The father's amended application of May 2005 was subsequently dismissed for want of prosecution, and then this undefended hearing of the mother's amended response proceeded and was concluded.

OTHER FACTUAL MATTERS

The Court accepts the evidence in the mother's affidavit and the family report, and adopts the matters set out there as facts. It is not necessary to repeat them here but they support the findings of this judgment.

DR S'S CONCLUSIONS

Dr S concluded his report as follows:
EVALUATION AND RECOMMENDATIONS
8.0      [The child] is happy in his mother’s care and with his present family. He wishes to retain this as his home. This situation has existed throughout his life and he has clearly benefited in it. It is recommended that it would be inappropriate to change this.
8.1      [The child] appears to have managed the ongoing conflict between his parents remarkably well. However, there seems to be evidence that this conflict has impacted on his feelings towards his father and his ability to be assertive about his wants and needs with his father.
8.2      Both [the child] and [the father] expressed a desire that they re-establish a relationship. [The child] has positive feelings for his father and these form a basis from which this relationship could proceed. However, [the child’s] feelings are tempered by the concern that he sees his father’s behaviour as unpredictable and often intimidating. He expressed a desire to retain a relationship with his father – but in a way that allows him to feel safe. [The mother] expressed a belief that [the father] has demonstrated that he is incapable of maintaining a relationship within established rules. It is uncertain whether [the father] can overcome his strong feelings about the fairness of his situation – and the behaviour that accompanies these feelings – to effectively re-establish his relationship with [the child].
8.3      Given the present situation and the history of the relationship, it would appear that the best that [the father] can hope is to develop a relationship with his son that [the child] might wish to continue when he becomes an adult. This will require [the father] to clearly focus on [the child’s] developmental needs rather than his rights as a parent. As a teenage, [the child] is broadening his sense of identity with an increasing focus on the importance of relationships with peers and participation in community activity. This makes it increasingly difficult for [the father], as the non-custodial parent who sees his son for a limited time, to preserve the more exclusive relationship with his child that he enjoyed when [the child] was younger. Spending time together at this age is difficult for both parties, as it needs a changing focus.
8.4      [The father] feels deeply that he has been the victim of many injustices over the whole thirteen years of [the child’s] life. Whatever the truth of his claim, the behaviour he has chosen in response to his unfortunate situation has not been helpful in attaining outcomes that satisfy him or are desired by any of the participants. It is recommended that [the father] seek counselling support that would focus on assisting him plan and monitor his future behaviour toward [the child] and [the mother].
8.5      The relationship between [the child] and [the father] might proceed in a way that allows [the father] to demonstrate to [the child] that his father can be trusted to behave appropriately and reliably toward him and to meet his developmental needs. For example, regular planned telephone communication might be an appropriate initial step. This could then be followed by short pre-arranged meetings as felt appropriate (eg, having coffee or perhaps attending a football match together). The progress of any such arrangements would need to be monitored.

RELEVANT LAW

The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) provides:
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)      to develop a positive appreciation of that culture.
Subsection 60CA is as follows:
Child's best interests paramount consideration in making a parenting order
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.

Subsection 60CC provides:
Determining child’s best interests
(1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)      Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)      the nature of the relationship of the child with:
(i)       each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)       each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)       the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

SUBSECTION 60CC(3) FINDINGS

The findings under subsection 60CC(3) are as follows:

a) Expressed wishes of the child

The child wishes to continue living with his mother. He expressed a desire to retain a relationship with his father, but in a way that allows him to feel safe. He is unhappy about his father’s behaviour of wanting him exclusively during time together, wanting to keep him away from others, talking to him about Court proceedings between the parents, making derogatory statements about the mother, and of generally being angry. He does not like his father’s behaviour of abusing him during telephone contact, and opposing the child seeing his friends during his time with his father. He finds his father’s behaviour is particularly angry and challenging for the child when Court proceedings are imminent.
The child reported to Dr S that “My father is always angry with me lately”. The child’s views are of considerable weight because of his age but also because he is intelligent, sensible and insightful, and appears to be mature for his age.

b) The child’s relationships

The child has a close and positive relationship with the mother. She has been his primary carer for all of his life and has provided for most of his needs throughout that period. He is closely attached to her and is concerned for her happiness, health and safety. They have a loving relationship. It appears he also has close and positive relationships with his step-father and half sister, who both live with him.
The child’s relationship with his father is ambivalent. The child has memories of some good times together. The child enjoyed the time with his father when Dr S was present and observing. But generally the father’s interactions with the child involve abuse of the child and exposure of the child to the father’s abuse of the mother and derogatory statements about her. The child has witnessed his father physically abuse his mother.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

Subsection 60CC(4) provides:

4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The mother’s willingness and ability in this regard are adequate.
The father is incapable of maintaining a polite and respectful relationship with the mother in order that they may together parent the child. He has been unable to behave in a reasonable way to ensure that the child’s time with him and communications with him can occur without the child being subject to abuse or exposed to the father using abuse against the mother and others, and denigrating the child’s mother.
The father’s conduct excludes and prevents the child spending reasonable and enjoyable time with the father and enjoying communications with him.
The father has failed to fulfil his parental obligation to maintain the child. He owes arrears of about $16,800 in Child Support for his son.

d) Likely effect of any changes including any separation

If the child spends time with his father or communicates with him the child will suffer abuse and exposure to his father’s denigration of the mother, threats and other abuse towards her.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

The father’s behaviour presents a serious obstacle to the child spending time with him or communicating with him. It also prevents the mother encouraging the child (in any sincere or convincing way) to spend time with the father or communicate with him.

f)Capacity of each parent and any other person to provide for the child’s needs

The mother’s capacity is adequate, except that because of the father’s behaviour she cannot provide sincere and convincing encouragement to the child to spend time with the father or communicate with him.
The father’s capacity is seriously compromised because:

He subjects the child to abuse and exposes him to denigration, threats and abuse of his mother, abuse of others and displays of angry behaviour;
He cannot demonstrate respect and trust for the child’s other parent, cannot respect or promote the child’s relationship with her and acts to undermine that relationship;
He lacks insight into the child’s needs including his need to be involved with his peer group, his need to be protected from abuse, his need to avoid expose to parental conflict and denigration and abuse of his mother, and his need to have his father behave respectfully and supportively towards the mother;
He lacks insight into the fact that his behaviour, including anger towards the mother and the child, and violence, threats and other abuse towards the mother ultimately are contrary to his own interests as they prevent his communications with the child and time spent with him being enjoyable for the child and successful for both of them; and
The father has a serious inability to recognise or implement good advice for remedying the serious problems he has with his parenting. He has not completed an anger management course. He has frustrated the family’s opportunity to attend a parenting orders programme by refusing to attend after the first session. He has refused to comply with Court Orders for him to attend both these programmes. He has rejected and failed to implement the advice of Dr S to attend counselling support that would focus on him planning and monitoring his future behaviour towards the child and the mother. He has continued to denigrate the mother to the child even when restrained from doing so by a Court Order and thus placing himself at risk of sanctions. He also has a history of repeatedly breaching Apprehended Violence Orders.

The father does not acknowledge or accept responsibility for his serious problem of using abusing behaviour. Even in his brief time in the Courtroom before this hearing he was shouting, threatening and otherwise abusive of the Judge. The evidence is that he has also been abusive of other Judges and other people. He has no real insight into his behaviour.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

The child is 13, but mature for his age. As a male child he has a need for a close and positive relationship with a suitable male adult role model. The father, because of his behaviour problem, is not a suitable role model and has been incapable so far of forming a close positive relationship with the child.
In the mother’s household the child has a close and positive relationship with his step-father. It is respectful and supporting and has developed over 8 years. It appears the step-father is an adequate and suitable adult male role model for the child.

Attitude to the child and the responsibilities of parenthood

Subsection 60CC(4) provides:

4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The mother’s attitudes to the child and the responsibilities of parenthood are adequate. The father’s are not.

j) Any family violence

The father has a serious and longstanding behaviour problem in that he resorts to violence, threats, put downs, shouting, name calling and other abuse in his dealings with others.
He does not acknowledge he has a problem. He has not accepted responsibility for it. He has no real insight into it and no present intention to address it through professional help or otherwise.

k)Any family violence order that applies to a child or a member of the child’s family

The Canberra Magistrates Court made a Domestic Violence Order on 11 September restricting the father’s behaviour for a period of 2 years for the purposes of protecting the mother.
The father has subsequently contravened the Order by abusing the mother on 11 March 2007 in Y and by contacting the mother in April 2007 by a note inserted in a letter he sent to the child in which he requested the child give the enclosed envelope to the mother.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

Given the father’s present problem, making an Order for him to spend time with the child or communicate with him at this stage is more likely to result in further proceedings than not making such an Order.
The child’s best interests require that contact be suspended until the father undertakes therapeutic interventions to address his needs to overcome his tendency to use abusive behaviour, his inability to support contact arrangements and not undermine them, and his lack of insight into the child’s needs, the effects on the child of the father’s poor behaviour, and the significance to the child of his relationships with his mother and his peers.
If the father completes those interventions, the time spent by him with the child and communications with the child should be only such as is initiated by the child.

m)Any other fact or circumstance the Court thinks is relevant

There is no other such matter.

PRIMARY CONSIDERATIONS

The findings as to primary considerations under Subsection 60CC(2) are:

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

The father’s behaviour problems and inadequacies of his parenting capacity and his attitudes to the child and the responsibility of parenthood are such that it is impossible at present that the child have a meaningful relationship with his father.

b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The child needs to be protected from subjection and exposure to his father’s abusive behaviour in all its dimensions. If the father can overcome his problem that would be the best result for everyone. If the father completes the interventions then the child’s interests require that the time he spends with his father and the communications with him be limited to that initiated by the child.
If the father does not complete the interventions, then the child should be protected and that should be by the father having no time with the child and no communication with him.

PARENTAL RESPONSIBILITY

There is an issue as to parental responsibility.
Section 61DA of the Act provides:
(1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)      family violence.
(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The father’s abuse of the child and his violence and abuse towards the mother dictate that the child’s interests are best served if the mother has sole parental responsibility.

OTHER CONCLUSIONS

The child’s interests require that the father should acknowledge and address his behaviour problem by attending therapeutic intervention to address his use of abusive behaviour and his need to manage his anger. He should also complete the Parenting Orders programme or a similar programme with the involvement of the mother and the child. He should also undertake a course or course of counselling to develop insight and knowledge regarding the child’s interests and needs and to assist him to ensure that the child can enjoy the time he does spend with the father and any communications he has with him.
If the father does this he should provide evidence to the Independent Lawyer for the child, who should meet with the child, inform him and assist him with advice as to how he can initiate communications with the father and the father spending time with the child. There should then be such time and such communications as the child initiates.
There should be an order that until the father completes the interventions he not spend time with the child or have communications with him.
The child’s interests require that:

The mother should be ordered, as she proposes, to keep the father informed of any significant matters regarding the child’s health and education, and ensure the child sends his father cards for Father’s Day, his birthday and Christmas; and
The parties be ordered to keep each other informed of an address for correspondence and the mother to keep the child informed of any address or phone number the father provides.

The mother seeks an injunction for the personal protection of the child, herself, the child’s step-father and the child’s half sister from abusive behaviour of the father. They have all been subjected to it at times. For their personal protection he should be restrained for 3 years from such behaviour towards them or approaching their home or the mother’s place of employment or any school the child or his half-sister attend.
The child’s interests also require that the father be restrained for 2 years from discussing with the child proceedings between the parties and from making derogatory statements about the child’s mother or step-father in the child’s presence or hearing.

___________________________
The Hon Justice Mullane

[2007] FamCA 654

24 May 2007

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Injunction