WALLACE & MARRINER

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLACE & MARRINER

[2021] FCCA 1452

Catchwords:
FAMILY LAW – PARENTING – Whether an order should be made for a child aged 3 to spend time with his father – where the child presently has no relationship with the father – where the father has long standing mental health issues and has perpetrated violence against the mother and previous domestic partners and against other people and has been jailed for his violent offending – where the father has a long history of cannabis use although there is no evidence that he is currently doing so – where the child would be at unacceptable risk of harm in the father’s unsupervised care – where there would be no demonstrable benefit to the child in making an order for long term supervised time – where the mother is vulnerable and faces her own challenges and needs a period of peace – no time order made.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 61DA

Applicant:

MS WALLACE

Respondent:

MR MARRINER

File Number:

NCC 1385 of 2019

Judgment of:

Judge Terry

Hearing dates:

14, 15, 16 & 23 April 2021

Date of Last Submission:

23 April 2021

Delivered at:

Newcastle

Delivered on:

3 June 2021

REPRESENTATION

Counsel for the Applicant:

Mr Mueller

Solicitors for the Applicant:

East Coast Law

Counsel for the Respondent:

Mr Taylor

Solicitors for the Respondent:

Gus Farland Pty Ltd

Counsel for the Independent Children’s Lawyer:

Ms Messner

Independent Children’s Lawyer:

Legal Aid Port Macquarie

ORDERS

The mother shall have sole parental responsibility for the child X born in 2018 (“the child”).
The child shall live with the mother.
The father shall spend no time with and have no communication with the child.
Pursuant to section 68B of the Family Law Act 1975 for the protection of the child the father is restrained and an injunction is granted restraining him:
(a)From removing the child from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed him.
(b)Coming within 200 metres of the mother and or the child including but not limited to the mother’s residence and the child’s preschool, day care or school.
(c)Approaching or attempting to contact the mother or the child except through a legal practitioner.

THE COURT NOTES THAT:

A.These orders are to be read in conjunction with the final orders made on 14 April 2021.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1385 of 2019

MS WALLACE

Applicant

And

MR MARRINER

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves parenting arrangements for X who is almost three. He has always lived with his mother and he has spent no time with his father since he was returned to his mother following a recovery order being made when he was 10 months old.
The proceedings were originally between the mother and the father, but following the release of the family report the paternal grandmother and step‑grandfather were joined as parties and they have been spending some limited time with X since orders were made in July 2020 for that to occur.
At the commencement of the trial the matter was settled as between the mother and the paternal grandmother and step-grandfather, and to an extent also between the mother and the father. A final order was made for the child to live with the mother; the paternal grandparents consented to that and the father did not oppose it. An order was also made for the paternal grandmother and step-grandfather to spend time with X. Given his age and the place where the mother and the paternal grandmother and step‑grandfather respectively live it will not be very frequent but it will be regular.
The issues which remained in dispute were whether an order should be made for X to spend time with the father and the allocation of parental responsibility.
The mother has always sought an order for sole parental responsibility but her proposals about X spending time with the father have changed over the course of the proceedings.
When she originally filed her application she was proposing no time. During the family report interviews she said that she was proposing supervised time at a contact centre and had not thought of anything beyond that. At trial she was proposing no time.
During submissions the father’s counsel said that the mother must have changed her mind since she spoke to the family report writer on the advice of her legal representatives. However that is not supported by the evidence. The mother said during cross-examination that she could see a benefit to X in having a relationship with the father but only if he was safe, and that puts a different complexion on it.
The mother alleged that the father had serious mental-health issues, had committed serious acts of family violence against her and had been violent to a previous domestic partner and posed a significant risk of harm to the child. She also pointed out that he had previously used drugs.
The father said that his mental-health issues were under control and that he was remorseful about the violence he had perpetrated and had completed a Facing Up course. He said that he was in a new relationship and there had been no police charges against him arising out of that. He asked the court to accept that he was a changed man.
The father sought an order for equal shared parental responsibility and for time with X.
In his case outline document the father said that he was seeking the orders for time set out in his amended response. They provide for a very slow reintroduction of time between him and X. It would commence with some limited supervised time and would move eventually to more extensive supervised time, perhaps supervised by the paternal grandmother.
He said that if he was ultimately able to spend unsupervised time with X he would move to Town B where the mother lives, and he proposed that the unsupervised time initially be from Saturday to Sunday and eventually be on alternate weekends from Friday to Sunday or Monday depending on what the Court decided, and for half of the school holidays.
The Independent Children’s Lawyer handed up a minute of order at the end of the trial in which it was proposed that the father spend no time and have no communication with the child and that the mother have sole parental responsibility.

The evidence

The mother and her partner Mr C gave evidence in the mother’s case.
The father was initially the only witness in his case. At the end of the trial he was allowed to adduce oral evidence from the paternal step‑grandfather, Mr D, regarding his willingness to supervise the time between the father and X, and his partner, Ms E was also made available for cross-examination. She relied on a statement which was attached to the father’s affidavit.
A family report was prepared by Ms F, a family consultant.
Mr C was not required for cross-examination but the remaining witnesses were cross-examined.

Background

The mother and father formed a relationship in 2017 when the mother was 28 and the father 27.
The mother is a long-term resident of Town B and as far as I can gather, the father and his brother Mr G were living in that area at the time. The father moved into the mother’s home at the commencement of cohabitation.
The relationship lasted less than two years. The parties separated on 2 April 2019 when the mother left the home with X.
X was born in 2018. He is the parties’ only child and he was nine months old when they separated.
The father has no other children. The mother has three older children: H born in 2007, J born in 2009 and K born in 2011. They lived with the mother during the relationship, but after issues emerged in the mother and father’s relationship K’s father, Mr L, commenced court proceedings seeking an order that K live with him and I seem to recollect that prior to their separation K was in fact living with Mr L.
Both the mother and the father had a very difficult and damaging upbringing which left them ill-equipped to become good parents themselves.
The mother was removed from her mother as a child by the Department of Family & Community Services (DOCS) due to issues of abuse and neglect. She spent time in foster care before being placed with the maternal grandfather. She told the family consultant that during her first two years with the maternal grandfather she was subjected to assaults, violence and child abuse by his then partner and that he did not act protectively of her.
She remained with him, but she placed herself back with her mother when she was 14. When she was 18 and pregnant with H the mother returned to live with the maternal grandfather and his current partner and she has remained in the area where they live ever since.
The mother went on to have J and K but she partnered with a number of individuals who were violent and abusive. Notifications about the children were periodically made to the Department. The Department engaged the mother in Brighter Futures programs on more than one occasion and tried to organise counselling for her.
It is clear from what H, J and K said to the family consultant during these proceedings and the proceedings involving Mr L that they suffered harm and experienced considerable fear as a result of exposure to some of the mother’s violent partners.
The father referred to his difficult upbringing in his affidavit. He said that his father was a drug addict and dealer who spent time in jail and was violent to his mother. He said his parents separated when he was a baby and his mother subsequently formed a relationship with a man called Mr M who was verbally abusive.
The father said that he lived with his mother for 14 years but he told the family consultant that he spent some time, presumably after that, living with his father.
The father has longstanding mental-health issues of some severity and a longstanding history of using cannabis. He also has a criminal record which commenced in 2010 and by the time he commenced his relationship with the mother in 2017 he had convictions for offences of dishonesty, drug offences, property damage and offences of violence, and at least one of his convictions for violence involved violence to a domestic partner.
The father’s mental-health issues manifested themselves during the relationship. The mother said that he frequently talked of suicide and she went with him to a doctor about that. She said that he also engaged in cutting. That was something that she observed throughout the relationship, at least when the father was not in jail and was living with her.
She also alleged that the father perpetrated family violence throughout the relationship. I will have to make findings about the extent of the violence, but there was no dispute that on 6 February 2018 when the mother was 19 weeks pregnant with X the father seriously assaulted and injured her.
The father was arrested and charged with assault occasioning actual bodily harm and stalk/intimidate and he convicted and sentenced to a term of imprisonment but it was suspended after he had served three months. It may be that he was in custody from the time he was charged because he did do three months but according to the police record he was out of jail on 14 May 2018.
The father was present at X’s birth in 2018, but only a month later he and his brother were involved in a serious assault on their friend Mr N. I will discuss the details of that assault later, but the father was charged with assault in company and resisting police. He was also called up in relation to the offences that he had been convicted of in relation to the mother. He had been sentenced to 11 months in total for those offences and after he was convicted of the assault occasioning actual bodily harm in company and resisting a police officer he had to serve the remaining seven months of his original sentence.
While the father was in prison the mother had telephone communication with him and updated him about X’s progress and she also took X to see him while he was in jail. I will refer to that again later, because the father relied on it as a sign that the mother did not truly fear him or want to cast him aside. The mother said that she was pressured into it by the paternal grandmother who told her that if the father was not able to see X he would commit suicide.
The father was released in 2019 and he moved back in with the mother. The mother alleged that he continued to make threats and behave in a controlling and coercive fashion.
By this time Mr L had commenced proceedings in relation to K, and on 22 March 2019 the mother came to City O for a Child Inclusive Child Dispute Conference in respect of that matter.
At the Child Inclusive Conference she told the family consultant that she was frightened of the father and needed help to leave the relationship. She went home after that but on 2 April 2019 while the father was out she rang P Support Services and they contacted the Samaritans who took the mother and X to a refuge.
In early May 2019 the mother obtained a rental property in Town B.
After separation the mother would not agree to the father spending any time with X.
On 6 May 2019 the mother was with X at Q School in connection with her other children. The father approached her and asked if he could hold X. As far as I can gather the mother permitted him to do that although I am not entirely certain whether the father took him or whether the mother permitted it. Once the father was holding X he refused to return him to the mother. There was a violent scuffle and the father decamped with X and thereafter refused to return him to the mother.
The mother promptly filed an application for a recovery order and on 13 May 2019 an order was made for X to be returned to the mother and that was facilitated.
The father filed a response seeking time with the child but due to the allegations of violence and the father’s conviction and imprisonment for assaulting the mother no interim order was made for X to spend time with him. Instead an early family report was ordered.
The family consultant who prepared the report had prepared a report not long previously in relation to the dispute about K, and in the report prepared about X she expressed concern about both parents. She recommended that the child commence spending time with members of the paternal family and that the paternal grandparents consider whether they should seek leave to intervene.
However although the family consultant did not recommend the child live with the mother as such, she did recommend that the father’s application to spend time with the child not currently be acceded to. She felt that the father needed to get things in order in his life and bring another application in two years’ time.
The paternal grandparents applied to be joined and on 6 July 2020 an order was made X to spend four hours per fortnight with them at a time and location nominated by the mother. They have since spent time with him, but they live in Western Sydney and the mother lives in Town B and the paternal grandmother has had some health issues and although some time has occurred it has not always occurred as ordered.
No agreement was reached after the report was released as to what should happen on a final basis and on 1 October 2020 the matter was listed for trial in April 2021.
On 14 April 2021, the first day of the trial, final orders were made which provided for X to live with the mother and spend time with the paternal grandparents for six hours on two occasions each school term in the Town B area until January 2022, then on two occasions each school term from 10.00am on Saturday until 4.00pm on Sunday in the Town B area, and when the child started school in 2024 for three days and two nights during each school holiday period in addition to the time during the school terms in the Town B area.
Orders were also made for telephone or FaceTime communication each week and for the exchange of information between the mother and the paternal grandparents.
The father did not consent to these orders but he did not oppose them being made.
A trial was then conducted into the issue of the father’s time with X and the allocation of parental responsibility.

The parties current circumstances

The mother is 32. She re-partnered with Mr C on 29 November 2019. They commenced cohabitation in August 2020 and live together in a four‑bedroom rental.
The mother is working at Employer R. In the father’s case outline document that seemed to be regarded as a drawback but I consider it a huge positive. It gives the mother a little bit of income and some connection in the community. It is a valuable thing for the mother to be doing.
At the time of the family report interviews the mother was living with a lady called Ms S and her daughter T. They moved out when Mr C moved in.
Mr C was a public servant although I am not sure I understand what his current occupation is. He has five children from a previous relationship. They spend time with him every Wednesday for dinner and each alternate weekend from Friday to Sunday.
H and J continue to live with the mother. Neither of those children have a relationship with their father, Mr U.
K has always had an involved father, and as a result of the violence the father committed in the mother’s home in 2018 his father Mr L filed an application seeking an order for K to live with him. That matter proceeded to a family report and on 7 May 2020 an order was made for K to live with his father and spend alternate weekends and time during the school holidays with the mother and this has been occurring.
The father is living at Town V on the Region W. The travel time between the Region W and Town B is nearly three hours, and the father said that if he was ultimately successful in obtaining an order for some reasonably extensive weekend time with X he would consider moving to Town B.
In mid 2020 the father re-partnered with Ms E. He called her his fiancée in his affidavit. Ms E is 36 and is a public servant. She has three children: a son Y, who is 20 months old and two daughters, Z, 14, and AA, 13.
In his affidavit the father said that Y lived with Ms E and the girls visited. What he did not mention is that when his relationship with Ms E commenced all three children were living with Ms E. However at some point after the relationship commenced Z and AA chose to leave that home and go and live with their father.
The father said that he and Ms E were in the process of starting a business.
The paternal grandparents are no longer parties but because the step-grandfather and to an extent the grandmother were put forward as proposed supervisors I will mention that they live in Western Sydney. Nothing adverse is known about the step-grandfather.

X’s best interests

Any orders I make about X must be determined by treating his best interests as the paramount consideration and the matters to which I must have regard to in order to determine his best interests are contained in section 60CC(2) and (3) of the Family Law Act. Section 60CC (2) contains the primary considerations and section 60CC (3) the additional considerations.
Counsel for the parties submitted that the tension in this matter was between the two primary considerations, the benefit to the child of having a meaningful relationship with each of his parents and the need to protect him from harm. That is true to an extent, but the additional considerations also have work to do and I am going to start by making findings about them.

I am also going to start by ruling out the ones which do not help me or are not relevant to the matter.
X is too young to have a view about parenting arrangements.
Considering the extent to which each parent has taken, or failed to take, the opportunity to spend time with the child, communicate with the child or make decisions about the child will not help me.
As far as I know no child support is being paid but even if the mother had an application in place the father is on a Disability Support Pension, so there would not be much money flowing from that, and child support was not raised as a determinative issue in the case.
I must consider the likely effect of any change in the child’s circumstances. The father is proposing that X commence spending time with him, but I cannot make a finding about whether that change would be beneficial or detrimental until I make findings about all the other section 60CC(2) and (3) matters.
The first relevant consideration is the nature of the child’s relationship with each of his parents and any other relevant person including a grandparent of the child.
The mother is X’s primary carer. There is no extraneous evidence to suggest that there are any problems in their relationship and the family report writer made positive observations about X’s relationship with his mother at the family report interviews. She said as follows:
X was observed in the presence of the mother, H, J, Ms Wallace, Ms S and BB for 20 minutes. During the observation, X was observed to interact with the mother, Ms Wallace and his sisters. The feeling of the interaction in relation to X was warm and he was recognised and given affectionate attention throughout. X was not observed to use any language during the observation, however was smiling and engaged with eye contact consistently with the mother and Ms Wallace particularly. Ms Wallace and Ms S assisted the mother to facilitate the packing up of the room. The girls were both seeking interaction with the mother and Ms Wallace, however at times this went unnoticed. At one stage the subject child fell over and sought out the mother for comfort which she provided him. The mother was able to quickly settle the child and he resumed playing independently.[1]
[1] Family report paragraph 184
Mr C has been in the child’s life for some little while and there was no evidence that there were any issues between him and the child, and H and J spoke positively about Mr C when they had their interviews with the family consultant.
No issues were raised about X’s relationship with his siblings H, J and K.
The maternal step-grandmother is probably the most important member of the mother’s extended family at the moment. She lives in Town B and has a relationship with the children and J spoke well of her to the family report writer.
The child has no relationship with the father and would have no memory of him. He has been spending time with the paternal grandmother and step‑grandfather and would be commencing to form a bond with them.
I must consider the practical difficulty and expense of the 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.
Practical difficulty and expenses is an issue which could impact on the amount of time X can spend with his father if an order is made for that to occur.
The travel distance between the father’s home and the mother’s home is about three hours. The paternal grandmother and step-grandfather live even further away, in Western Sydney.
The mother could not be expected to travel to facilitate time. She has two other children beside X. She also has K in her care each alternate weekend and it would not be appropriate for time between the father and X to occur away from Town B when K was with the mother.
The father said that ultimately he would move up to Town B, but he only put that forward as an option if he was spending unsupervised time with the child.
The parties are not in a position to pay for professionally supervised time between the father and X. The mother is in receipt of Centrelink benefits, and even if she is getting some money from Employer R, with all the children floating around in her family she would not have any money to spare. The father is in receipt of a Disability Support Pension.
The possibility of family supervision was raised during the trial and for that reason the paternal step-grandfather gave some evidence in the witness box and was cross-examined. I observed after seeing his size and his determination that I doubted the father would mess with him, so from that perspective he would be capable of keeping the child safe.
That is not the end of the matter however when the Court comes to consider whether a family member is an appropriate supervisor. I have some concerns about the paternal grandmother and her attitude to the father and her capacity to be protective. She has also historically been threatened by the father and expressed fear of him.
I will return to this matter later in the judgment but for a variety of reasons, there is some practical difficulty and expense in X spending time with the father.
The next relevant consideration is the capacity of each parent to provide for the needs of the child, including his intellectual and emotional needs.
The mother has always been X’s primary carer. He presented well when he was seen by the family report writer and that is a tribute to the mother’s parenting. Also on the positive side of the ledger the mother has a very limited criminal history. There is a police report from some years ago about her getting into a fight with another woman and she has a conviction for a driving matter, but that is all there is. It was not alleged that she had a problem with alcohol or was a drug user.
The family report writer was however concerned about the mother’s parenting capacity for a couple of reasons.
One was her history of partnering with violent and unsatisfactory men. That is a very serious issue and it has resulted in a number of notifications to the Department of Communities & Justice.
In April 2014 they were notified that the mother’s partner Mr CC had physically assaulted and mistreated J. Case workers attempted to engage the mother with a Brighter Futures services provider to assist her in relation to her parenting. She engaged to an extent, but later that year there were numerous notifications about her neglecting the children, about the children being exposed to drug use and abuse in the mother’s home and about abusive behaviour by J and H’s father Mr U.
The mother also exposed these children to the father, and the family report writer made clear that H, J and K were all terrified of him.
The family report writer said as follows in regard to J:
J also discussed some incidents related to other adults that had lived with the mother and children, including one man that had been in the house and refused to leave. She stated that “all of Mr Marriner’s friends came into the house asking for smokes”. She also described the mother having arguments with some of her previous partners. Interestingly, J spoke positively about “Mr CC”, despite the substantiation of him harming her.[2]
[2] Family report paragraph 172
The family report writer also said that:
It is an understatement to describe K as being terrified of the father.[3]
[3] Family report paragraph 180
The mother has been seeing Ms DD, a domestic violence counsellor. She said at trial that she had completed a Circle of Security course and had completed a course called Women’s Choice & Change through P Support Services in 2020 which she said was designed to teach her about healthy and unhealthy relationships.
The mother has been in a relationship with Mr C since late 2019 and they have been in a live-in relationship since 2020. There was no evidence of any police involvement in that relationship, and Mr C attended court with the mother during the hearing.
There is no reason to be concerned that the mother is currently in a violent relationship but given the number of occasions in the past when she has made exceptionally poor choices there is a risk that she may make a poor choice of partner again in the future.
The other aspect of the mother’s parenting that concerned the family report writer was her attendance to H and J’s health issues. H has global developmental delay and she is in a special-needs class at school. J has a diagnosis of ADHD and ODD.
The report writer noted that concerns were raised in the subpoena material that the mother not seeking appropriate interventions for those children or engaging with support services to assist them. She said as follows:
All of this collateral information suggests that despite extensive and ongoing supports being offered to the mother, she has been unable to protect the children from the behaviour of her partners and still struggles with appropriate behaviour management strategies. The information also suggests that the mother has had extensive support around engaging appropriate services to meet the needs of the children, however this is also something that the mother still struggles with.[4]
[4] Family report paragraph 132
In her trial affidavit the mother said that H and J’s issues were being appropriately managed at present. She said as follows:
H suffers with global delay syndrome. She undertakes occupational therapy and speech therapy. This is facilitated through her school. H is in year 8 at Q High School and is in a moderate intellectual disability class where she has one on one teaching. Her treatment is arranged through EE Charity, Town B, who manage her NDIS Plan. Further testing needs to be done on H as there is a concern that she may be suffering from absence seizures. [5]
J is diagnosed with ADHD and ODD. She is medicated with Concerta for her ADHD. She also takes Catapres to assist with her sleep. J sees a Paediatrician Dr FF, GG Street, Town HH, NSW. J is in year 6 at Q Primary School.[6]
[5] Mother’s affidavit paragraph 10
[6] Mother’s affidavit paragraph 11
The mother said that she had also been seeking some assistance for her own mental‑health issues, which have some derivation in the dreadful upbringing she had, but that is still a work in progress. At the time of the family report, and indeed at the time of trial, the mother had still not reached the point of being willing to discuss with a counsellor what had happened to her in her childhood.
In light of the mother’s history it is impossible to say that she will not face parenting challenges in the future which may impact adversely on her children, including X. However she does not appear to be in a violent relationship at present and she has a job, which I consider a positive and not a negative which the father’s case outline suggested it was.
The mother lost the care of K as a result of her relationship with the father, which may be a wake-up call for her, and everyone agreed, or acquiesced in the notion at least, that X should continue to live with her, and given his age and his attachments there would have to be powerful evidence that he was at risk of harm in her care before he would be removed from her.
Turning to the father, X is his only child.
The father has spent very limited time with X and that is because of his own criminality. He said that during the limited time he spent with him he did some caring tasks for him. The mother disputed that but regardless of where the truth lies the father has virtually no experience parenting a child and attending to a child’s basic needs.
If that was the only problem in the matter it would be easy enough to overcome it. The father could be ordered to do a Triple P parenting course. We could start with supervised time and like many parents the father could learn as he went. However it is far from being the only problem.
Another problem is the father’s history of cannabis use. He said that he started using cannabis when he was 14 and continued to do so until he was 21. The mother said however that she found water pipes and a plastic bong in a shed when he was living with her and alleged that he smoked weed with Mr N.
I prefer the mother’s evidence to the father’s about the father’s drug use, but nevertheless there was no evidence that the father was currently using drugs. He said that he was not and had not since he was convicted of assaulting the mother in 2018. That does not carry a lot of weight but on 20 November 2019 the father provided a clean hair test.
I cannot find the father is currently using cannabis but given his lengthy history of cannabis use I cannot say that all risk of him resuming using cannabis is behind him.
If that were the only problem in the matter besides the father’s lack of experience in parenting that could be dealt with by such things as making an order for ongoing testing.
Those two problems could be dealt with, but the remaining problems cannot be so easily dealt with.
The next problem is that I have considerable concern about the father’s capacity to provide for the child’s emotional needs.
The family report writer said as follows:
The father does not appear to have a good insight into the child’s needs and his ability to provide the child with consistency, stability and reflective responsiveness to the child’s individual needs as separate from his own is largely untested, however appears quite poor given his behaviour in relation to unilaterally withholding the child (an infant at the time) from his mother and his periods of incarceration.[7]
[7] Family report paragraph 193
The evidence I heard strongly underpins the validity of that opinion.
The father continued to maintain at trial that the fact that he retained X for a week in 2019 should not concern anyone. He continued, and I will expand on this a little bit later, to be very self-focused. That could be tied in with his mental-health issues, but I am far from convinced that the father has the capacity to provide for X’s emotional needs.
The second additional problem is the father’s mental health.
The father acknowledged that he had significant mental-health issues. He set out in his affidavit a history which included his problems at school, when he said he was misdiagnosed with ADHD and given dexamphetamine. He said that he was diagnosed with bipolar disorder in 2008 and there was no dispute that during his relationship with the mother there were many manifestations of the father having mental-health issues.
The father self-harmed by cutting. In June 2018 he presented at a doctor’s surgery with the mother and said that he had persistent and pervasive mood lowering with diminished energy, interests, reactivity, drive and sleep.
He said that he would wake up in the morning with intrusive suicidal ideation. He said that the current episode of that had extended for several months now. He said that he had taken an overdose of Panadeine Forte and been to hospital but was not admitted. He said that he would get elevated and he could go for days and weeks hardly sleeping and feeling invincible.
In either that record or in another report there is a reference to the father having hallucinatory states which were infrequent and fleeting and stating that at his lowest he could get directive verbal hallucinations toward harming himself.
When the father was in jail in 2018 he threatened to kill himself if he was not allowed to see his family. In 2019 when he was in jail he was seen on CCTV placing a rope around his neck made from his bedsheets.
It was the father’s case that his mental health was currently under control and was not an issue of concern. In his trial affidavit he said that he was medicated and had a mental health plan. He said he took Lamictal and Zoloft daily. He said he had three practitioners working collaboratively to assist him.
The problem for the father is that he provided no independent evidence about the state of his mental health. As will become apparent when I talk further about the violence and family violence issues, the father was not a witness of credit, and I cannot place weight on his bare assertion that his mental health is not a cause for concern.
The father’s mental health is a cause for concern for several reasons including the possibility of X observing him self-harming, the possibility of the father being in a bad place mentally and not being able to take care of X and the possibility of the father having an acute episode which meant that he had to be absent from X’s life for a period of time.
I could not consider ordering unsupervised time given the state of uncertainty about the father’s mental health. He does not have the capacity to parent a child if he is experiencing persistent low mood and suicide ideation. However I must also have regard to what that says about the future of his relationship with the child, which is something I will have to take into account in considering whether I should even order supervised time.
I do not know whether and to what extent the father’s mental-health issues play into his criminality and history of violence. They may be completely separate issues or they may tie in with each other. I have no evidence which would allow me to make a finding about that.
The father has a significant criminal history. He said as follows in his affidavit:
I have a significant criminal history, ranging from 2010 to 2018. A brief summary of the charges is as follows:
Offence   Year
(a) drug possession  2010
(b) dealing with suspected proceeds of crime        2011
(c) stalk/intimidate intending fear of physical/
mental harm  2010
(d) destroy or damage property  2011
(e) stolen goods in custody  2012
(f)   destroy or damage property  2013
(g) assault occasional actual bodily harm             2015
(h) custody of an offence of implementing a
public place  2015
(i)   breach of an AVO  2017
(j)   assault occasioning bodily harm (on Ms Wallace) 2018
(k) resist officer in execution of duty  2018
(l)   assault occasioning actual bodily harm in
company of others  2018[8]
[8] Father’s affidavit paragraph 16
The father went on to say as follows:
I have challenged my previously held beliefs and disregard for authority. I believe those beliefs stem from poor role models after I was moved out of my mother’s home. I have also had quite a few negative encounters with authority figures. I now understand that these encounters were my fault and were due to my own poor decisions.[9]
[9] Father’s affidavit paragraph 76
Those are fine words but they would have a lot more weight if the father had been frank with the Court about his past offending and he wasn’t. He provided a list of charges and convictions but he did not provide any information about what lay behind the convictions.
A consideration of the COPS records that were tendered indicate that at least one of the offences of destroy and damage property, and possibly two of them, involved offences committed against domestic partners. The father failed to mention that.
He also did not mention that one of the assaults involved a prolonged assault on a man after he went to the man’s home in the company of others to try to recover someone’s ashes.
The father’s convictions do not arise from him coming into conflict with people in authority.
The father was not open and honest with the court about his offending and I have to ask myself how truthful he is being about the situation with Ms E, I will refer in a later section of the judgment to the convictions which relate to family violence, but the father has convictions for offences of violence which are not family violence offences.
One of them was the one I just referred to, the assault on the man during a dispute about the possession of ashes.
Then there was the assault on Mr N for which he was charged with in 2018.
The father was considerably less than frank about what happened on that occasion. In his affidavit he said:
An assault took place in my presence.

The police accused the father of participating in the assault and landing some punches. The father denied at trial that this was true but even if the worst that happened was that he stood by while Mr N was assaulted, the details of that are that he stood by while his friend Mr N, who is one metre tall, was severely bashed by his brother Mr G and thrown off a verandah and lost several teeth.
In his affidavit the father showed no empathy for his friend’s suffering. Describing the outcome of the assault he said this:
I lost a best friend. I was ordered to return to prison. I could not be there for X at an important time in his life.
He did not mention Mr N’s suffering and the impact on Mr N of the assault.
I have considerable concern about the father’s criminal record and his history of offences of violence including family violence. I am not at all convinced that he is, as he asserted in his affidavit, remorseful or that he has developed any insight into what has been happening in his life.
There have been other occasions when the father has made threats in relation to breaking the law and he was involved a street fight that the police did not charge anyone over.
Where all that violence is coming from and whether it is the result of poorly managed mental health or simply a propensity to lash out and resort to violence I do not know, but it makes him an exceptionally poor role model for his son and a potential danger to his son. It could also mean that he goes back to jail again making him unavailable to spend any time with his son.
I must consider the child’s maturity, sex and background.
X is almost four. He is not reported to have any developmental or behavioural issues.
I must have regard, if a child is an Aboriginal child, to the benefit to the child of spending time with people who share his culture.
The father is Aboriginal and from that perspective it would be preferable if X could spend time with him. I understand that his Aboriginality may come through the paternal grandfather, so spending time with the paternal grandmother and step-grandfather may not cure that issue.
However in the end any orders I make have to keep X safe. I take this issue into account but it cannot trump the need for X to be safe.
I must have regard to any family violence involving the child or a member of the child’s family.
The mother made extensive allegations about the father being violent to her. She said that during her pregnancy she was choked, grabbed and pushed by her head many times and that she was spat on. She said the father would threaten to harm himself and put a knife to his heart, which can be a form of family violence. She said he kicked the door of the car when H was in the car and would indulge in verbal abuse such as calling her a “dumb cunt” in front of the children.
She said that when he moved back into her home after his second term of imprisonment he took her mobile phone, removed the car seat from the car and withheld her car keys to prevent her leaving. She also alleged that he said that he would slit her throat, slit her dog’s throat and burn down her parents’ home if she tried to leave or if she put him back in jail.
She said that he opened her mail, would not let her attend appointments alone, threw a glass at her head which smashed on the wall and engaged in coercive sexual behaviour.
The father denied most of the allegations or he had a story about them. In relation to the allegation that he threatened to slit the dog’s throat he alleged that he did not quite say that, rather he said that the dog might have to go to a rural property and if he caused harm to animals his throat might be slit.
The father did not deny threatening to slit the mother’s throat but maintained that it was said in a teasing manner and that he and the mother use to tease each other using that sort of language.
I do not accept that. The mother did not agree that is what happened. In my view that was a threat and not something said to tease the mother.
The father admitted some verbal abuse but said that he regretted it.
The mother alleged that on 17 March 2019 the father ripped her shirt and threw her on a mattress. The father said that the mother made that up and had threatened to make false allegations to get him sent back to prison. The paternal step-grandfather weighed in on the father’s side in regard to that incident and said that it was the mother who was out of line on that occasion and not the father.
I cannot make findings about every single allegation the mother has made. I am satisfied that the father made the threat to slit her throat and not made in jest. Some of the other threats I cannot lightly dismiss, but I am not going to find on the balance of probabilities they occurred, because in the light of the other serious violence the father perpetrated against the mother about which I have no doubt I really do not need to.
The father seriously assaulted the mother in 2018 when she was 19 weeks pregnant with X. She said that it began with the father throwing a sandwich at her. She threw it back to him and head-butted him to get him off her and she said that he punched the fridge, choked her until she passed out and pushed her over and dragged her into the laundry.
The mother went straight to the police. They observed injuries on her including some red marks on her neck and the father was charged with assault occasioning actual bodily harm.
The father was interviewed by the police and he said that he did not remember choking the mother. He said he thought he had grabbed her by the shoulders. He denied throwing her into the laundry but said that he grabbed her and got her to sit down in the laundry.
In his affidavit the father said that the choking never happened, but in cross-examination he said that he did not remember what happened because he had a mental blackout.
The father pleaded guilty to assault occasioning actual bodily harm. He said his solicitor was meant to get the allegation of choking taken out of the fact sheet and did not, and that he felt betrayed by his solicitor’s dishonesty and felt a sense of injustice.
I do not accept the father’s denials about his behaviour on that occasion. I accept the mother’s evidence about the assault. She went straight to the police and gave those details. There was no suggestion that her memory was affected by mental‑health issues or anything else. It was a very serious assault and the mother suffered injuries.
The mother alleged that on 2 April 2019 after she went to the motel the father and his family came to the motel and knocked and kicked at the door and the motel called the police. I prefer the mother’s evidence about what happened on that occasion and in my view the confrontation of the mother at the motel was an act of family violence.
On 6 May 2019 the incident occurred where the father took X. He alleged that during that incident the mother assaulted him and harmed X. I am satisfied that she was simply trying to get the child back. The father took the child, walked off and retained him for a week. That was an act of family violence.
The father showed no insight into the impact of this behaviour on X. He said he thought he had no choice but to remove X in the best interests of the child.[10] I do not accept that.
[10] Father’s affidavit paragraph 19
The father suffered some injuries on that occasion. The mother bit him and scratched him in an endeavour to get the child back. However she was simply trying to recover the child who the father should never have attempted to remove.
The mother said that she was pressured into visiting the father in jail because the father and the paternal grandmother said that if she did not the father would get depressed and cut himself. In the light of everything that happened during the relationship and the father’s behaviour toward her I accept that those threats were made and that pressure was put on her. The fact that the mother went to visit the father in jail does not mean that I should disregard her evidence about the violence and does not mean that I should disregard her evidence that she is frightened of the father.
I accept that she felt pressured. Even if there was an element in it of the mother going willingly, she had previously made many poor choices about partnering with violent men and this sort of ambivalence is not uncommon in violent relationships.
In summary, I am satisfied that the father committed acts of family violence against the mother. I am satisfied that her evidence about the incident that led to his first term of imprisonment should be accepted. I am satisfied that he made the threat about slitting her throat. I do not lightly dismiss her other allegations, I am just not prepared to find on the balance of probabilities that they occurred.
This is not the only relationship in which the father has been violent. He had a previous partner called Ms JJ. Ms JJ obtained an Apprehended Domestic Violence order against him. In October 2017 he was convicted of contravening that ADVO and using a carriage service to menace and harass and was sentenced to 75 hours community service and given a $660.00 fine.
The family report writer referred to an entry in the subpoena material which stated that the paternal grandmother contacted the father’s psychologist on 8 June 2018 and said that she was concerned for her safety as the father was violent to her.[11] There is also reference in the tender bundle to an occasion when threats were made against the paternal grandmother in circumstances where she believed that the father was the one making the threats.
[11] Family Report paragraph 147
That is not all though, because in the COPS records there are a number of references to events which indicate violence to previous partners.
The father has convictions for destroy and damage property in 2011 and 2013 and it would appear from the COPS records that they both involved partners. On one occasion the father put a brick through the windscreen of a car and on the other he kicked in a door to gain access to a home.
There was also an incident in 2011 which did not lead to the father being charged but which I am not prepared to ignore it in the light of all the other evidence about the violence. It is if nothing else a significant red flag.
The father was alleged to have entered the home of a girlfriend, punched her twice, pushed her to the floor, restrained her on the floor and then when she got up kicked and punched her when she was trying to leave.
The matter was reported to police but the father was not charged, and in the COPS records there are a number of reasons given for that, including it being one person’s word against the other. However the fact that a complaint was made at the time by yet another partner, that I am satisfied the father seriously assaulted the mother and that he has a serious propensity to be violent to other people, means that it is a red flag.
The father made no reference in his affidavit to any previous issues with domestic partners.
The father’s case at trial was that the court should take into account that he was doing a Facing Up men’s behaviour change program, and earlier today I was sent through a document confirming his attendance at the program. Nobody had any objection to me receiving that and I will mark it as an exhibit.
I accept that the father enrolled in the program in September 2020. At the time of the trial he had attended eight group sessions and several individual assessments and support sessions. He said that he was scheduled to complete the program on 14 May 2021, and the fact that I have been sent through that document suggests that he has now completed it.
The father set out in some detail in his affidavit what he had said he had learned from the program but I need to consider whether that is again just fine words or whether the father has in fact learnt something from the program.
A reason to be concerned is that the father re-partnered with Ms E in 2020. In his trial affidavit he said that he had applied what he had learned in the program to disagreements he had with Ms E and that they had been able to peacefully discuss things. Ms E said in her statement that when she and the father had a disagreement the father listened and responded in a calm and respectful manner and expressed his point of view.
However in oral evidence Ms E told a different story. She said she and the father had had arguments, one of which was apparently loud enough to mean that the police were called to the home, although Ms E said that she and the father both told the police there was no issue and the police went away.
Ms E said that there had been no problems in her relationship with the father. I cannot find definitively that there have been but there are some red flags.
First, neither the father nor Ms E mentioned in their affidavit and statement respectively that the police had been called to their home on a number of occasions. During cross-examination Ms E said it was four or five times.
Second, after the father began living with Ms E her older two older children have left home and commenced living with their father, and in January 2021 one of them went to the police station with her father to make a complaint about some things that the father in this matter was doing.
I cannot make any findings about exactly what that means but it is a significant red flag given the father’s history.
I will discuss later when I come to assess risk what I make of all of the evidence but the father needs to understand that the mere fact that he has done the Facing Up program does not mean that the Court is necessarily going to find that any risk of X being exposed to harm as a result of him committing acts of family violence has necessarily abated, especially in circumstances where he showed no empathy for his victims and no insight into the impact on others of his violent behaviour and was not a witness of credit.
The father made some allegations in his affidavit about the mother assaulting him. The mother denied that she had done that, save that she admitted that there was an occasion when the father was constantly berating her during a car trip and she hit him with her phone.
Some of the mother’s actions in relation to the father, such as at the time of the assault in July 2018 and during 2019 incident involving X could be termed defensive actions and not evidence of the mother assaulting the father.
Hitting him with the phone is probably something which could be classified as an assault or family violence, but it pales into insignificance when compared to the father’s behaviour during the relationship.
The father made some allegations about the maternal grandfather threatening him. I cannot make any findings about that in circumstances where the father was not a witness of credit and nothing turns on it in any event.
I must have regard to whether there are any family violence orders.
The father has had ADVOs taken out against him for the protection of the paternal grandmother, his former partner Ms JJ and the mother. It suggests a pattern of the father behaving in a violent way to women.
An ADVO was made following the assault on the mother in February 2018 and that was in place until 14 July 2020. However there is no current ADVO in place.
I must have regard to any other relevant matter.
I will consider here the suitability of the paternal grandmother and paternal step‑grandfather to be supervisors of the father’s time if the Court considers that it would be unsafe for X to spend unsupervised time with the father but that there is some benefit to X in having a relationship with the father.
The mother has a reasonable relationship with the paternal grandmother. There is some level of trust there, but the mother remains concerned that the paternal grandmother is somewhat protective of the father and is keen to make sure that he spends time with the child and is concerned that she may make poor judgments about whether that should occur.
One of the actions by the paternal grandmother which gives rise to concern is that she was aware that the father had retained X in July 2019 and she did not take any steps to persuade him to return the child to the mother and indeed may have given him some support.
Another is that the mother said, and I have no reason to disbelieve, that the paternal grandmother put some pressure on her about taking X to see the father in jail by telling her that if she did not the father might harm himself.
Third, the mother gave evidence at trial about asking the paternal grandmother to go guarantor for a loan of $1,000.00 so that she could buy Christmas presents. She reported, and I accept her evidence, that the paternal grandmother said that she would do so if the mother agreed to the father seeing X.
I am concerned that the paternal grandmother does not properly understand, or refuses to accept, the serious risk of harm that her son poses to X.
The other thing that makes the paternal grandmother, and potentially the paternal step-grandfather, unsatisfactory supervisors are that they are themselves very keen to have a relationship with X. If people who are keen to have a relationship with a child themselves are tasked with being supervisors of their son’s time with the child they may be very reluctant to report any difficulties with that time in case it impacts on them being able to have a relationship with the child.
I am not entirely convinced that they would properly report to the mother if something was going wrong, because the paternal grandmother in particular has some sympathy for the father and some wish to protect him, bearing in mind that he has threatened self-harm to try and get his own way on numerous occasions.
I accept the submission by the mother’s counsel that the paternal grandmother and step‑grandfather are not appropriate people to supervise the child’s time with the father.
I must of course consider whether supervision is necessary at all, and I now have to return to the primary considerations, which are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
It is trite to say that children benefit from having a relationship with two loving, caring, competent parents. There are a number of adverse outcomes for children who do not have a relationship with both of their parents. They can fall into depression. The father rightly raised in his affidavit the risk of the child feeling abandoned. Children sometimes blame themselves for the fact that they not seeing one of their parents and think there must be something wrong with them. They can seek out that parent when they get older and in a worst-case scenario turn against the parent who has prevented them having a relationship with the other parent.
There can be a number of adverse outcomes for children who are not able to have a relationship with both of their parents or who are not permitted to do it by the Court and the mother, to her credit, recognised that. She said this in cross-examination:
I want X to have a relationship with his father because every child deserves that, as long as the time is safe.
It is the risk-of-harm issue that looms large in this matter. Although children can suffer a range of poor outcomes if they do not have a relationship with a parent, they can suffer devastating impacts from exposure to family violence or dysregulated mental health. They can suffer physical injury and they can suffer psychological harm.
The magnitude of the risk the father poses to X is very high. When he is violent he is very violent. He has choked the mother. In 2012 there is the report of an assault on a partner which also involved punching and kicking, and although I cannot find on the balance of probabilities that this occurred, I can take it into account in assessing risk. He kicked in the door of another partner. He smashed the windscreen of another one, or it might have been the same one.

When the father punched the man during the dispute about the ashes it was not an act of family violence but it was a violent act and he repeatedly punched him.
When the father is violent he is very violent. There is a high risk that he could physically injure someone (and he has injured the mother) or could even kill them. Children caught in that situation can be injured if they seek to intervene and they inevitably suffer quite severe psychological harm from experiencing that.
The father tends to lose control and the presence of a child during the assault on the mother in 2018 did not stop him. There is reference in the police record to J being present during that assault.
There have been a number of instances where there have been police reports about violence between the father and domestic partners. That occurred in 2011, 2012 and 2013, in 2017 in relation to Ms JJ (although that was contravening an ADVO it was still family violence in relation to a domestic partner) and in 2018 in relation to the mother.
There have been a number of incidents involving domestic partners over quite a number of years. The father has re-partnered, and if he leaves that partner he is likely to partner again, so if an order were made for X to spend time with the father there is a very high risk of X being exposed to family violence, and the results for the child could be quite catastrophic.
The family report writer said this about the impact on J of exposure to family violence:
When J was asked about the mother’s previous partners she described a pattern of unhealthy relationships, with varying treatment of the children by them. Like the other children, J reported that she was very frightened of the father and went into significant detail of traumatic experiences in relation to violence between the father and the mother. She recalled witnessing the father choke the mother and discussed her fear during incidents including the father taking X from the mother and not returning him and the father and his mother attempting to “kick in” a hotel room door that they were staying in when the mother left the relationship. The father and Ms D reported that J could not have been witness to the assault on the mother and that the mother had coached this report. They also reported that in contrast to allegedly “kicking in” the door of the motel room, Ms D had knocked on the door and the father had attended the motel office. Whether J experienced these events as described, she appeared very fearful and as though she had experienced significant trauma as a result of the relationship.[12]
[12] Family report paragraph 170
There is also a report of J, H and K being terrified of the father.
The father said that I should consider that risk as being in the past because he had done the Facing Up course. However I have considerable concern about whether the father has in fact learnt anything from that course.
The father can say anything about that. He can set out in his affidavit the things from the course literature, but I have to look at the violence which has occurred and what the father has said about that in his affidavit.
The father made minimal admissions about his assault on the mother. In his affidavit he said:
I did not commit the crime I was imprisoned for.
The assault on Mr N was not family violence but it was a significant assault and what the father said about that was:
An assault took place in my presence.
The father has no empathy for his victims. He has demonstrated minimal acceptance of responsibility, he has committed acts of family violence in relation to domestic partners over many, many years and he was not frank about that in his affidavit.
The other difficulty of course is that the father’s mental health is gravely concerning. No matter how much the father has learnt at a Facing Up course, if he has significant mental-health issues it might mean that he is unable to put into practice what he has learned, and I have only his word for the fact that his mental health is under control at the moment.
I accept that there have been no police charges arising out of his relationship with his current girlfriend but the father and Ms E were not honest about what was actually happening in that relationship. Information emerged in cross-examination which caused concern, and when that is added to all the other concerns about the father then regardless of the fact that he has done the Facing Up course he remains a significant risk of harm to the child. Under no circumstances could I consider ordering that he spend unsupervised time with the child.

Parental Responsibility

There is a presumption in section 61DA of the Family Law Act that the parents should have equal shared parental responsibility for the child, absent a finding that one of the parents or a person living with one of the parents has perpetrated family violence or has abused the child.
There has been family violence of the most serious kind and the presumption does not apply.
I can still make an order for equal shared parental responsibility even though the presumption does not apply, but it would not be in X’s best interests for me to do so. The mother is vulnerable. She was subjected to significant family violence. It would not be in X’s best interests to create a situation where she was obliged to communicate with the father.
He might again resort to using threats of suicide to try and control and manipulate her in relation to her decisions. It would demonstrably not be in X’s best interests to order equal shared parental responsibility, and I am going to make an order that the mother have sole parental responsibility for X.

Conclusion

Like most cases that I hear this case turns on a combination of facts. It is not a case which turns simply on whether the father has completed a Facing Up course, which he was partway through during the hearing and which I understand he has now completed.
The case involves a vulnerable three year old who is unable to protect himself and who is currently living with his mother.
The family consultant expressed some concerns about the mother and they are legitimate concerns, especially the concern about her propensity to partner with violent men. However at the time of trial the mother seemed in a better place. There was no evidence that Mr C was violent. The mother is attending to her mental health in terms of having some counselling. She has a job and no concerning issues about her parenting of the children at the time of trial were identified.
I hope all goes well for the mother in the future but she has been handed a tough card in life in terms of the parents she was given. She faces challenges due to her own upbringing and those challenges will not magically go away. There are risks that she may again expose her children, this time including X, to a violent partner, but that is not happening at the moment and even if it was I could not consider as an alternative placing the child with the father.
The father did not seek that of course. All he sought was time with the child, and his case was that he was in a better place at the moment in his life as well and the Court should make an order for him to be reintroduced to the child.
It would be highly destructive and damaging for X if he spent time with the father and he was exposed to drug use, violence to partners, violence to third parties or exposure to the father cutting himself or threatening suicide and it would be destruction and damage that could not easily be undone.
The mother and father have had poor outcomes as adults because of what they were exposed to as children and this amply demonstrates the harm that comes to future generations if they are not properly parented.
Exposure to those matters would be highly destructive for X and notwithstanding the father completing the course, I cannot be satisfied that there would be no risk of X being exposed to any of those risks if he spent unsupervised time with the father.
The father said that he was in a better place. He said his medication had been adjusted and he had finished the Facing Up course, but he was not frank in his affidavit about what was really going on in his life. He presented his new relationship as steady and stable, but I have already indicated my reasons for being concerned about whether that is true, including his partner’s older children having left home following him moving in, a number of police callouts to the home and the admission by Ms E that there had been arguments.
There was also an issue with the father at Suburb KK Railway Station involving the police which I did not mention during the course of the judgment.
The father may not be as stable at present as he is asserting. He minimised the family violence and his past offending. I am concerned about whether he has indeed learnt anything from the Facing Up program and I question how much good the knowledge he says he has acquired will do him anyway if he is in a state of denial about the extent of his violence and perceives himself as a victim.
In addition if he has unmanaged mental-health issues, and he put no evidence before me to establish that his mental health was properly managed, he just asserted it was, then no matter what he has learned in a course there could be a risk of him doing exactly what he has done in the past, cutting himself, threatening suicide, losing control and being violent.
X would be at considerable risk of harm if he spent unsupervised time with the father.
I could order supervised time, but there was discussion at trial about what value that would have if there was no prospect of the father’s time with the child becoming unsupervised.
Supervised time protects against immediate risk of harm, and I do not think the father would mess with Mr D, but I do not consider that the paternal grandparents would be suitable supervisors and these parties cannot afford professional supervision.
For that reason alone supervised time would be problematic but even if those problems could be overcome, the Court does not usually order supervised time unless there is a prospect of the time eventually becoming unsupervised.
I cannot see any prospect of that at the moment. The father provided no evidence to convince the Court that his mental-health issues were not going to be a problem in the future. He relied on the fact that he enrolled in the Facing Up course but was not frank about the nature of his past offending and the violence that he had committed. He was self-focused in discussing the past violence and displayed no empathy for his victims, and I can have absolutely no confidence that his offending is behind him.
There is no point me ordering supervised time and introducing this little boy to the father only to find that that time cannot progress beyond supervised because the father commits further offences and goes back to jail or because it becomes clear that he has in fact has not learnt anything from the course and there is family violence in future relationships.
On the state of the evidence the father presented to the court I cannot be satisfied that the things that have happened in the past are behind him and that he is not going to have future problems with violence, family violence, criminality and his mental health.
An additional consideration is that while the mother is doing very well at present, she is a vulnerable person because of her upbringing. She is trying, but the last thing she needs is to be thrown off balance.
She has struggled at times to properly meet her children’s needs and it would be a very poor outcome for X if the mother had to deal with issues that arose because of the father’s behaviour and worries about whether the paternal grandmother and step‑grandfather were properly supervising the time and whether it might be necessary to return to court and apply to have the orders varied.
It is a loss for X if he cannot have a relationship with his father. Through the father he is an Aboriginal child, so he is going to lose that connection, although as I observed during the trial Mr C is Aboriginal, so it is not as if the child will be growing up in an environment in which Aboriginality is disrespected or in which he has no opportunity at all to have positive encounters with people who are Aboriginal.
It is a loss to the child not to have a relationship with the father, but if the father wants to have a relationship with his son he is going to have to do a lot more than he did at this trial. He is going to have to do what the family report writer suggested which was as follows:
It is recommended that the father complete his behaviour change program and commence long term counselling to address his mental health issues and anti-social behaviours. Should the father be able to commit to these recommendations and be able to demonstrate that his behaviour has changed, it is recommended that he consider re-applying to the Court when he has had a clear criminal record and his mental health is stable and managed for a period of 2 years (noting that at the time of the Family Report interviews, he reported this was already 8 months).[13]
[13] Family report paragraph 212
The two years that the family consultant referred to is not yet up, although it will be up in February 2022, but given what emerged at the hearing about the potential issues in the father’s relationship with Ms E, he might need longer than that to establish for the Court that he is not likely to offend again, that his mental health is stable and properly managed and that he does not pose any risk of harm to the child.

I certify that the preceding two hundred and fifty one (251) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 5 July 2021

[2021] FCCA 1452

3 June 2021

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction

Duty of Care