Warner and Houseman

[2010] FamCA 1125

FAMILY COURT OF AUSTRALIA

WARNER & HOUSEMAN [2010] FamCA 1125

FAMILY LAW – CHILDREN – Rice & Asplund – history of family violence – threats to kill the mother and the child – consent orders 3½ years earlier for the father to have no time with the child – child has had no contact with father for almost 5 years – mother and child’s continuing fear of the father

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725
Bennett v Bennett (1991) FLC ¶92-191
D v Y (1995) FLC ¶92-581

APPLICANT: Mr Warner

RESPONDENT: Ms Houseman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9756 of 2008

DATE DELIVERED: 10 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 10 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swart

SOLICITOR FOR THE APPLICANT: Knight & Associates

COUNSEL FOR THE RESPONDENT: Mr  Pavone

SOLICITOR FOR THE RESPONDENT: Vicki Sweet Family Law

Orders

it is ordered that

1. The father’s Initiating Application filed on 11 August 2010 be and is hereby dismissed in its entirety.

2. All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

3. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9756 of 2008

MR WARNER

Applicant

And

MS HOUSEMAN

Respondent

REASONS FOR JUDGMENT

introduction

1. In May 2007, on the second day of defended proceedings before me, the parties consented to orders pursuant to which the father was not permitted to spend time or communicate with their daughter who is presently aged nine years.  While I was not privy to the precise reasons for those consent orders and was not required to make any finding of fact, the evidence then before me included serious allegations of violence and threats of violence perpetrated by the father against the mother and the child.

2. In October 2008 the father brought an application in which he sought equal shared parental responsibility for the child and that the child in effect spend time and communicate with each of the parties as deemed appropriate by the Court. That application came before me in February 2009 on the discrete issue of the rule in Rice and Asplund (1979) FLC ¶90-725. I dismissed the father’s application on the basis that there was no significant change of circumstance. One of the other orders I made at that time was pursuant to section 118 of the Family Law Act 1975 ("the Act") enjoining the father from bringing any proceeding seeking parenting orders in respect of the child without leave of the Court first had and obtained.  Such leave was to be sought on an ex parte basis. 

3. In October 2009 the father made an application to me pursuant to the requirement of that order. The matter finally returned before me in April 2010 at which time I gave leave to the father to withdraw his application. Subsequently, in August 2010, he made a further application which I granted to the extent that I gave him leave to serve the proceedings on the respondent mother, thereby giving her the opportunity to be heard on it.  These reasons for judgement constitute my determination of that application on which the mother has been represented by counsel.

The parties and their child

The father

1. The father is Mr Warner who was born in 1963.  He is employed as a contractor.

The mother

1. The mother is Ms Houseman who was born in 1965.  She is self-employed.

The child

1. The parties have one child by their relationship, a daughter who was born in February 2001.  She lives in the sole care of the mother.

The trial and consent orders

1. Defended proceedings commenced before me on 1 May 2007.  The father sought orders that he spend time and communicate with the child during times which are not presently relevant.  In response, the mother sought orders that the father neither spend time nor communicate with the child.

2. On the third day of the trial the parties agreed to minutes of orders pursuant to which the father effectively conceded the mother's case.  It was clear that the basis for that concession was the father's admission of very serious allegations of violence by him against the mother and the child.  Those allegations remain at the forefront of the present application. In her affidavit sworn 7 September 2010 in these proceedings the mother referred to and hence adopted her earlier affidavit sworn 3 Feb 2009 which was before the Court in the proceedings on 27 February 2009. I now quote from portions of that affidavit in respect of those matters:

   ·Throughout the course of his evidence in the trial, [the father] on a number of occasions admitted that in June 2005, he had threatened to kill [the child].

   ·During the course of the trial the [father] admitted in cross-examination on a number of occasions that he had in fact threatened to kill me, [the child] and then himself at changeover on 4 June 2005.

   ·The applicant had previously threatened to kill me and pleaded guilty.

   ·… the incident on 2 and 3 September 2005 when the [father]

   (i)Tailgated my car;

   (ii)Forced me off the road and hit my car;

   (iii)Followed me from [one regional town to another];

   (iv)Verbally abused me at the [regional] Police Station;

   (v)In breach of an Intervention Order attended at my place of work on 3 September 2005;

   (vi)Removed ignition leads from my motor vehicle rendering the car inoperable.

   ·… I am fearful of the [father]. I am fearful for my safety and that of [the child].

3. In her affidavit sworn on 7 September 2009 the mother deposed:

   It was only when a further threat to kill the mother was made by the [father] to his solicitor in February 2006 that contact finally ceased.

   The father has neither spent any time nor communicated with his daughter since this time.

4. The father pleaded guilty to at least one charge of threatening to kill the mother and was sentenced to imprisonment for six months, suspended for a period of 12 months.  There was another trial of an alleged threat to a solicitor to kill the mother, in respect of which he was found not guilty. 

5. The evidence before me at the May 2007 trial included a Family Report by Mr I who was then a Family Consultant attached to the Melbourne Registry of the Court.  Because of the making of the consent orders, Mr I was not cross-examined.  Accordingly, his evidence was not tested.  Mr I recommended that "in the absence (sic) any evidence to the contrary", there should be supervised contact at a Contact Centre on one occasion each month and that certain restraints be placed on the father against his engaging the child in any adult issue or "inappropriate or destructive dialogue". However, as I found in my judgement delivered on 27 February 2009, (referred to below) Mr I -

   … ventured the view that were the Court to find certain elements of violence as having occurred to the relevant standard, he would reluctantly be opposed to an order in favour of the father for him to see the child.

6. Prior to the resolution of the matter by the parties in May 2007, I expressed very significant misgivings with regard to the father having any communication whatsoever with the child.  Those misgivings were based on several factors.  First, it appeared that the father had no appreciation of the significance of his actions on the mother or, in particular, the child.  Secondly, the evidence suggested that they were both terrified of the father, which I tentatively expressed to be at least understandable.  Thirdly, the absence of any psychological or psychiatric evidence with regard to the father's mental health constituted a major gap in the father's case.

7. As I have already noted, the parties resolved the matter on the basis of consent orders which relevantly provided as follows:

   1.That all previous orders with respect to the child, […], born […] February 2001 ("the child") be discharged.

   2.That the child live with the Mother.

   3.That the Mother have sole parental responsibility for the long term care, welfare and development of the child.

   4.That the Father not spend time with or communicate with the child.

previous applications for leave

1. The father sought to make an application for leave in late October 2009.  Initially, he appeared on his own behalf. I granted an adjournment in the expectation that he would be able to obtain legal representation within a short time. He sensibly engaged solicitors to represent him which, in my view, was an appropriate course to take. I had indicated to the father that in the absence of expert evidence with regard to his psychological/psychiatric health, his application had virtually no prospect of success.  On that basis, I gave him leave to withdraw his application when the matter finally returned before me on 7 April 2010. 

2. At the hearing on 27 February 2009 I found that the father had presented with at least the same antagonistic attitude to the mother and with no greater insight into how his behaviour very seriously affected his daughter.  I was reminded by Counsel for the Independent Children's Lawyer that at the time of the consent orders I urged on the father the need for a professional assessment of his mental health. In the two years intervening he had apparently taken no steps to obtain such an assessment.   

3. At that time I had the benefit of a Family Report prepared by Mr A, a Family Consultant with the Melbourne Registry of this Court, dated 24 February 2009. Mr A also raised concern that the father presented as minimising the mother’s reports of family violence, which he considered to be “not inconsistent” with the earlier report of him by Mr I.  Mr A recommended that the father and the Court would be significantly assisted by a psychiatric assessment of the father.   

The present application

1. The father's present application seeking leave to file and serve his application for parenting orders on the mother came before me on an ex parte basis on 11 August 2010.  It was supported by an affidavit sworn by him on 7 July 2010.  Having heard counsel on his behalf, I gave leave for the filing and service of the application and supporting affidavit on the mother and listed it for hearing before me on 10 September 2010.

2. On the return of the application which constituted the hearing in respect of which these are the reasons for judgement, both parties were represented by counsel who are experienced in this jurisdiction.  I received evidence by way of affidavit from each of the parties together with the expert material referred to below. Neither counsel sought to cross examine any deponent of those affidavits and accordingly, the oral hearing was conducted on the basis of submissions by both counsel.

3. The father's application sought time with the child each fortnight together with other time on her birthday, Christmas and school holidays.  It is not necessary to further particularise the details of that application at this stage.

4. The father's affidavit in support of the application indicated sufficient material which, in my view, warranted my giving leave in accordance with the previous order referred to above.  The father swore that he would have continued attending counselling with a psychologist on a regular basis and continued:

   7. …I feel I have grown as a result of the sessions I have already had, and have found the counselling has helped me to look at matters and issues in a wider context so as to understand their impact on me as well as others.  I find that by attending counselling I am able to deal with things in a more positive way.

   8. …I have also found the parenting course I have completed very rewarding, although it was startling at first hearing the stories of how other participants delta with their children. As the course progressed, I was able to understand the pitfalls and traps a parent can fall into without understanding the impact of these on the child concerned.

   9.I deeply regret that my actions in the past have led to my missing out on having a role to play in [the child's] life over the last few years.  I loved my daughter dearly and her welfare is my main concern.  I am hopeful that in the future we can establish a comfortable relationship with each other so that I can fulfil my obligations as her father.

5. Evidence in support of the father's application at that time was a psychological evaluation of the father by Dr K, a clinical and forensic psychologist with extensive experience.  Dr K noted the basis of the referral of the father to him as being in part:

   There have been ongoing legal proceedings, with the core of legal proceedings relating to issues regarding alleged family violence, including the father being allegedly abusive, intimidating, and threatening.  It has also been alleged that on one occasion the father ran into the mother's car deliberately.

6. The father reported his version of the allegations of violence to Dr K as follows:

   [The father] indicated that he crashed his car into [the mother's] car after his father died in 2005 due to a build up of frustration and pressure.  He reported that at the time he was doing very poorly, had nobody to turn to, and had lost friends due to the end of the relationship.  He stated that the police made up charges, and he was then charged in relation to this incident.  He indicated that he pled guilty to the charges.

7. As referred to above, the father made threats to kill, was charged accordingly and pleaded guilty.  In relation to that matter, Dr K reported:

   In February 2006, [the father] had made statements to [a solicitor who he had consulted], and [the solicitor] called the police, with [the father] being charged with threats to kill.  He stated that he pled guilty to the threats to kill so that he could continue to see his daughter.  This went to the Supreme Court, and [the father] was incarcerated at Melbourne Assessment Prison for two and a half months.  He reported that he was found not guilty on 2008.  He has been applying through the Family Court from 2008 to now, but his applications have been thrown out because of a lack of new information.

8. Dr K reported that the father had asserted that "… there was a particular policeman who was biased in his dealings with [the father]".  He also reported "… that the Family Court has indicated that his ex-partner is scared of him, but he refutes this."

9. Dr K evaluated the father's mental health as follows:

   The current evaluation did not show [the father] to be suffering from anxiety and depression, or having ongoing difficulties with anger.  In his presentation there was a level of despair and sadness, and sense of injustice.  He does present with some narcissistic traits, but there is no evidence of psychopathic or sociopathic personality features based on this evaluation.

10. Dr K concluded:

    [The father’s] functioning has improved over the last three years, reducing the likelihood of impulsivity, indicating there are no other significant factors associated with his mental state that could be seen as identifying a clear risk to his child.

11. The father has also consulted a psychologist, Ms H.  He was referred to her by his General Practitioner.  He consulted Ms H on eight occasions between January 2010 and May 2010.  Ms H’s undated report was evidence before me on the father's ex parte leave application and is also evidence in the proceeding which is the subject of these reasons for judgement. Ms H has treated the father and accordingly has been able to derive deeper insights of him than may be possible for an expert who has been consulted for the purpose of preparing a report.

12. In reference to her opportunity to gain insight into the father Ms H wrote as follows:

    Fortunately I have been afforded time to get to know [the father], to look for consistencies and inconsistencies in his story and presentation, to assist me in developing a more comprehensive assessment of him.  In this time, I have formed the opinion that [the father] is essentially a man of strong values and beliefs about family and the community.  I imagine others who meet [the father] for brief periods of time would not have this opportunity and could easily be left with a negative view of him.  I am left wondering if [the father's] lack of finesse in presenting in different environments has left him vulnerable to misinterpretation and indeed if this has occurred during proceedings at the Family Court.

13. Ms H referred to the incident in which the father drove his car into the mother's car as follows:

    In response to the incident where [the father] drove his car into [the mother's] car he takes full responsibility.  He has expressed genuine remorse and acknowledges the impact of this on how others view him.  He reported that he paid for [the mother's] car to be repaired, however more importantly, and what could be considered a protective factor, is that his behaviour was inconsistent with his core values and beliefs.  It occurred at a time when he was under great stress following the death of his father, and his sister's diagnosis of Multiple Sclerosis, which was compounded by the ongoing conflict between himself and [the mother].  [The father] reports that this behaviour was out of character and he has to live with the fact that he led friends and family to question him.  He has tried to make amends by moving forward and not giving further reason for others to doubt him, and has been open to attending programs to assist with his personal development.  At the present time, [the father's] only interest in his ex-partner is as the mother of his daughter.  [The father] does however have an invested interest in his daughter's well-being, which he believes can only come from having both of her parents in her life.  In [the father's] words "to hurt or harm his ex-partner in any way is to hurt his daughter.  His best revenge is to move on with his life."

14. Ms H summarised her views and made recommendations as follows:

    In my opinion, [the father] does not have a psychological disorder or an anger management problem.  He is deeply wounded and angry that his ex-partner has not allowed access with his daughter and that the matter has been so drawn out so that he has lost significant years of contact that can never be replaced.  However, this can only be considered a "normal" reaction to such a situation.  I do not believe that [the father] is a risk to his daughter, … but instead presents as being focused on her needs, while recognizing that this to occur she requires involvement from both parents.  [The father] recognizes his past mistakes and if he could, would take them back.  Given this is not possible he lives with the remorse and knowledge of the impact of his behaviour on those he loves most.  He is deeply sorry and does not know how else he can make amends apart from not repeating his behaviour, which he has done over a sustained period of time.  If concerns exist regarding the relationship between [the father] and his daughter, … allowing access through and Access Centre where an independent and qualified person can observe their interaction and report any concerns would be an appropriate option.  If this were successful access arrangements could be extended.  At this time, I do not believe any contact between [the father] and his ex-partner … should occur, which will remove the possibility of further allegations and help to keep the focus on the relationship between [the father] and his daughter.

15. There is only one reference in Ms H’s report to “threats to kill”, but there is no detail beyond that statement.  That is most concerning.  On the basis of her commendable detail of reporting, I can only infer that the father did not inform her of that fact.  However, that issue may be seen to stand alone from Ms H’s assessment that the father "does not have a psychological disorder or an anger management problem."  While I have no reason to reject that opinion at the time that it was expressed, it is highly probable that the father did have an anger management problem during his relationship with the mother and, in particular, the commission of the events relating to the car accident and the threats to kill the mother and the child referred to above.

1. Regrettably, there are other portions of Ms H’s report which cause me concern.  Her apparent suggestion that the father's "lack of finesse" may have "left him vulnerable to misinterpretation" together with the possibility that this may have "occurred during proceedings at the Family Court" does not appear to be more than unfounded supposition, particularly because she does not appear to have any real detail of what occurred before this Court.  The Court is only able to make judgements on the basis of the facts and submissions before it.  The facts have spoken for themselves until now and will continue to do so.

2. The view expressed by Ms H that the father is not "a risk to his daughter" may well be based on her assessment of the father as he presented to her.  However, Ms H has not had the benefit of observing the father with his daughter which would be, in my view, a vital aspect of being able to express an informed opinion on that question.  In particular, Ms H has understandably not had the opportunity to assess the risk factors pertaining to both the daughter and the mother in so far as their fear of the father may be concerned.  To my mind, that remains an issue of extreme importance which I will develop below.

3. I agree with the view expressed by Ms H that there should be no contact or communication between the father and the mother but I do not accept that enabling the father to spend time with his daughter at an Access Centre would necessarily be "an appropriate option".

4. The mother filed an affidavit of evidence in chief in support of her opposition to the father's application to spend time with the child.  The affidavit referred to a number of aspects of the previous proceedings and noted that the father had not complied with an order made on 27th February 2009 that he pay the mother the sum of $3000 by way of costs, stayed for six months, save that he has paid the total sum of $50.

5. The mother's affidavit quoted portions of the transcript of the cross-examination of the father by counsel for the Independent Children's Lawyer from the May 2007 hearing.  In that part of the transcript, the father admitted that he had been aggressive to the mother, that he had been violent towards her and that he had become aware during an anger management course that he attended that the mother would have been fearful of him during their relationship.  He also accepted that even excluding his threats to kill, after the relationship was over the mother would have felt some fear towards him.  He conceded that that would have had a "lasting impact".

6. The mother included significant portions of argument in her affidavit in circumstances where only fact should have been inserted.  Part of that argument asserted that the father had incorrectly stated facts which had been effectively admitted during the trial which resulted in the consent orders.  In particular, the mother noted the father's admission that he had threatened to kill both the mother and the child.

7. The mother swore:

   13. After I was served with copies of the Father's Application, Affidavit and the Order of Justice Mushin, I felt that I had no choice but to inform [the child] that her father was again seeking Court orders to see her given that it would be highly likely that she would have to see a family report writer to enable a family report to be prepared.  [The child's] reaction was to start crying and she made it very clear to me that she wished to have nothing to do with her father and that she certainly did not wish to see him.

8. While the Family Consultants referred to above were not cross-examined during the trial before me, the views expressed by them were in accordance with the report of the child's present views referred to in the previous paragraph.  My knowledge of this matter over some years leads me to the view that it would be surprising if the child were not to be somewhat fearful of her father, given the nature of the allegations and the extent of the admissions by him.

9. The entirety of the evidence satisfies me that the mother is also very fearful of the father.  Again on the basis that the consent orders were made before the evidence had been completed, I can do no more than draw inferences from the evidence to that point together with the evidence and submissions received by me since then.  Those inferences draw me to the conclusion that it is entirely understandable and reasonable for the mother to fear the father, given what she has experienced from him.  Further, the mother has an understandable fear with regard to at least the emotional and psychological effect on the child of any order for the child to spend any time or communicate with the father.

10. During submissions by counsel for the father during this hearing, I invited counsel on three occasions to inform me whether she wished to cross examine the mother on her affidavit.  Such cross examination would have enabled the father's counsel to challenge the propositions that both the mother and the child are in significant fear of the father and reasonably so.  Counsel informed me that she did not seek to cross-examine, as a result of which I accept the mother's affidavit in its entirety.  In particular, that satisfies me as to the issue of fear which I will develop further below.

Discussion

1. During the hearing, I informed counsel that I was considering an application by counsel for the mother that I should dismiss the father's application on a summary basis rather than order that it go to a full hearing.  There are two principles which are relevant to this matter.  They are first, the requirement that a change of circumstance must be shown in order to vary or set aside a parenting order and secondly, the Court may, in its discretion, dismiss an application to vary or set aside a parenting order on either a summary basis or after a full hearing.  

2. The principle that it was necessary to show a change of circumstance was first stated in a decision of the Full Court of this Court in Rice v Asplund (referred to above. Evatt CJ, delivering the unanimous judgement of the Court, held (at p 78,905-6):

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

   Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.

3. In Bennett v Bennett (1991) FLC ¶92-191, a Full Court held, in respect of the discretionary power to determine the issue on a summary basis (78,262):

   As to the second point, it is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC ¶90-725, and in Zabaneh and Zabaneh (1986) FLC ¶91-766, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown. The fact that the determination as to whether or not to deal with a change in circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990). In that case Elliot J had, in fact, dealt with the threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so, but made it clear that the matter was one of discretion. We may say that in the present case, given its history, we would have been disposed to deal with the threshold question as a preliminary matter, but we are not satisfied that her Honour's discretion miscarried in embarking upon the course that she did.

   That statement was approved by the Full Court in D v Y (1995) FLC ¶92-581.

4. The fundamental question is whether there has been a sufficient change of circumstance to warrant my allowing the father's application to proceed.  If I were to find that there had been a change of circumstance, it would be open for me to prepare the application for trial but would then be open to dismissal at the end of the trial on the basis of an insufficient changed circumstance.  Alternatively, it is within my discretion to dismiss the father's application now and not allow it to go further.  A determination of those issues must be on the basis of the best interests of the subject child.

5. The two experts’ reports obtained by the father and referred to above have positive aspects to them.  It appears that there is no basis in the father's psychiatric health to be concerned that he would pose a risk to the child, at least from his point of view.  Further, the evidence supports his contention that he does not have any difficulty managing his anger.

6. However, the issues referred to in the previous paragraph are by no means the end of the matter.  As I have already noted, Ms H did not have the benefit of observing the father with the child or interviewing either the mother or the child to determine their views with respect to the father's application to spend time with the child and whether those views, if negative, were reasonably based.  In particular, Ms H did not have the opportunity to assess the best interests of the child from the child's point of view which must be the basis of my determination of this matter.

7. I have not yet commented on the statement by the father to Ms H, quoted in her report:

   … to hurt or harm his ex-partner in any way is to hurt his daughter.  His best revenge is to move on with his life.

   That the father should be talking about revenge in any context is most concerning.  Regrettably, it is in accordance with other statements which he has made in the past and his longer term overall approach to this matter.  In my view, revenge should be the very last thing which he should be considering in the context of his previous attitudes to both the mother and his daughter.

8. I have a clear and vivid memory of the mother during the original trial of this matter.  I observed her to be in a very high state of fear of the father, both for herself and their daughter.  She was entitled to be in fear.  He had threatened to kill both her and the daughter.  He had also rammed her car in at least the hearing of their daughter which was undoubtedly a terrifying experience for both of them.  He had perpetrated the verbal abuse and anger on many occasions against the mother to the knowledge of the child.  He has admitted all of those matters.

9. In my view, the question of the ongoing fear of the father by both the mother and their daughter is fundamental to my consideration of this application.  While I am prepared to give the father the benefit of the doubt which I have with regard to his being able to control his anger if he were placed in a position of care of the parties' daughter, I am not at all persuaded that either the mother or the child would be able to cope with such care.

10. On the basis of the entirety of the evidence and submissions in this matter, I am satisfied that the circumstances which led to the father consenting to not having any time or communication with the child have not changed in any positive sense in so far as the mother and the child are concerned.  Those circumstances involved actions by the father of profound seriousness which cannot be expected to be minimised, particularly after a comparatively short time has elapsed.  The fears engendered by those actions have clearly endured and show no sign of abating, at least in the short and medium-term future.

11. Regrettably, I do not think that the father understands the profound seriousness of the issue of fear in both the mother and the child as it impacts on his relationship with the child.  At times he appears to say some of the right things which suggest the possibility of a real change of attitude but in my view, that has a significant distance to go.  In any event, the reality of the fear of the mother and the child are matters over which the father has very little influence, particularly because of the seriousness of his actions and their reasonable reactions to him.

12. Unfortunately for the father, I must find that there has not been any significant change of circumstance such as to warrant my allowing his application to spend time and communicate with the child to proceed any further.  My confidence in that finding leads me to the determination that it is contrary to the child's best interests to dismiss the father's application now on a summary basis.  I will order accordingly.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  10 December 2010