WENN & WENN

[2020] FamCA 86

FAMILY COURT OF AUSTRALIA

WENN & WENN [2020] FamCA 86

FAMILY LAW – PARENTING – International Relocation – Where the mother seeks to relocate to Canada – Where she seeks the child have no time with the father – Where the father has engaged in family violence – Where the mother is the primary carer - Where there is no communication between the parents – Order for the mother to have sole parental responsibility – Where the father has had no opportunity to repair his relationship with the child – Where it is no longer in the best interests of the child for the re-establishment of this relationship – Where the mother is both negative and anxious at the prospect of a relationship between the child and the father – Order for the child to have no time with the father – Order allowing the mother’s relocation to Canada.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

MRR v GR (2010) 263 ALR 368
Taylor v Barker (2008) 37 FamLR 46

APPLICANT: Mr Wenn

RESPONDENT: Ms Wenn

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 6928 of 2013

DATE DELIVERED: 13 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 29-31 November 2019 and 1 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: SCB Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Goodsell

SOLICITOR FOR THE RESPONDENT: Jacqui Griffin Mobile Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Druitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

1. All previous parenting orders in respect of the child X born … 2012 are discharged.

2. The mother has sole parental responsibility for making decisions about major long-term issues in relation to X with the exception of her name.

3. X will live with the mother.

4. The mother is permitted to relocate with X from the Commonwealth of Australia.

5. The mother has sole responsibility for giving consent and making arrangements for the issue and/or renewal of Australian and Canadian passports for the child.

6. The requirement for the father's signature on any application for the issue and/or renewal of Australia and Canadian passports for the child is dispensed with.

7. If the father's signature is required notwithstanding Order 5 and 6 hereof, the Registrar of the Family Court of Australia is authorised to sign any application for the issue and/or renewal of X's Australian and Canadian passports pursuant to section 106A of the Family Law Act 1975.

8. Within three months from the date of these orders the mother do all things to engage an appropriate therapist for X with such therapy to include, without fettering the discretion of the therapist, provision of assistance to the mother and the child with the implementation of Order 11 hereof.

9. The therapist engaged pursuant to Order 8 is entitled to receive copies of the report dated 24 October 2018 of Dr B and the reasons for judgment and Orders of the court.

10. The name "X" born on … 2012 is forthwith to be removed from the Airport Watch List.

11. X will have no contact or communication with the father, either face-to-face or through voice, typed word, internet or other media, until the child attains the age of 18, with the exception of the following:

    11.1one letter per year from the father to the child including still photographs within two weeks prior to the child's birthday

    11.2the mother is obliged to pass such letters on to the child unless in the view of the therapist appointed pursuant to Order 8 above receipt by the child of any such letter or part thereof would be contrary to her best interests.

    11.3the mother will facilitate a letter in reply from X to the father in accordance with the wishes of the child.

12. The father is restrained from attempting to spend time or communicate with X other than in accordance with Order 11 and without limiting the generality of the foregoing, he is restrained from attending the mother's residence or any school or activities attended by X.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wenn & Wenn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6928 of 2013

Mr Wenn

Applicant

And

Ms Wenn

Respondent

And

Independent Children's Lawyer

Hamish Cumming Family Lawyers

REASONS FOR JUDGMENT

The proceedings

1. Mr Wenn and Ms Wenn are the parents of a child, X, who was born on … 2012 and is presently seven years of age.  These proceedings concern parenting orders in relation to X.  The applicant father sought orders which may be summarised as follows:

   1.        the father have sole parental responsibility for the child

   2.        the child live with the father

   3.the child spend time with the mother as agreed between the parties but, in default thereof:

   i.         no time for 28 days from the date of orders and

   ii.thereafter on each alternate weekend, for half of all school holidays and on special occasions

2. In the alternative, the father sought orders as follows:

   1.        the parties have equal shared parental responsibility for the child

   2.        the child live with the mother

   3.the child spend time with the father as agreed by the parties but in default thereof on each alternate weekend, for half of school holidays and on special occasions

   4.the parties do all things necessary to cause the child to attend upon a counselling service nominated by the single expert Dr B.

3. The respondent mother sought orders which may be summarised as follows:

   1.        the mother have sole parental responsibility for the child

   2.        the child live with the mother

   3.        the mother be permitted to relocate the residence of the child to Canada

   4.the child have no face-to-face or indirect contact with the father, other than by way of one letter including still photographs per year, on the following conditions:

   i.the mother is not obliged to pass on these letters if she forms the view that the contents will undermine the orders of the court;  the child's adaptation to those orders or the child's respect for the mother

   5.the father be restrained otherwise from attempting to spend time, communicate or approach the child

   6.the father is restrained from approaching within one hundred metres of the mother or communicating with her otherwise than via her lawyer.

4. The Independent Children's Lawyer ("the ICL") proposed orders which may be summarised as follows:

   1.the mother have sole parental responsibility for all long-term decisions other than the name used by the child

   2.the child live with the mother

   3.the mother be permitted to relocate the child's residence from the Commonwealth of Australia

   4.the mother engage a therapist for the child within three months

   5.the child have no face-to-face or indirect contact with the father, other than for one letter including still photographs per year on the following conditions:

   i.the mother is obliged to pass on such letters unless the child's therapist advises otherwise

   ii.the child is at liberty to send a letter in reply to the father if she so wishes

   6.the father is restrained from attempting otherwise to spend time or communicate with the child.

5. The orders sought by the father at trial in November/December 2019 stood in marked contrast to the proposal which he put forward in his affidavit of 27 June 2019.  The father there set out his proposed parenting orders as follows:

   1.        the child live with the mother

   2.        the mother be permitted to relocate the residence of the child to Canada

   3.the parents engage an expert so as to implement a "gradual reintroduction plan or program ... so to ensure the least emotional distress to X"

   4.the mother be restrained from departing from the Commonwealth of Australia until orders are registered and made enforceable in a court of competent jurisdiction in Canada

   5.the child communicate with the father by Skype on at least six occasions per year

   6.the mother cause the child to travel to Sydney to spend time with father for three periods in each alternate July, under the supervision of the C Centre staff

   7.the father travel to Canada every other July, when the child spends three periods of time with him under supervision

   8.the mother keep the father informed at all times of information concerning the child's education and health

   9.the father be permitted to forward to the child letters, cards, photographs and gifts and the mother provide this material to her "intact and unopened".

   10.Any school attended by X is authorised to provide to the father copies of X’s school reports, newsletters and photograph order forms

   11. Any medical practitioner or counsellor who treats X is authorised to provide information about her to the father as he requests, to the extent permitted by law.

6. In his oral evidence the father indicated that he decided to change his position a few weeks before the trial.  He said that he based this decision on information which he received from an aunt of the mother named Ms D.  The father stated that this information included the following:

   ·the mother would have no genuine plans to return to Canada because she was being pursued by debt collectors when she left that country in 2008

   ·the mother misrepresented to the single expert Dr B that she had the support of a loving family in Canada, whereas in fact there is a considerable level of dysfunction and hostility among her relatives

   ·the mother had lied about the father and the maternal family believed that she and Ms E (the mother of the father's daughter Y) had fabricated allegations of sexual assault

   ·the mother had engaged in an extramarital affair with Mr J during her relationship with the father and "manipulated to break up his marriage".

7. The father said that he could not prioritise the impact of these considerations on his decision to change his proposal.  He said also that he feared the mother may use Canada as a "lily pad" and move onto another country with X.

The evidence and witnesses

1. The applicant father relied on the following affidavits:

   1.Mr Wenn (the father) sworn on 27 June 2019 and 23 October 2019

   2.Ms H Wenn (wife of the father) sworn on 18 April 2019

   3.Ms E (mother of the father's daughter Y) sworn on 4 July 2019

   4.Ms D (aunt of the mother) sworn on 25 October 2019.

   All of these witnesses were cross-examined by counsel for the mother and the ICL.

2. The respondent mother relied on the following affidavits:

   1.        Ms Wenn (the mother) sworn on 17 September 2019

   2.Mr D (uncle of the mother and estranged husband of Ms D) sworn on 24 October 2019.

   Both the mother and Mr D were cross-examined by counsel for the father and the ICL.

3. I was unassisted by the evidence of either Ms D or Mr D.  It was evident that they are or have been engaged in heated litigation in Canada, arising from their marital separation.  The mother's role in their dispute remained murky at the conclusion of the evidence, with clear indications that her loyalties as between them have shifted from time to time.

4. I refused to grant leave to the mother to rely upon an affidavit of Mr J.  This leave was sought during the trial, after an issue arose as to the nature of the mother's relationship with Mr J.  In 2018 the mother indicated to Dr B that Mr J is an "important person in her life".  She described him as "her mentor at work some years ago, continues to give professional guidance and has become a friend".  Mr J attended the 2018 appointment with Dr B.

5. During the course of the mother's cross-examination, it emerged that Mr J has played a much more significant role in the lives of the mother and X.  She said that she has never lived with Mr J and indicated that he "stays in my house when I travel overseas".  The mother described Mr J as “a friend” to herself and "a friend and mentor" to X in her Parenting Questionnaire dated 1 March 2019.

6. In cross-examination the mother said that she and Mr J had engaged in a sexual relationship in the past but denied that the relationship commenced during the marriage of the parties.  The mother's correspondence with Ms D (exhibit 4) suggests strongly that this relationship did commence prior to the separation of the parties.

7. In my view, the evidence concerning the mother's relationship with Mr J impacts adversely on her credit.  Obviously, he has played a significant role in the life of X, yet the mother elected to adduce evidence from him only after an issue arose as to the nature of their relationship.  Notably, Mr J was present at court on each day of the trial.

8. A single expert psychiatrist, Dr B, prepared a report dated 24 October 2018 and gave oral evidence.  Dr B initially conducted interviews in 2014 but then was instructed not to complete his report.  The reason was that criminal charges had been laid against the father, in respect of both Y and X, thus there would be an unavoidable delay in the finalisation of the proceedings.  Dr B undertook further interviews on 5 June 2018, by which time the child X had not seen the father for almost four years.

Background

1. The father was born on … 1978 in Australia and is currently 41 years of age.  The mother was born in Canada on … 1977 and is presently aged 42 years.  The mother moved to Australia in February 2008.  She is a permanent resident of this country and a citizen of Canada.

2. Y, the child of the father and Ms E, was born on … 2007 and is 12 years of age.  The father and Ms E lived together between late 2006 and March 2008.  At the time of their separation a complaint and summons, seeking orders for the protection of Ms E and Y, was laid against the father.  This application was dismissed on the basis of written undertakings given by the father.

3. The father and Ms E consented to parenting orders in relation to Y on 1 May 2009.  These orders provided for equal shared parental responsibility and graduated time for Y with the father, leading to five nights per fortnight.

4. The mother and father met on 31 May 2008 and began to live together in August 2008.  They married on …2010 and separated on 2 October 2013.  X was aged 14 months at the time of separation of her parents.

5. On the night of the separation, an altercation took place between the parties, in the presence of X and Y.  Police officers attended their home and the father was charged with common assault and stalk/intimidate in relation to the mother.  An AVO was taken out against the father for the protection of the mother, Y and X.

6. These two charges and the AVO were dismissed after a defended hearing in the Local Court in February 2014.  In dismissing these charges, the presiding Magistrate stated inter alia:

   "There was an altercation.  I am not able to find exactly what happened to the requisite standard, given there are just two versions and no independent witness to corroborate one witness over another or any injuries that would satisfy me beyond reasonable doubt as to one version or another ...  In this case, I would have to be satisfied that [Mr Wenn] knew that the words that he uttered were likely to cause fear in the other person.  I cannot be satisfied beyond reasonable doubt as to that element."

7. On 30 April 2014 the parties consented to orders to the effect that X spend time with the father under the supervision of staff of the C Centre.  Four supervised visits took place until these orders were suspended on 11 July 2014, after criminal charges were laid against the father.

8. On 6 June 2014 the father was charged with four offences in relation to his daughter Y.  These charges consisted of three counts of common assault and one of sexual intercourse with a child under the age of ten years.

9. In December 2014 the father and his current wife, Ms H Wenn, began their relationship.  They commenced cohabitation in March 2015 and married on … 2017.  Their daughter, Z, was born on … 2019.

10. Committal proceedings against the father in relation to the charges concerning Y proceeded in the Local Court on … May 2015.  The father was committed to stand trial in the District Court on the charge of sexual assault.

11. In committing the father to stand trial, the presiding Magistrate said inter alia:

    "I am satisfied there is sufficient evidence there.  When I say sufficient evidence I satisfy, I would not call it the strongest prosecution case, I can apprehend some of the difficulties at trial, but on the totality of the evidence before me, particularly those items of consistency, of the complaint, my observations of the electronically recorded interview, the corroboration of the alleged acts of violence and ill-treatment by the accused towards Y which is denied.  That would significantly obviously affect his reliability in front of a jury.  I am satisfied that there are reasonable prospects that a jury properly instructed would convict the accused beyond reasonable doubt."

12. The father's trial on these charges took place in July 2016.  On … July 2016, a jury dismissed the charge of sexual assault of Y, after deliberating for less than 30 minutes.

13. On 28 September 2016 the Crown was ordered to pay the father's costs in relation to the charge of sexual assault of Y.  During this costs hearing, the presiding judge made critical remarks and the prosecutor offered frank concessions in relation to the decision of the Crown to proceed with this trial.  The following dialogue occurred between his Honour and the Crown Prosecutor:

    "HIS HONOUR:    Why did this Crown case fail?  The Crown case
    failed because the Crown's case fell to pieces in
    cross-examination, didn't it?

    [CROWN]:Well it fell to pieces in examination-in-chief your Honour."

14. In his reasons for judgment for costs, the District Court judge said inter alia:

    "It is fair to say that albeit that shots might have been fired across the prosecutorial bow by those representing the applicant prior to trial, attempting to demonstrate and pointing out relative weaknesses in the Crown case, in all probability, the Crown was entitled to proceed up until the point, at least, when it presented the indictment in this Court charging the single offence.

    Shortly after that, from the prosecutorial perspective, things started to go downhill.  The Crown properly concedes before me that the Crown's case crumbled during the course of the evidence-in-chief of [Y].  That is certainly my memory of it too, and it got no better during the course of
    cross-examination ..."

15. On 6 June 2014 the father was also charged with three offences of common assault, stalk and intimidate in relation to X.  A police officer applied for and obtained an AVO against the father for the protection of both Y and X in June 2014.  On the application of police, this order was varied on 20 June 2014 so as to prevent the father from approaching or contacting either Y or X.

16. In April 2017 the father's solicitors made a No Bill application to the Director of Public Prosecutions in respect of the charges of assault of X.  These representations were successful and all charges were withdrawn on an unknown date in 2017.

17. The father and Ms E consented to final parenting orders in relation to Y on 1 September 2017.  They have varied the provisions of these orders by agreement, such that Y spends overnight time with the father each alternate weekend and during school holidays.  The father attends special events at Y's school and extracurricular activities.

1. The mother made allegations that the father subjected her to sustained family violence, in the presence of both Y and X, during their cohabitation.  The father largely denied these allegations but made some admissions as to the occurrence of various incidents.  The father contended that he was subjected to physical and verbal abuse by the mother.  These competing allegations of violence constituted a significant issue in the proceedings.  The father's wife, Ms H Wenn, gave evidence to the effect that the father has directed no violence toward her at any time during their relationship.

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   [8]Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9]Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…

   [13]Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

6. In Taylor v Barker (2008) 37 FamLR 461 the Full Court (Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:

   (i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:

   U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36; Bolitho v Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458, applied.

   (ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters; however, such a proposal now also needs to be considered in the context of s.5DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s.60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.

   (v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s.65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.

   (vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.

The best interests of the child X:  Section 60CC considerations

Section 60CC(2):  Primary considerations

1. ... (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A)    In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. The case of the mother, which was supported by the ICL, essentially was that the risks to the child outweigh the benefits of a meaningful relationship with the father.  The expert evidence of Dr B provided support for the position adopted by the mother and the ICL.

2. Dr B acknowledged that adverse consequences would flow to the child, if orders were made in accordance with his recommendations for no direct contact or communication between her and the father.  He opined as follows:

   547.The child is already experiencing and adapted to separation from the father.  As she grows into late childhood and adolescence, she will experience a more full and reflective grief about not having grown up with and not having a substantial connection with the father ...

   549.A separation from the father means that the child will lose the direct experience of the father's commitment to her, and will lose what he might have to offer in terms of input into her upbringing.  She will also lose connection with potential future paternal half-siblings and other members of the paternal extended family, and possibly with Y.  Such a separation should only be sanctioned if [as is my view] these losses are outweighed by the risks and potential negative consequences of a child/father reunion."

   (As per the original)

3. Dr B considered the potential for a relationship between the child and the father in the long-term.  He expressed these opinions:

   553.In my view, the father may well have something to offer the child during her adult life if she chooses to engage with him at that time, in terms of what may be his character strengths in areas of non-intimate engagement with aspects of life such as his prosocial pastimes, skills and abilities, and in terms of connection with paternal extended family, which may then include further paternal half-siblings.  But, in my view, even at that time, such engagement would be a precarious and complex process requiring an independent sense of self and strong personal boundaries, which the child would be most equipped to handle if she has had a secure and undisrupted upbringing.  Maintaining an attenuated line of connection and maintaining the recommended therapy process would best prepare the child for such decisions and processes, in her young adulthood and over subsequent years.

   (As per the original)

4. Dr B's recommendations appeared to be based at least in part upon an acceptance of the truth of the mother's allegations that the father subjected her to violence.  The mother alleged that the father's violence against her took the following forms:

   ·physical abuse and assault

   ·death threats

   ·verbal abuse and outbursts of anger

   ·attempts to control her activities and associations with other people

   ·attempts to thwart her communication with her family in Canada

   ·attempts at financial control.

5. The father has a history of criminal convictions and contact with police, which was put to him in cross-examination.  This history also formed part of the material upon which Dr B relied in support of his conclusion that the child's best interests require that she have no direct contact or communication with the father.

6. The father's first involvement with the criminal law occurred in 1994, when he was 16 years old.  He was last charged with criminal offences in 2014 but, as noted above, he was acquitted on all counts and received an order for costs against the Crown.  It is thus the case that the father has been convicted of no criminal offence since 2007.

7. In relation to the father's criminal history, Dr B opined as follows:

   329.The father's police documents and criminal history [covering the period between the first documented incident in 1994 when the father was aged 16 up until early 2014, when the father was aged 35] contained information suggesting at least intermittent paternal alcohol excess over time, with negative personal, relational and legal consequences of the same.  These documents also contain descriptions of paternal irresponsible, destructive, aggressive and violent behaviour whilst intoxicated, police concern about paternal aggression and violence within paternal partner relationships, and one reference to paternal conflict with and disrespectful behaviour toward his own parents.  These documents contained descriptions of and convictions for graffiti offences, damage to property and [on one occasion] resisting arrest.

   (As per the original)

8. As noted above, the father was acquitted of several charges laid against him in 2014 and the remainder were withdrawn by the Director of Public Prosecutions.  Notably, the Crown was ordered to pay his costs in respect of the charge of sexual assault of Y.  That being so, Dr B's assumption that his criminal history spanned a period of almost 20 years is inaccurate and unfair to the father.

9. In 1994 police officers attended premises where the father and his then girlfriend had been involved in an argument.  The relevant COPS entry (Tender bundle page 230) noted "extensive bruising to victim’s arms and legs" and that father “claimed self defence".  In cross-examination the father said he had only a distant memory of this incident.  He stated that he told police "I did not do it".

10. In 1996 the father was convicted of malicious damage and resisting police.  The relevant COPS entry (Tender bundle page 209, 229) stated that two police officers saw the father graffiti a telephone box and run off when they tried to arrest him.  The father was convicted and received a fine in relation to each of these charges.

11. In March 2002 the father was convicted of drive with prescribed concentration of alcohol.  He was fined $1,000 and disqualified for nine months.  The relevant COPS entry noted that the father said "It's not my car.  I was only giving my mates a lift ... I didn't drive very far."

12. In November 2002 the father was convicted of three counts of destroy or damage property.  In cross-examination the father conceded "alcohol was involved" and stated that he "destroyed concrete pot plants".  The relevant COPS entry (Tender bundle page 227) stated that father was “swinging a tree over his head" and, in cross-examination, the father said "I had a plant in my hand."  The COPS entry stated that the father "could not explain cuts on his hands or head".  The police notes recorded also that the father said "I didn't do it".

13. In the early hours of 23 November 2004 police officers saw the father throw a "witches hat".  The relevant COPS entry indicated that the father had kicked the front door of a home a short time earlier but police took no action after he later offered to pay for this damage.

14. In September 2005 police officers attended an incident between the father and his then girlfriend, after being called by neighbours.  The COPS entry stated that their argument concerned the amount of alcohol which the father had drunk that night.  The police records noted that the girlfriend said that the father "did not threaten her at all, but sometimes gets agitated when he has had too much to drink".  In cross-examination the father said that he and his girlfriend "were arguing loudly" and that "we had both been drinking".

15. In 2007 the father was convicted of two counts of destroy or damage property, after he graffitied a shop window.  The COPS entry stated that the father said he had no memory of this incident.  In cross-examination the father said "my friend and I were quite intoxicated and graffiti was an unfortunate hobby in my teenage years".

16. On 26 September 2007 Ms E called police after an argument with the father.  The COPS entry noted that the father "took the baby seat from the vehicle and un-plugged the phone so that the [victim] could not leave".  The police records noted that Ms E told police that "she has no fears for her safety" and that she "wanted no police action other than to have the matter reported".

17. In March 2008 police attended the home of the father and Ms E, when they argued about the extent of his drinking at a baptism party for Y.  The COPS entry noted that police observed Ms E to be “upset and was crying" and that she had a two centimetre scratch mark on her hand.  Police officers also saw a scratch mark on the father's arm.  The COPS entry recorded that Ms E said that "she is scared of [the father] when he has been drinking."

18. Police officers applied for an AVO for the protection of Ms E following the incident in March 2008.  She elected not to proceed with this application, on the basis of written undertakings given by the father.  Dr B noted that the father said, during the 2014 interview, that this altercation was "mutual" and that he acted only in self-defence.

19. As noted, an altercation occurred between the parties on the day of their separation.  As noted further, this incident resulted in criminal charges of common assault and stalk/intimidate being laid against the father.  He was acquitted of both of these charges after a contested hearing in the Local Court.

1. The mother deposed as follows in relation to this incident:

   195.The Applicant and I officially separated on 2 October 2013.  The Applicant was arrested as a result of the incident ...

   196.As stated earlier in my affidavit filed 31 January 2014, on 2 October 2013 a provisional apprehended domestic violence order (ADVO) was issued against the applicant and he was charged with assault and intimidation.  That evening I provided the police with a full statement.

2. The mother failed to inform the court in her affidavit of the outcome of these criminal proceedings.  She neglected to state in her affidavit that the father was acquitted of both of these charges.  Similarly, she neglected to state that the interim apprehended violence order was dismissed at the same hearing.

3. During the Local Court trial the mother said, inter alia, in her evidence-in-chief:

   ·she called the father "an asshole" and he pushed her onto a bed

   ·she stood up and pushed him with both of her hands

   ·the father spat on a pile of clothing in the bedroom

   ·the father then "backhanded" her on the right side of her face

   ·she pushed the father again in order to get out of the bedroom, then picked up and threw a metal Christmas tree at him

   ·she ran into the kitchen and picked up the telephone to call police

   ·she and the father struggled over possession of the telephone

   ·the father said "I'll kill you if you tell them [the police] anything"

   ·the father left the premises before the arrival of police officers.

4. In cross-examination during the Local Court proceedings the mother said

   
   

   inter alia:

   ·she had indicated in her police statement that the father said immediately "it was an accident" when his hand came into contact with her face

   ·she said nothing to the police about her having thrown a metal Christmas tree at the father.

5. The father gave a different account of this incident in his evidence in the Local Court.  Inter alia, he said in chief:

   ·he was cleaning and tidying in the bedroom in preparation for visits by a real estate agent and a plumber on the following day

   ·the mother came into the bedroom and made a mess by throwing clothes

   ·he did not spit on clothing

   ·the mother fell forward onto the bed, then got up and began to hit and punch him

   ·the mother scratched his neck and drew blood

   ·the mother picked up a Christmas tree and attempted to hit the father

   ·he wrestled the Christmas tree out of her grasp

   ·the mother threw items, eg. perfume bottles, around the bedroom

   ·the father tried to grab the mother to stop her and his fingers came into contact with her face, whereupon he said immediately "sorry that was an accident"

   ·the mother went into the kitchen and they struggled over the telephone

   ·as the father left the premises he said "if this comes back to affect my custody with Y, I'll kill you".

6. In cross-examination in the Local Court the father confirmed that he did not spit on clothing at any time during this incident.  He said that he was in a state of panic when he said that he would kill the mother and had no intention whatsoever to carry out any such threat.

7. I have gone into some detail in relation to this incident in order to illustrate part of the basis of my overall impression that the mother was prone to exaggeration and inaccuracy in her evidence.  As indicated above, I consider that the evidence in relation to the mother's relationship with Mr J impacts adversely on her credit.

8. A common thread in the mother's account of multiple incidents of violence on the part of the father was his level of intoxication at the relevant time.  It may well be that the father's memory of these events was and is impaired by his abuse of alcohol at the relevant times.

9. Records of the K Hospital indicated that the mother sought outpatient treatment on two occasions.  She suffered a physical injury to her right foot in March 2012 and attended the emergency department in relation to an allergic reaction in June 2013.  The 2012 hospital notes recorded that the mother stated that she slipped when getting out of a bath and caught her foot between the tub and a sink.  The notes also recorded "bruising to left forearm, hit on side of bath when fell".

10. In relation to the allergic reaction, the hospital notes recorded that the mother said "had lunch that contained lime/citrus by accident".  The records of the emergency department stated "post allergic reaction, pt allergic to citrus, states post... eating bowl of Mexican food ..."

11. The mother gave this account of the injury to her foot in her affidavit:

    112.When I was 5 month [sic] pregnant during the night I was woken up by the Applicant kicking and punching me in the stomach.  I woke up screaming and jumped out of the bed.  I turned on the light and saw that the Applicant was struggling with the blankets.  His eyes were closed but he was laughing.  He was in a complete fit kicking and punching the pillows.  I tried yelling at him to get his attention, and he told me to go fuck myself.  I left the room and slept on the couch.

    113.In the morning, the Applicant woke me.  I slapped him in the face and told him what he did.  He made a remark that at least I was smart enough not to wake him.  He then began calling me a "stupid cunt" and "fucking whore".  I threw the television remote at him, at which point he rushed at me and pinned me down on the floor.  I told him to be care [sic] of the baby in my belly and to get away from me.  The Applicant stood up and kicked me several times in the leg.  My foot was positioned in between the sofa and the side table, when the Applicant kicked me my ankle dislodged.  I cried and screamed for him to get away from me.  The Applicant got dressed for work and left me on the floor.  I tried to get up and walk but couldn't.  My ankle felt broken and was quickly swelling up."

12. The mother deposed as follows in relation to the allergic reaction:

    81.The Applicant is very aware of my allergy.  While we were living in [Suburb L], I was cleaning up the kitchen and the Applicant was arguing his point regarding wedding arrangements.  I wasn't happy with the fact that the Applicant wanted to change the format of the evening and he was arguing that my take on the event order was stupid.  The argument quickly escalated.  The Applicant had been making himself martini's throughout that morning and was in the process of making one while we were arguing.  When I refused to make the change, the Applicant took the bottle of lemon juice that he was using to mix with his martini's and began pouring it all over me.  I started screaming and asking him what he was doing, he started laughing and said that he would not stop pouring until I agreed.

    82.I could feel my skin tingling so I quickly took off my shirt which was soaked in lemon juice and jumped in the shower to rinse myself off.  The Applicant came into the bathroom opened the shower door and poured the remainder of the bottle over my head.  He threw the bottle at me which landed on the shower floor, it was made out of plastic.

13. The father gave two accounts to Dr B of the circumstances of the injury to the mother's foot.  Dr B reported as follows:

    480.This maternal forearm injury would appear inconsistent with the father's narrative that the ankle injury had occurred when the mother walked past him and kicked him.  The father said to me in 2014 of this incident, "she kicked me in the shin while we were having a disagreement... she kicked me one morning... we were having an argument over something silly... she was walking past me... she walked past me, and her ankle hit my shin".

    481.In 2018, the father gave a different version of this incident.  He said, "it was a morning before work... I'd slept on the couch... I got up in the morning, and she was at me, trying to scratch me, scratch my face, throw things at me... I grabbed her hands, we tumbled over... [later] I came back from the office, and took her to [the hospital]".

14. In his oral evidence the father said of this passage in the report of Dr B:

    "both of these things happened ... that fight went on for some time."

    The father categorically denied that he poured lime juice onto the mother.  He said that he was "aware of her severe allergy to citrus" and that he had never drunk martinis in the morning.

15. In her affidavit the mother referred to having suffered a "dislocated pelvis" in October 2010.  She deposed as follows:

    96.He appeared to be passed out.  I shook him to his attention and be [sic] back handed me in the face.  I was knocked off the bed.  When I stood up I slapped him back and told him to get out the room.  He woke up and kicked me in my leg.  The kick was so hard I immediately lost my balance and could not stand up.

    97.The Applicant jumped out of the bed and landed on me and continued to punch me in my leg.  I dragged myself under the bed and out the bedroom door.  I then dragged myself to the second bathroom and locked the bathroom door.  I slept in the shower that night.

    98.The next morning the Applicant opened the lock on the bathroom door from the outside and yelled at me for sleeping in the shower.  I wasn't able to walk and told him so.  I told him that the relationship was over that I no longer wanted to be married to him.  I demanded that he take me to a hospital.  He said that I needed to learn not to wake a drunken man.  He handed me an ice pack and carried me to the couch.  I slept on the couch the rest of the weekend, because at some point during that night the Applicant had peed all over the mattress.

    99.By Monday morning I realised that when I walked my leg popped out of my hip bone, I pleaded with the Applicant to take me to the hospital.  He said if the "punch up" was reported the authorities would charge him and he wouldn't see Y anymore.  The Applicant made me promise not to report the incident in exchange for taking me to the hospital.

    100.Instead of taking me to the hospital, the Applicant took me to a physiotherapist.  I needed the Applicant to pay for the appointment, as I had no money and the Applicant had taken my medicare card.  The Applicant was in the waiting room when the physio asked what had happened.  I told the physio what the Applicant told me to say which was that I had injured myself during kettle bell in our living room.  The physiotherapist gave me a full observation and informed me that my pelvis had been dislocated and my hip had dislodged from my leg.  I attended three more sessions after which the Applicant indicated that the cost was too high and told me I had to discontinue seeing the therapist.  The Applicant said that if I was able to walk, the therapist was clearly scamming me.

16. In cross-examination the father denied that he "came home drunk and got into bed covered in vomit."  He said that "it is not possible that this happened and I don't remember it.  It did not happen."

17. Dr B made these observations in relation to the injuries to the pelvis and leg of the mother:

    477.The mother told police that "some of [the past] incidents have result [sic] in the [mother] receiving serious injuries, for example a broken pelvis".  The mother in her subsequent narrative describes injuries resulting from paternal violence, on a number of occasions.  The father concedes that a number of these injuries occurred, specifically, the injuries [related to two separate incidents] to her pelvis and leg.  But, he describes these injuries arising from maternal aggression or from himself acting in self-defence.  I note that the father provided a similar narrative to explain injuries to past partners that were observed by or reported to police, and to explain his hand coming into contact with the mother's face on the day of parental separation.

18. The mother consulted a psychologist, Ms M, in 2012 and 2013.  Her GP made a referral on 5 November 2012 and noted "Hx of post natal depression".  Ms M's notes of 22 November 2012 stated inter alia as follows:

    Reported that "I have no control over my emotions lately".  She reported that she externalising her feelings "I take it out on my husband".

    [Ms Wenn] described her relationship with her husband as "we are best friends".  She reported a very strong sense of protecting her family ie. her husband and her baby.  She stated that it upset her to see her family not happy.  She “felt responsible for his unhappiness" made her “feel sad".  "Never want to let my husband stress".'

19. Ms M's notes of 13 December 2012 read, inter alia, as follows:

    Discussed her personality traits.  [Ms Wenn] did recognise that she has perfectionism tendency and is critical of herself.  Additionally she is on TPQ, has shown to have a greater tendency to be anxious worrying and externalise her stress and to worry about rejection or abandonment in interpersonal relationships.

20. In relation to a consultation shortly after Christmas 2012 Ms M noted as follows:

    According to [Ms Wenn] her husband "tried not to drink much" and got more involved with their baby which was not easy ..."

21. The next consultation also contained a reference by the mother to excessive drinking by the father Ms M noted

    discussed her husband's drinking due to work stress according to [Ms Wenn].  She reported that he doesn't like his job and has been withdrawn and quiet with her.  She reported concerns about her relationship with her husband.  She described him as "accusational" sometimes say cruel things.  She stated will I wake up one day not wanting to be married.

22. The notes of Ms M contained no reference by the mother to her being subjected to family violence by the father.  Of course, it is far from unusual for a victim of violence to conceal such acts and I do not consider that this lack of complaint is an indication that the mother made false allegations against the father.

23. In my view, the reality is most likely to be that the parties' relationship was turbulent and conflictual in nature, in a context where the father frequently abused alcohol to the point of significant intoxication.  For these reasons, I doubt the reliability of the father's recollection of the various incidents recounted by the mother.  At the same time, I suspect that the mother exaggerated her evidence as indicated above.

24. I note the following comments by the parties and opinions of Dr B:

    169.In 2018, the father said, "there was always a part of our relationship where [the mother] worried me in certain areas".  He elaborated, "[she'd be] physically violent... she'd break things in the house... she'd scratch my furniture because she knew I loved it, during fights... at dinner with my parents, she'd just get up and leave the table... vanish".  The father could not recall an example of the latter.

    170.In the mother's [Company S] performance appraisal of 2010/11, the mother is said to have "struggled at times with her people interactions and her approach has often been seen as too aggressive".

    171.The mother at interview admitted to verbal reactivity, but placed this in the context of defence against paternal proactive verbal aggression or denigration.  She admitted to physical reactivity, describing this as self-defence against paternal violence.

    172.I think it likely that the mother can be direct, expectant and critical in her communication with others, as she can be with herself.  My impression is that this does not extend to abusive behaviour.

25. Dr B addressed three alternative scenarios, in terms of the reliability of the mother's evidence in relation to perpetration of violence by the father.  He opined:

    173.If the court finds that the mother's narrative about past paternal abusive behaviour, and associated risk of recurrent such behaviour, are exaggerated or inaccurate, but truly held by the mother, then she may have greater personality dysfunction than I have opined, of a borderline or histrionic nature.

    174.If the court finds that the mother's narrative about past paternal abusive behaviour, and associated risk of recurrent such behaviour, are exaggerated or inaccurate, and not truly held by the mother (that is, they have been deliberately fabricated), then she may have greater personality dysfunction than I have opined, of a pragmatically antisocial type.

    175.If the court finds it likely that there has been significant past paternal abusive behaviour, but that the mother may have amplified the narrative of the same and minimised any narrative of positive paternal behaviour [I think this likely], then the same has been unwise and may have been unlawful and likely reflects maternal heightened reactivity associated with underlying personal insecurity, but may still reflect the prosocial and understandable motivating factors of maternal fearful defensiveness, protectiveness and commitment to the child.

26. In my view, the evidence justifies a finding that the father subjected the mother to family violence.  There was independent evidence of injuries suffered by the mother.  In my view, the father's alcohol abuse is likely to have clouded his recollection of the physical incidents between the parties.  It seems to me that each of the parties engaged in unacceptable conduct on occasions during their troubled relationship.  In summary, I consider that the father's recollection of these incidents and the mother's propensity for exaggeration cloud this issue to some extent.

27. Dr B referred in some detail to the father's employment history and concluded that "this workplace information is also consistent with personality dysfunction ..."  The father has changed his employment on several occasions but he claimed that he did so for reasons of career advancement in some instances.

28. Documents in relation to the father's employment history were in evidence as part of the agreed tender bundle prepared by the ICL (Exhibit 2).  These documents commenced with a memo from the State Manager of Company P to the father dated 13 July 2006.  This memo referred to "two areas of concern", being:

    1.        Your level of intoxication after the team dinner

    2.        Your disregard and destruction of a customer's property

    The memo contained a warning to the father that any further such incidents would result in "disciplinary procedures up to and including dismissal".

29. The next documents referred to the father's employment with Company R in 2008.  Comments by managers in regard to the father included the following:

    ●        I have concerns around your values ...

    ●you show no respect to your peers or myself when you are late to meetings and are not engaged in the meeting subject

    ●it is also unacceptable to display behaviour that is inappropriate in public ...

    The father resigned from Company R on 7 September 2008.  His letter of resignation stated inter alia "I have accepted a position with a new employer" and referred to the "valuable experience" which he had gained at Company R.

30. The next documents in the tender bundle referred to the father's conduct at a Christmas party in 2009, when he was an employee of Company Q.  The findings of an investigation were as follows:

    1.the father "grabbed the breasts” of one woman and “the bottom of another"

    2.the father's level of intoxication "impeded [him] from taking responsibility for [his] own behaviour".

31. Both of these women stated that the father was "drunk" or "intoxicated" at the Christmas party.  One of these women stated further "I didn't take it as harassment ..."  The other said "it really didn't bother me that much.  He was not being forceful ..."

32. During this investigation the father stated that he had no recollection of any inappropriate conduct on his part at the Christmas party.  He said that his alcohol consumption was not to a level where he would have had no recollection of this behaviour.  He said that he was part of a group of people who were "doing silly dances".

1. On 14 December 2009 the management of Company Q issued a warning to the father.  He was informed that any further breaches of Company Q's code of conduct and workplace harassment policy would result in his dismissal.

2. The father was next employed by a company known as Company O.  It appears that this employer received a number of complaints in relation to the father's workplace performance and that he was issued with a final warning on 24 March 2011.  Documents produced by Company O, however, contained no complaints of inappropriate behaviour on the part of the father.  He resigned from this company on 24 March 2011, claiming in his letter that "unfounded" complaints had been made in relation to his job performance.  A document produced by this company indicated that a decision had been made by management to terminate the father's employment prior to his resignation.

3. The father's next workplace appears to have been Company N.  Documents produced by this company included a letter of 11 February 2013 which set out a number of complaints in relation to the father's workplace performance.  He resigned from Company N by letter dated 8 February 2013.

4. Dr B concluded that this employment history was "consistent with the father having an alcohol use disorder, or at a minimum alcohol-related problems".  He also opined that the father's "workplace information is consistent with personality dysfunction".

5. In the context of the father's workplace history, Dr B concluded and opined as follows:

   366.1An important element of effective personality functioning is an ability to learn from failure or challenge, and to adapt in response to the same.  I observe that the father is held to task repeatedly for the same issues within the one workplace or by successive workplaces [for example failure to communicate and being late to meetings], but does not appear to effect change or to adapt.  Many of these workplaces appear to have offered processes of mentoring, guidance or repair, but I do not see one example of the father effectively making use of such processes.

   366.2An important aspect of effective personality functioning is an ability to maintain a reasonably balanced and objective view of oneself, and how one is experienced by others.  In the above documents, there is a striking gap between the father's expressed view of himself as effective and contributory, and the described experience of the father's customers, peers and managers.  The father holds onto his positive self-assessment, even after specific challenge by managers, a stance that was of concern to the "manager's manager" at [Company R] in 2008, but is also evident in the other workplaces, right up until the father's
   self-protecting resignation letters.

   366.3Specifically, the father is challenged about many forms of irresponsible behaviour, discourteous behaviour, and associated indifference to the impact of the same upon other persons.  An example was the father having "used a pool car and emptied the point of sale material in the car park" at Company N.  These are features of antisocial personality functioning.

   366.4The father in 2014 and again in 2018 denied past significant occupational difficulties.  Denial is an immature adaptive mechanism that disrupts effective adaptation."

6. Dr B noted that the father had commenced a job as a national manager six weeks prior to the 2018 interviews and that, previously, he had been employed by an energy drink company for four years.  There was no evidence as to any performance issues or allegations of unacceptable behaviour in relation to either of these two workplaces.  I would observe that the father's period of apparently stable employment with Company F coincided substantially with his relationship with his current wife.

Section 60CC(3) considerations

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. At interview in 2018, Dr B asked the child to draw a picture of her family.  He reported that she did not include the father or any members of the maternal family in her picture.  Dr B then utilised Kvebaek figures "to assist the child to express her thoughts and feelings about her family and care environment".  The child selected a figure for the mother and various relatives in Canada.  She included a figure for the mother's uncle Mr D and referred to him as "Daddy" clarifying that he was "he’s my daddy”, not the mother’s daddy.

2. Dr B enquired of the mother, in the presence of the child, as to her understanding of the father.  He reported:

   The mother said, in matter-of-fact tone 'she calls him [Mr Wenn]'.  The mother explained that she has told the child that the child does not see her father because her father “made the wrong choice, and hurt my heart”.  The child has sometimes asked what this “wrong choice” was but the mother answers that the child doesn't need to know.

3. Dr B asked the child whether she wished to place a Kvebaek figure for her father and she declined to do so.  He noted that the child understood that "[Mr Wenn] is her father" but that she did not refer to him as "father" or "dad".

4. Dr B enquired directly of the child whether she would wish to meet with her father.  She said that she indicated that she would not wish to do so, even as an adult.  Dr B reported that the child did not indicate a reason for this wish.  The child said to Dr B "Mum doesn't want me to say his name".

5. I consider that circumstances dictate that the child's views should carry little, if any, weight.  She has had no contact of any kind with the father for approximately five and-a-half years, having last seen him when she was approximately two years of age.  Additionally her primary carer has a negative opinion of the father, as is evident from the following comments by her to Dr B:

   434.The mother later, seen alone, said to me, "I give explanations ... I like my daughter to know where she's come from ... I explain that Mummy has been married ... to a man named [Mr Wenn] ... that wrong choices were made and we don't live with him anymore ... she has asked "what was the wrong choice?" and I've said "It hurts Mummy's heart ... to talk about it" ... it's hard for me to talk about ... and she's too little ... there's not a need for her to have that information in her head."

6. Dr B opined that:

   The child has been given the explanation that the father had hurt the mother, and had been told and likely picked up from maternal bodily reaction that it still hurts the mother to talk about him.  In such a context, it is not surprising that the child, particularly at this young age, does not wish to see the father.

Section 60CC(3)(b) the nature of the relationship of the child with:  (i)  each of the child’s parents; and (ii)  other persons (including any grandparent or other relative of the child)

1. The mother has been the child's primary carer for the whole of her life.  No doubt she has a very close and warm relationship with the mother.

2. Dr B opined that the mother displayed "a sensitive child focus".  He considered that the child presented as "connected with and reliant upon the mother and also using the secure base and connection with the mother to be exploratory and creative, and in 2018 to be reflective and to learn."

3. Dr B observed the child's interaction with the father in May 2018.  He reported as follows:

   386.... the mother brought the child into my waiting room, and put the child down, staying close to her.  The father sought to engage with the child, through the octopus toy.  The child was initially wary and drawing close to the mother.  I observed that the father was sensitive, and not too intrusive.

4. Dr B observed that the child settled into the care of the father quickly and that he engaged with her sensitively.  He saw the father and the child play together and noted that the father "was engaged, responsive, creative and kind."

Section 60CC(3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i)  to participate in making decisions about major long‑term issues in relation to the child;  and (ii)  to spend time with the child; and (iii)  to communicate with the child

1. The father has effectively been prevented from making long-term decisions in relation to the child, and communicating or spending time with her, by the criminal proceedings and family violence orders.  These criminal charges stemmed from complaints made by the mother and Ms E.

2. It is clearly the case that the mother and Ms E discussed the criminal and family law proceedings, as was evident in a three-page email dated 20 October 2013 (annexure A to the affidavit of Ms E sworn on 4 July 2019).  In this email the mother made firm recommendations to Ms E in respect of the conduct of her AVO application;  limitations to be placed on Y's time with the father;  an increase in child support and arrangements whereby the two children should attend the same school at the father's expense.  The mother explained to Ms E that they would both benefit from Y and X attending the same school, as a means of preventing the father from mounting an argument that the sibling relationship was dependent entirely upon his involvement in the lives of the two children.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Ms E gave evidence that the father pays child support as assessed for Y, other than at times when he has been without employment.  I have no reason to consider that the father fails to pay child support for X.  The mother deposed that she pays "the bulk" of the child's expenses, which indicates to me that the father makes an assessed contribution to her financial support.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents;  or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Dr B addressed this consideration directly in his report.  He opined as follows:

   546.A separation from the mother would cause significant distress, grief and developmental disruption to the child.  She would require more sensitive, responsive, reflective, reliable and adequate parenting than average parenting, to assist her to recover and move forward positively from this developmental trauma.

   547.The child is already experiencing and adapted to separation from the father.  As she grows into late childhood and adolescence, she will experience a more full and reflective grief about not having grown up with and not having a substantial connection with the father.

   548.In my view, the mother has adequate capacity to assist the child to manage this grief constructively.  She would be able to do so in Australia, but will be more richly able to do so in the broader context of extended family support for herself and the child, in Canada.

   549.A separation from the father means that the child will lose the direct experience of the father's commitment to her, and will lose what he might have to offer in terms of input into her upbringing.  She will also lose connection with potential future paternal half-siblings and other members of the paternal extended family, and possibly with Y.  Such a separation should only be sanctioned if [as is my view] these losses are outweighed by the risks and potential negative consequences of a child/father reunion."

   (As per the original)

2. Dr B made a recommendation as to an ongoing thread of communication between the child and the father.  He opined as follows:

   550.In my view, it would assist the child (if the same can be safely achieved), for the child to maintain an awareness of the father and an opportunity for an attenuated line of connection with the father, during her upbringing.  The child would also benefit from a neutral space with a therapist, where she can reflect upon her experience of not having substantial connection with the father and can, [if the same is ordered], engage with and reflect upon this attenuated line of connection with the father.  As the child progresses into mid to late adolescence, this would also be a neutral space where the child to reflect upon her circumstance in a more mature and differentiated way, including considering her options regarding any connection with the father once she reached adulthood.  The above processes might be aided by the recommendations below about an annual letter from and, (if the child wishes, to) the father, and about therapy."

   (As per the original)

3. The changes proposed by the father would mean that the child would have the involvement of two concerned parents in her life.  She would become aware of the fact that she has two half-sisters and be allowed an opportunity to develop sibling relationships with both Y and Z.

4. At the same time, the father's proposal for a change in primary residence would mean that X would be required to make a sudden adjustment to life in the household people who are strangers to her.  In my view, it is reasonable to assume that the father and his wife would need parenting skills of a superior quality to deal with the reaction of the child.  The reality is that they are both completely untested in this regard.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Obvious difficulties with practicality and expense would arise if the mother and the child relocate to Canada.

Section 60CC(3)(f) the capacity of:  (i)  each of the child’s parents;  and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs

1. The mother has demonstrated a capacity to provide for the child's needs in all respects, other than facilitation of a relationship with the father and her half-siblings.  Sadly, X currently has no relationship with Y and is oblivious to Z's existence.

2. Dr B assessed that the mother has "adequate and probably strong capacity to meet the child's more complex emotional, intellectual, relational and developmental needs."  He considered that there is a "vulnerability" in the mother's capacity, which was "associated with the mother's own constraint of effective expression ..."

3. As to the father's parental capacity, Dr B expressed these opinions:

   447.I observe that the father, when sober, calm and disposed and motivated to do so, is able to meet the child's need for food, shelter and protection from harm, and the child's basic emotional needs for acknowledgement, engagement, responsivity and affirmation.

   448.I am concerned that the father in the ordinary circumstances of life over time, does not have reliable capacity to meet the child's basic need for protection from harm, because of the risks of abuse and/or neglect of the child's needs discussed elsewhere in this report.

   449.My impression is that the father in the ordinary circumstances of life, does not have reliable capacity to meet the child's more complex emotional, intellectual, relational and developmental needs because of his personality vulnerabilities, alcohol use disorder and propensity to patterns of family violence."

1. As outlined above, the father and Ms E have departed from the provisions of consent orders in relation to Y and made their own parenting arrangements.  In her oral evidence, Ms E said that she would be "happy" if Y's time to the father progressed to an equal arrangement.

2. Dr B declined to express any positive view as to the father's current interaction with Y and co-parenting arrangements with Ms E.  In his oral evidence Dr B said words to this effect:

   My opinions were predicated on positive interactions with Y.  If the father has not encroached on Y's relationship with her mother and that he has demonstrated that he can co-parent over a period of two years, I am very cautious about agreeing that he can co-parent in very difficult circumstances.  I have the view that consciously or unconsciously [Ms E] has a belief that she has to appease the father."

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The child X is of Country T heritage on the maternal side of her family.  Unilaterally, the mother had arranged for the child's conversion to a different faith.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:  (i)  the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii)  the likely impact any proposed parenting order under this Part will have on that right

1. This factor is not relevant for present purposes.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The father deposed that he spent approximately $400,000 since the commencement of these proceedings.  It was unclear whether that figure includes the cost of the litigation with Ms E in respect of Y.  In any event, I accept that the father has demonstrated a strong commitment to resuming a paternal role in the life of X.

2. Dr B was of the view that the father has the commitment to "a parenting role" rather than to Y and/or X "as a person separate from himself".  He expressed this opinion:

   442.I think it likely that the father's personality dysfunction and alcohol use disorder have led a large intention/action gap, between the father's idealised positive disposition toward the child, and the child's actual experience.

3. Dr B stated also, however:

   444.The subject child engaging positively with the father when the father sends her positive initial signals, and the child Y running across a field to embrace a welcoming father are observations that will be consistent with such a past experience of on/off idealised positive engagement/disengagement or abuse, though these observations would also be consistent with a solidly positive past experience.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. I have made extensive reference above to the allegations of family violence.  Interestingly, in his oral evidence Dr B said "I am actually uncertain that the father inflicted the level of violence on the mother that she alleges ..."  As indicated above, I conclude that the evidence warrants a finding that the father subjected the mother to family violence but I repeat the caveats which I set out above in these reasons.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:  (i)  the nature of the order;  (ii)  the circumstances in which the order was made;  (iii)  any evidence admitted in proceedings for the order;  (iv)  any findings made by the court in, or in proceedings for, the order;  (v)  any other relevant matter

1. No family violence order is currently in existence.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. If orders are made in terms of the proposal of the mother, I consider it likely that the father will vanish completely from X's life.  I have no reason to accept that she would pass on to the child any communication from the father, nor encourage any response.

1. Orders in the terms proposed by the ICL offer some prospect of a tenuous ongoing connection and a resumption of a father/daughter relationship at some nebulous time in the future.  In my view, orders in terms of these proposals of either the mother or the ICL would be unlikely to result in further litigation.

2. I consider it likely that orders in terms of the proposal of the father would result in further litigation.  On either of the alternative scenarios, I have serious concerns that the child X could adjust to such a dramatic change to her long-term living arrangements.  It would seem likely that the child's situation would become untenable and the mother would resort to further litigation.

Parental responsibility

1. In my view, the presumption set out in section 61DA(1) does not apply because I have found that the father engaged in family violence.  Additionally, I consider that the presumption is rebutted by evidence that equal shared parental responsibility would be contrary to the best interests of X.

2. The parties do not communicate with each other and I have no reason to suppose that they will manage to change this situation for the better in the future.  Due to the passage of time, the father has no understanding of X's current needs, attitudes or interests.  The mother is implacably opposed to the father's resuming any meaningful role in the child's life.  Realistically, therefore, equal shared parental responsibility is not an available option for X.

Conclusion

1. As there will be no order for equal shared parental responsibility I am not required to consider whether it is in X's best interests, and reasonably practicable, that she spends equal or substantial and significant time with both her mother and her father.  I am at liberty to proceed directly to a consideration of what parenting orders are in the best interests of the child.

2. I cannot conclude that a change in primary residence would be in the best interests of the child X.  In my view, a father with very superior parenting skills would struggle to deal with the child's reaction to such a dramatic change to her living arrangements.  The father in these proceedings could not be considered to be a parent of such a standard.

3. I have some reason to consider that the father was assessed somewhat harshly by Dr B.  I accept, however, that he suffers from the personality vulnerabilities which were identified by Dr B and which I have outlined above in these reasons.  In my view, a real concern arises as to whether the father could cope with the stresses and challenges inherent in a change of residence without reverting to his previous troubling patterns of conduct.  I refer here to essentially excessive alcohol consumption, engagement in violence and erratic workplace behaviour.

4. I accept entirely that Ms H Wenn would do her utmost to assist the father in the management of a change in primary residence.  She is, however, an inexperienced parent and entirely unacquainted with the child X.

5. In my view, the father's alternative proposal also involves a leap of faith as to its prospects of success.  It is my view that the mother would react in a most negative way to the introduction of alternate weekend and school holiday time for X with the father.  The negativity and anxiety of the mother most likely would be sensed by the child and, in turn, produce an adverse impact upon her.  Realistically, it seems to me that this proposal probably is doomed to failure and thus involves risk of psychological harm to the child.

6. I am acutely conscious of the near certainty that the relocation proposal of the mother and the ICL would result in the father being lost to the child for the foreseeable future.  I am conscious further that the failed criminal charges against the father stymied any prospect of repair of the child's relationship with him for a considerable period.  In terms of successful intervention by the court, that opportunity is now lost to the child and the father.  It is trite but true to say that the task of the court is to act in the best interests of the child and not to achieve fairness for the father.

7. I am not prepared to trust the mother to act appropriately, in terms of vetting communication between the father and the child.  I will adopt in essence the proposals of the ICL.

8. I have concluded that it is in the best interests of X that there be no face to face or direct contact with the father. In these circumstances, I see no valid reason that the mother should be required to stay in the Commonwealth of Australia.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 13 February 2020.

Associate: 

Date:  13 February 2020