Yardley and Balden

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARDLEY & BALDEN

[2015] FCCA 184

Catchwords:
FAMILY LAW – Parenting – dispute as to whether three year old child is to spend time with the father – Held that the father presented an unacceptable risk to the child due to family violence, inability to care for child, denigration of mother, his relationship with his current partner where they are in a volatile relationship and partner suffers from mental health issues, where father suffers from narcissistic traits – Held in best interests of the child for an order whereby father does not spend time with or communicate with the child.

Legislation:

Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 64B

Johnson & Johnson (2000) 201 CLR 488
Re F Litigants In Person Guidelines [2001] FamCA 348
Hardie & Capris [2010] FamCA 1046
MRR v GR (2010) 263 ALR 368
Moose & Moose [2008] FamCACF 108
Mazorski & Albright (2008) 37 Fam LR 518
Briginshaw v. Briginshaw (1938) 60 CLR 336
Johnson & Page [2007] FamCA 1235
R & C [1993] FamCA 62

Applicant:

MR YARDLEY

Respondent:

MS BALDEN

File Number:

BRC 2761 of 2012

Judgment of:

Judge L. Turner

Hearing dates:

20 January 2014, 21 January 2014, 22 May 2014 and 23 May 2014

Date of Last Submission:

25 July 2014

Delivered at:

Brisbane

Delivered on:

3 February 2015

REPRESENTATION

The Applicant appearing in person on his own behalf

Solicitors for the Respondent:

Salvos Legal Humanitarian

Counsel for the Independent Children’s Lawyer:

Ms Downes

Solicitor for the Independent Children’s Lawyer:

SBA Family Lawyers

ORDERS

That all previous parenting orders and parenting plans are hereby discharged.
That the child X born (omitted) 2011 live with the mother.
That the mother have sole parental responsibility for the child.
That the mother is to inform the father promptly by email as to any serious health issue or injury suffered by the child.
That the father not be permitted to spend time with or communicate with the child.
That every six months the mother send to the father by email a photograph of the child together with an update as to the child’s milestones.
That the parties notify each other within 7 days as to any changes in their email addresses.
That each of parties and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2011 from the Commonwealth of Australia.
X born (omitted) 2011 be and is/are hereby restrained from leaving the Commonwealth of Australia.
That it is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name(s) on the Watch List for a period of two (2) years.
That upon expiration of the period referred to in Order 10 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
That pursuant to section 114 Family Law Act 1975 the father:-
(a)Be restrained and an injunction issue preventing the father from contacting the mother or requesting another person to contact the mother, whether by letter, email, text or telephone call.
(b)Be restrained and an injunction issue preventing the father from coming within 100 metres of:-
(i)The mother’s home.
(ii)The mother’s place of employment.
(iii)The child’s kindergarten.
(iv)The child’s school.
(v)Any after school or vacation care facility used by the child.

THE COURT NOTES:

A. That if after the expiration of the period set out in Order 10 above any parent seeks that the child or children’s name(s) remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2761 of 2012

MR YARDLEY

Applicant

And

MS BALDEN

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are the parents of X aged three.
A dispute has arisen as to whether the father is to spend time with X.

Issue

The issue is whether the father poses an unacceptable risk to the child and if so whether any time should occur between the father and the child.

Proposals

The mother and independent children’ lawyer (ICL) propose orders whereby:-
a)The child live with the mother.
b)The mother have sole parental responsibility for the child.
c)The father not be permitted to spend time with or communicate with the child.
d)The mother to inform the father of any medical condition or significant health issue for the child.
e)The mother to send photos and an update of the child’s milestones twice a year to the father.
f)The mother keep the father informed of any changes to her email address.
g)The father be restrained from contacting, or have another person contact the mother.
h)The father be restrained from being within 100 metres of the mother’s residence or work and the children’s kindergarten or school.
The mother is also seeking an airport watch order.
The father proposed orders whereby:-
a)The parties have equal shared parental responsibility.
b)The father spend time with the child increasing over three months from two hours supervised at a contact centre to three nights a week.
Before considering the issues and the proposals, the relevant agreed facts need to be captured.

Relevant agreed facts

The relevant agreed facts are as follows:-
a)The mother is aged 37 and works as an (employer omitted) for (employer omitted).
b)The father is aged 34 and moved from (country omitted) to Australia when he turned 5.
c)The father is currently looking for employment.
d)In 1998 the father was charged and fined in respect to acting in a disorderly manner and assaulting police.
e)In 1999 the father breached a fine option order.
f)In 2002 the father married Ms A (Ms A).
g)In 2006 the father and Ms A separated.
h)In 2006 Ms A applied for a domestic violence order (DVO) which was granted for two years.
i)In 2006 the father obtained a (qualifications omitted).
j)In (omitted) 2007 the parties met online.
k)In (omitted) 2007 the parties commenced a relationship.
l)In January 2008 the relationship ended.
m)In 2008 the father obtained a (qualifications omitted).
n)In September 2008 the mother reported the father to police for domestic violence and the police took out a DVO against the father.
o)In September 2008 a DVO was made against the father effective for one year.
p)In October 2008 the father took out a series of temporary DVO’s against the mother the last expiring in April 2009.
q)In (omitted) 2009 the child Y was born to the parties but died shortly after the birth.
r)In 2009 the father obtained a (qualifications omitted).
s)In February 2010 the father was involved in an altercation which resulted in the father attending at the emergency section of the hospital.
t)In May 2010 an altercation occurred between the parties whist holidaying at the (omitted).
u)In 2010 the father obtained a (qualifications omitted).
v)In (omitted) 2011 the child X was born.
w)In (omitted) 2011 the police are called to an altercation between the parties at the hospital.
x)In (omitted) 2011 the mother was placed in safe housing.
y)In November 2011 the mother applied for a further DVO against the father.
z)Between November 2011 until March 2012 the father did not spend any time with the child.
aa)In December 2011 the father consented to a DVO without admission.
bb)In (omitted) 2012 the father commenced a relationship with Ms C (“Ms C”), now aged 21 who has one child from a previous relationship who is in a shared care arrangement between Ms C and her former partner.
cc)Between January 2012 and August 2013 Ms C made applications for DVO’s against the father.
dd)In January 2012 the mother reported the father to police for breaching the DVO by texting and calling the mother.
ee)In February 2012 the parties attended family dispute resolution but no agreement was reached as to parenting arrangements for the child.
ff)In February 2012 the mother reported the father to police for breaching the DVO for texting, calling and emailing the mother.
gg)In March 2012 the father was found guilty of contravening the DVO and placed on a Good Behaviour Bond.
hh)In March 2012 the mother reported the father to police for breaching the DVO by calling the mother numerous times.
ii)In March 2012 the father commenced proceedings seeking final orders whereby time build up to a shared care arrangement for the child.
jj)In April/May 2012 the father spent some time with X on three occasions.
kk)In May 2012 the mother reported the father to police for breaching the DVO by calling the mother numerous times.
ll)In June 2012 the mother filed her response seeking that the child live with her, that the parties have equal shared parental responsibility and that the father spend time with the child as recommended by the ICL.
mm)In June 2012 orders were made for the appointment of an ICL and for the father to have supervised visits with the child at a contact centre.
nn)In June 2012 the father commenced spending supervised time with the child at the (omitted) Contact Centre (ICC).
oo)Between June and September 2012 the father spent some time away from the ICC with the child.
pp)In August 2012 the mother had sex with the father with the mother maintaining it was forced upon her with the father arguing that he was seduced by the mother.
qq)In October 2012 the family report writer Mr P released his first family report which recommended psychiatric assessments of both parties, that the child live with the mother and continue to spend supervised time with the father and that the parties use a communication book as their sole means of communication.
rr)In November 2012 Dr G released his psychiatric report for the mother.
ss)In November 2012 Dr G released his psychiatric report for the father.
tt)In November 2012 Dr G released an addendum report.
uu)In December 2012 the father and a pregnant Ms C had an altercation which allegedly resulted in the father pushing the mother out of the car.
vv)In December 2012 Mr P released a further family report.
ww)In 2012 the mother commenced domestic violence counselling.
xx)In 2012 the mother completed a post-separation parenting program.
yy)In January 2013 the father was charged with breaches of the DVO in respect to the mother.
zz)In January 2013 police were called to an altercation between the father and Ms C.
aaa)In January 2013 interim orders were made for the father to continue spending supervised time with the child.
bbb)In January 2013 the police took out a DVO against the father naming Ms C as the aggrieved which was subsequently granted for 12 months.
ccc)In (omitted) 2013 the child A was born to the father and Ms C.
ddd)In May 2013 Mr P released a further family report.
eee)In May 2013 the father was found guilty of contravening the DVO and is convicted and fined.
fff)In June 2013 interim consent orders were made for the father to spend four hours unsupervised with the child twice a week with changeover to occur at a contact centre and for time at Christmas.
ggg)In July 2013 the father was breached for the DVO granted to the mother.
hhh)In July 2013 the mother received a telephone call purportedly from Ms M, the sister of Ms C, reporting that family violence by the father against Ms C had occurred in front of the child and that the father was using drugs when the child was with him.
iii)In July 2013 consent orders filed by the father and Ms C as to as to A living with the father were dismissed by a Registrar.
jjj)In August 2013, after an interim hearing, orders were made suspending time between the father and the child, that upon the father’s notification of his intention to spend time with the child at a contact centre then supervised time with the child resume and that the father obtain professional treatment for his personality disorders.
kkk)In September 2013 the father filed a Notice of Discontinuance in respect to his initiating application and applications in a case.
lll)In September 2013 the father obtained a temporary DVO against Ms C.
mmm)In September 2013 the Child Support Agency accepted the mother’s request that child support assessments against the father for X cease. The mother’s reason for requesting cessation was because of the family violence perpetrated by the father.
nnn)In October 2013 the police were called to an altercation between the father and Ms C at the (omitted).
ooo)In October 2013 the police were called to an incident at (omitted) Shopping Centre between the father and Ms C.
ppp)In October 2013 the police were called to an altercation between the father and Ms C at the father’s residence after which the father was taken into custody and the police took out a DVO against the father.
qqq)In October 2013 the father indicated that he wished to proceed with his application.
rrr)In November 2013 a DVO was granted against the father naming Ms C as the aggrieved for 12 months.
sss)On 20 and 21 January 2014 the matter proceeded to a final hearing.
ttt)In 2014 the father obtained a (qualifications omitted).
uuu)In 2014 the father obtained a (qualifications omitted) in (omitted).
vvv)In January 2014 after giving evidence at the final hearing, Ms C was placed in a women’s refuge.
www)In March 2014 Ms C moved to New South Wales.
xxx)In March 2014 Ms C obtained an Apprehended Violence Order (AVO) against the father effective for over 3 years.
yyy)In March 2014 Ms C returned to Brisbane to live with the father
zzz)In April 2014 after being informed by Ms C that the father intended to burn down her house and kill her, the mother moved into a refuge.
aaaa)In April 2014 consent orders filed by the father and Ms C as to A living with the father were dismissed by a Registrar.
bbbb)In April 2014 police called to an incident between the father and Ms C at (omitted) Shopping Centre. Both father and Ms C were breached on their respective DVO’s.
cccc)In May 2014 the father pleaded guilty to contravening the DVO where Ms C is the named aggrieved.
dddd)In May 2014 Dr G released a further psychiatric report including reference to Ms C.
eeee)On 19 May 2014 Ms C travelled to New South Wales and left A with the father.
ffff)On 22 and 23 May 2014 matter proceeded by way of final hearing.
As at the date of the final hearing:-
a)The father is living with A.
b)The future of the father’s relationship with Ms C is unknown.
c)Ms C, in her early stages of pregnancy is living with family in New South Wales.
d)The mother is living with X in rental accommodation and has not returned to the house that she owns due to the mother’s fear of the father.
e)The father is unaware of the mother’s residence.
f)The father is spending no time with X as the father did not want to see the child on a supervised basis at a contact centre.
g)The mother does not have a current DVO against the father.
h)The mother is working.
i)The father and Ms C have DVO’s against each other.
j)The mother and Ms C are no longer in contact with each other.

Evidence

In considering the issue regard has been had to:-
a)The material as marked on the court file;
b)The family reports of the family report writer Mr P released in 2012, 2013 and 2014;
c)The psychiatric reports of Dr G released in 2012 and 2014;
d)The exhibits;
e)The evidence provided in cross-examination;
f)The written submissions;
g)Part VII Family Law Act 1975 and in particular section 60B and the factors in section 60CC; and
h)Relevant authorities.
The mother is legally represented.
The father is self-represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and the case of Re F Litigants In Person Guidelines [2001] FamCA 348, the Court process was thoroughly explained to the father and every attempt was made to ensure that there fair process was afforded to the father during the final hearing.
At first, due to the filing of an earlier Notice of Discontinuance, the father did not want to proceed with his application.
However after much discussion and double checking it became clear that the father did not support the agreed position between the mother and the ICL and the matter proceeded to a final hearing with both parties being given leave to rely on all of their previous affidavits.
For the father the only witness called was the father who was cross-examined by the mother and the independent children’s lawyer.
Although Ms C was to be the father’s witness, on the second day of hearing Ms C turned against the father and gave evidence in support of the mother’s case.
Ms C was cross-examined by all parties.
For the mother the following witnesses were cross-examined by the father and the ICL:-
a)The mother and
b)Ms T – (the maternal grandmother).
For the ICL the following experts were cross-examined by the mother only:-
a)Mr P (family report writer); and
b)Dr G (psychiatrist)
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

Credibility of the witnesses

Father

The father presents as an intense fast spoken complex man with very set views and ideals and with a very healthy sense of self-worth.
Described as narcissistic in the expert reports, the father was quick to speak of his various degrees including a (qualifications omitted) and held himself out to be of superior intelligence and importance during the proceedings.
But in addition to the narcissistic traits (which will be discussed in more detail later in the judgment) the father demonstrated other behavioural traits such as his poor opinion of women and tendency to be aggressive to get his own way.
Further the father acted inappropriately in court; especially when the mother was giving her evidence.
Several times the father was reminded that the eye rolling, murmurings, clicking his tongue and domineering body language such as hands behind the head, looking up to the ceiling and shaking his head would not be tolerated.
The father’s response was “I just couldn’t contain myself.”
Although asked not to persist, the father continued to make comments and objected to questions being asked by the other parties in cross-examination.
His behaviour was just as difficult in cross-examination where the father was often dismissive and difficult, often throwing questions back to the examiner or wanting to know why such questions were being asked.
Although often contradicted by both the father and other evidence, in the giving of his evidence the father could not be said to be a liar; as I believed he gave evidence truthfully that accorded to his own reality.

But it is that skewed reality which gives rise to serious concern as to whether that father should play any part in the parenting of X.
I find the father to be a credible witness.
I give weight to his evidence, albeit that weight does not necessarily favour the father in the orders that he seeks.

Mother

At first glance the mother presented as a meek timid woman who would not say boo to a mouse.
But in cross-examination the mother spoke in a selfless insightful child focussed manner with every answer measured in the context as to what is best for X.
I suspect that her quietly presented manner masks much emotional pain and scarring caused by her relationship with the father which included the unfortunate passing of their first child.
I find the mother to be a credible witness.
I give significant weight to the mother’s evidence.
I find the maternal grandmother to be a credible witness.

Ms C

Ms C, the on again, off again girlfriend of the father has played an enormous part in these proceedings.
Ms C, a quietly spoken woman who is now in her very early twenties and the mother to at least two children (having been pregnant with her third during the final hearing) provided an insight as the tumultuous life offered by being in a relationship with the father.
Her history of evidence in this matter is complicated.
At first Ms C provided affidavits in support of the father.
Then there was the July 2013 incident with the phone call to the maternal grandmother which caused concern to the mother, resulting in her moving to a refuge shortly thereafter.
Then Ms C changed her story.
At the commencement of the hearing, Ms C supported the father.
Then on the second day of the hearing Ms C recanted her evidence and gave evidence in support of the mother, painting the father out to be a violent manipulative man where it was not safe to have children around due to his intolerance.
During the time the matter was adjourned part heard, Ms C changed her position saying that what she said in court was incorrect as the father was a good father.
On the third day of hearing Ms C gave evidence in favour of the father. At this time Ms C had miscarried and was pregnant again to the father. Ms C was in New South Wales and A was with the father.
The father and Ms C gave conflicting evidence as to the future of their relationship.
Throughout the whole of the proceedings the mother blamed her mental health issues for her constantly changing evidence.
Granted, given her constant inconsistencies of evidence which no doubt was caused by a combination of the Ms C’s mental health issues, her low self-esteem, her fear of the father and her influence by the father, one might question whether any weight could be given to her evidence.
But what was consistent and what cannot be questioned is the independent evidence through police records, DVO’s and the father’s own admissions that Ms C found herself in an abusive, manipulative relationship with the father where their child A was not only exposed to the violence but consistently used as a tool to influence Ms C.
It is clear that the father as a highly educated and intelligent man has taken advantage of a vulnerable mentally challenged uneducated young woman and has no difficulties in putting her down psychologically and emotionally.
Theirs is a relationship thwart with conflict and violence, often displayed in public places.
The question arises then as to whether X should be allowed anywhere near the father whilst he in this ongoing toxic relationship with Ms C?
The picture painted by this relationship will weigh heavily in determining the future parenting arrangements for X and it is that context that I give weight to the evidence Ms C presents to the court.

The experts

Unlike most matters where the experts may have had only one opportunity to see parties and prepare a report; in this matter there are four family reports and two psychiatric reports spanning over 2 years.
Both experts were credible witnesses.
I give significant weight to their reports and oral evidence.

Findings on the evidence

Before considering and applying the law, I am going to take the somewhat unusual step of making findings on some major aspects of the matter that will assist in determining the issues.
Unlike many matters where findings against one party are mostly made on independent evidence provided by another party, in this matter the father has expressed views and made comments which have provided the basis for the court to make certain findings against the father.
The father has been prolific through emails, texts, affidavits and in his oral testimony, in expressing his very clear and consistent views on every aspect of this matter which provides a useful insight as to the father’s position.
To paraphrase the father would in essence lose the tenure of these views.
Therefore comments and direct quotes have been captured; together with the timeline of such comments and quotes.
Although a laborious task, I find that it was a necessary task in order to paint a revealing picture of the father who is a complex and intelligent person but who holds strange, and at times disturbing, views.
I will now address my findings.

Father’s family violence towards the mother

Family violence is defined in section 64B Family Law Act 1975 as:-
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
As reflected in the facts there is a long term history of the father being involved in family violence resulting in DVOs and various breaches of DVO’s.
I find, based on the definition that the father has been the perpetrator of family violence.
The mother in the past has sought medical assistance for the physical and psychological abuse at the hands of the father with the short report from her treating GP, Dr D, dated 23 April 2012 noting:-
a)“On 9 March 2008 …she reported that she was punched in the R jaw by her fiancé the night before.”
b)“On 9 April 2008 she reported that she was assaulted by her ex-partner and he had made death threats towards her”
c)“On the 12 May 2008…he was hassling her and calling her and sending SMS.”
d)“On 19 September 2008 she reported that she had left because of domestic violence and that he had pulled her by the hair. The examining doctor noted superficial grazes and bruises on the face.”
In the police records it is noted that in September 2008 when the mother attended the police station that the mother “had visible marks to her left hand side of her forehead and to the bridge of her nose.”
The mother since 2011 has engaged in domestic violence counselling.
The father’s contact with the mother has been unrelenting with hundreds of telephone calls, hundreds of text messages and numerous emails.
A snapshot of the text messages in 2011 are indicative of the unrelenting threats and degradation by the father towards the mother (occurring at a time when the mother was pregnant with X) such as:-
a)“God is going to punish you…Your punishment is near.” (18 January 2011)
b)“You need to change. Otherwise what happened in 2009 will happen again. Take that as a warning.” (12 March 2011)
c)“It’s not a threat. It’s a real warning. Trust me.” (12 March 2011)
d)“Fuck you and die you messed up dog.” (12 March 2011)
e)“Slut. You want trouble? You got it…..You can go Fuck yourself. I’ll give you hell.” (13 March 2011)
f)“Die bitch! I fuckin hate you slut” (13 March 2011)
g)“You’re fucked now. Die!” (13 March 2011)
h)“Burn you fuckin dog. BURN!” (14 March 2011)
i)“Die you fucken slut.” (14 March 2011)
j)“Fuck off and die you fat slut.” (14 March 2011)
k)“Die bitch!” (15 March 2011)
l)“Die you lying cunt. There is no return now.” (15 March 2011)
m)“You can fucken die slut” (15 March 2011)
n)“I’ll tell you what nots normal. Not having sex over a week in the first month of pregnancy. I’m sick of this.” (24 March 2011)
o)“You are evil.” (11 April 2011)
p)“Are you sure you weren’t part of a special school? You remind me of spastics and special ed kids I’ve worked with.” (11 April 2011)
q)“When people see us together, they wonder what is wrong with me for being with you.” (11 April 2011)
r)“So far with your abortion and Y, you have produced nothing but death.” (11 April 2011)
s)“Knowing you has cost me a shoulder and a cock.” (3 May 2011)
t)“I despise and have no respect for you whatsoever.” (3 May 2011)
u)“You’re going to pay 7 times over for what you have done to me. You bet!” (3 May 2011)
v)“Karma is coming to get you.” (3 May 2011)
w)“You’re going to pay.” (4 May 2011)
x)“You’re mental.” (13 May 2011)
y)“You’re judgments coming.” (5 June 2011)
z)“You’re a user and you’re judgment is coming. Filthy person. You make me sick.” (21 June 2011)
aa)“You’re so wicked. As God as my witness, you will reap the same amount of suffering you have caused me. You have been very foolish.” (21 June 2011)
bb)“Well you will pay for what you have dome to me. Fuck you bitch. Die!” (5 June 2011)
cc)“It’s just a matter of time Ms Balden.” (13 September 2011)
dd)“I’ve realised you’re nothing but a slut in the end who used me to get pregnant. Your judgment is long overdue.” (12 October 2011)
ee)“You’re a sick girl and you need a priest.” (15 October 2011)
ff)“The seed of destruction is within you and you know it. It started when you killed your own child during the abortion.” (21 October 2011)
gg)“You will be punished for this.” (22 October 2011)
hh)“You have turned bitterness into sweetness and sweetness into bitterness. My spirit is against you. You fail to realise that God has set forces in motion that will bring about swift destruction to you and your son of fornication.” (22 October 2011)
ii)“You have learned nothing since the time god punished you with Y’s death. Because you have arrogantly defied god once again…this time your judgment will be even greater. Mark these words as they are driven by the spirit.” (21 October 2011)
The father at first denied sending the messages, but subsequently admitted to sending them, stating that they were in response to what the mother had wrote and that he was upset and had been “pushed” and “provoked” by the mother and that the messages were written in “anger because of the way the mother made me feel”.
The father denies that this anger continues towards the mother.
In the May 2013 family report interviews the mother informed the family report writer at [33] that she had made seven statements to police about the father’s behaviour, some of which resulted in the father being breached on the DVO.
The mother is afraid of the father.
I accept that this is a real fear.
At [36] of the May 2013 family report the mother explained that Mr Yardley ‘‘‘upsets and scares me. He puts things in correspondence to my solicitor that scares me….Those things I read make me question myself and guess every move. It makes it really hard.’….during recent counselling sessions, she has managed to admit ‘some of the things that happened, but I never knew how low this person can go with their behaviour. Every time, it’s been something new.’”
The father contradicted himself several times in respect to the issue of family violence.
At times the father has blatantly denied the existence of any family violence:-
a)In his April 2012 affidavit the father deposed at [5] “X is not subject to any risk of Family Violence with Ms Balden or myself”
b)At [46] “I deny that I have ever committed acts of domestic violence against Ms Balden. I have never physically hurt her, or sent her abusive text messages, as she claims…”.
c)At [48] “I deny that I ever spoke to Ms Balden an aggressive or ridiculing nature throughout our relationship. I have never intentionally been disrespectful or intimidating towards Ms Balden.”
d)At [49] “Further I have never punched, hit or committed any other acts of physical violence against Ms Balden.”
e)In his February 2013 affidavit the father deposed at [14] “I wish to state for the record that I have never verbally abused Ms Balden not have I ever put her down, but have tried to help her by encouraging her to seek counselling. Nor have I ever physically, emotionally, psychologically and spiritually abused her as she falsely claims” and at [39] “I was NEVER a threat, nor violent, as she tried to insinuate.”
f)In his August 2013 affidavit the father deposed at [6] “Ms Balden keeps mentioning the DVO of December 2011. Note that Ms Balden had fabricated stories about me and lied in order to generate that DVO….Despite this Ms Balden has breached me numerous times since then, abusing the system, and as a result I have lost much money to unnecessary fines…”
g)In the October 2012 family report the father stated at [19] that he had “never faced any criminal charges or convictions” (although the father has a criminal history dating from 1998).
h)At [2] of the father’s August 2013 affidavit the father deposed “I was never a threat to Ms Balden at the hospital, or prior to that, and have never been since, despite her wicked insinuations.”
i)However in his interview with the expert psychiatrist in May 2014 the father denied “that he is a threat to Ms Balden….that two Domestic Violence Orders taken out against him by Ms Balden were erroneous and inappropriate and that he is not a violent or threatening man.”
The father maintains that it is he who has been the victim of family violence caused by the mother.
At [66] of his February 2013 affidavit the father deposes “Ms Balden’s claims of domestic violence are false. I was the victim and she was the perpetrator throughout the whole of the relationship” and at [74] “The domestic violence commenced once I started to enquire about Ms Balden’s revelations to me about her past sexual encounters and experiences and the abortion…she would physically attack me…”
At other times the father admits to perpetrating family violence, although not the instigator:-
a)In an email to the mother dated 15 December 2008 the father wrote “..I grabbed you and brought you up close to me by the scruff of your shirt, then I grabbed your hair on the back of your head and threw you on to the bed. This response of mine, though regrettable, was an accumulation of all the physical and emotional abuse I sustained from YOU…”
b)In a text message to the mother dated 11 April 2011 the father wrote “I’m sorry if there is a scratch. I didn’t mean for that. You were out of control and I just tried to restrain you.”
c)In the 2012 October family report the father admitted at [22] that he “would hit” the mother “on the back of the head to defend himself” in their arguments where the mother was physical towards the father but that “He has not been physically violent towards her since X’s birth.”
d)In his February 2013 affidavit at [66] the father deposed “I have however (sadly) defended myself at one time in 2008 by grabbing her and pushing her away from me when she would lunge towards me with both fists…”
e)In cross-examination the father admitted to breaking the mother’s glasses and grabbing the mother roughly during an altercation in September 2008
The father in cross-examination explained that he only became aggressive when he was provoked and that “I don’t think I need assistance” referring to his anger issues, stating “I’m able to deal with myself, realising when I come across things….”
Throughout his evidence the father is highly critical and affronted by the mother breaching the father on the DVO’s describing the mother’s actions as “vindictive’ and “extremely hateful” stating in his affidavit filed in August 2013 that “Ms Balden has continued to breach me for no reason (a 5^th time now over the last 1.5 years) and is abusing the system….Nothing has been achieved from these breaches, except monies lost.”
However despite all of these claims, the father has in the past consented to DVO’s and has pleaded guilty to breaches of DVO’s.
I give weight to the view expressed by the family report writer at [4] of the December 2012 family report that “It is also apparent that he has been violent to her in the past.” and to the opinion of the expert psychiatrist in the December 2012 report that “With respect to Mr Yardley’s psychological functioning and behaviour there is clear evidence that he has been documented in domestic violence reports to be abusive and controlling for which there is a current Domestic Violence Order out against his at this time.”
I find that the father has been the perpetrator of habitual family violence towards the mother with some of the incidents occurring in front of the child.
This is an issue which will weigh heavily in determining the future parenting arrangements for X.

Father’s family violence towards Ms C

Ms C has taken a DVO and an AVO against the father.
Whilst weight cannot be given to Ms C’s evidence due to her mental health issues, the police records support her involvement in the domestic violence incidents which occurred between the father and Ms C with the following being of interest:-
a)On 21 April 2014 the parties had an altercation at the food court at (omitted) when the father hit Ms C in the head with his hand and the police upon their attendance observed and photographed a lump to Ms C’s forehead and upended food was in the baby’s pram. The father in cross examination admitted to giving Ms C a back-hander to the forehead as he felt “threatened” and that the back-hander resulted in a large lump on her head. On that day A had hot liquid spilt on him from the food which has been thrown around.
b)On 17 December 2012 a witness saw the father push a pregnant Ms C out of the car leaving her on the side of the road. Police observed a few scratches on Ms C’s leg and a small rip to her shirt after the incident.
c)On 27 January 2013 the police attended an altercation at the father’s house which occurred after Ms C spilt apple juice on the floor. The father admitted to threatening to kill Ms C but did not admit to physically assaulting her. The police notes indicate “While the police were in attendance, the respondent was extremely aggressive and continued to make derogatory comments towards the aggrieved.”
d)On 29 October 2013 a witness observed the father at the (omitted) call Ms C a “slut” a “whore” and accused her of “cheating on him.”
e)On 30 October 2013 the police were called as the father had removed A from Ms C after a verbal altercation at (omitted) at (omitted). Upon visiting the father at his home where another altercation occurred the father admitted (without remorse) sending a message to Ms C threatening to “glass” her and her friend.
f)In cross-examination, the father conceded the he regretted saying it offering the excuse that “I was in the heat of a rage”.

I give weight to the family report writer’s observations at [56] of the May 2014 family report that “It is clear that their relationship is very unstable and volatile and that Mr Yardley has been violent towards her.”
I find that the father is in a violent relationship with Ms C with the father being the primary instigator.
This is an issue which will weigh heavily in determining the future parenting arrangements for X.

The father’s mental health

The mother has concerns as to the father’s mental health.
The father in his psychiatric report interviews indicated that he has “never seen a psychiatrist or psychologist and has never been in receipt of any antidepressant or psychotropic medication.”
The father failed to inform the expert psychiatrist and the report writer as to:-
a)His criminal history.
b)That the father had one brother that at some point in time was diagnosed with bipolar.
c)That the father had one brother who committed suicide.
The expert psychiatrist admitted in cross-examination that his findings in respect of the father may have been different if the father had disclosed this information.
After two interviews with the father the expert psychiatrist came to the following conclusions:-
a)“I believe he suffers from narcissistic Personality Disorder and/or given the cross sectional nature of his interview at least narcissistic traits in his personality.” (December 2012 psychiatric report).
b)“With respect to a DSM-IV perspective Mr Yardley does not present with a constellation of symptomology consistent to warrant a Major Axis 1 Diagnosis. He does however, have a healthy sense of his own achievements and circumstances and capacities and a rigid view of what he felt was Ms Balden’s past moral behaviour.” (December 2012 psychiatric report).
c)“Mr Yardley does not present with a constellation of symptoms consistent with a Major Axis Psychiatric diagnosis but it clear that he remains rigid and inflexible with respect to his concept of the court’s decision making process and persistently seen himself as the rightful and appropriate parent to the children.” (May 2014 psychiatric report)
d)“With respect to treatment, I do not believe he requires the services of a psychologist or psychiatrist with Mr Yardley believing he is currently well and seeing himself as a victim of these current court processes that have left him estranged from his son.” (May 2014 psychiatric report)
e)“Whilst a psychologist may assist Mr Yardley in coming to understand the nature of the stressors associated with custody and access disputes and his own behavioural responses, I make this as a recommendation to assist Mr Yardley but not that it may be mandatory before the courts.” (May 2014 psychiatric report).
The family report writer also alluded to these narcissistic traits stating at [36] of the October 2012 family report that “Mr Yardley presents himself in an extremely positive light by denying minor faults and shortcomings that most people acknowledge. This level of virtuous self-presentation is very uncommon even in individuals with backgrounds stressing traditional values. He also presented as very well adjusted. This reported level of psychological adjustment is relatively rare in the general population.”
In the December 2012 report the family report writer commented “I agree with Dr G that Mr Yardley presents with significant narcissistic personality traits.”
In the May 2014 report the family report maintained his opinion stating at [59] “Mr Yardley does not accept that narcissism might be a feature of his personality…I continue to hold that he has, at least, significant narcissistic traits which are expressed and exhibited repetitively, inflexibly and maladaptively. He has repeatedly demonstrated that he refuses to accept the will of others (including the Court and ICL) that he has an entitlement to be understood and regarded despite what is on record of his behaviour towards others, and that he holds himself as someone who has been victimised and conspired against by two very vulnerable women……He sells himself as a highly educated, very moral and virtuous individual who stands above the two women who have, very unreasonably, given him much trouble as a result of their own personal and somewhat shared inadequacies and psychopathologies. He has asserted to me that if Ms Balden and Ms C can be fully understood, it will be clear that he has done nothing but have the interests of X in mind.”
I find that the father does not suffer from a mental illness although the father has personality traits which raise some concerns as to parenting ability.

Father’s personality traits

Both experts are of the view that the father possesses narcissistic traits.
So what is narcissism?
Narcissism is defined in the Macquarie Australian Encyclopaedic Dictionary as “extreme admiration for oneself or one’s own attributes; egotism.”
The father denies that any such traits exist stating in the May 2013 family report at [18] “I reject the claim of narcissistic traits.”
In an email the father sent to the mother’s lawyer on the 23 August 2013 the father commented “…Dr G did not use any measure or instrument when meeting with me but simply asked few questions about my educational background, in which I told him I had five university degrees, a (omitted), (omitted) for (omitted) students, was an accomplished (omitted), (omitted) and (omitted) in (omitted), and bi-lingual, speaking (language omitted) and English, fluently. For this he has labelled me as narcissistic and I find it offensive.”
The father claimed in an email to ICL dated 29 October 2013 to have proof that he did not suffer from narcissism stating “For the record, I do not have Narcism, or any other ‘personality disorder’ and has sought professional assessment and evaluation on this. For example, as evidence of commencement of Psychological services I attach two receipts …Ongoing attendance is determined by current financial circumstances…”
In his final interview with the family report writer the father stated at [30] of the May 2014 report “I don’t have narcissism. I have a personality style. I’m confident in my abilities. I have six degrees now….I do have empathy. I have shown an abundance of it.”
The father did not produce any reports from any health professionals during the final hearing.
The father is resistant to undertaking any therapy or counselling for these traits as indicated by his following comments:-
a)“After some further reflection leaving court tonight, I have decided that if an order was made for some form of counselling or therapy for the alleged narcissistic traits, I will not be entering into it. As Mr P suggested, it would be useless and would not be of any benefit. I am of the firm opinion that Mr P and the parties are additionally wrong in their assumptions about my personality.” (Email father to ICL dated 21 August 2013)
I find however that the father in his own evidence illustrates time and time again an overinflated ego, a rigid set of views and an immovable position which shows the father as always being right and everyone else being wrong.
I find, based on the evidence, that these are indicative of narcissistic personality traits.
The evidence of such traits has emerged over a vast array of topics and issues.
The first is the father’s perceived superiority where the father appears to equate success and ability in all aspects to his life due to his educational achievements as illustrated by the following comments and actions:-
a)The father signs his emails to the mother, her lawyer and to the ICL with “Mr Yardley (qualifications omitted)).”
b)The father refused to attend ongoing counselling with the mother after the death of their first child informing the mother that he was “more educated” than the counsellor.
c)It is noted by the family report writer in the May 2013 family report “While speaking to me about X, Mr Yardley detailed to me his academic qualifications and educational credentials. He noted that he has ‘worked so hard to give something back’.”
d)In his affidavit filed August 2013 the father wrote “I try to work hard for X as hard as I can and have dedicated 5 years of (qualifications omitted) research to him in the Dedication section…This is my testimony of unfailing love for my son.”
e)In an email sent by the father to the ICL dated 4 February 2014 the father thought it appropriate to attach the report for the Award of (qualifications omitted).
f)On 24 February 2014 the father sent to the ICL and the mother’s lawyers a copy of the letter from (omitted) University as to the father receiving his (qualifications omitted) advising that “I ask that you note the attachment and that all future correspondence and salutations be made in line with the recommendation therein.”
g)On 24 February 2014 the father sent to the mother an email emailing the father’s thesis and a copy of the letter from (omitted) University as to the father receiving his (qualifications omitted) stating “If there ever comes a time in the future where I am unable to, can you please give these documents to X. I love him.”
h)On 7 March 2014 the father in an email to the ICL to which the father attached all of his educational information wrote “Now that I have finished my (studies omitted) and have a little time to recoup, and as a last ditched effort to aid the court, I have decided to compile documentation which provides evidence to support my character and good well-meaning nature and intentions, despite being mistreated and misunderstood by some. Feel free also to share this information with whoever you see fit, especially the ‘expert witness’ Mr P, who couldn’t have got it more wrong. The evidence I provide you shows my track record beginning in the year 2001 to the present day…..In support of my application before the court for 50% custody of my sons…and to dismiss any opinions relating to narcism made about me by the ‘expert witnesses’ I provide references from a variety of sources which give proper representation of me reflecting the last 14 years to the present day.”
i)“I have continued and grown from strength to strength having completed my (studies omitted) under difficult circumstances and have continued to hold out hope for my sons and that the court will get it right and begin to see that MY sons only flourish if they have stability and care that I, as their loving and patient father, can only provide.” (Email father to ICL dated 1 April 2014).
The second is the father’s unshakable belief that he is a far superior parent than the mother and has much more to offer the child than the mother, as illustrated by the following comments:-
a)“I have great resources-capacity….Squandered – my son’s not here with me.” ([17] October 2012 family report)
b)“I believe that the conditions under which X is living in (omitted), and the particular kind of unhealthy ‘rearing’ and ‘parenting’ that he is receiving…is hindering his cognitive development and having a limited effect in what he CAN achieve and potentially do for a child of his age, and of which can only be achieved if he was living with me”. (Email father to ICL dated 28 July 2013)
c)“Both my sons are being deprived of a meaningful relationship with me, and are being denied the proven benefits that flow from such a relationship.” (Email father to ICL dated 4 February 2014)
d)“Mr Yardley stated that it was not his fault that he got mixed up with two particularly mentally unwell women but it is for these reasons that he would be the best and most appropriate father.” (May 2014 psychiatric report).
e)“I argue that if X is to be limited to and confined any further to Ms Balden’s antisocial traits, and general behaviour, this would indeed be significantly detrimental to X’s development and well-being. This can **ONLY** be mitigated by X spending half the time with me as his father, as I have so much to offer him, of which Ms Balden cannot, as I am different to her. This is without dispute.” (Email father to ICL dated 19 March 2014).
The third is the father’s strongly held view that he is the victim in these proceedings and it is all the fault of the mother and Ms C (who the father maintains have conspired against him), as illustrated by the following comments:-
a)“Regarding these current circumstances that I have raised I almost identify myself with Joseph and I liken Ms Balden to Potiphar’s wife, in the narrative as described in Genesis 39, and the innocence of Joseph and the deception and mistreatment inflicted by Potiphar’s wife.” ([113] fathers affidavit filed February 2013).
b)“Like Ms Balden, Ms C has experienced sexual abuse. Their experiences are unfortunate. I consider myself very unfortunate to have been with these women who prior to meeting me, endured sexual abuses by wicked men. I consider myself very unfortunate indeed.” (Email father to ICL dated 4 August 2013)
c)“…as I see it, Ms C has attempted to sabotage my relationship, not only with X, but now also with A. I am very saddened by this. Ms Balden has also tried to capitalise on this. There is evidence that Ms Balden and Ms C have conspired with each other, and that both woman do not have my sons interests at heart….This should be viewed as criminal by the court. I view the actions and lies and deception of both women as criminal.” (Email father to ICL dated 4 February 2014).
d)“Ms Balden has attempted to conspire with Ms C.” (Email father to ICL dated 24 February 2014)
e)“The whole situation, involving Ms Balden and Ms C, has become absurd, and the Court is being ‘hoodwinked’ and its services and systems are being misused by these women, with the real victims being my two sons and myself……I am beginning to view the actions of these women as a form of terrorism…they are harming then (the children) and using them as a personal vendetta they may have with me, because I have had difficulty accepting these women due in most part to their defiled pasts and the way it has shaped them. My sons are being used as pawns, and the actions of by the mothers to date, constitute, in my opinion, an unusual form of terrorism. The Court is also aiding and abetting this, and to date, the course of justice has been perverted.” (Email father to ICL dated 28 February 2014)
f)“I believe that attempts have been made to assassinate my character and well-meaning attentions, while I have been focussed and working hard through these years…I have not been understood by these women well or have been treated fairly.” (Email father to ICL dated 6 March 2014)
g)“..I kindly ask the court for shared parenting arrangements and 50% custody of X…This will enable him to spend time with me….**free** from the sabotage, destabilising and disruptive behaviours of both Ms Balden and Ms C.” (Email by father to ICL dated 14 March 2014).
h)“I strongly ask that the parties to note that the system that is in place for genuine matters that relate to genuine safety issues for women has been mocked, misused and abused by both Ms Balden and Ms C. This recklessness should not be allowed to continue any further especially given tax payer dollars are being squandered.” (Email by father to ICL dated 1 April 2014).
i)“He believes the court have been misled by two manipulative women.” (May 2014 psychiatric report).
j)“He also believed that the pathology of the two women has somehow been symbolic and that they have, together and separately, conspired against him. He stated plainly that he is the victim……he repeatedly returned to the idea that he was the victim.” (May 2014 family report)
The fourth is the father’s view that the court system is ineffective in children’s matters as illustrated by the following comments:-
a)“I have been self represented, relying on the good sense and moral discretion of the Court to do what is morally right. However, just as a preamble, the removal of homosexuality from the DSM in the 70’s, the emerging criminalisation of free speech, otherwise referred to as homophobia and recent moves to legalise same-sex marriages, raises in my mind much doubt about the Court’s ability to decipher moral issues and to provide justice, and may instead reflect an arbitrary/relative system of judiciary with standards dictated by a given ‘enlightened’ culture at any period.” (Email father to ICL dated 29 October 2013)
The fifth is the high moral standard the father holds out for others, but does not apply to himself:-
a)Although highly critical as to the sexual history of the mother and Ms C, the father had numerous casual relations and at one point in time was in a sexual relationship with both women at the same time.
b)Although the husband spoke constantly of the mother and Ms C being “defiled” the father contracted genital herpes from a causal fling when in a relationship with the mother informing the mother that it was her fault.
c)Although the father speaks of his children being very important to him, the father failed to provide the mother with any emotional or practical support after the death of their first born child, with the father failing to attend the memorial service preferring to study for his (studies omitted) instead.
The sixth is the father repeatedly made comments directed at the mother, Ms C, the ICL and the court during the course of the hearing which, I find, to a reasonable person, would be seen as threatening and at times sinister in nature such as:-
a)“I will hold the relevant parties accountable…A gross injustice….‘Relevant parties’…. that’s yet to be determined… Obviously Ms Balden and her lawyer are responsible….I’m a good man. I have good standing in the community…I will seek recompense…I’m not flippant…” ([19] May 2013 family report)
b)“If there is no action immediately taken I will hold the relevant parties accountable in due course.” (Email father to ICL dated 4 August 2013)
c)“I consider Ms T and Ms Balden thieves who have stolen from X and I, what was rightfully ours, a relationship in the early years of his life, and a right to his father…..They are guilty of this and should be held accountable for such wickedness.” (Email father to ICL dated 4 August 2013)
d)“The reasons for the judgment made on 27th (the orders suspending the father’s unsupervised time) were baseless…this was a gross injustice and the order made by Turner, is in my view, amoral…..In time I will hold all relevant parties accountable for such injustice committed against X and myself.” (Email father to ICL dated 18 September 2013)
e)“I find myself in an unfortunate position at this time, and will seek ultimate vindication, not just for myself but for my sons.” (Email father to ICL dated 4 February 2014).
f)“I have forgiven you both for this injustice (referring to the father not seeing the children), and have let go of the bitterness and unforgiveness that the devil has tried to keep me bonded to. We will face God soon and will face true justice….It’s interesting u know, Matthew 20:16 states “the last will be first and the first will be last. You should know that last week I applied for a top government job related to my (studies omitted)…and because of the criminal convictions due to the breaches you so strongly sought and fought for, I was unable to get the job…I really wonder if you’re proud of yourself. When and if X finds out when he is old enough, he will not be happy with your actions, I can assure you. It’s so sad….Don’t be angry Ms Balden, I wish u peace.” (Email father to mother dated 8 April 2014 entitled “Peace”)
I find that the father’s personality traits are such that the father:-
a)Has no insight as to his behaviour on others.
b)Has a false sense of entitlement and superiority.
c)Holds an overinflated view as to his ability to parent.
d)Will put his needs before the needs of others; including that of X.

I give great weight to the opinion of the family report writer captured at [52] of the May 2013 family report “Mr Yardley’s statements, proclamations and pronouncements to me once again (as was the case in my first interview with him) indicate to me that he remains self-possessed and that he maintains a very high opinion of himself and of his capability as a parent. He also remains demanding and entitled.….I am concerned that Mr Yardley will not be able to be relied upon to think beyond his own self and his own needs to the point that he could always be relied upon to make decisions that that are in the best interest of X…. For these reasons, I suggest strongly that X remain in the care of his mother for the majority of time.”
I find that the father’s personality traits pose a risk to X and therefore impact on what time and how such time is to occur between the father and the child.

Ms C’s mental health

Ms C in her interview with the expert psychiatrist reported the following information as her mental health history:-
a)There are a number of persons in her family who suffer from mental health issues.
b)Ms C was diagnosed at the age 15 or 16 with Dissociative Identity Disorder as a consequence of being sexually abused by her older brother although Ms C could not remember who had diagnosed her and had never received any medical assistance for the disorder.
c)Ms C attempted suicide by way of an overdose at the age of 17.
d)In March 2014 whilst staying at the women’s refuge Ms C attempted suicide by cutting her wrists.
e)At the time of the interview Ms C was not seeking a psychologist or a psychiatrist but did have a referral.
In his May 2014 report the expert psychiatrist made the following findings:-
a)“It is clear that she has significant personality dysfunction particularly of the borderline type with a differential diagnosis of Dissociative Identity Disorder.”
b)“From a treatment perspective it is clear that Ms C does need to be in regular psychotherapy and under psychiatric care for ongoing review, stabilization and provision of appropriate psychotropic medication in concert with ongoing psychotherapy.”
c)“Her rapid changes of mind, her inconsistency and her decision to hand over custody of her child and possible unborn child to Mr Yardley due to her perceived failings is a source of concern with regard to her involvement in Mr Yardley’s life.”
d)“It is conceivable that Ms C due to her personality vulnerabilities is likely to again change position with respect to these custody and access disputes before the court.”
e)“To this end I believe for her stability and to enable her to attain a measure of control over her mood and behavioural problems, that having ongoing psychiatric contact is vital with respect to her ongoing functioning as a mother and to appropriately engage in ongoing issues that are before her at this time.”
I give significant weight to the evidence of the expert psychiatrist.
I find that Ms C suffers mental health issues which have not, to date, been adequately addressed.
I find that as a consequence of Ms C’s mental health that little weight can be given to her evidence and that reference must be made to independent evidence to verify anything that Ms C has said.
I find that Ms C’s untreated mental health issues may pose a risk to X.

Mother’s mental health

The family report writer in the October 2012 family report noted at [81] under the heading “Interpersonal Functioning Scales” that the mother “reports disliking people and being around them, and is likely to be antisocial and socially introverted.”
The mother in her interviews with the expert psychiatrist disclosed the following information as her mental health history:-
a)In 2007 the mother had four sessions of counselling for work related issues.
b)In August 2012 after being informed by Ms C that the father had filmed the parties’ sexual encounter the mother went to her GP and was placed on Zoloft but went off it after a month.
c)In April 2014 the mother went on leave from work due to anxiety and stress.
d)The mother sees her treating psychologist every week for supportive psychotherapy but is not on medication.
In his reports the expert psychiatrists made the following findings:-
a)“…I have no treatment recommendation for Ms Balden, believing her to be of sound mind and capable of providing ongoing care for her child X.”
b)“I believe Ms Balden to be of sound mind and capable of maintaining an ongoing loving relationship with her son.”
I give significant weight to the evidence of the expert psychiatrist.
I find that the mother does not suffer from any mental health issues and that the mother is taking appropriate steps to address the stress created by the parenting dispute.

Father’s negative view of the mother

Throughout the whole of the proceedings the father spoke of the mother in a disparaging and negative way; often degrading the mother as a woman and as a mother.
The father had something to say about every aspect of the mother’s life.
As to the mother’s mental health the father holds the following views:-
a)“She has an adjustment disorder. She has a background of abuse. Very manipulative and controlling.” ([28] October 2012 family report).
b)“I’m of the opinion Ms Balden needs serious counselling and rehabilitation at a psychiatric institution, and I do not deem her fit to share the responsible care of X…..Treatment is recommended for Ms Balden ASAP.” ([2] father’s affidavit filed August 2013)
c)“Ms Balden’s continued actions, despite my ongoing efforts to be amicable to her, are totally appalling and is a result, X is being denied meaningful time with me as his father, and excessive and disproportionate time with a mother who is unfit and has antisocial personality disorder and adjustment disorder, with poor verbal communication and parenting skills as it is.” (Email father to ICL dated 4 August 2013).
d)“It disturbs me that Ms Balden keeps harking on about X’s ‘safety’ as though somehow he is in constant imminent danger, when ‘SHE’ is the one who terminated a life before, and not I. I believe there are psychological explanations for this ‘psychological conversion’….I will draw on the academic and Psychiatric term ‘post-abortion syndrome’ to explain Ms Balden’s current condition….I strongly believe that her excessive, disproportionate and imbalanced handling of X’s ‘safety’ as she keeps putting it, is as a result of psychological trauma she is still going through from having terminated a child when she was 19 and of the subsequent Post-abortion syndrome…..It is totally unfair and unjust that X and I will be made to suffer because of Ms Balden’s earlier fornication which led to her getting pregnant, then aborting the child at age 19, all for the sake of her own pleasure and sexual enjoyment.” (Email father to ICL dated 4 August 2013).
e)The father refers to the mothers “psychopathology” and “how this underline my earlier claims about her underlying condition of Adjustment disorder and Post Abortion Syndrome of which, in my opinion, Ms Balden is still suffering from.” (Email father to ICL dated 1 April 2014).
f)“He should have the right to unsupervised access of his son due to Ms Balden’s mental instability.” (May 2014 psychiatric report).
As to the mother’s past the father is highly critical of the choices the mother made, making the following comments:-
a)“In all of my life, I have never met someone as screwed up like you. I WISH I NEVER HAD MET YOU. You deceived me about your true past (abortion and a bloke who wanted to have group sex with you) and you only decided to tell me after we were in a relationship and after we had been having sex. You’re a home wrecker. I am furious with your heartless actions and I hope that God will avenge and vindicate me. You have wrecked my first pregnancy. I will never forgive you for it but I know that God can.” (Email father to mother dated 20 December 2008)
b)“Mr Yardley reiterated that Ms Balden had ‘an abortion. Participated in group sex’ She did not ‘reveal this until we had been in bed together.’” ([17] May 2013 family report)
c)“Ms Balden’s abortion was an offence against the sacrament of life, as defined by the Second Vatican Council……Her actions are reprehensible and is an offence against the sacrament of life as defined by the Second Vatican Council.” (Email father to ICL dated 4 August 2013).
d)“You’re an absolutely selfish woman, who fails to remember her own defilement with (omitted) and your sickening abortion with him.”(Email by father to mother dated 26 December 2013)
e)“Mr Yardley admitted that he had difficulty in terms of his relationship with Ms Balden in that he was a virgin when he married his first wife Ms A and as such Ms Balden seduced him and manipulated him into a relationship before telling him that she had had a termination of pregnancy at the age of 19 and was involved in a sexual threesome. He believed that these were extremely disturbing aspects of her behaviour and he had difficulty reconciling this due to his strong Christian beliefs.” (May 2014 psychiatric report).
f)In cross-examination the father offered the following view of Ms C and the mother “Both – both Ms C and Ms Balden – unfortunately I have children – I mean, unfortunately both of them have had children to other men before me. So I have children with – I have a child with Ms Balden and I have a child with Ms C. Both these women, in my view, were defiled and compromised long before I met them.”
The father is of the view that the mother is a woman beneath his standing who wants to get back together with the father as illustrated by the following comments:-
a)The mother has “always felt inferior to me in many ways.” ([15] October 2012 family report.)
b)“He considers that Ms Balden is, in contrast to himself, ‘vindictive’ and that ‘she feels inferior to my qualifications.’’’ ([23] May 2013 family report)
c)“To have this happen to me, by a woman from (omitted), who got an (omitted) …working at (employer omitted) getting abused by people…She doesn’t understand who I am or what I am about…her own experiences with men…Some misogamy is setting in…I will seek to recompense…” ([19] May 2013 family report)
d)“Mr Yardley…indicated that he believes that …Ms Balden perhaps in an unconscious way wish to still be with him and that…manipulative behaviour reflect a desire for some reconciliation of sorts with him.” (May 2014 psychiatric report).
The father holds the view that the mother is an inadequate parent for numerous reasons as illustrated by the following comments:-
a)“Ms Balden has never known her own father…History is repeating itself in a strange way….She doesn’t recognise the role of a father in a child’s life…I am very resourceful. I can contribute much to him.” ([23] May 2013 family report)
b)“My son is sufferings from excessive exposure to Ms Balden and her mother in a cramped duplex and is being deprived of his ethnic origins, culture and foods that he may otherwise enjoy eating, but is not currently receiving under Ms Balden’s regime and care.”
c)“X has had a number of injuries and that Ms Balden is ‘clumsy’. She has a very high prescription in her eye glasses and is not very physically active. She lives in a ‘small confined unit in (omitted). I don’t believe that she is independently competent enough to raise my child.” ([24] May 2013 family report)
d)“I currently have a number of grave concerns regarding the emotional and psychological well-being and development of my son…and have had ever since he was born. But my concerns have now become increasingly pressing…and began to emerge while I was visiting with X at the centre….contact centre notes…show that Ms Balden would drop X off ….X would turn around to Ms Balden and show an angry grimacing look and attitude towards her, in the presence of staff…indicating problems in the relationship and rearing. As X is still very young and unable to verbally communicate his feelings, I believe that this was his intelligent attempt to let his feelings known in the presence of people (i.e. The ICC staff), he seemed to intuitively know could help him. Of particular concern, was when I returned to the ICC with X…..put him down…..he would not let me go and began to cry, as he fearfully turned and looked at the entrance of the ICC in fearful anticipation of his mother’s arrival…..I have observed X go from being happy and secure and not wanting to let go of me, to being fearful at the imminent arrival by the mother once I leave the ICC….Upon preparing to leave, X quickly ran to the corner of the room and began hiding in the corner, in an attempt to hide from the imminent arrival of the mother and nervously looking at the entrance of the centre in unnerving anticipation of the mother….It was clear that the X was scared about the arrival of the mother. ICC staff recommended today that I take X for psychological evaluation/medical advice after having expressed my concern to them…..I am of the strong opinion that psychological and emotional harm is being inflicted on X by his mother and grandmother in the unusual environment of Ms Balden’s very small duplex which she shares with her mother…..I have observed some very unusual facial expressions on X …that he has displayed at times and appear to be consistent with the bizarre facial expressions that I remember Ms Balden and Ms T displaying…..Another concern is X’s skin colour. It is excessively and unusually very white, which is indicative of a lack of exposure to the sun and outdoors, which implies he is rarely outside the small duplex ……There are other developmental delays that I have observed, and of which go beyond the scope of this email to address in detail.” (Email father to ICL dated 28 July 2013)
e)“Due to living with Ms Balden, X is experiencing significant speech developmental delays…..This developmental delay is attributable to Ms Balden’s diagnosis of antisocial personality disorder……Toddlers at 18 months should say up to ten simple words….X at 21 months is unable to do this……This is gross neglect by the mother, and concerns me greatly as an academic, educator, and especially as his father, who loves him very much.” (Email father to ICL dated 4 August 2013).
f)“Ms Balden needs treatment as she doesn’t realise that her disorder is indirectly affecting X, his needs, and his interests, in seriously negative ways. This is my strong and professional opinion. Ms Balden needs help in order to be made to see the link between her adjustment disorder and antisocial diagnosis and its ongoing effect on my poor son…” (Email father to ICL dated 4 August 2013).
g)The father spoke of the need for X “to be kept safe from real and genuine harm which I strongly believe that Ms Balden (is) inflicting.” (Email father to ICL dated 4 February 2014)
h)In cross-examination when asked by the ICL as to what category the mother fits into in the context of good, bad and middle mothers the father responded “Well, based on what has happened all along, I would have to – I would have to rate her at the very bottom, very low, in the low category.”
I give weight to the expert writer’s opinion expressed at [4] of the December 2012 family report “He also has a very strong moral and other views regarding Ms Balden and her alleged past behaviour. It seems clear to me that he does not have any respect for her. Ms Balden appears to be a woman who will remain very vulnerable to Mr Yardley and to any opportunity he may have to influence her.”
The father has no concept as to the impact his numerous unrelenting comments, none of which are supported by independent evidence, have had on the mother or her ability to parent X.
I give weight to the family report writer’s comments at [52] of the May 2013 family report “He has once again demonstrated no respect for Ms Balden or for her role in their son’s life. Mr Yardley denigrated her to me in eloquent and elaborate terms and dismissed her as someone who is inept and ineffective as an individual and as a parent. I believe that Mr Yardley will continue to have great difficulty tolerating his son having a relationship with Ms Balden. There is a danger that, at some point in the future, Mr Yardley will force his son to make a choice between his father and his mother. The narcissistic features of Mr Yardley’s personality are such that he will have great difficulty tolerating his son expressing his alliance with or an allegiance to anyone other than his father and especially with his mother.”
I find that the father’s overall negative view of the mother is not only a form of emotional abuse to the mother which is likely to impact on her parenting ability but has the potential of posing a risk to X.
These are issues which will be taken into account in determining the future parenting arrangements for the child.

Father’s negative view of Ms C

The father’s view of Ms C is unfortunately is no better than the view held by the father as to the mother.
The father had the following to say about Ms C’s mental health:-
a)“Ms C is a pathological liar and suffers from an extreme form of mental illness, Dissociative Identity Disorder.” (Email by father to ICL dated 4 February 2014).
b)“Ms C suffers from regular seizures lasting up to an hour. Her body shakes violently, her eyes roll in the back of her head, and she makes unusual sounds (deep voice demonic sounds/groans)….I do not know of any medical addiction of this and have consulted medical personal. I have also consulted with church priests and ministers and they think it might be ‘demonic possession or ‘oppression’ or ‘infestation’ of some kind.” (Email by father to ICL dated 28 February 2014).
The father also holds a similar view that Ms C wishes to be with him:-
a)“Mr Yardley…indicated that he believes that …Ms C perhaps in an unconscious way wish to still be with him and that…manipulative behaviour reflect a desire for some reconciliation of sorts with him.” (May 2014 psychiatric report).
The father admits to referring to Ms C as “compromised and defiled” and as being a “slut” and a “whore.”
I find that the father’s attitude towards Ms C as being a concern.

Father’s relationship with Ms C

I give weight to the concerns raised by the experts as to the father’s on again off again relationship with Ms C.
The expert psychiatrist in the May 2014 report stated “With respect to his current relationship with Ms C, this is extremely volatile and unstable with Ms C changing her opinion of Mr Yardley dramatically and has been prepared to do so before the courts. It is unclear the nature and format of which the future relationship between Mr Yardley and Ms C will continue to have.”
The family report writer opined at [57] of the May 2014 report that in respect to their volatile relationship “ Mr Yardley considers that her condition (referring to her mental health issues) explains all their troubles in their relationship and he said nothing that suggests he apportions any of the relationship difficulties with his own action or inaction.”
At [59] the family reporter commented “Ms C in particular as t her young age and with her reported abuse history, along with what appears to be personality pathology in the borderline domain…and her responsibilities as a mother of a very young child, seems to have been significantly manipulated and controlled by Mr Yardley.”
I find that this is a toxic relationship and one that the child needs to be protected from.

Communication between mother, maternal grandmother and Ms C

The father is highly critical of the mother and the maternal grandmother’s communication with Ms C.

I find that a reintroduction of time between the father and the child poses a risk to X as it places in jeopardy the ability of the mother as the primary carer to meet the needs of the child.
The third risk is Ms C’s mental health and her relationship with the father.
The evidence supports a troubled young woman who is not getting assistance for her mental health issues and where such issues are impacting on her ability to make day to day decisions.
Although the father maintains that the sexual relationship is at an end, the father will always have some form of relationship with Ms C because of their history together including having a child (and possibly children).
This is troubled relationship as discussed by family report writer at [60] of the May 2014 family report “...the fact that Ms C’s recent statutory declaration is at odds with police records suggest to me that her reports regarding Mr Yardley’s potential and actual harm towards her in the past may have represented more of a reality that why she and Mr Yardley have argued. I believe that she has been manipulated and controlled to the point that she has defended him by lying for him at times. He has, and remains a powerful influence upon her.”
In response to questions put by the ICL regarding the risks to X spending unsupervised time with the father and Ms C, the expert psychiatrist expressed the following concern “I think there are two factors at play: one is Ms C’s mental state and functional capacity within this relationship. It is a volatile relationship, characterised by a number of domestic violence orders and statements from Ms C, indicating, both in those emails to Ms Balden, of her concerns about Mr Yardley, but also her tendency to blame herself and often say that it’s her dissociative identity problems that often cause distress for Mr Yardley. At other times she will not say that, such as in her emails, text messages to Ms Balden, when she confirms that she is frightened of Mr Yardley. Her diagnosis is not quite clear. I’ve suggested that at the very least, Ms C has a borderline personality disorder and also what she has described -being diagnosed with dissociative identity. Both those positions, diagnoses, can result in an individual rapidly changing in mood, behaviour, and in terms of dissociative identity, memory for actions when she may be in another alter or state; therefore, in that circumstance, Mr Yardley, who, I feel, does have narcissistic traits, again, may show features of narcissistic personality disorder, but I don’t like to make those diagnoses on one-off or two interviews. This results in a volatile combination and it’s evidenced by the fluctuations and changes and what has been shown to be a past, criminal history of Mr Yardley, plus the domestic violence orders. It would mean that the nature of their relationship from time to time, from day to day, even hour to hour, could be volatile. It could be characterised by threats of violence towards each party by the other, and it’s a very unstable domestic basis to put a third party, such as a small child of two, in, when this degree of potential eruption and/or distress could occur; therefore, I think, given those circumstances, and even the changing positions - Mr Yardley saying he’s not going to have a relationship with her; Ms C saying, well, they are – is indicative of the ongoing instability, and couple that with violence and previous incidents of that, I do not believe it’s an appropriate environment for X.”
I find that Ms C’s unchecked mental health issues and the unhealthy relationship between the father and Ms C poses a risk to X if X was to spend time with the father.
The fourth risk is the father’s inability to meet the child’s needs.
The mother does not believe that the father can look after X.
The family report writer also raises concerns as the father’s ability to care for and meet the child’s needs.
At [6] of the December 2012 family report, the report writer opined “X is at an age when he is physically and emotionally very vulnerable. Mr Yardley has not yet demonstrated that he can independently adequately care for him.”
The expert psychiatrist agreed stating at in the December 2012 psychiatric report “…..he has never been a in a cohabiting relationship with Ms Balden over a five year period …with …X being approximately 12 months of age Mr Yardley at this time has had documented difficulties at the Contact Centre in remaining for his two allotted hours due to the child crying….. I do not believe he is capable of independently looking after this child on his own time either with or without supervision at this point.”
The problems the father had with supervised time with the child reiterate these concerns, such as:-
a)The father repeatedly arrived early and parking in the wrong spot, despite staff requests.
b)Visits were missed by the father on the basis that he could not afford the contact centre fees.
c)Initially the supervised visits were for two hours but were reduced to one hour for a number of reasons.
d)The mother explained to the expert psychiatrist in the December 2012 psychiatric report that at a recent contact visit the father had left early as he was not handling his son’s crying.
e)The notes from ICC support that the father left early several times offering varying excuses.
f)The notes from ICC raise several concerns such as the father failing to wash the child and his hands before eating, the father not cleaning up after the child and the father not attending to nappy changes promptly.
The expert psychiatrist in cross-examination viewed the mother’s concerns as to the father’s ability to spend time with the child, including supervised time, as reasonably held stating “I think that’s a reasonable and consistent assumption by Ms Balden, given that we have a third party in the form of a contact centre providing an independent view regarding their observations of him dealing with X, but also his capacity to interact and receive what would appear to be gentle and reasonable instruction by the contact centre. So I believe that if Mr Yardley has significant difficulty simply interacting within the contact centre in looking after his child, then Ms Balden, naturally, would have concerns about Mr Yardley’s interaction with X when he was away from the contact centre, and I believe those concerns would be reasonable and soundly based.”
The father indicated in court that he has no intention of attending any parenting course as “I don’t need to”.
In addition to not being able to meet the child’s needs, the father has the propensity of putting his needs first, often at the expense of others
At [60] of the May 2014 family report the family report warns “I therefore conclude that Mr Yardley’s inability to withhold his own needs, or at least his propensity to hold that they are paramount to the needs of others with whom he shared close relationships, places him at risk of harming X, both emotionally and physically.”
I give significant weight to the views expressed by the experts and I find that the father’s need to put his needs first and his demonstrated inability to meet the needs of the child poses a risk to X.
The fifth risk is the potential influence the father may have on X due to the father’s negative views of the mother.
The father’s extreme despise of the mother is evident from the numerous belittling statements made by the father about the mother relentlessly over a long period of time.
To refer to the mother of his child as defiled and compromised, to imply that her past sexual choices was responsible for the death of their first born and to constantly put the mother down because of her history and her education is cruel.
The father’s prolific sharing of his views is indicative that if the father was to spend time with X, then those views would be imposed on the child which may then impact on the loving and caring relationship currently shared between the mother and the child.
I find that this poses a risk to X.
The sixth risk is the father’s unshakable belief that he is the best parent and that he offers so much more in his parenting of X that what the mother could ever offer.
The family report writer at [61] of the May 2014 family report opined “A further concern I have in recommending that X not spend time with his father, is the risk to X in the form of Mr Yardley potentially trying to influence X away from his mother and towards his father. I do not believe that Mr Yardley has the capacity to cope with X regarding his mother as the parent who has the most influence on him, or as the parent towards whom X might be more likely to gravitate to if he had a choice. His narcissistic personality traits are such that he is likely to have a psychological need for X to demonstrate to him that he is something like the special parent to X, or the parent whom he most values. I do not believe Mr Yardley could truly share parenting with Ms Balden because, to him, he would feel that he could not share his child or give his child the opportunity to have special regard for anyone except his father. This would potentially alienate X from his mother and would also harm him further by placing him in a position that he would have responsibility for his father’s own concept of self-worth and to a lesser degree, his father’s own conceptualisation of himself as a person of value.”
I give significant weight to the opinion expressed by the family report and I find that the father’s narcissistic views on this issue as well as many other issues regarding the mother poses a risk to the child as it may alienate the child from the mother and isolate the child.
The seventh risk is the father’s narcissistic traits which form the basis for many of the other risks.
The father is in complete denial as to these traits.
Both the family report writer and the psychiatrists did not know of any therapy that may assist the father.
The family report writer at [62] of the May 2014 family report indicates “I do not believe that any psychological therapy for Mr Yardley will be effective in addressing these features and characteristics within him and about his behaviour.”
Given the father’s narcissistic traits and the lack of treatment available and the negative impact of these traits on the child, I find that this poses a risk to X.

Conclusion as to unacceptable risk

I find that all of the above risks are of such a nature and of such a degree that the risks to the safety and welfare of the X.
I further find, that as the father is not prepared to address some aspects of his behaviour, such as his anger, and that there may not be aspects incapable of being addressed, such as his narcissistic traits, then there are insufficient safeguards available to make such risks acceptable.

Point 3 - Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

I find that in the past that X have been exposed to violence perpetrated by the father against the mother.
This however is not “abuse” in accordance with the legislation.
“Abuse” is defined in section 4 of the Act:-
“in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”

Point 4 - The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

I find that even in the absence of abuse, that the child is still at risk of harm if placed in the care of the father and that the risk is unacceptable.

Point 5 - The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

As previously stated I find that there is unacceptable risk to the child and therefore it would be in the best interests of the child not to spend time with the father.

Point 6 – The onus of proof in reaching that conclusion is the ordinary civil standard

The standard applied in reaching this finding is on the balance of probabilities.

Point 7 - But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

The circumstances of this matter are such that whilst all facts could not be proved to the standard of balance of probabilities, that the accumulation of the large number of factors support a finding that the father poses an unacceptable risk to the child.

The other primary and additional considerations

As a finding has been made as to unacceptable risk and as a finding has been made that the father is to spend no time with the child then it is unnecessary for me to consider any other considerations contained in section 60CC, as it is not in the best interest of the children to spend time with the father.
Consideration must be had as to what time if any is to be spent between the father and the children.

Should any time occur between the father and X?

As succinctly put by the Full Court in Moose at [79] now that a finding has been made as to unacceptable risk is it “possible or appropriate to make orders to promote a meaningful relationship for the children with the father both in the shorter and more significantly the longer term.”
I find that because of the finding that the father poses an unacceptable risk to X, then an order cannot be made for unsupervised time as the child cannot be guaranteed to be safe from harm from the father in an unsupervised setting.
The issue then is whether time is to be supervised or whether time is to occur at all.

Supervised time

As indicated earlier supervised time proved difficult to all concerned.
For the father, he did not see supervision as necessary and was very disparaging of the ICC staff as evidenced by the following comments:-
a)“I no longer have confidence in the judgments of observations made by inept, unqualified staff with a high turnaround…I have become very doubtful of future accuracies made by inept staff of behaviours regarding my son….they are a business….the workers enjoy being paid.” (Email father to ICL dated 21 August 2013).
b)“Also I was not impressed by what was being implied by my son’s reaction when I arrived at the centre. Firstly the observations made by ICC staff were not accurate and secondly the way this inaccurate observation by ICC staff was construed…was totally inaccurate.” (Email father to mother’s lawyer dated 21 August 2013)
c)“Parties should note that one staff member at ICC has very noticeable and significant self-harm/mutilation marks (self cutting) on her entire forearm, with a cigarette lighter burn imprint on her hand, between her index finger and thumb. These are the kind of people working there and making observations on my son and behaviours. This is shameful, and I do not trust the observations or abilities …”(Email father to mother’s lawyer dated 21 August 2013)
For the mother, the father posed a constant threat with the father arriving early and the father leaving early resulting in encounters between the parties outside of the contact centre including the father tail-gating the mother and waiting for her on the side of the road.
For X, the father was sometimes late, or a no show, would return X early, would not change his nappies promptly and fed him foods which the mother had told the father the child might be allergic to.
For the contact centre, the father never cleaned up after himself, was not prompt in looking after X and embroiled the staff in conversations asking questions that could not be answered.
Since the father elected not to supervised spend time with X in August 2013 after unsupervised time was suspended, the father has repeatedly reiterated his position that he will not spend time with the child as a contact centre if so required:-
a)“I will certainly not be returning to a contact centre for supervised visits. This would be outrageous and unwarranted, and detrimental to X, in numerous ways……I will CERTAINLY NOT and I repeat, I will CERTAINLY NOT resume back at a contact centre for supervised visits with X…” (Email by father to ICL dated 4 August 2013)
b)“I will no longer travel to (omitted) contact centre for changeovers for reasons already mentioned…”(Email father to ICL dated 21 August 2013)
c)“I will not be contacting the (omitted) contact centre again.” (Email father to ICL dated 18 September 2013)
d)“I will state for the record, I will never return to the contact centre….and would definitely limit any further development of the relationship that I have with my son that could only be gained from outside the centre, I do not want X to experience a regression of the relationship already developed.” (Email father to ICL dated 29 October 2013)
During the first day of hearing the father informed the court that a possible order for supervised time was “absolutely ridiculous” and that he was “not going to comply.”
It was only on the third day of hearing that the father agreed to use a contact centre but in the context of supervised visits for a short period of time as a lead in to unsupervised time.
As a finding has been made that unsupervised time poses an unacceptable risk to X, then is supervised time the solution?

Conclusion on supervised time

I find that supervised time is not in X’s best interests.
I base this finding on the following:-
a)The father has previously failed to comply with orders for supervised time in the past.
b)The father has previously failed to comply with the conditions imposed by the contact centre to ensure safety for the child and the parties.
c)It is unlikely given the father’s overall attitude to contact centres and his view that supervision is unnecessary that the father will comply with any future orders by the court for supervised time or comply with the requirements of any contact centre.
d)The evidence indicates that the father was unable to adequately meet the child’s needs at a contact centre.
e)As the child gets older, a contact centre, given the nature of the father, will be able to do little to prevent the father from speaking inappropriately to the child about his views on such matters as to the mother.
f)Long term supervision orders are an undesirable outcome for a child.

Future spend time arrangements for the child

As unsupervised time cannot occur due to unacceptable risk and as a finding has been made that supervised time is not in the child’s best interests, then the only option available to the court is for an order that the father spend no time with the child and not communicate with the child.
The family report writer supported this proposition stating in the May 2014 family report at [60] that “I cannot recommend that Mr Yardley spend time with X in the foreseeable future.”
I give significant weight to the opinion of the family report writer that it is in the best interests of the child that time between the father and the child not occur.
Whilst this will be devastating for the father, the court finds that it is the outcome that ensured that X’s best interests are met.
As to future time, this is an unknown.
As expressed by the family report writer at [60] of the May 2014 family report “X may benefit from spending time with his father in the future, but I cannot now determine when that might be.”

The mother has also pondered what could happen in the future.
In answer to questions in cross-examination the mother made the following comments:-
ICL - See, with a no-time order, the father’s case is that X will never know his father; what steps can you do to address what X’s needs might be in that regard
MOTHER - I already do show X pictures of his father and he knows that that is his dad. I guess with regards to facilitating a relationship, I can just ensure that there’s always a positive, of anything that I say is positive to him, and that way when he becomes of an age, he can make his own decisions regarding a relationship with his dad. To always keep that open at that time but ensure his safety while I can.
HER HONOUR - Thank you. Can I just ask, just leading off the last question that was asked of you by the independent children’s lawyer, you said that you will always be positive to X about his father?
MOTHER - Yes.
HER HONOUR - What are you going to do the day that X asks you – and I imagine the day won’t be too far away – about, “Where is dad and why can’t I see dad?” How are you going to answer that? Have you given that any thought?
MOTHER - I haven’t given it a lot of thought. I guess my thoughts have been on the processes we have been dealing with. But he wouldn’t need to be – yes, he doesn’t need to know any of what has actually occurred, and come to the point at present. I guess I’m waiting for a decision and then I will decide from there.
HER HONOUR - So you don’t have a view as to how you might address that question if it was asked of you by X about dad?
MOTHER - I guess I – there’s many ways I could do it, in regards to that he obviously has a new partner now, he has other children. So, you know, I could explain it to him in that manner. There is no need for me to go into other things. There are gentler ways that I can, I guess, mould his views.
HER HONOUR - So you would always put a positive spin on it; is that what you are saying?
MOTHER - Yes. Yes.
HER HONOUR - You mentioned that when X comes of an age, he can make his own decisions?
MOTHER - That’s right.
HER HONOUR - When do you consider X will be at an age where he can? And I know it’s hard, we’re talking about a very young child, but have you given thought as to when you think there would be a time where you would facilitate a meeting, say, between dad and X, if that was what X wanted?
MOTHER - I guess it also depended at that point in time with the state of the father and how he was. If it was still progressing the way it has, then it may be older rather than younger. If that was the case and it still kept escalating the way it is, then it definitely wouldn’t be before high school…..But he needs to be of an age that he asks and it’s something he wants. And then I guess I could have the conversation with him, and ask him at that age as well if he would like to.
HER HONOUR - And it would also depend on his maturity?
MOTHER - That’s correct.
I am satisfied that the mother is prepared to adopt a measured and child focussed approach to what future time may occur between the father and the child and that in the meantime the mother is taking steps to ensure that the child is aware of his biological father.
Although not able to be part of the child’s day to day life, orders have been made as suggested by the mother and supported by the ICL, whereby the father is provided with photographs of the X every six months together with a report as to the child’s milestones.

I certify that the preceding two hundred and ninety five (295) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date: 3 February 2015

[2015] FCCA 184

3 February 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies

Procedural Fairness