appellant. Orders made: (1) Child to live with mother; (2) Mother to have sole parental responsibility; (3) Child to spend defined time with paternal grandparents; (4) All parties restrained from causing or...
Key principles
The paramount consideration in determining parenting orders is the child's best interests (ss 60CA, 65AA Family Law Act 1975 (Cth)).
The presumption of equal shared parental responsibility under s 61DA does not apply where there are reasonable grounds to believe a parent has engaged in family violence (s...
Family violence has a pervasive effect upon children even if they are not direct victims or witnesses; exposure to a climate of violence and dominance is damaging to emotional...
The benefit of maintaining a relationship with a parent must be weighed against the need to protect the child from harm (s 60CC(2)(a) vs s 60CC(2)(b)).
Issues before the court
Whether the presumption of equal shared parental responsibility applies or is rebutted
Whether the child should spend time with the father
Whether the father was denied procedural fairness by proceeding in his absence
Plain English Summary
This case involved a 5-year-old boy whose parents had separated. The father had a long history of violence, drug use, and criminal behaviour, including threatening to kill the mother and child. Initially, the parents agreed to interim orders for the child to live with the mother and spend supervised time with the father at the grandparents' house. However, the mother later stopped following these orders, and the father withdrew from the court case. The paternal grandparents then became involved, seeking to care for the child, but eventually agreed with the mother that the child should live with the mother and have no contact with the father due to safety concerns. The court agreed, finding that the father posed an unacceptable risk of harm to the child. The court made orders giving the mother sole parental responsibility, allowing the child to spend time with the grandparents, but prohibiting any contact with the father. The court also confirmed that it was fair to proceed with the case even though the father was not present, as he had chosen not to participate.
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Whether orders should be made restraining contact between child and father
Cited legislation
1 cited instrument linked from this judgment.
Judgment (53 paragraphs)
[1]
Stormount & Stormount and Ors [2012] FamCA 83 (2 March 2012)
FAMILY LAW - CHILDREN - parental responsibility - with whom a child shall live and spend time or communicate - father withdrew from proceedings - paternal grandparents intervened - consent orders - agreement of all parties other than the father that the child should spend no time nor communicate with father - mother's contravention of prior interim consent parenting orders - father's solicitor transferred his representation from the father to paternal grandparents - finding father not denied procedural fairness - child has a meaningful relationship with both parents but has a more valuable and significant relationship with mother - need to protect child from risk of harm occasioned by the father - father has protracted history of violence and other criminality - father's continuing use of illicit drugs and misuse of alcohol - father's history of family violence & threats of harm towards child, mother, mother's other children and the members of the extended maternal family - finding father continues to pose an unacceptable risk of physical and psychological harm to the child - presumption of equal shared parental responsibility rebutted - sole parental responsibility allocated to mother and child to live with mother - orders for child to spend time with paternal grandparents - orders restraining the parties from permitting the child to spend time or communicate with father
(1) With the consent of the applicant mother, the interveners and the Independent Children's Lawyer, it is ordered in accordance with the document entitled "Minutes of Orders" signed by the parties and/or their legal representatives, which is marked Exhibit B and placed with the Court file:
1.1 That the child H born ... January 2007 live with the Mother.
1.2 That the mother have sole parental responsibility for the child - H.
1.3 That the child H born ... January 2007 spends time with the paternal grandparents defined as but not limited to the following, or as agreed between the parties:-
[18]
1.3(a) Commencing 2nd March 2012 on each third weekend of the NSW gazetted school term from the conclusion of school on Friday to the commencement of school the following Monday
[19]
1.3(b) From 5.00pm on the Tuesday of the first week of the March/April June/July and September/October school holiday periods until 9.00am on the following Saturday.
[20]
1.3(c) From 9.00am on the 4th of January to 9am on the 8th of January each year.
[21]
1.3(d) From 4.00pm on the third weekend in January to 9.00am the following Monday.
[22]
1.3(e) On Christmas Day between 9.00am and 12.00 midday.
[23]
1.3(f) On Fathers Day between 9.00am and 12.00 midday.
[24]
1.4 Order 1.3(a) herein shall be suspended during the NSW gazetted school holiday periods in which 25th December, 3 January, Easter, 16th June and Mother's Day falls, in which case the weekend time is postponed to the following weekend.
1.5 The paternal grandparents are permitted to attend upon extra-curricular activities and ensure that the child attends upon such activities whilst he is spending time with them.
1.6 Order 1.3(a) herein is deemed to commence on the 2nd weekend of the NSW gazetted school term.
1.7 Such orders are to be implemented by either of the paternal grandparents collecting and delivering the child to the mother's residence, except during periods as described in 1.3(a) herein when he should be collected and returned to his school.
1.8 The mother, father and paternal grandparents are restrained from causing or allowing the child H to have any contact or communication whatsoever with the child's father Mr C Stormount.
(2) Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
(3) The Independent Children's Lawyer is discharged upon the expiration of any applicable appeal period.
(4) Any and all outstanding applications are dismissed.
[25]
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stormount & Stormount and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
[26]
Sometimes parenting disputes over children change complexion dramatically as the proceedings develop. This was such a case.
The proceedings were commenced with the applicant mother and respondent father in controversy over the amount of time their only child would spend with the father. It was agreed the child would live with the mother and she would have sole parental responsibility for the child.
The father withdrew from the proceedings, but the mother then altered her position, advocating for an injunction against the child spending any time with the father.
An application was belatedly made by the paternal grandparents to intervene in the proceedings. They proposed that they have exclusive parental responsibility for the child, that he live with them, and that he spend substantial and significant time with the mother.
Leave was granted for the paternal grandparents to intervene in the proceedings, with the consent of the mother and Independent Children's Lawyer. Agreement was then reached for the mother to have sole parental responsibility for the child, for him to live with the mother, and for him to spend some time every few weeks with the paternal grandparents.
There was residual dispute, confined to whether the child should spend any time with the father, and if so, the circumstances under which it should occur, but part way through the trial that issue was also compromised. The mother, paternal grandparents and Independent Children's Lawyer agreed the child should not spend any time with the father in light of the father's present circumstances.
A minute of orders, reflecting the agreement reached between the mother, paternal grandparents and Independent Children's Lawyer, was tendered.[1]
However, although absent, the father was still a party to the proceedings. It therefore remained necessary to deliver reasons explaining why the orders mutually proposed by all but the father meet the child's best interests.
[27]
The mother and father commenced a relationship in 2004, married in February 2007, and finally separated in February 2011.[2]
The mother had two elder children, but the child who is the subject of these proceedings was born in January 2007.[3] He is now aged 5 years.
Following final separation in February 2011, the mother commenced these proceedings in May 2011.
Interim parenting orders were made on 25 July 2011, with the consent of the mother and father, relevantly in the following terms:
[28]
The child live with the mother (Order 1.2);
2. The child spend time with the father each alternate weekend and each intervening Sunday, at the home of the paternal grandparents and with one of the paternal grandparents to always be present (Order 1.3);
[29]
The child to be exchanged between the parents at a designated public venue on the Central Coast of NSW in reasonable proximity to their homes (Order 1.3(v)); and
[30]
The parents to submit to urinalysis at the request of the Independent Children's Lawyer (Order 1.4).
Regrettably, the orders were not the subject of faithful compliance.
In about late September 2011 the mother ceased compliance with the orders requiring her to ensure the child spent time with the father. Although the mother asserted she had good reason to take such unilateral action, she made no application to amend the interim parenting orders. The mother deposed that she instructed her solicitor to notify the father's solicitor of her intention,[4] but there was no evidence that her reasons were explained to the father. Indisputably, the Court was deprived of any explanation for the deliberate contravention of its orders and any opportunity to review the continuing suitability of the interim orders.
By the time of trial on 20 February 2012, but for a short consensual visit with the father and other members of the paternal family on 18 December 2011,[5] the child had spent no time with the father since late September 2011.
There was some factual debate about the parties' compliance with the order requiring their submission to urinalysis. The Court was informed on 20 October 2011, without contradiction, that there was substantial non-compliance with the urinalysis order by both parents.[6] However, the mother later deposed to her compliance with the Independent Children's Lawyer's requests, and the negativity of her results.[7] Her evidence was unchallenged. No evidence was adduced about the father's compliance with the orders, which I impute he continues to flout.
[31]
The mother adhered to her proposal that the child should not spend any time with the father. Her proposal enjoyed the support of the Independent Children's Lawyer. The paternal grandparents were also drawn to that view following cross-examination of the paternal grandmother.
The paternal grandparents abandoned their former position that the child should spend time with the father on certain provisos - first, the time spent by the child with the father should occur at times when the child is already spending time with them, and secondly, the child's time with the father should be supervised by at least one of them.
The mother relied upon her affidavit filed on 20 December 2011, the affidavit of the maternal grandfather filed on 20 December 2011, and the affidavit of the Family Consultant affirmed on 21 September 2011, to which her Family Report was annexed.
The paternal grandparents relied upon their affidavits filed on 17 February 2012. No issue was taken with respect to the collusion between the paternal grandparents over their evidence, manifest from the paternal grandfather's admission of reading and adopting the evidence of the paternal grandmother,[8] but the flaw cannot be permitted to pass without mention. The evidence of witnesses should be prepared separately and the witnesses should not discuss their evidence (see Day v Perisher Blue[2005] NSWCA 110; (2005) 62 NSWLR 731 at 746, 750).
No evidence was separately adduced by the Independent Children's Lawyer.
The Family Consultant, the mother and the paternal grandmother were each cross-examined. No questions were asked of the maternal grandfather. Agreement was reached, exclusive of the father, about resolution of the proceedings prior to the intended cross-examination of the paternal grandfather.
The father remained a party to the proceedings because he did not discontinue the orders proposed in his Amended Response, but he did not attend Court to prosecute his proposal. The circumstances of his absence from the proceedings require explanation.
[32]
The father filed an Amended Response on 13 January 2012, in which he notified his agreement to all of the parenting orders previously proposed by the mother in her Amended Initiating Application filed on 30 August 2011.
Presumably for that reason, despite the procedural orders made on 20 October 2011 requiring him to do so, the father did not file any affidavit material in readiness for the trial set down for 20 February 2012.
The father's former solicitor filed a Notice of Ceasing to Act on 17 February 2012, just prior to the commencement of the trial.
That same solicitor then became the solicitor on record for the paternal grandparents, who filed their Application and affidavits on the same day.
Following the grant of leave to the paternal grandparents to intervene in the proceedings, the trial proceeded in the absence of the father, with the parties apparently satisfied the father had not been denied procedural fairness.
I am similarly satisfied the father was not denied procedural fairness and that it was appropriate for the trial to proceed. The Court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz(2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor[1979] HCA 38; (1979) 143 CLR 1 at 4). The trial had been fixed for several months and none of the other parties sought that it be adjourned. Additionally, the father was well aware that the outcome of the trial remained contentious, but chose not to participate. His decision to absent himself from the trial was an informed and voluntary one.
Although the father may have been ignorant of the mother's altered proposal to restrain his further involvement in the child's life, that such an outcome was possible was evident from the contents of the Family Report. It was clear from perusal of the Family Report that the Family Consultant did not recommend adoption of the orders previously proposed by the wife and agreed by him. He was therefore on notice that the Court may not make orders of the sort proposed by the mother in her Amended Application filed in August 2011, which he sought to adopt when he filed his Amended Response in January 2012. The Court is not bound to the selection of parenting orders from only the suite of orders advocated by the parties, either individually or jointly. The Court is obliged to make the parenting orders considered to be in the child's best interests (see ; at 256-260, 284-285, 263).
[33]
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) ("the Act"). The Act defines the meaning of a "parenting order" (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child's best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child's parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
[34]
CHILD'S BEST INTERESTS - PRIMARY CONSIDERATIONS
[35]
The child has a relaxed and happy relationship with the mother.[10]
The child's relationship with the father is clearly not as close as the one he enjoys with the mother. The Family Consultant observed the child to separate anxiously from the mother and initially hide from the father.[11] The child warmed to the father, accepting the father's physical intimacy and enjoying his company,[12] but remained impatient to rejoin the mother.[13]
The child has meaningful relationships with both parents, but the relationship he has with the mother is more valuable and significant. So much is recognised by uniform agreement that the child should live with the mother and the allocation to the mother of sole parental responsibility for him.
The focal point of this litigation was whether the benefit the child is likely to derive from maintenance of his existing relationship with the father is outweighed by the need to protect the child from the risk of harm occasioned by the father. The agreement posited by the mother, paternal grandparents and Independent Children's Lawyer necessarily means they all agree that the need to protect the child from harm does outweigh the desirability of maintaining the relationship between the child and the father. I agree the evidence warrants that conclusion.
The father's troubles are long-standing and multi-faceted. Broadly stated, the father has a protracted history of violence and other criminality, overlayed by his continuing use of illicit drugs and misuse of alcohol.
The father has made prior admissions about his commencement of illicit drug use when only an adolescent. More recently, many years later, drug use caused the termination of his employment.[14] The father conceded his current drug use to the Family Consultant,[15] vindicating the inference that arises from his refusal to comply with the Independent Children's Lawyer's requests of him to submit to urinalysis.
The father's past efforts to detoxify and abstain from further illicit drug use have failed.[16] The paternal grandmother confirmed the father had participated in numerous drug and alcohol rehabilitation courses under the auspices of the NSW Probation and Parole Service as part of his sentences, but the father had been unable to achieve reformation.
[36]
CHILD'S BEST INTERESTS - ADDITIONAL CONSIDERATIONS
[37]
The child is too young and immature to express any view about his parenting arrangements. For that reason, the Family Consultant did not raise the issue with him.[50]
As with the mother, the child has a relaxed and happy relationship with the maternal grandmother and his half-brothers.[51] They and the maternal uncle are significant persons in his life.[52]
The child also enjoys a warm relationship with the paternal grandparents, who are significant persons in his life as well.[53]
The orders ensure the child is able to foster all of those relationships.
The mother is willing and able to facilitate and encourage close and continuing relationships between the child and all members of the paternal family other than the father. She has proven that repeatedly. The mother complied with the interim parenting orders for some months, and willingly arranged an alternate visit to make up for a missed visit through sickness.[54] She also agreed to take the child to meet with members of the paternal family just prior to Christmas 2011 when she was not obliged to do so.[55]
The mother's abiding concern has been about the father, not the wider paternal family. When the mother consented to the interim parenting orders in July 2011, it was on the basis that the child and father must spend time together at the home and in the presence of the paternal grandparents.[56] She must have trusted them then and she must still trust them now, otherwise she would not have reached agreement with them about the time the child should spend with them.[57]
The mother is fearful of the father's volatility and unpredictability - even disclosing to the Family Consultant her fear the father could murder the child, her, or her other children.[58] I am satisfied her fear is neither disingenuous nor unreasonable. The father has made threats of that kind on several occasions, which is corroborated by the mother's children,[59] the maternal grandfather,[60] and independent records of the NSW Department of Family and Community Services.
[38]
The presumption of equal shared parental responsibility does not apply because of the compelling evidence of family violence (s 61DA(2)).
The allocation of parental responsibility for the child is informed by his best interests, about which there is unanimity. The mother, paternal grandparents, and Independent Children's Lawyer all agreed the mother should have sole parental responsibility for the child.[69] That was also the view of the Family Consultant.[70] It was also the order to which the father indicated his consent in the Amended Response he filed in January 2012, only weeks before the trial.
The child's best interests dictate that the mother should have sole parental responsibility for him.
The child should also live with the mother. That too was the unanimous opinion of all parties, the Independent Children's Lawyer, and the Family Consultant.
I am satisfied the child's best interests are promoted by the retention of his loving relationships with the paternal grandparents, who are capable of meeting his physical, intellectual, and emotional needs during the visits he will experience with them. The agreement reached between the mother, paternal grandparents, and Independent Children's Lawyer about the amount of time spent by the child with the paternal grandparents is satisfactory.
I am satisfied the child's best interests are promoted by him not spending any time with the father and by an absence of communication with the father.
The Family Consultant stated emphatically that the child should spend no time at all with the father until the father had proven his rehabilitation[71] and by the completion of cross-examination her opinion was steadfast. The mother and Independent Children's Lawyer agreed. The paternal grandparents were also persuaded to that opinion as the evidence unfolded.
The orders therefore restrain the parties, including the father, from causing or permitting the child to spend time with the father.
The orders extend the prohibition to preclude the parties from causing or permitting the child to communicate with the father, consistently with the opinion of the Family Consultant[72] and the agreement of all parties other than the father.
[39]
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 2 March 2012.
Orders made: (1) Child to live with mother; (2) Mother to have sole parental responsibility; (3) Child to spend defined time with paternal grandparents; (4) All parties restrained from causing or permitting child to spend time or communicate with father; (5) ICL discharged after appeal period.
Moreover, the paternal grandparents each deposed to having discussed at length with the father their intended application in respect of the child, which application was repugnant to the orders earlier sought by the mother, with which he had agreed. The orders they proposed were radically different. In fact, he must have known from his discussions with the paternal grandparents that they did not seek any order expressly providing for the child to spend time with him, but rather sought orders expressly reserving parental responsibility for the child solely to themselves. The father was therefore on notice of a substantial controversy between the mother and paternal grandparents over the child and he did not seek to participate in it. Rather, he gave his blessing to the paternal grandparents.[9]
The fact that the father's former solicitor seamlessly transferred his representation from the father to the paternal grandparents corroborates the absence of any conflict of interest between the father and paternal grandparents. Unless the father had confirmed instructions with the solicitor to abandon his former position and adopt the proposal of the paternal grandparents it would have been impossible for the solicitor to have accepted instructions to act for the paternal grandparents.
The paternal grandmother also said when cross-examined that she and the paternal grandfather had spoken to the father about the proceedings. She said the father had intended attending Court on the first day of trial but did not do so because of a work commitment which, it transpired, involved working for the paternal grandfather in his business. The paternal grandmother confirmed that the father was "very happy to support our application for access to our grandson". The paternal grandmother also confirmed that the father would be "disappointed" but would "understand" and be "in agreeance (sic)" if the Court was persuaded to make an order restraining the child's interaction with the father, as the mother and Independent Children's Lawyer proposed.
There could be no doubt that such a prospect was therefore squarely raised with the father by the grandparents during the trial, because the final positions of the mother and Independent Children's Lawyer were not revealed until the commencement of the trial. The father still chose not to attend Court and participate in the proceedings.
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court's discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
It would be superficial to attribute all the father's past criminal conduct to intoxication by drugs or alcohol, but by implication, his propensity for intoxication has exacerbated the problem.
The father's criminal record[17] is testament to his regrettable past. For a period extending back over more than 10 years the father has been convicted and sentenced many times for offences involving intimidation of police officers, assaults, destruction of property, drink/driving, and offensive language. His sentences have included suspended terms of imprisonment, periodic detention, community service orders, good behaviour bonds, and fines.
The father's criminal record discloses his last criminal conviction in July 2009, but the Family Consultant referred to more recent offences.[18]
As would be apparent from such a litany of offences, some of the father's misconduct has been directed towards members of the community at large, but some has also been directed towards the mother and the mother's older children.
The mother adduced evidence of a catalogue of historical and recent offences committed by the father. Her evidence was unchallenged and uncontradicted and so I accept it as truthful and accurate.
In 2004 the father punched the mother in the face and pushed her face into a cupboard in the presence of one of the mother's children.[19] That child confirmed the incident in consultation with the Family Consultant.[20]
In June 2005 the father assaulted one of the mother's children, which resulted in a family violence order being made against the father in favour of the victim.[21] The child victim recited a more violent version of that incident than even the mother believes.[22]
In July 2005 the father assaulted the mother by grabbing her around the neck and strangling her. So frightened was the mother that she and one of her children jumped out of a window to escape the father's attack.[23]
In January 2007 the father tried to punch the mother but was physically restrained by a male friend.[24]
In February 2007, at or about the time of the parents' wedding, the father threw a telephone at the mother and stomped on her foot.[25]
In 2009 the father assaulted the mother by pulling a clump of hair from her head and repeatedly punching her in the face whilst she was driving a car containing both of them and the child.[26] There can be no doubt about the accuracy of the mother's evidence. The paternal grandmother admitted in cross-examination that the mother made a contemporaneous complaint to her about the incident. The mother was also able to show the Family Consultant the clump of hair she had kept and photographs of her blackened eye.[27]
In April 2010 the father taunted one of the mother's children, following which that child made primitive preparations to hang himself.[28] I infer the child's alarming emotional turmoil was, at least in part, due to the father's reprehensible conduct.
In February 2011, at or about the time of the parent's final separation, the father flew into a rage. He said "no wonder people kill their wives", spat in the mother's face, pushed the mother and children out of the house, and began smashing chattels within the house. The child witnessed the incident and was distressed by it. Clearly not in control of his emotions, the father screamed at the child "Fuck off, I don't want to ever see you again".[29]
In the aftermath of the parent's separation the father stalked the mother and sent her a text message saying "I'm going to kill you and kill [the mother's male friend] in front of his children".[30] Such vile threats have been made numerous times by the father.[31] The maternal grandfather confirmed to the Family Consultant that he too had received text messages from the father threatening their lives.[32] The father even threatened to shoot the mother in a conversation last year with a staff member of the NSW Department of Family and Community Services.[33] Obviously, the father's behaviour can be utterly unrestrained.
Following separation in February 2011 the father was charged with assaulting the mother.[34] A family violence order was also made by the NSW Local Court against the father for the protection of the mother, her two children, and the child,[35] which order was made in the form of a final order on 8 November 2011 for a period of two years. Despite the existence of the family violence order, the father's behaviour has hardly abated. He continued to act in contravention of the order.[36]
The mother's allegations against the father of persistent family violence are corroborated independently by the mother's two older children, who both conferred with the Family Consultant. They reported witnessing the father's physical violence against the mother, being the subject of the father's physical violence themselves, and witnessing the father's frequent illicit drug use.[37] Their demeanour was apparently convincing to the Family Consultant,[38] as was the mother's.[39]
Many of the mother's allegations against the father were also independently corroborated by the maternal grandfather.[40] None of his evidence was challenged or contradicted either.
An apprehended violence order has also been made against the father for the protection of a woman with whom he was romantically associated after separating from the mother.[41] Such protective orders are seemingly a hallmark of the father's fractured domestic relationships.
When the history of family violence was put to the father for his comment by the Family Consultant, the father denied all physical violence and also denied he had been any threat to the mother and her family.[42] In view of my acceptance of the truth and accuracy of the mother's evidence on the issue, it follows that the father's evidence must probably be false. Further, his denials could not rationally have been inadvertently false, they must have been deliberately so.
The Court has long accepted as correct that family violence has a pervasive effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. It is wrong to assume that family violence can only be relevant to parenting proceedings if it is directed at the children or takes place in their presence. Violence associated with a pattern of dominance by one parent over another is insidious. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance from witnessing abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG(1994) FLC 92-515; (1994) 18 Fam LR 255 at 261; Marriage of Blanch[1998] FamCA 1908; (1999) FLC 92-837; (1998) 24 Fam LR 325 at 333-336; B & K[2001] FamCA 880 at [32]; B & B[2003] FamCA 274 at [33-37]; Amador v Amador[2009] FamCAFC 196; (2009) 43 Fam LR 268 at [95]).
Those observations are apt to describe the circumstances at hand. Unfortunately, there seems little prospect of the father addressing his behavioural shortcomings. That is evident from his lengthy list of criminal convictions, his tendency to resort to violence when provoked, his mendacity about his commission of historical and recent family violence, his consequent lack of contrition, and his continuing illicit drug use. There is no impetus for change when the father neither expresses nor demonstrates any dissatisfaction with his current lifestyle and circumstances.
The paternal grandmother was impelled to admit her frustration at the father's obstinacy. She conceded that despite the best efforts of both her and the paternal grandfather to persuade him, the father had failed to undertake any of the rehabilitation measures recommended by the Family Consultant.[43] The paternal grandmother said wistfully "It's up to him. We can't ring up for him". Indeed they cannot. If the father will not commit to rehabilitation willingly, he cannot be forced.
The paternal grandmother also had no option but to concede the impulsivity of the father. She agreed he was ill tempered and encountered difficulty managing his anger. She felt the need to offer the mother advice about that situation years ago,[44] and nothing has seemingly changed. The paternal grandmother was patently disappointed in some aspects of the father's behaviour. Finally, she was brought to the brink of conceding the best interests of the child demanded that he spend no time with the father unless and until the father had reformed.
I am satisfied that the father continues to pose an unacceptable risk of physical and psychological harm to the child through potential exposure of the child to family violence, which risk will not be moderated without genuine commitment to, and proof of, reform by the father. That conclusion is consistent with the opinion of the Family Consultant[45] and either the express or implicit positions ultimately adopted by the mother, paternal grandparents, and Independent Children's Lawyer.
Presently, there is no evidence at all of any genuine commitment to reform by the father, let alone proof of its occurrence. In such circumstances there is no safety mechanism the Court can invoke to satisfactorily abate the risk of harm to the child. Accordingly, to ensure the child's safety, he is unable to spend time or communicate with the father.
Before departing the topic of the child's protection from harm it is necessary to address the allegations made by the father against the mother in that regard.
The father alleged to the Family Consultant that the mother was using illicit drugs.[46] I reject those allegations. The mother denied it[47] and adduced corroborative evidence,[48] about which she was not challenged. No contradictory evidence was adduced by any other party. In any event, such allegations are inimical to the uniform proposal that the child should live with the mother. For the same reason, I pay no heed to the bare allegation that the mother neglects the child by failing to provide him with adequate food, clothing and supervision.[49]
The father knows few boundaries and simply cannot be trusted. Shortly following separation he solemnly promised the mother in writing he would not detain the child,[62] and then did exactly that only a week or so later, necessitating the mother's preparation to commence proceedings seeking a recovery order.[63]
The mother later acted foolishly in September 2011 by taking matters into her own hands, when she decided to cease her compliance with the interim orders of the Court, but I am satisfied the mother now realises her folly and can be trusted to comply with Court orders.
The orders do not require any difficult adjustment for the child because, apart from the brief visit with numerous members of the paternal family just prior to Christmas 2011, he has not seen the father for many months. His reintroduction to the paternal grandparents will likely be an event of joy for him.
Implementation of the orders presents no practical difficulty or expense. The distance between the homes of the mother and maternal grandmother is about 10 to 15 minutes drive by car.[64] The child's school is also proximate.
The father no longer lives with the paternal grandparents. The paternal grandmother confirmed in cross-examination that the father did live with them until about 6 weeks ago, but then moved into separate accommodation owned by the paternal grandparents, which is approximately 30 to 40 minutes drive by car from their home. Given the father occupies a separate household some distance away it will be easier for the paternal grandparents to obey the injunction restraining them from causing or permitting the child to spend time or communicate with the father.
I am satisfied the paternal grandparents intend compliance with the injunction precluding interaction between the child and the father. Although the paternal grandmother previously told the mother they would not condescend to see the child without the father being present, that was said at a time of heightened emotion immediately on the heels of the parent's separation.[65] The paternal grandparents told the Family Consultant more recently in September 2011 they would see the child regardless of whether the father was present,[66] and the paternal grandmother gave evidence to that effect in cross-examination.
The father's attitude to the child and the responsibilities of parenthood is seriously deficient, which is demonstrated in numerous ways.
On any view of it, the father has paid no child support to the mother to assist in the maintenance of the child since shortly after separation,[67] notwithstanding his current employment.
Since separation, the father has also attempted to inveigle information from the mother's children and insinuate himself in their affections.[68] It was deceitful and immature of him to have done so.
For reasons best known to him, the father instructed the paternal grandmother not to reveal his residential address to the mother, to which instructions she adhered during her cross-examination. The paternal grandmother confirmed the father did not adopt such secrecy for fear of harm, but rather because "he has moved on with his life and wants privacy".
Unstated but inferred was the father's intention to remove himself from the lives of the mother and the child, other than the extent to which he might maintain some occasional contact with the child when he spends time with the paternal grandparents. Such inference also springs from his decision to withdraw from the litigation and merely indicate his support for the paternal grandparent's application.
It cannot be forgotten that the father yelled at the child during the heat of matrimonial separation "Fuck off, I don't want to ever see you again". It is difficult to imagine any empathetic and insightful parent saying such a thing to their child, even in the most stressful or tortuous circumstances. One is left to impute that feelings of indifference to the child may really lie at the core of the father's thoughts.
Those instances of irresponsibility discredit the father and call into question his capacity to cater to the child's physical and emotional needs, quite apart from the other aspects of his behaviour already canvassed.
Contrary to the recommendation of the Family Consultant, I decline to make the order which provides for the child to spend time with the paternal grandparents conditional upon their compliance with the injunction.[73] Not even the mother proposed such an onerous, self-executing order. The paternal grandparents should, however, be aware that breach of the injunction would be a matter of serious concern, rendering them liable to penalty and raising the prospect of amendment of the orders so as to avoid recurrence.