Acuna and Najar (No.3)
[2019] FCCA 3707
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACUNA & NAJAR (No.3) | [2019] FCCA 3707 |
| Catchwords: FAMILY LAW – Parenting – impact of father’s behaviour on children and mother – father’s insight – final orders. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Carlson & Fluvium [2012] FamCA 32 |
| Applicant: | MS ACUNA |
| Respondent: | MR NAJAR |
| File Number: | BRC 11546 of 2017 |
| Judgment of: | Judge Spelleken |
| Hearing dates: | 29 & 30 July and 4 October 2019 |
| Date of Last Submission: | 4 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr Brasch of Queens Counsel |
| Solicitors for the Applicant: | Pippa Colman & Associates Law Practice Pty Ltd |
| The Respondent appeared on his own behalf |
| Counsel for the Independent Children’s Lawyer: | Ms Horsley on 29 & 30 July 2019 Ms Oakley on 4 October 2019 |
| Solicitors for the Independent Children’s Lawyer: | CNG Law |
ORDERS
That all previous Parenting Plans and Orders be discharged.
That the mother have sole parental responsibility for the long term and day-to-day decisions concerning the care, welfare and development of the children X born 2010 and Y born 2012 (“the children”) including:
(a)The education of the children, both current and future;
(b)The religion of the children; and
(c)The health of the children.
That the children shall live with the mother.
That the children spend no time with the father.
That within fourteen (14) days of the date of these Orders the mother shall provide to the father an address, or post office box, to which the father may send a card and gift to the children on the following occasions only:
(a)The children’s birthdays;
(b)Easter;
(c)Christmas;
(d)Significant milestones, such as graduations.
That within fourteen (14) days of the date of these Orders the father shall provide to the mother an address to which the children may send a card and gift to the father on the following occasions, or any occasion requested by the children:
(a)Father’s birthday;
(b)Easter;
(c)Father’s Day;
(d)Christmas.
That pursuant to section 68B of the Family Law Act 1975 the father be restrained by injunction from:
(a)Attempting to contact the children X born 2010 and Y born 2012 (“the children”), the mother or any members of the mother’s family by any means necessary, including through any third party;
(b)Harassing, stalking or intimidating the children, mother or any members of the mother's family, including but not limited to via the internet or social media;
(c)Approaching, entering or coming within one hundred (100) metres of any place where the children might reside from time to time;
(d)Approaching, entering or coming within one hundred (100) metres of any place of employment where the mother may work from time to time;
(e)Approaching, entering or coming within two hundred (200) metres of any school or before or after school day care or vacation centres which the children might attend or at which any of the children are enrolled;
(f)Approaching, entering or coming within two hundred (200) metres of any place where the children might be engaged in any school related, extra-curricular or place of employment;
(g)Making any reference to or comments about the children/mother or her family on any social media or other form of publication whether verbal, written or other.
That pursuant to section 68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the father, against whom the injunction is directed in Order 7 above has breached the injunction by causing or threatening to cause bodily harm to the children, or harassing, molesting or stalking the children, may arrest the father without warrant.
That the mother and father are granted leave to provide a copy of any family report and the report of Dr A to any treating General Practitioner or mental health practitioner.
That pursuant to section 11 of the Passports Act 2005 the children X born 2010 and Y born 2012 be permitted to leave the Commonwealth of Australia.
That the requirement for the father’s signature on the passport application for the children X born 2010 and Y born 2012 be dispensed with and an Australian passport issue for the child.
That the children X born 2010 and Y born 2012 be permitted to leave the Commonwealth of Australia alone or in the company of the mother MS ACUNA born 1985.
That the Independent Children’s Lawyer be discharged upon the expiration of the appeal period.
That all outstanding applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Acuna & Najar (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11546 of 2017
| MS ACUNA |
Applicant
And
| MR NAJAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting application in relation to two young children, X, nine and Y seven. Their mother is the applicant and their father is the respondent. Ms Bolton, solicitor, is the Independent Children’s Lawyer.
Sadly this is a matter where I am asked by the Independent Children’s Lawyer supported by the mother, to make an order that the children spend no time and not communicate with their father other than receiving and sending cards and gifts on special occasions. The Independent Children’s Lawyer, again supported by the mother, also seeks an order that the mother be given sole parental responsibility.
The father from time to time has put various proposals to the court including the children living with him or spending equal time with him. At the conclusion of the hearing after, as I will explain later in these reasons, I gave him an opportunity to put a proposal to me about how best to reintroduce time and communication with the children, he was unable to articulate any particular proposal but said he just wanted to see X and Y. He did, again as will be discussed later in these reasons, make clear he would not take up, if it was ordered, the opportunity to spend time with the children at a contact centre.
Background
The Independent Children’s Lawyer produced a very detailed chronology of more than sixteen pages. I rely on that chronology as an accurate reflection of the background history to this matter but will refer to the relevant and significant facts contained in that chronology in this background.
The father, Mr Najar, was born in 1970 and the mother, Ms Acuna, in 1985. They commenced their relationship in about 2008 in City S where they lived until their move to the City C.
X was born in 2010 followed by Y in 2012.
The mother and father separated in March 2017 when the mother moved with the children to the maternal grandparents’ home where she continues to reside.
After separation there was, what I would refer to as, a loose arrangement between the mother and father whereby the father would see the children on the weekend from Saturday morning until Sunday afternoon. This continued until early September 2017 when the mother suspended the children’s time with the father after she became aware that he had allegedly locked Y out of his house. The father’s version was that she as only outside for about five minutes however it is the mother’s case that he went with X to the shops and on her calculation by the time he travelled there and returned home, Y would have been left for about 20 minutes.
On 7 September 2017, the father was taken to the City C Hospital by ambulance after consuming what was not an insignificant amount of alcohol over a fairly short period of time. The father, it seems from the subpoenaed records and from the evidence he gave at trial, may have fallen and caused an injury to his right eye although he told ambulance staff that he had no memory of that evening from about 7.00pm to 8.15pm.
Since that time, other than on the father’s birthday in 2017 when he spent some limited unsupervised time with the children, the mother has insisted that any time they spend with him is supervised.
For a time, the maternal grandmother assisted by supervising the children’s time with the father but on 18 January 2018, the mother instructed her solicitor to send a letter to the father suggesting that he attend at D Contact Centre for intake so that visits could commence there, supervised by the staff of D Contact Centre. That correspondence is attached to the mother’s trial affidavit filed 31 May 2019 and marked “A2”.
The grandmother supervised time on about seven occasions. At this time the mother was also facilitating a telephone call with the father on Mondays and Thursday at 5.00pm.
The current application was commenced by the mother when she filed an initiating application, notice of risk and a supporting affidavit on 1 November 2017. That application included an application for property settlement which was eventually settled by orders made on 7 September 2018 and amended on 11 October 2018.
The mother in her initiating application in summary asked the court to make these orders:
a)Sole parental responsibility;
b)The children live with her;
c)That they spend time with the father as recommended by a family report writer;
d)That they spend time with the father on special occasions.
In her notice of risk she raised these concerns about the father:
a)He did not feed children for seven hours;
b)He left Y outside, unsupervised, for 20 minutes while he left the house;
c)He consumes alcohol to excess and drives whilst under the influence of alcohol with the children in the car;
d)He has shown little interest in spending time with the children.
On 22 December 2017 the mother filed an application for a temporary protection order alleging that she finds the father’s communication with her intimidating and harassing, that he has threatened self-harm, that he shows up at her home uninvited and jumps the fence. In response the Suburb E Magistrates Court made a temporary protection order naming the mother as the aggrieved, the father as the respondent and the children were also named on the order.
The application first came before Judge Purdon-Sully on 30 January 2018. Consent orders were made on that day in the usual terms for mediation, disclosure and valuations in relation to property settlement. In relation to the parenting issues, orders were made for the children to live with the mother and to spend time and communicate with the father at all times as agreed between the parents in writing. An Independent Children’s Lawyer was appointed and the father was ordered to file a response and supporting affidavit as at that point in time he had only filed a notice of risk on 18 January 2018. In that notice, the father did not raise any concerns or allege that the children were at risk in their mother’s care. I also note he did not attend at the court hearing on 30 January 2018.
Because the orders made on 30 January were in general terms and the father did not attend, the mother instructed her solicitors to write to the father to suggest telephone calls occur on Monday and Thursday and that time commence at D Contact Centre. That letter is marked “A 3” to the mother’s trial affidavit.
From very early on after the 30 January 2018 orders for telephone time, it is the mother’s case, which will be discussed in some detail later in these reasons that the father’s communication with the children and with her during telephone calls was inappropriate and that he involved the children in adult conflict including discussing these proceedings with them.
On 6 February 2018 the Suburb E Magistrates Court made a two year protection order with extensive conditions including a non-contact provision and a prohibition on the father entering the mother’s house or work. The mother alleges in her trial affidavit that the father breached the protection order on many occasions.
In 2018 the father was charged with driving over the middle alcohol limit returning a reading of 0.146. The notes in the tender bundle provided by the Independent Children’s Lawyer (“Exhibit 4”) indicate that the father admitted to police having drunk between six to ten schooners of Carlton Mid beer between 8.00pm and 10.00pm, that he had not eaten or slept in two or three days and prior to driving had completed a twelve to fifteen kilometre run which he thought had removed the alcohol from his system. In 2018, the father was charged with driving a motor vehicle whilst on a suspended licence. Again documents produced in Exhibit 4 indicate that the father informed the police on that occasion that he believed he was able to drive until after he appeared in court and did not know his licence had been immediately suspended upon being charged with driving over the limit. In 2018, the father pleaded guilty to both charges in the Magistrates Court at Suburb E.
The mother raised concerns with her solicitors, the Independent Children’s Lawyer and her General Practitioner about X’s mental health at around this time, in particular his response to telephone calls with the father. On 9 May 2018 she obtained a referral under a Mental Health Plan from Dr F for X to see a psychologist Dr G. His first appointment with Dr G was on 25 May 2018. X continued to meet with Dr G until about the end of April 2019 and Dr G provided reports back to Dr F. Those reports are included in Exhibit 4, which will be referred to later. I also note that Dr G gave evidence at trial.
Y also attended with Dr G, the first occasion being on 22 June 2018 and again there are reports before me from her in relation to Y’s attendances.
The matter was next before Judge Jarrett on 11 June 2018. At that time the father had still not filed his response, although he had filed an affidavit on 7 March 2018. The 11 June 2018 was the first appearance by the Independent Children’s Lawyer who at that time was Ms Gomes. Further orders were made in relation to property settlement, however in relation to the children, his Honour made further orders for the father to undergo Carbohydrate Deficient Transferring (“CDT”) testing along with a number of injunctions which were made by consent as follows:
7.That pursuant to s.68B of the Family Law Act the Mother is hereby restrained, by injunction from: -
a) Consuming alcohol to excess of the legal driving limit when the children are in her care;
b) Using or consuming illicit substances or medication not prescribed for them or consuming more than the prescribed dosage;
c) Exposing the children to any adult using or consuming illicit substances
8.That pursuant to s.68B of the Family Law Act the Father is hereby restrained, by injunction from:
a) Consuming alcohol at any time the children are in his care or 12 hours prior to spending time with the children;
b) Using or consuming illicit substances or medication not prescribed for them or consuming more than the prescribed dosage;
c) Exposing the children to any adult using or consuming illicit substances;
d) Shall not leave the children unattended or unaccompanied at any time the children are in his care;
e) Shall not drive a motor vehicle with the children that is unregistered, uninsured and in an un-roadworthy condition.
9.That pursuant to s.68B of the Family Law Act the Mother and Father be and are hereby restrained, by injunction from:
a) Denigrating or causing the denigration of, the other parent or parties, or in the presence of or within hearing of, the children or raising any matter which may cause the children emotional or psychological harm;
b) Not question or ask for information about the home life of the other parent;
c) Not involve the children in any discussion of these proceedings, including but not limited to any allegation made in these proceedings, the views and wishes of the children and exposing the children to parental conflict including discussing Wills, Trusts and Estates with the children, and discussing the manner in which the children are spending time with the Father.
(emphasis added)
Along with these injunctions, orders were also made that each parent keep the other informed of their mobile numbers, names and addresses of medical and health practitioners that the children attend, authorities about the parents obtaining information from the children’s medical and health practitioners and the children’s schools/day cares they attended.
In relation to the children’s time and communication with the father, the following orders were also made by consent:
12.That the children spend time and communicate with the Father at all times as may be agreed between the Mother and Father in writing and failing agreement as follows:
a) For not less 2 hours each alternate week, on dates and time and with such frequency as can be accommodated, at the City C Family Contact Service (“D Contact Centre – Contact Service”);
b) That the Mother and Father shall within 7 days make contact with D Contact Centre and arrange for an Intake into their service;
c) The Mother and Father shall comply with the Directors of the Contact Service;
d) That the Father shall pay for the costs associated with supervised time.
13.By telephone each Sunday, Tuesday and Thursday between 3.30pm and 4.00pm, with the Father placing a call to the Mothers mobile and should the children not be available for such telephone call the Mother shall:
a) Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
b) That should the children request to speak with the other parent at any time, when the children are in their care, that parent shall facilitate the children telephoning the other parent.
In response to a request from the Independent Children’s Lawyer, the father provided a sample for CDT testing on 25 July 2018, the first of only two requests that he complied with. The results were a CDT result of 1.7%.
On 30 July 2018 the father was sentenced in the Suburb E Magistrates Court for five counts of contravening the domestic violence protection order for which he was charged on 14 May 2018. No conviction was recorded and the father was placed on a good behaviour bond for a period of three months. Documents in Exhibit 4 refer to the father having told the Registrar at the Magistrates Court that:
He would take 100 sleeping pills and end it all, later that night he left a voice message on my phone telling me he would leave a note. When the police conducted the welfare check they found him passed out drunk on the couch and were unable to locate any sleeping pills.
On 5 September 2018 the father filed a response to the mother’s initiating application seeking final orders in relation to the children as follows:
a)Equal shared parental responsibility;
b)That the children live with the mother and spend each alternate week with him; and
c)That the children share their time on special occasions between the mother and father.
When the matter was next before the court, Judge Coates made these orders:
a)The children have telephone communication with the father between 6.00pm and 6.30pm each Sunday, Tuesday and Thursday and they be provided with privacy during the call;
b)The father was to engage with a counsellor to assist him with grief and loss, impulse control, personality frailties, alcohol use and an understanding of the effect of his behaviour on the mother; and
c)The father was to have a report prepared by psychologist or counsellor and provide it to Independent Children’s Lawyer.
(emphasis added)
In response to his Honour’s order, the father attended with a Mr H, a psychologist, on 18 September 2018, 30 October 2018 and 12 November 2018. The report from Mr H, which is included in Exhibit 4, indicates that he was only prepared to comment on observations and was not willing to make any definitive statements about his psychological profile. The report indicated that ongoing treatment would focus on building further emotional regulation skills to ensure that his behaviour does not impact on the children and that he learn improved communication skills to build a constructive parenting relationship with his ex-partner. The father, Mr H recorded, indicated he was willing to engage in further counselling to address those factors. The notes go on to say that although Mr H had not formally assessed the father, he would his assess his risk of violence to the children or ex-partner to remain low should he abstain from alcohol, feel connected to his children and continue with counselling.
The notes taken from the session that occurred on 18 September 2018, being the first session, record as follows:
At one stage held strong suicide motivations but not since May (has set up Kids Trust Fund and Will).
Despite receiving a letter from the mother’s solicitors a year before on 18 January 2018, requesting that he attend for an intake session at D Contact Centre, along with eight further letters from the mother’s solicitors between March 2018 and December 2018 and nine requests by the Independent Children’s Lawyer from June 2018 to December 2018 to attend at D Contact Centre, the father did not attend there for an intake session until 28 December 2018. The notes from D Contact Centre which are included in Exhibit 4 and confirmed by a staff member from D Contact Centre who gave evidence at trial indicate that the children spent time with the father on only three occasions on 2 February 2019, 16 February 2019 and 2 March 2019 before D Contact Centre wrote to the father on 8 March 2019 informing him that as he had breached the conflict, respectful behaviour and parental conduct requirements of D Contact Centre, they were suspending his visits.
After repeated requests by the mother’s solicitors and the Independent Children’s Lawyer for the father to stop calling the children out of court ordered time and more importantly to cease speaking to the children about the proceedings and/or adult issues and to comply with the injunctions that were imposed by Judge Jarrett on 11 June 2018 in that regard, it is the mother and Independent Children’s Lawyer’s case that he refused to sign an undertaking provided to him by the mother’s solicitors and continued to engage the children in adult conflict. As a result the mother suspended the children’s telephone communication with him on 4 January 2019. That correspondence is attached to the mother’s trial affidavit and marked “A 11”. It also referred to earlier correspondence on 28 November 2018 asking the father to refrain from discussing adult and court related issues with the children. In it the mother’s solicitor also recorded that the children had reported to the mother further inappropriate conversations with them including him telling them that he would get the children to come home.
The mother’s solicitors also explained in that correspondence, not for the first time, that X was suffering from a high level of stress after telephone calls. In this regard I also note the records made by Dr G after a session with X on 25 January 2019 (after the mother had suspended the telephone communication). Those notes record the following:
X feels like his tics have improved since stopping phone calls. X told his Dad that he didn’t like what he was saying. Dad didn’t stop so X hung up.
On 18 March 2019 the father was again charged with driving a motor vehicle without a licence and the next day charged and convicted of three counts of the contravention of a domestic violence order.
On 2 April 2019 the mother filed an application in a case seeking to suspend the children’s time with the father at D Contact Centre and to suspend the telephone communication between the children and the father.
When that application in a case was before me on 16 April 2019 I did not suspend the orders for telephone time but listed the matter for a two day trial commencing in Suburb E on 11 June 2019. That trial could not proceed because there was insufficient time in the Suburb E trial list to hear the matter and so it was adjourned to Brisbane to be heard on 29 and 30 July 2019.
On 2 July 2019 the father attended with Dr A for the purpose of a psychiatric assessment. Dr A diagnosed the father with an adjustment disorder complicated by a lack of insight. He considered the appropriate treatment for the father would involve arrangements for the children to see him as he thought this would be a very powerful antidote to the stressors he had been experiencing.
The family report of Ms J was filed on 13 July 2019. In that family report Ms J recommends as follows:
a)The children live with the mother;
b)The parents have equal shared parental responsibility;
c)The parents utilise a co-parenting website to communicate about the children;
d)The mother post weekly updates about the children;
e)The mother consult with the father about decisions to be made about the children and, if agreement could not be reached the mother was to make the decision;
f)The father telephone the children twice per week and conversations be on speaker phone;
g)The father stop visiting the children's school;
h)Y spend two hours per fortnight with the father provided he can organise and pay for supervision;
i)X's psychologist work with X to manage communication with the father;
j)The mother resume a more active role in communicating with the father about matters a parent would have an interest in;
k)The father resume working with Dr K;
l)The mother also contact Dr K and make an appointment to assist in overcoming their entrenched disputing;
m)Each parent complete a Post-Separation parenting course;
n)The children's relationship with the parents be re-assessed in one year.
At trial the mother relied on the following documents:
a)Her affidavit of evidence in chief filed 3 May 2019;
b)An affidavit of her mother Ms B filed 31 May 2019;
c)An affidavit of Mr L, a private investigator, filed 31 May 2019;
d)Five video recordings including of the father driving after his licence was suspended and his attendance at D Contact Centre. Those videos were played in court and are Exhibit 7.
The father did not file a case outline but at the commencement of the trial I took him through the affidavits he had filed during the proceedings and asked if he wished to rely on them. I have taken those affidavits into account to the extent they relate to these proceedings and not the property application. They include one filed 17 March 2018, 5 September 2018 and a notice of risk filed 5 September 2018, a further affidavit and application in a case filed 29 May 2019 and a response, notice of risk and affidavit filed 26 July 2019.
The Independent Children’s Lawyer relied on the following documents:
a)An affidavit of Ms J filed 23 July 2019;
b)An affidavit of Dr A filed 24 July 2019;
c)An affidavit of Ms M filed 3 August 2018.
The Independent Children’s Lawyer produced two volumes of tender bundles which are Exhibit 4 and the mother produced a tender bundle which is Exhibit 5.
I also considered the fourteen other exhibits (excluding Exhibits 4 and 5) which include as follows:
1 3 pages of text messages between the mother and father 2 Temporary Protection Order dated 7 June 2018 made by Magistrate N in Suburb E Magistrates Court 3 Emails and correspondence in relation to the child Y being in emergency 4 Tender bundle of Independent Children’s Lawyer 5 Tender bundle of mother 6 Letter to Dr A by Independent Children’s Lawyer 7 USB of video footage of father at D Contact Centre & driving (4 files) 8 Bundle of email correspondence between the father, mother’s solicitors and Independent Children’s Lawyer 9 Copy of birthday card sent to X by the father 10 Email correspondence between the father, mother’s solicitor and ICL on 25 July 2019 re: subpoena documents 11 Email dated 19 June 2018 from Independent Children’s Lawyer to the father about D Contact Centre and private supervisor options 12 Adult Intake Assessment Form completed by the father for D Contact Centre (3 pages) dated 28 December 2018 13 Email exchange between the father and the mother’s solicitor on 16 & 17 May 2019 14 Bundle of emails between father, mother’s solicitor & Independent Children’s Lawyer about father talking about murder-suicide 15 Facebook posts of the father 16 Bundle of email correspondence between father, Mr O & Independent Children’s Lawyer which includes the Court as a recipient
The court heard evidence from the mother, the maternal grandmother, the father, Ms T from D Contact Centre, Dr G and Ms J. Dr A was not required for cross examination and the evidence in his report is discussed later.
As mentioned earlier the mother, supported by the Independent Children’s Lawyer, seeks an order that would see the children spending no time with the father and having no communication with him other than sending and receiving cards and gifts on special occasions. Although the father made no specific proposal, he asked me to make an order that would see him spending time with the children however, he made it quite clear that if I was to make an order for time at a contact centre, he would not take up the opportunity. He explained that he did not believe it was in the children’s best interests to attend at a contact centre where, to use his words “drug addicts and paedophiles” go to see their children.
By the end of day two of the trial it was clear that it was not going to finish and it was adjourned part heard to 4 October 2019. On 30 July 2019 however I heard argument from Dr Brasch of Queen’s Counsel for the mother, the father who appeared in person and Ms Horsley of Counsel for the Independent Children’s Lawyer in relation the children’s telephone time with the father. The mother pressed that I discharge or suspend the order for telephone time which was supported by the Independent Children’s Lawyer but the father pressed an order for the continuation of telephone communication. On 6 August 2019, having reserved my decision I published reasons and made orders to suspend telephone time but made an order that the father communicate with the children by Skype on Father’s Day between 4.00pm and 5.00pm except that should he be overseas on Father’s Day, he was to provide written confirmation of same. I also made an order that Y communicate with her father on her birthday between 5.00pm and 5.30pm in 2019. I made a specific order, which is order 4 of my orders dated 6 August 2019, that in the communication with the children, the father was not to speak to them about the following:
a)Anything that is not child-focused and age appropriate;
b)Holidays;
c)The children coming home;
d)Court related matters;
e)Adult-related matters including the mother’s work;
f)Criminal-related matters; and
g)Spending time with the children.
Although I am not critical of the mother, her representatives or the Independent Children’s Lawyer, the material relied on in this matter, but in particular the tender bundles are voluminous. The matter was heard over three days with many allegations and counter-allegations made about numerous incidents and communications between the parents, the father and the children’s school, the Independent Children’s Lawyer and the mother’s solicitors. I have, in considering all of this evidence, adopted the approach outlined by Justice Kent in the decision of Carlson & Fluvium [2012] FamCA 32. In that case, His Honour was, as I am here, asked to make parenting orders in a matter involving parents who had been involved in lengthy litigation and where there has been, as he described, a plethora of facts and vehemently expressed views described in voluminous material. His Honour described the initial challenge confronting him was to decide which of the myriad of factual issues or conclusions contended for required exposition and resolution to decide the orders that would be in the children’s best interests.
At paragraph 6 through 10 and at 12 of his Honour’s judgment, in this regard, he said this:
[6] Equally, in circumstances where long-held and long-propounded highly negative views of each parent of the other, fuelled by allegation and counter-allegation have been given voice over the lengthy period of this litigation, there is considerable scope for the Court to be distracted from its task of now determining parenting Orders in the child’s best interests. It is simply impossible, plainly unproductive and starkly contrary to the principles for conducting child-related proceedings enunciated in Div 12A of the Act (and the duties and powers therein expressed) for the Court to indulge each and every of the multiple issues and issues within issues that the parties have chosen to raise in one form or another over the course of this litigation.
[7] Neither this Court, nor these proceedings, are a forum for the adjudication of claims of either parent against the other in respect of past or present perceived injustices; nor are parenting Orders to be formulated with any view of redressing perceived injustice or to reward or punish either parent. Parental conduct is relevant only to the extent that it informs the assessment of parenting capacity or otherwise has weight in the determination of parenting Orders in the child’s best interests.
[8] The central task of determining parenting Orders in this child’s best interests is not an exercise in searching for disqualifying factors in either parent. Recognising that each person is unique, inevitably with strengths and weaknesses both as a person and as a parent, the enquiry is essentially to determine parenting Orders that will positively promote the child’s interests in the context of that child’s actual circumstances, including any perceived parenting weakness of either or both of the child’s parents.
[9] Unfortunately, where parties to parenting proceedings advance a litany of highly negative criticisms or propositions about each other (legitimately or otherwise) to advance their own parenting proposal or to diminish the proposal of the other, the focus on the positive aspect of the enquiry may be blurred by the extent to which it is necessary for the Court to expose and resolve those criticisms or propositions.
[10] Moreover, it must be understood that some matters of factual dispute historically, which may have assumed prominence for the parties or either of them then or since, may not be capable of clear or legitimate resolution, whether because of the state of the evidence on those issues which is advanced; or having regard to issues of credit; or otherwise may not in any event be especially relevant now to the disposition of the case.
[12] I do not see any purpose being served in otherwise listing or referring to each and every other issue of disputed fact between the parties.
As mentioned earlier when referring to the documents relied on by the parties and the Independent Children’s Lawyer in this matter, there are two volumes of a tender bundle which are Exhibit 4 and a tender bundle relied on by the mother which is Exhibit 5 both of which include many emails and other communication between the father, Independent Children’s Lawyer, mother’s solicitors, the children’s school, along with text messages and posts on social media which cover many more than 100 pages. I do not intend referring when discussing the issues I have identified below, all of those text messages, emails and/or social media posts but rather will refer to several of each.
The significant issues in this matter in my view include:
a)Does the father pose a risk of harm to the children by an order for unsupervised time or telephone communication with him;
b)Has the father’s behaviour had an impact on either or both the children and/or the mother;
c)Does the father display any insight with regard to the impact of his behaviour on the mother and/or children and would I have any confidence that moving forward he will not exposed them to harm; and
d)Is there any order that I could make which would allow the children to have some relationship or spend some time or communication with the father but mitigate the serious concerns I have for their welfare by spending time or communicating with him.
Will the children be exposed to an unacceptable risk of harm by unsupervised time and/or regular telephone communication with the father
Counsel for the mother invites me to make a finding that the father either lacks insight or does not care as to what constitutes child-focused conduct and communication with the children. I accept for the following reasons I can make that finding. As mentioned earlier I will only refer to some of the communication that is contained in the evidence before me in coming to that conclusion.
The mother in her trial affidavit referred at paragraph 40 to comments the father made to the children in telephone calls between 26 March 2018 and 18 May 2018. The content of those telephone calls which the mother argues and I accept were inappropriate include as follows:
i. On 26 March 2018, among other things:-
1. "when you're on holidays, well definitely do something"
2. "with Easter, with 4 or 5 days off we will try and make sure we see each other okay"
3. "how's mum going, is she okay? Is she sick or anything?"
ii. On 4 May 2018, among other things:-
1. "hey who hung up on us last week, was that mum"
2. "hey I talked to a lady today, who is looking after things, and we won't be able to see each other until July, alright. At the earliest she said."
3. "It's very unfortunate, actually it's very sad. I am not very happy about it but there's nothing I can do."
4. "I saw a man about getting a motorbike. Because I don't get to see you and Y, I don't need a car, and because I don't get to see you, you don't need a lift. I'm not driving you anywhere am I"
iii On 14 May 2018:-
1. "So I had to go to court today"
2. X: What is a judge?
3. "A Judge, he's a person who makes decisions [crosstalk 00:03:03] about things, yeah. So, he's making the decision on what's the right thing to do."
4. 'Cause I have to quit going to court.
So, if you've got a record, you're not allowed to do what I used to do as a job, so I don't know what I'm going to do. I'll have to talk to Mom about that and see if Mom's going to stop it or if Mom's make sure it go ahead.
I'll have to send her an email actually"
iv. On 18 May 2018, among other things:-
1. "oh well um maybe I'll get to be your dad again someday soon hopefully"
2. "so um, I have to go to court, so I might not be able to talk to you next Monday but we'll see"
3. "I have to go to court because mum doesn't like me asking to see you so often. So yeah I've got to go see a judge and the judge might tell me what is going on"
Dr Brasch took the father during cross examination to those telephone calls and whilst coy at times he did concede eventually at least that he may of made the comments on each of those occasions set out above. Given the mother’s record keeping however and the father’s concessions throughout his cross examination of making inappropriate comments to the children, the mother and others, I accept the mother’s case that the content of those telephone calls referred to above are a true reflection of what the father said to the children in those calls.
It is also clear from the content of those calls that the father’s communication with the children was not child-focused. He refers to holidays that he is hoping to enjoy with the children at a time when he knew the only order for time that was in place was for supervised time at D Contact Centre. He questions whether the mother is sick. He describes going to court and asking the mother whether she will stop the court proceedings from going ahead. He refers to sending the mother an email when he knew there was a domestic violence protection order in place preventing him from contacting the mother. There is also the very clear suggestion made by him to the children that it is their mother and her applications to the court which are preventing them from spending time with him and in turn missing out on holidays that he was planning and that they would enjoy.
Significantly in my view in relation to this issue, the father was walked through a telephone call he had with the children which was particularly upsetting for X when he discussed the five days he spent in the watch house for breaching the protection order. As Dr Brasch pointed out in her written submissions, on his own case the father conceded under cross examination that the children were too young to understand why he was in the watch house. It is also concerning to hear that in that telephone call, he refers to the horror and nasty time he spent in the watch house. He talked about there being guards everywhere and everyone else on top, not having a mobile phone and that he couldn’t do anything. In answer to a question from X about how long he might spend in jail, he answered that it could be two or three years. He also admitted under cross examination that he told the children he cried a couple of times while incarcerated.
The father also admitted in a telephone call with the children on 20 November 2018 to telling them that they would be coming home and to tell their mother to “get stuffed”.
Many of the telephone calls referred to in the mother’s material and included in the tender bundles, both from the Independent Children’s Lawyer and the mother, contain inappropriate and adult type issues being discussed with the children at a time when the father had received many emails from both the mother’s solicitor and the Independent Children’s Lawyer telling him he should refrain from discussing adult issues and the court proceedings with the children and after Judge Jarrett on 11 June 2018 had made an order injuncted him from communicating in that way with the children by telephone.
The father has also been inappropriate in his written communication with the children. There are several examples but I will refer to what I consider to be the most concerning example, particularly given that it was to X who the father knew was struggling and was sent this year. It is Exhibit 9, a birthday card he sent to X in 2019. That card says:
Happy Birthday X
I wanted to see you on your birthday but Mum wouldn’t let me
I ring to talk to you everyday and I don’t know why Mum doesn’t want us to see and talk to each other.
I love you so much, Dad
Have fun with your games and I can’t wait to play with them with you. I think you and Y will be coming home on 16 April 2019. I am really looking forward to you coming home because I miss you so much.
The communication, including telephone calls and messages, email and social media posts to the mother or her solicitors
Having read all of the father’s communication with the mother, the Independent Children’s Lawyer, the mother’s solicitor and the court which are contained in Exhibits 4 and 5 and the mother’s trial affidavit I accept as submitted by Dr Brasch, that these are examples of the father, to use her words “bombarding” the mother. I also accept, given the background to that communication referred to in the following paragraphs, that this communication would have caused the mother to be anxious and at times extremely concerned for not only her safety but the safety of the children.
It is important when considering the father’s communication to the mother and her solicitor and to the Independent Children’s Lawyer, which was no doubt shared with the mother, the following background.
A temporary domestic violence order was made by the Suburb E Magistrates Court on 9 January 2018 and a final order for two years made on 6 February 2018.
The mother alleges many more breaches but he was breached by police on at least 13 occasions for contacting the mother. As mentioned earlier, at least one of those breaches resulted in the father spending five days in the watch house. On 30 July 2018 he was sentenced in the Suburb E Magistrates Court for contravening the domestic violence order and placed on a good behaviour bond for a period of three months. Then again on 19 March 2019 he was charged and convicted of a further three counts of a contravention of the domestic violence order.
The father for a short period referred to in the material, for example, sent the mother 163 emails and texts.
There is evidence before me about which the mother was aware including from Mr H referred to earlier, which refer to the father at one stage holding strong suicidal motivations and that he was likely depressed. There is also other evidence including from police, ambulance and hospital staff recording incidents of the father self-harming. There are also many examples in correspondence from the father to the mother and her solicitors, particularly around the time the mother and father were negotiating a property settlement which in my view clearly indicate that he was referring to taking his own life and making financial arrangements for the children to provide for them.
Taken from Dr Brasch’s written submissions, these include but I note are not limited to the following;
a)“I can now understand why people just ignore court and end up taking matters into their hands” (Exhibit 14 email on 22 July 2019);
b) “The whole systems a farce isn’t it? No wonder every few months suicides or murders make the news because the poor buggers have been stuck in this shithouse system.” (Exhibit 14 email on 6 June 2019);
c)In cross examination, the father admitted to posting on Facebook about people who “lose their shit and kill themselves” (Mother’s Annexure to her trial affidavit A16, page 93);
d)The father told the mother he will kill himself if she involves the Child Support Agency which was admitted by the father under cross examination;
e)In the mother’s trial affidavit at paragraphs 184, 185-190, 192 and 194, she refers to comments made by the father about “setting kids up for life”. Under cross examination he admitted that he was referring in that communication to taking his own life and providing for the children;
f)The father also admitted under cross examination when the communication with the mother on 2 February 2018 when he said “uv pushed me to edge … I’m really at my limit” that he was referring to taking his own life;
g)Again in communication with the mother on 2 February 2018 when he made the comment “do me one last favour” he admitted under cross examination that he was talking about taking his own life;
h)In communication by the father to the mother in February/March 2018 when he made comment “I’m mostly likely I’m going to die in it [the house] n the kids will inherit it” he admitted under cross examination that he was talking about taking his own life;
i)In communication by the father to her solicitors on 7 February 2019, he speaks of family tragedies and getting the TV involved;
j)On 28 January 2018 the father sent a text to the mother which included this comment “… it’s likely to be the last time I see the kids …”. Again under cross examination he admitted that was a reference to suicide;
At paragraph 186 of the mother’s affidavit she refers to receiving a text message from a friend worried about the father and suicide
There are also many examples of social media that the father posted which are of concern and when considered alongside his communication with the mother, for example, in relation to visiting the children at school, would have caused her significant concern. Examples of these are attached to the mother’s affidavit and in Exhibits 4 and 5 including Facebook posts made by the father on 27 August 2018 and 11 March 2019. These refer to underground networks that help children disappear. The first of those which is “A 15” to the mother’s trial affidavit says “Very interesting story might be needing their help”. In annexure “A 16” to the mother’s affidavit the father says this:
Is there a more useless bunch of c$nt than the family court. No wonder so many people go into hiding with their kids or completely lose their shit and kill themselves and everyone they know.
Compared to other peoples experiences I have got it pretty good and that’s from someone who has only seen his kids for a total of 3 hours in the past year. Ms Acuna has been in breach for 11 weeks now and no one seems to be giving a flying.
It was important in my view to give that background when considering other communication with the mother, her solicitors which of course she provided with, to the Independent Children’s lawyer, the court and the school. It is the mother’s case which I accept having considered the communication referred to above and the communication I am about to refer to that she was upset, anxious, concerned for her safety and the safety of the children and also concerned about the father’s mental health, particularly when he was referring to visits with the children, sometimes on a daily basis including at school, which were clearly not happening.
Although these examples are not in chronological order I will refer to them in the order in which the father was cross examined though again not referring to all of the correspondence. The first example is document 7 in Exhibit 5 and is an email from the father to the school principal Mr P dated 3 June 2019. In that email the father says this:
Hi Mr P
The Court case is going ahead next Tuesday the 11th June at Suburb E Court House can you please make yourself available to appear as a witness and tell the court how you have found X and Y to be cared for and their general wellbeing that X has been at the school and t Kindergarten for 6 years and Y 4 so far.
I will also be checking X and Y out of school on that day so that they can also appear in court and tell the Jude directly how their mum told them that she wasn’t going to let me see or talk to their dad again.
I don’t know what’s involved and what needs to be done but I’m sure the Judge may be able to provide advice on what needs to be done.
Anyway I look forward to seeing you next week and trying to achieve the best outcome possible for the kids.
Thank you
The father, under cross examination from Dr Brasch, agreed that he sent the email and he also agreed that the only order that was in place at that time was for him to have supervised time with the children at D Contact Centre and that D Contact Centre had suspended that time. The father also acknowledged that he thought it was entirely appropriate to bring the children to the court so that they could speak to the Judge because it is their life and they are the ones being affected. He then told Dr Brasch that the conversation he refers to with X had taken place at school. When asked how many times he had gone to the school this year, despite there being orders from this court and a domestic violence order which prevented him from approaching the school, he eventually conceded that he was lying and that he made that comment in the email to “piss the mother off”.
In relation to emails he has continually sent the mother’s solicitors which include, but are not limited to, 29 May 2019, 2 May 2019, 29 April 2019, all of which are included in Exhibit 5 and many others included in Exhibit 4, the father’s reasoning for sending those emails was to cause the mother’s solicitors to “run around”.
In an email to the Independent Children’s Lawyer Ms Bolton, responding to a question about his bank account, on 17 May 2019, he said “I am just about to head out so I can catch the kids at lunchtime”. He admitted under cross examination that this was a lie.
When questioned about an email to the mother’s solicitor of 17 May 2019 copied to Ms Bolton, wherein he says this “thanks to your client not complying to the orders and finding out the court is unable to enforce its own orders, court may not even be necessary now I am seeing the kids most days”. Again he said that was a lie and it was sent “to piss Ms Acuna off”.
When asked what he thought he might achieve, as he said, by sending emails and/or other communication, the intent of which was to “piss the mother off”, he responded that he thought it would cause her to be worried then comply with the orders. Another example of his communication with the mother that he thought would have the same result was his threat to go to Channel 7 to embarrass and expose the mother.
In yet another email from the father to Ms Bolton of 9 May 2019, copied to the mother’s solicitor, the father refers to trying to see the children every single day no matter what. Again in response to Dr Brasch this was sent to “piss the mother off” and although he spoke of running each day near the school, he conceded that he didn’t actually engage with them or talk to them.
There are many examples contained in the tender bundle of the father’s almost weekly, and during some periods daily, communication with the court, the Independent Children’s Lawyer and the mother’s solicitors. In that communication he refers to the mother’s solicitor as a “wanker”, “bullshit artist” and “flog” which he explained under cross examination was another name for wanker. In a communication of 25 July 2019 he referred to the court proceedings as a “boatrace, a race with a number of non tries which are said to be fixed with one horse to win”. In another email of 15 July 2019 addressed to various Judges of this court, he said “Hi your honours, you and the system are a complete joke. You’re all a bunch of fraudsters”.
There are also many examples of disrespectful and derogatory comments the father makes about the mother and her solicitors which of course the mother would have read, or at least have been aware of. Again taken from Dr Brasch’s written submissions, they include as follows:
a)In a Facebook post of 25 August 2018, the father had made this comment “the mother is a cancerous bloodsucking parasite”;
b)In Exhibit 4, in communication with the mother he told her “u r the meanest most vindictive n horrible person I have ever met in my life”;
c)In Exhibit 4 at page 110, the father calls the mother “a nasty spiteful part retard”;
d)In the family report referring to the mother not agreeing to the children going to Country U, he calls her “vindictive”;
e)In the mother’s evidence there is communication to the her solicitors where the father who under cross examination admitted he said “you are complete asshole who doesn’t give a single fuck about the kids and it is going to take every bit of self control not to beat the living shit out of you for putting my kids through this unnecessarily”;
f)Exhibit 15 is a Facebook post where the father makes this comment “tonight is colder than the heart of my children’s mother if she had one”;
One of the more obvious and extreme examples in my view of the father’s attitude towards the mother and its impact on her was when he asked the court for an order that the mother take a photograph of her hands and feet and produce that photograph to court the next day, the purpose of that I understand was to indicate she was not able to care for the children. An extract of that from the transcript is as follows:
Is it possible that Ms Acuna could, tonight, take a photo of her hands and her feet and show for you tomorrow just the effect of what her condition has done. Because she was saying how she can’t run properly or run fast, and I would say it’s limiting her ability to keep up with the kids. So I’m not sure which foot. One’s missing a few toes and she has got things wrong with hands. And I think it’s – that’s going to impact on looking after the kids if she can’t keep up with them.
It wouldn’t be surprising to the reader to hear that I refused to make that order.
The impact of the father’s behaviour and communication on the mother and the children.
Another extreme, in my view, example of the father’s behaviour and communication towards the mother and children and its effect on the mother and children are his attendances at, and the failure of, visits at D Contact Centre.
The records from D Contact Centre contained in Exhibits 4 and 5 and in the mother’s trial affidavit indicate that on 2 February 2019 the children spent time with father at D Contact Centre which was the first occasion after he completed his intake one year after requested on 28 December 2018. Those records indicate that the father arrived at the incorrect entrance and was advised to the use correct door. The mother and children then arrived. The father was brought through and advised to use the bottom door. The mother alleges that the father followed her and the children from the car through the front door and sat in the waiting area, despite having been told to sit in the back. The mother also alleges that the father began discussing inappropriate matters in front of the children which caused her to leave D Contact Centre while the children remained in D Contact Centre to spend time with the father.
The records of 16 February 2019 reflect that on that day this occurred:
Father arrived at the N/res entrance after Ms Acuna and the children had arrived at Centre. Informed Mr Najar he needs to arrive at 8.30 for an 8.45 visit. During visit supervisor advised Duty Team Manager that Mr Najar was denigrating the other parent and talking to the children about a trip to Country U stating they were all going on. Staff member intervened however conversation continued. Duty Team Leader spoke to Mr Najar during visit, away from children, advising him that conversations regarding the other parent and Country U are to stop immediately.
The mother explained in her trial affidavit that the father for some time had been threatening her that he would involve Channel 7 to do a segment on their family law proceedings. She also explains how, on one of the visits the father followed her and the children to the front door of D Contact Centre and was filming the mother in the carpark, turning to her and saying “Ms Acuna, one for channel 7 please”.
The final visit occurred on 2 March 2019. The records of that visit are as follows:
Father had not arrived staff member went out to see if he was arriving. Mr Najar was near the front entrance, approached Ms Acuna’s mu/hers car stated something to Ms B. Team Leader went down stairs. Mr Najar was in waiting room did not ring the bell. Team Leader spoke to Mr Najar re following our services agreement. Visit went ahead.
As mentioned earlier on 8 March 2019, D Contact Centre sent letters to the parents suspending the father’s use of D Contact Centre.
On 16 March 2019 the father attended at D Contact Centre, he says to understand why his time there was suspended. The records of that meeting are as follows:
Mr Najar arrived at centre. Team Leader and "Mr Najar arrived at centre. Team Leader and occurring due to suspension. Mr Najar was asked had he received the letter which Mr Najar replied what letter. NO I have not received any letter where are my children. Team leader provided Mr Najar with copied letter. Mr Najar stated that Ms Acuna has caused this and now I'm not seeing my kids as she has done the wrong thing and court orders are useless.
Ms T from D Contact Centre was called by the Independent Children’s Lawyer to give evidence and confirmed that the records of the visits at D Contact Centre referred to above, although she did not take the records, were a true reflection from talking to staff at D Contact Centre as to what occurred on those occasions.
On 26 March 2019, in my view showing a complete lack of insight as his behaviour and the effect of his behaviour, the father sent an email to D Contact Centre in which he said that he was confused as to why he received a letter indicating that his time at D Contact Centre had been suspended.
Whilst I had read in previous proceedings the mother’s material in relation to the attendances at D Contact Centre and the father’s behaviour before and during those attendances, I could not fully appreciate how the father behaved, particularly in the carpark, or the impact on the children and the mother by his behaviour until I watched and listened to the videos. It is clear from those videos that on an occasion when the father had not seen the children for many months and that this should have been a time when his focus was seeing them and spending time with them, the video shows him walking right past the children and not acknowledging them while holding up his phone to the mother’s face when he says “Ms Acuna, one for channel 7 please”.
Before that vision, the children can clearly be heard, particularly X, being most upset that they see their father in the carpark when they know that the rules provide for him to meet them inside D Contact Centre.
Having seen that vision it beggars belief that the father, if he was confused, as to why his time at D Contact Centre was suspended, why he couldn’t understand D Contact Centre’s decision in that regard.
Although it seems not to be in dispute, certainly from the evidence of the experts and the mother, that the impact of the father’s behaviour has been much more significant for X than for Y. The mother has engaged the assistance of Dr G, a psychologist to assist both Y and X to cope with the fallout of these proceedings including the father’s direct communication with them and their exposure to her anxiety which has become significant as these proceedings have dragged on and the father’s behaviour, in her case at best, has not improved and at worst, has escalated.
In relation to the impact on X, I note that prior to the parties’ separation, he was assessed as having some vulnerabilities with personality and some learning difficulties which I note were acknowledged by the father when he commented that X is a different child to Y.
In this regard I also note a letter from Dr G to Dr F on 28 May 2018, wherein she makes this assessment of X:
X has experienced nightmares after speaking to his father over the phone. In some of those conversations X has reportedly been told by Mr Najar that he is going to jail, and that Ms Acuna is to blame. X reportedly becomes upset and fearful that people will come and take him away.
On 13 July 2018, Dr G’s notes in relation to X after an attendance there on that day say this:
X saw news where a Dad shot his 2 kids. X concerned his Dad might do that.
On 18 December 2018 after X’s attendance with Dr G, she made these notes:
wants to talk to dad but doesn't like it when he speaks about bad things/things that he isn't supported to. X tried to tell him to stop but dad doesn't listen.
In another letter from Dr G to Dr F in relation to X, it state this “X is likely to have been experiencing an adjustment disorder”.
Notes made by Dr G on 30 April 2019 again in relation to X say this:
what X needs to feel safe when speaking ta dad an phone - act like a normal dad and not be silly and say bad stuff.
Dr G was cross examined at some length and in relation to X and his anxiety around spending time or seeing his father relevant to this issue she said this:
X in multiple sessions, including that one, would express concerns about what his dad might do or things that his dad had done, but then also say that he wanted to see him because he wants a dad and wants to have a relationship, and would sometimes oscillate between the two, as in that session, you know, saying that he – he did want to see him, but, you know, he had these concerns, as in that first point.
… in the last session that I had with him on 28 June, he was more adamant at that time that he didn’t want to see his dad. …
She also referred to a session she had with X after he had met with Ms J when X told her he didn’t want to see his father, he is “silly”. She explained that when she asked X if somebody asked her what would you want me to say about what you would like to see happen, he said:
I want you to say that I don’t want to see Dad.
He then listed various reasons for not wanting to see him including “He drinks lots of beer. He hides beer from the police.” He then described an incident when the father hid beer he was drinking from police while driving. He then referred to the incident when the father locked Y out of the house while he and the father went shopping.
She referred to other notes she had made of earlier sessions when he referred to the concerns about beer and the like but explained that even without those incidents, he was concerned that his father, to use his words “doesn’t act like a Dad.” In relation to phone calls X told her his father talks about things that he didn’t want to talk about and that made him feel very uncomfortable.
She referred to session notes from 25 January 2019 when she recorded “X told his Dad that he didn’t like what he was saying. Dad didn’t stop, so he hung up”.
When Dr G was asked about telephone communication between X and the father in the future, she explained that X and his personality is such that he has struggled to do that in the past and he would need ongoing support to be encouraged to have telephone communication in the future.
She spoke about the importance of rules for X given his particular personality traits and that he likes everything to be very clear on how things should work and he needs support in understanding if those things change and he has very certain ideas about how things should run. She also spoke about the need for adults to also be very clear of the rules and to stick to those rules.
Ms J also made comment in her family report about X’s particular needs including at paragraph 8.26 of that report where she said:
For X the road back to some relationship with his father will be slow, if it can be fostered at all at this time. It is clear that he has a psychologist in whom he has developed some trust so that relationship is valuable. He has work to do in terms of managing anxiety and availing himself of her support while ongoing assessment is made of his mental health.
When Dr G was asked if the court was to make orders that involved X starting to communicate with his father, what timetable the court should follow, her response was:
I think X would see that as the Court not listening to what he is currently saying because he has clearly said at least at this time that he doesn’t want to see his Dad and I think having the rigid timeline may make him even more rigid in his desire not to see him.
When asked to comment if orders were put in place which provided for guidelines and rules for both the children and the father to comply with in terms of communicating with the children and/or seeing the children, what the fallout might be if those rules weren’t followed by the adults, Dr G’s evidence was this:
In terms of X, I think if it were to not work again, that it would be an even longer road back to that. I think Y is a more – a kid that tends to go with the flow a little bit more, but she also has a bit of a streak that, you know, she may see this as, you know, people not what they’re supposed to do as well. But I think she would certainly have more capacity to deal with it than X would.
When asked to comment whether separate orders that provided for Y to see the father but not X and what impact that would have on X, she opined:
… he would then need to know what’s in place to keep his sister safe, because that has been a concern, as I’ve said, that he’s raised before.
Finally she made it very clear that X would absolutely need to feel a level of control over what happened in the future regarding any communication or time with the father.
In answer to a question from Dr Brasch as to whether X’s comments about the father and statements that he does not want to see his father could have been influenced by others such as his mother or grandmother, Dr G’s response was:
X is actually – he’s quite an articulate boy and he is very able to differentiate between the things that he feels and the things that other people feel. And that’s sometimes why we ask a few of those other questions, to make clear is this something that he has heard versus is it something that he has actually experienced himself. And so he’s able to – you know, we’re able to differentiate between the two of those things when I speak to him.
When asked what the father might do in terms of changing his behaviour and/or communication with X so that he might at some time feel more comfortable communicating with the father, Dr G responded that he would need to see that his dad is able to respond to his communication appropriately, for example, asking questions about his day. Any arrangement put in place for time would need to be minimal but successful initially so that some of the concerns that X has raised in terms of the things that he said his dad has said he can see there is a change occurring and for that small amount of contact to be successful before there were any longer period of time. She went onto say that the father would need to make sure that he is able to engage in some form of counselling in a positive manner.
In relation to the mother and the impact on her of the father’s behaviour, she relies on the evidence of Ms Q. It is the mother’s case that she both emotionally and physically responds in extreme ways when receiving any form of communication from the father whether that’s via email to her solicitors or the Independent Children’s Lawyer, to herself or to others who bring it to her attention. This includes bursting into tears, shaking and shortness of breath.
Ms Horsley for the Independent Children’s Lawyer cross examined the mother at some length in relation to her response and anxiety. That cross examination is referred to in Dr Brasch’s written submissions and I include it here:
So is it fair to say, Ms B, that sometimes you would be able to receive the text message or email and you would be able to brush it off and move on with your day unimpacted?---Rarely.
Right. Is it fair to say that sometimes you would burst into tears as a result of receiving the communication?---Yes. Yes.
And would you say that happened rarely or more often than that?---More often than that.
Right. And aside from tears, were there other physical reactions that you may have had?---It’s more shaking and – I – I find it – my best way of coping is to keep myself busy, so I would find something to focus my attention on, rather than the content of his email or text message.
Right. Some of the forms that you completed for Ms Q as part of your therapy with her, required you to answer questions about shortness of breath, for example. Were there times when you received communications from Mr Najar and you experienced shortness of breath?---Yes, absolutely.
Sorry, that was yes, what?---Yes, absolutely
Right. And how regularly would you say that occurred?---I guess quite frequently with – with the content of those messages and – and emails …
Having read all of the communication from the father referred to earlier, seeing the video footage of the father at D Contact Centre, in particular when he approached the mother and hearing answers to cross examination from Dr Brasch, Ms Horsley and Ms Oakley, I accept that the mother’s response, although at times extreme, genuine, justified and understandable.
I also note in this regard which will be mentioned later when Ms J was asked, that given the mother’s response to communication with the father is as described in the earlier paragraph, whether she could navigate without distress discussing issues of parental responsibility with the father so as to share parental responsibility, Ms J was of the view that she could not and should not.
The other important and significant factor to take into account in relation to the mother’s response to the father’s behaviour is that it is understandable that when she is the primary carer of the children and is, at times, so distressed even if she does everything that she can to protect the children from her distress and her views of the father, they would be aware of it, would respond to it and may be concerned for their own safety coming into contact with the father or communicating with him, particularly in circumstances where the father’s communication with them, although obviously not as extreme as his communication with the mother, is still inappropriate.
In relation to the children and the mother’s exposure to harm, there are other examples of the father’s behaviour/personality which cause me to be concerned about an order for unsupervised time or communication. The first of those are the many breaches by the father of temporary protection orders which I understand may expire early next year, although the mother will no doubt apply for an application to extend that order. Not only has there been many alleged breaches of the protection order, the father as referred to earlier, has been breached by police on many occasions and has been found guilty of contravening the domestic violence protection order.
Therefore in circumstances where the father might spend unsupervised time with the children, I would be concerned about them being exposed to family violence given the history of the father’s contraventions.
The next concern is the father’s alcohol consumption. The father was charged with driving over the middle alcohol limit in April 2018 and was also found guilty of driving with a suspended licence. To address the mother and the court’s concerns about alcohol abuse, the Independent Children’s Lawyer made, as I understand, eight requests for the father to attend CDT testing. I understand he attended on only two of those occasions. One of the reasons he gave for not attending was a lack of funds, however Dr Brasch went to some length to cross examine the father in relation to his employment, income and the many entries in his bank statements that referred to purchases or withdrawals at hotels.
The other concern in relation to the father’s driving history and alcohol consumption are the comments made by X to Dr G that the father used to drink alcohol and hide alcohol from police when they were in the car.
I was also not completely satisfied by the father’s response to questions from Dr Brasch as to who was driving his car or a car when he was a passenger when he was unlicensed but working. Again in that regard Dr Brasch relied on the father’s bank statements which were subpoenaed which referred to the many purchases of petrol during the working week. Again the father argued that he gave one of his work colleagues some money to drive him around and at the same time he purchased the petrol, that being the reason for petrol entries on his cards.
Unfortunately given the number of occasions the father was found to be untruthful during these proceedings, given his poor driving history and conviction for drink driving, it would not be unreasonable for me to be sceptical about the father’s case in that regard.
In relation to his driving history I note that shortly after appearing in the Magistrates Court he was again found by police to be driving a motor vehicle but he argues that on that occasion he was driving on private property and tried to explain to police unsuccessfully it seems that R Street, where he was found driving, was in fact private property.
Of course all of that leads to me being concerned that if the children were spending unsupervised time with the father, he might transport them in a vehicle driven by him, either unlicensed and/or affected by alcohol.
An important feature of the father’s behaviour as pointed out on many occasions during Dr Brasch, Ms Horsley and Ms Oakley’s cross examination of him and referred to in Exhibits 4 and 5, is his inability to respect and/or comply with rules. The rules that have been referred to in the mother’s case and that of the Independent Children’s Lawyer, for which the father had little or no regard, include:
a)D Contact Centre rules;
b)The conditions laid out in the domestic violence protection order;
c)Directions from the school not to attend to see the children there including from the school principal and albeit without any real authority from the Independent Children’s Lawyer;
d)Road rules;
e)Directions and orders made by the court;
One of the answers that the father gave to Dr Brasch which is of concern in my view with regard to the father’s unwillingness to comply with what have been referred to as rules and his lack of respect for court decisions, is this comment “I refuse to have a complete stranger tell me what’s best for my kids”. The concern raised by Dr Brasch which I accept is a genuine concern is that the complete stranger he is referring to by that comment includes the court or an order made by the court.
There are many examples referred to above of the father not following the direction or order of the court particularly in relation to telephone communication with the children and injunctions that Judge Jarrett put in place in that regard some time ago.
In this regard I refer to the father’s communication with Y after returning from his trip to Country U when he continually referred to the Country U trip. When it was put to him that I had made an order which prevented him from discussing holidays with the children in his communication with them which was to occur on Father’s Day and on Y’s birthday, his response was that he didn’t recall that I had made that order.
It is simply not believable that after the mother, supported by the Independent Children’s Lawyer at the conclusion of the second day of trial, made an application to suspend the father’s time while he asked for an order to continue telephone time and after hearing that argument delivered reasons and made orders that allowed, albeit, two occasions of telephone time provided he didn’t discuss holidays, he then tells the court that he did not recall making that order.
I do not accept that he did not recall making that order, but what I can find is that he simply disregarded it, did not see any value in it, did not understand the need for it and did not comply with it. It is also my view that his intention when discussing the Country U holiday with Y was not to share his experiences but rather deliberately to have Y to be disappointed that she wasn’t able to spend that time with him and to blame the mother for missing out.
Has the father displayed any insight with regard to the impact of his behaviour and is there an order the court could make for the children to safely spend time and/or communicate with him
The simple response to that question in my view is no and I say that for these reasons.
Firstly the father sought in answer to questions about his communication with the mother and children and others, rather than take responsibility for that communication and display some insight into the appropriateness of that communication, he attempted to justify it by making the following comments:
a)It is the system and the mother’s fault that he has been pushed to the extent he has to make those comments;
b)He was frustrated by not spending time with the children;
c)Although he sent much of the correspondence to her lawyer and not directly to the mother, he could not acknowledge that she would have been aware of the communication;
d)In relation to Facebook posts, he argued that the mother didn’t have access to Facebook;
e)He didn’t follow through with any threats he made including self harm, to attend at the school daily or kidnap the children;
f)In relation to his communication with the children, his response was that he was simply answering their questions and would not lie to them.
He could not conceive when it was put to him that posts and communications about kidnapping and suicide would have been frightening for the mother.
It was not until the final day of the hearing and after I sent him away to think about what he could suggest to improve the situation in terms of him being able to spend time with the children that he indicated that he would attend for counselling. However I had no real sense that once he left the court room he would follow through because in my view he doesn’t see a need for counselling.
He did not see any benefit in repairing his relationship with D Contact Centre so as to re-establish time with the children but continued to argue that it is a place where drug addicts and paedophiles go to see their children and he would not take up the opportunity of any time at a Contact Centre or to investigate any private supervisors.
He could not accept that despite consistently referring to how the mother had not followed the orders for the children to spend time with him, that there was, in effect, no order in place for time because D Contact Centre suspended his time. He could not accept that in fact it was he who was the one not complying with orders or had acted in a way which caused D Contact Centre to suspend time and the mother to suspend telephone time.
It is the father’s case that it is the mother’s behaviour or reluctance to support the children’s relationship with him that has caused a change in X’s attitude and his desire to spend time with him. As mentioned earlier Dr G did not support that view given her time with X. By making that argument the father seems to completely misunderstand his role in the breakdown of X’s relationship with him.
The father has consistently argued that all will be well including for the children if the court makes an order to reinstate his time with them and their communication with him. Of itself that speaks to his lack of insight however I have already referred to the concerns that I have that the children will be exposed to harm by unsupervised time.
In relation to the orders that could be made to mitigate those concerns, I refer again to Dr G’s evidence that for X at least there would need to be structure, certainty, rules which he had some involvement in making and that the father would need to respond in his communication with X appropriately. She also opined that it would not be beneficial to X if different orders were made for Y because he would be concerned about Y’s safety. Significantly she also said that if rules were broken and the time was not successful it could cause significant damage that could not be repaired.
The difficulty of course with Dr G’s suggestions is that the father disengaged from the counselling that might have assisted him to understand how to communicate with the children, to the best of my knowledge has not attended at any courses such as a parenting orders course and as mentioned earlier, has little respect for rules and boundaries.
It might be argued that Dr A’s report provides some support for the father’s case when he suggests that instituting regular and quality time with the children would be a form of therapy for the father and a very powerful antidote to the sort of stressors he had been experiencing.
Dr A was not called for cross examination. The concerns I have with his recommendation include whether the time between the children and the father would be quality time. I also note he opines that it is essential that the father address his use of alcohol which in my view is doubtful. That he needs to attend for counselling which of course he hasn’t and may not and if he does attend, see any benefit in the counselling. Dr A also speaks to the need to develop an effective post-separation plan with the mother and to take personal responsibility for that plan along with a commitment to strict compliance with the orders.
I will now deal with the recommendations made by Ms J which are referred to in the background of these reasons. Under cross examination she stepped back from most of those recommendations including an order for equal shared parental responsibility.
She accepted that for effective communication there needs to be mutual respect, that the participants are prepared to listen to the others point of view and ideas, that they have the ability to compromise, they should be prepared to follow social norms and rules and not be preoccupied with blaming the other. It goes without saying that this is not the parenting dynamic in this matter.
After having put to her some of the evidence referred to in these reasons regarding telephone calls she said she would not support an order for same but rather leave that to the children to decide. Given the father had not engaged in the counselling she recommended she had concerns about X spending time with the father even supervised time. I note that she had recommended supervised time for Y but of course that time was suspended and the father does not intend going to a Contact Centre.
The other factor that needs to be taken into account of course is that an order for long term supervision is one that is generally not in a child’s best interests and it is my view it would not be, even if it was taken up, in Y and X’s best interests.
Although it was not suggested by either party or the Independent Children’s Lawyer, in my view there would be no benefit in making an interim order. That order would only place the children, the mother and the father in the same position they find themselves in now. If I had some confidence that things could turn around by the father committing to counselling, accepting his role in the breakdown of the children’s relationship with him particularly X, would do the work necessary to develop an ability to gain some insight and develop the skills to communicate with the children appropriately and also address his possible issues with alcohol, an interim order might have some attraction.
The legislative pathway
The Family Law Act 1975 (“the Act”) requires the Court to make final parenting orders that are in the best interests of the child, and sets out the legislative pathway the Court must follow to achieve this.
This pathway, guided by the objects and principles in s.60B, has its starting point with the Court’s consideration of the matters set out in s.60CC(2) and s.60CC(3) (the primary and additional considerations).
The Court must then consider parental responsibility. The law presumes that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility: s.61DA. However, this presumption is rebuttable, and might not be applied in the context of the Court’s findings of family violence or abuse: s.61DA(2).
If the presumption is rebutted, the Court is bound to frame orders in the best interests of the child, subject to the factual matrix of the case. If the presumption applies, the Court must determine whether it is in the child’s best interests and is reasonably practical (considering the factors set out in s.65DAA(5)) to: first, make an order for equal time; or, if that fails; second, make an order for substantial and significant time: s.65DAA and MRR v GR (2010) HCA 4).
In identifying and making findings about the issues in this matter I have addressed what, in my view, are the most relevant s.60CC factors including:
a)That there would be a benefit to the children of a meaningful relationship with the mother and father however there is a risk of emotional harm to them by making an order for both unsupervised and supervised time and telephone communication. In making an order that is in the best interests of the children, I am required to give greater weight in appropriate cases to making an order that protects them from harm and in my view this is an appropriate case;
b)X has expressed a very clear wish not to spend time or communicate with the father and having explored what might be done to address X’s concerns, I have found that the father is unwilling or unable to commit to the recommendations Dr G made in this regard;
c)There would be a significant impact on the mother’s capacity to provide for the children’s emotional needs if the court made an order for time and/or communication. It would not be appropriate to make an order which in effect would see her referee telephone communication with the children and the father; and
d)There is a real likelihood that the children would be exposed to family violence by an order for time and/or communication.
Parental responsibility
I have already addressed when referring to Ms J’s cross examination to the significant difficulties with an order for equal shared parental responsibility. This is clearly a matter where the presumption of equal shared parental responsibility is rebutted in any event.
Taking into account all of those factors it is my view that the orders which best serve the children’s interests and protects them from harm are those proposed by the Independent Children’s Lawyer and pressed the mother.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Spelleken
Date: 18 December 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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Appeal
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Procedural Fairness
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