Adair and Adair
[2016] FamCA 325
•11 May 2016
FAMILY COURT OF AUSTRALIA
| ADAIR & ADAIR | [2016] FamCA 325 |
| FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – Parental responsibility – Best interests of the children – Where the children have not spent time with the father since 2013– Family violence perpetrated by the father against the mother and children – Unacceptable risk of harm – No benefit to the children in this family having a relationship with their father – Need to protect the children from harm – Children to live with the mother and spend no time with the father – Restraints on the father – Mother hold sole parental responsibility. FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – No appearance by the father on the second day of hearing – Hearing proceeded on an undefended basis. |
| Evidence Act 1995 (Cth) s 140 |
| G & C [2006] FamCA 994 |
| APPLICANT: | Mr Adair |
| RESPONDENT: | Ms Adair |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Kyle |
| FILE NUMBER: | SYC | 576 | of | 2012 |
| DATE DELIVERED: | 11 May 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 3 and 4 February 2016 |
REPRESENTATION
| APPLICANT – LITIGANT IN PERSON: | Mr Adair |
| RESPONDENT – LITIGANT IN PERSON | Ms Adair |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Smythe Wozniak Solicitors |
Orders
All prior parenting orders are discharged.
The mother have sole parental responsibility for the three children B born … 2000, C born … 2003 and D born … 2007 (“the children”).
The children live with the mother.
There be no time or communication between the children and the father.
Pursuant to section 68B of the Family Law Act 1975 (Cth) the Mr Adair, shall be and is hereby restrained from:
(a)approaching, contacting or communicating in any way the mother Ms Adair and the children B, C and D or any of them.
(b)entering or remaining in the residence of the children and the school/s attended by each of them.
Order 5 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adair & Adair has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 576 of 2012
| Mr Adair |
Applicant
And
| Ms Adair |
Respondent
REASONS FOR JUDGMENT
Introduction
Following their 23 year marriage, the parties have been unable to reach agreement about a fair distribution of property or the parenting arrangements for three of their eight children who are under the age of 18.
The parties separated in May 2013 and property proceedings were initiated by the mother in August 2013. The father sought parenting orders in his Response. The parties have not taken the necessary steps to progress the property proceedings and in circumstances where the Independent Children’s Lawyer (ICL) was concerned about the children’s current circumstances, the parenting proceedings were listed for trial on 3 February 2016.
The father represented himself and as a result of his conduct was removed from the court room at approximately 3.30pm on the first day for the balance of that day and the hearing was then adjourned. Although orders were made that the proceedings would resume the following day and the father was aware of these orders, he failed to participate in the proceedings on the second day and the matter proceeded against him on an undefended basis.
The mother proposes orders that the two youngest children, C who is 13 and D who is eight live with her and spend no time with the father. She also proposes that she have sole parental responsibility for these children. She does not seek any orders in relation to her daughter B who is aged 15 and a half. The ICL proposes similar orders in respect of all three children and also seeks a restraint on the father communicating or coming into contact with the mother and children. By the close of the proceedings the mother supported the ICL's proposed orders
The father’s position has changed on numerous occasions. As I understand it, he most recently proposed only that C and D spend time with him as agreed between the parties.
The question for me to determine is whether the orders proposed by the ICL and supported by the mother are in the best interests of the children or if it is in the best interests of the younger two children to spend some time with their father as he proposes.
Background
The father who is 60 was born in Country E and the mother who is 49 was born in Country F.
The parties met in 1990 and the following and a month after meeting married in Country F.
The mother then moved to Australia, where as I understand it, the father had been living for some time.
Between 1991 and 1998 the parties had five children, three girls and two boys.
In around 1997 the parties purchased a property in Suburb G which they moved into in about 1998 and it became the family home. At the time of the hearing the home had been in a significant state of disrepair for some time.
In August 2000 the parties’ child B was born in 2003, C was born and in 2007 D was born. At the time of the proceedings B was aged 15, C aged 13 and D aged 8.
It is the mother’s contention that the father was the perpetrator of family violence throughout the marriage, which I understand is disputed by the father. This issue is dealt with later in these Reasons.
In July 2009 the father was charged in relation to assaulting the parties’ daughter Ms H who was 13 years old and also with resisting a police officer in the execution of his duty. In February 2010 the father was convicted and placed on a section 9 bond for a resist police offence for a period of two years.
The mother also contends that the father engaged in controlling behaviour throughout the relationship and in particular controlled the finances in the household. Although it is not entirely clear, I understand that the father disputes this contention, and this issue is dealt with later in these Reasons.
In around 2010 the mother became aware through a letter from Centrelink that her Centrelink payments had been underpaid and $2000 was to be placed into the parties’ joint bank account to make up for the error. The mother withdrew this sum and used it to purchase a ticket to travel to Country F to visit her relatives who were old and ill. The mother was absent from Australia for a couple of months and the children remained in Australia under the care of the father and older siblings.
On 18 May 2013, there was an incident at the family home. The police attended and the father was arrested and an Apprehended Domestic Violence Order (ADVO) was issued against him for the protection of the parties’ daughter Ms I (who was 18) the mother and the youngest child D. As a result of this incident the parents separated.
Following separation the mother continued to live in the family home with most of the children. I understand that in recent times some of the older children may have moved into separate premises. None of the children have seen the father since separation and when interviewed by a family consultant in June 2014, four of the five children who were then under 18 expressed considerable negativity towards their father and resentment about the poor state of the family home.
It is the mother’s case as I understand it, that there is no benefit to the children in having a relationship with their father and that there is an unacceptable risk that they will be physically and psychologically harmed by him if they were to spend time with him.
The father’s proposed orders are unclear. In his Response to the mother’s Initiating Application the father proposed parenting orders that would see he and the mother having equal shared parental responsibility for the children, the children living with him and spending time with the mother as agreed. However, at the Children’s and Parents Issues Assessment with a family consultant he sought only to spend limited time during the day with the children and for this reason a Family Report was not ordered. When the matter was fixed for trial, the father confirmed that he was only seeking orders with respect to spending time with the children. At the commencement of the final hearing the father then appeared to be again seeking orders that the children live with him and spend time with the mother.
Each of the parties represented themselves in the proceedings. From the outset the father on numerous occasions interrupted and argued with the mother when she was answering questions, interrupted the ICL’s counsel during cross-examination, argued with the ICL's cross-examination of the mother and refused to accept the rulings of the Court. The father was warned numerous times about his conduct and informed that if he continued calling out, talking over the trial judge and, interrupting counsel’s cross-examination he would be removed from the court and the hearing would continue in his absence. The father was removed from the court late in the afternoon of the first day of the trial for the remainder of the day. He was then served with orders to the effect that the matter had been adjourned and would be proceeding on the second day, and in his absence, in the event that he did not participate in the proceedings. The father failed to appear on the second day and the matter proceeded on an undefended basis so far he was concerned.
Matters in dispute
Was the father a perpetrator of family violence?
The mother contends that the father was violent and controlling towards her throughout the relationship and that there were also at least two incidents in which he was violent towards the children.
The mother also relies upon affidavits of two of the parties’ older children, Ms J who is 24 and Ms I who is 20. Both children support the mother’s evidence that their father was violent and controlling towards the mother and children throughout their lives and refer to some specific incidents of violence.
Controlling behaviour
So far as controlling behaviour is concerned, the mother says in her affidavit that the father was “in charge of” all the finances in the household. Centrelink benefits were deposited into one bank account and the father withdrew money to give to the mother to pay the bills. She says that if she or the children needed to buy anything they were required to ask the father to buy it and show him receipts to prove expenditure for personal items.
The mother says that throughout the marriage although she asked the father on a number of occasions whether she could visit her family in Country F, the father “refused to let [her] travel”. She said that her mother and father were old and ill and she was worried about them passing away before she had an opportunity to see them. The mother openly set out in her affidavit that when she became aware in about 2010 that a Centrelink payment of about $2000 was to be put into the parties’ joint bank account to make up for an underpayment, she withdrew this sum before the father became aware of it and used it to purchase a ticket to travel to Country F. She says the father became extremely angry when he found out about the withdrawal and accused her of stealing. The father cross-examined the mother about the purchase of the airline ticket and travel to Country F. She agreed that she went overseas on this occasion without prior notification to him. The father also put this question to her: “Did I inform you that I was not advised of your departure? Did I not tell you this and you should go back home immediately?” It was abundantly clear from his cross-examination that the father felt that the other required his “permission” to travel and “directed” her to “go back home”.
Although the father appears to have been attempting to challenge the mother’s assertion that he was controlling, he did not put it to her that her account was incorrect. Rather, he appeared to challenge the contention that his conduct amounted to “controlling behaviour”.
The father’s own affidavit also provides some evidence in support of his controlling behaviour towards members of the family. For example he states in his affidavit without providing any context “I also monitored the whereabouts of all children-fearing for their safety especially after hours”. Given the other references in his affidavit to “the children” it appears that this monitoring also included the parties’ adult children.
Ms J, the eldest child who is a teacher, describes the father as “very controlling towards me and my whole family”. In particular she refers to the father’s financial control and says that the father would not provide her mother money to pay bills until there was a threat to discontinue the service unless the bills were paid. She also says that her father would question and closely scrutinise family members’ expenditure and would require them to produce receipts.
The parties’ daughter Ms I also confirms that the father was violent, abusive and controlling throughout her life.
Police records tendered by the ICL also support the mother and children’s allegations of the father’s controlling behaviour. For example, in August 2010 a complaint was made to police that one of the older children, (who is unnamed but is described as a fifteen year old daughter of the parents) was the subject of unwanted and inappropriate harassment by a person believed to have been working in the vicinity of the family’s home. The child attended the police station with her father pursuant to an arrangement for the purposes of giving police a statement about the incident. It is recorded that the father expressed concerns about his daughter attending court and that he may be sued for defamation and would not permit police to speak to his daughter alone. Police were of the opinion that the daughter wanted to provide a statement to them but was “controlled by her father” who told police that he would give consideration to whether he would allow his daughter to provide a statement. Subsequently, the police were unable to make contact with the child in relation to obtaining a statement.
The father does not address the allegations of his controlling behaviour in his affidavit. Further, it is clear from the form of his cross-examination of the mother that he does not deny that he was unhappy that he was not advised of the mother’s travel to Country F in 2010, had not given “permission” for that to occur and told her to “go back home immediately”. Records from police in relation to the father determining whether he would give “permission” for one of his children to provide a statement to police in relation to an incident in which she was a victim is also consistent with his controlling conduct. The father also did not challenge the mother’s evidence about financial control and in the course of cross-examination of the mother engaged in commentary which indicated that he did not accept that his conduct could be characterised as “controlling”. For example when the mother complained in an answer under cross-examination that the father undertook most of the shopping as a form of control, the father said “your Honour, the word controlling is coming-for-no basis”.
I am satisfied that the father did engage in behaviour that coerced and controlled the mother and the children throughout the relationship. Virtually none of the mother’s evidence was challenged in this regard either under cross-examination or in the father’s own affidavit and documents from independent sources such as police provide corroboration for the mother’s contention. The father’s own evidence about the mother needing to seek his permission to travel and about monitoring the whereabouts of his children support the contention that the father was controlling in his interaction with family members.
While the father’s coercive and controlling behaviour does fall within the definition of family violence under the Family Law Act 1975 (Cth) (“the Act), serious allegations are also made concerning alleged physical assaults.
Physical assaults
In relation to physical violence, the mother says in her affidavit that the father hit her on several occasions throughout the marriage.
The mother and her witnesses also give evidence about a number of specific incidents in which it is alleged that the father assaulted the children.
2008 Assault of Ms J
The parties’ daughter Ms J says in her affidavit “my father has been physically and verbally abusive towards me and my family for as long as I can remember”. She gives an example of an occasion when she was in year 12 in 2008 when the father began an argument with her over scholarship applications. She says that the father told her that she was lying and lazy and he “took off his shoe and hit me multiple times in front of my mum. He also whipped me with a stick he got from outside” causing bruising to her chest. Following this incident, Ms J said she left home and lived with her grandmother for a week as she was so scared. She said that her mother had a fight with her father over his conduct but that her mother explained that she was too scared to leave the father and had no money or employment and did not speak English well.
The mother does not refer to the assault on Ms J in her affidavit but recounts an occasion when the father hit her to the chest, with sufficient force to cause her to collapse on the floor. She says her children became worried on this occasion and contacted neighbours who rang an ambulance and police. The mother says that when police questioned her about the incident she described it as “just a small family argument”.
It is clear from police records that this incident took place on 9 July 2008 and the alleged assault of Ms J and her mother were part of the same event. Police records indicate that when officers attended the home on that occasion, consistent with the mother’s evidence, all family members refused to say anything.
Police records also indicate that the full circumstances of this incident were later reported to police approximately a year later when there was a further incident at the home in July 2009.
The mother does not appear to have been aware of the details of the father’s criminal record which indicates that the father was charged with common assault relating to this incident. He was not however charged until approximately a year later when full details of this allegation came to light. The father’s criminal record indicates that the charges were subsequently dismissed, and the circumstances of his prosecution and appearance at the Local Court are dealt with when considering the later incident.
The father does respond to the allegation that he assaulted Ms J but he simply states “as far as allegations by Ms J that I touched or hit her – this is totally false. On several times Ms J ran away from the house because Ms I and others attacked her – and I went and brought her back to the house”.
2009 Assaults on Ms H
The mother says that in about 2009 the father assaulted Ms H who was 13 at the time. She says that she was not home at the time of the incident as she was collecting the younger children from school and when she returned home Ms H was not there. She says that when she asked the father about Ms H’s whereabouts, he maintained that she was studying at the library and would return home later. The mother became extremely worried when Ms H had not returned by 8pm and the father said to her “[Ms H] is not going to come back today. We had a fight when she came back from school and I kicked her out of the house”.
Ms J also did not observe the incident between her sister Ms H and the father in 2009 but says that she heard her father “admit (sic) that he had a fight with her and kicked her out of the house”. She said that Ms H told “us” that the father had “dragged her across the floor and started kicking her”. She said that she later heard her mother scream from the bathroom and the mother reported that the father had attempted to choke her. Ms J said that the police and ambulance attended that evening but “we did not tell them what happened out of fear”.
Ms J says that the father was charged “for his behaviour” against police when he was interviewed about the incident with Ms H.
Police records indicate that the father reported Ms H as a missing person. When she was subsequently located by police Ms H told police of the incident that day and an earlier occasion in January 2009 when she also became engaged in an argument with her father about allegedly arriving home late. She reported that in January 2009 the following occurred:
On arriving home [the father] became aggressive demanding to know where she went. She explained her whereabouts and he questioned why she would go there and why she was home late. After further arguing he kicked her in the leg and hit her on the body.
Police records indicate Ms H’s complaint about the events of 29 July 2009 was that when she arrived home from school her father began arguing with her. When she attempted to move past him the following happened:
He pushed her back on her left side of the body. He then moved forward toward her. Seeing [the father] move toward her, she half turned away from him fearing he was going to hit her and held her hands up. The [father] then hit her on the right side of her head two times.
It is recorded that Ms H then ran from the house and the father looked for her but was unable to locate her. The record indicates that the father considered that the incident was the mother’s fault and later that evening when the child had still not been located the father began an argument with the mother and “became more angry and moved toward [her] and placed his hand on her head forcing her head down. With his other hand he placed it around her neck choking her.”
When the father attended the police station on 30 July 2009 to collect his daughter it is recorded that he was behaving in a demanding and aggressive manner towards police. It is recorded that the father did the following:
He then started standing over [a police officer], pointing his finger at her. He was saying “you don’t tell me, I tell you, they are my kids, I am taking them”. The record indicates that when this was said the [father’s] children were sitting in a room near the [father]. Although they could not see them (sic) they could hear him and were becoming scared and started crying. Other police feared a breach of the peace.
It is recorded that the father became aggressive, tried to pull away from police and began thrashing out at them.
The father was then charged with resisting police and with six counts of common assault. These assault charges appear to relate to the assaults upon the mother (and possibly Ms J) in July 2008, upon Ms H in January 2009 and upon Ms H and the mother in July 2009. It is apparent from the father’s criminal record that all of these charges were dealt with in a Local Court in January 2010.
Ms J suggests in her affidavit that the adult family members and her mother decided that they were not prepared to give evidence against the father. The mother gives a similar account and says “we went to court and gave evidence [the father] was calm man who had never been violent or abusive towards us just so we could get him out of trouble”. She adds “this of course was not true about him but he forced us to say that”.
The record indicates that the six counts of common assault were dismissed and that the father was convicted of one count of resisting a police officer and was placed on a good behaviour bond for a period two years.
Police records also lend some support to the mother’s statements that she did not make complaints about the father’s conduct due to her fear of him. For example in November 2009 police records indicate that officers contacted the family home after they had received information from a case worker at the Department of Community Services that a notification had been received alleging that the father “continues to physically assault [the mother]”. Police contacted the house by telephone and the father is described as speaking loudly, interrupting the police and refusing to put the mother on the telephone. A Domestic Violence Liaison Officer (DVLO) arranged for police to attend the home to ascertain if the mother and children were safe. However, the DVLO received a telephone call from a person claiming to be the mother’s solicitor who explained to police that the victim did not want to speak to police.
May 2013 assault on Ms I
On 18 May 2013 there was in incident at the family home that resulted in the parties’ separation.
The mother’s account of this incident in her affidavit is as follows:
[Mr Adair] [the father] and I had been arguing. Ms I was in the kitchen and we were in the living room. [Mr Adair] became angry and started to yell at [Ms I]. He called her a “prostitute”. This upset [Ms I] so she started to speak back to her father. He then began punching [Ms I] in the face and her mouth began bleeding. I tried to stop him but he began punching me and pushing me away.
I was scared that he might hurt [Ms I] so I ran outside and called our neighbours from across the road. They came into the house and pulled him away from [Ms I], our neighbours rang the police.
Ms I does not give details concerning the incident in May 2013 in her affidavit except to say that she was “severely bashed”. Ms I, who is a university student, says that she “suffered mentally, physically and psychologically from [her] fathers hands, to the point where [she] was hospitalised”. Although she does not set out the details of the incident in her affidavit, she provided a statement to police which formed part of the police and court records which were relied upon by the ICL in the proceedings.
According to Ms I’s police statement the following occurred on 18 May 2013. Ms I returned home from church and found her parents and five year old sister D were at home. Ms I began a conversation with her mother and her father called out from an adjoining room “tell the prostitute to shut her mouth”. She said that her father became angry and began yelling and swearing at her and said “you have no right to ask me this I am the head of the house”. She then said the following occurred:
At this moment my dad was standing up in my face and my dad and I were yelling toward each other. My dad pushed me with two of his in the shoulders (sic) and I moved back. My dad raised his right arm and said “get out of my face or I will bash you. I am strong and you are shit”. My dad still had his right arm raised at shoulder height when he hit me on the right side of my face with his back hand. After this happened by face was hurting. My mum walked over and got in between us and tried to get my dad to stop. I saw my dad grab my mum with one hand and throw her on the lounge. My dad raised his right hand again like he did before so I pushed him in the chest area to get away when he grabbed my right arm and said “move out of here before I break your arm”. I didn’t even have a chance to move when dad punched me with a closed fist in my mouth. All I remember is leaning over on the floor because I was in pain on my lip. While I was leaning over my mum got up off the lounge and tried to get my dad away again as was screaming and saying “just stop it, you’re going to kill her”, my dad said “I don’t give a fuck”. My mum managed to pull my dad off so I started to stand up when I felt dizzy and my lip was hurting. All I can remember is then being back on the lounge with my dad throwing punches at the top and back of my head.
Police records indicate that as a result of this incident, the father was charged with assaulting the mother and assaulting Ms I occasioning actual bodily harm and an ADVO was issued against him for the protection of Ms I, D and the mother. Following a Local Court hearing the father was convicted of both offences. The father’s criminal history also indicates that upon appeal the assault conviction was confirmed and the assault occasioning actual bodily conviction was quashed. A final ADVO was made for two years in very broad terms that included that the father was not too approach the protected persons (being the wife, D and Ms I) by any means except through a legal representative or in accordance with orders under the Family Law Act. The father appealed against this ADVO but the appeal was dismissed.
The mother was only cross-examined by the father in a limited way concerning the incident on 18 May 2013. The mother confirmed that the youngest child D was present when the father assaulted Ms I and became scared of him as a result. The father did not challenge the mother on her assertion that he assaulted Ms I or her and that this incident and the resulting ADVO ultimately caused the mother to separate from him. He also did not challenge her general assertions of his violent conduct throughout the marriage.
When the ICL was cross-examining the mother about the incident in May 2013, the father continually interrupted the cross-examination stating that this incident and the criminal charges were not relevant to the proceedings. These statements by way of interruption are consistent with the tenor of the father’s affidavit which he was given leave to file (out of time) at the commencement of the hearing. He does not address the specific or general allegations of family violence set out in the affidavits of the mother and two older daughters except to mention the alleged assault on Ms J in very general terms. He states that Ms I’s affidavit “will not be considered here because she was not approved by the recent (last court decision) proceeding as a credible and acceptable witness.” There is no evidence of his version of this or any other incident which resulted in criminal charges against him.
Discussions and findings concerning allegations of physical abuse allegedly perpetrated by the father.
The mother alleges that the father has engaged in serious physical abuse of herself and the children which I understand is denied by the father.
In M v M[1] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[1] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[2] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[2] [2007] FamCA 1235 at [72].
The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[3] and will be applied when determining the allegations issue of physical abuse in this matter.
[3] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[4], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[4] (2005) FLC 93–235.
The first question therefore, is whether I am satisfied that the allegations that the father has physically abused the mother and the older children are proven on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act 1995(Cth).
Each of the alleged incidents involving allegations of assault against the mother or children resulted in police attending the family home, and on some occasions this resulted from neighbours rather than family members contacting the police.
The incident in 2008 in which it is alleged that the father hit Ms J with a shoe and a stick and hit the mother appears to have resulted in the father being charged with common assault. He was not charged with these offences until July 2009 when allegations were also made that he had assaulted Ms H by kicking her in the leg and hitting her on the body in January 2009 and striking Ms H to the head and later attempting to choke the mother in July 2009. The father did not address these incidents at all in his affidavit (other than a broad reference to allegations made by Ms J). He also did not challenge the mother about their truth in his cross-examination of her (which he had completed prior to his removal from court). Police records confirm that he was charged apparently in relation to each of these alleged assaults.
The mother and Ms J both say that they were reluctant to assist in the prosecution of the father in the Local Court and that were “forced” to give evidence that he was not violent or abusive to get him out of trouble.
I am satisfied that the mother’s explanation for failing to give evidence that would result in the conviction of the father is believable and consistent with the police records which indicate that on two occasions the mother did not provide police with details of an incident when they had been called to the home and that the charges were dismissed when heard in February 2010.
I am also satisfied that the father assaulted the mother and Ms I in May 2013. Although the charge of assault occasioning actual bodily harm (the assault on Ms I) was dismissed on appeal, no details about the circumstances of the appeal or transcript setting out the reasons that this conviction was quashed have been provided. Further, while it may be that a court was unable to find that offence proved to the criminal standard, that assault also founded the making of an ADVO for two years. The ADVO was confirmed on appeal where the relevant standard of proof is the balance of probabilities. The assault against the mother, which was confirmed upon appeal, also grounded the ADVO.
As the father has not set out any version of events in relation to any alleged assault in his affidavit and did not challenge the mother under cross-examination concerning these events, I am satisfied on the balance of probabilities that each of them occurred as alleged. I am also satisfied on the basis of the evidence of the mother and two older daughters that the father has been violent and controlling against a number of the family members, particularly the girls throughout the parties’ relationship and prior to separation.
On the basis of my findings that the father has assaulted the mother, Ms J, Ms H and Ms I and has behaved in a controlling manner against all family members, I am satisfied that there is an unacceptable risk that the father will assault B, C and D should he have unsupervised time with them, especially as these children mature and individuate and may resist the father’s attempts to control their behaviour.
The Law & Discussion
The objects of Part VII of the Act and the principles underlying them set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in the child’s best interests.
Primary considerations
The primary considerations as applied to B, C and D (under s 60CC(2)) are:-
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Greater weight is required to be given to the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence than to the benefit of having a meaningful relationship with both parents.
Meaningful relationship with both parents
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[5] (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.
[6] (2007) Fam LR 518.
[7] [2006] FamCA 994.
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
The orders proposed by the ICL which are very similar to those proposed by the mother, and ultimately adopted by her, provide for the children to live with her and spend no time or communicate with father. The ICL also proposes that the father be restrained from approaching, contacting or communicating with the mother or children or entering or remaining in their home or schools. This proposal envisages that the children would not have any form of relationship with their father.
As previously noted, the father’s proposal is not entirely clear. As one stage, including at the commencement of the proceedings he proposed that the children live with him and spend time with their mother “as agreed”. If this proposal is intended to suggest that the relevant agreement much be reached between the parties, I am of the view that this would not occur and that there is a real risk that the children would not share a meaningful relationship with their mother. However, the tenor of the father’s affidavit, his cross-examination of the mother and his position stated to the family consultant and when the matter was being fixed for trial indicates that his actual proposal is that he spends some time with C and D only. The time he proposes appears to be something less than that which would support him having a significant or important relationship with them.
In these circumstances the question to be determined is whether there is a benefit to the two younger children in having a relationship with the father, albeit one which is less than a significant relationship.
While it often can be said that it is clearly beneficial for children to share a meaningful relationship with each of the child’s parents, and this is consistent with the objects and principals with the Act, for the Reasons given when considering the balance of the best interests considerations, I am of the view that there is no benefit to the children in this family having a relationship with their father. In these circumstances there is no disadvantage to them in the orders proposed by the ICL.
As the Full Court said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The need to protect the children from harm
This consideration requires the court to evaluate the extent to which the competing proposals protect the children from physical and psychological harm from being subjected or exposed to abuse, neglect or family violence.
As I understand the ICL's case, there is a significant need to protect the children from harm having regard to the experience of all of the children in the care of the father. It is the ICL's contention that court orders should not only specifically provide that the father spend no time with the children but there should also be a prohibition on him contacting or approaching or attempting to contact, approach or communicate with the children or mother. The mother supports the ICL's contention that such an order is required to protect the children from harm of this type.
In his Memorandum to Court following the Children’s and Issues Assessment (CAPIA) the family consultant expressed the following opinion
If the court determines that there is substance to the allegations that [Mr Adair] has instigated physical violence towards the children and controlling behaviour in his relationship with [Ms Adair] then it may be necessary that D particularly is protected from him.
For the reasons previously given, I am satisfied that there is an unacceptable risk that the children will be subjected to physical abuse if they are to spend time with their father as he proposes. I am also of the view that there is an unacceptable risk that they will be subjected to the father’s coercion if he has any form of contact with them, given his previous conduct towards the older children in controlling many aspects of their life.
I am also satisfied that the children would by physically and psychologically harmed if they were subjected to physical abuse or family violence as a result of the father’s conduct. It is particularly concerning in this regard that Ms I describes the impact upon her of the father’s assaults, which resulted in her being hospitalised and her education interrupted. This evidence was unchallenged by the father and I accept and attach significant weight to it.
In my view at the very least the father’s time with the children should be supervised if it is to occur at all. The father makes no proposals for supervision and given his uncompromising attitude towards agencies such as police and the courts as to his “rights” with respect to his children, there is no prospect that he would consider any form of supervision to mitigate the risk of harm he poses. An application of this consideration to the competing proposals favours the orders proposed by the ICL.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
What are the views of the children and factors underlying those views?
When interviewed by the family consultant for the purposes of a CAPIA in June 2014, B said that she did not want to see her father as she did not like him. When she was asked the reason for these views she said “he make our life like really hard, he was always putting us down and having fights”. B went on to say that since her father had left the house she no longer had to worry about him coming home. When asked how she would feel if the court ordered that she should see her father she was reported to having said “[I] wouldn’t want to see him” and “[I] just want to live with my mum, sisters and brother”.
C reported to the family consultant that the father had never talked to her even before he left the home and said that she did not miss him. When asked how she would feel if it were decided that she should see her father, it is reported that she said she would “go with it” but wouldn’t like it and would “just fake talk to him”. She added “I don’t really like him”.
When D was asked if she missed her father she shook her head. Given her age at the time of the interview (six years and seven months) her views in relation to the future parenting arrangements were not sought.
Each of the children who were under 18 and were interviewed by the family consultant expressed embarrassment and concern about the family’s living conditions and the condition of the home.
Given the ages of B and C in particular I attach significant weight to their views that they do not wish to spend time with their father.
What is the nature of the children’s relationship with each parent and other significant persons?
The views of the children given to the family consultant also reflect the nature of their relationship with their parents. Each of the children under consideration is estranged from the father and each have a number of complaints about him which appears to have impacted upon their relationship. While only D had some positive memories of her father (being that he used to play with her) none of the children had any desire to see him.
Each of the children presented to the family consultant as “closely aligned with [Ms Adair] and each other”. The family consultant opined that “this may reflect lived experiences of [Mr Adair] but may also reflect that they have been subjected to undue pressure regarding their family’s circumstances by [Ms Adair]”. The father had complained at the CAPIA interview that the children were heavily influenced by the mother. On the basis of the evidence before me I am of the view that their close alignment with each other and their mother reflects their lived experience with a controlling and abusive father.
Although this matter does not concern the parties’ adult children, it is in my view relevant that since separation none of the adult children spend time with the father because in the mother’s words “he wasn’t close to them”.
So far as the children who are the subject to these proceedings are concerned, they also have not spent any time with their father since separation.
To what extent have the parents taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children?
Little is known about the way in which the parents contributed to decision making regarding the children prior to separation. Although the father makes some allegations about the mother’s dominating role in decision making, I am satisfied that it is he who engaged in controlling behaviour towards the family which is likely to have also related to long term decision making regarding the children.
Since separation the father has not participated in any decision making with the children or spent time or communicated with them.
As I understand it, the father appears to contend that he was prohibited from having a relationship with his children because of the ADVO which was in place for two years from October 2013. However, the terms of that order did not prevent him from contacting the protected persons through his legal representative, and he was not prohibited from having contact with C or B under that order. In these proceedings at no time did the father seek interim orders in relation to time with the children.
Only one of the children, C who was just over 11 when interviewed, referred to occasionally seeing her father after separation at the train station. She said that on those occasions she did not speak to him and he did not speak to her.
To what extent has each parent fulfilled or failed to fulfil their obligation to maintain the children?
Although there is no specific evidence in this regard, it appears that the mother has assumed all financial responsibility for the children since separation. The father does not assert that he has contributed towards maintaining the children following separation.
Likely effect of change in the children’s circumstances
The proposal of the ICL which is supported by the mother, that the children live with the mother and spend no time with the father, would result in no change in circumstances for the children. The proposed orders restraining all contact and communication between the father and the children may give the children some added security that the father will not contact them or attempt to spend time with them.
As indicated, the father’s proposal in the proceedings was not entirely clear. The proposal that he seemed to be pursuing, that he spend time with the two younger children only would bring about some change in the children’s circumstances. If this time were to be limited today time contact (only as it appears the father may envisage) this would not involve significant separation from the mother. However, neither C nor D were particularly inclined to see their father and it is likely that they may find spending time with their father in some way stressful, particularly if he continues his controlling pattern of behaviour that he engaged in prior to separation.
Is there any practical difficulty or significant expense involved in spending time with and communicating with the other parent?
Neither of the proposals involve any practical difficulty or significant expense in this regard. Under the ICL and mother’s proposal the children would not spend any time with the father.
What is the capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs?
The evidence concerning the father’s conduct towards the children in my view demonstrates his limited capacity to put their needs above his own. First, all of the children interviewed by the family consultant complained about the physical circumstances in their home and the father said in his interview with the family consultant that he did not have the capacity to provide suitable accommodation for his children. For the children, their physical circumstances is a cause of social embarrassment while the father’s attitude apparent in his affidavit and in his conduct in the proceedings is that he regards the home as appropriate and adequate.
The extremely limited material contained within the father’s affidavit concerning the children, and his focus on matters which were not associated with their needs or well-being (such as shortcomings in the mother and her family in the early years of the marriage, immigration issues and relationships with his neighbours) raise real issues about the father’s insight into his children’s needs. Similarly, in the conduct of the proceedings and the cross-examination of the mother in particular the father focused on matters other than the children.
Further, each of the children when interviewed raised matters that give rise to concerns about the father’s capacity. B complained that the father “made our life like really hard, he was always putting us down”. C complained that her father “never talked [her]” and “wasn’t really there” and D reported being “scared of her father because he would not allow her to watch television when she came home from school”.
The mother appears to have had the capacity to meet the children’s day to day needs despite living in difficult circumstances with substandard accommodation. The children appeared to the family consultant to be strongly aligned with her and there was undisputed evidence that the older children supported her travel to Country F to visit her family and by agreement took care of the younger children in her absence.
All of the eight children have excelled academically. Three of the eldest children attended a selective high school and all of them have studied subjects such as Law, Pharmacy, Teaching and Psychology at university. This achievement reflects well upon both parents’ capacity to meet the children’s educational needs and support within the home for school and university education. The youngest children who have been under the mother’s care for three years are flourishing at school and at the time of the hearing C who was in year 9 was to receive an award for having the highest academic achievement for all subjects in 2015.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent.
The children in these proceedings are three of a closely knit sibling group of eight who are closely aligned to their mother. Although there is no detailed evidence concerning this matter, it appears that the family are of Country F heritage and will continue to be exposed to the culture and traditions associated with this heritage in the care of their mother. Despite some difficult circumstances, especially being raised in substandard housing, the children appear to be particularly academically gifted and have all achieved academically to a high level.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Although there was significant conflict within the household while the parents’ relationship was intact and the father often displayed coercive and controlling behaviour towards his family, it appears that both he and the mother had a responsible attitude as parents in promoting the benefits of education.
However, the father in my view has a poor attitude towards his female children in particular in expecting obedience at all times from them. He was coercive and physically violent towards them when they behaved in a manner that appeared to him to challenge his authority and in doing so he showed a poor attitude to them and the responsibilities of parenthood. Similarly, the father’s failure to engage with the children since separation also casts his attitude towards his children and his responsibilities as a parent in a poor light.
Family violence
The issue of family violence is a weighty matter which has been already dealt with at length in these Reasons.
Would it be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children?
There are some risks of further proceedings in making the orders sought by the father that he spend time with the children. As the level of co-operation and communication between the parents is non-existent, the mother may not make the children available to the father and given their ages the older children themselves may not co-operate with such orders. Given the father’s attitude towards his rights and expectations of the children’s behaviour there are real risks that he would institute further proceedings. However, in the circumstances of this case where matters such as family violence, the need to protect the children from harm and parental capacity are so significant this is not a weighty consideration.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. In Goode & Goode[8] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[8] (2006) FLC 93-286
In this matter, the father seeks that the parents equally share parental responsibility for the children and the mother and the ICL seek that the mother be allocated sole parental responsibility for the children.
Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B, an order providing that a parent have sole parental responsibility for the children must mean that the parent would have all the duties, powers, responsibilities and authority which by law parents have in relation to children and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the children.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
For the reasons given I am satisfied that the father has engaged in abuse of other children in the family and family violence and for this reason the presumption does not apply.
Having regard to my findings concerning the father’s family violence and controlling behaviour and both parents proposal that the children live with the mother, I am of the view that it would be in the children’s best interests for the mother to be allocated sole parental responsibility. The mother separated from the father as a result of his violence and they have not effectively communicated with one another for nearly three years. In these circumstances there is no likelihood that they could cooperatively reach decisions in relation to their children.
Conclusion
Having regard to the views of the children, my findings concerning the father’s violence and coercion, and the nature of the children’s relationship with each of the parents, I am satisfied that there is little or no benefit to the children in having a relationship with their father.
For the reasons given, on the basis of the father’s past conduct and likely future conduct, there is a significant need to protect the children from harm. At the very least, if the children were to spend time with the father it should be for this reason in a supervised setting. However, the father does not propose that his time with the children be supervised and he demonstrates no insight into the risk he poses to them. For these reasons I am satisfied that the order proposed by the ICL are in their best interests and accordingly those orders are set out at the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 May 2016.
Legal Associate:
Date: 11 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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