ALBERT & WORKMAN

[2020] FCCA 2979

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERT & WORKMAN [2020] FCCA 2979

Catchwords:
FAMILY LAW – Parenting – interim orders – 2 children, aged 12 and 10 – whether the Father should spend unsupervised time with the children – where the Father has a history of violence and aggressive behaviour – where the Father has potentially sought to emotionally manipulate the children – unacceptable risk of harm – best interests of the children.

Legislation:

Family Law Act 1975 (Cth) VII

Cases cited:

M & M (1988) FLC 91-979

Applicant: MR ALBERT

Respondent: MS WORKMAN

File Number: MLC 9867 of 2019

Judgment of: Judge Betts

Hearing date: 8 July 2020

Date of Last Submission: 8 July 2020

Delivered at: Newcastle

Delivered on: 4 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Paterson

Solicitors for the Applicant: Malkin Lawyers

Counsel for the Respondent: Ms Dunlop

Solicitors for the Respondent: Aab Lawyers Pty Ltd

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. The children spend supervised time with the Father for up to three (3) hours each alternate Sunday at an agreed location or failing agreement as nominated by the supervisor.

2. The supervisor for the purposes of this order is to be a professional supervisor or such other supervisor as agreed between the parents.

3. The costs of supervision are to be borne by the Father in the first instance and such costs be reserved to the trial Judge.

4. The matter is adjourned to 9.30am on 5 November 2020 before Her Honour Judge Harland for directions including the possible ordering of a Family Report and setting the matter down for trial.

NOTATION

A.The extant interim orders have not been discharged, for instance the FaceTime communication is to continue.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

No. MLC 9867 of 2019

MR ALBERT

Applicant

And

MS WORKMAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them more readable.

Overview:

1. These proceedings concern interim parenting arrangements for two children:  X, who is twelve years of age, and Y, who is ten years of age.  They are the children of the Applicant Father, Mr Albert, and the Respondent Mother, Ms Workman. 

2. The parties were in a relationship from around April 2007 until May 2014.  The Mother has always been the primary carer for the children, including after separation.  There is some dispute as to the exact time the Father spent with the children in the period between May 2014 and May 2019, but he seems to have regularly spent time with them on weekends and, it would seem, for some holiday periods.

3. These proceedings are somewhat unfortunate in many ways.  They were instituted by the Father on 30 August 2019 because, put simply, his parenting relationship with the children had effectively broken down.  This arises as a result of an incident that occurred in May 2019, which involved the Father perpetrating family violence towards his partner, Ms A.  At the interim hearing the Father acknowledged that behaviour to be unacceptable, although the extent of the violence and what actually happened that day is not agreed.

4. The proceedings have been in her Honour Judge Harland’s list in Melbourne and they have been referred to me more recently for interim hearing pursuant to the Court’s national relief scheme.  There have been earlier orders for a Child Dispute Conference and a Child Inclusive Conference. 

5. There are presently interim orders in place made on 23 April 2020.  Pursuant to those orders the Father is to have FaceTime, Skype or telephone communication with the children three times a week.   X is to re-engage with a psychologist for non-reportable therapeutic counselling with a view to being re-introduced to the Father, with the parties to share in that expense.  The parents have been ordered to undertake a “Tuning in to Teens” program.  An injunction has been made against the Father, restraining him from consuming or being under the influence of alcohol, together with his partner, Ms A, during any time that they have the children, or within 24 hours prior.  The Father is to attend upon his clinical psychologist.

6. The matter has some difficulty.  Essentially in November 2019 the Father’s relationship with the children re-started by way of supervised time - but it has since ground to a halt again after the fifth visit on 2 February 2020 by which time other problems had emerged.

7. In a nutshell, the parties have starkly competing proposals.  The Mother is proposing that the Father spend face-to-face time with the children again, but on a supervised basis for two hours on an alternate Sunday at an agreed public place.  She does not want the Father’s partner, Ms A, to be acting as supervisor.  She is proposing that there be a professional supervisor engaged at her expense, or that the maternal grandfather Mr B Workman, or his partner Ms C, supervise the time.  She is proposing outside venues so as to minimise health risks.

8. I should say that at the time the matter was argued before me in July 2020, Melbourne was subject to a Stage 3 lockdown.  I understand that Melbourne is now subject to a Stage 4 lockdown, which I presume would almost certainly encompass the Father’s locality given that he lives in Suburb D with his partner, and I assume it also includes the Mother who lives at Town E, which is to the east of Melbourne.  In any event, it is common ground that COVID-19 has, in this case, like in so many other cases, wreaked havoc on families and children and, to some extent, on the Court’s capacity to craft orders that are in children’s best interests in such trying and unprecedented times.

9. The Father has a very different proposal.  He seeks the orders set out in exhibit “F1” which was tendered by his counsel, Ms Paterson, at the interim hearing before me.  Essentially, the Father is seeking to spend unsupervised, fairly limited time with the children, initially on a daytime basis, but building up to some weekend time, including overnight time.  He is also seeking some holiday time.

10. The Father opposes supervision by either the maternal grandfather or his partner.  There are, in any event, difficulties with the maternal grandfather, who the mother lives with.  He has significant health conditions, as set out in the material before me.  He is definitely a person who would be at elevated risk of serious complications in the event that he were to catch COVID-19.  He does not seem to be an appropriate supervisor on any basis in this case and, in any event, the Father opposes him acting in that role anyway.

11. So the real issue in this case, or the “gatekeeper” issue – is whether the Father’s time should be supervised or not. 

12. So does the Father’s time need to be supervised at all?  Does he pose an unacceptable risk to the children if he were to spend unsupervised time with them? 

13. Ms Paterson contended that the Father did not pose an unacceptable risk, and that if orders were made for him to spend daytime-only time, then the issues relating to his alcohol consumption and associated aggressive or violent behaviour can be appropriately met.  She particularly noted the existing injunction in relation to alcohol. 

14. Ms Paterson points out that, given the situation in Melbourne at this time with COVID-19, contact centres are not operating in any normal fashion and, indeed, life as Melburnians know it has gotten even worse since then, with the city in a Stage 4 lockdown.

15. So the difficulty is – as I emphasised to Ms Paterson, and also to Ms Dunlop of counsel, who appeared for the mother – the Court has to weigh up the balance of the section 60CC considerations in terms of arriving at a best interest decision on an interim basis.  It is no easy task because if I make an order for time to occur at a contact centre, or with some other agreed accredited supervisor, then there is a risk, if not a reality, that at least in the foreseeable future there will be no time at all and the Father will be relegated to FaceTime communication only.

16. This is hardly an optimum outcome.  But as I indicated to Ms Paterson, if I am of the view that unsupervised time poses an unacceptable risk to the children then I really have little option but to accede to the Mother’s orders.  In this context the High Court explained the meaning of “unacceptable risk” in its decision of M & M (1988) FLC 91-979 and I do not propose to re-state what the High Court said.

Analysis of risk factors:

1. The risk in this case relates to a number of issues concerning the Father’s behaviour, and in particular his past history of violence.  Some of it is agreed; some of it is in dispute.  But it casts a long shadow over the parties in this case and, in many ways, it informs the manner in which the case has been litigated.

2. The Mother’s case is that the Father:

   (a)had anger management problems and at times could display what might be called “explosive anger”;

   (b)had a history of perpetrating family violence towards her throughout the relationship.  Specifically that he has behaved in a violent fashion towards her on many occasions, and that, ultimately, an intervention order (“IVO”) was needed to be taken out by her, which he subsequently breached. 

Breach of IVO:

1. The Father breached that intervention order in what might be called spectacular circumstances in May 2014.

2. At the interim hearing, the Police subpoenaed material was not available.  I am therefore referring to my notes of what was submitted to me by Ms Dunlop as being contained in the Police subpoenaed material.  Ms Paterson conceded it was accurate.

3. The breach of IVO to which I refer occurred in May 2014.  According to the Police records, the Mother was thought to be in a relationship with a new man, or an unknown male, who worked with her at Organisation F.  The Father had been harassing and contacting this man and had even threatened to kill him, saying that he believed that he was in a relationship with the Mother.

4. The Father ultimately ended up attending the Mother’s workplace, where this man also worked - and where the Father ended up being arrested.  Organisation F was sent into a lockdown as a result of his behaviour.  It is an extremely serious matter. 

5. The Father admitted breaching the IVO.  He did cooperate with police, to his credit.  He was, ultimately, given a community corrections order and it was directed that he undertake treatment for alcohol abuse or dependency as directed.  He was also ordered to undertake an anger management course.

6. To be clear, the Mother’s case is, and it seems to be conceded, that the Father had been texting the Mother regularly.  Doing so was in breach of the IVO in any event.  The May 2014 event seems to have been “the straw that broke the camel’s back” and ultimately resulted in Police involvement.

Father’s fight with his brother:

1. Continuing chronologically, in February 2015 the Father was again involved with Police after an altercation with his brother.  It seems that they had a physical altercation in which his brother pulled a knife on the Father.  It was a violent event.  It seems that the Father’s brother was the major instigator on that occasion.

Father incarcerated in Darwin:

1. In 2018, the Father found himself in Darwin.  He was at a hotel.  On this occasion, he was presumably drinking and he got into some sort of a physical altercation with a person at the pub.  He ended up spending two nights in custody as a result of this event.  I do not have any subpoenaed material in relation to this matter, save to note that it was a violent altercation at a pub.  It is unclear to me whether the Police kept the Father in custody.  Perhaps it was for his own protection or for the protection of others, and it is not clear why he didn’t simply get admitted to bail immediately.  But in any event it is a matter that causes me some concern.

Country G trip in 2019:

1. In 2019, the Father took the children on a trip to Country G.  The children later complained to the Mother that during the holiday the Father had become angry and had been throwing and breaking plates.

Altercation between the Father and his partner on 23 May 2019:

1. But what, ultimately, led to the parenting arrangements breaking down was the unfortunate altercation between the Father and his partner on 23 May 2019. 

2. Now, the details of this event are not entirely agreed, but enough is agreed for the Court to be able to get a pretty reasonable picture of it.  The Mother’s case is that the Father has previously been violent towards Ms A.  She is concerned that he would behave in such a manner because that was her own experience when she was living with him.

3. What happened on 23 May 2019 was that X called the Mother, crying, saying that the Father had thrown a clothes rack and there was blood everywhere and he wanted to be picked up.  He told the Mother that Ms A was hurt.  He sounded scared and distressed. 

4. The Mother collected the children from the home.  According to the Mother, Ms A came out to see her and confirmed that the Father had been violent.  The Mother said that Ms A’s face looked red, she had a cut under her nose, and she looked like she had been crying.  She could not tell whether her face was bruised or just red from crying a lot. 

5. After this event the Mother stopped the Father’s time with the children.

6. Notably, Ms A called the Mother afterwards to blame herself for the Father being angry.  Understandably, it seems to me, the Mother was somewhat suspicious about this.  I say this because the Mother’s own evidence is that she herself during her relationship had given the Father, it would seem, many “second chances” and had otherwise “covered for him” or not made complaints to Police when he behaved violently.  (Indeed, even in the Father’s material he annexes a letter written by the Mother wherein, despite this harrowing incident at Organisation F lockdown (in May 2014), the Mother was asking the court that the Father not be sent to prison.

7. Returning to 23 May 2019, the children were affected by this event.  X did not want to talk to the Father who he was afraid would be angry at him.  The Father tried to make contact with the children, but it is clear that the co-parenting situation broke down, and it was not long after this that the Father ended up commencing proceedings. 

8. Of course, the Mother was not present for this event on 23 May 2019; she does not know what happened apart from what she has been told by others.

9. The Father’s version of events in relation to 23 May 2019 is somewhat less serious - but still of concern.  His evidence is that the children had gone to bed and that he and Ms A had a verbal disagreement.

   ‘We had been drinking and Ms A was standing near the clothes horse with wet clothes on it and became tangled in it.  Ms A and I then had a verbal disagreement that was louder than we had thought as it caused X to get out of bed.  Ms A pushed the clothes horse at me, and I pushed it back at Ms A.  I then sat down on the couch, and out of frustration threw the remote onto the floor.  At this point, I looked up and saw X.  X started crying, stated he wanted to call his mother.  Ms A gave X her phone to use to call his mother.  X was upset and both Ms A and I felt terrible that he had been woken by our argument and had come out.  I was upset and went outside and sat in my car for a while to calm down.  During this time, Y also came out and both children sat in the lounge with Ms A.  When I came back inside, I gave both the children a cuddle and said to the children that I wouldn’t be seeing them for a while.

10. The Father deposes that X said:

    Don’t be silly, Dad.  We’ll see you soon, like normal.  Mum wouldn’t do that.

    He deposes that neither child was scared.

11. The Father denies that there was blood everywhere.  He admits that Ms A had a cut above her lip, but says that this was due to the fact that, he says, she had just returned from a trip to Country H and had been extremely ill with tonsillitis, a chest infection, a cold and had been blowing her nose for days on end.  So he says that she had that cut on her face as a result of the illness.  He says that they were both intoxicated but were not extremely drunk.  But he admits, ultimately, that his behaviour on that evening was unacceptable.  He also understands that it would have placed X in a frightening and upsetting situation.

12. I accept that the Father loves his children immensely, as he deposes to, and he swears that he regrets having placed them into that position.  He says that he has gone onto a mental health plan, and is in fact seeing a psychologist to assist him.

13. It seems that Ms A did not want to make any complaint to police in relation to the events of 23 May 2019.  Notably, she has not given a statement or an affidavit for the purposes of these proceedings.  So I do not know what her version of events is.

Father’s supervised time with the children:

1. The Father subsequently spent some supervised time with the children on five occasions between 29 November and February 2020, and I have the supervisor’s affidavit before me about that, which gives me details of each of the visits.  These visits seem, in the main, to have gone pretty well.  The children seem to enjoy spending time with their dad.

2. But there are a couple of problems that did emerge.  Firstly, on 28 January 2020, just prior to the fifth and final visit on 2 February, the Father included the children in a private chat group message which said:

   ‘Sorry I couldn’t be there for your first day of high school, mate, and your first day in grade 5, my girl.  Miss you heaps.  Promise our life together will be back to normal soon.’

3. This is a somewhat innocuous, if not sad, message.  But the problem was that the Father was restrained at that time by an IVO from sending such a message to the children.  Though this is not in any way an aggressive message, nonetheless it constituted a breach of an IVO to which I understand the Father is pleading guilty.  More insidiously though, the message in my view could be seen as laying a fairly heavy “guilt trip” - particularly on the oldest boy, X, who seems to be more susceptible to such matters.

4. The Father’s version of events is that, from back in May 2019 when he had had this altercation with Ms A, he had almost immediately realised that there were going to be problems in him seeing the children for a while.  This explains why he told X in the above chat message that he would not be seeing them for a while. This, of course, prompted X’s response:

   ‘Don’t be silly, Dad.  We’ll see you soon, like normal.  Mum wouldn’t do that.’

5. I am troubled at the potential emotional manipulation that the Father might be engaging in in this case, which appears quite clear in his own words. 

6. On 2 February 2020, the day of the last supervised visit, the Father included the children in an Instagram post.  There was some conjecture about what the post actually symbolised.  Essentially, it is a picture of a beautiful waterfall, with the words, “Life is pretty shit at the moment.”  The Father it seems to me - and I understand and accept the submission that he makes - intended it as a form of joking sarcasm.  That is, that he was having a terrific time in a beautiful location, and, in that context, it makes sense.

7. The problem though is that X seems to have been rather affected by that message and, again, he seems to have taken it as a “guilt trip.”  Perhaps his Mother influenced him in that regard.  There is some evidence in the CIC and CDC Memoranda about the Mother’s potential influence on the children, but at this time it is not possible for me to make a finding either way - other than to observe that the Instagram post did seem to adversely affect X.  So much was stated by the Mother in her affidavit.  It is also apparent from the affidavit of the supervisor that there were real problems with the supervised visit on the day of that post.

1. According to the Mother, X was concerned (from the post) that the Father might be depressed.  Both children were reluctant to attend the session that day, and the Mother says that she essentially pushed them into going. 

2. According to the supervisor, at the start of the visit the Mother did advise that the children did not want to attend that day. 

3. At pages 9 and 10 of the supervisor’s affidavit, the supervisor recounts being at a fast food type restaurant, and that X said he felt tired, and Y said she didn’t feel well and she appeared to be yawning during the visit.

4. When they approached Location I, X walked behind his Father and sister and showed the supervisor the Instagram post the Father had sent that day. According to the supervisor, X appeared to be very concerned, stating that it looked like his Father was depressed. 

5. X said to the supervisor that he did not understand why the Father would feel like that, and the supervisor said maybe the Father was upset, maybe he should just ask him.  X walked up to his Father and asked him why he put the post up.  According to the supervisor, the Father just waved his arm in response and told X it was nothing, saying, “Don’t worry about it.”

6. Regrettably, a little later the supervisor got up and left the Father alone with the children while she went to get some coffee.  She says that she returned immediately and that at all times the Father and the children remained within her line of sight and earshot.  I suspect the supervisor may be cross-examined at trial about this, because the Father’s counsel properly conceded that the supervisor really should not have gotten up and left at all. 

7. Sadly, there is in any event now a dispute as to what in fact happened in that brief moment when the supervisor was away.  In paragraph 18 of the Mother’s affidavit she deposes:

   ‘When I collected the children from the supervisor, they were both very distressed.  The children said they were upset because the father asked X if he told the supervisor about the picture he posted.  X said, “Yes,” and the father became angry and said, “Fuck this, now I’ll never see you.”  The children said the supervisor was not there at the time.’

8. The Mother says the children are worried and distressed because the Father had a past history of becoming angry, swearing and becoming physically violent.  The Mother later complained about the supervisor leaving the children alone with him. 

9. The Mother’s version of events as to what happened when the supervisor walked away is credible.  It would be consistent with the earlier event that day, when X did in fact show the post to the Father, who apparently waved him away with a “Don’t worry about it”.  If the Mother’s version of events is right, then it might make sense for the Father, in that brief moment, to make an enquiry of X to find out exactly what the supervisor had been told.

10. The Father denies the Mother’s version of events as to what he said when the supervisor walked away.  The supervisor, though not physically present as she should have been, effectively denies the Mother’s version of events as well. 

11. In any event, it is clear that X did want to leave early that day.  Whatever happened, whether anything happened in the brief moment the supervisor was away or not, it is common ground that X wanted to leave early.  He did not want to be there.  He had tears in his eyes.  The supervisor asked him why, and he said he did not feel well, and he referenced some physical activity he had been undertaking.  Y also did not feel well.

12. I am greatly troubled by this event - which must be looked at against the backdrop that this is a boy who, on the Mother’s case, has been witness to family violence and who has been subject to emotional manipulation.

Father’s past involvement with Police:

1. The Father is not a person who comes to the court without a history of problems for violence and other aggressive behaviour. 

2. In 2001, he was convicted for breaching an IVO against somebody else.  Although no conviction was recorded, this was nonetheless a matter involving an IVO breach.

3. There was also an offence of discharging a missile causing injury.  This relates to a different person altogether, not the mother.

4. In 2003, he was convicted of threatening to kill, unlawfully assault, and being in possession of a Category A longarm firearm and ammunition without a licence.  This followed the Father’s alleged threat of harm to his brother-in-law, who then contacted police.  Police attended the Father’s home and discovered the firearm, the ammunition, and he was charged and convicted of these offences.  He was given a community-based order for twelve months, with a fine and a forfeiture order, and ordered to undertake an anger management course.

5. Subsequent to that course, it is the Mother’s case that, throughout the relationship, the Father was violent towards her.  I have already recounted the very serious event when Organisation F went into lockdown.  I have recounted the violent incident with his brother in 2015; the event in Darwin in 2018, where he ended up in custody; the Country G trip in 2019; and then I go to this incident with Ms A on 23 May 2019, who is not called as a witness.  On the most serious version of events it is a very serious act of family violence, but even on the Father’s account, his behaviour was unacceptable at best.

6. And then I have what appears to be emotional manipulation, not necessarily even intentionally so, but emotional manipulation and the Father allegedly blurting out to the children in a dysregulated way, “Fuck this, now I’ll never see you.”  Such a comment would be entirely consistent with the very thing he said when he found himself “in a corner” on that fateful evening with Ms A.  That is exactly what he said to the children then.

7. And the trouble is, not only that there is an alleged family violence history in this case, and significant evidence of family violence, but that X in particular is impacted by it.  I should be clear in saying that the Father has had at least three IVOs that I am aware of:  one back in 2001 that he breached; an IVO protecting the Mother that he breached in 2014; and an IVO in 2019 that he breached by sending the private chat group message to the children about being sorry that he couldn’t be there for their first day of school.

Section 11F Memoranda:

1. The section 11F Memoranda raise a question mark, in some ways, as to the Mother’s genuineness. 

2. Family Consultant J sets out what each parent says about the other.  The Family Consultant says that the Father appeared to take responsibility for causing fear to the children during the evening of 23 May 2019, and also appeared to have child-focused insight into how the children are responding on an ongoing basis.  The Father said that in hindsight he felt X needed reassurance that he was not depressed, and that X was not responsible for the situation they are in.

3. The Family Consultant observes that the Mother appears to have reacted to X’s recent experiences from a position of her own past experience of the parental relationship, and that she had possibly validated and even amplified X’s fear on an ongoing basis. 

4. According to the Family Consultant:

   ‘The writer is in no way attempting to minimise the impact that these events have had on X;  however, the mother does not appear to have helped X frame them as individual and unrelated occurrences, and has, therefore, missed the opportunity to model appropriate interpersonal conflict management strategies for him.’

5. I find that a surprisingly harsh assessment by the Family Consultant, given that the Mother’s case is that the Father has displayed violence throughout their relationship.  It seems to me, with respect, that the Family Consultant almost expects the Mother to behave as the perfect parent.  No-one is perfect, and if she has experienced the violence that she describes, then it is difficult to be overly critical of her about what she alleges - particularly where it is common ground that the Father has breached IVOs and where he admits to behaving in an angry fashion.

6. It also seems to me that the children are somewhat anxious about seeing their Father.  To be fair, they give mixed messages.  They talk about wanting to see him.  They talk about wanting the time to be supervised.

7. The Family Consultant observes that X became highly distressed due to the Father displaying anger and aggression towards Ms A during an argument, while under the influence of alcohol.  He said he was feeling more secure in his Father’s company, until the final supervised session when he again began to feel anxious because he perceived that the Father was angry at him.  He was eager to spend time with the Father but did not want to spend overnights.  He wanted supervision, because he said he did not trust the Father not to become angry and try to make him feel guilty, as he has done in the past.  He wanted to see that the Father had made changes in his life.

8. The Family Consultant, again, raised a concern that some of the recommendations or suggestions by X seemed to have an adult influence, and that they may have contrasted his otherwise confident and solution-focused demeanour. 

9. In relation to Y, she also said she wanted to see her dad, but only if X was there, because he was her security.  She said she felt scared after the incident in May 2019, but after spending time supervised with the Father, she no longer felt scared.

10. Y said that the Mother did not trust the Father and that he was dangerous.  Y went on to say she did not feel he was dangerous, and she would feel safe.  The Family Consultant says that X used similar language.

11. The Family Consultant observed that, although there were no overt signs of the children having been coached, there were strong indications that they were influenced by the Mother’s position, particularly with regard to her not being encouraging of their relationship with their Father. 

12. It seems to me that the Family Consultant is ultimately concluding in these Memoranda that the children should be spending time with the Father gradually, building up to alternate weekends.  With respect, I am unsure how the Family Consultant arrived at that conclusion.  The Father’s history of emotional dysregulation is a concern to this Court.

13. It is certainly possible, as well, that the Mother may be validating the children’s fears.  But in any event it cannot be questioned that the two messages that the Father sent to the children prior to the fifth visit, were at best very unhelpful, and demonstrated, it seems to me, his capacity to cause emotional harm to the children, whether he even intends to or not.

14. Certainly, the messages he sent appear to have been in breach of the IVO, and my concern in this case is the impact on X.  With reference to the consent order of 23 April 2020, what is the point in re-introductory sessions with a psychologist to assist him in that interaction, if no difficulties exist? 

15. Should the Court be bringing the children back into the Father’s unsupervised care at a time when the Father is still undergoing treatment, where he has a history of problematic behaviour, and where, on the very last visit, he is alleged to have said something entirely inappropriate, if not emotionally abusive to the children, as he did in May last year?

Analysis & Conclusion:

1. In relation to the Father’s application for unsupervised time, it seems to me that this Court should not be “putting the cart before the horse.” 

2. These children do need to build up trust in their Father, who no doubt loves them.  But the reality of the matter is that more work needs first to be done at the Father’s end to address his issues. 

3. I am also making clear to the Mother that it is her obligation to encourage the children’s relationship with him.  The orders that provide for FaceTime must be complied with.  The Father gives evidence of some patchy compliance/success in relation to such FaceTime communications.  I consider that the children would benefit from having that safe interaction and that it needs to continue, without doubt, exactly as the orders intended.

4. There has been a lengthy delay in the Father seeing these children.  Time is not neutral in this case, because the delay is unhelpful for their relationship, but some degree of rebuilding of trust needs to happen, and there needs to be, it seems to me, some significant acknowledgment and some significant progress made by the Father towards regulating his behaviour.

5. I am aware that the paternal grandmother is ill, potentially gravely ill, and that the Father would like the children to have an opportunity to see her.  This could potentially be arranged in some other way than through an order by me.  No specific order is sought about that.  I do not see any reason why such an arrangement would have to be made through the Father in any event.

6. In a nutshell, having regard to the section 60CC factors and to the evidence to which I have referred, I do not presently share the optimism of the Family Consultant.  I do not consider that I ought to restore unsupervised time to the Father at this stage.  At a final hearing, one would think that the restoration of unsupervised time would be the obvious ideal of the Court.  If I considered that it would reasonably have been open to me to restore that time at this stage, I would have done so.

7. The orders I make are made reluctantly because I accept that there will now be further delay and that there will be all manner of practical difficulties going forward.  But these are not the fault of the parties, rather COVID-19.  The reality of the matter is that I cannot place the children at unacceptable risk.  I consider that, at this time, if I were to put orders in place for the children to spend unsupervised time with the Father, even on a daytime basis, that he would be an unacceptable risk of perpetrating physical violence or like behaviour, or otherwise emotionally abusing the children.  Alternatively the children would struggle, given their own anxieties, as a result of the past behaviours to which they have been witness.

8. To the extent that the Mother may potentially contribute to their anxiety, this would be explicable on the basis of her case.  Nonetheless, she needs to do her best to encourage this relationship as much as she can within the narrow confines that it presently exists in.  Having regard to my finding about unacceptable risk, all other issues relevantly fall away.  I cannot order unsupervised time.

9. I see no reason why supervised time should be limited to two hours.  In my view, it would be entirely appropriate to have the supervision run for up to three hours. I will order that the supervisor, for the purposes of these orders, is to be a professional supervisor, or such other supervisor as agreed between the parents.

10. It may be possible for these parents to reach agreement about an alternative supervisor who can be agreed.  I encourage them to do so.  I appreciate that there will be significant practical difficulties.

11. I will order that the cost of the supervision be borne by the Father in the first instance, and such costs be reserved to the trial judge. 

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate: 

Date: 3 November 2020