Allred & Allred (No 5)
[2023] FedCFamC1F 521
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allred & Allred (No 5) [2023] FedCFamC1F 521
File number(s): PAC 2506 of 2020 Judgment of: BERMAN J Date of judgment: 28 June 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Assessment of risk – Consideration of children’s best interests – Where there has been ongoing and entrenched family violence perpetrated by the father – Where the father embarked on a relentless campaign to harass the mother – Where the father has not seen the subject children since 2020 – Where the mother seeks orders for the children to live with her and spend no time with the father – Where the father did not file any trial material and the hearing proceeded undefended – Where the father’s counsel conceded that he seeks no orders and leaves it to the Court to make any order it deems appropriate – Where the single expert’s report was read into evidence – Where the single expert opined that the father was aggressive, verbose and lacked insight – Where the children express views that they do not wish to live with the father – no time ordered. Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(2A), 102NA(2). Cases cited: Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] 55 Fam LR 310
Blanding & Blanding [2016] 55 Fam LR 218
Cotton & Cotton (1983) FLC 91-330
Champness & Hanson (2009) FLC 93-407
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
M v M (1988) 166 CLR 69
N & S & The Separate Representative (1996) FLC 92-655
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Sigley & Evor [2011] 44 Fam LR 439
Vasser & Taylor-Black (2007) FLC 93-329
B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Division: Division 1 First Instance Number of paragraphs: 126 Date of hearing: 16 March 2023 Place: Adelaide via MS Teams Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Inner West Solicitors Pty Ltd Counsel for the Respondent: Mr Iuliano Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
PAC 2506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLRED
Applicant
AND: MS ALLRED
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
28 June 2023
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for X born 2005 and Y born 2010 (collectively “the children”).
2.Y live with the mother.
3.Y spend no time with the father save and except that if Y shall request to communicate with the father, the mother will not prevent him from doing so and will facilitate communication.
4.Pursuant to s 68 of the Family Law Act 1975 (Cth) (“the Act”), the father is hereby restrained from entering or remaining in any place of residence, employment or education of the mother or going within 200 metres of her place of residence, employment or education and this order is to be considered an order for the personal protection of the mother.
5.The order for the appointment of the Independent Children’s Lawyer (“ICL”) is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Allred (“the father”) and Ms Allred (“the mother”) have been unable to reach future parenting arrangements in respect of X born 2005 and Y born 2010 (collectively “the children”).
There is a concession made by the father that the focus of the proceedings is as to the future arrangements for Y given that X is approaching his eighteenth birthday.
The parties are also the parents of three adult children Mr K, Ms F and Mr L.
The proceedings were listed for an undefended final hearing on 16 March 2023 with the father, via his solicitor, to have the right to cross-examine the mother and any witnesses that she may seek to rely on.
As will be discussed in more detail, the affidavit and attached report of Dr C filed 10 March 2021, is to be read into evidence without the need for Dr C to attend for cross-examination. The background to the matter being listed for an undefended hearing is explained by reasons for judgment delivered on 13 February 2023 as the basis for the father’s Application in a Proceeding, seeking to vacate the final hearing listed to commence on 13 February 2023, being dismissed.
BACKGROUND
The parties met in 1989 in Country B and married in 1993.
The parties migrated to Australia in 1998 and separated on a final basis on 11 February 2020. The children have not spent time with the father since the date of separation.
The parties divorced on 1 October 2022.
ISSUES TO BE DETERMINED
The mother seeks sole parental responsibility and contends that the reason the children have not spent time with the father since 11 February 2020, and that it would place them at risk if required to do so now, is based upon the mother’s allegations that during the course of the relationship, the father was the perpetrator of repeated and serious family violence.
To the extent that it is a relevant consideration to determine whether the children would benefit from a meaningful relationship with the father, that consideration is outweighed by the risk the father poses to the children.
For her part, the mother contends that the father expressed threats to kill her and that she was subjected to verbal abuse and an assault whereby the father brandished a knife in a threatening manner towards her.
A further concern is that the behaviour of the father necessitates Y spending no time with him in order for him to develop emotionally and psychologically.
HISTORY OF THE PROCEEDINGS
The proceedings were commenced by the father filing an Initiating Application on 28 May 2020 seeking that he have sole parental responsibility for the children, that they live with him and spend time with the mother as agreed between the parties.
By Orders made 4 February 2022, a Senior Judicial Registrar ordered that the mother have sole parental responsibility for the children, that they live with her and spend no time with the father. It was further ordered that the father obtain a comprehensive psychiatric review undertaken by a psychiatrist nominated by the Independent Children’s Lawyer (“ICL”).
On 23 February 2022, Hannam J was satisfied that because the father may intend to cross‑examine the mother at trial and given the allegations of family violence between the parties and the current Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the mother, the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) should apply. The notation to the Order of 23 February 2022 has some relevance to the proceedings:-
H. Upon further noting the father has been advised by the Court that:
(a)That pursuant to these orders, he may not cross-examine the mother personally.
I.The father has also been informed about the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which he may apply to that scheme for the provision of a lawyer through Legal Aid NSW. At this stage the father declines to make such application to that scheme and advised the Court he has engaged a legal representative privately in connection with the proceedings.
An Order was made by Riethmuller J on 8 July 2022 that the proceedings be listed for a hearing with priority.
On 22 July 2022, Hannam J made an Order that the proceedings be fixed for final hearing before a trial judge other than her Honour and as a result, the matter was listed before me on 29 August 2022 for trial directions. The father appeared as a self-represented litigant with the mother and the ICL being represented by counsel.
I ordered that all applications for final orders be listed for final hearing on 13 February 2022 and I put in place a trial regime such that the father was to file and serve his trial material by 4.00 pm on 28 October 2022 with the mother to file her trial material by 4.00 pm on 13 January 2023.
On 29 November 2022, I ordered that the matter proceed to trial on an undefended basis in circumstances where there had been no compliance by the father in the filing of his trial material.
As ordered, the proceedings remained listed for trial on 13 February 2023. On what was to be the first day of trial, the father was represented by counsel as was the mother and the ICL.
As a preliminary matter, the father pressed an Application in a Proceeding filed 10 February 2023 which sought the following orders:-
1. That this Application in a Proceeding be considered on an urgent basis.
2. That the hearing listed for 13 February 2023 be vacated.
3. That the matter be listed for final hearing on a date to be fixed.
The application was supported by the father’s affidavit filed 10 February 2023.
For the reasons that were delivered, I made Orders dismissing the father’s Application in a Proceeding filed 10 February 2023 and adjourned the proceedings for an undefended hearing to 16 March 2023 with the father’s counsel to have leave to cross-examine the mother, her witnesses and to make submissions as to final orders.
Dr C was not required to give evidence given the concession of the father’s counsel on 13 February 2023 that his affidavit and report could be read into evidence without the need for him to be called for cross-examination.
As at 13 February 2023, no attempt was made by the father to comply with trial direction orders nor did the father seek to rely upon any trial affidavit.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:-
(1)Further Amended Response to Initiating Application sealed 24 January 2023;
(2)Affidavit of the mother sealed 24 January 2023 (“the mother’s trial affidavit”); and
(3)Summary of Argument sealed 8 February 2023.
The ICL relies upon the following documents:-
(1)Affidavit of Dr C filed 10 March 2021; and
(2)Outline of Case sealed 10 February 2023.
THE EVIDENCE
The mother
The mother sets out in her trial affidavit that during the course of the relationship, she was the subject of psychological and physical abuse perpetrated by the father. She alleges that the father would refer to her in derogatory terms such as “slut”, “whore”, and “whore bag”.
In 2011, the mother obtained the protection of an ADVO for the first time. The mother alleges that the father had ascertained the mother’s whereabouts and followed her in his motor vehicle. She went to the local police station and advised the police that she considered the father was in breach of the ADVO. Apparently the father was identified as a driver of a motor vehicle which went past the police station. The father was charged with a breach of the ADVO.
Further conduct of the father resulted in a Personal Violence Order (“PVO”) being issued against the father.
In mid-2020 it came to the mother’s attention that it appears as though the father forced Mr L to attend the police and allege that he was the victim of an attempted abduction in 2012. The mother annexes to her trial affidavit a public document prepared by NSW Police in 2012, seeking information and assistance from the public as to the identity of the offender.
Mr L forwarded an email to the mother on 24 July 2021 confirming that he would often witness the father assaulting the mother and both he and another sibling would intervene.
Mr L states that the father forced him to go to the police with a false story alleging that he had been the subject of a failed abduction.
In early 2022, the police contacted Ms F to advise that X and Y had been dropped off at the police station with the intention of lying to the police in an attempt to ascertain the mother’s whereabouts.
The mother alleges that the father has raised false allegations in respect of the mother being a drug user and engaging in prostitution. Annexure “B” to the mother’s trial affidavit is a copy of correspondence sent by the father to Centrelink in mid-2021 in relation to an Appeal made by the mother in respect of an Application for Assessment of Child Support. The following extract is from the father’s correspondence:-
Please note that I do not want any of my personal details and information given or passed on to my exstranged [sic] wife or exchanged with her as she is mixed up in the company of trashy people. Having a previous invetigative [sic] background, I found a few people, male and female that have come forward with video evidence and informed me and others that she has been making money underhandedly by working low key in the sex industry, at strip clubs and supplying drugs, of which evidence police have recently attended my residence and requested. All this lifestyle she created while I followed the law and be torn through the system like this.
The mother maintained that she remained in fear of the father and even though there has been no recent contact between the father, the mother and the subject children, she pursued and obtained a variation of the ADVO that had been made in late 2020 such that it was extended by Order made early 2023, until late 2024 (Exhibit “2”).
The mother was asked to consider whether her negative attitude towards the father had adversely impacted upon the children and their preparedness to make contact with him. The mother’s position is that X is 17 years of age and it is a matter for him as to whether he makes contact with the father. Even so, the mother’s evidence is that she has recently spoken to X and Y to enquire whether they wanted to contact the father however, their response was that they had not done so and did not have a present intention to do so.
The mother presented as a reliable witness and her evidence as to the father’s conduct towards her being consistent with family violence, is accepted on the balance of probabilities.
Dr C
The ICL relied upon the affidavit of Dr C filed 10 March 2021 which annexed his report dated 4 February 2021 (“the report”), consequent upon a Consent Order made by Hannam J on 29 September 2020.
At the date of the final hearing, the report of Dr C was two years old. On 13 February 2023, there was discussion as to whether there should be an update report prepared. The difficulty was that neither party was prepared, nor financially able, to contribute to the fees required for an updated assessment nor for his disbursement costs in attending to give evidence.
Neither party pressed for Dr C to be called for cross-examination and as such, his affidavit and the report were read into evidence. The extent to which the time has elapsed since the report was received, is a matter for weight as to the utility of the evidence rather than its relevance.
A further relevant consideration, is the concession by the father’s counsel in final submissions that the father does not seek an order but rather leaves it to the Court to make any order that I think is an appropriate exercise of my discretion.
As at the date of assessment, Dr C interviewed the parties together with X, who was aged 14 years, Y, aged 10 years and Ms F, aged 22 years.
The reason for referral was set out in the Order made by Hannam J on 29 September 2020. A significant quantity of information was provided to Dr C including Court Orders, documents relevant to the mother and the father, a raft of subpoenaed material and a number of emails and phone messages from the father.
As is apparent from the background contained in the report, a significant focus of the assessment related to the allegation that the father was the perpetrator of family violence and that as a result, the mother contended that she had been in over 19 refuges during the 25 years of the parties’ relationship.
Dr C recorded that whilst the father accepted there had been family violence in the relationship, he did not accept that he was the perpetrator.
Dr C applied standardised testing to establish the psychological profile and parenting capacity of each of the parties.
The mother was recorded as presenting in a frank manner and unusual in assessments of this type.
The children appeared comfortable in the mother’s presence and there was clear emotional attachment between them.
The result of the formal psychological testing indicated that the mother had little insight into her own problems and appeared to be unrealistic in her positive outlook.
When asked to consider her capacity for shared parental responsibility with the father, the mother indicated that she was not prepared to do so. She did not feel that she could be safe even if it was only non-physical communication.
The father was found to present as a highly emotional and unusually demanding person.
He gave a history of work place bullying that had occurred whilst he was a member of the public service and that after his stress claim was not believed and he then felt he was under surveillance from corrupt police officers as at the date of the assessment, he had not been able to find work. The ADVO also prevented him from obtaining a qualification.
The father reported that in 2006 he had been diagnosed with post-traumatic stress disorder (“PTSD”) and in 2016 he was recommended to commence antidepressant medication.
The father gave a history of his relationship with the mother. It is apparent that their relationship was marred by frequent disagreements and at times, violent interactions. The father acknowledged that the mother had left the home on a number of occasions but he did not consider that he was responsible. Dr C records the father’s history of an incident in 2010 as follows:-
51.[The father] reported that in 2010 he and [the mother] had a physical altercation after he had accused her of being on a dating website. He explained that he had seen an email arrive to their joint email account for a dating website. ‘I thought she was cheating so I went on a few dating websites to see if I could see her. I found a picture that looked like her so I confronted her about it. She attacked me, punched me and broke my ribs, I was bleeding from the mouth’. When questioned further regarding his injuries, [the father] explained that he was the victim of [the mother]’s aggression and seemed unwilling to elaborate any further. Eventually, [the father] acknowledged ‘there was no visible break of my ribs on the x-ray, and there was no visible break on the CT scan. So I flew to Sydney where I had a bone scan and that is when they saw a break’. It is noted that no evidence to support this could be found in the documents provided.
Dr C recorded the father’s concerns relating to the alleged use by the mother of his prescription medication. Dr C recorded that the father became verbally aggressive when challenged as to the accuracy of his report.
Dr C questioned the father concerning his understanding of why X had missed more than 50 days of school in 2018.
His response was that he considered X was experiencing miscellaneous areas of pain because of a concern that the mother would again leave the home and abandon the children.
Following a conversation with a school counsellor asking why X was out of school, the police later attended, apparently because the counsellor had made a complaint that the father was being overly aggressive with the counsellor.
The father also told Dr C of his belief that the mother was working as a sex worker and the following is recorded:-
62.... He stated that he was of the belief that [the mother] was working in a brothel ‘to pay for her drug habits. She has sex parties and orgies. I know that she has a female drug affected lover at the refuge and that is why she kept going back to the refuge. She has been looking at other women since 2011, it took me a while to realise that she was really attracted to women. She didn’t go to the refuges to get her away from domestic violence, she went to be with women’. He stated that [the mother] was getting herself in debt and paying her debt back with sex, ‘I had to pay investigators to find out what was going on’.
Dr C assessed the father as being verbose, angry and verbally aggressive. He did not respond to the request from Dr C to lower his voice and at one point, Dr C indicated to the father that the assessment would be stopped if he did not moderate his tone and conduct.
Dr C assessed the father as lacking insight and awareness of his own problems and that the father was keen to establish that he was the victim rather than the perpetrator.
Dr C summarised the father’s presentation as follows:-
72.In sum, [the father]’s highly defensive response style prevented a clear picture to be found through the psychometric testing. Although noting this, it can be said that the same level of defensive behaviour and profound lack of insight was also evidenced directly throughout the face-to-face interviews. His emotional dysregulation, poor anger management and readiness to verbal aggression was evident across an extensive assessment. There is no doubt that [the father] is presently under considerable emotional and mental distress due to the dissolution of his marriage and the separation from his children, he evidences elevated signs of paranoia and persecution, manifested in his readiness to blame others, coupled with a willingness to adopt a victimised role whenever the possibility of personal responsibility was raised. There is considerable evidence that it is [the father]’s psychological profile and his response to this stress which appears to have further exacerbated the persisting conflict of this matter.
As discussed, Dr C included Ms F, aged 22, in the assessment. It is recorded in the report at paragraph 76 that Ms F considered that there was violence between her parents and “there was always a lot of verbal aggression from Dad towards Mum and the kids… Mum would then retaliate…Dad would hit us with a belt”.
Ms F remembered that her father was physically and emotionally violent towards her and that by the time she reached 16 or 17 years old, the father started calling her a “slut” and “whore”, a “prostitute” and a “drug user”. Shortly after her eighteenth birthday, Ms F left home following an argument with her father wherein she was told to leave and not come back.
Ms F reported that from about 2018 to 2021, she was concerned as to the ability of the father to look after the children and that her concern was exacerbated when she was called by a police constable advising her that the father had taken X and Y to a local police station. The story apparently told by X was that the father may well commit suicide. Ms F considered that X had not told the truth and that he had been coached by his father. Ms F was later told that the police were considering charging the father with a public nuisance offence.
In the assessment, both X and Y reported that the father had been physically violent with them. Y stated that whilst he missed his siblings who remained with the father, he preferred to live with his mother and perhaps see the father every month or two but not overnight. X was clear in his recollection of the arguments between the parties and that his father would break things and he would remember asking the father to stop yelling at the mother. X stated that living with his mother and Y was preferable to him staying with his father.
Dr C was concerned as to the father’s mental health stability and considered that any future care arrangements should be conditional on supervision and a comprehensive psychiatric review.
The assessment of the mother was corroborative of a person who had been living for many years in a high conflict relationship and had likely been the victim of significant and entrenched family violence. Nothing arose from the assessment of the mother which corroborated an assertion that the mother posed a risk to the children.
Dr C considered the father lacked insight as to his conduct and his relentless campaign of harassment which became the catalyst for the mother seeking protection via an ADVO.
The assessment by Dr C considered the desirability and likely effect of the parties’ separate proposals for parenting arrangements. Dr C could not support either of the party’s proposal. The father’s proposal that the children live with him and spend regular time with the mother could not be supported given the views expressed by the children that they did not wish to live in the father’s primary care and that the evidence supports a finding that the father forced the children to attend a police station and lie for his own personal gain and the history of family violence.
The mother’s proposed orders could also not be supported because it did not bring to account the relationship that the children had with the father even though at times, dysfunctional. Some relationship should continue albeit requiring long term supervision.
The report of Dr C is compelling in circumstances where the history and background presented for the assessment was relevant and is corroborative of the mother’s allegations that the father perpetrated ongoing and entrenched family violence.
Whilst two years has now passed since the report, the children have still not resumed a relationship with the father even though I accept the mother’s assertion that she would not prevent the children communicating with him if they wish to do so. X will soon be 18 years of age and would appear to be free to have whatever relationship with the father he considers is appropriate.
Y is not yet at that stage however, he could communicate with the father if he wanted to do so but he has decided not to take that step.
PRINCIPLES RELATING TO PARENTING
The children, but in reality only Y, reside with the mother and spend no time with the father although I accept the mother’s evidence that X and Y are able to communicate with the father if they decide to do so.
The evidence supports a finding that there was family violence inflicted upon the mother and the children by the father.
The mother seeks an order for sole parental responsibility for the children.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that the father has engaged in serious family violence.
I propose to adopt the following approach:
(1)Give consideration to the proposal put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2), namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3); and
(6)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of diminution and comment.
PARENTING CONSIDERATIONS
Meaningful relationship
Following the remarks of Finn J in Blanding & Blanding [2016] 55 Fam LR 218, where her Honour considered the Full Court decision in Beckham & Desprez [2015] 55 Fam LR 310, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Sigley & Evor [2011] 44 Fam LR 439 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
It is a serious matter to order that a child neither spend time with nor communicate with a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said as follows:-
39.Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
I accept the mother’s evidence that whilst she considers that the father presents as a risk to Y, she would not prevent him from communicating with the father if he expressed a wish to do so.
Three years has now elapsed since the children have spent any meaningful time with the father. As far as the mother is aware, the children have not communicated with the father.
Whilst there is no evidence of the children’s current view, in 2021, in the course of the assessment with Dr C, the children expressed some interest in seeing their father although on a very limited basis.
Dr C considered that the children’s expressed view was a genuine reflection of the high level of conflict that they observed in the home and the father’s aggressive behaviour. It was not suggested that the children’s attitude towards the father had been a result of deliberate coaching or persuasion by the mother.
The mother did not present as expressing an agenda to influence the children in relation to the father but rather was reacting out of genuine fear and concern for her safety.
The mother however, recognised that given X’s age, he could make his own arrangements to see the father and providing it was safe to do so, the mother was likely to support any request by Y to communicate with the father particularly, if it meant re-establishing a relationship with his siblings.
Are the children at risk
In M v M (1988) 166 CLR 69 (“M v M”), the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19] treating an allegation of sexual abuse as the paramount consideration was an error identifying that in all proceedings under pt VII of the Act the “court is enjoined to “regard the welfare of the child as the paramount consideration” (s.60D).”
In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch stone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
The decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655 (N & S & The Separate Representative”), assists at 82,713-4, where Fogarty J said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?[1]
[1] B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
The mother has alleged a history of family violence and coercive and controlling behaviour perpetrated by the father.
The mother’s evidence is corroborated by the observations of Dr C, his interaction with both the mother and the father and the information that he obtained from Ms F, X and Y.
I have no difficulty in finding that the father engaged in aggressive and controlling behaviour and that the mother has been adversely affected by the father’s conduct.
I accept that the mother is in fear of the father and as discussed by Dr C, her presentation in entirely consistent with a history of family violence.
The father’s conduct in attempting to control the mother continued after separation, as is apparent from the communication between the father and the Child Support Agency alleging that the mother was a sex worker and a drug dealer. As a separate consideration, is the allegation made by Ms F that she also was sexually promiscuous.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight:-
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
Family violence must be given strong weight but it is not determinative and must be considered as one of the factors which needs to be brought to account in determining what is in the children’s best interests.
In 2021, Dr C considered that there was an advantage to the children in maintaining a relationship with the father providing it was safe to do so and conditional upon supervision and the father obtaining a complete psychiatric assessment.
As considered, X is able to make his own arrangements with his father whereas Y is not yet of an age and level of maturity to be able to do so.
I do not consider that the mother is totally opposed to Y having a relationship with the father and that she recognises there is some benefit in a relationship taking place.
The difficulty is that family violence perpetrated by the father would not properly enable the mother to be involved and whilst she has impressed as being prepared to facilitate communication between Y and the father, a reintroduction of a physical relationship with the father may well be a bridge too far for her at this stage.
Wishes of the child
In 2021, Y indicated that he would like to spend time each month or two with the father but not overnight. It is likely that the child’s position has not significantly changed however, I also accept there has been little or no communication between the child and the father now for some years.
The best evidence available is the assessment by Dr C that a retention of a relationship between the father and Y may be of benefit providing it is what Y wants and it is in circumstances where it is safe to do so.
I am satisfied from the mother’s presentation that she would be prepared to facilitate Y having a relationship with the father in circumstances where Y will gain the benefit of interacting with his siblings.
The nature of the relationship with the parties and others
The child’s primary attachment is with the mother. The reality is that there has been little time spent with the father.
There has been no overnight time for three years and it is likely that the better way forward is to be guided by what Y would like to do in circumstances where I am satisfied the mother would be prepared to facilitate a relationship if the child sought that it occur.
Given the father’s conduct towards the mother, I do not think it is tenable that she should force or require the child to see the father if he did not wish to do so. At present, it does not appear that Y has sought a relationship with his father even though I accept that it may be of benefit to him and is likely to be facilitated by the mother.
The likely effect of any changes in the child’s circumstances
There will be no change to the child’s current circumstances. I do not propose to make an order that would require the child to spend time with the father however, if Y requested to do so, on his own expressed view, time should be limited and not include an overnight component.
The father does not seek any orders. Whilst the matter proceeded on an undefended basis, orders sought by the father would still be a relevant consideration. In this case, the father’s counsel made it clear in closing submissions that his client was prepared to accept whatever order the Court decided to make.
Family violence
I have found that the father has perpetrated family violence in the manner as discussed.
I did not consider that the mother’s evidence as to family violence was exaggerated and it is uncontroversial that the mother left the family home on at least 19 occasions across the period of the parties’ relationship. The mother contends that her departure was made necessary by the father’s aggressive and threatening conduct whereas the father considers that the mother abrogated her responsibilities by leaving the home in search of a relationship with other men and women.
As discussed, I accept the mother’s explanation for her multiple departures as being made necessary by the father’s family violence as opposed to the father’s contention to Dr C that the separations were promoted by the mother so that she could pursue paid sex work and drug trafficking.
In any event, it would be untenable for Y to live in the care of the father in circumstances where Dr C did not consider it would be safe to do so without the father undergoing a complete psychiatric assessment, putting in place conditions of supervision and to ensure that the father has the ability to provide for the child’s basic needs.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children. Pursuant to interim Orders made 4 February 2022, the mother has taken on the obligation for all decisions in respect of major issues affecting the children. The father has been excluded. Little or no Child Support is paid by the father in circumstances where the correspondence to the Child Support Agency highlights that the father holds the mother in low regard and has attempted to undermine the administrative assessment.
Family violence is a factor that is the very antithesis of shared parental responsibility.
It is not reasonable to expect the mother to be able to enter into a discussion with the father or consider consensus.
I consider that the best interests of Y are served by the mother having sole parental responsibility.
CONCLUSION
I propose to make no order that would require Y to spend time, or communicate with the father however, I have confidence that the mother would facilitate Y having a relationship with the father if he expressed a request to do so.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 28 June 2023
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