APC & RM - [2004] FMCAfam 56

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APC & RM

[2004] FMCAfam 56

FAMILY LAW – Children – whether supervised contact is appropriate – impact of domestic violence or family violence – relevance of domestic violence in the light of the English Court of Appeal decision in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334 – reference to report by Drs Sturge & Glaser on parental contact in domestic violence cases – failure or refusal of perpetrator to acknowledge, confront and deal with problems causing inappropriate behavioural patterns – whether imposition of conditions regarding contact may lead to father refusing to have contact with children – whether children more at risk from unsupervised contact than from a decision on the father’s part not to have contact with them at all – whether unacceptable risk to children if unsupervised contact ordered.

FEDERAL MAGISTRATES COURT OF AUSTRALIA – Jurisdiction of Federal Magistrates Court – meaningless “submission” as to jurisdiction filed by father.

Family Law Act1975

B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676
Smith (1994) 18 FamLR 55
Paskandy (1999) 25 FamLR 607
Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154
A v A: Relocation Approach (2000) 26 FamLR 382
Schorel & Elms & Counsel (unreported — Family Court of Australia, Full Court: Judgment delivered 27 February 1995)
Re: Nicholson CJ and Ors: Ex parte Schorel (unreported — High Court of Australia Transcript in matter number M34/1995, dated 21 September 1995)
KT & KJ & TH (2000) FamCA 831
Schorel & Elms (2000) FamCA 272
Watson (2001) FamCA 1470
Re L, V, M & H (Children) (2000) EWCA Civ 194; (2002) FamLR (UK) 334
Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
K & K (2003) FamCA 1358

Applicant:

APC

Respondent:

File No:

MLM 9705 of 2002

Delivered on:

Final orders made on 22 January 2004

Delivered at:

Melbourne

Hearing Date:

21 & 22 January 2004

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr Hannan

Solicitors for the Applicant:

Stedman Cameron

Counsel for the Respondent:

In person

Counsel for the Child Representative:

Ms Hooper / Mr Mulvany

Solicitors for the Child Representative:

TJ Mulvany & Co

ORDERS

Save for the order for the appointment of a Child Representative all previous orders in these proceedings be discharged.
The mother exercise sole parental responsibility for all long term and day to day issues relating to the care, welfare and development of the children J and K.
The said children live with the mother.
The said children exercise contact with the father as follows:
(a)on compliance, firstly by the father, and thereafter by the mother with the requirements of paragraph 5 hereof and acceptance of the mother and father into the programme or programmes conducted at the Brimbank Children’s Contact Service Ballarat Road, Deer Park, not more than fortnightly but otherwise on such dates and for such periods of time as shall be determined by the Co-ordinator or delegate of the Co-ordinator of the said Centre and IT IS DIRECTED AND ORDERED THAT each of the father and the mother strictly comply with all written and oral requests and directions furnished to either or both of them by the said Co-ordinator and/or any employee or authorised delegate of the Co-ordinator; and
(b)otherwise, including any period prior to and following any facilitation by the said contact centre, at such times, at such venues and facilitated by such persons (including the paternal grandmother) as the mother shall in her discretion select.
In the event of the father determining prior to 28 February 2004 that he shall avail himself of facilitated contact referred to in paragraph 4(a) hereof the father shall forward to the Child Representative a duly completed application form seeking admission to the Centre’s programme, and upon receipt of same the Child Representative shall forward such form to the mother care of her solicitors — which form shall be expeditiously completed by the mother and returned to the Child Representative. Thereafter, the mother and the father do comply with all requirements, including interview attendances, of the said Centre, and in the event that the father fails to forward the application form duly completed to the Child Representative by 6 March 2004, then the provisions of paragraph 4(a) shall not apply.
The father be and is hereby restrained from attending at or in the immediate vicinity of any school and/or pre-school attended by either or both of the said children including East Keilor Kindergarten — provided however that he may do so —
(a)with the prior written consent of the mother and the consent of the Director of any such pre-school or the Principal of any such school; or
(b)for the purposes of attending a pre-arranged interview or interviews with the consent of the Director or Principal, such interview or interviews to occur when neither the mother nor the said children are present at such pre-school or school.
Until further order, the mother, her servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said children (or either of them) from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch list until further order of the Court.
The mother be restrained by injunction from removing the said children (or either of them) for residential purposes from the Melbourne metropolitan area, without first obtaining leave from the Court to do so.
The father attend upon such psychiatrist, psychologist and/or drug counsellor (“the Professional”) as may be determined by the Child Representative (after consultation or attempted consultation with the father), and undergo any recommended counselling and/or treatment.
The Child Representative provide to the Professional copies of:
(a)the affidavits filed by the parties in these proceedings;
(b)the family report prepared by Mr Sheppard; and
(c)Reasons for Judgment.
The father cooperate with and sign all such documents and do all such acts and things as may be necessary to facilitate any therapy, treatment or referral recommended for the father by the Professional.
The father undertake supervised drug screen testing:
(a)fortnightly for a period of 3 months, at a pathology centre to be approved by the Child Representative; and
(b)randomly every month (with 24 hours notice from the Child Representative), for a further period of 3 months.
The results of all drug screens be forwarded to the Child Representative, with copies to be forwarded to the mother’s solicitors.
The order for the appointment of the Child Representative herein be discharged 8 months after the date of the making of this order.
Pursuant to s.65L(a) of the Family Law Act 1975, the Director of Court Counselling in the Melbourne Registry of the Family Court of Australia do appoint a counsellor for a period of 12 months to:
(a)supervise compliance with these orders; and
(b)assist the parties in relation to the carrying out of these orders.
Subject to paragraph 18 below, the father do commence and complete:
(a)an anger management course; and
(b)an appropriate post separation parenting course,
within eight months from the date of these orders, at an organisation or organisations as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
The father do attend before the provider for an initial assessment of suitability for a post-separation parenting program and if assessed by the provider as being suitable to attend a program or part of a program, and if the provider nominates a particular program for the father to attend, then the father do attend that program or that part of the program and be responsible for all costs associated with that program.
The mother, her servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling or otherwise denigrating the father to or in the presence or hearing of the children or either of them; and
(b)describing or discussing the father's past behaviour towards the mother with or in the presence or hearing of the children or either of them
The father, his servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling or otherwise denigrating the mother to or in the presence or hearing of the children or either of them; and
(b)describing or discussing the mother's past behaviour towards the father with or in the presence or hearing of the children or either of them.
Upon compliance by the father with all the provisions of paragraphs 10, 12, 13, 14, 17 and 18 above, the father have liberty to apply to vary or discharge the orders contained in paragraphs 4, 5 and 6 above.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9705 of 2002

APC

Applicant

And

Respondent

REASONS FOR JUDGMENT

Final Orders Have Been Made

The orders set out in the preamble to this Judgment were made on 22 January 2004.

Preliminary Information

The father was born in October 1967. The mother was born in December 1969. They commenced living together in or about 1988 and separated in May 2002.
J and K are the parties’ only living children. J was born in April 1998 and is presently aged five. K was born in June 2000 and is presently aged three.

Background

Throughout the parties’ relationship, the mother was the children’s primary care giver. The father worked full time, and tended to socialise with his friends after work.
According to the mother, the father smoked marijuana throughout their relationship. She says that “it was quite normal for the father to go to the garage to smoke marijuana three to four times per night”.
The mother admits to occasionally using marijuana prior to the birth of the children, but denies that she has done so since that time. She also denies that she has used other illegal drugs at any time.
According to the mother, the father’s behaviour towards her “changed radically” in or around May 2002. At that time, the father became physically and verbally abusive towards her — often in front of the children. The frequency and the seriousness of the father’s violence continued to increase until the parties separated.
The children often witnessed the father’s inappropriate behaviour towards the mother.
From the beginning of 2002, the father became concerned (to the point of obsession, according to the mother) that the mother was having sexual relations with other men. From time to time the father would physically inspect the mother’s body for signs of sexual activity. Not surprisingly, the mother found the father’s behaviour in this regard demeaning and humiliating — but she felt that she had no choice but to let him inspect her. She feared that, if she did not, then the father would accuse of her of having “something to hide”.
On 26 May 2002, the father accused the mother of having sex with another man on the previous day. He proceeded to examine the mother’s dirty washing, and to demand an explanation for certain stains that he found on her clothes. These actions occurred in the presence of the children.
Separation occurred immediately afterwards. The father demanded that the mother give him her house keys, which she did. She then left the parties’ home and took the children to stay with her parents. The mother and the children have resided with the mother’s parents since that time.

Certain Events Occur after Separation

A number of events occurred following separation. They are described in the mother’s affidavit sworn 8 January 2004. The most serious of them are as follows:
a)On 23 June 2002, the father attended at the home of the mother’s parents on two occasions. I shall refer to this property as “the parents' home”. Police were called on both occasions, and on both occasions they were obliged to remove him from the house. On the second occasion, he had broken into the house, and had made various threats. According to the mother, he “appeared to be on drugs”. She says that he was slurring his words, and was shouting things at the mother which she could not understand.
b)On 3 August 2002, the father again attended at the parents' home. He told the mother that he had an axe with him, and threatened to damage the mother’s car with it. He also accused the mother of having a sexual relationship with the boyfriend of the mother’s sister and said that he would “get” the boyfriend. I shall refer to him as (“T”).
c)On 10 August 2002, the father climbed through a bedroom window at the parents' home — at approximately 3.00 a.m. The mother describes what then occurred as follows:
I was half asleep at the time and before I knew what was happening the father jumped over the top of me, stuck his hands down my pants and physically checked my private parts for signs of sexual activity. I was very shocked. The father then accused me of having sex with T…
The children were…awoken by the father’s appearance through the bedroom window and began screaming and crying.
T and my sister were present in the house at the time. When they heard the children screaming they came into my room. The father became very agitated and assaulted T.
The children were present during that assault and were screaming and crying over what they witnessed. The police were then called to remove the father from my parents house.
d)On 27 August 2002, the father had overnight contact with the children. When the mother arrived at the parties’ former home on the following day (to collect the children), the father began arguing with her. The mother describes the events of that day as follows:
The father began arguing with me saying that he was doing my job as he had to change nappies, clean the former matrimonial home, cook and tidy up after the children. He asked me to come and pick J up from kindergarten and clean up and cook but I told him I would not do so.
I told him that part of being a parent is doing those things that he was complaining about.
I asked the father if he wanted the children the following week but he said that if I would not come to the house to do my jobs then he didn’t want the children at all.
e)On 27 August 2002 the mother obtained an intervention order against the father. The order is to remain in force until 26 August 2005.
f)On 7 September 2002, the father attended at the parents' home — in breach of the terms of the intervention order. Because the father “did not seem to be under the influence of drugs” and because “he sounded genuine when he said he needed to talk to (her)”, the mother allowed him to enter the house. She was hoping to discuss certain issues with him — such as contact and the return of some of her personal belongings from the parties’ home. When the father entered the mother’s room he began looking through her clothing and other possessions. He found her mobile telephone account and asked her about calls that she had made. He wanted to know who she had called, and why. The father eventually left the house.
g)On 14 September 2002, the father attended at the parents' home. He climbed over the fence and interfered with the sensor lights outside the house.
h)On 22 September 2002, the father entered the parents' home through the back door and assaulted the mother’s sister. He punched and slapped her. The police were called and the father left. The children witnessed the assault on the mother’s sister.
i)On 13 October 2002, the mother and the father argued. The father ordered the mother out of the parties’ home, keeping the children with him. He locked the front door. The mother tried to persuade the father to return the children to her, but the father said that he would “…take the children” and that the mother “would never see them again”. The mother later called the police. When they arrived, the father returned the children to her.
From the date of separation in May 2002 until 17 November 2002, the father saw the children from time to time by agreement with the mother. Between November 2002 and May 2003, the father did not have any contact with the children.

The Mother Commences Proceedings in this Court

The mother commenced proceedings in this Court on 21 November 2002. At the first court date (being 13 January 2003), the mother was represented, but there was no appearance for the father. The proceedings were adjourned to 4 March 2003.
On 4 March 2003, the mother was again represented. The father did not appear, and was not represented. The proceedings were adjourned to 20 May 2003.
On 20 May 2003, both parties were represented. Federal Magistrate Phipps made the following orders by consent:
a)J and K reside with the mother (and she be responsible for their day to day care, welfare and development).
b)Both parties undergo weekly supervised urine tests for the presence of illegal drugs (and the results of the tests be provided to the parties’ solicitors within 48 hours).
c)The parties were ordered to attend counselling, and a child representative was appointed.
Federal Magistrate Phipps also ordered that the father have contact with the children on 21 May 2003 (from 3.00 p.m. to 5.00 p.m.) at the home of the father’s mother. The contact was to be supervised by the father’s mother — who gave an appropriate undertaking to the Court.
The proceedings were otherwise adjourned for mention on 30 May 2003.
On 30 May 2003, Federal Magistrate Phipps ordered that the matter be listed for trial on 21 January 2004, with an estimated hearing time of 2 days. The father, the mother and the Child Representative were all represented on that day.
The proceedings were otherwise adjourned to 11 June 2003 for mention.
On 11 June 2003, the mother, the father and the Child Representative were again represented. Federal Magistrate Phipps made orders to the following effect:
a)The parties undergo random urine tests for illicit drugs (as directed by the Child Representative).
b)In the event of the father:
i)failing to attend for a drug test (or failing to provide the results of such a test to the other parties); or
ii)providing a positive test result,
then all contact be suspended.
c)The earlier order for drug testing (made on 20 May 2003) be discharged.
d)The father have contact with J and K as follows:
i)for two hours, in a public area (and facilitated by the maternal grandmother); and
ii)thereafter, contact at the Brimbank Contact Centre (such contact to occur no more than once per fortnight).
e)The father not attend J’s kindergarten without the mother’s consent in writing having first been obtained.
f)A family report be prepared.
The maternal grandmother took the children to spend time with the father (in accordance with the orders made on 11 June 2003) on two occasions in or around June 2003. The contact visits at Brimbank did not occur. The mother completed all the required intake documents, but the father did not.
Although the father has not had contact with the children since June 2003, his mother has had regular contact with them. She sees them for approximately two hours each Wednesday. Contact between the children and the paternal grandmother is encouraged by the mother.
The mother and the children have continued to reside at the parents' home. J will be commencing school, and K will be commencing kindergarten, this year.

The father continues to reside in the parties’ former home, which is registered in the joint names of the father and the father’s mother.

The Father does not Comply with Drug Testing Arrangements

In paragraph 127 of her affidavit sworn 8 January 2004, the mother describes the father’s behaviour as “obsessive, irrational, belligerent, and frightening”. It is her belief that this behaviour is “largely due to his excessive use of illicit drugs”. According to the mother, the father has “never denied that he takes illicit drugs and has not provided any evidence that he has stopped using drugs or that he is stable”.
Notwithstanding the orders made on 20 May and 11 June 2003, the father has failed or refused to comply with the drug testing arrangements.
A counselling conference was arranged for 23 July 2003. According to the mediation memorandum appearing on the court file, the mother attended, but the father did not.

The Father's Solicitors Cease to Act

On 2 July 2003 and 11 August 2003, almost identical form 55 notices (to the effect that a lawyer has ceased to represent a party) were filed in this court. Both notices are dated 2 July 2003, and both record that the father’s solicitors (Nicholas O’Donohue & Co) no longer act for him. One of the form 55 notices states that the father was informed of the fact that his solicitors had ceased to act for him on 25 June 2003. The other states that the father was informed on 24 June 2003. Both notices record that the father was advised that the trial was to take place on

21 January 2004.

A Family Report is Prepared

Pursuant to the Orders made by Federal Magistrate Phipps on 11 June 2003, a family report was prepared. The report is dated 16 January 2004.
The report writer (Mr Sheppard) interviewed the parties, and interviewed and observed the children on 17 June 2003.
Mr Sheppard holds appropriate qualifications in the field of counselling. He is a Family Court Counsellor. His qualifications and experience were not seriously challenged by the father, or challenged in any way by the mother or the Child Representative. I accept Mr Sheppard’s status as an expert in the field of counselling and in the preparation of family reports for this court and the Family Court of Australia. I also accept Mr Sheppard as a witness of truth.
Regarding his contact with the father, Mr Sheppard wrote as follows:
4.From the commencement of the interview, (the father) presented as aggressive and hostile. He entered the counsellor’s room, clearly agitated, and began speaking loudly and angrily, demanding to know, “where are my kids?’. When told that the children and their mother had not yet arrived, that their appointment was for a later time, (the father) said, “that’s it then, goodbye”, and began to walk out of the room. The counsellor convinced him to remain, however throughout the abbreviated interview it proved a difficult task to convince (the father) that it was in his best interest to remain calm so that information could be gained to assess the issue of his contact with his children. (The father) presented as argumentative and defensive, in that he perceived any question from the counsellor to be a challenge to his rights/ability to have contact with his children.
5.The counsellor explained the preparation process for this report, including spending time observing (the father) with the children. The counsellor then asked him whether he was prepared to participate in the interview (the father) stated, “it doesn’t matter, I get no say…in court…from you all. Why have we been to court three times? Why is there a report now? Why have they been with her for the last year and a half?”
6.The father presented as extremely frustrated by his perception of the court process. It proved difficult for the counsellor to ascertain which events had been the source of his anger. (The father) made comments such as “I’ve done everything you’ve told me to do” and “you have put me through this shit…just to see the kids,,,I haven’t seen them for one and a half years”. The father, when questioned by the counsellor, gave the impression that he was collectively referring to the mother, his own (past) legal representative and the mother’s representative, the reporting counsellor and the counsellor during mediation. It seemed, in the counsellors view, that he is unable or unwilling to differentiate between input from these individuals, such as when undertakings or consent orders had been made in the past, and decisions made by “the Court”.
7.Unfortunately, (the father) proceeded to focus his aggression directly toward this counsellor. His responses to questions became a personal attack, suggesting that the counsellor was supportive of (the mother) position only, despite the fact it was pointed out to him that the counsellor had not yet met with (the mother). (The father) then became increasingly (verbally) aggressive toward the counsellor, his body language also intimidating, to the point whereby the counsellor stated that the interview could not continue in this manner. (The father) then left the counsellor’s office, continuing his abuse and stating that he would not “calm down and return”, as requested by the counsellor.
Under the heading “Discussion / Conclusions”, Mr Sheppard wrote:
27.The counsellor’s opinion is that (the father’s) presentation at the interview for this report is consistent with a pattern of aggressive, abusive behaviour. (The father’s) inability to control his actions and emotions, while discussing the issues regarding his children, suggest that he is unlikely to control his behaviour if brought into direct contact with them and/or their mother. Whilst it should be acknowledged that (the father) has been placed under a considerable amount of stress in dealing with his current circumstances, it is concerning that he is unable to moderate his reactions appropriately. The question must therefore be raised, as alluded to by (the mother), that if this is typical of (the father’s) reaction to stress when in conversation with adults, to what extent would be able to control his frustration/anger when responding to the behaviour of a five or three year old boy?
28.It is also the counsellor’s view that (the father) is unlikely to have the capacity to ensure that the children would not be exposed to incidents of violence between himself and others. The counsellor’s impression of (the father) is certainly one of violence and aggression, combined with a general lack of impulse control. For this reason, it may be that the Court would be assisted in its deliberations if (the father) were to complete a psychiatric assessment. It has also been alleged that (the father) has a history of drug abuse, the facts of which the counsellor has not been able to establish and therefore cannot discuss in detail, other than to observe that brain damage and/or psychoses can result from prolonged drug use.
29.It does seem clear that the children miss the limited contact with (the father) that has occurred in the past...
30.The boys are clearly primarily attached to their mother. J also presents, in the counsellor’s opinion, as having possibly maintained a secondary attachment to his father, although the counsellor has not had the opportunity to observe their interaction together, and it has not been possible to form a view regarding K.
Under the heading “Recommendation”, Mr Sheppard wrote:
31.It is the recommendation of this report that contact between (the father) and the children should proceed in a supervised environment, such as the Brimbank Children’s Contact Centre...
32.It is further recommended:
qThat the father be required to submit to drug screens, in accordance with said orders, prior to contact proceeding.
qThat the father be required to undertake a psychiatric assessment.
qThat the father be required to complete an anger management program.

The Trial is to Commence on 21 January 2004

The mother filed an amended application on 8 January 2004. In it, she sought an order (amongst others) that the father’s contact with the children be “as agreed between the parties”.
The trial was listed to commence before me on 21 January 2004. On that morning, the father filed the following documents:
a)an application;
b)a document entitled “Address to the Court” (I shall refer to it as "the Address Document"); and
c)an affidavit sworn by him on 20 January 2004.
The documents referred to in the previous paragraph were served on the other parties on the morning of the hearing.
Amongst the orders sought by the father in his application were the following:
(2)That the court declares that it has no legal jurisdiction and all previous orders issued by this court are ultra vires, or, in the alternative, make the following interim orders.
(3)That the final hearing is adjourned for a date to be set.
(4)That in the interim the following interim orders are provided for.
(5)That the mother shall have residence of the children J and K …
There followed a further 23 numbered paragraphs, dealing with parenting issues and contact arrangements.
When the matter was called on (on 21 January 2004), the father did not initially press the issue of this Court’s jurisdiction. Instead, he sought an adjournment. He said that he needed to get “the rest of (his) documents” from his former solicitors, so that he could “complete (his) case”.
I advised the father that I had commenced reading the material that he had filed, and inquired as to why he could not proceed with the trial. The father’s response was that he felt that there was additional material that might be in the possession of his former solicitors, and that such material might be of assistance to his case.
The father confirmed that the only reason why he sought an adjournment was to obtain these documents and “to fix up (his) case a little bit”.

The Court's Jurisdiction is Questioned

I asked the father whether he wished to press the issue of the Court’s jurisdiction to deal with the applications before it. He replied that, as far as he understood, “the jurisdiction matter only applies if (the trial) continues today”.
Clearly, the father’s application raised the issue of the Court’s jurisdiction as a preliminary issue. I have no doubt, however, that the father had no real understanding of the material purportedly relating to the issue of jurisdiction and contained in the Address Document. The documents filed by the father were apparently prepared “with the assistance of Gary Schorel-Hlavka, author of the Inspector-Rikati books”, and, having seen and heard the father, I have no doubt that he did not prepare the documents that he filed.
The father had no understanding of what might pass for submissions regarding jurisdictional issues contained in the Address Document. To be fair, however, those aspects of the Address Document are largely incomprehensible, and I have no doubt that they reflect the opinion, agenda and approach of a person or persons other than the father.
I shall refer to the issue of jurisdiction later in these Reasons.

The Father seeks an Adjournment

Given that the father’s first expressed application was for an adjournment, I heard argument from Mr Hannan (for the mother) and Ms Hooper (for the Child Representative) in relation to the issue. Both strongly opposed the adjournment[1].
[1] See their submissions on pages 6-8 of the transcript of the hearing on 21 January 2004.
I refused the adjournment, and gave brief Reasons for doing so.[2] I then stood the proceedings down for approximately one hour (until 12.30 p.m.), and advised all parties that the trial would proceed at that time.
[2] These Reasons have been transcribed separately.

The Trial is set to Commence

The hearing resumed at approximately 12.50 p.m. Mr Hannan, Ms Hooper and the father were all present. Mr Hannan advised me that the father proposed to make a submission to the court, and to then have no further involvement in the proceedings. The father confirmed that he wished to make such a submission.
I advised the father that he had every right to continue to be involved in the proceedings. I confirmed that the court would provide him with such assistance as was appropriate for self represented litigants, and that I would ensure that the proceedings (and the nature of his role in them) were explained to him. I emphasised that he should not feel compelled to simply make a statement and leave.
The father then raised three issues:
a)He sought “that the case be transferred before a Judge”.
b)He asked for an order for a transcript of the proceedings.
c)He stated that he “does not recognise the final outcome or whatever of this Court”.
After confirming that the father could obtain a transcript of the proceedings in the usual way, I proceeded to deal with the other issues.
I treated the father’s reference to the case being transferred before a Judge as being an application for the proceedings to be transferred to the Family Court of Australia. After referring to the factors mentioned in section 39(4) of the Federal Magistrates Act1999 and Rule 8.02 of the Federal Magistrate Court Rules 2001, and after discussing those factors (and hearing submissions from the other parties), I dismissed the father’s application for a transfer of the proceedings to the Family Court. I provided short Reasons for my decision in that regard.[3]
[3] Those Reasons have been transcribed separately.
I then advised the father that I could say little about his comment to the effect that he would not recognise “the final outcome or whatever”. The father did not expand upon his comment in that regard.
I reiterated that the father had every right to involve himself in the proceedings and that if he chose not to do so, then that was a matter for him.
The father asked whether he should remain in court. I advised him that he could remain in court or leave, as he saw fit. I told the father that if, during the course of the proceedings, he changed his mind and decided that he would like to become involved, then he could advise me of that fact and account would be taken of it. The father was also told that he could remain in court for the whole trial, for part of it or for none of it.
As it was then after 1.00 p.m., I adjourned the proceedings until 1.45 p.m. They in fact resumed shortly after 2.00 p.m.
When the proceedings were called on shortly after 2.00 p.m. on 21 January 2004, Ms Hooper advised me that the father was outside the court and in the process of making a telephone call. I arranged for the father to be called, but he did not respond to the call.
I then indicated to Mr Hannan and Ms Hooper that the trial would commence in 5 minutes. I asked my Deputy Associate to convey that fact to the father and then adjourned.
The proceedings resumed approximately 5 minutes later. The father was called again. And again, he did not answer the call. The trial then commenced, with Mr Hannan making a brief opening.

The Trial Commences

Mr Hannan called the wife and led some brief evidence from her. She was then cross examined by Ms Hooper, who asked only one or two questions.
I proceeded to ask the mother some questions. As I was doing so, the father entered the courtroom and sat down. The time was approximately 2.25 p.m.
Mr Hannan then called the mother’s sister, who had sworn an affidavit in support of the mother’s case. She affirmed the contents of her affidavit and Ms Hooper elected not to cross examine her.
As I was about to release the witness, the father asked me a question —regarding the manner in which the oath is to be administered. He did not seek to question the witness.
Upon Mr Hannan closing the mother’s case, Ms Hooper advised the court that neither she nor Mr Hannan sought to cross examine Mr Sheppard. She also said that Mr Sheppard had been advised (over the luncheon adjournment) that he would not be required.
The father then indicated that he wished to cross examine Mr Sheppard, and the proceedings were adjourned to enable him to attend.
Mr Sheppard was called by Ms Hooper shortly before 3.00 p.m. The father, who was present in court, was invited to cross examine him. The nature and purpose of cross examination was explained to the father.
The father then informed the court that he was feeling unwell, and sought that the proceedings be adjourned. He complained that he was feeling dizzy and that he had not had enough sleep.
Having regard to the earlier ruling regarding an adjournment, and to the father’s statements, actions and demeanour during the course of the day, I indicated to the father that I was not prepared to grant the adjournment. I did not believe that he was genuinely unwell.
The father left the courtroom shortly afterwards, and the trial continued in his absence.
Mr Sheppard was the only witness called by the Child Representative.
After hearing closing submissions from Ms Hooper and Mr Hannan, the proceedings were adjourned to 9.30 a.m. on the following day (22 January 2004). I advised counsel that I would endeavour to give an ex tempore Judgment at that time — but, if that was not possible, then final orders would be made and reasons given at a later stage.

Morning of 22 January 2004

The father attended at court on the morning of 22 January 2004. He said that he wished to “cross examine the people that I didn’t get a chance to yesterday”.
I informed the father that the trial had concluded and that final orders were about to be made. The father remained in court as the Child Representative’s Minute of Proposed Orders was reviewed, and as orders were made. He made various comments during the process, and was clearly agitated. He placed two large, framed photographs of the children in front of him on the bar table (facing the bench), and suggested that the Court had not considered the best interests of the children.

The Father’s Attitude and Disposition

The father was angry, impatient and agitated throughout the hearing on 22 January 2004, and for most of the hearing on 21 January 2004. Whilst litigation is clearly a stressful experience for a self represented litigant, and whilst nervousness and anxiety on the part of the father are to be expected in such circumstances, the father’s conduct and demeanour in the courtroom could not fairly be regarded as wholly (or even substantially) attributable to such considerations. The statements that he made to the court were clear and focused, but at no time did he appear to be either open or candid with the court. He appeared wary, and remained distinctly guarded and non-committal at all times. His lack of respect for the court, and for its procedures, was undisguised. It was very apparent that the mother was discomforted, and intimidated, by the father’s presence and behaviour. Ms Hooper and Mr Hannan were also clearly discomforted. To use a colloquialism, the father was like “a coiled spring”.
I do not know whether the father’s statement during the afternoon of 21 January 2004 to the effect that he was too unwell to cross examine Mr Sheppard was true, and I cannot know the precise state of his health at that time. The fact of the matter is, however, that the father showed no signs of illness or physical discomfort earlier in the day, or prior to being invited to cross examine Mr Sheppard. I am not aware, of course, whether he exhibited such signs or symptoms outside the courtroom. I have no doubt, however, that the father had no intention (at any time that he was in court on either 21 or 22 January 2004) of actually involving himself in the proceedings in a positive or constructive manner. He did not want the trial to take place, and he did not want orders to be made. I cannot speculate as to the cause of his attitude in this regard. I can do no more than concur with the observations of the father made by Mr Sheppard in his report. The orders that were made reflect (to a significant extent) Mr Sheppard’s recommendations.

The Law

Residence and contact orders are parenting orders. They arise in proceedings conducted under part VII of the Family Law Act. Section 60B sets out the object of part VII and the principles which underlie that object. Residence and contact orders are subject to section 65E in that, in determining the outcome, the best interests of the child comprise the paramount consideration.
The importance of the section 60B principles varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive — not only because they are contained in section 60B, but also because they accord with what is generally accepted to be in the best interests of children[4].
[4] See B & B: Family Law Reform Act1995 (1997) 21 FamLR 676 at 734
In deciding the residence and contact arrangements that will promote the best interests of a child, the Court must consider the various matters set out in section 68F(2).
Section 60B is in the following terms:
60B Object of Part and principles underlying it
(1)     The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)     parents 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.
The Full Court discussed the effect of sections 60B and 68F(2) in B & B: Family Law Reform Act 1975 (1997) 21 FamLR 676 as follows:
9.53…the Court "must consider" the various matters set out in (a)-(l) of (section 68F(2)). That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge…The list is not intended to be exhaustive. That is made clear by par.(l) "any other fact or circumstance that the court thinks is relevant". This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.
9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case…
In Smith (1994) 18 FamLR 55, the Full Court, referring to the manner in which the Court should discharge its obligation under the Family Law Act in coming to a decision relating to the custody, guardianship or welfare of or access to a child said:
…the preferable approach to be adopted is to consider each of the matters referred to in the section (being the equivalent of section 68F(2)) separately and, having regard to the evidence upon each of those matters, make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.
In Paskandy (1999) 25 FamLR 607, the Full Court said (at page 618):
The Judgment of the Full Court in Smith (above) was delivered before the amendments to the Family Law Act made as a result of the Family Law Reform Act 1995 (Cth). However, the comments referred to remain apposite.

Discussion/Preamble

I have re-read, and now remind myself of the object of, Part VII of the Family Law Act, and the principles underlying that object — as set out in section 60B. I keep that object, and those principles, firmly in mind as I consider the matters set out in section 68F(2) and all other relevant matters. Indeed, I have borne that object and those principles in mind at all times during the trial, and during preparation of this Judgment.
I am conscious of all of the following matters:
a)The welfare or best interests of J and K comprise the paramount consideration in this case.
b)I understand that it is necessary to evaluate each of the proposals advanced by the parties, and will do so (or have already done so) — directly or indirectly — in these Reasons.
c)I understand that the evaluation of the parties’ competing proposals involves weighing the evidence and submissions as to how each proposal would hold advantages and disadvantages for J and K (and for their best interests). I have performed that evaluation (or will perform it) — directly or indirectly — in these Reasons.
d)I understand that it is necessary to follow the legislative directions set out in sections 60B and 68F of the Family Law Act, and that I must consider the various matters set out in section 68F(2).
e)I understand that none of the parties to these proceedings bears an onus to establish that a proposed change to an existing situation, or a continuation of an existing situation, will best promote the children’s interests. I have taken into account the whole of the evidence which I consider to be relevant to the children’s best interests.
Before proceeding further with these Reasons, I refer to paragraph 74 of the Full Court’s decision in A v A: Relocation Approach (2000) 26 FamLR 382:
In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appealable error… In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said...:
Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) … which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2).
I bear in mind all the principles and dicta to which I have referred and remind myself that the Full Court’s occasionally stated direction to itself to avoid “an overly critical, or pernickety, analysis” of Reasons such as these necessarily recognises the “large element of judgment, discretion and intuition” involved in the decision making process[5]. I interpret these comments as inferring that a Judicial Officer should not “lose sight of the wood for the trees” (as it were). The principles and dicta to which I have referred form the foundation upon which the orders that have been made were and these Reasons are constructed (and have structured the thought process that I have employed). I understand them and the need to apply them.
[5] See U v U (2002) 29 FamLR 74 at 101, A v A: Relocation Approach (2000) 26 FamLR 382 at 410 and Re G: Children’s Schooling (2000) 26 FamLR 143 at 150; see also (for example) M & R (2003) FamCA 622 and K & W (2003) FamCA 446

Credibility

I observed the mother carefully as she gave her evidence. During that (relatively short) period, she remained calm, and responded to questions in a measured and appropriate way. She made realistic concessions. She clearly found the litigation process to be a stressful one, but I am satisfied that she is a witness of truth.
The father did not give evidence before me. I have already described his demeanour in the courtroom.
In the circumstances of this case, I have no hesitation in preferring the evidence of the mother where it conflicts with the affidavit material of the father.

Jurisdictional Issue

The jurisdictional issue was not seriously pressed by the father (who, as I have explained, did not appear to understand the material relating to this subject in the Address Document).
I do not propose to waste my or the parties’ time dealing with a submission which, in my opinion, is wholly and obviously without merit. I have no doubt, as indicated earlier, that the submission reflects an agenda promoted by a person or persons other than the father.
This court has both jurisdiction and power to deal with the issues raised in this case.[6]
[6] See Schorel & Elms & Counsel (unreported — Family Court of Australia, Full Court: Judgment delivered 27 February 1995); Re: Nicholson CJ and Ors: Ex parte Schorel (unreported — High Court of Australia Transcript in matter number M34/1995, dated 21 September 1995); KT & KJ & TH (2000) FamCA 831; Schorel & Elms (2000) FamCA 272; and Watson (2001) FamCA 1470

The Parties’ Proposals

The orders sought by the mother were initially set out in her amended application filed 8 January 2004. I was advised by Mr Hannan, however, that the mother in fact sought orders in accordance with a Minute prepared by the Child Representative and dated 21 January 2004. It follows that, at the trial, both the mother and the Child Representative sought orders to the following effect:
a)The children live with the mother, and she be responsible for their long term and day to day care, welfare and development.
b)The father have supervised contact with the children (or no contact, if the father will not co-operate with the supervision process).
c)Notwithstanding (b) above, the father have such contact as the mother shall consider appropriate.
d)The mother not change the children’s names.
e)The mother not relocate with the children without advising the father of her intention in that regard.
f)Subject to certain exceptions, the father be restrained from attending at the children’s educational institutions.
g)The mother be permitted to provide a copy of relevant orders, together with Mr Sheppard’s report, to various appropriately qualified people.
As is apparent from the orders set out in the preamble to these Reasons, I was not persuaded to make all of the orders sought by the mother and the Child Representative.
In his application dated 20 January 2004 the father sought orders to the following effect (albeit on an “interim” basis):
a)The children reside with the mother.
b)The residence order be subject to the mother undergoing random drug tests and attending anger management counselling.
c)The father have certain defined (but not supervised) contact with the children.
d)The father’s contact be subject to the father undergoing random drug tests and attending anger management counselling.
e)The mother be restrained from removing the children — for residential purposes — from the Melbourne metropolitan area.
f)The mother be restrained by injunction from removing the children from the Commonwealth of Australia.
g)The father’s mother have certain defined contact with the children.
It is apparent from the above that residence of J and K was not in issue. The questions for determination by the court related principally (although not exclusively) to contact.

The Father’s affidavit sworn 20 January 2004, and the Address Document

The father’s affidavit sworn 20 January 2004 is difficult to follow. Having seen and heard the father in court, I have no doubt that the affidavit was not drafted by him.
Pages 6 to 12 (inclusive) of the Address Document appear to deal with substantive issues. Once again, I have no doubt that the paragraphs on these pages were not drafted by the father. Like the contents of the father’s affidavit, the paragraphs are disjointed and difficult to follow. At the foot of page 5, however, the following passage appears:
The father admits that his past conduct (prior to 17 November 2002) was anything but appropriate, on various occasions.
It is not possible to identify — in the documents filed by the father —any (or any adequate) explanation for the father’s failure or refusal to:
a)comply with Federal Magistrate Phipps’ orders relating to drug testing; and
b)facilitate the implementation of the supervised contact arrangements.
Insofar as the first of the two matters referred to in the previous paragraph is concerned, the father’s failure or refusal is particularly difficult to understand when regard is had to the fact that one of the orders that he seeks in his application dated 20 January 2004 is to the effect that his contact visits be “subject to the father passing random screen test for illicit drug and he attends to anger management counselling as directed by the Child Representative” (sic).

Discussion — Section 68F(2) Factors

J and K are very young children. Their wishes in relation to contact are unlikely to be relevant. K is too young to express his views regarding the subject in any event, and (according to Mr Sheppard) J did not express any clear wishes regarding the subject of contact.
I am satisfied that the children have a close and loving relationship with their mother, and with each other. I am also satisfied that the children have a close relationship with both their grandmothers.
According to the mother, the father’s mother comes to her home every Wednesday for about an hour or two to visit the children. They go out and do activities with the children together. The mother proposes that that arrangement continue.
K, who is not yet 4, has not had significant contact with his father for over 12 months. It is possible that he would not know or recognise the father at this stage.
J clearly recognises the father as a member of his family, and remembers “having fun” with him. His memories of contact with the father are not wholly negative, but it is clear beyond argument that he observed a number of incidents of violence involving his parents.
J appears to be protective of the mother. Although Mr Sheppard expressed concern that the mother may have “consciously or not, greatly influenced (the boys’) disposition towards (the father) by discussing her own views/concerns either directly with J or in his presence”, I am satisfied that the mother has not acted inappropriately in this regard.
During the course of her oral evidence, the mother explained the comments that had caused Mr Sheppard some concern, and I accept her explanation. For example, in relation to Mr Sheppard’s obvious discomfort regarding J’s explanation of the father’s behaviour as being “because he’s sick”, the mother said:
J will ask why his dad was throwing stuff around the house when we were living with him and why his behaviour is so erratic. But on the (sic) answer that I can give a five year old child and not be prejudiced against the father is to say that he is sick. I don’t want to tell my child that the father has a drug problem, so I feel that telling the child that he is sick is a better way of informing him why he behaves the way that he does.
Similarly, I accept the mother’s explanation that J’s use of the word “steal” had its genesis in a comment made by the father that he was “going to steal (the children) away” from the mother — which comment was made in the presence of the children.
I note that the mother said, without hesitation, that she was prepared to agree to appropriate non-denigration orders.
At the conclusion of the mother’s evidence, she said:
I hardly talk about (the father). I sort of want this bad episode of everything to be behind me. I don’t want to dwell on it
Again, I accept the mother’s evidence in this regard, and I accept that she wants the children to have a close and loving relationship with their father. I find that the mother has pressed for the orders referred to above because of her desire to protect the children and promote their best interests — and for no other reason.
I was impressed by the mother, and find that she can be relied upon to promote contact between the father and the children — provided that the children are protected from the father’s erratic and potentially violent behaviour. The mother wishes the father no ill will. She seeks no more than that he should proceed to acknowledge, confront and ultimately overcome whatever problems are presently causing the behavioural patterns that she (and, to a lesser extent, the court) has observed.
The father is not an unintelligent man and, given the history of these proceedings, it seems to me that he could and should have understood and accepted well before now that his ongoing failure to confront and satisfactorily deal with his own problems would be likely to impact adversely on his capacity to care for the children and, ultimately, his case for unsupervised contact with them. The father urged me to accept that he loves his sons — but responsible (and successful) parenting must always involve more than just love and good intentions.
Mr Sheppard said, and I accept, that the frequency of contact proposed by the Child Representative allows for a relationship to be maintained between the father and the children. It is his view that fortnightly visits “provide familiarity and a development of the positive side of the relationship”.
As Mr Sheppard observed, “the ball is in the father’s court” as to whether or not contact will actually occur. Mr Sheppard is of the view (and, again, I accept) that the interests of the children require supervised contact — because the level of aggression that has been shown by the father to other people may lead to the children continuing to be witnesses to inappropriate events.
The father’s unwillingness to comply with previous orders is clearly a matter of concern. I raised it with Mr Sheppard in the following manner[7]:
[7] See transcript page 28
Walters FM:          It seems that the father does not wish to be told what to do by anybody. He does not wish to have his contact with his children made conditional. It seems that if conditions are imposed, then he may elect not to comply with those conditions and therefore have no contact with his children — or, at least, no contact in accordance with court orders…
Mr Sheppard:       The impression I got of the father when I was speaking with him is that there seems to be a difficulty in discerning exactly from where the directions and decisions were being made, that he was grouping all people involved in the question of his children and contact of his children, be it mediators, counsellors, legal representatives, the court, together and that’s where I had difficulty in….getting his disposition towards the need for these kinds of restrictions…
Walters FM:          You can take it that he doesn’t accept that there is any need for supervision or other conditions…What I’m asking you to do is comment, if you can, on which of the following creates more risk: allowing contact without conditions (because in that way the boys will be able to have contact with their father — but they will also be exposed to the sorts of things that you have raised); or…if I impose conditions…then you may not have contact. So, which is likely to be more damaging for the children?
Mr Sheppard:       I believe…in keeping with the recommendations I’ve made, that the potential for damage or risk would be greater if there were no such restrictions. But the risk…of no contact…is that the relationship with the father would be fragmented at the stage of the boys’ development, particularly J…Restrictions are needed here and now because there was a time, clearly, when…the boys showed that they developed an attachment to (the father) and I think, in their best interests, clearly, eventually if the father was to come around…to cooperating to some extent so that contact can happen, then obviously that’s the ideal, and that’s what we’re all hoping and what my report hopes for. If that was not to happen…then that would be a…hugely significant loss to the boys. But…I make these recommendations in the hope that the father will be compelled — whether it’s by his own conscience or by his desire to see the boys — to actually comply. I guess it’s an unknown that I am not able to comment further because (the father) indicated to me several times over his great love for his boys and his desire to see them again…I think that it’s a too great a risk to not make (orders in the terms of the recommendations).
Walters FM:          Even if it amounts to him severing his ties with the boys for the foreseeable future?
Mr Sheppard:       …The only time I have seen (the father), such was his lack of control and his level of anger — and I would venture to say the concerning thing was just the scope, I guess, of his anger, how widely, the people that he was angry at and the sorts of things that he was suggesting — that I just got a pretty strong impression of a lack of control that would be very damaging for the children to be exposed to. So, yes, I do believe that the risk would be too great.
Walters FM:          What I have written down to myself as a note is that even if the imposition of conditions means that the father may not see the boys at all for an extended period, the risk remains too great to dispense with the conditions. Is that a fair summary of the way you approach the matter?
Mr Sheppard:       Yes…

It follows from the passages quoted about that, although I am concerned that the imposition of conditions on the father’s contact with the boys may mean that he will not see them at all for a prolonged period, the risks to the boys’ welfare are currently too great to allow me to dispense with the conditions.
I am satisfied that the mother has the capacity to provide for the boys’ needs (including their emotional and intellectual needs). Having regard to all the evidence before me, I am also satisfied that the mother has the necessary parenting skills, patience and sensitivity to settle and reassure the boys at all relevant times, and to assist them to effectively overcome whatever distress or form of discomfort they may feel as a consequence of either contact with the father or prolonged separation from him.
I accept Mr Sheppard’s view that the emotional needs of the boys would be greatly at risk if the father were to be their primary caregiver. Given that he is not to be their primary caregiver (and the father does not seek a residence order), supervision remains necessary until such time as the father demonstrates that he has the capacity to provide for all aspects of the boys' psychological and emotional needs and development. Unsupervised contact, at this stage, could be damaging to the children’s emotional wellbeing — due (amongst other things) to the uncertainty that they would feel in the father’s presence. Mr Sheppard’s view is that the boys would be wondering “what could happen next”, and that unsupervised contact would not be “an experience of stability and safety and comfort”.
In the circumstances of the present case, there is a clear need to protect the children from psychological harm that may be caused by being exposed to violence or other behaviour on the part of the father. I have dealt with this matter elsewhere in these Reasons.

Domestic/Family Violence

Insofar as domestic or family violence is concerned, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 68F(2) of the Family Law Act.
In Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the paragraphs cited in the previous three paragraphs.
The decision in Re L was cited with approval by Mushin J in K & K (2003) FamCA 1358. His Honour commented that (Re L):
…makes it clear that the balance between the need of children with an apparently good relationship with their contact parent to have on going contact, and the effects of family violence on a family, is a very difficult balancing act for a Judge.
His Honour was of the view, however, that:
I need to say to (the father) that the ways in which he has acted (cause him to be) a completely inappropriate role model for his children … I need to demonstrate to (the father) that he needs to get professional assistance.
In the present case, it is impossible to overstate the effect on the children (and particularly J) of being exposed to the father’s behaviour — notwithstanding the fact that the last incident of domestic violence or equivalent inappropriate behaviour occurred over 12 months ago. There is no need to investigate the allegations made by the mother, as they are either admitted or not denied.
Although the father appears to have acknowledged that he behaved inappropriately, he has so far steadfastly refused to take any steps to “correct the deficiency in (his) character”.
The father has done nothing to “demonstrate that he is a fit person to exercise contact”. He has done nothing to demonstrate that he is “not going to destabilise the family”. He has done nothing to demonstrate that he is “not going to upset the children and harm them emotionally”. Instead, he is unreasonably suspicious of all who may have the ability or inclination to assist him and his sons, and unjustifiably mistrustful and resentful of the court, its officers and its facilities.

Unacceptable Risk

The concept of “unacceptable risk” is relevant in the present context. It has its genesis in the decision of the High Court in M & M (1998) FLC 91-979. In that case, the High Court was dealing with a residence/contact case in which there had been allegations of sexual abuse.
The High Court said (at page 77,081):
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations…this imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. 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 (emphasis added).
In B & B (1993) FLC 92-357, the Full Court said:
…a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated: "Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her (emphasis added).
Therefore, if supervised access poses an "unacceptable risk" of harm (or "disturbance"), whether physical, emotional or psychological, it should not be granted.
In A v A (1998) FLC 92-800, the Full Court considered the concept of “unacceptable risk” in the context of contact proceedings. After referring to M & M and B & B, the Full Court said (at page 84,995):
The task which (the Court) was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband…
The term identified by the High Court in M & M as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm…
… the primary question which (the Court) should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
The question of the impact on a residence parent of permitting contact (or supervised contact) when the residence parent genuinely believes that a serious, unacceptable risk of harm to a child exists has been the subject of a number of cases[8]. Although the test to be applied in contact cases must ultimately be distilled down to determining what order is in the best interests of the child, the Court can conclude that contact may not be in a child’s best interests where, for example, there is “…such tension or hostility between the parent with the care of the child (or his or her partner) on the one hand, and the person seeking contact on the other, that this is likely to be exacerbated by contact, with resulting detrimental effects on the child”, or “…where contact would cause the parent with the day to day care of the child considerable anxiety, and this is likely to affect the child adversely”[9].
[8] See, for example, Sedgley (1995) FLC 92-623, Irvine (1995) FLC 92-624 and Re Andrew (1996) FLC 92-692
[9] See Dickey “Family Law” (4^th Ed) at pp 450-1
In Re Andrew (1996) FLC 92-692, the Full Court declined to overturn a trial Judge’s decision not to allow a father to have face to face contact with his child. The trial Judge had found that the wife’s genuine fear of the husband was a major impediment to contact. That meant that the mother’s caregiving capacity would be impaired if contact was permitted — to the extent of being detrimental to the child’s welfare. In Sedgley (1995) FLC 92-623 the Full Court recognised that “the need for peace and tranquillity” in a residence parent’s household may be a more compelling need for a child than contact with the non-residence parent.
The Full Court in Sedgley also considered the trial Judge’s decision to give contact “one last try”. The father (who had previously been declared a vexatious litigant) had carried out “a number of provocative acts”, which had the effect of placing the mother under considerable stress (and which, in turn, affected her wellbeing and parenting). The Full Court concluded that the case “had reached that unfortunate point where a Judge is virtually compelled to say that, until the Court could be persuaded that the child’s welfare required (contact) to be reinstated, there should be no further (contact)’.
The Full Court then continued (at page 82,260):
The type of circumstances that might lead to reinstatement of (contact) would include convincing evidence that there had been a change in the husband’s behaviour which change could be sustained, and which change had been brought on after extensive therapy, or some maturation process. Another circumstance that may be thought to call for the reinstatement of (contact) would be convincing evidence that the child’s state had deteriorated because of the absence of (contact).
The Full Court added that the Court could also give consideration to the reinstatement of contact where the residence parent accedes to the proposition.
The Full Court emphasised (at page 82,260) that the decision to cut the relationship between a parent and a child is one which ¾ ordinarily ¾ the Court takes only with considerable hesitation.
A number of observations should now be made:
(a)It is not the mother’s case that father should be denied contact with the children.
(b)Although the mother effectively asserts that she genuinely believes that an “unacceptable risk” of harm to the children would arise if the orders sought by the father were to be made (as opposed to the orders which she and the child representative seek), it was not part of her case that that belief would have a significant impact on her capacity as the residence parent, and so impinge on the children's best interests. In other words, it was not suggested that the mother could not cope (as it were) as the residence parent if the Court were to be minded to make the orders sought by the father.
(c)There is clearly a similarity between the comments made by the Full Court in Sedgley (at p. 82,260) and the approach taken by the Court of Appeal in Re L.
In all the circumstances, I am satisfied that to permit the father to have unsupervised contact with the children would create an unacceptable risk for them. Their emotional and/or psychological wellbeing would be in danger. Further, the father’s clearly expressed refusal to accept the outcome of these proceedings (and, by inference, to abide by the orders of the Court) suggests that there is a real risk that the father would retain the children beyond the completion of any agreed, unsupervised contact period.
To repeat the expression employed by Mr Sheppard, the ball is now in the father’s court. The father must seek the help that he needs, and the children must be protected until he does. He must demonstrate what was described by Doctors Sturge and Glaser in their report on parental contact in domestic violence cases (which report was discussed at length in Re L) as “a genuine interest in the children’s welfare and full commitment to the children — ie a wish for contact in which (the contact parent) is not making the conditions”.
In my view, there continues to exist a need to protect the boys from any form of harm which they may be subjected or exposed by the father’s (at times) inappropriate or irresponsible behaviour. I am aware, of course, that the evidence before me does not suggest that the boys have ever come to serious harm (in a physical sense) whilst they have been in the father’s care or presence. That is a factor that I take into account and weigh in the balance, and it is certainly not without significance. But section 68F(2)(g) speaks of a “need to protect” a child from certain behaviours. In my view, the fact that such behaviours have not harmed the children in the past does not mean they could not harm the children in the future.

Conclusion

For the reasons which I have given above, I am of the view that the orders made on 22 January 2004 were and are appropriate and in the best interests of the children. I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to in B & B: Family Law Reform Act1975 (see above), and in the other legislative provisions or authorities referred to in paragraphs 78 to 88 above (and elsewhere in these Reasons). I have imposed no legal or other onus upon any party, and have applied no presumptions of any sort. I have deduced from the evidence, and my assessment of the parties and the witnesses, the essence of their competing proposals — and I decide, having considered all relevant factors, that the Child Representative’s proposals would be more likely to advance the boys’ best interests (which comprise the paramount consideration in these proceedings).
Section 68F(2)(k) directs the court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. This is an awkwardly phrased and somewhat obscure provision, but, in the circumstances of the present case, I have reached the conclusion that the best interests of the children dictate that a time limit should be imposed on the father to comply with the various requirements of the orders. I find that the orders “…that would be least likely to lead to the institution of further proceedings in relation to the child” are those that I now propose to make.
I have ordered that the Child Representative not be discharged for a period of eight months following the making of the orders. In my view, the involvement of the Child Representative in implementing and monitoring compliance with the orders that I have made is crucial. The Child Representative has the obligation (and ability) to ensure that the court is made aware of developments which impact on the welfare of the children. Like Mushin J in K & K, I have no wish to “punish” the father in any way; nor do I wish to indirectly “punish” the children by putting unnecessary hurdles in the path of their father having contact with them. The balancing exercise is an extremely difficult one, and it is likely that significant developments relevant to the welfare of the children could occur during the eight months of the Child Representative’s continued involvement.

Orders

There will be orders as pronounced on 22 January 2004.

I, Rebecca Young, certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the Reasons for Judgment of Walters FM

Deputy Associate:

Date: 4 March 2004