Armstrong & Graham
[2021] FedCFamC2F 15
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armstrong & Graham [2021] FedCFamC2F 15
File number(s): NCC 2816 of 2017 Judgment of: JUDGE BETTS Date of judgment: 7 September 2021 Catchwords: FAMILY LAW – PARENTING – final hearing – child aged 5 years – where the mother seeks child live with her and spend no time with the father – where father has spent supervised time only with the child since December 2017 and now seeks unsupervised time graduating to alternate weekends and half school holidays – where the father/child relationship presently falls short of ‘meaningful’ for the child – where unsupervised time poses a high risk of psychological and emotional harm to the child in circumstances where the father has an on-going pre-occupation of reconciliation with the mother – where the father has difficulties regulating his behaviour and emotions – where the father has a propensity for violence and demonstrates a limited insight into the effects of such violence on others – where the father lacks a genuine insight into the child’s emotional needs – where there is no safe pathway to unsupervised time – best interests of child to live with mother and spend no time with father. Legislation: Family Law Act 1975 (Cth), Pt VII Cases cited: M & M (1988) FLC 91-979 Division: Division 2 Family Law Number of paragraphs: 210 Date of last submission/s: 17 March 2021 Date of hearing: 27, 28 and 29 April 2020, 12 June 2020 and 17 March 2021 Counsel for the First Applicant: Ms Beck Solicitor for the First Applicant: Steven Young Lawyers Counsel for the First Respondent: Mr Guyder Solicitor for the First Respondent: Todd Street Lawyers Solicitor for the First Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 2816 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARMSTRONG
Applicant
AND: MR GRAHAM
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The child, X, born in 2016 (“X”)
live with the Mother.
3.The Mother have sole parental responsibility for X.
4.Pursuant to section 68B Family Law Act, the Father be restrained from:
(a)Contacting the Mother by any form except through email, unless otherwise agreed in writing by the Mother;
(b)Approaching the Mother;
(c)Contacting or approaching X except in accordance with Court orders;
(d)Approaching or contacting any day-care centre, pre-school or school that X attends.
5.The Father is at liberty to send gifts and cards to X to a postal address to be nominated by the Mother.
6.The Mother shall notify the Father of any change to her postal address not less than 7 days prior to such change occurring.
7.For the purpose of the parties’ communication with one another strictly with respect to
paragraph 6 herein, the Mother and Father shall keep each other informed of their current email address, with each party to notify the other of any change to this contact information within 7 days of such change.
8.The parties, their servants and/or agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or their family in X’s presence and/or hearing, and from permitting any other person to do so.
9.The parties, their servants and/or agents be and are hereby restrained by injunction from discussing these proceedings in X’s presence or hearing, and from permitting any other person to do so.
10.The parties, their servants and/or agents be and are hereby restrained by injunction from permitting X’s access to any documents or correspondence relating to these proceedings, or permitting any other person to do so.
11.The Mother shall provide a copy of these Orders to any child-care / pre-school / school which X may from time-to-time attend.
12.The Mother have leave to provide a copy of these Orders to any counsellor / treating medical professional upon whom X may from time-to-time attend.
13.Within 7 days of the making of these Orders, the Order appointing the Independent Children’s Lawyer be discharged.
14.All extant applications be otherwise dismissed and the matter removed from the list of pending cases.
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 Armstrong & Graham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
INTRODUCTION
These proceedings concern the future parenting of a young and vulnerable child, X born in 2016, who is currently five years, two months old.
X is the product of a brief and volatile relationship between the Applicant Mother, Ms Armstrong and the Respondent Father, Mr Graham. The parents formed a relationship in 2015, started cohabiting shortly thereafter, briefly separated in March 2017 before reconciling and marrying in 2017. They finally separated just weeks later.
At separation the Father retained X for a week before the Mother obtained an ex parte recovery order from the Local Court at Town B on 11 September 2017. X has been living with the Mother ever since. Later that month, Police applied for an AVO to protect the Mother from the Father and he has since breached it multiple times.
Since interim orders of December 2017 the Father has been spending supervised time with X through C Family Centre, Town B.
The family now finds itself at a crossroads.
Ongoing long-term supervision is inappropriate particularly given X’s age. The Mother wants all time to end however she is willing to pass on gifts and cards to X that the Father may send. The ICL agrees; together they have proposed a joint minute to this effect which also includes various restraints against the Father.
The Father seeks unsupervised time, graduating to include alternate weekends and school holidays. Regrettably for X, the competing positions are rather stark and there is no feasible “middle ground” option.
THE HEARING BEFORE ME
The matter proceeded to trial on 27, 28 and 29 April 2020, 12 June 2020 and 17 March 2021. The Mother was represented by Ms Beck of counsel, the Father by Mr Guyder of counsel (on a s 102NA basis) and Ms Jeffers as ICL conducted the trial herself.
The Mother relied upon her Initiating Application filed 08/09/17, her affidavits filed 17/04/20 & 29/06/20 and a Case Outline Document. The Father relied upon his Response filed 21/02/18, his affidavits filed 17/04/20 & 21/08/20 and a Case Outline Document. The ICL relied upon the Child Inclusive Conference Memorandum of 21/02/18 (ex. 1), the Family Report of 09/05/19 (ex. 2) and a Case Outline Document.
RELEVANT FACTUAL HISTORY AND FINDINGS
In order to understand the fraught nature of the co-parenting relationship and the consequent risks to X, I will set out the relevant background facts in some detail, beginning with each parent’s personal history.
The Father
The Father, a transport worker, was born in 1971.
From school age, he struggled to concentrate and pay attention in class, was highly impulsive and had a hot temper. His difficulties began in primary school and continued well into high school. Throughout his childhood and into his adulthood, the Father displayed irritable mood and marked outbursts of anger; it was thought that he may have ADHD.[1]
He soon turned to alcohol and cannabis as a form of self-medication; by 1990 he already had drug convictions.[2] Further convictions followed in 1991 and 1992 in relation to break, enter and steal offences, dangerous driving on a cancelled licence and driving an uninsured and unregistered vehicle. His lack of respect for the law was to become a recurring theme.
By 1993 the Father’s adult daughter Ms D had been born and that same year the Father was convicted of assault occasioning bodily harm for which he was admitted to a bond. In 1994 he was convicted of disqualified driving.
Somewhere around that time the Father had an acrimonious separation from Ms D’s mother and an AVO was put in place to protect her from the Father. Notwithstanding this, Ms D remained in the Father’s care when they separated. Notably, the Father and Ms D are now estranged. The Mother gave evidence that Ms D told her that the Father had “bashed her all her life”. Neither party called Ms D as a witness but on balance I am satisfied that during Ms D’s childhood the Father displayed angry and abusive behaviours towards her (and towards Ms D’s mother).
The Father later re-partnered and in 1998 his partner gave birth to his son Mr E. The Father and Mr E’s mother separated and Mr E lived in some sort of shared care arrangement between them. The Father’s relationship with Mr E is not a close one and on balance Mr E and his mother also experienced the Father’s angry and abusive behaviours.
In 1999 the Father assaulted two women, as a result of which he was charged with two counts of assault occasioning bodily harm. He contested the charges and in 2000 was convicted and sentenced to three (3) months imprisonment. He unsuccessfully appealed to the District Court.
Presumably the Local Court granted the Father bail pending his appeal because just 3 days afterwards, in 2000, the Father was driving his vehicle when he saw these women walking by. According to the Father, he just “snapped” – proceeding to drive in a reckless or dangerous manner, before getting out of his vehicle and again assaulting them. In doing so he also contravened an AVO protecting one of his victims. For these offences he was sentenced to twelve (12) months imprisonment – reduced to two (2) months and twenty-two (22) days imprisonment on appeal, presumably reflecting his pre-sentence custody.
The Father seemed to see himself as a victim. He had no evident remorse about these offences. He explained his actions by saying that the two women had apparently “trashed his house”.
In 2002, the Father was again convicted of disqualified driving.
In 2005 the Father was convicted of one count of destroying or damaging property, two counts of stalk/intimidate with intention to cause fear of physical or mental harm, as well as a contravention of AVO. He was convicted of all offences and sentenced to concurrent terms of imprisonment of up to six (6) months, reduced to four (4) months on appeal with the balance of the sentences to be suspended upon the Father entering into a bond.
In the witness box, the Father claimed not to remember who the victim was in respect of that AVO breach. (He accepted that it could not have been Ms D’s mother as her AVO against him had expired by the mid-1990s).
In 2006 the Father was convicted of possessing prohibited drugs and possessing ammunition without holding a license or permit. Another drug possession conviction followed in 2009. He received fines for these offences.
The Father had two further drug convictions in 2014 resulting in fines and a bond.
That same year, the Father consulted upon Dr F, Consultant Psychiatrist. [3] The Father admitted that he was abusing substances, drinking some six to ten beers per day, smoking cannabis during the day (two or three bongs) and more at night to relax. He was also consuming a fifty (50) gram pouch of tobacco every three or four days smoking “roll your own cigarettes”. Dr F noted that at that stage the Father continued to have a running dispute with his ex-wife and her son.
Dr F considered that the Father was suffering from major depression, with reduced concentration, memory and motivation. His depression was of an irritable type against a backdrop of longstanding anger problems, chronic substance abuse and possibly ADHD. Dr F recommended that the Father undertake anger management and that he continue to see his psychologist, Dr G “to work on his mood and anxiety issues”.
In 2015, some six months or so before commencing his relationship with the Mother,, the Father was again convicted and fined for breaching an AVO although in the witness box he claimed to have no memory of those offences.
In 2015 the Police again found the Father in possession of cannabis and he was charged with that offence at the time he met the Mother.
In summary, the pre-relationship picture of the Father is that he had longstanding mental health issues, substance abuse issues, anger management issues, a propensity for violent behaviour (at times impulsive and explosive), an unwillingness to comply with AVO conditions, a lack of remorse, and a general lack of sufficient respect for the law.
The Mother
The Mother was born in 1979. She had a dysfunctional relationship with her mother and was instead raised by her grandmother.
Like the Father, the Mother developed substance abuse issues as a young adult. She drank heavily, smoked cannabis and then in her early twenties developed a serious cocaine habit eventually resulting in her being hospitalised as a result of a drug-induced psychosis. Her psychosis may have been longstanding; the Mother admitted to the Family Report writer that she had engaged in sex work for six months during her psychosis.
The Mother quit cocaine after her hospitalisation but continued using cannabis and alcohol heavily. She underwent detoxification at a residential rehabilitation program in 2005.
At some stage the Mother entered into a relationship, as a result of which in 2008 she gave birth to her daughter H. She and H’s father later separated and H stayed living with her. (At some later stage the Mother and H’s father had some sort of falling out after which he stopped seeing her.)
In 2012/2013 and again in 2015 the mother had further drug counselling. To assist her with anxiety, the Mother’s GP prescribed valium for her at some point. The Mother has continued to use valium ever since, sometimes abusing it and sometimes mixing it was alcohol.
In the leadup to meeting the Father, the Mother was living with H in public housing. She had fallen out with one of her neighbours, requiring Police intervention on a number of occasions in October, November and December 2014 as a result of their verbal and at times physical altercations. Police did not consider that the Mother was “completely an innocent party” in those disputes.[4] In one altercation the Mother suffered serious facial injuries and ended up in hospital.
Overall, the pre-relationship picture of the Mother is of a person with longstanding substance abuse issues and some volatility in her personal life (including violence at times).
Early relationship & parenting history
The parents met online in mid 2015, arranging to meet in person a few days later. Their relationship quickly progressed, with the Father spending significant time at the Mother’s home and practically living there.
Very early on, the Mother told the Father that she was keen to have another child.[5] He was enthusiastic and within a few months the Mother fell pregnant with X.
In 2015, the Father was sentenced to four (4) months imprisonment in relation to his 2015 drug charge. This was suspended upon him entering into a bond requiring counselling, educational development or drug and alcohol rehabilitation, to be supervised by the NSW Probation Service.
Not long after, the Mother and H moved into the Father’s property at Town J although they dispute how that came about. The Father’s evidence is that the Mother wanted to move due to her ongoing problems with her neighbours. The Mother was pregnant and feeling vulnerable. She says the Father had been acting in a controlling manner by essentially moving into her home, and that he was acting in a violent and aggressive way towards her neighbours. As to moving, the Mother considered that the Father “was giving me no choice”.
There is truth in both parents’ versions. The Father was infatuated by the Mother and no doubt defended her vigorously with the neighbours – but the Mother entirely “whitewashed” her own past history with them in a way that unfairly cast the Father as the villain.
Notwithstanding his drug convictions and bond, the Father continued regularly smoking cannabis. Though the Mother denies using cannabis while pregnant, I am more inclined to believe that she did in fact use cannabis on occasions as the Father deposed. Both parents continued to consume alcohol, at times heavily.
Cracks soon emerged. While the Father and H generally enjoyed each other’s company, the Father did not think that the Mother disciplined her enough. As the Mother opposed the physical discipline he was suggesting, the Father increasingly began to “pick on” H when she misbehaved.
X was born in 2016. It was a very difficult birth and X required additional care. She also had club foot which required an operation, numerous castings to correct the position of her foot, and boots and a bar brace later on as X grew and started walking.
The Mother developed post-natal depression and the Father was not very supportive. The parents began arguing more often. Both parents continued to seek refuge in alcohol and cannabis, and in the Mother’s case valium.
One evening in June 2016 while at a restaurant with friends of the Mother, the parents got into a very unpleasant argument about disciplining H. The Father yelled at H and they all left the restaurant. Afterwards the Father wanted to drive the five (5) hour journey straight back to Town J. The Mother refused, the Father lost his temper and then left in her car with his caravan attached. He took with him all of their belongings including X’s nappies, clothes and wipes. He only returned two days later, and only after some convincing the Mother and children returned to Town J with him.
First separation in March 2017
On the evening of 18 March 2017, H hit X over the head. The Father saw it and angrily sent H to her room. The parents then started arguing. The Mother had been drinking that day and it is likely the Father had too. He yelled at the Mother although the parties hotly dispute whether the Father’s anger turned physical. The Mother’s evidence is that the Father was screaming and yelling, kicking doors and throwing things - before kicking herself and both children out of the home and refusing to allow them to take anything for X. The Mother says she could not get into town that night as the bridge was flooded and she and the children had to stay with a stranger for the night, following they went into the Women and Children’s Refuge at Town B.
The Father says the Mother left his home by choice. He says she did not stay with a neighbour but drove to Town B with the children and that she later admitted to him that she had been pulled over by Police on the way, returning a blood alcohol concentration just under the driving limit.
The Mother and children stayed at the maternal grandmother’s house for a few nights. Yet the maternal grandmother evicted them after just a few days. The Father said that the Mother later admitted to him that the maternal grandmother had evicted her because of her drinking. I accept that evidence.
On 20 March 2017, the Mother attended Town B Police Station seeking their assistance to gain accommodation at the women’s refuge at Town B.[6] In her discussion with Police she gave only a vague description of the events on the night of separation – though she was quite clear to say that the incident between she and the Father was “only verbal and did not turn violent”. Confusingly, she then went on to tell them that about a week earlier she had woken up in Town B Hospital with broken ribs and could not remember how this happened or how she got to hospital – all she remembered was consuming three glasses of wine. Police were unable to corroborate this event, or whether it related to family violence.
Unsurprisingly the Father’s counsel took the Mother to this Police record, and also to a record of the NSW Department of Families and Community Services (DoFACS) revealing that at that time the Mother told a case worker that the parents had only had “minor verbal disagreements” and that there had been no physical violence or abuse directed towards her or the girls. She had also told the case worker that if the Father had been violent, that she was not one to “put up with it” as she was aware of the cycle of domestic violence.
Faced with these contemporaneous subpoenaed notes, the Mother explained that back then she did not really know what family violence was. I reject that evidence.
I am satisfied that on the night of this first separation the Mother left of her own accord, that the Father did retain at least some of X’s items (noting his prior similar conduct), and that the Father had been physically violent to some extent that evening which the Mother falsely denied to Police and the DoFACS case worker. Her false denial arose out of her fear that the children might potentially being removed from her care if she told the truth – a risk she later acknowledged to the Father after a court event in December 2017.
As to the Mother waking up in Town B Hospital with broken ribs a week prior to meeting Police, the Father admits that on a date in 2017 the Mother did ring him from Town B Hospital and that at her request he picked her up and took her to her mother’s house. Importantly however, the Mother does not suggest that the Father was responsible for her injuries and it was never put to him that he was. Given the case the Mother ran at trial, she would have tried to put him in the frame for it if she thought him responsible. No hospital records were tendered. Frankly, her hospitalisation remains a mystery in my mind.
Returning to the chronology, it is true that the Mother did successfully obtain accommodation at the refuge. But her stay there was brief and controversial.
The Father’s evidence is that the Mother told him that she had been forced to leave after getting into a fight with one of the other women living there, that the Mother had been running around naked and “I put my tits in her face. I pissed in her shampoo bottle.”
The Mother vehemently denies doing these things but something must have happened at the refuge which caused the Mother to leave fairly promptly. Given that her own mother had evicted her shortly beforehand, against the backdrop of the Mother’s own history of drug and alcohol abuse and her past violent history with her former neighbour, I accept the Father’s evidence as to what the Mother admitted to.
The Mother was obviously not coping very well.
Neither was the Father. He confessed to a DoFACS case worker that he was aware of every motel the Mother and children had stayed in over this period. He also admitted delivering roses to the Mother’s sister’s house to give to the Mother, as well as approaching the maternal grandmother at a camp site at Town K. [7]
The Father’s mental health briefly “collapsed” and he ended up being admitted to the L Hospital as a voluntary patient between 27 March and 30 March 2017 after taking excess diazepam (valium) tablets. He had thoughts of self-harm and complained about his relationship problems. His polysubstance abuse was noted.
While in hospital the Father admitted to having had numerous arguments with the Mother, belying his evidence at trial that they had only ever argued twice. He told the hospital staff that she had moved to the refuge over concerns about his behaviour. At one point the Mother attended hospital with him although she later complained to staff about his volatile behaviour.
Reconciliation and marriage
The parties soon reconciled and resumed living together at the Town J property.
On 23 May 2017 someone contacted DoFACS expressing concern about the Father’s alcohol use, family violence against the Mother and general lack of supervision of the children. It is unlikely that the Mother was the notifier. The family were referred to M Families.
In 2017 the parents married.[8]
The parents honeymooned interstate, with each smoking cannabis while saying it was the other who obtained it. The Father even says the Mother asked him to stick the leftover cannabis into his anus for the flight home which he refused to do. The Mother denies making such request.
Final separation in September 2017
The parents finally separated on Monday 4 September 2017, following a sequence of arguments and altercations between them which had begun the day earlier on Father’s Day. As with numerous matters, their versions of events are very different.
The parties started arguing on the Sunday morning of Father’s Day. The Father says that he wanted to clean the windows and that the Mother, defensive about the state of the house, began verbally abusing him by calling him a “fat cunt”, “ugly” and the like. The Mother says that she was unwell and needed rest but that the Father was hassling her to clean up.
In the witness box the Mother admitted drinking alcohol from around 10.30am to “settle her nerves” given what she said was the Father’s behaviour.
Later, the Father became angry at H for going through some drawers. The Mother then abused him, telling him to empty them out. The Father asked the Mother if she wanted everything thrown out of the drawers; when she failed to reply he then emptied them into the bin. Clearly both were angry; it was a volatile situation. The Father did not hit the Mother with any of the drawers but he was waving them around in anger and I accept that his behaviour was intimidating, that the Mother feared he might hit her with them and that both children were upset and crying.
Later on the parents had another argument about H. The Father sent her to her bedroom. While the Mother was inside her bedroom comforting her, the Father kicked the bedroom door open, frightening and upsetting them both.
Later that day when things had calmed down, the Father’s daughter Ms D and her boyfriend Mr N arrived, caravan in tow. As a Father’s Day gift, they had brought with them a ten (10) can pack of Jack Daniels. By then the Mother had already consumed about three quarters of a bottle of wine and the Father had also likely been drinking. The parents had probably smoked cannabis as well.
More arguments followed later in the night and, unsurprisingly, the parents give different accounts.
X accidentally kicked the Mother in the head with her boots while she was in her highchair. Affected by alcohol and probably cannabis as well, the Mother became angry and erratic. She slammed the door, went out to the veranda and kicked her pot plants off. She said she was leaving him the next day. The Father followed, telling her she was out of control. She abused him, telling him to “go fuck your ex” and “go get on the net and find yourself a dirty whore” and even suggesting that he “go fuck Ms O” (the maternal grandmother). The Father said how disappointed he was with her, and then (or perhaps later) Ms D and Mr N took the children into their caravan for a while to get them away from the situation.
The Father tried to get the Mother’s car keys off her in order to prevent her from leaving. When he failed to get the keys he then let the air out of one of her car tyres instead. Each parent puts a different spin on the Father’s actions. The Father says that he was looking out for the Mother’s safety as he did not want her to drive in the state she was in. The Mother says that the Father was simply acting in a controlling and coercive manner.
There is truth in both parties’ versions.
The Father also locked the Mother out of the house, while he and the children were inside. The Father says he did so on Police advice, having rung them multiple times that evening. The Mother ended up sleeping in Ms D and Mr N’s caravan. As with the car tyre, the Father’s conduct was a mixture of child protection on the one hand, coercion and control on the other.
The Mother slept in the caravan with Ms D and Mr N that evening. The next morning she told the Father that she wanted to leave with the children. The Father refused to let her take X, saying she needed mental help. At some point Ms D and Mr N left and the Father agreed to re-inflate the Mother’s care tyre so she could leave with H only. When the Mother tried to take X, the Father pulled her from his arms.
Again, the Father portrays himself as being only concerned about the safety and welfare of X but I do not accept this was pure “altruism”. In my view there were strong elements of control here; he was not so worried about the Mother’s mental health as to stop her taking H. But that said, I am satisfied that the Mother had in fact been behaving irrationally and aggressively under the influence of alcohol (as had the Father.)
The Mother attended Town B Police Station that afternoon. Her (essentially) contemporaneous description of events was less serious than her trial affidavit. Specifically, she made no mention of the Father “burning his medication” – an allegation that I do not accept. [9] After speaking to her, Police did contact the Father who portrayed her as the aggressor and suggested that she had had a “schiz attack”. Noting the conflicting versions, Police contacted Ms D who broadly corroborated what the Father had said.[10]
On 6 September 2017 Police advised the Mother that, given the conflicting accounts and the fact that she was no longer living at Town J, they did not intend to apply for an AVO to protect her from the Father.[11] They did however agree to undertake a welfare check on X which revealed no concerns.
Recovery order made – X goes back into Mother’s primary care
Having had no success with the Police, on 8 September 2017 the Mother urgently applied to the Local Court at Town B for a recovery order. The order was made ex parte on 11 September 2017 and its conditions included a prohibition on the Father removing or taking possession of X unless in accordance with court orders. The Local Court also transferred the proceedings to the Federal Circuit Court.
The recovery order was executed later that day while the Father was with X at P Family Centre obtaining food and clothing for her.
The Mother had always been X’s primary carer and upon her return to the Mother she was somewhat traumatised – initially screaming whenever the Mother went out of her sight. Interestingly the Family Report writer observed that the Father did not seem to have any real empathy or insight as to how X may have been impacted by being separated from her Mother (and sister) for seven days.
Lockdown at X’s daycare centre
The Father did not take the recovery order well. The very next day, 12 September 2017, he went to collect X from her daycare centre, “Q Day Care”. He told them he didn’t have a copy of the recovery order; his view was that he could simply collect X from daycare notwithstanding that Police had physically removed her from his care the day before.
Fortunately X was not there that day. The Father told “Q Day Care” he would be back to collect her when she was next due to be there on 14 September 2017.[12]
X had returned to the Mother’s care with nappy burns/rash. On 12 September she says she took X to a doctor as the burns were severe and X needed “desperate medical attention”. She exaggerated the severity of the burns (either deliberately or more likely because she was overwrought and emotional). Though there is no record of that GP visit in the subpoenaed documents, I accept that the Mother did obtain some cortisone cream to treat X.
The Mother also photographed the rash (including capturing X’s genital area), sending the photograph/s to the Father’s sister via Facebook to complain about the quality of the Father’s care.
As promised, on 14 September the Father did go back to “Q Day Care” to collect X. But by then the Mother had given them a copy of the recovery order and told them that he was not to collect her. So when the Father arrived at 10.33am, the daycare centre went into an immediate “lockdown”. This involved all of the attending children as well as some hapless parents/carers who attended to collect or drop off the children at the same time. It was clearly an unpleasant situation for all. The Father was talking to a staff member at the front gate and becoming upset (though not abusive). Unbeknownst to him, another daycare worker was hiding nearby and listening in - presumably to act as a witness later on if needed. Police were ultimately called and the situation was defused.
This incident led to X having to change daycare centres as “Q Day Care” asked the Mother to find an alternative placement for her, which she did.
AVO proceedings; Father starts complaining to DoFACS
On 14 September 2017 Police applied for a provisional AVO to protect the Mother from the Father as a result of his ongoing persistent attempts to contact her via text message as well as trying to track her down in person.[13]
Angry, on 21 September 2017 the Father contacted DoFACS to raise concerns about X’s safety in the Mother’s care. It was to be the first of many such complaints.
On 28 September 2017, the Local Court made a provisional AVO which prohibited the Father from contacting the Mother except through a lawyer, or in relation to contact with children as ordered by a court or agreed between the parents. He was also prohibited from going within 500 metres of any place the Mother lived or worked.
The Father responded with further complaints to DoFACS on 3 October and 9 October 2017. Amongst other complaints, he alleged that the Mother was “sexually exploiting” X by posting the naked photographs of her nappy rash. As a result of these complaints, the Town B Child Safety Centre conducted some home visits upon the Mother. They found that both X and H presented well; the Father’s concerns were not substantiated.
That month, the Father completed an anger management program, the “Building Connections Program”, and the Positive Parenting Program (“PPP”).
But the Father was still clinging to the relationship in an unhealthy way. On 17 October and again on 28 October 2017 he made public Facebook posts telling the Mother how much he loved her, apologising for his past disrespect of her and asking that they forgive each other. The messages were not a breach of the AVO, but he was walking a fine line.
The Mother was herself somewhat torn; in November 2017 she posted videos on her Facebook page in which she talked about still loving the Father and needing to get past it.
Interim orders of 4 December 2017; Parents are intimate again
When the proceedings first came on before his Honour Judge Middleton on 4 December 2017, X had not spent time with the Father for almost three (3) months. Interim consent orders were made that X live with the Mother and spend supervised time with the Father for not more than two (2) hours per fortnight, supervised by C Family Centre Town B.
Notwithstanding the AVO, the Mother rang the Father that afternoon using somebody else’s phone and the parents had a lengthy conversation. They agreed to meet at a park the next day, went out to lunch and were later intimate that day and the next. On the following two days the parents then exchanged sexual/intimate texts.
Relationship volatility & AVO breaches
Their rapprochement came to an abrupt end a day or so later when the Mother, during a meeting with her psychologist, rang the Father to say that she couldn’t see him anymore, that he was not to contact her and would have to be breached on his AVO if he did. The psychologist had told her to make the call, which came as a cruel blow to the Father. Emotionally both parties were highly vulnerable; their relationship dynamics remained volatile and unhealthy.
On 8 December 2017, the Mother added the Father as a Facebook messenger contact. This was too much for the Father, who on 11 December 2017 texted her multiple times. She repeatedly told him to stop. The final straw for the Mother came just after midnight on 13 December 2017 when he messaged her seeking reconciliation. She complained to Police the next day and on 15 December 2017 he was charged with breaching the AVO. He was bailed on the strict condition that he have “no contact whatsoever” with her.
Painfully for him, as he left the court the Mother stopped her car nearby. She got out, came up to him with kisses and hugs, before saying “I can’t be with you. DOCS will take out children.” She then left.
Notwithstanding the AVO, his pending breach charges, his court appearance and his bail conditions, the Father contacted the Mother again, ringing her on 21 December 2017. She told him to leave her alone. On Christmas Day he rang her again, this time crying and upset about the relationship breakdown. They then got into an argument about property issues following which the Mother again complained to Police.
On 31 December 2017 Police conducted a roadside breath test on the Father. He tested positive for both cannabis and methamphetamine which he explained by saying that he had smoked a few weeks earlier. This was despite six (6) recent drug and alcohol counselling sessions he had attended at Community Health Town B between 29 September and 6 December 2017.
The Father was charged with a drug driving offence as well as the recent AVO breaches. He was later convicted and placed on bonds, including requirements for counselling, educational development or drug and alcohol rehabilitation to be supervised by the NSW Probation Service.[14]
On 5 January 2018 the Mother briefly unblocked the Father on Facebook so that she could access some photographs from his Facebook account for property settlement purposes. Seeing that she had unblocked him, the Father then rang her but hung up prior to her answering. The Mother complained to Police but they did not consider this a breach of the AVO.
On Valentine’s Day 2018, H discovered an envelope in the mailbox which contained a Valentine’s Day card which the Father had written for the Mother. She did not complain to Police at that time but merely put the card in a drawer at home.[15]
Unfortunately, but perhaps in response to the Valentine’s Day card, the Mother then decided to initiate contact with the Father again - in a surreptitious way. On 17 February 2018, using a Facebook account under the name “R”, the Mother made a Facebook friend request of the Father. He accepted and in the course of exchanging messages he soon realised that it was the Mother. Her messages were a mixture of expressions of love, suggestions that he find a way to “grow” and change and that he should praise his wife. There were strong religious overtones. (At that time the Mother was staying with some people who were apparently quite religious.)
When the Father asked the Mother to call him she responded “No please find something good to do I’m busy with evangelical word I’m leading people to God I’m not going to talk to you! Look up preys [sic] for straying husband do something good please” and “Read my wall find some answers”.
He sent her a photo of his left hand wearing his wedding ring, holding a flower. She replied “you break my heart I miss my flowers”; “please don’t push me too much I still don’t trust you” and “love and trust are two different things”.
The Mother also told the Father in a message that she prayed every day for him to be safe, for her heart to get better, but that God was stopping her from reconciling with the Father who she accused of betraying her in the worst ways possible. She said that she had added him on Facebook not to spy but rather “so you could find yourself. I made this page to heal my pain and prey [sic]. I thank you for one thing out of all the pain you put me through for the baby and sending me to the depths of despair. That is when I found myself that is when God found me and I will trust in him forever now and give all the glory to my father in heaven”.
It is clear that the Mother was still willing to communicate with the Father on her terms, notwithstanding the AVO.
Child Inclusive Conference on 21 February 2018
This did not go well for the Father. To begin with, he attended 2 ½ hours early, making a mess of the safety plan that had been put in place for the Mother. His presentation was also concerning. He was extremely emotionally labile, at times crying and at times agitated - and emotionally preoccupied with the Mother throughout. He repeatedly claimed that she was contacting him using fake Facebook profiles. Unfortunately the Mother falsely denied ever doing so, making the Father look worse.
Ultimately the Family Consultant was so concerned about the Father’s presentation and about the allegations and counter-allegations that she decided to make a notification to DoFACS. Her Memorandum recommended that supervised time continue, while observing that a “no time” order with the Father may be the best long-term order for X.
Leadup to the final AVO protecting the Mother
Days later, on 25 February 2018 the Father again contacted DoFACS about the Mother’s care of X, raising the same concerns as before.
In the meantime the Father’s supervised visits had generally been going well. X would smile at him and they were affectionate to each other.
Unfortunately in March 2018 X lost a fingernail after an accident at daycare. The Mother was anxious not to provide a copy of their incident report to the Father as she did not want to reveal which daycare centre she was now attending. The Father saw the injury and made yet another complaint about to DoFACS. [16]
On 9 March 2018 the Mother made another public “R” Facebook post. It contained a picture of a beach, with a love heart drawn in the sand and the words “marry me” inside. The accompanying post read:
“My husband wrote it in the sand, he wrote it in my heart and in his heart at the very same time, he wrote it in our children’s hearts he gave me and only me his heart and for that I will always be grateful for him!!! He may be lost for now but not always!!! He is mine and I know it!!! I can have him whenever, however, anytime!!!”
This was followed on 12 March with another public post “I could make you mine taste your lips of wine anytime night or day, all I have to do is dream” with two love heart emojis followed by “I love you my husband I know your [sic] hurting”.
Final AVO is made – and promptly breached
On 9 April 2018 the Father, using his nephew’s phone, rang the Mother to ask her if she still loved him.
The next day, 10 April 2018, the Local Court made a final twelve (12) month AVO. The Father was prohibited from approaching or contacting the Mother in any way except through a lawyer, or as ordered by a court, or as agreed in writing about contact with children, or to attend accredited or court-approved counselling, mediation and or conciliation. He was prohibited from going within 500 metres of any place where the Mother lived or worked and was also prohibited from approaching or contacting the Mother through any third person.
That same day the Father, again using his nephew’s phone, sent the Mother two texts asking whether she loved him or not.
A few days later he again complained to DoFACS after X attended a supervised visit with black eyes and an injury to the bridge of her nose. At his request the supervisor had photographed the injuries and given the photographs to him. He told DoFACS that the Mother was neglectful, suggested that she had mental health issues, that she was abusing valium and was good at hiding it. Alarmingly, he also complained that the Mother brought men into her house to “fuck them every night”. During the call to DoFACS he was raising his voice, asking for feedback and wanting to know that they had spoken to the Mother and checked with the L Hospital about X’s injuries.[17] The Father also posted the photographs onto his Facebook page, as a result of which the Mother then received some threatening posts.
On 23 April 2018 the Mother complained to Police about the Father having contacted her on his nephew’s phone earlier that month. The Father was charged for the AVO breach, convicted and fined.
On 12 May 2018 the Father tried to give C Family Centre a letter and card to give the Mother for Mother’s Day. They did not do so, instead taking copies so that the manager could talk to the Father about the rules of the contact centre and to explain that this was inappropriate.[18]
Father breaking C Family Centre rules; more DoFACS complaints
Two weeks later the Father had some car trouble, arriving late for his supervised visit. He was on his mobile telephone when he arrived, and persistently ignored the supervisor’s request to get off the telephone and come inside before the Mother arrived. In the result, the Mother arrived while he was standing there and he glared at her.
On this occasion the Mother confided to the supervisor that, whenever X injured herself in the leadup to a contact visit, the Mother worried that it would result in a later DoFACS complaint. On that occasion X did in fact present with some minor injuries - which the Father promptly contacted DoFACS about the next day. [19]
Sometime around then the Father relocated from Town J to a caravan on the Region S. On 26 June 2018 he attended Suburb T Police Station asking them to undertake a welfare check on X. [20]
On 27 June 2018, DoFACS undertook a risk assessment at the Mother’s home in relation to X’s black eyes from a few months earlier. The Mother told them that while she was outside the house, X had been jumping inside on a bed, falling off and bumping her head. The Mother had then taken her to hospital. According to DoFACS, the children appeared to be well cared for, they seemed close, happy and settled in their current environment. They noted that the Mother had connected with “U Organisation” to gain further education and life skills in recognising family violence.
DoFACS noted they had received eleven (11) previous reports, five (5) for alleged abuse and six (6) for alleged neglect. Notably they record that the “majority of reports appear to have been made maliciously and/or concerns not substantiated”. With respect, this is a damning assessment of the Father’s use of the child protection system to lash out at the Mother.
Notwithstanding these matters, DoFACS ultimately concluded that the children remained at a “very high” risk of neglect and “moderate” risk of abuse.
On 7 July 2018 the Father again arrived late for his supervised visit. Again the parties were brought into close proximity, against C Family Centre’s rules. The Father mouthed words to the Mother and pulled a face at her, which she says caused her to feel threatened. Afterwards, C Family Centre devised a new rule to avoid to the parents coming into contact. The Father was now to come inside the building before C Family Centre telephoned the Mother to ask her to attend.
Father breaches AVO again
In 2018, their first wedding anniversary just two days away, the Mother made a public post on Facebook that she still loved the Father and would be thinking of him on their anniversary. She said that she wouldn’t contact him and didn’t expect him to contact her, saying “I just want you to keep working on you and I’ll keep working on me”. Though a public post, it was clearly intended for the Father’s consumption. And consume it he did, ringing her on their anniversary to suggest a meeting at the beach. She refused, saying not to contact her as it was “setting back her recovery”.
The Mother later complained to Police who again charged the Father with breaching the AVO. Police were unmoved by the Mother’s earlier public Facebook post. In the witness box the Father suggested that at that time the Mother had separately messaged his adult son Mr E to pass on her post. But the Father never mentioned this in his affidavit (or to Police at the time) and I do not accept it. And to be fair to her, the Mother’s post specifically stated that she did not expect him to contact her.
In August/September 2018 the parents each completed the “Parents not Partners” program. I am unsure what either of them gleaned from it. In October 2018 the Father took out an interim AVO application against the Mother, for reasons that are entirely unclear and his application seems more like “tit for tat”. His application was later dismissed.
Family Report
Family Consultant Ms V, the author of the Child Inclusive Conference Memorandum, also prepared the Family Report. She conducted interviews and observations on 10 April 2019, the day after the 12 month AVO protecting the Mother had expired.
The Father went to the Family Report interviews intending to vigorously pursue reconciliation. He had contacted the Mother the night before the interviews and she did not respond. She told the Family Report writer that she didn’t feel confident to do so without the assistance of her family violence counsellor. She said she was fearful of the Father, and cautious about what she said to him because of how “unpredictable” he could be.
Having been rebuffed, the Father called and texted the Mother during her Family Report interviews. The Mother read his messages out to the Family Report writer; they included him asking to meet her afterwards. The Mother appeared visibly anxious and fearful.
The Mother wanted to end the father/daughter relationship, saying that X would not be safe if there was unsupervised time. The Mother said she was scared the Father would hurt X to spite her if he didn’t get what he wanted, that he was full of revenge and anger. She was also concerned about him physically disciplining her. She reasoned that for a while X would “ask for” the Father - but would get used to life without him. Insightfully, she asked the Family Report writer: “If it is not safe without supervision what is the benefit?”
While the Mother did continue to mislead the Family Report writer by denying she had contacted the Father through fake Facebook profiles, I accept that her anxiety about the Father was genuine.
As a result of the Father’s actions, and the Mother’s apparent fear of him, special arrangements were made after her interview to escort the Mother out of the Court building via an alternate exit.
When it came to his interview, the Father said that he wanted reconciliation - and failing this an equal time order. The first was unrealistic (if not disturbing), the latter redolent of the Father’s needs rather than X’s. While he was more emotionally stable than he had been at the Child Inclusive Conference the Father was still dysregulated at times. For example he laughed intensely at seemingly unrelated issues.
The Family Report writer noted that at times he would “parrot” language that he had learned from his various parenting programs but without being able to demonstrate a true understanding of what he had learned.
The Father told the Family Report writer that he had been periodically consulting a psychologist over the years, Dr G, who had suggested that he may have Bipolar Disorder. Notwithstanding, the Father generally dismissed the suggestion of a mental health examination, saying “life is what you make it”. He laughed when talking about his hospitalisation in March 2017, suggesting that the Mother had called the police/ambulance so as to unnecessarily cause drama.
Ultimately the Family Report writer’s primary concern was ensuring X’s safety, particularly in relation to the risk of family violence and the Father’s disregard of orders and proper boundaries. She was concerned that the Father either appeared to show a limited awareness of the impact of his behaviour on others, or a blatant disregard for other people’s views and experiences. She had concerns about substance abuse and mental health issues for both parents.
Ultimately the Family Report writer arrived at the melancholy conclusion that the risks posed to X’s physical and mental wellbeing by maintaining a father/daughter relationship outweighed the benefits of doing so. She firmly recommended a “no time” order, and that the Father be restrained from approaching the Mother or X.
Orders of 24 May 2019
On this date the proceedings were brought back before me specifically for release of the Family Report. I raised my concern about the Father contacting the Mother during her interview and the orders I made included:
2. Until Further Order, pursuant to s68B of the Family Law Act, the Father be restrained from:
a) Contacting the Mother by any form except through the Mother’s Solicitor or the communication book utilised by the Contact Centre;
b) Approaching the Mother;
c) Contacting or approaching X except in accordance with the supervised time orders;
d) Approaching or contacting any day-care centre X attends.
3.Urgent liberty to apply to the Mother or Independent Children’s Lawyer in the event that it is alleged that the Father has breached any of these injunctions, or that the Father has failed to comply with the safety plans including parent drop-off and pick up times at C Family Centre.
4.In the event the matter is relisted pursuant to order 2 then the Father’s time with X will be suspended until such time the court is able to further hear the matter.
The orders were intended to ensure the safety of the Mother and of X and also to send the Father the clearest possible message. I also made an order under s102NA of the Act prohibiting the parties from personally cross-examining each other at trial.
More supervised visits & complaints to DoFACS
In the meantime the Father’s visits with X were continuing on a regular basis. The Father was demonstrating a commitment to seeing her, no small undertaking given that he had to drive about 3 ½ hours each way. Their interactions were positive; they were affectionate and the Father did not say inappropriate things to her.
Unfortunately the Father’s complaints to authorities continued. In October 2019 he contacted Town B Police to advise that X had said on a recent supervised visit that “a man had hurt me.” There was no context and no apparent injury to the child. C Family Centre had no records to corroborate the alleged disclosure. When Police followed up with the Mother she complained that she was being harassed. Police seemed to agree. [21]
The Father made the same complaint to DoFACS the very next day, also adding X’s disclosure that “sissy hurt” – clearly aimed at H. It was otherwise a re-hash.
On a supervised visit in January 2020 the Father wanted to go outside to smoke a cigarette while the Mother was out there. Doing so would have been a clear breach of C Family Centre’s rules. It was only with difficulty that the supervisor managed to talk him out of it.
Father’s mental health
With the trial looming, the Father belatedly obtained a mental health referral to Ms W, psychologist. He does appear to have been depressed.[22] But his affidavit deposed that the referral was not for depression but rather to help him understand the reason for the Mother’s allegations against him and to improve himself. In the witness box he promptly admitted that he had seen the psychologist on legal advice - inferentially to improve his case.
At the supervised visit on 8 February 2020, X told the Father that the Mother smacks her when she is naughty. He called the DoFACS helpline some four (4) days later to report disclosures that “mummy hits me” and “mummy said daddy is bad” although there is no C Family Centre record to corroborate. The matter was screened out and went nowhere.
Covid-19 in leadup to trial
In March 2020 C Family Centre suspended the Father’s supervised time due to the COVID-19 pandemic. Electronic communication was instituted instead, with each parent dialling into a video meeting which C Family Centre supervised. The Mother was at home for the calls but would go into another room.
The Father was still clinging to the prospect of reconciliation, posting on Facebook “no matter how long it takes, love is always worth the wait” as well as “it hard to wait for something you know might not happen but it’s even harder to give up when you know it’s everything you want”.
The trial initially ran from 27 to 29 April 2020. Closing submissions were made on 12 June. In the course of those submissions, the Father’s counsel submitted to me that the Father “has learned his past lessons” about not contacting the Mother and complying with orders.
The course of the trial
This submission was unfortunate because, unknown to the legal representatives at the time, the Father had sent the Mother a Happy Mother’s Day text on 12 May 2020 - in flagrant breach of my interim orders of 24 May 2019. In my view, he was still feeling out possible reconciliation.
More breaches of my orders soon followed.
On 18 June 2020, X told the Father during a video call that she wanted to see him again in person and go to his “house” where she wanted to hug and kiss him. She said she wanted to bring all her clothes with her. On 24 June 2020 she told him that she was excited to go to his house one day.
The Father jumped to the wildly optimistic conclusion that the Mother must have told X these things. Emboldened, he ended up calling the Mother three (3) times.
On 19 June 2020 the Mother filed an Application in a Case seeking to re-open the evidence to admit a letter from the Mother’s counsellor, Ms Y. The letter referred to the alleged impact of the Father’s behaviour upon the Mother. But the letter was not new; the Mother’s solicitors were well aware of the letter at the time of the trial. For this, and other reasons I gave at the time, I refused the Mother’s application.
I did however permit the Mother to re-open the evidence as the Father’s recent contact with her in breach of my interim orders. This prompted each party to file and serve a further short affidavit. The resumption of the trial was then delayed due to extraneous circumstances and was only able to resume on 17 March 2021.
At the resumption, the Mother said in cross-examination that if X told the Father in June 2020 that she wanted to go to his house etc, then it was no more than X’s “wild imagination”. The Father admitted that he had never heard the Mother say such things to X. He said that at the time he rang the Mother, the orders of 24 May 2019 “didn’t enter his mind”.
It was clear to me that once again the Father’s emotional reactivity got the better of him; he flouted the court orders.
To conclude the chronology, I can only presume that since I reserved judgment again in March 2021, the Father has continued to enjoy his supervised time with X either electronically or in person. I assume that those interactions have been positive.
PARENTING PROCEEDINGS – THE LAW
The Court’s power to make a “parenting order” [23] is found in Part VII of the Family Law Act (“the Act”).
When deciding whether or not to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration: s 60CA, s 65AA.
Section 60B sets out a number of key objects and principles which underpin the operation of Part VII. These find practical expression in section 60CC, which prescribes the various mandatory considerations for the court. Section 60CC(2) sets out the two (2) “primary” considerations, and section 60CC(3) sets out fourteen (14) “additional” considerations.
Section 61DA of the Act provides that, when making a parenting order, the court is to apply a statutory presumption that it would be in the best interests of the child for an order that the parents have equal shared parental responsibility. The making of such an order in turn triggers the specific statutory pathway set out in s 65DAA in relation to the allocation of child’s time as between the parents.
The statutory presumption does not apply in this case, as there are reasonable grounds to believe that a parent has perpetrated family violence: s 61DA(2). Moreover, the Father concedes that the Mother should have sole parental responsibility for X – an entirely proper concession given that their volatile and dysfunctional co-parenting relationship and lack of effective communication would render equal shared parental responsibility unworkable.
BEST INTERESTS FINDINGS
There is a binary choice in this case: unsupervised time, or no time. I have to weigh up the “pros and cons” of each by reference to the s 60CC considerations.
I have already made numerous factual findings which engage the best interests considerations in s 60CC. I will endeavour not to be unduly repetitive.
WEIGHING THE BEST INTERESTS CONSIDERATIONS
Maintaining the existing supervised arrangement is not an appropriate long-term option, change is inevitable: s 60CC(3)(d).
I accept the Family Report writer’s evidence that X’s primary attachment is with the Mother and that the mother/daughter relationship is critical to support X’s psychological and developmental needs into the future. It is unquestioned that X would benefit from continuation of the Mother’s role as primary carer: s 60CC(2)(a); s 60CC(3)(b).
X and the Father have a “fun and familiar” relationship; it is not yet a completely secure attachment. The Family Report writer elaborated upon this in the witness box by saying that limited time in a supervised setting is not sufficient to create a significant relationship between the Father and X. The Report writer said that the nature of a relationship turns on the nature and quality of time and the care and responsibility provided by the parent to the child. I accept this evidence and consider that the Father/daughter relationship presently falls short of being a “meaningful” relationship for X: s 60CC(2)(a); s 60CC(3)(b).
There are obvious potential benefits to X in developing a meaningful relationship with the Father through unsupervised time. It will potentially assist X to develop her own sense of identity and belonging. She will have the lived experience of having both parents in her life. It is ordinarily better for a child to have two parents’ perspectives and influence rather than one. The maximal involvement of both parents is recognised as one of the objects of Part VII: s 60B(1)(a) – subject always to the child’s best interests in any given case.
Having the Father in X’s life also inoculates her against the various emotional negatives attendant upon a child who has to grow up without one of their parents. These can include self-esteem issues which can lead to later mental health and substance abuse. They can include “pining” for the absent parent, even inappropriately. They can include rebelling against the carer parent in later years and blaming them for “taking the other parent away”, and all manner of embarrassing and/or emotionally confronting situations in between. For example, friends who ask X why her Father isn’t there at an event, or what happened to him? Perhaps these sorts of questions pose less of a problem for children in the modern world where divorce and separation rates are high; but they remain real life experiences which impact each child differently.
In short, the potential positives for X of developing a meaningful relationship with the Father are real: s 60CC(3)(d).
What are the negatives of unsupervised time?
I begin by first observing that the Mother and the ICL jointly contend that an order for unsupervised time between the Father and X would place her at “unacceptable risk” of physical and/or psychological harm. If I find that to be so then I cannot make the order: see M & M (1988) FLC 91-979.
On the evidence before me, unsupervised time does in fact pose serious, multi-faceted and enduring risks to X.
My primary concern relates to X being psychologically harmed.
I am troubled by the Father’s ongoing pre-occupation with wanting to resume the relationship with the Mother. While he said in the witness box he has “moved on”, the weight of the evidence strongly suggests otherwise. While he loves X as his daughter, I consider that he still links X and the Mother as “one” family unit – a family unit he remains unhealthily fixated on restoring.
This creates a longstanding risk of serious emotional harm to X. At her age she is potentially highly vulnerable; why wouldn’t she want her parents to be back together? The Father is highly likely to say and do things which play on X’s mind in that respect, putting her in an emotionally toxic situation: s 60CC(3)(d); s 60CC(3)(f); s 60CC(3)(i). This may (and likely would) come by way of overt requests to X to ask the Mother about resuming the relationship, particularly whenever the Father is distressed or highly emotional. It can also occur covertly, whether intentionally or otherwise:
“Hey X, it’s Mum and my wedding anniversary next week, I’d love it if we could be a family for the day but I doubt Mum would let it happen.”
“Mum and I had a great relationship once, it’s so sad we broke up”
“I still love your mother”
and so on.
Though the Father has not said such things to X at C Family Centre, he has still tried to pass on inappropriate Mother’s Day messages and broken their rules in a way as to bring himself and the Mother into contact or potential contact. He does not have a good understanding of, or respect for, appropriate boundaries.
The Father would also likely interrogate X about where her Mother is living, whether she has friends/boyfriends etc. I do not think he would be able to help himself. If she said the Mother had a boyfriend, or had some other male friend who the Father thought may be a boyfriend, I simply do not know how he would react. He could well become angry, abusive or irrational. In any case more questions of X would ensue.
If X presented to him with any injuries the Father would likely press her for as much information as possible, and perhaps take photographs while he was at it. He might, overtly or covertly, impart to X that her Mother is neglectful, or H abusive. He would likely “wedge” X on those issues, undermining and de-stabilising her home environment.
How can X be expected to cope in such a scenario? The Mother does not even want the Father to know where X goes to daycare, or where they live. These sorts of things would inevitably come up in discussion, even without prompting. X may be excited to tell the Father about the new neighbours, or her teacher or favourite student in class etc.
Unsupervised time would place X in an impossible bind as she is too young to be told not to tell the Father these basic things; even the process of the Mother telling not to do so would be emotionally unsettling and unnatural. X would surely want to know why she couldn’t share such things with the Father, particularly as she gets older. And if she is told that her Father is dangerous or that the Mother is afraid of him, then this will be emotionally damaging to X. It would fill her with uncertainty and angst about going.
To the above unhappy mix, the Mother would want to speak to X before visits to remind her about things she can and cannot talk with the Father about and perhaps to raise any safety issues. Upon X’s return, she would probably yield to the temptation to interrogate X herself to some extent - particularly if for example X had an injury when she went to the Father’s place, or if X came home saying something suggestive of the Father having discussed something inappropriate with her:
“Did dad ask you where we live / where you go to school / who I am seeing?”
“Did dad ask about me?”
“Did dad ask about your bruise?”
and so on.
In short, I consider it more likely than not that X will suffer psychological harm if she has unsupervised time with the Father. The evidence shows that, given any suggestion of possible rapprochement with the Mother, he acts without thinking and without regard for orders and (past) AVOs. In the case of the calls in June 2020, what prompted him to call the Mother was the flimsy assumption / false optimism that the Mother must have said something to X about being able to visit his place. He rang the Mother while judgment was reserved in circumstances only weeks earlier his counsel submitted that he had “learned his lesson”.
Another potent and related risk is the Father’s demonstrated capacity to make frequent complaints to Police and welfare authorities about the Mother’s care of X. If he is aware of the Mother entering into a new relationship, his emotionality and suspicion may impel him to hold X over on the first sign of a scratch or bruise: s 60CC(3)(f); s 60CC(3)(i); s 60CC(3)(l).
The Mother has significant vulnerabilities; she has required counselling to assist her to implement appropriate boundaries with the Father. Repeated investigations by authorities undermine her confidence as a parent, and diminish her already stretched parenting capacity. The Family Report writer was concerned about this and was clear in recommending that the last thing X needs is a diminution in the Mother’s parenting capacity: s 60CC(3)(d); s 60CC(3)(f).
I add that the Father’s complaints to authorities have not been entirely altruistic; they have been motivated throughout by a burning sense of grievance at the relationship breakdown. Should the Mother re-partner, this will likely increase the risks of his making less-than-meritorious complaints.
So as a “counterbalance” to the risks posed by the Mother, the Father is not an “honest broker”; he has his own agenda.
Any unsupervised time arrangement implemented by these parents would be disastrous for X psychologically.The risk of future contravention or variation proceedings looms large; X would be hopelessly caught in the middle: s 60CC(3)(d); s 60CC(3)(l).
I add that the Mother in no way supports the child having an ongoing relationship with the Father; one noteworthy feature of her affidavit material is that despite all of the positive supervised visits, she did not mention a single one of them. She is adamant that the Father/daughter relationship needs to “end” so that she can move on. She fears, and is resentful of, the Father having an ongoing measure of control over her life through X. Her fears and resentment are reasonably founded.
The Mother and the ICL specifically contend that unsupervised time poses an unacceptable risk of physical or psychological harm to X by reason of the Father’s propensity for violence (including family violence), which may include physical abuse towards X: s 60CC(2)(b). Elevating that risk, the Father still has limited insight into the effects of his behaviours on others including on the Mother. Despite the various courses he has undertaken to date, he remains still largely unable to empathise with X’s lived experience including specifically when he kept her at separation for seven (7) days: s 60CC(3)(f). He lacks a deep and genuine insight into X’s emotional needs; his understanding as to such matters is somewhat superficial and remains clouded by his own issues, including his pre-occupation with the Mother: s 60CC(3)(f); s 60CC(3)(i).
To be fair, there is no evidence of the Father ever physically assaulting the Mother or X. But his capacity to behave in an explosive and at times violent fashion has clearly impacted his major relationships over many years. Moreover, he minimises and seeks to explain away his past violence.
I am concerned about the Father’s mental health; he has had longstanding difficulties regulating his behaviour and his emotions. While in recent times he appears to have moderated his behaviour to some extent, he has still been unable to comply with court orders. Real and lingering questions remain about the status of his mental health and whether it is being fully and appropriately managed. I am unpersuaded that he himself sees the need for psychological assistance.
The Family Report writer was concerned that the Father was somewhat estranged from family members who could otherwise support him, i.e. she said he did not have “high social capital”. Nor for that matter does the Mother.
The Family Report writer was concerned about the Father’s potential for violent action when considered against the backdrop of his substance abuse and mental health history and his apparent lack of empathy. She simply did not consider that the Father would not have the capacity to meet the child’s emotional needs in an entirely unregulated and unsupervised environment. I am of the same view: s 60CC(3)(f).
To his credit, the Father does appear to have been able to quit cannabis and I accept his counsel’s submissions that there is no recent evidence of drug use on his part. Considered in isolation, the Father’s abuse of drugs or alcohol do not presently pose an unacceptable risk in the context of unsupervised time. But the risk of relapse remains there and needs to be weighed holistically with all the other attendant risks. If X told him for instance that the Mother had re-partnered, I think it a serious risk that the Father would relapse back to substance abuse, with consequent increased volatility and unpredictability.
The ICL otherwise pointed to the practical realities of what might happen between the Father and X when he is not under the microscope of the Court, particularly given that the parents have no communicative relationship inter se and the Father lacks insight of the impact of his behaviours. The ICL contended that simply there was “no way forward” to unsupervised time that would not expose X to unacceptable risk.
The Father’s counsel submitted that there is no unacceptable risk, or at any rate no risk of such magnitude as to warrant the Father’s complete excision from X’s life. He submitted that the only real risk here is that the Mother posts something on Facebook relating to their relationship and that the Father “takes the bait” – resulting in potential fresh AVO proceedings.With respect, that submission greatly oversimplifies matters.
On all of the evidence I have come to the same melancholy conclusion as the ICL. X would be at unacceptable risk of psychological harm if I ordered unsupervised time. I cannot reasonably foresee any scenario where X will not suffer such harm. Nor are there any safeguards that can be put in place so as to mitigate against that risk. The only real safeguard is supervision itself, which has to fall away.
I would also add here that an order for unsupervised time would have a discernible adverse effect on the Mother’s already “thin” parenting capacity; she would be living “on edge” week to week, anxious about what might happen next. She fears that the Father will use X as a means to maintain some control over her. Those fears are genuinely held. In the Father’s own words to the Family Report writer “I won’t give up, I won’t walk away from my daughter, I’m not that way inclined as a person, I’m stronger than that”.
In light of these conclusions, the remaining s 60CC considerations fall away although I would note that the Family Report writer considered that X would cope with cessation of her relationship with the Father and that the Mother is likely to seek appropriate counselling for her. I accept that evidence.
CONCLUSION & ORDERS
There being no safe pathway to unsupervised time, I propose to make the orders sought by the Mother and the ICL. This is a regrettable but necessary outcome in X’s best interests.
To the extent that the ICL and the Mother seek injunctive relief, the proposed injunctions do no more than put in place strict boundaries to enforce the limited “identity” contact otherwise provided for in the orders. Given the Father’s past behaviours I consider those injunctions “appropriate” as required by s 68B of the Act.
The orders are otherwise self-explanatory and require no further elaboration.
I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 7 September 2021
[1] Report of Dr F, Consultant Psychiatrist dated 17 June 2014 (Exhibit 32)
[2] Father’s criminal history (Exhibit 35)
[3] Exhibit 32
[4] Exhibits 16 & 17
[5] They disagree as to exactly what was discussed however. The Father says the Mother said she wanted to sell the baby to another couple; the Mother denies it and says she wanted to have a baby for herself.
[6] Exhibit 4
[7] See Exhibit 24
[8] The reception came to an abrupt end when the maternal grandmother punched out the best man, leaving the Father shocked and having to clean up.
[9] Exhibit 13
[10] Exhibit 13
[11] Exhibit 13
[12] Exhibit 20
[13] Exhibit 7
[14] Exhibit 35
[15] Exhibit 26
[16] Exhibit 8
[17] Exhibit 24
[18] Exhibit 25
[19] Exhibit 30
[20] Exhibit 26(b), Exhibit 31
[21] Exhibit 26(a)
[22] Exhibit 37
[23] That term being defined in s.64B of the Act
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