Astin and Astin

[2019] FamCA 648

FAMILY COURT OF AUSTRALIA

ASTIN & ASTIN [2019] FamCA 648

FAMILY LAW – CHILDREN – Interim Parenting – Allegations of family violence, alcohol misuse, drug use and mental health concerns – Best interests of the children – Where the father seeks interim orders to spend time with the children – Where the mother contends that the risks of harm posed by the father are so great that the children should spend no time with him – Where the ICL proposes orders to mitigate harm posed by father through supervision of the children’s time with him at a contact centre – Orders made as proposed by the ICL.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Astin

RESPONDENT: Ms Astin

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 1466 of 2019

DATE DELIVERED: 12 September 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 29 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Adam Jones Solicitor

COUNSEL FOR THE RESPONDENT: Ms Judge

SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oxford

Orders

Pending further order

1. The children X born … 2007, Y born … 2010 and Z born … 2011 (“the children”) live with the mother.

2. The children spend time with the father at the father’s expense supervised by B Group, C Group or by a similar supervision service as agreed between the parties for a period of four hours each weekend on a day and at times as agreed between the parties.

3. Time in Order 2 is to commence as soon as practicable for the supervision service.

4. Each party will do all things necessary to contact and engage the services of the supervision service forthwith.

5. Changeover is to occur at the mother’s residence or at any other place as agreed by the parties in writing with the supervisor to be present when the children are collected and returned.

6. The parties are hereby restrained by injunction from:

   (a)       Denigrating one another or allowing any other person to do so in the presence or hearing of the children;

   (b)       Consuming illicit substances or being affected by illicit substances during any period the children are in their care or within 12 hours of the children being in their care; and

   (c)       Physically disciplining the children.

7. The father is hereby restrained by injunction from:

   (a)       Consuming alcohol during any period the children are in his care or within 12 hours of the children being in his care;

   (b)       Entering the mother’s residence, D Street, Suburb E in the State of New South Wales.

8. The father submit to random urinalysis under the following conditions:

   (a)       The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration;

   (b)       The drug testing shall meet the Australian/New Zealand Standard 4308/2001;

   (c)       The Independent Children’s Lawyer shall issue such requests by email to the father’s legal representative or, in the event the father is self-represented at any time during the course of the proceedings, by email directly to the father;

   (d)       The father shall ensure that a copy of the urinalysis test results are provided to the mother and the Independent Children’s Lawyer  within 48 hours of receipt from his general practitioner or the pathology centre;

   (e)       Copies of the urinalysis test results may be provided by the Independent Children’s Lawyer to any Single Expert Witness or family consultant appointed to provide a report in this matter;

   (f)        The father shall be solely responsible for the costs of the uninalysis testing pursuant to these orders;

   (g)       The Independent Children’s Lawyer shall not issue requests for urinalysis testing more frequently than on one occasion in each calendar month.

9. The father undergo carbohydrate-deficient transferrin (“CDT") in accordance with the following conditions:

   (a)       The father will undergo a CDT testing to detect excessive alcohol use with such test to be performed by a medical practitioner or at a Pathology Centre within 48 hours of receiving a request from the Independent Children’s Lawyer;

   (b)       The CDT test is to be analysed using high-performance liquid chromatography (“HPLC”) analysis method;

   (c)       The Independent Children’s Lawyer shall issue such requests by email to the father’s legal representative or, in the event that the father is self-represented at any time during the course of the proceedings by email directly to the father.  For the purpose of this order, the father shall provide an email address to the Independent Children’s Lawyer within 48 hours of becoming self-represented;

   (d)       The father shall ensure that a copy of the CDT test results are provided to the mother and the Independent Children’s Lawyer within 48 hours of receipt from his general practitioner or the Pathology Centre.

   (e)       Copies of the CDT test results may be provided by the Independent Children’s Lawyer to any single expert witness or family consultant appointed to provide a report in this matter;

   (f)        The father shall be solely responsible for the cost of the CDT testing pursuant to these orders;

   (g)       The ICL shall not issue requests for CDT testing more frequently than on one occasion in each calendar month.

10. That the father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair drug testing purposes.  Collection is to be conducted by a qualified and certified collector.  Chain of Custody procedure is to be applied to the sample.  Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant national accreditation body for that laboratory.  Either head or body hair may be collected for testing.  To give effect to this order:

    (a)       The father is required to maintain his head hair at a length of not less than four (4) centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

    (b)       Within seventy-two (72) hours of the date of these orders, the father is required to make an appointment with AWDTS by telephoning for the purpose of providing a hair sample for the hair drug testing purposes;

    (c)       Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;

    (d)       The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes;

    (e)       Written notice to undertake hair collection for hair drug testing purposes may be sent to the father care of the email address  and shall be deemed to have been received by the father at the date and time it is sent via email;

    (f)        The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the father and the mother, the Independent Children’s Lawyer, and/or their legal representatives upon receipt of such test results.

    (g)       The hair drug test may screen for drugs of abuse including amphetamine type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites.

    (h)       AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant National Accreditation body, AWDTS selection is to be based on the type of test require, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of hair Testing (SoHT) guidelines, cost and time required for results to be made available.

    (i)        The father is only required to submit to hair drug testing not more frequently than once per three (3) calendar months;

11. The parties will forthwith do all things and take all steps to enrol in and complete the “Keeping in Contact” program offered by F Group and do all things to make the children available if required for the purpose of that program.

12. That Mr H be appointed as Family Therapist and for the purpose of that therapy, both the mother and father shall do all things required to ensure the attendance of the three children at all such sessions that are recommended by Mr H and that both the mother and the father shall personally attend all such sessions as are recommended by Mr H.  The costs of Family Therapy are to be equally shared between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Astin & Astin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1466 of 2019

Mr Astin

Applicant

And

Ms Astin

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are the parents of three boys aged eleven, nine and seven (“the children”).  They are engaged in proceedings concerning the children’s parenting arrangement and a distribution of their property following the breakdown of their nine year marriage in October 2017.

2. The mother and children live in the former family home and the father seeks in this application to spend time with the children on an interim basis awaiting final hearing.  He proposes that this time occur each alternate weekend and one night per week at a family dinner.

3. The mother is concerned about the father’s erratic behaviour which she believes is associated with his use of alcohol and other drugs. It is her contention that the risks of harm posed by the father are so great that the children should spend no time with him. She also seeks orders restraining him from communicating with the children, attending their school and/ or extra-curricular activities and approaching the family home.

4. The Independent Children’s Lawyer (“ICL”) agrees with the mother’s contention that the father poses a risk of harm to the children and proposes orders for the mitigation of that harm through supervision of the children’s time with him.  The ICL also proposes that the father be restrained from consuming alcohol and illicit substances within 12 hours of the children being in his care and that he submit to various forms of monitoring of his drug and alcohol use.

5. The father consented at the interim hearing to some of the orders proposed by the ICL, for an order giving the mother exclusive occupation of the former family home as well as a restraint upon him entering the family home (with some exception as agreed for the purposes of removing property).

Background

1. The mother who is 39 and the father who is 42 were married and began living together in March 2007.

2. The first of the parents’ three sons who is now aged 11 (“the oldest child”) was born in 2007.

3. The second son now aged nine (“the middle child”) was born in 2010 and the third son now aged seven was born in 2011.

4. When the marriage was intact the mother was a fulltime homemaker and main care giver for the children.

5. In September or October 2017 the parents separated and the mother remained living with the children in the former family home. The father moved to live with his parents.  It is common ground that the children were very distressed about the breakdown of their parent’s marriage.

6. Following separation the parents reached agreement about the children’s parenting arrangements.  It is the father’s case that initially he and the mother cared for the children in an equal “week about arrangement” and that he had no difficulties in spending time with or communicating with the children until about December 2018.  Although the mother’s affidavit is less than clear in relation to the initial arrangements for the children following separation it appears that she contends that she and the father reached agreement for the children to live with her and spend time with the father each alternate weekend from Friday afternoon until Sunday afternoon and at dinner in the extended paternal family home each Monday night.

7. The mother remained living at the former family home and the father continued to access and use the garage at those premises as a workshop for his business.  Up until the interim hearing the father was in the pattern of attending the garage around twice a week and remaining for around 15 minutes on each occasion.  At the hearing he agreed to an interim order to stay away from the home.

8. In April 2018 there was an incident involving the oldest child then aged 10 while in the care of the father which resulted in the child being hospitalised for a broken arm.

9. The father deposes that he and the mother briefly reconciled between October and December 2018.  This is not addressed in the mother’s evidence and did not otherwise feature in the interim hearing.

10. From at least around November 2018 the mother became concerned that the father was misusing drugs and alcohol as he had done at various times throughout the relationship. 

11. From about this time the father began to become obsessed about the mother’s conduct and in particular began making allegations of her infidelity. 

12. On 5 December 2018 there was an incident at the family home between the parents and police were called. An Apprehended Domestic Violence Order (“ADVO”) was sought by police against the father for the protection of the mother.  An interim ADVO was subsequently made by a Local Court pending hearing in relation to a final order.

13. In late December 2018 the father was admitted to a private rehabilitation and mental health hospital for a week.

14. By the beginning of 2019 the children had been in the pattern for some time of spending time with the father each alternate weekend and on Monday nights for the family dinners.  From about this time the children began becoming reluctant to spend time with their father which each of the parents contend is due to the behaviour of the other parent. 

15. By about February 2019 the children were well aware of the adult dispute including each parent’s complaints about the conduct of the other parent.

16. On 5 March 2019 there was an incident between the father and the children at the former family home in which the father squeezed the youngest child’s arms and the other children became upset.  Since that date the youngest child has refused to spend time with the father.

17. On 8 March 2019 the father arrived at the family home unexpectedly and an argument between he and the mother ensued.  After the mother required the father to leave the home he sent a text message to her proposing that in exchange for seeing the children whenever he wished he would continue to pay the utilities on the home.

18. On 11 March 2019 there was an incident at the former family home which is the subject of significant dispute between the parties.  Later that day the principal and teacher at the oldest child’s school advised the mother that arrangements had been made for that child to attend counselling with the school counsellor. That night all of the children refused for the first time to spend time with the father at the extended paternal family dinner.

19. On 30 March 2019 the father commenced these proceedings seeking property settlement orders and orders in relation to parenting.

20. On a few occasions in April 2019 the father attempted unsuccessfully to make telephone contact with the children.  On one occasion he spoke to the two older children at the family home for a few minutes.

21. On 15 April 2019 the mother was advised that water to the family home was restricted due to an unpaid bill.  The mother later became aware that the last water bill had been paid in December 2018 and subsequently paid the bill herself so that the water service could be restored.

22. In April 2019 the father was charged with a low range drink driving offence.

23. Although it is not entirely clear it appears that from about 12 May 2019 the older two children also ceased spending any time with the father. All of the children have encountered the father from time to time at their weekend sports games which he continues to attend. The children engage in brief conversation with the father at these games.

24. The father has engaged the parents of other children who are members of the children’s sports teams in discussions about the mother and her alleged conduct.

25. On 20 June 2019 the mother received a message from an associate who she does not identify with whom it appears (from the content of that message) she previously had a relationship.  This associate told the mother that he had received a threatening phone call from a relation of the father’s on the father’s behalf.  

26. The father has on unspecified occasions which I understand to be in the last few months put up notes or signs directed to the children in the garage at the family home when he attended there ostensibly for purposes associated with his business.

27. On 21 June 2019 the children attended at an appointment with a family consultant for the purposes of the Child Responsive Program. The Memorandum to court prepared by the Family Consultant on 5 July 2019 was provided to the parties a short time later.

28. On 25 July 2019 the parties attended court in relation to the upcoming interim application a few days later. Later that day the father attended the family home and wrote in permanent marker on a cupboard in the garage:

    My boys are my life, without them I’m dead. If anyone is telling you bad things about me be smart and not dumb and not believe them.

Allegations of Risk

1. Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may and in some circumstances must have some regard to the matters in dispute. 

2. In SS & AH[1], the Full Court said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

3. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

4. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court

1. It is the mother’s contention that the father poses a risk of harm to the children on a number of bases.  As it is her proposal that the children spend no time with the father on an interim basis it can be assumed that she contends that these risks are unacceptable and unable to be mitigated. 

2. The mother first contends that the father has a long history of misuse of alcohol, illicit drugs and prescription drugs which cause or exacerbate mental health conditions.  As I understand it, she contends that the husband exhibits signs of an unstable emotional and psychological state which is insufficiently controlled.  She contends that the father inappropriately talks to the children about the parental dispute including his allegations of her shortcomings and causes the children to become emotionally distressed and thereby harmed. 

3. The mother also contends that the father poses a risk of physical harm to the children brought about by his lack of appropriate supervision which has led to them becoming injured when in his care or as a result of him acting inappropriately in a physical manner with the children. 

4. The mother also expresses concern about the influence of the extended paternal family and their actions which she contends has caused the children to become involved in the parental dispute and experience psychological harm.

Alcohol and substance misuse/mental health concerns

1. The mother’s principal contention about a risk of harm posed by the father is that he has a long history of alcohol, illicit substance and prescription medication misuse which impairs his parenting capacity and adversely affects his mental health which causes him to behave erratically and psychologically abuse the children.

2. According to the mother’s affidavit the father used cocaine on a regular basis for the first five years of their relationship between 2007 to 2012.  She deposes to observing his cocaine use at least each alternate day during this period. The mother alleges that in recent times the father has continued to use illicit substances including cocaine and annexes some text message interchanges which she says evidence the father obtaining cocaine and alcohol in November 2018.  She appears to have the capacity to access the father’s telephone messages through various family electronic devices that are synced or linked in some manner.  The mother deposes that after becoming aware of the text messages in about November 2018 she confronted the father about his drug use and that he admitted to being “on” drugs for the last couple of months.

3. The mother also relies upon the father’s hospital admission from 27 December 2018 to 3 January 2019 at a rehabilitation and mental health facility as evidence of his recent drug use and/ or deterioration in his mental state. 

4. The mother also deposes to the father’s alcohol misuse prior to separation stating that he typically drank a bottle of wine on most evenings after work.  She further alleges that “throughout the years” the father misused prescription drugs which he obtained from a family member.  She deposes that on at least three occasions an ambulance was called to the home as a result of the father’s drinking or drug use with the last two occasions occurring in mid-2017.  On the second of these occasions she says he was hospitalised.

5. It is the mother’s contention that the father continues to misuse alcohol currently.  She annexes messages between the oldest child and herself in December 2018 in which this child reports his concerns about the father’s drinking when spending time with him and at a paternal family events.

6. According to the father’s affidavit both he and the mother used cocaine throughout the marriage on about five occasions. He deposes to last using this substance in 2015 on an occasion when the children were not in his care. 

7. The father denies that any messages sent by him referred to in the mother’s affidavit relate to drug use. 

8. The father annexes to his affidavit the results of a hair analysis test which report on a hair sample collected from him on 15 July 2019. According to the report the results relate to a section of hair 3.8cm in length representing approximately three months “growth”. The results are negative for various illicit drugs including cocaine. 

9. The father denies misusing alcohol in his affidavit and deposes to drinking “a few” glasses of red wine at the end of the day. 

10. Although the father does not give any direct evidence in relation to his current mental state he deposes to his admission to hospital in December 2018/January 2019 for a week relating to depression which he experienced as a result of the final breakdown of his relationship with the mother. 

11. The father deposes to using various prescription drugs for “pain management” following “medical treatment” in 2015 and 2017. He also deposes to surgery in January 2017 and suffering injuries a serious car accident in June 2017 and to suffering from migraines which he treats with prescribed pain killers.

12. The report in relation to the hair sample taken on 15 July 2019 notes that the father stated he was taking a range of medications and the commercial names of those medications are stated in the report. There is no medical evidence in relation to the father’s medical conditions including the management of pain through prescribed medication.

13. It is the mother’s contention that the father has limited capacity to control his emotions and conduct. This she contends manifests in particular in him involving the children in the parental dispute which has harmed them and gives rise to risks of harm in this regard in the future. The mother gives a number of examples in her affidavit of text messages and other communications between the father and the oldest child in particular in which the father inappropriately reveals matters concerning the parental dispute and uses quite derogatory language towards the child. 

14. It is also the mother’s contention that the signs and notices that the father has placed in the garage at the former family home and his message to the children written on a cupboard in the garage on 25 July 2019 provide evidence of the father’s current state of mental health. This last mentioned message for example contains references to being “dead” without “my boys who are my life”. 

15. The father concedes in his affidavit that he has “at times, used guilt to try to persuade the children to spend time with me”. He also expresses in his affidavit the extraordinary proposition that as the mother does not communicate with him he has “been forced to try to co-parent with the [the mother] through [the oldest child] who retained my only line of communication with [the mother] (sic)”. He also deposes that his communications with the oldest child from December 2018 until May 2019 “contributed to the stress [the oldest child] is feeling and has a role to play in the serious crisis that has emerged”.

16. The father agrees that he has been putting up notices in the garage at the former family home for the children to see and claims that he had no other way of contacting them. The father annexes examples of such notes to his affidavit. While most of them contain statements by the father of his love for the children one which includes a photograph of the father and the middle child and is signed “daddy” also includes the words “I will kill anyone for you”. The father complains that the mother removed the signs he posted for the children and says that he wrote the words on the cupboard as he was concerned that the children were being informed that he did not love them. If I understand his affidavit correctly he deposes to writing that last mentioned note to the children in permanent marker so that the mother could not remove it as he believes that it would be traumatic for the children to be “forced to see [the mother] taking notes of that type down”.

Actions of the extended paternal family

1. In her affidavit the mother deposes to the extended paternal family involving themselves in the parental dispute from around March 2018 which she says has had a detrimental psychological impact on the children and poses an ongoing risk of harm to them. 

2. She deposes to a paternal uncle speaking to the oldest child directly in an effort to have him spend time with the father.  According to the mother she says that she was able to hear the conversation as it was “on speaker”. She says the paternal uncle said disturbing things to the child such as “we don’t hate your mother, if we wanted to kill your mother we would off (sic). We know a lot of people” which caused the child to become distressed. 

3. The mother also deposes to another conversation in which the paternal grandmother accused the oldest child of repeating things that his mother had told him [about the father’s drinking and drug taking] and informed this child that “every man drink (sic) and takes drugs when they are young”.

Physical risk of harm

1. The mother contends that the combined impact of a number of aspects of the father’s parenting give rise to a risk of physical harm to the children in the father’s care. She expresses concern about the occasion on 23 April 2018 when the oldest child’s arm was broken when spending time with his father.  In this regard she points to inconsistencies between information given by the father to ambulance officers at the time of the event and in conversations with other family members about the incident.

2. Although it is not entirely clear it did not appear at the interim hearing to be suggested by the mother that there is any risk that the father may intentionally physically harm the children. It is rather her case so far as I understand it that through the father’s neglect or lack of supervision the children may become physically harmed. 

3. According to the father’s affidavit, the oldest child’s injury in April 2018 resulted from “rough horseplay” between the two older children. He says he became concerned and “stepped in” and that the oldest child screamed in pain. The father does not explain what the expression “stepped in” means or how he says the child’s arm was broken.

4. Although the mother raised these various domains of potential harm posed by the father in her affidavit at the interim hearing they were all considered together.  The mother’s case at the interim hearing was that the father’s uncontrolled emotional state and the harm caused to the children associated with his inappropriate involving of them in the parental dispute represents the major and in her view unacceptable risk to the children. 

5. I am of the view that the behaviour of the father associated with concerns about his mental health which in turn may arise from his substance abuse does give rise to some concerns about a risk of harm. The mother informed the family consultant that when the father is affected by substances he becomes “angry, agitated, yelling at the children”. In this regard the family consultant expresses concerns about the father [physically and] verbally abusing the children and elsewhere expresses the view that concerns arose that the father may be misusing substances. The family consultant identified that both of these matters may need to be determined by the court and that in the case of the father’s substance abuse the court may be assisted by drug and alcohol testing.

6. I am of the view that there is a risk of harm to the children arising from the father’s conduct in the event that he is affected by substances including alcohol, illicit drugs and prescription drugs. The father’s substance misuse appears to be connected with impairments to his mental health and functioning including emotional regulation and associated conduct.

7. There is an absence of clear evidence in relation to the father’s hospital admission in late December 2018 but the facility is described as a rehabilitation and mental health hospital. That admission even on the husband’s evidence related to a mental health condition (depression) which raises the question of potential risks posed by the father in relation to his mental health. The family consultant observed that the court may need to determine the father’s current functioning in relation to his mental health. This recommendation was contained in a Memorandum released on 5 July but by the date of the interim hearing three weeks later the father had not adduced any evidence from this treating psychologist or in relation to that hospital admission some months earlier.

8. I am also of the view that the father’s language when communicating with his children may raise questions about his mental functioning. In one of the notes that he placed on the wall of the garage in recent months he wrote “I will kill anyone for you” and in the most recent note written on the wardrobe he wrote of being “dead” without his “boys” who are “my life”. This language is in my view more than merely inappropriate and gives rise to potential concerns about the father’s mental stability. 

9. However, I am not of the view that the risks of harm arising from the father’s conduct which appear to be associated with his substance abuse and/or mental condition are unacceptable such that they cannot be mitigated by appropriate conditions. The father has agreed to orders with respect to monitoring his substance abuse and the family consultant clearly suggests that supervision of the father’s time with the children could be imposed to mitigate the risks of harm posed by the father to the children.

10. The tenor of submissions made on behalf of the mother at the interim hearing focused mainly on the intensity of the father’s unregulated emotional state and his particular preoccupation with allegations of the mother’s alleged infidelity and incapacity to restrain himself from denigrating the mother. This conduct it is contended amounts to psychological abuse of the children and the mother fears that it will continue if the father is to spend any time with the children. 

11. The family consultant noted in her Memorandum that the father presented as preoccupied with the mother having been unfaithful and although he denied his belief about whether this had affected his capacity to work co-operatively and communicate civilly with the mother he admitted that he had called her a “whore” in front of the children. The family consultant also observed that irrespective of the findings of the court in relation to allegations of risk it is not in dispute that the parental conflict is high and that the children had expressed distress about the parental conflict.

12. I accept the submission made on behalf of the mother that the tenor of the father’s affidavit is that while he concedes that he inappropriately communicated with the children about the parental dispute (in particular with the older two children between January and May 2019) he also minimised the significance of some of that communication, describing it as having been “taken out of context”.  He also attempted to excuse himself for his behaviour such as when he deposed to the mother forcing him to co-parent with her through the oldest child. 

13. The father does also appear at times to recognise that he has inappropriately placed emotional pressure on the children where for example he deposes that he “us[ing] guilt to try to persuade the children to spend more time with [him]”. However, he still generally seems to maintain that the mother’s actions have forced him into behaving in a manner that is harmful to the children. For example the father’s explanation for his most recent written message to the children is expressed as something that he was in effect required to do because the mother insisted on removing the earlier signs that he had posted.  The father’s concern about the children becoming traumatised when they observed the mother removing his signs misses the point about the likely greater traumatic impact on the children of reading the content of the notes posted by him. 

14. There is undoubtedly some serious risk to the children’s emotional state from being involved in the parental dispute particularly through the conduct of the father. I am not of the view however that this matter is of itself or when combined with other risks are such to justify an order that the children spend no time with the father. Alternative orders to mitigate that harm include the family’s participation in the Keeping in Contact program to which the parties have consented and that the father obtain some further assistance in relation to appropriate parenting from a family therapist who he proposes be engaged in an effort to restore the children’s relationships with him. 

15. The father’s actions in involving the children in the dispute and placing emotional pressure upon them for his own purposes cannot be excused or justified on the basis of his frustration with the court proceedings and his view that the mother has managed to manipulate the situation so that the children no longer wish to spend time with or communicate with him. It is to be hoped however that some satisfactory arrangement can be put in place through court orders that will both support the children having a relationship with the father and protect them from harm which may cause a settling in the father’s extreme behaviour. 

16. As previously discussed there was some uncertainty at the interim hearing as to whether the mother suggested that the father had intentionally harmed the older child when that child’s arm was broken. When interviewed by the family consultant for the purposes of the Child Responsive Program the issue of physical risk of harm appeared to assume greater significance than in the interim application as is recorded in the Memorandum that the mother claimed that the father had broken the oldest child’s arm in this incident. 

17. The mother appeared to base her claim of intentional harm when interviewed by the family consultant and in her affidavit upon inconsistencies said to have been reported to ambulance and hospital staff and things that had been told to her by the children. The relevant records in relation to this matter were not in evidence before me and the oldest child did not refer to this incident when seen by the family consultant. 

18. The father denied breaking the oldest child’s arm to the family consultant and as noted in these Reasons suggests in his affidavit (though it is not entirely clear) that the oldest child injured himself when the father stepped in to prevent rough horse play between the two older children.

19. The oldest child did report to the family consultant that the father pushes, swears at and smacks the younger boys in particular whey they fight and that he becomes scared of the father particularly when he is drinking. 

20. The mother also appears to allege that the father physically abused the younger child in the incident on 5 March 2019 which led to that child ceasing to spend time with him. It is the father’s case that this child kicked him and that he grabbed the child’s arm and squeezed it to stop him from doing this.

21. The family consultant records in her Memorandum that significant concerns were raised regarding the father physically abusing the children. 

22. I am of the view that while there are concerns about the risk of physical harm posed by the father this is best understood as inappropriate discipline or response to the children’s behaviour. This does not in my view alone or in combination with other factors justify an order that the children spend no time with the father but may be addressed by parenting programs and advice from an appropriate professional and though supervision of the father’s time.

Father’s contention about the mother

1. It is the father’s case that the mother has interfered with his relationship with the children to the point that he is unable to communicate with them at all. He contends that the reason the children have not seen him since May 2019 is because the mother has withheld them from him as part of her strategy to completely undermine the children’s relationship with him. The father contends that the children are at risk of becoming alienated from him and that the alienation of a child from a parent is a form of child abuse. In terms of his application to spend time with the children, the orders sought by him including an order for family therapy would provide the children with an opportunity to have their relationship with him restored pending final hearing. 

1. The father contends that he does not pose an unacceptable risk of harm to the children on any of the bases put forward by the mother and that her proposal that he spend no time with the children is not required in the circumstances. Furthermore, as I understand it he asserts that the greatest risk of harm to the children is that their relationship with him will completely break down if orders are made as sought by the mother and they spend no time with him. 

2. So far as the proposal of the ICL is concerned the father agrees to accept whatever conditions may be considered appropriate including that his time with his children be supervised so that the relationship he previously shared with them can be restored. 

3. The father generally paints the picture in his affidavit of he and the children having a warm and loving relationship until around Christmas 2018 when a three month period of reconciliation between he and the mother ended. Thereafter he deposes to each of the children showing signs of marked deterioration in their relationship with him and developing a negative view of him without cause. It is his position that from around Christmas 2018 the mother made it increasingly difficult for him to contact the children, has encouraged the children to make their own decisions about spending time with him and actively discouraged them from doing so and failed to address the children’s unacceptable behaviour towards he and the paternal family.

4. Although I cannot make any findings of fact at this interim hearing, I must as explained assess the risks posed by each of the parents. If the father’s contentions in relation to the mother intentionally causing the children to become aligned with her and undermining this previous good relationship with them are proven in the final proceedings it may be found that she has abused the children and that such abuse is likely to cause them significant psychological harm. 

5. In my view the risk that this is occurring does arise. The family consultant reported that the children presented as aligned with the mother when she met with the family in June 2019. However, the family consultant was also of the view that the oldest child and middle child seemed willing to consider a future relationship with the father if he made changes to his behaviour which suggested to the family consultant that they are not alienated from him. As the family consultant correctly observes it is a matter for the court to determine whether the mother is seeking to unduly influence the children to view the father negatively but that cannot occur at an interim hearing.  The family consultant also adds that if the mother and children’s accounts of the father’s behaviour have veracity then it would be understandable if the children were reluctant to spend time or communicate with him. 

6. While I am concerned that each of the risks of harm potentially posed by the father must be addressed and appropriate orders be crafted to protect the children from harm it is in my view equally important that orders are made to maintain the children’s relationship with their father. Although I cannot make findings of fact it seems unlikely at this stage that the children are already as aligned with the mother against the father without justification as the father alleges but there is a risk that this may occur if the children spend no time with their father as the mother proposes. 

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  These proceedings are still at a relatively early stage with an expert report yet to be obtained.  It is likely in these circumstances that the interim parenting arrangements under consideration will be in place for many months.

6. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

Best Interests of the children

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in s 60CC(2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5] 

   [5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. The orders proposed by both the father and the ICL would foster the children having a meaningful relationship with the father.

5. The effect of the mother’s proposed orders is that the children would be deprived from having any relationship with the father.  She proposes that she exercise sole parental responsibility for the children, that they live with her and spend no time with the father and that he be restrained from communicating with or attempting to communicate with the children or attending their schools or extra-curricular activities. 

6. I am unable to find that the children do not receive a benefit from having a meaningful relationship with their father in this interim application.  Even if I were to find that the risks posed by the father are as high as the mother contends, this does not mean that the children do not receive a benefit from having a meaningful relationship with him. At this stage of the proceedings it can be assumed that the children do receive a benefit from having a relationship with the father and it is in my view in their best interest to craft orders that foster that relationship while also protecting them from harm.

7. As discussed I am unable to find that there is an unacceptable risk that the children will be harmed in any of the ways contemplated in the primary consideration. The mother did raise concerns about physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in the father’s household but having assessed those risks I am of the view that suitable orders can be made that provide protection from the harm.

8. For the reasons given I am of the view that a combination of the father’s substance misuse, impairments in his mental and emotional functioning and actions towards children in embroiling them in the parental dispute raise real risks but these may be mitigated by an order for supervision of the father’s time, the enrolment of the family in programs to assist the children and monitoring of the father’s drug and alcohol use.

9. Although the father did not propose orders to mitigate any risks posed by him it was said on his behalf in the course of the interim hearing that he would accept any condition to mitigate such risk. The ICL’s proposed orders are on appropriate means to mitigate each of those risks.

10. Section 60CC(3) sets out additional considerations, a number of which are not applicable at this stage, and I will refer to those which are relevant in this application.

The additional consideration: s 60CC(3)

1. I do not attach any weight to either of the parent’s contentions about the views expressed by the children in the proceedings or the nature of each child’s relationship with each of them.  These children have been involved horribly in the parent’s dispute and any views they may have expressed to each parent individually or behaviour exhibited may not be a reliable indicator of these matters because of that involvement. The undisputed evidence of the parents concerning the circumstances for the children prior to separation and the contents of the Child Responsive Program Memorandum are the only relevant material which will be considered in relation to these matters. 

2. The oldest child spoke positively about his mother when interviewed by the family consultant and had a number of negative things to say about the father including in particular that he had been “putting pressure on me”. The oldest child said that he is happy spending time with the mother and did not want to spend any time with the father.  When asked if he would consider spending time with his father if his father changed the child said that the father would have to stop drinking, spend time with the children and not speak negatively about the mother.

3. The second child described the mother in positive terms and said that he did not want to see his father or spend time with him. The middle child then admitted to the family consultant that he would like a father in his life and that if the father “could be a better dad in the future” he may want to spend time with him. The middle child also said he would be willing to spend time with his father at his sports training but not at his home and said he would also consider spending time with this father at the Monday night family dinner.

4. The youngest child described the mother in positive terms and said that he did not get along with his father very well and thus did not feel sad about not seeing him anymore. He claimed that he did not want to spend time with his father even if his father improved his behaviour.

5. Having regard to their age and the intensity of the family dispute in which the children have become involved I do not attach significant weight to the children’s views except to the extent that the older two boys seem open to having a relationship with their father so long as their concerns about him are addressed.

6. Neither of the parents can be criticised for failing to take the opportunity to participate in decision making concerning the children, spend time with them or communicate with them. 

7. It is not possible to make any findings about the extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children except to say that I have concerns that in some of the father’s communications he makes a connection between his obligations to financially support the children and to the level of contact he has with them. At one stage he quite inappropriately in my view proposed a shared care arrangement for the children which seems consistent with linking these two matters. The father has now quite sensibly abandoned the suggestion of equal shared care.  His proposal is now for much more limited time. 

8. The likely effect upon the children of any changes in their circumstances along the lines proposed by the father and ICL is in my view beneficial. Both proposals bring about a restoration of the children’s time with their father. The likely effect of the change that would be brought about if orders were made as proposed by the mother seeks is a weighty matter. As previously indicated it is likely these interim orders will be in place for many months. Given that the children have already not spent time with or communicated with the father since May 2019 (except for fleeting encounters at sports games) a complete cession of contact with him is likely to place the children’s relationships with the father in jeopardy which could have serious long term implications.

9. The only proposal that causes any practical difficulty and expense for the father to spend time with the children is the ICL’s proposal that the father’s time be supervised by a professional supervision service. However, as the father indicated his willingness to spend time with the children under any circumstances it can be assumed that the cost involved in supervision does not cause any difficulty for him. Similarly the father proposes that the family participate in family therapy which will come at some cost. Family therapy was not addressed at all by the mother in the interim proceedings so it can be assumed that it will not cause financial difficulties for her.

10. There are some serious concerns raised about the parenting capacity of each parent especially in relation to embroiling the children in their dispute. Both parents have indicated their willingness to participate in the Keeping in Contact Program. 

11. It would appear also that the father in particular may require assistance in developing skills to become an appropriately responsive and attuned parent for the children. He may for example require assistance in relation to appropriate methods of discipline.  The misuse of substances and mental health difficulties may also play a part in the father’s shortcomings. These matters are weighty when considering the father’s application for orders that provide for him to spend substantial and significant time with the children which is unsupervised balanced against the ICL’s proposal for supervision.

12. The conduct of the parents in involving the children in the parental dispute may be seen to demonstrate a poor attitude to their children and responsibilities of parenthood.

13. The mother raised allegations of controlling behaviour and verbal denigration said to have been engaged in by the father which falls within the definition of family violence and the father conceded that some of his conduct does amount to family violence. However, the parties did not contend that exposure to family violence was a significant matter in these proceedings. 

14. An ADVO was made on an interim basis for the protection of the mother against the father in December 2018 but those proceedings have not yet been completed. 

Conclusion

1. Having regard to all of the foregoing matters concerning the best interests of the children I am of the view that unless there are orders in place to foster the children’s relationship with their father, there is a real risk that the relationship will break down prior to the final hearing which will not take place for many months. 

2. There is no justification for the orders sought by the mother that the children spend no time with the father but she does raise some concerning issues of risk posed by him which will need to be fully explored prior to any final orders. 

3. In the meantime the orders proposed by the ICL address all of the risk factors raised by the mother while ensuring the children continue to receive a benefit from some relationship with the father. Accordingly, I propose making orders largely in terms of the proposal of the ICL with some minor changes. 

4. I also propose making an order for family therapy as sought by the father.  In my view this will assist the children in re-establishing a relationship with him and provide the parents with resources to assist them with their parenting which will undoubtedly be of benefit to the children.

5. Accordingly I make the orders set out at the forefront of this Judgment.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 September 2019.

Associate: 

Date:  12 September 2019