Audley & Cayton
[2023] FedCFamC1F 697
•21 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Audley & Cayton [2023] FedCFamC1F 697
File number(s): MLC 9403 of 2020 Judgment of: CARTER J Date of judgment: 21 August 2023 Catchwords: FAMILY LAW – PARENTING – CHILDREN – whether the father poses an unacceptable risk to the children – where there have been serious allegations of family violence – where the father has chronic mental health vulnerabilities and no current evidence from any treating medical or allied health practitioner – whether there should be no orders for time and communication beyond sending letters and gifts – children’s best interests – orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 102NA Cases cited: Bielen & Kozma (2022) 66 Fam LR 59
Cotton & Cotton (1983) FLC 91-330
Isles & Nelissen (2022) 65 Fam LR 288
Loddington & Derringford (No 2) [2008] FamCA 925
Mazorski v Albright (2007) 37 Fam LR 518
McCall and Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 145 Date of hearing: 3 – 4 July 2023 Place: Melbourne The Applicant: Litigant in person Counsel for the Respondent: Mr Kiernan Solicitor for the Respondent: Cinque Oakley Bryant Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Kordell Lawyers ORDERS
MLC 9403 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AUDLEY
Applicant
AND: MS CAYTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CARTER J
DATE OF ORDER:
21 AUGUST 2023
THE COURT ORDERS THAT:
Parental responsibility
1.The mother have sole parental responsibility for the children X born 2013, Y born 2016 and Z born 2018.
2.The children live with the mother.
Communication with the children
3.The father is at liberty to send the children cards, letters and gifts to the children via a Post Office Box address supplied by the mother.
4.The mother facilitate any reply the children wish to make via a post office box address supplied by the father.
5.For the purposes of Orders 3 and 4, within 21 days of the making of these orders, and via the Independent Children’s Lawyer:
(a)the mother shall provide the father with a Post Office Box address for the father to communicate with the children; and
(b)the father shall provide the mother with a Post Office Box address for the children to use to communicate with him.
Miscellaneous
6.The order for the appointment of the Independent Children’s Lawyer is discharged 21 days from the making of these orders.
7.All applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The father seeks to spend time and communicate with the parties’ three children X, Y and Z who are aged 10, 6 and 4. It is agreed they will live with their mother. They have not seen or communicated with their father since July 2020. The father also seeks to have equal shared parental responsibility for the children.
The mother and the Independent Children’s Lawyer oppose the father’s orders for time with the children. They say the father poses an unacceptable risk to the children as a result of:
·His poor mental health;
·The family violence to which he subjected the mother and to which the children were exposed; and
·The father's alcohol consumption.
The mother and the Independent Children’s Lawyer also both seek an order that the mother have sole parental responsibility for the children.
THE ISSUES AT TRIAL
The matters I must determine are:
(a)how should parental responsibility be allocated?; and
(b)what orders for time and communication between the father and the children, if any, are in the children’s best interests?
The focus of the evidence and submissions in this matter were on the two primary considerations as set out in s 60CC(2) of the Family Law Act 1975 (Cth). In this case, those matters required a careful consideration of:
·Whether the children, or any of them, would benefit from having a meaningful relationship with the father; and
·Whether the father poses an unacceptable risk to the children and if so, whether that could be ameliorated.
THE PARTIES’ CASES
The mother and the Independent Children’s Lawyer proposed the mother have sole parental responsibility for the children, and that the children live with her. It was also proposed that the father be at liberty to send the children letters, card and gifts, but that otherwise there be no orders for the children to spend time or communicate with the father.
The mother’s trial affidavit was poorly drafted. It failed to set out her evidence in chief in sufficient detail. In addition to relying on her trial affidavit filed 27 June 2023, I gave her leave to rely also on her affidavits filed 19 August 2021, 20 October 2021 and 23 November 2020. I trust that the mother’s lawyers attend more carefully and thoroughly to drafting trial material in the future as it was seriously deficient and lacking in detail.
The Independent Children’s Lawyer relied on the affidavit of Dr B filed 30 August 2021, and the affidavit of Dr C filed 29 June 2023 who both provided psychiatric assessments of the parties. The Independent Children’s Lawyer also relied on the Family Report dated 27 October 2022.
The father elected to appear unrepresented at the final hearing. He said he understood as a result of the operation of s 102NA he was prevented from cross examining the mother. He knew that well before the final hearing commenced, and he had been provided with the information to seek assistance through the scheme many months ago. However, the father did not follow up with Victoria Legal Aid and made no efforts to obtain assistance under the Commonwealth Family Violence and Cross Examination of Parties Scheme.
At the hearing before me the father confirmed he knew he would not be entitled to cross examine the mother as he was not represented, and despite knowing that he had decided he did not want to pursue representation at the final hearing. That is, he willingly and knowingly forfeited his opportunity to challenge the mother’s evidence.
The father was assisted by the Duty Lawyer to draft proposed orders. The father sought orders for equal shared parental responsibility. He proposed the children spend time with him commencing at a supervised contact centre on a weekly basis for three months, together with weekly phone contact. He proposed time should progress to unsupervised day visits for a further three months. He said then overnight visits should be introduced, and time gradually increase over the next twelve months to a week about arrangement. He also sought half of school holidays, and time on special occasions.
Additionally, the father sought that the mother be required to remain living within 100kms of City N until Z reached 18 years old.
The father had not filed any trial material in accordance with the trial directions. However, I did not agree with the submissions made by the other parties that the matter should proceed effectively undefended. The father was present at Court. He understood he was accordingly prevented from cross examining the mother. However, he sought to otherwise participate in the hearing, including to make submissions and to cross examine the family consultant.
To his credit the father conducted himself calmly, reasonably and respectfully at the hearing.
I permitted him to rely on his affidavits filed 28 August 2020, 5 May 2021, 2 August 2021 and 12 October 2021, which he adopted in evidence. That was in circumstances where, given the lack of detail in the mother’s trial affidavit material, she too had to seek to rely on previously drafted material.
Most importantly, given the issues in this matter, the father did not adduce any evidence from his treating team. I did not have any affidavit material from his General Practitioner, his psychologist or his psychiatrist. The orders of a Senior Judicial Registrar of 27 October 2021 included an order that the father provide his treatment with Dr D, psychiatrist, and provide an updated report to be filed prior to the final hearing. The father did not comply with that order despite having had over 18 months to do so.
In light of the very serious mental health issues he faces, as counsel for the Independent Children's Lawyer noted, in the absence of that material, the father cannot satisfy me that his mental health is stable and well managed, and that he does not, therefore pose a risk to the children.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
As set out in s 60CA of the Family Law Act when deciding whether to make a particular parenting order in relation to children, the best interests of the children must be my paramount consideration.
In Bielen & Kozma (2022) 66 Fam LR 59 the Full Court observed at [28] that accordingly:
…the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
I am required to carefully consider the short and longer term impacts of the parties’ proposed orders “upon the [children’s] physical, emotional and psychological safety, security and wellbeing”: Bielen at [30].
The objects of Part VII of the Family Law Act inform how I must exercise my discretion. Those objects include ensuring children have the benefit of both of their parents being meaningfully involved in their lives to the maximum extent consistent with the children’s best interests [s 60B(1)(a)]. The legislation further provides that unless it is contrary to their best interests, children have a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
There are a range of considerations set out in s 60CC that I am required to take into account in determining what is in the children’s best interests. Section 60CC(2) of the Act sets out the primary considerations in determining what is in the children’s best interests. Those require me to consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect children from harm.
Section 60CC(3) of the Family Law Act sets out a raft of additional consideration that I must also take into account in determining the children’s best interests. The Full Court in Bielen at [35] recently conveniently grouped those as follows:
·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
THE PRIMARY CONSIDERATIONS
Will the children benefit from having a meaningful relationship with the father?
The Family Law Act does not define the word “meaningful”. However, it has been held to be synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518. For it to be meaningful, the relationship has to be “healthy, worthwhile and advantageous” to the child; per Cronin J in Loddington & Derringford (No 2) [2008] FamCA 925.
This is a prospective enquiry – and my focus is upon whether the children having a meaningful relationship with their father will be to their advantage in the future; McCall and Clark (2009) FLC 93-405 at [117].
In most cases there will be a positive benefit to the children having both parents involved in their lives. However, the Full Court has observed that in some cases orders to attempt to foster a relationship with one parent will be of no positive benefit to a child, and that to make such orders would not be in the child’s best interests: McCall & Clark (2009) FLC 93-405 [122].
As observed by Nygh J in Cotton & Cotton (1983) FLC 91-330, it is generally desirable for a child to maintain a meaningful relationship with both parents. However, as his Honour stated at 78,252:
…that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
As identified by the Family Report Writer, the possible benefits to the children in this matter in having a meaningful relationship with their father include understanding their identity, assisting with self-esteem and contributing to their self-image.
However, the Family Report Writer – and the other experts involved in this matter – have identified a range of risk factors, including the safety of the mother and the children that also need to be taken into account.
Both the mother and the Independent Children’s Lawyer assert that there is no possibility of a meaningful relationship between the father and the children in this matter. They say that is because of the father’s long term mental health issues, violent behaviours and emotional dysregulation which remain unaddressed.
What are the risk issues?
The risk issues substantially turn on:
(a)the allegations concerning the father’s behaviours surrounding violence;
(b)the allegations regarding the father’s mental health vulnerabilities; and
(c)whether the father has sufficient insight into those matters and/or has taken sufficient steps to address these issues such that moving forward the risk of harm to the children is not unacceptable.
I have much sympathy for the father. He experienced a highly dysfunctional upbringing, and was subjected to significant trauma, neglect and abuse which has had a profound and enduring effect on him. I have no doubt that the father dearly loves his children and deeply wishes to resume involvement in their lives. No doubt he has much to offer them. However, until the father has:
·Satisfactorily engaged with professional supports on a sustained basis; and
·Demonstrated insight into his long standing mental health issues, antisocial and violent behaviours;
the Court must take a conservative and protective stance in relation to the children.
The father is an intelligent man, and if he engaged meaningfully with a mental health team over a protracted period, he may be able to move his life into a more stable and rewarding place. It is up to him whether he wishes to do that.
The father’s mental health issues and criminal behaviours
The father has reported diagnoses of multiple mental health disorders. He has over time attended upon a multiplicity of professionals.
For the purposes of these proceedings the father was assessed by Dr B, psychiatrist in April 2021 and by Dr C, psychiatrist in May 2023.
The father advised Dr C that he commenced experiencing auditory hallucinations when he was very young. He said he was hospitalised for a number of weeks at that time. He described to Dr C that he has had chronically fluctuating levels of anxiety, lowered mood and auditory hallucinations since that time.
The father reported to Dr C that when he was pre-teen he was put into foster care. However, he was removed from that placement after threatening the foster father with a glass. The father said he was also violent to staff in the residential centre. Dr C has reported the father was charged with an offence in 2007, and again in 2008.
I note that to the Family Report Writer the father said when he was younger he had “put someone in a coma” and “knocked out” another person “with one hit”.
The father told Dr C he was expelled from high school. He said he worked odd jobs, but earned most of his income from drug dealing from the age of 14 to 16 years old. To his credit, the father has subsequently completed an apprenticeship.
The father reported he was first incarcerated when a teenager, for assaulting a friend. He said he was in jail. According to Dr C’s report it appears the father was given two youth attendance orders..
The father told Dr B that his auditory and visual hallucinations became very severe when he was 17 (which was in around 2010). He said he was diagnosed with multiple mental health disorders when he was 19 years old. The father told Dr C he attempted life-threatening self‑harm when he was 19 years old. He told Dr B that he had CATT involvement on multiple occasions, and “too many suicide attempts to count” as a teenager.
The father told Dr C he had seen a psychologist during his adolescence, but it was not a good experience as he felt criticised by her.
The father served another term of imprisonment from late 2012 to early 2013. He said that was for charges relating to criminal offences and family violence offences against a partner he had prior to the mother.
Shortly after he was released in early 2013, he threatened the maternal grandmother with a weapon. He was charged in 2014 with offences, and received a suspended sentence.
According to Dr C’s report the father was also convicted of an offence in 2017 and fined. I do not know the details of that offending.
The father told Dr B that he attempted suicide in 2019. He said he did not go through with it as the children arrived to spend time with him. He engaged briefly with a psychiatrist at that time, but did not like how the medication he was prescribed made him feel, so he stopped taking it without medical advice.
The father was found guilty of offences in early 2020. This was in relation to the events at separation. He was sentenced to a Community Corrections Order.
In July 2020 the father had the children for a visit. He refused to return the children at the conclusion of time and retained them overnight. The mother then ceased all face to face time between the children and the father.
In April 2021 the parties were assessed by Dr B, psychiatrist. Dr B described that the father was guarded, wary and evasive. He displayed paranoid thinking, and persistent and chronic suicidal ideation. The father reported he thought about death every day. He told Dr B that thinking about the children stopped him from self-harming, as he wanted to be around to protect them. He also reported experiencing auditory and visual hallucinations.
Dr B said she could not exclude paranoid schizophrenia as a diagnoses. She said he presented with severe personality disorder. She said there was a high risk of ongoing family violence, including a high risk of suicide by the father. She said his behaviour was such that even professionals providing supervision of time could be at risk. She stated:
From my clinical perspective, the father's difficulties are the severe end of the continuum and there seems to be an increased likelihood that there will be ongoing distorted thinking and nihilism for the short to medium term. In my opinion he requires a review by the local crisis assessment and treatment team who will have access to the Statewide past psychiatric data base and possibly local psychiatric file.
Dr B described that the father had “very significant mental health problems”. She concluded that the father presented “a significant risk of harm” to the mother and the children, and was at risk of suicide.
In mid-2021, the father attempted to overdose. He deposed that he was severely depressed and suicidal in circumstances where the children were not spending time with him. He said he felt very depressed following X’s birthday when he could not celebrate that with her.
The father discharged himself from hospital two days later, against medical advice.
A short time later – for the second time in a week – the father again attempted to overdose. He was admitted to hospital, and again discharged himself shortly thereafter, against medical advice.
In his oral evidence the father acknowledged that his decision to leave hospital on the first occasion demonstrated a lack of insight. However, he refused to acknowledge that his decision on the second occasion was inappropriate, indicating that it was an appropriate decision evidenced by the fact that he has not attempted to take his own life since that time.
In his oral evidence the father also advised that he had attempted suicide about seven times in total. He thought he had attempted to take his own life on approximately five occasions before 2021, with his earliest attempt in around 2010/2011.
According to the father’s affidavit filed 2 August 2021 his General Practitioner in 2021 was Dr E, his psychologist was Dr F and he was also attending upon Dr G, another psychologist. He said Dr E recommended he attend upon a psychiatrist. The father said he struggled to make an appointment because of waiting lists or the unavailability of the psychiatrist.
The father deposed that he did have a single appointment with a psychiatrist through O Psychiatric Services and was prescribed antipsychotic medication.
The father then attended upon Dr D, psychiatrist in September 2021, and in October. I do not know how often he went after that.
Dr C referred to a report of Dr D from October 2021 in which Dr D considered the father’s likely diagnosis was chronic schizophrenia. The father was prescribed antipsychotic medications with reportedly good response.
By the time of interviews for the Family Report in October 2022, just 12 months after commencing with Dr D, the father told the Family Report Writer he was not engaged with a psychiatrist as it was difficult for him to access. He further reported he was not taking prescribed medication as he forgets. He described his mental health as being “perfectly fine” and having been “unmanaged for years”.
The father was re-assessed by Dr C in May 2023. Dr C again noted the father’s very difficult and abusive upbringing. He reported the father drank heavily as a teenager, and noted the father’s long standing criminal records including multiple assaults.
In relation to alcohol consumption, the father told Dr C he drank a slab of beer on most weekends and experienced memory blackouts and vomiting up blood. The father also described experiencing episodes of dysregulation commencing in his early teenage years, during which his emotions build up within him and he could then “explode”. He advised that he experienced chronic auditory hallucinations, with three voices varying from critical to imperative.
The father advised Dr C he had been diagnosed with multiple mental health disorders. He said he identified only with PTSD.
Notwithstanding what he told the Family Report Writer, he told Dr C that he was attending upon Dr D once every few months, and that he consulted his General Practitioner fortnightly.
Dr C described the father as being:
…markedly affectively unstable becoming upset frequently and was somewhat agitated for a lot of the assessment. It was hard for him to keep still in the chair, and he would frequently look at his phone or send text messages in order to reduce his level of tension. However, he also tried to lie on the couch with his feet over the end of the chair and stated that he could almost go to sleep. He got up from his chair on a couple of occasions and moved to the couch on another. Usually this was in response to talking of his adolescence and his traumatic experiences at that time. He had to leave the room on one occasion to have a smoke. He described identifying himself as being like "Lucifer" in that he had enjoyed hurting people, and he thought that he could be "an arsehole" at times.
Dr C concluded that the father has complex PTSD, and as a result experiences affective dysregulation, mood swings and chronic auditory hallucinations. He opined that the father may have bipolar affective disorder type 2, but he was unable to make that as a definitive diagnosis. He said the father was on the cusp of having alcohol use disorder. His presentation and description were consistent with a diagnosis of attention deficit hyperactivity disorder, but he did not undertake a diagnosis of that. He did not regard the father as having schizophrenia, or ‘split personality’.
Dr C said he did not have major concerns that the father would deliberately hurt the children, but he was concerned the father would expose the children to his dysregulation or violence to others in their presence. He also said the father would need to stop drinking or at least greatly reduce his alcohol consumption.
Dr C recommended the father engage in a lasting therapeutic relationship with a counsellor or psychologist, reduce his alcohol consumption, see an alcohol counsellor, and that his psychotropic medication might need to be altered. He said Dialectical Behaviour Therapy could be of assistance. He concluded:
If [the father] takes on board some of these recommendations, then he may be able to create a stable base for a potential role as a father to the children. However, his condition is enduring, and will not go away by itself, but he can manage it in a more adaptive manner. If he does not follow the recommendations, then his condition will continue as it is. Suicide would then remain a possible risk for the future.
(Emphasis added)
Has the father taken adequate steps and engaged appropriate supports to address his vulnerabilities?
It is clear the father has apparently attended upon several treating practitioners. However, it is difficult to know what treatment and/or supports the father is currently accessing.
In August 2020 the father deposed to attending upon Dr E, general practitioner, Ms H psychologist and Dr J, psychiatrist. The father told Dr B that Dr J diagnosed him with PTSD, a personality disorder, anxiety and depression. However, he also said that Dr J “seemed like a bit of a wanker” and it did not appear the father attended for any further appointments.
In December 2020, the father was ordered to provide a report from Ms H and Dr J. No reports were filed with the Court.
As noted, in his material filed in August 2021 the father referred to attending upon Dr F, psychologist and a Dr G, psychologist in 2021. Again, no reports have been filed by those treating practitioners.
The father attended upon Dr D, psychiatrist in September 2021, and in October 2021.
In October 2022, the father told the Family Report Writer that he was not engaged in any psychiatric support, or complying with medication. However, the father subsequently told Dr C that he was engaged with Dr D. While a report was filed by Dr D in October 2021, there has been no current assessment by Dr D of the father.
The father also told Dr C when interviewed in May 2023, that he attended his general practitioner, now a Dr K, fortnightly. He said he was prescribed an antipsychotic and a mood stabiliser, as well as other medication. There was no report provided from Dr K, or any other general practitioner.
The father advised Dr C that he did not attend any counsellor or psychologist.
In his closing address, the father acknowledged there have been times he has not attended upon a psychiatrist or psychologist. He said at times he struggled to fund his treatment. He said attending upon professionals could also become overwhelming at times, necessitating a break for him to ‘gather his thoughts’.
The reality is the father has not provided a current report from any treating medical or mental health practitioner. I do not know – from the perspective of a treating professional – whether the father is engaged with treatment, whether he is mentally stable, whether he is prescribed with medication, whether he is compliant with a medication or other treatment regime or whether he has insight into his mental health vulnerabilities. The father also has not demonstrated commitment to a lasting therapeutic relationship as recommended by Dr C.
Given the lengthy history of poor mental health, the father’s failure to produce any current evidence from any treating mental health or medical practitioner is a gaping hole in his case. He asked me – in the absence of professional evidence – to accept his reassurances from the bar table that he is progressing well and is mentally stable. In light of the facts of this matter, I cannot do so. He may be currently progressing reasonably well in terms of his working life, and his relationships. However, without evidence from any treating medical or mental health professionals I do not know how engaged he is with treatment, whether his mental health is stable, or what insight he may have into his own functioning and responses.
THE ADDITIONAL CONSIDERATIONS
Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
The children did spend some time with the father post separation. However that ceased in around July 2020 and the children have not spent time with their father for in excess of three years.
Y and Z have no real memories of their father.
X does remember him and appears to feel some sense of loss that he is no longer in her life. She told the Family Report Writer that it was difficult to think and talk about her experiences when her parents were together. She recalled that her father had been “really mean” to her mother, and was able to detail an incident of family violence perpetrated by her father on her mother. X reported that she was sad that she did not see her father, but she also understood from what the father had told her, that if they spent time with him, he would “never let us go again”. As the Family Report Writer noted, this suggested the father had engaged X in a discussion that was not age appropriate and also placed her in the position of having some responsibility for her father’s wellbeing.
Whilst she had not enjoyed the phone communication she had with the father, X said she wanted to see her father “a little bit”, and she wanted her parents to take turns caring for her. She also said she did not want her father “to be mean to people” about which she appeared to have some apprehension. The mother acknowledged to the Family Report Writer that X loves her father. She said she is also frightened of him.
X is too young to understand the risk issues in this matter. I note also the Family Consultant’s observation that children of X’s age are often focused on being fair. In the circumstances I put little weight on her wish to spend time with her father.
The children were all assessed as having a loving and warm relationship with their mother. They did not disclose any concerns or worries for their safety in their mother’s care.
Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
The mother is 28 years old. She is a full time student. She lives with her partner. His teenage daughter resides in the home half of the time. They live in a rented home in an undisclosed location.
The mother has struggled with her own mental health issues, including anxiety and depression. She attends upon a general practitioner in relation to her anxiety and depression. She said to the Family Report Writer that she had ceased taking medication with her doctor’s oversight. Dr C diagnosed with the mother with post-traumatic stress disorder, and that she had previously suffered major depressive episodes.
The Department of Fairness, Families and Housing have been involved with the family on a number of occasions. They have conducted home visits and have described the home as being above minimal standards, with sufficient food. They have assessed that the children are not at significant or immediate risk of harm in the mother’s care.
The reports of X to the Family Report Writer did not identify issues in the mother’s household. X reported warm and positive relationships with her mother, step-father and siblings, described age appropriate chores, and appropriate disciplinary measures. Y’s reports were similar.
I am satisfied the mother is providing adequate care for the children, and that she is able to meet their physical and emotional needs. She has supports through L Care Services and has engaged with P Support Services to assist her from time to time as needed. She has also been assisted by Q Support Services when necessary.
The mother meets the costs for the children.
The mother said the children are regularly attending school, although it is apparent that at least in 2021 and 2022 there were a number of school absences. The mother said that occurred substantially during COVID-19, when various members of the household became ill. She also said school was missed when the children and mother were temporarily relocated with the assistance of Q Support Services in 2021 out of concern about the father’s behaviour and risks to the mother. The mother also said she has delivered X late on a number of occasions in those years as the children were attending separate school and pre-school facilities.
The mother acknowledged she initially allowed the children to spend time with their father following the parties’ separation. She said the father behaved in an intimidating manner towards her, and at times threatened self-harm when the children were in his care. She also deposed that the father refused to return the children to her care in July 2020, at which time he physically and verbally abused her.
The mother did not comply with the orders for the children to spend time with the father at the supervised contact service in City N made in December 2020. The family was enrolled in the service, and familiarisation sessions were due to take place in May 2021. However, the mother withdrew her agreement with the contact service at about that time, following the release of the psychiatric report of Dr B. The orders for time were then suspended in May 2021 in light of the significant concerns raised by Dr B in relation to the father’s functioning. In those circumstances, it is not a criticism of the mother that time did not commence at the supervised contact service.
The father is thirty years old. He said he is not in a relationship with anyone at the moment. He declined to disclose his address. He said he is working full time as an apprentice and worker.
The time the children spent with the father post separation was not without incident. The father made complaints that the mother did not provide adequate care, that she neglected them, that she subjected them to physical abuse, and that Y had been sexually assaulted by the mother’s partner. Those allegations were investigated by child protection who took no action. The Sexual Offences and Child-abuse Investigation Team were also involved and they similarly declined to take any further action on the basis that there was no credible evidence to substantiate the allegations. The children’s time with the father ceased after he decided to withhold them.
The father’s mental health issues are long standing. He clearly experienced significantly poor mental health in 2021. Whilst he said he has sought appropriate treatment, I have no current reports from any of his treating team to verify his self-report that he is stable and functioning well.
As will be already plain from these reasons, I share the significant concerns about the father’s ability to meet the children’s needs, and care for them appropriately in light of his long standing mental health issues outlined by Dr B and Dr C.
The father indicated at the outset of the hearing that he wanted to cross examine Dr B and Dr C. However, he had put neither of the professionals on notice. He also said he could not meet their costs of attending Court to give evidence. In those circumstances, he determined not to challenge their evidence.
Issues of family violence: ss 60CC(3)(j) and (k);
As already observed, the mother's trial material was poorly prepared and it did not in detail set out the allegations of family violence.
It is apparent from the mother’s filed material, together with her reports to the Family Report Writer, the Department, Dr B and Dr C that she says she was subjected to serious family violence at the hands of the father. She reported that the father subjected her to repeated violent assaults throughout the course of their relationship including that he has assaulted her whilst pregnant, slapped her, dragged her, smashed a chair on her back, put a belt around her neck, grabbed her at the throat, threw objects at her, threatened to kill her, threatened her with weapons, sexually assaulted her, held her head under water and attempted to detain her by putting her in a cupboard. He threatened to kill himself, her mother, her brother and her father on multiple occasions.
The mother also alleged he tried to choke her on multiple occasions, and on the last of those occasions this was witnessed by X.
In addition the mother says the father subjected her to verbal abuse and denigration, and caused property damage including that he punched a vehicle and broke a television. She also described him as being sexually coercive and financially controlling.
I note the mother described to the Family Consultant that the father’s family violence increased at times of poor mental health.
The mother’s trial material did not particularise the events or incidents, save for the incident at separation in late 2019. She reported to Dr B of that incident that the father held her up against the wall and threatened her. She also reported thinking she was going to die, and that X, who was present, would witness her being killed by her father. She reported similarly to the Family Report Writer.
The Family Report Writer noted as follows:-
The account of family violence provided by [Ms Cayton] is compelling and inclusive of several risk indicators suggestive of high potency family violence. These include sexual violence, verbal and psychological abuse, non-fatal strangulation, use of weapons and coercive control.
In her oral evidence the mother confirmed all the reports she had made to child protection, to Dr B, to Dr C and to the Family Report Writer were true and correct.
At trial – and whilst interviewed by the Family Report Writer – the father denied the mother’s allegations of family violence, or minimised his behaviour. At interview with the Family Consultant the father asserted that he had smashed a window with his hand when the mother of his other children attended his home when she was pregnant, but said she had provoked him to do so. The father said there had been mutual altercations, involving yelling and name calling between him and the mother. He also said he may have “put a hand on” the mother, but only in the context of sexual play.
The father also told the Family Consultant that the mother had slapped and hit him, threatened him with a knife, attempted to strangle him and sexually assaulted him. None of those serious allegations are referred to in any of the affidavits filed by the father in these proceedings, and I place no weight on those assertions.
The father was charged with various offences as a result of the incident at separation. One charge was withdrawn and the father pleaded guilty to other charges. He received a Community Corrections Order.
The Family Consultant referred to collateral information provided to her from Police Family Violence Reports that recorded the father’s intimate partners, friends and family members as being amongst those listed as affected family members. She noted the father was also “frequently recorded as having threatened himself and others with knives”. The Family Report Writer was not challenged in relation to this aspect of her assessment.
I further note that the police assisted the mother to take out an Intervention Order, naming her and the children as protected persons. Additionally, I note the mother was linked in with M Support Centre, who assisted the mother to obtain emergency accommodation, and then assisted her to relocate to another town after the parties’ separated as a result of significant concern for the mother’s safety and wellbeing.
I understand the father does not admit he has been violent or abusive notwithstanding being charged with and pleading guilty to assaulting the mother. In his closing address, he asserted the mother had lied and fabricated the violence. In relation the assault charge regarding the mother, at trial before me, the father said he only pleaded guilty to speed up the family law proceedings and in an effort to see the children. However, as the father had determined to appear on his own behalf, pursuant to s 102NA of the Act, the father was not permitted to cross examine the mother. Accordingly, her evidence as to the father’s violence towards her is essentially unchallenged.
I formed the impression that the mother was a reliable witness. She presented as a very vulnerable woman. She answered the questions put to her directly and succinctly. I note that child protection, the Family Report Writer and the two psychiatrists who have prepared reports in this matter similarly found the mother’s account of the family violence compelling and genuine.
I note the observations of the Family Report Writer as follows:
There may be an intersectionality in between family violence and parental mental health, compounding the risk of harm to the children. For example, [the mother] alleged that the family violence is intensified when [the father] experiences ill mental health; and [Dr B] identified the possibility of suicide as a component of the family violence behaviours allegedly engaged by [the father]. When an individual demonstrates a pattern of violent behaviour, it may be inferred that they are operating within a worldview that accepts the use of violence in a relationship. This worldview may be informed by cultural and religious views, childhood experiences and understandings of family and gendered views, for example. When an individual persists in the use of violence in their relationships, it may be inferred that they possess little insight into the impacts of their behaviour on others and they are likely to continue to perpetuate the cycle of behaviour without significant intervention aimed at addressing this risk. The intersectionality of violent tendencies and unmanaged mental health conditions may further contribute to an impulsivity and unpredictability of violence, the outcomes of which may be difficult to accurately predict and mitigate.
I regard those observations as applicable to this family, and share those significant concerns.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
The proposals by the mother and Independent Children’s Lawyer do not envisage there being any change to the children’s arrangements. They have had no time with their father since July 2020. The only communication they have had with him since that time was to receive gifts on special occasions.
The father’s proposals represent a significant change – progressing from supervised visits, to ultimately a week about arrangement.
The Family Consultant emphasised in her report the need for the children to have stable and predictable care arrangements, and that it would be of benefit to the children to have care arrangements that were not changed or disrupted.
I am also concerned about the impact on the mother if time between the children and the father recommenced. The mother reported to Dr B that she felt very anxious about the danger posed by the father, and that she experienced frequent flashbacks of violent assaults he perpetrated on her. She reported to Dr C that she was constantly anxious when with the father, and experienced a number of panic attacks. Post separation she reported to Dr C:
… the onset of a number of symptoms including nightmares of traumatic events at the hands of the father, flashbacks of violent episodes involving the father, startle response when she sensed that people were behind her, development of hypervigilance when exposed to possible contact with the father, a degree of intrusive recall of memories, the avoidance of hugging people or of social contact. She also avoided TV shows and movies which showed scenes of domestic violence. She stated that she had moved away from the previous geographical location in an attempt to stay away from the father. She states that she notes that she feels that her character has changed and that she is no longer as social as she used to be, and she easily becomes irritable.
In her oral evidence the mother advised she continues to be anxious and worried about the father. She said she continues to feel panicked and worried that she might accidentally run into him, and is worried she will be stalked by him, or subjected to further physical harm. She said she can become anxious and apprehensive when she is out and about, as she does not know the father’s whereabouts. She said that makes her limit the time that she is outside the home. She said if time was ordered this would provoke her anxiety. She confirmed that she continues to experience flashbacks of violent episodes involving the father, and she remains hyper-vigilant.
Dr C expressed concern that the mother’s anxiety would likely increase if time was reintroduced, and the children in turn would be exposed to that anxiety and their mother’s heightened state of arousal.
The Family Consultant indicated there were benefits to the children’s arrangements remaining unchanged. She said that would ensure their and their mother’s immediate safety. It would also give the children the opportunity to settle into and adjust to their currently home environment.
Practical difficulty of implementation: s 60CC(3)(e);
Neither party wishes to disclose to the other where they reside. As such, I cannot comment on whether there are practical difficulties in time occurring.
Avoiding further proceedings: s 60CC(3)(l);
It is preferable to make orders that bring these proceedings to a conclusion. The parties have been engaged in litigation for a protracted period.
Given that the children have not seen their father for over three years, any orders that saw the children being reintroduced to the father would, in my view, need to be interim orders. The younger children have no memory of him. The father’s proposals to make final orders that over time progress to a week about arrangement are not child focussed.
The orders proposed by the mother and the Independent Children’s Lawyer would finalise the parenting proceedings. The father would, of course, be able to institute new proceedings if he was able to demonstrate a significant change in circumstances. I anticipate that to be satisfied of that, the father would need to demonstrate proper management of his mental health over a lengthy period, supported by evidence from his mental health practitioners with whom he has established a solid therapeutic relationship.
IS THERE AN UNACCEPTABLE RISK AND CAN THAT RISK BE AMELIORATED?
Whether the father poses an unacceptable risk to the children requires me to consider and weigh the evidence, focussing on future risks. As the Full Court said in Isles & Nelissen (2022) 65 Fam LR 288, this is a predictive exercise, which “entails a forecast”, based on the known facts and circumstances.
As already indicated, I accept the mother’s evidence regarding the father’s violent behaviour. I note that the Family Report Writer opined that if the Court accepted the mother’s account:-
…the risk that is inferred is substantial and warrants a cautious approach. This risk is compounded by the unmanaged state of [the father’s] mental health and his limited insight into the importance of psychiatric treatment.
The Family Report Writer was very concerned about the safety of the mother and the children if orders were made even for professionally supervised time. Her evidence was that the risk of family violence, and the threat at least to the mother of emotional and potentially physical harm could be reignited if time between the father and the children were to recommence. She expressed considerable concern that the father may be able to exploit an order for time with the children to gain access to the mother’s whereabouts, which would place the mother at serious emotional and physical risk.
The Family Report Writer did not have confidence that professionally supervised time in a contact centre would provide sufficient protection for the children or the mother in the particular circumstances of the case. She expressed concern that the father’s mental health issues could potentially place the staff at risk unless the father had undertaken psychiatric treatment that had significantly addressed his belief system. She wrote:
If [the fathers’] mental health were to be unstable, the magnitude of this risk maybe difficult to assess; and the parameters of a professional contact centre may be insufficient.
Even if a relationship could be physically safely resumed, in a professionally supervised setting, the Family Report Writer referred to the poor long term consequences to the children that could occur in light of the father’s negative view of the mother. She noted the extremely negative view the father held towards the mother had not apparently ameliorated in the years since separation. She acknowledged it was highly likely that he would express those views to the children, which would be confusing and distressing for them, and potentially undermine the children’s primary parental relationship. Alternatively it could result in a resist and refuse dynamic evolving, likely giving rise to further litigation and ongoing conflict.
In all the circumstances – and in light of what she described as “the compounding risks posed by the allegations of family violence and [the father’s] unmanaged mental health” – the Family Report Writer concluded that the only safe outcome for the children and the mother at this time must be a no contact regime. She said if there was a consideration in the future of supervised time, that could only occur once the Court had clear evidence that the father was emotionally stable. Additionally, she said the father would need to demonstrate a sustained commitment to maintaining a treatment and support regime over time. She anticipated that in those circumstances long term professional supervision would still be required.
Having heard the evidence, read the material and listened carefully to the submissions made, I share the significant concerns expressed by the Family Report Writer. I am satisfied that there is an unacceptable risk to these children if time is introduced. Those risks include the children being exposed to the father’s poor mental health, his emotional dysregulation, his negative attitude to their mother, and potentially to the safety of the mother. I also agree with the assessment that until such time as the father is able to demonstrate that his mental health issues are stable and well managed, there is no way those risks can be satisfactorily ameliorated.
I note further the impact on the mother’s mental health if time were ordered. She is the undisputed carer for the children. They are wholly dependent upon her. She is a vulnerable woman. I have serious concerns about her ability to manage and cope with her anxiety and distress if time were ordered, even on a professionally supervised basis.
WHAT ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
How should parental responsibility be allocated?
The presumption pursuant to s 61DA of the Family Law Act that an order for the parents have equal shared parental responsibility for the children is in their best interests does not apply in this matter. I am satisfied the father has engaged in family violence. The parties have no demonstrated ability to co-parent. They do not have any ability to communicate effectively. It may well be unsafe for the mother to engage in communication and information sharing with the father regarding the children.
Given the nature of the family violence perpetuated by the father on the mother, in my view it would be unreasonable to expect the mother to consult with the father and make a genuine effort to come to a joint decision with him regarding the children, as would be required if an order was made for equal shared parental responsibility.
I note further the concerns of the Family Report Writer that any requirement that the parties share information could also be “unsafe to consider” in the context of the father’s presentation. She noted an attempt as a co-parenting relationship could also exposed the children to renewed family violence.
The mother has apparently provided appropriately for the children since separation. The Family Report Writer noted the mother was familiar with the children’s developmental needs, and appeared to be providing appropriate care for them. I am satisfied she will continue to exercise her duties in relation to the children’s long term care, welfare and development in a satisfactory manner.
What time and communication orders are in the children’s best interests?
There are of course benefits the children may experience if they were able to spend time with their father. It could help the children to understand their identity, contribute towards developing their self-esteem and assure them of their father’s love for them. If they do not have him in their lives, they may experience his absence as a loss, or a form of rejection or abandonment.
However, as set out, there are significant risks to the children if time were attempted, that I have determined are unacceptable and cannot be sufficiently ameliorated at this time. In those circumstances the children’s best interests require that the orders I make are as proposed by the mother and the Independent Children’s Lawyer. The children’s wellbeing, and their mother’s safety require there be no orders for time or communication.
I agree with the submissions of the Independent Children’s Lawyer – and of the observations made by the Family Report Writer – that the father’s capacity to assume a role in the children’s lives requires that he first demonstrate stability and ongoing management of his mental health issues before there can be a consideration of whether he resumes a role in the lives of X, Y and Z. I agree with the suggestions by the Family Report Writer that:
This may be demonstrated through sustained psychiatric engagement and medication compliance; and hopefully developed insight into the importance of maintaining his mental health in the long-term. Instability of [the father’s] mental health may contribute to [the] risk that he presents in an unpredictable or volatile manner, threatening the children’s sense of safety and jeopardising the development of any prospective relationship.
Should there be a restraint regarding the mother’s ability to move more than 100kms from City N as sought by the father?
In circumstances where I have determined the mother shall have sole parental responsibility, and the children’s best interests do not include orders for time with their father at this stage, it would be inappropriate for me to make the restraint as sought by the father. There would be no utility in making that order, and it would inappropriately impinge on the mother’s right to freedom of movement.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 21 August 2023
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