Baddock and Baddock

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADDOCK & BADDOCK

[2017] FCCA 127

Catchwords:
FAMILY LAW – Parenting – family violence allegations – where the mother proposed supervised time on a few occasions each year – where the father proposed a resumption of time on alternate weekends and during school holidays – where there is a long history of the father verbally abusing and denigrating the mother – where this behaviour has caused harm for the children – where there is an unacceptable risk that the father will continue to behave in this way in the future absent supervision – where an order for indefinite supervised time is undesirable but no other order is appropriate.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Mazorski & Albright (2007) 37 FamLR 518

Applicant:

MS BADDOCK

Respondent:

MR BADDOCK

File Number:

NCC 589 of 2015

Judgment of:

Judge Terry

Hearing dates:

30 November & 2 December 2016

Date of Last Submission:

2 December 2016

Delivered at:

Newcastle

Delivered on:

11 January 2017

REPRESENTATION

Counsel for the Applicant:

Ms Court

Solicitors for the Applicant:

NLS Law

The Respondent:

In person

ORDERS

All previous orders relating to the children [X] born 2006 and [Y] born 2007 (“the children”) are discharged.
The children shall live with the mother.
Subject to Order 4 the mother have sole parental responsibility for the children.
The mother shall:
(a)ensure that the children are known for all purposes by the surname “Baddock”.
(b)give the father 28 days’ notice of any intention to relocate the children’s residence from the current Local Government area in which she lives;
(c)notify the father in writing (which may be by SMS text message or email) of any decision she makes in relation to a major long term issue for the children or either of them.
The mother shall advise the father as soon as reasonably practicable in the event that the children or either of them is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious illness.
Provided that the father gives the mother seven (7) days’ notice in writing (which may be by SMS text message or email) the children shall spend supervised time with the father on the second weekend of each alternate month commencing in February 2017 supervised by an organisation such as Big Brown House or Reconnect for a period of not less than two (2) hours and longer if the service can facilitate it and the father is willing to pay for it.
At the father’s election and upon notification of the mother in accordance with these orders, the father may forego the time in the second week of August and elect to have that time on the Father’s Day weekend.
The mother may provide a copy of these orders to the service supervising the time so that the service is aware that the purpose of the supervision is to ensure that the father does not criticise or denigrate the mother to or in the children’s hearing or act in an emotionally abusive way towards them.
The father is restrained and an injunction is granted restraining him from attending the children’s school/s or any after-school or sporting activity that the children may attend from time to time.

IT IS NOTED that publication of this judgment under the pseudonym Baddock & Baddock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 589 of 2015

MS BADDOCK

Applicant

And

MR BADDOCK

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The issues I have to decide are the allocation of parental responsibility in relation to two children, [X] and [Y], who are ten and nine and the time they should spend with their father.
The parties separated in October 2008 when the children were one and two years old and they have spent time regularly with their father for most of the post-separation period. It would appear that they spent unsupervised time with him on alternate weekends until an incident in early 2015.
After that incident the mother commenced court proceedings and on 15 April 2015 an interim order was made by consent for the father to spend time with the children supervised by Mr R, a private supervisor chosen by the parents.
The supervised time continued until April 2016 when the father abruptly ceased seeing the children in accordance with the orders because he was unhappy with the supervisor. He has spent almost no time with them since then although he has continued to have telephone communication with them.
The orders the mother sought in her amended initiating application were that the children spend supervised time with and communicate with the father at her sole discretion and that the father be restrained from attending the children’s school or home or going to their sporting or extracurricular activities.
It was the mother’s case that there was domestic violence during her relationship with the father and that she had been subjected to denigration and intimidation by him ever since separation. She said that this had impacted severely on [X] who was fearful and anxious for the mother and it had resulted in both children being verbally abusive and disrespectful to her.
She said that the father was to this day emotionally abusive of the children and that although [Y] was still willing to spend time with him, [X] was now exhibiting considerable reluctance to do so.
At the end of the trial the mother put forward an alternative proposal namely that the father spend time with the children on four occasions each year supervised by Mr R, the supervisor the father rejected in April 2016.
The father’s case was that the children should spend alternate weekends from Thursday to Monday with him and also time during the school holidays. It was his case that the mother was the problem and that she was unreasonably preventing him spending time with the children.
The father denied perpetrating family violence and said that the parties argued during their relationship and that the mother was physically violent to him on a couple of occasions. He made some limited admissions during cross-examination about some intimidation and verbal abuse of the mother after separation but said that he had since done a parenting after separation course and he relied on the fact that both children told the family consultant in March 2016 that they wanted to return to spending alternate weekends with him.

The evidence

The evidence in the mother’s case was given by the mother and her partner Mr J and in the father’s case by himself and his partner Ms T.
A family report was prepared by Mr A, a Regulation 7 family consultant, after interviews in March 2016.
All of the witnesses were cross-examined.
I have found this a challenging and difficult matter from the outset and aspects of it trouble me deeply.
The first thing that troubles me is the proposal the mother had on foot on the commencement of the hearing that time between the father and the children be at her sole discretion.
This is incomprehensible to me for two reasons. First, the mother complained repeatedly during the hearing about the fact that the father told the children that it was her fault that he was not seeing them and described in her affidavit detrimental effects on the children of the father conveying that information to them and I refer to paragraphs 42, 57, 61 and 65 of her affidavit. There is also a reference in paragraph 34 of the Family Report to the mother telling the family consultant that the father blamed her for what was happening in terms of him seeing the children.
Notwithstanding this, the mother asked me to make an order which would give the father open slather to make this complaint ad infinitum.
Second, the mother complained repeatedly in her material about the father harassing and intimidating her and said that she wanted to get him out of her life and out of her face but she sought an order which contained an invitation to the father to make repeated requests and perhaps to nag and harass her in a campaign to spend time with the children. He would be repeatedly contacting her saying, “Let me see them. Let me see them.” Why did the mother want to bring that on her head I asked myself.
The fact that this order was sought may mean that the mother’s solicitors did not sufficiently think the matter through, but it may also mean that the mother still has some sort of unhealthy attachment to the father.
I was troubled by the fact that in November 2014 after a Melbourne Cup event where the mother said that the father harassed her and intimidated her for hours to the point where she was forced to leave the venue she then decided to go to counselling with him on a number of occasions. It is incomprehensible to me why six years after separation the mother would do that.
The mother’s proposal at the end of the hearing that the father spend time with the children four times a year supervised by Mr R was not only unhelpful it was in my view provocative.
The father is not seeing the children at the moment because he refuses to accept supervision by Mr R. Why did the mother propose that order when there are so many other options out there for supervision, including places like Big Brown House and Rekonnect? If I made that order the father would probably think the Court was laughing in his face.
Both of these alternative proposals by the mother suggest the possibility that she would really like a no time order, but if that is the case she should have said so.
The orders sought by the mother trouble me greatly and are really unhelpful and the second troubling aspect of the case is that there is no dispute that the father has mental health issues. He said they took the form of anxiety and depression but I wonder whether an in-depth psychiatric examination of him might have turned up something more. The father is conspicuously lacking in empathy for others, for his children and for the mother, and I find his behaviour in sabotaging his own time with the children so that he has hardly seen them for nine months incomprehensible.
It might be that a psychiatric report would have turned up something more and there is also of course the fact that the father attempted to hang himself in November 2014, but I do not have a psychiatric report so I am left in the dark about where that issue might have gone if I had one.
I regret that an Independent Children’s Lawyer was never appointed in this case. I cannot recollect now why that wasn’t done, but at one stage the parties were both represented, and sometimes people paying for their legal representation are not particularly enthused about having to pay for an Independent Children’s Lawyer.
In an ideal world an Independent Children’s Lawyer might have been able to arrange for a psychiatric assessment, but on the other hand experience suggests that this might not have happened at least in any satisfactory way. The parties are not people of means who could have afforded a private report by a child and adult psychiatrist which would have ensured that there was input from both parties into an assessment of the father, and a one-sided report based on self-report by the father, which is more likely what I would have got, may not have helped.
The third troubling aspect of the case for me – and the parties have this information and just did not provide it – is that I was told very little about what happened in regard to the father spending time with the children between when [Y] was one and the commencement of the proceedings when he was seven and a half.
[Y] spent time regularly with the father for six and a half years. The family report suggests that he had a good relationship with him up to the date of the family report interviews and the evidence about his interaction with him at Father’s Day at the skate park suggests that as well, so there is evidence to suggest that the father is capable on occasions of relating well to his children. [X] also told the family consultant, I am satisfied genuinely at that particular time, that he wished to spend more time with the father.
It could well be that things were not always as bad between the father and the children as they have been in the last 12 months or two years but I was not told about that in any detail.
I was also not told what had changed for the mother and why she was now seeking orders. Did she now feel strong enough for example whereas previously she did not feel strong enough to seek orders? There was no bridge built for me between the current situation and what might have happened in the past and it causes me to be puzzled.
The fourth problem in the matter is the limited use I can make of the family report because of the events which occurred after it was prepared.
The family consultant recommended that the children resume spending unsupervised time with the father. He clearly struggled with the diverse aspects of this case, namely the allegations of family violence which he felt had substance on the one hand and the good relationship he observed between the father and the children on the other and he also factored in the risk that the father would continue to behave in an obnoxious and intimidating way in the future and the impact that would have on the mother and the children. He recognised all the issues in the case and struggled with the matter before making some recommendations.
I may not necessarily have followed the recommendations; the Court is not bound by the recommendations in a family report. However as things have turned, out I cannot place any weight on them at all because about a month after the report was released the father just up and decided he was not going to spend any time with the children.
The father has now not seen the children for about eight months. His behaviour in creating that situation is a relevant issue and the fact that he hasn’t seen the children for that period of time is also a relevant issue. It means I cannot just go back and place the weight that I might have on the recommendations in the report.
So the case is very difficult and there are many unsatisfactory aspects to it in terms of the proposals and the evidence available to me but I have heard all the evidence and I must now make a decision.

Background

The mother is 41. She is an (occupation omitted) and lives at Town A.
The father is 37. He is a (occupation omitted) who is living in Town B but is building a home in Town C.
The parties commenced a relationship in 2002 and married in 2005, and they have two children, [X] born on 2006 and [Y] born on 2007.
The father has a 15 year old son [A] from a previous relationship. According to the father [A] lives with his mother in Queensland and sees the father from time to time but this issue was not explored at the hearing.
The parties separated in October 2008 when [X] was two and [Y] was one, and after separation the children lived with the mother and spent regular time with the father. There is a suggestion that it was alternate weekends, and it continued without anyone feeling the need to go to court or seek orders until early 2015 when there was an incident between the mother and the father’s partner Ms T.
In March 2015 the mother filed an application seeking an order for supervised time. In her supporting affidavit she made allegations about family violence and about intimidation by the father and interim orders were made for time between the father and the children to occur but to be supervised by a private supervisor chosen by the parties.
The choice of a private supervisor allowed the father to spend time with the children at an outdoor venue so there was more scope for interaction. The normal choice of, say, Rainbows, would have restricted the father and the children to a room.
The father was keen to resume spending regular unsupervised time with the children and a family report was ordered. The family consultant made some recommendations which were not accepted and the matter was listed for hearing.
In or about late April 2016, about a month after the release of the report, the father alleged that the private supervisor was not doing his job properly and was not supervising the time and somewhat bizarrely given that he did not agree with supervision anyway, he decided that he would cease spending time with the children supervised by this man.
The father asked if Mr J, the mother’s partner, would supervise but no agreement could be reached about this or about any other alternative and as a result except for Father’s Day when Mr J supervised time at a skate park, the father did not spend time with the children from April 2016. He did however continue to have weekly telephone communication with them.

The family violence allegations

Before I turn to the children’s best interests, I must consider the family violence allegations made by the mother. They loom large in this case and I have to make some findings about them.
The mother alleged that the father perpetrated family violence during the relationship. She gave some specific examples of him dragging her out of bed by the foot, demanding that she cook him a meal, yelling at her and grabbing her and regularly calling her a “slut”, “whore”, and “queer bitch” and she alleged that he threw his dinner to the dog when he was unhappy about the meal she had served up.
All of these actions, if they occurred, are family violence. They involve coercive and controlling behaviour and the mother said that she was frightened by what occurred.
The mother said there was also a frightening occasion when the father had a fight with a friend in the kitchen and pulled a knife on the friend.
The mother said that the verbal abuse and intimidation and the use of the words “slut” and “queer bitch” in particular continued after separation. She said that the father regularly called her those names at changeover in front of the children.
The mother said that the father’s behaviour was traumatic for her and that she sometimes wet herself or soiled her pants and that the father taunted her about it.
The mother gave evidence about a Melbourne Cup event in 2014 where the father followed her around saying he wanted to reconcile and that he loved her to the point where the mother had to leave the venue.
She also said she felt intimidated at sporting events when the father and his partner would come and stand behind her and the father would follow her around.
The mother said that the father drank excessively during the relationship and that his behaviour was worse when he had been drinking but that he behaved in that way on other occasions as well.
The father spent a good deal of time in his affidavit and during the family report interviews comprehensively denying the mother’s allegations. He denied perpetrating any physical violence. It was his case that during the relationship he and the mother had verbal arguments in which they each gave as good as they got.
That is not an uncommon response from someone who is alleged to have been verbally abusive and as is commonly the case when this response is made, while the mother, who alleged family violence, gave specific examples of the abusive things the father had said to her, the father provided no detail of any abusive things the mother had said to him, and that always gives rise to a concern about whether the party who insists that there were simply give-and-take verbal arguments is telling the truth.
The father made some admissions which give a colour of credibility to the mother’s allegations. He admitted throwing a plate of food when he was unhappy about what had been served up to him. He eventually admitted calling the mother names such as “slut” and “queer bitch” at changeovers and he admitted taunting her for wetting herself although he said that he regretted doing that. He also admitted that he drank too much during the relationship and he admitted pulling a knife on a friend in the kitchen although he said it was in self-defence.

I am satisfied on the balance of probabilities that the mother’s evidence about the father’s actions should be accepted, and that during the relationship the father was sometimes physically abusive to the mother and frequently verbally abusive to her, causing her to be frightened. I am also satisfied that the father was frequently verbally abusive to the mother after separation and I accept that the mother has felt intimidated on those occasions and at sporting events and changeovers when the father has followed her around.
The father alleged there were two occasions when the mother was physically abusive to him. He said that she hit him over the head with a vacuum cleaner after he picked up the knife during the fight in the kitchen and that she grabbed him by the neck and pushed him into a mirrored wardrobe after he went round to the house in 2011 because she was crying for help.
The father on his own admission was intoxicated during the kitchen incident so I do not accept his evidence about that, and I have no reason to prefer his evidence over the mother’s about what happened in the 2011 incident. Nothing in the evidence suggests to me that the mother is a person who has a violent disposition and I do not accept the father’s allegations about the mother.
As I mentioned earlier, one of the puzzles in this case for me is that while there was clearly family violence both during and after the end of the relationship, the mother facilitated time between the children and the father for six and a half years. She did not allege that she was threatened or coerced into doing so although she did allege that she was abused at changeovers.
She claimed that the father was obsessed with her and some of his behaviour certainly suggests that, but after the Melbourne Cup Day incident, when the parties had been separated for six years, she went to counselling with him. It goes back to what I said before: a concern I have about the nature of the parties’ relationship and whether it has been an unhealthy, enmeshed relationship.

The children’s best interests

I am satisfied that family violence occurred as described by the mother and against that background I must go to s. 60CC (2) and (3) of the Family Law Act 1975. Any orders I make about the children must be orders determined by treating their best interests as a paramount consideration and to determine the children’s best interests I must have regard to the matters in s. 60CC(2) and (3).
S.60CC(2) contains the primary considerations, which are the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. S. 60CC (3) contains a number of additional considerations, including things such as the children’s views, the nature of their relationship with the parent and aspects of family violence.
Sometimes it is necessary to start with the additional considerations because findings about them inform findings about the primary considerations and this is such a case.
The first of the additional considerations is the views of the children and the weight to be attached to their views.
The family consultant interviewed the children. I am satisfied that he related well to the children and accurately reported what they said to him. Both children told him that they wanted to start seeing their father on alternate weekends again. They also told him they did not like the father’s partner Ms T although the family consultant he felt that limited weight could be placed on that.
The mother said in her affidavit that the children told her that the father had promised them an overseas trip if they said positive things about him to the family consultant. I am not sure when that is supposed to have occurred because the children had been having supervised time with the father for a lengthy period prior to the report interviews. Perhaps the father is right about the deficiencies in the supervision. It could perhaps have been said on the telephone, although it does not seem terribly likely that the mother would not have heard about it straightaway if that were the case.
In any event the mother put forward some evidence which she said suggested that the children might have been persuaded by the father to say certain things to the family consultant. I cannot give that a lot of weight in light of what the family consultant observed about the father’s interaction with the children and his knowledgeability about them. The family consultant observed a genuinely warm relationship between the father and the children in March 2016 and that inclines me to the view that the children did genuinely, at the time of the family report interviews, wish to return to spending the weekends with the father.
How much weight I could have placed on that, even in the absence of developments which have occurred since then, I cannot be sure. It needs to be borne in mind that in March 2016 the children had only been seeing the father supervised for 12 months so their exposure to certain aspects of his personality was not as great as had occurred in the past.
But in any event I cannot place weight on the views expressed by the children because of what happened immediately after the report was released.
A month after the report was released the father decided he was going to stop seeing the children, and he has had only one visit with them since then and that was a visit supervised by Mr J at the skate park on Father’s Day. He may have had a couple more visits with them since the trial, but that was all he had up to the date of the trial.
The father continued to have telephone communication with the children but there was evidence that on many occasions that telephone communication did not go particularly well and I will return to that later when I talk about parenting capacity.
The father conceded during the hearing that his relationship with [X] was poor at present. The mother said that [X] was now saying he did not want to see the father, and given the father’s own admission that his relationship with [X] is currently poor, I cannot just then go back and place weight on what the children said to the family consultant in March 2016.
Mr J said that [Y] related well to the father during the Father’s Day visit at the skate park and it might be that [Y] would still be willing to spend regular unsupervised time with the father; his relationship with the father seems to be a different to [X]’s, but because of what has happened since the family report, I have to be very cautious about placing any weight on children’s views as expressed to the family consultant.
I must consider the nature of the children’s relationship with each of their parents and any other relevant person.
The children have a good relationship with their mother and with their step-father Mr J.
The father still seems to have, if you can judge by what happened at the skate park, a reasonable relationship with [Y], but his relationship with [X] on his own evidence at the hearing at December is currently poor.
The children have no relationship at present with the father’s partner Ms T. They have not seen her for something like two years now. They expressed a dislike of her to the family consultant. The family consultant said that the situation may be more nuanced than might appear from what the children said but the fact is they have no relationship with Ms T at the present. They are just not seeing her.
I must consider the extent to which each parent has taken the opportunity to spend time with and communicate with the children and take part in decision making about them.
There was no evidence that the father had ever sought to take part in decision making about the children in terms of choosing their school or their sport, but not a lot turns on that in this case.
Most importantly, the father has deliberately ceased spending time with the children. He could currently be spending time with them pursuant to the order made in April 2015. He chooses not to do so. That is not the mother’s fault, although he has told the children that it is. It is his choice and his alone.
I have to consider issues of financial support.
No evidence was given about that topic.
I must consider the likely effect of any change in the children’s circumstances.
The father proposed a significant change in that he proposed not only a resumption of time, which is not occurring at the moment in any meaningful way but a return to unsupervised time each alternate weekend which is more or less what was happening before the proceedings were commenced in 2015.
I have to consider the likely effect of these changes on the children but I am going to return to that after making findings about the remaining s. 60CC (3) matters and the s. 60CC (2) matters and more or less weave it into the conclusion to the judgment.
I have to consider the practical difficulty and expense of the children spending time with a party.
That is not relevant in this case because both parties live in Town D.
I have to consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs.
The mother has a very good capacity to provide for the needs of the children. She has no mental health issues apart from perhaps some depression. She does not use drugs, she does not abuse alcohol and she does not have a criminal record.
The only concern that I have about the mother is the possibility that up to a certain point at least she had an unhealthy enmeshed relationship with the father, but she certainly appears stronger and more decisive now.
There was no evidence that Mr J, her partner, had a problem with drugs or alcohol or had a criminal history and all the evidence suggests he is a positive influence on the boys and that they have a good relationship with him.
One of the puzzles for me in this case is how the father can remotely justify being abusive to or even critical of the mother when he identifies no personal failings she has and points to no issues with her care of the children. It is incomprehensible to me how the father could, to himself, remotely justify being abusive of the mother.
I have considerable concerns about the father’s parenting capacity.
First there is the issue of his mental health. He has on his own admission suffered from depression and anxiety and there was the suicide attempt in November 2014.
This concerns me but as I said earlier, in the absence of a report about the father’s mental health, it is really difficult to make findings about what the father’s mental health issues are and how they are impacting on his decisions concerning the children and how they might impact on his capacity to care for them. I cannot findings about those things because I do not have the evidence to allow me to do so.
The father has on his own admission misused alcohol in the past. When I say misused it, he has drunk excessively and it has been associated with him being violent on occasions, and he has a DUI conviction.
The father said that he had cut back on his alcohol consumption and Ms T supported that. I have no concrete evidence about that one way or the other. The father gave no evidence about his current level of drinking and I cannot make any assessment about it. All I can say is that it appears the father is productively employed or productively self-employed, whatever it might be and he has no recent criminal convictions arising out of alcohol use.
Another concern I have about the father’s parenting capacity is his attitude to the issue of family violence.
I am satisfied the father has perpetrated family violence and he made no real admissions about it and expressed no real regrets. When he was asked in the witness box whether he regretted throwing the dinner there was a very long pause and he then looked up and said, “No” and added, “Why would anyone make someone a dinner they didn’t like?” and “Anyway, it happened before the children were born.”
He admitted calling the mother vile names and also taunting her for wetting herself which he said he regretted but there was no conviction in that. He continues to this day to be highly critical of the mother and he irrationally blames her for the fact that he is not seeing the children at the moment.
The father made no real admissions about family violence, expressed no real regrets about it and showed a complete lack of empathy for the mother.
The father also completely lacks empathy for his children and completely lacks the capacity to provide for their emotional needs. Telling them that he is not seeing them because the mother will not let him is untrue, it is manipulative and it is emotionally abusive of the children.
A moment’s thought would tell the father that this was likely to unsettle the boys and potentially set the boys against their mother. I am gravely concerned that perhaps that might even be his intention and is part of a continuum of family violence seeking to control and coerce the mother.
The father has behaved toward the children in a number of ways which have set the mother up to them as someone who makes bad decisions. There are his comments about the clown shoes and about One Direction and the incident in April 2016 when he took [X] to the skate shop where [X] believed that he was going to be bought a present. The father then made a critical comment about the mother’s choice of a scooter for the child and refused to buy the present and [X] ended up hysterical.
The father just keeps doing those things in relation to the children. They are damaging, they are emotionally abusive, they indicate a complete lack of empathy for the children and the father simply does not see that and he has a separate excuse for what he does on each occasion that it occurs.
It is impossible to see that sort of thing ending for the children. The father said that he had done a parenting after separation course and the family consultant relied on that in making the recommendations he did about the time the children should spend with the father but there was no sign in the evidence before me that the father had actually learnt anything from that course.
I cannot make any findings about Ms T’s capacity to provide for the needs of the children. That is a relevant issue because if the children spend unsupervised time with the children she would be in the household.
Ms T is employed. She seemed a reasonable person in the witness box. She seemed pleasant enough.
The father admitted that there had been issues in the home because she had imposed rules for the children. I cannot be sure about her capacity to provide for the needs of the children.
One of the small concerns I have about Ms T is that she is very supportive of the father. The father agreed that critical things had been said in his household about the mother between himself and Ms T, although he said he did not think, at the time, the children had overheard them. My concern about Ms T is simply that she may be too supportive of the father and not able to really recognise the emotional needs of the children.
I must consider the children’s maturity, sex and background and any other matters particular to the children.
The children have been referred to a child psychologist because [X] in particular was showing signs of stress.
They have had some sessions with the child psychologist and the mother also arranged for the children to attend a program called Seasons for Growth which is designed to assist children who are part of a separated family.
[X] seems to have suffered quite a lot as a result of his exposure to family violence, but I will come back to that in the next section of the judgment, because the next thing I have to make some findings about is the issue of family violence.
I am satisfied that the father committed acts of family violence both during and after the end of the relationship.
I am satisfied the mother feels intimidated by the father and is frightened of him. Mr J was taking the children for changeovers prior to time pursuant to the April 2015 orders ceasing.
The father’s behaviour towards the mother has been ongoing for more than 10 years. He made minimal admissions about it and I do not accept he showed any genuine remorse.
I gained the impression from the evidence and seeing the father in the witness box that he had little capacity for empathy for others. It is clear that he has no regard for the mother. He has no regard for her decisions. He agreed that he denigrated her in conversation with his partner. He agreed that even now he was telling the boys that they were not seeing him because of the mother, which is a lie.
The father’s denigration of the mother is particularly concerning because there is simply no basis for him to complain about her. She does not use drugs, she does not neglect her children and she does not get on the grog when the children are around. She does not send the children to school in rags. It is incomprehensible why the father denigrates the mother.
The father’s behaviour has had an impact on the mother. She is intimidated by him and frightened of him. It might well be that she has made bad decisions about the children spending time with him in the past because of that interaction between them.
The father’s behaviour has also had an impact on the children. In the family report the family consultant noted how hypervigilant [X] was and how worried he became when he thought that the father might be coming into contact with the mother while [X] was being interviewed.
Whenever the father has verbally abused the mother at changeovers or denigrated her so that the children can overhear it or made negative comments about her decisions about things like shoes or the One Direction concert - not all of those things, I might add, involve family violence, but I am putting them all in a continuum here - whenever the father has done those things he has been an extremely poor role model for his sons.
He is denigrating the children’s mother, the mother the children love, and all that is going to do is set up extreme anxiety and difficulty for the children. They love their mother. They may well still feel some love for their father and their father is criticising their mother. These are the two most important people to the children in the world and one of them is criticising, denigrating and verbally abusing the other one. What that does for children is often tip them into anxiety and depression. It is a dreadful way for a parent to behave.

The other bad thing about that is that the children might copy the way the father behaves in verbally abusing the mother and direct that same vile abuse at her. Mr J or the mother or both of them said that the children had sometimes verbally abused the mother using the same language the father used.
There is a risk that they will use that language to their own future partners or to other people they met in the community which can only be dreadfully detrimental for them. Anyone who behaves like that is an extremely poor role model for their children.
These children have been exposed to family violence. It has particularly affected [X] negatively. He is hyper vigilant and worried about his mother coming into contact with his father. The children have been exposed to extremely poor role-modelling by the father because of the way that he has behaved and I have to consider, and I will consider a little bit later on in the next section of the judgment, whether there is a risk of that sort of thing happening again in the future.
The next thing I have to consider is whether there are any family violence orders.
The mother applied for an ADVO in early 2015. The application was dismissed after a hearing. I do not have a transcript of the proceedings. I don’t know what happened or why the application was dismissed and I cannot draw any conclusions from the fact that the application was made or dismissed.

I must consider the attitude of the parents to the children and the responsibilities of parenthood.
In denigrating and abusing his children’s mother the father has shown a very poor attitude to the children and the responsibilities of parenthood.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order that the father commence spending unsupervised time with the children is the order most likely to lead to further proceedings. For reasons I will give shortly I am satisfied there is still a risk of the father behaving in an abusive, denigratory way to the mother and if that was to occur after orders were made there is a high that this matter would rapidly return to court.
The family consultant said as follows in his report:
The risk of intimidation and harassment at common events or during the exchange of care of the children where both parties may be present does pose some issues. It is likely that this risk could escalate if the court process is finalised and no longer in dispute.[1]
[1] Family Report paragraph 108
There is a risk that if I make orders for unsupervised time, some behaviour by the father will result in the matter rapidly returning to court.
I then have to return to the primary considerations and the first is the benefit to the children of having a meaningful relationship with both of their parents.
It is true in broad general terms that children benefit from having a relationship with both parents. Mothers and fathers are different. They have different interests. They bring different extended family into the mix. They have different skills, different education and different views about things. Children usually benefit from having a relationship with both parents.
These children will not have a meaningful relationship with their father if they only see him for limited periods of time supervised. They will certainly not have a meaningful relationship with him, in other words a relationship which allows him to provide them with nurture and guidance, if they only see him a few times a year for identity contact.
They will know his name and his voice and they will be able to play with him and speak to him but he will be a bit like an uncle who appears a few times a year at family gatherings. He will not be a person who is significant, important and valuable to the children.[2] He will not have a meaningful relationship with them.
[2] Mazorski & Albright (2007) 37 FamLR 518
It has to be asked though whether the children are going to have a meaningful relationship with the father if I make an order that they spend regular unsupervised time with him.
[X]’s relationship with the father is currently poor. Everything suggests that if I order today that [X] go off and spend regular unsupervised time with the father it might lead to a deterioration in [X]’s relationship with the father, not an improvement in it.
[Y]’s relationship with the father is different. If I ordered regular unsupervised time the father and [Y] might be able to interact successfully. However if the father engages in denigration of the mother or continues to make emotionally abusive comments in the nature of the clown shoes comment or the One Direction comment or the exclusion of [X] comments that he has made (which are actually harmful to [Y] as well as [X] because [Y] will be sitting there thinking, “Well, I’m the favoured one at the moment but when is that going to change? When am I going to be rejected?”), it might mean that in the longer term [Y] does not have a meaningful relationship with him either.
It is open to question whether regular unsupervised time will lead to these children having a meaningful relationship with their father but there is no question that they will not have a meaningful relationship with him if I simply order supervised time.
I must also consider though the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The children have been exposed to that, mainly after separation. The family consultant formed the view that [X] had been exposed to family violence to an extent prior to separation although I don’t know why [Y] would not also have been, but there have been events after separation, the verbal abuse and the vile names, to which the children have been exposed.
There is a considerable risk that the father might engage in that behaviour again once the proceedings are over.
I say that because of the 10-year history of that sort of behaviour, of the fact that the father makes few admissions about it and expresses no great remorse. He has not done a perpetrator’s course. He remains highly critical of and negative about the mother for some reason that is incomprehensible to me.
There is considerable risk of the father behaving after the proceedings are finished in a verbally abusive way and in an intimidatory way in terms of stalking and harassing the mother as she has described occurred at the Melbourne Cub Day event in 2014 and the sporting events. This is not a case where I can say that that risk has gone away.
The only thing which would prevent that occurring would be supervised time with a supervisor who listened carefully to what was said between the father and the children and who stepped in to end the time if anything negative or abusive was said.

Parental responsibility

Pursuant to s. 61DA of the Family Law Act I must apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence.
The father has engaged in family violence and the presumption does not apply.
The father sought an order for equal shared parental responsibility and I can still make that order if I consider that it would be in the children’s best interests to do so notwithstanding that the presumption does not apply and I have to consider whether I should do that.
The only possible order I could make in this case is an order that the mother has sole parental responsibility for the children.
I am satisfied that the mother genuinely feels frightened of and intimidated by the father. He has no respect for her which is evidenced by him telling the children repeatedly in that last eight months that she is preventing him seeing them. He resorts to vile verbal abuse if he gets upset and if the mother does not want to be required to discuss things with him then I will not make an order for equal shared parental responsibility.
I intend to make an order for sole parental responsibility but it will be subject to some restrictions and they are not uncommon ones, for example that the children’s surname isn’t changed and that the mother lets the father know of decisions she makes in exercise of her sole parental responsibility or if she intends to relocate.

Conclusion

I then have to decide the extremely difficult issue of the time the children should spend with the father.
The family consultant recommended that there be a return to unsupervised time and he did that fully recognising all the difficulties in this case and accepting that there had been some family violence. He placed considerable weight on the fact that the father had done a parenting after separation course and he felt that the father had learnt something from doing the course.
The fact that one month after the report was released the father decided that he wasn’t going to see the children and that he has since repeatedly told them that it is the mother’s fault that he isn’t seeing them, completely changes the landscape. It means that I cannot place weight on the recommendations in the family report.
I have to decide against that background what I am going to do and it is a particularly difficult case for me because I do not like making orders which potentially mean that children are not going to have a relationship with one of their parents.
These children are genetically connected with the father. One or other of them may look like him. They have paternal as well as maternal family. Mr J may be a good man and a good caring stepfather but he cannot replace the children’s father, not completely. He can play football with the children and he can take them to the skate park but he isn’t their father. He’s a different man.
I dislike making orders that may mean that children don’t have a relationship with a parent but this case has reached a point where I consider, with regret, that I have little option but to make an order which very likely is going to have that effect.
The significant matters in the case are these. There has been family violence and it has not been mutual partner violence as the father wants everyone to believe. There is no evidence that the mother has ever engaged in abuse or denigration of the father.
The father has committed acts of family violence. He has intimidated and sought to interfere in the mother’s life on numerous occasions since separation. His behaviour toward the mother and the children isn’t likely to change and I say that because by ceasing to spend time with the children and then telling them it’s the mother’s fault he is not seeing them, he has really just switched the form of abuse and kept the mother and children under pressure for months and months and months.
The evidence suggests, and the father’s evidence as well as the mother’s evidence suggests this, that [X] has had enough. He does not want to keep getting pushed and pulled around emotionally. He has had enough and he does not want to continue to see the father. I cannot separate the siblings and then make an order that [Y] spend time with the children in the absence of [X]. That would be destructive of their sibling relationship. It would be emotionally unkind to [Y] as well as [X].
I cannot, in this particular case, consider making an order for the children to spend unsupervised time with the father because there is an unacceptable risk that if the children spend unsupervised time with the father, he will make comments to the children which are abusive of the mother or which are openly or subtly critical of her and which diminish her as a valuable parent in the children’s eyes and that will cause untold harm for the children.
The children will be harmed if they are exposed to denigration, abuse and criticism of their mother. They may be harmed in any number of ways. They might copy the father and behave in the same way; they might do the same thing in adulthood; they might simply become depressed and anxious, but there are no good outcomes if the father behaves in that way and if I send these children off to spend unsupervised time with the father there is an unacceptably high risk of that happening.
The family consultant recommended a return to unsupervised time but he said as follows in respect of [X]:
An analysis of [X]’s needs is that he would benefit from time spent with his father, as long as it is an emotionally protective environment absolutely free from denigration of either parent and free from any parental conflict.[3]
[3] Family Report paragraph 98
I cannot be satisfied the father can provide that environment. There is no foreseeable likelihood of the father changing his attitude to the mother or amending his behaviour.
I then have to decide what to do.
The mother did not seek a no-time order and I would be somewhat reluctant to make one as I think I made that clear enough during the hearing, but the order proposed by the mother that time be at her discretion is in my view an inherently destructive order because (a) it gives the father ammunition to continue to blame the mother for him not seeing the children and (b) it would mean that she would have to deal with requests by the father to spend time with the children and they may be numerous and they may be very difficult to deal with.
That sort of order is not a solution to the matter. Something needs to be done so that some time is ordered, and it would have to be supervised time at the moment, where the mother cannot decide whether it occurs or not. It is simply ordered by the court.
I intend to make an order that the father spend supervised time with the children once each second month, and I will fix a day of the month, and it is to be supervised by an organisation such as Big Brown House or Rekonnect.
The father can afford to pay for that if he wishes. It will not be for the mother to decide whether she agrees with it or not; it will be the order. I will make a provision that if the father is going to exercise that time he must give the mother seven days’ notice of his intention for it to occur.
The purpose of the supervision will be to ensure that the father does not criticise or denigrate the mother to or in the children’s hearing, or act in an emotionally abusive way to them, and I will put that purpose in the order so that the supervisor is aware of the reason why the supervision has been ordered.
The father can afford that if he wants to. He can avail himself of it if wants to but if he does not it is his decision.
I am very conflicted about what to do with the issue of telephone communication because it has obviously been used as a vehicle to criticise the mother and try to diminish her in the children’s eyes and in those circumstances, I simply cannot make an order for continuation of the telephone communication.
The mother sought an order that the father not be able to attend the children’s sporting events or extra curricula activities. [X] is a keen (sport omitted) so it is a bit of an issue if I make that order because I am sure the father will regret not being able to see his son play sport. However, given the evidence about the harassment, I feel it is necessary to make that order at the moment.
It is always regrettable if matters have to keep coming back and back to court. No judge likes to have matters come back before them and it is bad for children and adults if matters have to come back to court, but sometimes they do, and this may be a matter where that has to happen and I say that for this reason. I have made some findings about family violence; I have made some findings about my concerns in relation to the father’s behaviour to the children and his lack of empathy for them; and I have made some orders as a result, but it could be that at the end of this process the father will have a good hard look at the situation and decide that rather than blaming the mother for what has happened, which is what he has been doing for the past 10 years on the appearance of it, he will have a good look at his life and his attitudes and try and do something about it.
If at some point in the future, maybe in a year or two, the father is able to produce some evidence that his attitudes have changed, that he is different, then there is no reason why he could not bring another application.
I have made an order for long-term supervised time. It is not an ideal kind of order to make. Supervised time often is not viable in the longer term. In this particular case I cannot see that I have any other option but to do that but it might be that the father will decide that he is going to make some changes and will develop some insight and in that case, for his sons’ sakes, the court would be willing then to reconsider the situation and have another look at it. However, in the light of the findings that I have made in what I consider to be a very difficult case I cannot see that making any other orders are open to me.

I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 27 January 2017

[2017] FCCA 127

11 January 2017

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction

Remedies

Duty of Care

Negligence