BEASLEY & BEASLEY (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEASLEY & BEASLEY (No.2)

[2020] FCCA 3233

Catchwords:
FAMILY LAW – Parenting – best interests of children – Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Applicant:

MS BEASLEY

Respondent:

MR BEASLEY

File Number:

PAC 3250 of 2015

Judgment of:

Judge Newbrun

Hearing dates:

6, 7, 8 and 9 October 2020

Date of Last Submission:

9 October 2020

Delivered at:

Parramatta

Delivered on:

26 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Strik of Counsel

Solicitors for the Applicant:

Mark Whelan Lawyer

Counsel for the Respondent:

Mr Hill of Counsel

Solicitors for the Respondent:	Jacqui Griffin Mobile Solicitor
Counsel for the Independent Children’s Lawyer:	Ms McConaghy of Counsel
Solicitors for the Independent Children’s Lawyer:	Legal Aid NSW Bankstown Family Law

ORDERS

That the children X born in 2006 and Y born in 2008 (“the children”) live with the Mother.
That the Mother have sole parental responsibility for the children.
That the children spend time with and communicate with the Father in accordance with their wishes.
That the Mother at all times ensure that:
(a)The children have access to their father’s contact details including his phone number and email address;
(b)The children are encouraged to contact their father and to make arrangements to spend time with him if they wish to do so;
(c)Any letters or cards sent to the children by the Father are provided to the children, and that the children are encouraged to read and respond to them.
That the parties are each to keep the other advised of their current postal address, contact telephone number and email address.
All communication between the parties is to be in writing, and is to be conducted in a respectful, businesslike matter and relate solely to arrangements for the care of the children.
That the Mother is to keep the Father advised at all times of the following:
(a)The names and contact details of the schools at which each of the children are enrolled, and the Mother is to provide a copy of these orders to any such school to be placed on the children’s files;
(b)The nature of any serious health condition affecting either of the children and the names and contact details of any health professionals who are providing treatment to either of the children.
The Father is hereby authorised to:
(a)Contact the children’s schools to obtain information about the children’s progress and to arrange to receive copies of the children’s school reports, newsletters and other documents generally provided to parents;
(b)Speak directly with the children’s health care providers to obtain information about any treatment received by the children, and the nature of any health conditions suffered by them.
That the parties are each restrained from denigrating, criticising or otherwise speaking negatively about the other parent in the presence or hearing of the children.
That the Father is restrained from attending the Mother’s home and/or the Mother’s workplace and/or any school attended by the children without the prior written consent of the Mother.
The Mother is authorised to apply for and receive an Australian passport for the children without obtaining written consent of the Father.

IT IS NOTED that publication of this judgment under the pseudonym Beasley & Beasley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3250 of 2015

MS BEASLEY

Applicant

And

MR BEASLEY

Respondent

REASONS FOR JUDGMENT

Introduction

This final parenting hearing relates to the children X born in 2006 and Y born in 2008 (“the children”).

Proposals

The Mother’s proposals were set out in her Amended Initiating Application filed 16 March 2020.
The Father’s proposals were set out in his Further Amended Response filed 29 September 2020.
The ICL’s proposals were set out in her proposed Minute of Orders being Annexure A to her Final Submissions.
The Mother relied upon the following documents:
a)Her Affidavit filed 16 March 2020;
b)Affidavit of Mr B, the Mother’s partner, filed 13 March 2019;
c)Affidavit of Ms C, the maternal grandmother, filed 13 March 2019; and
d)Family Report of Mr D.
The Father relied upon the following documents:
a)Further Amended Response filed 29 September 2020;
b)Affidavit of Father filed 18 March 2019;
c)Affidavit of Father filed 29 September 2020;
d)Child Dispute Conference Memorandum dated 2 February 2016;
e)Child Inclusive Conference Memorandum dated 17 March 2016; and
f)Family Report of Mr D dated 19 December 2016.
The ICL relied upon the following documents:
a)Case Outline dated 30 September 2020;
b)Final Submissions document dated 9 October 2020.
The following Exhibits were admitted into evidence:
a)Exhibit A: ICL’s Tender Bundle;
b)Exhibit B: Family Report of Mr D; Child Inclusive Conference Memorandum of Ms E; Child Inclusive Conference Memorandum of Mr F;
c)Exhibit C: Bank Records;
d)Exhibit D: One page document screenshot of text message from Mother’s phone;
e)Exhibit E: CCTV Footage USB;
f)Exhibit F: ICL Supplementary Tender Bundle; and
g)Exhibit G: Tender Bundle of Applicant Mother.

Credit

The Mother and her witnesses were satisfactory witnesses, and the Court found them to be witnesses of truth.
The Father, whilst occasionally making admissions against interest, such as relating to his mental health and illicit drug use, was otherwise often an unsatisfactory witness. He was at times argumentative and evasive. There was an underlying hostility evident in the Father’s oral evidence. Where the Father’s evidence is in conflict with independent third-party objective documentation in evidence (for example, see the ICL’s Tender Bundle, Exhibit A, and the Mother’s Tender Bundle, Exhibit G) the Court prefers such latter third-party objective documentation. Where the Father’s evidence is in conflict with the Mother’s evidence, the Court prefers the Mother’s evidence.

Evidence

The Mother is aged 36 years. The Father is aged 37 years.
The Mother works as a tradesperson. She operates her own business.
The Father, in the past, has worked as a casual labourer. He now asserts that his occupation is business owner.
The parties’ relationship commenced in about 2005.
From about April 2012 until about September 2012, the parties temporarily separated. The children lived alone with the Mother. The Father did not spend time with the children or contact them during this period.
The Father returned to the family home in September 2012. At this time, the Father threatened the Mother and hit her.
During October to December 2012, the Father alternated living between Brisbane and Sydney and spending increasing amounts of time in Brisbane. The Father wanted to move to Brisbane for a better life and “to clean myself up”. The children were very distressed when the Father would leave the family home and they would cry and beg him not to go.
The parties separated on a final basis in about April 2013. In April 2013, the Father asked the Mother to take him back but the Mother refused. The Father became enraged and chased the Mother around the house. The Father grabbed the Mother and grabbed her mobile phone out of her hand. The Mother broke free and ran out of the home screaming for help. Later the Mother requested the Father to move out of the family home. He did so and flew back to Brisbane.
The Father perpetrated family violence against the Mother on 17 May 2013 at the Mother’s home. The Father, inter alia, had locked the Mother and others in the home. The Father had assaulted the Mother. After this violence, the Mother was terrified to disobey the Father.
On about 11 June 2013, the Father came to the family home. The Father locked the Mother in a wardrobe for almost 5 hours. She was screaming from inside a wardrobe. The Father verbally abused the Mother in front of the eldest child. When the Mother was released from the wardrobe the Father physically assaulted her, and this occurred in front of the eldest child.
The Father continued to threaten the Mother after the separation. Between about July 2013 and July 2014, on about a monthly basis, the Mother took the children to Queensland to visit the Father. The Father had threatened the Mother if she did not bring the children to see the Father in Queensland. At Christmas 2013, the Father telephoned the Mother and said, “You are to bring the boys to see me in Queensland or else.” The Mother felt that her life was at risk if she did not obey the Father. The Mother supervised the children’s time with the Father except for one or two occasions. The Father sexually assaulted the Mother in about August 2013. He also physically abused her at this time.
In 2014, a child G was born to the relationship of the Father and his partner Ms H.
In about July 2014, when the Mother took the children to Queensland to see the Father, the parties had an altercation and the Father threatened the Mother stating, “you are never going to see your children again” which was stated in the presence of the children. The Father left the house with the children and did not return with them until the following day. After this incident, the Mother decided never to take the children back to Queensland. She permitted the Father to speak to the children on the telephone, and she arranged for the children to see a psychologist.
In September 2014, the Father began attending upon a doctor on a regular basis for assistance in counselling for “my anxiety and mood disorder which emerged as a direct result of my lack of contact with my children”. In about November 2014, the Father also began attending upon a psychologist for further assistance to manage his anxiety. The Father engaged in six sessions of cognitive behavioural therapy.
In late November 2014 to about June 2015, on about six occasions, the children were seen by the Father, on a supervised basis at their school, but not in the presence of the Mother.
The Mother commenced proceedings in this Court on 2 July 2015.
The Father had a consultation with a psychiatrist, Dr J, on 10 November 2016. The Father told this doctor that following sustaining an injury to his ankle he was unable to train for a period of about 12 months. He had suffered this injury following the death of his mother. During this 12 month period, he was prescribed strong painkillers. He stated to the doctor that as he recovered from his injury, he went off the rails. He stated that from 2010 to 2011, he misused his prescribed medication. He also used illicit drugs including GHB, and Methamphetamine. He stated that he went out partying and got into trouble, and was charged with assault. He stated that no conviction was recorded and he was not remanded in jail. He stated that after leaving school, he used cannabis and ecstasy regularly.
The Father did not spend time with the children from about mid-2015 until June 2017.
The Court made interim parenting orders for the children to spend supervised time with the Father on 17 February 2017. Thereafter, the children spent supervised time with the Father between June 2017 and about November 2017 on about 4 occasions.
On 4 June 2017, after the Mother had dropped the children off at the contact centre for the first supervised visit with the Father, she was confronted by a man in a white four-wheel-drive. He threatened the Mother using words to the effect, “Why did you let it come to this point, Mr Beasley has every right to see his kids. You’re playing with the wrong people. You’re playing with fire. You better watch your back.” The Mother felt scared. The Mother informed the contact centre of this occurrence.
On about 29 April 2017 at about 6 AM, a man banged on the Mother’s front door. The Mother observed this man walk away and enter a motor vehicle. The Father was seated in the driver’s seat. The Mother contacted the police. The children were very scared at this time.
In 2017, the child K was born to the relationship of the Father and his partner Ms H.
On 23 November 2018, the Mother had numerous phone calls from a private number on her business landline. Upon answering, the caller would stay on the line in silence and hang up after 10 seconds. The calls occurred between 2 PM and 4 PM. The Mother then answered a call on her mobile phone, which was a new number that only a limited number of people had. The Father announced himself on this call and confirmed all the previous calls to her landline were from him. The Mother told the Father that he was not to call her shop or her mobile phone again. The Mother then hung up the phone. The Mother finished worked at 9 PM and went to the Suburb L police station and gave her version of events of the day.
On 6 July 2019 at about 2 PM, a man of Pacific Islander appearance, entered the Mother’s business, wearing black track pants, black long sleeved hoodie with the hood over his head and a black hat. The man proceeded around the counter where he reached for the Mother’s till and said he was going to take the Mother’s money. He then walked towards the Mother saying, “I’m here to pass a message.” He stated, “Your kids are my-they’re my kids too.” He stated, “Tell your boyfriend he’s a fuckin dog.” The man threw the Mother’s phone at the floor smashing it. He stated, “You took, you took the kids away from my father – my, my, my mate”. The man then proceeded to leave, and on the way out knocked everything off the Mother’s front desk including a laptop computer which was smashed. Since that day, the Mother feels scared going to work and it has made her very anxious watching everybody who enters her shop. The Mother called the police to whom she surrendered CCTV footage of the incident and which contained audio as well.
The Father has not made an appointment to spend supervised time with the children since about November 2017.
The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother stated that the children were going well at school. They were average students and had no problems.
The Mother confirmed, in relation to her past use of illicit drugs, that she had occasionally taken drugs with the Father to keep the peace. She stated that the Father was controlling, and that he wanted the Mother to take drugs to have longer sexual intercourse; the Mother stated that to face her fears, she took the drugs.
The Mother stated that the only reason she took the children to see the Father, which was every month or so up until July 2014, was because she was fearful of the Father who wanted to see the children. The Mother stated that she took the children to Queensland to see the Father about ten times up until about July 2014.
The Mother confirmed that she had attended upon the police in Sydney on about 12 September 2014 and told them that she was only fearful that the Father would take her children.
The Mother stated that most of the time (during the relationship) she apportioned the blame of arguments with the Father to herself out of fear. She stated that the Father was controlling and that she had agreed to a lot of things (with the Father) so as to end the argument.
The Mother stated that, in relation to the children’s statements to the family consultant Mr F on 17 March 2016, that the children had painted their own picture of the Father by reference to what they saw. The Mother stated that she did not have to manipulate the children in any way.
The Mother stated that she does not say anything negative about the Father to the children.
The Mother stated that the children had had consultations with a psychologist in 2014. They attended consultations for about 1.5 years. The purpose of the consultations was to help the children overcome their fears.
The Mother was cross-examined by the ICL.
The Mother stated that she maintained her view expressed to the Family Report writer that the Father was an inappropriate parent, who was violent and drug addicted. She confirmed that the children remain frightened of the Father and did not want to see him.
The Mother stated that the Father pays about $30 per fortnight for the children in child support, but not always. This has been paid since about 2016.
In relation to the incident of 6 July 2019 when a man entered the Mother’s business, the Mother stated that she felt threatened at the time. She felt that the man was providing a message from the Father relating to the children.
The Mother’s partner, Mr B, gave evidence.
On 22 July 2018, he accompanied the child Y to a football game. This child, at the ground, ran to him crying telling him that the Father was present at the ground. The Father was present with another man. At one point the other man began to question Mr B. He questioned his ethnicity and what area he was from. The other man began to describe the Mother using profanity and blaming her for the current family situation. The Father approached the child who appeared stiff as the Father lifted him up off the ground. He put him down and spoke into his ear. After the game, Mr B, with the child, proceeded to drive home. The Father and the other man followed Mr B’s car in their own vehicle. At one point, the vehicle that the Father was a passenger in came adjacent to Mr B’s car and signalled him to pull over. A short time later the Father signalled for Mr B to put his window down. The Father aggressively asked why Mr B was speeding with his son in the car. The Father was asked why he was following them and that he was scaring the child. The Father told Mr B that he wanted him to pull into McDonald’s so that he could buy the child some food. This request was declined. Mr B gave the Father his business card through the window of his car and told the Father to book an appointment to see the children. Later that day the Father called Mr B. The Father spoke poorly of the Mother. The Father asked to speak to the child Y. Following a lot of encouragement, this child spoke to the Father on the phone although he was very hesitant. He seemed quite stiff while he was holding the phone, similar to how he was in the park in the Father’s presence. He held Mr B’s arm through the whole conversation. His answers were minimal and monosyllabic.
Thereafter, the Father spoke to Mr B on several occasions over the next few weeks/months. The Father sought to spend time with the children. Mr B told the Father to book an appointment (for a supervised visit). Mr B spoke to the children about the Father. On one occasion they told him that they did not want to speak about the Father at all. On another occasion they told him that they remembered that the Father was angry all the time and always shouting.
On 9 March 2019, the Father telephoned Mr B at about 2 AM, when Mr B was asleep. The Father asked whether he was sleeping next to the children. Mr B asked the Father, “do you have any idea what time it is?”. The Father responded, “I don’t give a fuck what time it is, are you sleeping next to my kids?” Mr B ended the call and his phone continued to ring another two times which he did not answer.
Mr B gave oral evidence. The Court does not propose to set out the entirety of such evidence.
He stated that the child, M, now two months old, is a child of his relationship to the Mother.
Mr B stated that in his view it was not in the best interests of the children to have a relationship with the Father because it was against their wishes. In this regard, the Father having made allegations that the Mother had brainwashed the children against the Father, he had talked to the children to ascertain why they didn’t want to spend time with the Father. The children had related to him instances of things that had really upset them including the Father shouting and hitting the Mother.

The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Father gave his occupation as a tradesman.
The Father was initially cross-examined by counsel for the Mother.
The Father stated that he could not afford to continue to pay for supervised time with the children. In this regard, he referred to the travel costs to and from Queensland, and that he has two children to support.
The Father initially stated that his mental health was perfect. He then stated that not seeing the children affected his mental health.
The Father stated that on occasion he stayed with friends that he had in Sydney when he came down to Sydney to spend supervised time with the children. In this regard he gave the names of four men. He stated that these friends had assisted him in getting to Suburb N (for the supervised time).
The father stated that prior to COVID he had 22 men working with him. He stated his business was successful at this time. He stated that he has a utility vehicle in his company’s name together with a luxury motor vehicle in his company’s name. He stated that there are loans against those vehicles. He stated that there was enough income in the business to cover those loans. He stated that he pays $40 child support and that his accountant “does that”. He stated that he pays his accountant.
The Father stated that he presently uses steroids which are prescribed for him by a doctor.
The Father agreed that he had used illegal drugs in previous years.
The Father stated that he uses Valium, Xanax and GHB. He stated that he uses methamphetamine and that he last used it a few months ago. He stated that he would like to stop using methamphetamine, and that “maybe I’m a bit mentally at a discomfort because I don’t see the children.”
The Father was cross-examined in relation to his capacity to speak to the Mother. He stated that he can be friendly with the Mother over the telephone. He stated that he can intimidate the Mother over the telephone but so can the Mother.
The Father stated that he does not need to do a parenting course or program. He stated he has no intention of doing any parenting course because he knows how to be a parent. In this context, he stated that he has two children and they were fine.
The Father stated that he has anger issues because of the children. He later stated that he did not accept that he had any anger management issues today. The Father stated that every household screams, argues and there is aggression.
The Father stated that he was previously in a bikie gang. He stated that he joined this gang in 2005. He stated that he left the gang in 2007.
The Father stated that he trains twice each day.
The Father acknowledged that he was pulled over by the police on 19 February 2020 driving a Motor Vehicle 1. The Father stated that he “took the charge” (the Court interpolates here that the charge related to possessing dangerous drugs being steroids) and was fined $330.
The Father was asked if he denied that he had ever threatened the Mother. He replied by stating, “probably here and there but the Mother also has.” The Father was asked whether he had done so out of anger, to which the Father replied that it was the “same on the other foot”.
The Father was cross-examined by counsel for the ICL.
The Father agreed that he had been charged on 19 February 2020 with possessing dangerous drugs.
The Father agreed that in about January 2011 he had known a supplier of illegal drugs.
The Father agreed that in 2010/2011, it was a difficult time for him with drugs as he had lost his Mother. He agreed that he had used drugs at that time. In this context, he stated that from August 2010 to January 2011 he was on codeine, morphine, and that he could not take illicit drugs.
The Father stated that he uses drugs but not every day. He stated that he goes to the gym twice per day.
The Father agreed that during the relationship there was occasion when the child X had tried to calm him and the Mother down.
The Father stated that he does have mental health problems regarding him not being able to see the children. The Father stated that he has seen psychiatrists regarding him not seeing the children. He stated that he had last seen a psychiatrist maybe three or four years ago. He stated that he had last seen a psychologist years ago when he was in Queensland, again, relating to not seeing the children.
The Father’s attention was drawn to page 50 of Exhibit A, being a document relating to an Australian Government Job Seeker interview in 2015 with the Father; the document referred to the Father stating that he really needs to engage with a psychiatrist due to his complex mental health issues. The Father was asked whether he had complex mental health issues (at this time) to which the Father responded, again, that he had such issues relating to him not spending time with the children.
The Father stated that he suffers from depression as he cannot see the children. He stated that he is mentally unstable because he does not see the children.
The Father was asked how he behaves when he is mentally unstable. The Father stated that he trains and goes to the gym, and the beach. He stated that he finds things to make him better.
The Father’s attention was drawn to the report of psychiatrist Dr O dated 17 February 2015 which had stated, inter alia, that the Father had described long-standing pattern of difficulty controlling his anger with associated periods of aggression. The Father was asked whether he saw this doctor in relation to difficulties controlling his anger, to which the Father responded that he saw her for his problems in not seeing the children.
The Father acknowledged getting upset in not seeing the children. He stated that he is upset and he gets anxious. He referred to suffering a bit of anger. He stated that he just wants to see the children and that he does suffer depression.
It was put to the Father that he had not complied with a drug test request by the ICL on 30 September 2020, to which the Father replied that he was unwell.
It was put to the Father that the children do not want to spend time with him, and the Father was asked whether he accepted any responsibility for that, to which the Father replied in the negative.
The maternal grandmother gave evidence.
The maternal grandmother is aged 62 years. She works as an allied health worker. She assists the Mother in the care of the children. For example, she often assists the Mother in picking up the children from school.
The maternal grandmother states that the Mother works very hard, operating her business, providing for and supporting the children to the best of her ability.
She referred to the Mother and the Father living in her house in 2009 to mid-2010. During this time, the maternal grandmother observed the Mother always seemed quiet, scared and anxious and she (the Mother) made sure she was entirely subservient to the Father.
The maternal grandmother states that she had an argument on one occasion with the Father. It related to her son providing electrical services to the parties. The Father became agitated and lost his temper. He began to throw food the maternal grandmother was cooking all over the kitchen including the ceiling. He then began kicking furniture around. This incident occurred in the immediate presence of the children who are both very scared.
The maternal grandmother observed the children were sad and scared of the Father because he argued with the Mother, family and friends.
The maternal grandmother has seen a huge difference in the Mother, and the children over the past years. She refers to them having love and support from herself and her husband, her other children, Mr B as well as other family and friends.
The maternal grandmother has a good relationship with the children.

The Child Inclusive Conference on 17 March 2016

The Mother reported that both children had been treated by clinicians at a psychological practice, P Counselling, for anxiety. She stated that the eldest child’s symptoms have been more severe than the younger child’s. The Mother related the children’s anxiety to their exposure to family violence.
X was asked whether he sees the Father. He stated that he didn’t. He stated that he felt a bit happy about this because every time he speaks to the Father he feels scared. X became a little tearful at this time. The child told the family consultant that he had seen the Father hit the Mother. He stated that the Father had pulled some of the Mother’s hair out. He referred to the Father screaming at the Mother on another occasion. He stated that he likes that his school keeps him safe. The child stated that he did not like that the Father used to come to his school to see him. He stated that each time the phone rang in class he would think it was to request that he comes to the office to see the Father. He indicated that this worry made it hard for him to concentrate at school. He clarified that this had occurred when he was in Year 4 but had not occurred this year.
When Y was asked by the family consultant how he felt about not seeing the Father, he said “happy” and explained because the Father always “hits us or he shouts at us.” He referred to the Father always beginning to shout at the Mother.
The family consultant stated, inter alia, that both children indicated fears or concerns about their safety with the Father which might reflect exposure to family violence instigated by him.

The Family Report

The Family Report of Mr D is dated 2 November 2017. He conducted interviews with the parties and children on 23 October 2017.
The Mother was asked why she had taken the children to visit the Father in Queensland on a number of occasions after separation. The Mother reiterated that she felt too afraid not to.
The Father volunteered having been charged with a drug-related offence in 2011, stating he was fined on that occasion.
The Father stated that he has not used illicit substances for several years.
The Father stated that he suffered depression after the death of his Mother in 2010 and for a time briefly attended a psychiatrist and/or psychologist. He had sought further counselling a few times when he was not seeing the children. He stated he did not consider he still suffers depression, stating he feels stable of mood and does not take any medications.
The Father stated that he attended a few counselling sessions dealing with anger management. He told the Family Report writer that he stopped because he never had an anger problem and he felt under no obligation to continue counselling.
The Mother told the Family Report writer that she had experienced depression associated with the Father’s behaviour towards her. For a time she attended counselling and took X and Y to a children’s counsellor. She stated she feels emotionally well now and only becomes anxious when she has to take the children to the contact centre. She described the boys as sharing similar apprehension each time they have to see the Father.
The Father stated that the parties’ domestic arguments had been mutual and did not involve physical conflict.
The Father reported commencing taking drugs around the age of 16, mentioning he used to have a cannabis habit.
When asked if he had completed any parenting programs, the Father replied that he does not need to as he knows how to parent. He referred to his new family and how happy they are.
The Father repeated to the Family Report writer his wish to remain in the boys’ lives and provide a strong male role model.
The Family Report writer stated that overall the Father presented as generally motivated to foster long-term relationships with the children but was limited in appreciating the probable emotional dilemma of the children being caught between the ongoing parental conflict. To that extent, the Family Report writer stated that the Father arguably lacked strong child focus.
The Mother told the Family Report writer that she took the children to visit the Father in Queensland after the separation because the Father demanded she do so.
The Mother told the Family Report writer that the children constantly tell her that they are afraid of the Father and do not wish to see him. The Mother considered that this fear sprang from their witnessing the Father’s alleged violence towards her during the marriage and an incident in Queensland when the Father removed the children for 24 hours.
The Mother said the children reported to her that yesterday the Father had whispered that if they did not tell the Mother that they wanted to see the Father, he would not buy them new football jumpers. The Mother stated that she had reported the alleged comments to the contact centre.
The Family Report writer stated that it seemed impossible for the Mother to say anything positive about the Father. Her comments about the Father’s parenting were very negative and tended to reflect her recollection of the conflicted marriage. The Mother reported ongoing anxiety about the Father. The Mother instanced a past occasion when the Father visited her home unannounced and stated that she worries about this re-occurring. She thought that the children also feared this. She stated that the children’s anxiety only surfaced at the time of coming into contact with the Father.
The Mother repeated her concerns about the Father’s illicit substance use.
The children were interviewed by the Family Report writer together.
The children remembered an occasion when the Father locked the Mother in the bathroom during a heated argument. They stated that they both cried and were sad for the Mother at that time.
The children also mentioned the incident in Queensland, perceiving the Father to have been angry and at fault. They had been afraid when the Father came to their house unannounced, fearing he might take them away from the Mother.
The children perceive that the Mother is concerned for their safety but had told them that it was up to them if they wish to see the Father or not.
When asked about the contact periods thus far, neither child reported enjoying them. X mentioned the Father’s alleged whispered comments yesterday about football jumpers, and claimed the Father frequently whispers things to him out of earshot of the supervisors.
X also criticised the Father for talking about G, perceiving that this shows he is more interested in her than him (G was born in 2014 from the relationship between the Father and his new partner Ms H).
The children stated that they do not want to have contact with the Father. They could not think of anything the Father could do to change their minds. X was the more verbal and outspoken boy, Y tending to support his comments.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that according to the Father the parties’ domestic arguments were non-physical and mutually instigated.
The Family Report writer stated that it seemed clear that the children’s attachments are with the Mother and are quite strained with the Father.
The Mother presented as a highly anxious person, especially when discussing the Father. The Mother expressed a lack of trust in the Father’s motives and parenting capacity, claiming the children would be exposed to considerable risk should their contact with the Father be unsupervised.
The Family Report writer stated that despite the Father’s prediction that the children’s feeling of some reticence towards him would quickly dissipate once they spent greater time with him, one remains most hesitant at this stage to recommend beyond the current supervised arrangements. The Family Report writer stated that the children do not seem to share secure attachment with the Father and he appears to struggle with engaging them spontaneously. The Family Report writer stated that his reading of the subpoenaed contact centre notes confirmed this impression.
The Family Report writer reiterated that the Father had declined to attend parenting courses. The Family Report writer stated that until the children gain greater confidence in the Father, the children would seem likely to continue to reject him.
The Family Report writer stated that one cannot support the Father’s proposal for the immediate introduction of unsupervised time, which would necessitate the children travelling interstate. He stated that should that occur it is thought that the children would actively resist and the Mother’s anxiety intensify, thus further influencing their perceptions of the Father. Also, prior to any stays at the Father’s home it would seem essential for the children to have built some sort of relationship with their siblings and the Father’s partner.
The Family Report writer stated that neither was it possible to recommend the Mother’s proposal for nil contact to occur. He stated that the Father appears motivated to remain involved with the children, and although this was not supported by the other parent, it was thought that the children would benefit in the longer term from an ongoing relationship with him. He stated that during the observed session the children seemed uncomfortable and reluctant to engage with the Father but were not totally rejecting of him. He stated that with more time and greater consistency it was considered that the relationships should improve.
Under the heading “Recommendations”, the Family Report writer stated, inter alia, that equal shared parental responsibility did not appear feasible given the poor ongoing parental relationship, their lack of communication and the distance factor.
It was recommended that the current interim arrangements be maintained until such time as there is improvement in the children’s perceptions of the Father and greater willingness to engage. This should be monitored by the contact centre.
It was recommended that the Father complete a parenting program particularly targeted to fathers.
It was considered that the children could be assisted by attending counselling with a therapist experienced with separated families. The aim would be to encourage the children’s developing relationships with the Father, while seeking to lessen the Mother’s anxiety.
The Family Report writer stated that at this stage it was not possible to recommend a timeframe for the introduction of unsupervised or overnight visitation, as that would depend on the progress of the supervised contact and the children’s motivation to share such occasions with the Father. However, if feasible, it would seem beneficial for the children to be introduced to their half siblings, once the contact centre deems it appropriate.
Finally, it was recommended that both parents be compelled to refrain from discussing one another with the children.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence. The Court observes that the family report writer, when giving his oral evidence, stressed that certain recommendations contained in his family report were now outdated in light of the passage of time since the family report interviews and his consideration of updated information provided to him by the parties and ICL just prior to his oral evidence.
The family report writer stated that the Father had not disclosed to him at interview various admissions to hospital in 2015, and nor did he disclose, in relation to his history of mental health issues, the extent of such issues raised in the third-party documentary evidence before the Court (for example, Exhibit A, the ICL’s Tender Bundle).
The family report writer stated that if somebody has a significant mental health issue and it is not treated, then that is an unpredictable variable which can impact parenting.
The family report writer gave this evidence in relation to methamphetamine use and the use of anabolic steroids:
So on page 63 – so this is the admission note from the Q Hospital on 1 April 2015, the admission note. So he – Mr – the father presented as anxious, irritable, teary, remorseful and wanting help. Down the bottom on the substance abuse:
Uses methamphetamine about once a fortnight. Effects last about six hours. Never uses more than one day. When withdrawing, becomes very aggressive. No other withdrawal symptoms.
Do you know much about methamphetamine use, Mr D?   A little. Yes.
Is that a typical pattern of withdrawal that---?   It is. It is.
--- a user would become very aggressive?   Well, it can be, yes. Methamphetamine use, particularly once somebody’s coming off it or between doses if they’ve got a dependency on it, particularly – it can heighten arousal and lead to – lead to acute anxiety and agitation in mood.
Continuing:
Binges alcohol use once a week, up to half a bottle of vodka. Denies cannabis, cocaine, speed. Occasional use of anabolic steroids, only of small amounts and occasional use, hasn’t used since daughter G born.
What are some of the symptoms – what are some of the, I guess, dangers around anabolic steroid use?   Well, in – in some regards, in many regards, it’s similar to the symptoms one finds with amphetamine use. Anabolic steroids have been known to produce anger as well – as well as acute anxiety and mood swings. But the point I would make with it is, I mean, if there’s a cocktail of different drugs and banned substances being used, then one often sees the – one often sees that those interact in a pattern which actually heighten the effects of each drugs individually. So, in other words, if we’re only talking about one particular banned substance, it’s probably much easier to predict the effect than if there’s three or four being used simultaneously, and I think it would be a worry for anybody treating that in a mental health context. What they would need to do would be to isolate those different – those different drugs. So that, again, actually adds to the irritation and the reported agitation and anger that the patient or the client was having.

The family report writer stated that it was certainly possible that the Father’s mental health issues have arisen out of more complex circumstances than just the Father being unable to see the children.
The family report writer was asked whether if the Father was able to spend unsupervised time with the children his mental health problems/substance abuse problems would dissipate and he gave this evidence:
Mr D, you’ve heard his Honour in terms of his Honour’s interest or particular interest in your evidence. Are you able to comment on whether or not spending unsupervised time with the children would mean that the father’s mental health problems/substance abuse problems would dissipate if you like?---Well, given his history, I would think that that would be unlikely that they would all dissipate. He may – he may feel better in the sense that he’s no longer stressed about not seeing the children, and that might have a calming effect on him, and he may not exhibit some of the symptoms that he’s showing, but I would very, very much doubt whether the mental health issues that he has had over the last five, maybe 10 years or more – that they would completely dissipate. The other thing I would say to that would be I don’t know if it would be in the children’s interests to be put in that situation to help the father. I mean, my understanding is that we actually look at the best interests of the children, not of individual parents.
The family report writer was questioned as to the utility of up-to-date mental health evidence relating to the Father and he gave this evidence:
HIS HONOUR: Mr D, just before you – Ms McConaghy asked you any further questions, can I just clarify from you in light of that evidence you gave a moment ago following a topic that interested me – would it be of assistance, from both the court’s perspective, assessing risk in terms of the children potentially spending time with the father, and your views on this topic – would it have been of assistance to have had up-to-date mental health evidence pertaining to the father, for example, from a qualified psychologist or psychiatrist who was provided with an accurate history of the father’s emotional issues, illicit drug use and so on so that the court could be best placed to assess risk to the children?---Yes.
The family report writer was questioned as to whether he had any suspicion that the children have been coached in relation to the views of the Father and he gave this evidence:
At page – paragraph 65 of your report, you report on your interviews with the children and your interviews with the children which were conducted on 23 October 2017. They’re consistent with the counselling notes which took place at the end of 2014, aren’t they, that the children are---? That’s right.
---still scared of their father?---Yes, they are. There’s not much – there’s not really a great deal of difference in how I found the children’s reaction to how the people at the counselling sessions found them, either.
Did you have any suspicion of any coaching?---Not direct coaching, no. I didn’t – I didn’t feel the – I mean, keep in mind the children themselves were fairly consistent in what they were saying and their approach, certainly, when I observed them with the father in the observation session. Quite often, if children are being coached directly by the other parent, you will find that one will tend to do most of the talking, and it will be backed up by the other one. It’s most unusual that the children will say exactly the same thing. There was no direct evidence of that that I could see. What I did see was a general apprehension on behalf of both children regarding their father.
The family report writer was questioned as to his recommendations as to spend time-with Orders and he gave this evidence:
Having considered the evidence I’ve taken you to, do you recommend any spend-time-with orders? ---Very difficult. I knew I would be asked that. Let me answer it this way. I would now say that both boys should be – their views should be given much more weight than perhaps they would have been given three years ago simply because of age. I mean, the eldest boy will be 15 in three months time. I don’t believe – personally and professionally, I don’t believe that he should be expected to participate in contact without at least him agreeing to do so at his age. The difficulty there is, well, the younger boy – he would – if the older boy says, “No, I don’t want any contact, any direct contact, face-to-face contact, with the father at this stage,” then the difficulty is going to be, well, how – how do you manage the younger child’s contact? Is it fair to him, or is it in his interests to have that contact with the father, given the apparent anxiety up to now, without the presence of his older brother? So that’s an issue that no doubt the court will consider in due course. So I’m – I’m in two minds about that. What I would say is that if it’s decided that – and if the court decides there is going to be some direct contact between the father and the boys, I would say, basically, that – I would recommend that that be in lie with the recommendations that I made in the report. So it would happen in this state. It would happen at a contact centre. It would happen under strict supervision. But I certainly would be not recommending any unsupervised contact.
HIS HONOUR:   And why is that?---Well, I don’t believe supervised contact would be in the boys’ best interests, given the fact that there has been such a small period of – sorry, I don’t believe unsupervised contact would be in their best interests, given that the supervised contact hasn’t occurred now for a number of years and had been cut short anyway. And, presumably, the boys still don’t wish to have contact with the father in an unsupervised setting. That’s an assumption that I make, that last point. The other issue, of course, would be, I think, one of a question mark as to overall safety, given the history of the father’s mental health issues and the continuing use of banned substances.
MS McCONAGHY:   At this stage, Mr D, the mother’s case is the children should spend time and communicate with their father in accordance with their wishes. That’s also a view – a preliminary view held by the independent children’s lawyer. Do you care to comment on that option that the children spend time with and communicate with their father in accordance with their wishes?---In principle, I don’t disagree with that. I think, given their ages, that’s possibly something that I would support. I guess the only issue is who determines their wishes. I would like that to be, you know, ascertained by the ICL rather than by the mother. But if that is the case, yes, I think that that’s probably a reasonable outcome for the children and that any contact with the father that is explored should be of non-direct fashion such as emailing and the like.
Any direct – any contact should be – I’m sorry, did you say by email?   ----Well, if contact is thought – if contact is going to occur, if the court believes that there should be some contact between children and father, what I would recommend would be that that contact be of such means as emailing, given, you know, obviously the privacy issues and all of that for the mother. And if something could be worked out that there be maybe some correspondence between father and children so that they wouldn’t be completely left out of their lives, but I believe that direct face-to-face contact – really, the children should have quite a substantial say in whether, you know, that occurs or not.
The family report writer gave this evidence in relation to methamphetamine use in relation to parenting:
Okay. What – the father has two children with his new partner in Queensland – six and three at the moment; are you able just to say if – ignore all that background. What effect does methamphetamines have on parenting children?---Well, the use of methamphetamines – again, it affects a person’s ability to – well, it affects a person’s judgment and it also affects a person’s mood. So depending on the degree of use, and there are individual differences, the methamphetamines can, in fact, quite severely alter a person’s moods and, to that extent, make a person irritable, make a person have less patience with children and, therefore, affect their ability to make appropriate decisions for children. Also, of course, it would affect the person’s judgment, so that just being aware of the needs, the practical day-to-day needs of children, could be influenced by heavy use of methamphetamines. Again, one would need to take into account other variables, such as the amount of usage, the degree of usage, and the regularity of using the amphetamines.
The family report writer was questioned as to the father accepting any responsibility for the children’s reluctance to spend time with him and he gave this evidence:
I asked the father if he accepted any responsibility for the children’s views, reluctance to spend time with him, fear of him, and he said no, he didn’t accept any responsibility; is that a concern to you?---Well, it is a concern. It should be more a concern for the father, because unless he can bridge the gap between the children and himself, he is – he is affecting or limiting the prospects of improving the relationships in the near future.
The Court accepts the evidence of the Family Report writer, unless the Court indicates a different view below.

Relevant Legal Principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The children have a meaningful relationship with the Mother, she having been their primary carer since birth to date, and they would benefit from a continuance of that relationship.
The children, during the relationship, probably enjoyed meaningful relationships with the Father, however, in particular, their exposure to family violence perpetrated by the Father against the Mother, both during the relationship and post separation, has probably contributed to a fracturing of those relationships. The children do not presently have a meaningful relationship with the Father. Their last formal supervised visit with the Father was in about late October 2017.
The children may benefit from having a meaningful relationship with the Father in the future if it is physically and emotionally safe for them to do so. In this regard, the Court refers to its discussions below under need to protect primary consideration.
Should the Court order that the children spend time with and communicate with the Father in accordance with their wishes, noting their present ages at 14 and 12 (with the Court noting that X will turn 15 in 2021, and Y will turn 13 in 2021), there is some prospect that prospectively the children may wish to commence spending time with the Father if it is assessed, in particular, that it will be safe for them to do so.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Father perpetrated family violence, including significant physical and verbal abuse, against the Mother, both during the relationship and following the separation. He also perpetrated family violence against the Mother during such periods of a coercive and controlling nature. The Court accepts the Mother’s evidence in this context, including the Mother being fearful of the Father and compliant with his demands in the face of threats to her by the Father. On occasion, the Father’s physical and verbal abuse of the Mother occurred in the presence of the children, and the children became scared of the Father. The Father lacks insight into this past family violence, and in particular, he lacks insight as to the emotionally damaging effects upon the children of such violence having been witnessed by them.
The Court finds, on the balance of probabilities, that the Father engaged male persons, on his behalf, to confront and threaten the Mother in relation to the children; in this regard, the Court refers to the incident on 29 April 2017 at the Mother’s front door, the incident outside the contact centre on 4 June 2017, and the incident on 6 July 2019 at the Mother’s business.
The Father, on the balance of probabilities, has unmanaged adverse mental health issues. He has experienced significant mental health issues for a significant period of time and going back to his teenage days. The Court, inter alia, refers to and accepts the mental health related histories given by the Father to various health professional practitioners, contained within the treatment and other records pertaining to the Father in Exhibits A and G. (The Court should state that it does not accept the Father’s mental health and illicit drug use history, in relation to the period from about 2012 to November 2016, provided to psychiatrist Dr J on 10 November 2016). There is no significant up-to-date health professional evidence before the Court relating to the Father’s mental health. The health professional material pertaining to the Father within the above exhibits suggest the Father may have been previously suffering from anxiety, chronic depression, bipolar affective disorder, polysubstance abuse clouded by past substance abuse and steroid use, anger issues, and antisocial personality vulnerabilities.
During the parties’ relationship, the Father ingested illicit drugs. Post separation the Father has ingested illicit drugs and he continues to ingest illicit drugs, including methamphetamine. The Father did not comply with a drug test request by the ICL made on 30 September 2020. The Court accepts the Mother’s and the Family Report writer’s evidence in relation to illicit drug use, including the latter’s evidence of the risk of anger being exacerbated by illicit drug use.
The Father, historically, has experienced significant anger management problems. It is likely that the Father continues to have unmanaged anger management problems and that a contributing cause of these problems is his not seeing the children.
There is an unacceptable risk of the children being exposed to family violence and/or psychological harm if spending unsupervised time with the Father, by reason of the Father’s unmanaged mental health issues, anger management issues, and illicit drug use.
As to the Father’s proposals for telephone and/or Skype or FaceTime contact with the children, should the Court make such order, there is a significant risk that the children would experience emotional harm in being required to have such contact with the Father against their wishes. The ICL’s proposed Order 4 providing, inter alia, that the Mother at all times ensure that the children are encouraged to contact the Father and make arrangements to spend time with him if they wish to do so, will best facilitate the children potentially seeking to make contact with the Father when they feel emotionally comfortable and ready to do so.
The Court should state that even supervised time between the children and the Father would carry the significant risk that the children would experience emotional harm in being required to spend such time with the Father. It will not be in the best interests of the children to make such an order. The Court observes, in this context, that the Father chose not to continue with supervised time after his last supervised visit with the children in about late October 2017.
The Court gives significant weight to this need to protect primary consideration

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child X is now aged 14 years and he will turn 15 years in 2021. The child Y is now aged 12 years and he will turn 13 years in 2021.
The children do not want to spend time with the Father. They remain fearful of spending time with the Father. This has been the case for a not insignificant period of time. The Court finds that the children’s views in this regard are significantly based upon their own life experiences of witnessing family violence perpetrated by the Father against the Mother.
In the above circumstances, the Court would give significant weight to the children’s views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The children enjoy positive relationships with their grandparents.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The Mother has taken such opportunities.
The Father chose to relocate to Queensland making it practically more difficult to spend time with the children. He coerced the Mother to bring the children to Queensland for a certain period. He chose not to continue to spend supervised time with the children after his last supervised visit with them in about late October 2017. The Court observes that pre COVID the Father was operating a business in Queensland with 22 employees with his company providing him with a luxury motor vehicle; on the balance of probabilities, it is likely that the Father could have afforded to have resumed spending supervised time with the children in Sydney, at least for certain significant periods between the end of October 2017 and presently.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The Mother has maintained the children satisfactorily in her care. Post separation, and since about 2016, the Father has only paid about $30 in child support on a fortnightly basis.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The children have not spent significant face-to-face time with the Father since about late October 2017. The children have been developing well in the Mother’s primary care and the children have a very close attachment to her. The children are presently happy, including being surrounded by their extended maternal family.
The Court refers to its discussions above under the need to protect primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The Court refers to its discussions above under the need to protect primary consideration.
The Father lives in Queensland. The children reside in Sydney. There would be some practical difficulties in relation to the Father’s proposal for the children spend time with him in Queensland.

(f) The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

The Mother has such capacities.
In relation to the Father, the Court refers to its discussions above under the need to protect primary consideration. Again, the Father lacks insight into the emotional harm experienced by the children in witnessing family violence perpetrated by him against the Mother. Should the Father be adversely affected by the consumption of illicit drugs, there is a significant risk that he will not be emotionally available to the children, if they were to spend time with him, and he may pose a risk of physical harm to them through anger and aggression.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The children are developing well in the Mother’s primary care, particular since they ceased spending supervised time with the Father in about late October 2017.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The Mother has demonstrated such responsibilities and attitudes towards the children in a very satisfactory manner.
In relation to the Father, the Court refers to its discussions above under the need to protect primary consideration. The Court refers to its discussion above under section 60CC(3)(c).

(j) Any family violence involving the child or a member of the child's family

The Court refers to its discussions above under the need to protect primary consideration

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court refers to its discussions above under the need to protect primary consideration. The ICL’s proposed Order relating to the children spending time with the Father in accordance with their wishes will be the Order least likely to lead to the institution of further proceedings in relation to the children.

m) Any other fact or circumstance that the Court thinks is relevant

The Mother seeks an order that she be authorised to apply for and receive an Australian passport for the children without obtaining written consent of the Father. Such a proposed order will be an order in the best interests of the children. The Mother has significant ties with the children to Australia, including her business, her new relationship and child, and the children’s schooling. She is significantly assisted by the maternal grandmother in relation to the care of the children. There is no persuasive significant evidence before the Court that the Mother is likely to leave Australia with the children and not return in a timely fashion. There is no persuasive significant evidence before the Court that the Mother is intending to relocate with the children out of Sydney.
The ICL’s proposed Orders 4 – 8 will facilitate the Father being able to be kept abreast of developments in the children’s schooling and health, and for the children to seek to contact the Father when they are ready to do so.
The ICL’s proposed restraining Order 10 against the Father will ensure that the children do not suffer physical or emotional harm should the Father attend the Mother’s home and/or the Mother’s workplace, and/or any school attended by the children, without the prior written consent of the Mother. In this regard, the Court refers to its discussions above under the need to protect primary consideration and in relation to the views of the children.

Parental Responsibility

The ICL and mother seek an order for sole parental responsibility in relation to the children.
By reason of past family violence perpetrated by the Father against the Mother, the presumption of equal shared parental responsibility is rebutted.
The Mother has been the children’s primary carer from birth to date. The Mother has been making major decisions for the children since separation and satisfactorily so. The Father has not spent time with the children for significant period. The Mother remains fearful of the Father. The parties do not communicate regularly nor effectively. There is mutual distrust between the parties. Whilst the Father continues to ingest illicit drugs and in view of his unmanaged mental health, the prospect of the parties, in the future, reaching agreement in a timely fashion and without significant conflict, in relation to major issues affecting the children, is unlikely. It will be in the best interests of the children that the Mother have sole parental responsibility for them.
The evidence of the Family Report writer is consistent with the above views of the Court.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)    That the children X born in 2006 and Y born in 2008 (“the children”) live with the Mother.
(2)    That the Mother have sole parental responsibility for the children.
(3)    That the children spend time with and communicate with the Father in accordance with their wishes.
(4)    That the Mother at all times ensure that:
(a)     The children have access to their father’s contact details including his phone number and email address;
(b)    The children are encouraged to contact their father and to make arrangements to spend time with him if they wish to do so;
(c)     Any letters or cards sent to the children by the Father are provided to the children, and that the children are encouraged to read and respond to them.
(5)    That the parties are each to keep the other advised of their current postal address, contact telephone number and email address.
(6)    All communication between the parties is to be in writing, and is to be conducted in a respectful, businesslike manner and relate solely to arrangements for the care of the children.
(7)    That the Mother is to keep the Father advised at all times of the following:
(a)     The names and contact details of the schools at which each of the children are enrolled, and the Mother is to provide a copy of these orders to any such school to be placed on the children’s files;
(b)    The nature of any serious health condition affecting either of the children and the names and contact details of any health professionals who are providing treatment to either of the children
(8)    The Father is hereby authorised to:
(a)     Contact the children’s schools to obtain information about the children’s progress and to arrange to receive copies of the children’s school reports, newsletters and other documents generally provided to parents;
(b)    Speak directly with the children’s health care providers to obtain information about any treatment received by the children, and the nature of any health conditions suffered by them.
(9)    That the parties are each restrained from denigrating, criticising or otherwise speaking negatively about the other parent in the presence or hearing of the children.
(10) That the Father is restrained from attending the Mother’s home and/or the Mother’s workplace and/or any school attended by the children without the prior written consent of the Mother.
(11) The mother is authorised to apply for and receive an Australian passport for the children without obtaining written consent of the Father.

I certify that the preceding one hundred and ninety five (195) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 26 November 2020

[2020] FCCA 3233

26 November 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

Injunction

Remedies