Bianchi and Hidalgo

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIANCHI & HIDALGO

[2013] FCCA 448

Catchwords:
FAMILY LAW – Parenting orders – family violence perpetrated by the father against the mother – significant alcohol abuse – need to protect the children who will be at risk should the father spend time with them unsupervised – contact centre unwilling to continue supervision – no supervisor available – sole parental responsibility to mother – children to spend no time with the father.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant:

MR BIANCHI

Respondent:

MS HIDALGO

File Number:

MLC 6578 of 2010

Judgment of:

Judge Hartnett

Hearing date:

12, 13 and 14 March 2013

Delivered at:

Melbourne

Delivered on:

6 June 2013

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Nehmy

Solicitors for the Independent Children’s Lawyer:

HQ Law

ORDERS

The Respondent mother have sole parental responsibility of the children, [X] born [in] 2004, [Y] born [in] 2006 and [Z] born [in] 2007.

(2) The children live with the mother.
(3) The Applicant father shall be at liberty to communicate with the children by sending cards, gifts and letters to the children by prepaid post to the mother's nominated postal address of [omitted] in the State of Victoria.

The mother shall keep the father informed by letter to the father's nominated postal address of [omitted] in the State of Victoria, of the following matters:-
(a) major educational decisions made on behalf of the children, including notifying the father of what schools the children are attending and any change of schooling;
(b) major medical decisions made on behalf of the children or in the event that any of the children suffer any serious illness or injury the mother shall advise the father and keep the father updated as to the child's prognosis and treatment; and
(c) major religious decisions made on behalf of the children.
The mother shall do all such acts and things required to authorise any school that the children may attend to provide to the father at his expense copies of the children's school reports and school photographs.

(6) The parties shall at all times keep one another informed of their postal address.
(7) The appointment of the Independent Children's Lawyer is hereby discharged.
(8) All extant applications are dismissed.

Certify for Counsel.

AND THE COURT NOTES THAT:
A.The father’s current nominated postal address is [omitted] in the State of Victoria.
B.The mother’s current nominated postal address is [omitted] in the State of Victoria.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT MELBOURNE

MLC 6578 of 2010

MR BIANCHI

Applicant

And

MS HIDALGO

Respondent

REASONS FOR JUDGMENT

These proceedings involve competing applications for parenting orders in respect of the parties’ three young children [X] born [in] 2004 who is now aged eight years, [Y] born [in] 2006 who is now aged seven years, and [Z] born [in] 2007 who is now aged five years (‘the children’).
The father, in his Amended Application filed 1 February 2013 and as a litigant in person, sought an order for time spent with the children in the following terms: “Spend time with my kids unsupervise (sic) for a period of three months and return to the Court for an update”. The mother, in her Response filed 8 July 2010 in the [M] Magistrates’ Court, sought sole parental responsibility of the children, an order that they live with her and an order that the children spend time with their father as determined by this Court.
In the Outline of Case document filed on behalf of the mother and dated 8 March 2013, the mother sought a specific order that the children spend time with the father on a supervised basis as ordered by this Court. After the filing of the Outline of Case document for the mother by Cynthia A Toose & Associates, Solicitors, those Solicitors filed a Notice of Withdrawal as Lawyer on 8 March 2013, such that the mother then appeared in the proceedings as a litigant in person (the withdrawal of the mother's Solicitor was as a consequence of the withdrawal of Legal Aid funding under the new guidelines issued by Victoria Legal Aid). The mother subsequently sought, in the running of the proceedings, that there be no face to face contact of any type between the father and the children.
The father also had lawyers acting for him earlier in the proceedings, but on 22 October 2012 they filed a Notice of Withdrawal as Lawyer and the father from that time appeared in the proceedings as a litigant in person. The Independent Children's Lawyer had Counsel acting in the proceedings and both at the outset of the proceedings and at the conclusion of the proceedings, Counsel set out for the Court and the parties, proposed orders of the Independent Children's Lawyer.
At commencement, those proposed orders were that the father spend some supervised time with the children, but as the proceedings progressed and the orders sought by the mother altered, the Independent Children's Lawyer provided proposed orders to the Court and the parties which made no provision for face to face time between the father and the children. The orders proposed by the Independent Children's Lawyer in closing were supported by the mother and she indicated her consent to the making of such orders.
The father sought, in closing, unsupervised time spent with his children of six hours each fortnight or monthly with changeover to be at the [M] Police Station where he agreed that he would submit to a breathalyser test at both the commencement of the time spent and the conclusion. Otherwise, he sought telephone communication with the children, which was opposed by the mother and the Independent Children's Lawyer.
The father relied on Affidavits sworn and filed by him on 5 July 2010, 1 February 2013 and 6 March 2013. He also relied on the transcript of a call made by him to the triple zero emergency number, which was introduced into evidence as an exhibit (Exhibit 1). The mother relied upon her Response to Initiating Application filed on 8 July 2010 and her Affidavits filed on 22 November 2012 and 19 February 2013. She also relied upon the Outline of Case document filed on her behalf.
The Independent Children's Lawyer relied upon an Affidavit of Ms B affirmed 22 November 2012 and filed on 27 November 2012, and a Family Report prepared by Dr W, a psychologist and Regulation 7 Family Consultant dated 17 September 2012. The father conceded in these proceedings that the children's best interests were served by them continuing their residence with their mother. He would, however, not consent to an order in those terms.
The father did not address with any particularity in the evidence the order sought by the mother and Independent Children's Lawyer of sole parental responsibility residing with the mother. His focus was on spending time with his children.
Statements of fact in these reasons should be taken as findings of fact on the balance of probabilities.

Background

The parties commenced their relationship in late 2002. They separated on a final basis on 16 June 2010. The period of their relationship was a difficult one for each of them and their children.
Not long before they commenced to live together, the father had arrived in Sydney from Italy. The mother had arrived in Sydney from New Zealand. The parties had little money, and their relationship was marred by alcohol abuse by each of them, substance abuse by each of them, and domestic violence.
Approximately one month after the birth of [X] in [omitted], a Melbourne suburb, in 2004, an episode of domestic violence occurred. Property was damaged by the mother, and she harmed herself with a piece of the front door glass. Police and an ambulance were called, and the mother was taken to the [omitted] Hospital for assessment.
The Department of Human Services (‘the Department’) became involved with the family and proceedings were commenced in the Children's Court in Melbourne. An interim accommodation order was made placing [X] with her father, which was subsequently varied including allowing for the mother to return to the family home upon various conditions being met. The parties’ relationship continued, and in [omitted] 2006 their son [Y] was born.
Following the birth of [Y], the Department again were involved with the family both in September and October 2006. As a result of the second involvement, the mother, [X] and [Y] commenced to reside in a women's refuge with the mother fearing for her safety and that of the children. During this time, the father was permitted six hour weekly supervised visits with the children at a Department facility in [omitted]. Subsequently, this time spent with moved to become unsupervised visits at the parties’ home in [omitted], the mother having returned to reside there.
Subsequent to this time, the mother was found to be substance affected and thereby in breach of an interim accommodation order that had been obtained by the Department. The children were then placed back in their father’s care briefly and until March 2007, when the children were placed in foster care for a period of time, neither of their parents being assessed by the Department as capable of caring for them and acting protectively. The parties acknowledged their significant drug and alcohol abuse problems, and the domestic violence in their relationship, and attempted to address these issues and sought the return of their two children to their care.
The father's evidence is that at the end of July 2007, the children were returned home to their parents. A supervision order had been obtained by the Department prior to the children being placed back with their parents and the Department assisted the parties in finding a two bedroom flat in public housing in [omitted].
In [omitted] 2007, [Z] was born. The parties remained in the [omitted] area for approximately two years, but both admit that they continued to take drugs and consume alcohol to excess.
The parties determined to relocate to a country town in search of a better lifestyle for their children and in an effort to cease their dependency on drugs and alcohol. In November 2009, they moved to [M] where the father was hopeful of obtaining employment and the parties were hopeful of an improved and happy family life. However, on 16 June 2010 a further episode of domestic violence occurred with the husband saying to the police on that evening when he telephoned the triple zero emergency number, that he had placed the mother outside their home as she was damaging the property. In evidence in these proceedings, the husband said that he had dragged the mother outside the home and held her around the neck.
The police attended at the parties' home on the evening of 16 June 2010 and removed the mother and children from the home, placing them in emergency housing. That significant domestic violence incident occurred in the presence of the three children. On the day following, the mother was granted an interim intervention order with the children included as persons needing protection from the father.
During the course of these proceedings, the father wished to go over at some length the events of 16 June 2010 which was the date of the parties’ final separation. His evidence was that he and the mother had been drinking alcohol on that evening and that the mother had become uncontrollable, hitting her head on the wall. He claimed she hurt herself and damaged the property. The mother's evidence as to the parties' separation was that the father tried to strangle her and severely assaulted her by ramming her head into a wall as she was attempting to flee the residence. Her evidence is that she suffered a cut to her forehead and significant bruising, and that the father yelled to the children that he was going to kill her and that they would get a new mummy. Since this episode of domestic violence there has been, both in this Court and the Children’s Court, a series of orders for the children’s care and their father’s time spent with them.

Events following 16 June 2010

Court history

Whilst each of the parties claimed to be the primary carer of the children until their separation, they also each conceded that at various times both of them were incapable of properly caring for their children as a result of their drug and alcohol abuse. The father worked from time to time during the period of the relationship, and the mother during those times cared for the children. When the parties were both at home, they both cared for their children, although their neglect of them and placing of them at risk meant that the Department intervened in their family life and at times limited the time spent with between each of the parents and the children.
The father's response to the children being placed in the care of their mother and they being also named as persons in need of protection in the intervention order obtained by the mother against him, was to issue an application in the Magistrates’ Court at [M] seeking an order for the three children to live with him. On 12 July 2010, the Magistrates’ Court of Victoria sitting at [M] made an interim order wherein the mother was granted sole parental responsibility of the children and the matter was transferred to this Court.
A Family Report was prepared by Ms M and released on 7 September 2010, with the matter being fixed for final hearing, on the first occasion, on 6 June 2011. The matter was not able to proceed at that time, and due to further proceedings being initiated by the Department with resulting interim accommodation orders being made and the father being incarcerated on a number of occasions, the matter has only now been able to proceed to final hearing in these proceedings.
By Orders made 8 September 2010 (and by consent), the parties had equal shared parental responsibility of their children and they lived with their mother. The father was to spend time with the children on a supervised basis. The father had periods of supervised contact with the children at the [W] Contact Centre and then the [M] Child Contact Service before his time spent with the children ceased for nearly 12 months before being again supervised by the Department. The Children’s Court Order which provided for supervision did not expire until March 2012. During its operation the mother had to do a positive parenting program as well as submit to regular drug screens. The involvement of the Department with the mother and children concluded in December 2011. The [M] Child Contact Service recommenced the provision of its service to the family on Saturday 7 April 2012 and continued with the provision of such service until 14 February 2013 wherein it wrote to the father advising him formally that the [M] Child Contract Service would no longer provide services to him. That correspondence said in part:-
“All visits between you and your children at the Child Contact Service are cancelled, effective immediately.”
That correspondence was signed by Ms B, Team Leader of the [M] Child Contract Service.

The parties and children

Following separation in June 2010, the mother sought the assistance of the [S] Community Health Centre in respect of her alcohol problems. The parties had managed to cease their drug addiction, but for each of them their alcohol abuse remained. The mother, since separation nearly three years ago, has managed to change her lifestyle so that she is able to properly care for her children. She has not had a drink of alcohol since 1 January 2011. She continues to attend a parenting group each fortnight, which she has done since mid‑2011. She is in good health, as are the children, and well able to continue to care for them and act protectively on their behalf.
The children are now all at school. The mother’s evidence is the children are progressing well at school and are settled. They have a close and loving relationship with each other and with their mother. The mother's evidence as to the children's response to attending the contact service to spend time with their father is that the eldest child, [X], in particular, struggled to come to terms with the fact that she had to attend at the contact centre to see her father. The mother’s evidence was that [X] withdraws within herself and becomes uncommunicative. She appears to be frightened of her father and appears to be aware that he can act in unpredictable ways. The mother gave evidence that [X] had expressed to her that she remembered the domestic violence which she witnessed within the home. The mother’s further evidence was that the younger children looked forward to receiving presents from their father and were not as disturbed about spending time with him as is [X]. However, the children have each expressed a clear wish not to spend time with their father. They have considerable anxiety around the prospect of seeing him at any time.
The mother is in receipt of a supporting parent benefit, and in that manner, financially supports the children. They have appropriate housing, clothing and physical care. The mother remains fully occupied in home duties. The father makes no contribution toward their financial support, and the mother has not sought to obtain any child support from him because she is fearful of him and frightened that any such application would trigger a violent response from him.
The father commenced attending counselling with a Drug and Alcohol counsellor at the [omitted] Wellbeing Centre in December 2010. The purpose of this counselling was to assist him with his alcohol consumption. In his ongoing addressing of this issue the father annexed to his Affidavit sworn 6 March 2013 correspondence from [S] Community Health Services dated 20 January 2013. That correspondence attested to the father's ongoing attendance at alcohol counselling since December 2010. The writer claimed the father to have gained insight and achieved behavioural change. The writer, Ms J, said in that communication:-
“Mr Bianchi has always been very honest about his intentions and substance use behaviour in conversations with me. He is too proud and dignified for deceit. He stated repeatedly and unequivocally that he will commit himself to an alcohol‑free life out of his own free will when he parents his children again. However, he has not understood the need for demonstrating an alcohol‑free lifestyle prior to caring for his children. He has been fighting so hard for his children, because he has their wellbeing at heart and believes strongly that his caring for them will contribute to their psychological and physical wellbeing.”
In that same Affidavit of 6 March 2013, the father also annexed correspondence dated 21 September 2012 from Ms K & Associates, Psychotherapy and Counselling Services which refers to the father having initially attended that practice in October 2011 following a referral from his treating general practitioner. At the time of referral, the father was diagnosed with depression, adjustment disorder and mental disorder not otherwise specified. The correspondence noted that the father confirmed longstanding problems associated with drug and alcohol use and on initial presentation, was considerably anxious, with symptoms of altered or clouded sensorium being clinically evident. The father reported that he had been prescribed antidepressant medication and, further, he reported incidents related to outbursts of anger and frustration regarding his personal life and particularly his relationship with his children. Limited access to his children was said by him to have been a source of continuing distress for him. Ms K noted that he had engaged in anger management therapy and progressed well with recommended interventions. Further, she noted there was evidence of cognitive limitations, particularly with perception and short‑term memory.

The father has engaged in a number of concerning behaviours since the parties' separation. He has, on three occasions, breached the intervention orders obtained by the mother in June 2010 and subsequently on 5 December 2011 which remain continuously operative. In respect of the father's first breach of the intervention order, he was convicted and fined $400. In respect of the second breach, which occurred in April 2011, he received a sentence of one month imprisonment wholly suspended. In respect of the further breach which occurred in November 2011, which was accompanied by other charges of:-
a)threat to kill a counsellor who worked in the Family Relationship Centre in [M]; and
b)intentionally damaging property, being the counsellor's telephone,
the father pleaded guilty and received a term of imprisonment of eighteen months. He appealed the imposition of that penalty and on 24 November 2011 was successful in that appeal with the term of imprisonment being reduced to four months. On 1 March 2012, the father pleaded guilty to a fourth breach of an intervention order and in relation to which he received two months' imprisonment, which was to be served concurrently and wholly suspended.
In addition to the breaches of intervention orders, the father received a custodial sentence of 45 days in 2010 for destroying police property and a further term of one month in 2011 for breaching a community‑based order by travelling interstate without permission. Further, in March 2011, the father attended at the offices of the Department and threatened departmental workers. He took petrol with him suggesting that he would set fire to the building and to himself if they did not let him see his children. In respect to this offending behaviour, the father claimed that it was caused by his abusing of antidepressant medication he was taking at the time.

Family Report of Dr W

At the time of preparation of Dr W’s Family Report dated 17 September 2012, the then orders of the Court provided for the children to live with their mother and to spend time with their father every second Saturday for two hours from 2.00pm to 4.00pm supervised at the [M] Family Care Children's Contact Service. The father was seeking unsupervised time with the children, and the mother was seeking that supervised visitation remain. The father was not working save for occasional [omitted] and was in receipt of a disability pension due to depression suffered by him. In his presentation to Dr W, the father was extremely critical of the mother, claiming she had smashed up the houses in which they resided (the mother emphatically denied this) and that she had no or little ability to care for the children.
Dr W observed the father appeared to see himself as a victim, claiming the mother took the children away from him or stopped their contact with him, and also that the Department stopped his contact with the children or made it very difficult for him to see his children. The father did not acknowledge to Dr W how his own behaviour, namely his history of chronic substance abuse, the history of family violence between the parties, and his anger issues and patterns in acting out in quite extreme ways, had contributed to, if not directly resulted in, the then current restrictions with respect to his contact with his children.
Dr W, in paragraph 15 of her Family Report, said relevantly as follows:-
“...there is a pattern with the father, whereby he seems to explode into uncontrollable rages, whereby he can exhibit quite extreme behaviour, whenever he cannot get his own way, and/or he becomes frustrated or angry, and/or he perceives himself as being hard done by. There also seems to be a pattern to his behaviour, whereby he continually says inappropriate things to the children, even when warned not to; and he just does not seem to understand the impact of this on the children, and he simply seems incapable of reading the children's cues, or understanding their emotional experiences and/or psychological world.”
The father reported to Dr W, as he asserted in the proceedings, and as he has claimed to various institutions, that the mother sleeps with the Centrecare worker, the Departmental worker, and that he would not be surprised if she was sleeping with the police officer, with all these persons being at some time involved with the family in a professional capacity. The father insisted that the children were brainwashed by their mother, that they love him a lot and probably love their mother also. He claimed that he did not think the mother was feeding the children well or washing them properly, and nor did she give them enough love. He claimed she would not give the children a good education. The father was in essence highly denigrating of the mother.
On interview, the mother presented as being genuinely concerned about the children being in the father's care unsupervised, as she insisted that his behaviour had not changed, and that she knew that to be the case because he had missed contact visits, turned up drunk or alcohol‑affected to visits, and allegedly had become angry and abusive to staff at the contact centre.
The mother freely admitted to Dr W her problematic behaviour in the past and then detailed how she had made positive changes. Those changes were consistent with what the school the children attended reported back to Dr W. Dr W noted the mother’s presentation as being more child‑focused than the father, and described her as being significantly more capable of reading the children's cues and meeting their needs and understanding their experiences than the father.
Dr W noted that the mother had engaged with the services she needed in the local community and had made significant and very positive change, and that rather than minimising her history or denying or ignoring it, she spoke freely about it, acknowledged how bad it was and indicated that she had gained some much needed insight into her own personality and behaviours and also with respect to her parenting of the children. Dr W found that to be refreshingly very positive.
The mother expressed to Dr W that the father had concerning anger issues, and stated that he needed to deal with them before he could see the children in anything other than a supervised capacity. Further, she claimed he did not know how to parent the children. She also reported that she had been told by the contact centre that he was pressuring the children about whether they want them, the parents, back together.
It was clear to Dr W on interviewing the children that they, and in particular [X], had been exposed to a great deal of inappropriate and adult information about their parents’ relationship, and in particular for [X], her mother's view of her father. [X] presented as happy, well dressed, well behaved, intelligent and articulate, whilst [Y] also presented as happy, well dressed, well behaved, and very outgoing and talkative. He also appeared reasonably intelligent and was happy to talk to Dr W about his parents. Unlike [X], [Y] appeared to have a more superficial understanding as to what was going on between his parents.
Dr W found the three children to have formed a strong positive bond with their mother, interacting with her in a way that suggested they saw her as a safe and loving figure in their lives. She noted also that the children still appeared to have a bond with their father and seemed to enjoy spending time with him. She noted that while the father was interactive and appropriate with the children in some ways, he was also somewhat inappropriate with them at other times. That inappropriateness went to the conversations that he initiated with them which related to the court proceedings and otherwise which made them uncomfortable.
Dr W said as to the father at paragraph 39 of the Family Report:-
“I do believe he could benefit from more insight into what the children need, and education on what is and isn't appropriate to talk to them about; but given his history, I'm not sure that he will in fact be able to learn what he needs to, and gain this much needed insight.”
By contrast, Dr W said of the mother at paragraph 40 of the Family Report:
“… the mother was very good with the children, and she was interactive with them, she provided lots of praise and encouragement, she involved herself completely in what the children were doing, she encouraged their learning and their confidence, she encouraged them to do things together, she was very educative and child focused, and there was lots of chatter, laughter, and fun. The children were also very responsive towards her, and they involved her in everything they were doing; and overall they appeared much more confident, animated, talkative, and comfortable with their mother compared to their father; which is to be expected since she has been their primary care giver at least since separation.”
Dr W in her evaluation of the parties and their children, noted (at paragraph 43 of the Family Report) that the fundamental issues were more about safety issues for the children and specifically, if the father had changed enough to move from supervised to unsupervised time. She set out her significant concerns as to whether the father had made enough progress to move to unsupervised times spent with. They included that although the father had attended counselling to address both his alleged anger issues and his alleged substance abuse issues and that he was doing well, the reality was that the contact centre have reported a few instances whereby he had turned up looking, acting and smelling intoxicated and a number of instances whereby he had smelt of stale alcohol, and where they had also reported that he had become quite angry, aggressive and threatening on occasion, even when he had been the one at fault. A further concern noted by Dr W was that the contact service had reported that the father had continually spoken to and/or shared inappropriate information with the children, despite being repeatedly told not to, and that that was consistent with the way that he acted in observation with the Dr W also. Ultimately, she noted the children found this very difficult to manage.
In particular, Dr W noted that the father had been unable to contain his behaviour, even in circumstances whereby he knew that his behaviour would compromise his chances of seeing his children. She referred to the instances of his anger in the Department building and with its staff; his anger with the police and his anger with the mother in front of the children. At paragraph 49 of her Family Report Dr W said:-
“Similarly, it must also be acknowledged that not only does he act out when he becomes angry, but he acts out in very extreme ways, and sometimes in front of the children; and he simply does not appear to get how damaging his behaviour is for the children, and/or how damaging his inappropriate comments to the them are, and there seems to be no reasoning or calming him; and ultimately, the writer has no confidence whatsoever that Mr Bianchi will be able to either manage them and contain his emotions in front of the children, and/or that he will not act out in an extreme manner whilst they are with him and/or that he will not place them in uncomfortable or even dangerous situations because of his total lack of insight; instead my fear is that he might do anything if he were angry enough, no matter whether the children were there or not.”
Dr W concluded at paragraph 50 of the Family Report that her interviews and observations suggest that the father: -
“...simply does not have the capacity to appropriately care for these children without exposing them to what can really be considered as abusive behaviour; whilst the mother can.”
Accordingly, Dr W could not support unsupervised time in the short term between the father and the children and noted that she had significant doubts about whether the father would ever be able to gain enough insight and understanding and make enough change by addressing his particular issues and problems to allow for unsupervised time. To that end Dr W could not support unsupervised time in the longer term either. She was concerned that there would be significant protective issues if the father were to have unsupervised time with the children.
Dr W concluded that contact at a children's contact service was the best way to minimise any risk of harm to the children. She noted that this contact was not about rebuilding a bond and attachment between the father and children, but rather maintaining a relationship so that the children could reestablish a more significant relationship and bond and attachment with their father in the future.
The recommendations made by Dr W to, in essence, continue to spend only supervised time with their father at the [M] Child Contact Service for two hours every six to eight weeks need to be considered by the Court as part of the totality of all the evidence. Following the completion of Dr W’s report, the contact service terminated the services they provided to the father.

Evidence of Ms B

Ms B's evidence is as set out in her Affidavit affirmed 22 November 2012 and filed on 27 November 2012 and as provided by way of oral evidence during the running of the matter. Ms B is the Team Leader at the [M] Child Contact Service who facilitated the children’s visits with their father.
Whilst overall the father attended regularly at the contact service, after having missed two early visits, and whilst overall the relationship between the children and their father was seen to be a positive one, with the children gaining some benefit from their attendances, there were issues with the father often attending smelling of alcohol. On one occasion the father attended and fell asleep. When woken up he commenced to say inappropriate things to the children and, in particular, criticised their mother before departing the service after a visit of some seven minutes duration rather than his allocated two hour visit.
The issue for the service was not overall the father’s interaction with his children but his engagement with the service. Ms B's evidence was that the father was continually abusive, derogatory to staff members, and failed to follow the guidelines of the service. In the father's abuse of the service staff, the father particularly attacked Ms B. The father without any legitimate basis referred to her as corrupt and a liar. Ms B said her presence escalated the father’s response and thus the service tried to accommodate the father so that his visits could continue by placing another worker in charge of the supervision times. The father said things to her such as: he would make her pay; that she could not tell him what to do; that he was going to get revenge; and that he did not care what she thought. His behaviour was highly intimidatory.
The father was given a final warning when he attended on 12 January 2013, smelling of alcohol and falling asleep, that he was not to present in a substance‑affected manner. Thereafter, and on 9 February 2013, he pulled a bottle of wine from the bag he had with him, which was a breach of policy and of the written agreement between the father and the service, in that he was not to bring any alcohol onto the premises.
Ms B's evidence was that the service would no longer be a place where supervision could occur. Her evidence was that since the commencement of the supervised visits in April 2012, it had been a very volatile relationship between the staff at the service and the father. Negative remarks were made by the father toward the service and he was quite threatening and abusive to staff. His often smelling of alcohol was also concerning. His asking the children where they were, and who their mother was with, was also not appropriate. The service had continued to be available to the father because they knew that his time with the children would be impacted should they cease the provision of the service. They were now no longer prepared to continue on. No other viable means of supervision was before the Court. Nothing else exists in [M] or surrounds that could cater for the particular needs of this family.

Consideration

Section 61DA(1)of the Family Law Act 1975 (Cth) (‘the Act’) provides:-
“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.”
In these proceedings, this presumption is rebutted as provided for in s.61DA(4) of the Act because the evidence before the Court satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility of them. Included in that evidence, and pursuant to s.61DA(2) of the Act, is evidence sufficient for a finding that the parents of the child, and in particular, the father, has engaged in family violence. He has also engaged in violent behaviours outside the family.
After a long history of domestic violence the parties separated. At the time of separation an intervention order was taken out, naming the mother and children as protected persons. An intervention order continues to operate to this date and will not expire at any set time in the future. The father has breached the intervention orders on four occasions and has been incarcerated in respect thereto. He has engaged in extreme behaviour toward the Department’s workers, damaged property of the police and made inappropriate allegations against Centacare workers, departmental workers and police members. He has threatened to kill Mr D, a family counsellor in the Family Relationship Centre in [M]. He has threatened to pour petrol upon himself and set it alight in the Department building. Dr W has expressed concern as to the potentially dangerous nature of the father's behaviours and his inability to contain himself.
The mother and father have no communication at all and will not do so into the future. The mother was required in these proceedings to cross‑examine the father as she was a litigant in person. She was not capable of this task and did not ask him any questions at all. She is very fearful of him. I am satisfied that a sole parental responsibility order should be made in favour of the mother. The children should continue their residence with the mother, which although the father does not concede, he stated in Court was appropriate and in their best interests. The issue for the Court was whether the father would spend supervised or unsupervised time with his children and the Court concludes that he should spend no time with the children.
The Court has considered those matters which it must when considering this issue as they are set out in s.60CC of the Act. The children's best interests are the paramount consideration and the matters to be considered are as set out in ss.60CC (2) and (3) of the Act.
Whilst there is a benefit to the children in having a meaningful relationship with both of their parents, the need to protect them from both physical and psychological harm from being exposed to the family violence of their father means that he cannot spend time with them or if he does so, it needs to be supervised. This was the significant matter for the Court's consideration. The Court is mindful of the expert evidence of Dr W that the children will not be safe in all probability unless supervised time spent with continued in the long term.
Ms B, from the [M] Child Contact Service, has found it necessary to terminate the supervision of time spent with, after a long period of trying to facilitate such a practice, between the father and children. The father's outbursts and interaction with the service, together with his breach of its guidelines, made it impossible for the service to continue with him. The service was slow in taking this step because they knew the consequences of their withdrawal of the provision of the service in [M]. There is no other service available to the father and the nearest contact service is some four and a half hours away in Bendigo. The father did not put before the Court any alternate supervisor and sought simply unsupervised time. On the evidence that outcome is not possible. Although some of the evidence supports an ongoing supervisor regime, the reality is that there is no supervisor available in a suitable structured model who can adequately protect the children.

This is a practical difficulty considered pursuant to s.60CC(3)(e) of the Act in particular. The father's capacity, as required to be considered in s.60CC(3)(f) of the Act, to provide for the needs of the children, including their emotional and intellectual needs, is severely compromised by virtue of his alcohol abuse. His breach of intervention orders are an important consideration, as is his poor attitude to the responsibilities of parenthood in his refusal to cease his alcohol consumption. This refusal was confirmed by him by evidence.
Although the father has taken the opportunity of spending time with the children at the contact service, he has alienated the workers at that service who can no longer deal with him. It would not be safe for either the supervisor or the children, for the father to arrange for private supervision without the safeguard of the structure of a contact centre even if the father had put forward a professional supervisor. There is a need to protect the children who will be at risk should the father spend time with them unsupervised due to his current excessive alcohol consumption and his recent propensity for violence. Additionally his inability to restrain himself from making inappropriate remarks to the children puts them at risk of being emotionally abused.
The mother is totally opposed to the father spending time with the children save by communicating in the form as provided for in the Orders which I shall make this day. These Orders are the only outcome possible in the proceedings at the present time. The father will be required to establish that he has addressed the many issues raised as to his behaviours in the evidence, and profoundly so, before he can move forward in his relationship with the children.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 6 June 2013

[2013] FCCA 448

6 June 2013

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