Binjori & Darmadi
[2022] FedCFamC2F 1503
Federal Circuit and Family Court of Australia
(DIVISION 2)
Binjori & Darmadi [2022] FedCFamC2F 1503
File number(s): PAC 3257 of 2019 Judgment of: JUDGE MYERS Date of judgment: 10 October 2022 Catchwords: FAMILY LAW – Family Law Act 1975 - parenting Legislation: Family Law Act 1975 (Cth), ss 60CC, 60CC(2), 60CC(2A), 60CC(2)(a)-(b), 60CC(3)(a)-(m), 60DAA, 65DAA sub-paras (3), (5) Division: Division 2 Family Law Number of paragraphs: 55 Date of last submission/s: 20 July 2022 Date of hearing: 8-9 February 2022, 18 March 2022 Place: Parramatta Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Jacqui Griffin Mobile Solicitor Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Legal Aid NSW Parramatta Family Law Counsel for the Independent Children's Lawyer: Ms Balendra Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
PAC 3257 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BINJORI
Applicant
AND: MS DARMADI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MYERS
DATE OF ORDER:
10 OCTOBER 2022
THE COURT ORDERS THAT:
1.That all previous orders be discharged.
2.That X born in 2013 and Y born in 2014 (“The Children”) live with the Mother.
3.That the mother have sole parental responsibility for the said children.
4.That the father enrol in and complete a 20-week Men’s Behavioural Change course designed to assist men who are perpetrators of family violence.
5.That the Independent Children’s Lawyer forthwith recommend to the father the name of a psychologist who is able to provide to the Father anger management counselling under a 12-week mental health plan.
6.That the father obtain a 12-week mental health plan referral from his general practitioner for anger management counselling with the psychologist recommended by the Independent Children’s Lawyer pursuant to order 5 above.
7.That upon the father having completed 10 weeks of the Men’s Behavioural Change course referred to in order 4 above, and six weeks of the 12-week mental health plan referral for anger management counselling referred to in order 6 above, then the children shall commence spending supervised time with the father for two hours per week.
8.For the purposes of determining who will conduct supervision pursuant to order 7 above, supervised time shall be conducted by a professional supervision service that writes reports about how each supervised session progressed. The father shall nominate the professional supervision service and shall be wholly responsible for the costs of the professional supervision service. The father shall spend time with the children on such days and such times as they are made available by the professional supervision service. For the purposes of facilitating this order, the parents are to complete any intake assessment, and comply with all directions given by the professional supervision service.
9.Where the father is unable or unwilling to pay the costs of a professional supervision service, then the father shall spend time with the children at his sole expense supervised by the Region B Children’s Contact Service, on such days and such times as are made available by Region B Children’s Contact Service. For the purposes of facilitating this order, the parties shall undertake any intake assessment process and comply with all directions given to them by Region B Children’s Contact Service.
10.Upon the latter of the following events listed below, the children shall spend unsupervised time with the father in accordance with order 11:
(a)the father having completed his anger management counselling and Men’s Behavioural Change course; and
(b)the father having completed six months of supervised time with the children; and
(c)the father having obtained a report from the supervision service that indicates the children’s time with the father has gone well, in that the father and the children appear relaxed and happy in their relationship with one another.
11.That the children spend unsupervised time with the father (conditional upon order 10 above) as follows:
(a)each alternate weekend, collection at school on a Friday, return to school on a Monday, or otherwise at 3 pm Friday till 9 am Monday.
(b)where the children are not otherwise spending time with the father:
(i)For three hours on each of the childrens and father’s birthdays as agreed, or otherwise between 4:00pm to 7:00pm;
(ii)on the father’s Day weekend at times as set out in order 11(a) above;
(iii)Despite the provision of any other order for a period of three hours on Christmas Day as agreed between the parties, and failing agreement, from 2:00pm to 5:00pm;
(iv)upon the children having spent time with the father pursuant to order 11 above for a period of 18 months, then the children shall spend half of each of the school holidays with the father as agreed, and where not agreed, in the second week of term 1, 2 and 3 school holidays, and the first, third and sixth week of the Christmas School holidays. For the purposes of this order, holiday weeks shall commence on a Saturday at 9:00am and conclude on Sunday at 5:00pm;
(v)at such other time as agreed.
12.That the father’s alternate weekend time shall be suspended during school holidays and on the Mother’s Day weekend;
13.That for the purposes of facilitating the handover of the children between the parents, while there is not a collection or return to school, the parents shall use a supervision service as recommended by the Independent Children’s Lawyer, to conduct the handover, with the father to pay the costs of the service, or otherwise as agreed between the parties.
14.That the parties be prohibited by injunction from physically disciplining the children.
15.That the children’s names be removed from the Airport Watch list.
16.That the mother be entitled to obtain a passport for the said children without the father’s permission.
17.That the parties be prevented by injunction from discussing these proceedings with the children or from denigrating one another to the children or speaking negatively about the other parent to the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Binjori & Darmadi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
MYERS J:
This is a final parenting decision in the matter of Binjori & Darmadi in relation to children X, born in 2013, and Y, born in 2014. The father filed his Initiating Application on 11 July 2019. In that application the father sought orders inter alia that the parents share parental responsibility for the children, that the children live the mother, the children spend time with the father every second weekend from Friday to Sunday, and half of the school holiday periods. During the hearing the father made clear that he was open to an initial period of supervision in order to reintroduce himself to the children, and told the Court he would do any course or whatever was asked of him in order that he might be able to see his children again.
The mother filed her Response on 27 February 2020. The mother seeks orders as per her Final Minute of Order filed on 20 April 2022, that the mother have sole parental responsibility for the children and the children live with the mother, that the children spend no time with the father, and all previous orders be discharged.
The Independent Children’s Lawyer seeks orders as per their Minute of Order filed on 19 April 2022, that the mother have sole parental responsibility for the children, that the children live with the mother and the children spend no time with the father.
During the Hearing, the father gave evidence that he consented to an order that the mother have sole parental responsibility.
By way of background, the father is 32 years of age. The mother is 32 years of age also at the Hearing. The parties commenced a relationship in 2008, began living together in 2009 and were married in 2012. They have two children, X, born in 2013, and Y, born in 2014. Final separation of the parents occurred on 27 March 2018 when the father was subjected to an ADVO.
The mother asserts the final separation occurred on 26 April 2018, where she stated that the parties separated in dramatic circumstances with an assault and stalking and intimidation charge being laid against the father. Those charges were defended and the father was found not guilty. The father was convicted of a breach ADVO as against the Mother. It was submitted during the hearing that the contravention of the ADVO was on the lower end of the scale by counsel for the father, and the last ADVO in place expired in September of 2019. The Court notes that the last ADVO had an order for no contact between the father and the children and the mother. The mother conceded in the witness box that during the life of that ADVO, she contacted the father on 31 August 2018 to have contact with him. Her evidence is that she met him in Suburb H. The mother conceded that the photos annexed to the father’s Affidavit of her with the father and the children were taken in the car on that day. This took place despite the mother having made a complaint to the police the day prior to the photographs that the father had breached the ADVO.
The mother stated in her evidence that she contacted the police and complained of harassment after the ADVO had expired. The Court heard that the harassment she was referring to was a text message that was sent to the mother asking about the welfare of the children and wanting to hear their voices. The mother conceded that she wanted another ADVO despite the earlier ADVO expiring and the mother making contact with the father during the life of that ADVO.
It is uncontroversial that the children have not seen their father since 2018. In effect, the father has been absent from the children’s lives for some four years.
The father suggests that the mother had sought to use the allegations of family violence in order to obtain a strategic advantage in the proceedings. Counsel for the father suggested there was also evidence in the police subpoena material of false complaints where the mother conceded that she had attended Suburb C Police Station six days prior to the parenting proceedings in February 2020 requesting an ADVO as the case worker told her to get one. It was further conceded that the father filed his application for parenting orders on 11 July 2019 and the mother did not file her response until 27 February 2020, and that this occurred immediately after she attended the police station seeking an ADVO. It was submitted by counsel for the father that this was to better her position. Counsel for the father further suggested that the mother could have sought or requested a section 68(B) order in the orders that she sought.
The mother gave evidence that during the relationship the father engaged in acts of family violence. The mother described a number of incidents in which the father physically assaulted the mother, including pushing her, punching her in the face, trying to choke her and punching her in the stomach whilst pregnant. A final ADVO was made against the father on 13 September 2018 for a period of one year for the protection of the mother and the children. The mother alleges the father had made threats to kill her, himself and the children. The mother provided a photograph of the father in which he appeared to be holding a knife against his own throat. The mother asserted this was accompanied by texts threatening suicide. The father gave evidence that this photograph had been edited and the mother was good at Photoshop. The ICL has submitted this explanation was merely an assertion by the father without any proof that his photograph had been photoshopped. No expert evidence was provided by the father that the photograph had been photoshopped. Similarly, no evidence was provided by an expert that it had not been photoshopped. It was submitted on behalf of the mother that the Court could make a finding that the photograph of the father was one of him holding a knife to his own throat.
It was submitted on behalf of the Independent Children’s Lawyer the Department of Communities and Justice had concluded the father posed a risk to X and Y. Documents produced under subpoena by the Department of Communities and Justice (DCJ) at page 67 of the Independent Children’s Lawyer’s tender bundle state
Screened in for ‘Threats to kill and injure’. Given that there is a history of persistent domestic violence and previous threats made by the father to harm [X], five, and [Y], four. Dad has threatened to kill himself and the children if mum ever left the relationship, which has been deemed as credible.
It is not a matter for the Court to defer to the DCJ, and their conclusion, it is of course a matter where the Court must consider what is in the best interests of the child, having regard to section 60CC.
It is concerning the father failed to disclose to the Court prior to the Hearing that there is a final ADVO for a term of five years in place for the protection of the child of the father’s partner, namely, D, aged 12, and in relation to a sexual assault allegation. The ADVO proceedings were discovered in the New South Wales Police subpoena. The existence of the ADVO was not disclosed by the father in his material.
The father agreed in cross-examination that he consented to the ADVO. The father further suggested in cross-examination that his partner’s daughter had made malicious allegations against him as she had a crush on him. The father gave some confusing evidence that somehow he and his partner (D’s mother) were in the process of applying to discharge or revoke the ADVO, to the extent the Court was left with the impression the father felt the issue of revocation is a rather simple one, with he and his partner, in other words, the mother of D, consenting. Given the nature of the allegations and that the police would have applied for the ADVO, the father’s suggestion that the ADVO was in the process of being revoked carries little weight.
Much was made of the allegations concerning D during cross-examination of the father and also during cross examination of the family report-writer, Dr E. Ultimately, the issue is one where there has been allegations made against the father by D. There has been a JIRT investigation and the father has not been charged with an offence. That is as far as the issue raised goes. There has been no charges. The Court cannot make an assumption about the father’s guilt, and the issue falls well short of the Court finding that because of the allegations the father poses an unacceptable risk to the children in these proceedings.
In support of the father’s case, the Court was shown a video. The video depicted the mother, in effect, crying and begging. The father suggested it depicted the mother making a confession. The Court observed the video depicted the mother in a state of extreme emotional distress. It is hard to know what to make of the video. It was taken in Melbourne in or about December 2017. The mother gave evidence that at the time of the video she had not seen the children for some two weeks. Counsel for the mother submitted the video that forms exhibit ‘A’ is an awful video showing the mother weeping and clearly in anguish. In it, the father’s sister literally stands over the mother and the father provides no comfort, preferring to film the incident. It is concerning the father suggests that the recording supported his case.
The father was difficult during cross-examination, at times angry and agitated. He gave evidence of being angry because he had not seen his children, and at one stage stated to counsel for the mother he would not answer questions if he thought they were not relevant. The father conceded that he would complete an anger management course or taking responsibility course and undertake supervised time with the children. His evidence was that he would, in effect, do anything asked of him if he was given a chance to have a relationship with the children again.
On the topic of supervised time, counsel for the mother submitted a condition precedent to the father spending time with the children must be evidence of an intention to change and the completion of anger management therapy. It was further submitted that there is no evidence of an intention to change at present and that given the father is so unpredictable and is such a “loose cannon”, supervision is unlikely to avoid exposure of the children to family violence. It was further submitted the father has failed to return the children, has locked the mother and the children in their house in City F, and it was further submitted the father has caused the mother to be fearful and lacking in confidence and appears to have little insight into the damaging effects of his actions.
Counsel for the mother suggested that it was of particular note and disturbing that the father could not regulate his emotions or control displays of anger in his interview with the family report-writer and during the proceedings. While the father did, in fact, appear hostile, it was in the view of the Court explainable by the father’s distress in not spending time with his children and frustration with the Court proceedings where he lacked an understanding of the function of the single expert family report writer or understanding of the purposes of cross-examination in the proceedings.
The mother’s cross-examination left the Court highly concerned about the mother’s capacity, where she was unable to provide often clear and cohesive answers to questions asked of her. At times, the Court was left with the impression the mother was prepared to just make things up as she went along. The evidence given by the mother regarding the father hitting the children with a bamboo stick was an example where the Court gained a distinct impression the detailed narrative provided by the mother about the allegations was, in effect, made up as she went along. It was clear to the Court the mother had engaged in speaking to the children about the father in a negative way, particularly around the father having hit the children.
In the family report prepared by Dr E, Dr E records the children’s comments about their relationship with the father that he set out at paragraph 66 to 74, that provides:
[X] and [Y] were interviewed together. They perceived that the interview had “something to do with their father” but did not understand the context. [X] remained reserved throughout while [Y], the more confident child, chatted freely. They initially discussed school and friends, as well as swimming lessons organised by their mother, and seemed happy and contented. When discussing [Mr Binjori], both children referred to him as a “bad man”. [X] said he remembered his father hitting him in the past. Further, the child had been told by [Ms Darmadi] that [Mr Binjori] punched her in the stomach when she was pregnant with him. [Y] stated that although she could not remember [Mr Binjori], "I know he is a bad person”. Contrasting the mother with the father, the children then mentioned how “good” she is and told me she looks after them very well, and is never mean to them. [X] and [Y] expressed apprehension about seeing their father but this appeared primarily associated with fear of being kidnapped by him. They maintained that if they spent any time with him (either with or without supervision by another adult) he would forcibly remove them from their mother.
Dr E went on to note:
The children impressed as healthy and well-groomed, and were observed interacting naturally with [Ms Darmadi]. However, their current perceptions of, and comments about [Mr Binjori], appeared significantly influenced by her.
Dr E further comments at paragraph 74:
Given this, one felt reluctant to place much objective weight on their views.
The Court accepts the mother would have spoken to the children about being taken away by the father in circumstances where the mother made application for a recovery order for the children in 2006. However, the mother’s narrative to children of their relationship and her relationship with the father is particularly troubling to the Court, where, for instance, X is recorded saying the mother told him that the father punched her in the stomach when pregnant with X. In cross-examination of the mother, counsel for the father put to the mother (page 133 of the transcript of the mother’s cross-examination, paragraph 15 onwards) the following:
MS KAITI: Now, ma’am, you have said bad things about [Mr Binjori] to the children, haven’t you?
Response: I never said anything bad things about – bad things about the father.
MS KAITI: Yes, you have, ma’am, haven’t you?
Response: I haven’t.
MS KAITI: Ma’am, you told the family report-writer – and I’m going to read the family report. Do you remember Mr [E]?
Response: Yes. [Mr E]. Yes, I remember.
MS KAITI: [Mr E] said at paragraph 69 of the report that [X] said he remembered his father hitting him in the past. Further, the child has been told by [Ms Darmadi] that [Mr Binjori] punched her in the stomach when she was pregnant with him. Did you tell your son that [Mr Binjori] punched you in the stomach when you were pregnant with [X]?
Response: Yes.
MS KAITI: Okay. So you have said bad things about the father to your children, haven’t you, ma’am?
Response: Yes.
MS KAITI: Okay. Now, if the children were to start spending time with their father again, supervised, would you refrain from saying bad things about him?
Response: No.
MS KAITI: What do you mean, no? Will you start saying bad things about him again?
Response: Say – say – again, what did you say?
MS KAITI: If the children were to start spending time with their father in a supervised setting, so in a contact centre, supervised, would you start saying bad things about the father to the children?
Response: I will not say bad things.
MS KAITI: Thank you. Now, ma’am, you have told the children that the father tried to kidnap them, didn’t you?
Response: Yes, about [X] – [X].
MS KAITI: Right. So you told him that the father tried to kidnap him?
Response: Yes.
MS KAITI: Okay. And you’ve also told him that he tried to hit him with a stick, didn’t you?
Response: Yes.
MS KAITI: Okay. And is there anything – I’m going to ask you about the children again. Is there anything positive you have to say about the father to the children?
Response: I do say positive things, “Your dad do this, he do these things. It doesn’t matter if your dad do those things to you. He’s always going to be your father”.
MS KAITI: Ma’am, would you accept from me the children may be curious as to their father?
Response: Not really.
Counsel for the father further tested the mother following on from X’s comments made to Dr E that the father had hit the mother in the stomach whilst pregnant with X. These comments were found at paragraph 69 of the Family Report. Pages 145 to 147 of the transcript of cross-examination of the mother records the questioning of the mother on the topic. The mother was a difficult witness in the way in which she interrupted and pre-empted questions, but what ultimately flows from the cross-examination is a concession made by the mother that the father did not hit her in the stomach whilst pregnant with X. Rather, her evidence is that the father had hit her in the stomach whilst pregnant with Y.
What was demonstrated to the Court is that the children have a narrative about their father that has been provided to them by their mother, and that even on the mother’s version of her history with the father, is incorrect in part. The inconsistent narrative by the mother and the problematic manner in which the mother conducted herself in cross-examination left the Court to question the reliability of the mother’s evidence about the specific incidents of family violence. The Court was, however, left in a position where despite the mother’s problematic presentation and the manner in which she provided evidence during cross examination, particularly issues around her reliability, the court can and does find that the father had perpetrated family violence on the mother during their relationship.
Dr E, in the view of the Court, well summed up the issues for the children, found at page 11 of the family report under the heading Evaluation. It provides at paragraph 75:
During the interviews, the parties made strong mutual allegations which were not possible to substantiate during the assessment.
Paragraph 76:
According to [Ms Darmadi], the father is a violent man who perpetrated ongoing family violence during the relationship and physically mistreated [X]. Although the mother has suffered depression and continues to attend counselling, she cites the previous relationship as the cause. But it does not seem that the current state of mental health detracts from her day-to-day parenting.
Dr E notes:
According to [Mr Binjori], all the mother’s allegations are untrue. He claims her alleged mental health problems had nothing to do with him or their former relationship. While [Mr Binjori] does appear to have come to the attention of police in the past, he maintains all such occasions were due to [Ms Darmadi’s] false reports.
Dr E goes on to comment:
Given the above situation, there seems little or no room for self-reflection or compromise. The parties remain adamant, each seeking to prove the other ‘guilty’.
Paragraph 79, Dr E sets out:
[X] and [Y] have not had contact with their father going on for three years. Whilst their actual memories of [Mr Binjori] are somewhat vague, both children regard him as a threat to their security, arguably reinforced by [Ms Darmadi].
Dr E sets out at paragraph 80:
If the father has been violent as alleged by the mother, one would need to be extremely careful in re-establishing time with the children. Anger management counselling or completion of a program such as ‘Taking Responsibility’ would seem an essential prerequisite to any contact resuming. However, unless it is decided by the Court that [Mr Binjori] does pose a real threat to the children’s physical or emotional security, spend time arrangements would appear in their future interests. They share a number of physical characteristics with their father, and as they develop they can be expected to become more curious about their paternal ancestry.
Thankfully, Dr E’s cross-examination provided further insight into the issues for the children and a pathway forward that could allow the children to have a relationship with the father. Dr E suggested pathway (found at pages 198 and 199 of the transcript of Dr E’s cross-examination) provided that in order for the father to begin to resume contact with the children, the following occur - the father either simultaneously or one following the other obtain a 12-week mental health plan referral to anger management counselling, and also undertake a 20-week Facing Up to Family Violence course. Dr E was clear that there would need to be a period of supervised time. That supervised time should not commence until the father had what Dr E described as well and truly involved himself with the programs, because in Dr E’s view, the issue was one of testing the father’s motivation and willingness to continue. Dr E suggested that supervised time should not commence until the father had completed at least half of both the courses. In respect of the mental health plan referral, Dr E clarified that counselling should be undertaken by a psychologist, and perhaps the Independent Children’s Lawyer could recommend a psychologist.
At page 200 of the transcript (Dr E’s cross-examination on 18 March 2022), Dr E was taken to the recommendations he had made in the family report namely that the father’s time recommence at a contact centre and needed to be supervised for at least six months and then if feasible, progress to unsupervised arrangements. When asked whether he would change that recommendation Dr E stated:
I would probably change that recommendation now from at least six months, and I would say that he would had to have completed the anger management counselling, as well as the Taking Responsibility course before consideration of supervised contact occurs. In terms of the contact centre support, I would need to look at the contact centre records up to that stage to see how the father and the children’s relationship had progressed, and the contact centre is usually in a pretty good position in my experience to know whether it’s appropriate now to commence some unsupervised contact. Often what happens with situations where there has been ongoing contact for six to 12 months, the contact centre will then agree to be the changeover agent after a period of time and start off with, say, some day contact where the changeover occurs at the contact centre and the change-back occurs at the contact centre. So I would envisage something along those lines happening.
Dr E was cross-examined at length by counsel for the mother in respect of Mr Binjori’s presentation both during his interview with Dr E and his demeanour during the cross-examination. The point was made that the father presented as an angry person, would vent his frustrations and displayed what might be described as a wilfulness. Dr E was fairly blunt in response on the topic and ultimately put to counsel for the mother that this was precisely the point of the therapy and the anger management counselling, because these very issues are the issues which are discussed in detail in the counselling process.
The Court was left with the distinct impression Dr E’s recommendations were well considered.
There is currently an airport watchlist order. The orders were made pending further hearing on 13 March 2020 for the children to be placed on the airport watchlist. Counsel for the mother noted that neither party’s application was for the children to remain on the airport watchlist on a final basis. It is undisputed the mother is from Country G and she has lived in Australia since 2008 and became an Australian citizen in 2020. She has no intention to return and live in Country G. She has extensive family there. The children will get some sense of the mother’s cultural background if they are free to travel with her to Country G. If the orders were made for the mother to have sole parental responsibility, and the children live with her, it follows that the mother would be permitted to make decisions in relation to overseas travel for the children, including applying for passports, and in that regard, it was suggested by counsel for the mother the airport watchlist order should be revoked. The court agrees that the order should be revokes.
The Court considers the legislative pathway beginning at section 60CC. The Court considers 60CC(2A). There is a benefit to these children having a meaningful relationship with both parents, but in circumstances where the father can demonstrate a commitment to changing his historical behaviours around anger management and family violence.
This Court considers section 60CC(2). The Court finds there is a need to protect the children from psychical or psychological harm, from being subjected to or exposed to abuse, neglect and family violence from the father.
In order to ameliorate these issues and protect the children, the Court does look to the pathway proposed by Dr E.
As I have said, the pathway proposed by Dr E, where there is engagement by the father in anger management via a 12-week mental health plan referral, together with a 20-week Family Violence Men’s Behavioural Change course, will address the risk of the children being subjected to the family violence. The Court does not believe the children will be subjected to abuse. The Court does not accept that either parent should physically discipline the children. To ensure this does not happen, the Court proposes to make an order prohibiting either parent physically disciplining the children.
To ensure the children do not suffer psychological harm, the Court proposes to order that the father spend time with the children once per week for a period of two hours, supervised by a professional supervision service, with such supervision to occur only after the father has completed half of the 12-week anger management counselling course, and 10 weeks of the 20-weeks Men’s Behavioural Change course sessions.
The supervised time shall continue for a period of not less than six months and continue until the latter of the following three caveats:
(a)the father has completed his anger management counselling and Men’s Behavioural Change course;
(b)the father has completed six months of supervised time; and
(c)the father has obtained a report from the supervision service that indicates the children’s time with the father has gone well, in that the father and the children appear relaxed and happy in their relationship with one another.
The Court determines that in order that the children be protected from family violence, handovers of the children should be conducted by a professional supervision service, and that all communication between the parents, except in the case of an emergency, should be conducted through a separated family telephone communication application, such as MyFamilyWizard.
The pathway proposed by Dr E where there is engagement by the father in anger management counselling pursuant to a 12-week mental health plan and referral, together with a 20-week Family Violence Men’s Behavioural Change course, coupled with a supervised regime that moves forward only if the father passes certain thresholds will address the issues for the children.
The children have expressed fear regarding their father. Those fears are, however, as a result of things told to them, in the view of the Court, by the mother. The Court gives the children’s views little weight where they have a limited level of achieving understanding necessary to in effect sift through the mother’s narrative and determine for themselves their relationship with their father.
The nature of the relationship with the father is one of absence. The children clearly love their mother and have a strong loving bond with her. This is not a case about either party failing to take the opportunity to participate in making a long-term decision in relation to the children or communicate with or spend time with the children. The father has made no real effort to pay child support. He has failed to maintain the children.
There will perhaps be a change in the children’s circumstances in that they may commence spending time with the father again, and I use the words “perhaps” and “may” as time is conditional upon the father’s engagement. One where the father’s motivation and willingness to do what is asked of him will be tested.
The father has indicated to the Court he is prepared to do whatever is asked of him in order to have a relationship with his children. Where the father does what is asked of him, the children will be separated from the mother when they spend time with the father. However, that separation will not be so significant that it would cause any detriment to the children or adversely affect the stability of their relationship with the mother.
The Court considers the practicality and difficulty of the children spending time with the father. Should the Court ignores expenses such as costs of supervision or supervised handovers and simply orders each party pay half the proposed orders will fail. The court notes the mother’s position where she receives no financial support from the father. She cannot in the view of the Court afford to contribute towards the cost of supervision. Making an order for these parties to equally contribute to the costs and expenses of supervision could see the orders for supervised time fail and substantially affect the children’s right to maintain personal relations and direct contact with the father.
The Court finds that the father should bear the financial cost of paying for a professional supervision service and any supervised handovers.
If the father completes his anger management counselling and Men’s Behavioural Change Course for the Perpetrators of Family Violence, then the Court will be satisfied that the father has the capacity to provide for the needs of the children, including their intellectual and emotional needs.
The mother has the capacity to provide for the needs of the children, including their intellectual and emotional needs. However as set out earlier in this decision, the Court is concerned about the mother’s narrative she has provided to the children about the father. As a means of bolstering the mother’s capacity around providing for the children’s emotional needs, the Court proposes to give the mother guidelines about how she will discuss the father with the children by way of injunction.
The Court will make an injunctive order that prevents the mother discussing these proceedings or any negative views that the mother holds about the father, or speaking badly about the father with the children. Whilst the mother has had some mental health history, the Court has regard to the report of Dr E and finds the mother’s mental health does not prevent the mother providing for the needs of the children, including their intellectual and emotional needs. Further, the Court finds that a reintroduction of the children to the father that transitions into spending unsupervised time with the father is not an issue supported by the evidence in a way that would persuade the Court to find such an outcome for the children would have such an effect on the mother that it would diminish the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs.
There is nothing in the material as to lifestyle, sex or background (including lifestyle, culture and traditions) of the parents or children that are determinative to the extent that it would have an impact on the orders proposed by the court. The Court notes the children are not Aboriginal or Torres Strait Islander children.
The mother and father can be criticised by the Court with respect to their attitudes towards the responsibilities of parenthood. The mother has provided the children a negative and damaging narrative about their father. The Court and in particular the father has had the Family Report prepared by Dr E for a long time and has failed to complete the counselling as recommended by Dr E. There has been family violence perpetrated by the father against the mother, the degree of which is unknown, where the mother has presented as an unreliable witness. The Court notes the allegations made by D and associated ADVO. The Court understands this ADVO was made by consent. They are allegations of which are disturbing, but they were at the time of the hearing nothing more than untested allegations about which the Court can make no findings.
The Court notes the ADVO as between the mother, the children and the father for the mother and the children’s protection has now expired. The Court draws inferences the ADVO was made as a result of family violence.
The Court proposes to make orders that embody the recommendations of Dr E where such orders are least likely are to lead to the institution of further proceedings because they are clear as to what the father must do.
The Court notes the father consented to an order that the mother have sole parental responsibility. The Court accepts the father’s concessions as a sensible one where the Court would have in any case rebutted the presumption in favour of equal shared parental responsibility based upon family violence, and otherwise where it was not in the best interests of the children because of the inability for the parents to communicate. To be clear had the court made an order for equal shared parental responsibility such an order would have likely led to the institution of further proceedings.
While the Court is not bound to consider the provisions of section 65DAA, it does so for the purposes of considering what time arrangements should exist between the father and the children beyond the initial period of the father undertaking counselling and supervised time in accordance with the recommendations of Dr E. The Court finds that equal time would not be in the best interests of the children, having regard to those matters set out at section 60CC(2)(a) and (b) and (3)(a) through to (m), nor reasonably practicable having regard to those matters set out at subparagraph (5) of section 65DAA, specifically noting the parents’ lack of capacity to communicate and in particular the parents’ current and future lack of capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement of equal time.
Similarly, the Court finds that substantial and significant time as defined by subparagraph (3) of section 65DAA is not in the best interests of these children, having regard to those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), nor is it reasonably practicable having regard to those matters set out at subparagraph (5), particularly the parents’ lack of current or future capacity to communicate sufficiently to overcome the issue that would arise in implementing arrangements of substantial and significant time.
For the reasons set out above the Court makes the following orders:
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 10 October 2022
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