Bourreau & Ivers
[2024] FedCFamC1F 807
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bourreau & Ivers [2024] FedCFamC1F 807
File number(s): NCC 1607 of 2022 Judgment of: SMITH J Date of judgment: 23 October 2024 Catchwords: FAMILY LAW – CHILDREN – review of decision by Senior Judicial Registrar – ex tempore - father seeks supervised communication transitioning to unsupervised communication – father seeks professionally supervised time –mother and Independent Children’s Lawyer oppose the father’s application –father has an acquired brain injury – evidence of father’s difficulty regulating his emotions and behaviours – evidence of family violence – risk of psychological harm from presentation – possibility of no time no communication order at trial – where the court must balance the risks and benefits – where the court must consider the views of the children – where the risks can be adequately ameliorated through supervision – benefit of information for final hearing - orders for supervised communication and time Legislation: Family Law Act 1975 (Cth) Pts I, VII, ss 4AB, 60CA, 60CC, 61B, 61C, 64B, 65AA, 65D Cases cited: B & B (1993) FLC 92-357; [1993] FamCA 143
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Deiter v Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
M v M (1988) 166 CLR 69; [1988] HCA 68
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Re Andrew (1996) FLC 92-692; [1996] FamCA 43
SS v AH [2010] FamCAFC 13
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 23 October 2024 Place: Newcastle Solicitor-Advocate for the Applicant: Ms Single Solicitor for the Applicant: Single Law Solicitor-Advocate for the Respondent: Mr Clack Solicitor for the Respondent: Family Law Service For Aboriginal Communities - Legal Aid NSW Counsel for the Independent Children's Lawyer: Ms Adams-Nash Solicitor for the Independent Children's Lawyer: Ashby Family Solicitors ORDERS
NCC 1607 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOURREAU
Applicant
AND: MR IVERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
23 OCTOBER 2024
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
Communication with the father
1.Ms X (born 2006), Y (born 2011) and Z (born 2015) (“the children”) shall communicate with MR IVERS (born 1975) (“the father”) via telephone or facetime every second Wednesday from 4.00 pm until 4.30 pm.
2.These calls are only to be made in the presence of Ms C.
3.To facilitate the telephone or facetime communication, the father shall purchase a device for the children, and be liable for the associated costs, and arrange for it to be delivered to the solicitor for MS BOURREAU (born 1983) (“the mother”).
4.The father shall call the children at the commencement of the scheduled time and the mother shall do all acts and things to facilitate the father’s communication with the children.
5.The mother is to hold this device at all other times and the father is not to contact this device at any other time or otherwise seek to contact either child.
6.Ms C is to file an up-to-date undertaking to the Court satisfactory to the Independent Children’s Lawyer (“ICL”) stating that:
(a)Her duty is to the Court to protect the children from psychological or emotional harm; and;
(b)She will immediately terminate the contact if the father is highly emotionally unregulated, makes inappropriate comments, or otherwise says or does anything which might expose the children to psychological or emotional harm; and
(c)She will provide to the ICL and the Court frank summaries of these conversations, including where these summaries are adverse to the father’s interests in these proceedings.
7.These calls will commence 30 October 2024, subject to compliance with Order 6 herein.
8.There shall be no communication between the father and the children or either child other than in accordance with these Orders.
Time with the father
9.The children’s time with the father is to be supervised by B Organisation (herein referred to as “the contact centre”).
10.The children shall spend time with the father for four (4) hours, if possible, from 12.00 pm to 4.00 pm or at such times as nominated by the contact centre, every fourth Saturday.
11.To facilitate the children spending time with the father, each party must:
(a)Contact B Organisation within seven (7) days to arrange an appointment for assessment for suitability;
(b)Attend the assessment made by the contact centre;
(c)Comply with any appointment made by the contact centre;
(d)Comply with all reasonable rules of the contact centre; and
(e)Comply with all reasonable requests or directions of the staff of the contact centre.
12.If the parties are accepted following intake procedure, then the children are to spend time with the father on the first available Saturday, and every fourth Saturday thereafter.
13.The time is to be implemented by the mother delivering the children to the contact centre at the start of the father’s time with the children and collecting the children from the same place at the end of the father’s time.
14.The parties are not to interact if possible, and otherwise only to the extent necessary.
15.The mother shall pay $20.00 of the fees nominated by the contact centre for the provision of each visit and the father shall pay the remaining sum.
16.The father will reimburse the mother any public transport costs associated with the mother transporting the children to and from the contact centre, including of the mother attending the centre for intake, within 7 days of being notified of that sum.
17.No other family member or person, other than a paid NDIS support worker including Ms C, is permitted to attend the contact centre with the father, nor to be present for the father’s time with the children.
18.A copy of these orders may be provided to the Contact Centre.
19.There shall be no contact or time between the father and the children or either child other than in accordance with these Orders.
Liberty to approach
20.The Independent Children’s Lawyer has liberty to approach the Court on short notice if any issues arise.
THE COURT FURTHER ORDERS THAT:
21.The mention listed for Monday, 16 December 2024 be vacated.
22.The matter be listed for mention on Friday, 7 February 2025 at 10.00 am by Microsoft Teams
Conciliation Conference
23.The parties and any lawyers on the record shall attend a Conciliation Conference with Judicial Registrar Furner at 9.00am AEDT on Thursday, 19 December 2024.
24.The Independent Children’s Lawyer is excused from attending the Conference.
25.The parties and any lawyers on the record shall follow any directions from the Judicial Registrar convening the Conference in relation to attendance in person, by Microsoft Teams or by telephone.
26.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012, the Applicant and Respondent must each pay one half of the Conciliation Conference fee by 4.00pm on 5 December 2024.
27.Not later than 4.00pm on 5 December 2024, each party must:
(a)Ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)Ensure that any private Expert Report that is relevant to the proceedings has been filed;
(c)Provide to the Court by email to …@... and to the other party a single collated bundle of documents comprising:
(i)A completed Confidential Outline of Case (Dispute Resolution) in the approved form, including:
1.A list of documents relied upon;
2.A Balance sheet;
3.An outline of the issues relevant to property adjustment;
4.A brief chronology relevant to the issues in dispute;
5.An outline of the issues relevant to maintenance;
(ii)A detailed minute of Orders Sought in an unprotected word document;
(iii)A copy of any previous or current family violence orders;
(iv)A copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v)Particulars of any financial resource;
(vi)Any valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)Statements for, and where applicable, valuations of any superannuation interest;
(viii)Written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
28.Not later than 4.00 pm on 5 December 2024, the Applicant is to file a collaboratively prepared single Balance Sheet setting out all assets, liabilities, superannuation and financial resources which the parties assert are relevant to the determination of this matter and the document shall have footnotes which explain the differences between the parties in relation to any disputed item.
29.Leave is granted to each party to re-list the matter for a procedural hearing before the docket Justice should either party consider there is an impediment to genuine settlement negotiations occurring or continuing or should it become known to either party that the Conciliation Conference may not proceed effectively for any reason.
30.In the event either party fails to comply with the above directions, the docket Justice or the Registrar before whom the Conciliation Conference is listed before may vacate the Conciliation Conference and a further Conference may not be allocated until the Judicial Registrar is satisfied that the matter is ready.
THE COURT NOTES THAT:
A.If the father does or says anything that the contact centre considers is, or may be, emotionally or psychologically damaging to the children, the contact centre is asked to terminate the session and to notify the ICL forthwith.
B.Any outstanding disclosure, valuation/s and procedural fairness must be attended prior to the Conciliation Conference and costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
C.The Conciliation Conference is a Court event for the purposes of rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The parties and their lawyers must comply strictly with their obligations under that rule. Prior to the Family Dispute Resolution Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
(a)the total costs and disbursements incurred by the party in the proceeding to date;
(b)an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
(c)an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
D.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the Conference.
E.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
G.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Bourreau & Ivers has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short-form oral reasons for decision in an application for interim parenting orders in parenting proceedings related to two children, Y, age 13 and in year 7, and Z, age nine and in year 3, who I will refer to as the children.
The parties are the applicant mother, Ms Bourreau, aged 41 and the respondent father, Mr Ivers, aged 48. Mr Ivers is the applicant before me for interim orders.
The parties also have three adult children: Ms E, born in 2002, Ms F, born in 2003, and Ms X, born in 2006. Ms X was a subject to these proceedings until earlier this year. Ms F, I note, has participated in interviews and has given evidence through the Family Report process.
BACKGROUND
The short background is that the parties commenced a relationship in 1999, married in 2004, and separated on a final basis on about 18 March 2022. The mother left the home and relocated from Town D to Region G of New South Wales in the context, she says, of significant family violence.
These proceeding commenced on 7 June 2022, when the mother filed an application for final orders. An Independent Children's Lawyer (“ICL”) was appointed for the children on 3 August 2022.
The parties reached consent interim orders on 30 November 2022, for the children to live with the mother and for the children to spend time with the father, each alternate Saturday and Sunday for four hours from 12.00 pm to 4.00 pm, with changeovers in Region G. It was further agreed that Ms X would spend time with the father in accordance with her wishes. There were also orders made for communication between the children and the father, for the parents to undergo random drug, urine screens, and CDT testing at the request of the ICL, as well as a variety of mutual restraints.
From about November 2022 until about 6 May 2023, the children spent time with the father in accordance with the interim consent orders.
The Child Impact Report (“CIR”) was completed by the Court Child Expert, Ms H on 4 May 2023 and released on 6 May 2023. That report contained highly concerning material and raised significant issues of risk in both households. Specifically, in relation to the father, (included at [13]-[15]), was the children's consistent histories of witnessing the father's family violence, including the history that Ms F, then an adult, but still interviewed, confirming the mother's allegations of long-standing serious family violence at [16], and the father's strong denials at [17].
A significant feature of the CIR was the unreliability of the father's evidence, noting that much of what was said was not confirmed by the children, but his denials about mental health issues, alcohol and drug use, were shown by the subpoena material to be incorrect.
The CIR also raised significant issues of educational neglect, that the children were regularly hungry and lacked adequate food; and evidence, also established in the Report, that Ms F and Ms X, to some extent, were effectively parenting the children at [19]-[20]. There were significant issues raised of risk of sexual harm to the children. For example, Ms E was sexually assaulted as retribution by people known to the father, and those people were subsequently convicted.
There was an incident due to the father associating with drug dealers. There were issues that the father's sister, Ms J, who he proposes to call as a witness in his case at the final hearing, was alleged by Ms F to have tried to groom her whilst underaged and Ms J was said by the children to have engaged in family violence against them, all without the father taking any steps to protect the children.
The father said he enjoyed good mental health, but he acknowledged an acquired brain injury from childhood. That acquired brain injury, in relation to which there is not a great deal of material before me, but to which the report writer has referred and I note the psychiatric and other material, clearly had a significant impact on the father's presentation and capacity to regulate his emotions and behaviours.
Although, as I raised during oral submissions, there is no, or perhaps one might say, reduced, moral culpability in the father in relation to conduct consequent of the acquired brain injury, that cannot affect the assessment of risk of harm to the children from his behaviours, where it is the children's interests, not the fathers, that are the subject of these proceedings.
The children reported, at [31] of the CIR, that the father was an illicit drug user, which the father denied. It is clear from the evidence in the subpoena material that he is or has been.
Paragraph [32] of the CIR reads:
32.Impaired parenting capacity and functioning. [Ms F] and [Ms X] advised the father does not have any capacity to provide any care for any children and that he would continue to place [Y] and [Z] at risk of harm if he was to spend any time with them. [Ms F], [Ms X], [Y] and [Z] advised they have no memories of being parented by the father, and advised he was largely absent from the home, or spent significant periods of time in bed sleeping, that he cannot cook, drive, complete simple tasks, organise his time or meet their individual or collective needs. All children advised [Ms F] and [Ms X] were the primary care providers in the home due to due the ongoing family violence and the parents being regularly effected by alcohol or cannabis, and also sleeping for extended periods of time.
The CIR further read:
52.Clear interim and final orders for no time between the children and their father would provide the children with safety and reduce the children’s anxiety around seeing their father.
I have not gone through the very many concerning matters in the mother's household which are also of real concern. I note there has been DCJ involvement, but in circumstances where there is no contest that the children should live with the mother, and the only issue before me is whether there should be supervised time, and supervised and then unsupervised communication, between the father and the children, it is not necessary, despite the submissions made for the father, for me to go into detail on the risks in the mother's household.
In the context of the CIR, on 22 May 2023 orders were made by consent suspending the father's time and communication with the children. That hearing occurred before a senior judicial registrar. The father was self-represented and denies he understood that he was consenting, saying, in fact, he was not consenting but was rather seeking an adjournment. That may have been his view, but I have no reason to doubt the accuracy of the record. The father has not seen or communicated with the children since.
A Family Report was ordered on 30 May 2023, and Dr K prepared a report dated 20 December 2023, which was released in January 2024. That report also contains many concerning matters.
The matter was transferred to Division 1 on 8 April 2024.
APPLICATION
The application before me arises from an Application in a Proceeding filed on 5 April 2024 by the father, which was subsequently amended on 10 July 2024. He seeks, as articulated in his written submissions, effectively, supervised communication transitioning to unsupervised communication and professionally supervised time with the children.
That application was heard before a senior judicial registrar on 16 August 2024 and was, in effect, rejected. The father filed an Application for Review on 5 September 2024 and that is the matter that comes before me now to effectively determine the interim application of July 2024 on a de novo basis. Effectively, the order under review of 16 August 2024 is one which dismissed the application.
There is, as I said, no current dispute that the children should live with a mother.
The father presented his application. The mother and the LCL both oppose the application.
I note the mother is employed casually in hospitality, working weekends, as I understand it. The father is on a disability pension for an injury in 2008 and has quite a significant NDIS funding package, from what he says about the supports he is receiving.
The parties also have property proceedings on foot but given this review hearing was aimed at aspects of parenting, financial aspects of the matter were not before me. I have made orders by consent for the parties to attend a conciliation conference, given that the pool is about $650,000. That will occur on 19 December 2024, and I make those orders. I note the ICL is excused from attending.
The parties' financial position is relevant to the fact that any supervision would need to occur at a subsidised centre.
REVIEW HEARING
At the review hearing before me, the father relied upon:
(1)Case summary, including chronology and up to date minute of orders sought filed 21 October 2024;
(2)Amended Application in a Proceeding filed 10 July 2024;
(3)Affidavit of Mr Ivers filed 10 July 2024;
(4)Updating Affidavit of Mr Ivers filed 26 September 2024 (relating to courses the father has completed to address the issues raised in the CIR and Family Report);
(5)Affidavit of Ms C filed 26 September 2024 (a support worker of the father, who has relevant qualifications, who is paid through the NDIS to support the father); and
(6)Exhibit F1 at the original interim hearing – the summary of which was included in the father’s case outline and was accepted as accurate.
The father also relied upon updated CDT test of July 2024 and urine test of July 2024, which showed only the medically prescribed cannabis in his system.
The mother relied upon:
(1)Case outline filed 6 August 2024;
(2)Response to Application in a Proceeding filed 6 August 2024; and
(3)Affidavit of Ms Bourreau filed 6 August 2024.
The ICL relied upon:
(1)Case outline filed 6 August 2024;
(2)Child Impact Report dated 4 May 2023; and
(3)Family Report, prepared by Dr K, dated 8 January 2024.
PROPOSALS
The father's proposal, in effect, is for communication via telephone or FaceTime every Wednesday from 3.30 to 4.00 pm, supervised by an employee of L Organisation, which I understand is Ms C's company, for a period of eight weeks, and then, after that, ongoing communication unsupervised, as I understand it, every Tuesday and Thursday from 7.00 to 7.30 pm, and at other reasonable times, if requested by the children. He makes proposals about providing a device for this communication to occur on.
He also proposes for the children to spend supervised time with him from 12.00 noon to 4.00 pm, every third Saturday in Region G, where the mother now lives, supervised by Ms C, or if unavailable, one of her employees, or a subsidised centre. He sets out proposals for how that will work, including the intake. He says the parties should pay half the fees nominated by the contact centre for provision of service. During today’s hearing, the father indicated through his legal representative, that he thinks the cost for supervision is about $40 through B Organisation, who have availability. Until the supervision centre is available, he also wants time to be supervised by Ms C or one of her employees, subject to her providing an undertaking.
THE EVIDENCE
I will come to the critical evidence, which is mainly in the Family Report, in a moment. I have already indicated what is in the CIR.
The father's affidavit, filed 26 September 2024, details the courses he has completed since his affidavit filed in July 2024. That includes the Triple P parenting course. He is seeking and obtaining a national police certificate and working with children checks. He has continued to engage a behavioural support practitioner, who completed a functional assessment dated 16 September 2024, which is relied on to show his improved functional parenting capacity. He says he has continued to engage with his general practitioners, occupational therapists, and an alcohol and drug worker.
RISKS OF SUPERVISED COMMUNICATION OR TIME
The major opposition by the ICL and the mother, which the father implicitly accepts, is that there is a case of unacceptable risk available. That is why he seeks, in respect of time with the children, supervised time.
There is no doubt that the material disclosed in the Family Report does provide a case, if accepted in its entirety, of unacceptable risk. And I think it is reasonable to say that there is the prospect, as the ICL says, that a justice of this court, whether it is me or someone else who hears the matter at final hearing, might come to the conclusion that this is a no time, no communication case, given the significant evidence of family violence and also, significant evidence of the father’s difficulty with emotional regulation.
Nevertheless, as I raised with the ICL, that is not unusual. The reason we have interim orders is to protect the position until we have a final trial. If there is supervision at a supervision centre, it seems unlikely there is physical risk. The father is not in that category of people where their behaviours are such that even in the presence of third parties I would assess physical risk as significant.
The major opposition by the ICL, supported by the mother, to the recommencement of communication and time were said to be two things.
Firstly, that the father's behaviours, as noted in the CIR and the Family Report, give rise to a risk of psychological harm. I think that is a reasonable argument. Secondly, the concern that the recommencement of communication and time could be harmful, given that there is a risk there will be a no time order. That, unfortunately, is always an incident of the issue of time continuing until you can get to a final hearing.
I am going to start with a question of presentation, which goes to psychological risk. In the CIR the expert noted:
41.The father was extremely difficult to engage, presented (for the most part) as childlike in his demeanour, would wander off camera whilst speaking with the CCE, appeared to be easily distracted, talk off topic, he often did not answer a direct question and was observed to transition from laughing to crying to laughing. The father was also observed to defer to [Ms J] and answer on his behalf and [Ms J] was also heard to answer (at times) for the father. The father appeared to have a very limited understanding of the children’s needs, and denied he had impaired parenting capacity and functioning and held the view he was more than capable of safely parenting [Ms X], [Y] and [Z].
I also note what she said at [52], as set out previously.
Now, the Family Report also set out the father's presentation:
37.The respondent father [Mr Ivers] presented to the family assessment centre on time and was accompanied by his NDIS support worker who sat in on the interview. The father was particularly well groomed, and he was a willing participant. However, it was an extremely difficult interview as the father was unable to present a coherent narrative. He spoke in tangents, could not answer questions, provided excessive and irrelevant detail and he was unable to appropriately regulate his emotions. He presented at times with a childlike and exaggerated sense of humour which often interfered in the interview. This was interspersed with sudden onset and extreme emotional distress. It was difficult to interrupt the father and re-focus him. Most of what he spoke about could not easily be understood, and when attempting to clarify he quickly became agitated, overly heightened, raised his voice and at times became angry.
38.The father was highly focused on defending himself from the accusations contained in the mother’s affidavit, even if it was not the focus of the conversation. He was also highly focused on the unjust nature of the legal system and how his children now represent a repeat of the stolen generation. He also became highly and loudly emotional when talking about how much he loves and misses his children. He moved his body in unusual and hyperactive ways. He constantly contradicted himself and changed his story. As a result of the father’s difficulty in appropriately participating in the interview, there was limited relevant information obtained.
39. However, it is noted that once the father’s attention was gained, he could be calmed. He was quick to present compliant and often apologised for his emotional dysregulation and tangential narrative. The support worker also at times intervened, and gently reminded the father to calm and refocus which he did. It was clear that the father and support worker had well developed rapport and a trusting relationship.
…
58.The father stated that he does not have a history of poor mental health. He stated that he has attention deficit hyperactivity disorder. He noted that following a serious […] accident, he saw a psychiatrist and was admitted to hospital involuntarily. The father believes he was “gaslit” and the hospital stay was unwarranted. He stated that when he was detained in hospital, they thought he was affected by drugs, however the hospital completed drug testing and there was nothing in his system. The father stated that the heightened state he presented at the time reflected his usual functioning. The father further stated in a comical way that the heightened state he was presenting with during the family assessment interview was his usual style of functioning. The NDIS support worker laughingly reported that this was actually his calm and improved state. The father’s affidavit indicates that the father has a brain injury sustained from child illness and that he has a diagnosis of post-traumatic stress disorder related to childhood trauma.
59.It is noted that information obtained from the children indicate that there have been occasions when they have been required to engage in unusual interactions with the father. On some occasions one child has been woken in the night and encouraged to search the property with the father for intruders that were allegedly not present. On other occasions they have had to reassure the father there are no worms buried in his skin. There is a police report within the subpoenaed information that indicates the father presented with aggressive and paranoid behaviour that appeared to be a consequence of significant drug use. It was reported that the father called police and when they arrived, he was undressed, salivating, staggering, and rambling.
60. Subpoenaed […] Hospital records indicate that [in] 2020 the father was detained as a mentally ill person due to delusions, aggressive behaviour, psychomotor agitation, rambling and paranoia. It was suggested that the father was experiencing mania secondary to [drug] use and he required containment and observation as he was at risk of misadventure and harm to others. A psychiatrist concluded that a working hypothesis was that the father had mood disorder with psychotic symptoms secondary to a brain vulnerability related to previous substance use. Further medical records indicate that the father has in the past had [an illicit drug] and marijuana addiction.
I understand the support worker referred to in the material set out above was Ms C.
CHILDREN’S VIEWS
I am required to consider the children's views, particularly Y's, given she is now 13, and by the time this trial is completed, she is going to be closer to 14 than 13.
At 14, if she maintains the views she has expressed, they are going to have to be given considerable weight, subject to the issue that Z's wellbeing may weigh against Y's views. But that is a matter for trial. Y’s views are set out at [77]-[79] of the Family Report, and include not only her views about spending time with the father, but her ongoing position that he was a family violence perpetrator:
77.[Y] is the 12-year-old Subject Child. She is in year 6 at school. She stated that she enjoys school, she likes to draw and is on the school [sports] teams. [Y] reflected on her mother and stated that she is nice, and confident. [Y] stated that her mum used to drink alcohol however does not anymore. [Y] described her father as very controlling, and scary. She stated that her parents used to fight a lot.
78.[Y] reflected on the time she spent with her father on alternative weekends and stated that this was good. She noted that they went to [a venue], and swimming pools. She stated that she would like to see her dad again, and she would like it to continue on alternative weekends. She stated that she would also like to see her dad at his house. She stated that she misses the house. She stated that she identifies as Aboriginal, and she noted that this is important on her dad’s side of the family. She stated that she currently engages in Aboriginal learning at school, and she recently participated in the welcome dance at an Aboriginal Festival.
79.[Y] discussed her father’s sister, and she stated that she saw her hit, [Ms F], [Ms E] and [Ms X] with a stick. She stated that she ([Y]) and [Z] were too little and they didn’t get hit. [Y] described the fighting that occurred between her parents. She stated that her father hit her mother. She stated that it scared her, and the older kids protected her and [Z].
Z’s views to the Family Report writer were as follows:
80. [Z] is the 8 year old subject child. He stated that he lives with his mum and sisters and is in Year 2 at school. He stated that he does not like school, has friends, and likes to play [games and sports]. It is noted that [Z] has a significant language delay and a lot of what he tried to express was not clearly articulated. He stated that he has seen his father punching walls which was scary, he has seen him break a television, and he sometimes hit [Z] across the face and leg which [Z] stated hurt a lot.
81.[Z] stated that sometimes time with dad was fun for example when they were picking [fruit], and when they played on the trampoline. [Z] indicated that he wanted to see his dad and he missed him.
I note the observations with the father as recorded at [85] to [86]:
85. [Ms X] was asked if she would participate in an observation with the father and she cried and declined. [Y] and [Z] were happy to participate. [Y] and [Z] were excited to see the father, they ran down the hall and entered the room where the father was waiting. The father stood up and hugged the children and told them how much he missed them. The observation between the children and father was unusual, and entirely driven by the father. He was excited to see the children, and his physical demeanour and verbal engagement was agitated, loud, and childlike. It had a disorganised, heightened, and hyperactive quality to it. He spoke fast, and rapidly fired questions without waiting for the children to respond. For example, his fist attempt to engage them was “do you have any new interest? have you seen all your doctors? show me your teeth? have you learnt to swim?” In an unusual way, he nodded his head and said “mmm, yes, yes” immediately following his questions and prior to the children responding. It appeared to the report writer that he was not aware that the children had not yet responded before he was asking additional questions. He also moved very quickly from topic to topic, and he moved quickly around the room in an agitated manner. The children did try to speak, however the father jumped in prior to them completing their sentences and he either agreed with them by saying “yes, yes”, or he rapidly changed the topic.
86. Some of the conversation was also too adult and not targeted at the children’s developmental or interest level. He told the children he had been learning a lot, he explained the complicated system of after pay, his process for learning to pay bills and keep a clean house. He noted [Y’s] shoes were older than his, and he took them off her feet and tried to give her his. [Y] appeared shocked and worried however also laughed at how funny the suggestion was. She told the father that his feet were bigger than hers and she was wearing her school shoes which she needed. The father then settled and put his shoes back on and returned hers. It is noted that [Y] appeared aware of the unusual nature of the interaction, while [Z] was less attuned. It is also noted that while this style of interaction would be tiring over an extended period, in the short time it was comic and playful, the children were having fun, and there was a lot of laughter.
So, it appears clear, that despite what the mother says in her current affidavit, and I do not suggest she is not saying the truth, when she says there has been a suggestion that no time is now sought by the children, but there is always a risk children will tell a parent what the parent wants to hear. And what I do have is from the Family Report writer statements of views, and the fact that it does appear the children were very keen to spend time with the father.
It is not unusual for a child to want to spend time with a parent, even when that parent has engaged in family violence against them. It is a complex question and one that will need to be considered at a final hearing weighing views and risks.
I do note what Dr K said of the children's views:
94. It is noted that all children reported feeling scared of the father, and none of them wanted to move into his care. [Ms X] did not want any communication with the father and the father is content to allow [Ms X] to choose when she engages with him. [Y] and [Z] indicated a desire to spend time with the father, however it is noted that they do not understand the implications of their views, and they do not have a strong history or understanding of appropriate safe adult behaviour to compare their experiences to. Therefore, little weight should be given to their views. While it is often beneficial for children to maintain relationships with both parents, their safety is paramount and in this matter the children’s safety is the key consideration.
However, as I have said, I think that is relevant for Z. Given Y's age and growing autonomy, that she will be closer to 14 than 13 at the time the matter is resolved, I consider I must give some weight to Y's views, although not necessarily to Z's. But I think it would be unwise to separate the children in terms of orders made at this stage, and no one suggested that I should do that.
I note, it is also clear that the father has significant mental health concerns. Now, whether they arise from his acquired brain injury, or possibly, as it was suggested in some of the subpoenaed notes set out in the Family Report, as a consequence of:
60. … mania secondary to [drug] use and he required containment and observation as he was at risk of misadventure and harm to others. A psychiatrist concluded that a working hypothesis was that the father had mood disorder with psychotic symptoms secondary to a brain vulnerability related to previous substance use…
There can be no doubt that the father's presentation is one of significant emotional liability, and that these are real concerns.
The father's interactions with the children, and Ms C's comments about the father having a good day, also provide substance to the concerns of the ICL and the mother, that if the children spend time with the father, they may be subjected to inappropriate conduct that could be psychologically harmful. In that regard, on the question of whether unsupervised communication should occur, I also refer to the text messages between the father and Ms X at annexure A to the mother's affidavit, where the father repeatedly accuses Ms X of lying to the expert about his family violence, the family violence which her elder sister and the other younger children, as well as the mother, also attest to. And he tells Ms X that “karma has a price and our ancestors are watching”,[1] relying upon the children's Indigenous ancestry to try and shame her or stop her from speaking what appears, on the available material, the truth, and certainly, the truth as she believes it.
[1] Mother’s affidavit filed 6 August 2024, Annexure A.
That shows that the father presents a significant risk of psychological harm to the children with unsupervised communication, given that they too, in particular, Y, disclosed to the expert the father's history of family violence.
So, the risk that the father would say to either Y or Z, “why have you lied about these things?” That poses a real safety risk. So, the question, then, is, can that risk be ameliorated by supervision?
I have noted the children's Indigeneity. The Family Report addresses this:
96. It is noted that the children are Indigenous Australian, and this is important to them. It is essential that regardless of who the children reside with, that their cultural identify and connection is well supported and maintained. It is noted that this appears to be a consideration that the children already well understand and seek, and that the parents each support.
However, the father's capacity to promote that cultural connection is subject to question and testing and very much dependent upon his parenting capacity and insight. I know he says it is improving, but that is very much an untested question.
I note the recommendations of the expert at [83]-[84]:
83. It is recommended that the Court further consider the benefit and risk to the children of maintaining time with the father, and the father’s willingness and capacity to maintain time with the children. If time occurs, it is recommended that it occur [in Region G] and is supervised. Appropriate supervision may be provided by the father’s current NDIS support worker, or one of the mother’s or children’s support workers, or it could be conducted by a formal supervision centre utilising the father’s NDIS support funding if appropriate.
84.It is recommended that the children do not maintain contact with the paternal aunt, [Ms J].
As I have said, the ICL and the mother say that the application should be dismissed. They say there is lack of insight into his behaviour, that there is a risk of psychological harm if he behaves in a very dysregulated manner, or if he, for example, accuses the children of lying about their experiences as they described them to the two experts, and that these are matters which I have given considerable thought to. The father says that supervision ameliorates the risks.
I note the ICL also has concerns that Ms X had expressed significant concerns, although an adult no longer subject to these proceedings, if the younger children spend time with the father that could impact on her mental health and also, the mother's mental health and the impact of the father spending time with the children, as I understand, is going to be a question at the final hearing. All those things are matters to be considered and weighed.
LEGAL PRINCIPLES
I will note that effectively, both parents seek parenting orders as defined in Part VII, Division 5, under s 64B and the Court's power to make the orders under s 65D; the paramount consideration of the best interests of the two children, ss 60CA and 65AA; the general considerations when determining the best interests of the children as set out in s 60CC. That is currently in force after the recent amendments.
It seems to me that the principles applicable to the determination of an interim hearing of parenting proceedings, as articulated by the Full Court over the years, have not changed, except to the extent necessary by reason of the recent amendments that the pathway is different.
Accordingly, as noted in Banks & Banks [2015] FamCAFC 36 at [48]–[50], the Full Court said at [48]:
… it will be the issues that are joined that will dictate which s 60CC factors are relevant.
I note that, as said in Goode & Goode [2006] FamCA 1346 at [68], this is:
… an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible…
I note, what was said in SS v AH [2010] FamCAFC 13 at [88], about the need for couching any findings with “great circumspection”. I note that Goode & Goode, at [81], still appears relevant. When the Court is faced with conflicting facts, it will help with evidence and disputes. However, the legislative pathway must be followed. The legislative pathway, as set out in [82], has now changed. But nevertheless, the Court still needs to consider the competing proposals, the issues in dispute, the agreed materials, and consider the s 60CC matters that are relevant, so [82] (a) to (d) are still relevant. I note what was in Marvel & Marvel (2010) 43 Fam LR 348 at [120], that:
… interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.
I note, it was said in Eaby & Speelman (2015) FLC 93-654 at [18] about:
… that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
I note, the risk approach that is required as set out at SS v AH at [100]; and see also Deiter v Deiter [2011] FamCAFC 82 at [61]. The unacceptable risk principles are as set out in M v M (1988) 166 CLR 69. I note what was said in B & B (1993) FLC 92-357 about the weighing of risks. I note what was said in Stott & Holgar and Anor [2017] FamCAFC 152 at [37], about the fact that:
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
The question then is whether the proposed safeguards will ensure the children’s best interest are served.
I note, obviously, under s 60CC(2) as it now stands, promoting the children's safety is the first issue. It seems to me that so long as the supervisors are aware of the obligations and act to protect the children, professional supervision will adequately deal with issues of safety.
I note the views expressed by the children. Both of them clearly want to have a relationship with the father, they are aware of his past behaviours and I note that, as I have said, Y is 13, going on 14, and not giving some weight to her views is problematic, and may lead, at some stage, to her doing her own thing in a way that may not be in her best interests.
I am not taking into account parental capacity, I presume the basis the father's parental capacity is very limited at the moment, which is why the safeguards will be required.
It is not clear, in the long run, whether there will be a benefit to the children of having a relationship with the father, and whether it will be safe to do so; however, it may be. And that is the issue that always arises in interim hearing: the need to balance and seek where possible to safely preserve the position for a final hearing.
Unfortunately, there are still delays.
I note that family violence has been referred to as a significant aspect.
I note that the children are Aboriginal or Torres Strait Islanders and that is something that must be considered.
I note the issue of parental responsibility in ss 61C and 61B. I am not going to make any orders about parental responsibility at the moment.
I note the definition of family violence in s 4AB.
Ultimately, it is a weighing exercise. I find that on an interim basis, there is a significant and active risk of physical or psychological harm to the children having any unsupervised time or any unsupervised communication with the father. As I have said, the father's text messages to Ms X show that unsupervised communications are going to be as unsafe psychologically as unsupervised time with the children. The question is whether the safeguards would be adequate, doing the best I can to assess the risks.
I understand and do not underestimate the ICL’s and the mother's concerns, I have noted the Re Andrew [1996] FamCA 43 question for the mother, and I have taken her position into account, I have concerns about the risk to the children of psychological harm if the father is unable to manage his emotional state, and there is the possibility that it will not be a no-time order.
Nevertheless, balancing the risks and benefits, and noting Y's view and her age, which I consider a very significant factor, and also, the benefit to the trial judge of independent supervision reports on balance, I consider that the safeguards of supervision of both time and communication by professional supervisors presently outweigh the psychological risks and make the risks acceptable.
If the father is unable to manage his emotions, either on calls or at the centre, based on evidence that will be provided by independent people in supervision reports, it may be necessary to terminate the time.
Nevertheless, I consider it in the children's best interest, overall, in the long run, to trial supervised communication and time.
The father puts forth Ms C, who is his paid NDIS supervisor, with relevant qualifications as a supervisor for phone calls in the short run. She has provided what I consider to be a sensible affidavit. There is some material about her in the family report. She says that though paid by the father, she will prioritise the children's safety. She notes she is a mandatory reporter. She has provided the signed undertaking to facilitate and supervise time. She has spent time with Y and Z and worked with the family. What she says in her affidavit persuades me that she does understand the issues. I do not accept the ICL’s objection, that because of her paid relationship with the father she is not a sufficiently independent person.
However, on balance, I do not consider it to be appropriate for Ms C to supervise in-person contact where independent reports would be useful. I do not consider her professional relationship with the father such as disqualify her from supervising Facebook or telephone contact. In coming to that view, I have had in mind what obviously in B & B about who should be a supervisor. I do not consider her to fall into the category of family or friends or people who do not understand the issues or risks. I will require her to provide a further undertaking, which I will come to in a moment in the orders.
I think the benefits of having independent supervisors for in-person contact, makes it more appropriate for supervision to be through B Organisation. It would be on a monthly basis.
I am also not going to make either the telephone calls, at the times or frequency the father wants, but weighing it all, I think there is a benefit, on an interim basis, for supervised communication.
The orders are set out now and those are my reasons.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 26 November 2024
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