BRIGHT & BRIGHT

[2018] FamCA 158

FAMILY COURT OF AUSTRALIA

BRIGHT & BRIGHT [2018] FamCA 158

FAMILY LAW – CHILDREN – With whom a child spends time – Where the parties live in different States – Where the parties allege the children are at risk of harm in the other’s care – Concluded the risk of harm posed to the children by their exposure to the father’s violent and controlling conduct can be initially managed with short supervised visits, but graduating to unsupervised visits of modest duration – Ordered the children live with the mother and spend time with the father – Time with the father in 2018 is supervised once per month and from 2019 is unsupervised for 3 days in each school holiday period.

FAMILY LAW – CHILDREN – Family violence – Where the presumption of equal shared parental responsibility does not apply – Concluded the father’s volatile behaviour fulfilled the definition of “family violence” – Concluded the father showed little insight into the effects of his behaviour on the mother – Concluded the evidence suggests the father’s psychological disturbance is not entirely resolved – Ordered mother is to have sole parental responsibility for the children.

Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA

APPLICANT: Ms Bright

RESPONDENT: Mr Bright

INDEPENDENT CHILDREN’S LAWYER: Harpers Legal

FILE NUMBER: NCC 2037 of 2015

DATE DELIVERED: 16 March 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 26, 27 & 28 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mueller

SOLICITOR FOR THE APPLICANT: Katie Smith Solicitor

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Court

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harpers Legal

Orders

1. All former orders relating to the following children are discharged:

   (a)       B, born … 2006; and

   (b)       C, born … 2011.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The parties shall take all reasonable steps to ensure the children spend time with the father as follows:

   (a)       Subject to compliance with Order 5:

   (i)On Saturday 24 March 2018;

   (ii)On Saturday 21 April 2018;

   (iii)On Saturday 26 May 2018;

   (iv)On Saturday 30 June 2018;

   (v)On Saturday 28 July 2018;

   (vi)On Saturday 25 August 2018;

   (vii)On Saturday 29 September 2018;

   (viii)On Saturday 27 October 2018;

   (ix)On Saturday 24 November 2018;

   (x)On Saturday 22 December 2018

   (b)Subject to initial compliance with Order 4(a) and continuing compliance with Order 6:

   (i)On Friday 25 January 2019 from 9.00 am until 5.00 pm;

   (ii)On Saturday 2 March 2019 from 9.00 am until 5.00 pm; and

   (iii)Thereafter, for the first three days of each school holiday period, commencing at 9.00 am on the first day following the last day of school term and ending at 12.00 noon three days later.

5. For the purpose of implementing order 4(a):

   (a)The time spent by the children with the father shall be supervised by staff of “D Group”, staff of “E Group”, staff at “F Group”, or some other person or entity nominated by one of those organisations or persons, in that order of priority (“the supervisor”).

   (b)In the event of disagreement between the parties, the mother shall do all such things necessary to engage the supervisor.

   (c)The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

   (d)The time to be spent by the children with the father shall commence at the time designated by the supervisor.

   (e)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor.

   (f)The parties shall pay in equal shares any costs due to the supervisor.

   (g)The mother shall cause the delivery of the children to and the collection of the children from the supervisor at the commencement and conclusion of the time spent by the children with the father.

   (h)If a visit is unable to proceed due to the illness of either child or the unavailability of the supervisor, the time the children would otherwise have spent with the father shall be made-up at another time as close to the original time as can be arranged.

   (i)The mother and father shall comply with all reasonable requests and directions of the supervisor.

   (j)Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.

6. For the purpose of implementing Order 4(b), the father is restrained from taking the children further than 100 kilometres from the McDonald’s Restaurant, at G Town, NSW.

7. For the purpose of implementing Order 4(b), the parties shall cause the children to be exchanged between them or their nominees at the McDonald’s Restaurant at G Town, NSW.

8. The parties shall take all reasonable steps to ensure the children are able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays, Father’s Day, and Christmas Day, and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

9. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

11. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

12. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address, mobile telephone number, and email address.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

15. Costs are reserved for 28 days.

16. Any and all outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bright & Bright has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2037 of 2015

Ms Bright

Applicant

And

Mr Bright

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern a dispute between the applicant mother and respondent father under Part VII of the Family Law Act 1975 (Cth) (“the Act”) over parenting orders for their two children.

2. The parties separated nearly four years ago and live in different States. After separation, the father’s involvement in the children’s lives was only sporadic, but he has not been part of their lives at all for about the last 18 months, for which the parties blame each other.

3. The parties have an expectation the children will continue to live with the mother, but completely different ideas about whether they can share parental responsibility and the circumstances under which the children could and should spend time with the father.

Short history

1. The parties met and formed a relationship while they were both living in Region H of NSW in 2003. They married in 2005 and, after the father joined the public service, the parties moved to live on the border of NSW and Victoria. They then relocated to Brisbane in about March 2006.

2. The parties’ eldest child was born in 2006 and is now 11 years of age.

3. In 2010, the father spent about six months away on an overseas posting. Upon his return the mother fell quickly pregnant and the parties’ youngest child was born in 2011. He is now six years of age.

4. In 2012, the father was again transferred overseas for about six months. The work was stressful and, upon his return to Australia, he was diagnosed with Post Traumatic Stress Disorder (“PTSD”) by his treating psychiatrist, which led to his leaving the public service in about August 2013.

5. After this the family moved to live in another town in south east Queensland, where they bought a house. They remained living there until their final separation in July 2014. The parties attended counselling together but could not reconcile their marriage. In August 2014, the mother took the two children and moved back to live in Region H of NSW, near to her family. The father consented to her relocation with the children back to the Region H, though they dispute whether he consented to the move on a permanent or only a temporary basis.[1] Regardless, the father chose to remain living in the former family home in Queensland.

   [1] First Family Report, para 27

6. About a month after the mother relocated back to NSW with the children, the father forewarned her of his intention to commit suicide by sending her a message with a photograph depicting him with a rope around his neck. He was apparently serious and she summoned the police for help. He was found and conveyed to hospital for assessment. The next day he sent the mother a text message saying:

   I think it is best no more phone conversation and that includes the kids for a month

7. In fact, the mother did not hear from the father again for several months. In January 2015, he sent her a text message saying:

   I am coming to the Region H to see my mum and to see my lawyer

8. Within the next day or so the father went to the Region H home where the mother was staying, demanding to see the children, but he was warned off by the mother and members of the maternal family. The father had seen his solicitor earlier that day and thought his action was justified because there was “no parenting plan or court orders in place”.[2]

   [2] Mother’s affidavit, paras 70-74; Father’s affidavit, para 40

9. In March 2015, during a conference convened by NSW Legal Aid, the parties negotiated an arrangement for the children to spend time with the father in Region H under the supervision of the paternal grandparents. However, the next day the father sent the mother a text message saying:

   I don’t want any contact with you or the boys its over [sic]

10. The mother then commenced these proceedings in July 2015 before the Federal Circuit Court seeking orders to formalise the parenting arrangements for the children.

11. The Federal Circuit Court made the first set of interim orders in October 2015, in the father’s absence, which provided for the mother to have sole parental responsibility for the children and for them to live with her. An order was also made for the children to spend time with the father at the mother’s sole discretion. The father attended the next Court event in December 2015, at which time the mother openly confirmed she would allow the children to spend time with the father if supervised by the paternal grandparents. No further interim orders were made by the Court at that time.

12. The Federal Circuit Court made further interim orders in April 2016 providing for the children to live with the mother and to spend time with the father when supervised by the paternal grandparents. Those orders were made with the parties’ consent. More consent orders were made to the same general effect in September 2016. The proceedings were then transferred to this Court for determination in October 2016.

13. It is common ground the children have not spent any time with the father, either supervised or unsupervised, since October 2016. It is also common ground the mother terminated the children’s weekly telephone communication with the father by December 2016 or January 2017.

14. A Family Report was prepared in August 2017 and then, in September 2017, the proceedings were fixed for trial in February 2018.

15. Presently, the mother and children still live in Region H of NSW and the father still lives in Queensland with his new partner.

Proposals

1. After the evidence closed at trial, the mother abandoned the orders set out in her Amended Application filed on 3 October 2017. She instead pressed for the orders set out in the minute of orders she tendered in final submissions.[3]

   [3] Exhibit M1

2. Originally, the mother wanted sole parental responsibility for the children, the children to live with her, the children to spend time with the father at her discretion, and defined arrangements for the manner in which the father could communicate with the children in writing. That proposal was generally consistent with her past discussion with the Family Consultant.[4] However, she belatedly proposed orders that positively precluded any interaction at all between the children and the father, which aligned with the Independent Children’s Lawyer’s proposal.

   [4] Second Family Report, paras 8, 30

3. The father sought the orders set out in his Amended Response filed on 16 October 2017. He wanted the children to continue living with the mother, but for the parties to have equal shared parental responsibility for the children and for the children to spend unsupervised time with him each school holiday period and at other festive times, mostly in Queensland. He also wanted the children to frequently communicate with him electronically. His proposal was consistent with one part of his past discussion with the Family Consultant,[5] but quite inconsistent with another part. At one point he told the Family Consultant the children should live with him if the mother is found to be alienating the children from him,[6] though that was not his proposal at trial.

   [5] Second Family Report, para 9

   [6] Second Family Report, para 56

4. The Independent Children’s Lawyer did not begin the trial with any fixed proposal. After the evidence closed she tendered a minute of proposed orders,[7] which provided for the mother to have sole parental responsibility, the children to live with her, and the positive restraint of the children from spending any time with the father.

   [7] Exhibit ICL8

Evidence

1. The mother relied upon:

   (a)Her affidavit filed on 2 February 2018; and

   (b)The affidavit of the maternal grandmother filed on 2 February 2018.

2. The father consented to the affidavits being filed and served later than initially directed.[8]

   [8] Order 5 made 21/9/17 and Orders 1-2 made 2/2/18

3. The father relied upon:

   (a)His affidavit filed on 20 December 2017; and

   (b)The affidavit of his partner (Ms J, but referred to as Ms K in the Family Report) filed on 20 December 2017.

4. The father did not file any affidavits by his treating psychiatrist or treating psychologist, as he was permitted.[9] At the subsequent Court event in February 2018 he was alerted to the problem created by his intended reliance on documents created by those treating medical practitioners,[10] which caused him to seek leave at the commencement of the trial to elicit oral evidence from his treating psychiatrist (Dr L). He was granted permission to do so with the consent of the mother and Independent Children’s Lawyer.

   [9] Order 7 made 21/8/17

   [10] Notation A made 2/2/18

5. The father was denied permission to call evidence from some other witnesses,[11] whose evidence would not have been germane to determination of the controversial issues.

   [11] Notation A made 21/9/17

6. The parties and Independent Children’s Lawyer also relied upon the Family Consultant’s:

   (a)Limited Issues Family Report (“first Family Report”) dated 30 September 2016; and

   (b)Family Report (“second Family Report”) dated 25 August 2017.

7. The Family Consultant initially recommended the parties’ retainer of a single expert witness, but that did not occur because the parties could not afford it.[12]

   [12] Notation B made 23/6/17

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. When the Family Consultant first conferred with the family in September 2016 she observed:[13]

   The children appeared to have a loving relationship with each of their parents.

   [13] Memorandum, para 86

2. It was at about that time the children ceased spending any time with the father, so the circumstances were quite different when the Family Consultant conferred with the family on the second occasion some 11 months later in August 2017. Nevertheless, the children were both excited to see the father and, despite the hiatus in their relationships:[14]

   …they interacted in a positive manner with him and seemed to enjoy spending time with him during the observation session.

   [14] Second Family Report, paras 71, 80, 85

1. The Family Consultant concluded, consistently with both the law (s 60CC(2A)) and logic, that:[15]

   Both boys would benefit from a parenting arrangement whereby they are able to have a relationship with each of their parents; however, their physical and emotional safety and well-being will need to be prioritised over and above these relationship goals.

   [15] Second Family Report, para 82

2. Both parties asserted the children were at risk of harm in the other’s household for reasons which engage s 60CC(2)(b) of the Act.

3. The mother contended the father poses a risk of harm to the children by reason of his willingness and propensity to expose them to family violence but, more generally, his aggressive and domineering demeanour. She contended that risk is compounded by the father’s disturbed psychological condition.

4. On the other hand, the father implied the mother and maternal grandmother both pose risks of harm to the children by reason of their subjection or exposure of them to sexual abuse.

Section 60CC(2)(b)

1. There was a considerable volume of evidence directed to the father’s alleged commission of family violence.

2. Although in cross-examination the father denied many instances of his past violent behaviour as alleged by the mother, importantly, he did still concede his aggressive behaviour would have alarmed her and she had reasonable grounds to separate from him. He had little option but to make the concession because he earlier admitted to the Family Consultant that certain aspects of his past behaviour would have been terrifying to the mother and children.[16]

   [16] Second Family Report, para 62

3. The mother acknowledged the father did not ever physically beat her. Rather, due to his volatility, she was in a permanent state of heightened alert and wary not to provoke him for fear of the consequences.[17] At the very least, his behaviour caused her to be fearful, which is sufficient to fulfil the definition of “family violence” (s 4AB(1)). For that reason, it is unnecessary to make detailed findings about the occurrence of individual episodes of violence, though it is useful to catalogue some in order to exemplify the need for caution in fashioning any re-introduction between the children and father.

   [17] Mother’s affidavit, para 50

4. Most probably, the father:

   (a)Told the mother how he would like to have slashed a former partner’s face with a knife.[18]

   [18] First Family Report, para 7

   (b)Told the mother he would like to slit the throat or stab members of the maternal family.[19]

   [19] First Family Report, para 31; Mother’s affidavit, para 65

   (c)Admitted to Dr L he was “putting the family through hell” because they were “walking around on egg shells waiting for [him] to explode”,[20] which is precisely how the mother described her feelings.[21]

   [20] First Family Report, para 17

   [21] Mother’s affidavit, paras 15, 43

   (d)Admitted to Dr L he:[22]

   [22] First Family Report, paras 17, 22; Mother’s affidavit, para 61

   (i)Went into rages and felt he could kill everyone;

   (ii)Visualised beating a man so he would beg his forgiveness for speaking down to him;

   (iii)Lashed out at the eldest child, knocking him backwards into a wall, simply because the child rolled his eyes at him; and

   (iv)His blood boiled when he was frustrated by the mother or children.

   (e)Treated the mother disrespectfully by, for example, calling her a “cunt”.[23] In cross-examination he denied he did so, but Ms J confirmed he admitted to her he did, so his evidence was false.

   (f)Kicked a hole in the bathroom wall while intoxicated.[24] His denial of the incident in cross-examination is rejected as untruthful.

   (g)Harassed the mother with a barrage of text messages and telephone calls immediately following their separation.[25]

   (h)Tried to commit suicide in September 2014, about a month after the parties separated, of which he warned the mother by sending her text messages and a photograph of himself with a noose around his neck.[26]

   [23] First Family Report, para 25

   [24] First Family Report, para 25; Mother’s affidavit, para 48

   [25] Mother’s affidavit, paras 62, 64

   [26] First Family Report, paras 33-34; Mother’s affidavit, para 67

5. The Family Consultant considered the father’s violent conduct towards the mother was “coercive controlling behaviour”.[27] Despite the father admitting behaviour of the type which meets the definition of “family violence”, the Family Consultant considered he showed little insight into the effects of such behaviour on the mother.[28] Her opinion about his lack of insight was undoubtedly correct, since both his presentation and evidence at trial was to exactly the same effect. He seemed not to appreciate how the mother’s terror has even now barely subsided, despite her palpable anxiety about simply being in proximity to him in the Court. He still deflects the blame he should accept if he genuinely understands and is contrite for his past misconduct. As a simple example, he still blames the mother and members of the maternal family for his decision to commit suicide in September 2014. He said the blame should not “solely fall on [his] shoulders”.[29] He simply glosses over that period as a “dark period” in his life[30] and feels it is now “ludicrous” to worry about those past events because he has since “come along [sic] way”.[31]

   [27] First Family Report, para 12; Second Family Report, paras 10, 60, 61

   [28] Second Family Report, para 109

   [29] Father’s affidavit, para 30; First Family Report, para 35

   [30] Father’s affidavit, paras 70, 78

   [31] Father’s affidavit, para 78

6. The father brazenly deposed:[32]

   There must be doubt I am a violent, angry father and the mother…which is suffering from high anxiety which has clouded judgment of her thinking on the best interests for the boys…[sic]

   [32] Father’s affidavit, para 58

7. Assuming the father meant he was not violent and angry towards the mother in the past, he was plainly wrong, as he was impelled to concede. He admitted he was emotionally and verbally abusive to the mother in the past, she would have been traumatised by his behaviour, and so her decision to separate from him was reasonable. She is certainly still anxious about him, which he was also impelled to admit was an understandable reaction to her past experience of him, so her wariness is not misplaced. His allegation of her “clouded judgment” was another example of him deflecting blame: implying it is her fault, not his, that they have not been able to reach consensus over the children.

8. If, alternatively, the father meant he was not violent and angry now, he was obliged to demonstrate it. He contended his past aggressive behaviour was attributable to his diagnosed PTSD, caused by his adverse experiences in war zones, which condition was resolved by the intervening therapy received from Dr L and his treating counsellors.[33] However, the father was mistaken because his perception and the objective evidence did not entirely correlate.

   [33] Second Family Report, paras 11, 35

9. The mother gave evidence which tended to suggest his violent behaviour was only exacerbated, not caused, by his PTSD. She said the father’s violent and unpredictable behaviour escalated upon his return home from overseas deployment in 2012, but it was always an underlying feature of his character.[34] That evidence passed unchallenged and, if true, means the father’s treatment for PTSD is not a panacea for his basal aggression.

   [34] Mother’s affidavit, paras 32, 39; Second Family Report, para 47

10. In any event, Dr L’s evidence did not establish the father’s psychological disturbance is entirely resolved. At its highest, his evidence established only improvement, not resolution.

11. The father first consulted Dr L over his depression in 2009, which was then causing some suicidal ideation. He was diagnosed with adjustment disorder with depressed mood.[35] His condition was exacerbated by overseas military postings in 2010 and 2012, and manifest in symptoms of irritability, intolerance, and proneness to fly into rages.[36] His alcohol consumption rapidly escalated.[37] Dr L diagnosed him with PTSD, by reason of which he was medically retired from the public service in August 2013 and compensated for permanent impairment.[38]

    [35] First Family Report, paras 13, 14, 16

    [36] First Family Report, paras 16, 17

    [37] First Family Report, paras 16, 19

    [38] First Family Report, paras 19, 21, 22, 23

12. The father’s condition was not immediately ameliorated by either the treatment he received from Dr L or the counselling he later received through a counselling service (which commenced in September 2013), because he threatened suicide in September 2014. There was no mention of the event in Dr L’s records,[39] but Dr L confirmed in cross-examination he learned of the incident afterwards.

    [39] First Family Report, paras 35, 36

13. The threatened suicide was a significant incident, however it is construed. If the father seriously contemplated ending his life, it illustrated his capacity to cause death or serious physical injury in moments of deep despair and, furthermore, his sending of the threatening text messages and graphic photograph to the mother must have been intended to induce her sense of guilt for his death. On the other hand, if it was feigned and designed to only to attract attention to his emotional plight then it was a clumsy and brutal attempt to coerce the mother’s return to the marriage.

14. By 2016, although Dr L considered the father’s condition was stable, he was still unlikely to return to any form of employment and there was no further treatment available to ameliorate his condition. Dr L remained “pessimistic about the ultimate outcome” for the father.[40]

    [40] First Family Report, paras 47, 48

15. In April 2016, the Federal Circuit Court ordered the father to furnish Dr L with the mother’s affidavits and then procure from him a report about his future treatment and his parenting capacity.[41] Dr L reported to the Court in June 2016, concluding with his opinion that the father “has the capacity to have unsupervised contact with [the children] and he poses no risk”.[42] At trial, during cross-examination, Dr L said he supplied that report as a treating practitioner, not as an independent expert, though what he was thereby trying to imply was quite unclear and was not clarified. It was not directly suggested to him for his response that he lacked impartiality, as it should have been if that contention was to be pursued. The Family Consultant considered little weight should be reposed in the opinions expressed by Dr L at that time because he was apparently unaware of “certain aspects of the father’s behaviour” and had begun advocating for the father’s cause.[43]

    [41] Orders 4-5 made on 5/4/16

    [42] First Family Report, para 55

    [43] First Family Report, para 90; Second Family Report, para 49

16. In readiness for the trial, the father procured from Dr L a fresh report dated 11 December 2017, which he annexed to his affidavit. He did not obtain an affidavit from Dr L, as procedural orders envisaged,[44] but Dr L was available for cross-examination.

    [44] Order 7(c) made on 21/9/17

17. In his 2017 report, Dr L described the father’s psychiatric conditions as “chronic”. Despite his earlier pessimism in 2016, he said the father was now “substantially improved”, though he remains on psychotropic medication. He considered the father had “gained a degree of significant insight into the nature of the problems that confront him”. In cross-examination he elaborated his opinion by confirming the father’s condition had improved, but he was still impulsive, still more volatile than the average person, and still unfit for gainful employment. He considered the father’s stability was enhanced by his continuing medication regime and his relationship with Ms J, which inferentially means he considered the father would be destabilised if his relationship with Ms J falters.

18. Ms J was insistent, both in her discussion with the Family Consultant[45] and in cross-examination, that the father was not a violent man, but that evidence is not easily reconciled with their current participation in “couples counselling”. The father admitted he told their counsellor he had a “volcano meter” and the counsellor told him he was “emotionally and verbally abusive” to Ms J when he was angry. Ms J admitted the father sometimes raised his voice and shouted at her, she occasionally wept during their arguments, and the father arranged the counselling to learn strategies to avoid losing control when he was under stress. She agreed with the father’s proposition in re-examination that he could be “uncommunicative” and be “in a bubble” for days at a time, before emerging and apologising for his behaviour. The father and Ms J intend to marry later this year, but their relationship is seemingly characterised by some turbulence even on their evidence. The notes of their counselling sessions imply the turbulence could be more potent than they conceded.[46]

    [45] Second Family Report, para 101

    [46] Exhibit ICL6

19. In any event, the father’s overbearing treatment of the mother did not cease at or around the time of their separation. The Family Consultant regarded the father’s willingness to intimidate the mother was amply exemplified by two incidents well after their separation. The first, in early 2015, was his insistent allegation of sexual misconduct against the mother and maternal grandmother to the child welfare authority.[47] The second, in August 2017, was his threat to contest the children’s residence when that had never previously been contentious.[48] Each allegation was really groundless, but was pressed irrespective. Either he knew the allegations were without merit, in which event the allegations were a tactical ploy and thereby exposed as oppressive, or he did not realise they were without merit, in which event his lack of insight was just as revealing of his impaired parenting capacity.

    [47] Second Family Report, paras 105-107

    [48] Second Family Report, paras 56-57

20. In aggregation, the evidence establishes the children still do require some protection from harm they are liable to suffer by reason of their subjection or exposure to the father’s violent and controlling conduct, but the level of protection need not be so draconian as his elimination from the children’s lives or his interaction with them being left to the unilateral discretion of the mother which, according to her current degree of anxiety, would be tantamount to his elimination from their lives.

21. The submissions of the mother and Independent Children’s Lawyer to the effect that the risk of harm posed to the children by the father are so unacceptably high that it cannot be attenuated in any measured way are rejected us unduly alarmist. The risk to the children could be managed by their graduated re-introduction to the father, starting with short supervised visits and culminating in unsupervised visits of only modest duration, but still to be exercised in reasonably close proximity to the mother.

22. Turning to the father’s allegations against the mother, on two occasions in early 2015 he telephoned the child welfare authority to report “inappropriate sexualised behaviour” by both the mother and maternal grandmother towards the children. He alleged the children were at risk of harm in the mother’s household, though the allegations did not trigger any action by the child welfare authority.[49] The father did not raise the issue with the Family Consultant, so she considered the allegations might just have been used as a coercive tactic by the father,[50] though it could equally have been because he realised the allegations were baseless and should be abandoned. However, it became clear the father had not abandoned the allegations because he repeated them in his trial affidavit.[51] He did not raise the issue in cross-examination of the mother, cross-examination of the maternal grandmother, cross-examination of the Family Consultant, or final submissions, so it seemed to be just another unnecessary smear against the mother. He could hardly have raised it as a serious issue in the litigation because he proposed that the children continue to live with the mother. Surely he would not have proposed such an arrangement if he genuinely believed the children were at risk of sexual abuse in the mother’s care.

    [49] Second Family Report, paras 105-106

    [50] Family Report, para 107

    [51] Father’s affidavit, para 38

23. For the sake of clarity, the evidence did not establish any need to take measures to protect the children from harm caused by their subjection or exposure to sexual abuse while in the mother’s care.

Children’s best interests – additional considerations

1. The mother’s alleged alienation of the children from the father was the central plank of his case,[52] but it was denied by the mother and contrary to the opinion expressed by the Family Consultant.

   [52] Second Family Report, paras 13, 37, 52

2. The mother believed that complete elimination of the father from the children’s lives might lead to them developing an idealised view of him, which she was keen to avoid. Her only motivation in severing the children’s relationships with the father was to keep them safe.[53] She did not try and drive a wedge between the children and the paternal family because she attempted to keep the paternal grandparents in the children’s lives by offering occasional visits and Christmas greetings, but her efforts were rebuffed.[54] The father acknowledged the mother did cause the children to call the paternal grandparents one Christmas, but he implied her criticism rather than his thanks for it.[55] The paternal grandparents moved from the Region H of NSW to Queensland, apparently to be closer to the father and his brother. The father said they now live only several hundred metres from his home. The children are not particularly close to them.[56]

   [53] Second Family Report, para 29

   [54] Mother’s affidavit, paras 89-91

   [55] Father’s affidavit, para 56

   [56] Second Family Report, paras 69, 77, 84

3. Importantly, the Family Consultant found the children were not fearful of the father, despite the hiatus in their relationships, which led her to believe the mother was not intent on influencing the children against him.[57] The eldest child independently confirmed to the Family Consultant that the mother did not talk to them about “the Court stuff”[58] and the youngest child confirmed he did not know why the children stopped seeing the father,[59] so the mother did not involve the children in her decision to sever their contact with the father by blaming him.

   [57] Second Family Report, paras 54, 73, 108

   [58] Second Family Report, para 67

   [59] Second Family Report, para 76

4. The father was generally critical of the Family Consultant, asserting in a variety of pejorative ways that she was biased against him,[60] but he did not directly challenge her in cross-examination at all about being biased against him. More specifically, he did not challenge her opinion that the mother did not alienate the children from him.  

   [60] Father’s affidavit, paras 36, 37, 46, 50, 55, 64, 70, 72, 73

5. The Family Consultant’s opinion evidence is accepted as correct. During the trial, the mother did not give the impression she was intent on destroying or even impairing the children’s relationships with the father. She was simply intent on ensuring their emotional and physical safety. As for the Family Consultant, she certainly formed a poor impression of the father, but not because she lacked impartiality. There is a material difference between honest professional opinion and bias being the basis for the expression of expert opinion evidence. There was no objective reason at all to infer the latter rather than the former in this instance.

6. The mother is undoubtedly anxious about the father and his possible re-engagement in the children’s lives, which he unfortunately lacked the insight to fully appreciate.[61] The mother’s anxiety is a factor which influences the nature of the orders which should be made, but her anxiety falls short of proof she would emotionally collapse if the orders provide for the father to play any role at all in the children’s lives. The Family Consultant hypothesised about that possibility[62] and ventured an opinion that her parenting capacity would be deleteriously affected,[63] but the prediction was not solidly founded in the evidence adduced at trial.

   [61] Second Family Report, para 63

   [62] Second Family Report, paras 17, 19, 20

   [63] Second Family Report, para 114

1. The mother’s anxiety originated in her youth,[64] so her experiences with the father accentuated, but did not cause it.[65] She gave the impression at trial of a person who was stoically trying to manage a very stressful situation, which she ably managed to do. She initially proposed that she be given the responsibility to decide if, when, and how the children spend any time with the father, so she obviously envisaged having sufficient emotional fortitude to exert control over the situation by fielding and rejecting the father’s requests at her discretion. During cross-examination the mother said she felt equipped to deal with his enquiries, so long as they were not “erratic and all over the place”. The Family Consultant conceded to the Independent Children’s Lawyer in cross-examination that the mother was “well placed to make those calls”. The mother also agreed in cross-examination she was open-minded about the children spending time with the father under professional supervision at a contact centre, at least for a transitional period, and she was also open-minded about the eventual relaxation of the need for supervision, so long as the children’s visits with the father were then confined to an area within reasonable proximity to her home in Region H.

   [64] Second Family Report, paras 15, 44

   [65] Mother’s affidavit, para 108

2. It necessarily follows that the mother’s apprehension about the children’s future interaction with the father is not so heightened that she cannot bear to even consider the prospect. Presumably she is now coping better because of the counselling she receives and the medication she is prescribed.[66]

   [66] Mother’s affidavit, paras 106, 107, 108; Exhibits ICL1, ICL2, ICL3, ICL4

3. Aside from the father’s complaint about the mother engineering the children’s alienation from him, which probably has no substance, he was satisfied with her parenting capacity. He told the Family Consultant the mother was “a good parent who takes good care of the boys”.[67] His oblique comments about her “mental illness” were gratuitous criticism without any justifiable basis,[68] which is to say nothing about the irony of his criticism of her given the extensive evidence of his own diagnosed psychological disorders.

   [67] Second Family Report, para 40

   [68] Father’s affidavit, paras 20, 20

4. The mother was worried about the father’s tendency to intoxicate himself, as he did in the past, because if he did so in future while the children were in his care either they would not be properly supervised or he might be prone to lose control of his temper. The father did formerly misuse alcohol, but he seems to have overcome that problem. He told the Family Consultant he now abstains from alcohol use,[69] Dr L confirmed that to be so in his cross-examination, the father was not challenged about the issue in his cross-examination, and a recent test result confirmed no excessive alcohol consumption.[70]

   [69] First Family Report, page 3; Second Family Report, para 14

   [70] Exhibit F1

5. The children may be a little nervous about their re-introduction to the father after such protracted separation from him, but their comments to the Family Consultant and their behaviour she observed did not imply any objection to their re-introduction.[71] Even if they did object, their ages and maturity would prevent much weight being attributed to their views.

   [71] Second Family Report, paras 68, 76

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence towards the mother (s 61DA(2)(b)). It would still be possible to allocate equal shared parental responsibility for the children to the parties, but that would depend on the father proving such an order would be in the children’s best interests and it demonstrably would not.

2. The Family Consultant considered the father preferred to have no contact or communication with his former partners.[72] Even though the father now professes an interest in consulting the mother about important decisions in the children’s lives, they have not communicated with each other at all for the last few years and the mother is too anxious to disclose her current contact details to the father. He does not have her current address or telephone number because she does not want to deal with him at any level.[73]

   [72] First Family Report, paras 6, 7

   [73] Second Family Report, paras 2, 20, 41

3. The Family Consultant commented upon the lack of trust between the parties,[74] which the father confirmed in cross-examination when he said words to the effect:

   [The mother] has to [regain] trust in me or we will never be on the same [page]

   [74] Second Family Report, para 55

4. The father admitted he understood the mother’s anxiety in having to deal with him, but he thought the problem might be solved by them participating in counselling. That suggestion was an expression of hope rather than expectation. It would be foolhardy to order their allocation of equal shared parental responsibility based on the mere hope they could improve their communication and co-operate after participation in counselling. There is no feasible way for them to do so anyway. They will continue to live in different States, which practicably precludes their joint attendance with a counsellor for a series of counselling appointments.

5. The father’s hurtful statement of his apparently honest belief that the mother cannot and will not make “correct choices” for the children in relation to the “big decisions that [will] shape their life”[75] because of her lack of “life experience”[76] was a graphic example of why the parties could not share parental responsibility for the children. The father derides the mother’s intelligence. He would not respect her views and would expect his views to prevail whenever there was disagreement.

   [75] Father’s affidavit, para 25

   [76] Father’s affidavit, para 26

6. Even Dr L dismissed the idea of the father sharing parental responsibility for the children with the mother. He said of the idea:

   Nice idea, but I can’t see how that would work

7. Dr L said the father would find co-operation with the mother “difficult” or “challenging”, which evidence had an undertone of impish understatement.

8. There is no realistic alternative but for the mother to have exclusive parental responsibility for the children, which outcome was sought by the mother and Independent Children’s Lawyer and was supported by the Family Consultant and Dr L.

9. Since it was agreed the children would continue to live with the mother, attention must turn to orders regulating the children’s future interaction with the father.

10. In the second Family Report, the Family Consultant countenanced the possibility of there being no orders to regulate the children’s interaction with the father and leaving it up to the mother’s discretion, or alternatively, orders positively precluding such interaction.[77] However, she conceded in cross-examination that the father’s presentation at the second consultation in August 2017 was much better than at the first consultation in September 2016. Another six months has elapsed since the second consultation in August 2017 and, while the father presented at trial as a concrete-thinker with impaired insight, he was relatively calm and measured.

    [77] Second Family Report, paras 116, 117

11. The Family Consultant confirmed in cross-examination that the children would benefit from restoration of their relationships with the father, provided he could “behave in an appropriate way” and some “boundaries” were imposed around him. She explained her reference to “boundaries” to mean the imposition of supervision of the children when in the father’s company. Such a safeguard should give the mother some confidence about the children’s safety. They could hardly be hurt, either physically or emotionally, if monitored by a professional supervisor in a structured setting.

12. Given the father’s improved presentation and Dr L’s endorsement of his improved condition, the children should be able to derive the benefit that would inevitably follow from cautious restoration of their relationships with him. The children’s derivation of benefit from such an important filial relationship should not be thwarted if any risk of their harm is satisfactorily managed. The Family Consultant was keen to re-assure in cross-examination that she did not advise against such an outcome. She quite properly insisted it was a decision for the Court “after examining all of the evidence”.

13. It is important to remember the reasons why the mother is concerned about the children spending time with the father. She confirmed her concerns were only that he might denigrate her in the children’s presence, causing them emotional harm, or he might “snap” if under pressure, causing them physical harm. Both of those concerns would be eradicated by professional supervision of the children with the father. It should be remembered she agreed to their supervised interaction in the past. Interim orders were made to that effect by the Federal Circuit Court with her consent. She only severed the children’s interaction with the father in late 2016 because he and the paternal grandparents conspired to dispense with the supervision on one occasion during a visit.

14. The children should be re-introduced to the father in a gradual and structured way. It should start with their professional supervision in a contact centre. The mother does not trust either the paternal grandparents or Ms J to provide such supervision for two valid reasons. First, they do not genuinely believe in the need for such supervision, so they are unlikely to diligently meet their supervisory obligations. Second, they proved their unreliability in the past when they disobeyed the interim orders made by the Federal Circuit Court by the paternal grandparents not supervising the children in the father’s care on a trip to Sydney in late 2016.[78] In such circumstances, it is not “ludicrous” for the mother to lack trust in the paternal grandmother, as the father contended.[79]

    [78] First Family Report, paras 68-69; Second Family Report, paras 25, 27; Mother’s affidavit, paras 86-88

    [79] Father’s affidavit, para 48

15. The initial period of supervision is designed to fulfil several objectives: ensuring the children are safe in the father’s care over a test period of reasonable length; ensuring the mother’s anxiety about their safety is allayed; and ensuring the children’s initial nervousness is managed. The father asserted supervision would “impact [the children] significantly”,[80] but supervision for a finite period will likely help them, not harm them. Significantly, even Dr L recommended the imposition of supervision as a safeguard. The father conceded in cross-examination he was not opposed to a transition period of supervision at a contact centre in Region H near to the mother’s residence, which position he affirmed during final submissions.

    [80] Father’s affidavit, para 67

16. Given the length of the father’s estrangement from the children and the anxiety of both the mother and the children, supervision over the next 11 months or so is a reasonable “boundary”. The Family Consultant could not be drawn to suggest a period of different duration as being any more reasonable.

17. Over that period, the supervised visits are staggered at approximately monthly intervals. Given the present uncertainty about the identity of the appointed professional supervisor and the venue at which the supervised visits may occur, the orders must necessarily have some flexibility.

18. The regime will change next year. By that time, the father will have proved himself over nearly a year and the children’s nervousness should have entirely dissipated. The mother’s anxiety may remain, but that should not preclude progression of the regime. As long as the risk of harm to the children is objectively contained, the mother’s subjective belief is not determinative.

19. In late January and early March 2019, the children will have two unsupervised visits with the father for a full day. Then, from the Autumn school holidays in April 2019, the children will begin spending the first three consecutive days of each school holiday period with the father. Those visits will be confined to an area within 100 kilometres of the children’s home. The mother said her anxiety would be assuaged if the children stayed relatively close at hand and were not taken back to Queensland.

20. Those orders differ from the father’s proposal in two principal respects. First, he wanted the children to visit him in Queensland for some of the holidays, and second, he wanted the children to visit him for not less than one-half of the school holidays. While the father understandably wants more time with the children, it is unnecessary for them to do so in order for them to retain meaningful relationships with him. Regular unsupervised visits in school holiday periods, albeit for only three days at a time, is sufficient for that purpose. Orders to that effect balance the competing considerations of the parents’ conflicting desires and the children’s needs.

21. If the school holiday visits are confined to three consecutive days then it is impractical for them to be taken far away from the Region H by car anyway. They could conceivably be flown to distant locations, but both parties professed impecuniosity, so that is not really an option. The father is able to travel by road or rail and, since he is not employed and is unlikely to be employed, employment commitments do not impede his ability to travel between Queensland and NSW to visit the children. He already travels to NSW periodically to see his older children from former relationships.

22. Feasibly, the children could spend time with the father more frequently during school terms in NSW, but he has chosen to remain permanently resident in Queensland, which precludes that option.

23. Any apprehension of the mother about interacting with the father would be satisfactorily ameliorated by all changeovers occurring at a public venue.  The McDonald’s Restaurant at G Town, NSW, is suitable due to its relatively close proximity to the mother’s residence in Region H.

24. The father’s application for telephone communication with the children is refused.[81] His regular telephone calls to the children would only present further opportunity for conflict between the parties, which should be avoided. Interim orders to that effect have been flouted since January 2017. Instead, the orders provide for the children’s periodic written communication with the father, consistently with the proposal made by the mother in her Amended Response filed in October 2017.

    [81] Amended Response filed 16/10/17, Orders 7, 10, 11

25. Although the mother did not wish to divulge her residential address to the father, she can have no complaint about the order requiring her to furnish him with her postal address and email address, because she initially sought orders to that effect.[82] The requirement for her to also provide her mobile telephone number should not be cause for concern either because the phone will retain information about the source of telephone calls and texts, should the preservation of such evidence ever be necessary. The parties need a channel for urgent communication should the need ever arise.

    [82] Amended Application filed 3/10/17, Orders 4, 5

26. The mother sought an injunction precluding the father from attending her home or the children’s school.[83] The order is not made because there was no evidentiary basis for it and, in any event, the father was denied procedural fairness in respect of the proposal. The issue was never raised during the trial until final submissions. He was not asked any questions about the proposed order or the need for it. So far as the evidence goes, save for one occasion in January 2015 when he went to the maternal aunt’s home uninvited to see the children, he has never attended the mother’s home. There was no evidence to suggest he had any intention to do so. He only ever went to the children’s schools in early 2015 and there was no evidence he intends to do so again. The order could have been made with the father’s consent, but he did not give it.

    [83] Exhibit M1, Order 5

27. The mother proposed an order requiring the Independent Children’s Lawyer to explain the orders to the children, but the Independent Children’s Lawyer did not signify her consent to the order. In the absence of consent, the mother did not explain why the order was needed or why it would be preferable for the Independent Children’s Lawyer rather than the Family Consultant to explain the orders to the children, so the order is not made. That is not to say the children should not receive an independent explanation. The mother will have sole parental responsibility for the children. If the Family Consultant or Independent Children’s Lawyer is willing to proffer the explanation to the children then the mother is able to make those arrangements informally.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 16 March 2018.

Associate: 

Date:  16 March 2018