Cain & Veney

[2021] FamCA 339

FAMILY COURT OF AUSTRALIA

Cain & Veney [2021] FamCA 339

File number(s):	MLC 2982 of 2008
Judgment of:	BENNETT J
Date of judgment:	6 May 2021
Catchwords:	FAMILY LAW – PARENTING – where suspension of face-to-face supervised time pending final hearing – family violence – where need to protect child’s relationship with primary carer.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	33
Date of hearing:	6 May 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Turner
Solicitor for the Applicant:	Nicholes Family Lawyers
Counsel for the Respondent:	In person
Counsel for the Independent Children's Lawyer:	Mr Lovering
Solicitor for the Independent Children's Lawyer:	Taft Lawyers

ORDERS

MLC 2982 of 2008
BETWEEN:	MR CAIN Applicant
AND:	MS VENEY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	6 MAY 2021

THE COURT ORDERS THAT:

1.Until further order, paragraph 13 of the Order made on 9 October 2020 be and is hereby suspended.

2.Until further order, the child X born … 2014 communicate with the father by telephone and/or FaceTime for a period of no more than 15 minutes on Monday and Thursday each week and for such purpose the father to place the video or audio call on the mother’s mobile … at 6.30pm, such time to commence on Monday 10 May 2021.

3.Otherwise, the Application in a Case of the mother filed 30 April 2021 and the response thereto of the father filed 5 May 2021 be and are hereby dismissed.

4.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

5.My reasons for decision this day be transcribed and, when settled, placed on the Court file and a copy provided to the parties.

AND IT IS NOTED:

A. That this matter proceeded this day and ran in excess of 3 hours and ran as an interim defended hearing.

B. That this matter is listed for a case management mention on 28 June 2021 for the purpose of making trial directions and is listed for final hearing to commence on 13 December 2021 at 10.00 am.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BENNETT J:

1. This matter comes before me by way of an urgent hearing, consequent upon the mother filing an application in a case dated 1 April 2021 but not actually processed by the Court until the beginning of May 2021.  She seeks an immediate suspension of time between the father and the child, who is currently six and a half, turning seven in 2021.  The father opposes a suspension of face-to-face time and seeks that the existing interim orders for face-to-face time occur under the supervision of a professional supervisor continue.  The professional supervisor is Ms B.  The Independent Children’s Lawyer supports the mother’s case and opposes face-to-face time. 

2. This matter is listed for hearing on a final basis in December 2021.  In anticipation of that hearing, a further Family Report is to be commenced in September 2021 and released in October 2021.

3. This matter has a very long history and the recurring presenting problem has been the father’s behaviour vis-à-vis the mother and his inability to contain his impulsivity.  There have, in the past, been orders entitling him to supervised time with X, of which he has not availed himself.  There have also been extended periods of successful electronic communication between the child and the father.  The matters that impelled the mother to make her interim application for a suspension of time are outlined in her affidavit, affirmed on 1 April 2021. 

4. On 25 March 2021, the mother received a call from the father to talk to X for the regular telephone time.  X could not take the father’s call because she was on her way to the doctor’s surgery to have some treatment for what she described as “a sore vagina”.  The mother told the father that the telephone time could not take place because they were going to the doctor.  The father, then, proceeded to the doctor’s surgery and confronted the mother and X when they exited the doctor’s surgery.  It is admitted by the father that he used his car to block the mother’s car so she and X could not leave the vicinity of the doctor’s surgery.

5. The mother says that the father yelled at her including words to the effect of, “I don’t care, you don’t have an intervention order anyway, it hasn’t been served”.  The mother says that the father yelled at her not to obstruct the telephone time between the child and himself.  The mother alleges that the father further yelled at her, saying, “I know where Mr D lives, I don’t care I’m going to go around there and smash his fucking head in”, all of which X heard from within the car.  There were two short video clips taken by the mother, of the father’s conduct on 25 March. Mr D is the mother’s relationship partner.

6. It is sensibly conceded by counsel for the father that the father did attend the surgery and blocked the mother’s car.  Insofar as the father deposes to denying the assertion that he yelled at the mother about the intervention order, clearly he can only be denying that he raised his voice to the mother, because the video footage discloses that he did say the words attributed to him to the effect that the intervention order was not effective because it had not been served.  The mother also relies on an affidavit by her partner, Mr D.  That is an affidavit which is sworn or affirmed on 27 April 2021.

7. Mr D affidavit details an event on 13 April 2021, when he and the father encountered one another in a location close to where they both reside.  The father denies some of what Mr D has deposed to.  He denies, specifically, threats to kill Mr D.  He does not, however, deny other worrisome aspects of Mr D evidence.  Mr D deposes:

   13. It was at this point in time I knew who he was as I’d recognised his face from the video Ms Veney had shown the police of him verbally attacking her.  While at the police station that night Constable F had mentioned to us that he had been evading them and that they were unable to located him for an extended period of time to serve him with other paperwork so I wasn’t confident that the Personal Safety Intervention Order I’d applied for had been served and guess he wouldn’t have known about it, because of this I was immediately fearful given the previous threats that had been relayed to me while Ms Veney was making the statement on the 25th of March and also that he could possibly know what I look like as we had never met previously.

   14.I was concerned that if I had been stalked enough to ascertain my appearance that I’m now completely unsure what else he could possibly know about me.  I respondent to his introduction with the nicety of “How are you doing?”. He answered, “Yeah not fucking good”.  His tone had at this point become more aggressive and agitated and with him standing in front of my travel path I felt trapped.  I answered him by saying “Why is that?” to which I got back “Why do you fucking reckon?”.  I told him I wasn’t sure and he said it was because I was stealing his daughter away from him.  In vain I attempted to alleviate that concern and offered that I wasn’t trying to replace him as her father and rather she had a healthy relationship with me as Ms Veney’s partner.

   15.Almost instantly he said that was “bullshit” and asked me what my relationship was with his daughter?  I said to him that I didn’t understand the question, but he repeated it anyway.  I explained to him that Ms Veney, X and I spent time together doing many things however my relationship was with Ms Veney as a partner and support network.  He visually scoffed at that answer and shook his head.  Throughout the conversation with Mr Cain, I went into preservation mode attempting to diffuse any escalation in Mr Cain’s aggressiveness.

   16. Mr Cain proceeded to ask me why my “Morals” were.  Again, I relayed to him that I was unsure what he meant by the question which prompted him to ask it again albeit louder.  I explained to him that I was comfortable with my morals and that I was a good person who was happy in life and my goal is to make others happy also.  He then respondent saying “Bullshit, you’ve got no morals”, to which I replied, “Yeah well I disagree”.  He asked me how long I’d been around referring to how long Ms Veney and I had been together, I attempted not to answer this by saying that I wasn’t sure however he didn’t accept this as a response and again said “bullshit – how long?”. I offered up that had been seeing her maybe 8 months which I knew not to be the case however chose not to offer out my personal information.  He said to me “yeah well I’ve known about you since Father's Day" to which I nodded. 

   17. Promptly after this Mr Cain asked “Do you know about Ms Veney? – Do you know what she did to me?”.  I tried to explain to him that what him and her were going through was between him and her and I was well removed only being a support network for her.  He chose to add to his response by saying “When we met she had nothing.  I had a house, everything was great.  She fucking took me for everything, and this is the sort of woman you chose to be with? She’s a piece of shit.  How would you like it if someone did that to you? I thought you said you had morals?”.  I replied letting him know that I had actually had a house unfortunately didn’t anymore after my separation.  He asked me “Did you have that house before you met or did you buy it together?”  I said we bought it together and then he cut me off and said “Yeah well I had my house before she came along – she had nothing and then she took me for everything.  And you’re supporting her.  You have no morals you’re a piece of shit.  You’re enabling her and every other woman like her”.  My response to that was short, I said “I disagree”. 

   18.He was becoming increasingly aggressive at this point and asked me “What would you do if you were in my position? What would you do if some bitch wouldn’t let you see you’re kids?”.  I calmly explained that “I have my own battles and what you and Ms Veney are dealing with is strictly between you and her”.  He again called me an ‘enabler’ and said to me “Bullshit – everything was going good until you came along.  I blame you.  All of this is on you”.  While expressing this response he started pointing at my face while he spoke.

   19.Mr Cain continued and said to me “You’ve got kids.  You’ve got 3 kids. What would you do if you heard that one of your kids had a sore vagina and all you know is that she’s spending time with you?”.  I understood the context of this part to be in reference to her visit to the doctors on the 25th of March and his subsequent reaction to this.  Still pointing he again questioned me “What would you do?”.  I replied with “Not sure” and he quickly suggested that “Well you’d go after the prick wouldn’t you?”.  I explained to him that absolutely that wouldn’t be the case and in fact my Ex has a new partner in her life who happens to spend plenty of time with my children.  He scoffed again and asked “Why?, why wouldn’t you go after him?” to which I said that as much as my Ex and I don’t see eye to eye on many issues, one thing was certain and that was that she loved my kids and wouldn’t put them in any position where that would be a concern.  His response to that was “Well you’re a fucking idiot then!”.  When I responded with “That’s your opinion” he stared me down, started pointing in my face again and said “Stay away from my daughter or I’ll rip your fucking head off!”

   20. I didn’t even get a chance to respond to Mr Cain last threat before he demanded “What’s your relationship with my son?”.  I asked “Who, Y?”.  And he said “Yes Y. What’s your relationship with Y?”.  I explained to him that we saw each other occasionally and that we just chatted about stuff and that was the extent of it.  He replied with “And your friends with him on social media?”, I said yes and then he said “So you added my son on social media?”.  I corrected him by saying “No, he added me”, and Mr Cain replied “And you added him back?”.  I said ‘Yes’.  He then added “Stay away from my son. He’s not your son, he’s not even Ms Veney’s son. Stay away from him or I’ll come for you.  I’ll come for you and I’ll kill you.”  Mr Cain was almost yelling at this point while continuing to aggressively point fingers in my face.  I chose just to nod in response to this demand to avoid any further increase in his tensions. 

   21. There was maybe 2 seconds of silence after his last remarks and in my head I was preparing to move my bike around him and leave.  Before that opportunity came up he continued his attacking approach of questioning me asking “What sort of man are you?”.  As was the case with some of his other questions I explained that I didn’t understand that question.  Like before, he answered my question by asking it again the same way only more aggressive, “What sort of man are you? You seem like a piece of shit to me.  You’ve got no morals.  You’re a fucking coward and I’m not sure I want my daughter hanging around with someone like you”.  In response I added “Again, that’s your opinion and I completely disagree, I’m a good person and I’m comfortable with that”.  He explained that he wasn’t comfortable with that. 

   22. Mr Cain then said “What sort of man wouldn’t call me and talk about spending time with my family.  What sort of a man wouldn’t have decency to pick up the phone and ask whether that’s alright?”.  I asked him “Would that make this situation OK would it?”.  He responded with “Who knows.  But at least you’d have been a mad about it and done the right thing”.  I said to him that maybe that’s how he see’s [sic] these things playing out but ringing him to ask permission was never a consideration on my part.  I explained that my Ex had been seeing someone for over a year and I hadn’t heard from him.  I said that not only had I not heard from him, I [sic] was never my expectation that he should ask my permission to date my Ex.  Mr Cain didn’t agree and asked “Of, so you’re fucking sheep then?”.  I replied “absolutely not, however, in my opinion that’s not the way things are done. Had my relationship with my Ex been different then maybe I would have a chat with him about things, but she had the right to move on and she doesn’t need me to approve that”. 

   23. Mr Cain then moved closer into my personal space and locked the front wheel of my bike between his legs making it near impossible for me [sic] to move away from him.  As I was still straddling the bike between my legs he was now standing over me intimidating me.  He again started to point in my face and in a louder voice than he’d used to this point said “Stay away from my family.  I know where you live.  Stay away from them.  Stay away from them or I’ll come for you,  I don’t care where you work, I’ll come for you and I’ll kill you”.

   24. I had decided now that diffusing the situation was going to be impossible and I relayed “Well I’ve had enough of this”.  I pulled the front wheel of the bike back from between his legs and started to manoeuvre around him.  I probably got 2 metres away from him when he [sic] “Where are you going we aren’t finished yet?”.  I kept moving away and responded “Yeah we are, we’re done here. I was happy to have a constructive chat until you got aggressive and starting [sic] making threats.  I’ve got nothing else to say to you – we’re done here”.  He came back with “Well come back and we’ll chat”.  I got onto my bike at this point and said “No we’re done here”. 

8. As with all decisions in relation to children, the paramount consideration is the best interests of the child.  It is not the only consideration, but it is the paramount one.

9. In deciding what is in the best interests of the child, the Court is required to take into account two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents.  In this case, the benefit which accrues to the child of having a meaningful relationship with the father may, arguably, be outweighed by the impact that the father’s inability to deal with the mother in a civil, reasonable and unaggressive way has.  The next consideration, and, indeed, the primary consideration which takes precedence, is the need to protect X from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence.  These are the same considerations with which the Court will deal at the final hearing, but they are mandatory considerations for this interim hearing also. 

10. There are several additional considerations set out in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”), which include the views expressed by the child. I do not have, at this stage, any up-to-date expert evidence on the current views of X. Previously, X has wanted to see the father. The mother now says that X is somewhat reserved about seeing the father. Or, at least, has not asked to see the father, since 25 March, save for in the presence of her older brother. X’s brother is a child from another relationship of the father’s. On the evidence of the mother, because the brother is not prepared to see the father at this stage. The father’s position is that the evidence is untested. The evidence is untested. I was not in a position to permit cross-examination today. First, because there was likely to be insufficient time for cross-examination to be conducted, but also because the mother, being a litigant in person where there are allegations of violence, at this point, was not going to be permitted to cross-examine the father and extensive cross-examination of the father is what would have been required. It would have been inappropriate to permit Mr Turner for the father to cross-examine the mother in the absence of the father being cross-examined.

11. The father’s position, advanced by Mr Turner, is that the current supervisor, who has experience in this matter, has read the three affidavits to which I have been taken, has viewed the video footage provided by the mother, and says that she would, under all of the circumstances, still be prepared to supervise the fortnightly time between the child and the father, of three hours duration.  She thinks that it is appropriate. 

12. Mr Turner makes the point that the supervisor is social work trained, and a former report writer of family reports; he regards her as eminently qualified.  The difficulty with that submission is that Ms B is a supervisor of time and not an expert in this case.  Her evidence, such as it is, has been communicated through the Independent Children’s Lawyer without dispute by other party, but it too is not tested. 

13. Mr Turner’s proposal is that there be a reintroduction of the supervised time until the matter returns to Court on 28 June, which was to be for a mention to check on the readiness of the matter for hearing.  He says that, on 28 June, the matter can be looked at again and if there has been anything untoward in the time between X and her father between now and 28 June, then the Court can intervene.  That is not a course that I am prepared to follow. 

1. Counsel for the father relies also on the fact that the father was not shouting at the mother as evidenced by the videotapes.  I am not so sure that the father did not raise his voice to the mother.  It may have been with the purpose of communicating with the mother, but, certainly, what he said was emphatic and it is impossible in my view to separate the words of the father and the manner in which they were uttered from the fact that he uttered those words from a car which he positioned to block the mother’s exit and prevented her from effectively escaping from the father’s presence.  I can also not separate from the manner in which the father might have uttered the words to the mother from the content of the message, which was to acknowledge that there was an intervention order made, but to take issue with the fact that it was not enforceable because it had not been served.  This is a highly technical construction of events which, in this case, does the father no credit or offer the Court any comfort about the father’s understanding of his responsibilities of parenthood, his capacity to parent and his ability to shield the child from conflict and family violence between himself and the mother. 

2. Mr Turner, for the father, submitted that I should regard the lack of video evidence more extensive than the seven or eight seconds which have been provided by the mother as indicating that she had edited or concealed certain parts of the video recording.  The mother denies having done so.  Her phone has not been called for and there has been no forensic examination of it to ascertain whether or not there has been tampering.  Mr Turner’s inference is not an inference which, on my view, is open to me to draw today. 

3. Mr Turner further submits that the mother, having acknowledged the importance of video evidence to prove her case, then inexplicably did not record the entire interchange between herself and the father on 25 March.  Therefore, he submits, I can assume, that there was no further footage that was as incriminating of the father’s poor behaviour than that which was already produced by the mother.  I am not prepared to draw that inference either.  I think the mother showed quite an extraordinary capacity to record anything on 25 March when she and X left the doctor’s surgery and were making their way back to the car when confronted by the father in circumstances, which I am satisfied, the mother found alarming and upsetting. 

4. Mr Turner then made another submission, no doubt on instructions, but which I find to be curious, of the father’s appreciation of the events which have brought the matter before the Court today.  That was to say that it seems most unusual that the police could not find the father to serve him with the intervention order taken for the protection of the mother or the personal protection order taken for the benefit of her partner, Mr D.  This is considering that Mr D managed to find the father in a location on 13 April; that does the father absolutely no credit either.

5. Notably, earlier in this hearing today, I asked Mr Turner whether there had been any arrangements to concede service of the intervention order.  He said there had not been.  As I sit here now, three hours later, I am still unaware of what arrangements have been made for the father to be served with the intervention orders of which existence he knows but is apparently continuing to rely on the fact that they haven’t been served to try and avoid the effect of them.  The mother has made submissions including statements that the police have served them by way of substituted service on the father.  Clearly, the father knows about the orders and the sooner he acknowledges that he knows and has been served with the order, the better.  It is not productive, apart from continuing the ongoing conflict.

6. Mr Turner submits on behalf of the father that, whilst the mother may be anxious about the father’s attitudes to her, that those anxieties can be allayed by the knowledge that the supervisor knows about all of the allegations from having read the three affidavits and viewed the two video clips.  I do not accept that submission.  The father today seeking a resumption of face-to-face time wholly ignores the impact of that time on the mother and the very valid point made by the Independent Children’s Lawyer that this will not be a case which is decided solely by reference to the enjoyment that X may feel when she sees the father face-to-face.  Relevant considerations will necessarily include due and proper consideration of the impact of the time on the child’s only viable primary caregiver. 

7. The mother made submissions which were reasoned and in which she said that, with reluctance, she supported the resumption of video time twice per week based on her recognition that the child, X, needs to have a relationship with the father and that the only safe way to do so at this point was by video call or telephone call. 

8. Apart from the mother’s submissions being well-reasoned, they were delivered in a way that leaves me with no doubt at all that she has been deeply affected by the events of 25 March.  She was close to tears.  Her voice shook.  She gave every appearance of trying to be composed and as brave as possible, but she was obviously in a high state of stress and anxiety.  I accept that they are emotions that she would feel when having to confront the father at any point and/or sending the child for face-to-face time with the father. 

9. The Independent Children’s Lawyer made the point that, if this were a final hearing now, the Independent Children’s Lawyer could not support a resumption of face-to-face time on an ongoing final basis.  His primary submission is that it is not so much the impact on X of time between herself and the father as safeguarding X’s interests by ensuring that her primary caregiver was not unduly traumatised by the behaviour of the father.  He referred to the fact that the father does not seem to be able to grasp the idea that his behaviour in relation to X’s mother must change.  He referred to various extracts of the report of Dr F, dated 25 January 2020, which was a supplementary forensic psychiatric report in relation to the father.  At paragraph 70, Dr F opines: 

   Ms L and Ms Veney expressed concerns about the stability of Mr Cain’s mental health, his apparent need to control and manipulate them, the impact this may have on Z (X’s older brother) and X’s overall safety and wellbeing and his ability to be consistently available and prioritise their needs. 

10. Counsel for the Independent Children’s Lawyer submitted that the events of 25 March precisely illustrate what the father cannot yet do, that is, he cannot give precedence to X’s need to be protected from family violence over his apparent need to confront the mother in a threatening and inappropriate way.  At paragraph 82 of Dr F’s report, he observes:

    It was noted that Mr Cain’s mental health remained of concern, with noting of the inconsistency and unpredictable nature of his communication.  It was noted that Mr Cain appears to struggle with decisions made against his views and that this may point to risk around him not having the capacity to listen to professionals involved. 

11. At paragraph 100, Dr F opines under the heading “Opinion and Recommendations”:

    It is important for Mr Cain to do some specific work with his psychologist around managing his frustration and the intensity of his interaction with others in relation to matters of the children’s custody.  It would also be important for him to address the negative views of professionals to ensure he is able to interact appropriately and follow recommendations. 

12. At paragraph 1 Dr F observes:

    The interactions with his ex-partners and the issue of contact with his children is significantly emotionally charged and is certainly a trigger to mood instability and a degree of impulsivity that is part of his personality. 

13. Dr F continues at paragraphs 102 and 104 of his report with the following statements:

    I believe it is important for him to demonstrate that he is able to keep to boundaries of the situation and manage his affects in order to ensure those interactions with the children and his co-parenting is not adversely effected and he agreed with this recommendation at interview.  Supervised contact will allow ongoing observation of his behaviour and I note previous concerns being raised by supervisors.  In my opinion Mr Cain needs to demonstrate that he can manage his behaviour better before a progression to unsupervised contact, should the Court so order that. 

14. I note that that evidence of Dr F is also untested.

15. The Independent Children’s Lawyer also referred to the family report, which was prepared and released on 23 June 2020, in particular to paragraphs 86 and 91:

    Regarding Mr Cain’s time with X, the writer agreed with Ms H that spend time should be professionally supervised. However, there have been three separate periods of professionally supervised spend time which have not been able to progress to unsupervised time. These issues revolve around financial constraints, Mr Cain’s mental health instability and his apparent inability or unwillingness to abide by boundaries implemented to safeguard X. For X, this inconsistency can be destabilising and confusing, and she has had to contend with this back and forth in spend time arrangements since parental separation in 2016, some four years ago. This is a lengthy period of time for a young child to manage, especially when she is of an age where she has limited understanding about the issues related to parental separation and her father’s mental health needs. Of positive note is that X does not present with any developmental needs, which is a credit to the care provided by her mother, but may also have been supported by the safeguards put in place around the time she spent with her father.

    To his credit, Mr Cain has been able to maintain FaceTime calls for 18 months on a twice weekly basis.  According to him, Ms Veney and X these calls are largely a positive experience.  In these calls, it seems, Mr Cain has been able to be child focused and have some control over the activities undertaken.  It is encouraging that between the ages of four and seven X has been able to remain engaged in these calls for a significant period of time, and the skill shown by Mr Cain to maintain such a young child’s engagement during video calls is something he should be proud of.  The relationship built between Mr Cain and X during these calls is one of quality and she has remained, generally, safeguarded from parental conflict.  The writer wonders whether Mr Cain has been better able to maintain these calls because of his ability to control the interactions, in a positive way, and not feel challenged by the public humiliation he reportedly felt during professionally supervised time.  Based on Ms Veney’s reports, Mr Cain has also been able to show self-care skills by re-arranging calls at times when he felt unwell.  This further safeguarded X and indicated that Mr Cain’s capacity, albeit limited to this mode of communication, to be child focused.  

    There were still reports of parental conflict during the FaceTime calls.  Mr Cain and Ms Veney’s comments to X about parental separation and why spend time was not occurring may not be considered appropriate in the longer term.  X needs an age-appropriate narrative, and one in which does not contain either parents’ personal views about the situation.  The lack of specific intervention in this area may contribute to the explanations and comments made so far by X’s parents, and the writer considers whether Mr K could provide brief intervention to assist Mr Cain and Ms Veney to come to an agreed, child appropriate, narrative which they can continue to share with X.  If Mr Cain and Ms Veney are able to agree on a shared narrative, this may limit opportunities for further conflict between them, and reduce any concerns they each held about the other’s interactions with X.  In turn, this may help to maintain the quality of Mr Cain and X’s relationship and possibly prevent issues in her relationships with either parent should she wish to spend time with her father in the future, and at a time when she has the capacity to keep herself safe.

    Mr Cain’s mental health remains of concern, particularly in light of the consistent reports by Ms L, Ms Veney and Y about the inconsistency and unpredictable nature of Mr Cain’s communication.  Mr Cain presented with deep rooted issues that have been the centre of adult conflict and potential risk to the children and their mothers for over 15 years.  It may be that Mr Cain needs mental health support for years to come, and to his credit he appears to have made some progress with Ms Veney.  There was no recent third party information available to the writer about Mr Cain’s mental health, although it was noted he spoke positively about his rehabilitation in M Town and he intended to return in the near future. He also reported being able to access support of DVA. This willingness and commitment is a positive step towards him addressing his mental health needs and maintaining a level of stability.

    Mr Cain appears to continue to struggle with decisions made against his views, and this may point to a risk around him not having the capacity to listen to professionals involved to keep him safe, support his wellbeing, ensure the safety of other adults and children, as well as make the necessary changes required to mitigate risk. Mr Cain has experienced deeply sad and abusive times in his life, and the ramifications of this may, unfortunately, continue for the rest of his life. He may need assistance to read and digest the contents of this report so as to minimise the impact on his mental health, and allow him to consider the needs of the children. It is good sign that Mr Cain gave consideration to the writer’s views around observations for the purposes of this assessment.

    Ms Veney presented as a grounded parent who showed remarkable insight into her own mental health needs. She seemed to have taken proactive steps to address her experiences of family violence, the effects it had on her parenting and on Y and X. Ms Veney presented with distress related to her experiences, particularly when communicating with Mr Cain. This may have a destabilising effect on her wellbeing and parenting, and so far she seemed to be attending to those needs with a psychologist. It will be vital to ensure that Ms Veney’s role as primary carer to seven year old X is supported, and risks be mitigated to prevent her parenting from becoming compromised, as this may create other risk issues and difficulties in X’s care. Ms Veney seemed to have taken on board advice from Mr K about implementing boundaries with Mr Cain, and to a large extent this appeared to be effective. Future Orders that reinforce these boundaries and maintain a stable and secure arrangement for X will be key.

16. Mr Turner made the submission that in the event that I do not reintroduce face-to-face time between the father and X now, there will be no mechanism by which the father can exercise face-to-face time between now and a final hearing in December and, accordingly, the evidence then before the Court will effectively preclude the Court from making orders for the father to have face-to-face time with the child.  I do not accept that is the case.  The submission is based on the same false premise as the original submissions made on behalf of the father, no doubt on instructions, that the father’s entitlement to orders for face-to-face time with X rest solely on X’s relationship with the father and do not give proper regard to the impact of an ongoing relationship between X and the father on the emotional wellbeing of the mother.  Between now and a final hearing, the father can demonstrate through expert evidence that he has, in fact, begun to appreciate the corrosive and damaging impact he brings to bear on the mothers of the children of whom he seeks to have some involvement.  It may not be as persuasive as observing face-to-face interaction but I am not prepared to experiment with the child. In any event, it is the father’s interaction with the mother (not the child) which is problematic.

17. I have heard in passing today that X’s older brother is not seeing the father at this point. I do not know the circumstances of that but that would be something which I would take into account at a final hearing. I will not deal with the additional considerations in s 60CC(3) of the Act point by point. I take into account and have regard to X’s previous representations and observations that she very much enjoys time with her father. The mother has raised some doubt about that being the current situation. In any event, if I was satisfied that X particularly wanted to see her father and was entirely without reservation or fear of doing so, I would not make a different decision today. I find that the impact of face-to-face time on X’s mother is more important and weighs more heavily than the child’s desire to see the father face-to-face.

18. I will be ordering a resumption of the video time, so that X will be having that virtual contact with her father twice a week.  The child obviously has a significant relationship with the father, but the nature of her relationship with the mother is that the mother is her primary carer and that is a relationship which the Court must support and safeguard.  I have already commented on the father’s lack of responsibility in relation to parenthood and family violence.  Even taking the mother’s case only at the extent to which it is not denied by the father, there are serious issues at play here which must be addressed.  One manifestation was the father using his car to block the mother and child’s exit from the vicinity of the doctor’s surgery on 25 March.  It was wholly inappropriate and there has not been a hint of remorse or regret for the impact which I am satisfied the blocking of the mother’s exit had on the mother. 

19. I accept the submissions of the Independent Children’s Lawyer, that the father is currently demonstrating a lack of capacity to parent X and deal with the mother in a way that is satisfactory or that warrants there being face-to-face time, particularly when there can be video time.

20. I am satisfied that the Order I make is consistent with X’s best interests.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       31 May 2021