Cave & Cave
[2007] FamCA 860
•23 August 2007
FAMILY COURT OF AUSTRALIA
| CAVE & CAVE | [2007] FamCA 860 |
| FAMILY LAW - CHILDREN - With whom children spend time and communicate - Best interests of a children – Consideration of the term ‘meaningful’ in the context of s60CC(2)(a) and an order that there be no communication or time – Father in prison with a history of violence |
| APPLICANT: | Mr Cave |
| RESPONDENT: | Mrs Cave |
| FILE NUMBER: | MLF | 2887 | of | 2005 |
| DATE DELIVERED: | 23 August 2007. |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 26 & 27 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bender |
| SOLICITOR FOR THE APPLICANT: | Victorian Legal Aid Commission |
| COUNSEL FOR THE RESPONDENT: | Mr Pavone |
| SOLICITOR FOR THE RESPONDENT: | HBA Legal | |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Glaister | |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Gillian Coote Family Law |
Orders
THAT all previous parenting orders with regard to R born in October 2000 and M born in July 2002 (“the children”) are and be discharged.
THAT BY CONSENT Mrs Cave (“the mother”) have sole parental responsibility for the children.
THAT BY CONSENT the children live with the mother.
THAT BY CONSENT the mother have sole and exclusive parental responsibility for applying for passports for the children. Consequentially, that the mother is specifically authorised to apply for passports for the children without obtaining consent of the children’s father, Mr Cave (‘the father”).
THAT BY CONSENT the Court requests that the Australian Federal Police remove the names of R (a male) born in October 2000 and M (a female) born in July 2002 from the Airport Watch Lists at all points of international arrivals and departures in Australia.
THAT BY CONSENT the mother is restrained from changing the primary place of residence of the children from the Commonwealth of Australia without the written consent of the father or orders from a court exercising jurisdiction under the Family Law Act 1975.
THAT BY CONSENT pursuant to s65Y of the Family Law Act 1975 the mother be permitted to remove the children from the Commonwealth of Australia for the purpose of holidays, subject to the mother forwarding by ordinary pre-paid post to the father, in writing either directly or his solicitor, an itinerary at least seven days in advance of any such travel.
THAT the father not live, spend time or communicate with the children or approach the children at their home, schools or at any other place without the written consent of the mother or specific order/s of a Court exercising jurisdiction under the Family Law Act 1975.
THAT the mother have liberty to apply in the event of any difficulties in obtaining passports for the children and/or having the children’s names removed from the Airport Watch List, referred to in orders 4 and 5 above.
THAT pursuant to s 65DA (2) and s 62B, the particulars of 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 these particulars are included in these orders.
THAT the Independent Children’s Lawyer inform the children of the nature and effect of these orders within twenty one days from the date of these orders.
THAT the appointment of the Independent Children’s Lawyer be vacated twenty eight days from the date hereof or such further order or other time as is determined by a Court.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
NOTATION
Order 6 is not intended to prevent the mother from travelling overseas with the children from time to time.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Benjamin delivered this day will for all publication and reporting purposes be referred to as Cave and Cave.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2286 of 2002
| Mr Cave |
Applicant
And
| Mrs Cave |
Respondent
REASONS FOR JUDGMENT
These are proceedings between Mr Cave (“the father”) and Mrs Cave (“the mother”) regarding parenting of their children R born in October 2000 (R) and M born in July 2002 (M), (“the children”).
An Independent Children’s Lawyer was appointed and participated in the proceedings.
It was agreed that orders should be made by consent discharging existing parenting orders and providing that the children live with the mother and that the mother have sole parental responsibility for the children.
The primary issue to be determined was whether the children spend time or communicate with the father by way of telephone communication and letters, cards and presents or whether there be no contact between the children and the father at all.
There was an issue between the parties as to whether the mother should be allowed to obtain passports for the children and travel overseas with them. The mother wanted broad powers in that regard. The father did not want the mother to leave Australia, fearing that she would change the place of residence of the children to the mother’s place of birth in Britain and not return. At the conclusion of the hearing and during submissions made on behalf of the parties, counsel for the father said that there was consent to an order being made removing the children from the Australian Federal Police airport watch lists and permitting the children to travel overseas with the mother from time to time and enabling the mother to obtain passports for the children. This was on the basis that a consent order was to be made that the children’s primary residence should not be changed from the Commonwealth of Australia and that the father is given details of the proposed travel of the children.
The mother consented to an order that she not change the place of residence of the children from outside the Commonwealth of Australia without the consent of the father or further orders of the Court.
Accordingly Orders 2 to 7 are made with the consent of the parties and with the approval of the Independent Children’s Lawyer.
In these reasons a statement of fact constitutes a finding of fact unless otherwise indicated.
Background
The father is aged thirty three and is in good health. The mother is aged twenty seven and is in good health.
The mother was born and raised in Britain. She travelled to Australia on a working holiday in 1999. She has lived in Australia since that time and she is now an Australian citizen, as are the children.
The parties cohabitated for a short period of time from early in the year 2000. The parties married on 27 January 2001. The parties separated in November 2001, when the mother vacated the matrimonial home with R and took up residence in a women’s refuge. At the time of separation the mother was pregnant with M. The parties’ marriage was dissolved by order of the Federal Magistrates Court made 17 May 2004.
After committing a violent crime in November 2004 the father was convicted of the manslaughter of his brother and sentenced to nine years imprisonment with a six year non-parole period. The earliest date upon which he is due for parole is November 2010. On the evidence before me it seems likely that he will be released from full time incarceration at about that time.
The father has a child from a previous relationship, J, who is aged twelve and lives with his mother in South Australia. The father had little or no contact with J from about 11 months after his birth until after November 2004. The mother was not aware of the existence of J until after November 2004. Shortly after he was incarcerated in November 2004 J’s mother became aware of that circumstance and she contacted the father. From that contact the father re-established communication with J. The unchallenged evidence of the father is that he and J now have weekly telephone contact and the father sends letters, cards and presents to him. The father says that this will soon develop into some face to face visits at the prison.
The father has not spoken with R or M since November 2004 and the only contact he has had with them is pursuant to an Order made after a contested interim hearing on 22 November 2005. This order provides for communication between the father and the children by way of correspondence, cards and gifts. A subsequent Order made after a contested hearing provided that the mother send to the father current photographs of each of the children.
Shortly after the separation in November 2001, the father applied to the A Magistrates Court for an order restraining the mother from removing the children from the Commonwealth of Australia and to place the children on the Watch List maintained by the Australian Federal Police. This order was made ex-parte on 13 December 2001, and the proceedings in the State Court were transferred to the Family Court to be then transferred to the Federal Magistrates Court.
On 21 January 2002 the mother applied for, and was granted an intervention order. In July 2003 the father pleaded guilty to breaching that intervention order, which included the father sending the mother a text message which stated “Grandfather fucking slut”. The father was convicted of offences for breach of the intervention order and fined $850.00. This intervention order was extended for a further year from January 2003 up to January 2004.
There is no issue that the children had contact with the father over weekends from early 2002 until November 2004. The full extent of that contact was in issue.
In April 2002 the children’s paternal grandfather, obtained an intervention order against the father. In October 2002 the father was convicted of breach of that intervention order. He was at the same time convicted of using indecent language in a public place, criminal damage, assaulting police and resisting police. The father has a record of conviction in Victoria from May 1992 with regard to possession and use of cannabis. The father has a criminal record in Queensland from 1997 which includes possession of a drug of dependence, indecent and offensive language, failure to give correct name and address, serious assault, wilful damage of police property and possession of a knife in a public place.
After the proceedings were transferred by the State Magistrates Court the application came before a Federal Magistrate on 13 February 2002. Consent orders were made at that time that the children live with the mother and that she have sole parental responsibility. The orders made provision for the children to have face to face contact with the father.
The proceedings in the Federal Magistrates Court continued to an interim parenting hearing on 10 October 2002 before Chief Federal Magistrate Bryant (as she then was) where the following findings were made:-
The father admitted in April 2002 that he threatened to kill himself although he denied he had a gun.
In April 2002 he was angry, violent, damaged property at a hospital and home, threatened to kill himself, probably by putting a gun in his mouth and was under many pressures.
At hospital in 2002 the father acted irrationally and violently and his behaviour concerned those around him both for their own safety and his safety.
The court accepted that the mother was afraid of the father.
There was clearly a lack of significant control by the father which could occur again if he was under similar stresses.
Perhaps prophetically, Her Honour found that:-
“there exists, in my view, some real uncertainties to the father’s present emotional state and whether he has come to grips at all with the issues and stresses that effected him in April [2002]”.
The findings of the Federal Magistrates Court at that time were admitted into evidence in these proceedings, without opposition.
Subsequent to the orders made by the then Chief Federal Magistrate the children had contact with the father initially in accordance with that order. The parties consented to final parenting and contact orders on 16 October 2003 which provided that the children reside with the mother and have contact with the father each alternate weekend and that such contact take place at the home of the children’s paternal grandmother and that the paternal grandmother be present at handover.
The order of 16 October 2003 provided that the father withdraw the requirement made in 13 December 2001, restraining the mother from removing the children from Australia. The orders also provided that the father assist the mother in an application for passports for the children. The order permitted the mother to take the children to Britain from time to time.
On 3 February 2005, about four months after his incarceration, the father filed an application in the Federal Magistrates Court seeking orders for contact with the children in prison and orders restraining the mother from removing the children from Australia and placing the children on the Airport’s watch list. Interestingly, on 7 February 2005 an ex parte order was made by a Federal Magistrate restraining the mother from removing the children from the Commonwealth of Australia and the children were again placed on the Airport Watch List, notwithstanding the consent orders made 16 October 2003.
An Independent Children’s Lawyer was appointed to represent the interests of the children by order made 24 May 2005 and on 30 August 2005 proceedings were transferred from the Federal Magistrates Court to the Family Court of Australia.
On 22 November 2005 interim orders were made that the father have contact with the children by way of correspondence and presents.
The evidence
The father gave evidence in accordance with his affidavit sworn 7 March 2007 (“the father’s affidavit”). He provided additional evidence. This evidence included details of his time with J since November 2004.
In relation to the alleged abuse of the mother by him, the father said he was never physically abusive to her. He said he did put a fist through a wall on one occasion. In cross-examination, he changed this evidence and said that he had put a fist through a wall on two occasions. In terms of his use of drugs he says that he primarily used cannabis and amphetamines particularly up to November 2004. He says he has not used illegal drugs since his imprisonment. He says he used amphetamines extensively until shortly prior to R’s birth. He stopped using amphetamines from that time until separation in November 2001 and then used amphetamines “socially” from that time until November 2004.
In response to paragraph 13 of the mother’s affidavit sworn 13 March 2007 (‘the mother affidavit”) the father said that, the incident referred to in paragraph 13(g) about the violent incident at a police station in 1999, occurred at a time when he was seriously affected by amphetamines and had been using these drugs continuously for up to four days prior to the incident.
In terms of paragraph 13(l) of the mother’s affidavit, where the mother says the father threatened and assaulted his parents and demanded money, he said there was no direct threat and he did not demand money. Further the father admitted that at that time he was angry with and nasty to his parents and that he was not at the time under the influence of any drugs. This is concerning in that his behaviour on this occasion could not be said to be drug related.
In terms of these proceedings, his further evidence was that he has wanted face to face time with the children since his application to the Federal Magistrates Court in February 2005 but on legal advice he was not pursuing that application at this time. He said he would renew that court application after he was released from prison in November 2010.
It was clear, from cross-examination, that the father did not trust the mother. He initially refused to allow her to have a passport or remove the children’s name from the Airport Watch List despite the mother and the children being Australian citizens, the mother having ample opportunity (if she wished) to leave Australia between late 2003 and early 2005. He did not accept the mother’s assurance that she would return to Australia. He said he feared that if she went to Britain, with his criminal history he would not be allowed to travel to see them overseas.
This is somewhat concerning evidence as the mother was free to go to Britain from October 2003 to February 2005 but did not do so. She was able to leave Australia for Britain after the father went to jail in November 2004 and was charged with murder, but did not do so. The father was content for the mother to return to Britain in 2000 for the birth of R, which occurred and the mother returned. The father was aware that in August or September 2001 the wife boarded a flight to Britian with R with the intention of leaving Australia but left the flight. After that event the father consented to orders in October 2003 that the mother be permitted to travel to Britian from time to time. There is nothing in the father’s affidavit as to why he sought orders preventing the mother from travelling to Britain from time to time.
The father conceded that he let his children down by his actions but believes that he is now a good role model. He said he has changed since he went to prison.
The father, in a letter he sent soon after he went to prison[1], observed:-
“Before I met […] [the mother] I was living in Queensland. While I was there I worked for a very powerful motor cycle gang. I was involved in drugs, debt collection, all the crap that goes on with that lifestyle. I ended up stepping on the wrong peoples [sic] toes and got my motor bike, car [sic] taken and a bloody good bashing, being stupid I got revenge, then I got a price put on me and I knew if I stayed there I was pretty sure I would have been dead…”
[1] Affidavit mother Exhibit MC5.
He went on to say:-
“I was a dead set loser and I had nothing, lost the lot.”
The father conceded in Queensland he was heavily into drugs, he was a member of motorcycle gang, he distributed drugs and collected debts. From the evidence I find that he intimidated people to get money in payment for the supply of drugs. The father served some time in prison in Queensland in relation to his criminal behaviour in that State.
The father was cross-examined in relation to use of other drugs such as LSD and heroin. He initially denied use of those drugs and then said he may have “tried them”. He went on to explain that he had used these drugs but did not “abuse” heroin, LSD and speed. I find that the father extensively used drugs prior to his incarceration and that he has little insight into the impact on the children when he used drugs. On his evidence he was a regular illegal drug user over the period from separation in November 2001 to November 2004 and over that time he was having contact with the children. There is no evidence that he was using or affected by drugs while the children were in his care but that does not derogate from his general attitude to illegal drugs over that period.
The father said that the relationship with the mother included verbal abuse but said some of it came from her. This reflects the theme contained in the father’s evidence that deflects his anti-social behaviour towards others. The father’s affidavit is littered with complaints about what he perceives are the mother’s faults or failures, these include but are not limited to paragraphs 21, 29, 30, 31, 37, 38, 51, 58, 78, 79, 80,117, 118, 122, 125,128, 130, 131,144, 145, 151, 154, 156, 157 and 158.
It was put to the father, in terms of domestic violence, that the mother was correct when she swore in her application for an intervention order on 7 December 2001 that:
“My relationship with the defendant [the father] began two years ago. I married the defendant on 27/1/2001 and we have a child together. During the last six months the defendant has become very abusive, aggressive and threatening. The defendant is constantly stoned on drugs and has violent abusive outbursts when I am holding our baby in my arms. The defendant has smashed a hole in the bathroom shower in approximately April 2001 and a hole in the wall in approximately May 2001. In approximately May 2001 the defendant tried to take my child from me and he threatened that “wherever you go I will find you and I will shoot you! I will fucking kill you!”. While the defendant made this threat I was holding our baby in my arms and he was swinging a metal pole with nails on it at me.
In early November 2001 the defendant smashed a vase in the kitchen, pulled out all of the drawers and food from the fridge, I am scared of the defendant and his threatening behaviour, especially when I am holding our child.” [2]
[2] Affidavit mother Exhibit MC1.
The father denied that he used the metal pole. The father denied that he threatened to kill the mother; he otherwise does not take serious issue with the mother’s allegations. In the father’s affidavit he deposed that he denied all the allegations contained in the complaint[3] including the allegations of punching holes in walls, which he has since admitted. He denies the allegations of his drug use, which he later admitted. He then goes on in his affidavit to say in paragraph 147:-
“currently there are no family violence orders in place that I am aware of.”
He ignored that he is in full time prison and is not likely to be released until November 2010 at the earliest. It may be a typographical error but he also deposes in paragraph 146 that:-
“I deny any allegation that I have ever [emphasis added] exposed [R] or [M] to any violence involving my self [sic?] or any other member of our family.”
On balance, I prefer the evidence of the mother as set out in her application.
[3] Paragraph 144.
In respect of the matters set out in paragraph 13(b) of the mother’s affidavit the father admitted smashing the car window of Ms X in 1988, but denied punching and/or kicking her. Even on the father’s evidence this was a violent episode initiated by him.
In relation to the allegation that the father assaulted his late brother D in August 1998, the father initially said he could not recall punching his brother but later conceded that he did punch him. Tendered in evidence was a sub-incident Summary Report from Victoria Police[4] which set out:-
“Complainant [the late [D]] was in the rear yard of the family house and was taking his clothes off the clothes line. His brother […] [the father] punched the complainant to the head. He hit the complainant three times knocking him to the ground. Whilst the complainant was on the ground he kicked to the neck and arm. Offender stopped at this stage and walked away.”
[4] Exhibit W1.
When giving evidence in respect of this issue the father prevaricated when shown the report and on balance I find that the report is an accurate history of that violent incident which was initiated by the father on that day.
In respect of paragraph 13(n) of the mother’s affidavit, about an incident in April 2002, the father denied that he placed a gun in his mouth. He also denies that he threatened the police with a shard of broken glass. He otherwise admits the facts in relation to that event. The father said he both owned and possessed guns but he did not use them on this occasion as alleged.
This must be seen in stark contrast to the sworn evidence provided by the father in his affidavit filed in the Federal Magistrates Court filed 22 July 2005 and sworn by the father on 21 July 2005 where he said at paragraph 3(c):-
“I say that I was not in possession of a gun in this evening in question [… April 2002], and indeed I have never had a gun.”
What was said in that affidavit was false. This is evidence given by the father some eight months after his incarceration. The father says that the events relating to his brother’s death and the father’s incarceration had changed his character and that he was a different person, yet he was content to give false evidence at that time to support his parenting case. This gives rises to serious doubts about the quality of the father’s evidence and whether he has changed as he urges the court believe.
In terms of the text message sent to the mother by the father relating to her grandfather, referred to earlier in these reasons, the evidence of the father is that it was “spiteful and a vindictive act” on his part. I accept his evidence on that point.
In November 2004 the father had spent the day with his children. He went to a family function and had an argument with his brother, D. The argument arose over a remark allegedly made by his brother about the father’s failed relationship with the mother. The father and his brother had a fist fight. The father left after the fight but shortly afterwards returned to the altercation with a steel wheel brace. This must be seen in the context that he returned to a place armed for a continuation of a violent confrontation.
After that second altercation the father left and went back to his home, about five kilometres away from the family function. His evidence was that he acquired a knife and that he proposed to “slash his brother’s tyres”. He drove back to undertake this task and his brother’s car passed him in the street. The father followed his brother’s car and a collision occurred. In evidence the father said that the collision was not his fault. Yet it was he who followed the car in which his brother was travelling armed with a knife, which was later a feature in the violent conflict between him and his brother. On the evidence before me, the father still lacks insight into his role in the death of his brother.
At the initiative of the father there was a further fight, and during the course of that fight D was fatally stabbed with the knife. There can be no doubt that on that night the father’s anger was completely out of control. The father was convicted of manslaughter arising out of the death of his brother.
D’s six year old daughter was present at the time of her father’s death. The father said he did not know that she was observing the violent incident at that time and that he was not sure that she did actually observe the event.
The father also suffered stab wounds in the fight with his brother and spent time in hospital.
In a letter to the mother the father[5] observed:-
“What happened between me and [D] was a tragic accident. I am not a crazed murderer, it was not pre-meditated, it was an argument that should never have occurred. [D] should have never been drinking and referred to the fact that I wrecked my marriage and how I lost you, the kids and the house. The reference to this started a fist fight, after that was separated I had in my mind to wreck their car as I was angry and hurt over what was said. The knife I took was to slash the tyres of his car but [D] and a friend of his tried to overpower me, another fight, wrestles started and at the end of it [D] was dead and I received a stab wound to the chest which punctured my lung…”
[5] Affidavit mother Exhibit MC5.
At one stage in the father’s correspondence from prison he accused his brother’s partner of stabbing D. In a letter he said:-
“I am in a maximum security jail charged with murder I don’t give a f*** if you believe me or not but I am not guilty, ironically the fight that started between me and my brother was over him running [the mother] down in front of other people we started fighting his partner who was drunk grabbed the knife went to stab me missed and got my brother then stabbed me through the chest tearing my lung…”
This correspondence is self-serving and deflective of fault. The letter fails to mention that the remark was about the father and his relationship not about D “running [the mother] down”. In other correspondence he said the fight was about the father’s failed relationship. It did not mention that the father returned to the conflict on two occasions after the first fist fight (making a total of three violent confrontations that night). Further, it did not address the agreed fact that the father brought a knife to the fight and various other matters, such as the father’s subsequent conviction for manslaughter after a plea of guilty and evidence that the father had “bull rushed” his brother. The father sought to minimise his culpability and deflect blame to others. This occurred during a time when the father says that he was, by virtue of the events of November 2004, a changed person.
The father agreed in cross-examination that he paid little child support to assist the mother in the care of the children between 2001 and 2004. From the evidence I find that he paid a total of about $900.00 over that period and this amount was deducted from a tax refund. As such the only child support the father has paid for the mother to provide for the children was a small and involuntary payment.
The father acknowledged that he was ordered to do an anger management course in the orders made 10 October 2002 but he did not comply with that order. He was at the same time required to undertake a parenting course and in that regard he said to Mr G (a psychologist):-
“I was required to do a parenting program. It was provided by the Lutheran Church in [M] and consisted of five sessions. It was demoralising, but allowed me to have contact with the two children …”
He was not interested in complying with the spirit of that order and did not recognise his anger problems. He has not since his incarceration undertaken a course of therapy in respect of his behaviour, although he says he will be able to do an anger management course shortly before his release. In his affidavit the father deposes that:-
“86. I have not been diagnosed with any form of mental illness and I do not take any medication for any sort of mental illness.”
In a letter that the father sent to the mother shortly after his incarceration[6] he again protests his innocence and tells the mother that he is ‘taking her back to court in May to get access”. At the end of the letter he adds:-
“I don’t hate you […] [sic?] I just can’t believe how heartless you have become but I am not concerned about you anymore. [M] and [R] will grow up calling me dad no one else.”
[6] Affidavit mother Exhibit MC5 letter B.
The father then adds in capital letters “AND I WILL NEVER GIVE UP ON THEM, NEVER !!!” This was double underlined. I find this letter to be threatening in tone and it reflects a continuing lack of insight on the part of the father as to the death of his brother and the effect of these continuing proceedings on the children.
The father claims he is drug free in prison. He has not done an anger management course as he says it would not be available to him until shortly before he is to be released. The father’s continuing failure to address his serious anger behaviour is a concern.
The father says the mother should trust him as he is a changed man. He insists that the events of November 2004 changed him and his anti-social behaviour. In the light of all of the evidence I do not accept the veracity of his claims to have changed.
The father claims that he has never caused harm to the children. He conceded he associated with criminals, he used drugs and has committed crimes and he agreed that he sometimes reacted in a violent way. The father says he would now not resort to violence or show violence to the children. He did, however, agree that up to November 2004 he was a bad father.
In further cross-examination from the Independent Children’s Lawyer the father said that he did not let the mother know about the existence of his son J during their relationship.
The mother gave evidence in accordance with her affidavit of 19 March 2007. She said that the children were content, happy and settled. The mother was hoping to travel to Britain to visit her father, whose health has been problematic in the recent years. She said that the father was violent and aggressive and that she had consistently opposed face to face contact. She has negative attitudes to the father but tries not to expose her feelings in that respect to the children. I accept her evidence in that regard.
She said the relationship between the father and the children was poor and the children were upset and distraught after spending time with him. In paragraph 19, 21 and 25 of her affidavit she details the impact on the children:-
“19.…the children were exhibiting behavioural problems including [R] being aggressive and out of control at his day care centre and as a consequence I had to remove him. He would bully his sister [M]. [M] would constantly bite herself causing injuries. After several months I decided to arrange for a friend to deliver the children for contact changeover so as to minimise the prospect of conflict. My friend continued doing this until November 2004.
20.During this period a pattern developed, whereby the children and in particular [R] were aggressive or misbehaved for a period of days after contact weekends. I would be able to get them settled into a normal routine, however this would be upset again following the next contact period. Also, whilst [R] was having contact with the father he began to develop an unhealthy interest in knives, swords and guns. [R] would exhibit such behaviours as taking knives outside and stabbing them into the ground and into a tree saying words to the effect “you stab people with a knife to get blood out of them”.
25.That about the time the applicant was incarcerated I was concerned as to some of the disclosures by the children. [R] said to a friend words to the effect “when you fight you punch and punch and punch until the other person can’t move”. When questioned where he got that information from [R] said it was from his father. On another occasion when I was chasing [R] for kicking his sister he said “daddy kicks nanna and nanna went into the bedroom and daddy went in and threw the bed and broke the house”.
In cross-examination the mother said the children were not aware of her feelings in relation to the father, although conceded that they may know that she did not want them to see the father. She was cross-examined in relation to the week of the hearing. The mother said that she had open communication with the children and told them that a Judge was going to make a decision that week. Her unchallenged evidence was that M said “I do not want to see dad”. R said “I want to know why he killed [D] and will he kill someone else”.
The mother said to the children that they would need to wait and see what happened. I accept that this was an appropriate and child-focused response by the mother.
The mother said that she did not want the father to have a role in their lives ever but if an order was made she would comply with it and she would minimise the distress to the children. She said that when there was trouble with changeover prior to the father’s incarceration as it was hostile and difficult. I accept this evidence.
Counsel for the mother and the Independent Children’s Lawyer both submitted that the father minimised his problems, that he did not have a mature realisation of his actions and that he harbours distrust and spite towards the mother and wants to exercise control. I accept those submissions.
Generally, when the parties’ evidence is in conflict, I prefer the evidence of the mother to that of the father. The mother made admissions against her interests and was frank in the way she gave evidence. The same cannot be said for the father, his evidence was at times untrue, at times he prevaricated, his evidence had a sense that he was endeavouring to construct an outcome rather than provide a frank disclosure to the court.
The unchallenged evidence of Mr Y was read into evidence. This witness is a psychologist who on 13 February 2007 concluded that the abuse suffered by the mother at the hands of the father had a;-
“profound effect on her [the mother’s] emotional well being and she was manifesting depression and anxiety when she first presented on 21 July 2003.”
He also says:
“She [the mother] has strong concerns that her children will become “undone” if they have contact with their father, and she is strongly disinclined for any personal involvement in facilitating or enabling the children to have contact with the father. [Mr Cave’s] [the father] incarceration and the progress of [the mother] seems to be making in other areas of her life appear to be helping her make and experience both physical and psychological distance from the past life with her father. She has always presented as a loving and responsible mother and appears her capacity in this regard has grown and has been strengthened now with her father in prison.”
A report of Ms B, a Registered Psychologist, formed part of the evidence before me. In relation to the father’s psychological abuse of the mother, Ms B concluded:-
“The effect of this was that [the mother] began to believe that she was all these things he called her and she lost self-esteem and over time became depressed with the situation …. She was found to be suffering from acute Post Traumatic Stress Disorder…”
The evidence of Ms B was admitted into evidence unchallenged.
An affidavit had been filed on behalf of the father by Ms U who was a co-ordinator of the Childrens Contact Service, Anglican Community Care, which is located in M, South Australia. That evidence was admitted without objection and without the requirements of cross-examination and as such is unchallenged.
Similarly two affidavits of Mr M, a Consultant Psychologist, filed 16 August 2005 and 11 August 2006 were admitted into evidence. In his first report Mr M observed[7] a comment from the father when he said to this expert:-
“My relationship with [the mother] continued to deteriorate to the point where we were unable to communicate. It was marked by mutual abhorrence and abuse. She took out a restraining order and after significant provocation I sent a condemnatory text message and was found in contravention of the order.”
[7] Report 25 July 2005 at page 8.
The text message was the one referring to the mother and her grandfather. In this instance the father endeavours to shift part of the blame to the mother.
In the same report Mr M observed:-
“That the standard text suggest that the combination obtained by the father, that is (deviance/paranoia/obsessiveness)… is typical of a person who has a long history of very poor interpersonal relations and poor work history, who sees his family as uncaring, believes no-one understands him and blames others for his anger and abuses drugs. Furthermore, such an individual could be cycling between two extremes: acting out impulsively for a period with little concern for social conventions and needs of others… and then feeling guilty, sorry, remorseful, self-depreciating and appear out of control…”
I find this to be a fair assessment of the father as at 25 July 2005. Mr M went on to conclude[8]:-
“During the sessions with the children, no imperative for contact visits with the father, in terms of general welfare of the children was observed by the writer. The prognosis for a success of ongoing visits is not favourable at this stage …
Risks to the children from any traumatic aspect of prison and from allegations of him being generally dangerous (by the mother) are acknowledged. Suggestions are made to ensure safe and healthy, irregular/purposeful contact by the children.”
[8] Page 18.
In his later affidavit of 10 August 2006 this expert said:-
“That the children appear settled and more adjusted. They do not appear to miss their father. [R] (and to a lesser extent [M]) still express very negative connections between their father and jail. They express no wish to visit him in jail and make no enquiries regarding his circumstances.”
The father has made limited contact with the children through the writer. He has been warm and encouraging but circumspect to the point of having a non-existent life in prison. He did not avail himself of the “drafting” resources offered to the writer. He has done little to ease the earlier fears of the children that jail is dangerous and terrible.”
The Independent Children’s Lawyer also relied upon a report prepared by
Dr K, a Consulting Psychiatrist[9]. Dr K assessed the mother on 13 March 2007.
[9] Affidavit [Mr K] sworn 12 April 2007.
Dr K said;
“[The mother] is a twenty seven year old woman who has been through an extremely difficult marriage with a man, whom on his own self report and the description of others, has anti-social personality disorder. She presents herself as being a gullible and naive young girl who was taken in by his superficial charm and the promises and protests that he was going to change, bearing two children to him. She said that she did not realise how restrictive the legislation is that prevented her from moving back to [Britain]. Now she is reconciled to being in Australia, but wants to have full custody and control of the children and for them not to have any adverse influence from their psychopathic father. Should the court decide that [the father’s] rights must be maintained in the face of the evidence, then [the mother] says she will have to cope with it because that will be a fact, but it will certainly make it much more difficult and she believes that the children may well develop psychiatric conditions of their own after such exposure. Her own preference has been stated in her application to the Court.”
This evidence was unchallenged.
The relevant legal principles pursuant to the Family Law Act
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[10]:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[10] s 60B(1) Family Law Act 1975 (Cth).
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[11]:
[11] s 60B(2) Family Law Act 1975 (Cth).
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for such child[12]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. Section 61DA provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child.
[12] s61C Family Law Act 1975 (Cth).
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[13], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is made in interim proceedings, the Court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted pursuant to a determination made under s61DA(4) of the Act.
[13] s 65DAA(1) Family Law Act 1975 (Cth).
In this case there is no issue that the presumption should not apply and that it is in the best interests of the children for the mother to have sole parental responsibility.
Once the question of parental responsibility is resolved then the court needs to determine the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[14]. In this case there is no issue as to where the children live, the only question is should the children should spend time or communicate with the father.
[14] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
In determining what orders it should make the court must regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The factors that the court takes into account in determining what is in the best interests of a child are set out in s60CC of the Act.
Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
How does a court deal with this new “two tier list of factors” set out under s 60CC in determining the best interest of a child?
To give effect to s 60CC (2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
The Court should also have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests. It must not be forgotten that s 60CC (1) makes clear that “Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3)”.
In this case the primary considerations set out in s 60CC (2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC (3). The meaning of the primary considerations was considered by Bennett J in the recent unreported decision of G and C[15] where her Honour said:-
[15] G and C [2006] FamCA 994.
The primary considerations
65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC (2) of the Act described as follows:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67 The correct interpretation of s.60CC (2) (a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68 The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69 While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[16].
70 The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
[16] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
71 The arguments supporting the second possible interpretation include;
(a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
71 My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [B] into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[17]. The evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[17] Ibid paragraph 68.
There is no statutory guidance as to what factors I should consider in determining what constitutes a “meaningful” relationship between a child and a parent. Some of the considerations I regard as relevant and which I take into account are:
a)The nature of the relationship which has existed in the past between the parent and the children;
b)The extent to which the parent in question has sought to be involved in the children’s lives;
c)The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
d)The general social behaviour of and the role model which would be provided for the children by the parent in question;
e)The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
f)What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
g)The other considerations under ss 60CC (2) (b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
h)If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.
Discussion
The primary issue in this case is whether there ought to be some limited communication between the father and the children by way of telephone, letters, cards and presents as proposed by the father or limited letters cards and presents (four times per years) as proposed by the Independent Children’s Lawyer or no time or communication as proposed by the mother.
I find that the father was convicted in July 2003 of breaches of an intervention order which was made for the protection of the mother and the children. He was fined $850.00.
I find that one of those breaches involved the father sending a text message to the mother on a mobile telephone which stated “grandfather fucking slut”. This comment was made to the mother by the father in circumstances where the father was aware that the mother had been sexually abused by her grandfather, over a number of years, between the ages of three and six. The father conceded in cross-examination that this was sent to her in a spiteful manner.
I find that the father’s approach of objecting to the mother being able to take the children to Britain, bearing in mind that the wife previously lived in that country and her family continues to do so, was indicative of his lack of trust of the mother and his desire to maintain control over her, notwithstanding that he was in prison at that time.
In relation to the assertions made by the mother in Exhibit “MC1” (referred to earlier) I prefer the version of the mother to the father and accept that what she said in that document is a true account of the events at that time.
I find that the mother was fearful of the father and that she had good reason to be fearful of him. I accept her evidence that the father threatened to kill her.
In assessing the character of the father he has displayed a significant propensity to violent and anti-social behaviour. The evidence is that this behaviour has been apparent both while he was affected by illegal drugs and at times when he was not affected by illegal drugs.
I find the father has been critical of the mother for not allowing the children to be brought to see him in prison and has pursued this face to face contact until shortly before the hearing of this application. The mother has opposed face to face contact between the children and the father since November 2004. This was in the face of continual pressure by the father for such time with the children. I am satisfied that that was an appropriate approach adopted by the mother bearing in mind the father’s concession at the hearing not to pursue that application at the time he was in prison.
I find, on the whole of the evidence, that for all of the reasons set out above the father was and continues to be a poor role model for the children.
It is generally necessary to determine parental responsibility. In these proceedings there is no issue between the parties that the mother should have sole parental responsibility for the children. In the circumstances of these parties that is an entirely appropriate order. Having regard to the findings made in these proceedings and the provisions of s 61DA (2) and (4) of the Family Law Act 1975 this is a matter where the circumstances are that the presumption would not, in any event, apply and if the presumption did apply it would be rebutted by virtue of the factors set out in s 60CC of the Act.
Section 60CC (2)
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The children do not have a meaningful relationship with the father. They have a meaningful relationship with the mother. The father submits that the children would benefit from a meaningful relationship with him. The mother submits that they would not. The father’s assertion is based upon an epiphany he claims to have had upon the death of his brother and his consequential imprisonment.
There is no dispute that the children both have a meaningful relationship with the mother and that there is a significant benefit to them continuing to have such a relationship.
The mother submits that the Court should find there is no evidence that the children in this case would benefit from a relationship with the children and further that there is a potential risk to the children in having such a relationship.
The father submits that the children would benefit from having a meaningful relationship with him. He says that prior to his incarceration he had such a relationship by virtue of the alternate weekends he spent with the children.
On the evidence it is clear that M has no relationship with the father and that R has knowledge of the father but there is not at present a relationship of any significance.
The rhetorical question must be asked, what benefit is there in these children having a relationship with the father? The objects and principles set out under s 60B reflect the clear understanding that there is generally a benefit in children having a meaningful relationship with both of their parents, to the maximum extent consistent with the best interests of the child. The Court is directed by the legislation to conclude that it is generally of significant value for the children to know and be able to develop a relationship with both of their parents. However, this must be seen in the context of the other object in s 60B(1) of protecting the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
The father in this case was, at least up to November 2004, a violent and anti-social person. He was an angry person whose anger was displayed in violent episodes sometimes in circumstances where he was affected by drugs and other times when he was not affected by drugs. He was violent and abusive to the mother.
The father engaged in the use of a wide variety of illegal drugs and still seems to endeavour to differentiate the use of these drugs in a recreational sense from when his use amounted to an abuse by way of excessive use. This differentiation provided in the evidence of the farther shows his lack of insight into the impact and effect of drugs, even at the present time.
The father has had limited behavioural barriers. Punching holes in walls (and minimising this behaviour), breaching intervention orders, ignoring an order of the Federal Magistrates Court to undertake anger management, lying under oath about his use of guns, a long history of violent behaviour which culminated in the death of his brother in November 2004. Even in that catastrophic event in November 2004 the father’s evidence was that he came back again and again: there was first the fist fight, after which the father returned with the tyre iron, only to return again with a knife. I can see no benefit in the children having a relationship with the father given that he has a history of that nature. I am unable to find any positive attribute which the father exhibits and which he can pass on to the children for their future benefit.
What the father says is that things have changed since he has been in prison. He is no longer violent (notwithstanding that he has not undertaken significant and constant therapy in regard to his violence and anger) or even undergone an anger management course, or that he is no longer on drugs. He says that the death of his brother and his conviction with regard to that death have changed him. Considering all of the evidence before me and my concerns about the quality of the father’s evidence I am not satisfied that there has been change.
In his correspondence sent shortly after his incarceration, the father endeavoured to blame others for D’s death. The use of the capitalised letters in respect of his views with regard to the children in annexure ‘MC5’ was indicative of the father’s lack of insight and was by its nature threatening.
The father says he is a model prisoner and the only violent incident involved in prison was shortly after his arrival. I accept his evidence that he was the victim and not the aggressor in respect of that event.
The Independent Children’s Lawyer submitted that the children were not harmed by their limited communication with the father. This is not the issue. The question is whether, in the particular circumstances of this case, there ought to be a relationship at all. I find that there is no benefit for the children in having a relationship with the father.
If there was some benefit to the children in the relationship proposed, the second question would be would that relationship be meaningful to the children. If I had concluded that the only likely relationship for the medium to long term was limited to correspondence and presents it would have been difficult to argue that it was meaningful. The word meaningful is defined in the New Shorter Oxford Dictionary[18] as;
Full of meaning or expression: significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system.
[18]Edited by Leslie Brown, Clarendon Press, 1993.
The term meaningful is not defined in Stroud’s Judicial Dictionary nor Butterworth’s Australian Legal Words and Phrases. In the context of s60CC(2) (a) it must be the relationship of the child or children to the parent and not necessarily vice versa. The term should relate to what relationship exists or to what is hoped could develop between the children and the parent. As expressed by Kay J in Godfrey & Sanders [2007] FamCA 102 it does not necessarily mean optimal but must mean more than a trivial or meaningless relationship. It must provide a relationship or expectation of a relationship that has in substance some benefit to the children.
The impact of some letters and presents sent to the children by the father may have important meaning to the father, but what does it provide to the children. On the evidence, very little. If the orders were as a stepping stone towards a fulsome relationship, then there could be an expectation that a meaningful relationship could develop over the years ahead. In this case I do not see any order as a stepping stone, quite the contrary.
The children will know of the existence of the father, the evidence is that the mother has photographs of the father in the children’s home and that she is not negative about him but, for very sound reasons, is not positive about him. When the children reach an age and maturity when they chose to see him, or not, as the case may be, I find that the mother will support their views in that regard.
The father says that the children ought to be afforded an opportunity to build a relationship with him so that they can experience his love and support and they can know that they are important to him. With a role model such as the father, I see no benefit in the children having face to face time with him or telephone communication with him. I find that there is no benefit to the children to have a relationship with the father and that proposed by both the father and independent Children’s Lawyer are not meaningful nor do they provide any benefit to the children.
The father asserts that there is no prospect of exposing the children to physical or psychological harm or abuse, neglect or family violence. He goes on to submit that he no longer poses a risk whatsoever to the children of exposing them to any risk of harm. I do not accept his submissions in that regard. There is no evidence that the father has had professional intervention in regard to his anger or anti-social behaviour since November 2004 and the only evidence is that he proposes to undertake an anger management course prior to his release. There is no evidence that the father has threatened the children or inflicted physical harm upon them. If it is true that the children are not at risk at the hands of the father, there is his general approach to violence. In JG & BG (1994) FLC 92-515; (1994) 18 Fam LR 255, at page 81,318 Chisholm J summarised the law as follows:-
1.In proceedings relating to custody, guardianship and access, evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the welfare of the children.
2.The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. [emphasis added]
3.So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children.
4.Where the evidence permits the court to make findings of contested allegations of family violence, where such findings are necessary in order to determine what orders will promote the child’s welfare, the court will make the findings. [footnotes omitted]
In this case most of the issues of violence are not in dispute. The extent of violence is sometimes an issue but there is no doubt that the father exhibited extraordinary signs of violence and anti-social behaviour prior to his incarceration in November 2004.
This violence has impacted significantly upon the children. The observations of the mother in regard to the children returning from access with the father are indicative of this. The fact that the children are aware that their father has killed their “Uncle [D]” is a factor, albeit that the killing was, whilst unlawful, accidental. The question which R asked as to why his father killed “Uncle [D] and whether he would kill again” shows part of the impact of the father’s violence on the children. The unchallenged evidence by the mother that when the children were told shortly before the hearing that a Judge was going to make a decision as to what communication they had with the father brought upon the children bed wetting in circumstances where it had not previously occurred at that level. I find that spending time with the father places the children at an unacceptable risk of being exposed to family violence and that there is a long term need to protect them from such risk. The children will be at risk of the father using the letters and cards to blame others, including the mother, for his behaviour. It may also create an impression that it is the first step to the children spending more time or communicating further with the father, I do no wish to give that impression.
Section 60CC (3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Both parties and the Independent Children’s Lawyer submit that the children do not express any views regarding the father. The mother says they show no need for any communication with him. The father submits that any views expressed by the children would have been established on external influences not as a result of direct interactions of the father, by this the father seems to be blaming the mother for any views the children may have. That submission of the father is consistent with the diagnosis of the father by Mr G in his report 25 July 2005. Apart from Mr G’s evidence, the only current evidence of the children’s views is the question asked by R shortly before the hearing as to the reason the father killed Uncle D. Mr G observed[19]:-
[19] Report [Mr G] 25 July 2005 page 16 paragraph 8.2.
“The children’s wishes.
The children are very well settled and well socialised and managed and cared for by their mother. They do however express frequent themes of blood and violence.
The children are very confused about their father and are cautious, if not frightened of him and prison. They are also too young for any isolated statements to be taken literally: what they say cannot be treated in isolation to their overall presentation.
There is no evidence to support the father’s contention that they would have strikingly positive memories of being with him on the farm. They did not initiate stories or play related to caring for the pony and riding the motor bike when asked about being with their father ….
The children know who their father is and they will have the ability to contact him, if they chose to do, when they are older.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The mother’s good relationship with the children is not challenged by the father or by the Independent Children’s Lawyer. The children are well cared for, they appear settled and well adjusted. The evidence is that they are thriving. They do not appear to miss their father[20].
[20] Report [Mr G] 26 April 2006 page 8, paragraph 4.
The father has no relationship with the children and submits that that situation does not support the best interests of the children and that his involvement in their lives should commence immediately. I am satisfied that there is no relationship except to the limited degree arising out of the orders made on 22 November 2005.
(b)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother is not willing to facilitate and encourage a close and continuing relationship between the children and the father. Having regard to all of the evidence and the submissions of the parties, the mother’s reluctance in this respect is understandable.
To her credit, the mother agreed that she had negative attitudes to the father but says that she has tried not to expose the children to these attitudes. She has facilitated communication between the children and the father. The mother says that whilst she would not be happy with an order for communication to continue between the father and the children she would cope and would comply with the Courts orders. I accept her evidence in that regard.
I find that the mother does not want to encourage the relationship but would be able to do so if an order was made to that effect.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father submits that the main change in the children’s circumstances would involve attendance at a Contact Centre to facilitate their communication with the father and the reintroduction of him into their lives. This is a concern bearing in mind the findings I have made in these proceedings. On the evidence I do not believe that it would be in the bests interests of the children for the father to be meaningfully reintroduced into their lives.
The children are settled and are thriving. The impact of the father on the children prior to November 2004 was on balance negative bearing in mind his poor role modelling, violence and other aspects of his behaviour set out in these reasons and in the evidence.
Not having regular contact with a parent will generally have some negative impact on the children. This must be balanced against the nature of the particular parent and what the overall impact would be. In this case I am satisfied that the overall impact of further communication and the children spending time with the father would be negative. I find that the long term inclusion of the father in the children’s lives will, in the particular circumstances of these parties, not serve the best interests of the children.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
In terms of the applications that are before me, there is limited difficulty in that, at most, the mother would need to take the children to the Contact Centre four times per year. This would involve arrangements in advance but would not significantly impact on the children or provide significant practical difficulty or expense to the mother.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The father and the Independent Children’s Lawyer concede that the mother has the capacity to meet the needs of the children. There is no issue as to this factor.
There is an issue as to the capacity of the father to provide for the needs of the children including their emotional and intellectual needs.
I have accepted the mother’s evidence that during the time when the children were having contact with the father, the changeovers were difficult and challenging for her and consequently for the children. I accept her evidence when she says[21];
“After final consent orders were made I personally delivered the children to the changeover at the police station at [W]. Over a period of months after the contact orders were made problems developed. The relationship between the applicant and myself continued to be conflictuous. There were regular disagreements on the telephone … After several months I decided to arrange for a friend to deliver the children to changeover to minimise the prospect of conflict…”
[21] Affidavit of mother paragraph 19.
The mother showed a capacity to endeavour to minimise the conflict by arranging for her friend to deliver the children to and from visits prior to November 2004. The conflict between the father and the mother continued in terms of the letters sent to the mother and her father by the father from prison. In terms of the father’s violent and aggressive nature, I have referred to this earlier in these reasons and it profoundly impacts on his ability to provide for the emotional and intellectual needs for the children.
Even in the financial sense the father has shown a poor capacity to care for the children. The father had a significant drug habit and used drugs for recreational purposes prior to November 2004. This no doubt would have involved him in some expense and over that time he did not provide proper financial support for the children, except when an income tax refund of $900.00 was intercepted by the Child Support Agency. This shows his indifference to the needs of the children. His need to see them revolves around his own self interest and not the interests of the children.
The father applied to the Federal Magistrates Court in October 2002 to spend time with his children. The then Chief Federal Magistrate offered the father the opportunity to provide evidence that he can control his emotions so that a final determination could be made at that time with regard to the contact between the children and the father.
Such was the concern of the then Chief Federal Magistrate that she required that the contact between the children and their father be supervised. She went on to direct that the father attend and complete an anger management course. He did not do so.
It was made clear by the Court, at that time, that there were real concerns about the father’s emotional state and whether he has come to grips with the issues and stresses that were affecting him at that time[22].
[22] Reasons CFM Bryan paragraph 38.
Subsequent to that hearing the father was convicted of a breach of an intervention order with regard to the mother.
Of concern was the father’s actions on the day that D was killed. The father had spent time with his children on that day. This was the time he said he valued so highly and which he says was important to both him and to the children. Yet he engaged in a fight with his brother, came back with a tyre iron and then came back with a knife. A report of the father’s conviction was annexed to the mother’s affidavit. No objection was taken to that material being put into evidence nor was there any challenge to the accuracy of the material. Judge Nettle told the father, during sentencing, that he was “totally responsible for the incident”. He went on to say that during the altercation the father said “that he was going to kill him [[D]]”.
The sentencing Judge said that “[Mr Cave] [the father] had failed to learn from previous prior convictions involving use of knives, added that the circumstances surrounding [D] death were outrageous. You are responsible for what occurred”.
I do not accept that the father has the capacity to provide for the emotional and intellectual needs of the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
In his submissions the father says that the children are young and if the relationship with him is not encouraged they may lose the chance altogether. He is quite right in that submission, however the impact of the violence and other factors upon the children are such that the loss of that relationship is not as significant a factor as it might otherwise have been.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
There is again no issue as to the mother with regard to this factor. The only issue relates to the father’s attitudes. As I have discussed, the father is a poor role model for these children. He has shown a poor to irresponsible attitude to the responsibilities and, as I have previously stated, I am not satisfied that this has changed.
In Blanch and Crawford (1999) FLC 92-837 Mullane J said of violence [23]:-
“Probably the worst danger to children is the role model that a violent parent provides which can lead to children themselves coming to suffer the serious social disability of using violence in their dealings with other people including those they love. Such a disability can destroy the most intimate relationships and bring the person into conflict with other people, the police and the law…”
[23] At page 85,748.
The father is a violent man and even now he has little insight into the impact of that violence upon the children and the mother.
(j) any family violence involving the child or a member of the child’s family;
The father seeks to minimise the impact of his violence by denying that he was psychically violent to the mother (which I do not accept) and that he has not been physically violent to the children. The whole of these reasons have been coloured by the violent and often uncontrolled behaviour of the father both when affected by drugs and when not affected by drugs. This has to be seen in the light of intervention orders being made and those orders breached, it needs to be seen in the light of a history of violence which led to the father’s conviction for manslaughter and his receipt of a lengthy prison sentence together with the whole of the remainder of the evidence. The children are inevitably involved in such violence whether it has direct or indirect impact on them.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
In regard to this factor I refer to the matters that I have already outlined in respect of the various intervention orders and the various breaches of those orders. I have had regard to those factors.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Unfortunately in this case these children have been subject to family law litigation for almost all of their lives. R was barely two years old when the litigation commenced and M was not born. Apart from some short periods of “cease fire” the litigation has continued in various forms in the State Magistrates Court, Federal Magistrates Court and the Family Court to this time.
The father gave evidence that when he is released from prison, in about November 2010, he will apply to a court seeking orders that the children spend time with him and communicate further with him. I believe on the facts as they stand at the date of this hearing, that that would be an unfortunate application and would not be in the best interests of these children.
There must be a time for the litigation to come to an end and in my view, this is that time. I make these comments having regard to the provisions of s 69ZX(3) of the Family Law Act 1975 which provides that in child related proceedings commenced after 1 July 2006 any recommendation, finding, decision or judgment of any court, person or body of the kind mentioned are admissible as evidence.
The orders that I propose to make that there be no communication from the father to the children are intended to apply after the release of the father from prison. They are not intended to be an invitation to the father to recommence litigation after November 2010.
It is my view that the children should, when they are old enough, make up their own minds as to whether they communicate or spend time with the father. To put these children through another hearing when they are aged ten and eight would only meet the needs of the father and not address the bests interests of the children.
I have made the findings in relation to violence in the father’s past particularly clear in this case, in an effort to dissuade the father from commencing such proceedings and also so that if I am unsuccessful in that regard so that a judicial officer who subsequently hears that application will be well aware of my recommendations, findings and decisions. This is not intended to restrict the discretion of the court determining any future application/s.
(m) any other fact or circumstance that the court thinks is relevant.
I have had regard to all of the facts, inferences and submissions before me in this determination.
Section 60CC (4) of the Act
Having regard to the provisions of s 60CC (4) of the Act, the father asserts that he has made efforts to actively involve himself in the children’s lives. He has done so but done so in the context of his particular behaviour and in a self-centred way. He committed a crime in November 2004 for which there must have been a finding of the requisite mens rea, this crime immediately brought a stop to the time that the father was spending with the children.
There is no doubt that the father has endeavoured to see the children but his involvement in their lives has been limited and he has not at any time in the past taken real responsibility as a parent in the broader sense. Having fun with the children and meeting them for a short period of time does not, in my view, show that a person has taken the opportunity to participate in the wider duties as a parent.
After considering all of the evidence, I find that the father has not seriously taken the opportunity to participate in decision making, spending time with or communicating with the children. I find, on all of the evidence, that he has failed to do so.
I find that the father has failed in his obligation to maintain the children, when he had a capacity to do so prior to November 2004.
The father’s approach to the mother has been such that she has a well founded fear of him.
I have considered the factors under s60CC (4A) of the Act in that I have had regard to the events that have happened, the circumstances that have existed since separation occurred between the parties in about November 2001.
I have not in these reasons recited all of the facts and circumstances, and I do not believe that is necessary. I have had regard to all of the facts and circumstances provided in the evidence and the findings made and inferences drawn. In doing so I have come to a conclusion as to what orders promote the best interests of these children. I am satisfied that the best interests of these children would be served by there being no ongoing time spent with the father either in prison or after his release.
Prior to his imprisonment the father had adopted a lifestyle and behaved in a way which predicated against him associating with any children let alone his own children. He was given opportunities to change that pathway. He chose not to do so. I am not satisfied that his behaviour since incarceration has changed nor am I satisfied that the evidence given to me in that regard is reliable.
I have made a consent order that the mother not change the residence of the children from Australia. This was made in the circumstances where the mother could have reasonably believed that the submissions of the Independent Children’s Lawyer would be adopted by the court and that there would be communication up to four times per year. The final result is of course different to that.
I certify that the preceding 178 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Associate:
Date: 23 August 2007
Key Legal Topics
Areas of Law
-
Family Law
-
Criminal Law
Legal Concepts
-
Consent
-
Jurisdiction
-
Procedural Fairness
-
Remedies
-
Breach
-
Costs
5