Collins and Bloom

FAMILY COURT OF AUSTRALIA

COLLINS & BLOOM

[2013] FamCA 892

FAMILY LAW – CHILDREN – Parental Responsibility – Presumption – Family Violence – Risk to the children – Benefit of a meaningful relationship with each parent – Denigration – Whether each parent has taken the opportunity to spend time with the children – With whom the children spend time – With whom the children communicate.

Family Law Act 1975 (Cth) s60CA, s60CC, s61DA, s64B, s65AA, s65D.

Cox & Pedrana (2013) 48 Fam LR 651.
McCall & Clarke (2009) 41 Fam LR 483.
MRR v GR (2010) 240 CLR 461.

APPLICANT:

Ms Collins

RESPONDENT:

Mr Bloom

INDEPENDENT CHILDREN’S LAWYER:

Jennifer Boulton Solicitor

FILE NUMBER:

BRC

9695

2011

DATE DELIVERED:

15 November 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

4 and 5 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oakley

SOLICITOR FOR THE APPLICANT:

Young & Associates Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bloom in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Collins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Boulton Solicitor

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER

That D, born … 2001, J, born … 2003, Y, born … 2005, and R, born … 2006 (“the children”) live with the mother.

IT IS ORDERED BY WAY OF FINAL ORDER

The Mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children.
The children shall spend time with the Father at all such reasonable times as may be agreed between the parties with such time to be supervised and:
(a)unless the parties agree otherwise, occur at the R Contact Centre in the State of Queensland once per fortnight to commence as soon as possible subject to availability at the Contact Centre;
(b)the cost of the supervision shall be the responsibility of the father;
(c)each party shall be responsible for their own application costs for use of the Contract Centre; and
(d)each party shall contact the Contact Centre within seven (7) days of the making of this Order to register for attendance at an intake session as required by the Contract Centre.
That save as is provided for in this Order, the Father be restrained and an injunction issue restraining him from coming into contact or approaching the children in any manner whatsoever and from having any agent come into contact or approach the children in any manner whatsoever.
That in the event that the Father notifies the Mother in writing, via communication directed to her legal representatives, that he does not intend to spend time with the children at a Contact Centre, the operation of Clause (2) of this Order be stayed.
That in the event that the Father fails to attend at the Contact Centre for the purpose of intake or fails to attend at the Contact Centre to spend time with the children on three (3) consecutive occasions, the operation of Clause (2) of this Order be stayed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9695 of 2011

Ms Collins

Applicant

And

Mr Bloom

Respondent

REASONS FOR JUDGMENT

These proceedings concern D, born in 2001, J, born in 2003, Y, born in 2005, and R, born in 2006 (“the children”). Despite raising numerous issues about the mother’s parenting capacity and ability to provide for, and meet the needs of, the children, the father proposes that they live primarily with her. Consequently, the only issues requiring determination are the allocation of parental responsibility and whether – and if so, how – the children spend time with the father.
The father has two (2) children from previous relationships: Ms L, born in 1992 (now 21 years of age) and Ms J born in 1994 (now 19 years of age). Ms L lived with the parties for a period of time.
The children’s parents commenced cohabitation in about August 1999. They separated finally on 23 May 2007 when the mother left with the children following, I accept, an altercation between the father and Ms L, who was then about 14 years of age. This incident was the last of many occasions of domestic violence which I accept had been perpetrated by the father during the parties’ cohabitation. Despite these violent behaviours, it is accepted that the father has never directly physically harmed the children.
Following separation the father did not communicate or spend time with the children until approximately July 2011. I do not accept the father’s assertion that this was the consequence of the mother’s resistance to him spending time or communicating with them. I reach this conclusion because, when the father sought to spend time with the children in or around early 2011, the mother permitted the same in the absence of an Order or even an application to the Court seeking parenting orders. Her actions in 2011 are inconsistent with the father’s evidence that she had previously acted to prevent him from spending time or communicating with the children.
I accept the mother’s evidence that the father did not seek communication or time with the children in the period from separation until about early 2011. Whilst the father asserts that the mother was incapable of properly parenting the children at the time of separation and remains incapable of properly parenting them now, he failed to maintain interaction with the children or to apply to the Court for parenting orders. Despite maintaining the view that the mother has nothing to offer the children as a parent and that she lacks capacity as a parent, the father seeks only that the children spend time with him each alternate weekend and for half of the school holiday periods.
After the father made contact with the maternal grandmother in about mid 2011, arrangements were made between the parties to facilitate the children spending time with the father. This initially occurred for short periods but moved quickly to overnight on the weekend of 23 July 2011. In September 2011, the children spent a week with the father.
The child D (known within his family as “D”) did not attend with his brothers to spend time with the father on the weekend including 22 October 2011. On that day the father refused to return those children who were in his care to the mother. He asserts that he did so because the children asked not to be returned and he had concerns about the mother’s parenting capacity, the level of care she was providing to the children, her potential drug use and asserted neglect of the children.[1]
[1] Family Report filed 30 April 2013, paragraphs 5.19 & 5.20.
The father denied during cross examination that, prior to that weekend commencing, he had formulated a plan to retain the children. However, it is clear from the documents produced by the Department of Communities, Child Safety and Disability Services (“the Department”)[2] that, in early April 2011, the father had said that if he obtained accommodation for him and the children, the children would be “returned into his care”. Additionally, despite previous contact with the Department, there is no evidence to suggest that the father contacted the Department to raise his concerns about the mother’s care of the children prior to making the decision to retain them that weekend.
[2] Exhibit 10.
I consider it more likely than not that the father’s actions in retaining the children on the weekend including 22 October 2011 amounted to his implementation of a pre-determined decision to retain them. It cannot be forgotten that, at the time this plan was implemented, the children had only spent very limited time in the father’s care since his return to their lives in about July 2011. Further, the father’s actions separated the three (3) younger children from their older brother D. That the father acted as he did in these circumstances reflects his complete lack of appreciation of the children’s attachment to the mother and the impact on them of separation from her and their brother.
On 28 October 2011, when all children but D had been retained by the father, the father sent D, then aged about 10, a text saying “D I want you taken off ya useless mother as well okay”. After D had responded to tell the father that he wished to remain with the mother, the father replied by text saying “biggest mistake of ya life staying with her. Ya’ll have nothing and once ya grow she will be gone anyway.” The father’s willingness to engage in this behaviour and communicate his views of the mother to D is a further clear demonstration of his inability and/or unwillingness to appreciate or recognise the children’s attachment to the mother, particularly given that he had failed to communicate or interact with them after separation in mid-2007.
Despite his assertions that, in retaining the children he had acted to protect them from the mother’s poor parenting, the father did not apply to the Court for parenting orders.
The mother did, however, and on 14 November 2011, the children were returned to her care as a consequence of an Order made by Federal Magistrate Howard (as His Honour then was) made on that day (“the November 2011 Order)”.
I do not accept the father’s evidence that the children spoke with the mother and D in the period they were in his care. I accept the mother’s evidence that the children did not communicate with her or their brother during the period they were retained by the father. Given the father’s clearly expressed dislike of the mother and his views that she has nothing to offer the children as a parent, I consider it highly unlikely that he would act in any way to promote the children’s relationship with her.
The November 2011 Order provided that the children live with the mother and spend time with the father each week from 5.00 pm Friday until 5.00 pm Sunday. The parties were ordered to attend upon a Family Consultant who provided a Memorandum to Court dated 8 December 2011.
In a manner consistent with her evidence before me, the mother told the Family Consultant that the children were exposed to the father’s significant drug and alcohol use and violence during the parties’ relationship. She also told the Family Consultant that she had previously used amphetamines but had not done so for some time and that the father had been significantly affected by alcohol during a changeover which occurred on 4 December 2011 at the B Police station.
The father confirmed to the Family Consultant that he had a history of prior heavy drug and alcohol use, including intravenous amphetamine and heroin use, and that he had previously been a client of the Alcohol, Tobacco and Other Drugs Service. Whilst denying recent drug use and excessive alcohol use, the father told the Family Consultant that he had “a few” vodkas on 4 December 2011 when the children were in his care. To some extent at least, this recounting corroborates the information provided by the mother about this day.
On 14 December 2011, following the release of the Memorandum to Court dated 8 December 2011, the Court ordered that the children live with the mother and spend supervised time with the father, at his cost, for up to two (2) hours each alternate weekend at the G Contact Centre (“the December 2011 Order”). After missing a few appointments, the mother attended and completed an Intake interview on 11 May 2012.
The December 2011 Order required the father to “forthwith enrol and successfully complete” an anger management course and a Positive Parenting Program. The father did not comply with this directive. As at the date of hearing he has not completed either an anger management course or a Positive Parenting Program. This non-compliance must be seen in the context that his failure to comply with the terms of the December 2011 Order was discussed with him during his interview with the Family Report writer on 10 December 2012. I accept the Family Report writer’s evidence that he spent significant time during this interview explaining the importance of compliance with Court orders and the concerns about risk management to the father. I also accept that the father “expressed a commitment to follow through with Court-ordered requirements”.[3] Unfortunately, the father’s expression of intention did not translate into action.
[3] Family Report filed 30 April 2013, paragraph 5.24.
The father did not attend at the Contact Centre for the purpose of undertaking the necessary Intake Session until August 2012. In a manner similar to that expressed to the Family Report writer[4] the father provided no explanation for the delay. The children did not spend time with the father at the Contact Centre until 20 October 2012.
[4] Family Report filed 30 April 2013, paragraph 5.23.
Notwithstanding the father’s failure to take any step to enable the children to spend time with him at the Contact Centre until 20 October 2012, the children did spend very limited time with him in the period from 14 December 2011 Order until 20 October 2012. This time, which occurred for two hours on 26 February 2012, 3 March 2012 and 11 March 2012, was at the mother’s instigation and occurred when she arranged for her brother to supervise the time. That the mother took this action to support the children’s interaction with the father is a further demonstration of her willingness to facilitate their ongoing relationship with him. That the father maintains his position that the mother is unsupportive of the children’s relationship with him in the face of this action and that referred to in paragraphs 4 and 6 above is a demonstration of his incapacity and/or unwillingness to appreciate or acknowledge the mother’s support for the children’s relationship with him.
The children spent time with the father at the Contact Centre on about 10 occasions in the period from 20 October 2012 until the Contact Centre ceased providing the service on around 12 May 2013 as a consequence of the father’s failure to discharge outstanding fees. The last visit occurred toward the end of April 2013 and the children have not seen the father at the Contact Centre since then.
Whilst denying a causal link between the cessation of time and the manner in which the supervised visits were occurring, the father agreed that such visits were not going well at the time the Centre ceased to provide the service.
A perusal of the Contact Centre documents[5] reveals that:
[5] Exhibit 4.
a)the first few visits went well;
b)the father gave the children money for Christmas and an Xbox as a present;
c)from about March 2013 onwards, the father started to struggle to manage the children’s behaviour during visits in that he:
i)told one of the children to “shut up”;
ii)made inappropriate remarks in front of the children;
iii)appeared frustrated when his attempts to interact with the children were unsuccessful and spoke in a raised tone of voice on occasions;
iv)raised his voice and made comments like “I don’t know what to do any more, I might as well go home”, “if you’re not going to listen I may as well just go home”;
v)asked one of the children whether the mother calls him stupid;
vi)told the eldest child that he will have a face that people want to slap when he grows up – responding, when the facilitator intervened, to say that he was only “joking” but that ‘no one likes a smart alec know it all’;
vii)called the eldest child a “dickhead” and told him to get out of his face;
viii)was asked to take deep breaths by facilitators on two (2) occasions as he began to get angry and directed such anger toward the eldest child;
ix)failed to attempt to locate two (2) of the children when they were out of his sight on more than three (3) occasions;
x)took breaks away from the children on at least four (4) occasions during a visit; and
xi)told the children in a raised voice that he was not going to come back to the Centre and that the eldest child was a “smart arse”;
xii)told a facilitator that the children have no manners which made him feel like not coming back,
d)admitted during a feedback session on 12 May 2013 that he was struggling to manage the children’s behaviour.
The Contact Centre documents also record that the father had been observed to react to the children’s behaviour in a way which escalated it - the Centre had allocated 2 facilitators to the visits in order to assist the father during them.
Despite these difficulties, the father sought orders which would see the children spend time with him each alternate weekend – from after school Friday to before school Monday – and for half of the school holiday periods until they are old enough to decide upon their living arrangements.
Given the matters outlined in paragraphs 23 and 24, concerns arise about the father’s capacity to manage the children’s care in an unsupervised environment. These concerns are amplified given my acceptance of the mother’s account of the father’s behaviour in 2007 toward his then 14-year-old daughter, the obvious difficulties in the relationship between D (now 12 years) and the father, the father’s failure to address issues connected with anger management and frustration and the inherent challenges associated with managing the behaviour of the four (4) children. These matters, when combined, persuade me that it is more likely than not that the father does not have the capacity to manage the children’s behaviour in a safe and appropriate manner in an unsupervised setting.
Until 5 June 2013 the mother’s position was that, until the father completed a mental health assessment, parenting course, anger management course and provided clean drug screen results, the children’s time with him continue to be supervised at a Contact Centre. She proposed that, once these matters had been attended to, the children spend time with the father each alternate weekend during the day. She further proposed that, upon the father establishing appropriate accommodation, the children spend time with him each alternate weekend and during school holiday periods.
However, on 5 June 2013 the mother filed an Amended Application by which she sought that orders be made restricting the children’s time and communication with the father to only supervised time at a Contact Centre once per month, and telephone communication on three (3) occasions each week.
She did so after she was assaulted on 22 April 2013 in circumstances which caused her to be suspicious about the father’s potential involvement in the same (“the April 2013 assault”). The father denied completely any involvement in the assault.
Whilst the mother also sought an order for sole parental responsibility for the children, the father did not seek any specific order in relation to this issue.

Principles[6]

[6] See MRR v GR (2010) 240 CLR 461; Cox & Pedrana (2013) 48 Fam LR 651.

In these proceedings, being proceedings for a parenting order (s 64B of the Act) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Family Law Act (1975) (Cth) (“the Act”), make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.
When making a parenting order I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility for them (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act.

The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of the children or another child or family violence: s 61DA(2) of the Act.
I reject the father’s denials of the behaviours alleged by the mother and I accept her evidence that, during the period of cohabitation, the father engaged in behaviour which included:
a)threatening that he would cut her head off, shoot her with a .22, “bury her 6 foot under”, “punch the fuck” out of her;
b)referring to her as a “fat fucking slut”, “fucking cunt”, and “worthless mum”;
c)pushing her, slamming her into walls, holding his hands around her throat, kicking her whilst she was holding a child, smashing her head into a metal bed head, punching her in the head and legs and pulling her hair; and
d)the behaviour she described occurring in front of the children at or around the time of separation when she intervened during the father’s assault of his daughter L and which involved the father punching her and trying to stab her. [7]
[7] Mother’s affidavit filed 16 April 2013, paragraph 105; Family Report filed 30 April 2013, paragraph 4.9.
I accept the account provided by the mother to the Family Report writer of previous separations following the father’s acts of domestic violence. I also accept her account that it became “harder” to leave the father after the parties had more children. I accept that the father would not allow her to leave with the children and that she was reluctant to leave the children alone with him.[8]
[8] Family Report filed 30 April 2013, paragraph 4.8.
I also accept that, since returning to the children’s lives, the father has posted a variety of comments on Facebook,[9] including:
a)On about 26 March 2013: “Oh. My Kidnapping Trial is suppose to start Tomora. What’s fucking Joke. Our Court System Is. My kids asked me to Not B sent home. Because of there ‘So called Mothers Putrid Life Style’ I’m there DAD. I do My Job & feed & cloth them kids with EVERY CENT I HAVE. & I am Now up on Trial/ WTF I would do it again & Again & Again. In Good Con chance………….My kids. Easily will Justifie My Demise. ‘Over my DED body’”;
b)on about 27 March 2013: “…… I’ll get them kids. Shortly anyways fucking thing kids are 11, 9 and 8 They Already Smarter then it. But then again I’ve met Smarter heads on a Hammer” ;
c)on about 7 May 2013: “I’ll have them kids. With me within two years or die trying”;
d)on about 16 May 2013:“Ooooh just incase My Post are still being monitored for Federal Court!!!! [Ms Collins & Ms E] are Drug dealing Scum….Fucking Scum…Need a licence to Drive a car & Own a Dog. Maybe we need the Same thing for fucktards – that Spit out kids. Then fuck em up. You Dogs. Need putting down.”
e)on about 27 September 2013: “…..Cos after handing My kids back to there ‘Packety’ Mum……..”; and
f)on about 28 September 2013: “ And just incase This Post makes it into Nov 4ths Court Case. Packety is a Cleaner way Then saying What it Really is. K Friggen Crack Whore”.
[9] Exhibit 3.
I accept the mother’s evidence[10] that, in addition to the matters outlined above, the father has sent her further abusive, derogatory and threatening texts and has posted further abusive, derogatory and threatening messages on his Facebook page. He has taken no steps to prevent any of the children accessing his Facebook page.
[10] Mother’s affidavit filed 16 April 2013, paragraphs 120 and 121.
I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence toward the mother. I am also satisfied that he did in fact engage in family violence toward the mother during the relationship in the manner that she alleges. I find that a reasonable person who was the recipient of this violence and the behaviours outlined above would fear for or be apprehensive about her personal wellbeing or safety. There is no doubt that the father’s actions amount to conduct toward the mother that caused her reasonably to fear for or reasonably be apprehensive about her personal safety.
I accept the submission made by Counsel for the mother to the effect that an objective consideration of the interactions between the parties during their relationship reveals a pattern in which the father perpetrated acts of violence toward the mother, the parties separated, the father expressed remorse, was apologetic and promised to get help, the mother believed such assertions and the parties reconciled their relationship.
I also accept the submission to the effect that the mother’s actions, approximately a month ago, in dropping the children to the father’s residence for about half an hour on the basis that his sister was to be present to supervise the time, need to be considered against this background. Whilst the mother’s actions in this regard might, in another case, be regarded as inconsistent with her assertions of domestic violence, fear of the father, suspicion about his potential involvement in the April 2013 assault and the necessity for the imposition of supervision on the time the children spend with the father, I do not consider this to be the case when regard is had to the pattern of interaction described above.
It follows that the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[11]
[11] Cox & Pedrana (2013) 48 Fam LR 651, [19].
I must determine that which is in the children’s best interests, in terms of both the allocation of parental responsibility between the parents and the time that they spend with the father, having regard to the considerations set out in s 60CC of the Act.

Benefit of a meaningful relationship with both parents

The Act does not define the term ‘meaningful relationship’ nor does it prescribe criteria on which the Court should rely in order to assess how the children’s parents have or should have a meaningful involvement in their lives. In McCall & Clark[12] the Full Court concluded[13] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents.
[12] (2009) FLC 93-405.
[13] Ibid at [19].
Given that it is accepted that the children will live primarily with the mother, the Court must consider and determine whether there is a benefit to them in having a meaningful relationship with the father, such finding not being dependent simply on a lack of danger of physical or psychological harm. If I determine that such benefit exists, then I must consider whether this benefit needs to ‘give way’ to the need to protect the children from physical or psychological harm.[14]
[14]Vigano & Desmond [2012] FamCAFC 79, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
I express some reservations about the ‘benefit’ to the children of a “meaningful relationship” with the father given his behaviours and attitudes as discussed in these Reasons.
However, I note that the mother supports the children having the opportunity to spend time with the father on an ongoing basis in a supervised environment. As I understood it, such position was not opposed by the Independent Children’s Lawyer.
I also note the Family Report writer’s evidence, given after having the opportunity to peruse the parties’ trial material and the Facebook communications posted by the father, to the effect that it is “generally recognised” that children achieve better outcomes if they have a meaningful relationship with each of their parents post separation and that, here, the children may obtain the following benefits from maintaining some level of relationship with the father in the longer term: knowledge of a parent; some idea of their identity and the possibility of obtaining support from the father throughout their life.

The need to protect the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence

When speaking to the Family Consultant on 6 December 2011 the father denied perpetrating serious violence against the mother, claimed that the parties mainly argued and that he sometimes “pushed” the mother. He told the Family Consultant that his first wife had also obtained a Protection Order against him.
When speaking with the Family Report writer in December 2012 about the issue of violence, the father denied hitting the mother. He admitted pushing her away with the stated justification that this occurred when she would “get in (his) face”.[15]
[15] Family Report filed 30 April 2013, paragraph 5.6.
However, D told the Family Consultant on 6 December 2011 that he recalled that his father was either always drunk or drinking. He provided detailed examples of the father having physically assaulted the mother. I accept the Family Consultant’s evidence that it is likely that D would have independent memories of the father from the time his parents lived together.
When speaking with the Family Report writer in December 2012 about the issue of violence D said that he had a memory of his parents fighting “but not always”. He said that his Dad used to “open hand slap Mum or punch Mum or something” - which he saw a couple of times and still remembered even though it occurred when he was only four (4) or five (5) years of age.[16]
[16] Family Report filed 30 April 2013, paragraph 6.10.
I consider that D’s comments clearly demonstrate previous exposure to family violence and provide corroboration of the mother’s evidence that she had been physically assaulted by the father.
I reiterate that I accept the mother’s evidence as to the events of domestic violence, which included both physical and verbal abuse and controlling behaviours, perpetrated by the father during the period of cohabitation. Given this, I consider that there is a very real risk that the children may be exposed to family violence in the event that they spend unsupervised time with the father whilst he is in an intimate relationship with another adult.
I note that, whilst the father maintained that both parents were “responsible” for the physical altercations between them, he also told the Family Report writer that he considered alcohol to be a significant contributing factor to the violence. Despite this acknowledgement, the father told the Family Consultant that he had “a few” vodkas on 4 December 2011 when the children were in his care. The father’s consumption of alcohol when the children were in his care in circumstances where he later expressed appreciation of its contribution to the violence which occurred during the parties’ cohabitation suggests an unwillingness or inability to act so as to minimise the potential that violent outbursts may occur in the children’s presence in the future.
On 27 August 2012 the husband committed a number of offences. Whilst these were dealt with in the B Magistrates Court on 31 October 2012, there is the very real prospect that the father may be charged with driving under the influence of alcohol on that occasion – documents suggest he recorded a blood alcohol content (BAC) reading of .213 per cent. Given the father’s previous history of difficulties with alcohol abuse, this behaviour is concerning irrespective of the context in which it occurred. It suggests that the father is yet properly to deal with his management of alcohol and, perhaps, gives some credence to D’s comments to the Family Report writer in December 2012 that he was concerned by the manner in which the father drove.
The father asserts that he no longer has an issue with anger management and that he dealt with his anger management problems when he ceased using illicit drugs. However, his most recent offending includes two (2) charges of assault or obstruct a Police officer. I do not join with the father in placing these offences of violence in a “different category” on the basis that they were committed against Police officers. I consider that they demonstrate an inability to control and/or manage behaviour in a way that is societally acceptable and provide a further, relatively recent, indicator of the ongoing necessity for the father to address anger management issues.
The father has no regard at all for the mother as a parent or a person. He told the Contact Centre in April 2013 that he could not identify any strengths in her at all. He expressed the same view before me.
In addition, the father continues to express such views publicly via postings on Facebook. He does so with no regard for the possibility that, at an unknown time in the future, the children may become aware of these extremely derogatory, demeaning and dismissive comments.
It is clear from his evidence that the father considers the contents of his Facebook posts to be expressions of the “truth” about the mother. Despite initially attempting to convey a different view, the father clearly considers that there is no reason why the children should not now know his “truth” about the mother: that she is a “ fucking junky crack whore.” He does not think there is anything wrong with telling the children about his views of the mother’s asserted incapacities as a parent and her alleged failings as a person.
He can see no problem or negative impact for the children in being exposed to his extremely derogatory and denigrating comments about the mother. Given this, he is unlikely to refrain from exposing the children to his “truth” in the event that they spend unsupervised time with him. The father’s incapacity to appreciate the potentially devastating impact upon the children’s emotional functioning of such exposure is another reason why supervision of the children’s time with him is necessary to protect them from exposure to psychological harm and from being subjected to abuse directed toward the mother.
I accept the Family Report writer’s evidence that the children would suffer emotional harm if exposed to the father’s views about the mother’s parenting capacity. I accept that exposure to his comments and view is likely to cause immense confusion for the children. I also accept that, given that the comments are made by the children’s other parent, there is a risk that they may be given ‘credibility’ such that exposure to them may cause the children to question whether the mother is a “bad” mother and whether she is a safe person to be with.
In addition to the matters discussed above, I hold significant concerns about the father’s possible involvement in the April 2013 assault in which the mother’s hair was pulled, she was punched with a closed fist and her head was smashed into her car. The assault resulted in the mother suffering bruising to her cheekbones and shoulder and a large lump to her head.
I accept her evidence that, during the assault, her assailant told her that he had been speaking to the father who had told him things like she had made statements to the Police and sent the “cops” to his farm and that, after the assault, the father sent her a message about the assailant hitting her in words to the effect that ‘it wasn’t all that they had planned for her’.
The father initially said during cross examination that he first became aware of the assault when his daughter told him, about a week or 10 days after it, that the mother had told her that he had sent someone around. However, he later accepted that the day after the assault – 23 April 2013 – he sent the mother a text containing the comment: “what happened run into door something?” The contents of this text clearly establish that he knew that the mother had, in fact, suffered some sort of injury the day after she was, in fact, assaulted.
Initially the father gave evidence to suggest that the mother’s asserted failure to pay her own drug bills led to the assault. However, later in his cross-examination, when asked whether he knew that the assault on the mother occurred because of her involvement with drugs, he said that that was an assumption on his part and that no-one had told him drugs were the reason the mother was assaulted.
The father also agreed that, on 30 April 2013, he sent the mother a text containing words to the effect: “need to wake up to self now, no way to live, it’s your own mates that hit you; that’s not all they gonna do cause you are a wannabe speed dealer.”
When challenged to explain how he knew that it was “not all they were going to do” the father said that he had made that up and lied to the mother. I express significant scepticism about this explanation. When asked whether he had sent this text to the mother in order to intimidate her, he replied that he was just being “cheeky”. I do not accept his explanation. The text was far from being ‘cheeky’. It was clearly intended to be threatening and intimidating.
I can certainly understand the mother’s concern that the father was in some way involved in the assault given her understanding of the father’s knowledge of the assault, the comments referring to him made by her assailant during the assault and the message the father left her. Her understandable desire that the father not be provided with details of her current living arrangements is a further factor which weighs against the making of an order that the parents have equal shared parental responsibility for the children.
To the factors identified by the mother as suggestive of the father’s involvement in the April 2013 assault I add: the father’s obvious hatred of and contempt toward the mother, his assertion that he will have the children in his care within two (2) years or ‘die trying,’ and the contents of a text he sent the mother on 3 April 22013 to the effect that: “women don’t leave me; I one way or another get rid of them once I know they’re no good for anything”. That this text was sent prior to the assault adds to my considerable concern that the father was in some way involved in arranging the same.
The matters outlined above cause me to hold very significant suspicions that the father was in some way involved in orchestrating the April 2013 assault. Such suspicions provide yet another reason why the children’s time with the father requires supervision.
The state of the father’s current mental health is unclear. There is some evidence that he has previously been diagnosed with Bipolar Affective Disorder Type 2 and an Anxiety Disorder. Whether this is an accurate diagnosis matters little in the sense that I have, as required, assessed the father’s actual behaviour and, for the reasons outlined above have concluded that, if exposed to his care on an unsupervised basis, the children will be at an unacceptable risk of harm.

The children’s views

The Family Consultant, whose evidence I accept, spoke with all of the children, save J who did not attend because he was unwell, on 6 December 2011. The Memorandum to Court prepared after such discussions records D speaking fondly about the mother. He did not identify issues, worries or concerns about her or his home environment. He did, however, tell the Family Consultant that he did not feel safe spending unsupervised time with the father. He reported remembering his father as either always drunk or drinking, physically assaulting the mother and failing to follow through on promises. He said that he did not like his father and did not want to spend time with him.
I accept the opinion expressed by the Family Consultant that it is likely that D has independent memories of his father and his father’s behaviour during the time the parents cohabited.[17]
[17] Memorandum to Court dated 6 December 2011, paragraph 39.

I also accept the Family Consultant’s opinion that it is unlikely that the two (2) younger children have independent memories of the father’s behaviour during the time their parents cohabited. She recorded that, at the time of interview in December 2011, the father appeared to them to be “fun”.
The interviews for the first Family Report occurred on 10 December 2012. At that time the children had only recently recommenced spending time with the father – only three (3) supervised visits at the Contact Centre had occurred. [18]
[18] Family Report filed 30 April 2013, paragraph 2.13.
The Family Report writer recorded that the children did not exhibit any significant fear of their father.[19] Whilst it is highly unlikely that the father will recognise or appreciate this, this behaviour and response indicates that it is more likely than not that the mother has refrained from denigrating the father to the children.
[19] Family Report filed 30 April 2013, paragraph 9.3.
The Family Report writer also noted that, as at December 2012, all of the children appeared willing to spend alternate weekends with the father. This position reflected an improvement in D’s attitude toward the father when compared to the views expressed by him to the Family Consultant in December 2011. Such improvement is unlikely to have occurred if the mother had chosen actively to denigrate the father to the children.
Whilst, when speaking to the Family Report writer in December 2012, the children expressed confidence in their father, his ability to care for them and the time that they were spending with him, these expressions of view occurred in the context of just three (3) supervised visits at the Contact Centre. They also occurred prior to the difficulties the father experienced in managing the children’s behaviour in the visits which took place in early 2013.
Given these difficulties, I consider it unlikely that the comments made by the children to the Family Report writer in December 2012 continue to reflect accurately their views: in particular I note the difficulties in the father’s relationship with the D and suspect that, following the comments the father made to him during supervised time, this child’s attitude towards spending time with the father may differ from that expressed to the Family Report writer in December 2012.
Even if I am wrong in this conclusion and the children continue to feel that it would be “fun” to spend time with the father away from the Contact Centre, the conclusions I have reached about the unacceptable risk that such time is likely to pose to their emotional and, potentially, physical functioning countermands the making of such an order.
In addition, I note that, in the updated Family Report dated 2 November 2013[20], the Family Report writer recommends that the children’s time with the father remain supervised until the father is able to demonstrate changes in the identified areas of concern about his functioning. Such recommendation is made despite the expressed wishes of the children as recorded in the first Family Report following the interview in December 2012.
[20] Exhibit 1.

Nature of the children’s relationship with their parents and others

I conclude that it is more likely than not that the children have their primary attachment with the mother, the parent with whom they have always lived. In contrast, I consider it more likely than not that they have a fractured attachment to the father given his complete absence from their life for the four (4) years from separation until mid-2011. Given the sporadic nature of the interactions between the children and the father since mid-July 2011, I consider it unlikely that there has been any significant improvement in their attachments since then.
Whilst it might be concluded that the children expressed fondness toward the father during the Family Report interview in December 2012, the observed interactions between the children and father in early 2013 suggest that the interactions between them is proving testing and/or somewhat frustrating for the father.
A reading of the first Family Report may lead to a conclusion that the Family Report writer expressed some criticisms of the mother’s parenting. Whether that is the case or not, I consider it more likely than not that the mother is required to be both stern and directive to the children in order to maintain proper parental control over them. Her behaviour during observed interaction with the children demonstrated a parent concerned that the children’s behaviour and language remains within acceptable norms.
Whilst in December 2012 the father was observed by the Family Report writer to maintain respectful behaviour towards the children and effectively set limits for them[21], this was not the position observed during supervised visits in early 2013. The contents of the relevant Contact Centre documents clearly demonstrate that the father behaved toward the children in anything but a respectful manner and struggled to manage their behaviour.

Extent to which each parent has taken or failed to take opportunities to participate in decision–making in relation to the children, spend time with the children and communicate with the children

[21] Family Report filed 30 April 2013, paragraph 7.13.

I do not accept that in the period after separation the mother acted so as to prevent the father from spending time with the children. I refer to and rely upon the conclusions contained within paragraphs four (4) and six (6) above.
I conclude that the father failed to take any steps or any significant steps to spend time with the children in the four (4) years from separation to mid-2011. I also find that, in the period from mid-2011 until the present, the father’s interaction with the children has been intermittent and inconsistent.
Given this behaviour and the father’s failure to appreciate the reasons underlying the directive that he complete anger management and positive parenting courses, the mother’s articulated concern that he will “wander in and out of the children’s lives”[22] is warranted.
[22] Family Report filed 30 April 2013, paragraph 9.5.
I accept the Family Report writer’s evidence that, if the father continues in his pattern of “coming and going” in the children’s lives it is likely that the children will feel a sense of instability and have to deal with unsettling issues like how much the father loves or cares for them. I also accept the evidence that, if the father continues to be “in and out” of the children’s lives and, as he has done so far, is unsupportive of the mother’s care of the children when he is present in their lives, exposure to his behaviours is likely to impact adversely on the children’s relationship with the mother: they may well develop insecurity about her capacity to care for them and heightened awareness of the conflict between the parents, both of which are likely to be psychologically damaging to them.
I accept the Family Report writer’s evidence[23] that the father’s failure to complete programs required by previous Court Order, his delay in taking up the opportunity to spend time with the children at the Contact Centre, and his failure to ensure that he has spent all available time with the children at the Contact Centre is demonstrative of a lack of true commitment to the children.
[23] Family Report filed 30 April 2013, paragraph 9.5.
The father’s evidence that he is just about to commence participation in courses consistent with those required by previous Court Order is, I consider, nothing more than a repeat of his assertions to the Family Report writer, in December 2012, that he appreciated the necessity for participation in the same and expressed a willingness to do so.

Extent to which each parent has fulfilled or failed to fulfil the obligation to maintain the children

Contrary to the assertion contained in the Facebook post referred to in paragraph 36 (a), the father has provided no financial support for the children since separation in 2007. He did not pay anything toward the financial support of the children despite earning $500.00 per week for a period of six (6) months in the time since separation. In this way he has failed completely to fulfil the parental obligation to provide financial support for the children.
The mother has met the children’s financial needs from the sole parent’s benefit.

Likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either parent or any other children or person with whom they have been living

The children will, by consent, continue to be cared for primarily by the mother.
Given my findings about the unacceptable nature of the risk posed to the children’s physical and emotional functioning in the event that they spend unsupervised time with the father, it is unnecessary that I discuss further the likely effect of any further change in their circumstances.

Practical difficulty and expense of the children spending time with and communication with a parent and whether such difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis

The mother seeks an order that the children’s time with the father occur at the R Contact Centre. Given the father’s evidence that he will be able to attend at that Centre in order to spend time with the children should such time be ordered, I consider that any practical difficulty or expense associated with the children spending time with the father at that Centre is not such as will substantially affect their right to maintain personal relations and direct contact with him.

Capacity of each parent to provide for the children’s needs, including emotional and intellectual needs

It is clear that both parents have previously struggled with illicit drug use. It is not disputed that both used drugs such as amphetamine and marijuana during their relationship.[24] After separation, the mother used drugs on a number of occasions and continues to use marijuana occasionally in social situations in the absence of the children.[25]
[24] Family Report filed 30 April 2013, paragraphs 2.2 and 2.3.
[25] Family Report filed 30 April 2013, paragraph 4.10.
On the evidence before me I accept that the father has not used illicit drugs for the last four and half (4½) years or so. However, I consider it highly likely that, at least recently, the father has obtained prescription medication, including benzodiazepines, from two (2) different medical practitioners in circumstances where at least one of them was unaware of the existence of the other. Whilst Dr N expressed the opinion that using prescribed medication was preferable to misusing alcohol and other drugs, obtaining and using more prescription drugs than would otherwise have been the case involves at least a potential risk to the children.
Whilst the Family Report writer recorded[26] that it appeared that, during 2011, the father made numerous complaints, which were recorded as Child Concern Reports rather than Notifications, to the Department, primarily over concerns about the mother’s drug use, the children not attending school, and the standard of the mother’s accommodation, these complaints have to be considered against the actual observations of the children by both the Family Consultant and the Family Report writer.
[26] Family Report filed 30 April 2013, paragraph 9.2.
In December 2011, the Family Consultant considered that the three (3) children who attended at the interview were “delightful children” who appeared to be meeting the developmental milestones expected of them.
In December 2012, the Family Report writer observed the children and noted as follows[27]:
From their appearance, there were no signs of neglect. They were appropriately attired. All appeared to be of normal weight and seemed healthy. All had short hair. The boys appeared to have positive sibling relationships with one another. They occasionally engaged in some baiting and teasing but they were not vicious or socially inappropriate in their behaviour.
[27] Family Report filed 30 April 2013, paragraph 7.15.
In contrast to the views expressed by the father, the observations of both the Family Consultant and Family Report writer support a conclusion that the children receive at least adequate care from the mother. I accept that the mother completed a Positive Parenting Program in 2004 following the Department’s request.
I accept the Family Report writer’s evidence that the mother displayed a variable parenting style in that she was able to be “strict” with D but composed, patient and flexible in her parenting of the other children.[28]
[28] Family Report filed 30 April 2013, paragraph 7.7.
Whilst the Family Report writer concluded that both parents were not “brilliant” or “terrible” in their respective management of the children on the day of observations in December 2012, the contents of the Contact Centre notes for early 2013 clearly demonstrate that the father has struggled significantly to manage properly the children’s behaviour. He made derogatory comments to D in the presence of the other children. Further, whilst the father explained his observed comments and behaviour at the Contact Centre as occurring in the context of him becoming frustrated with the children’s behaviour – stating that a child had thrown a toy across the room and that ‘they’ were doing everything to ‘try and get out of time’ – none of these described behaviours were outside the range of “normal” childhood behaviour that the father would be required to manage in the event that the children spend unsupervised time with him.
I note that, in the first Family Report, the Family Report writer expressed the opinion that if:
a)the father had attended Contact Centre visits consistently;
b)there had been no concerns arising from those visits;
c)the father had completed the anger management and parenting programs; and
d)there were no overriding concerns about serious drug use, the children could probably spend unsupervised time with the father during the day.[29]
[29] Family Report filed 30/04/2013 para 9.8
The evidence establishes that the father has not attended Contact Centre visits consistently – having not seen the children since about April 2013 – and that there have been concerns about his capacity to manage the children’s behaviour during those visits which have occurred. I accept the Family Report writer’s evidence that the Contact Centre documents show the father losing patience with the children, not managing their behaviour, walking off and ending the visits early. Further, the father has failed to complete either the anger management or parenting programs. In addition questions continue to exist about his level of use of prescription medication.
None of the necessary pre-requisites identified by the Family Report writer as being precursors to the children spending unsupervised time with the father have occurred.
The father’s behaviour in retaining the children in October 2012 and exposing them to his views of the mother’s parenting of them demonstrates a significant lack of insight into the children’s emotional needs. It also demonstrates an inability and/or unwillingness to appreciate their attachment to the mother and the likely negative impact on them of being separated from her and exposed to significantly derogatory views of her.
The father’s behaviour in posting his views of the mother as a person and a parent on Facebook in circumstances where he has taken no action whatsoever to ensure that there is no possibility that the children will come to learn of these views demonstrates a complete lack of appreciation of the likely damage to the children’s emotional functioning and, potentially, their relationship with the mother – their primary care provider – should they access this page.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents

When interviewed by the Family Consultant on 6 December 2011, the father said that he wanted the children to live with him until the mother could “demonstrate to him that she has resolved what he believes to be the impact of her drug use on her capacity to meet the children’s physical and emotional developmental needs”. It cannot be forgotten that this view was expressed in circumstances where the father had not spent any time with the children from separation in 2007 until mid 2011. That such a proposal could be propounded in these circumstances demonstrates the father’s incapacity and/or inability to appreciate the impact of the implementation of such a proposal on the children.
The father has demonstrated an inconsistent approach to interactions with the children. He made no attempt in the four (4) years from separation to early 2011 to spend time or communicate with them. He delayed in attending at the Contact Centre for intake in order to take the opportunity to spend supervised time with the children. He failed to ensure that Contact Centre fees were paid with the consequence that the Centre withdrew its services such that the children have not seen him, save for about 30 minutes about a month ago, since about late April 2013. He has failed to complete either an anger management course or a Positive Parenting Program despite the importance of these having been made clear to him and despite being required by Court Order to do so. He retained the children in the circumstances set out above and failed to ensure that they communicated with either the mother or D in this period.
The father could not give the Family Report writer a reason why he had not completed an anger management or Positive Parenting Program. He also could not explain why it took him so long to attend the Contact Centre in order to spend time with the children. His failure to attend to these matters, some of which were to occur pursuant to Court Order, is a clear demonstration of an inability or an unwillingness to prioritise the children’s needs by addressing those matters identified by persons with expertise as being necessary to assist with the ongoing parenting of the children.
The mother told the Family Report writer in December 2012 that she believed the children were enjoying seeing their father and that, whilst D complained about having to go, she insisted that he did.[30]
[30] Family Report filed 30 April 2013, paragraph 4.20.
The mother continues to seek orders that the children spend time with the father on a supervised basis. I consider her actions have demonstrated an appreciation of the potential importance to the children of the opportunity to maintain an ongoing relationship with the father although, as noted above, I expressed significant reservations about the actual benefit to the children of the same.

Any family violence involving the children or a member of their family

I accept the Family Consultant’s evidence that exposure to inter-parental violence has an adverse impact upon the children’s social and emotional development. As noted above, D’s comments to the Family Report writer, as well as those made to the Family Consultant, clearly demonstrate his memory of the violence perpetrated by the father.
I also accept the Family Report writer’s opinion that the relationship between the children’s parents was “characterised by significant domestic violence.” I have already found that the father was the perpetrator of this violence. I am also satisfied that, since mid-2011, the father has engaged in abusive behaviour, in the form of insulting, taunting, threatening and belittling messages communicated via social media and text, toward the mother.
Whilst the parties agree that the father has never been directly violent toward the children, I have accepted the mother’s account of the father’s violent behaviour, in 2007, toward his daughter L, then aged about 14 years.
In the absence of the successful completion of an anger management program, I am not reassured that this “issue” is under control. [31] The father’s inability to manage his frustration and expression of anger, including at the Contact Centre where he was aware that he was being observed, remains of significant concern and is a further factor which weighs against an order permitting the children to spend unsupervised time with him.

The Family Violence Order and any inferences which can be drawn from it taking into account the nature of the Order, the circumstances in which it was made, any evidence admitted in proceedings for the Order, any findings made by the Court in or in proceedings for the Order and any other relevant matter

[31] Family Report filed 30 April 2013, paragraph 9.1.

I accept the Family Report writer’s evidence that the mother’s relationship with the father was marked by the making of two (2) Protection Orders and I further note the matters already discussed above.[32]

Whether it is preferable to make the order which would be least likely to lead to the institution of further proceedings in relation to the children

[32] Family Report filed 30 April 2013, paragraph 4.45.

It is always preferable to make that parenting order which would be “least likely” to lead to the institution of further proceedings in relation to the children. However, given my conclusion that, at present, the necessity to protect the children from exposure to harm requires that any time they spend with the father occur in a supervised environment, the prospect of future proceedings cannot be dismissed.
Because of the father’s behaviours, failure to accept and act upon the recommendation of the Family Report writer and the direction by Court Order that he participate in anger management and parenting courses, his unrelenting expressed hostility and negativity toward the mother and his inconsistency in acting to maintain an ongoing relationship with the children, I have given serious consideration to making an order that the children spend no time with the father.
However the mother, as the parent entrusted with the children’s primary care, supports the making of an order for supervised time. I accept the submission made on the mother’s behalf that an order for long term supervised time between the children and the father is the only way in which the children will be provided with an opportunity to have an ongoing relationship with the father whilst protecting them from the unacceptable risk of harm identified earlier in these Reasons.

Any other fact or circumstance that the Court thinks is relevant

As noted above, the father previously retained three (3) of the children in his care for approximately three (3) weeks during which they had no communication with the mother. He has expressed the view that he was justified in taking this action. He has made comments to the effect that he will have the children in his care within two (2) years or “die trying”. He has demonstrated blatant disregard for the Orders of the Court. His previous actions and comments suggest that there remains a risk that, in the event that the children spend time with him on an unsupervised basis, he will simply retain them irrespective of the terms of any order.
The Family Report writer was asked to comment upon whether there were any circumstances in which he would express the view that the children’s best interests required the making of an order that they spend no time with the father.
He said that the circumstances necessary to support the making of such a prohibitive order included that the Court determine that:
a)the father was incapable of changing and of recognising the existence of validity in the concerns raised about him and his parenting capacity;
b)the father continues denigrating the mother in the manner that he has;
c)the father continues to make threatening remarks to people in the manner that he has;
d)the father continues to experience problems with alcohol consumption;
e)the father fails to clarify his mental health status; and
f)the Court was convinced that the father would not attend at the Contact Centre for the purpose of spending time with children.
Many of these matters have been considered in the Reasons already expressed. While I hold significant concerns that the father is likely to continue to behave in the manner outlined above and is unlikely to be able to implement significant change in his behaviours, the relative youth of the children and the mother’s support for them to have an opportunity, on a supervised basis, to continue to develop and maintain a relationship with the father favours the conclusion that they’d be afforded such opportunity at this stage.
I note that the Family Report writer also expressed the opinion that, if an order was made that the children spend time with the father on a supervised basis at the Contact Centre with some “frequency”, this arrangement would require a review at some level after six (6) to 12 months. He expressed the opinion that specified criteria needed to be identified as pre-requisites for any time to “move forward” and that if these criteria were not met by the father the children’s time with him should cease.
I am not persuaded, in the circumstances of this case, that it is in the children’s best interests that there be a further review of the parenting orders after 6 to 12 months. It is always open to the father, should he be able through cogent evidence to establish that he has addressed the matters identified by the Family Report writer, to apply to the Court for further parenting orders on the basis that he is able to establish sufficiently changed circumstances so as to warrant a review of the appropriateness of the existing order.
Those matters identified by the Family Report writer include, specifically: completion of an anger management course; completion of a Positive Parenting Program; clarification about the father’s psychological state and functioning with ongoing psychological treatment over at least a six (6) month period; demonstrated a commitment to consistent attendance at the Contact Centre so as to enable a further review of the father’s capacity to cope with any difficulties in parenting the children and managing their behaviour within such environs.
The Family Report writer identified the disadvantages for the children in continuing to see and spend time with the father in a Contact Centre over a long period of time as being that this time would not allow the development of a meaningful relationship with the father over time and that if it continued long term it was rather “pointless”. Whilst I accept this evidence, I consider, for the reasons outlined in paragraph 126 that, at this stage, the potential to develop and maintain an ongoing relationship with the father afforded to the children by supervised time favours the making of an order for time with ongoing supervision. I consider that fortnightly supervised visits, rather than monthly as sought by the mother, is the regime of time most likely to provide the children with the opportunity to continue to develop and maintain an ongoing relationship with the father.
However, I also consider it is in the children’s best interests that, in the event that the father fails to avail himself regularly of the opportunity to spend time with them on a supervised basis, such time should cease. I arrive at this conclusion after considering the evidence about the impact on the children’s functioning of being exposed to the father in a “coming and going” pattern of interaction and taking into account the Family Report writer’s opinion that, if after six (6) to 12 months all of the specified criteria outlined above had not been met, it is in the children’s best interests that their time with the father cease.
The Family Report writer expressed the opinion that he could see some benefit in a long-term supervision at a less frequent level of interaction: namely a couple of times per year on special occasions. The father expressed the view that such an order would be pointless in that it would not provide to the children any real opportunity to develop and/or maintain a meaningful relationship with him. He said that the children would not get to know him and it would not work. I conclude, from the father’s evidence, that it is unlikely that he would participate in such a regime of time and interaction with the children.
When asked whether the restricted time between the father and children could be supplemented via the exchange of written communication, the Family Report writer expressed some reservations, stating that the Court would need to be satisfied about the father’s capacity not to denigrate the mother in any sort of communication and that there would also need to be an absolute condition that the father not engage in any future denigration of the mother.
I accept the Family Report writer’s evidence that the material suggested that the father could not abstain from commenting negatively about the mother at the Contact Centre. I also agree that the comments expressed in that environment were not as extreme as the very extreme denigration he engaged in via Facebook.
I am not remotely convinced that the father can or is willing to refrain from future denigration of the mother.
The evidence clearly establishes that the parties cannot communicate at all. The father accepted that it was impossible for the parties to co-parent and make decisions about the children because “she can’t talk to me and I can’t talk to her”. This inability to communicate appears to be long-standing.[33]
[33] see: Family Report filed 30 April 2013, paragraph 5.5.
If the Court makes an order that the parties are to share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by the parties: s 65DAC(2) of the Act.
There is nothing in the evidence before me, including the father’s attitude toward the mother as demonstrated in the postings on Facebook this year, to suggest that there is any likelihood at all of any future improvement in the parties’ ability to communicate. I consider that they would be unable to make joint decisions about a major long-term issue in relation to the children - they would be unable to comply with the statutory requirement imposed upon them by the making of an order for shared parental responsibility.
The mother is the uncontested primary care provider for the children. It is in their best interests that she be placed in a position to make decisions about long term issues relevant to their care.
Whilst in the April 2013 Family Report the Family Report writer expressed the opinion that, if the mother had an order for sole parental responsibility, it would be reasonable to include a provision for the father to be kept informed about all important issues to do with the children’s care, welfare and development,[34] he did so in the absence of knowledge of the father’s Facebook postings.[35]
[34] Family Report filed 30 April 2013, paragraph 9.9.
[35] The material read by the report writer was limited to the documents as outlined on page 2 of the report.
Given my suspicions about the father’s involvement in the April 2013 assault, the mother’s desire to ensure that her address is not known to the father and the father’s previous lack of involvement in making decisions about long term issues involving the children, I consider it is in their best interests that there be no requirement for the mother to seek the father’s input about such decisions.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 November 2013.

Associate:

Date: 15 November 2013

[2013] FamCA 892

15 November 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Stay of Proceedings

Costs

Consent