Colson and Olds
[2007] FamCA 668
•6 July 2007
FAMILY COURT OF AUSTRALIA
| COLSON & OLDS | [2007] FamCA 668 |
| FAMILY LAW – CHILDREN – Where father applies to spend time with teenage son – Where mother alleges continuing family violence and abuse towards her and children during cohabitation – Where post separation mother alleges father abuses and harasses her and threatens partners – Long history of AVOs for mother’s protection – Where father found to have numerous breaches AVOs - Where father and child have not see each other for 2.4 years – Where child expresses desire to spend time with his father provided he is safe – Where father rejects notion of supervision – During expert assessment father behaves in overtly aggressive manner – Where court expert decides against seeing child and father together out of safety concerns - Where during hearing father maintained relentless verbal abuse directed to mother and those associated with her – Where Court is satisfied father will expose child to his hostile attitude towards the mother and other family members - Where father’s verbal abuse and threatening behaviour during hearing corroborate mother’s harassment and oral abuse allegations – Twice father charged with contempt in the face of the Court – Where father failed to abide direction to remain in adjacent room and participate by audio means – Hearing stopped at end of second day - To allow the hearing to continue meant abandoning due process in favour of father’s desire to abuse mother and those associated with her – Ordering that child spends time with his father, whether supervised or unsupervised, exposes him to an unacceptable risk of family violence and an inappropriate role model - Establishing contact will place child’s relationship with his primary carer under undue pressure and undermine her ability to maintain a comparatively settled home environment – Father’s application dismissed FAMILY LAW - INJUNCTION – Order made restraining father from approaching child – Child to live with mother and she to have sole parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 60J, 60K, 60I(9)(b), 61B, 61C, 61DA, 61DB, 64A, 65AA, 65DAA, Pt VII Family Law Amendment (Shared Parental Responsibility) Act 2006 |
Goode and Goode (2006) FLC 93-286
Jaeger (1994) FLC 92-492
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580
Blanch v Blanch and Crawford (1999) FLC 837
M v M (1988) 166 CLR 69
Briginshaw v Briginshaw (1938) 60 CLR 336
A v A (1998) FLC 92-800
R v R Children’s Wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598
CW v W (2006) FamCA 387
| APPLICANT: | MR COLSON |
| RESPONDENT: | MS OLDS |
| FILE NUMBER: | (P)NCF | 3480 | of | 1997 |
| DATE DELIVERED: | 6 July 2007 |
| PLACE DELIVERED: | Newcastle |
| JUDGMENT OF: | The Honourable Justice Ryan |
| HEARING DATES: | 19 & 20 March 2007 |
REPRESENTATION
| APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Yen and Mr Hartley |
| SOLICITOR FOR THE RESPONDENT: | Mr Craney |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sundstrom |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wooi |
Orders
That the application filed by the father on 6 September 2005 (and as subsequently amended) is dismissed.
That the child R live with the Respondent Mother.
That the Mother shall have sole responsibility for making decisions concerning the child’s long term welfare.
That the father is restrained from approaching or communicating with the child R, which restraint incudes approaching within 100 metres of the child’s home and school. This is an order for the child’s personal protection.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 all outstanding applications do otherwise stand dismissed.
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCF3480 of 1997
| MR COLSON |
Applicant
And
| MS OLDS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father for parenting orders. The father’s amended application for final orders filed 13 October 2006 indicated he was primarily hoping to obtain orders enabling him to spend time with the parties’ thirteen year old son, R (hereinafter “[B]”). However, during opening remarks the father said he wished to pursue his original application that B lives with him. In the alternative, he sought orders which enabled him to spend time with B 106 nights each year. As neither B’s mother, nor the Independent Children’s Lawyer was served with the father amended application, they had prepared their cases upon the basis of his original application. There was thus no prejudice to either of them by the father’s reversal. In the event, during cross-examination the father abandoned his application that B lives with him and sought orders permitting him to spend time with his son.
B was born in April 1994. He is the youngest of the parties’ three children. B’s older siblings are S born in June 1989 and A born in July 1990. A lives with his mother and S lives independently.
Following a volatile marriage, the parties separated in November 2002. Since separation B has lived with his mother. Although separated, the parties continued their personal relationship with numerous reconciliations and separations until November 2004. Between November 2002 and November 2004, the father and B regularly spent time together. This came to an abrupt end at Christmas in December 2004. Other than a recent meeting arranged without the mother’s knowledge, the father last saw B at Christmas 2004.
The mother said she struggled to find the right balance between enabling the children to maintain relationships with their father whilst protecting her and them from his abusive and anti-social behaviour. Shortly before she stopped facilitating contact between B and his father, the mother obtained another, in a long series of Apprehended Domestic Violence Orders (AVO). This AVO included the children as “protected persons”. Consequently without orders made pursuant to the Family Law Act 1975 (Cth) in place entitling the father to spend time with B, the mother and the father would have breached the AVO if they facilitated contact between B and the father.
Thus, on 6 September 2005 the father commenced proceedings at T Local Court seeking that B lives with him. Eventually, those proceedings were transferred to this court. Following the appointment of an Independent Children’s Lawyer and the release of an expert’s report, the matter was listed for final hearing on 18 December 2006. Because this matter was listed behind a priority hearing, which did not settle, this case was adjourned not reached. Before the hearing was adjourned, the parties agreed that B and the father would see each other once a month at a supervised contact centre. It appears that when he entered into this interim arrangement, unfortunately the father was unaware that the nominated supervised contact centre had a six month waiting list. Upon discovering the contact centre’s waiting time the father took no further steps to comply with an order that the parties complete its intake procedures. Had he done so, the family would at least have been moving up the waiting list. His failure to do so is consistent with his stance in these proceedings that he will not participate in any form of supervision of his time with B, even as part of a stepped arrangement leading to an unsupervised arrangement.
At the end of the hearing, the mother maintained her stance that B should not spend time or communicate with his father. Her counsel highlighted that throughout the hearing the father maintained relentlessly foul invective directed to the mother, her partner, her family and legal team. It is submitted that the father’s behaviour throughout the hearing to a great extent corroborates the mother’s evidence that theirs was a violent and abusive relationship. It is submitted the father is an inappropriate role model for B and that if contact is re-established the risk that B will adopt his father’s anti-social behaviour is high. Because the father’s views and behaviour are so extreme and his behaviour so unmanageable, even if their time together is limited, the risk of harm to B’s emotional, physical and psychological well being is such that the mother says the father’s application should be dismissed.
The Independent Children’s Lawyer submitted that B and the father should spend time together at a supervised contact centre. Even though the father said he would not accept or cooperate with such an outcome, the Independent Children’s Lawyer maintained the submission until, talking loudly, the father spoke over the top of counsel reinforcing his stance against supervision. With this option unavailable, the Independent Children’s Lawyer submitted that the Court should make orders that B and the father do not spend time or communicate with each other.
The father maintained his position that he spends unsupervised time with B. Because he is understandably concerned that arrangements for changeover at H Shopping Centre may result in attempts to have him subject to further AVO’s or charged with breaching AVO’s, he said changeovers should take place at D Shopping Centre. D is closer to the father’s home but is a place that the mother and her family rarely visit. Thus the opportunity for unplanned contact between them is greatly reduced.
The hearing
At the commencement of the hearing the parties and the Independent Children’s Lawyer identified the issues for determination. These are set out below.
(1)B’s views about where he lives.
(2)B’s views about the amount of time he spends with the parent he does not live with.
(3)The parties parenting capacity.
(4)Family violence.
(5)Role model issues.
(6)Separation of siblings.
(7)The risk of harm.
With the father’s concession during the hearing that B should continue living with the mother, issues (1) and (6) fell away.
This was a difficult and complex hearing. Cases in which one parent opposes the other having any contact with their child usually are. However, it is the father’s behaviour during the hearing which makes this case unusual. Despite the Court’s requests and warnings to the father concerning his behaviour, throughout the hearing, he used foul and abusive language when referring to the mother and anyone associated with her, including their son A and the mother’s partner’s teenage daughter. He repeatedly referred to the mother as “Mrs Whore”, “it”, “the thing”, “slag”, “skank”, “fool” and “hard arse”. He called her evidence “a hot load of steaming shit” and as she tried to give evidence called her a “lying bitch” and “lying whore”. The father referred to her husband as “Mr Whore”, “maggot” and “fagot”. The mother’s solicitor, Mr Craney, was referred to as “Mr Cranium” and her first counsel treated with disdain. The father called her counsel “thick”, “lady”, twice raised his middle finger in an offensive gesture while being examined and smacked his forehead to intimate he regarded her questions as foolish. Time and again he spoke over the top of her and repeatedly used a mocking tone on those occasions when he deigned to answer her questions. Counsel proceeded with cross-examination at a measured pace and at no stage was the father put under pressure. There was nothing in the manner by which counsel questioned the father which rationally explained his aggression and misbehaviour. It appeared that the father sensed counsel’s discomfort and deliberately set out to cause her as much distress as the situation permitted.
On three occasions during his cross-examination the father started whistling in a style commonly associated with calling dogs. When the father was asked whom he was whistling at he identified the mother. In response the Court’s observation that he sounded as though he was whistling a dog, the father said he was. Three times he expressed pleasure at reducing the mother to tears.
Twice the father took out tobacco and proceeded to roll a cigarette. On one occasion he was in the witness box and on the other at the Bar table. On both occasions the father complied with Court’s request that he put his tobacco away.
At the mother’s counsel’s request the court officer handed the father his court history convictions print out so that he could comment upon its accuracy. Having received the document the father threw it at the court officer’s feet.
During the hearing the father was charged with two counts of contempt in the face of the Court. The charges concern his offensive language. He was not required to enter a plea and those charges have been adjourned to be determined by another Judge after delivery of judgment in the substantive matter.
From the commencement of the hearing the Court was concerned about the mother’s counsel. She was obviously agitated and the Court was concerned about how she was going to cope with the father. For this reason counsel for the Independent Children’s Lawyer was invited to cross-examine the father first. Unfortunately counsel for the Independent Children’s Lawyer declined with the Court’s erroneous assumption being that counsel was not in a position to cross-examine out of turn. As it transpired counsel for the Independent Children’s Lawyer considered there was forensic advantage in having the mother’s counsel cross-examine first. Having commenced her cross-examination of the father the Court’s concerns that the mother’s counsel was not coping with the father grew. Not long after the luncheon adjournment the father was being questioned about an altercation with another tow truck driver. He agreed he trod on the other driver’s foot. He then said: “Because he is like that Mary [the mother’s husband] she’s married to, thinks he can get away with everything”. Looking at the mother, the father then said: “You know you’re going crazy here, bringing up all this dirt because I’ve got a lot of dirt on you from your daughter”. At this the mother’s counsel started to cry and sought a short adjournment.
When the hearing resumed, the mother’s counsel did not return. It appeared counsel may have misinterpreted the father’s remarks as threatening her and was afraid to return whilst he was present. This is notwithstanding the presence of court security staff and three NSW police officers. The Court sought the father’s agreement to speak with the mother’s counsel and counsel for the Independent Children’s Lawyer in his absence. This was on the basis that the discussion would be on the record. The father agreed to this course. The father departed whereupon the mother’s counsel returned to the court room. Following discussion of a variety of options, the mother’s counsel was given leave to withdraw on the understanding she would make arrangements for other counsel to appear for her client. If necessary, incoming counsel would be permitted to take over cross-examination. When the hearing resumed the next morning, different counsel appeared for the mtoher. Counsel was subjected to similar behaviour as the mother’s first counsel but was able to finish the hearing.
It was on the second day that the father was twice charged with contempt. Although the Court explained to him that appropriate behaviour following the charges may assist in mitigating the consequences if he was convicted of contempt, his behaviour deteriorated. After the father finished his cross-examination of the mother, counsel for the Independent Children’s Lawyer commenced his. When the mother was trying to answer counsel’s questions the father constantly interjected, frequently using the type of language referred to above. The Court explained to the father that his misbehaviour was probably damaging his case and if he persisted the hearing may be curtailed. Having been twice charged, when the father failed to desist he was directed to leave the court room and listen to the mother’s cross-examination electronically from another room. He complied and the hearing continued.
Not long after the father departed he released the mute button and swore at the mother. The father then burst into the courtroom where his invective made it impossible to continue. At this point the father was warned that unless he returned to the adjacent room, listened to the proceedings without interrupting and only returned to the courtroom at the Court’s invitation, the hearing would be stopped and the case determined on the available evidence. Proceeding in this fashion would of necessity deprive the father of the opportunity to cross-examine the mother’s husband and Dr R, the court expert. As to the later the father indicated he only wished to question Dr R about his allegation that Dr R had stared at the father’s then partners breasts. The answer to this question appeared unlikely to assist the Court in determining B’s best interests. Concerning the mother’s husband, the father was looking for an opportunity to have “a go” at the mother’s husband. This is because, as an inappropriate disciplinary measure, the mother’s husband had washed B’s mouth out with Solvol. The father was more concerned with the chance for confrontation than asking questions of the mother’s husband on matters which may have been relevant to the matter at hand.
Knowing the consequences of any further interruptions or abuse, again the father released the mute button and swore at the mother. Again he barged into the courtroom and continued his invective. At this point the Court stopped the hearing. The father impressed as being of at least average intelligence who no doubt understood the impact of his behaviour upon his former wife, those involved in the hearing and particularly the mother’s first counsel. Every available strategy to ensure the father’s participation and also enable the mother to present her case, failed. To allow the hearing to continue meant abandoning due process in favour of the father’s desire to abuse the mother and those associated with her. This is a disappointing outcome. Although there was no application for it, on the first day the father’s misbehaviour justified an order staying his application until he agreed to conduct himself appropriately. Because one possible outcome of the hearing is orders which stop B spending time with his father it appears that those involved in this hearing wanted it determined with all relevant evidence given and tested. Thus they persevered in the face of the father’s provocative and abusive behaviour. Having persevered, at least the case is determined upon its merits with the Court in a position to make final orders.
Before the hearing ended both counsel advised that neither wished to cross-examine Dr R. As earlier mentioned the father did not seek to challenge Dr R on his opinion or test its factual substratum.
Dr R is a Consultant Child and Adolescent Psychiatrist. He practices at B and by consent was appointed court expert to investigate and report upon matters relating to B’s welfare. There is no suggestion that Dr R lacks the professional qualifications or relevant clinical experience for the task he was asked to complete. Combined with his logical and thorough report, it is apparent his opinion warrants considerable weight.
Dr R interviewed the mother, the mother’s husband, B and A on 3 July 2006. On 4 July 2006 he interviewed the father and the father’s then partner, Ms C. On 5 July 2006 Dr R spoke with S by telephone. Although S was given the opportunity to attend personally, it is understandable that she decided not to. Unusually, Dr R did not interview the parents together or the children with their father. Under a heading “Limitations to the Assessment”, Dr R says:
I did not feel confident that I would be able to maintain safety and prevent an angry potentially violent clash between the parents. In addition, [the mother] refused to attend the interview with the father or allow the children to see the father. I was therefore unable to interview the father with the mother or with the children. Despite this limitation I believe I am able to form some conclusion and make recommendations to the Court.
Dr R makes the following recommendations:
1.I recommend that the children remain in residence with the mother where they appear to be developing normally. [S] can decide for herself where she should reside and what sort of contact she has with her parents and siblings.
2.I recommend strongly that neither parent denigrate the other parent in front of the children.
3.I recommend that contact for [B] and [the father] occur at a secure centre, such as the [W] Centre, each month for an hour or two over a six month period.
4.I recommend that a forensic adult psychiatrist assess [the father’s] potential for dangerousness. If after six months there are no further threats of violence, and the forensic evaluation is supportive then I would recommend that there be daytime unsupervised contact for [B] and [the father].
5.If there are ongoing threats of violence and continued litigation against the mother, then I would recommend that contact be ceased completely and that there be no contact until [B] is 16 years of age.
6.I recommend that [the father] continue to have further anger management therapy.
7.Because of the nature of volatility of this matter and the high potential for violence, I believe that [the father’s] ongoing threats should be taken seriously. I recommend that the Department of Community Services need to take a monitoring role for [B] and the police force for [the father] and that a great deal of vigilance needs to be applied by both departments.
Although the father considers Dr R a fool and during the hearing referred to him as “Dickhead […]” and said of him “like I said, about an expert, X is an unknown quantity and a spurt is a drip under pressure. I don't want his stinking private opinions” he says he acted upon the doctor’s recommendation that he should see a psychiatrist, albeit a psychologist. The father says he has been seeing a psychologist, Mr B at M each Thursday for the last 12 months. If Dr R’s recommendation was the catalyst for the father seeing Mr B, the father can only have been seeing Mr B for about nine months. If the father has been seeing Mr B for 12 months, it has been on his initiative and unrelated to his consultations with Dr R. Whatever the reason, the father’s initial consultation with Mr B and regular subsequent attendances, indicates that the father has some insight into his need for professional psychological assistance. Although the Independent Children’s Lawyer wrote to the father and recommended he see a psychiatrist, basically following up Dr R’s recommendations, the father did not respond to her. It was only during his cross-examination, that the father disclosed his attendances upon Mr B. Unfortunately, the father did not produce a report from Mr B and the assessment of the father’s dangerousness that Dr R recommended has not occurred.
Background facts
The father was born in November 1966.
The mother was born in December 1969.
The parties commenced their relationship when the mother was 13 years old and the father 15 years old.
The parties commenced cohabitation on 1 January 1988.
S was born in June 1989.
A was born in July 1990.
On 29 June 1992 the father was convicted at W Local Court of domestic assault. He was placed on a s 556A Recognizance which required him to be of good behaviour for 12 months.
In early 1993 during a brief separation, the mother had a sexual relationship with Mr P. When the father discovered her with Mr P, he assaulted them both. The mother was injured during the assault and attended Hospital that evening for treatment for a fractured sternum. She moved with S and A to her mother’s home. The parties remained separated until shortly before B’s birth. When they reconciled, the father moved into a property the mother rented at G.
In April 1994 B was born.
The parties married on 30 November 1995. For both parties this was their first marriage. The mother’s husband was best man at the wedding. The mother has known her present husband since she was about 15 years old. During the parties cohabitation the father and the mother’s present husband were best friends.
Perhaps because there have been so many Apprehended Violence Orders (AVO) the parties’ evidence concerning this aspect of their history is somewhat confusing. The father’s court history convictions[1] sheds some light upon this issue. Although the parties’ evidence is to the effect that the first AVO against the father coincided with their 1997 separation, as he was convicted of breaching an AVO on 13 September 1996, the first AVO must have been operative by then. In relation to the conviction on 13 September 1996, the father was placed on a two year s 558 Recognizance.
[1] Exhibit “A”
It appears that during 1997 the parties separated. Although separated, their relationship continued. The father says that on 12 and 29 October 1997 and 15 November 1997 he was charged with contravening an AVO. In relation to some or all of these incidents, the father was refused bail and spent approximately nine weeks in L Prison. Whilst he was in prison he tried to commit suicide. The mother visited him every weekend. She wrote to police, the father’s solicitor and attended court saying that she believed the parties’ relationship was moving forward, that she was equally responsible for the breaches and seeking the father’s release.
On 16 October 1997 the father was convicted of two counts of common assault. Although somewhat unclear it appears the mother was one of the victims. The father was sentenced to the rising of the court.
The contravention charges were dealt with at N Local Court on 15 December 1997. The father was convicted on two counts relating to events on 29 October 1997 and 15 November 1997. In relation to both, he was placed on a three year s 558 Recognizance. On the same day, he was convicted on two charges laid 4 December 1997 being, that he “threatened/injure person for being a justice official” and “threatened/injure person for being a judicial officer”. In relation to the first charge he received a two months fixed term concluding 14 February 1998 and in relation to the second, he was sentenced to seven months imprisonment with a minimum term of two months. These sentences ran concurrently and it appears the father was released from jail on 14 February 1998. Upon his release the parties resumed cohabitation.
The parties separated on 17 November 2001.
On 19 November 2001, the mother applied for an AVO for her protection from the father. In the following days she rang and visited the father on a number of occasions.
On 27 November 2001 the parties attended court in relation to the mother’s AVO application. The hearing was adjourned until January 2002. During the period of the adjournment the parties saw each other on a number of occasions, including the mother visiting the father at his home. Throughout this period their sexual relationship continued.
In January 2002 an AVO issued for the mother’s protection from the father.
In February 2002 the mother visited the father unannounced. He had a female friend present and at some stage during the mother’s visit an argument ensued. The father applied on 26 February 2002 for an AVO against the mother. He sought the AVO to stop the mother coming to his home unless he invited her. Upon the mother giving an undertaking, in terms not revealed by the evidence, the father’s AVO application was dismissed.
At some stage during 2002 the parties reconciled.
On 5 November 2002 the parties separated. The mother left the parties D home and moved with all three children into a home she rented at E. During early 2003 the parties resumed a civil relationship and may have briefly reconciled.
For reasons not revealed in the evidence, on 22 May 2003 the father was charged with contravening the AVO for the mother’s protection. He was convicted of this charge on 23 May 2003. The father was placed on a two year s 9 Bond which required that he strictly comply with the AVO.
On 25 June 2003 the father was charged with contravening the AVO. He was convicted of this charge on 16 July 2003. The father was fined $1,000 and received a six month’s suspended sentence upon his entering into a six month s 12 Bond. The father complied with the terms of his Bond and he did not go to jail.
On the weekend immediately preceding their attendance at the Family Court on 15 September 2003 the parties went away for the weekend. The father is keenly involved in fund rasing for an organisation called “[H]”. That weekend they rode up to K where they attended a fund raising event for this organisation.
The parties attended the Family Court on 15 September 2003. Outside the courtroom the father abused and threatened the mother. Court security escorted the father from the court building. After the father left the court, the mother followed him to a nearby car park where she confronted him about his behaviour at court. They argued and she headed off towards her car. The father then drove around and around the car park trying to find her. Bystanders called police who located the mother and took her to the nearby police station. The father waited outside the police station, apparently hoping to continue the argument with the mother. Police told him to leave and escorted the mother home. By this stage she was afraid to be alone at home so she left to stay with friends for a few days. Because of his threats to the mother the father was arrested and refused bail. He spent three weeks at L prison. Whilst he was in prison the mother visited and again took steps to have police action against the father stopped. At her behest, she was relieved of her undertaking previously given on the father’s AVO application, police action against the father stopped and the AVO for her protection from the father was revoked.
During 2003, whilst the father was in L prison for the weekend, the mother tried to hang herself at his home. The father discovered her and persuaded her to go to Hospital.
In November 2003 the parties resumed cohabitation. They separated not long afterwards.
On the mother’s application the parties were divorced on 1 July 2004.
By prior arrangement with the mother, on Father’s Day 2004 the father visited the children at her home. At that time he was living with a couple at G. With the mother’s consent the father remained in her home for one week, during which time the parties were intimate. At the end of the week, whilst returning to G, the father had a motor bike accident in which he broke his neck, back, dislocated a shoulder, fractured his skull and broke a foot. For the five weeks following his discharge from hospital, the father convalesced at the mother’s home. When she believed he was well enough the mother insisted the father leave. The father considers this period equates to another reconciliation and is unable to accept that the mother was just being kind. The mother and B drove the father back to G.
In late November 2004 because he was being bullied B ran away from school. The mother spoke with the father who found B and returned him to the school. At the school the father bullied and abused the staff who called police. Because of the father’s abuse and threats, some of which related to the mother, police advised the mother to obtain an AVO.
On 5 December 2004 the father asked the mother if he could move in with her. She declined. His request followed a dispute with the female of the couple with whom he was living at G and which resulted in their insisting that he moves out.
On 22 December 2004 the mother successfully applied for an AVO for her protection from the father. It appears that the catalyst for this application was the father‘s late night surprise arrival at 11.00 pm at the mother’s home. He said he wanted to see the children. Although they were asleep, so as to avoid an argument with the father, the mother woke them up. The children spoke to their father for a short while and returned to bed. The father then challenged the mother about a non-existent boyfriend who he threatened to kill. When he refused to leave, the mother said she was going to telephone the police. The father then left. At about 4.30 am the mother received a telephone call from the Hospital. She was informed that the father had just been seen at the emergency unit and was warned that because of threats he made to harm her, if he came to her home she should immediately telephone the police. When the mother looked outside she saw the father sitting in his car. Petrified she called the police, who attended and asked him to leave. In Dr R’s report there is reference to the father’s admissions to the Hospital for paranoia and attempted suicides. This appears to be one of those occasions.
Having obtained an interim AVO, because the children wanted to see their father the mother spoke with police about how she could arrange this without breaching the interim AVO. Acting on police advice, the mother wrote to the father suggesting that he collect A and B from her home and spends Christmas day with them at his parent’s home. When he agreed she gave her written authority for this to occur. The day passed without incident. These two children have not seen their paternal grandparents since.
The parties were both invited to the same 2005 New Year’s Eve party. The father made many enquiries of the hosts and other invited guests if they knew whether the mother was likely to attend. He was concerned that he should not attend if she was there. Informed that the mother was not attending, the father went to the party. At the party, the father let off a cracker after which a male guest swore at him. Because he was sworn at the father said “I had a go”. A fight was avoided only because the father’s friend dragged him away. Without this intervention the father was intent upon having a physical fight. At this point and probably because of the melee, the parties discovered both were at the party. The father did not approach the mother.
In January 2005 the mother commenced a relationship with her present husband.
On 13 January 2005, arising out of the parties chance meeting on New Years Eve, the father was charged with breaching the AVO for the mother’s protection. It appears he was refused bail and remanded to LPrison until the matter was dealt with.
On 27 January 2005 the father was convicted and fined $100 for the AVO breach.
On 10 February 2005, a two year AVO was made for the mother’s protection against the father. Although police intended that the AVO also include the children, S successfully applied to have her name removed as a protected person. A and B continued to be covered by the AVO.
On 14 February 2005 the parties ran into each other at D Shopping Centre. They agreed the father could telephone the children the following day. When he did so he had a brief conversation with B in which B accused him of previously trying to burn down the family home.
On 10 May 2005 B telephoned the father at about 8.00 am. the father believes the telephone call was prompted by the mother’s suspicion that he was working.
On 4 August 2005 an AVO was made for B’s protection against the mother’s husband. This relates to an incident in early July 2005 in which the mother’s husband washed B’s mouth with Solvol. S told the father about the incident and together they approached police. The order was not included in the evidence. It is a five year order and it appears that it contains the statutory condition that the mother’s husband may not assault or harass B. The same day the father applied to remove B’s name from his AVO. The fate of this application is unclear.
On 3 October 2005 the mother married her present husband.
In late 2005 the father went to McDonalds at D shopping centre. He was unaware that A worked there and was at work when his father parked in the car park. Although A saw the father, the father did not see him. A told his mother about the sighting. The evidence does not reveal precisely what A said about this incident to his mother. The mother complained to T Police and alleged the father had glared at A. Police spoke to A and then to the father. No further action was taken in relation to the mother’s complaint. From this it is reasonable to infer that the investigating officers preferred the father’s version regarding this incident. The father feels so strongly about this incident that he refuses to acknowledge that A is his son. As the father explained the situation, he has children “not dogs”.
In July 2006 Dr R conducted his interviews.
On 15 August 2006 the Court released Dr R’s report to the parties and the Independent Children’s Lawyer. In accordance with Dr R’s recommendation the Registry Manager was directed to forward a copy of his report and B’s address to the Department of Community Services regional office with a request that the department undertake a monitoring role in respect of B’s safety. The Registry Manager was also directed to forward a copy of the report and the father address to the N Regional Commander of Police with a request that the police undertake a monitoring role in respect of the father and his threats against the mother and her husband.
On 27 September 2006 the mother filed an application in a case seeking orders permitting DNA parenting testing procedures in relation to B. She says there is a possibility that Mr P may be B’s father. Two months later she discontinued this application. Given the relationship history as explained during this hearing the mother’s relationship with Mr P does not coincide with her pregnancy with B. Her failure to proceed with the DNA application suggests she is aware the outcome if DNA testing is likely to corroborate the father’s evidence that he is B’s father. This aspect of the mother’s case does not reflect well upon her.
On 30 August 2006, the mother, her husband, A and B moved to M.
On 1 November 2006 S moved in with the mother. Although the mother hoped she would remain, not long before the hearing S again moved out. Presently she is living with a friend’s family and after being absent for about two years, is once again attending school. She sees both of her parents regularly and appears to be trying to maintain a neutral position between them.
On 18 December 2006 this matter was listed for hearing but not reached. Before the matter was adjourned, the Court made the following orders.
1 By consent the parties and the Independent Children’s Lawyer have leave to inspect the documents produce on subpoena by [A] Hospital and the [J] Hospital.
2 Pending further order the child [B] born [in] April 1994, spend time with the father, such time to, occur at the [W] Centre, O, on one occasion each month, for two hours on each occasion.
3 Pending further order the time to be spent by [B] with the father is to be supervised by the staff at the [W] Centre.
4 Pending further order each of the parties is to establish contact with the [W] Centre on or before 20 December 2006 regarding the putting in place of the arrangement in paragraph 1 herein.
5 Pending further order the parties are to provide all required information, give all required consents, and comply with all or any assessment requirements of the [W] Centre to enable the arrangement in paragraph 1 herein to proceed
6 Pending further order each party shall not denigrate the other in the presence or hearing of the subject child nor permit or encourage any other person to denigrate the other party in the presence or hearing of the child.
The last of the AVO’s for the mother’s protection expired on 10 February 2007. Prior to its expiry the mother asked police to seek an extension of the AVO or alternatively a new order. On 29 February 2007 police made a further application. Primarily the grounds relate to the father’s frequent attendance at H shopping centre. This is where the mother usually does her shopping and where the mother’s daughter works part time. On a recent visit to the shopping centre the father was in the shop where the mother’s daughter works swearing and throwing CD’s around. He was unaware that the mother’s daughter worked there and did not approach her. No AVO has issued.
About three weeks prior to this hearing the father and B met at M Railway Station for about one hour, after which B rode his skateboard home. The mother was unaware of the meeting until afterwards.
The governing law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(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.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared.
Family violence and risk assessment
Family violence is a significant issue in these proceedings. With the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 it arguably has even greater prominence that beforehand. Family violence is now defined as being “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.” (See s 4). In a note to the definition it is explained that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
In the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (8 December 2005) Parliament explains the significance and effect of its intention concerning s 60B(1)(b) and in doing so highlights its prominence. It states:
35.The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term ‘subjected to’ has been retained as well as ‘exposed to’ in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person.”
At page 13 the Explanatory Memorandum says:
48.The amendment to section 60CC creates two tiers of considerations that the court must take account of in determining what is in the best interests of a child. The primary considerations are contained in the new subsection 60CC(2). They include the benefit to the child of having a meaningful relationship with both parents and the protection of the child from physical and psychological harm. The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents. 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 (inserted by item 8).
49.For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child’s views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.
In addition to the objects (s 60B(1)(b) and inclusion of family violence as a primary consideration (s 60CC(2)(b), s 60CG requires the Court to “ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence.” The Court must do so to the extent that is possible consistent with the child’s best interests remaining the paramount consideration. As discussed earlier s 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a child’s parent (or a person who lives with a child’s parent) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence.
For applications commenced from 1 July 2007, by s 60J people are not required to attend family dispute resolution where there has been child abuse or family violence by one of the parties to the proceedings but shall be provided with information about the services and options that are available to them. This will ensure that people are made aware of services and options (including alternatives to court action) that are available in circumstances of abuse or violence. Section 60J(2) provides an exception to the requirement in s 60J(1) where there is a risk of child abuse or family violence if the matter is delayed getting to court. While the intention of s 60J(1) is to ensure that victims of violence have information on the services available to them, the exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible
Section 60K places an obligation on the Court to take prompt action in relation to allegations of child abuse or family violence.
Section 60I(9)(b) provides that attendance at family dispute resolution is not required where the Court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.
In their totality these changes are consistent with principles which emerged, but which were not universally accepted, from a series of pre Shared Parental Responsibility Act 2006 cases. Particularly Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580. In Patsalou, as the trial Judge, Moore J discussed the significance of family violence and in doing so said the following:
“Any suggestion that such behaviour is only relevant to the welfare of children if it ‘took place in the presence of the children’ or they were ‘made aware of it’ cannot be supported. In my opinion, the denigration of one parent by the other and the perpetration of violence by that parent against the other is of importance when assessing where the interests of children lie and what future arrangements might best advance their welfare.
Denigration and/or assault put the target of this behaviour under considerable unnecessary strain which may, in turn, impinge upon the quality of parenting able to be offered to the children for whom that parent bears or shares responsibility. For a parent to conduct himself/herself in such a manner towards the other parent reflects poorly on the assailant's capacity to recognise that by this behaviour they may erode the confidence, dignity and self esteem of the children's other parent and thereby place the quality of parenting able to be offered under unnecessary strain.
It also reflects poorly upon the assailant's capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress.
Moreover, the effect upon children of inter-spousal violence is now the subject of a considerable body of research. This shows that, though the effects may vary depending on a number of variables, including age and stage of development of the child and frequency and extent of the violence, they may be profound and long-lasting.”
Even if the issue was not addressed in submissions, the Court was previously required to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 837. This remains a relevant consideration.
In M v M (1988) 166 CLR 69 the High Court explained the legal principles to be applied in the case involving allegations of sexual abuse. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. In M v M (supra) this process is explained by Dixon J in the following terms:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
These principles are applicable to all allegations of risk of harm, including the risk of family violence. A v A (1998) FLC 92-800.
If the Court determines that it cannot or should not make a positive finding that there has been violence, the Court must determine whether in all the circumstances there is an unacceptable risk of it. The manner in which the Court conducts an assessment of the risk of future harm is set out in A v A (supra). The Full Court held:
“The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband (…). In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant that would be likely to have a profound effect upon the approach to the question of contact. In cases of this sort, often it is not possible for the court to form a positive view at one end or the other end of this scale of dissuasion and it is not necessary for it to do so.”
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
“The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.”
The Father’s circumstances
The father is a disability pensioner. On the Sunday prior to the hearing he moved out of shared accommodation and returned to live with his parents at S. Since separation the father has lived on and off with his parents, a pattern which appears likely to continue. The father’s father is 72 years old and his mother is 64 years old. Eventually the father would like to spend time with B at his parent’s home. For about six months during 2006 the father lived with his partner, Ms C. At the beginning of the hearing, the father said he was relying on an affidavit sworn by Ms C. Upon hearing Ms C was required for cross-examination the father said she was at work and unavailable. Subsequently, he conceded that he and Ms C are separated and she has fled to Queensland. Their relationship break-up was acrimonious and Ms C is seeking an AVO against him.
Dr R discussed the father’s circumstances with him. the father was born in N and grew up in the S area. He has a brother N who is married and works as an engineer. The father and his brother are not particularly close. He is close to his sister who has two children. After leaving school, the father worked for 17 years as a truck driver. He worked long hours which meant that the mother was primarily responsible for the children’s day to day care and running their home.
The nature of the father’s disability is unclear. The father presents as a physically powerful person quite capable of being physically intimidating should he choose. He denies the mother’s allegations that he was physically and verbally abusive during their relationship or since separation. Simply put, he says the mother’s evidence is grossly exaggerated. He considers her a poor role model to the children and claims it is she, not he, who is verbally and physically aggressive.
The father is outraged by the mother’s relationship with her present husband and told Dr R: “I want her in jail and that other clown ([the mother’s husband]). I want them both (in) jail. I’ll add fuel to the fire”.
Concerning the children, the father feels close to S and B. He loves them and wants to spend time with them. The father refuses to acknowledge A is his son. He told Dr R: “I don’t want to speak about the other clown. [A] turned fairy”. This is consistent with the father’s oral evidence during which he called A “her fagoty son” and other inappropriate names.
During cross-examination by counsel for the Independent Children’s Lawyer, The father appeared favourably disposed to a graduated approach to the amount of time he spends with B. Initially, he appeared willing to contemplate beginning with two hours or so at a shopping centre, extending gradually to one day each weekend and perhaps then overnight on alternate weekends. He rejected any suggestion for supervision. This is because the father considers supervision an unwarranted intrusion upon his relationship with B which would only be ordered if the Court accepts the mother’s lies.
The mother’s circumstances
The mother lives with her husband, A and B at M. They purchased the home with a vendor finance package and plan to live there indefinitely. Dr R said the mother and her husband are comfortable in each other’s company and both say theirs is a happy marriage. The mother’s husband divorced in 2004. He has a 14 year old daughter, D, who lived with them from the commencement of their cohabitation until they moved to M. D gets along well with her father, the mother, A and B. With apparent glee the father said that B hates D. He appeared to enjoy saying something which he anticipated the mother may find upsetting. If this was ever B’s opinion, it is now out of date and no longer reflects B’s views about her.
The mother grew up in Y. Her father died when she was young and her mother remarried. The mother was close to her mother and step-father. She is one of four children. The mother no longer sees her 38 year old brother, who she describes as a gambler and alcoholic. She has a 37 year old sister who lives in N and a 30 year old married brother who lives in TE
The mother describes herself as a rebellious teenager who left school in Year 9. By the time she left school she and her family had moved to the HR region. After leaving school the mother worked fulltime for about two years as a checkout operator. She then had a variety of other positions such as at service stations, at a truck shop and car detailer. The mother lived independently from about the age of 15 and moved in with the father at aged 17. The mother described her relationship with the father as very unstable. She says he was verbally and physically violent. The catalyst for their separation was an incident in which she broke the windows in the father’s racing car. Concerning this incident, the mother said to Dr R: “I thought I’d dropped to his level. I decided to leave. I grabbed the kids and left”.
The mother says that after the parties separated although they maintained a generally civil relationship, there were continuing problems associated with the father’s aggression and possessiveness. Following separation the father saw the elder children reasonably often and B most Saturdays. Although the father was regularly late returning B, contact was working reasonably well from all participants perspectives. However difficulties arose each time the father learned or believed the mother was in a relationship with someone else. After separation and before the mother commenced her relationship with her husband, she had three relationships. The mother went out with a person named W for six months, V on and off and for two weeks she dated a man named E. Although the mother denied any overlap between these relationships and resumption in her relationship with the father, at least in relation to W there was a brief overlap. The mother was dating W when she went to K with the father on a “[H Organisation]” weekend. The children thought she had gone away for the weekend with W.
Each time the father discovered that the mother had established a new relationship she says she and her partner were threatened and harassed. Basically, the father frightened off her boyfriends. Apart from her concerns about the father’s aggression and possessiveness, the mother considers the father’s stance somewhat hypocritical as, post separation, he too had relationships with other women as well as resuming his relationship with her.
Post separation, the mother says she was confused about her feelings towards the father. Each time he promised to moderate his behaviour she tended to believe him. Because she grew up without her father, she says she is strongly motivated to promote the children’s relationship with their father in the hope that they could enjoy normal father/child relationships. The father’s reaction to her relationship with her present husband has been so extreme that she now believes a normal relationship with their father is impossible.
The mother says all three children have all found their parents on and off again relationship difficult to comprehend and disturbing. All three children have required extensive counselling and A has threatened suicide. Personally, the mother feels settled and happy with her husband and believes that for the first time in many years, she is in a position to provide the children with a settled home life. The mother says B is responding well to high school and is no longer being bullied. In her opinion B is reasonably settled, a situation she says will not be maintained if B spends time with his father. The mother strongly believes the father will determinedly undermine her relationship with her husband to B. The inevitable consequence she says will be destabilisation of the family unit. She is very concerned that if B spends time with the father B may adopt his father’s abusive and aggressive manner in dealing with disagreements.
Concerning the Solvol incident, the mother’s husband says that the incident developed after B refused to stop swearing at his mother. Unable to make B stop, the mother’s husband manhandled B into his bedroom where as punishment for the child’s foul language he washed his mouth with Solvol. When interviewed by police, the mother’s husband admitted the accusation and consented to the five year AVO. Interestingly, the mother’s husband says this incident, including the AVO, created a turning point in his relationship with B. He and B share an interest in cars and bikes and since then B has spent many hours with him working on cars, at race meetings and car shows.
Determining the child’s best interests
Both parties say they wish to have a meaningful relationship with B. There is no definition of the term “meaningful relationship” in s 60CC(2)(a). Meaningful is defined in the Concise Oxford Dictionary as: “1. Full of meaning; significant. 2. Logic, able to be interpreted.” In the family law context the former definition is apt. The words do not define the amount of time a child spends with the parent. As the notation to the provisions reveals, one of the purposes of the provisions is to promote the importance of s 60B. The words are qualitative and indicate different formulations will constitute meaningful relationships. In this sense the words are both contextual and directive. In essence, these words identify that a court must give real weight and prioritise the benefits to a child of having both of his or her parents involved in their lives.
B will continue to live with his mother and there is no issue he will continue to have a meaningful relationship with her. B and his mother enjoy a close relationship a matter which is apparent from B’s desire to live with her. Concerning B’s relationship with his mother the only issue is whether because of the father’s attitude towards her, allowing his application puts B’s relationship with his mother at risk. This is an issue which will be discussed later.
Unless the Court intervenes, B is unlikely to see his father for a long time. This will continue the existing situation whereby B remembers his father but is not given the opportunity to further their relationship. This outcome would not give B a meaningful relationship with his father. In a relationship sense, an obvious advantage if orders are made as the father proposes is that B will know him and there will be more to their relationship than memories. There is a real issue, however, concerning the nature of their relationship, a matter to which the Court will return.
Section 60CC(2)(b) constitutes one of the pivotal issues in the case. It requires that the Court consider the extent to which it needs to protect B from physical and psychological harm and being subjected to and exposed to abuse, neglect and family violence.
Although the father made numerous allegations that in the mother’s care, B is both neglected and abused, having abandoned his application that B lives with him, these matters do not require detailed examination. This is because, in abandoning his application that B lives with him, the father implicitly concedes that notwithstanding past neglect and abuse issues, B’s best interests are served remaining in the mother’s care. If there were serious risk issues which impacted upon B’s care with his mother, it is unlikely that the father would have proceeded only with his application to spend time and communicate with B. It is sufficient to comment that B and his siblings all agree that B’s well being is promoted living with the mother where none suggest that he is exposed to an unacceptable risk if abuse, neglect or family violence. With these sentiments the Court agrees.
Concerning family violence the mother said: “The relationship between [the father] and I was characterised by a number of separations. These separations were mainly due [to] violence, threats and generally intimidatory behaviour on [the father’s] part towards myself and our children”. Given the gravity of the issues raised in the proceedings, the mother’s affidavit is surprisingly brief and contains little detail concerning her violence and abuse allegations. In her interview with Dr R, the mother told Dr R that the first time the father hit her was when she was 15. She said: “He hit me when I was 15 and I moved home. I moved in with him again at 17. I put up with it. I put up with the verbal abuse and insults. He would yell and rant and rave”. She recalled an incident whilst pregnant with A in which the father “threw me and kicked me in the stomach”. She told Dr R of an incident in which the father picked A up and “put him against the wall”. On another occasion she said the father “grabbed her around the throat and smashed the windows in her car”.
The mother told Dr R that after separation: “[The father] continued to have problems with his anger and there were many assaults”. Again, her statement lacks detail of the alleged assaults. With so little detail, it was surprising that the father used cross-examination to berate and abuse the mother rather than test her assertion. Because of the father’s behaviour, the mother’s evidence is incomplete. He determinedly disrupted her cross-examination by counsel for the Independent Children’s Lawyer. His reasons for doing so appear twofold. Firstly, a determined effort to abuse and belittle his former spouse. Secondly, to make it impossible for her to give evidence as doing so was likely to strengthen her case and diminish his.
Dr R spoke with the children concerning their recollections. Asked about his father, A said: “I don’t talk to him at all. Every time I talk I get hurt. He yells and upsets me. I think there are a few screws loose”. A explained that he wished: “.. that life could be smooth. He can remember some good things about his father. He remembers helping him in the shed, although he also remembers his father getting angry with him and throwing a tool at him and causing his head to be cut. “He yelled at me all the time”. The father recalls this incident and explained it in the following terms: “Same as when the other fairy (referring to [A]) pissing me off in the shed. I was working on the car, had a ratchet that big, I said ‘piss off’. Threw it out the shed. Right? If he wouldn’t have ducked it would’ve went there. He ducked. Hit him across the head. Five stiches. She took him to the hospital and they wanted to call DoCS or the police and she said, ‘No no no. It was an accident’. So there you go.” The tenor of this evidence is that the father rejects any responsibility for his actions in hurling a large ratchet at where his son was standing. A’s reaction in ducking was probably instinctive and designed to avoid being hurt. While the father did not intend to hit A with the ratchet it was thrown in anger at the boy with the deliberate purpose of frightening him so that he left the father alone. It was a deliberately violent act by an adult towards a child with reasonably foreseeable consequences of the type which transpired. There is nothing in the father’s description of this incident which suggests that anyone other than he is responsible for A’s injury.
B recalled an incident with his father when he was about seven years old. He told Dr R: “When I was seven I didn’t clean my room fast enough. Dad chucked something at me and split my eyebrow open.” The father recalled this incident in the following terms:
“When I supposedly threw something at him, like a trophy? I come home from work and she is exploding. I could hear her from the truck in the back yard. I walked in, said ‘what’s going on?’ All these fucking kids fucking ran up, fucking running around. And both boys I said ‘clean your room up’. And there’s a trophy on the telly I said ‘now clean it up.’ And I’ve hit it, like that, and its hit [B] straight across the eye. She has took him to [J] Hospital and they wanted to call DoCS and the coppers. And she said ‘no no no’. It was an accident”.
When the father hit the trophy off the television in B’s direction he acted in anger and with total disregard for the possibility it could hit B, which was a reasonably foreseeable outcome. There is nothing in the father’s description of this incident which suggests that anyone other than he is responsible for B’s injury.
S told Dr R that her childhood was traumatic and disruptive. She was cautious about what she was prepared to say at the interview because she was concerned that she not upset her father. She told Dr R that she found the domestic violence between her parents very traumatic. She described her father’s anger and yelling but commented that his attendance at several anger management courses had resulted in some moderate improvement in his ability to control his anger.
When counsel for the Independent Children’s Lawyer asked the father questions about anger management the following exchange took place:
MR SUNDSTROM: All right. What about anger management?---What about it?
Well, is this therapy that you're having at [M] Hospital, is that partly to do with anger management?---Yes. I've done five anger management courses. She has done jack shit.
You've done - what, you've completed five courses?---Yes. Since '97, yes.
Do you think they've worked?---Yes.
They have?---Well, I've been here this long.
And you haven't been angry?---I haven't smacked anyone or I haven't left.
I suppose that's something, isn't it?---That's right.
Would that have happened six years ago, would it?---Yes. Yes. Ask her. Go on, ask her.
All right. Well - - - ?---Would that have happened six years ago?
Some progress has been made, has it?---Beg your pardon.
HER HONOUR: Who are you whistling at?---Her. [referring to [the mother]]
You sound like you're whistling a dog?---I was.
Although, as S suggests, the father has made some progress concerning his aggressive behaviour, this exchange also reveals he yet has a considerable way to go. In the Court’s assessment this exchange also reveals the father’s unguarded admission that he was previously violent to the mother. As does the following exchange between he and the mother’s counsel.
MS YEN: Mr [the father], I need to go through some police records with you and give you the opportunity to respond to them as a matter of procedure - - - ?
[THE FATHER]: What's this got to do with it all? Most of my police records has been from her winging and bitching, as women do and push, push, push, push until you explode, as all women do.
The children’s discussions with Dr R corroborate the mother’s evidence concerning the father’s treatment of her and them. Even if the Court has mistakenly interpreted the father’s above statements as admissions, there remains sufficient evidence that during cohabitation the father was repeatedly physically and verbally abusive towards the mother, which conduct she and the children found traumatic and frightening. Since separation he has harassed and threatened the mother and her partners. His direct approaches to her were curtailed only after he was gaoled in relation to AVO matters. As his behaviour in this hearing established, given the opportunity the father delights in abusing and threatening the mother and those associated with her. The father’s behaviour is so uncontained that he could not be expected to refrain from exposing B to his abusive opinions of his mother and other family members. It is almost certain that the father would make threats in B’s presence about what he, the father, may do to the mother and her husband. Angered by a situation there is also a real likelihood the father would lash out physically and although he would not intentionally harm B, as the incidents with the ratchet and trophy demonstrate B may nonetheless be harmed. The consequences for B are emotionally grave and require significant weight is attached to this issue.
Both parties agree B’s views are important. By s 60CC(3)(a) where a child expresses views about his or her welfare, the child’s views must be considered together with any factors the Court feels are relevant to the weight given to the child’s views. Previously the Family Law Act referred to a child’s wishes. The new terminology appears to be a response to concerns expressed by academics and others that the word “wishes” potentially trivialises a child’s opinion on matters concerning the child’s welfare. In some quarters it was perceived as having a narrow rather than broad ambit.
It does not appear that new terminology changes the substantive law concerning the manner in which the Court should treat a child’s views. The Full Court considered this issue in R v R Children’s Wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598: “The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.” Once a child’s views are established, the next part of the exercise requires analysis of the views, including any factors such as the child’s maturity or level of understanding. This is followed by a balancing exercise measured against other factors relevant to the child’s welfare. The process is described thus: “There are many factors that may go to the weight that should be given to the wishes of children. These will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately, it is a process of intuitive synthesis on the part of the Trial Judge laying out all of the evidence relevant to the wishes of the child and applying it in a commonsense way as one of the factors in the overall assessment of the child’s best interests.”
See also CW v W [2006] FamCA 387.
As earlier referred to, Dr R discussed B’s views with him. Dr R reports that when his interview with B commenced, B was fidgety and initially a little anxious. Concerning his discussions with Dr R about the father, Dr R said:
“He said that he sometimes gets on well with his father. He hadn’t seen him for a number of weeks. He would like to see him on occasions, perhaps every second weekend. ‘I am choosing not to see him. Mum’s not forcing me. I don’t like him. He needs help because he chucks stuff at me if I do something wrong’. His wishes were for his father to be a good person. If he could be good he said that he’d like to see him but not stay with him. I asked him if there had been any traumatic experiences. He denied any major traumas although he remembered at the age of seven an incident with his father.”
This is the incident earlier referred to when the father split B’s eyebrow open with the trophy.
From his discussion with Dr R, Dr R opined:
“[B] on the other hand has a positive relationship with his father. Although he’s a little frightened and cautious, he still has expressed a positive feeling about his father and a wish to maintain that relationship with him.
[B] is still relatively young and still has a positive view of his father. I believe that he would like to continue a relationship with his father, but at the same time would prefer to continue living in the same residence as his mother.”
The parties agree B’s behaviour has improved, particularly during the last year. At D Primary School he was bullied and also physically aggressive. On at least one occasion his bad behaviour resulted in his suspension from school. B had few friends at D Primary School and it appears he was quite troubled. In 2006 he attended F and then M Primary Schools. At both schools his behaviour greatly improved and he established good peer relationships. Having commencing high school at R High School this year, B’s discussion with Dr R reveals that his improved behaviour at school continues and that he is well integrated socially at school and in the area he is living. B’s improved behaviour coincides with a number of factors. These include that he living in a settled home environment and the frequency with which he is exposed to violence and abuse has dramatically fallen. The later is a direct consequence of the parties not coming into contact with each other and B not spending time with the father. B’s improved behaviour suggests he is maturing appropriately.
Dr R said that the mother was openly critical about the father in B’s presence. This suggests that it is likely B is exposed to her negative views about his father at other times.
A has suffered greatly from the father’s treatment of him and it would be surprising indeed if A maintained a neutral stance with B concerning their father. A told Dr R that he does not believe that B gets along particularly well with their father. This suggests that B and A have talked at least about B’s relationship with the father and probably also A’s relationship with the father.
It is likely that S provides a more favourable opinion of the father to B than either the mother or A. Dr R reports on his discussion with S as follows.
“..she thought it would be best for [A] and [B] to remain with the mother. She said that [B] gets stressed. The stress was very much related to her father’s anger and yelling (…) she was aware that [A] didn’t want to see his father. She believed that [B] should see his father: perhaps every second weekend. [B] should see him if he wants to. [B]’s not in danger from dad. He would carry on about mum and [her husband] in front of mum. He wouldn’t listen to anyone.”
Although B’s family’s opinions about the father are likely to have influenced B’s views, the greatest single factor contributing to his views, is likely to be his own experiences of his father. His statement: “I don’t like him” combined with a wish that his father would be “a good person” indicates that B’s view of the father is significantly but not exclusively negative. His willingness to spend time with his father, provided his father is good, reveals that B recalls positive experiences with the father which he would again enjoy. B’s statement against overnight contact indicates his ambivalence about spending time with the father and concerns that if he is with his father for any length of time, he may not be safe. Whether his concerns relate to his physical safety or exposure to his father’s verbal abuse is unclear.
On balance, B’s view that he would like to see his father provided his father is good warrants significant weight.
S, A and B each enjoy a close relationship with their mother. B was seven and a half years old when his parents separated in November 2002. Since separation B has lived with his mother and she has been primarily responsible for his day to day care. This appears to have been the situation even during those periods when the father and the mother briefly resumed cohabitation. Since December 2004, the mother has been exclusively responsible for B’s care. Dr R said the children:
“Appeared to be managing and developing well in her care. Surprisingly they appear to be functioning in a stable way considering the enormous domestic violence and conflict that has been affecting their lives. The children were exposed to a great deal of domestic violence in their younger years and may have been physically hurt at times. Perhaps [the mother] should have acted earlier in their lives to protect them from the domestic violence between herself and [the father]. To her credit she now appears to have formed a stable relationship with [her husband] and the home life for [B] and [A] seems to be more stable.”
The mother says she feels more settled and stable in her relationship with her husband than she did in her relationship with the father. Notwithstanding the difficulties in her marriage with the father, the mother appears to have been able to establish a trusting relationship with B. It is likely that B’s improved behaviour is significantly connected to an improved home environment and a sense of relationship stability with his primary carer. B’s emotional stability is probably linked to his relationship with his mother. If B’s relationship with his mother is undermined or attacked it is likely that B’s emotional and psychological well being will suffer. If B enjoyed a strong, close and trusting relationship with the father, the impact of instability in his relationship with the mother might not be so extreme, basically because difficulties in one relationship would be somewhat ameliorated by another healthy parental relationship.
B does not enjoy a healthy or trusting relationship with his father. Although Dr R considers their relationship is positive, from B’s perspective it is tinged with fear. This is likely to result from three primary factors. Firstly, B has experienced happy times with his father and recalls positive aspects of his fathers parenting style. Secondly, as Dr R says: “[The father] has significant anti-social personality traits to which [B] has been exposed and which frighten him”. Thirdly, B and the father have had virtually no contact for approximately two and a half years. Dr R concluded: “[The father] presents as a person who has poor impulse control, poor insight into the effect of his demeanour and effect on others and lack of understanding about why other people are cautious about him”. The father forcefully demonstrated all of these characteristics throughout this hearing. It not surprising, therefore, that Dr R reports that the parties’ three children are to varying degrees cautious of and intimidated by their father. Provided his safety is assured, Dr R believes B would like to continue, in effect re-establish, his relationship with his father. B’s fear of his father’s behaviour is a very troubling aspect of their relationship. The child’s desire to not see his father for a prolonged period shows that B realised his inability to cope with his father’s explosive behaviour. Because the evidence suggests no improvement in the father’s behaviour in the foreseeable future is likely, there is a real possibility that if B again spends time with his father, the child will be exposed to the type of behaviour which for the last two years has seen him maintain a stance against renewing his relationship with the father. Whatever positive aspects of their relationship which presently exist are likely to quickly dissipate. Although the father is able to engage B in activities which the child will enjoy, the unfortunate reality is that he will almost certainly also behave in a manner which frightens B and undermines the child’s relationship with his mother. Quite quickly the remaining positive aspects of B’s relationship with his father are likely to be overborne by the negative features which B and his older siblings have found so disturbing. This is a finding to which the Court attaches significant weight.
B enjoys a good relationship with his siblings. After a difficult start, B and the mother’s husband have a companionable relationship which is enduring.
The mother opposes re-establishing B’s relationship with the father. She has come to this position after prolonged attempts to establish an appropriate relationship between B and the father, an outcome she no longer believes is possible. Dr R alluded to the view that the mother should have taken a stance sooner than she did to protect B from exposure to domestic violence by his father and his father’s anti-social behaviour. With these opinions the Court agrees. Although in most cases a parent’s unwillingness to support a child’s relationship with their other parent warrants adverse comment, this is not one of them. The mother has witnessed first hand the adverse impact upon B’s emotional well being of spending time with his father. Her unwillingness to support their relationship is primarily motivated by her desire for B to be settled and safe. The father says he wishes to have nothing to do with the mother. Provided he is not reminded of her and she does not intrude into his time with B, he says there is no risk, that B will be exposed to his poor opinion of the mother. The Court does not accept this evidence. Time and time again during this hearing, the father refused to answer questions, preferring a diatribe of abuse towards the mother. Even when, with the Court’s agreement, the mother absented herself from the courtroom, the father persisted. He behaved in a similar fashion with Dr R. The father’s poor opinion of the mother, her husband, A and other members of the mother’s family are so strongly held and his impulse control so limited, that it is highly likely he will repeatedly express the views revealed during this hearing if permitted to spend time with B. B would then be placed in the position of either trying to defend family members he loves and people whose company he enjoys or suppress his own feeling whilst with his father. The former is likely to enrage the father and heighten the ferocity with which his views are expressed. Whilst the latter strategy might see the father temporarily desist, the effect on the child is no less concerning. B is entitled to have his father treat his key relationships with respect. If he does not, B is likely to doubt the value of these relationships or alternatively feel depressed and distressed at his father’s lack of regard for people the child values. None of these outcomes is emotionally healthy for the child. This is a finding to which the Court attaches significant weight.
By s 60CC(d) the Court must consider the likely effect of any changes in B’s circumstances. The obvious advantage of orders as the father proposes is that he and B will again be able to spend time together. Previously they have enjoyed quad bike riding, an activity the father is keen to resume with his youngest son. B’s relationship with his father would have currency and be based on more than memories. If the father were able to suppress his aggression and desist making threats, those positive aspects of their relationship which B recalls could flourish. Thus B could establish a healthier relationship with his father than he presently has, an outcome which could only be in the child’s best interests. Regrettably, there appears little prospect that the father can establish and maintain a positive and healthy relationship with B in the foreseeable future.
The most likely outcome of changing B’s circumstances by enabling him to spend time with his father is that B’s relationship with his mother will be threatened, his home environment destabilised and his school performance regresses. Before the mother stopped B spending time with his father, B was having significant behavioural difficulties at school. The father encouraged B to respond to bullies physically. B told his mother: “Dad told me that if the kids at school pick on me then I should belt the crap out of them. He told me to punch them fair in the nose where it will hurt the most. Dad also told me that if I was having problems with my teachers then I should run away from school”. B acted accordingly and was twice suspended from school. It is not surprising that he was marginalised at school and academically was performing relatively poorly. B’s behaviour, since he has stopped spending time with his father, has improved at school and at home. It is unlikely that this is merely coincidental and the probability is there is a strong nexus between the two.
As the Court has already found, if B resumes spending time with the father, there is a real likelihood that B’s relationship with his mother, A, the mother and others to whom the mother and B are close will be seriously threatened.
The parties live within reasonable proximity to each other and there are no practical difficulties or expenses which affect the Court’s ability to make orders in favour of B spending time with the father.
Section 60CC(3)(f) concerns parenting capacity. Although the nature of the father’s application suggests that the focus of this subsection would be upon his capacity to meet B’s physical, emotional and intellectual needs whilst B is with him, the Court must also consider similar issues with the mother. The father highlighted the mother’s vulnerability, evidenced by episodic alcohol abuse and at least one suicide attempt. He pointed out that she used bad language, was verbally abusive towards the children and frequently emotionally labile. These issues were not explored during the hearing in a manner which lends itself to detailed findings. There was sufficient evidence, however, to enable the Court to conclude that during cohabitation it is likely the mother was emotionally labile, from time to time was verbally abusive towards the children, failed to protect them from family violence and from time to time used alcohol to excess. In the period between November 2002 and December 2004, on at least one occasion she attempted suicide. Since the mother stopped any direct or indirect contact with the father, she appears to be more settled and the behaviour to which the Court has made reference, significantly diminished. This suggests there is a nexus between the mother’s well being and the extent to which she has contact with the father. During periods where she has little or nothing to do with her former husband her sense of self worth, and thus personal stability, appears to improve along with reduced substance abuse, self harming and verbally abusive behaviour. Because B’s emotional, physical and intellectual needs are now so intrinsically linked to his mother’s emotional stability and a settled home life, unless B’s welfare somehow warrants it, the Court must avoid taking steps which may destabilise the mother or her home environment. In this case, this means minimising the risk that the father, through B, can destabilise the mother and her home environment. Whilst she is stable and secure, the mother is able to adequately provide for B’s physical, emotional and intellectual needs. When she fells threatened by the father, her capacity to do so is compromised.
Because of the amount of time the father seeks to spend with B, his ability to provide for B’s intellectual needs is relatively unimportant. Now that B is in high school, if B stays overnight with his father, it will be sufficient that the father provides B with a setting which enables B to complete necessary homework and supports his son’s educational pursuits. In the past, the father has failed to appreciate the importance of working cooperatively with B’s teachers and the schooling authority and his relationship with B’s school was combative rather than cooperative. Although the father said nothing during this hearing which suggested that he has gained any insight into the potentially damaging effect on B educationally of his previously unhelpful approach to B’s schooling, he said nothing critical about B’s present school or its teachers. The father is pleased that B’s behaviour at school has improved and that he has received a number of awards and been school prefect. This suggests, that so long as B is performing well at school and the father is satisfied that B is treated respectfully by teachers and peers there is little likelihood that he will revert to his former combative relationship. Consequently, B’s intellectual needs will be protected and not undermined if he resumes his relationship with his father. If difficulties arise with the school, potentially the father will hinder rather than help the situation. In the latter scenario B’s education and thus his intellectual needs will be compromised. Overall this is not an issue which carries significant weight.
Dr R commented upon the father’s interpersonal style which he described as “abusive and derogatory”. He said the father: “Seems to hold very little respect for authority and doesn’t appear to care about the feelings of others”. The father was extremely abusive towards the mother and Ms Yen in this hearing. He was inexcusably offensive about Dr R and the mother’s solicitor. He spoke in the most derogatory terms about A and other people to whom the Court has previously made reference. When speaking to the mother and her first counsel, the father was deliberately intimidating and pleased with the distress he caused. The father appeared pleased when he mentioned that the mother’s solicitor appeared to be hiding from him. He repeatedly referred Ms Yen as “Yen/Burns” as doing so let her know that he was aware she was using a pseudonym so as to make it difficult for him to locate her. In this hearing the father demonstrated a real capacity for emotionally abusive behaviour in a setting where one would expect it is least likely to arise. His contemptuous rejection of A, demonstrates that his emotionally abusive behaviour can also be directed at children, including his own. For so long as B agrees with the father’s views or silently suppresses any desired contradiction, the risk he will be abused in the same way A has been treated, is minimised. When B attempts to express a contrary view there is a high likelihood the father will react in an emotionally abusive fashion. Unfortunately, the Court was left strongly satisfied that for as long as the father’s emotional and psychological health remains compromised, he has virtually no capacity to provide for B’s emotional and psychological needs.
Whilst the father resides with his parents, he is able to provide an appropriate physical setting whilst B is with him and the child’s physical needs will be adequately provided.
There are no s 60CC(3)(g) factors which require further consideration.
Aboriginal and Torres Straight Islander issues do not arise.
Somewhat belatedly the mother realised that part of her parental responsibility includes protecting B from exposure from family violence. The Court agrees with the father that her benign response to her husband washing B’s mouth with Solvol was inappropriate. Part of her parental responsibility involves protecting B from this treatment and, once it had occurred, taking a strong stance with her husband so that there can be no recurrence. The Court can readily appreciate the father’s distress upon hearing about the incident and no criticism is levelled at him for seeking the assistance of appropriate authorities in protecting B from similar treatment in the future. The mother says that she left the father when she realised she was starting to behave in the same abusive fashion as he did. Since then, she appears to have strived to place herself in a situation where she feels safe and place herself in a better position to fulfil her parental responsibilities. The Court is satisfied that the mother takes her parental responsibilities towards B seriously and that she does her best by B.
Because the father has been denied contact with B for the last two and half years, he has been deprived of the opportunity to fulfil his parental responsibilities. Whilst the parties cohabitated, the father worked hard as a truck driver and did his best to provide financially for B and the rest of the family. In this respect he took his parental responsibility seriously. He is strongly protective of B and would do whatever he considered necessary to protect B from harm. The great pity of this case is that the father does not appreciate the harm his aggression and abuse in the family has caused. Where the father fails in his exercise of parental responsibility to B is in his exposure of B to family violence and his emotionally abusive treatment of the people to whom B is closest. As a parent, the father’s responsibility includes teaching B standards of citizenship and behaviour which are within acceptable social norms. This way, B has a framework for establishing relationships at home and in the community which during the boy’s childhood, work to his advantage. Appropriate role modelling enables B to be a valuable part of the community and not alienated from it. During their recent one hour meeting, the father encouraged B to defy the mother’s husband. Previously, he encouraged B to respond to school bullying with physical violence. This only brought B into further conflict at school. The totality of the evidence strongly indicates that the father is highly likely to inculcate B with his own aggressive behaviour. There exists an unfortunately high risk that B may follow his father’s example which will almost certainly see the child alienated within the community. This is a finding which carries significant weight.
The Court has already made findings concerning family violence which do not require repeating. During the hearing the father made numerous direct and veiled threats to and about the mother and others. For example referring to the mother’s husband the following exchange took place:
THE FATHER: But if that piece of shit - - -
HER HONOUR: You told me - - -
THE FATHER: … ever gives B a hard time, nobody - nobody will stop me.
AND
THE FATHER: Look - - - ?---They are innocent. You should hear these two sleazebags open their mouth. Okay? Especially hard arse at fucking 6'2" can be belted up by an 11 year old kid: you're father's a jellyfish, he is a spineless cunt. Yes? He told me that Christmas Day over the phone. Well, you'll be a spineless cunt when I shove my hand up your arse and fucking pull yours out.
Well look - - - ?---My daughter was there, okay, when he said: you're a spineless cunt, you're a jellyfish.
You've told us all this before?---Yes.
And that's not what - - - ?---And she knows I'm going to stick my hand up his arse and pull it out, don't you. Yes.
That's not relevant. That's not relevant to the questions - - - ?---Yes, it is.
Well, not to me it isn't?---They can say one thing - they can say one thing, right, then lie their arse off about it. Okay? Now - now, I've just said I'm going to stick my hand up his arse. That could be a threat, couldn't it? That could be a threat.
HER HONOUR: [To [the father]] Sit down, please.
HER HONOUR: Hard to image it as anything else, [the father]?
MR SUNDSTROM: Yes. Look, can you think about that? Can you think about the fact that you're going - - - ?---Yes. I want to [B]. I don't want nothing to do with these maggots. I don't want them even - even in sight.
Well, I want to deal with two things that arise out of that paragraph. Right? The first thing he says that:
If there are ongoing threats of violence -
Right?---Mm.
Now, are you going to be able to contain that?---What? Do I look like an idiot? Do I make threats in front of kids?
I don't know. You've made - - - ?---No. I'm not like - I'm not like [the mother’s husband].
Well, [the father], the reason - - - ?---I'm not like [the mother’s husband].
Well, let me tell you this. One of the reasons I asked you that question is that you've been before a Court that's going to decide an issue, in your favour or not - - - ?---Yes. Well, where is hard arse today by the way?
And you've been making threats ever since we walked into the Court room? --- Is he out working for Roadways, is he?
No. Just answer that for me, will you? Tell me what the issue is with the threats. Because if you're going to continue - - - ?---Yes. What the issue is, right, I can say anything. Right? You're a stupid bitch, or, piss off. Something as mild as that. And she'll go - she'll get the tissues out, like she did earlier, and go running - running straight to the Feds.
Can I tell you that you haven't been mild today?---I know.
Right? You've been making some pretty serious threats against people in the Court room. And this is precisely a problem that Dr [R] has identified. And we're not concerned with this - - - ?---Yes, because she thinks her shit don't stink. So does her mother. So does her sister.
Look - - - ?---I've got bad news for the lot of them.
In summary, the Court is satisfied that establishing contact between B and the father exposes B to an unacceptable risk of family violence. By this, the Court does not mean the father will deliberately harm B. His instincts are to the contrary. However, the likelihood that the father will be abusive and threatening about the mother and her husband is high. So too is the risk that the father may become involved in a fracas with others in B’s presence. If B angers his father, it is likely the father will react with verbal abuse, and as the trophy and ratchet incidents demonstrate the situation may result in his being hurt.
The prospect of further proceedings is no more or less probable on either party’s application. The mother’s numerous apprehended violence orders suggests that if there is any breach by the father of any of the terms and conditions attached to orders enabling him to spend time with B, there will be further proceedings. Dr R says that the father does not cope well with restrictions. As the Court’s numerous failed attempts to contain the father’s behaviour during this hearing revealed, this opinion warrants considerable weight. When these are combined with the numerous breaches of apprehended violence orders of which the father has been convicted, there is a real likelihood he will fail to abide restrictions, including time restrictions, concerning spending time with B.
As must be clear by now, the evidence does not support the father’s application to spend time with B and it will be dismissed. At some stage in the future, the father may contemplate another application for orders enabling him to see B. The father says that within 12 months, B will decide that he prefers living with his father and will leave his mother. This suggests that further litigation is likely. However, before the father brings a further parenting application, he should consider whether he has evidence which demonstrates that he has lived for a reasonably lengthy time without coming into conflict with the police or others. He should continue individual counselling and obtain whatever assistance is necessary for him to learn to modify and contain his aggression. Without evidence of this type, it is difficult to see how the father could satisfy the Court that there is a proper basis for changing B’s circumstances.
There is considerable overlap between s 60CC(3) and (4). There are no further factors which s 60CC(4) requires the Court to consider. In summary, the Court is satisfied that the mother’s stance in resisting the father’s attempts to spend time with B is appropriate and, from a child protection perspective, necessary. The father has not been given the opportunity to participate in making decisions about B’s long term welfare which, for the reasons already given, do not warrant criticism of either parent.
Conclusion
As the Court has previously found the equal shared parenting presumption does not apply. Since separation the mother has made all parenting decisions unilaterally. Having regard to the parties’ total inability to communicate this is not surprising and is an inevitable of their poor relationship. Neither party contemplates an improvement to their relationship is likely and their inability to communicate is likely to persist indefinitely. The father’s unrelenting abuse in this hearing demonstrates that ordering the parties to attend counselling with the aim of improving communication and the parental relationship merely affords him a further opportunity to abuse the mother. Having regard to the totality of the above findings the Court is satisfied that orders imposing the presumption are inconsistent with B’s best interest. If ordered it is almost certain that the parties would disagree on major parenting decisions and decisions which B’s interests require are made would be hijacked by his parents’ terrible relationship. Regrettably the only arrangement which will ensure that all necessary long term parenting decisions are taken promptly and with a clear focus upon B’s interests is for one parent to sole parental responsibility. As B will live with his mother this order will be made in her favour.
The father does not oppose an order that B lives with his mother. This continues the situation which has existed since separation and is plainly in B’s best interests.
Neither party contends for an outcome whereby B would divide his time equally between his parents.
The evidence does not support an outcome which would enable B to spend substantial and significant time or regrettably, any time with his father.
In July 2006, Dr R said: “If there are ongoing threats of violence and continued litigation against the mother then I’d recommend that contact be ceased completely and that there be no contact until [B] is 16 years of age”. In a finely balanced analysis in the benefits to B in re-establishing contact with his father against the risks involved in doing so, Dr R suggested a period of supervised visits at the W Centre. The father will not accept these restrictions. During this hearing he continued to make veiled threats towards the mother and her husband. He had Dr R’s report for many months and was afforded the opportunity to reflect upon the information contained therein. The father knew, therefore, that further threats between release of the report and completion of the hearing saw the Court Expert support orders denying him the opportunity to spend time with B. Regrettably, the father has failed to avail himself of the opportunity to learn the consequences of his behaviour and change his approach.
This is one of those exceptional cases where this child’s best interests require that he does not resume his relationship with his father. B’s desire to re-establish a relationship with his father if his father is “good” is an outcome which the Court is unable to deliver. To a considerable extent this is because the father is unwilling or unable to contain his impulsive aggression and behave in the manner B himself identifies as a pre-condition for spending time with his father. Ordering that B spends time with his father, whether supervised or unsupervised, exposes him to an unacceptable risk of family violence and an inappropriate role model. Establishing contact between them is almost certain to place B’s relationship with his primary carer under undue pressure and undermine her ability to maintain a comparatively settled home environment from which the child is benefiting. Thus, notwithstanding B’s right to a meaningful relationship with his father, his interests require that the father’s application is dismissed.
At the end of the hearing the mother pressed her application for an order which restrains the father from spending time with or communicating with B. Such an order goes further than merely dismissing the father’s application to spend time with their son. Presently there are no operative Apprehended Violence Orders for either the mother’s or B’s protection. Unless such an order is made the Court’s intent that the father does not spend time or communicate with B is likely to be thwarted. An order restraining the father from communicating with or approaching B is consistent with my findings and promotes his welfare. For abundant caution, the Court will attach to this restraint a condition which will enable police to arrest the father without warrant if in their opinion he has breached the terms of the injunction. The impact of this order should be that B is able to move about the community without being concerned that his father will approach him. The Independent Children’s Lawyer submitted against such an order. In summary, the Independent Children’s Lawyer submitted that it was almost certain that the father will breach this restraint the effect of which may be that B will see his father arrested. While this is possible, provided the father adheres to the orders there is no such risk. To this extent such an outcome is entirely in his own hands.
For these reasons the Court makes the orders identified at the start of this judgment.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 6 July 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as COLSON & OLDS
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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