CRIMP & CREAM

[2018] FamCA 228

FAMILY COURT OF AUSTRALIA

CRIMP & CREAM [2018] FamCA 228

FAMILY LAW – CHILDREN – undefended ‑ where father failed to participate in final hearing – allegations of sexual abuse and family violence – assessment of risk – no time ordered – orders made in the best interests of the children.

Family Law Act 1975 (Cth) ss.60CA, 60B, 60CC

M v M (1988) 166 CLR 69
Vasser & F-Black (2007) FLC 93-329
Cotton & Cotton (1983) FLC 91-330
Sigley & Evor [2011] FamCAFC 22
Champness & Hanson (2009) FLC 93-407
Baglio & Baglio [2013] FamCA 105

APPLICANT: Ms Crimp

RESPONDENT: Mr Cream

FILE NUMBER: BRC 8010 of 2012

DATE DELIVERED: 13 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Berman J

HEARING DATE: 9 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N McGregor

SOLICITOR FOR THE APPLICANT: Whitehead Payne

NO APPEARANCE BY THE RESPONDENT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G Andrew

INDEPENDENT CHILDREN’S LAWYER: Ms D Chan
Legal Aid Queensland

Orders

1. That the mother have sole parental responsibility for B born … 2002, C born … 2008 and D born … 2009 (“the children”).

2. That the children live with the mother.

3. That the children spend no time with the father other than as may be agreed between the parties.

4. That the mother shall provide to the father and the father shall provide to the mother within seven (7) days of the date of these Orders and within seven (7) days of any change, details of a postal address and emergency contact telephone number.

5. That the father shall be at liberty to send to the children at the postal address provided by the mother, and the mother shall be obliged to hand to the children, any letters or gifts sent to children by the father in respect of a significant life event.

6. That the mother shall post to the father at the postal address provided to her by the father a copy of the children’s school reports within fourteen (14) days of receiving the reports.

7. That the mother shall advise the father of any emergency or serious medical condition involving either of the children as soon as possible but no later than twenty four (24) hours after the event.

8. That the order for the appointment of an Independent Children’s Lawyer be discharged.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8010 of 2012

Ms Crimp

Applicant

And

Mr Cream

Respondent

REASONS FOR JUDGMENT

Background

1. The proceedings relate to the future parenting arrangements for B born in 2002 (“B”), C born in 2008 (“C”) and D born in 2009 (“D”).

2. By amended Initiating Application, Ms Crimp (“the mother”) seeks the following orders:

   a)That the mother have sole parental responsibility in relation to the children;

   b)That the children live with her;

   c)That the father spend no time with the children until he has provided the mother with the results of a hair follicle test proving he is no longer using illicit substances.

3. At the commencement of the hearing the mother’s Counsel advised that she was no longer prepared to make provision for the children to spend time with the father even if he produced hair follicle test results that demonstrates he was no longer using illicit substances.

4. The further amendment would result in an unconditional order that the father spend no time with the children.

5. By Response filed 20 August 2015, Mr Cream (“the father”) sought orders that the parties share the care of the children on a week-about basis, including school holidays and that the parties and the children spend one evening per week as a family unit.

6. The mother relies upon the following documents:

   a)Amended Initiating Application filed 5 April 2018;

   b)Mother’s trial affidavit of 12 March 2018; and

   c)Trial affidavit of Ms E filed 12 March 2018;

7. The father did not attend the proceedings and has not filed any affidavit material pursuant to the Order of Forrest J that the parties file their affidavits of evidence by 9 March 2018.

8. The Independent Children’s Lawyer did not specify orders sought by her at the commencement of the proceedings, but at the conclusion of the evidence supported the mother’s Application.

9. The ICL relies upon the following documents:

   a)Affidavit of Ms F filed 2 Mach 2018;

   b)Affidavit of Dr G filed 6 June 2016;

   c)Affidavit of Ms H filed 18 February 2016.

10. At the commencement of the hearing the father’s name was called repeatedly in the precincts of the Court but without response.

11. A perusal of the Court file did not indicate that the father was not able to attend the proceedings.

12. Counsel for the Independent Children’s Lawyer tendered a bundle of documents which comprises email correspondence between the Brisbane Case Coordinator and the Respondent father on 29 March 2018 and 3 April 2018.  On 27 March 2018 the father requested by email that the Case Coordinator include in the proceedings a minute of order and further affidavit material for the trial listed for hearing on 9 April 2018.

13. By reference to the content of a response by the Case Coordinator the father attempted to have included in the proceedings the following documents:

    d)A Statutory Declaration of the father signed 26 March 2018;

    e)A Notice Address for Service dated 26 March 2018;

    f)An Application in a Case filed 23 February 2018 with the filing date crossed out and it being replaced with 26 March 2018;

    g)An affidavit of the father that had previously been filed in the Federal Circuit Court on 22 February 2017 but re-sworn on 23 March 2018;

    h)Various medical certificates;

    i)A document headed “affidavit” which was part of a Police record for proceedings between the mother and the father signed on 20 August 2015;

    j)A further document headed “affidavit” also part of Police proceedings between the parties signed 1 August 2015;

    k)Two further pages which appear to be the result of drug testing in June 2015;

    l)Outline of Argument for Appeal in the District Court dated 20 August 2016; and

    m)Two apparently identical copies of a document referencing the Federal Circuit Court with a heading of “minute of order”.

14. The response of the Case Coordinator reminded the father of the trial date in the following terms:

    As your matter is listed for trial commencing 9 April 2018 you should immediately provide a copy of any orders you are intending to ask the Court to make to the mother’s solicitor and to the Independent Children’s Lawyer and then bring a copy of those proposed orders to Court on the first day of trial and provide a copy to the trial Judge on that first day of trial.

15. The father was also reminded of the trial direction orders made by Forrest J on 20 November 2017 which listed the matter for trial and “provided for both parties to file an affidavit of witnesses identified in the trial plan by 9 March 2018” and … “also ordered that neither party was able to file any other affidavits, and were not permitted to rely on any affidavits filed earlier in the proceedings without the lave of the Court.”  It was noted that the father did not file any affidavit by 9 March 2018.

16. The Court file reflects the occasions that either the father did not attend Court or left the proceedings before they were concluded.

17. The father did not attend on a mention date before a Registrar on 11 October 2016.

18. On 15 November 2016 the father’s solicitor sought leave to withdraw.  Leave was given and an order was made adjourning the proceedings to 23 February 2017 noting “That should the Respondent Father not appear on that date the Applicant Mother has leave to seek that her Application for parenting orders be heard on an undefended basis on that day.”

19. On 23 February 2017 the father did appear as a self-represented litigant and he was ordered to file a Notice of Address for Service and the matter was allocated to a trial list.

20. The father appeared on 7 March 2017 seeking to agitate an Application in a Case.

21. On 8 June 2017 the father’s Application came before a Senior Registrar and it was noted that the father became upset and absented himself from the courtroom.

22. The Senior Registrar made orders that required the father to submit to hair follicle drug testing for the presence of illicit drugs including marijuana amphetamines and methamphetamines.

23. The father was directed not to cut or dye his hair until a hair follicle had been collected for testing and the proceedings were further adjourned.

24. On 5 October 2017 there was no appearance by the father and the mother’s solicitor requested that the matter be adjourned before a Judge for consideration of orders being made on an undefended basis.

25. On 15 November 2017 the father appeared by telephone and advised the Senior Registrar that he would not comply with any further requests for drug testing.

26. It was noted that the father “again targeted a number of profanities at the forum before terminating his call prior to the conclusion of the Directions Hearing.”

27. There were difficulties in the father attending for the psychiatric assessment but ultimately an arrangement was made and Dr G was able to undertake the assessment as ordered.

28. The mother, Ms E, the children and the paternal grandparents attended upon the Family Consultant for the family report as ordered.  The father did not attend.  The Court file records that there was email communication from the father to the Brisbane Case Coordinator at 12.59pm advising the Court that he seeks to appear by telephone at a hearing on 27 February 2018 and enquiring as to whether there was a possibility that the assessment for the family report could be undertaken by telephone at a later date.  Some attempts were made to reschedule however the father informed the Independent Children’s Lawyer by email at 7.25pm on 12 February 2018 that he is “bed side as I was hit by a car walking on a pedestrian crossing” hence his request that the Family Consultant interview him by telephone.

29. Further attempts were made to complete the family assessment with the involvement of the father however he was not available on the further assessment date being 19 February 2018.  The father’s response to the Independent Children’s Lawyer was to request whether the Family Consultant could undertake the assessment in J Town.

30. The father advised that he would attend for the assessment on 19 February 2018 but did not do so.

31. There has been no further attendance by the father.

32. The father has not filed any documents in response to the trial direction orders of Forrest J.  The most recent affidavit filed by the father was filed on 23 February 2017 and relates to interim proceedings but not the final hearing.

33. The father did not attend the trial and there is no record of correspondence or communication between the father and the Court.

34. On the Application of the mother’s Counsel for the matter to proceed on an undefended basis I propose to strike out the father’s Response and that the matter proceed in his absence.

Background

1. The father was born in 1975 and the mother was born in 1976.

2. The parties commenced their relationship in 2001 and following their cohabitation, as and from 2002, they married in 2009.  The parties separated in April 2012 and a Divorce Order was made on 13 November 2013.

3. The father’s current circumstances are not well known.  He has a twin brother Mr K Cream who has a peripheral connection to the proceedings in that he was a prison associate of Ms E who purports to be the mother’s platonic friend and a tenant in her residence.

4. The mother has an adult child from a previous relationship.

5. The unchallenged evidence of the mother is that she was the primary caregiver and that he took little or no interest in their care of welfare.

6. The relationship was marred by significant family violence.  It is a feature of the mother’s case that the family violence continued after separation.

7. The father was physically and verbally abusive and it was not uncommon for the mother to be referred to in derogatory terms.

8. The mother alleges that the father would be quick to temper and would resort to angry and violent outbursts.  On many occasions the mother sustained severe bruising and injury following an assault by the father.

9. The attendance by Police was a regular feature of the parties’ relationship.  Following their separation in April 2012, the mother obtained a Protection Order which had as its basis a recording of the father threatening to kill the mother and break her legs.

10. Following separation the parties were not able to agree on the ongoing parenting arrangements.  The father attended at the children’s school and physically removed D from the mother’s car.  The child was returned to the mother’s care following an Application being filed for a Recovery Order.

11. The parties ultimately agreed to parenting orders on 28 May 2013 which provided for the parties to have equal shared parental responsibility for the children, that they live with the mother and spend significant and substantial time with the father.

12. The Orders did little to resolve the conflict.

13. D was retained by the father in contravention of the final Orders for three periods in excess of 28 days in 2014.  The consequence of the father’s conduct was that D had missed all of the second term in 2014.

14. On 4 March 2015 the mother tried to collect D from a tennis court where the father had taken him for tennis coaching.

15. There was violent interaction between the parties and the mother was assaulted.

16. The father’s behaviour was so extreme that members of the public intervened.  The Police were called and a further Protection Order was made on 9 March 2015.

17. The mother alleges that the father has breached the various Protection Orders on three occasions between 2015 and 2016.

18. The father did not initially admit the breaches and it was only in May 2017 that the father entered pleas of guilty to the breaches and was placed on a 12 month good behaviour bond.  The last substantive contact with the father was in August 2015.  The children did see him in May 2015 at the funeral of the father’s grandmother.  The father was abusive and threatening.  His conduct was such that the mother was advised to leave the funeral as soon as possible.

19. She considers that the father has a history of illicit drug consumption.  The children have referred to the father using a pipe which “stuck out of a bottle”.

20. The children do not often talk of their father.  They do have a close relationship with the paternal grandparents and the mother ensures that they see them at least once a week and spend time with them during school holidays.

21. The mother recognises the importance of the relationship between the children and the paternal grandparents and she refers to it as “very special and extremely important”. 

22. The paternal grandparents despair of the future for their son and it appears that they recognise his current lifestyle and aggressive demeanour is not conducive to the children’s wellbeing and safe development.

Proposals of the mother and the Independent Children’s Lawyer

1. The mother argues that the father presents as an unacceptable risk.  He is demonstrably violent and is unable to control his aggressive conduct.  The children have been exposed to the family violence perpetrated by the father and they have reacted by expressing significant reluctance to associating with him.

2. The Independent Children’s Lawyer supports the thrust of the mother’s case and the orders that she seeks.

issues for the parties

1. Whilst there is significant detail arising from the mother’s affidavit material, the issues that underpin the orders are broadly characterised as follows:

   a)The father presents as an unacceptable risk by reason of family violence perpetrated against the mother and the risk of that conduct to the children; and

   b)The father has a history of drug use and of associating with others engaged in the sale and supply of drugs and violent conduct.

unacceptable risk

1. In M v M (1988) 166 CLR 69 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19] treating an allegation of sexual abuse as the paramount consideration was an error.

2. In Vasser & F-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch stone” of the principles to be applied in cases of asserted unacceptable risk of any kind.

3. Their Honours quoted with approval the following passage from M v M (supra) at pages 81,673-74:

   In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration” (s 60D).  The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1).  The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee [1951] AC 352 at 364–5. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at 450, 458, 462, 463–4 ; 69 ALR 647.

   …

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.  Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.  But that is not the issue in this case.

Family Consultant

1. The Family Consultant was not required to give evidence and her report annexed to her affidavit filed 2 March 2018 was received into evidence.  It is an expansive document in response to a request from the Independent Children’s Lawyer to prepare a family report in anticipation of the proceedings commencing 9 April 2018.

2. The summary provided by the Family Consultant was that the children’s circumstances will have changed since the last family report in 2015.

3. The children appeared stable and happy and it was an impressive feature of their presentation that they have maintained the love and support of the grandparents.

4. The Family Consultant was concerned about the father’s presentation and in particular his “apparent manipulation of the mother through the Court system.  His rude and disrespectful behaviour in Court and his refusal to attend Court and follow Court directives is of concern.  Also his refusal to attend for an updated mental health assessment and updated family report.  His behaviour is preventing any resolution for the children and/or their rebuilding of a relationship with their father in the future.

5. The children were observed to have a close relationship with the mother and their grandparents.  They were less engaged with the mother’s friend and tenant.

6. When asked about their father, B was non-committal.  She did not consider that he was a “responsible dad” and whilst she remembered some happy times, generally she did not enjoy her time with him.  The father’s conduct at the funeral of the paternal great-grandmother did not impress the children.  B considered that the father had caused a scene which required them to leave.

7. C was aware of the father’s aggressive conduct and considered that whilst she might like to see her father, he would have to change his behaviour.  C remembers the father shouting at the mother and whilst not entirely hostile towards the father, nonetheless was also ambivalent.

8. D presented as a healthy happy child and while he expressed a wish to see his father, he considered that he had been mean to C and to B.

9. D recognised that he had not seen the father for a considerable period of time.  He was aware that his father had anger issues and that there was concern expressed by his mother and grandparents about the father.

10. The general observations of the presentation of the children were complimentary and the overall assessment was that the children appeared to be well groomed, clean, healthy and appropriate in their presentation.

11. The Family Consultant was not able to observe the children with their father.

Psychiatric assessment

1. Following a request made by the Independent Children’s Lawyer on 3 May 2016, Dr G undertook a psychiatric evaluation of the father on 6 May 2016.  When asked his understanding of why he was not spending time with the children and the necessity for a psychiatric assessment the father denied that there had been any incident of family violence; that he had raped or in any way hurt the mother.  He denied that he had ever harmed the children and accused the mother of making up all of the allegations.

2. He feigned surprise at why he had been required to undergo a psychiatric assessment.  He related a story to the psychiatrist of being followed in his car and having his dogs killed.  He believed that the wife’s partner and their associates were attacking him because of his property development in America.

3. The psychiatrist records that the father believed people had been targeting his business with the intent to defraud him.  He referred to his home being broken into and the Police searching his premises extensively on the basis of a welfare check but more likely to gain access to his home.

4. On examination the psychiatrist did not consider that he had a Thought Disorder, but did recognise there were paranoid themes with respect to the mother and the father.  It is likely that the father will suffer from a “delusional like idea”.  The psychiatrist considered that while the father’s personality may have some paranoid features, it may not be the entire explanation.  The father is likely challenged by the parenting role and not able to deal with teenage daughters.  The history would suggest that he has focused on D rather than the two older siblings.

principles relevant to parenting considerations

1. The children currently reside with the mother and spend no time with the father.

2. The evidence supports a finding that there is unlikely to be any circumstance that the mother would support the children spending time with the father or in relation to the two elder children they would be prepared to spend time with him.

3. The mother has historically sought that that the father obtain comprehensive drug testing.  The father has refused to participate.

4. Both the mother and the Independent Children’s Lawyer seek orders that the mother have sole parental responsibility.

5. S.60CA of the Family Law Act 1975 requires that I have the best interests of the child as the paramount consideration.  The best interests are to be considered by the application of the objects of s.60B(1) and the underlying principles of s.60B(2).

6. I am cognizant of the primary and additional considerations in respect of the matters as set out in s.60CC(2) and (3).

7. I am mindful of the directions contained in s.60CC(2A) and have regard to the allegations of the mother that during the relationship the father was the perpetrator of extreme family violence to her and that she had a fear that unless there is evidence to the contrary, the father may well resort to violent interaction and engagement with the children.

8. I propose to adopt the following approach:

   a)Give consideration to the proposals put forward by each of the mother and the Independent Children’s Lawyer;

   b)Have regard to the objects expressed in s.60B(1) and the underlying principles in s.60B(2);

   c)Have regard to the provisions of s.60CC in order to determine in each case what is in the child’s best interests;

   d)Have regard to the primary considerations under s.60CC(2), namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;

   e)have regard to the additional considerations under s.60CC(3); and

   f)the evidence adduced by each of the parties in respect of the particular considerations pursuant to s.600C(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of diminution and comment.

9. Neither the mother nor the Independent Children’s Lawyer considers that the parties should have equal shared parental responsibility.

10. Whilst it is not a matter to be determined by default, where there is the uncontested evidence of the mother that she has been the subject of longstanding and sustained family violence, I consider that the relationship between the parties is dysfunctional and therefore the presumption of equal shared parental responsibility should be rebutted

parenting considerations

Meaningful relationship

1. The children have a close relationship with the mother.  They have little or no effective relationship with the father.  They have not seen him for two years.  The difficulty is that the mother is not able to promote the children’s relationship with the father until she can be satisfied that he does not present a risk, in particular arising from his use of illicit substances.

2. The children have formed a view that he is violent and whilst there is residual love for the father, they are not able to easily understand how they would spend time with him and in circumstances where it would be safe to do so.

3. The Court is not assisted by the absence of the father, the preparation of his documents and no current consideration by him of the orders that he would seek.

4. In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at [78,252]:

   … that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child.  It is not, in other words, a question of contact for contact’s sake.  If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact.  That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.

5. In Sigley & Evor [2011] FamCAFC 22 the Court at [136] sighted the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at [83,513]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one.  It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’”

6. It is difficult to say that there is no relationship between the children and their father or that they would not in some way benefit if there was a relationship.

7. The reality is that by reason of the father’s conduct alone he has not seen the children for two years.  The children remain ambivalent towards him.  They are not totally opposed to seeing him, but are well settled; have a good relationship with each other; the mother; the paternal grandparents and their school friends and school colleagues.

8. The residual recollection of their father is coloured by their recollections of his violent and aggressive conduct.

9. The children do not refer to happier times with the father but rather remember occasions where the father’s behaviour has disrupted an event.

10. As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “… is a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.

11. The mother is not irreconcilably opposed to the children spending time with the father.  She does not consider that at present it is safe for them to do so.  She argues that the father presents as an unacceptable risk by reason of his history of family violence, the consumption of illicit drugs and inability on his part to recognise that his behaviour is not conducive to creating an appropriate environment for the children.

12. The father has not challenged the mother’s evidence and I find that it is credible and the subject of corroboration by reference to the father’s antecedent criminal history and his admission of breaches of a family of various family violence orders.

13. The father presents as an unacceptable risk to the children by reason of his apparent inability to recognise that an environment created by him of extreme family violence and aggressive interaction is not in the children’s best interests.

Children’s wishes

1. The children would be prepared to see the father but it is not their primary view.  It should be remembered that the father had an opportunity to see the children for the purposes of the family assessment but did not attend.

2. The children are left with their memory of the father’s overtly aggressive conduct most recently at the funeral of the paternal great-grandmother.

3. I consider weight should be given to the children’s wishes in that they are at best ambivalent in seeing their father in circumstances where their memory of them is of negative rather than positive presentation.

The relationship of the children with each of the parties

1. The children do not have a relationship with the father.  They have a close relationship with the mother and to her credit are also supported and have frequent engagement with the paternal grandparents.

2. The Family Consultant was impressed by the strength of the relationship between the children and the paternal grandparents and it is to the mother’s credit that it has been fostered notwithstanding the father’s conduct.

Change in the children’s circumstances

1. The children do not currently spend time with the father and accordingly the orders sought by the mother and supported by the Independent Children’s Lawyer would not in any way alter their current arrangements.

The capacity of the children’s parents to provide for their needs

1. There is no contest as to the ability of the mother to provide for the physical needs of the children.  They have a close relationship and the observations of the Family Consultant were entirely complimentary of the mother’s ability to maintain a clear and close emotional attachment with them.

2. No such observations were able to be made of the father’s involvement with the children given his refusal to attend.

3. The children have a scant recollection of happier times with their father and unfortunately it is their observations of his violent behaviour which have had the greater impact upon them.

4. The father would appear to have little or no insight in terms of his conduct upon the children and I note the remarks of the Psychiatrist that the father may have paranoid personality traits.

Orders least likely to lead to further litigation

1. The litigation has been ongoing between the parties since 2012.  I note that they did reach a consent order in 2013, however it could not be said that the final orders had any lasting utility.

2. The children have been exposed to ongoing conflict and litigation for almost six years.

3. The Independent Children’s Lawyer considers that the orders sought by the mother are orders that are least likely to lead to further litigation.

4. I also have some confidence in the mother’s mature approach to the needs of the children and place weight on her evidence that if the father is able to present drug free and with insight into the damaging effects on children of family violence, she is likely to facilitate the children spending time with him.

5. B and C are at an age where if they expressed an interest in seeing their father the mother is likely to give their wishes significant weight.

Conclusion

1. The evidence supports a finding that the father presents a significant risk to the children.

2. The orders sought by the mother are supported by the Independent Children’s Lawyer corroborated from the findings of the Family Consultant.

I certify that the preceding one-hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 April 2018.

Associate:     

Date:              13 April 2018