CURTIN & CURTIN

[2017] FamCA 459

FAMILY COURT OF AUSTRALIA

CURTIN & CURTIN [2017] FamCA 459

FAMILY LAW – CHILDREN – best interests – where the applicant mother seeks final orders on an undefended basis – where the father has chosen not to participate in the trial – where there are allegations of family violence towards the children and mother – whether the father is an unacceptable risk – order made for the children to live with the mother – order made that the mother have sole parental responsibility – where the father is an unacceptable risk of physically and psychologically abusing the children - where the father’s time with the children is reserved – order made that the mother be permitted to live at an address undisclosed to the father – order that the father be permitted to send gifts and cards to the children.

FAMILY LAW – COSTS – order made that the father pay the costs of the mother and the Independent Children’s Lawyer.

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B, 61DA(1), 61DA(2)(b), 65DAC, 69ZN, 69ZX, 117(1), 117(2A), 117(3)

Family Law Rules 2004 (Cth)

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
In the Marriage of A (1998) FLC 92-800
M v M (1988) 166 CLR 69

APPLICANT: Ms Curtin

RESPONDENT: Mr Curtin

INDEPENDENT CHILDREN’S LAWYER: Westminster Lawyers

FILE NUMBER: MLC 5730 of 2015

DATE DELIVERED: 30 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 26 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weerappah

SOLICITOR FOR THE APPLICANT: Bayside Solicitors

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Westminster Lawyers

Orders made 26 April 2017

1. The children of the marriage namely B born … 2004 and C born … 2008 (“the children”) live with the Applicant Wife.

2. The Applicant Wife have sole parental responsibility in relation to the children.

3. The Applicant Wife to be permitted to remain at an address undisclosed to the Husband.

4. The Respondent Husband’s spend time and communication with the children be reserved.

5. The Respondent Husband be permitted to send cards and letters to the children no more than three times a year via post office box …Suburb Q and the Wife be permitted to read the said cards and letters to assess their suitability for the children.

6. The appointment of the Independent Children’s Lawyer in these proceedings be discharged.

7. The Applicant Wife support and facilitate either of the children corresponding with the Respondent Husband should they wish to do so.

8. The Respondent Husband pay the Applicant Wife’s costs of two days preparation for trial on a party/party basis, such costs to be assessed pursuant to Chapter 19 of the Family Law Rules 2004.

9. The Respondent Husband pay the Independent Children’s Lawyer’s costs fixed in the amount of $2,116 being counsel’s brief fee for the appearance today.

10. The written reasons for judgment in this matter be reserved, to be delivered on a date to be fixed.

11. In the event that any party seeks to appeal these orders, the time for filing a Notice of Appeal is no later than 28 days after the date the written reasons for judgment are delivered.

12. Pursuant to to s 65DA(2) and 62B of the Family Law Act 1975 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.

13. Pursuant to rule 21.15 of the Family Law Rules 2001 rule 19.50 of the Family Law Rules 2004, the Court certifies that it was reasonable for the parties to employ an advocate.

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 Curtin & Curtin 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 MELBOURNE

FILE NUMBER: MLC 5730 of 2015

Ms Curtin

Applicant

And

Mr Curtin

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 26 April 2017 I made final parenting orders for the children of the marriage, namely B born in 2004 and C born in 2008 (“the children”) and reserved my written reasons for doing so.  These are my written reasons for making those orders.

2. The mother brought an application for final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) and her proposals were supported by the Independent Children’s Lawyer. The father, who was self-represented, participated in each pre-trial court event, filed an Amended Response and one affidavit and emailed a Case Outline before the trial on 6 April. He attended the first day of trial. The father then indicated that he would not rely on any evidence or participate in the proceedings.

3. The father had protested at a mention hearing on 29 March 2017 and at other previous Court events that if he was not observed by the family consultant with the children any trial conducted in these circumstances would be unfair.  The father participated in an assessment with Ms D a family consultant in March 2017 but was not observed with the children.

4. However notwithstanding these assertions he did not file any document to indicate an intention to withdraw from the proceedings or notify the other party or the Independent Children’s Lawyer that he would not participate in the trial.  He indicated that he had accessed legal advice.  He sought leave and leave was granted to file a late affidavit from a former neighbour before the trial.

5. On the first day of the trial, when asked about what evidence he was relying upon for the purposes of the trial, the father responded: “I’m not relying on any evidence anymore Your Honour”.  When asked if he was participating in the trial he responded: “No, your Honour.  I have previously outlined that in the last two hearings because this Court, with all due respect, has prejudiced against me on many occasions. It’s clearly outlined”.

6. The father was then excused and accordingly the mother’s application proceeded on an undefended basis. 

7. The mother sought the following orders:

   ·    sole parental responsibility for the children;

   ·    that the children live with her;

   ·    that she be permitted to remain at an address undisclosed to the father;

   ·    that the time the children spend with the father and communicate with the father be reserved;

   ·    that the father be permitted to send cards and letters to the children no more than three times a year via post office box and the mother be permitted to read them to assess their suitability for the children and that she support and facilitate either of the children corresponding with the father should they wish to do so; and

   ·    that the father pay costs of and incidental to these proceedings calculated from the judgment delivered by Senior Registrar Fitzgibbon on 15 December 2015 to the date of the making of the order, such costs to be calculated on a solicitor/client basis and fixed in the sum of $44,623.45.

8. The Independent Children’s Lawyer supported the proposals of the mother and also sought that the father pay the costs of the hearing being the brief fee fixed at $2,116. 

Background

1. The parties were married in 2002 and separated on 17 November 2014 when the mother left the former matrimonial home and fled with the children to an undisclosed address. 

2. The mother initiated the application for final parenting orders in this Court in June 2015 and filed a Notice of Child Abuse or risk of Family Violence. The mother also filed an affidavit of Ms E children’s psychologist, annexing reports dated 19 March 2015.

3. The father filed a Response and was legally represented until his solicitor filed a Notice of Ceasing to Act on 10 September 2015.

4. On 15 December 2015, interim parenting orders were made by Senior Registrar FitzGibbon after a contested hearing which provided that the children live with the mother and that the issue of the children spending time and communicating with the father be reserved. The orders also provided for the parties to make application to a Contact Centre in Suburb G to be assessed for suitability for provision of their contact services. The orders provided that the father may send Christmas, Easter and birthday cards and gifts to the children through the Independent Children’s Lawyer who will look at the items to ensure nothing inappropriate is written or being sent and then if suitable send to the mother who shall pass them to the children without first opening them.

5. The father filed a contempt application against the mother in February 2016 which was dismissed by Johns J on 1 March 2016 and the father was ordered to pay the mother’s costs of and incidental to that application fixed in the sum of $2,000.

Evidence

1. The documents relied upon by the mother and Independent Children’s Lawyer are listed in Annexure A.

2. As the matter proceeded undefended no witnesses were cross-examined.

3. The principles outlined in s 69ZN of the Act for conducting child related proceedings were applied and evidence relating to the father’s appearance in the Suburb G Magistrates’ Court for breaching an intervention order and a copy of the current interim intervention order against the father where the mother and children are listed as the persons protected by the order were admitted into evidence pursuant to s 69ZX of the Act.

Standard of Proof

1. When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities.[1]  Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject matter of the proceeding; and

   (c)the gravity of the matters alleged.

   [1]Evidence Act 1995 (Cth), s 140

The untested evidence of the mother

1. The mother deposed in her affidavit filed 24 June 2015 to a history of controlling behaviour by the father towards her and the children during the marriage which included episodes of violence in the presence of the children.  She deposed to the father having told her that he had a traumatic childhood involving physical and emotional abuse and that as the relationship progressed she experienced the father as having “a quick and explosive rage that saw him become involved in numerous altercations and evictions from various establishments in Sydney”.  She deposed to the father quite often presenting with injuries from fighting colleagues and witnessing him punching, kicking and attacking his twin brother and also “a man whom he heard making sexual comments about me”.

2. The mother describes receiving the first “closed fist punch” from the father in 2000 when they travelled overseas and he became angry and blamed her for leaving a camera behind at a friend’s place.  The mother deposed that after B was born in 2004 that the father expressed hatred for his own abusive father and constantly criticised and insulted the mother denigrating her and complaining about her standards of housekeeping and child caring such that she was always in a state of anxiety anticipating abuse, denigration or shouting from the father.  She deposed to him kicking her in the shins when she was breastfeeding the child B and becoming enraged, driving erratically when she and the child were in the car on a holiday in 2005.  She deposed to being in a state of fear when B was a child and considering whether she should flee with him during the night for safety.

3. She deposed to the father sinking into a depressive state when they lived in Western Australia and becoming aggressive and insulting towards her speaking of suicidal thoughts and making her feel guilty about her inability to make him happy.  

4. The mother deposed to the father crashing a hire car into the pillar of an underground car park in the parties’ new rental property in H Town in Queensland in April 2005.  She described the father being “blind with rage”, exploding with a “tirade of insults”, screaming in her face and prodding her chest with his index finger and blaming her for his emotional state and consequent damage to the vehicle.  She described the child B as very distressed during this incident.

5. The mother deposed that for the duration of the relationship she was given a financial “allowance” by the father but did not have access to any other money from him. She deposed to her family being concerned about the father’s controlling behaviour and her stepfather attempting to speak with him which resulted in the father squeezing her biceps, shaking her, threatening to leave her penniless and screaming insults of greed and accusations of betrayal.  She deposed that she was the subject of “ongoing economic abuse” because she did not have access to the family income and was required to ask the father for money and seek permission as to how it was spent throughout the relationship. 

6. The mother deposed to various incidents where the children were abused by the father in circumstances where he claimed that the mother was responsible because she had caused him to become upset or enraged. The mother became increasingly fearful for her own safety and the safety of the children but was also deeply ashamed and tried to appease the father.

7. Examples of the conduct of the father deposed to by the mother were:

   ·The father held B (aged nineteen months) at arm’s length and repeatedly plunged him into the surf like “dunking a tea bag” while shouting at him to “cool off and shut the f-k up”.  This occurred after an incident where the father had shaken the mother by her shoulders and threatened her on the beach in the presence of the child and the child had cried and pounded his clenched fists into the sand.

   ·In September 2006 shouting commands that the mother shut the child up when the child B was making noise whilst the father was watching television and then flying at the child and striking him hard leaving “a severely pronounced handprint on his thigh (near the line of his nappy) on bare skin”. This was followed by the father chasing the mother into a room pushing her hard onto the bed and lying on top of her screaming into her face that she had made him do it and swearing at her for “winding him up”. The father also used his knee and foot to push her off her feet again. The following day the father left for work taking the mother’s car and she discovered her bank card was missing when she went to pay the rent. She found the card crumpled in the kitchen bin. This caused the mother to seek assistance from the family and fly to Sydney.

   ·The father harassed the maternal grandmother and made “venomous accusations and threats”.  The mother returned to Queensland on the condition that the father consult a doctor with her.  She described the father expressing denial and disbelief when she relayed his behaviour to the doctor but that the relationship improved when the father was prescribed medication for major depressive disorder and generalised anxiety disorder. The mother fell pregnant in 2007 and the father accused her of manipulating him and continued to blame her for his unhappiness. The father told her that he felt that he did not need medication and resented her for the medical intervention. He returned to abusive behaviour patterns and constant and consistent blaming and criticism.

   ·In October 2007 on a camping trip near I Town when the mother was almost 6 months pregnant the father drove recklessly down the mountain screeching tyres and skidding around winding roads. When the mother pleaded for him to slow down he increased the acceleration, was more enraged and threatened to push her from the car if she didn’t shut up.  He took his left hand from the steering wheel to shove her in the shoulder and breast. B was in the car at the time crying.

   ·After C was born in 2008 the mother found the child on the floor where he had been dropped by the father after the father fell asleep holding him.  The mother screamed at the father who woke up and grabbed her wrist twisting it painfully until she had to drop to the ground with the child in the other arm.  The father screamed at the mother, kicked her in the shins twice and walked away.

   ·In May 2008 the father became enraged about some unwashed dishes and swept crockery and glasses off the kitchen sink onto the floor which caused B to come running into the room.  The father pushed the mother with both hands on the shoulders to her knees to clean up the broken glass and crockery on the floor. The mother was crying and the father told the child “Mummy is silly and broke a glass, silly mummy will sweep up the glass and we will forgive her, silly mummy”.

   ·The mother was hospitalised in 2009 for about four days and had surgery to reattach tendons and nerves from a cut between her thumb and forefinger. When the child B visited her in hospital he told her that his younger brother had been screaming for the past few nights and that the father had slept with the bedroom door closed. She also noticed that the child had an eye condition which deteriorated and the father refused to seek medical attention for the child.  When the mother returned home she observed that B had regressed in his development, began adopting “a baby voice” and wet the bed consistently over the following weeks.

   ·The father held B as a baby over the side of a Sydney ferry and laughed when the mother was nervous and placed B (at nearly 12 months) on the operational baggage conveyor belt at J Town airport.

   ·In December 2013 the father took the children in a boat to the mouth of the K River, cut the engine and forced the two children to jump overboard and swim behind the outboard motor and hoist themselves back into the boat without lifejackets. The mother described the water as notoriously dangerous with an extremely strong current and very deep. B was crying and pleading with the father not to make him jump again and the father pushed the mother in the chest and knocked her off her feet in the boat threatening to push her out and abandon her if she didn’t shut up. The mother deposed that B remains extremely fearful of swimming in the surf beach and has been forcibly submerged, taken out in the surf out of his depth and that C also stopped enjoying the ocean after frightening experiences with the father.

   ·The father punched the mother at times when he was angry whilst driving erratically, pushed her into walls at home in front of the children and told the children to denigrate the mother which caused them distress to the point that B would vomit frequently.  The father would throw things at the mother, scream at her and later minimise his behaviour.

   ·On an occasion driving from New South Wales to Queensland the father became enraged with the child B when the family  stopped for lunch at L Town and flung B onto a public bench in the street and shouted at him swearing at him in a shop

   ·In October 2014 after returning from a holiday with the children, the father became enraged when he met the mother at the airport and drove recklessly screaming at the mother that she was “an addict”, “useless” and “worthless”.  After arriving home the father forced C into another room and told him that “he would find mummy dead one day” and the child began wailing and calling to the mother. B went to protect his brother but was flung out of the room.  B told the mother with his fists clenched “I hate him, I want [sic] punch him in the face”.

1. The mother deposed that on 9 December 2014 the police made an application for a protection order in Queensland which was consented to by the father.  She deposed that on 12 December 2014 the father was found looking for her and the children at a place where he believed them be staying and that she was extremely distressed. She deposed to learning that the father had been pulled from his car with the windows taped and a hose connected to the exhaust pipe and the police advised her that he had been transferred to a psychiatric unit at the hospital.  She deposed that on 17 December 2014, Dr M informed her that the father had been assessed as having a personality deficit disorder. The doctor advised that it was impossible to treat and that there was no medication, therapy or medical intervention that they could employ. The mother deposed to being informed by the doctor that she should remain “extremely vigilant in preventing [the father] finding us”. Dr M told the police in New South Wales and Queensland of the father’s release from hospital into the care of his brother. He warned the mother not to disclose her location to the father.

2. The mother deposed to being extremely frightened that the father would find her and the children. She deposed to receiving countless emails from the father stating “I will be near you soon” and “you will then feel pain”.

3. The mother deposed to observing the children flourishing at school now that they feel safe and to B being free from stomach pains and vomiting and C now sleeping in his own bed enjoying school and having made friends.

4. In her affidavit filed 7 October 2016, the mother deposed at paragraph 11 that the “physical and psychological drama experienced by the children in the company of their father is profound and long reaching and presents the children with incredible fear”.

5. The mother deposed at paragraph 16 that B has been referred to a psychiatrist to “assist with his high level of anxiety as he is aware of the impending trial whereby spend time arrangements between him and his father [sic]”.

6. The wife deposed at paragraph 19 that if the children were required to spend any time with the father, whether supervised or otherwise, this “would cause them significant distress and [B] has been referred to a psychiatrist because he has threatened self harm should he be required to do so”.

7. The mother gave brief oral evidence in relation to child support. The mother stated that she never made an application for child support in part due to the fact that there could be no guarantee that the confidentiality of her address could be maintained.  The mother gave evidence that the father has never paid child support or provided financial assistance since separation.

Evidence of the family consultant, Ms D

1. The family consultant, Ms D prepared two family reports in this matter. The first report is dated 21 November 2016 (“the first family report”) and a second report is dated 8 March 2017 (“the second family report”). She had also prepared a s 11F Memorandum for the interim parenting hearing before the Senior Registrar. Ms D holds a Bachelor of Arts, Legal studies, a Bachelor of Social Work and Social Work Honours. Her qualifications were not challenged and she was not cross-examined.

2. The father did not attend the scheduled interview with the family consultant for the first family report and the family consultant stated at paragraph 21 of the first report that “he was not able to be contacted on the day”.  The trial was fixed for hearing in January 2017 but at the pre-trial mention on 20 December 2016 the father claimed that he had not received any notice to attend upon the family consultant and claimed that the process was flawed.  The father complained that it would be unfair to proceed to trial until he had been observed by the family consultant with the children. The Independent Children’s Lawyer made further enquiries of the family consultant.  The Independent Children’s Lawyer ascertained that the family consultant was prepared to assess whether it was appropriate for the children to be observed with the father in a further report.  Accordingly the trial date was vacated and there was some delay before the matter was relisted for trial to give the father an opportunity to be interviewed by the family consultant.

3. The father attended the interview for the second family report and he was punctual for his appointment.[2] However based on an assessment of the children, the family consultant was of the opinion that the children should not be observed with the father.  The family report writer reported at paragraph 38 that:

   The possibility of a brief meeting with their father in the registry playroom was explored with the boys. Both children remained adamant that they did not want to see their father and [B] reiterated his response in the previous interview… that he would either refuse to enter the room if [the father] was present, or he would immediately leave the room if [the father] entered the room. Despite the report writer confirming that it would be the children’s decision whether or not to talk with their father and that at any time they could request the report writer leave the room with [the father], they remained adamant that they did not want to do so. When asked to consider hypothetically, what it would be like/how they might feel if their father was to walk in one door, through the playroom and out the door at the other end, [B] replied that he would be “scared, no, terrified and I would feel sick.” [C] said: “it would be horrific.”

   [2] Family Report dated 8 March 2017, par 13.

4. The family consultant noted at paragraph 40 that 4 days prior to her interview with the children she contacted B’s treating psychiatrist, Dr N. The psychiatrist confirmed that B has been diagnosed with “anxiety and that he also has features of Post-Traumatic Stress Disorder”. The family consultant reported that the psychiatrist:

   …understood that [B’s] presenting symptoms to be in the context of having both witnessed ongoing and longstanding family violence perpetrated by his father against his mother and having himself been the victim of family violence perpetrated against him by his father.

5. The family consultant reported that the psychiatrist “expressed considerable concern for [B] should he be required to meet with his father as part of this assessment. She suggested that this would be likely to result in [B] becoming highly anxious and may result in him having a panic attack”.

6. The family consultant went on at paragraph 41:

   The report writer made the decision not to proceed with the observation of the children with their father at this time. When advised that [B] and [C] continue to maintain that they are scared of him and became increasingly distressed at the possibility of a brief meeting with him, [Mr Curtin] repeated comments made previously. He said “I am not surprised. Their mother has manipulated them for two and a half years… I need a Court Order for an independent observer with me in front of the children. They (the independent observer) will need to be briefed about the two years of manipulation by the mother who has repeatedly lied in her affidavits and is now using psychology against me and the children, all because I exposed her lies about her drinking.”

7. The family consultant reported at paragraph 47 that the information provided by the mother and by the children “would suggest it is highly likely that the children were exposed to significant family violence”. She noted that the childrens’ narratives when interviewed by her in the first and second family reports and the Memorandum “remained consistent and their emotional responses were highly congruent with the content of their narratives”. She noted that whilst it is possible the mother has “actively sought to alienate the children from their father” there was “nothing evident in either of their presentations that would suggest that they have been coached in what to say or how to feel”.

8. She reported that the children’s fear is “real and present” and that because of the father’s view that the mother is solely responsible for the children’s refusal to spend time with him, if the children were to spend time “with their father against their expressed wishes, it is likely to be traumatic and they would require significant and ongoing psychological support”.

9. In relation to parental responsibility, the family consultant reported that due to the allegations of family violence and the father’s lack of trust of the mother, this makes it “highly unlikely” that the mother and father “will be able to communicate effectively or to be able to make joint decisions regarding the children and their needs”. She reported that given the allegations of family violence it is not reasonable to expect the mother to communicate with the father on a “regular and continual basis”.

10. In the second family report, the report writer made the following recommendations:

    ·It would be in the [children’s] best interest to continue to live with their mother.

    ·The father’s time with the children be reserved.

    ·The father be permitted to send cards and letters to the children no more than three times a year via a Post Office Box provided by the mother/

    ·The mother is to support and facilitate either of the children correspondent with the father should they wish to do so.

    ·[The children] will need to continue to attend their treating practitioners as directed by them.

11. It is significant that on 24 September 2015, being the first occasion when the family consultant interviewed the children for the Memorandum, that she observed that B was a “highly articulate child”.  Both children engaged well with the family consultant but B’s level of fear prevented him from being able to engage in a hypothetical discussion with his father.  At paragraphs 10 -13 the family consultant reported about that first occasion:

    [B] presents as a highly articulate child. He has a rather serious demeanour and a maturity beyond his years. [B] spoke openly about his experiences and his information was consistent with that he had discussed in sessions with his psychologist. [B] described ongoing fear of his father and articulated his significant concerns regarding his father’s possible desire for “revenge because we left him.” [B’s] level of fear prevented him from being able to engage in a hypothetical discussion with his father.

    [C] is 7 years and 6 months. He is in Grade Two and according to his mother is meeting the academic standards expected at his level. [B] [sic] presents as a friendly and polite child. He was able to engage with the family consultant.

    [C] spoke spontaneously about plans for the remainder of the school holidays, as well as about his current school and the friendships he is developing. Whilst [C] initially focussed on negative experiences with his father and described incidents where “I felt terrified and scared”, he was able to identify some positive experiences with his father, usually in the context of family outings.

    The father allegedly told [C] that he would find his mother dead one day as a result of her drinking. It is understandable that a comment such as this would have been devastating to a young child. Given that [C] spontaneously made reference to this and described in detail his fear that something would happen to his mother if he was not with her, it is likely that the father did indeed make such a comment. The mother advised that for a number of months, [C] had difficulty separating from her and would have frequent nightmares and for many months, slept in her bed. He is now sleeping in his own bed but can still become anxious when separated from her.

Evidence of the reports from the children’s psychologist Ms E dated 19 March 2015 and 12 February 2016

1. Ms E, psychologist, prepared two reports dated 19 March 2015, one in relation to B and one in relation to C (Annexure HS1 and HS2 of her Affidavit filed 19 August 2015). I note that this affidavit was filed before procedural orders were made for the listing of the matter for trial.

2. Order 5 of the orders made by the Senior Registrar dated 15 December 2015 provided:

   That the ICL on notice to the parties write to [Ms E] to request her opinion about:

   a)progress of counselling;

   b)what impact might orders for time to be spent including strictly supervised time at a contact centre have on the children;

   c)has she raised or discussed with the children resuming spending time with their father;

   d)if so, what was their reaction, and if not how can she do so; and

   e)what is needed in the best interests of each boy to prepare for possible time spent orders and what supports or other things may be required for them.

3. It appears that in this context Ms E also prepared two additional reports in relation to the children dated 12 February 2016, annexed to her affidavit filed 22 May 2016. However it is unclear if this report was written at the request of the Independent Children’s Lawyer. The second reports make direct reference to the first reports prepared by Ms E in 2015.

4. The father was not interviewed by Ms E at any point nor has he had any contact with Ms E.

5. I note that the Independent Children’s Lawyer relies on the two reports.

Report in relation to the child B prepared by Ms E dated 19 March 2015

1. Ms E noted that B had attended 7 sessions at the date of the report. Ms E reported that B presented as a “very mature boy, who is highly articulate and above average in cognitive and emotional development for his age”. She described him as having “great insight into his own thoughts and feelings”.

2. She reported that according to B, he had been exposed to “long standing physical and verbal violence” by his father and that the violence was directed at both B and his brother and mother. She reported that the child spoke “at great length about his father being scary, angry, threatening and aggressive”.

3. Ms E reported that B presented to her as increasingly more happy and settled the longer he was not having contact with the father. She went on to report that “B is highly likely to experience severe symptoms of anxiety if he is required to have any form of contact” with the father.

4. Ms E reported that B has expressed on several occasions his wish that he does not have any contact with the father. She went on to state that the child has “consistently expressed how happy he” is living with his brother and the mother.

Report in relation to the child C prepared by Ms E dated 19 March 2015

1. Ms E noted that C had attended 4 sessions at the date of the report. She noted that during the sessions the child found it hard to talk about his father, his own feelings and experiences.

2. Ms E reported that C was consistently clear during his sessions that he did not want any contact with the father, including any contact via email or phone. She described C stating that he would “shiver”, “fall to the ground and run out of the room” if he were to see the father.

3. In summary, Ms E reported that C had described being “exposed to long term physical and verbal violence from his father” and that he consistently spoke about how scared he was when living with his father and his fear that the father would hurt him if he were to have time with the father.

Report in relation to the child B prepared by Ms E dated 12 February 2016

1. Ms E reported that B attended two sessions with her in January and February 2016.  She reported that B has no behavioural issues, excellent social skills and is very happy living with his mother and brother.

2. She reported that B presented with a very “serious demeanour was consistently close to crying and appeared physically stressed”. She further reported that during both sessions B showed great insight, was highly articulate in describing his thoughts and feelings about his current situation, his father and the possibility of access to the father

3. B stated to the report writer that he continues to experience great fear of his father and that he is fearful that the legal team at the Court will accidentally disclose his home address.  Ms E reported that B was very clear in both sessions that he does not want to see his father.

4. In summary Ms E reported that B stated very clearly that he continues to feel great fear of his father. She reported that B is very scared his father will find him and C and hurt them and that the “fear is constantly with B and impacts on his emotional well-being and ability to manage day to day stressors”. She stated that “[B] is very clear that he does not want to see his father or have any contact at all”.

Report in relation to the child C prepared by Ms E dated 12 February 2016

1. Ms E reported that C had attended one session with her in January 2016. Ms E reported that C is a very well behaved with no behavioural issues and excellent social skills and during both sessions presented with a happy and relaxed disposition.

2. Ms E reported that when asked what he has been thinking about his father, C stated that he doesn’t want to talk about his father and that he “never thinks about him” and was adamant he didn’t miss his father.  

3. Ms E reported that C stated that he is “not so scared now” of his father and “doesn’t think” about him because if he does think about his father he gets “scared”. She described C’s fear as not constantly present as he generally never thinks of the father.

4. Ms E reported that when asked if he would like to see the father again C stated that he didn’t and that he would feel “sad and terrified, mad and angry”.

5. In conclusion Ms E found that C presents as “happy and very settled in his new home without his father”. She reported that C has made great progress emotionally and reported that he no longer has nightmares or disrupted sleep. She reported that C was clear that he has no desire to have any form of contact now or in the future with the father and will not go to court ordered access.

Evidence of Dr O contained in psychiatric reports of the mother and father dated 1 December 2015

1. Dr O is a Consultant Psychiatrist.  Dr O did not make a diagnosis of any psychiatric disorder with regard to either of the parents. Dr O’s qualifications include a Bachelor of Medicine and Bachelor of Surgery and he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists with over 25 years psychiatric experience.

Psychiatric report in relation to the father prepared by Dr O dated 1 December 2015

1. Aside from the documents provided by the Independent Children’s Lawyer and the solicitor for the mother, the father provided Dr O with copies of the court documents, the father’s affidavit, what the father said were the false or misleading allegations in the mother’s and maternal grandmother’s material, photos apparently deleted by the mother, the father’s ‘Statement to Family’, photos of the father and children and photos of the former family home and works carried out on the home by the father

2. The father denied any current psychiatric symptomatology. He acknowledged a suicide attempt in 2014 in the context of acute distress following the ending of his marriage.  He also acknowledged an episode in 2006 or 2007 when he was prescribed antidepressant medications, but says this was at the insistence of his wife, who was reportedly hectoring him in the context of her own problems, including alcohol abuse.

3. The father denied any past psychiatric history, family psychiatric history, alcohol or substance abuse, unresolved medical illness or personality disorder.

4. He denied the mother’s reports that he has been physically, verbally, emotionally and financially abusive toward her and the children.

5. Dr O reported that the father “presented as a frustrated individual whose controlling and controlled manner at interview was explained by him as being a reaction to his grief about not seeing his children”. He “described caring, insightful and committed attitudes with regard to parenting responsibilities and arrangements”. He “demonstrated no significant cognitive deficits or signs of psychiatric disorder at interview”.

1. In his report of the father, Dr O stated that, in the absence of further information, he was unable to make a diagnosis of a psychiatric disorder and was not able to state that the father was at risk of any particular future behavioural or psychiatric issues related to a psychiatric disorder.  Dr O stated that, upon the history available, no psychiatric treatment appears to be required.[3]

   [3] Psychiatric report of the father prepared by Dr O dated 1 December 2015, p 9.

Psychiatric report in relation to the mother prepared by Dr O dated 1 December 2015

1. Dr O reported that the mother denied any significant current psychiatric symptomology. She described a period of bulimia during her adolescence after the longstanding terminal illness and then death of her father. She denied any other major past psychiatric history, family psychiatric history, alcohol or substance abuse, unresolved medical illness or personality disorder.

2. The mother denied the father’s claims that she has had an alcohol problem and has not cared adequately for the children.  Dr O reported that the mother presented as a reasonably pleasant and plausible individual who described caring, insightful and committed attitudes with regard to parenting responsibilities and arrangements. She did not demonstrate any evidence of cognitive deficits or psychiatric disorder.

3. In his report of the mother, Dr O again stated that, in the absence of further information, he was unable to make a diagnosis of any psychiatric disorder, and upon the history available, was not able to state that the mother was at risk of any future behavioural or psychiatric issues related to a psychiatric disorder. Dr O found no evidence that any psychiatric treatment was required.[4]

   [4] Psychiatric report of the mother prepared by Dr O dated 1 December 2015, p 9.

Dr O’s conclusions about the mother and the father

1. Dr O noted that he had not seen the children and could not fully comment upon the dynamics of the relationships between them and their parents.

2. Dr O said that taking at face value the version of events provided by the mother, there would appear to be insufficient evidence to suggest that ongoing care by her of the children is contraindicated for psychiatric reasons. The same appears to apply in relation to the father’s care for the children if one takes the father’s version of events at face value.

3. He reported that if the mother’s version of events is deemed more accurate than the father’s, it would follow that the father is suffering from significantly problematic personality traits. Dr O writes, “In particular, a degree of narcissism and/or sociopathy would imply that there must be concerns regarding the father’s ability to provide a reasonable level of positive parenting without episodic anger, and ensuing concerns about his ability to not lapse into physical or emotional abuse of his sons”.

4. He reported that if the father’s version of events is deemed more accurate than the mother’s, it would follow that the mother is suffering “from significant alcohol problems and a degree of personality disorder. In turn, there would be concerns regarding her ability to provide consistent positive parenting without lapsing into neglect of her children whilst intoxicated”.

5. Dr O found that both parents presented plausibly, thus raising the possibility that at least one of them was lying to a significant and concerning degree. Dr O suggested that such a level of untruthfulness is significantly likely to reflect more than just fear of loss of control of the children, but rather a significant degree of personality disorder.

The father’s documents

1. The father’s attempt to comply with pre-trial procedural orders made on 20 December 2016 was a Case Outline which was emailed to Chambers and not filed with the Court or served on the mother or the Independent Children’s Lawyer.  Because the document had not been filed or served I had not read it prior to the first day of the trial.

2. The mother and the Independent Children’s Lawyer sought to examine the document after the father referred to it in discussions about his participation in the proceedings.  After the father had left the Court, a copy of the document was provided to counsel for the mother and counsel for the Independent Children’s Lawyer.  The document was tendered by counsel for the mother as Exhibit C.

3. The document contains complaints about the lawyer who previously acted for the father and complaints about the property settlement and previous Court proceedings concerning the father’s application for contempt making allegations of “prejudice, bias manipulation and collusion”.  He refers to further prejudice towards him demonstrated in a last-minute decision to change court rooms at a hearing on 1 March 2016.  He makes complaints about the Independent Children’s Lawyer in previous hearings and the solicitor for the mother suggesting that he had committed perjury in questioning the father about the lodgement of documents at his office.

4. Some examples of the father’s attitude are contained in that document and are as follows:

   Does the court blame a person for walking away, or has the court actually ever considered that it is aiding and abetting’ the perpetrator of family violence, being the applicant who has knowingly manipulated her own children and continues to do so.  Observe the school report drops, the Post traumatic Stress on [B].  The grades should have improved but they were already all A’s.  The grades could not get any higher. She used her Psychology to do this.  How can there ever be fair trial or Justice on the merits of these actions.

   It is wrong to say that my demands were not met, At the last two hearings I made it clear about observed interaction, which primarily was in the interest of equality and Justice that a fair trial would not be obtained without this observation. These were not demands. This was a decorous request. I made a mistake or two in life, who has not, but I know the difference between “wrong and right”. It is with this honesty and integrity that I have been to the Former Prime Ministers home on multiple occasions, just to name a few of the dignitaries that I have been procured to do works based on this integrity. I do not fear the Truth! But on this basis as I clearly outlined, and the prejudice directed towards the respondent, there will be no fair trial, I will ask that my childhood savings be reimbursed now, based on this manipulation and that maybe the court might consider holding the applicant in contempt for not sending me school reports and photos, this might be Justice though I will not hold my breath. Thank you.

   “Cum homo sit iniura”

   (Original emphasis)

5. The Independent Children’s Lawyer relied upon the attitude of the father exemplified in the framing of his Amended Response which was not pursued.  In particular he referred to the application for final orders sought by the father.  Paragraph 1 of the father’s Amended Response to Initiating Application filed 6 February 2017 was as follows:

   (1)That [the children] be removed from the poisonous, toxic, alcoholic and manipulative culture, that has been forced upon them, in the most venal net nature by their mother’ and her mother, and be reunited with there[sic] father whom will provide top tier education along with a permanent family home, not rental accommodation.

6. The Independent Children’s Lawyer submitted that the “venom” demonstrated in the framing of the application by the father was an example that there was no likelihood that the parents could effectively share equal parental responsibility for the children.

Findings

1. I accept the untested evidence of the mother about the history of family violence outlined in her affidavits.  Her evidence is inherently credible and unchallenged.

2. I am satisfied that the children are in fear of the father and have consistently expressed this to numerous professionals being psychiatrist Dr N, psychologist Ms E since March 2015 and the family consultant in September 2015, November 2016 and February 2017.  I place some weight on the fact that the attitude of both children has been consistent over a considerable period of time and to several professionals.

3. I find on the evidence of the psychologist Ms E and the family consultant that B is an articulate child undergoing an accelerated learning program at school.  Having regard to his age being 12 and his intelligence, I place considerable weight on his wishes.

4. On the evidence of the family consultant informed by the children’s psychologist Ms E and psychiatrist Dr N, I am satisfied that the eldest child B suffers from symptoms of Post-Traumatic Stress Disorder and anxiety which require medication.  I also accept the evidence that the child B has presented with thoughts of self-harm.

5. I am satisfied that the children currently have no relationship with the father and have been in the sole care of the mother since the parents separated in November 2014.  For two years prior to this, the father worked away from home every alternate week, leaving the children in the mother’s primary care. The children have not seen the father since the parents separated in November 2014 and a final protection order sought by the police, was made in the P Town Magistrates’ Court in Queensland in 2014 until further order.  This order protected the mother and both children.  The father was present when the order was made by consent without admissions.  An earlier temporary protection order was made in 2014 protecting the mother and both children until the application could be served upon the father.  

6. The mother has been living since that time at an address unknown to the father and registered the interstate Protection Order in Victoria in 2014.

7. I find on the evidence of the family consultant that the children have not been “coached” by the mother in providing their views to the family consultant.  I accept of course that the children would be aware that the mother is in fear of the father and that they are aware that their address should not be disclosed as the mother has made every effort to ensure that her address has not been revealed to the father.

8. I find that an interim intervention order was made in Victoria in the absence of the father, extending the protection order made interstate in 2016.  This interim intervention order was made to last until final order, unless varied or revoked; or if the application is withdrawn.

9. I find that on the basis of Exhibit B, being the LEAP Victoria Police Court Outcomes report that the father appeared at the Suburb G Magistrates’ Court in 2016 where he was found guilty of two charges, being persistently contravening a family violence order and contravention of a family violence intervention order. He was fined an aggregate of $1200 without conviction.

10. I find on all the evidence that the mother has been the primary carer of the children since birth. I find on the evidence of the family consultant at paragraph 32 of the second family report that there have been no concerns raised in relation to the children’s welfare or the mother’s capacity to provide optimum parenting.  I accept the evidence of the mother that the child B is managing the transition to secondary school effectively and participating in the accelerated learning program for which he was selected at the end of 2016.

11. I accept the evidence of the mother and the family consultant that both children have suffered from stress as a result of the litigation and as a consequence of being interviewed about their views of spending time with the father.

The Relevant Law

1. These proceedings are brought under Part VII of the Act. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.

2. What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

1. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Section 60CC(2) Primary Considerations

1. The primary conditions are:

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the primary considerations greater weight must be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[5]

   [5] Family Law Act 1975 (Cth), s 60CC(2A)

3. It is this consideration which assumes significance in this particular case.  On the evidence of the family consultant the information provided by the mother and children “would suggest it is highly likely that the children were exposed to significant family violence”. In particular the family consultant reported that the children’s narratives (when interviewed on three occasions being September, November 2016 and February 2017) remained consistent and their emotional responses were highly congruent with the content of their narratives. In addition this information reflected what they shared during their therapeutic sessions with psychologist Ms E in 2015 and 2016. The family consultant found that there was nothing evident in the presentation of the children that would suggest that they have been coached by the mother in what to say or how to feel.[6]

   [6] Family Report dated 8 March 2017, par 48.

4. Relevantly, as previously discussed, the family consultant found that the fear of the father evident in both children “is real and present”.  I accept her opinion that if the children were to spend time with their father against their expressed wishes, “it is likely to be traumatic and they would require significant and ongoing psychological support”. I also accept her opinion that the child B’s symptoms of post-traumatic stress disorder could be exacerbated and that both children’s psychological well-being would be at further risk should they be forced to spend time with their father against their expressed wishes.  The family consultant relied upon a telephone conversation and consultation with Dr N who is B’s treating psychiatrist.  Dr N confirmed that the child has been diagnosed with anxiety and also has features of Post-Traumatic Stress Disorder and at the time of referral was presenting with thoughts of self- harm.

5. The family consultant was also of the view that the primary care arrangement for the children may be compromised if the children believe that their mother is forcing them to spend time with the father against their expressed wishes.

6. I accept the evidence of the family consultant that B told her that he would be “scared, no, terrified and I would feel sick” if his father came into the playroom where she had interviewed the children.  I also accept her evidence that C said “it would be horrific”.

7. I am satisfied on all the evidence that the consistent fear which the children hold for their father, is genuine and that the source of their fear is having been subjected to physical abuse and family violence from the father as described by the mother. There is a need to protect the children from physical and psychological harm from being exposed to abuse and family violence in the event that they were forced to spend time with the father.   

8. The father has participated in the assessment prepared by the family consultant and has read the report. There is also no longer any proposal by the father to spend time with the children.

Unacceptable risk

1. This is not a case involving allegations of sexual abuse but allegations of violence towards the mother and children and psychological abuse. 

2. The Full Court in Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 at paragraph 88 onwards referred to the decision of In the Marriage of A (1998) FLC 92-800 (“In the Marriage of A”).  It is clear that the Full Court in In the Marriage of A accepted that the term identified by the High Court in M v M (1988) 166 CLR 69 (“M v M”) of “unacceptable risk” includes cases involving the assessment of the risk of future physical and/or emotional harm. [7]

   [7] In the Marriage of A (1998) FLC 92-800, 200.

3. In M v M, the High Court referred to the protection of the child’s best interests by endeavouring to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  The test to be applied in considering the magnitude of the risk was expressed as “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.[8]

   [8] M v M (1988) 166 CLR 69, 78.

4. The “unacceptable risk” test is the standard used by the Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.[9]  The finding of unacceptable risk is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   [9] Ibid.

5. On all the evidence in this case and my findings accepting the evidence of the mother and the family consultant previously outlined, I am satisfied on the balance of probabilities that the father is an unacceptable risk of physically and psychologically abusing the children.

6. Weighing up all the evidence in this case and the absence of proposals from the father, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence outweighs the benefit to the children of having a meaningful relationship with the father.

Section 60CC(3) Additional Considerations

1. The additional considerations are listed in section 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The views of the children have been consistent and reflected in both the first and second family reports and in the memorandum prepared pursuant to s 11F of the Act. The evidence of Ms E also confirms the children’s views as reported by the family consultant.

2. In the second family report both children remained adamant that they did not want to see their father and B reiterated his response in the previous interview from November 2016 that he would either refuse to enter the room if the father was present or he would immediately leave the room if the father entered the room.

3. At paragraph 39 of the second family report, in response to the report writer’s comments that the father believed the children have never had any reason to be scared of him, and had been strongly influenced by their mother in this regard, B responded with “both outrage and amusement. He immediately said words to the effect: “that’s ridiculous! I know what he has done. Nobody can make me think things. I have my own mind”.  The report writer indicated that the response of C was to shake his head vigorously, indicating “no”.

4. As previously discussed I accept the opinion of the family consultant that there was nothing evident in either child’s presentation that would suggest that they have been coached in what to say or how to feel.

5. Both the family consultant and the psychologist Ms E described the child B as “highly articulate”.  As mentioned previously, I accept the mother’s evidence that B is participating in the accelerated learning program at his school and given his age and level of understanding considerable weight must be given to his views.

Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)

1. The children have not had any contact with the father or his extended family since the parties separated.  The children also have the support of the maternal extended family.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. The father has not had any contact with the children since November 2014 as a result of the final Protection Order made in Queensland and the interim intervention order made in Victoria.  The father has not known the address of the children since separation.  Since separation however he has sent photographs to the children but has not provided any financial support or assistance. The father has had limited if any opportunity to participate in making decisions about major long-term issues in relation to the children or to spend time and communicate with them because of those court orders and subsequent interim orders made in this Court by the Senior Registrar.

2. The mother has made all decisions with respect to the children’s education and medical needs and all decisions about major long-term issues.

3. The father makes no proposals to spend time with the children having withdrawn from the proceedings.

Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. Since the parties separated the mother has taken full responsibility for the financial support of the children and has not sought any child support from the father because of her concerns about her address being disclosed.  The father has not provided any financial support for the children and makes no proposals having withdrawn from the proceedings.

Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The children have always lived with the mother and the joint proposals of the mother and the Independent Children’s Lawyer would not disturb the arrangements which have been in place since the parties separated.  There will therefore be no change in the children’s circumstances other than the positive effect of the children being informed that they will not be required to spend time with the father against their expressed wishes.  The children are likely to be relieved of the stress which has been caused to them because of their necessary involvement in the assessment process for the purposes of this litigation.  It is unsurprising that having regard to the age of each child and the fears that they hold that the making of final orders will provide them with some relief.

2. I accept the evidence of the family consultant at paragraph 50 of her latest report that if the children were to spend time with the father against their expressed wishes, it is likely to be traumatic and they would require significant and ongoing psychological support.

3. This is particularly significant in circumstances where B has been attending psychiatrist Dr N who confirmed to the family consultant that he has been diagnosed with anxiety and that he also has features of Post-Traumatic Stress Disorder.  I accept the evidence that B has also presented with thoughts of self-harm and that he is currently prescribed medication to help him manage his symptoms of anxiety.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The practical difficulty and expense of the children spending time with and communicating with the father is not a factor which needs to be considered here as there are no proposals by the father.

Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. I am satisfied that the mother has the capacity and has historically demonstrated the capacity to provide for the needs of the children including emotional and intellectual needs.  The father makes no proposals and has not demonstrated any capacity to provide for the needs of the children including emotional and intellectual needs.

Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The children’s palpable and chronic fear of the father in circumstances where the opinion of the family consultant is that the children’s views appear to have been formed from their own lived experience of the father is a particular characteristic of the children which is a feature of this case.  I am satisfied on the evidence of the family consultant that the fear has not been created by the attitude of the mother or by “coaching” having regard to the extensive experience of the family consultant and her observations of the children over a period of about three years.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother has demonstrated a dedicated and responsible attitude to the children and to the responsibilities of parenthood in difficult circumstances.  She has had the additional burden of dealing with the consequences of the children’s fear of the father which include professional assistance from a psychologist and psychiatrist. The mother has protected the children and taken her parental responsibility seriously in relocating the children, changing schools and coping with the difficulties inherent in keeping her address confidential.  The mother has undertaken those responsibilities without financial assistance from the father

Section 60CC(3)(j): any family violence involving the child or a member of the child's family and Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

1. As outlined previously the mother and children are named as the persons protected by the Queensland protection order and are also named as protected persons in the intervention order made in Victoria.  There is no evidence of any finding by the P Town Magistrates’ Court as the final protection order was made by consent without admissions.  There is no evidence of any finding regarding the Victorian interim intervention order which was made in the absence of the father but the order extended the Queensland protection order which had been registered in Victoria.

2. The circumstances of the making of the Queensland order were that the police made the application and it was made until further order.  It had been preceded by the making of a temporary protection order in November 2014.

3. There is evidence that the father has no prior criminal history in Queensland.

4. Significantly the father has subsequently been charged and found guilty of two offences of breaching an intervention order at Suburb G Magistrates’ Court in 2016 (Exhibit B). He was charged with persistently contravening a family violence order and contravention of a family violence intervention order. There is no evidence as to the circumstances of this hearing, for example whether the father pleaded guilty or not guilty, but the outcome was that he was fined an aggregate of $1,200 without conviction.

5. From these court orders I have drawn the inference that the father has not taken the intervention orders seriously and has failed to abide by them.

Section 60CC(3)(l): whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is most unfortunate that the delay in determining this case has been brought about by the father’s protest that the proceedings were unfair unless he was observed with the children.  The father’s ambivalence about his participation in the proceedings brought about by his attendance at pre-trial hearings and request to file a further affidavit from a neighbour whilst maintaining that he would not participate in the proceedings unless he was observed with the children by the family consultant, has extended the stress of the litigation for both the mother and the children.  This would appear to have occurred after the father had been found guilty of breaching an intervention order in mid 2016, circumstances which were subsequently revealed by the police records.

2. Giving effect to the principles of s 69ZN of the Act I made the orders at the conclusion of the hearing and reserved my written reasons for judgment to assuage the concerns of the mother and children about the extended litigation.

3. I am satisfied that the orders proposed by the mother and the Independent Children’s Lawyer are the orders least likely to lead to the institution of further proceedings in relation to the children.

Presumption of equal shared parental responsibility

1. Parental responsibility is defined under s 61B of Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

2. Under s 65DAC of the Act the effect of a parenting order that provides for shared parental responsibility is that decisions about major long-term issues in relation to the child must be made jointly and such an order would require these parents to consult each other about the decision to be made regarding those issues and make a genuine effort to come to a joint decision.

3. Under s 61DA(1) of the Act, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The father’s Amended Response filed 6 February 2017 which was not pursued, did not refer to parental responsibility.

4. However under s 61DA(2)(b) of the Act, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

5. There are reasonable grounds to believe in this case that the father has engaged in family violence given the un-contradicted evidence of the mother, supported by the opinion of the family consultant about the basis for the children’s fear of the father.  At paragraph 47 of the family report dated 9 March 2017, the family consultant comments that the dynamics of the parental relationship, as described by the mother, include a pattern of behaviour consistent with what the literature identifies as Coercive Controlling Violence. The family consultant goes on to say that in addition, the mother’s description of her own behaviours and responses are not uncommon in the analysis of the dynamics of family violence and that information provided by the mother and children would suggest it is highly likely that the children were exposed to significant family violence.

6. The fact that the father has been found guilty of two breaches of the intervention order in 2016 lends weight to this conclusion.

7. I have weighed the comments made by Dr O in the psychiatric reports dated 1 December 2015 where he states that:

   … both parents presented plausibly to this examiner, thus raising the possibility that at least one of them was lying to the examiner to a significant and concerning degree ... It is noted that the degree of un-truthfulness is significantly likely to reflect more than just fear of loss of control of the children, but rather a significant degree of personality disorder.

8. I have also taken into account the family consultant’s evidence that “there are no concerns raised in relation to the children’s welfare or the mother’s capacity to provide optimum parenting”.[10]

   [10] Family report dated 8 March 2017, par 32.

9. However regardless of those reasonable grounds, the history of family violence and the attitude of the father revealed in his application for final orders sought in his amended Response to Initiating Application filed 6 February 2017 together with his email addressed to Chambers (Exhibit C) demonstrate that it is clearly not in the best interests of the children that the parents have equal shared parental responsibility in this case.  The content of the email outlined earlier together with the father’s reference to the children living in “the poisonous, toxic, alcoholic and manipulative culture, that has been forced upon them, in the most venal nature by their mother and her mother” is clear evidence that the attitude of the father is not conducive to any sharing of parental responsibility in this case.  I am also satisfied that the mother has been living in fear of the father to the extent that she has not been prepared to compromise the confidentiality of her address even to seek child support from the father.  This is in circumstances where the mother is living in rented accommodation.

10. As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that the children spend equal or substantial and significant time with the father.  I am at liberty to determine directly which parenting orders are in the best interests of the children.

Conclusion

1. I am satisfied on all the evidence that it is in the best interests of the children to make the orders jointly proposed by the mother and the Independent Children’s Lawyer.  These proposals are consistent with the wishes of both children.  The father has decided not to press his proposals and whilst the evidence of the mother is untested it has not been contradicted.

2. The evidence of the family consultant is compelling because the children have been interviewed by her in September 2015, November 2016 and February 2017 and is informed by the psychiatrist Dr N and the children’s psychologist Ms E.  I accept that the decision of the family consultant not to observe the children in the presence of the father was appropriate and in the best interests of the children particularly in light of the intervention order which applied.  I do not accept that this decision has prejudiced the father’s case.

3. The father has been given ample opportunity to participate in the assessment process and the trial and to inform the family consultant on the two occasions where he was interviewed of his response to the mother’s application and his proposals.  The father was aware of the recommendations made by the family consultant and did not participate in the trial.

4. I am satisfied on all the evidence that the need to protect the children from physical or psychological harm from being subjected to or exposed to family violence outweighs the benefit to the children of having a relationship with the father.

5. I am satisfied on all the evidence that the presumption of sole parental responsibility has been rebutted because there are reasonable grounds to believe in this case that the father has engaged in family violence and he has been found guilty of breaching an intervention order.  Notwithstanding those reasonable grounds it is not in the best interests of the children for the parents to have equal shared parental responsibility having regard to the mother’s fear of the father and the children’s chronic fear resulting from their own experience with the father in the past.

Costs

1. Counsel for the Independent Children’s Lawyer and counsel for the mother made an application for costs at the conclusion of the hearing.

2. Counsel for the Independent Children’s Lawyer sought a costs order in the sum of $2,116, being the brief fee for his appearance that day.  The father had been put on notice at a pre-trial mention hearing that the Independent Children’s Lawyer would be seeking costs in the event that the proceedings fixed for a three-day trial were undefended.

3. Counsel for the mother sought an order for costs and disbursements to 6 December 2016 being $46,645.  He also sought preparation costs for the trial of $3,000 and $3,000 per day for his appearance at the trial in addition to GST.

4. Under s 117(1) of the Act and subject to other provisions, each party to proceedings under the Act shall bear his or her own costs. However the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which justify such an order. It is entirely a matter for the discretion of the Court.

5. Under s 117(3) of the Act the Court may make an order as to costs in proceedings in which an Independent Children’s Lawyer for a child has been appointed.

6. Section 117(2A) of the Act mandates the factors to which the court must have regard in considering whether to make an order for costs.

7. Although the father did not ultimately participate in the trial he filed an Amended Response to the Initiating Application and an affidavit on 6 February 2017.  The father participated in the assessment for the Memorandum and second family report and appeared and participated as a party at each Court event from the date that he filed his original Response on 27 August 2015.  The father at the pre-trial mention hearing on 20 December 2016 also sought leave to file an affidavit of a neighbour for the trial and was granted leave and did file that affidavit.  The father was a party in the trial for a very short time on the first day until he stated that he would not be relying on the evidence or participating in the trial.  His appearance at each Court event and the filing of documents gave the impression that he would participate in the trial although at two pre-trial mention hearings he also protested that he would not participate in the trial unless he was observed by the family consultant with the children. The father took the opportunity to be interviewed by the family consultant for the second report.  By pre-trial Court orders the father was aware that the matter was listed for a three-day trial but that if he failed to appear on the first day of the trial, the mother’s application would proceed by way of an undefended hearing.  At no stage did the father notify the Court, the mother or the Independent Children’s Lawyer that he would not pursue his Amended Response and he unilaterally emailed a Case Outline document to Chambers before the trial purportedly in accordance with procedural orders which had been made for the filing and service of Case Outlines.

8. The evidence about the respective financial circumstances of the parties is limited but as counsel for the mother emphasised, the father proposed in his Amended Response that he was in a position to provide “top tier education along with a permanent family home, not rental accommodation” .  The father also makes references to orders for costs in his Case Outline and suggests that he has “been procured to do works” for “dignatories” including the former Prime Minister.  The father appears to be in employment with the financial capacity to support the children’s educational needs.

9. The mother is working part-time and lives in rented accommodation.  Her current financial circumstances are not in evidence.  She is a protected person under the intervention order and it is not surprising that she has felt obliged to pay for legal representation for each Court event. 

1. The husband was put on notice at the pre-trial mention hearing on 29 March 2017 that an application for costs would be made in the event that the trial remain listed but proceeded on an undefended basis.  This was in the context of the Independent Children’s Lawyer proposing to proceed on an undefended basis on that day of the pre-trial mention but the solicitor for the wife indicating that he was not in a position to proceed that day.  The father despite his protests appeared equivocal about his participation in the trial and was urged to obtain further legal advice.

2. Although self-represented, the father is familiar with applications for costs having been ordered to pay the mother’s costs fixed at $2,000 by Johns J on 1 March 2016 when his contempt application against the mother was dismissed.

3. Neither party to the proceedings have been in receipt of assistance by way of legal aid. The conduct of the father in failing to serve and file his Case Outline document or his own affidavit but filing an affidavit of a neighbour has led to confusion about whether he proposed to participate in the trial.  This has been in the context of his pre-trial Court attendances where he protested that the process was unfair unless he was interviewed with the children. 

4. The father did not withdraw his Amended Response seeking final orders but he did not ultimately challenge the wife’s case.  He has however been wholly unsuccessful.

5. I have carefully considered the fact that the father consistently maintained that he would not participate in the proceedings if he was not observed by the family consultant with the children. However he sought that opportunity and was provided with an opportunity to be assessed by the family consultant. He attended every Court event including the pre-trial mention on 29 March 2017 and filed an Amended Response to Initiating Application and Affidavit from a neighbour on 6 February 2017.  The father also at times indicated that he intended to obtain further legal representation but did not do so. As a result of his conduct the mother and the Independent Children’s Lawyer prepared for a three-day trial in difficult circumstances.  The appearance of the Independent Children’s Lawyer on the first day of the trial would have been unnecessary if the father had made his intentions clear and had not filed the further affidavit, because the matter ultimately proceeded undefended.

6. I am satisfied in all the circumstances that it is appropriate to exercise my discretion to make an order that the father pay the costs for the brief fee incurred by the Independent Children’s Lawyer for the first day of trial. 

7. It was necessary for counsel for the mother to attend to pursue the mother’s undefended application on the first day of trial. In all the circumstances I am satisfied that it is appropriate to exercise my discretion to make an order that the father pay the party/party costs of two days for trial preparation incurred by the mother. The costs are to be assessed by the Registrar pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 30 June 2017.

Associate: 

Date:  30 June 2017

Annexure A

The applicant mother relied upon the following documents:

• Further Amended Initiating Application filed 7 October

• Trial Affidavit of the mother filed 7 October 2016 which included reference to her affidavit filed 24 June 2015

• Affidavit of the mother filed 26 October 2016

• Family Report prepared by Ms D dated 21 November 2016

• Family Report prepared by Ms D dated 8 March 2017

• Child Responsive Program Memorandum prepared by Ms D dated 5 October 2015

The Independent Children’s Lawyer relied upon the following documents:

• Family Report prepared by Ms D dated 21 November 2016

• Family Report prepared by Ms D dated 8 March 2017

• Child Responsive Program Memorandum prepared by Ms D dated 5 October 2015

• Psychiatric reports of the mother and father prepared by Dr O dated 1 December 2015

• Affidavit of Ms E filed 19 August 2015 (annexing report dated 19 March 2015)

• Affidavit of Ms E filed 27 May 2016 (annexing report dated 12 February 2016)