CURTIS & WOOTTEN
[2017] FamCA 445
•27 June 2017
FAMILY COURT OF AUSTRALIA
| CURTIS & WOOTTEN | [2017] FamCA 445 |
FAMILY LAW – CHILDREN – Best Interests – Where it has been agreed the children should reside primarily with the mother – Where there was serious family violence perpetrated by the father – Where the father has been convicted of assault of the mother and firearms offences – Where the children were exposed to family violence – Where the father’s drug use is of concern – Where the father poses an unacceptable risk of harm to the children if not supervised – Consideration of the effect of long term supervision orders – Where the children have been exposed to significant parental conflict – Where the children are reluctant to spend time with the father – Where the Family Reporter is of the opinion the children should spend no time with the father – Where it is not in the best interests of the children to spend no time with the father – Orders made for the mother to have sole parental responsibility – Orders made for the father to spend supervised time with the children until the children attain the age of fourteen.
FAMILY LAW – COSTS – Independent Children’s Lawyer’s costs – Where consideration of general principles – Where appropriate that order be made for parties to pay equally the Independent Children’s Lawyer’s costs.
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 61DA, 117 |
| De Roma & De Roma [2013] FamCA 566 W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 |
| APPLICANT: | Mr Curtis |
| RESPONDENT: | Ms Wootten |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Dalton |
| FILE NUMBER: | PAC | 3146 | of | 2014 | |
| DATE DELIVERED: | 27 June 2017 | ||||
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 8, 9 and 10 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cairns |
| SOLICITOR FOR THE APPLICANT: | Mason Mia & Associates Solicitors & Advocates |
| COUNSEL FOR THE RESPONDENT: | Ms Spain |
| SOLICITOR FOR THE RESPONDENT: | Kenny Spring Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dalton of Lee Dalton & Associates |
Orders
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children B born … 2008 and C born … 2010.
That the children live with the mother.
Each party must:
(a)contact a Contact Centre nominated by the Independent Children’s Lawyer (“the Contact Centre”) within 7 days of the Independent Children’s Lawyer nominating that Contact Centre and arrange an appointment for assessment of suitability for supervision of the time the children spend with the Father;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
(f)If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Order 5 then the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days’ written notice to the other party and to the Court.
The Contact Centre may recommend the parties, or either of them, participate in a program or programs, and in that event, the Independent Children’s Lawyer may re-list the matter for mention on 7 days’ written notice to the other parties and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father is to have contact with the children for a period of not less than two hours per month on the first Saturday of each month at times nominated by the Contact Centre, and such contact is to occur at the Contact Centre.
The Mother must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre, and on each occasion, promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 6, then contact shall occur at the times that are offered by the Contact Centre.
The time the children spend with the Father under Order 6 is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.
The Father must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time his time with the children is to end.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
Provided always that upon each child attaining the age of 14 years, or earlier if as agreed by the mother and father in writing, the requirement for supervision of that child’s time with the father shall cease and thereafter the child shall spend time with the father as reasonably agreed between the mother and father in writing and the mother and father shall have due regard to the child’s reasonably expressed wishes as to time with the father.
That notwithstanding the previous orders the children shall spend time further or other with the father as agreed between the mother and father in writing such writing to include SMS or email communication.
That the mother shall do all things necessary to authorise and direct the children’s schools to provide to the father at his request copies of school reports and school photo order forms.
That the mother shall promptly inform the father of any medical emergency in relation to the children and the event of such emergency requiring hospital admission inform the father of details so as to facilitate his attendance at such hospital to visit the child or children.
That the parties shall keep each other informed of their telephone contact numbers both landline (if applicable) and mobile and of any change thereto within 24 hours of such change.
Independent Children’s Lawyer’s Costs
That the application for costs by the Independent Children’s Lawyer be dismissed.
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 Curtis & Wootten 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 PARRAMATTA |
FILE NUMBER: PAC 3146 of 2014
| Mr Curtis |
Applicant
And
| Ms Wootten |
Respondent
REASONS FOR JUDGMENT
The mother and father’s relationship ended in conflict with the father’s final assault on the mother on 16 May 2013 during an argument in the presence of the children during which the father assaulted the mother, grabbed the mother by the hair, pushed her head into a wall then grabbed her by the neck and dragged her to the ground. The Police attended the home.
The father admitted the assault to the police. The police on investigation then located in a shed on the property unregistered firearms, a silencer, seven bullet proof vests, amphetamine powder, sets of scales, 1163 grams of cannabis and 2000-3000 rounds of ammunition. The father refused to tell police where he had sourced the prohibited items.
The present matter for determination concerns final parenting arrangements for the parties’ two children B and C who are presently aged nine and almost seven respectively.
The applicant father and respondent mother are in agreement that the children should continue to reside primarily with the mother with the two significant issues for determination at trial being firstly whether there should be an order for equal shared parental responsibility or such responsibility should vest solely in the mother and secondly what time the children should spend with the father and on what conditions.
Context
The father is aged 33 and the mother 31.
The subject children are the only children of the parties’ relationship. The mother has a child from a former relationship, that child, D, at the time of trial was 13 years of age.
The parties commenced cohabitation in 2006 and after what the mother asserts was a tumultuous relationship characterised by acts of domestic violence perpetrated by the father.
The parties separated in mid-2013.
The proceedings
The father commenced proceedings in the Federal Circuit Court of Australia in July 2014. On 26 July 2014 an Independent Children’s Lawyer (‘ICL’) was appointed for the children. Subsequently, proceedings were transferred to this Court in late November 2014.
On 26 May 2015 the preparation of a Family Report was ordered and both parties were ordered to undertake random urinalysis for drug screening when requested by the ICL.
On 6 October 2015 interim parenting orders were made by consent that, in summary, provided for:
a)the children are to live with the mother,
b)the children to spend time with the father each alternate weekend for two hours at the Interrelate Contact Centre at E Town, NSW.
The Family Report was released to the parties on 10 June 2016 and shortly thereafter trial directions were made to facilitate the matter proceeding to a final hearing allocating three days for trial commencing 8 February 2017.
The hearing concluded on 10 February 2017 with written submissions to be provided by the parties including submissions by the ICL as to costs by no later than 10 March 2017. Judgment was reserved from that date.
The trial documents
At trial the father relied upon the following documents:
a)his Amended Initiating Application filed 18 August 2016;
b)his Financial Statement filed 6 September 2016;
c)his trial affidavit filed 22 August 2016;
d)affidavit by Ms F filed 7 December 2016;
e)affidavit by Ms G filed 7 December 2016.
At trial the mother relied upon:
a)her Amended Response filed 21 October 2016;
b)her Financial Statement filed 19 April 2017;
c)her trial affidavit filed 21 October 2016;
d)affidavit by Mr H, the mother’s new husband, filed 5 December 2016.
Background
The parties’ cohabitation commenced in rented accommodation in J Town, NSW.
The mother became aware of the father’s tendency to be volatile and violent when shortly after the commencement of cohabitation he said to her “if you leave I’m going to set fire to your shit”.
Thereafter the relationship was characterised by verbal and physical violence towards the mother in the presence of the children and towards the children.
The parties’ early relationship was otherwise overshadowed by the father’s use of marijuana and abuse of alcohol until about 2010 at which time he commenced to use recreational drugs including amphetamines and ice.
The mother gives a detailed history of the father’s physically abusive and aggressive behaviour during their cohabitation over the next three years including threatening the mother with a loaded shotgun. Much of her evidence is not challenged in cross-examination of the mother on behalf of the father.
By mid-May 2012 the father’s conduct was such that the mother left the home with the children to stay at her parents’ home. Thereafter the father sent to the mother numerous insulting and demeaning SMS messages including threats to kill her and to chop her and her parents up.
A short time after this separation the mother returned to their home to find the father present in bed with another woman. The father knocked the mother to the ground and started punching her. She was punched to the back and side of her head numerous times with the punches leaving noticeable lumps swelling and bruising. The father called the mother “pathetic” as she left the premises.
Subsequently the father destroyed various household items in their home including their bed with an axe.
For reasons only known to the mother she returned to cohabit with the father but his behaviour continued unabated. On one occasion he assaulted the mother in the presence of his own mother saying: “I’m going to kill this cunt one day”.
Otherwise he was abusive, offensive, controlling, jealous, possessive and threatening to the mother often in the presence of the children and to the children including referring to the child D in the child’s presence as a “brain dead fuck”. He threatened the mother with harm to her family members.
By mid-March 2013 his conduct had not abated with the father on one occasion telling the mother “the only way you will leave here is in a body bag”. He accused her of infidelity and isolated her from her family. He sent her numerous offensive SMS messages. He threatened her with harm if she went to the police. He continued his physical abuse, on one occasion assaulting the mother whilst she was holding the youngest child.
The father for his part sought generally to deny any acts of violence save for the incident at separation. In oral evidence he conceded hitting the mother about the head with a full Pepsi bottle (and taking her to hospital), threatening her with an axe, and consuming alcohol to excess. He asserts that conflict between he and the mother was fuelled by their mutual use of the drug “ice”.
The mother rejected the father’ assertion of her drug use immediately prior to separation. She conceded the use of the drug ice on occasions some two years before separation. The mother’s concession is consistent with her admission to the Family Reporter and the observations in evidence of family friends Ms G and her daughter Ms F who also observed the father’s paranoia and abusive conduct towards the mother. Yet the mother appropriately acknowledges that her use of the drug contributed to conflict in the household as did her issues as to her own anger management for which she had sought assistance.
The father’s evidence was at times self-serving and avoidant. He sought to portray himself as the victim. He demonstrated little insight into the need to acknowledge his aberrant conduct and sought to blame the mother. Whilst evidence is indicative of both parties using drugs at times in their relationship the father’s conduct is accepted as being as described by him to the local Mental Health Service (I Service) shortly after separation: Exh “I”.
Where there is a conflict in evidence provided by the parties, the wife’s evidence is to be preferred.
The separation and thereafter
The relationship ended in conflict with the father’s final assault on the mother on 16 May 2013 as referred to above. The children’s distress at this incident is evident from the child D’s contemporaneous report to his teacher: Exh “V”.
The mother later attended her doctor who reported soreness to the back of her neck and requested an x-ray to rule out any fracture.
An interim Apprehended Violence Order (‘AVO’) was granted protecting the mother with a final Order being granted on 15 May 2014 for a period of 12 months. It was thereafter extended on an interim basis until 14 December 2015 at which time, more than two years after separation, the application was not pursued and the interim AVO was withdrawn.
Pending determination of the criminal charges resulting from his arrest on 16 May 2013 the father was charged on 8 January 2014 with breaching the AVO interim order by continuing to send SMS messages to the mother.
The father was convicted on 15 May 2014 of assault, possession of unregistered firearms (2), and possession of ammunition. On conviction he was placed on a 12 month bond supervised by NSW Probation and Parole. He was further convicted of breach of the AVO and placed on a 12 month bond supervised by NSW Probation and Parole.
After separation and by arrangement with the mother the father commenced to see the children at the Interrelate Contact Centre at E Town, usually about each fortnight. Interim orders in October 2015 confirmed this arrangement.
The father after separation attended on the local Mental Health Service (I Service: Exh “I”). He reported in July 2013 being depressed for years and being on ice for some months. He had used cannabis on a daily basis since the age of 16. He disclosed that he had commenced using methamphetamine about early 2012 spending about $600.00 - $700.00 per week on that habit. This use he said led to him becoming easily agitated, have less impulse control and increasing violence and aggression towards others. He became more aggressive towards his wife. He reported “setting to the furniture with an axe over a period of 4 hours” and later “threatening her with a loaded shotgun”. By late August the father had failed to attend further appointments and was discharged from the service. Surprisingly, having regard to his evidence, he makes no assertion as to the mother’s conduct or involvement in drugs.
About 12 months later, at the time the father commenced proceedings, he saw Mr K, Psychologist in L Town NSW. His story changed: Exh “J”. He accused the mother of also using ice (although conceding she is a good mother) and of attacking him. He had, he said, entered a plea of guilty only so he could see the children. He spoke of his humiliation and injustice suffered.
Yet in his oral evidence when confronted with allegations as to his aberrant behaviour including threatening to kill the mother and harm her family the father’s response was to assert that he maybe could have but could not recall because he was affected by drugs. He conceded that he was using ice in the last 12 - 18 months of the relationship and was supplying friends with cannabis. He has retained knives in his possession but had sold his bow and arrows.
Sometime after separation from the mother the father formed a relationship with a Ms M. It appears from police reports: Exh “H” that this relationship is also characterised by violence, property damage, conflict and abuse of alcohol. Indeed, the father sought an AVO protecting him from Ms M: Exh “F”. A child was born of this relationship in 2016.
The father denies any ongoing relationship with Ms M save that they “co‑parent” their child N and that he may stay overnight on occasion. He denied to the Family Reporter (Exh “E”) any use of alcohol since early 2015 notwithstanding the Police observations of the conflict between he and Ms M later in 2015.
The Mother’ circumstances and proposals
The mother has now re-partnered, her new husband Mr H is aged 36. He has two children from his former relationship now aged nearly 10 and seven. His children reside with him in his and the mother’s combined household.
Mr H is presently in full-time employment as a public servant where he has been for nine years. He provides financial assistance for the mother and her children. His children attend at the same school as the subject children. His home provides ample accommodation for the household.
He is supportive of the mother’s application and has observed nothing adverse about the mother’s conduct. He has no relationship with the father.
The mother is presently in casual employment earning about $20,000.00 per annum employed by a community organisation in J Town. She earns a modest part-time salary which is supplemented by the receipt of some government benefits and modest child support for the child D.
The maternal grandmother, who is in employment, resides in J Town but is able to assist as required.
At trial the mother was receiving no child support from the father in relation to the subject children. The father’s child-support liability for the period 1 August 2015 to 31 August 2016 was assessed at $472.00 per month. His current assessment for the period 1 September 2016 to 30 November 2017 is $475.00 per month. As at the date of trial the father had made only three payments of child support since 2014. The father’s child-support debt as at 15 September 2016 was $8,389.00.
The eldest child B is in Year three at the local public school and the youngest child C is in Year one at the same school.
The mother asserts that she is still fearful of the father and apprehends that he will continue to denigrate her to the children. Yet she describes their present communication as “pleasant”.
The mother concedes that the Children’s Contact Centre notes give a picture of the children having a warm engagement with the father in supervision. She proposes that supervision continue so as to keep the children safe.
The father’s circumstances and proposals
The father presently resides in his mother’s rented home in J Town NSW. The home comprises three bedrooms and has “all the usual amenities”. He proposes to continue to live with his mother, who in that event would be inevitably engaged with the children.
Yet notwithstanding her availability to give evidence in support of the father she did not. It is to be inferred that her evidence may not have assisted the father: Jones v Dunkel (1959) 101 CLR 298. This is particularly so, given the tenor of what she communicated to the family report writer as follows:
34.[Ms Curtis], paternal grandmother, said she supports [the father’s] application to the Court. She said she has noticed a change in [the father], stating, “he has started not being so angry with me” and “seems more placid.” [The grandmother] stated that [the father] has been “learning to take responsibility for what he’s done, whereas before he didn’t. Before, he was a bit aggro. Him and I didn’t have a really good relationship. I give him credit; he is sticking it out whereas a lot of fathers wouldn’t.” [The grandmother] maintained that [the father] had always been a good father and he is capable of looking after the children.
35.[The grandmother] reported that she had previously had “big concerns” about both parent’s drug use, stating, “[The mother] came to me and said they were on ‘ice’ and that my son had introduced them to it.” She claimed that both parties had been responsible for their high degree of conflict, declaring “[the mother] would start and [the father] would start and then they would nag at each other.”
36.[The grandmother] said she had been diagnosed with bipolar disorder but does not suffer with mania. She said she is medicated on a mood stabiliser, which appears to be helpful, and attends counselling once a week. She maintained that the children would not be at risk of harm in any way by coming into contact with her. [The grandmother] said she is willing to act as a supervisor for [the father’s] time with the children, if the Court thinks this is required.
It is the father’s proposal that should the children be able to spend overnight time with him they will each have their own bedroom and he will sleep in the lounge room on a mattress. He has prepared the bedroom accommodation for the children. He proposes initial unsupervised weekly day time with the children for four hours then increasing gradually to eight hours, then 9.00 am Saturday to 12.00 noon Sunday fortnightly increasing to 9.00 am Saturday to 5.00 pm Sunday each fortnight within six months of orders. Thereafter he seeks alternate weekends during school term from Friday afternoon to Monday morning, half school holidays and time on special occasions such as at Christmas, on Father’s Day and birthdays and for electronic communication. He otherwise seeks a raft of special issues orders: Exh “Z”.
The father is presently in contract employment to a tradesman. He earns $600.00 - $800.00 per week. He asserts that he is not able to afford the cost of TAFE attendance to obtain his trade qualifications.
The Family Reporter
A Child Responsive Program Memorandum was prepared following interviews in March 2015: Exh “E”. The exposure of the children to family violence within the home was most evident from the child B not wishing to see the father outside the Contact Centre and being aware of his mother’s fear of the father.
Yet the children in observation were seen to have a warm relationship with the father, notwithstanding the father’s assertions that the mother was attempting to alienate the children from him and she was manipulating the system.
The father conceded that he had used ice “three or four times of late” and asserted that it would not affect the children as they were not in his care at the time. The father denied regular use of alcohol, a contention at odds with the police observations of his relationship with Ms M. The father denied any anger management problems putting his conduct down to his drug use and “her lying and cheating”. He made various allegations as to the mother’s use of drugs and abuse of alcohol.
The mother complained to the family reporter about the father’s conduct, his verbal abuse of the children and his belittling her to the children. The children she said were fearful of the father. She was wary of the father’s lack of emotional control and regarded him as paranoid and controlling.
The Family Report 9 June 2016
The Family Reporter prepared a Family Report dated 9 June 2016: Exh “D”.
The report identified the issues as follows:
•The most appropriate arrangements for parental responsibility;
•The live with and spend time with arrangements, including whether or not the children would be at unacceptable risk of harm in the father’s care;
•Allegations that both parents have been physically violent and verbally abusive towards the other;
•Allegations that both parents have abused drugs and/or alcohol;
•The impact of the parental conflict on the children
The report was prepared some three years after separation. The father reported what he had done to achieve behavioural changes:
11.[The father] maintained that he had made significant changes to his behaviour but that [the mother] would be unaware of this because they do not communicate and he deliberately stays away from her, despite there being no current ADVO, so as to ensure there is no conflict. [The father] said, for example, that he had taken the “Magistrate’s advice” to “get back into your trade” and he acknowledged that working full time is helpful to his emotional well-being. [The father] reported that he had completed an anger management program through [R Group] in [E Town], which had taught him “emotion control.” He said he had also been booked into a six week program called “positive parenting” and hoped to complete the “parents not partners” program. [The father] said he had experienced “a bit of a breakdown” due to grief over the end of his relationship with [the mother] so he had also attended six sessions of counselling with “[Mr P] at [J Town] Hospital Community Health.”
An improvement in the father’s emotional regulation is evidenced by the ongoing Contact Centre notes, referred to by the family reporter in the following terms:
66.Records obtained under subpoena from the contact centre at [E Town] (Sleeve 16), although yet to be tested in Court, appear to show that, initially, [the father] experienced some difficulty regulating his emotions when he experienced resistance from the children and or when they commented about him being violent towards [the mother]. For example, on 15 February 2015, [the father] was observed by workers to become upset when [B] had refused to remain for the visit, attributing this to the paternal grandmother having said something that had upset him. Workers noted that [the father] had told [B] not to listen to the maternal family and that [B] cried upon being returned to [the mother], while [C] had comforted [the father] when she saw him crying. At the same time, contact centre workers noted that [the father] appeared to be taking up their advice to better regulate his emotions and to use redirection back to play when the children said something he experienced as negative. These records appeared to indicate that [the father’s] capacity to do this had generally improved over the period the family had been attending upon the centre..
The mother expressed reservations as to the children’s relationship with the father in the following terms:
29.[The mother] said that the children have a complex relationship with [the father]. She said that they generally experience him as “fun” at the contact centre and report that he appears to have changed somewhat, but at the same time, they indicate that he places emotional pressure on them. [The mother] claimed that [C] had returned home from one visit and said “Dad says he doesn’t hate you, he still loves you.” She said that [B] remains fearful of upsetting [the father] and making him angry. [The mother] said that [B] has, unprompted, said he wants to move house so that [the father] does not know where they live and she further claimed that, if [B] sees a car that looks like [the father’s], he panics. She said [B] is fearful for both his own safety and her safety. [The mother] claimed that a teacher from [Q School] had unilaterally approached her out of concern for her well-being because [B] had been fearful that something bad would happen to her.
The mother also expressed her own concerns:
31.[The mother] said that, if the Court determines that the children should spend unsupervised time with [the father], it will significantly negatively impact her emotional and mental health because she would “live in fear” that something bad would happen or that [the father] would not return the children. [The mother] stated, “I am physically ill just having to know that I am still in the same building as him. I just want the children to be safe.”
The children were interviewed in the context of the report.
The child B was reported variously as saying:
48.[B] initially said that he did not want to say anything about his live with and spend time with preferences because he is concerned that [the father] will become angry. [B] said that [the father] is “nice” to him and [C] at the contact centre but he ([B]) is concerned that this is not how [the father] usually acts. [B] stated, “he can be good for two hours but not for longer. I don’t mind if he knows I said that, because I think he knows that too.” [B] reported that, during a visit at the contact centre, [the father] had thrown a packet of biscuits, in anger, when [B] had declined to stay for the whole visit.
49.[B] claimed he had seen [the father] be violent on “lots” of occasions in the past. He said he had seen [the father] put a knife to [the mother’s] neck, adding, “and since it was too bad to see, I just ran into my room.” [B] reported that he had felt “upset” about witnessing [the father] being violent and, when asked if he is fearful of [the father], [B] stated, “Yep, sometimes. Mum is scaredest [sic] because she saw things every day.”
50.[B] said that [C] is closer to [the father] than him and he stated that, “she is normally the one playing with him.” He said he likes it when [the father] reads books with them but he feels that [the father] gives more attention to [C] than to him. [B] said he would be frightened to spend time with [the father] outside of the contact centre but thought that [C] would likely want to do so. [B] said he would be worried about [C’s] safety if she spent unsupervised time with [the father].
51.[B] reported that [the father] views [the mother] negatively, which hurts his feelings. He claimed that he had been in the car with [the mother] when [the father] had driven by and had “pulled a rude finger up at my Mum.”
52.[B] declared that, “if the Judge wants to make a decision, I want to live with Mum.” He said he would prefer not to have to spend time with [the father] but fears that, if he does not, [the father] will get angry. When asked how would feel if he spent an alternate weekend with [the father], [B] was observed to whisper “bad” but said he would feel the most upset if required to live in a week about arrangement.. He said that he would feel “scared and a little bit angry” if made to spend unsupervised time with his father. When asked how he thought [the mother] would feel if he spent time with [the father], [B] stated, “she would be crying; he is such a bad person.”
There is little doubt that the child has been exposed to family violence and is enmeshed in the parental conflict.
The child C, nearly six at the time of interview was reported as saying:
55.When asked about [the father], [C] referred to him as “[father’s Christian name]” and stated, “He’s very bad. When we first met him, he took me and [B] and Mummy was crying.” Despite this statement, [C] said that her time with [the father] at the contact centre is “good” and that “he’s fun to play with there.” However, when asked if she likes seeing [the father], C she said she does not but was unable to say why.
56.[C] said that she wants to live with [the mother]. When asked if she would like to spend time with [the father] at his house, [C’s] eyes were observed to widen and she stated, “No way”. When asked if it is her or [the mother] who would be most worried about her seeing [the father] at his house, [C] stated “Mummy.” [C] said, however, that she would not want to go to [the father’s] house, even if [the mother] was unconcerned about this.
Yet observation of the children with the father revealed a warm and appropriately engaged relationship.
The family reporter in evaluation relevantly concluded, inter alia, as follows:
[The father] and [the mother] have not engaged in meaningful communication since 2013. [The father] appeared willing to communicate with [the mother] but [the mother] did not appear willing to do so. [The mother] presented (as did the rest of the adults in the maternal family) as extremely hostile towards [the father] and it appeared that [the mother] is of the view that the children would derive limited benefit from a relationship with him. [The father] presented as somewhat hostile towards [the mother] and the maternal family but acknowledged that [the mother] is important to the children. [The father] spoke about accepting [Mr H] being a part of the children’s lives, but the impression given was that [the father] is still struggling to integrate this. It would be important that [the father] is able to tolerate it if the children speak positively about [Mr H]. It is noted that both the paternal and maternal families are claiming that they continued to be harassed by members of the other side of the family which indicates that the parents’ current and likely future capacity to communicate and cooperate is poor.
As to the children and the father the family reporter said:
71.[B] and [C’s] relationship with [the father] appeared to be somewhat conflicted. [B] said that he is fearful of [the father] because he has seen him be violent in the past. [B] acknowledged that [Mr Curtis] appears to have made some changes but he indicated that he does not trust that [the father] can sustain his positive interactions with the children for a longer period. [B] presented as somewhat ambivalent towards [the father] during the playroom observation, vacillating between ignoring him, provoking him and enjoying interacting with him. Information contained in the contact centre records obtained under subpoena, appears to indicate that [B] has behaved in a similar manner towards [the father] during the visits at times, although, most of his interactions with [the father] appeared to have been positive, including seeking physical affection from him. Based on the information available to this assessment, it appears that [B] desires a safe and warm relationship with [the father] but is wary about whether about [the father] can provide this.
72.[C] reported that she enjoy spending time with [Mr Curtis] but, at the same time, intimated that he is a person to be feared and that she would prefer not to spend time with him. This is consistent with what was reported by the adults in the maternal family. If [Mr Curtis] had been physically violent in the manner claimed by [Ms Wootten], [C] may not recall this and thus her fears related to [Mr Curtis] may be based only on what she has been told had occurred, or from sensing genuine fear in [Ms Wootten] or a combination of both factors. The impression given from the playroom observation and from the contact centre records is that [C] enjoys interacting with [Mr Curtis] and would like him to be a safe person with whom she can enjoy a father/daughter relationship.
73.It is possible that the children, particularly [B] (who, because of his age, would have better recall of any violence [Mr Curtis] had perpetrated), are fearful of [Mr Curtis] because of having experienced him as violent and/or irritable towards them or [Ms Wootten]. It is also possible, as maintained by [Mr Curtis], that the children have been influenced by [Ms Wootten] to view him as someone to fear. Based on the information available to this assessment, including [Mr Curtis’] own admissions about his past irritability, it appeared likely that both factors have contributed to the children holding some fear and/or apprehension about spending unsupervised time with [Mr Curtis]. With regard to any influence [Ms Wootten] may have had on the children’s apparent wariness of [Mr Curtis], this may have been a deliberate attempt to influence the children to view [Mr Curtis] negatively because of her hostility towards him but it could also be due to her genuine fear for the children or her own safety, which the children would sense.
Concerningly, the family reporter concluded:
75.[Ms Wootten’s] account of [Mr Curtis’] violence towards her and the children would be consistent with the coercive/ controlling type of violence. This is a pattern of coercion and control where the perpetrator seeks to induce fear and submission in their family members by threats to harm or by actual harm. In addition they may seek to control a range of domains of family life, including financial, parenting, and social domains, as was alleged by [Ms Wootten]. The coercive/controlling type of violence is characterised by a high level of possessiveness. Controlling and violent behaviours may escalate when the perpetrator perceives a threat of loss of control or of abandonment by their family member. Perpetrators of coercive controlling type violence are at higher risk of continuing to perpetrate violence and/or intimidation post separation and are the most resistant to treatment. Individuals who have perpetrated coercive and controlling violence and other behaviours may experience difficulties in interacting with their children, including the use of coercive discipline which may escalate to the physical abuse of the child or swinging from a permissive parenting style to an authoritarian style, which is confusing for the children. Such individuals may have difficulty in allowing the children to hold different views from their own regarding the other parent or other matters.
And then said:
76.It is positive that [Mr Curtis] had sought treatment to assist him to manage his irritability and that he said he planned to complete further psycho educational programs related to parenting. If [Ms Curtis’] claim that [Mr Curtis’] capacity to manage his anger has veracity, this is also positive, as would be the contact centre supervisor’s observation of an apparent improvement in [Mr Curtis’] capacity to do this. The Court would need to determine, however, whether this has been to a degree sufficient enough that [Mr Curtis] will be able to regulate his emotion proactively when interacting with the children…
The family reporter recommended that the children live with the mother. As to the children’s time with the father, recommendations were in the following terms:
80.If the Court determines that the children are not at unacceptable risk of harm in [Mr Curtis’] care, they would likely benefit from spending unsupervised time with him, which would allow them to experience that he desires a relationship with them. In addition, the children would benefit from the opportunity to develop a relationship with their half sibling, once he or she is born. Given that, however they have come to be wary of [Mr Curtis], this must be overcome in a child focused and sensitive manner, it is recommended that they very gradually increase the amount of time they spend with him, commencing with a two hour period outside the contact centre, to demonstrate to them that they are safe and that [Mr Curtis] will return them to [Ms Wootten] care, as per the Court Orders. This time could be increased to a half day, and then a full day, before moving to an initial overnight and an alternate weekend.
81.Given that the children have an established relationship with [Mr Curtis], if the Court finds that the children are at unacceptable risk of harm in his care, it would likely benefit the children to continue to spend time with [Mr Curtis] on approximately four to six occasions per year, at the contact centre. This would allow them to maintain a familiarity with him for purposes of identity formation. If this time caused the children to become distressed, however, the negative impact of this on their well-being and development must be prioritised over the benefits of them maintaining a relationship with him.
82.It appears that [Mr Curtis] and [Ms Wootten] have no capacity to communicate or cooperate and there does not appear any likelihood that this will improve in the future. Thus, it is recommended that [Ms Wootten] hold parental responsibility for the children. It is recommended that any communication that is required should occur via the contact centre.
83.If the Court determines that the children can spend unsupervised time with [Mr Curtis], it is recommended that all changeovers occur via the contact centre. This is to protect the children from experiencing anxiety regarding [Ms Wootten’s] safety, as well as to protect the children from likely exposure to ongoing parental conflict.
The Family Reporter’s Oral Evidence
In oral evidence the family reporter was asked as to the nature of the relationship between the father and the children. She responded:
…I think it is a conflicted relationship. I think there are some – there’s some evidence of warmth, some evidence of attachment to their father….
Particularly [B], more so than [C]. I think that there is warmth there. There is attachment, but at the same time there’s wariness and there is – appears to be – some apprehension at times – and particularly in relation to the parental conflict...
…because there’s frequent references even in the last 12 months of those notes to discussion about matters to do with allegations made about each party by the other and the children raising that and how that’s responded to and sometimes things like – [C] saying something and [B], I think, being hypervigilant to shut that conversation down. That tells me that the issues that we’re discussing the court matters relating to the parental conflict are forefront in the children’s minds.
In her oral evidence the family reporter considered that the child B’s “hypervigilance” could stem from ongoing discussions in the mother’s household. As to the child C, considering her age at the time of separation, her reservations about the father were most likely from discussions in the mother’s household.
As to long term ongoing supervision of their time with the father the family reporter said:
I have concerns actually about the fact that the children appear from that material both sets of material, to be – however – whatever the court determines about the allegations made by either party that these children are under incredible emotional pressure from the parental equivalent to the point where conflict to the point where I think it seriously needs to be considered whether they cease contact with one parent and given that they live with [Ms Wootten] that that might need to be [Mr Curtis].
Because there does not appear to be any improvement in the parental conflict whatsoever after – and I’ve got serious concerns about the level of anxiety the children are experiencing and I don’t see, unless there’s been evidence to the court presented differently, that there’s any likelihood of that parental conflict improving. So in that context, you know, to answer your question about whether supervision is detrimental, well, it’s very difficult. I mean, I’m questioning whether any contact at all – whether contact – let me put it this way: ceasing contact might be the least detrimental alternative in this particular parental climate in which these children live.
The family reporter continued and said:
I could see that there would be possibly explanations but, the consistent presentation over the time of the children vacillating between having positive interactions, possibly, maybe probably, being talked – things being talked about in mum’s household to set the children up to see the father as someone to be feared, plus [Mr Curtis’] own reactions to that, which are often extremely unhelpful and would show that he’s having difficulty regulating emotion – now, it may well be the case that he has been placed under a high degree of an unusual – like, lengthy court process. It’s a horrible situation but I can’t see how that will significantly change in the future if orders for time are made. That’s my concern. Is how will the children’s experience of this parental conflict be different once this court is no longer involved.
She considered the children to be under emotional pressure from the parental conflict that needed to end. The children present in part as they expect the mother to want them to in the overshadowing parental conflict. The family reporter said the mother is not open at all to holding a different view of Mr Curtis with therapy for the mother being unlikely to help.
The children have positive interactions with the father and the limitation of their time with him may lead to the children later seeking him out. They would experience identity issues if they had no relationship with their biological parent. Yet concerns were held by the family reporter as to the father’s inability to regulate his emotions. Flashes of such were evident from the Contact Centre notes in the early period of supervised time.
In Earles & Highsmith [2016] FamCA 1012 at [212] the Expert Clinical Psychiatrist in the matter made the following general observations as to medium to long term supervision of parental time:
…there’s a profound loss involved in – in the – the degree of restriction to a child’s time with any parent.
My concern is that, if there is to be longer-term supervision like what I’m suggesting, till the child is 14, in my experience it’s not good developmentally for a child to be – for the frequency and intensity to be a mismatch with the role. And in practice, when the role is supervised, it’s – it’s a – it’s a role of a – of a very important but it’s about acknowledgment and symbolic awareness and a mutual knowing so that, when the child reaches an appropriate age, if the child chooses, that relationship can be enriched.
It’s not an – it’s not an attachment relationship because it’s supervised, and it can get very distorted and overheated when it’s too frequent. So if there was a build-up towards unsupervised time, then perhaps more frequent is appropriate. If it’s going to be supervised for medium to long term, I – I – in my view, monthly is better. It’s going to be looked forward to by the child; it’s going to be valued by the child; it’s going to be very significant for the child; but, if they’re playing sport on that weekend, they only miss one out of four, not one out of two, and if it is – and it becomes what it’s meant to be, which is a regular connection with a person of fundamental importance to the child but who is not currently caring for the child.
The family reporter was concerned that the father downplayed his violence in the relationship and said:
Because in trying to predict the likelihood of future violence or irritability, the ability to take full responsibility for your behaviour and also to understand the impact on the victim is a protective factor. It’s a marker for risk. So, the more you’re able to take responsibility, to understand the impact on the victim, including child witnesses, the less likely you are to perpetrate future violence.
The family violence in the father’s post separation relationship was a matter of concern for the family reporter.
The family reporter had reservations as to the paternal grandmother being a suitable supervisor stating “she would not be psychologically strong enough” and indeed no evidence was adduced from her.
In the context of the parties living in a country town the family reporter opined:
…I’ve said in my report that if the children do spend time or really if they don’t, the parents should never into contact again if that’s possible. I think that they trigger each other off and I can’t see that that’s going to change much. So – and the children, I think, would be wary of that. So, for example, if I’ve understood your Honour correctly, I couldn’t recommend that both parents be at the same sporting ground at the same time, for example. If there was unsupervised time, there would need to be one parent only there, and that includes all the family members. It’s too volatile. And I don’t think, for example, for [Mr Curtis] that he would handle that very well. He may well have made some process in his ability to regulate emotion, but I wouldn’t say it’s so great that he wouldn’t be able to be able to be triggered, and his claim is that he has been – this is my word, but mocked at times by the other parties. So concerns about how changeovers would occur as well, your Honour. I mean, I – it’s a hassle for both parties to have to go to – leave town where they live to go to [E Town] to do changeovers, but, you know, if you were thinking of doing changeovers at the school, well, the other party’s children go to the school, so it’s really tricky as to how to keep the parents apart.
As to a “no time” order the family reporter was of the view:
Well, that that – that’s the least detrimental alternative given that I think the parental conflict remains high and the children appear to be experiencing anxiety irrespective of the claim and counterclaim of each parent about how they’ve arrived at that position.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that 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. Final orders as to the question of parental responsibility, the children’s primary living circumstances with the mother and time with the father have been made.
The discrete issue falls to be determined by a consideration of the children’s best interests.
Best Interests
The Primary Considerations: s60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
a)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
The two primary considerations themselves in this matter are significantly determinative of the present applications.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children remain in the primary care of the mother in a settled and supportive circumstance in the context of her new relationship. It is quite apparent that a continuation of such is meaningful for the children moving forward.
As to the father, with whom the children have an abstract relationship in the long term confines of a contact centre, the question of a meaningful relationship moving forward is unclear. The father minimises the impact of his violent behaviour during the relationship on the mother and children, yet it is clear that such behaviour and concerns as to it have primacy in the views of the mother and children. His oral evidence sought to be self-serving and exculpatory. There is a significant ongoing reservation as to the father’s emotional regulation.
There is little prospect of the parental relationship improving from its present significantly conflicted state with virtually no communication. Cooperative parenting in this matter is only an altruistic illusion.
Long term supervision without the means to an end is contraindicated and indeed fraught with difficulty: see Gorman & Huffman and Anor [2016] FamCAFC 174.
The options as to the father’s ongoing relationship with the children are limited. Ongoing therapeutic intervention has the likelihood of further exposing these children to parental conflict. There are significant reservations as to the father’s past conduct and his failure to accept significant responsibility for such. His oral evidence was concerning in that it was self-serving, sought to be exculpatory and indeed blame the mother for much of his aberrant violence.
There is no clear pathway forward to these children having a significant and meaningful relationship with the father and this is reflected in the family reporter’s view that a no time order is in the best interests of both children.
Yet there are concerns as to impact on the children of the father being absent from their lives as referred to above. This consideration is indicative of ongoing supervision of time until the children are of a much more mature age.
Section 60CC(2)(b) – need to protect
This factor is in itself substantially dealt with in the previous consideration.
The children should as best as can be managed be isolated from any prospective conflict and risk of adverse behaviour of the father. It is clear that the father’s need to continue to blame the mother for his conduct will only see the children in the future exposed to ongoing criticism of her from him.
The children have expressed fears and reservations as to any “uncontrolled” time with the father.
The continuation of their relationship with him has the very real prospect of exposing the children to psychological if not physical harm at his hands. As such there is an unacceptable risk of harm to the children in the event that they spend unsupervised time with the father.
Yet the ongoing long term imposition of supervision is not in the children’s best interests where no end is in sight.
The Full Court has more recently commented on long term supervision orders in Slater and Light [2013] FamCAFC 4:
38. While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.
39. May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review:
8.Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund)…
10. In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence...his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant...
40. Boland J commented on the general undesirability of long term supervised contact and similarly expressed May J’s concern about orders providing for their own review:
119. The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892; (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
120. His Honour’s reasons omit consideration of the family consultant’s oral evidence, the recommendations of the ICL, or discussion of the practical long term effects on the children of an indefinite order for supervised contact in a children’s contact centre, nor do the orders reflect his Honour’s findings that the children should spend more and more time with the father as “they get older”. Thus, I am satisfied this complaint has merit.
The mother supports the children’s relationship with the father continuing. She seeks ongoing supervision. Such an arrangement should then present to the children a relationship that is not an “attachment” relationship but at least a relationship with someone significant in their lives: See Earles & Highsmith above.
This addresses the protective concerns and gives the father a presence in the children’s lives that recognises the children’s reluctance for uncontrolled time with the father.
The Additional Considerations:
Section 60CC(3) sets out the additional considerations:
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;
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);
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
to communicate with the child;
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;
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;
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;
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;
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;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
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;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
The children’s views have been referred to above. They are ambivalent and concerning in that they reflect reticence about their father that has stemmed from the father’s conduct, particularly as to the older child. They, by inference, seek a relationship that occurs in a safe environment.
The children reside with the mother who has at all times been their primary carer. The father makes no criticism of her ability to care properly for the children, a concession enhanced by the mother’s new relationship. As to the father, this has been discussed in detail above, and is fraught with concerns until the children achieve a maturity to be able to deal with the parental conflict.
The children otherwise have a good relationship with the mother’s new partner and the maternal grandmother.
By reason of circumstances post separation the father has had little opportunity to engage in the children’s lives.
The mother has provided financially for the children since separation with little or no assistance from the father. At present there is little prospect of the father making a proper contribution to maintaining the children, although he asserts he is now in employment but earning a modest income as a tradesman’s assistant.
The mother proposes substantially that the interim arrangements in place continue with the father’s time with the children being supervised. The father’s proposal would see a significant and contraindicated, for the reasons set out above, change in the children’s circumstances.
The mother has the capacity to meet the children’s needs, as conceded by the father. The father’s capacity is overshadowed by his conduct and behaviour and the risks that such present to the children.
There is no significant practical difficulty or expense in implementing either parties’ proposals save that there may be some difficulty and expense associated with extended supervised time over a number of years particularly with low cost/free contact centres.. The mother seeks orders that will maintain the children’s relationship with the father until such time as they are able to make some decisions for themselves.
The child B, a young boy now aged nine, has it appears reflected on his memories of his father’s conduct and seeks any time to be in a controlled circumstance. There is a strong inference that his views are affected by his mother’s conflict with and her own views of the father. Yet objectively it is otherwise readily apparent that the child’s views sheet home to the child’s memories and perceptions mostly as to the father’s conduct and otherwise to the conduct of both parents during cohabitation. In a few years the child will commence high school and developing maturity will perhaps enable him to re-consider his relationship with the father.
The youngest child C was not yet three at the time of her parents’ separation. Her independent recollection of events during cohabitation must be doubted. Yet she has been exposed to post separation conflict, ongoing litigation, counselling intervention, and intervention for the purposes of these proceedings. It is to be expected that she is well aware of the issues. At trial she was not yet seven and it is some years until she will have the maturity to reflect upon the relationship with her father. Until then she is in a caring and nurturing circumstance with her mother.
Both parents have demonstrated a less than satisfactory attitude to the children and their responsibilities as parents. They have mutually exposed the children to domestic violence and drug taking and the father has perpetrated significant family violence on the mother in the presence of all children including D. It can only be hoped that the mother’s present living arrangements settle in for the long term.
Family violence has overshadowed this relationship in the circumstances referred to in detail above. The father has perpetrated abhorrent family violence during the relationship. He has inflicted physical injury on the mother, threatened her and her family’s life. He has without regard exposed the children to his violence and aberrant conduct for which he seeks to avoid or diminish his responsibility.
It is preferable to make orders that end this parenting litigation. Whether they do is only a matter of conjecture.
Overview
It is agreed that the children should live primarily with the mother.
In circumstances where the father has perpetrated family violence and in considering the children’s best interests it is clear that the presumption as to equal shared parental responsibility should not apply. The mother will hold sole parental responsibility for the children.
The mother seeks that the children’s relationships with the father remain in a circumscribed manner under supervision. A consideration of the primary considerations leads to this conclusion which is reinforced by the additional considerations in s 60CC(3).
The Independent Children’s Lawyer sought supervised time for identification purposes, presumably only about four times per year. Such limited time would lead to some reservations as to the children maintaining a relationship with the father sufficient to allow them to make an election at age 14.
It is in the children’s best interests that their time with the father be limited to monthly supervised time only until each child attains the age of 14. At that time the child’s time with the father will be as agreed and hopefully reflect the reasonably expressed wishes of the children.
Orders will be made accordingly.
Costs of the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks an order that the parties pay equally the Independent Children’s Lawyer’s costs of $16,199.67.
The law as to costs is well settled. Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The relevant considerations in relation to an order for costs are set out in s 117(2A).
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the Independent Children’s Lawyer, because that terminology is susceptible to ambiguity. As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:
a)The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
b)The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s Lawyer, who is not a party.
The law is well settled that there is power under the section, subject to other statutory provision referred to below, to make orders for or against the Independent Children’s Lawyer and the Court may make such order as to costs of the Independent Children’s Lawyer and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section 117(4) provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Both parties are privately funded in these proceedings.
The father has an income earning capacity at trial of about $800.00 per week. He lives with his mother in her rented home. He has no assets of any significance. His mother has paid in part legal fees for him of about $70,000.00, he says he owes her that sum and he owes $24,000.00 to his solicitors. He has a further dependent child. He asserts he will suffer financial hardship if an order for costs was made. He has no available funds.
The mother also asserts financial hardship. She has paid legal fees of about $56,000.00. The home she owns with her partner is substantially encumbered. She has the primary care of her three children. She works part time earning about $17,500.00 per annum. Her expenses otherwise are met by her partner. She has no available funds. Such a costs order will represent over a year’s income for her.
Whilst the father was “unsuccessful” in the proceedings in failing to obtain an order for time with the children as sought by him there were many issues that required judicial determination to get to the ultimate result.
Whilst it is the usual course for there to be an order for the parties or one of them to pay the Independent Children’s Lawyer’s costs there is evidence satisfactory to the Court to establish that both parties will suffer financial hardship if such an order is made in these proceedings.
In all of the circumstances there will be no orders for costs in favour of the Independent Children’s Lawyer.
I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 June 2017.
Associate:
Date: 27 June 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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