Deering & Jennett
[2023] FedCFamC2F 647
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deering & Jennett [2023] FedCFamC2F 647
File number(s): NCC 4708 of 2020 Judgment of: JUDGE BETTS Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – parenting – final orders – one child, aged 5 years – where the mother seeks a “no time” order – where the father has perpetrated coercive and controlling family violence against the mother – where the father and child have an established, loving relationship – where the father has acknowledged his bad behaviour and taken active steps to address his issues and improve his functioning – where it would be ‘overkill’ for the Court to sever the relationship between the child and father so as to protect the child from potential risk of psychological harm – best interest of child. Legislation: Family Law Act 1975 Cases cited: U & U (2002) 211 CLR 238 Division: Division 2 Family Law Number of paragraphs: 276 Date of last submission/s: 15 March 2023 Date of hearing: 13, 14 and 15 March 2023 Place: Town B Counsel for the Applicant: Mr Bithrey Solicitors for the Applicant: Cooney Harvey Doney Solicitors for the Respondent: Lindeman Lawyers ORDERS
NCC 4708 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DEERING
Applicant
AND: MR JENNETT
Respondent
order made by:
JUDGE BETTS
DATE OF ORDER:
5 MAY 2023
THE COURT ORDERS THAT:
1.All prior parenting orders and injunctions be discharged.
2.By consent, the Mother has sole parental responsibility for the child, X born in 2017 (“X”). Within fourteen (14) days of making any major long-term decision for X, the Mother is to communicate the decision to the Father in writing, which may include emails, text messages or an agreed parenting App.
3.By consent, that X live with the Mother.
4.The Father is to spend time with X as agreed in writing between the parents, and failing agreement as follows:
For the remainder of 2023:
(a)each third weekend from 9am until 3pm Saturday, and from 9am until 3pm Sunday, commencing on a weekend to be nominated by the Father to the Mother in writing. To avoid doubt, this order is intended to operate during school terms and during school holiday periods and is never to include the Mother’s Day weekend;
From 1 January 2024 until 31 December 2024:
(b)each alternate weekend from 9am until 6pm Saturday, and from 9am until 6pm Sunday, provided that the Father is able to facilitate this time, failing which the time will occur each third weekend. To avoid doubt, this order is intended to operate during school terms and during school holiday periods and is never to include the Mother’s Day weekend;
In 2025:
(c)each alternate weekend from 9am Saturday until 3pm Sunday provided the Father is able to facilitate this time, failing which the time will occur each third weekend. To avoid doubt, this order is intended to operate during school terms and during school holiday periods and is never to include the Mother’s Day weekend;
In 2026:
(d)each alternate weekend from after school Friday until 4pm Sunday. To avoid doubt, this order is intended to operate during school terms and during school holiday periods and is never to include the Mother’s Day weekend;
From 1 January 2027 onwards:
(e)each alternate weekend from after school Friday until commencement of school Monday. To avoid doubt, this order is intended to operate during school terms and during school holiday periods and is never to include the Mother’s Day weekend;
HOLIDAYS & SPECIAL DAYS:
5.From 2024 onwards:
(a)the Mother may suspend two (2) of the Father’s weekends with X during school holiday periods each year. The Mother must give the Father at least three (3) months written notice of the suspension(s) and the Father is to have make-up time with X as soon as possible thereafter;
(b)if as a result of these orders, a parent does not have X in their care on X’s birthday, that parent is to spend time with X that day from after school to 6pm if a school day, or from 12 noon to 5pm if a non-school day;
(c)if as a result of these orders, a parent does not have X in their care on that parent’s birthday, that parent is to spend time with X that day from after school to 6pm if a school day, or from 12 noon to 5pm if a non-school day;
(d)if as a result of these orders, a parent does not have X in their care on Christmas Day, that parent is to spend time with X on Boxing Day from 9am to 5pm.
6.If the Father’s usual weekend with X does not fall on the Father’s Day weekend, the Father is to spend time with X on Father’s Day:
(a)2023 - from 9am to 3pm;
(b)2024, 2025 & 2026 – from 9am to 6pm;
(c)2027 onwards – from 9am to commencement of school Monday.
CHANGEOVERS
7.All changeovers are to occur at a public place in the Town C region nominated by the Mother to the Father in writing, or at X’s school where appropriate. The parents may have a third party known to the child attend changeover on their behalf.
COMMUNICATION
8.From 2025, each parent may communicate with X by phone (or electronic communication, if agreed in writing) once per week when X is in the other parent’s care. If at any reasonable time X expresses the desire to contact the other parent, the parent who has X will facilitate such contact.
RESTRAINTS
9.The Father is restrained from:
(a)denigrating the Mother, any member of the Mother’s family or any member of the Mother’s household in the hearing or presence of X, or enabling X to remain in the hearing or presence of any other person engaging in such denigration;
(b)perpetrating “family violence” in the presence or hearing of X or knowingly exposing X to any acts of “family violence” as defined in s4AB of the Family Law Act (copy of which will be attached);
(c)consuming alcohol or illicit drugs, or being in any way affected by alcohol or illicit drugs, while X is in the Father’s care;
(d)attending X’s school except for the purposes of Father’s Day events or other events which the Father has been specifically invited by the school to attend, for instance parent/teacher interviews. The Father is to notify the Mother in writing at least 48 hours in advance of any proposed attendance by him at the school and if the Mother is present, the Father is not to approach the Mother;
(e)removing X from school, or any other person or organisation with whom the Mother has placed her, except in accordance with these orders or as agreed in writing with the Mother. The Mother is at liberty to give a copy of these orders to any school, person or organisation with whom she may place X.
10.Except in cases of genuine emergency, any communication from the Father to the Mother for the purposes of implementing this order, is to occur in writing.
11.It is a condition of the Father’s time with X that the Father is to:
(a)for a period of three (3) years following the making of this order, provide correspondence to the Mother every three (3) months from his treating psychologist confirming the status of his mental health treatment (NOTING that the Father consents to this order);
(b)comply with any mental health treatment plans as provided to him by his GP from time to time (NOTING that the Father effectively consents to this order);
(c)notify the Mother within 24 hours in the event that:
(i)the Father is charged with any criminal offence including providing details of all charges and any upcoming Court dates;
(ii)the Father is the applicant or respondent to any application for an ADVO (except where the other party to the proceedings is the Mother or a Police Officer representing the Mother);
(iii)the Father is admitted to any mental health facility for treatment.
12.For the purposes of order 11(b) and 11(c)(iii), the Father is to keep the Mother advised in writing as to the identity of his treating GP and is to provide a copy of this order to his treating GP. This order expressly authorises the Father’s treating GP and any mental health facility treating the Father to advise the Mother of any admission by the Father to any mental health facility and the anticipated duration of such admission. The Mother is at liberty to provide a copy of this order to the Father’s treating GP or to any such mental health facility.
AUTHORITY
13.This order authorises the Father to receive school reports, photograph order forms and for the Father to attend parent/teacher interviews though not with the Mother present unless the Mother agrees in writing to this occurring. The Mother is to provide copy of this order to X’s school.
14.This order authorises the Father (at his expense) to obtain medical information from X’s treating medical practitioners in relation to X’s health and wellbeing. The Mother is to keep the Father advised in writing of X’s treating GP and give that GP a copy of this order. The Father is at liberty to provide X’s GP with a copy of this order.
15.The proceedings are removed from the list of Active Pending Cases.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Deering & Jennett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION:
These proceedings concern the future parenting of a young girl, X. X was born in 2017 and is presently five (5) years old. She attends kindergarten at Town C School in the New South Wales Region D; she is transitioning into year 1 in 2024.
The parties to these proceedings are X’s parents Ms Deering whom I will refer to as “the mother”, and Mr Jennett, whom I will refer to as “the father”.
The parties’ relationship commenced in 2016, and they had a somewhat tumultuous relationship which seems to have come to an end at the beginning of August 2020, although there was an earlier separation before then.
X is the only child of the relationship. The father has no other children. The mother has two (2) older daughters, E born in 2007 and F born in 2009. During the period of the parties’ cohabitation they all lived together as a family.
This is a difficult case. It is agreed that the father has perpetrated coercive and controlling family violence against the mother during the course of the relationship and during periods of separation. That is to say, the mother has been a victim of his violence. The father has also behaved in a similar manner towards other previous partners. He has a long history of mental health vulnerabilities and issues, complicated by alcohol and at times, drug abuse, which can lead him to behave in emotionally dysregulated ways and, in turn, to act aggressively and coercively.
The mother’s case is that the Court should be making a “no-time” order for X. That is to say, the relationship between the father and X should effectively be severed. In the witness box the mother retreated somewhat from that position, saying that she would be happy to continue with supervised time which X enjoyed. In closing submissions her position had nonetheless “hardened”, her counsel Mr Bithrey maintaining that it was still a “no-time” case notwithstanding the mother’s concessions.
Essentially, the mother’s case is that continuing a relationship places X at unacceptable risk of psychological harm by reason of the father’s issues, to which I have referred, as well as broader questions concerning what is said to be a lack of, or inadequate, parenting capacity on his part.
The father’s case is that he wants to be able to spend unsupervised time with X - essentially consisting of weekends. Ultimately he seeks to have her for three (3) weekends out of each month from after school Friday until before school Monday; he proposes to get there by way of graduated steps, and he agrees to various injunctions and other protective orders.
Complicating matters somewhat is that, since orders made by a Senior Judicial Registrar on 27 September 2021, the father has been having supervised time with X for two (2) hours per fortnight. This time has been consistent; it has at times involved the father making what I would describe as a Herculean effort to get back to Region D from Town G where he was working, arriving at something like 2.30 am Saturday morning so as to spend time with X, go to sleep and then return to Town G again on the Sunday.
The father has since then changed his employment to the H Employer near City J in Queensland, where he works two (2) weeks on and one (1) week off and intends to keep doing so for the foreseeable future because he has legal fees to pay associated with these proceedings.
Since 27 September 2021, the father has effectively been maintaining a relationship with X from a distance. He has undertaken various parenting courses and, in particular, some behavioural change programs, and he has undertaken what he would say is significant rehabilitative work to improve his overall functioning and improve his parenting. He freely expressed shame and regret about his acts of past family violence and appeared quite adamant in his desire to change, and to continue to change, for the better. He has undergone various interventions, which I will refer to.
Essentially, his case is that he wants the opportunity to play a meaningful role in X’s life.
X knows her father; she loves him. I have read the supervised contact centre notes which were tendered as part of the exhibits in the proceedings; they reflect a loving and positive relationship between father and daughter, and there is nothing particularly noteworthy about those records save for one particular visit that occurred in April 2021 when the father became upset at a visit, and I will refer to that event later.
The Court finds itself at a crossroads. It is well-established that long-term supervision orders are not usually in the best interests of a child, and, in my view, X is no different in that sense. It is inappropriate to continue a supervision arrangement for her long-term.
As a general statement, supervision should be seen as a “stepping stone” to the supervised parent spending quality time with the child of an unsupervised nature. Sometimes it is not to be, and Courts are obliged to make “no-time” orders. The mother says that this is one such case. The father vehemently disagrees.
The impact of the Court’s decision in this matter will have a significant effect on X. It would be fair to say that there are risks in both courses of action proposed by the parents, and I have had to work carefully through the evidence in this case to arrive at what I consider to be an outcome in X’s best interests.
FINAL HEARING & MATERIAL RELIED UPON:
This matter proceeded to a final hearing before me at Town B on 13, 14 and 15 March 2023.
Mr Bithrey of counsel appeared on behalf of the mother. Mr Lindeman, solicitor, appeared on behalf of the father.
The mother relied upon her Case Outline Document filed 10 March 2023 and her trial affidavit filed 17 February 2023. The father relied upon his Case Outline Document filed 10 March 2023 and his trial affidavit filed 17 February 2023.
In the course of the hearing, the parties tendered various exhibits to which I will refer to the extent they are relevant.
I had the benefit of hearing oral evidence from each of the parties, from the Family Report writer Ms K, and from a Mr L the father’s treating psychologist.
The case changed in the course of the hearing. The father quickly abandoned his proposal for equal shared parental responsibility, which was an entirely appropriate concession on his part. He conceded that the mother should have sole parental responsibility, which is a matter that I regard as being to his credit in terms of his recognition and understanding as to the impact of his past behaviours as well as the issues going forward in terms of communication. The father also retreated from his initial proposal in terms of spending time with X and ultimately tendered as exhibit 6 a proposed order which provided for the weekend time that I have referred to earlier.
I should record that throughout most of the proceedings the father had been seeking some form of equal time order, which in my view was unrealistic and not ever going to be in X’s best interests given the circumstances of this case.
By way of brief observations about the parties’ evidence, I would observe that I can well understand having seen the mother in the witness box as to why she tends to see the proverbial glass as “half empty” when it comes to the father rather than as “half full”. There is little doubt that the father has put her through a number of traumatic, stressful and difficult experiences for which he expresses significant shame and remorse.
I am also satisfied from seeing the mother in the witness box that she did the best she could to recall various events, and I do not consider that she has attempted to mislead the Court in any respect in terms of her evidence. I am satisfied that she is a robust person, and although she seeks an order for there to be “no-time” between X and the father, she does acknowledge that X loves the father, and I am satisfied that she would abide orders of the Court which provided for time to occur, particularly in the event that the Court puts in place appropriate safeguards.
In terms of the father, as a general statement I was similarly impressed with him. He made frank and rather candid admissions to some behaviour that can only be described as “woeful” on his part.
To the extent the parties disagree about some of the detail concerning past events, I do not consider that either of them were being deliberately dishonest or attempting to mislead the Court. I do not entirely accept all of the evidence of each party in terms of past family violence allegations because there are some inconsistencies, but in the end I do not consider that such differences make any real, or have any real, impact in terms of the outcome.
CHRONOLOGY OF EVENTS:
I now turn to the relevant events that the parents experienced and to their life together.
The father was born in 1977, and he is presently 46 years old. He has worked in a number of different manual jobs over the years, including starting out as a builder and in more recent times working in management for M Employer as well as working as a factory worker. He is a hardworking man, and there is no suggestion that he is anything but a hardworking man.
The mother was born in 1978 and is presently 44 years old. She is a qualified health care professional; she operates her own business at Town C.
As I have indicated, the parties started their relationship in 2016, although they weren’t living together at that time. The cohabitation date is unclear, but it is common ground that the mother and children moved into the father’s home at Town C either before X was born or perhaps a few months after. I do not need to make any specific finding. The difference is irrelevant.
It is a feature of the parents’ relationship that at times each of them used illicit drugs. The father in particular used illicit drugs and the mother also used illicit drugs. Both parties also drank alcohol on occasion. In the father’s case his alcohol consumption is problematic, as I will explain.
The father was actively involved as a parent not just to X, but also to the mother’s older children E and F.
I accept the father’s evidence that he was a “hands on” parent who would help by cooking dinner, help E and F with their homework, and take them to sport and the like. Part of the issue was that the mother was “on call” working as a health care professional, and it was necessary that she had to rely on the father to help care for the children from time to time. I make no criticism of anyone about that, it is simply a feature of the parents’ relationship.
The parties married in 2018. Regrettably, it seems that some months thereafter their relationship spiralled to some extent, and the father perpetrated various acts of family violence to which I will now turn.
Various incidents of family violence / coercive behaviour:
The mother’s affidavit deposes that in January 2019 she accused the father of procrastinating in relation to some roof repairs which were necessary as a result of storm damage. She says the father became extremely angry, erupting into a fit of rage that afternoon when their visitors had left the home.
The mother says that the father was yelling at the mother that she, F and E could just “fuck right off”. She says the father was waving his arms around, clenching his fists, going red in the face, grinding his jaw and shaking. Afterwards, she says that she told F and E to keep X with them in their room as she was concerned for their safety. According to the mother, the father did not engage in any physical violence on this occasion. When the father left the home some time later, the mother says that she, F, E and X all left the home as well, staying with a friend for a week.
The father denies this event. He seems to accept that there was some discussion about him not fixing the roof at that time, but, essentially, he denies that the event occurred.
I prefer the mother’s evidence on this point, but in so doing I am not persuaded or of the view that the father was deliberately setting out to mislead the Court.
The second act of family violence referred to by the mother occurred in April of 2019. She says that the parties were out that night celebrating an event at the Town N Club and that they had a disagreement. She says that the father became angry and abruptly left without her and without X, leaving the mother in the venue, crying. She says that about 10 minutes later she went out to her car, and that the father – who was leaning against her car door – took X from her arms and walked down the street with her.
The mother says she did not want to further aggravate the father, so she waited a few minutes before getting into her car and then going searching for him and for X. She says she drove around Town N and back to the property where they lived at O Street a couple of times. The second time, she saw the father exit a vehicle and walk down the driveway to the house with X.
She says that the parents didn’t speak later that night and that the next day herself, E, F and X went to say with a friend for a week, and that afterwards they stayed in a shed at the business for another week or two.
The father accepts that there was an altercation at the Town N Club. His version of events is that it was the mother who abruptly stood up and left the table, taking X with her. He says that he followed them out after a short period of time and found them at their car, that the mother was very upset:
…so I contacted a friend, and had them pick up [X] and I and take us home.
The father was cross-examined about this event at the hearing and admitted that his affidavit was erroneous. He accepted without equivocation that he had grabbed X off the mother, which was not set out in his affidavit. He said that this was an error on his part, and he freely admitted to what the mother was accusing him of.
I am a little troubled by this evidence because the father should have been much more careful in his affidavit than he apparently was. However to be fair to him, he did make admissions as to what was alleged against him.
In any event, the parties subsequently undertook some marriage counselling around May of 2019, and it appears that the father also had some personal counselling with U Counsellors as well. It was around this time that the father also started seeing Mr L, to whom I will refer a little more later.
In December of 2019 the father again engaged in acts of family violence of a coercive or threatening nature.
In particular, the mother says that the father became violent towards herself and X while she was sitting on the couch with X and they had been having a disagreement. She says that, again, the father’s behaviour escalated into what she describes as “a rage”. She says he was yelling at her and didn’t give her an opportunity to speak. She says that X became scared and started clinging to her, so she continued to hold X in her arms for comfort and safety.
The mother said that at one point the father struck at her while she was holding onto X and that he did not make contact with her, but instead knocked all the saucepans off the wall. She says that he also kicked X’s cot and broke it. She says she retreated to the back corner of the room with X in her arms and sat on the bed, cradling her, and that she was very frightened and completely silent.
She said that the father was flailing his arms around and pointing aggressively and that she simply could not reason with him. He was pacing back and forth and had a red face. She says that he was obstructing the exit, but she did say in an attempt to defuse his rage:
[Mr Jennett], please not in front of [X] –
and:
[Mr Jennett], please, you’re scaring [X], and you’re scaring me.
The mother accepts that she was crying at one point, and she says that after about forty (40) minutes of such behaviour the father eventually got in his car and left. After he left, the Mother saw that X had fallen asleep in her arms. Quite shaken and fearful he would return, she packed a bag and left in the car with X to refuge accommodation. She says that, fortunately, F and E were with their father in Town N that night, although they ended up joining her afterwards in refuge accommodation.
The mother, put shortly, says that the father so frightened her that she genuinely feared for her life.
The father admitted that there had been an argument. He gives some context which, perhaps unsurprisingly, the mother did not give - namely he says that the mother had been out the night before and that she admitted to him that she had taken illicit drugs on that occasion. This by no means excuses family violence, but it does provide some more background context, and I am certainly satisfied that the father became very upset - very angry - at the mother and that he acted in an intimidating way.
The father denied striking the mother, or knocking saucepans or breaking the cot; I accept the father’s evidence about this, although equally I am satisfied that he was, nonetheless, behaving in a manner that was aggressive, coercive and intimidating. I also do not take the view that the mother is in any way misleading the Court in terms of her evidence; I accept that her recollection of this event is different.
The next day, the mother says that the father took X from the business against her wishes. The mother says that she told him that he shouldn’t be taking her and that he responded that he was taking her, saying:
Try and get her and I will fucking smash you.
The mother says she phoned the Police, but they were unable to attend upon the father until several days later, and she quotes a specific Police Event Number … in relation to this event.
The father accepted that he had attended at the mother’s workplace and taken X against the mother’s wishes. I pause there to observe that this was clearly intimidating, coercive behaviour. He was clearly upset and angry, and the mother was at the distinct disadvantage of being in a workplace environment. It was by no means an equal position of power for the parents. The dynamic very much favoured the father.
The father was adamant that he did not ever threaten to “fucking smash” the mother, as she said. Notably, there was no subpoenaed Police record. There is, in fact, no record for this particular event number which was quoted by the mother. The mother said that the absence of that number in the records:
makes no sense to me.
Weighing all of this evidence together, I do not accept that the father threatened to “fucking smash” the mother, but he nonetheless acted in a way that was coercive and controlling.
Father expresses suicidality and is hospitalised:
Later that day the father was sending the mother text messages indicating that he was having suicidal thoughts. He specifically texted the mother asking that E and F attend the O Street property to collect X so that he could speak with them “one last time”.
As will be seen in the evidence, the father has a history of behaving in such a way not just in this relationship, but at other times, and it is something to which he admitted quite candidly and in rather an ashamed manner when he was in the witness box.
The mother was understandably troubled and concerned about the father’s behaviour, and in the circumstances I accept her evidence that she contacted the Police and specifically asked them to undertake a welfare check.
As best I can discern from the evidence before me, including subpoenaed records and various medical reports, it seems that Police attended at the father’s home the next day. X was back with the mother by this stage.
Police found the father agitated, emotional and affected by alcohol; he had written a suicide note. They found a lethal object at the home. Obviously concerned about the father, Police arranged for an Ambulance to take him to the Town N Mental Health Unit, where he was admitted and remained for about five (5) days. The father was at that time prescribed anti‑alcohol medication; he and his medical practitioners clearly recognised that his use of alcohol was problematic.
I should say that alcohol features in a great many of the father’s displays of coercive or controlling behaviour in this case.
I accept the mother’s evidence that she later saw a suicide note when she went to the property herself, as well as seeing the father’s wedding suit laid out in the home.
The father was subsequently released from the Town N Mental Health Unit, but it is quite apparent that he was having ongoing difficulties.
Mother continues to facilitate a relationship between the father and X:
Notably, the mother continued to promote the father’s relationship with X. Perhaps in part this was because she felt coerced - but the father was still spending time with X. Indeed, the father had X overnight on 30 December 2019 and, apparently, had trouble settling her, in the course of which the father became emotional and was again having suicidal thoughts. I should say, however, that no harm came to X on this occasion, and she was returned to her mother.
In January 2020 the parties came to an arrangement whereby the father started seeing X on Monday, Tuesday and Thursday afternoons and some Saturdays while the mother was at work. At that time the father had enrolled in a men’s behavioural change programme known as “Q Program” which was designed to address issues for family violence perpetrators. He was also attending Alcoholics Anonymous.
In addition to seeing X during these weekdays, the father would also see her on some Saturdays when the mother was working. Handovers were generally conducted at the business when this was possible, and at the father’s home when it wasn’t.
By this stage the mother was bringing a witness with her to handovers so that she had somebody there in case of any dispute or difficulty.
The evidence establishes that in January 2020 the father consulted an accredited mental health nurse at his GP’s clinic, one Ms R. There it was recorded that he had been diagnosed with depression, anxiety and alcoholism. He was distressed about the separation with the mother which had occurred in December 2019. He told her that he was, effectively, a “sober alcoholic” from 17 December 2019, and he talked about seeing Ms S, a counsellor at the Alcohol and Other Drug Services, as well as attending Alcoholics Anonymous at Town N.
The father was taking his prescribed medication, as well as undergoing various interventions to try to manage his mental health, including seeing a psychiatrist and a psychotherapist. In short, the father was taking active steps to try to address his fairly significant difficulties.
In the meantime, in March of 2020 the mother moved out of refuge-type accommodation and into her own accommodation at Town C, something more stable.
Further coercive behaviour:
Unfortunately, despite the father being in the midst of undertaking the “Q” programme, he continued to perpetrate family violence against the mother of a coercive nature.
In April 2020, he sent a text to the mother in which he talked about being sorry for what he had become, sorry for what he wasn’t, sorry for frightening the mother and for being:
…such a miserable fuck. I have done Everything I possibly can to make things right. I had broken you and now you have broken me. [X] needs her mum. and dad together maybe you can explain to her one day that her dad did everything he could ti make it right because he trully loves his wife. You new it was going to come to this and so did i hence my constant grief. Kiss my girl tell her het daddy loves her i love you [Ms Deering]. Do not call anyone to help me its to late. You where right.
[Typographical errors reflect the original text.]
The mother was very concerned about the father’s behaviour and, particularly, whether he was contemplating committing suicide - and it seems clear enough that this was the message that the father was intending to convey to her. He said as much in the witness box.
After receiving this message, the mother went to the father’s home with a friend, one Ms T. There the father told the mother that he wanted them to fully reconcile and for the mother to move back into the O Street property (which he owned). The mother responded by saying that she needed to see behavioural change and to build up some trust between them, following which the father threw his wedding ring at her and told her that:
You’re just stringing me along [Ms Deering]. If you’re too gutless to end this relationship now, then I will.
The mother subsequently spoke to Police about this event.
The next day, after hearing from the paternal grandfather who was expressing concerns about the father’s mental health, the mother again went to see the father. She took a friend with her. There the mother asked the father to ring the paternal grandfather to give him some peace of mind about the father’s mental health. Again, during this phone call (to the paternal grandfather) the father implied that he would kill himself, which was hardly what the mother had expected - much less wanted - him to tell his father. She says that the father’s implication was clear because he talked about giving his father:
a birthday present after all.
An ambiguous relationship?
On my reading of the material, the truth is that at this time the (interpersonal) relationship between the parties was somewhat ambiguous. Yes they were separated, and the mother had her own home, but it is clear that there was some sort of ongoing connection between them. It seems that the mother felt pressured or perhaps coerced into trying to keep the relationship going or to try to make it work, perhaps for X’s sake as much as anything else.
The parties went to (couples) counselling. They were having dinner together each week. Each of them was drinking alcohol (at those dinners), and in the father’s case he really should not have been doing so. The father was spending time with X quite regularly, including on weekends, despite his own recent displays of suicidality and suicidal ideations.
In May 2020 the father “completed” the “Q” program, although when I say “completed” I put that in inverted commas because it seems on the evidence that he only attended 4 out of 10 sessions in total. It is also quite apparent from the evidence that his participation in the program and his acceptance of what the programme had to offer him was insufficient or inadequate.
The father stopped attending counselling at U Counsellors the next month, in June 2020, and shortly thereafter the relationship between the parties, such as it was, finally spiralled to its unhappy conclusion.
Final breakdown of the parents’ relationship:
I accept the mother’s evidence that in early August 2020 she made it clear to the father that their relationship was over.
Specifically, on 3 August 2020 she took her friend (Ms S) with her to the father’s house, having her friend wait in another part of the house while she spoke to the father. The mother told the father that the relationship was over, following which he then said he wanted to speak with the girls and say goodbye. He then went up the stairs to talk to them, during which time he was sobbing and crying uncontrollably and saying to the children that it was:
…your mum’s idea. I didn’t want this. I love you both. I am sorry I couldn’t be the man your mum wanted me to be.
The mother told him that that was enough and that they would have to follow through with mediation.
From the evidence in this case, I have little doubt that the mother’s mental position (about the status of the relationship) was very different to the father’s. From the mother’s perspective the relationship was over and probably had been over for a long time. From the father’s perspective the relationship was, or had been ongoing - and he simply wasn’t ready to let go. I do not say this to in any way excuse what the father went on to do, but rather to put into context the reality that the mother had “moved on” from the relationship in a much more healthy way, I might add, than the father had and that the father, clearly, was struggling with his mental health and all other associated difficulties.
Later that week the father was verbally abusive to Ms S. He also rang Ms S’s boyfriend to make negative comments about her. Even though that evidence effectively comes before me in a hearsay way, it certainly is consistent with the overall picture of the evidence.
Father’s mental health declines again & he is hospitalised:
The father must have recognised that his mental health was spiralling, because in August 2020 he went to see his GP, Dr V, who prepared a mental health plan for him. Dr V wrote a report about the father which, effectively, revealed that the father was drinking eight (8) long neck beers per day at that stage, being four (4) during the day and four (4) at night and that he was smoking illicit substances. He told the doctor that he was seeing counsellors. The father’s main problem seems to have been his mental health and the fact that he was unable to get through a day without refuge to alcohol.
Within five (5) days or so of this attendance on the doctor, the father found himself back at the Town N Mental Health Unit. Though initially a voluntary admission, the situation was greatly complicated when the father barricaded himself in a room and fashioned some sort of lethal object. The result was that the nursing staff and doctors effectively had to have him sectioned under the Mental Health Act, as a result of which he then spent a number of days (as an involuntary patient) in the City W hospital. Initially, it seems the father was actively suicidal. He was prescribed an anti-psychotic drug, and encouraged to abstain from alcohol entirely and to again take his medication as had been prescribed to him earlier.
The father, however, rapidly recovered. It seems that the anti-psychotic medication worked well, as did whatever treatment he received, and by about five (5) or so days later he was discharged from hospital.
By this stage the mother had proposed to the father that he spend some limited, but unsupervised, time with X either from:
·8.30 am Saturday to 8.30 am Sunday each week; or
·on alternate weekends from 8.30 am Saturday to 5.30 pm Sunday, together with a Monday and Thursday after-school “dinner” in the off-week.
The father was unhappy with these proposals and considered that he should have been spending more time with X than she was proposing. Given the way the father was functioning at that time, the mother’s proposal would be seen to be generous in the extreme, and it is clearly the case that at that stage the father was in denial about just how serious and profound his problems were.
Father’s coercive behaviour continues:
Regrettably, the father’s coercive behaviour continued.
At a handover in August 2020 – so some two (2) weeks or so after the father had been discharged from hospital – the father was behaving aggressively towards the mother; he would not commit to a return time for X. He was behaving in a coercive way, and the mother again spoke to Police about bringing an ADVO application.
At handover the next day the father attended at the mother’s home with a friend, one Mr Y. The mother had a witness, one Ms T, who was with her on this occasion. The father asked the mother whether X would be going to daycare the next day, and the mother said X would not be going until there was some agreed (contact) arrangements in place. Obviously, the mother was concerned that the father would just “run roughshod” over her, and simply do what he wanted and spend the time with X that he wanted (by picking her up from daycare). I can well understand why the mother wanted there to be something solid in place.
The father responded that if the mother was not going to commit to sending X to daycare then he would be keeping X. He attempted to buckle X back into the car seat to take off with her again. The mother tried to get X out of the car, successfully, although there was some form of fairly “minor”, to be fair, scuffle between them.
The mother got X upstairs to safety in the house. X was, understandably, distressed. Mr Y came up and apparently criticised the mother for talking over the top of the father, which was probably very unhelpful and reflected a tone-deaf response to the true dynamics in this case.
But, more troublingly, the father had gotten himself so worked up – so emotionally dysregulated – that he punched the windscreen of his car, he tells me three (3) times, the end result of which was that he smashed his car windscreen. Logically, I think I can take judicial notice of the fact that windscreens are not designed to smash easily, and I can only infer from this that the father was in something approaching a rage.
Apprehended Violence Order is made to protect the mother:
The end result is that Police finally decided to act on the mother’s complaints, and in late 2020 they took out a Provisional Apprehended Domestic Violence Order to protect her from the father. The order included a “no-contact” provision subject to the family law exceptions, namely that the father could contact the mother through a lawyer, or as ordered by a Court, as agreed in writing or to attend Court-approved counselling, mediation and/or conciliation.
The mother was by now no doubt, concerned about the father’s mental health and about the escalating and somewhat unpredictable patterns of coercive behaviour on his part. Nonetheless, she still provided X to him in September 2020 for a supervised visit, his uncle acting as supervisor.
Father is still acting coercively:
The next day, the father went to the mother’s daughter E’s workplace to talk to her about the (family law) situation. The mother was unhappy about that - rightly so – and complained about it to him.
Whatever the father’s intentions, it is simply the case that he should not have been going to E’s workplace; she was herself only a child. She was in a work environment. Whether the father realised it or not, his attempts to initiate conversations with E were coercive and were totally inappropriate.
Moreover, on 14 September 2020 the father told X during a telephone call that he had:
seen her and Mummy walking on Sunday. I have spies.
The mother was naturally and understandably concerned about such remarks, which were again a form of coercion.
Father breaches the AVO & engages in other coercive behaviour:
Thus begins a sequence of breaches of the AVO which, to be fair, are somewhat difficult to reconcile in terms of exact dates and messages. This is because there are various subpoenaed records which do not always entirely seem to match in terms of dates, and the affidavit material of the mother does not descend into particularity in terms of various individual breaches. And I am not being critical of the mother or of the father and their affidavit material – merely observing though that there is some confusion about the exact dates and some of the exact details of charges. Nonetheless, the overall picture is sufficiently clear, and I am not troubled by it.
I begin by observing that in late 2020 the father was charged with breaching the AVO by emailing and phoning the mother contrary to the “no-contact” requirement of the order.
The next day he promptly entered a plea of guilty and was sentenced to a 12 month conditional release order. The AVO at that time was then made in final form, to expire in late 2022. The conditions of that AVO were the same as the interim (or provisional) AVO but, additionally, the father was now restrained from going within 20 metres of the mother’s home or her workplace. The “screws were tightening” as it were.
On 27 September 2020 the mother let the father have X for the day. Again I should record, the time was unsupervised and, again, I should record, in what can only be called a “generous” fashion given the circumstances the mother was in.
The father, I suspect and am indeed satisfied, did not really appreciate the mother’s generosity, and that stage continued to be in a “world of his own” in terms of his complete lack of insight as to his own behaviours and their impact on the mother and potentially on X, as well as the dynamics of the parents’ relationship generally.
On 2 October 2020, the parties agreed that the father would have X on Sunday 4 October from 9 am to 6 pm. Unfortunately, the father again decided to “push the envelope” on 4 October and behave in what can only be called a coercive and entirely inappropriate fashion. Although handover was due to occur at 6 pm, the father emailed the mother at 11.44 am to tell her that he was letting her know that he was going to have X from the upcoming Friday night until the following Monday morning. He concluded by saying:
Can you please confirm in writing before 5 pm this afternoon that you will meet us at [Town N] Police Station this coming Friday at 6 pm.
He was clearly trying to secure the mother’s agreement to seeing X the next weekend, but he did so at a time when he had X in his care and he knew it. The timing was deliberate. He had the position of power. It was coercive behaviour.
The father then sent the mother another message at 5.06 pm, she not having responded in the intervening six (6) hours. By the time of the father’s message the child was due to be returned in 54 minutes’ time. What the father said was this:
Going on your inability to communicate, or compromise or guarantee my daughter adequate time with her father, I think it is only practical if [X] stays with me. I would like to see some evidence that you are getting suitable care for your mental health and addressing your alcohol and [illicit drug] use.
This email was deplorable on the father’s part; it was coercion of the highest order.
What effectively happened next was that the father coerced the mother into meeting her at a park the following day; she had no choice but to go there if she wanted to get X back. She took two witnesses with her who remained hiding and out of sight.
At the park, the mother then had to listen to the father for a number of hours berating her, making complaints and raising various issues that, really, he had no right to raise, particularly given the terms of the AVO. The father was engaging in coercive behaviour, by forcing the mother, in effect, to meet with him in a public place to discuss matters other than matters relating to X.
Over the next few days the father was sending messages which were referring to the relationship, again in breach of the AVO.
The father again made a suicide threat. In my view, he was really struggling to contain himself. He had been phoning the mother as well; he had left a sobbing message saying:
Baby, baby, I love you.
The father sent an email saying to the mother:
When it suits you, [Ms Deering], go on, call the cops it’s easier than facing the truth. Bring the cops on. At least you can tell [X] I died because I love you.
In October the father emailed the mother to say he would respect her wishes, but:
not the Court’s, because I have done nothing wrong but love.
This was clearly a reference to the AVO and to the father’s inability or unwillingness to abide by its conditions, notwithstanding that he had only recently been before a Local Court Magistrate and admitted to a Conditional Release Order.
The upshot of the father’s behaviour was that the mother, sensibly, complained to Police, and the next day they then charged the father with further breaches of the AVO relating to such communication.
The following day the Police apparently identified the mother as being, according to them, “at serious threat” because of the father’s domestic violence. In the circumstances, they referred the mother to the Women’s Domestic Violence Court Advocacy Service for a safety action meeting. I should record that such meetings, apparently, involve bringing together relevant service providers in a local area to develop ways to reduce threats to the safety of a family violence victim and members of the family violence victim’s family. Clearly, third party organisations, not only the Police, were telling the mother that she was at risk from the father, and clearly it was a matter of great concern for the mother that needed to be addressed.
The father emailed the mother again in October, continuing his pattern of breaching the AVO, although this email is a curious one in that he said:
I am sorry for harassing you last week. I found it very hard after spending that time with you and had missed a few days of the new medication I have been prescribed. This, I believe, led me into a very sad, emotional state over a period of days.
I do not excuse the father’s message. I should add that, on any view, it was sent in breach of the AVO and it was entirely inappropriate. It was effectively an apology, not in any way a threatening message.
To his credit, in the witness box the father admitted that the feelings he had, had arisen as a result of him organising the earlier meeting with the mother at the park a week or so before. It is quite obvious, as the father accepted, that he was behaving, in his words, “in a quite selfish” way which was also coercive.
I accept the father's evidence that he was feeling depressed. It does not excuse his actions however.
Further breaches of the AVO were to follow because the father asked various family members and friends to contact the mother to try to arrange for the father to be able to spend time with X again. Some of these people had the temerity to tell the mother that the father had apparently done nothing wrong - which can only have come from him.
The mother was feeling pressured and made to look the “bad guy”, and accordingly she contacted Police. She alleged that the father was harassing her, which I consider was accurate, albeit that he was doing it through third parties.
The end result is that the father was charged with another two (2) counts of breaching the AVO over various days in relation to such behaviour.
Police then applied for an AVO to further “tighten the screws” as it were. The conditions of the AVO now required the father to stay 100 metres away from the mother's home and workplace and the AVO also protected E and F.
Undeterred by involvement of the Police and the Local Court, and even by the fact of being charged with further AVO breaches while on a Conditional Release Order, the father nonetheless went on to continue to behave in ways that were, in my view, coercive.
In late 2020, the mother observed that a sign had been erected in Town C which read “[X] needs her dad.” This was a public reference to X. I think I can take judicial notice of the fact that Town C is a reasonably small rural area but in any event, it was clearly intended that, at the very least, the mother would see the sign.
The mother removed it.
A further such sign was again placed there about one week later. The mother again removed it, while with one of her friends. She says that the friend told her that they “had company” and that when she turned around she saw the father sitting in his stationary vehicle and staring at her.
The mother says that after the father had made eye contact with her, he then drove off.
The father also sent the mother a text in late 2020 which stated:
Dear [Ms Deering], I'm sure you've had a busy day. Was thinking I might have heard from [X] by now. Maybe later. Regards [Mr Jennett].
Both the contact in late 2020 when the sign was being removed, and this text of late 2020, were then the subject of further breach of AVO charges.
I pause here to observe that those two (2) charges were, in fact, dismissed. I have before me as exhibit 12 a transcript of the Local Court proceedings from which it is quite apparent that the learned Magistrate who heard the charges was, to put it simply, very unimpressed with the mother as a witness and did not hesitate to say so in the reasons for dismissing the charges.
The learned Magistrate observed that the mother’s evidence at that hearing had been characterised by a need to gratuitously comment both to bolster her own explanation of every position and proposition and to justify what she had done and that whenever she could, she also vilified the father. The Magistrate considered that, at least at that trial, the mother had “obvious malice” towards the father. Nonetheless, the Magistrate accepted the mother's evidence that the father had apparently driven up to where the mother was. The Magistrate rejected the evidence that the father had apparently deliberately set out to exchange eye contact with the mother, observing that it was a “very brief interaction” and ultimately the Magistrate was not satisfied that the father had in fact “approached” the mother on that occasion (which was an element of the charge).
In relation to the text message of late 2020, the learned Magistrate was satisfied - or more accurately had a reasonable doubt - that the message had been sent in error.
Both charges were dismissed. These matters were not really pursued again before me at trial. It seems, having regard to the learned Magistrate's findings, that they do not assume any particular relevance in this case. I merely record that the charges were dismissed.
Supervised time is trialled:
On 13 February 2021, the parties agreed that the father should spend two (2) hours with X each Saturday, to be supervised by Z Contact Service. This arrangement was implemented.
Final AVO breach:
In early 2021 there was a further event resulting in an allegation that the father had breached the AVO.
There had been significant flooding in Region D and the mother and various others were doing some volunteer work. The father attended at the intersection a few times to drop off water and on one occasion when he attended he asked a third party who was present if he could speak to the mother. The mother saw that the father was there, became upset and shaken and did not want to see him. The father became angry, hitting his car bonnet and swearing before leaving.
Police charged the father with that breach three days later. This is the last breach of the AVO on the evidence before me, at least in terms of any formal charges.
Father takes active steps to address his issues and improve his functioning:
On the evidence, it seems to me that around this time the father had something of a “light bulb moment” - or at least that he realised in a very tangible way that he had to change his life.
He became engaged in the “AC program” run by AN Services. This is an intensive case management program for men which is aimed at engaging domestic violence perpetrators to reduce risks to women and children. As part of that referral the father had to work with a psychologist, adhere to a mental health care plan with his GP, undertake a positive parenting program as well as complete the “AB Program” Men's Behaviour Change Programme. He was initially referred there for an intended six (6) months of assistance but, in fact, the father stayed with the “AC program,” until October of 2022.
The father still had various breach of AVO charges still outstanding and, frankly, a desire not to be sent to prison may have been a significant contributor to his decision to go and attend upon this service. I certainly do not dismiss that possibility. But the point is that he did engage in such programmes.
It is also clear that the father’s legal representatives were considering - and indeed took steps to formally make - an application that the father be dealt with not in the usual criminal way for such breaches, but rather pursuant to the forensic provisions of the relevant New South Wales mental health legislation.
Supervised time ends:
In the meantime, sadly, the father's time with X came to an end in April 2021.
The circumstances are, as I indicate, somewhat sad in that the father became upset on this occasion and was clearly wiping away tears at the end of his supervised visit. This was reported by X back to the mother. Understandably, the mother was not wanting X to be exposed to the father's distress and in such circumstances she considered that his time with X needed to be stopped. She also understood that he was bringing a mental health application in respect of the outstanding AVO breaches and she wanted to know what was happening in terms of the father's mental health. This is entirely understandable given her experience of the father post-separation.
Father’s outstanding AVO breaches are dealt with as a mental health issue:
In mid-2021 following what appears to have been a flurry of drug and alcohol counselling appointments for the father, he was dealt with by the Local Court in respect of the outstanding AVO breaches. A Magistrate determined that such breaches ought to be dealt with pursuant to the forensic mental health legislation, at least in part based on a report of Mr L, psychologist. The Court also imposed a two (2) year final AVO protecting the mother, E and F from the father which contained the same “no-contact” provision subject to the family law exception. There was also the requirement that the father stay 100 metres away from the mother's work or home. This order expires in mid-2023.
Interim hearing & orders:
On 27 September 2021 there was an interim hearing before a Senior Judicial Registrar. The outcome of that hearing is that orders were made for the father to spend supervised time with X at U Counsellors for two (2) hours per fortnight.
I have earlier referred to the fact that the visits between the father and X have been overwhelmingly positive; it common ground and that the interactions between father and daughter reflect a loving relationship. Those visits have been continuing and it is those visits which effectively must come to an end and either:
·the father’s time with X graduate to something more meaningful for X, if it is safe; or
·alternatively that the relationship be severed if I am of the view that it is necessary to do so to avoid the child being at unacceptable risk of harm.
THE LAW:
These are parenting proceedings conducted pursuant to the provisions of Part VII of the Family Law Act 1975 (“the Act”).
As with any parenting proceedings, I am obliged to make an order which is in the “best interests” of the child the subject of the proceedings: s 60CA. Section 60CC prescribes various mandatory best interests considerations - being two “primary” considerations in s 60CC(2) and fourteen (14) “additional” considerations in s 60CC(3).
In the event that these reasons are required to be taken out in writing, I will direct that a copy of those subsections be included here, but I consider it tedious to restate them now in the course of these oral reasons. But suffice to say that I have read and am well aware of the relevant provisions.
Section 60CC
Primary considerations
(2) The primary considerations 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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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
(iii) 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.
Section 60CG requires the Court to consider the risk of family violence and that, to the extent it is possible to do so and consistently with the child's best interests being the paramount consideration, the Court must ensure that any order it makes is consistent with the family violence order and does not expose a person to an unacceptable risk of family violence.
Section 60B of the Act set out objects and principles which underpin the operation of Part VII and I do not propose to repeat those here, but I am well familiar with them.
Parental responsibility is defined in s 61B. Each parent has parental responsibility subject to a court order: s 61C. In terms of the legislation, there is a particular pathway for a Court to follow in the event that an order is made that the parents have equal shared parental responsibility.
When making a parenting order the Court is obliged to apply a presumption that equal shared parental responsibility would be in the child's best interests: s 61DA. That presumption does not, however, apply where a Court has reasonable grounds to believe that a parent has engaged in family violence and in this case the father concedes that he has done so. Thus the presumption does not apply and, in any event, the father acknowledges that the mother ought to have an order for sole parental responsibility which is entirely appropriate in the child's best interests.
In the circumstances there is no need for me to explore further the statutory pathway set out in s 65DAA (which arises where an order is made for equal shared parental responsibility), and in particular the requirement in section 65DAA that the Court consider making an order for equal time.
One last point I should raise in terms of the law is that pursuant to s 68B of the Act, the Court may make such order or grant such injunctions as are considered “appropriate” for the welfare of a child including injunctions for personal protection of the child or of a parent.
BEST INTERESTS FINDINGS IN THIS CASE:
I turn then to the specific best interests findings in this case.
I begin with section 60CC(2)(a) which provides that one of the primary considerations is the benefit to the child having a meaningful relationship with both parents. “Meaningful” in this context is a reference to a relationship that is of meaning and of substance to a child. Meaningful does not mean optimal. Here I am satisfied that the father already has a meaningful relationship with X. I note his significant involvement in her life and particularly the U Counsellors notes from the supervised contact visits I have identified earlier.
I simply add to my earlier observations that it is clear that the child greets the father with great affection, frequently running up and jumping into his arms, that the father and his daughter exchange tender moments together, they do activities together, they read, they joke, they laugh, and on one occasion they grieved together when the father was talking about a dog he had had for many years that had sadly passed away. I am satisfied from reading those notes that there is a warm loving familiarity between the father and X which is meaningful and which potentially is of benefit to her going forward.
I turn then to what is really the nub of this case, namely, the question of whether X needs to be protected from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence in the father's care: s 60CC(2)(b) & s 60CC(2A).
The father has some difficulties which intersect. He has:
·long-standing mental health and personality vulnerabilities;
·which he has had the sad - but not uncommon - habit of self-medicating with alcohol, particularly in the form of alcohol abuse;
·the alcohol in turn can make the father's depression worse; and
·when the father's depression is active the father can much more easily become emotionally dysregulated and behave in abusive, aggressive and coercive manners.
These things are all interlinked. I add into the mix that the father also consumes illicit substances and appears to have done so for a long time.
The father's own childhood was a difficult one. It seems that the paternal grandfather was a perpetrator of family violence against the paternal grandmother and that he was also on occasions violent to the father as well. It seems the father, like many young people, got into difficulty with his mental health from a young age and became dependent, it would seem, on alcohol which he had started drinking by the age of 14 or 15 as well as taking illicit substances (or illicit substances) from a similar age.
I should say here as well that it is not the Court's role in terms of mental health to be putting labels on parents. That is a proper concession made by Mr Bithrey in closing addresses. Labels might be a convenient way for psychiatrists and psychologists to address and deal with conditions experienced by people and perhaps for data collection and statistical purposes as well, and for prognostic and diagnostic considerations, but the Court's role is not to put a label on a parent. Rather the Court is required to determine what is in a child’s best interests and that involves looking at what the effect on the child is, or what the effects on the child might be, of the various behaviours that parents engage in, including such matters as family violence or other behaviours under the influence of drugs or alcohol or other mental health conditions.
I propose to deal with all of the father’s issues collectively and I begin by observing, as I already have, that the father has had a longstanding issue with alcohol and at times illicit substances.
It seems that as early as 2000 or 2001 he had been diagnosed with anxiety and depression after the breakdown of a relationship and it seems from as early as then he had been prescribed antidepressants. Like many people, and particularly men, the father was reluctant to take anti‑depressant medication when it was prescribed to him. It would be fair to say that in the early 2000s and on, the father was inconsistent in seeking help for mental health issues and it is apparent that this is so when one looks at the accompanying relationship history.
I accept the father's evidence that he was working in remote locations and that there were occasions when it was not possible for him to easily access mental health support, but nonetheless, I also consider that he did not really fully appreciate the extent of his issues.
On the evidence before me it seems that the father got into trouble reasonably early in his life as a young man, indeed as a teenager, I should add when under the influence of alcohol. He got into some sort of fight at the age of 17 as a result of which he was given a suspended term of imprisonment, so by definition it was a serious assault.
In 1996 at a New Year's Eve celebration the father, again affected by alcohol, got into another physical fight. He also damaged some property. The end result was that he was ordered to perform community service.
In 2000/2001, as I have indicated, he had been diagnosed with anxiety and depression but was not really being compliant with the medication regimes that were prescribed to him.
In 2001 the father formed a relationship with a Ms AD. The father admits that during that relationship he made threats of suicide to her which were of a coercive nature, much as what he did in this relationship with the mother. Their relationship ended in 2009 and shortly thereafter the father went back to her house and left either a poster or a photograph on the wall - it does not really matter much which – and on it he had apparently written the word “missing”. This is according to Ms AD’s later complaint to Police.
The father agreed that he had gone back to the house, but effectively said that he had not written “missing”. Instead he said he had written on it: “What happened to that girl?” - by implication meaning that she had perhaps changed (as a person) and not for the better.
It is unclear exactly what was intended by the writing but the essential message is anything but unclear. It was sinister. It was coercive. It was unacceptable. It was family violence.
Following this event Police took out an AVO to protect Ms AD from the father.
A few months later the father got into a fight with another man, again seemingly while under the influence of alcohol or at least while consuming it. The father admitted they got into some sort of political argument in the course of which the father head-butted this man and hit him while he was on the ground.
To the father's credit, he did say in the witness box that “Whatever we argued about, it doesn't excuse the violence.” He did not attempt in any way to try to justify what he had done. He was convicted of assault occasioning bodily harm and seemingly admitted to a community‑based order, namely probation.
Just a few months later in 2006, Ms AD complained to Police that the father had gone to the place where she had stayed the night before. He had apparently gone there the next morning and taken their jointly-owned dog. It is not suggested by Ms AD that the father had approached her or indeed said anything to her; rather that he had simply come and taken what was their dog.
The complaint was not actioned by the Police, they were not satisfied that this was a breach of the AVO. It appears that it was an opportunistic attendance by the father to recover his dog - and it seems that it was opportunistic in that Ms AD had only stayed at that home the night earlier. Although what he did was potentially rather intimidating or harassing or coercive, Police did not take any action against him and the father said in the witness box that he thought Ms AD would have been at work at the time.
In 2010 the father was in another relationship with a Ms AE. The evidence is somewhat unclear about this, as might be understood. The father has lived and worked in a number of different states and locations and it is not entirely possible to stitch together all of the relevant pieces of mental health history in such circumstances.
However, what is clear is that the father put a rope around his neck in the context of emotional dysregulation around their relationship breakdown. The father admitted to doing so and said in the witness box that it was “once again poor behaviour”.
I should also add that the father freely admitted in the witness box that he had “a poor history” in terms of past coercive behaviour, particularly in the context of relationship breakdowns.
In 2014 or 2015 while working in interstate, the father, again, had an episode of suicidality. He had been in a relationship for several months which had come to an unhappy end and, again, he was prescribed anti-depressants. It is notable that he did not take them. He left and came back home.
As noted above, the father accepted in the witness box that he had a poor history of coercive behaviour and it is quite clear that his coercive behaviour continued up to this relationship with the mother as well as following their relationship breakdown.
Coercive behaviour of that nature can most definitely constitute family violence, even though it may be connected, indeed inseparable from, mental health difficulties of the perpetrator. I have already addressed the father’s family violence, including various AVO breaches which have been dealt with by the Local Court.
In terms of mental health issues, the father has changed his position in more recent times. He takes an anti-depressant as well as a medication to help him sleep. In that sense, he at least seems to have changed his attitude towards taking medication, which is a significant step in the right direction for him.
The father’s mental health history was explored at some length at this trial and there is some uncertainty around the father’s diagnosis, although the Court has what I consider to be a pretty good picture in terms of the father’s history.
It seems that in December 2020, Dr AF psychiatrist opined that the father had complex post‑traumatic stress disorder arising from his childhood experience of growing up with family violence and issues with his father. I respectfully agree with Dr AF that these matters were complicated by his early and persistent drug and alcohol abuse which complicated the father’s growth psycho-emotionally. Dr AF noted that the father had a low self-image and lack of trust. Dr AF said, in my respectful view somewhat presciently:
The question for [Mr Jennett] is whether a life-long history of emotional dysregulation and fractious relationships can be turned around.
The father has now been seeing Mr L psychologist since May 2019 and he continues to consult with him.
Mr L told the Court that he had been a psychologist for forty (40) years and I accept that evidence. Mr L has written a number of different reports for the father, having been involved with him over, obviously, a significant period of time. Those reports are somewhat incompatible with each other - a point that was understandably seized upon by the mother’s counsel, Mr Bithrey.
In the breach of AVO charges dealt with (on mental health grounds) by the Local Court in mid‑2021, Mr L wrote a report. Relevantly, he first acknowledges that there are three conditions or pre-conditions to the Local Court dealing with AVO breaches under the mental health pathway, namely:
·first, that the defendant suffers a mental health condition treatable in the community;
·second, that there is a strong connection between the condition and the alleged offending behaviour; and
·third, that there is a treatment plan in place to prevent the person coming back before the Court on similar charges or for a similar scenario.
In this context, Mr L opined for the benefit of the Local Court that the father apparently had complex post-traumatic stress disorder, as diagnosed by Dr AF, and that he additionally had alcohol abuse disorder and other substance dependence, all of which were treatable in the community. The “other” substance is a reference to illicit substances. Mr L considered there to be a very strong connection between the mental health conditions suffered by the father and his offending behaviour, namely his breaches of family violence orders. He recommended that the father undertake six (6) months of general counselling to regulate his emotions, that he have counselling to eliminate alcohol and other substances from his life, that he undertake an anger management programme and that he completely abstain from alcohol and other substances for a lengthy period of time. He noted that the father had agreed to this course of action.
Mr L’s report also raised the interesting possibility, which he described as a “strong possibility”, that the father had a personality disorder operating in the background of his overall mental health conditions.
These were his opinions as expressed to the Local Court in respect of the father’s successful application that the AVO breaches be dealt with under the forensic mental health legislation.
However, when Mr L wrote a report for the father’s legal representatives in the context of family law proceedings, the report had a different flavour. In that report, Mr L said:
It has always been my professional opinion that the father did not, in fact, require psychiatric intervention but that process was followed because of certain requirements laid down by either the legal profession or the Family/Circuit Court. The treatment plan has been, for some time, a general counselling program to assist the father to deal with the ongoing family law issues that he was embroiled in.
Mr L also said in the report that the father:
has had relatively minor issues in the past with alcohol and [illicit substances].
Mr L’s statement about alcohol in particular was inaccurate at best. He admitted in the witness box that by saying that the father had “relatively minor issues in the past” with alcohol and illicit substances that this was, in his words, an admitted “understatement.”
In fact, Mr L said that there was definitely a connection between the father’s use of alcohol and his family violence offending. He nonetheless maintained that most of the father’s alcohol problems were in the medium to distant past.
He said that he had given the father anger management counselling, including as part of a group session and he said that the father was currently consulting him each fortnight and had been doing so since April 2022. This consultation was by telephone and was not always a formal process involving note-taking, but more in the nature of follow-ups and seeing how the father was going. There was a CBT component to the treatment he was giving the father.
In the witness box, Mr L retreated very quickly from the possibility of a personality disorder, as raised in his report to the Local Court. Certainly, Mr L said he had not explored that prospect in any detail himself, but he had said that the father had seen Dr AG, psychiatrist, to address any such possibilities and Mr L said that there was not really any evidence of a personality disorder that Mr L was aware of.
Dr AG, psychiatrist, had seen the father on referral from his GP. He did not consider that the father had complex post-traumatic stress disorder, but rather that he had major depressive disorder. He said the father had a good prognosis if he continued his psychological treatment for his depression and continued psychological treatment to address his use of alcohol. Dr AG recommended that the father:
·continue his treatment with Mr L;
·continue to take medication;
·periodically consult a psychiatrist for review and treatment of his major depression;
·that he attend Alcoholics Anonymous; and
·see his GP for regular reviews.
I pause here to observe that I am satisfied the father has continued regular psychological treatment with Mr L, that he has continued to take his medication and that he has seen his GP as required.
The father has not, however, attended Alcoholics Anonymous. He has decided not to attend, and, in fact, he continues to drink socially at what he would describe as fairly limited levels. This is something of a concern to me, because it seems to me that alcohol is a significant problem in the father’s life.
Mr L did not consider that abstinence is always possible, and to be fair he is probably right about that. He did not consider it was necessary for the father to go to Alcoholics Anonymous from his perspective.
Nonetheless, it is somewhat troubling to me that the father continues to use alcohol at all. Alcohol is obviously highly addictive substance, though it is perfectly legal for a person to drink it. Indeed, many people in contemporary Australia might say that it is entirely commonplace for people to do so in all walks of life.
But some people should not drink, and I am troubled in this case about the risks if the father continues to drink alcohol.
Ms K, the Family Report writer in this matter, had some concerns about the father. She was concerned about him behaving in coercive ways, and also some insinuations on his part in relation to the mother’s parenting – comments relating to, for example, her having used illicit drugs, which I have referred to earlier in these proceedings.
Ms K considered that, given the question marks around the father’s mental health, that he should undertake an independent assessment. This was in fact conducted by Dr AH, a single expert forensic psychiatrist.
Dr AH took a detailed history from the father, meeting with him for some four (4) hours for this purpose. Dr AH also spoke to Mr L for some twenty-five (25) minutes.
By reference to subpoenaed documents Mr Bithrey explored with the father that not all of the history had been provided to Dr AH. And I think it is fair to say that some things were not included, such as the father’s suicide threat in relation to Ms AD, and the suicide attempt in 2010, to which I have referred earlier. In that sense, there are potentially some limitations surrounding what Dr AH has said, although I do not consider that the father set out to mislead Dr AH per se. As I have indicated, he has a long history of mental health issues.
Dr AH noted in 2019/2020 – and this is in the context of this relationship – the father’s significant decline in mood, his emotional dysregulation and aggression and his several episodes of suicidal ideation resulting in hospital admissions. Dr AH noted the father’s history of emotional dysregulation and aggression, importantly when under the influence of alcohol, noting that the father had “limited coping skills”.
Having said those things, Dr AH observed real improvement in the father, and fundamentally considered that he had a good prognosis. She said, and I quote from her report:
Since 2020, [Mr Jennett]’s symptoms have significantly improved, and, on assessment on 6 December [2022] [Mr Jennett] did not appear depressed, and he reported to have a much reduced alcohol intake with no periods of intoxication. He is in stable employment and has not been in any trouble with the Police since mid-2021. [Mr Jennett]’s improvement is likely the result of having attended drug and alcohol counselling, engaging in DV psychoeducation, regular psychotherapy, compliance with his prescribed medication and a significant reduction in his alcohol intake. With ongoing regular therapy and mental health review and continued minimal use of alcohol (if abstinence is not possible), it is likely that [Mr Jennett]’s prognosis is good. [Mr Jennett]’s commitment to being a father to his daughter is a protective factor.
Like Dr AG, Dr AH considered that the father had major depressive disorder, which she said was in remission, and alcohol use disorder, in remission. She said that:
While [Mr Jennett] demonstrates certain personality vulnerabilities (fear of abandonment, impulsive destructive behaviours when upset, emotional dysregulation, suicidal behaviour), most likely due to the trauma experienced during his childhood, he does not meet criteria for the diagnosis of a personality disorder or a trauma-related disorder such as post-traumatic stress disorder. Moreover, with psychotherapy and psychoeducation, he seems to have developed skills to recognise and modify and/or manage these vulnerabilities.
When asked specifically about his parenting capacity and whether it was affected by any psychiatric condition, Dr AH said that the father’s psychiatric conditions were in remission, meaning that his parenting capacity was not affected. She did, however, say that:
In [Mr Jennett]’s case, his parenting capacity is most likely to be affected if he has a relapse of his alcohol use disorder. As such, he needs to continue to limit his alcohol use as he is doing currently, and should attend Alcoholics Anonymous or some similar support group on a regular basis.
Dr AH also considered that the father’s alcohol use disorder was a lifelong condition that required him to restrict his intake if abstinence was not possible, and that his major depressive disorder required ongoing monitoring and review.
In a nutshell, as I have already indicated earlier, the father has had longstanding mental health issues and personality vulnerabilities, complicated predominantly by his use of alcohol but also, one would think, illicit substances, which has manifested in emotional dysregulation, expressions of suicidality and, in the context of relationship breakdowns, coercive and, at time, aggressive behaviours. Do these things pose a risk to X now going forward, if the Court were to graduate away from supervised time into unsupervised time?
There are protective factors that have been implemented as I have indicated. The father has undertaken the “AB Program” Men’s Behaviour Change Programme, completing that course by late 2021. He completed the “AJ Program” course in November 2021 and on the evidence before me, he engaged thoughtfully and insightfully in that course. He completed the “AK Program” in April 2022 and the “AL” programme in May 2022.
The father was engaged with the “AC” programme from 2021 until October of 2022, so they kept him in their system for around eighteen (18) months to help him through this process and to help coordinate things. He has been seeing his GP. He has been on a number of health care plans. He is taking his medication. He is consulting Mr L regularly.
There is some force in Mr Bithrey’s submission, and indeed, I made similar observations myself at trial, that Mr L suffers from a difficulty that he is a treating practitioner for the father. By this I mean that a treating practitioner cannot always be in the best position to be independent in terms of how their patient is going in their treatment, and indeed, Mr L clearly has adopted something of an advocate role for the father in this case. But as Mr Lindeman also observes, the father would be “damned if he did and damned if he didn’t” go to see Mr L, and I think credit ought to be given for the fact that the father has consistently maintained a therapeutic relationship with Mr L over a very long time.
I consider that the father has shown good insight and a willingness to seek help. I consider that he has taken enormous steps to improve himself. I am also much comforted - as was the mother in her evidence - by the fact that the father’s last alleged AVO breach was in early 2021.
I should say that there is a reference in the material to the father attending a business where E worked in early 2023; this is referred to in the mother’s affidavit. It wasn’t the subject of any cross-examination, it wasn’t suggested the father had behaved in any aggressive way and, particularly absent any complaint to the Police, it isn’t something that I regard as a significant matter in the overall circumstances of the case. The case was very much run on the basis that the father’s last breach of AVO was in 2021 and I proceed on that basis.
I have seen the father in the witness box and I have heard what he has said. I accept that he feels ashamed of his behaviour. I accept his evidence. Indeed, in the course of his evidence he conveyed an apology to the mother, saying, “I’m so sorry, [Ms Deering], for my bad behaviour.”
The father struck me as very genuine in terms of his attitude but, equally, he still remains a person who has vulnerabilities as are identified in the evidence, and who very much needs to keep his life in tight rein lest he deteriorate in the future.
His alcohol use is a matter that, as I have indicated earlier, causes me significant concern. The father needs to actively manage such matters and to continue to look after his mental health in a positive way in order to minimise any risk of harm to his daughter, and most specifically, to reduce any risks that might be posed to her wellbeing in his care to acceptable levels.
In terms of alcohol, the father had been drinking beer - up to eight beers on a weekend, according to what he told the Family Report writer in May of 2022 - and as I have indicated, the father needs to address alcohol issues in his life.
The mother had, in the leadup to the trial, requested that the father undertake a hair strand test for alcohol and illicit drugs. The father, in response, provided a urinalysis which did not detect any drugs in the father’s system, but he did produce some elevated liver enzyme readings, namely the enzymes AST, ALT and GGT. Mr Bithrey tendered, as exhibit 9, some medical journal articles suggestive that elevated enzyme readings, particularly of GGT, were potential indicators of alcohol abuse.
There are limits to the weight I can place on such articles, notwithstanding their apparent provenance. In particular, the second article involved only a small sample of patients. I do not have a comprehensive medical analysis or evidence before me as to the father’s long-term health, particularly his liver health, and whether there may be any other possible co-morbidities or other explanations for his somewhat elevated AST, ALT and GGT readings. For example, he may have damaged his liver earlier in his life by reason of alcohol abuse. I simply don’t know.
My view is that the father needs to be abstinent of alcohol to function at his best, and certainly, in terms of spending time with X, if he is to be a safe parent for her, he absolutely cannot and must not, take alcohol or be affected by it.
I accept that the father did not undertake a hair strand test. There was no specific order requiring that he do so. I do not consider, particularly noting that the father has had drug and alcohol testing in his previous workplace, that the father’s urinalysis result is particularly probative of anything that matters to me. About the only thing I can usefully draw from it is that the father had not apparently consumed illicit drugs.
In terms of illicit substances use, the father had told the Family Report writer that he had used illicit substances in February 2022. In the witness box, he accepted he had used again around October 2022, as he told Dr AH. The father had only a short haircut at the trial. He said that it was expensive for him to undertake a hair strand test which is why he had undertaken the urinalysis.
It seems to me that illicit substances may be looming in the background of the father’s life, but I am much less concerned about illicit substances than I am about alcohol on the evidence before me. Again, illicit substances is a matter which, in my view, is something that the father must not and cannot consume if he has the care of X.
When I weigh up all of the evidence in terms of risk, noting the interlinking of all of these issues, I am of the view that it would be entirely overkill, and indeed, unnecessary, for this Court to effectively sever a relationship between the father and X so as to protect her from risk of harm. The father has come a very long way. He has made enormous progress. I do not consider, with appropriate safeguards in place, that the father spending time with X would pose unacceptable risk of harm to her, although, as I have indicated, there are some limitations in terms of the father’s vulnerabilities.
In terms of section 60CC(3) of the Act, X is too young to express any views. She told the Family Report writer she wanted her father to give her more lollies at visits, which probably summarises where things are at for her at this point in time.
In terms of X’s relationships, she clearly has a loving and close relationship with the mother, and no doubt with the sisters as well. I note that E now lives away (with her own father) in Region AM. I note the mother has a new relationship but that she does not cohabit with this other person. X also has relationships with other family members.
Significantly, X has a relationship with the father. I say “significantly” because it is the father’s relationship with X in this case that is at the centre of the Court’s attention, rather than the mother’s relationship with her. On any view, the mother is a loving, supportive and excellent mother to this child and nothing I say in these reasons should be interpreted in any other way.
In terms of section 60CC(3)(c), the mother has always been actively involved in decisions for X, and the father has been as involved as he can, given the difficult circumstances he has put himself in at different times.
There is no suggestion that the father has done anything but properly fulfil his obligations to maintain X.
In terms of changes in circumstance, a Court would be very reluctant to make a “no-time” order in a parenting case, and particularly to sever a relationship between a child and a parent, where that parent and child have a loving relationship that, moving forward in an unsupervised way, and subject to restraints, does not pose an unacceptable risk of harm to the child.
As I said earlier, there are risks in whatever a Court does in terms of “no-contact” in this case. To make an order for “no-contact” might very well remove any risks to X directly arising from the father, but they create risks on the other side of the ledger for her, such as: the child feeling rejected by her father and all of the other emotional problems she could have throughout her life arising from that feeling of rejection; the child idolising her father and possibly running away to link up with him at a later time, perhaps when she is rebelling against her mother as at some point she may well when she hits her teenage years. And fundamentally, the Court cannot underestimate the potentially profound negative impacts on a child of making an order for severance of a relationship with a parent.
In this case in particular, the child has an established relationship with her father. She is not a child who does not know her father. She knows him; she loves him. I could not consider that it would be anything but detrimental to the child to sever the relationship and would only make such orders if I considered it necessary in her best interests by reason of the child otherwise being at unacceptable risk of harm. I am not so satisfied.
I should also say that there are potential long-term risks to X if the father were to engage in the sorts of behaviours that he has previously engaged in. He would not want the child exposed to coercive or controlling behaviours on his part or to give X any idea that that is how a healthy relationship should progress. As I have indicated, the father has addressed those matters, but simply for the record, I am certainly aware of risks on both sides of the ledger in terms of a “no-time” order versus an order for time.
In my view, X would benefit in this case much, much more from being able to develop and continue to foster a positive and safe relationship with her father with appropriate restraints in place. She would benefit vastly more from that than she would benefit from my making an order to sever the relationship.
In terms of practical difficulties and expenses, the father presently works in Queensland. He cannot come back to Region D more than one (1) week in three (3) at the moment. As I have indicated, he intends to stay working there for some time in order to pay his legal bills, so I have drafted orders which take that into consideration.
In terms of capacity and attitude, the mother has always been X’s primary carer and met all of her needs. She has promoted a relationship between the father even in circumstances where, frankly, had she not done so she could not have been criticised. She has had her own past issues with mental health and perhaps occasionally with drug use as well. I do not dwell on those. The mother is an excellent mother.
In my view, the mother was somewhat apathetic about an order severing the father’s relationship, because she herself could recognise the relationship between father and daughter. Nonetheless, that was the position she took. I do not criticise her for taking that position given her past experiences with the father in this case. The mother had not read the U Counsellors reports but accepted that they were positive. During the course of the hearing, she in fact had the opportunity to read those reports and to confirm that that remained her view - namely that they were positive.
The father is really the primary focus here. His attitude is that he is determined to make a better man of himself and determined to be the father he wants to be. No doubt he wants to be a better father than perhaps he himself received when he was a boy.
As I have indicated in these reasons, I am satisfied that he has made enormous progress and demonstrated significant remorse.
Even in the midst of difficulty in his own behaviour and with his own mental health, he has been something of a prolific letter-writer to his daughter. I have seen the letters he wrote her. They are emotional and positive and generally things that the child could read. Some of them are perhaps adult matters that were sent at a time when he was not in the best of mental health, and I can understand why the mother did not show those to X.
The point, though, is that the father holds a great affection for his daughter, and, in my view, she holds the same for him, and I consider that the father has been devoted and willing enough to put himself through much-needed treatment, much-needed programs and perhaps, to use the vernacular, “eat quite a lot of humble pie” to demonstrate his desire and willingness and capacity to change.
I note particularly his disavowal of a suggestion that there be equal shared parental responsibility. He also immediately disavowed any criticism of the mother which appeared in the Case Outline prepared by his solicitors, which had suggested - quite unfairly - that the mother was simply pursuing a course to try to stop a relationship between the father and the child. Such comments in the Case Outline are redolent more of an overly enthusiastic approach to family law litigation rather than anything else, and certainly the father immediately disavowed same.
There are no issues of Aboriginality in this case, although I note the father apparently claimed Aboriginality at one or more points, which the Family Report writer considered to be somewhat manipulative. She is probably right, but I do not see it as a major issue here, and certainly it is clear that the father is not and nor is the child Aboriginal.
There is a risk of these proceedings coming back before the Court if I do other than make an order for “no-time”. If I make an order for “no-time”, in all likelihood these proceedings will not come back - but it is rather like “using a sledgehammer to drive a nail” in the sense that it is an overreaction and, one would think, in my view, a painful and damaging overreaction to the level of risk posed by the father to X.
CONCLUSION & ORDERS:
To be clear, I am of the view that the father spending some defined time with X unsupervised with appropriate restraints and various other safeguards in place will manifestly be in her best interests.
If the matter ends up back before me or before another Judge, then the matter may be entirely different, and particularly if the father was to engage in concerning behaviours, but I do not consider such risks to be “unacceptable” on the evidence before me.
I turn then to the orders I propose to make, and I have spent some time going through draft orders. It will take me a little time to read, and I apologise already. People have been sitting on the line for more than two (2) hours, I think. I apologise for that. And these orders will be provided to the parties later today.
I will give some short brief reasons as I go along in terms of some of the specific orders.
I begin by observing that the nature of the mother’s order effectively was a “no-time” order, and so, understandably, she did not descend into detail around various orders that might arise if any other type of parenting arrangement was ordered. Equally, the father’s orders were fairly short and to the point as well. I do not say that to be disrespectful but rather to observe that there is a lot of “detail around the edges” that neither party really addressed me on and for which I have effectively had to “fill in the blanks”. In that regard, I refer to the High Court’s decision in U & U (2002) 211 CLR 238, which clearly says that a trial Judge has a broad remit to fill in such gaps.
In terms of discharging all previous orders (order 1), I want to start with a clean slate for X. And each parent knows they are starting again from scratch today.
In relation to parental responsibility (order 2), in no way does the mother have to consult the father about his opinion. She can make a decision. But within fourteen (14) days, she should notify him. That is just about respect. It is about acknowledgement of two parents. And it is about facilitating – just better communication to the extent it is necessary. And I should be clear in saying here that, for the purposes of the orders emails, texts or use of an agreed parenting app is “writing” for the purpose of the orders. So you will hear me refer to “writing” at a few points. That is what I am talking about.
In relation to the father’s time (order 4), this order is designed to accommodate the father’s work; he can tell the mother the weekend which works best. And that will be what will happen. So the father needs to pick a weekend when it begins, and it will not include Mother’s Day. And if dates have to be “swivelled” now and again, I have little doubt that, in writing, that can be done. From 2024, time will occur every second weekend, if father can do it. And that will depend on his work. It will be every third weekend if he cannot.
From 2025, overnight time begins. This order, as will become apparent to everyone, is drafted to proceed in a more slow and careful way than perhaps had been anticipated by the father.
I will pause here to say this. The father had asked that he have X for three (3) weekends out of the month. I do not consider that to be in the child’s best interests because there needs to be proper weekend time spent with each parent – the weekends are the only “fun” time parents generally have with their children. And I do not see how the father’s weekend proposal would benefit X.
Starting in 2024, the orders make provision for holidays and special days. In this respect I consider that a conservative approach is appropriate having regard to:
·the fact that there was no formal application by the father for block time; and
·the fact that I was not addressed on such matters; and noting also
·the findings of the Court.
In relation to handovers, the mother can nominate a public place. This is something these parties can work out and, again, in writing. So it is email. It is text. It is a parenting app. It is all about the parents having a basic exchange of information about that.
In terms of communication, neither party proposed a communication order between X and the other parent. Say that X said “Mum, I just won the sports award. I really want to ring Dad”. I would expect the mother – I do not suggest she would not do it anyway - but I would expect her to enable X to ring the father and tell him about it. Equally, if X is with the father and she wants to talk to her mother, I would expect that he would facilitate that as well. It will only be good for this little girl, for the parents to do that.
I have said before, alcohol, to me, is very much in the centre of the father’s problems. He certainly cannot use it or have alcohol in his system when he has got X in his care. And that will be an absolute restraint. So it means he has got his daughter or he can drink a beer. But he cannot do both. And he would be wise not to drink at all outside of his time with X. Or if he cannot do that, then at the very least he needs to be absolutely minimalist in what he drinks, consistent with the medical advice that is before the Court.
Unless it is an emergency, the parents should communicate by sending a text, or an email or by using an app. Do whatever has to be done. To the father - do not ring the mother. There are many reasons for this, not least of which is the risk of an unhappy confrontation of any kind, or allegations of “he said/she said”, and then Police involvement and the complete spiralling and destruction of all the effort that has gone into this order in terms of the Court wanting to see this work for X. I cannot be any clearer than that.
In relation to order 12, their purpose is that if the father became depressed and unwell – which I consider unlikely - but if he were to be admitted to a mental health facility, he may not be in a state to tell the mother about it himself within 24 hours. But his GP could confirm to the mother that he has gone into “X facility” and that he is expected to be in for whatever period. And that is the only intention of this order. I do not want to unreasonably intrude on the father’s privacy. Equally, there need to be safeguards.
Lastly, I am going to include some authorities in the order. Effectively, I want the father to have the school information that the mother has. In other words, the school can give material directly to the father (at his cost), X’s GP can give information directly to the father (at his cost), so that he is not “out of the loop” about what is happening with his daughter.
The mother can make decisions for X as she has always done. And her decision-making power is not fettered at all. She just has to let the father know, within 14 days, what she has done.
For these reasons, I propose to make those orders, which will be typed and, as I have indicated, sent through to the parties today.
I certify that the preceding two hundred and seventy-six (276) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 5 May 2023
0