ESTWICK & ESTWICK

[2011] FamCA 926

FAMILY COURT OF AUSTRALIA

ESTWICK & ESTWICK [2011] FamCA 926

FAMILY LAW – CHILDREN – parental responsibility – father withdraws from proceedings - history of family violence perpetrated by father upon mother and children – father’s use of illicit drugs – father’s mental illness – homicidal and suicidal threats – children have a meaningful relationship with mother – children attached to father but do not enjoy a meaningful relationship with him – no benefit to the children in rejuvenating relationship with father - father poses a high risk of harm to children – sole parental responsibility is allocated to mother

FAMILY LAW – CHILDREN – with whom a child shall live and spend time – children experienced significant psychological strain with regard to their relationship with the father – children’s view may have been warped by their knowledge of the father’s suicidal and homicidal threats – recommendation by family consultant to afford little weight to children’s view – little weight afforded – mother’s willingness to promote, facilitate and encourage the relationships between the children and the father misguided – father does not have a willingness or capacity to facilitate and encourage continuing relationship between children and mother – mother has capacity to meet children’s needs and father does not – power imbalance between the parties with the mother liable to be overwhelmed by the father – family consultant’s opinion that mother does not have capacity to make safe decisions for children where father is concerned - father poses a high risk of harm to children – orders made for children to live with the mother and to spend no time with the father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
L v T (1999) FLC 92-875
MRR v GR (2010) 240 CLR 461
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mr Estwick

RESPONDENT: Ms Estwick

INDEPENDENT CHILDREN’S LAWYER: Mr Squires,
Legal Aid NSW

FILE NUMBER: NCC 2486 of 2007

DATE DELIVERED: 9 December 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 3 & 23 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Squires,
Legal Aid NSW

Orders

1. All previous parenting orders relating to B, born on … 1994, and C, born on … 1998, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each of the parties is restrained from causing or permitting the children to spend any time with the father.

5. Subject to Order 6 hereof, each of the parties is restrained from causing or permitting the children to communicate with the father.

6. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

   a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and

   b)By the mother promptly sending to the father:

   i)Written acknowledgement of receipt of the father’s written communication and/or gifts, and

   ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

7. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   a)The mother’s residence; and

   b)Any school attended by either child.

8. The mother shall authorise the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

9. The mother shall forthwith take all reasonable steps to ensure that the youngest child confers and continues therapeutic counselling with a Child and Adolescent Mental Health Team, for as long as is deemed necessary by that Team, and for that purpose the mother shall provide to the Team copies of:

   a)The affidavit of the Family Consultant affirmed on 25 August 2010;

   b)The affidavit of the Family Consultant affirmed on 2 August 2011; and

   c)These orders.

10. Within 7 days hereof, the Family Consultant and Independent Children’s Lawyer shall explain the meaning and effect of these orders to the children.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

13. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Estwick & Estwick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2486 of 2007

Mr Estwick 

Applicant

And

Ms Estwick

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The pivotal issue in these proceedings is the history of violence perpetrated by the applicant father upon and towards the respondent mother and each of the two children.

2. The pattern and potency of the violence were such as to cause the Family Consultant to label it as “coercive and controlling” and led her to recommend a complete severance of the relationships between the children and the father. In reliance upon that evidence the Independent Children’s Lawyer proposed orders designed to achieve that outcome.

3. It was not, however, the proposal of the mother. She proposed continuing interaction between the children and the father, subject to the father’s engagement in an extensive suite of therapies and the implementation of a range of other safeguards. The mother’s position was all the more curious because the father withdrew from the proceedings, evincing an attitude of indifference to the parenting orders made by the Court and the strategies for his recovery devised by the mother.

Background

1. It is necessary to set out a chronology of relevant events to understand the extent of the psychiatric affliction of the father and the severity of his violent and intimidatory conduct towards the mother and children.

2. There are extensive allegations of family violence extending back to 1998,[1] which include the father pushing, punching, strangling and suffocating the mother.[2] The father also made suicidal threats and homicidal threats to kill the mother and the children.[3]

   [1] Family Report, par 26.

   [2] Family Report, par 27.

   [3] Family Report, pars 27, 30.

3. The father dramatically demonstrated his suicidal propensity to the children by wrapping a rope around his neck and by connecting a hose to the exhaust of his car.[4] The children are now aged 17 and 13 years respectively, so at the time of the parties’ separation when events of that nature were occurring they were only aged nine and five years respectively.

   [4] Family Report, par 30(a).

4. The parties separated in April 2004 due to an incident of family violence, following which the mother and children moved out of the former matrimonial home and into a refuge.[5] A family violence order was made against the father at that time for the protection of the mother for a period of two years.[6] That order expired in August 2006, but while it was current the father was convicted of its breach, for which he was sentenced to a good behaviour bond.[7]

   [5] Exhibit ICL2, par 29.

   [6] Family Report, pars 8, 27.

   [7] Family Report, par 27.

5. It was a condition of the bond that the father accept psychological treatment.[8] The father approached the D Region Mental Health Team, whom he consulted over the following year until July 2005. The father’s diagnosis at that time was “psychosis, cannabis induced psychosis, psychotic depression, and prodome of schizophrenia (sic)”.[9]

   [8] Family Report, par 27.

   [9] Family Report, par 31; Exhibit ICL5.

6. The mother was referred to the City E Mental Health Service for assessment by staff at the refuge where she sought accommodation, and was there provisionally diagnosed with post traumatic stress disorder as a consequence of her experiences with the father.[10]

   [10] Family Report, par 27.

7. The parties continued to negotiate the time spent by the children with the father for some years after their separation. Neither party sought parenting orders from the Court until January 2010.[11]

   [11] Family Report, par 10; Exhibit ICL2, pars 31-86.

8. At trial, the mother said the father began acting violently towards the children in December 2007. However, in an earlier affidavit she filed in these proceedings, the mother deposed to an escalation of the violence at that time, implying it had already been occurring.[12] In any event, the father’s violence against the children has included head-butting, pushing, punching, kicking, and throwing.[13]

   [12] Exhibit ICL2, par 153.

   [13] Family Report, pars 28, 74.

9. The father assaulted the children in separate incidents in December 2007 and May 2008, the second of which precipitated the mother’s decision to terminate arrangements for the children to spend time with the father.[14]

   [14] Family Report, par 11.

10. The first incident in December 2007 involved an assault by the father upon the youngest child which resulted in his injury. The father pushed the child to the ground and punched him in the face, causing bruising to the child’s back and cuts and swelling to his lip. The child was so terrified by the incident that he urinated in his pants.[15] At that time the youngest child was barely nine years of age.

    [15] Family Report, par 28(a); Exhibit ICL2, pars 17, 94(a), 94(b).

11. The second incident in May 2008 involved both children and occurred when the father was apparently under the influence of illicit drugs and/or alcohol. The father repeatedly kicked the eldest child in the stomach and held a knife to the throat of the youngest child.[16] Both children were physically injured from the beatings they received.[17]

    [16] Family Report, par 28(b).

    [17] Exhibit ICL2, par 18, 101, 104.

12. In April 2009 the father again assaulted the eldest child, as a consequence of which she sustained a cut on her nose.[18]

    [18] Family Report, par 28(c).

13. In May 2009 the father assaulted his new wife and her son, which caused the breakdown of that marriage as well. The father was charged and convicted for those assaults,[19] for which he was placed on probation requiring him to accept psychological treatment. The evidence is silent as to whether he did so.

    [19] Family Report, pars 13, 32; Exhibit ICL2, pars 19, 124.

14. In late 2009 the father informally resumed interaction with the youngest child, after not having seen him for some 18 months. The father then commenced these proceedings in January 2010, seeking orders providing for the youngest child to live with the parties for an equivalent amount of time.[20]

    [20] Family Report, pars 14-15.

15. The father sought no order in respect of the eldest child, presumably because she was then already living with the father of her own volition. The eldest child moved to live with the father in March 2009 but returned to live with the mother in August 2010, despite threats by the father to kill her if she left him for the mother.[21] The eldest child had little interaction with the mother during her period of residence with the father.[22]

    [21] Family Report, par 28(d); Exhibit ICL2, par 123.

    [22] Family Report, pars 12, 18; Exhibit ICL2, pars 129, 133, 137.

16. In July 2010 the mother’s impression about the father was unequivocal. She filed an affidavit in these proceedings, in which she deposed:[23]

    I have observed from my experience of living with the father when he uses marijuana, that it causes agitation, anxiety, suicidal thoughts, paranoia, aggression, violence, swearing, disinhibited behaviour/impulse control, altered time perception (sic).

    [23] Exhibit ICL2, par 20.

17. In October 2010 the father was admitted to a psychiatric institution as an involuntary patient, where he remained for a month until his release on 24 November 2010.[24] The admission followed the father making suicidal and homicidal threats.[25] The father was assessed to be mentally ill, within the meaning of the Mental Health Act 2007 (NSW). He was experiencing “delusions and thought disorder” and was considered to be a risk to himself and others.[26] The father also tested positive for cannabis during his admission.[27]

    [24] Family Report, par 20.

    [25] Family Report, par 30(b).

    [26] Exhibit ICL5.

    [27] Family Report, par 34.

18. Upon the father’s release from the psychiatric institution the mother considered his mental health was much improved and so, between December 2010 and March 2011, the children again spent time with the father. However, in March 2011 the father became aggravated at the course of this litigation and the veneer of civility between the parties was fractured again.[28] The mother described the father as being “shattered” at that time, which emotional deterioration was apparently caused merely by his awareness of the contents of the documents produced on subpoena about his past.[29]

    [28] Family Report, par 21.

    [29] Mother’s affidavit, pars 42, 120.

19. The eldest child returned to live briefly with the father between March and May 2011, but returned to live with the mother on 14 May 2011 when the father assaulted her.[30] The eldest child is acutely fearful of the repercussions which may follow from the father learning of the publication of that incident.[31]

    [30] Family Report, pars 22, 24, 74.

    [31] Family Report, par 36.

20. Interim parenting orders were made on 3 May 2011, providing for:

    a)The youngest child to live with the mother (Order 2);

    b)The mother to have sole parental responsibility for the youngest child (Order 3);

    c)The youngest child to spend supervised time with the father for two hours per fortnight at a City E contact centre (Orders 4-5); and

    d)The youngest child to communicate with the father by telephone twice weekly (Order 6).

21. The arrangements for the eldest child were considered separately at the interim hearing. It was ordered that the parties facilitate her living and spending time with them as she desired (Order 9). That order was made little more than a week before the father assaulted her and she returned to live with the mother. The eldest child still lives with the mother and apparently has had little, if any, interaction with the father since he assaulted her in May 2011.[32]

    [32] Family Report, par 25.

22. The mother attempted to implement the orders for the youngest child to spend supervised time with the father. She contacted the contact centre and was placed on a waiting list.[33] It was revealed by the mother at trial that the father had not registered with the contact centre and so the orders have not yet been implemented.

    [33] Family Report, par 23.

23. Currently, the youngest child spends no time with the father, but does communicate with him by telephone. Even telephone communication has not been a safe form of interaction for the youngest child with the father. During a telephone conversation in June 2011, the father made detailed suicidal and homicidal threats involving the mother to the child.[34] In the mother’s cross-examination it was revealed that during a more recent telephone conversation with the father in late October 2011 the youngest child became so highly distressed that his whole body began to tic. The child has been diagnosed with a Tic Disorder, exacerbated by stress, which is ordinarily confined to facial tic movements.[35]

    [34] Family Report, pars 37, 74.

    [35] Family Report, par 64; Exhibit ICL2, par 153.

24. In the course of these proceedings the father attended upon the Family Consultant for interview in July 2011. He refused the common courtesy of shaking the Family Consultant’s hand upon greeting, asserting she had been unprofessional in their prior dealings.[36] The father contended that his past behaviour, detailed in records produced under subpoena and summarised above, was in fact a reasonable response by him to the aggravation he had experienced at the hands of the mother and the Court.[37] The degeneration of the interview from that point is best expressed in the exact words of the Family Consultant:[38]

    The level of anger and agitation displayed by the father was observed to escalate quickly from the commencement of the interview. The father’s tone of voice was loud and accusatory, and attempts to redirect the father were unsuccessful. The father’s behaviour also appeared to escalate, for example, he was observed to start lunging from his seat toward the Family Consultant, pointing vigorously as he spoke. Consequently, the interview was terminated.

    Security staff and the Senior Family Consultant were required to assist the Family Consultant manage the father’s behaviour…Security further directed the father to leave to the premises (sic). Given concerns for the father’s presentation at the interviews, the Family Consultant contacted the [City E] Mental Health Team.

    [36] Family Report, par 44.

    [37] Family Report, par 45.

    [38] Family Report, par 46.

25. As a result of the manner in which the father’s interview with the Family Consultant concluded, the youngest child was not observed in the company of the father.[39]

    [39] Family Report, par 71.

26. I accept the validity of the Family Consultant’s opinion about the father’s violent past, which was expressed in the following terms:[40]

    The family violence alleged in this matter is most consistent with coercive controlling violence. Furthermore, if family violence has occurred as it has been alleged, then there are a number of indicators which suggest a high level of potency and risk of further harm. Elements which escalate the potency and risk of this form of violence include: alleged mental health and/or substance abuse issues; stressors such as Court proceedings; repeated threats of violence to self or others; past abuse causing injury; previous criminal history and/or violation of protective orders.

    [40] Family Report, par 80.

27. The evidence about the father’s violent past, which is sourced to the mother’s allegations and the contents of documents produced by authorities pursuant to subpoena, is unchallenged. Moreover, in cross-examination, the mother asserted the truth of the contents of a former affidavit she filed in the proceedings detailing her allegations of violence.

28. The allegations of family violence made against the father are proven on the balance of probabilities.

Withdrawal of the father

1. The father commenced these proceedings in January 2010.

2. He filed a Notice of Discontinuance on 19 January 2011, but that Notice referred only to his Initiating Application filed on 20 January 2010 and not his Amended Initiating Application filed on 11 June 2010.

3. The father then filed a Notice of Address for Service on 21 March 2011, but he did not appear at the interim hearing before the Court on 3 May 2011.

4. The father filed another Notice of Discontinuance on 27 May 2011, which again referred only to his Initiating Application filed on 20 January 2010. That was the last document the father filed in the proceedings.

5. As already noted, the father did nothing to implement the orders made on 3 May 2011 providing for the youngest child to spend supervised time with him.

6. The father attended upon the interview with the Family Consultant on 26 July 2011, but that interview ended acrimoniously and prematurely for reasons already explained.

1. The father failed to appear at Court on 15 September 2011 when the matter was fixed for trial.

2. The father also failed to appear at the trial on 3 November 2011.

3. I inferred that the father had withdrawn from the proceedings and did not wish to be heard about the parenting orders made in respect of the children. The trial therefore continued in his absence. The Court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Proposal and primary evidence of the mother

1. The mother proposed the orders set out in a minute of orders she tendered at the commencement of the trial.[41] She abandoned reliance upon the orders set out in her affidavit filed on 14 September 2011[42] and in her Further Amended Response filed on 23 September 2011.

   [41] Exhibit M1.

   [42] Par 154.

2. The freshly proposed orders made provision for the mother to have sole parental responsibility for the children and for the children to live with her.

3. It was the intention of the mother that the eldest child, who is now 17 years of age, could decide for herself when and how she spent time and communicated with the father.

4. The mother petitioned the Court for final orders requiring the youngest child to spend time and communicate with the father, but only upon the father’s fulfilment of a vast series of conditions, which included:

   a)The father undertaking a full-time drug and alcohol rehabilitation course at F Recovery Centre (“the Centre”) for a period of ten months (Orders 3-5), and any subsequent “after care” deemed necessary by the Centre (Order 15);

   b)Initial supervision of the time spent by the child with the father by staff of the Centre (Order 7), although there was no evidence that the staff of the Centre would be willing to assume such a role;

   c)Some time being spent by the child with the father, during a staged re-introduction, at the mother’s home (Orders 9, 11), involving supervision by the mother for some of that time (Order 11);

   d)The father’s continuation of treatment with a psychiatrist, who would be called upon (it is not identified by whom) to offer an opinion (it is not identified to whom) about whether the father posed a “risk of serious harm” to himself, the children, or anyone else (Order 12);

   e)The father’s submission to random urinalysis at the discretion of the mother, but only if the father defaults in his obligation to undertake “after care” rehabilitation at the Centre as directed (Order 16);

   f)Suspension of the time spent by the child with the father in the event of a positive drug screen (Order 17); and

   g)Suspension of the time spent by the child with the father in the event it “appears” the father is under the influence of alcohol or other drugs (Order 20), although it remained unspecified as to who should make the decision about the father’s apparent sobriety.

5. The mother relied upon her affidavit filed on 14 September 2011.

6. Although the mother was permitted to file and serve a further affidavit at her request,[43] she failed to do so. On the morning of trial the mother sought leave to tender a further affidavit that she had not even yet sworn, let alone served. Leave was refused, consistently with the objection of the Independent Children’s Lawyer.

   [43] Order 4 made on 15 September 2011.

7. Following completion of the trial and reservation of judgment, the mother filed an Application in a Case on 18 November 2011 seeking to re-list the matter before the Court. The matter was re-listed before the Court on 23 November 2011, when it was revealed the mother had not served her Application on the father. The Independent Children’s Lawyer was present.

8. As it transpired, the procedural unfairness caused to the father by him not being notified of the Court event was inconsequential. The mother did not seek to re-open her case to adduce further evidence. Rather, she simply sought to make a further submission. The mother desired that the Court make a supplementary order requiring the father to disclose to her details of advice received by him from the Centre about the need for his submission to “after care”.

Proposal and primary evidence of the independent children’s lawyer

1. The attitude of the Independent Children’s Lawyer was made plain in advance of the trial. He proposed severance of the children’s relationships with the father for an indefinite period.

2. The orders proposed by the Independent Children’s Lawyer were set out in his Case Outline document and a minute of the orders was tendered.[44] The orders essentially made provision for:

   a)Both children to live with the mother (Order 1);

   b)The mother to have sole parental responsibility for both children (Order 2);

   c)The father to spend no time with either child and not communicate with either child, other than by way of birthday and Christmas cards (Orders 3-5); and

   d)An injunction precluding the father from attending within 100 metres of the mother’s home (Order 6), consistently with an earlier interim order.[45]

   [44] Exhibit ICL 6.

   [45] Order 7 made on 3 May 2011.

3. In support of the orders he proposed, the Independent Children’s Lawyer relied upon:

   a)The affidavit of Mr G filed on 7 July 2010;

   b)The evidence of the Family Consultant contained within her Memorandum dated 9 July 2010 and her two affidavits, affirmed on 25 August 2010 and 2 August 2011. The Family Consultant’s Family Report was annexed to her most recent affidavit.

4. The evidence of Mr G was given no attention during the trial. The Independent Children’s Lawyer did not refer to his evidence once and he was not cross-examined by the mother.

5. The Family Consultant was cross-examined by both the mother and the Independent Children’s Lawyer. I found her evidence both reasoned and logical, and therefore persuasive.

6. In addition, the Independent Children’s Lawyer tendered numerous documents in evidence, which were:

   a)The varied family violence order affecting the parties until 9 June 2012 (Exhibit ICL1);

   b)Paragraphs 17, 18, 19(a), 19(b), 20, 29-86, 94-108, and 109-153 inclusive, and Annexure B, of the affidavit comprising 186 paragraphs filed by the mother on 5 July 2010 (Exhibit ICL2);

   c)Psychiatric report on the father dated 4 May 2011 authored by Dr H (Exhibit ICL3);

   d)Medical Retirement Summary Information Sheet dated 14 June 2011 relating to the father (Exhibit ICL4); and

   e)Psychiatric report on the father dated 8 November 2010 authored by Dr I (Exhibit ICL5).

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations

Section 60CC(2)(a)

1. I accept the children both have meaningful relationships with the mother, which must be preserved.

2. The eldest child did choose to live with the father between March 2009 and August 2010, and again between March and May 2011, having little interaction with the mother during those periods. However, given her decision to return to live with the mother at the conclusion of both those periods and her apparent reluctance to interact with the father, I infer that her ignorance of the mother when living with the father was induced by the father’s attitude of antipathy towards the mother.

3. The children are worried about how the father feels by not seeing them, but I conclude their worry is primarily due to fears about what vengeance the father might wreak upon them and the mother for his exclusion, rather than genuine loving empathy for him.

4. In all probability the children are attached to the father, but I am not satisfied they currently enjoy meaningful relationships with him. The erosion of those relationships has been caused by a protracted history of violent paternal domination within the family. The Family Consultant said in cross-examination the father incites the children’s concern for his well-being rather than let the children worry about themselves. I accept the children, and also the mother, have become so preoccupied with their concern about the emotional stability of the father that they have forgotten to enjoy their own lives. They are living on their wits.

5. No benefit will accrue to the children in attempting to rejuvenate their relationships with the father whilst ever the father’s condition remains unchanged. The mother conceded it was not in the best interests of the children to interact with the father in his current condition, and although she harboured hopes of his recovery, such hopes are forlorn by any objective standard. The Family Consultant confirmed in cross-examination the father takes no responsibility for his behaviour and refutes his need for therapy.

Section 60CC(2)(b)

1. The Family Consultant said in cross-examination the father posed a “very high” risk of harm to the children.

2. There are a number of reasons why that assessment is obviously correct.

3. The history of family violence was, in the logical opinion of the Family Consultant, both protracted and potent. It involved physical violence and intimidation directed by the father to each of the children and the mother.

4. The father is a person who is generally disposed to the use of violence as a means to achieve his ends. His conviction for assaults on the woman he married after separation from the mother, and her son, is testament to that.

5. The instances of family violence in recent times are as alarming as episodes that occurred years ago. There has been no apparent abatement in the domination by the father of the mother and children in the many years elapsed since the parties’ separation.

6. The father has no contrition for his behaviour. He exploded in March 2011 when he became appraised of the documents produced to the Court on subpoena, which detailed the nature of his past conduct, emotional instability, and treatment. Nevertheless, when he met with the Family Consultant in July 2011, he asserted his past conduct was reasonable and justified by the aggravation caused to him by the mother and the Court.

7. Either the father is genuinely ignorant of the disgrace his behaviour brings upon him, or he is aware but brazenly minimises it. Either explanation induces pessimism about the prospect of his change for the better. The father is unlikely to change that of which he is ignorant, and he is equally unlikely to change that for which he sees no need.

8. The Family Consultant considered the need to protect the children from the harm posed to them by the father outweighed any benefit that would accrue through retention of their relationships with him. That was also the ultimate submission of the Independent Children’s Lawyer. I accept both the opinion and submission as valid.

Best interests of the children – additional considerations

Section 60CC(3)(a)

1. The eldest child refused to participate in the proceedings. She refused to attend an interview with the Family Consultant in August 2010,[46] and again in July 2011, expressing the view that she wants nothing to do with the proceedings.[47]

   [46] Family Consultant’s affidavit affirmed 25 August 2010, page 2.

   [47] Family Report, par 59.

2. I infer that her way of dealing with the pressure is to completely withdraw from the conflict between the parties. Her views are unknown, but may be imputed from her decision to live with the mother and not see the father since he assaulted her in May 2011. She is now 17 years of age and sufficiently mature to make many of her own decisions.

3. When the youngest child first met the Family Consultant in August 2010 he was anxious when discussing matters related to the family.[48] He did express a view that he did not spend enough time with the father, but his stated wishes about the duration of his visits to the father fluctuated.[49]

   [48] Family Consultant’s affidavit affirmed 25 August 2010, page 3.

   [49] Family Consultant’s affidavit affirmed 25 August 2010, page 4.

4. When the youngest child later saw the Family Consultant in July 2011 his initial anxiety was again evident. He was guarded and anxious when discussing family issues. His tic was pronounced at the commencement of the interview.[50]

   [50] Family Report, par 64.

5. The Family Consultant observed that the youngest child expressed inconsistent wishes in respect of the father. That was the case at both the interview in August 2010[51] and July 2011.[52] In cross-examination the Family Consultant said the child was ambivalent and conflicted, on the one hand wanting to see the father, and on the other, not even wanting to think about it. During the mother’s cross-examination of the Family Consultant the mother volunteered she had noticed the same thing, with the youngest child telling her he would not see the father until he was aged 18 years, but contrarily, that he would ride his bicycle to the father’s home to see him straight away. The Family Consultant attributed such inconsistent responses to his deeply rooted anxiety.

   [51] Family Consultant’s affidavit affirmed 25 August 2010, page 4.

   [52] Family Report, par 67.

6. The youngest child’s school teacher, who was contacted by the Family Consultant, reported noticing a correlation between the worsening of the child’s tic around times the child spent time with the father or communicated with the father by telephone.[53]

   [53] Family Report, par 66.

7. The Family Consultant concluded the child is experiencing significant psychological strain with regard to his relationship with the father.[54]

   [54] Family Report, pars 67, 72.

8. The Family Consultant considers the children’s views may have been warped by their knowledge of the father’s suicidal and homicidal threats, and therefore considers minimal weight should be reposed in their views.[55] I accept that evidence.

   [55] Family Report, par 75.

Section 60CC(3)(b)

1. No evidence was adduced, and no submission was made, with respect to the nature of the children’s relationships with persons other than the parties.

Sections 60CC(3)(c), (4)

1. There could be little doubt the mother is desirous of facilitating and encouraging a close and continuing relationship between at least the youngest child and the father. She explained that to the Family Consultant in August 2010[56] and again in July 2011.[57]

   [56] Family Consultant’s affidavit affirmed 25 August 2010, page 5.

   [57] Family Report, par 51.

2. One can only wonder at the mother’s motivation to pursue a co-operative parenting relationship with the father despite the father’s gross history of violence, drug abuse, and psychiatric instability.

3. Perhaps she fears the father will act on his threats to kill himself or someone else if the children do not spend time with him, as she explained to the Family Consultant in August 2010,[58] and she therefore wishes to appease him. There is little doubt the mother is genuinely distressed by her recollection of the father’s violence and remains fearful of him.[59] She proposed an injunctive order be made against the father for the personal protection of her and the children.[60]

   [58] Family Consultant’s affidavit affirmed 25 August 2010, page 5.

   [59] Family Report, par 48.

   [60] Exhibit M1, Order 26.

4. Perhaps she has become so inured to the father’s coercive conduct that her perception of normality has become distorted. The Family Consultant certainly considered the mother had difficulty understanding the incongruity of a co-operative parenting model with the existing family dynamic of intimidation, fear and apprehension.[61] The incongruity seems reasonably obvious, given the mother acknowledged the children are under pressure to placate the father.[62]

   [61] Family Report, par 51.

   [62] Family Report, par 52.

5. Just like the children, the mother also seems under pressure to placate the father, as evidenced by her inclination to excuse or trivialise the father’s reprehensible conduct. For example, she referred to the father head-butting the youngest child as a form of discipline rather than abuse,[63] and although she admitted the father had forced the child to read an encyclopaedia aloud, she denied he did so for “several hours”, as had earlier been alleged.[64]

   [63] Family Report, par 54.

   [64] Family Report, par 35.

6. Large tranches of the mother’s affidavit amount to little more than an argumentative justification for the father’s past behaviour. The mother even boldly deposed:[65]

   In our 18 years of marriage, the Father was neither coercive nor controlling by nature and under normal conditions and I understand that sort of behaviour is a normal reaction to feeling loss of control and which comes with separation and litigation (sic).

   (original emphasis)

   And:[66]

   Consequently, much of the information in the Family Report of domestic violence is misunderstood…aggression is a symptom of the anxiety and depression complicated by the medication or self-medication, with “domestic violence” being a misleading description.

   [65] Mother’s affidavit, par 21.

   [66] Mother’s affidavit, par 113.

7. The mother’s willingness to promote the relationships between the children and the father is misguided.

8. The father does not apparently have a willingness or capacity to facilitate and encourage close and continuing relationships between the children and the mother. When the eldest child decided to live with him for periods of time she rarely interacted with the mother and their relationship fell into disrepair. That would not have occurred had the father actively supported and promoted her relationship with the mother. Over many years, critical and hurtful comments made by the children to the mother upon their return from the father manifest the father’s harsh denigration of the mother to the children.[67]

   [67] Exhibit ICL2, pars 72, 85, 86.

Section 60CC(3)(d)

1. The orders do not entail any material change to existing circumstances, at least in terms of face-to-face interaction. Neither child is presently spending time with the father. The orders preserve that arrangement on an indefinite basis.

2. The youngest child does presently communicate with the father by telephone, but the orders now preclude that form of interaction also. It is unlikely either child would be deleteriously affected by the cessation of their telephone communication with the father. On the contrary, they are likely to benefit from relief of the pressure exerted by both parents for them to continue their interaction with the father, who remains highly unpredictable and unstable.

Section 60CC(3)(e)

1. Implementation of the orders involves no expense or difficulty.

Section 60CC(3)(f)

1. The mother has the capacity to provide for the children’s physical and intellectual needs, but for reasons advanced by the Family Consultant, her capacity to consistently make sound decisions to satisfy the children’s emotional needs is impaired.

2. The father may have the capacity to meet the children’s physical and intellectual needs, but he has no capacity to meet their emotional needs, as evidenced by his treatment of them and the mother over a protracted period of time.

Section 60CC(3)(g)

1. Apart from the father’s mental illness and use of illicit drugs, which has already been addressed, there is no other aspect of the parties’ maturity, sex, lifestyle, or background that bears upon the outcome of the proceedings.

Sections 60CC(3)(h), (6)

1. Neither party identifies themselves or the children as Indigenous Australian.

Sections 60CC(3)(i), (4)

1. The orders proposed by the mother envisaged she would have latitude to negotiate parenting arrangements with the father in reliance upon her opinion about the emotional condition of the father.[68] The Family Consultant considers, and I accept, the mother lacks the insight to understand how dangerous such an arrangement would be.[69] There is a power imbalance in the relationship between the parties, with the mother liable to be overwhelmed by the father. The mother does not seem to have the fortitude to resist the father’s importunity.

   [68] Family Report, par 55.

   [69] Family Report, par 78.

2. The Family Consultant’s opinion is that the mother does not have the capacity to make safe decisions for the children where the father is concerned. For example, even though the father was admitted to a psychiatric institution in late 2010 for suicidal and homicidal ideation, within a month of his release the mother negotiated with the father for the children to spend time with him merely on the strength of her belief that the father had been “working hard” on his condition and reducing his cannabis use.[70] Even though the mother asserted she believed the father when he reported to her that he could produce “clean urinalysis”,[71] it is a known fact the father tested positive for cannabis use shortly before whilst involuntarily held in the psychiatric institution.

   [70] Family Report, par 54.

   [71] Family Report, par 54.

3. Accepting, as I do, the veracity of the allegations of past family violence, the Family Consultant considers the mother’s capacity to maintain a consistent approach towards the children’s involvement with the father would be substantially impaired by that experience.[72] The opinion of the Family Consultant on that issue is not isolated.

   [72] Family Report, par 79.

4. The mother has been attending a private counsellor, Mr J, for some time. When contacted by the Family Consultant, the counsellor revealed the mother has an idealistic view of a co-parenting relationship with the father despite experiencing “extreme anxiety” associated with him.[73]

   [73] Family Report, par 56.

5. The mother has also attended City E Family Support Service and consulted Ms K for support. She too was contacted by the Family Consultant. Ms K expressed the view that the mother should not be involved in negotiating or facilitating any time spent by the children with the father.[74]

   [74] Family Report, par 58.

6. When conferring with the Family Consultant in July 2011 the mother did have the insight to realise that the imposition of final orders dictating parenting arrangements for the children would perhaps assist to relieve the psychological burden felt by the children that they needed to choose between the parties, or to nominate when they saw the father.[75] The views expressed by the mother at trial were not necessarily consistent with that attitude, which only serves to demonstrate the vacillation of the mother’s views and the need for control over the parenting regime to be wrested by the Court from her and the children.

   [75] Family Report, par 63.

Section 60CC(3)(j)

1. On 9 June 2010 the Local Court of NSW at City E made a family violence order against the mother for the protection of the father.

2. An application was successfully made to vary the terms of the order, which occurred on 18 October 2011.

3. The varied order is in force until 9 June 2012.[76]

   [76] Exhibit ICL1; Family Report, par 7.

4. The terms of the family violence are consistent with the parenting orders made in these proceedings.

5. The circumstances in which the Local Court of NSW was convinced to make the family violence order on 9 June 2010 are unknown to this Court. No doubt the order would not have been made by that court unless there were proper grounds for it, but the mother is distressed by the events associated with the order.[77] The Independent Children’s Lawyer described the family violence order as perverse. That seems an apt description based upon the evidence adduced in these proceedings. Far from the father needing protection from the mother, it is the mother and children who need protection from the father.

   [77] Family Report, par 50.

Section 60CC(3)(k)

1. The issue of family violence has already been separately addressed earlier in these reasons because of its overarching significance to the parenting orders that must be made. There is no need to say more.

Section 60CC(3)(l)

1. Although the orders effectively sever the contact between the children and the father, such orders are least likely to lead to the institution of further proceedings concerning the children.

2. The parenting arrangements for the children have been in a state of flux since the parties’ separation in April 2004, even though parenting proceedings were not formally commenced until January 2010. Attempting to fashion orders in accordance with the mother’s proposal that make provision for the children to spend time and communicate with the father, subject to fulfilment of a range of vague conditions, would be bound to fail and necessitate further litigation. There is no evidence which reasonably permits a conclusion that the troubles which have permeated the family for the last seven years are likely to abate.

Section 60CC(3)(m)

1. Neither the mother nor the Independent Children’s Lawyer submitted that any other fact or circumstance was relevant to the outcome of the proceedings.

Parenting orders

1. The Family Consultant expressly recommended that the parenting orders should relate to both children,[78] notwithstanding the eldest child is nearing the attainment of her majority. I accept that evidence, even though the proceedings have been conducted to date by the parties on the basis that the eldest child can make her own decisions.

   [78] Family Report, par 87.

2. The decisions of the eldest child, including her refusal to meet with the Family Consultant, her vacillating decisions to live with one party and rarely have contact with the other, and her attempt to keep secret her assault by the father in May 2011, are all suggestive of her struggle to cope with the pressure produced by the conflict within her family. The mother told the Family Consultant she believed the children were under pressure to placate the father.[79] An order that dictates the eldest child’s parenting arrangements, without the need for her to be involved in the decision-making process, is likely to relieve that pressure. The orders therefore include her.

   [79] Family Report, par 52.

3. The presumption of allocation to the parties of equal shared parental responsibility for the children does not apply because of the finding as to the occurrence of family violence (s 61DA(2)). The allocation of parental responsibility for the children will abide findings about the children’s best interests.

4. There was an inconsistency in the mother’s case which was never explained. Although she proposed orders in terms that allocated her sole parental responsibility for both children, she deposed in her affidavit:[80]

   I believe that with a suitable plan, that our children will be greatly advantaged by having their Father assist me and share in decisions about them, as this was demonstrated to be the case for three months from Christmas 2010…

   I had requested full parenting responsibility at Court on 3/5/11, as a result of been confused by conflicting advice as to the correct meaning of and implications of “full parenting responsibility”. Ideally I would like to share the responsibility with the Father (sic).

   [80] Mother’s affidavit, pars 47, 53.

5. The evidence overwhelmingly demonstrates the children would be gravely disadvantaged by the father being allocated any parental responsibility for them. The mother must realise that. It is implicit from her evidence that she recognised shared parental responsibility was only a possibility for the confined period of three months between Christmas 2010 and March 2011, from which it follows that the sharing of parental responsibility with the father for the remainder of the many years since their separation has been practically impossible.

6. The proposed order allocating sole parental responsibility for the children to the mother was the subject of strident approbation by the Independent Children’s Lawyer. No other order could conceivably be made in the face of the evidence.

7. It follows that the mother should have sole parental responsibility for both children, and that they should live with her. The real controversy was contained to whether, and in what circumstances, the children should spend time and communicate with the father.

8. The Family Consultant concluded, assuming proof of the father’s family violence, “the children and the mother are likely to be at risk of further harm if the children were to spend any time or communicate with the father”.[81] Lest there be any room for ambiguity, the Family Consultant confirmed in cross-examination that she recommended against the children spending “any” time with the father or having “any” telephone communication with the father.

   [81] Family Report, pars 81, 84, 90.

9. The Independent Children’s Lawyer submitted the father’s parenting capacity is debased by his mental illness and drug abuse, the mother’s capacity to make sound judgments is impaired because of her subjection to severe family violence, and the Court needs to make orders as a bulwark between the children and the father. I accept those submissions.

10. The mother entertains a fear the children will seek out the father as an act of rebellion against any injunction precluding their interaction with them. That is, of course, a possibility, but the evidence does not suggest it is a probability. Rather, it is more probable the children will experience an immense wave of relief that they have been released from the continuing responsibility to placate the father and are free to live peacefully with the mother, knowing the Court is responsible for ordering they have no interaction with the father.

11. There is no evidence from which the Court can presently predict, with any confidence, any improvement in the father’s condition. I accept the Independent Children’s Lawyer’s submission to that effect. In April 2011 the father’s general practitioner reported he had a “severe psychiatric illness” which was most likely “long ongoing and perhaps permanent”. In May 2011, despite some equivocation about his exact psychiatric diagnosis, the father’s community psychiatrist reported his “level of disability is expected to continue for the foreseeable future”. In the knowledge of that prognosis, the father was medically discharged from employment with the public service in NSW in June 2011 as permanently unfit for duty.[82]

    [82] Exhibits ICL3, ICL4.

12. It remains possible the father can rehabilitate from his mental illness and his illicit drug use at some point in the future. If he is able to regain his health then he is free to petition the Court for a review of the orders. Although the orders are final, they are never immutable. The Independent Children’s Lawyer proposed that the Court make notations to the orders acknowledging the prospect of the father’s fresh application for parenting orders following his rehabilitation.[83] The orders should not be clouded in that way. The orders should categorically finalise the parenting arrangements and it is sufficient that these reasons record the possibility of variation if material changes of circumstances occur in the future.

    [83] Exhibit ICL6, Notations 1 and 2.

13. Although the Family Consultant considered the prospect of the youngest child spending supervised time with the father,[84] that alternative was only contemplated in the eventuality the Court considered the youngest child should spend at least some time with the father. I am satisfied on the evidence as a whole, consistently with the Family Consultant’s primary opinion, that it would be contrary to the best interests of both children to spend any time with the father.

    [84] Family Report, pars 83, 91.

14. The Family Consultant did, however, recognise a countervailing factor which mitigated against severance of the children’s relationships with the father. The children and the mother harbour a high level of concern about the father’s wellbeing, such that “increased absence of the father in the children’s lives may also generate psychological strain for the children”.[85] That is of course a consideration, but I regard it as significantly less influential than the actual risk of harm the father presents to the children by reason of their continuing interaction with him. Counselling is likely to be a satisfactory salve for any “psychological strain” experienced by the children.

    [85] Family Report, par 81.

15. The mother’s counsellor, Mr J, is extremely concerned for the physical and psychological safety of the children and believes the youngest child was particularly vulnerable when spending overnight time with the father.[86] He considered the youngest child should be referred for counselling with the Child and Adolescent Mental Health Team.[87] Ms K was of a similar view.[88] The orders require the mother to ensure that occurs promptly.

    [86] Family Report, par 56.

    [87] Family Report, par 56.

    [88] Family Report, par 70.

16. The mother proposed that, even if the Court ordered termination of arrangements for the children to spend time with the father, orders should still permit telephone communication between the children and the father. I reject that submission. The evidence of the distress suffered by the youngest child by reason of his conversation with the father over the telephone as recently as June 2011 and October 2011 are reason enough to sever that form of interaction as well. One aspect of the evidence about the father’s commission of family violence is the suicidal and homicidal threats he has made in conversation with the children. The opportunity for that cannot be permitted to continue.

17. The orders make provision for limited written communication between the children and the father. That will enable retention of some contact between the children and the father, which is capable of being vetted by the mother.

18. Ms K considers the children should be informed of the orders by the Court rather than the mother.[89] I accept the mother should be relieved of that responsibility, but the task of informing the children of the orders made should be undertaken by the Independent Children’s Lawyer and Family Consultant, just as the Family Consultant recommended.[90] The orders so provide.

    [89] Family Report, par 58.

    [90] Family Report, par 95.

19. Given the severance of the children’s relationships with the father, the orders also require the mother to notify the principal of the children’s schools about the entitlement of the father to procure photographs of the children and details about their academic progress. The father may wish to avail himself of such documents and information through a sense of interest in their development, notwithstanding he will no longer have a role to play in that development.

20. The Independent Children’s Lawyer proposed that a copy of the Family Report be furnished to the NSW Department of Family and Community Services,[91] consistently with the recommendation of the Family Consultant.[92] I decline to make that order. The proposed order was not the subject of any oral submission and no explanation was offered for it other than the Family Consultant’s passing reference to some report having already been made available to the Department. The orders achieve the parenting outcome proposed by the Independent Children’s Lawyer and recommended by the Family Consultant. It is implicit the children are not at risk of harm in the mother’s care, provided the orders are the subject of compliance.

    [91] Exhibit ICL6, Order 10.

    [92] Family Report, par 86.

21. The Independent Children’s Lawyer proposed an order explaining inconsistency between the orders of this Court and the existing family violence order.[93] I decline to make such an order because it would be erroneous. The parenting orders are not inconsistent with the family violence order. A similar order to that proposed by the Independent Children’s Lawyer was formerly made on an interim basis,[94] but only because other interim parenting orders did entail some degree of inconsistency with the family violence order.

    [93] Exhibit ICL6, Order 7.

    [94] Order 10 made on 3 May 2011.

22. The Independent Children’s Lawyer proposed an order in the form of a mandatory injunction compelling the mother’s continued attendance at counselling. No such order is made, as the Court is without power to make such an unconditional final order (see L v T (1999) FLC 92-875 at [49-60]; Jacks & Samson (2008) FLC 93-387 at [200-226]). It would, of course, be beneficial for the mother to continue with her counselling.

1. I am satisfied the orders set out at the commencement of these reasons are made in the best interests of the children.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Friday, 9 December 2011.

Associate: 

Date:  9 December 2011