Evans & Waterman - [2023] FedCFamC1F 580

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Evans & Waterman [2023] FedCFamC1F 580

File number: MLC 195 of 2020

Judgment of: CARTER J

Date of judgment: 13 July 2023

Catchwords: FAMILY LAW – CHILDREN – whether the father poses an unacceptable risk to the children – whether the risks to the children can be ameliorated – whether there should be no orders for time and communication beyond sending letters and gifts – where the older children are expressing clear views – whether there should be separate arrangements for the younger children – children’s best interests – orders made

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

Cases cited:
Bielen & Kozma (2022) 66 Fam LR 59

Isles & Nelissen (2022) 65 Fam LR 288

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Summerby v Cadogen [2011] FamCAFC 205

Division: Division 1 First Instance

Number of paragraphs: 175

Date of hearing: 18 – 21 and 27 April 2023

Place: Melbourne

Counsel for the Applicant: Steven Kuan

Solicitor for the Applicant: MMH Lawyers

Counsel for the Respondent: James McIntyre

Solicitor for the Respondent: Hume Riverina Community Legal Service

Counsel for the Independent Children's Lawyer: Kim Southey

Solicitor for the Independent Children's Lawyer: Joliman Lawyers

ORDERS

MLC 195 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR EVANS

Applicant

AND:
MS WATERMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CARTER J

DATE OF ORDER:

13 july 2023

THE COURT ORDERS THAT:
1.All previous orders be discharged.

Parental responsibility
2.The mother have sole parental responsibility for the children W born 2006, X born 2010, Y born 2014, and Z born 2017.
3.The children live with the mother.

Communication with the children
4.The father is at liberty to communicate with the children by way of cards, letters and gifts no more than once per calendar month, at each of the children’s birthdays, at Easter and at Christmas, and the mother provide such cards, letters and gifts to the children upon receipt of same.
5.For the purpose of Order 4, within seven days, the mother advise the father of an address to which he may forward cards, letters and gifts, and the mother advise the father within 48 hours of any change to that address.

Communication between the parents
6.The mother provide the father, via email, a quarterly update for the children (for each child until they reach the age of 18 years) by 4:00 pm on 30 March, June, September and December including, but not limited to, an update as to their current interests, how they are progressing at school and any major medical issues.
7.Each parent keep the other informed of a current email address and advise the other within 24 hours of any change to same.

Passports
8.Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother be permitted to apply for an Australian passport and any subsequent renewals for each of the children in the absence of the father’s signature and/or consent.
9.The mother is permitted to travel with the children outside the Commonwealth of Australia for the purpose of a holiday.

Miscellaneous
10.The mother is at liberty to provide a copy of these orders to:
(a)the children’s school(s);
(b)each of the children’s treating medical, specialist or allied health practitioners;
(c)the Australian Passports Office; and
(d)any officer of Australian or International Border Control.

11.All applications are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER

The parties have four children; W born 2006 (17 years old), X born 2010 (12 years old), Y born 2014 (9 years old), and Z born 2017 (6 years old).
The parties agreed that the children should live with the mother and that she have sole parental responsibility for them. However, the parties did not agree as to whether the children should spend any time with their father, or have regular communication with him.
Accordingly, the issue I must decide in this case is what spend time and communication arrangements, if any, are in the children’s best interests.
THE PARTIES’ CASES
It was the mother’s case that there should be no order for face to face time or communication between the father and the children. It was her evidence that the father was a violent man throughout the relationship that spanned 2004 to 2018. There is a Final Intervention Order in place for the protection of the mother and the children. That was extended in early 2023 for a further 5 years, and will expire in 2028. The father did not attend the last hearing at the Magistrates’ Court to contest the making of that order.
It was the mother’s evidence that the father repeatedly subjected her and the children to verbal abuse and denigration. His physical abuse of her included pushing her, shoving her, slapping her including on her face, punching her, pushing her into walls and into furniture, and pinning her down. At times the abuse occurred in the presence of the children, causing them to be distressed and anxious. On one occasion she said he pinned her to the wall, with his arm against her throat preventing her from breathing properly. She said she thought she was going to die. She said she left the relationship on many occasions, but was coerced and belittled into resuming her relationship with him.
The mother’s evidence was also that the father used excessive force when disciplining the boys.
Post-separation the father has repeatedly breached the Intervention Order, including repeatedly calling the mother sometimes in the early hours of the morning, texting her, stalking her under a pseudonym through a dating website, uploading videos to YouTube about the children, and videos in which he denigrated her.
The mother also outlined the father’s history of chronic drug and alcohol abuse and mental health issues that impaired his capacity to properly and safely parent the children.
It was the mother’s evidence that the boys have expressed strong views that they do not wish to have a relationship with their father, although she would facilitate the children being provided with communications from him. She proposed she would provide the father with a quarterly update on the children’s wellbeing.
The mother opposed any orders for time between the father and any of the children. She said W and X have elected to have no relationship with their father. It was the mother’s case that Y and Z should not spend time with the father either, as implementing time between the father and younger children would be destabilising for her household and potentially expose the children to harm.
The mother sought orders for obtaining a passport for the children, and orders allowing her to arrange for them to travel overseas for holidays without having to obtain the father’s approval.
It was the father’s case that the orders should provide for the children – or at least the younger two – to spend time with him on a monthly basis. He proposed this would occur on the first weekend of each calendar month on Saturday from 10:00 am to 2:00 pm and the same on Sunday, which he hoped would progress to overnight visits. The father proposed he would travel to City B where the children currently reside in order to facilitate the spend time arrangement. He proposed his time could be supervised by his mother, and that he would drive with his mother to City B to exercise that time.
The father denied he was a risk to the children, or that he had subjected the mother or any of the children to violence, which he said had been fabricated by the mother. He said the children had been coached to make allegations of abuse and violence, and the mother was trying to alienate the children from him without any justification.
There were other orders sought by the father such as communication via telephone or other electronic means, additional time with the children on special days, and consultation between the parents on the children’s health and wellbeing and general access to information such as the children’s extra-curricular activities.
At the conclusion of the hearing the father sought additional orders for family therapy, and suggested it may be appropriate for interim orders to be made rather than the matter being resolved on a final basis. This position was not supported by the mother or the Independent Children’s Lawyer.
The Independent Children’s Lawyer supported the mother’s proposals that there be no face to face time between the father and any of the children. The Independent Children’s Lawyer also recommended that the father communicate with the children by way of cards, letters and gifts no more than once a month, at each of the children’s birthdays, at Easter and Christmas. The mother agreed with that proposal.
THE ISSUES AT TRIAL
The evidence and submissions in this matter focussed on the following considerations:
(a)will the children, or any of them, benefit from having a meaningful relationship with the father?;
(b)what are the risks to the children if orders are made for them to spend time with their father?;
(c)whether any risks to the children spending time with their father can be ameliorated, such as by requiring the time to be supervised?;
(d)what are the children’s views, and what weight should be given to them?;
(e)what is the nature of the children’s relationship with their father?;
(f)what would be the impact on the children if arrangements were made for any of them to spend time with him?; and
(g)does the father have the capacity to meet the needs of the children?
The questions of risk turns substantially on:
(a)the allegations concerning the father’s behaviours surrounding drugs, alcohol and violence, and the allegations regarding the father’s mental health vulnerabilities; and
(b)whether the father has sufficient insight into those matters and/or has taken sufficient steps to address these issues such that moving forward the risk of harm to the children is not unacceptable.
THE CREDIBILITY OF THE PARTIES
The father was not an impressive witness. He frequently minimised his behaviours, and sought to rationalise, reconstruct and justify how he had acted and responded. He shifted responsibility away from himself. He was at times sarcastic in his answers, and at other times visibly annoyed and irritated by the questions put to him. He was often inconsistent, for instance, in relation to his drug and alcohol use. He denied having made statements to various professionals about the extent of his drug and alcohol abuse, then subsequently admitted he may have made the statements, but was lying to those professionals. He admitted he and the mother argued but denied having subjected the mother to family violence. He admitted drinking to excess on a number of occasions, and that he could become violent when intoxicated. He blamed his alcohol misuse on the mother – claiming his alcohol consumption was a result of her being difficult to live with before separation, and as a consequence of her efforts to separate him from the children post separation.
Conversely, the mother appeared to give her evidence in a straightforward and genuine manner. She generally gave succinct and straightforward answers while being cross-examined. Where her evidence and that of the father are in conflict, I prefer the version given by the mother. That includes her evidence as to the father’s violent and abusive behaviours. The mother’s evidence in that regard was detailed and compelling.
The maternal grandmother (Ms C) and step-father (Mr D) gave their evidence in a straightforward and direct manner, and I accept their evidence. That included having witnessed the father being loud and abusive towards the mother during the relationship when alcohol affected, having seen the children being fearful of their father when he screamed at them, having heard the older children complain about their father’s behaviour and in relation to the incident in late 2018 during which the father assaulted Mr D.
The paternal grandmother (Ms E) also gave her evidence in a direct and upfront manner. However, as I set out later in these reasons I have concerns about her insight into the father’s behaviours and the impact of it on the children.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
Section 60CA of the Family Law Act 1975 (Cth) requires that in deciding whether to make a particular parenting order in relation to children, I must consider the best interests of the children as the paramount consideration.
The Full Court in Bielen & Kozma (2022) 66 Fam LR 59 recently stated at [28] this means:
…the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
I must carefully consider the impacts – short and long term – of the parties’ proposed orders “upon the [children’s] physical, emotional and psychological safety, security and wellbeing”: Bielen at [29].
The Act requires me to take into account a range of matters as set out in s 60CC in determining what arrangements are in the children’s best interests.
The objects of Part VII of the Act include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the children’s best interests [s 60B(1)(a)]. Unless it is contrary to a child’s best interests, the legislation provides that children have a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
Section 60CC of the Act sets out the primary considerations in determining what is in the children’s best interests. I must consider both the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Section 60CC(3) of the Act sets out a raft of additional consideration that I must also take into account in determining the children’s best interests. As set out by the Full Court in Bielen at [35], those can be conveniently grouped as follows:
·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
THE PRIMARY CONSIDERATIONS
Will the children benefit from having a meaningful relationship with the father?
The Act does not define the word “meaningful”. It has been held to be synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518.
In most cases there is a positive benefit to the children having both parents involved in their lives. However, the Full Court has observed that in some cases there will be no positive benefit to a child by the Court making orders to attempt to foster a relationship with one parent, and that to do so would not be in the child’s best interests: McCall & Clark (2009) FLC 93-405 [122].
It was the father’s case that the children will benefit from him being meaningfully involved in their lives. He says the children have a right to know and be cared for, and to spend time and communicate with both of their parents, and that the children’s rights in this regard outweigh the risks he regards as being fabricated by the mother.
It was the mother’s case that the children do not, and cannot have a meaningful relationship with their father. It is her evidence – which I accept – that the father subjected her and the children to ongoing violence and abuse. This has left an enduring psychological and emotional impact on them. She says the three boys are strongly opposed to having a relationship with him, and experience him as unsafe and frightening. It was her case that there would be no benefit to the children in making orders for time with their father in those circumstances – and that to order time would more likely cause harm to the children than confer any benefit.
What are the risk issues?
The father’s criminal offending
It is apparent the father has a history of criminal and driving offences.
In 2007, he was convicted for drink driving, as well as numerous other offences. Later that year his driver’s licence was cancelled when he was caught driving whilst his licence was suspended. He was also convicted for drink driving, and another offence. At that time, the father was directed to undergo assessment and treatment for drug and alcohol addiction.
In 2009 the father was convicted of assault and fined. The LEAP report in relation to that incident records the victim attended at the father’s home. The father is reported to have struck the victim. Later that year the father was again convicted of driving whilst disqualified. He was sentenced to a term of imprisonment, wholly suspended.
In 2015 the father was charged with breaching an Intervention Order – which he said his sister had taken out. The father gave an undertaking to work with his case manager at F Psychiatry, and that charge was subsequently dismissed given his compliance with that undertaking.
In early 2018 the father was convicted of further offences. He was fined for those offences and again suspended from driving for two months.
In mid-2018 the father was convicted and fined for an offence. Furthermore, in the same month, the father was charged by police for inter alia a traffic offence. He could not recall the incident as he was drunk at the time and “was out of it”. The LEAP report records the police observed the father’s vehicle nearly hit another vehicle. He failed to stop when directed by police. The father failed a preliminary breath test, and subsequently refused a further test at the station. The LEAP report records that the father’s phone had “multiple messages of drug trafficking” and the father had prescription medication with him. He was charged, bailed and released. I understand he lost his licence for a period as a result of this incident.

In late 2018 there was a physical altercation between the father and the maternal step‑grandfather, Mr D. Mr D’s evidence, which I accept, was that during the incident he slipped and fell over, and the father kicked him when he was lying on the floor. I accept the evidence of the mother and her parents that the father threatened to kill the mother and Mr D. The mother said she thought the father was going to kill Mr D.
The father was charged and subsequently convicted and fined. At trial, the father took no real responsibility for this assault. Nor did he express any genuine remorse. He described himself as acting in self-defence. He said there were “punches and legs going everywhere” and that “[Mr D] was hitting me and I was hitting him”. He struggled to acknowledge that he was charged – initially saying that the charges “got sort of dropped”, then describing it as “a fight”, but ultimately admitted he pleaded guilty to that charge. When his criminal conviction was raised again, he said he ‘thought’ it “went through”, but he was unsure if it was “withdrawn with no conviction”. He admitted he had also consumed some alcohol on that occasion. W was present at the home, heard the altercation and may have seen a part of it.
In late 2018 the police assisted the mother to obtain an Intervention Order against the father, for her protection.
In late 2018, the children were, by agreement, to spend time with their father overnight. I accept the mother’s evidence that the father called her and told her to “come and get your fucking kids”. When she did so, the father pushed her, and threw her to the ground. The mother then hit the father and he retaliated by punching her, striking Z in the process.
In mid-2019 the charges arising out of the mid-2018 driving incident were finalised. The father was placed on a Community Corrections Order. He was also directed to undergo assessment and treatment for alcohol abuse and to complete a road trauma awareness program. His driver’s licence was cancelled for a period. As at the hearing before me the father had not yet got his licence back, but said he was in the process of doing so. I understand he will have an interlock device fitted to his car for the first six months after he resumes driving.
In mid-2019 the father assaulted a transport worker. The father did not express any contrition for this assault – instead blaming the transport worker for allegedly moving the vehicle when the father was trying to disembark. He also said that at that time he was “going through a rough patch” because he was not seeing the children, and he “went a bit feral”. He acknowledged he had “a few drinks”. Initially he said he had drunk “maybe two, three, maybe four”, and then later said he had “four or five” beers. The father was convicted of assault in relation to that incident in 2021.
In late 2019 the father attended the home of Ms G – the mother’s sister – in the early hours of the morning. He was intoxicated. During an exchange with Ms G he spat on her screen door, and then smashed the windscreen of her vehicle. He was charged with offences. At trial, Ms E said she took him to Ms G’s home as he wanted to find out from Ms E where his children were. He acknowledged he pleaded guilty to the charges. However, he did not appear to express any genuine contrition for his behaviour that evening. The father was charged with breaching the conditions of his Community Corrections Order.
Between mid and late 2020, the father repeatedly engaged in behaviours that breached the mother’s Intervention Order. He stalked the mother by following her on an online dating website under a false name; he engaged or sought to engage in multiple telephone conversations with her; and he sent her texts and intimate pictures messages. He was charged in relation to those breaches in late 2021.
In late 2020 the father was convicted of multiple counts of contravening an Intervention Order and fined. He said that was without conviction, despite what the record shows. He indicated his view that the breach was harmless, asserting he uploaded videos online in which he said he missed his children. It is deeply concerning that the father repeatedly breached the Intervention Order, and that he continues to minimise his behaviour in doing so.
In early 2021 the father assaulted the teenage son of a woman he was then dating. The father was insistent that it was a joke, and the teenager he was alleged to have assaulted was almost 18 and tall. The father acknowledged he had been drinking that day, and that after the teenager jokingly put a bra on over his clothes, he told the boy to “suck my dick” and then jumped on him and wrestled him. The father claimed he did not realise the teenager had been upset by his actions, which he said were done in jest, describing himself as being “a pretty funny guy”. The father ultimately pleaded guilty without conviction, and received a fine. The father was obviously irritated that he was asked about the events of this day, and sarcastically commented about being questioned on this topic. He did not appear to express any real contrition. The father was similarly dismissive about these events when interviewed by the report writer.
In late 2021 the father was placed on another Community Corrections Order in relation to the incidents regarding Ms G and the transport worker. The conditions included that the father undertake community work, and undergo assessment and treatment for alcohol abuse.
The following month, the father was charged with multiple counts of persistently breaching an Intervention Order. These charges arose out of the behaviour undertaken by him in mid to late 2020 to which I have already referred.
In late 2022, the father pleaded guilty to multiple charges including stalking and persistently contravening a Family Violence Intervention Order. The father was subsequently placed on a Community Corrections Order and was ordered to undertake several hours of unpaid community work.
The mother deposed to additional breaches in 2021, including that the father telephoned her, and sent her text messages and voice messages of a threatening and/or aggressive nature.
The father was dismissive in relation to the multiple charges he had faced of breaching the mother’s Intervention Order. He acknowledged he pleaded guilty but said he only did so in order not to further delay the family law proceedings. He also said those breaches did not impact the children.
Initially the father’s evidence was that the breaches of the Intervention Order were only in relation to text messages he sent. When challenged, he acknowledged that he had also telephoned the mother. He justified his decisions to call her in the early hours of the morning as “I heard that she was on drugs” and he thought he might catch her out if he called her “at a random hour of the morning”. He was similarly dismissive when questioned about having engaged with the mother on a dating website under an assumed identity, and about having been charged with breaching the conditions of his Community Corrections Orders that required him to not commit any further offences. When asked about those charges he said he did not know and that “my lawyers deal with all that”. He did not express contrition or remorse, or indicate any understanding as to the impact of his behaviour on the mother.
At trial, the father admitted that he looked “terrible on paper”, but said he always pleaded guilty. He maintained that he had never subjected the mother to any abuse, describing her allegations as fabrications. As already observed, I do not accept his denials.
The father’s drug and alcohol use
The father has a lengthy history of alcohol and prescription drug misuse. In 2008, he had a psychiatric admission following an overdose. He was diagnosed with an alcohol abuse and adjustment disorder. That was the same diagnosis he received in 2013, following a further overdose by him.
Medical records from 2014 refer to the father’s:
…long history of Alcohol Abuse binge pattern and a history of aggression (domestic violence) and self harm (overdose of prescription medication) whilst intoxicated.
The father attended residential withdrawal and/or rehabilitation programs including in around late 2017/early 2018 and again later in 2018, with H Organisation, prior to separation. He attended another program with J Organisation in City M in 2020.
The program the father undertook in 2020 appears to be the most intensive drug and alcohol counselling undertaken by him. It predates further offending behaviour that involved the consumption of alcohol on the part of the father.
The father’s alcohol consumption
The father was evasive and inconsistent regarding his alcohol use. He said he had “some drink driving” offenses, but did not agree he had an issue with misuse of alcohol. He later acknowledged that he did in 2018 have “a drinking problem”. He placed responsibility on the mother, denying that he was at risk of drinking to excess now that he had separated from her, saying that when he was with her, things were “so chaotic” that he drank alcohol as he needed “a release”. He also said that he “went off the rails a bit” in 2018 and 2019 when the mother had taken the children. He admitted that he drank to excess of a number of occasions saying that she was not letting him see his children.
I have already referred to the father’s drink driving records.
In relation to the level of alcohol consumption the father reported to his counsellors in 2018, and again in 2020 at the rehabilitation programs, the father insisted this was greatly exaggerated. According to the records, the father reported drinking around 10-15 full strength cans of beer every day in 2018 and 10 or more drinks a day in 2020. The father said the counsellor had misunderstood him, and that the father meant he drank that much on a fortnightly basis, not a daily basis. He got irritated and dismissive when pressed by counsel. Alternatively, the father asserted he had exaggerated his alcohol consumption to secure entry into the programs. I do not regard either as a plausible explanation.
In relation to his current alcohol use, the father said he last drank about six months ago (which would have been in around October 2022). However, he then said he spent Christmas 2022 with his mother and he did have a beer with her. He then acknowledged he also had some alcohol on New Year’s Eve. Ms E said she spent Christmas interstate and was not with the father.
The father acknowledged he could become violent when intoxicated. He told the drug and alcohol counsellors in 2018 that if he drank a couple of drinks it would then “go out of control”. His evidence was that that did not apply to him now. He attributed his excessive alcohol consumption to being triggered by the mother and her actions, and insisted that he now had his alcohol issues under control as he was no longer living with a “bipolar ice freak”. He said now he had separated from the mother, and had a supportive girlfriend and a good job, his life was back on track.
The father undertook Hair Follicle Tests in October 2020 and April 2021. Neither of those tested for alcohol. The father tested negative for all illicit substances. He was requested by the Independent Children’s Lawyer to undertake a further Hair Follicle Test on 20 July 2022. He did not comply with that request. He was irritated by being questioned about not doing so, said he had already done two, he had to pay privately, and that “you’re always asking” for such tests.
It has been difficult for me to form a clear view about the extent of the father’s current alcohol use in light of the way in which he gave his evidence. It is apparent that most of the father’s offending and abusive behaviours have occurred in the context of alcohol consumption. The father’s evidence was he could go months without drinking, and then something might occur and he would “have a bit of a binge”. He said it “goes in waves”. He said his alcohol consumption has “had its ups and downs”, but that he had been “really good” over the last five years. In light of his offending behaviour in 2018, 2019, 2020 and 2021, and the self‑reports to his drug and alcohol counsellors, this cannot be correct. It is notable that alcohol related offending continued to occur after the father completed an intensive rehabilitation program in 2020.
The Family Report Writer was not confident the father had adequately addressed his alcohol misuse, and urged that the father should be abstinent for a significant period.
The father’s misuse of prescription medication and illicit substances
It is agreed that the father previously abused a prescription medication following suffering an injury in around 2012. That pre-empted his attendance at a residential withdrawal program in 2018. To his credit, that is no longer an issue for the father. However, at trial the father appeared to try to minimise the extent and impact of his misuse of drugs. His evidence was that he deliberately lied and exaggerated regarding his use of prescription medication, and fabricated his use of illicit substances to service providers in order to get into the programs, at the direction of those providing the program.
The father acknowledged in 2018 he was taking multiple medications. He laughingly said “I was on a lot of tablets”. He said he could not remember whether he was also taking another medication at that time. Whilst he was taking a considerable amount of one medication daily he said he did not think that would have been sufficient to meet the admission criteria, saying that you have to be “a pretty messed up character to get in there”.
In response to being asked if he had taken certain illicit substances in around 2018, the father’s responses were unclear. He said he did not remember taking those substances, but it could have happened. He also said he not agree he had taken illicit substances. Ultimately, he conceded he did not have a clear recollection of what drugs he was taking at that time.
The father’s evidence regarding what he had told his drug and alcohol counsellors was deeply troubling. He became obviously irritated and annoyed by the cross examination of the Independent Children’s Lawyer as to his assertion he had lied to the program providers. If I accept that the father is prepared to lie about his drug and alcohol use when he perceives that will be an advantage to him, it is difficult for me to accept the father was giving honest responses to questions about his drug and alcohol use at trial. If he was being accurate with his drug and alcohol use at that time, it is troubling that the father is not now willing to acknowledge the extent of his drug and alcohol misuse, particularly in circumstances where both Dr K (who prepared psychiatric assessments of both parties for these proceedings) and the Family Report Writer have urged the father to meaningfully engage with drug and alcohol counselling.
The father’s mental health issues
The father’s mental health issues are longstanding. The father indicated he was currently taking medication for panic attacks, anxiety and depression. The father acknowledged that on three occasions he has attempted to take his own life. Those incidents occurred in 2008, 2013 and 2019.
The father acknowledged that he continued to experience panic attacks. He said the frequency of those incidents have reduced, and they are no longer a weekly event. He said he experienced one about two weeks before the final hearing, and prior to that around Christmas time.
Does the father have any other psychiatric diagnosis?
Dr K suggested the father’s history was consistent with disordered personality traits or a personality disorder. It does not appear the father has sought any real clarification from another mental health professional in relation to that suggestion. The father said it was not a diagnosis, and he did not discuss this with his treating psychiatrists as he did not regard it as relevant. He said he has had “other things on my mind”.
The drug and alcohol counselling notes from 2018 refer to the father reporting having been diagnosed with a mental health condition in 2009. That was rejected by the father. In his oral evidence however, the father also asserted:
·he “probably said” that;
·he “might” have said that;
·he did not know if he said that; and
·if he had said that, it was not true, and he only said it “to get in” to the service.
The progress note from L Mental Health Service in City M dated 2019 refers to the father’s diagnosis including “drug induced psychosis”. The father had taken an impulsive overdose four weeks earlier, following a Court hearing in which he “did not get the custody of children”. The father denied ever suffering a drug induced psychosis.
In May 2021 the father obtained a Mental Health Treatment Plan. The father’s mental disorders are described as mixed anxiety and depression, acute psychotic disorders and panic attacks. The father denied he ever suffered an acute psychotic disorder.
A letter from the father’s psychiatrist, Dr N dated July 2022 suggested the father may have an attention deficit disorder problem. The drug and alcohol counselling notes from 2018 also query whether the father has attention deficit hyperactivity disorder. The father has not sought a further opinion in this regard.
Has the father taken adequate steps and engaged appropriate supports to address his vulnerabilities?
There have been multiple recommendations for the father to engage in treatment and courses. The father has engaged services at times, and attended upon a number of medical and allied health professionals to assist with his mental health. However, in my view, he has not engaged sufficiently in these processes such that I can be satisfied these issues are adequately addressed:
(a)the father undertook a Building Better Bridges post-separation parenting program in 2020. The father has repeatedly breached the Intervention Order since that time;
(b)in 2020 the father engaged with J Organisation for Alcohol and other Drug counselling sessions. Whilst he reported to his counsellors he had remained abstinent and was said to have engaged well in the counselling process, and demonstrated a commitment to change, he subsequently engaged in offending behaviours after consuming alcohol. He did not adduce any evidence that he engaged with alcohol counselling since October 2020;
(c)the father attended upon Dr P at L Mental Health Service, City M, on and off from 2016 to sometime in 2022. The father’s current psychiatrist is Dr N. He has seen him for one appointment only, in July 2022. The father said there had been “a lot going on” with his move to Melbourne and working. He said he obtains prescriptions by telephoning the clinic. He said he intended to attend upon his psychiatrist at the conclusion of the Court proceedings, as he did not want his medication to be altered shortly before the final hearing. Dr N is not on affidavit;
(d)after obtaining a Mental Health Treatment Plan from his General Practitioner in around May 2021 the father commenced attending upon Ms Q for general counselling. He stopped attending upon her when he moved to Melbourne, with the last session occurring in around July 2022. He had attended upon her approximately 15 times. The father said he had been too busy working to seek further psychological assistance, and that he was going well. Ms Q is not on affidavit;
(e)in mid-2021 the father participated in the Caring Dads program through R Services. He deposed through this he has learned to be accountable for his behaviour. I did not gain that impression from his oral evidence;
(f)the father commenced an anger management course in late 2021 but did not complete it. He told the Court he could not find another service provider with whom he could complete the program after he moved to Melbourne. However, he did not adduce evidence to show that he made any attempts to locate another suitable service provider. He said after moving to Melbourne it was not a priority for him to finish the course. He said he thought he “got enough out of it” but did not articulate much insight into his behaviour as a result of his attendance at part of that program.

The father has not obtained a regular General Practitioner in Melbourne and accordingly has not had any form of medical review since July 2022. The father did not adduce affidavit evidence from his psychiatrist. He has not adduced an affidavit from Ms Q. Accordingly, I have no current evidence from any of those treating the father as to his current presentation, engagement, medication or prognosis.
The father has not engaged with drug and alcohol counselling since 2020. The terms of his late 2021 Community Corrections Order included that the father undergo assessment and treatment for alcohol abuse. The father’s case outline provided that “the assessor stated that no alcohol and drug treatment was required”. I have no evidence beyond this statement that the father was assessed and not required to undergo treatment.
In his affidavit filed 11 April 2022 the father deposed he was attending upon treatment and rehabilitation. If he was referring to his attendance on Ms Q, that was for general counselling, not alcohol abuse counselling. At any rate, that ceased in July 2022.
In both of his reports, the Family Consultant recommended the father should undertake extensive rehabilitation and counselling including for alcohol addiction over a 12 to 24 month period. He also said the father should demonstrate ongoing engagement with suitable psychiatric services and be assessed for attention deficit hyperactivity disorder. Other than attending upon Ms Q for general counselling until July 2022 the father has not complied with any of those recommendations.
The Family Consultant expressed considerable concern about the father failing to take responsibility for his behaviours, and what appears to be a long standing pattern of non-respect for authority. He opined the father may have deeply ingrained issues with self-regulation. He remained unconvinced that the father’s alcohol misuse is controlled. I share those concerns.
The father’s attitude towards the mother
I am concerned about the father’s unrelentingly negative attitude towards the mother. He blames her for his alcohol issues, and for the state of the children’s relationship with him. He told the Family Consultant in July 2021 that the Court would accept the mother’s allegations because women are ‘always believed’ when they make abuse allegations. In the Addendum Report, the father repeated that the mother was manipulative, that she brainwashed the children, had fooled the Family Report Writer and that the Court was allowing her to alienate the children from him. The father complained that the first Family Report had “unfairly favoured the mother, that almost all men got a bad deal with the Courts over their children”.
When interviewed for the Addendum Report, the father maintained that there was a positive relationship with his children demonstrated by the encouraging reports of the children’s contact service. He did not accept the possibility that the children may not wish to see him. The father asserted that any negative perceptions of him by the children were a result of the mother’s alienation of the children from him. When challenged as to whether the children might be reporting accurately on his anger and violence, the Family Report Writer observed the father to become quite confrontational and said it was “complete rubbish”. The father said he had had enough of the interview and terminated the call when the Family Report Writer suggested the children might not want a relationship with him. The Family Report Writer noted the father demonstrated little insight or awareness as to the negative effects family violence has on children.
Whilst the father does not have much regard for the mother, to his credit it does not appear that he exposed the children to his views during the periods of professionally supervised time. The supervisors’ reports indicate that Ms E, however, did become upset and blamed the mother when the older children did not want to see the father. It would clearly be quite damaging for the children to be exposed to negative views regarding their mother.
ARE THE CHILDREN AT RISK IF THEY SPEND TIME WITH THE FATHER?
In Isles & Nelissen (2022) 65 Fam LR 288 the Full Court considered how the Court assesses whether there is, moving forward, an unacceptable risk. This step is not determined on the balance of probabilities. Rather, it is a predictive exercise, after weighing and considering the evidence, focussing on the future risks. It “entails a forecast”; Isles & Nelissen at [105].
Having listened carefully to the evidence and considered each document in evidence before me, I am satisfied:
·The father has a lengthy history of family violence, drug and alcohol abuse which does not appear to have been satisfactorily addressed by him;
·The father has been dealt with by the State Courts on a number of occasions for violent offences and alcohol related driving offences; and
·The father has at times struggled with his mental health and currently has limited professional supports.
The father’s lack of insight into these issues and how they impact on the children, and his failure to take responsibility for his behaviour leads me to conclude there would be an unacceptable risk of harm to the children moving forward.
Are there steps that can be taken to ameliorate or mitigate the risks to the children?
In the recent decision of Bielen the Full Court reiterated that making a finding of unacceptable risk does not conclude my determination. I must consider whether there are steps that can be taken, or safeguards that can be implemented to ameliorate that risk such that the children can maintain a meaningful relationship with the other parent. Their Honours cited with approval the reference in Summerby v Cadogen [2011] FamCAFC 205 at [95] that the termination of a child’s relationship with a parent is a “course of last resort”. Their Honours also made it clear that in some circumstances an order for ongoing supervision might be appropriate.
I am satisfied that professional supervision could significantly ameliorate the risks to the children in terms of their physical safety. It would also ensure the children were not exposed to the father’s negative attitude towards the mother. There has also been a significant time lapse since the children last saw their father. Having a professional supervisor present could provide the children with some comfort as they become reacquainted with their father.
Given the distance between the father’s home and the mother’s home, there are practical difficulties in facilitating time. To his credit, the father readily expressed a preparedness to undertake significant driving to facilitate time with the children, and a willingness to meet the costs of professional supervision if the Court felt that was necessary. However, no-one adduced evidence or made submissions as to the availability or cost of a supervisor. Whilst the father is currently employed and says he can meet the costs of supervision, there is a risk that his financial circumstances may change such that he could no longer do so. That could be disruptive for the children if time commenced, and was again interrupted.
I am not satisfied that the risks would be sufficiently ameliorated if that time was to occur with Ms E providing supervision. Nor if the time occurred in public places. In that regard I note the Family Report Writer expressed concern that the father might be able to manage his behaviours in the confines of a children’s contact centre, but would likely find it far more difficult to contain his behaviour outside of that setting. It may also be that the children would not feel safe if time were to take place away from the children’s contact service.
I accept that Ms E loves her grandchildren very dearly, and wishes to resume a meaningful role in their lives. Prior to the parents’ separation, it is also clear she assisted the parents in caring for the children, and developed a close and loving relationship with her grandchildren, spending time with them on several occasions each week. However, I am troubled by her lack of insight into her son’s poor behaviour, and his drug and alcohol issues.
I am also troubled by Ms E’s preparedness to assist the father in late 2019 when he attended Ms G’s home. Ms E acknowledged the events occurred at around 3.00 am. She acknowledged the father had been drinking. She then facilitated his attendance at Ms G’s premises by driving him over there. She minimised and justified his behaviour – suggesting it was only a little bit of saliva rather than him spitting at Ms G, that it was Ms G’s attitude that had inflamed the situation and that Ms G was a drug dealer. Ms E was not able to prevent the father from breaking the car windscreen.
Ms E also appeared to blame the mother for the poor relationship between the father and the older children, telling the contact supervisors in 2021 that it was the mother’s “doing” that the children did not want to see him.
Whilst professional supervision might ameliorate the physical risks to the children, I remain deeply concerned about:
(a)the emotional and psychological effect on X and W if they or their younger siblings are required to spend time with the father, given their unequivocal views about the father and the risk he presents;
(b)the emotional and psychological effect on Y if he is required to spend time with the father, and the impact this may have on his relationship with his mother, given the emotional dysregulation he exhibited following time and communication;
(c)the impact on Z and her relationships with her brothers if a different regime were implemented for her;
(d)the impact on the sibling bonds if different regimes are imposed for different children; and
(e)in circumstances where the mother is the undisputed primary carer, the impact on the mother and on the stability of her household if time is ordered.
These are not matters that can be addressed by time being supervised. Nor were there other safeguards proposed by any party that could mitigate the risks to these children in a manner that accords with the objects of Part VII of the Act.
THE ADDITIONAL CONSIDERATIONS
What are the children’s views and what weight should be attached to those views?
W is 17 years old, and in year 11. He has been diagnosed with autism and reports experiencing symptoms of anxiety. He has expressed a clear and unequivocal view to the Department and to the Family Report Writer that he does not want to see his father, who he regards as dangerous and abusive. To the Family Report Writer, W described that the father had hurt him, his siblings and his mother. He repeated his concerns when interviewed a second time, referring to the father as having beaten and hurt him and his mother.
X is 12 years old. He is in Grade Six. He also reports experiencing symptoms of anxiety and has been diagnosed with autism. He corroborated W’s concerns regarding the father’s abusive behaviours, and expressed being scared of his father when interviewed by the Department and the Family Report Writer.
Y is eight years old, and is in Grade Three. He has been diagnosed with behavioural disorders and autism. Additionally he has a borderline intellectual disability. Y also reported to the Family Report Writer that he was scared of his father and that his father had hurt him and his siblings and his mother. The Family Report Writer observed that Y’s presentation suggested that he, and W, had experienced “extreme distress if not trauma as the result of the father’s abusive behaviour” and had both “suffered extremely” from being exposed to their father’s abuse of them and their mother.
Z is six years old and in Grade One. Z has had some speech difficulties, which the mother said she understood may have been caused by Z’s exposure to family violence. I understand her speech is improving. As best I can tell Z very much enjoyed spending time with her father at supervised visits. She did not report feeling scared or fearful of spending time with her father. The mother acknowledged she might want to spend time with him.
In his July 2021 report the Family Report Writer observed the three boys were especially condemning of their father, portraying him as extremely abusive to them and to the mother, that they are scared of him, do not trust him and do not feel safe with him. The Family Report Writer expressed clear concerns that the children had been adversely impacted by being exposed to the father’s abuse of their mother and themselves.
The children were interviewed by the Department of Families, Fairness and Housing as outlined in the s 67Z Response dated 13 December 2021. At that time, the children (presumably the older three) reported memories of their father using inappropriate discipline, and drinking to excess. They expressed a view that they did not feel safe whilst in his care, and did not want to see him.
In his second report dated 22 April 2022, the Family Report Writer described the boys as having “a more pronounced, unwavering and quite negative” attitude towards their father. That was despite Y having spent a few periods of supervised time with the father just months prior to being interviewed for the second report, which he seemed to enjoy. The Family Report writer noted that the two older boys in particular demonstrated “a growing detachment from the father” which he felt reflected their recovery from the trauma they experienced as a result of their long term exposure to abuse.
X told the Family Report Writer that he was not scared of his father any more, but “just feel[s] very uncomfortable or uneasy about him and it’s a horrible feeling I don’t like”.
Y said he remembers how much the father used to scare him, and how frightened he used to be of what the father might do to the mother. He said “I used to cry and be so upset and scared when he hurt Mum”.
In addition to these comments by the children, the Family Report Writer also noted that Y had told him:
I know Dad wants us to be made to see him… I do want to see him just once and then no more time because I want to tell him how bad he was and how much he hurt us and that’s it.
The Family Report Writer concluded that in light of the extensive and ongoing trauma the children were exposed to, it is likely that they will become increasingly negative towards their father, and in the circumstances, the father should be involved in their lives on a very limited and controlled basis, if at all.
The weight to be given to those views
W, X and Y have been diagnosed with autism. Y also has other behavioural disorders. There was no evidence or submissions that these matters impacted on the weight to be given to the views expressed. I understand that children with autism tend to have fairly concrete or black and white thinking.
The father denied the boys’ reluctance to see him was as a result of his own behaviours, and insisted their attitudes were moulded and manipulated by the mother. He claimed the children’s disengagement from him during attempted Skype communications had been orchestrated by the mother who coached the children to reject him, and set up distractions when the calls were placed. He also claimed the mother may have influenced the children during their interviews with the Family Report Writer.
I accept the mother’s evidence that she has tried to shield the children from her own feelings about the father, and that she has tried to encourage the children to spend time and communicate with him. She was able to articulate an understanding that her relationship with the father was separate from the children’s relationships with him, and that denigrating the father to the children would be detrimental to them.
The Family Report Writer also said there was nothing in the children’s presentation that indicated they were being influenced by their mother at interview. The Family Report Writer concluded that even if the mother had encouraged the boys to have negative view of their father and oppose spending time with him, they do not wish to see him and those views have become entrenched. He concluded:
any prospect of them being reconnected with him must be handled with extreme circumspection so as to protect their everyday equilibrium and especially their ongoing recovery from the former trauma they were seemingly so often exposed to.
The reality is that for W and X – at 17 and 12 years old respectively – significant weight must be given to their long standing views. It would not be practicable to require them to attend time with their father in light of those clear views.
In relation to Y, I am of the view that less weight can be given to his views as he is only 8 years old.
What is the nature of the children’s relationships?
The children’s relationships with their mother appear to be strong and positive.
In regards to the children’s relationships with Ms E, I accept she was an involved and engaged grandmother prior to the parties’ separation. It is also apparent from the supervised reports that Y and Z, at least in early 2022, had a loving and affectionate relationship with her.
The relationship between the children and their father is far more complicated. Their time with him has been intermittent. They did not see him for 18 months, between February 2019 and August 2020. There were Skype communications from February 2020 prior to supervised time commencing in August 2020. Both parents say those communications were fraught.
I accept the mother’s evidence that it took considerable time to prepare and encourage X and Y to speak with their father, and that afterwards the boys were very unsettled for the following days. She said Y was physically aggressive to her and her mother for a few days after speaking to his father. She also said that the school advised her that both X and Y’s behaviour tended to be worse following the weekend when they Skyped with their father.
Between August 2020 and March 2021, the three younger children had supervised visits with the father. W refused to attend those visits.
After another eight month break, Y and Z only spent a further three occasions of supervised time with the father in November 2021 to February 2022. X refused to attend those visits.
There has been no time or communication between the father and any of the children since February 2022, some 16 months ago.
A reading of the supervisors’ reports indicates the father presented appropriately at each visit, and at least in relation to his interactions with Y and Z, the observations were very positive.
In August 2020 until March 2021, there were approximately 14 supervised visits between the father, X, Y and Z at S Contact Service:
(a)W refused to participate. During that same period, as already observed, the father breached the Intervention Order on multiple occasions, contacting the mother, stalking her online and sending text messages;
(b)the mother’s evidence was that she continued to take the children to supervised visits, and did her best to encourage the children to see their father notwithstanding his repeated breaches of the Intervention Order. The mother conceded the younger two were happy to see him and had missed seeing him. It is her evidence that X was more reticent, and that both X and Y experienced significant emotional meltdowns following the visits; and
(c)the supervisors’ reports set out that the father’s interactions with all three children were warm and appropriate. He engaged in child focussed activities and the children were generally settled and comfortable in his care. He managed their competing demands well and was at times able to soothe and settle Y. The children were also very excited and happy to see Ms E.
After an eight month break, three further supervised visits occurred between the father and Y and Z between November 2021 and February 2022. There is some dispute as to why the service ceased providing supervised visits in February 2022. As best I can tell, the service updated its protocols and required new intake procedures which the family never completed:
(a)W again refused to participate;
(b)X agreed only to greet his father at the first visit. He did hug his father upon his father’s request and said he loved his father in response to his father saying he loved him. It was the mother’s evidence that X felt pressured and uncomfortable in this exchange. He declined to participate on subsequent visits;
(c)it is common ground that the Y and Z enjoyed the visits, and had a positive time with their father. Y ran to his father and leapt into his arms despite not having seen his father for many months. Z also sought out physical affection from her father. At all three visits they interacted warmly, played together, and appeared at ease and happy in each other’s company. The father interacted responsively and appropriately with the children, participated in a child focussed way, and provided comfort to the children as necessary. The supervisors reported that the younger children went to their father without hesitation, initiating physical interactions, and engaging in eye contact with him; and
(d)Y and Z did not express to the mother any negative comments about the visits. The mother also told the supervisor before a visit in January 2022 that the children had been up since early that morning, excited to see their father. The mother’s evidence was that the father had ‘bribed’ the children to enjoy their visits, by providing snacks, sweets and presents. I do not accept that was the case, as the interactions described by the supervisors suggested a more in-depth, positive engagement between the younger children and their father.

Despite the very positive interactions observed by the supervisors, it is the mother’s evidence that the visits were emotionally challenging for X and Y, who experienced significant emotional discomfort and dysregulation and escalated challenging behaviour after spending time or communicating with their father.
The mother said X experienced emotional meltdowns and exhibited emotionally dysregulated behaviours after spending time with his father in 2020/2021. She said he slammed doors, kicked walls and was aggressive to his siblings. She said when she spoke to him, X was difficult to engage, but said he felt that his father was not presenting as himself at supervised times, but was “fake” and “pretend”.
The mother acknowledged that Y enjoyed spending time with the father. However, she said like X, Y experienced significant emotional dysregulation and meltdowns after spending time with or communicating with his father. It was her evidence that Y’s behaviour remained heightened and uncontained at school as well following visits. She said Y was unable to explain to his mother why he was so angry, expressing confusion and ambivalence regarding his father. He told her he would not feel safe if he spent time with the father outside of the children’s contact centre, that he does not want to be like his father, and wants to be a policeman “so I can arrest bad dads like mine”.
It is apparent that for Y his relationship with the father causes some deep emotional confusion for him. He told the Family Report Writer that he remembers being frightened of his father, and worried for his mother’s safety. However, he also enjoyed spending time with the father in the context of supervised time. The emotional turmoil this causes him is distressing for him, impacts on his siblings and his mother at home, and spills over into his presentation at school.
There was no observation of the children with their father conducted by the Family Report Writer for either report. That decision appears to have be made in light of the boys’ strong views and the Family Report Writer’s concern about re-traumatising the children. In his Addendum Report of 22 April 2022, the Family Report Writer wrote:
To summarise all three boys' comments; they all indicated a hardening against the father and indeed it was quite noticeable that the two older boys demonstrated a growing detachment from the father, such as commonly occurs after an individual gradually recovers after experiencing some type of acute trauma from another person, with in this instance such trauma clearly seeming to emanate from their apparent long-term experience of or exposure to abuse by the father, as well as their experience of his abuse of their mother, to whom they are now perhaps even more closely attached presumably because of their common trauma experiences and the resultant need to bond even closer to protect all of them together.
The mother’s evidence is that both X and Y’s behaviour escalated at home after their engagement with the Family Report Writer for the purposes of the preparation of the Addendum Report.
What is the likely impact of changing the children’s arrangements?
Ordering time would be a significant change in the children’s circumstances. They have not seen their father for well in excess of 12 months.
The Family Consultant urged against imposing a different regime for Y and Z by making orders for them to spend time with their father. He described the children as “closely knit”, and expressed view that it may impact on family dynamics and do more harm to the family by providing for different arrangements. He also noted in his Addendum Report that it may be that the children and their mother are more closely attached due to their common trauma experience, which has resulted in a feeling of needing to bond closer to better protect themselves.
I am concerned that implementing different arrangements for the younger children is likely to cause difficulties in the mother’s home. The mother said X suffers from anxiety, and is often worried about his mother’s safety. X and W may be worried, upset, angry or concerned for their younger siblings if they are seeing their father.
I am concerned by the mother’s evidence that Y can experience significant meltdowns after spending time with his father. These are difficult for the mother to manage, and she became emotional whilst giving her evidence about these matters. The dysregulated behaviour is exhibited at school as well. The mother has had to attend several meetings at school to address Y’s oppositional and dysregulated behaviour, which the mother said escalates after spending time or communicating with the father. It appears to be emotionally difficult for Y to reconcile seeing his father – and having a positive experience in his care – with his memories of his father. That difficulty may be exacerbated by Y’s multiple diagnoses, and borderline intellectual disability. Like his older siblings, I am concerned that Y’s attitude towards the father has hardened. Coupled with the behavioural disorder, this increases the likelihood that the mother will be unable to ensure Y’s attendance for time, which may result in conflict between Y and the mother. It could leave Y feeling that his safety and security in the mother’s home is compromised.
I am also of the view that it would not be in the children’s best interests for a separate regime for time to be implemented for Z. Whilst she does not have negative memories of her father, I am concerned that making orders for her alone to spend time with the father could, in my view, impact the other children, and potentially destabilise the household. It would likely also be emotionally challenging for her, and confusing as to why she, and not her other siblings, spend time with the father. Those issues will be amplified if her older siblings express their views and experiences of their father in circumstances where the father continues to fail to accept those views and experiences.
What are the parents’ attitudes towards the children and what is their capacity to meet the children’s needs and provide appropriate parenting?
The mother
I am satisfied that the mother is a reasonably attuned, child focussed and attentive parent, who is able to meet the children’s needs. She has arranged counselling and other supports for the children and herself as needed, including engaging T Services and U Services as well as seeking supports from other family services at various times. The mother also obtained a general practitioner in City V, and a counsellor as well as engaging with a paediatrician primarily in relation to X and his development and behaviours. She has sought NDIS funding for the children where appropriate.
The mother has struggled with poor mental health at times, and has been diagnosed with a mental health disorder, postnatal depression and a personality disorder. She too has had attempted to overdose in 2006 and 2009. She has also engaged in drug abuse in the past, but produced clean screens in March 2020, in April 2021 and in August 2022. The mother is currently prescribed medications. She engages well with her treating practitioners, and is compliant with taking her medication. It appears she has reached out and sought additional supports at times her mental health has deteriorated.
The Department have been involved with the family on many occasions. They have assessed the mother as able to provide appropriate care for the children.
The mother receives considerable support from her mother and step-father who live nearby. Her mother spends time with the children on two or three occasions each week, including weekend sleepovers with either Z, X, and/or Y.
The mother does not receive any funds from the father for child support, having obtained an exemption from Centrelink. Accordingly, she shoulders the entire burden of meeting the children’s financial, emotional and practical needs.
The father
I have already set out at length the issues regarding the father’s drug and alcohol abuse, his criminal offending and his mental health vulnerabilities. Despite those matters, I accept the father dearly loves the children and wishes very much to resume a meaningful role in their lives. The reports from the supervised visits illustrate his ability to interact warmly and positively with the children in a supervised setting.
I also note the father has completed a Building Better Bridges parenting course in 2020, and the Caring Dads program in 2021. He has also engaged with drug and alcohol counselling in 2018 and again in 2020. He engaged with a counsellor, Ms Q for a number of sessions. However, as already observed, I am not confident that these interventions have provided the father with sufficient insight and other tools necessary for him to significantly moderate his behaviour. He demonstrated limited insight into his behaviours and the impact these have had on the children, and a limited capacity to take responsibility for his behaviours. He has not fully engaged with psychological supports or treatment programs.
The father displayed a negative – and blaming – attitude towards the mother. He described her to the Family Consultant as manipulative, prone to lies and distortion, hot headed, immature, impulsive and emotionally uncontrolled. The father continued to be negative about the mother at the hearing – blaming her for his drug use and alcohol use issues.
Having had the opportunity to hear the father’s evidence, I share the concerns articulated by the Family Report Writer at [64] of the 21 July 2021 report as follows:
Given the extensive subpoena formation from many different health professionals about the father’s long-term battle with alcohol addiction and its possible related negative behavioural correlates, including his depression, anxiety and several escapist or self-defeating behaviours such as overdosing, or self-harm including suicidal ideation, that the father appeared so dismissive of, the implications of such a well‑documented mental health record upon his everyday behaviour and presumed related parenting capacity, strongly suggests that he profoundly lacks insight or emotional maturity, and in not being able to face and accept the consequences of his actions he seeks to externalise and blame others, especially the mother.
These matters raise real and significant concerns about the father’s ability to provide safe and appropriate parenting for the children.
WHAT ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
The allocation of parental responsibility
The parties agree the mother should have sole parental responsibility.
I am satisfied the presumption of equal shared parental responsibility is rebutted. I am also satisfied that the parents would not be able to negotiate and liaise with each other and make joint decisions for the children. Additionally, I am satisfied the mother is able to make appropriate and child focussed decisions, including ensuring the children are linked in with appropriate services, supports and medical professionals to promote their progression and development.
I am also satisfied it is appropriate to require the mother to provide a quarterly update to the father as to the children’s progress and wellbeing.
The children to live with their mother
The parties agree the children shall live with the mother. I agree that is in their best interests.
I accept the observations of the Family Report Writer that both parents have demonstrated at times poor insight about the effects of their behaviour on the children. The Family Report Writer noted, however that the mother was deeply remorseful, and had taken active steps to address the deficiencies in her care giving and parenting. The mother presented similarly at trial.
As already set out, I am satisfied she has demonstrated an appropriate attitude towards the children, and is able to provide for their needs.
No orders for time or communication with their father
In all the circumstances, and in light of the strong views expressed by X and W, it could not be in their best interests they be required to spend time with their father. Orders requiring time or communication are likely to be counter-productive, and cause them distress.
In relation to Y and Z, I also find that it is not in their best interests to have time with their father. I accept Z could benefit from having a meaningful relationship with him, if it was carefully managed. The benefit to Y, however, is far less clear given the emotional distress he experiences after spending time with or communicating with his father.
I have outlined the likely impact on each of the children, on the sibling relationships, and on the children’s relationships with their mother if time is ordered. The mother is the undisputed carer for all four children, three of whom are diagnosed with autism. It is her evidence that she moved to the City B area in circumstances where she was very fearful for her safety. She described living in fear post-separation that the father would come and assault her or the children whilst they remained living in City M. Her evidence is she remains scared of and intimidated by the father, and that even facilitating the Skype calls caused her distress, provoked conflict between herself and the children, and impacted her mental health.
Regrettably, this is a matter in which I must conclude that the children’s best interests are met by the making of orders as sought by the mother and the Independent Children’s Lawyer, namely that there be no orders for the children to spend time or communicate with their father. This has not been an easy decision to make. I am keenly aware this is a grave and significant decision, which will mean the children will not have a meaningful relationship with their father. Additionally, the potential consequences to the children having one parent excluded from their lives are well known. I am also profoundly aware of the distress my decision is likely to cause the father.
The father did impress as genuinely wanting to participate in the children’s lives. I have no doubt he loves them dearly and wants to play a significant role in their care, welfare and development. He was able to suggest child focussed arrangements – such as taking the children to fun parks, or play centres, taking them to movies, or fishing.
However, I am satisfied that the father poses an unacceptable risk to the children. He has taken limited steps to recognise and address his behaviours. He demonstrated limited insight into the impact of his behaviours on the children, and continues to substantially deny having engaged in family violence, blaming the mother, the Court system, and deflecting responsibility for his actions. At times he appeared to have demonstrated some insight, acknowledging to the providers of the Men’s Behaviour Change program that he had a history of “exploding” and “flipping his lid”, and that he wanted to work on his behaviour. However, at trial the father reverted to a narrative which was extremely critical of the mother, denied the allegations of violence and abuse, and minimised, justified and excused his own behaviours.
I am also satisfied that there are no steps that can be reasonably taken to enable the children, or any of them, to both enjoy a meaningful relationship with their father and protect them from harm. The relationships between the boys and their father are deeply problematic, and the impact on the children, and on the mother’s household if time with any of the children was now reintroduced will likely be destabilising and disruptive.
The mother’s role as primary carer needs to be protected. She is a somewhat vulnerable woman, given her mental health and substance abuse history. She requires substantial supports to ensure she is able to parent all four children safely and competently. The three boys each have their own challenges. Imposing an obligation on the mother to facilitate regular time between any of the children and their father would be an additional stress to her. It could undermine the stability and routines of her household, which in turn would negatively impact on the children’s wellbeing.
Is there utility in family therapy?
The Family Report Writer said the father’s proposals for a short visit on a monthly basis – provided it was supervised – may be reasonable, provided that the family first engaged with family therapy.
To his credit, the father proposed that he would meet the costs of family therapy if it was ordered. He also said he would undertake the bulk of the travelling if such therapy occurred close to the mother’s home.
I am not satisfied it is in the children’s best interests for the family to engage in family or reunification therapy. I agree with the observations by the Family Report Writer that whilst it might be ideal for the family to engage in such therapy, considerable damage could be done if the children (particularly X and W) are compelled to participate in the process against their wishes. There is no evidence that X or W would participate in such a process.
I am also mindful that all four children have been interviewed on numerous occasions by various professionals including child protection and the Family Report Writer.
More fundamentally, there would be little benefit in the family engaging in family therapy unless and until the father has acknowledged his abusive behaviours, moved away from blaming the mother and engaged properly with mental health and alcohol supports. If that is not the case, family therapy will have no utility.
Whether it is preferable to make the order lease likely to lead to the institution of further parenting proceedings
The parties have been engaged in family law litigation for in excess of three years. The matter needs to come to a conclusion. I do not agree that there is any utility in making interim orders and requiring the family to engage in family therapy for the reasons outlined.
If I were to make orders for supervised time it is likely that further proceedings may be necessary, including if there were issues with the mother’s ability to comply with the orders. It could not be in their best interests if their parents returned to court.
Cards, gifts and letters
It is appropriate that the father be at liberty to provide the children with cards, letters and gifts. He can do this on a monthly basis, as well as providing them for birthdays, and at Easter and Christmas. The mother is to ensure she provides those cards, letters and gifts to the children
The children’s passports and orders for overseas travel
It is appropriate that the mother be at liberty to obtain passports for the children.
There is no evidence that the mother presents as a flight risk. She has no ties to any other country. She is an Australian citizen. She is of limited financial means, and any overseas travel would likely be quite limited as a result. The mother was not challenged during cross examination in relation to these issues.
The father’s objection to orders for passports and overseas travel was focussed on his view that time with him should be prioritised over international travel.
In circumstances where I have determined the children’s best interests are met by no orders for time or communication with the father it seems unnecessary to restrict the mother’s ability to travel abroad for holidays with the children should she wish to do so.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 13 July 2023

File number:	MLC 195 of 2020
Judgment of:	CARTER J
Date of judgment:	13 July 2023
Catchwords:	FAMILY LAW – CHILDREN – whether the father poses an unacceptable risk to the children – whether the risks to the children can be ameliorated – whether there should be no orders for time and communication beyond sending letters and gifts – where the older children are expressing clear views – whether there should be separate arrangements for the younger children – children’s best interests – orders made
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Cases cited:	Bielen & Kozma (2022) 66 Fam LR 59 Isles & Nelissen (2022) 65 Fam LR 288 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Summerby v Cadogen [2011] FamCAFC 205
Division:	Division 1 First Instance
Number of paragraphs:	175
Date of hearing:	18 – 21 and 27 April 2023
Place:	Melbourne
Counsel for the Applicant:	Steven Kuan
Solicitor for the Applicant:	MMH Lawyers
Counsel for the Respondent:	James McIntyre
Solicitor for the Respondent:	Hume Riverina Community Legal Service
Counsel for the Independent Children's Lawyer:	Kim Southey
Solicitor for the Independent Children's Lawyer:	Joliman Lawyers

MLC 195 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR EVANS Applicant
AND:	MS WATERMAN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CARTER J
DATE OF ORDER:	13 july 2023