FALSON & FALSON

[2020] FCCA 2207

FEDERAL CIRCUIT COURT OF AUSTRALIA

FALSON & FALSON [2020] FCCA 2207

Catchwords:
FAMILY LAW – Parenting – interim hearing – care arrangements for children aged 14, 13 and 10 years – where the children have had 22 visits with the father at a children’s contact centre – whether the father’s time with the children should now be unsupervised – allegations of family violence – assessment of risk.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 68LA

Cases cited:

W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

Applicant: MR FALSON

Respondent: MS FALSON

File Number: ADC 1112 of 2019

Judgment of: Judge Brown

Hearing date: 18 June 2020

Date of Last Submission: 18 June 2020

Delivered at: Adelaide

Delivered on: 19 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Horvat

Solicitors for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Ms Miller

Solicitors for the Respondent: Minney & Associates

Counsel for the Independent Children’s Lawyer: Ms Smith

Solicitors for the Independent Children’s Lawyer The Family Law Project

ORDERS

1. The children X born in 2006, Y born in 2007 and Z born in 2010 spend time with the father each Saturday commencing 20 June 2020 from 10:00am to 4:00pm with the children to be exchanged at the Town B Children’s Contact Centre.

2. Further consideration of the matter is adjourned to 14 August 2020 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1112 of 2019

MR FALSON

Applicant

And

MS FALSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment are being delivered orally following an interim hearing, which occurred yesterday.  Given the importance of the decision to each of the parties, the reasons have been transcribed.  Grammatical errors have been corrected.

2. The case involved significant issues of family violence.  Given the structure of the Family Law Act 1975 (Cth) (‘the Act’), any such case must be carefully considered.  As a consequence, I elected to consider the material overnight. 

3. This is particularly so given section 60CC(2A), which prioritises the need to protect children from the deleterious consequences of exposure to family violence over the benefits children may derive from having a meaningful level of relationship with a parent.

4. The central issue in this case at this stage is whether the father concerned, Mr Falson, should move to a process of spending time with three relevant children, who are X, born in 2006, Y, who was born in 2007, and Z, born in 2010, in an unsupervised setting. 

5. The children’s mother, Ms Falson, vehemently opposes the children spending unsupervised time with their father.  It is her view that the father lacks insight into his past conduct, and indeed has sought to minimise it. 

6. As a consequence, she asserts that he remains a potent psychological threat to the children, particularly because he will be unable to resist denigrating her to the children because of the level of anger he holds for her, which he has done for a significant period of time. 

7. Given the fact that Ms Falson is the children’s undisputed primary carer, she asserts that the risk of this occurring in an unsupervised setting without any degree of professional oversight whatsoever is too great for the Court to countenance at this stage. 

8. Essentially it is her position that the risk of the children suffering some form of psychological harm because of what their father may do or say to them is too great and represents an unacceptable risk. 

9. On the other hand, it is the father’s position that over a significant period of time he has had many successful supervised sessions at the Town B Children’s Contact Centre with the children concerned, which indicate he is capable of interacting appropriately with them.

10. More particularly, during this period he has sought out professional counselling and assistance in respect of parenting and has developed an understanding of his behaviour and what triggers it. 

11. Therefore he contends that he is not a threat to the children any more, and indeed, the benefits the children will derive from engaging with him and forming a meaningful relationship with him are very significant indeed. 

12. The proceedings have been on foot for a significant period of time.  The father commenced the proceedings, in fact, on 22 March 2019.  On a final basis he sought that the children should live with each of their parents on a week about basis. 

13. On an interim basis, initially he sought to spend extended daylight periods with the children for about nine hours for a period of two months as an introduction, then overnight periods extending to a longer weekend over time. 

14. It was his position at this stage that he had already had a period of supervised time with the children and therefore it was appropriate for him to move to unsupervised time. 

15. It was his position that the initial report from the Town B Children’s Contact Centre indicated that the children loved him and were comfortable in his presence. 

16. The mother responded to that application on 14 May 2019.  On both an interim and a final basis, it was her position that the Court should make orders that the father spend no time whatsoever with the children. 

17. In those circumstances, as I recall, she also sought that she should be conferred with sole parental responsibility for the three children concerned.  Essentially, it was her position that the father’s conduct rendered him an unfit parent to have anything to do with the children concerned. 

18. Given the extremely polarised positions of the parties, at an early stage I ordered that they be independently represented in these proceedings.  The children’s representative is Ms Shaya Lewis-Dermody, who is an experienced family lawyer. 

19. Pursuant to the provisions of section 68LA of the Act, she is to be regarded as a party of equal importance to the parents in the case. It is her statutory obligation to view all the evidence in the case concerned and thereafter advocate the position which she thinks will best serve the interests of the children whom she represents.

20. She has briefed a barrister to appear on her behalf in these proceedings.  The barrister is Ms Smith.  She is instructed to support the father’s current proposal, which is for a period of what is described as modest unsupervised time each Saturday between the hours of 10.00am and 4.00pm, with the children to be exchanged between the parties in the secure setting of the Town B Children’s Contact Centre. 

21. By way of background, the father was born in 1983.  The mother was born in 1987.  The parties began a relationship in early 2005 and married in 2005.  They separated in August of 2010 and divorced, but reconciled.  The reconciliation ended in 2016.

22. It is the mother’s position that the relationship was a violent one, characterised also by the father’s alcohol and drug abuse.  It is her case that she was frequently denigrated in the presence of the children and was subject to a number of serious assaults. 

23. One of the most significant incidents occurred on 7 October 2015.  It was during a period when the parties were separated.  The father came to the mother’s home.  He wanted to spend more time with the children.  He turned off the electricity to the house, and there was some response by the mother. 

24. There was a verbal and physical altercation which was witnessed by Y.  The father was charged with aggravated assault and criminal trespass.  He received a sentence of imprisonment, but it was suspended. 

25. There was an interim intervention order.  The father was working as a labourer at the time, and he was allowed to keep his firearms licence.  However, his good behaviour bond was breached and his firearms licence was confiscated because he was caught driving under the influence of alcohol. 

26. “Family violence” is defined in section 4AB of the Act. It means “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”

27. There are some examples of behaviour which may constitute family violence in the Act. They include an assault, stalking, repeated derogatory taunts, and intentionally damaging or destroying property. In essence, family violence need not just be an assault, it encompasses behaviour that unreasonably coerces or controls another person and makes them frightened.

28. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences its effects. So children are exposed to family violence if they see it, they hear it, or they are exposed to its sequelae.

29. Family violence not only is a danger to children because it places children at risk of being hurt, it has the potential to do them emotional harm.  If they see somebody they love being hurt, it is likely to make them frightened. 

30. More significantly, people who use force to coerce or control another person are not appropriate role models for children.  Children learn how to behave from those around them, particularly their parents.  Family violence can encompass a range of circumstances.  People behave badly when they are upset or under pressure.  They snap. 

31. In other cases it can be more systematic and deliberate, where one party is in control of a situation and uses power to overwhelm another person.  As with all human behaviours, each case is idiosyncratic and there is a range. 

32. The Court must be aware of these factors and be sensitive to each individual case. The structure of the Act is clear that the Court must approach issues of family violence carefully. It was on that basis that I adjourned the case overnight to consider it carefully.

33. As I say, Mr Falson began to spend time with the children in a supervised setting in early 2018.  The first report indicates that X, Y and Z gave him a kiss and a cuddle when they said goodbye.  The visit so far as the children were concerned was positive, but, regrettably, Mr Falson exhibited what I can only describe as a hostile attitude to the staff. 

34. He was resentful that he was there, that there had to be a staggered process involving him and Ms Falson leaving the centre.  That process was continued throughout the visits.  The children said they loved their father.  Mr Falson was uncooperative. 

35. This led the coordinator of the program in her summary to write:

    “Throughout his use of the children’s contact service, Mr Falson initially struggled to remain child-focused and openly refused to comply with the service agreement.  The staff at the centre quite often reminded Mr Falson of the positive purpose in which he was there.”[1]

    [1]  See father’s affidavit filed 22 March 2019 at annexure H 2.

36. On the other hand, she also noted:

    “The children appeared very comfortable in Mr Falson’s presence and sought his attention and received any parental guidance well.  They sat in close proximity to each other and were often observed to smile and laugh.”[2]

    [2]  Ibid.

37. As is commonly the case, the parties were referred to what is called a child dispute conference, the aim being to see if there is any common ground between the parties concerned, and also for someone in my position to get an impression of the parties concerned from an independent person which is not necessarily varnished by what people say in affidavits, which very often are skewed towards the positive, for obvious reasons. 

38. In this case, the parties met with Family Consultant Ms C on 23 July 2019.  Again, Mr Falson did not make a particularly positive impression with the family consultant concerned.  He was reported as having made florid statements denigrating the mother, saying that she was responsible for making him angry. 

39. He complained that he had wasted four hours of his life coming to court.  At that stage Mr Falson was reported as having an inability to temper his anger.  As a consequence, the family consultant was concerned about the father’s ability to regulate his emotions. 

40. As I say, the Court has a responsibility, in an idiosyncratic way, to look at family violence and essentially to assess its danger.  At that stage there were quite clearly very significant concerns. 

41. I can understand Mr Falson’s frustration with the process.  It is a very difficult, time-consuming, and sometimes very expensive process.  Family law courts are not particularly well-resourced in terms of people who can hear cases. 

42. The level of conflict that arises in the cases that come before the Court is invariably complex.  Every case is different.  That necessarily makes it a slow process.  As I indicated a moment ago, it is hard to conceive of two parents who at least initially had such dissimilar views as to what would be best for their children: no time or equal time. 

43. Against that background, it was appropriate, as Ms C recommended, that there be a more thorough investigation of the family, and that was conducted by Ms G.  She was commissioned to do her report in late July of 2019, and a report came to hand in late November of 2019. 

44. Ms G has written a lengthy report; it is some 24 pages.  It is a central piece of evidence in this case.  Obviously, Ms G has a significant advantage over me in these proceedings, in that she has met each of the parties and seen them with their children. 

45. The mother’s position was that the children continue to be frightened of their father because they had witnessed his violence, but interestingly, Ms G indicated that the mother had some empathy for Mr Falson.  She said that his behaviour when he lost his temper was as a result of his own upbringing.  She said, “I put it down to his childhood.” 

46. Essentially that is why we are spending so much time with this case, because, as I said a moment ago, children learn their behaviour from their parents, and very often there is a cycle where one generation learns to do what the earlier generation did, including perpetuating cycles of violence. 

47. Ms G described Mr Falson as a tense and fit person who bristled with a restless intensity.  Interestingly, Mr Falson had some degree of insight into his behaviour.  He said, “Sometimes I don’t think before I act.”  However, at that stage the father was justifying previous behaviour by saying that he had been to some degree provoked.

48. Ms G was of the view that Mr Falson continued to harbour ill feelings towards the mother, blaming her for not allowing him to have the level of relationship with the children concerned that he wanted.  He said, “I’ve got so much dislike towards her now.”  He blamed the mother for his loss of the gun licence. 

49. These matters obviously are concerning, because, as I say, I have to make some sort of assessment of risk.  The children were spoken to by Ms G; at the time X was in Year 8 at Town B High.  She seems to be a really nice child. 

50. She said she was freaking out about this process, but she was unequivocal in her view that “Dad loves us”.  She said she had enjoyed seeing her dad at the children’s contact centre and she wanted the visits to resume.  She said she had not seen him for ages. 

51. Y retained memories of his father threatening his mother and of his father not being particularly sensitive to his feelings, but again, he said he was a happy child.  He said he was 10 out of 10 happy when Mum and Dad were living together for the first time. 

52. Ms G got the impression that Y yearned to have a good relationship with his father, but had been witness to denigrating and threatening behaviours in the past. 

53. Z was seven years of age when interviewed.  He remembered an incident when his father had blocked the road in front of the school with his car when they were going to school.  He remembered other incidents of violence.  Again, the impression was that Z yearned to have a relationship with his father. 

54. The observations of the children with their dad were positive.  He repeatedly and spontaneously demonstrated his love for the children.  He hugged them, he kissed them, and the children basked in their love.  They were not frightened of him. 

55. They did not try and avoid him.  Ms G’s sense was of an affectionate familial relationship and three children who seemed very much ready to resume a relationship with their father.  This led her to recommend that the father, after some further contact visits, begin to spend some time unsupervised time with the children. 

56. Ms G also reported that she was heartened that the father had commenced anger management counselling, which she thought might suggest that he was motivated to change some aspects of his behaviour which perhaps up to this stage had not been helpful for him. 

57. On 29 November, orders were made for the father to have 10 visits at the Town B Children’s Contact Centre.  That is about four more than usually occurs.  A cautious approach was taken, and at that stage the father did not agree, but he did not oppose it.  The father was to continue therapy at D Counselling Centre. 

58. The matter returned to court on 26 April.  I was hopeful the parties might, in the light of Ms G’s report, be able to agree the way forward.  They were not, so it fell to me to decide the case.  The parties have each filed some more affidavit material. 

59. I have also got the most recent report from the children’s contact centre.  The last reported visit I have is 26 April.  It is positive.  The children said when they finished the visit, “Bye, Dad.  Love you.”  There were no problems between Mr Falson and the staff concerned. 

60. Mr Falson has deposed that he acknowledges his past anger management issues and weaknesses.  He has been going to counselling with D Counselling Centre since July 2019.  He has provided letters from his counsellor, which I have read. 

61. He has formed a relationship with a person called Ms E.  She is a health care provider.  She seems to be a very good person, and she has, given her profession, no doubt provided a lot of support. 

62. There have been now 22 visits at the children’s contact centre.  Ms Falson has also provided an affidavit.  She is not quite so sanguine as Mr Falson.  She says that X’s grades are not as good as they were.  She is now getting C’s when she used to get A’s. 

63. She is also concerned that the father has bought some expensive trainers for the children.  She does not think that is healthy, and she is a bit aggrieved about the level of child support she is receiving. 

64. The parties are trying to communicate in a more constructive way.  They cannot, for all sorts of reasons, communicate directly, but they are trialling apps.  Essentially, the mother’s position is she still, from her long experience of Mr Falson, does not trust him. 

65. She says it is easy for people to say they have changed and talk the talk, as the saying has it, but it is more difficult to walk the walk.  Mr Falson has provided proof that he has done the Tuning in to Kids course and the Circle of Security course. 

66. His counsellor, Mr F, has written that he has explored with Mr Falson the consequences and causes of why people get angry, how it happens on a neurological basis, and how people lose control and become violent.  He has provided support in terms of emotional regulation and anger management. 

67. Mr Falson is described as being transparent about his past difficulties with the counsellors and his poor self-regulation.  Again, the counsellor said that they spent extended time discussing the effects of trauma on children, and in these reasons for judgment that is something I have tried to concentrate on. 

68. So essentially it is Mr Falson’s position that he has come a long way, that he has done a lot of things which were not easy for him, and it is in that context that I must decide the next step.  In this, as in all cases, the best interests of the three children concerned are the most important consideration. 

1. In deciding what is best for X, Y and Z, I have to look at a list of things in section 60CC of the Act. There are two primary considerations I have to think about:

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

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

2. It is, of course, Mr Falson’s position that the children will get all sorts of benefits from being able to engage with him as much as possible.  From his perspective, the children cannot have a meaningful level of relationship if the time is confined to two hours in the artificial setting of a children’s contact centre. 

3. He wants to be able to do all the things a parent does with a child: spend time at home, eat lunch, have a sandwich, go to the beach – the parties live in Town B – just muck around, and hang out.  That is what he contends will be meaningful time. 

4. The mother’s contention is that the risk is still too great, and someone professionally trained has to be able to step in and say, if something goes wrong, “Don’t say that, Mr Falson.  Don’t do that.  Take the children away.” 

5. So I have to assess risk, the risk that these children will not develop to have a proper level of relationship with their dad.  That is, a significant risk.  There is a risk of Mr Falson becoming emotionally deregulated and angry. 

6. I cannot make anybody’s life risk-free; that would be impossible.  What I have to do is assess the risk and put in place a response which is proportionate to the degree of risk involved. 

7. In such cases as W & W,[3] the Full Court has spoken of a tension between the protection offered to a child by supervised contact with the potential detriments occasioned by the artificiality and limitations offered by such supervision.[4] 

   [3]  W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.

   [4] Ibid at [113].

8. In addition, professional supervision cannot be a permanent solution to a family’s difficulties.  It is untenable that Mr Falson should only spend supervised time for the remainder of these children’s childhood.  Again, in W & W, the Full Court said decisions of this kind, because of their potential long-term consequences for a child, need very careful consideration.[5]

   [5] Ibid at [115].

9. The fundamental task is to assess the prospective dangers to any child, on the one hand, of spending time with a parent who has been violent in the past, and on the other, of that child losing a potentially viable parental relationship. 

10. Significantly, it is not my role to punish Mr Falson for what he has done in the past.  Other courts have done that.  I have to strike an appropriate balance.  I have tried to think about the matter very carefully. 

11. I hope I am sensitive to Ms Falson’s position.  She has not provided any report from a psychologist or anybody like that which says that she is not able emotionally to sustain the thought of the children spending unsupervised time with their father. 

12. However, I acknowledge that she must be concerned, and I respect her feelings.  But at this stage, I have come to the view that the risk that Mr Falson represents to the children in an unsupervised setting if the time is restricted to daylight hours, given what has occurred over the last 12 months or so, is not one which is so great that I cannot countenance it.  It is not a risk that is unacceptable. 

13. So for those reasons I have come to the view that the children should begin to spend what I regard as modest periods of time with their father in an unsupervised setting. 

14. The children clearly love their father.  They know him.  They yearn to have a relationship with him.  There is evidence which indicates that Mr Falson does understand that he is responsible for his behaviour, that he cannot blame somebody else always for provoking him, and that he has to be careful about how he behaves in front of the children concerned. 

15. I appreciate that he may have some way to go.  We all have some way to go in our lives. 

16. For all of those reasons, I will make the orders as set out at the commencement of these reasons for judgment, which will inaugurate a process of the children spending time, with their father, during the day on Saturdays. 

17. Given the mistrust between the parties, it is important that handovers occur at a safe and secure location, which I will nominate as the Town B Children’s Contact Centre.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 11 August 2020