Farmer and Johns
[2010] FamCA 1106
•6 December 2010
FAMILY COURT OF AUSTRALIA
| FARMER & JOHNS | [2010] FamCA 1106 |
| FAMILY LAW – CHILDREN – Parenting – Supervised contact where very poor view of mother held by father unjustifiably – Extreme violence denunciated |
| Family Law Act 1975 (Cth) |
| B and B (1993) FLC 92-357 Irvine and Irvine (1995) FLC 92-624 KMB and PRL and Child Representative (2005) FamCA 1202 Moose and Moose [2008] FamCAFC 108 S and Q (1990) FLC 92-159 |
| APPLICANT: | Ms Farmer |
| RESPONDENT: | Mr Johns |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 12878 | of | 2007 |
| DATE DELIVERED: | 6 December 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 20, 21, 22 & 23 SEPTEMBER 2010; 9, 18, 19, 22, 24 NOVEMBER 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR HANDS |
| SOLICITOR FOR THE APPLICANT: | KORDELL LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR GLOVER |
| SOLICITOR FOR THE RESPONDENT: | CINQUE OAKLEY SENOR LAWYERS |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MS SPEHR |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | HEINZ & PARTNERS |
Orders
That all extant parenting orders are discharged.
That the children R born … June 1999 and L born … August 2002 live with the mother.
That pursuant to s 65L of the Family Law Act 1975 (Cth), the orders that follow and compliance with them shall be supervised by a family consultant for a period of 12 months from this date AND IT IS FURTHER REQUIRED that the family consultant give to the mother and the father such assistance as is reasonably requested by them in relation to compliance with, and the carrying out of, these orders.
That as soon as practicable hereafter, and by the direction of the family consultant, the mother bring the children to the registry of the Family Court of Australia for the family consultant to explain to them the terms of these orders.
That pursuant to s 68L(4) of the Act, the appointment of the Independent Children’s Lawyer continue until 31 December 2011.
That the father spend time with the children as follows:
(a)until 31 January 2011, for such periods and on such conditions as the T Children’s Contact Service are able to arrange for the father’s attendance under supervision;
(b)thereafter, until 31 August 2011 during each alternate weekend on either the Saturday or the Sunday for a period of up to four hours under the supervision of Ms A (or such other person as the parties agree) with the costs of such supervision but not any travel expenses being met as follows:
(i)as to one third by the mother; and
(ii)as to two thirds by the father,
and as to any travel expenses of Ms A by the father.
For the purposes of all handovers of the children, the mother shall deliver the children to Ms A at the commencement of each period under this sub-paragraph and Ms A shall return them to the mother at the conclusion of such period.
(c)thereafter, commencing two weeks after the last period referred to in sub-paragraph (b) hereof and provided the father has diligently availed himself of the majority of the periods in sub-paragraph (b), in each alternate weekend from the conclusion of school on Friday in the school grounds of the school of the children until 6.00pm on the following Sunday whereupon the father shall return the children punctually to the mother at McDonalds at T or such other place as may be agreed;
(d)from the commencement of the 2012 school year, for one half of all school holiday periods by agreement and failing agreement, the first half; and
(e)from 6.00pm on 24 December 2011 until 3.00pm on 25 December 2011 and for a similar period in each odd-numbered year thereafter and from 3.00pm on 25 December 2012 to 6.00pm on 26 December 2012 and for a similar period in each even-numbered year thereafter.
That a copy of these reasons be provided to Ms A and any health professional working with either of the parties or the children.
That for the purposes of the time to be spent between the father and the children under the supervision of Ms A, save for the first of such periods, the father is at liberty to have his parents attend with him along with any appropriate pet.
That the mother have the responsibility for making decisions about:
(a)the education of the children;
(b)the health of the children;
(c)the extra-curricular sporting and cultural events of the children that do not clash with the time to be spent by the father pursuant to these orders.
That the father attend a parenting programme nominated by the Independent Children’s Lawyer.
Insofar as the mother makes any decision relating to a major long-term issue for either of the children, she shall advise the father upon making such decision, such advise being provided to the father in writing.
That the mother have liberty to provide a copy of these orders to all school principals of the schools at which the children attend and all health professionals dealing with the children.
That all material produced pursuant to any subpoena be returned to the recipient of that subpoena.
That all proceedings are otherwise dismissed between the parties.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Farmer & Johns is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12878 of 2007
| MS FARMER |
Applicant
And
| MR JOHNS |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
This is a parenting dispute involving two children who I find have witnessed significant conflict between their parents. At least one of the children most likely witnessed an horrific event involving her mother being beaten up by her father. That event was only one conflictual event in their lives. They or at least one of them, have seen their mother removed in an ambulance and their father arrested by police for serious assaults. They have been made aware that in 2005 their father was criminally and seriously assaulted by an unknown assailant as a result of which he was hospitalized. They have been made aware that their father was remanded into prison for the assault on their mother. They have attended a contact centre for 40 occasions to visit their father.
Despite all of the trauma, the children say, and the experts seem to agree, they want unrestricted time with their father.
The father has had his time with his children limited and restricted under supervision at a contact centre. He now wants that significantly altered. The mother argued that the restriction should remain for a long time yet. The issue is whether there is an unacceptable risk of harm for these children by their time with their father being unsupervised. That issue focuses on whether the mother is at risk from violence from the father but also whether that risk extends to the emotional stability of the children and the potential damage to the relationship between the mother and the children.
I find the risk here is still unacceptable. Thus, supervision should continue. The extent of that supervision is the difficult question.
The two children are R born in June 1999 and therefore aged 11 and L who was born in August 2002 and therefore 8 years of age. They witnessed behaviour about which the community has consistently expressed concern. Despite that, they hold no fear of their father. They want a close, open and loving relationship with him. They do not seem to understand their mother’s fear and reticence. There is considerable support for the children’s view but after days of evidence, I have concerns still, particularly about the father who says supervision is nonsense, unnecessary and should not be at his expense. To add to the difficulty, after three years of supervision, the contact centre says it is time to “move on”. It may be that because of resources, that should be so. It may be also that under supervision, no problems are apparent. None of those issues alleviates the unacceptable risk.
The father
The father is Mr Johns. He is a 39 year old disability pensioner who lives with his parents. He has very limited financial means. By the same token, he acknowledged he is not seeking work, is comfortable living at home on a disability pension and has no serious plans for financial support for himself other than at the taxpayers’ expense in the future. He has an acquired brain injury and a simple approach to things. His health status was described by his clinical psychologist Ms T as suffering from post-traumatic stress symptoms from a very serious assault that he suffered in 2005. She said he presented as an introverted, passive, dependent man who was naïve in many ways, easily manipulated and fearful and avoidant of conflict. She said he showed no emotional dysregulation. She felt he did not have resources to protect himself against or deal with, dominance, aggression, intimidation and manipulation.
Ms T then hypothesised (because she could not possibly professionally know) about the mother. She described the father as a decent, honest, vulnerable man. I return to Ms T’s views below.
That picture was entirely inconsistent with the view expressed in the sentencing remarks of the judge of the County Court of Victoria in 2009 arising out of an assault on the mother two years before in November 2007.
Section 69ZP of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to act on its own initiative in relation to powers under Division 12A. At a preliminary hearing, I asked for the sentencing remarks of the County Court because the parties were apparently only examining the police file concerning the assault by the father on the mother.
Section 69ZX(3) empowers the Court to receive into evidence the transcript of evidence of another court. I did not have the benefit of the transcript but I did have provided to me, the agreed statement of facts presented to the judge and hence can take that as transcript. Significantly, s 69ZX permits the Court to adopt the judgment of any court. In this case, I had admitted into evidence and accepted as fact, the findings and judgment of the County Court.
In her final submissions, counsel for the Independent Children’s Lawyer described the 2007 assault as the “over-riding” event in this relationship. Having regard to its impact on my findings, the event of November 2007 must be considered carefully. It was comprehensively canvassed in the judgment of the sentencing judge in the County Court.
In sentencing the father, as late as 16 November 2009, Her Honour said, the following:
Your thinking was not distorted by alcohol or drugs, although as I shall turn to shortly it was probably affected by your mental state. You were motivated by anger and frustration fuelled by brooding on your grievances against (the mother). That your anger was out of control is reflected in your actions even after police arrived. Further, the manner in which submissions were put on your behalf during the plea in mitigation (by counsel) reflect that you were, and it seems to me, remain very self focused to the extent that you appear to try to maintain that you are the person who has suffered most from the whole incident. Your conduct calls for strong condemnation and a message to you and others that violent action of this type is not an acceptable way to resolve relationship disputes or grievances. I take into account that you have admitted two previous court appearances in each of which you were convicted of sets of offences involving resisting police and violence either towards property or persons. These were incidents several years apart and the second more than five years before the offences for which I sentence you. They therefore do not reflect an entrenched history of offending, but they do reflect that you have reacted violently in the past, especially in defiance of legal authority. They also reflect that your anger has led you to react violently well before you were the victim of a violent assault yourself.
Her Honour then said:
Ms [T] confirms your close and appropriate parental interactions with your daughters, having observed you with them in a consultation in October 2007. I note that after the incident for which I sentenced you your daughter [R] indicated a wish to protect you when she told police that she had wanted to help you hide so as not to get into trouble when the police arrived. But I also note that she had been scared enough by seeing you enter the house and threatening her mother that she had tried to call the police herself.
Her Honour then said:
As I said earlier your sentence must reflect the court’s and the community’s condemnation of you taking violent action to vent your anger and frustration over a relationship breakdown and disputes about access to children.
Her Honour then noted the physical and psychological pre-existing conditions of the father which she found contributed to the offences. Her Honour then said:
These conditions do not excuse your offences but do in my view mean that the sentencing factor of general deterrence, that is of deterring others from like behaviour, should be moderated.
Disturbingly, her Honour then said:
When you were arraigned, that is the charges were put and you pleaded guilty before me, my impression was that you were still seething with anger and resentment. Nevertheless I accept that you are trying to address your underlying psychological problems by continuing with counselling through Ms [T], taking medication for depression as prescribed, and having formed a new relationship in which you have apparently shown yourself caring and responsible.
Like this Court, her Honour then made a statement about the community’s views about that sort of behaviour. Her Honour said:
Let me make very clear to you and others, had it not been for the evidence of how the injuries you suffered in the December 2005 assault on you probably affected your behaviour and contributed to the offences for which I sentence you, the sentence would have been much more severe. In all of the circumstances while I consider that you have not overcome many of the factors contributing to your offending I am prepared to leave you out of prison to try to rebuild your life in the community where you have the support of your parents and your new partner and her children.
The views of the sentencing judge were expressed but a year ago. Although the judge described the father as seething with anger, the father felt that her Honour was wrong. He said he could not see how her Honour determined what she did. He said he was “seething with despair and disappointment” but not anger. He said it was a relief it was all over.
I have no idea what the sentencing judge observed to provoke such remarks but the body language of the father would tend to suggest he is still very angry. I had an advantage the sentencing judge did not have; I saw the father give evidence. He has no control over his emotions. He reacted aggressively to challenging questions. He was blunt with his language. He was dismissive of others’ views about his behaviour. He was unapologetic in real terms for the problems he created. He would have the Court accept he did the wrong thing by attending the mother’s house but the right thing in pleading guilty before the County Court to an offence he did not commit. I do not accept his evidence. I think the sentencing judge got it right. I cautiously take into account in making that finding that the father has an acquired brain injury and a simple approach to a difficult relationship question.
Her Honour was critical of the father from the community’s perspective. I am not concerned in these proceedings with the same perspective. My task is to look at the best interests of the two children including taking into account their current views.
Section 60B and s 60CC of the Family Law Act 1975 (Cth) (“the Act”) reiterate the rights of children to be loved and cared for by their parents but also to be able to live free from exposure to the violence of the nature that I am satisfied the father inflicted upon the mother.
No family violence in our community is acceptable and even one serious incident is cause for concern but where there is a history of violence, the Court’s sense of concern should be heightened. That is the situation here notwithstanding Ms T’s philosophical position about the father being naïve and avoidant of conflict.
It is particularly difficult to make sense of the unwarranted and disturbing attack on the mother here because on any view, it took place at night, in the children’s home, in a violent break-in situation and in circumstances which were premeditated. Despite the father’s protestations to the contrary that he simply pleaded to avoid his child giving evidence, it is clear from the fact that the father pleaded guilty to aggravated burglary, that the Crown would have proved its case. The elements of aggravated burglary in Victoria are as follows:
76 Burglary
(1)A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—
(a) to steal anything in the building or part in question; or
(b) to commit an offence—
(i)involving an assault to a person in the building or part in question; or
(ii)involving any damage to the building or to property in the building or part in question—
which is punishable with imprisonment for a term of five years or more.
(2)References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.
(3)A person guilty of burglary is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
77 Aggravated burglary
(1)A person is guilty of aggravated burglary if he or she commits a burglary and—
(a)at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or
(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.
…
(2)A person guilty of aggravated burglary is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).
Thus, it will be obvious that aggravated burglary (as distinct from burglary) is a very serious offence which carries many years imprisonment as a potential punishment.
A plea of guilty is an admission of all the requisite elements that give rise to such an offence. In this case, the father disputed the circumstances under which the offence occurred and sought to blame the mother. For these proceedings, he accused the mother of attacking him with an iron bar from which she in turn received significant injuries. Much as the sentencing judge was concerned about the shifting of blame, I too have concerns about the blurring of the facts. They matter little. The father committed the worst sort of assault upon the mother and at least one of the children witnessed it.
The father’s position about the iron bar was that the mother came at him and he pushed the front door at her as she approached. The iron bar as a consequence then hit her in the face. I had no expert evidence of how the injuries to the mother could be sustained but the father’s version is so inconsistent with that of the mother, their child and, as I understand it, a woman who accompanied the father to the house, I find it is improbable that they occurred the way alleged by the father. I reject his evidence about the incident.
The mother
Ms Farmer is a 31 year old mother of the two children. She is dependent on social security benefits for her living expenses. She cares for the two children on a full-time basis. She has been attending a clinical psychologist for a number of years.
Ms P has many years experience as a psychologist and she provided evidence that the mother had been assessed by another psychologist who had identified impaired functioning of memory, visual attention and visual constructional skills. Those disabilities were evident when the mother gave evidence. On a number of occasions, the hearing was stopped or questions were reworded, to allow the mother to proceed and answer cross-examination. Ms P opined that the mother suffered post-traumatic stress disorder and that the condition was chronic. She expected it to continue. Ms P noted the mother’s belief in the father’s ability to manipulate others and “undermine her integrity”. That belief too was evident in the proceedings. In evidence, it emerged that she had had a tragic childhood and difficult teenage years. She was assaulted as a child, found school difficult and mixed with the wrong crowd until her father intervened. She had a bout of cervical cancer as a young adult. The evidence albeit vague, was that there were mental health problems during the relationship with the father. The assault by the father in November 2007 exacerbated the difficulties.
Late into the mother’s case, she tried to introduce evidence about the father’s propensity to violence, his hatred of women and his use of pornography. This related to information she had found on a website constructed and run by the father. No warning of the introduction of this material appeared in any affidavit. It consisted of downloaded photographs. Just how they came to exist is not clear. I was critical at the time of the mother’s approach and in particular, her lawyers because when the ownership was disputed, it necessitated an adjournment for the father to consider what was being alleged. This was a parenting case about the welfare of two children not a litigious ambush. As it transpired very little further was mentioned about the issue other than that there were legal aid funding problems concerning its investigation.
Despite all of that, I find there is no evidence of relevance that the father has a fetish or peculiar leaning such that I could find his nature is a hatred of women. No evidence was produced to link the ugly photographs with the father. I was assured they were taken from the father’s website but they were never put to the father as items over which he had some control.
Problems in this relationship did not arise just at its end. It was into this dysfunctional relationship that these two children were born.
The relationship
The relationship began in 1995. The mother had left school and had had a job. She was 17 years of age and the father was 24. R was born in 1999 when the mother was under 20 years of age.
For the purposes of these proceedings, the parenting roles during the relationship have little impact on the outcome. That is because it is the father’s application at this stage only to spend time with the children. It was not the position he adopted until some weeks prior to the commencement of the hearing. He had sought that the children live with him. Sensibly, that application did not proceed. The father’s position was that he had had to take on parenting roles during their relationship until 2007 to assist the mother because she was not capable.
The separation
The parties separated in August 2007. I am satisfied that it was initiated by the mother and the father reacted violently. He pushed the mother and chased her to her car where he smashed a headlight and threw a pot plant on the car’s bonnet. L witnessed all of this.
A confrontation occurred between the parties only days later at a petrol station. The mother described the father as enraged. That evidence was not challenged. The father subsequently apologised but then became abusive. On the very next day, the father attended the mother’s home and took L who was then five years old. The police were called and L was subsequently returned.
On 5 October 2007, mutual intervention orders were made and the father was ordered to attend an anger management course. The father managed to avoid attending that course because his psychologist argued it was unnecessary as she was treating him. The father’s version was slightly different. He said he had an aversion to attending something like that where there would have been violent people present. In hindsight, it would have been better if he had attended. In so far as he may have expressed a desire to avoid confrontation and places of stress, none of that was evident in the witness box environment.
Despite the intervention order, and only days later, the parties spent time together but even then there was a violent argument in the presence of the children. I shall mention that again below.
Each party said that their going away together after the intervention order was a mutually agreed thing. How that could be said beggars belief. The mother gave no plausible explanation for it other than that the father was a persuasive figure in her life. This Court hears tragic stories of women caught in what is known as “domestic violence cycles” but the impetus for this “reunion” seems to have come from the father. With all of the problems the mother had which were witnessed by her family, it was hard to understand how she agreed. There is no evidence to suggest she was pressured. The father gave even less plausible an explanation for it. He said the whole relationship had been terrible. He had constantly tried to help the mother with all of her tragic psychiatric problems and when he was “thrown out”, he was relieved. Yet he too went along after the intervention order, for a weekend trip to Port Campbell where there were violent arguments in the car even on the way there. I have been critical of the father for his behaviour but the mother too did not behave as a mature parent should.
Arrangements were then made for the father to spend time with the children but that broke down necessitating the mother seeking a recovery order when the father did not return the children at the appointed time. The necessity to issue the recovery application led the mother to refuse the father time with the children.
In her evidence to which I shall return below, the mother said that after the Port Campbell weekend, she had accessed the father’s web page. She said she had seen pictures of women in poses which she viewed as ill-treatment of women and which impressed upon her the fact that the father was angry and she was in danger. She anticipated an outburst by the father and she was correct. Whilst the mother was a poor historian, in respect of that issue, I have no reason to doubt what she then believed.
Family violence
On 3 November 2007 just after midnight, the mother was in her home with R and L and all were asleep. Contrary to the intervention order, the father went to the mother’s home by motorcycle. Curiously, notwithstanding the parties had only separated three months before and were together in early October, the father was accompanied by a woman passenger whom the County Court judge described as “another woman you were seeing”.
The following facts are findings I make. Whilst his companion waited outside, the father violently broke into the mother’s home. Upon the mother hearing this, she ran outside after calling the emergency number to the police. She was then dragged back into the house by the father and was assaulted in the most violent way including being kicked in the head whilst she was on the ground. He was yelling abuse saying that she was going to die. The father pulled her by the hair and then grabbed her by the throat. R stood and watched as her mother’s head was smashed into the floor. The father said that did not happen and pointed to the photographs to somehow show there was no consistency of injury. Whilst no evidence was led as to the potential explanation for the injuries, I am satisfied on the balance of probabilities that the mother’s version is the more plausible. There are noticeable facial injuries other than the horrendous black eye. There is evidence of brain damage. Counsel for the father pointed to a version of the mother given to her own psychologist in which she referred to the father attempting to rape her and both the father and his accompanying person urinating on her. Clearly, that did not happen. There was no explanation for the embellishment. The appropriate course for me is to accept the same sort of evidence accepted by the sentencing judge.
The police arrived quickly. According to the sentencing remarks of the County Court judge, the father was located in an outside shed and was subdued by the police with capsicum spray but even then still resisted. The police were led to the shed by the parties’ daughter who had watched what was happening.
The unchallenged evidence of the mother was that she suffered a sore stomach and ribs, permanent loss of feeling in her jaw together with multiple pain areas. The photographs attached to her affidavit are sickening. The sentencing judge accepted that she had suffered from the effects of a mild traumatic brain injury.
The father was remanded in custody and remained for four months before being bailed. For reasons which are not clear, the criminal hearing was adjourned a number of times before the father pleaded guilty to aggravated burglary. The sentencing judge sentenced him to 15 months imprisonment for the assault but suspended the balance of the unserved sentence for 2½ years which period apparently expires in May 2012.
In cross-examination the father was asked to explain why he attended at the home of the mother after midnight. He said that he was going to a friend’s birthday and it was his intention to call in and tell the mother that he would have the children the next day. He said the lights were on and that it was nothing unusual for him to be out at that time because he was a night worker. He added however that he did not realise what the time was. In answer to questions about why he had not telephoned, he said the mother would not have talked to him. The only conclusion open to me is that if she would not have talked to him during a telephone conversation, there was even less prospect of her talking to him in the middle of the night at her front door. Even if he was a night worker and accustomed to that sort of pattern and thought that the mother would find his visit acceptable, it must be remembered that leaving aside the intervention order, this was only days after the disastrous weekend when the parties went away together. At the conclusion of the Port Campbell weekend, it was made clear by the mother that the relationship was ended.
The father’s very clear evidence is that he made a mistake on this particular night. That mistake was going to the house. When asked why he did not leave when he realised that the mother was, on his version, coming at him with a weapon, he said that she was trying to “get at” him. He said he was holding the door and he let it go and it pushed back. His version was that he injured the mother by pushing the door into her. I reject all of that evidence.
When questioned why he pleaded guilty before the County Court of Victoria having regard to his version of events, he candidly admitted that he was told by his counsel to stop wasting the Court’s time but added that he did not want R to be called because she had been traumatised enough. When challenged about whether he was critical of the advice he received, he said he was not but, on the contrary, had had the best advice that was available.
The father was carefully cross-examined about the impact of this event on R. He conceded that it was a big thing for a child of R’s age to try to telephone the police. When asked how he felt about that, he said “pretty damn bad”. Here was a child who knew her father was in trouble. The Independent Children’s Lawyer’s counsel asked the father whether he agreed that it was R’s instinct to hide him. Before conceding that it was not good to expose R to the whole incident, he said he “loved her for it” meaning her instinct to hide him. That indicates a very poor insight into the role that he must play as a parent.
The father’s position was that he was not a violent man. In January 1998, he was convicted of two counts of assaulting police, two counts of resisting arrest and one of being drunk in a public place. It must be added that this was prior to the children being born but also at a time when there was a large disparity between the ages of the parties who had just commenced their relationship. The mother too acted badly that night and their dispute required the intervention of the police. When cross-examined about the incident in 1998, the father described it as one in which he had done nothing wrong and the police behaviour was inappropriate. His version of what happened was, to a degree, in conflict with that given by the paternal grandmother. Although the versions were not significantly different, just exactly what happened does not matter. Despite claiming to having done nothing wrong, he pleaded guilty to the charges. Both the father and the paternal grandmother said that subsequently, the police apologised to him.
The father’s evidence under cross-examination was that he had never been violent towards the mother. I reject that.
The mother’s evidence was that an incident occurred in January 1998 in which he pushed her backwards into a shop alcove and called her “tart” claiming she had started a fight because she wanted men to look at her. She said he moved towards her, grabbed her hair and pushed her face into the glass shop door and the glass broke. The father’s version in his affidavit was different commencing with a general denial of “all allegations of impropriety” but he did not specifically respond to the accusation about what he said of the mother. I accept the mother’s version.
A second incident was referred to by the mother which must have occurred sometime not long after the one just referred to because she described herself as being pregnant with R. This was her sister’s engagement party. Having returned home from the party, she described the father as drug-affected. I pause at that point to note that in his reply, the father said that he believed his drink had been spiked. In his cross-examination, he said he had not used drugs since prior to meeting the mother. I do not accept that.
In respect of the incident, the mother said that she was attacked by the father who grabbed her by the throat and, a man by the name of RC who was their housemate, intervened. She called an ambulance at which point, the father lunged at her, lifted her against the wall with his hands and kicked her in the stomach. She said he then grabbed her by the hair and pulled her to the floor at which point the ambulance arrived. She described herself at that time as being heavily pregnant. She said the father lunged at the paramedics. Nothing the father said in his affidavit gave any indication of how he saw the matter and presumably he could not because on his own version, he believed his drink had been spiked. Again, I have no reason to doubt what the mother said was true.
Another incident occurred after the birth of R in which the mother described the father as angry because R was screaming uncontrollably. She described him grabbing her hair and dragging her backwards and subsequently he punched her in the face and she fell to the ground and lost consciousness. The father’s response was that the mother “struggled with motherhood and post-natal depression”. He said that R was not a difficult baby. Again, he gave no indication as to his version of what occurred. Having observed the father cross-examined, I readily accept that he is a person who is quick to resort to violence when angry. I have no doubt the incident occurred the way the mother described it.
The mother described a further incident in late 2003 when she fell pregnant. She said the father wanted her to have an abortion and if she did not get rid of the pregnancy, he would do it with a coat hanger. Although the father vehemently denied that in cross-examination, I have little doubt about the mother’s version. What was common ground however was that the mother did arrange for an abortion and on the morning of the appointment at the hospital, she was ill. She described the father as grabbing her head and forcing an abortion tablet down her throat. She said he kicked her as she sat on the floor and punched and smashed a window as he was leaving. Leaving aside the question of cross-examination of the father, his evidence simply referred to the abortion as a mutual decision. My focus at this point relates to the question of violence and again, I have no doubt about what the mother says was true.
In respect of violence, the paternal grandmother gave evidence and when asked about what she knew of these sorts of things, said that she was not there and was unaware of them.
In cross-examination, the father denied that he was a bully or controlling and offered an answer that he only tried to control the mother’s “poor behaviour”. I find the opposite is true. There is no evidence of violence by the mother that could be described as “poor behaviour”.
In 2002, he was convicted of resisting police and damaging property and placed on a community based order.
All of these events led up to the November 2007 incident.
After the assault on the mother in November 2007, the mother went to a refuge. The children went to the home initially of the father’s parents and then to the mother’s parents. The father had no time with the children until March 2009, sixteen months after the assault. In March 2009 pursuant to a court order, supervision began at the contact centre. That has continued until now.
Her Honour in the County Court referred to the fact that the father’s actions on that particular night were not distorted by alcohol or drugs. She described his actions as being motivated by anger and frustration fuelled by brooding on his grievances against the mother. Bearing in mind my findings just set out, nothing that her Honour saw in her sentencing remarks would appear to be inconsistent with my findings about the father’s history.
The father’s evidence about the incident in November 2007 is in stark contrast to that of the mother. Sadly, R saw some or all of the incident and even if she did not, she certainly witnessed the aftermath which included the police arriving and arresting her father and her mother being removed by an ambulance in a very sorry state.
Accordingly, I have no doubt that the father is a violent man who takes no responsibility for his actions. Counsel for the Independent Children’s Lawyer asked him whether he had apologised to the mother when he realised what had happened to the mother. His response was enlightening. He said he had not had the chance but then he thought she would not accept it anyway. That incident occurred three years ago and the father appeared before the County Court in late 2009. Nothing I have read in the sentencing remarks of the County Court judge would indicate that her Honour accepted any remorse.
Supervision: The father’s view
It must be remembered that the father’s application was to spend time with the children but not that they live with him. The father saw no reason for any supervision of his time with the children. He was questioned about the supervision. He was asked whether he was surprised that the mother had concerns about his demand for unsupervised time and said that he was. He said it was because the mother was resentful towards him. On the evidence, I could not find that to be the case. I have little doubt that the mother has no trust in the father and I have little doubt that she is justified.
When given an opportunity to acknowledge the mother’s difficulty about him having unsupervised time, the only response that the father could give was that she has a lot of difficulties.
The father was asked whether the mother’s attitude might be seen to have emanated from the assault. He conceded that that was a possibility but then gratuitously added that it was the mother who was making the children suffer by holding them to “ransom” because “he had alleged they’d done this and done that”.
Counsel for the Independent Children’s Lawyer went back into the argument to try and get some understanding of how the father viewed the mother. She again asked the father whether he was aware of the mother’s concern. Sadly, his response was “she needs to grow up a bit and move on”.
When the hearing resumed on 18 November 2010, counsel for the father said that agreement had been reached between the father and the Independent Children’s Lawyer on a position. That position was that for a period of some months, the father’s time with the children would be supervised initially by the ongoing involvement of the contact centre and thereafter, by a commercial supervising firm of Ms A. It was made clear that it was the mother who was standing out from that position.
However, when the father was cross-examined, it became clear that his position was not quite that simple. When asked about the children being driven down to a supervised visit with Ms A, the father said that it was just absurd. That led to the question of who would fund this commercial organisation. He was asked whether he was willing to fund it and he said that he was not. I asked the question of who would then pay and he said it was not his idea. When asked whether he would contribute he said that he would not. He added that he could not afford to contribute and he was not paying anything. When asked whether he could afford to pay he said he could but it was absurd and that people were wasting their time.
He was given an opportunity at the end of the cross-examination to say what his view was about not seeing the children if the supervision payment was not or could not be paid. I am not at all convinced that he would contribute in any significant way. The father’s position was to say that the maternal grandfather had offered to mortgage his house to protect the children. The inference was clear; the maternal grandfather should pay.
In final address, I raised this issue with the father’s counsel. He urged me to take the view that contact would occur. He urged me to take all of the evidence I have just mentioned as an indication of the father’s intellectual capacity and simplistic approach to things. I propose to do that but it must be said that this attitude certainly affects my view that there is cause for concern about how the father will treat the mother as a parent whilst in the presence of the children.
The answers to these questions therefore really give valuable insight as to the father’s position about the primary carer of these children. The mother’s concern was the deliberate destruction of her relationship with the children by the father. There is enough evidence for me to be concerned about that such that I could say that the mother’s position is justified.
The father was questioned about a number of matters relating to his time with the children whilst they have been attending the contact centre. He disputed the observations of the supervisors. I have no doubt the supervisors saw what they said occurred. I refer to their evidence below.
The parties’ relationship and parenting roles
Despite all of the horrendous things that happened to the mother some of which were witnessed by R, it is clear on the evidence that the two children wish to have a relationship with the father. Nothing in the legislation precludes a court from permitting a parent to spend time with a child even in the circumstances of horrendous violence. However, the assessment of the court must be in relation to the question of whether there is an unacceptable risk not just of violence but of the children being adversely affected psychologically and emotionally by the behaviour of one or other of their parents. In this case, I have considerable concerns about the father and find that there is sufficient reason to agree that the mother’s expressed reservations about unsupervised time are well founded. Much of that finding comes from not only the foregoing findings in relation to family violence but also the following findings in relation to the insight or lack thereof, that the father has into the role of the mother concerning the future parenting of these children.
In their respective affidavits, little attention was paid to the respective roles of the parties during the time that they were living together. The mother conceded that in 2005, she was admitted to the local psychiatric services organisation and diagnosed as suffering an acute psychotic episode. The reason behind that does not matter because there is no challenge to the future parenting role of the mother in this case. However, the mother said that she maintained treatment from a psychiatric services unit after that admission but also conceded that she had suffered eating disorders for most of her teenage and adult life and was receiving treatment for that. All of that enables me to infer that her parenting role was difficult and lends support to the view that she received assistance during those years from the father. His evidence was that he had been working as a bricklayer but ceased that to assist with the children. His evidence however was that he “assisted” the mother. The only inference open to me is that both parents worked together in relation to these children.
There can be no doubt however that subsequent to 2007, the mother has had the entire responsibility for the care of these children. Just what role the father sees the mother having in relation to these children is difficult to say. In cross-examination, he referred to the mother as “dragging them up”. When questioned about what he meant, he said the children told him that they are not happy. When asked about why he was continuing to receive a disability pension, rather than indicating that it was on medical advice enabling him to continue to receive the pension, his response was to simply say that the mother was receiving one.
In relation to a question about schooling, the father was highly critical of the mother for having taken the children from a school he thought was suitable and “for throwing” them into a Catholic school. Importantly, he said that the children told him that they “hate” the school. How he would know that is hard to say having regard to the fact that all of his time since 2007 has been under careful supervision by the contact centre. None of these concerns was raised by the supervisors.
Much insight can be gleaned from an answer to a question that was put to the father. He was asked what if anything he could say that was positive about the mother’s role as a parent and his response after a short hesitation was that she was a “good cook”. He had nothing further to add.
He was highly critical of the mother from something he had gleaned at the contact centre saying that one of the children had warts on her hands which were not being addressed. He said that it was only after he did something about it that the child was treated. Exhibit F1 was a psychiatric services summary dated August 2009 in which it was noted that R was referred to the service by a Family Violence Program worker. The report noted that the referral was due to the concerns that R was repeatedly washing her hands leading to them being chaffed and bleeding. Whether this was the same thing as that to which the father was referring, I am unable to say. It would seem clear however that at least in 2009, issues of R’s problems were being addressed by the mother. Importantly, that same report noted that:
Difficulties at night time where [R] reports she can hear voices and see things and she actively avoids going to sleep, this appears to be related to witnessing an assault of her mother at night.
The father’s criticism of the mother in relation to the warts on the hands pales into insignificance in comparison to the problems that R was having as noted by the psychiatric services unit.
When questioned about what other concerns he had about the mother’s parenting of the children, the father referred to the fact that R had “stitches in her vagina”. This confusing response meant little until further cross-examination elicited the fact that R had fallen on her bicycle and damaged her hymen which apparently required stitching. The father’s response however was that he could not understand how such a fall could require internal surgery of that nature. The inference that the father undoubtedly wished me to draw was that there was some criticism to be made of the mother. He had not been made aware of the precise details of this incident but acknowledged that no request had been made of the mother’s lawyers for details although he said that he had told his lawyers to do so.
When pressed further about criticisms of the mother, he referred to an incident in which R apparently said that she had “a needle in her head”. This explanation too was confusing. It turns out that what he was referring to was some treatment of R under which electrodes were placed on her head to ascertain whether there was a problem associated with epilepsy. This medical assessment was undertaken by Dr M. The father wanted me to draw an inference that the mother somehow orchestrated the medical professional to test unnecessarily for epilepsy. His explanation was nothing short of bizarre.
When pressed about other criticisms of the mother, the father said that he “would not say in court” because the children had told him in confidence and he did not want to get them into trouble. When I explained the dilemma of not having that information, he gave some relatively innocuous explanations one of which was that the children told him that the mother would not give them a drink during hot weather and locked them outside of the house. It is pertinent to observe that none of this information was in his affidavit. No cross-examination of the mother occurred along those lines either.
The father was cross-examined about the fact that at the contact centre, he was observed by the supervisor as whispering to the girls. He denied that saying that they could not make such an observation because they were never close enough to notice. I reject that. I refer to the supervisor’s evidence below.
The father was asked to effectively compliment the mother on the fact that the children were going well at school. His response however was to say that it was not as well as they used to be going. When asked how he knew bearing in mind that he had had little contact with them, he said that the children used to be able to identify places and countries on a world globe.
To that point in the evidence, the only conclusion I could draw was that the father had no insight into the role of the mother and more importantly, how he had made her task so much more difficult by his behaviour particularly that in November 2007. Towards the end of his evidence however he conceded that the mother had done a lot of good things although he was not expansive on what that meant.
All of this evidence conflicts with that of the mother who said that she and the children enjoyed many activities together including bike riding, bush walking and attending at family functions. She said the children participated in Little Athletics, calisthenics and girl guides on a weekly basis. She said they had a trampoline in the backyard and there were parks close by to which they regularly attended. She said that they had reading material from school which she did with them at night and she arranged for a teacher friend to assist the children with mathematics because that was not her strong point. She said the children enjoyed school notwithstanding what the father said about them having been placed in a school that they hated. She said they were progressing well in all aspects of their schooling. She said she took them to and from school each day and they had a small circle of close friends some of whom lived in the same street. She said that during school holidays she organised things like camping.
In her evidence, the mother referred to the difficulties that R had experienced subsequent to the November 2007 assault and that that had meant her attendance for professional assistance.
There was nothing in the evidence of the mother which indicated to me that she was anything other than a perfectly competent and concerned parent. All of the criticisms to which I have referred by the father must be seen as unwarranted not only because they were without foundation and said in ignorance but also because they showed how little insight he has in relation to the needs of these children. I have no confidence that the father would not be destructive of the relationship between the children and their mother were he given an opportunity immediately to spend time unsupervised with them.
The supervision in this case has been difficult. It has extended over 40 visits and the contact centre now desires that it come to an end. In many circumstances, ongoing supervision to enable children to have a relationship with a parent can be seen as counterproductive but that decision must always be based on whether or not there is an unacceptable risk that the children will be psychologically, physically or emotionally harmed if there is not some responsible person to ensure their protection. In many cases, one would expect extended family members such as grandparents to be able to undertake that role. In this case, that is not possible.
The relationship between the father and the maternal grandparents is extremely poor. Whatever may be the justification for that during the relationship, even in the witness box under cross-examination, the father quickly resorted to an angry response accusing the maternal grandfather of being nothing other than a “thug”. The absence of any relationship there would put the children in an untenable position if the grandfather was to be the supervisor.
Mr B
Mr B is the current companion of the mother although it would appear they do not live together notwithstanding the children might have a view otherwise.
Mr B noted that the children spoke poorly to their mother after spending time with their father including a statement that their father told them they did not have to do what their mother said.
On a positive note, Mr B appears to enjoy a good relationship with the children and there was nothing about him or his evidence which would cause me any concern if his relationship with them is to continue in the future.
In relation to the question of what if any involvement he might have with the father and as a supervisor in the future, Mr B indicated very clearly that he did not want to be involved.
The paternal grandparents
The paternal grandmother denied that her son had any problems. She was asked about the father’s drinking habits and she said that he had “a few” drinks but she did not “know” whether she would say that he drank to excess. When asked whether the father was violent towards the mother, she said she did not know about any of that. After the 2005 incident in which he was assaulted, the paternal grandmother said she did not see any increase in aggression in her son but she supposed that he was angry about having been assaulted. As for the assault on the mother in November 2007, the paternal grandmother’s view was that she did not believe he could do such a thing. When asked about the convictions, she was dismissive of them. Having regard to the findings I have made earlier, her evidence must be seen as of little weight. She adopted the position of her son in relation to all of the past convictions and saw the incident in November 2007 as an error of judgment. Nothing in her evidence indicated to me that she could now have a relationship with the mother and when I pressed her for some indication as to how she saw the prospect of that happening, her response was very negative.
The paternal grandfather like his wife, has not seen these children for three years in circumstances where there had been an apparent close and loving relationship up until the time that the relationship between the mother and the father broke down. He too indicated that if the mother wished to talk to him, he would be willing to do so but gave me no confidence that he could take the first step and mend any bridges. He too saw no difficulties about his son’s behaviour. Accordingly, I could have no confidence that the paternal grandparents would take an objective role in relation to their grandchildren. I have no doubt they love these children and want to spend some time with them. I have no doubt they would protect their children from any physical harm whether by their son or anyone else. It is not that issue that concerns me. It is the lack of acknowledgement of the role that their son has played in creating the difficulties for these children as I have earlier set out. I have serious concerns about the fact that they would do nothing to stop their son denigrating the mother and her family in the presence of the children. Those findings mean that I must exclude the paternal grandparents in any supervisory role.
Ms T
Ms T was called by the father as a witness. She is a psychologist with 19 years experience. She has impressive post-graduate experience and qualifications. No-one challenged those qualifications. Attached to her affidavit were two reports dated 4 December 2008 and 28 August 2010 respectively. It transpired that Ms T had provided other reports but they were not included in the evidence relied upon by the father.
It was not until well into the evidence of Ms T that she raised her own understanding of why she was being called.
Ms T has seen the father extensively over 5 years. He was referred to her by the Victims of Crime Authority after the 2005 assault on him. Her first contacts included the mother. On one occasion she saw the father with the two children but that was a long time ago.
At the time of the 2008 report, Ms T noted that the father had been charged with the November 2007 offences but was “vigorously” defending them. She knew some of his background principally because he had explained it to her. She was aware of the father’s convictions but felt she could still opine about his propensity to violence based on what she had observed and been told by both the father and his family.
In her 2010 summary, Ms T described the father as having presented as an introverted, passive, dependent man, easily manipulated, fearful and avoidant of conflict. For two reasons, I reject that opinion as having any validity. First, the opinion is prefaced by the word “presented”. Notwithstanding Ms T saw the father over a number of years, if his presentation was consistent as described, Ms T did not see what I saw. Secondly, the opinion ignores the reality of a number of court convictions and the observations of others such as the mother and her own father.
The second report of Ms T dated 28 August 2010 was glaring deficient because it made no reference to the sentencing remarks of the County Court only one year ago. Ms T was aware of that event. She could not explain why no reference was made to it in her report. When tested under cross-examination about the plea of guilty by the father, Ms T said much the same as he did. When cross-examined about the assault itself, Ms T confirmed her knowledge came from the father. Previous convictions were equally dismissed by Ms T as the father had dismissed them as well. Despite that, Ms T said “it seems [the mother] dictated and controlled the terms of the relationship and major family decisions”. How she could professionally conclude that escapes me having regard to the limitations on her instructions. Further, Ms T said “one can’t help but wonder what damage has been done to the children (by the absence of their father)”. That too was a flawed opinion having regard to the limited professional role that she played.
During cross-examination, Ms T offered the comment that she was not giving expert evidence and the father’s counsel said she was being called to give the opinion of a treating professional as to the father’s psychological state and how that state would affect his future. If so, much of what Ms T said was irrelevant. I have no doubt that the reports were obtained by the father’s legal practitioners over the life of this litigation solely for the purpose of supporting the argument of the father that there was no reason why he should not be seeing his children. Legal practitioners need to be careful as to the purpose for which such evidence is obtained. I similarly have no doubt that Ms T was an advocate for the father. Her objectivity may not necessarily be compromised but her evidence did nothing to assist me in determining what was in the best interest of these two children.
The family consultant’s evidence
Ms C was the family consultant appointed by the Court to this case. Her background is as a social worker. Unfortunately, her report was prepared before the parties filed their affidavit material which meant that she was unaware of precisely what each party had to say about the other and the children. Ms C also had to wade through various documents in subpoenaed files. That exercise may have been more simple had she know the parties’ evidence first.
Ms C defined the applications, proposals and issues of the parties accurately.
Of the mother, Ms C said she appeared composed, confident and seemed to manage well. Ms C did not see any signs of anxiety. In respect of the November 2007 incident, Ms C said the mother alleged that the father hit her in the face with an iron bar. That statement was incorrect in that it was the father who said that the mother was alleging that. Nothing turned on that issue.
Ms C identified the mother’s position as being that she and the children lived in fear of the father as a direct result of the abusive behaviour they endured throughout the relationship and from the November 2007 assault. The mother explained to Ms C that she would worry if the father had unsupervised time with the children suggesting that their psychological health would be at risk. Ms C thought it was to the mother’s credit that she said that if she knew the safety measures were in place and the children would be okay, she would not mind the father having them for half a week. The mother told Ms C that the father had a temper and that both of the girls had recollections of him hurting her as well as hurting them. She also expressed the concern that if the children were unsupervised, the father would not return them to her. Unfortunately, absent the mother’s affidavit, the details of her accusations appeared less relevant. However Ms C said that she understood the father’s assault on the mother in November 2007 was serious. She noted there was a history of family violence whilst noting the facts were disputed.
Ms C opined that the mother’s mental health prior to separation was a contributing factor in how she parented the children and that at times she appeared to be less mindful of their emotional needs. I do not accept that is a fair view of the reality of the situation.
Of the father, Ms C said that he presented as cooperative and eager to be able to inform her about his issues and how he perceived himself “to have been treated”.
In respect of his views of the state of the relationship before separation, Ms C noted the father’s belief that the mother had “overstated” the violence in their relationship prior to separation, and in his view, it was designed to obstruct his relationship with the children and portray him as a dangerous and violent man.
In respect of his views of the November 2007 assault, Ms C said it was the father’s belief that he did not assault the mother with an iron bar but that he did go to her house “illegally” and at the time breached the intervention order. The difficulty with that statement is that it tends to understate what happened in November 2007 and the reference to an iron bar blurs the facts. Ms C noted that the father said that he admitted pleading guilty because the police were going to call R as a witness and he did not want her subjected to that experience.
Ms C referred to the father’s complaint about the mother’s “inappropriate” parenting but did not press what that meant. She noted that psychologist Ms T indicated that there were no concerns about the father’s ability to parent the children but that evidence was without foundation. She also noted Dr J recorded that neither parent presented as a risk to the children but that has to be considered in the context of the outcome of the violence allegations which are now clear. At the time that the parties saw Dr J, things were very different.
Ms C opined that the father acknowledged his role in the violent situation and was remorseful that his actions on that night caused harm to the mother. She said that subsequent to that time, the father had consistently engaged in behaviours and actions which had focussed on reducing the risks his previous behaviour may have posed to the children and that as a consequence, any risk to the children had diminished with the emotional and physical distance of the father from the mother as well as his acknowledgment of the violence and his insight into the impact on the children. I reject that opinion based on what I have earlier said in these reasons. In the limited time that Ms C spent with the father, the absence of affidavit material and the probable out-dated subpoena material, the conclusion is not one I can accept. Ms C was at pains to point out that the father had “moved on”. I reject that particularly having regard to what the sentencing judge said only one year ago. I note Ms C said that the criminal hearing was 2008 but in fact, it was 2009.
In respect of the children, Ms C said that they had experienced significant disruption in the past three years by which she was referring to the period subsequent to the assault. She described their family life as fractured and disintegrated and they had endured separation from their father for a significant period before reconnecting with him in the supervised environment.
Ms C then said:
It is important, wherever possible, for children to have loving and involved relationships with both parents. It is likely that both children will experience problems in their future adult relationships if they are not able to spend significant time with their father.
That opinion has to be read in the context and understanding of the family violence issue and its aftermath. R in particular has been affected by what occurred not just by what she may have seen.
For very good reason, parliament required the Court in s 60CC(2) to look at both a meaningful relationship and exposure to family violence. Bald statements that the separation of parents including the making of intervention orders reduces the problem for children are incorrect. As Ms C correctly pointed out, the exposure of children to parental conflict can have lasting effects but that problem is often exacerbated if there is an ongoing undermining by one parent of the other. In my view here, that risk is real. That view is borne out by the evidence of Ms E to which I shall turn below.
In her conclusions, Ms C said that the children should be provided with the opportunity to spend time with the father in his home with the paternal grandparents present and that the time should be increased in accordance with progress reviews ultimately to an overnight arrangement. That led to recommendations that the first periods of time with the father be spent with the parental grandparents being present. When I asked why there was a need for grandparent involvement, Ms C thought that it would ease the children into their relationship with the father but also, the children wanted to see their grandparents with whom they had had a close relationship prior to the separation. Unfortunately, I could not accept the grandparents here as “supervisors” because they have an unflattering view of the mother.
Ms C was asked about the impact on the children of having not only ongoing supervision but also specifically a commercial supervisor. She said it was not in the best interests of the children because they do not want it. This must be a case where the views of the children are taken seriously but they are still young enough to be told that there are other considerations than just their views. Ms C thought that she could undertake that role.
I do not accept in this case that the unhappiness of the children arising from the restrictions on their freedom (and that of their father) should be the predominant determinant.
Ms S
Ms S has been with the T Children’s Contact Service for seven years. She said in all of her years, this was one of those cases in which the father had had close supervision and there had been little change. Ms S set out in some detail the arrangements as they occurred and was critical of the mother for not permitting extensions of the arrangements to include the involvement of grandparents and in fact, the father’s dog. I am not at all troubled about those restrictions although it may have been sensible for the grandparents to have been involved in the supervision.
Ms S expressed concerns about a number of things involving the father. One of the contractual arrangements to which the parties agreed was that there would not be presents delivered to the children except on special occasions. The father ignored that. Whilst I clearly understand in an unusual situation like this, the father would do anything to excite his children and rekindle a seriously damaged relationship, but as Ms S pointed out, the time was intended for the father to spend with the children and not for them to be seen to be attending to obtain gifts.
Of more serious concern was the fact that the father was told not to whisper to the children and I have noted earlier the father’s view about that. Ms S said that there were two supervisors constantly in this case one of whom was very close by and the other was in a nearby room making notes of what had occurred. Despite the warnings and requests to the father to comply, Ms S noted that he failed to do so. That occurred as late as September 2010 when the father requested Ms S to “witness” R’s comments in relation to her mother about the child being yelled at. I could not ascertain how that circumstance arose but it was the father who requested Ms S to become involved. Ms S quite properly said that was an issue for the relevant welfare department and in respect of R, Ms S said that she could speak to a teacher if the issue was concerning her. It is concerning that the father was engaged in a discussion about the issue at all and then went to the supervisor for the purposes of getting a witness. If that was an isolated event, one could perhaps understand but in the context of the evidence I heard, particularly as a result of the cross-examination of the father, I have little confidence that he has any respect for the mother and would put the children’s emotional stability at risk if there was not someone monitoring what he was doing. Clearly in the context of a case such as this, the paternal grandparents could not be expected to undertake such a task when they too have an unflattering view of the mother. It must be remembered that all of the other evidence about the progress of the children indicated that they were doing fine and there were no signs observed by the family consultant that would indicate any concerns about the relationship between mother and daughter. How and why R raised an issue about her mother yelling at her leaves many unanswered questions. The very fact that it was raised does not give me much confidence in the father.
Ms S also referred to occasions where the supervisors had to involve the father with L. He had been ignoring L and concentrating on R.
Ms S who was supported by her team leader Ms N said that the duration of this supervision was extraordinary. A continuation of that arrangement, meant that other families were excluded. Supervision should normally only be for a limited period of time to enable children to re-establish their relationships and the supervised parent an opportunity to understand what is appropriate conduct. Ms S felt that not much had changed even though her supervisor recommended that the father move to unsupervised visits. I find there is concern as a result of what Ms S observed.
Dr J
Dr J is a forensic psychiatrist. He has an impressive curriculum vitae. Unfortunately Dr J was unavailable for the hearing but no-one challenged the admissibility of his evidence. He observed both parties in 2009. That date is important having regard to the fact that the County Court of Victoria had not concluded the assault issue.
Dr J observed the mother and said that if he accepted the reported history to be accurate and the mother’s presentation to be genuine, she had chronic post-traumatic stress disorder, a likely frontal lobe brain injury and a likely borderline personality disorder. However, Dr J said that on the material provided to him there was nothing to suggest that there was a direct physical risk to the children posed by the mother.
Dr J examined the father. He was told by the father that the multiple charges arising out of the assault were not true and that he had never hurt a single person in his life. A variety of allegations were made by the father about the mother’s behaviour none of which were in evidence before me.
Dr J noted that there was some slowing of mental processing and difficulty with complex calculation and likely diagnoses included frontal lobe brain injury and chronic post-traumatic stress disorder in partial remission. Importantly, Dr J then said:
Factors indicated an elevated risk of harm to others include male gender, single status, unemployment, low income group, alleged previous violence and alleged impulsivity. If one accepts the allegations against [the father] to be true a (sic) represents a moderate risk of harm to others. If one does not accept the allegations to be true then he has a low risk of harm to others.
Based on the evidence of Dr J, I must therefore conclude there is a moderate risk of harm to others still.
Unfortunately, because of the age of the reports of Dr J, his evidence did not assist very much.
Ms O
Ms O is a neuropsychologist. She prepared a report annexed to an affidavit sworn 12 March 2010. None of the parties required Ms O for cross-examination.
Ms O examined the mother whose history was described as comprehensive.
Ms O comprehensively set out her neuropsychological assessment. Several of the observations were consistent with what I observed in the witness box.
Ms O opined that the symptoms of the mother were typical of those seen in mild Acquired Brain Injury. That and the mother’s borderline level overall IQ indicated limited ability in complex problem solving and likely reactivity to stressful situations. However, nothing suggested any concern about her care of the children. Ms O did not notice any disorder of mood.
The Independent Children’s Lawyer requested Ms O to indicate whether the evidence indicated there was a risk that the mother would behave inappropriately or violently towards the children. Ms O noted previous periods of instability but even if she were to face a period of distress, the children would be likely to be safe. No suggestion appeared to indicate violent tendencies. Impulsivity was not observed.
Ms O then interviewed the father. Again, she took a comprehensive history. She described his overall IQ as in the low average range but his working memory was borderline. Ms O confirmed the evidence that the father gave about his hyper-vigilance and fears.
Ms O noted improved mood state and cognitive functioning and the neuropsychological profile did not suggest any concern in relation to the care of children. That was important because Ms O noted that from a brain function point of view, the father was not at more risk of behaving inappropriately or acting violently than any other person of his age. Nor, did Ms O note any concern about the father’s judgment in relation to violence.
The evidence of Ms O must be seen in the context of its clinical analysis. What seems clear is that Ms O was satisfied at least as to the father, there was an understanding of concepts particularly those relating to the impact of violence upon children.
Ms E
Ms E is a senior child and adolescent mental health clinician in T. She undertook an assessment relating to the children and particularly R. She described R as having been diagnosed with obsessive compulsive disorder secondary to trauma which arose out of the child witnessing the violent attack on her mother by her father and subsequent access to the father having been the main precipitant to her symptoms.
Ms E said that the developmental history revealed that R had been exposed to “domestic violence” from conception but that information must be seen in the context of the history being provided by the mother.
It was Ms E who noted that the obsessive compulsive disorder diagnosis came from Dr M. Ms E said that R was a very anxious child and if under stress, that anxiety may worsen or precipitate a re-emergence of the obsessive compulsive disorder. That too is a factor of concern but it is something about which the parents need to be vigilant.
Ms P
Ms P is a clinical psychologist in T. She treated the mother. She was not called for cross-examination.
Ms P noted the referral of the mother initially arose out of the Victims of Crime organisation.
The history taken by Ms P was not consistent with the evidence that I heard about the assault in November 2007. The details given to Ms P were far more graphic. I do not take those into account in relation to whether I accept Ms P as a credible witness.
Ms P simply recorded what she was told and it would appear, accurately. She said that the mother continued to suffer nightmares, was hyper-vigilant and had flashbacks. She said the mother was lacking in confidence in herself and guarded in her social relationships. She then made a diagnosis of significant post-traumatic stress disorder. According to Ms P, there will be residual post-traumatic symptoms in the future.
Mr Farmer
Mr Farmer is the maternal grandfather. He gave a superficial version of how he saw the relationship between his daughter and the father. He has no respect for the father. His evidence did little to engender confidence in me that he could bridge any of the problems between his daughter and the father.
Conclusion about supervision
Based on the findings, there must be ongoing supervision of these children and the question is to what degree and until when. The father’s position was made very clear in cross-examination and I have already referred to that. Whatever view he may take, my concern is for the best interests of these children. I find that he is unjustifiably dismissive of any concerns and his constant reference to the wish of the children does little to persuade me that the children’s best interests would be met by simply allowing a short term period of reintroduction.
The final positions of the parties
Counsel for the Independent Children’s Lawyer said that orders should be made providing some limited supervised time between the father and the children. She submitted that it was the mother who needed to have an order for supervision in place. She put that down to the mother’s fragility which arose from the November 2007 assault. Whilst there is a basis for such a submission, that is only one of the reasons I consider supervision is required here.
I accept that the mother is fragile and very worried about her own safety and that of the psychological health of the children. That fragility has to be seen in the context of her own intellectual problems as noted by Ms O. It is important to consider the nature of the relationship between each child and their parents (see s 60CC(3)(b)(i)). The Act obliges a court to consider not just the current state of the relationship but also how the proposed orders would impact upon it. Albeit in relation to the Act prior to 2006 amendments, the law has always required the court to look at the impact of orders upon a parent particularly in circumstances where there is an apprehension of the effect of those orders on the relationship (see B and B (1993) FLC 92-357 at 79,780, S and Q (1990) FLC 92-159 and Irvine and Irvine (1995) FLC 92-624 at 82,273). I shall return to this subject when I deal with the matters set out in s 60CC(3).
Counsel for the father referred me to the Full Court decision in Moose and Moose [2008] FamCAFC 108. There, Boland J with whom the other judges agreed, said the task of a trial judge in circumstances where the argument is about behaviour and risk to children, must carefully consider all of the relevant matters. It is worth noting what her Honour said:
66.His Honour’s task was to make orders which were in the best interests of the children (s 60CA), and in determining those best interests to have regard to the matters set out in s 60CC(2) and (3) guided in his consideration of the provisions by the objects set out in s 60B(1) and the principles underpinning it contained in s 60B(2).
67.The provisions of the amending Act have been described as resting on “twin pillars” (see Mazorski & Albright (2008) 37 Fam LR 518 per Brown J at paragraph 3). The first pillar is the importance of a child having a meaningful relationship with both parents; the second pillar is the need to protect children from physical and emotional harm.
68.Brown J’s judgment in Mazorski contains, in my view, a well researched and thorough exposition of the amendments, with reference to the Explanatory Memorandum, and the legislation itself. Her Honour’s discussion is helpful and her conclusions about s 60CC(2)(a) are cogent.
69.At paragraph 24 of her Honour’s reasons she sets out the dictionary definitions of “meaningful”, and then explains her conclusions on the effect of the term “meaningful relationship”. I respectfully agree with her Honour’s conclusions at paragraph 26 where she says:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
70.In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
71.The question then raised in this appeal is - Did his Honour appropriately consider, give reasons and craft orders to enable these children to have a relationship with their father, which was, even if not optimal, important, significant and valuable to them, or were orders which would have fostered such a relationship, inappropriate because of risk of physical or emotional harm to them?
72.In Taylor & Barker (2007) FLC 93-345 Bryant CJ and Finn J at paragraphs 61 and 62 of their judgment examined the question of the appropriate order in which a court should consider the provisions of Part VII after the introduction of the amending Act. Their Honours’ explained at paragraph 62 and 63:
62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
73.In Mazorski Brown J dealt with the “additional considerations” (s 60CC(3)), prior to dealing with the primary considerations (s 60CC(2)). I consider in a case such as the present one, it may have focused the trial Judge’s attention on relevant matters to be determined under s 60CC(2) if his Honour had first considered and made findings about relevant factors under s 60CC(3), particularly the nature of the children’s relationship with each of the parties, the capacity of the parties to provide for the needs of the children who believed, perhaps erroneously, that they had been abused by their father, and against that background, the likely effect any change in the children’s circumstances, including the likely effect on the children of any separation from the mother who had been their undisputed primary caregiver.
74.It is necessary in answering the question which I posed to have regard to the trial Judge’s finding (which is not subject of challenge in the appeal) that on the material before him, that he was satisfied there was no unacceptable risk, if the father spent time with the children, he would sexually abuse them. He did however find the father acted in “a most inappropriate manner” with the children.
75.It is also not clear, reading his Honour’s reasons as a whole, whether he found that the father’s inappropriate behaviour (which he found included use of “baby talk”, failure to pay child support, and purchase of a motor cycle for the children) was such that the children were at risk of emotional harm if they were to spend unsupervised time with him.
…
79In summary, I am satisfied that his Honour fell into appealable error in his consideration of s 60CC(2)(a) and (b) as, having found no unacceptable risk of physical abuse by the father, he failed to consider, (having found the children believed they had been subject of sexual abuse), if it was possible or appropriate to make orders to promote a meaningful relationship for the children with the father both in the shorter and more significantly the longer term.
Counsel urged me to cautiously approach the evidence because in his submission, there was no justification for a finding that there was an unacceptable risk of emotional harm to the children if unsupervised time with the father occurred. He also cautioned me about going outside of the evidence and finding that the children would be subjected to emotional abuse by the father. He referred me to KMB and PRL and Child Representative [2005] FamCA 1202. There the Full Court overturned orders of a trial judge who had not sufficiently considered the impact on the child of a change of residence proposed. The Full Court there said:
70.In our opinion there remains the obligation on a trial Judge to fully evaluate the competing proposals, to weigh up the pros and cons of each circumstance and to then dispassionately make the decision that the trial Judge concludes will best advance the welfare of the child. In circumstances where the evidence led does not provide the court with sufficient material to make such an evaluation, it becomes incumbent upon the Judge to draw his or her concern to the attention of the parties and, in particular, a child representative where one has been appointed, so that the Court has evidence of a specialist nature upon which it can properly act.
In this case, I have the evidence of Ms C and Ms T that the father has “moved on” and is not likely to damage the relationship of the mother and children. I have the supportive evidence of the contact centre that it is time to “move on” but I also have two important facets of the evidence. First, there is the conduct of the father at the contact centre including the need to be guided about paying attention to L’s needs. Secondly, I have my own observations of the father in the witness box as to his views of the mother. He was unrestrained. Counsel for the father said I should be cautious because of the nature of the father, his background, his diagnosed acquired brain injury and his level of intelligence as seen by Ms O. On the balance of probabilities, all of those factors enable me to find there is a risk of the father imposing his views on the children and destabilising what is otherwise a good relationship between the mother and the children. That must be a possibility where the father does not accept that the predominant carer is the mother and she has done a good job to stabilise the children subsequent to separation. In addition, I have the evidence of the problems of R that have required professional attention subsequent to separation. All of those heighten the risk for the children.
Counsel for the father urged me to find that there was no evidence that even if the father did some of those things, there was any adverse impact on the children. I reject that. I am entitled to take into account the social science opinion, supported by the family consultant Ms T and indeed, the father himself, that children subjected to conflict face psychological consequences later in life.
Based on all of those observations, I am satisfied there is ample evidence for me to make a finding that I should be concerned about the father’s capacity as a parent to potentially damage the relationship between the children and their mother. Counsel for the father suggested I should make mutual non-denigration orders. However that would give me little comfort in circumstances where there is evidence of non-compliance by both parties with intervention orders. There is no evidence the mother of late has denigrated the father in the presence of the children. There is no evidence that she would do so. I cannot say the same in respect of the father.
Any risk of harm to the welfare of a child is a fundamental matter of importance in deciding the nature of the time to be spent between the parent and the child. If the Court finds as I do here, the existence of a risk, the matter then becomes a question of what is its magnitude.
On the basis of the evidence, I find there is an unacceptable risk of these children being emotionally harmed by the conduct of the father if he behaves in the way he expressed his views, occurred.
Counsel for the father urged me to look carefully at the material produced pursuant to subpoena by the local Health Service. He submitted that the material showed that the mother was portraying her problems on to R and the problems described by the mother were not significant. On the contrary, he said R was coping well. In context, some of the entries would suggest that was so but as a whole, I am satisfied that R was being treated by the health professionals for good reasons. She had witnessed a serious assault by the father on her mother and there were consequences in the form of nightmares, fear of people under the house and signs of obsessive compulsive disorder relating to the washing of her hands.
Despite my concerns about the father’s reaction to ongoing supervision, his counsel said that I should have no fear that the father would walk away from such an order. I draw a large amount of comfort from the fact that the mother’s counsel said that the mother would pay one half of the cost. If the father did not understand the magnanimity of that gesture, it says something about his lack of understanding about the problem.
Counsel for the mother submitted there was an unacceptable risk of psychological harm. He conceded there was no risk of physical harm from the father. He urged me to say that time should be supervised until R was 16 years of age. That did nothing to address the fact that L is three years younger than R. The logic behind the mother’s submission was that at the age of 16, R would have the ability to say “No” to her father and in respect of L, there would be “safety in numbers”.
Supervision generally
Supervision is often an anathema to the s 60B objects in Part VII of the Act. How can a child benefit from the meaningful relationship with a parent in a closely monitored, sterile and organised environment.
In B and B (supra) the Full Court said “Supervised access is not appropriate as a long term measure”. That statement was made in the context of a finding that the father had been found to have perpetrated violence against the children. The Full Court said in that case that it was not unreasonable to take into account the need of the custodial parent to be assured of the child’s protection because anxiety had the potential to impact adversely on the parent’s ability to care for the child.
Sometimes, parents do not change their conduct such that a court could say that the reason for the supervision has not abated. If so, the court is obliged to balance the provisions of s 60CC(2)(a) and (b) and see whether the children could manage the relationship at a later age without supervision. I think that is the case here but it raises the problem of the disparate ages of the children. That may be resolved by the father attending a parenting course notwithstanding his reticence in attending various public places and being with other people. It may be that with his health professionals’ understanding of the Court’s concerns, they too could address these issues. It may be, as counsel suggested, the presence of R will provide protection to L. I am hopeful that upon the father reading these reasons, he will realise the concerns of the Court. If he does, the unacceptable risk should abate. I propose to order that the Court provide supervision by an order under s 65L of the Act and continue the involvement of the Independent Children’s Lawyer for the existence of the period that I intend the contact to be supervised and for a further four months thereafter making a total of 12 months so that if I am wrong about the abatement, an application could be made for the matter to be reconsidered. That will be an expensive exercise and one about which cost, the father was, and no doubt will be, critical. Having regard to the primary need for supervision arising out of the father’s conduct and my primary concern about his future conduct as a parent, he should bear the majority of the supervision costs. That cost will vary depending upon whether the supervisor charges for her travel expenses. The mother should not be responsible for those as she was willing to travel to Melbourne with the children to ensure the contact under supervision took place. Much was said about the limited time of contact. I agree things must move on and extra time will enable an expansion of activities but all of that will be governed by the parties’ capacity to pay.
Although the father protested that he had limited resources as a result of his disability pension, he pays minimal child support. He is repaying his parents money associated with legal costs and occasionally makes a contribution towards his living expenses. He can afford to go gold prospecting and play in a band. He can therefore make a significant contribution to the re-establishment of his relationship with the children.
The mother has offered to contribute one half. As I have said, that was magnanimous but she too is a pensioner. She supports the children. She therefore should not be required to pay one half. One third is more appropriate having regard to the possible extension of time that I have in mind for the children. The one half was based upon what would normally be the supervised time of two hours.
I say therefore that there is an unacceptable risk of psychological harm to the children and the only resolution of that problem arises by way of supervision for some time more than that proposed by the family consultant, the father and the Independent Children’s Lawyer. Each of the factors in s 60CC(2) and (3) support that conclusion. I turn to those matters now.
The legal principles
The law governing an application for parenting orders is set out in Part VII of the Act.
Section 60B(1) provides that the objects of Part VII are to ensure that the best interests of the children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives. That object is repeated as a consideration in s 60CC(2). However, s 60B requires the court to ensure that benefit for the children to the maximum extent consistent with the best interests of the child.
Section 60B also sets out as an object the requirement to ensure that the best interests of children are met by protecting them from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence. That aspiration too is repeated as a primary consideration in s 60CC(2).
In addition to the two objects just mentioned, the Act sets out that Part VII is to ensure that children receive adequate and proper parenting to help them achieve their full potential and also ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The objects above and the principles underlying them are a guide when considering how to assess each of the matters set out in s 60CC to which I shall return.
Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. Section 60CC sets out how to determine what is in the best interests of the children.
Section 60CC(1) requires a court to consider the matters set out in s 60CC(2), s 60CC(3), s 60CC(4) and s 60CC(4A).
Section 60CC(2) sets out primary considerations. Those are then followed by additional considerations in s 60CC(3).
The primary considerations are that of the benefit to the child of having a meaningful relationship with both parents and, the need to protect the child from the harm mentioned in the objects above. Nothing in the Act distinguishes those two considerations save that if s 60B is seen as a guide, then the meaningful involvement of parents in the lives of their children must be seen to occur to the maximum extent consistent with the best interests of the child. There is significant overlap between the two considerations. The meaningful relationship is with both parents and the child should benefit from that. If a child has to be protected from psychological harm arising from the exposure to abuse or family violence, it is because there is a very real possibility that a meaningful relationship with one of the parents might be damaged. That is the case here.
Another way of looking at the problem can be expressed as that set out by Murphy J in Lansa and Clovelly [2010] FamCA 80 in which his Honour said:
The rights of children, and assertions as to their best interests are, in many highly conflicted parenting cases ending in trials, refracted through a prism of each parent’s creation which contains their interpretation of the children’s best interests clouded by the (often unstated and sometimes denied) assertion of parental rights, both of the type earlier described and of a more self-centred type.
Murphy J was referring to a variety of parental rights such as freedom of movement and freedom of choices all of which are subservient to the best interests of children.
The Full Court in Marsden and Winch (No 3) [2007] FamCA 1364, Warnick and Thackray JJ said that a meaningful relationship should be accorded particular importance in determining what order would best promote the interests of the child and that was of the utmost importance in determining that outcome but it was necessary to take into account all of the relevant considerations identified in the Act and give them such weight as the Court thought appropriate.
There is no doubt that all of the considerations to which I shall turn have an impact upon the ultimate determination but in so far as there is a clash of considerations between protecting the children from psychological harm and them benefiting from a meaningful relationship with their father, the former must hold more significance.
Section 60B and s 60CC(2)(b) refer to exposure to abuse and family violence. Abuse needs no definition. Nothing in the section refers to the abuse necessarily being directed towards the child. It can clearly be exposure to the abuse of one parent by another. Exposure to family violence however requires some consideration. Family violence is defined in s 4 of the Act to mean:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
In this case, having had an opportunity to observe the mother giving evidence under cross-examination about her fears of the father and watching the reaction of the father in giving evidence, I accept without any reservation that the mother is reasonably apprehensive about her personal wellbeing or safety and there is a real prospect that the children would be exposed to that family violence if the parties were near one another.
Section 65D(1) of the Act provides that the court may make such parenting order as it thinks proper. The discretion therefore is extremely wide and must focus on what is best for the children. Section 65D(1) is subject to the provisions of s 61DA.
Section 61DA(1) of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. It is only about the allocation of parental responsibility. That presumption however is rebutted in two important circumstances both of which apply here.
Section 61DA(2) says that if a parent has engaged in abuse of the child or family violence, the presumption is rebutted. I find in this case having regard to the events of November 2007 not to mention the findings of the County Court judge, the presumption is rebutted.
Section 61DA(4) however also provides that the presumption may be rebutted if the court is satisfied that it would not be in the best interest of the child for the parents to have equal shared parental responsibility. In this case, that discretionary exercise would not have been exercised in favour of the father but in any event, his counsel indicated that he was not pressing that an order should be made for equal shared parental responsibility. Having regard to the fact that s 65DAC requires that if a parenting order gives to the parents shared parental responsibility, they are required to consult in relation to major long term issues concerning the children, it is not conceivable that any such consultation here could occur. Leaving aside the permanent and indefinite intervention order against the father, the disdain of the father for the mother and the mother’s fear of the father would mean there was no prospect of any consultation occurring.
Major long term issues concerning the children are defined in s 4 of the Act to include education, religious and cultural upbringing, health, names and changes to the children’s living arrangements that would affect the time spent with a parent with any degree of difficulty. Those are very important parenting issues and all parents should have the right to have a significant say in those issues because in many cases, they define the very future of children. However, in circumstances where there can be no consultative process for the reasons to which I have referred, it stands to reason that those issues could never be the subject of appropriate consultation. That does not mean however that in this case, the father should simply be ignored. What should occur is that the mother notify the father of her intention to make a decision. That notification should be in writing in some form. Hopefully at some point in the future, the mother’s fear of the father may abate in which case, she might be in a position then to have an opportunity to consider his views. I have given that considerable thought in this case and cannot see that there is a prospect of anything other than a dispute between the parties having regard to the evidence to which I have referred.
In the circumstances, I would not make an order for equal shared parental responsibility. I propose to make an order that the mother have responsibility for major long term issues concerning the children but on the basis that she notifies the father of those decisions.
I turn then to the issues associated with s 60CC generally.
On the evidence, I am satisfied that the children will benefit from having a meaningful relationship with their father. That relationship can be meaningful even though it is supervised. Supervision is not a long term requirement in this case depending upon how the father behaves. The removal of the contact from the supervised contact centre will enable the time to be more flexibly used. Cooperation by both parents with the supervisor will enable the relationship between the father and the children to be expanded so that the children can learn about his activities and his family. The children have had little to do with the father but even less with their paternal grandparents. It is not the meaningful relationship which is important but that the children benefit from it. It must be remembered that the children are to benefit from the meaningful relationship with both parents. It is because of the prospect that the children’s relationship may be damaged with their mother unless the father realises the dilemma he has created, supervision is necessary.
Supervision in this case is also necessary because of the requirement under the Act to protect children from psychological harm in being exposed to abuse or family violence. In this case, there is no concern about the mother’s conduct and therefore the supervision is necessary to protect the children from the possible psychological harm from the father.
Much was said in these proceedings about the views expressed by the children and the fact that, in particular R, should be heard. I propose to order that the mother bring the children to Melbourne to meet the family consultant again who will endeavour to explain to them that the supervision is to continue for a further eight months. Whilst R’s views are strongly articulated, she may understand that she has been heard but the risks in my view outweigh her views.
L may very well be a follower rather than a leader and she is too young to have her views given much weight.
I have taken into account the fact that the nature of the relationship between the children and their mother is extremely important. For the reasons I earlier articulated, that must be protected. The mother is the primary parent in the lives of these children. As I have found, the father certainly assisted in their lives prior to separation but at that time, he left the children in their mother’s care. He was certainly keen to see them and be involved in their lives but by his own conduct, excluded himself from their lives. It is up to him to rebuild that relationship in a responsible way. At the moment, all I can determine is that his relationship is one in which the children show interest.
The father was very critical about the mother’s willingness to facilitate his time with the children. I have rejected his baseless views. The mother was criticised by the contact centre for not involving the paternal grandparents and that has no doubt made the parties more polarized and excluded important figures from the lives of the children. Having accepted the mother’s fears however, the criticism of her for the matters raised by the contact centre pales into insignificance. I am satisfied that she is a supporter of time between the father and children and that she sees some benefit in him being in their lives.
Section 60CC requires that I consider the impact of any changes in the children’s circumstances as a result of being separated from either of the parents. That evidence in relation to R and her father is clear. The child wants to have an involvement in her father’s life. The extent of it remains unclear because R knows little about what her father can offer her. L made her views clear to the family consultant that she desired to spend some time with her father but otherwise come back to live with her mother. I conclude therefore that neither child wants extensive time away from their mother at this stage.
There are certainly practical difficulties and expenses for the children in spending time with the father and that is a serious consideration in s 60CC. However, the overriding consideration in this case must be the protection of the children against the unacceptable risk to which I have earlier referred. The practical difficulties in this case are minimal. The father may say that he does not have the financial capacity to engage in the supervision process but I have found otherwise. It is also important to note the mother’s willingness to contribute which is very much in her favour in terms of confirming what she said about the children having an ongoing relationship with their father.
I am also obliged to consider the capacity of each of the children’s parents to provide for the needs of the children including their emotional and intellectual needs. The mother’s evidence which I have accepted strongly suggests that she has the capacity to care for the children and in an area such as mathematics where she is weak, she has the support of outside assistance. She is to be given credit for that. That credit must also be given in the light of the father’s criticism of her which I have rejected. I have concerns about the father’s capacity to provide for the emotional needs of the children having regard to his unrestrained views about the mother. It is because of that that I intend to make an order that he attend a parenting program but not as a condition of the orders I intend to make about his time with the children. If he cannot see the benefit of learning why I am concerned about his approach to things, these children are in for a difficult period during their teenage years.
Section 60CC also says that a court is obliged to consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents. Although I have been mildly critical of the mother for her role in placing the children in a dangerous position after the making of the intervention orders, that becomes less important when I look at what happened subsequently. Any conflictual behaviour between parents in the presence of children is damaging to them. For that sort of behaviour to be other than an isolated event in a relationship, demonstrates poor responsibilities in parenting. Notwithstanding that, there must be a point in which parents learn by their past conduct of the damage they are doing to the children. The father’s views about the assault in November and his attitude that it was a “mistake”, together with his espoused view that he was grateful to R for trying to protect him from the police entitles a court to make a finding that that is an abdication of responsibilities of parenthood. I stress again however that the father can change all of that.
Section 60CC also requires the court to take into account family violence and family violence orders. I need say no more in this case other than that I agree with the Independent Children’s Lawyer’s counsel that the events of November 2007 were the overriding event in this case that has done an enormous amount of damage to these children.
I am also very conscious of the need to bring these proceedings to an end. Had it been the situation that the Court could have heard the case earlier, the time of the children in the supervised environment of the contact centre may have been alleviated. That is not to say however that the time might have been unsupervised elsewhere. If that same evidence had been given two years ago, it is hard to see how the situation would have otherwise been different. In this case however, these children deserve the right to know each parent and to participate in their lives in the same way as all children in Australia have that right. Children have those rights removed or restrained when parents cannot act responsibly. It seems to me however that I can make final orders here on the very clear understanding that if the supervisor, the Independent Children’s Lawyer or indeed the parties themselves express reservations about the success of those orders, they can always make a further application.
Section 60CC(4) and (4A) require the court to consider whether a party has fulfilled their responsibilities in participating in the lives of their children. I commend the father for having persisted with the contact in the difficult circumstances of the contact centre. However, now is an opportunity to significantly change his views about the importance of the mother in the lives of these children and to give her confidence that there will be no risk to these children emotionally and psychologically in the future.
In my view it is in the best interests of these children taking all of those matters into account that the relationship between the father and the children be supervised for a limited period of time to enable the father to re-establish the relationship and at the same time, to contemplate how significant the mother is in their lives. It will also give him an opportunity to obtain some professional help to see ways in which he can not only contribute significantly to the lives of the children but also be able to communicate with the mother and give her confidence that he does not pose a threat to her.
Parental responsibility orders
The father did not seek equal shared parental responsibility notwithstanding that was his earlier position. Under those circumstances, it is appropriate that the mother have the responsibility for making the long term decisions about the children but on condition that she notifies the father to enable him to at least understand what is happening in the lives of his children.
Proposals
I reject all of the proposals in this case. I have set out my reasons for not accepting the evidence of the family consultant. The period of most of the next eight months will largely be in a different supervised environment to that which the father has been accustomed at the contact centre. I propose that the supervisor have a copy of these reasons so that she can understand the dilemma faced by the Court in circumstances where a number of professionals have taken a different view.
It is important to put in place a s 65L(1) order for a period of 12 months. Eight months of that period of time will be subject to the contact being supervised. The last four months of that 12 month period will be unrestricted providing the father has spent the majority of time with the children in the supervised environment that I propose to order. If he does not undertake that by choice, the unrestricted time should not commence because it would mean that my criticisms of the father are well-founded. If he does comply with the orders over the period of eight months, there will then be a four month window of opportunity for a number of professionals to assist both parties to move to an unrestricted environment which is the right of all of these children in the long run.
Because the mother is making the decisions in relation to health and education in particular, she should be in a position to provide copies of orders to those relevant people.
As I earlier said, I appreciate the potential disappointment of the children or more particularly R but with an appropriate explanation from the family consultant that the Court wants the relationship to be assisted by the involvement of the supervisor away from the contact centre, that this appointment should be less of a problem.
I certify that the preceding Two Hundred and Seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 December 2010.
Associate:
Date: 6 December 2010
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