Fassom & Carbett
[2021] FedCFamC2F 586
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fassom & Carbett [2021] FedCFamC2F 586
File number(s): DGC 2281 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – Parenting dispute about children aged 14, 12 and 11 – children not having seen father since 2017 – father’s convictions for assaults on the mother and maternal grandmother, and for breaching intervention orders – 5 year intervention order expiring in 2024 – father’s complete lack of insight into his past conduct and the position of the children – children expressing strong desire not to see the father – orders made as sought by the mother. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346
Rice & Asplund [1978] FamCA 84Division: Division 2 Family Law Number of paragraphs: 86 Date of last submission/s: 25 November 2021 Date of hearing: 25 November 2021 Place: Dandenong Counsel for the Applicant: Mr Turner Solicitor for the Applicant: Mmh Lawyers The Respondent: Self-Represented Counsel for the Independent Children's Lawyer: Mr Gardiner Solicitor for the Independent Children's Lawyer: McCormack and Co ORDERS
DGC 2281 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FASSOM
Applicant
AND: MS CARBETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.The mother have sole responsibility for long term decisions for the children of the relationship X born in 2007, Y born in 2009 and Z born in 2010 (“the children”).
3.The mother shall ensure that through her father or another person of her choice, the father is informed of any serious illness or injury suffered by the children and/or any major decisions made in respect of their education or medical treatment.
4.The children spend time with the father in accordance with their wishes.
5.The children live with the mother.
6.The father be permitted to send letters cards and photographs to the children via the maternal grandfather on special occasions (when he may also include an appropriate gift) and the mother will determine whether same should be presented to the children.
7.The order appointing the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fassom & Carbett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about three children: X, born in 2007; Y, born in 2009; and Z, born in 2010. The applicant father seeks orders that would, at least, keep open some channel of communication between himself and the children, whom he has not seen for a number of years. The respondent mother seeks that the father spend no time whatever with the children and that any communication between the children and the father be very strictly controlled. The Independent Children's Lawyer supports the position of the father, but for the reasons that follow, I am going to make the orders that the mother seeks.
It should be noted that, by agreement of all parties, this matter was dealt with by submissions alone. There is really no material dispute as to the essential facts.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1973 and is in receipt of a disability support pension. The mother was born in 1987 and is a stay-at-home mother. She lives with her now fiancé, Mr B, and the three children to whom I have already referred. The parents met in about 2006, when the mother was, of course, only 19 years of age and commenced cohabitation shortly thereafter. They separated on 15 September 2017. The father has essentially not seen the children since save once at a shopping centre by accident.
The relationship was characterised by family violence including assaults on the mother by the father in front of the children, although it should be noted that the father’s position in his affidavit is that he was the subject of assault by the mother. Following an assault at Easter 2017, the father ultimately pleaded guilty later that year to an assault charge. An intervention order made in 2017 was made final on 7 January 2019 and lasts for five years.
The children were removed from the care of the mother on 15 September 2017 and placed by the Department of Health and Human Services, as it then was, with the mother’s own mother and sister. The mother was initially allowed supervised time only. The children were returned to the full-time care of the mother by Christmas 2017 and Departmental involvement with the family ceased in August 2018.
Both the parents were convicted of cultivating marijuana. The mother did not serve time in prison, but the father did. The father has subsequently been incarcerated for further breaches of the intervention order. Both the mother and the children have been in receipt of awards from the Victims of Crime Tribunal, and it appears that the father’s family have not been involved with the children or the mother since the separation.
The matter commenced by endeavours on the father’s part to find and then serve the mother. His initiating application has sought as final orders that the children live with him and spend time with their mother. By the time the matter has reached trial, however, his position is that he wishes to leave the door open for therapeutic counselling to repair his relationship with the children, to send letters and cards, and to have electronic communication or telephone communication with the children.
THE PARTIES’ AFFIDAVITS
In essence, the parties’ affidavit material is traversed in the section above. The father’s first affidavit, filed 8 July 2020, describes the relationship between the parents as erratic, and asserts that he had been the subject of domestic violence and accused the mother of being very controlling and erratic. He portrayed himself as a very involved parent with all three of the children. He was also concerned as to X being significantly overweight and his affidavit is strongly critical of the mother as being self-centred and a poor housewife.
The mother’s affidavit, filed 21 December 2020, deposes to the children progressing well at school but notes that Z was being diagnosed to see if he had Attention-Deficit Hyperactivity Disorder, Autism Spectrum Disorder or some other condition. The affidavit paints a picture of significant family violence perpetrated by the father and a number of breaches of the intervention orders then in place. The mother deposed that the children were all fearful of the father and deposed X had the clearest memory, as the eldest child and had tried to protect his mother and plead with him to stop the assaults on the mother. The mother put in issue the father’s assertions as to his parenting role.
There have been a number of independent assessments involved in the progress of the matter to trial.
11F REPORT
The parties were the subject of interviews with family consultant Mr C on 17 February 2021. The report noted the extensive history with the DHHS and the mother’s assertions of family violence. The report noted at paragraph 12, “Essentially the father denies the mothers allegations. While acknowledging verbal arguments, he states he has been the victim of abuse by the mother.”
Relevantly X, then 13 and a half, told Mr C that, “lots of fights physical and verbal ...I tried to stop to most of it but because I was only eight, I couldn’t stop it ... and ended up getting hit and punched by my dad.” X said this happened very often. At paragraph 46, X said, “I don’t try to think about my dad because quite honestly I don’t want anything to do with him”. At paragraph 49, X stated, “I kinda put up with eight or nine years of sort of torture.. I don’t want to go back to that.. I don’t want to see him and don’t want my siblings to see him either”.
Y remembered arguments and said, “yeah, normally we wouldn’t get hit but if we did something wrong then he would hurt Mum ... we were hit with a bamboo stick.” Y was clear that she did not wish to see her father.
Z was aware that the interview was about seeing his father and stated, “I don’t really know” ... and having talked to his sister and brother, “I just tell him I don’t want to see him ... he used to abuse us and stuff”. Z remembered his father hurting his mother. Like his sister, he remembered seeing his father by accident and his response was certainly one of being concerned about this.
At paragraphs 82-83, Mr C recorded:
The writer did express to the children that the father wished to see them and thought about them on a daily basis, however the writer was concerned about the father’s extremely negative view of the mother as well as lack of insight into the children’s possible world.
Such a combination of factors make a therapeutic intervention that may have potential benefits for the children in terms of reconnecting with their father very problematic.
The report noted the limited nature of the interviews given the COVID restrictions and recommended a psychological assessment of the father.
I should note in passing that a response from the Department of Health and Human Services, dated 14 January 2021 noted a considerable history with the Department but that “the concerns were historic, and they were all largely reported to Child Protection in the past. It is assessed that there is no role for Child Protection at this point in time as the children remain in the care of the mother, Ms Carbett, and there is no new concerns to suggest that they are at risk of imminent significant harm in Ms Carbett’s care at this point in time.
THE REPORT OF DR D
Dr D, forensic psychologist, has provided a report dated 11 October 2021. She assessed the father on 21 September 2021.
Dr D reported, at paragraph 2:
Mr Fassom is a 47-year-old male evaluated in the context of family law proceedings. He impressed as externalising and/or minimising responsibility for any past difficulties or relationship conflict, reflecting both poor self-insight and positive impression management. He appeared fixated on denigrating Ms Carbett.
At paragraph 8, the report noted that Mr Fassom was 29 or 30 years old when he met the mother who was 13 years younger than he was:
He indicated that when they met, Ms Carbett had just been kicked out of home and was isolated from her family. He explained that when they conceived her first child, her family reconciled but wanted to exclude him from the family. He claimed to have no understanding of this dynamic, however indicated that he was convicted of assaulting Ms Carbett’s mother. He claimed that he was unfairly blamed for this incident.
Paragraphs 10-12 of the report continued, relevantly:
Mr Fassom claimed that Ms Carbett could not communicate with him without screaming. He recalled feeling embarrassed, with neighbours often overhearing this conflict. He indicated that Ms Carbett would also push and shove him regularly. He acknowledged that he had pushed Ms Carbett away on a couple of occasions in self-defence but claimed that he would typically try and leave the home, denying that he would engage in verbal or physical aggression towards her. He reported that his plea of guilty to giving Ms Carbett a black eye was to gain an early release from prison, and not because he believed that he had harmed her.
Mr Fassom reported that after he was released on bail, he attended Ms Carbett’s home because she threatened to commit suicide and was re-remanded. Affidavit material from Ms Carbett indicated that Mr Fassom continually breached intervention order protecting her.
Mr Fassom claimed that Ms Carbett fabricated allegations against him of family violence to minimise the likelihood of reprimand for being found in possession of cannabis in the home. He added that he had poor Counsel who did not present the relevant evidence.
Paragraph 14 of the report continued:
Mr Fassom reported that when he was remanded in September 2017 for his assault of Ms Carbett, the children were placed in the care of maternal grandparents by child protection. He claimed that child protection had been involved in the past when their son was found outside their home alone, which he attributed to Ms Carbett being neglectful. Mr Fassom claimed that Ms Carbett was withholding time between him and the children because she had stolen $500,000 worth of property from him.
This latter assertion must be approached with some caution, given that in paragraph 6 of the report, Mr Fassom indicated that he had worked in a range of roles, including in a factory, cleaning, and mechanical work and had not been employed for over 12 years, relying on disability support pensions since a motor vehicle accident in 2003.
At paragraph 17, the report noted:
Mr Fassom acknowledged that the children were exposed to verbal conflict between and Ms Carbett and were distressed. He recalled that his daughter would sit crying with her fingers in her ears. He reported that while the children are petrified of him, it is because he has been denigrated, and if he was to be afforded time with them, they would be immediately comfortable with him.
At paragraph 21, the report noted:
Mr Fassom claimed that he had completed two men’s behavioural change programs in the past. He indicated that the first was because he had assaulted Ms Carbett’s mother in self-defence. He claimed that his legal representatives would have convinced him to plead guilty. There was no information provided by Mr Fassom to suggest that he had benefited from such programs, rather that he continued to deny responsibility for his actions.
Mr Fassom was the subject of assessment via the Family Strength and Needs Assessment tool, and the conclusion, at paragraph 27 and 28 was,
Mr Fassom presented with protective factors including life skills and the ability to meet the children’s basic needs.
Based on the balance of strengths and needs on the FSNA, the likelihood that X, Y and Z would be exposed to neglect or abuse in Mr Fassom’s care was rated as moderate-high.
The report’s conclusions at paragraphs 29 and following were stark.
Mr Fassom is a 47 year old man evaluated in the context of family law proceedings. His lack of self-insight and engagement in positive impression management indicated that his self-report cannot be relied upon, and collateral information needs to be considered. As such, it presented as likely that the relationship between Ms Carbett and Mr Fassom was characterised by volatility and family violence in which Mr Fassom perpetrated harm and exposed his children.
A psychological evaluation via structured clinical interview and psychometric evaluation did not identify formal psychological disorder, but Mr Fassom presented with a number of personality difficulties with antisocial and borderline features. He has difficulty modulating his emotions and impulsivity, at times manifesting in aggressive and/or paranoid behaviour and difficulty respecting boundaries.
Parental risk evaluation identified Mr Fassom’s parental risk to be moderate-high, with primary concerns relating to exposing the children to family violence directly or indirectly, a poor co-parenting relationship with Ms Carbett, perpetuated by ongoing hostility towards her and difficulty in moderating these feelings, and cannabis use.
Mr Fassom’s level of insight in relation to concerns that have been raised through family court proceedings was limited, externalising responsibility. He presented with little ability to reflect on parental problems, or the difficulties identified and seemed unlikely to make the necessary changes to his behaviour or parenting without significant long-term support. Consideration should be given to any future contact with his children being supervised, with any time being graduated slowly.
Mr Fassom requires ongoing psychological assistance to manage his personality and emotional vulnerabilities that make him more likely to behave abusively and aggressively during times of stress and/or conflict. This assistance should include attending with a psychologist, who has expertise in family violence, over a period of at least 12 months, to address his emotional regulation skills. It is recommended that Mr Fassom participate in a Men’s Behaviour Change Program in conjunction with individual therapy, where he can be assessed and supported to develop self-insight and behavioural change.
It is recommended that upon completion of a Men’s Behaviour Change Program that Mr Fassom engage with parenting programs to improve his own functioning and to maximise the relationship between himself and his children.
THE FAMILY REPORT OF MR C
Mr C’s report dated 27 October 2021 was not the subject of formal tender given that there was no evidentiary challenge in the matter, but all parties implicitly accepted that it was properly before the Court.
The report noted that both parties had described a very volatile relationship but held very different accounts of the levels of violence and abuse as well as patterns of apparent control within the family (paragraph 5). Both parties acknowledged the father’s involvement with the children but held different perspectives about the level of control and coercion to which the children were subject (paragraph 6). The report noted that the children had spent no time with their father since at least December 2017.
The reported noted that the father’s initial application was for joint parental responsibility and for the children to live with him and spend time with their mother by agreement. The reported noted at paragraph 21
In interview, while unclear in regard to the specifics, Mr Fassom maintained that he now just wanted to be able to spend time, in some manner, with the children to begin with.
The report noted the differing accounts of family violence and the five-year intervention order to which I have referred. At paragraphs 29-31, the report said:
It is further noted that the Mr Fassom consented to the Order without admission and in discussion with the writer denies the majority of Ms Carbett’s allegations and alleges that he has been a victim of physical and verbal family violence from Ms Carbett.
Mr Fassom also alleges financial abuse by Ms Carbett in that his property has been illegally withheld or disposed of by Ms Carbett and her family.
In interview Ms Carbett remained highly concerned about Mr Fassom’s pattern of coercive control of both herself and the children and believed any contact with any of them would result in an extension of or reassertion of this embedded pattern.
The report noted the history of Departmental involvement and the conviction of the parties for the cultivation of marijuana. It noted Mr Fassom’s raising of the issues about the children’s weight, particularly X and associated likely difficulties. The report also noted Mr Fassom’s allegations that the mother continues to use illicit substances and associate with drug users and not adequately care for the children (paragraph 40). The mother denied drug usage, but the report noted at paragraph 46,
It is noted that despite the parties having no contact for more than 4 years, Mr Fassom maintains that Ms Carbett is a current methamphetamine user and associates with other drug users.
The report noted that the mother lives with her fiancé and the three children. It noted the mother’s assertion of the large age and experiential gap between her and the father, and the mother’s allegation that he controlled almost all aspects of the family (paragraph 62). In paragraphs 63-64, the report noted:
Ms Carbett states that, although challenges remain, with the support of her partner, family and professionals she is now in a more stable and relatively positive psychological and emotional space.
She also states that the children have had their own challenges as well and while aspects of their behaviour remain a work in progress, believes they are on a positive trajectory.
The report noted at paragraphs 67-70 that;
Ms Carbett remains very concerned about any contact with Mr Fassom not only for herself but also for the children as she believes he still holds the capacity to manipulate the children and to undermine their well-being as well as her own.
She also believes the children particularly X hold their own memories of their father and what occurred when they were together. She states she has not tried to influence the children and believes it important to have a relationship with their father but one that needs to be positive.
But in saying that she states she recognises the children’s anger particularly X’s and does not believe it is in anyone’s interest to force X or his siblings into seeing their father at this time when they do not wish so.
She also believes that certainly X and now Y have reached ages where they can contact their father and re-establish their relationship should they so wish, either now or in the future.
The report noted that the father lives on his own in Town E and Mr C observed, at paragraph 72, “he appears to live a relatively isolated lifestyle, but continues to have regular and ongoing counselling.”
At paragraph 74, the report noted the father presented a picture of being a very hands-on parent and close to his children up to the time of separation and continued,
He believes his been a victim of abuse by Ms Carbett and also that Ms Carbett and her family disposed of valuable possessions/assets without his consent while he was incarcerated. He states he has not had the resources to adequately pursue this matter but it still appears to aggrieve.
At paragraphs 76-78, the report noted:
In interview, consistent with interviews in the previous Child Inclusive Conference, Mr Fassom presented a very negative picture of the mother, suggesting she was a regular methamphetamine user, was likely not to be in a long-term relationship with Mr F and that she did not provide adequate care and support for the children.
Mr Fassom remained quite focussed on and presented in an angry manner towards the mother at times and overall described her as a “shit mother”.
Mr Fassom was very concerned about the children’s weight issues and the propensity they would have for diabetes and other health issues and that the mother was too otherwise preoccupied to focus on the children’s needs.
At paragraphs 79-80, the report continued:
In interview Mr Fassom was more focused on having some contact with the children, even supervised to begin, and believed that after spending “10 minutes together” that the children would re-connect their relationship with him in the way he believes they were connected prior to separation.
Apart from this plan, Mr Fassom had not explored any options in this regard nor did he have any plan in regard to further possible steps and in that respect he remained extremely vague about any longer term plans or how such could work pragmatically considering where parties now lived.
Mr Fassom did raise the possibility of supervised time at a Contact Centre and stated he would travel to wherever this was needed. He also raised the idea that he could spend time with the children at the paternal step grandfather’s which was not far from where the children lived, but again appeared vague and how these plans may be achieved.
The report noted the ongoing acrimony in the matter and that it was unlikely that any healthy parental alliance could be possible in the future (paragraph 83). The report noted the children’s close relationship with the extended maternal family (paragraph 84) and that while the children had been close to the paternal grandmother who is now deceased and had a positive relationship with the paternal step-grandfather in the past, they raised no wish to see the paternal family at this time (paragraph 85).
The report noted in interview with X that he had a more intense expression of anger towards his father than on the previous occasion (paragraph 89). X remained very protective of his mother and siblings (paragraph 91) and felt that they still needed protection from his father. At paragraph 92, the report noted:
X talked about how DFFH originally got involved as he was asked about a bruise by his teacher and he had told them that his father had “lashed out” at him. He stated prior to this “even when I was still living with him I thought it was normal to get hit …I can’t ever forgive him for what he had done”. He also talked about his father asking him “to look after the drugs.. that was too much”.
X did not accept that his father wanted him to know that he thought about him every day and said that he was lying (paragraph 94). The matter is perhaps best summed up at paragraph 101 where the report noted, “When asked about the future he said that he did have his father’s contact number “but I don’t see him talking to us soon .. me and my sister and my brother we always don’t want to see him..”
When Y was interviewed, the reported noted at paragraph 103-104:
When asked her thoughts about her father she stated that it “comes up in my head not seeing him because I don’t want to see him.. I did see him once when were at the shops.. gives me a bit of anxiety when I go out with my friends and that” and it appeared that sometimes the anxiety stays with her and she continues to worry.
She stated when she thought about contact with her father, “my anxiety will probably get really bad” and that this was “because of like everything he did and stuff”. Like her older brother she said she had memories about being hit.
She stated at paragraph 106, “X and I sometimes have conversations.. X hates him.. has anger against him” and when asked her own feelings at this time, she said, “(I) just don’t want to see him.”
Z was also interviewed and at paragraphs 112-113,
When asked whether he thought about his father he said "no not really" stated he wasn't really aware of what his brother and sister might think.
When asked if he had thoughts of spending time with his father he said emphatically "no".
The report noted that Mr C had had discussions with the father’s counsellor, Mr G, who remained available to assist (paragraph 120). Mr C also had discussions with the children’s counsellor, Ms H, and noted at paragraph 121, “it is noted that in discussion, Ms H confirmed similar conversations with the children, as those detailed here by the writer, in particular, in terms of the children’s concerns in regard to their father and the wishes that they have expressed.”
In the evaluation section, Mr C traversed the discrepant views of the parents as to the nature of the relationship and went on to say at paragraphs 133-138:
As noted in the Child Inclusive Conference, the writer would continue to express concerns about Mr Fassom’s lack of insight into how the children may be thinking/experiencing their world, as well as expressing a toxic attitude towards Ms Carbett and her capacity as a parent.
In saying this in the writer’s opinion, there is no capacity in this matter for any joint parental decision making.
It is noted that Dr D’s, Psychological Report also remarked on Mr Fassom’s lack of insight in regard to the children and believes this was unlikely to change ‘without significant long-term support’.
The writer would also note that Dr D also assessed Mr Fassom’s ‘parental risk’ as being ‘moderate-high’ and makes a number of suggestions about what may assist Mr Fassom in the future.
Taking into account Dr D’s assessment, the history of this matter, Mr Fassom’s ongoing animosity towards Ms Carbett and lack of insight, as well as the children’s expressed wishes, the writer finds it difficult to see any positive benefits for the children in reintroducing time with their father at this time.
The writer would also add that Mr Fassom’s extremely vague proposal, that appears to take very little account of how difficult this situation must be for the children, only further reinforces the problematic nature of any reintroduction of time.
The report went on to note a degree of concern regarding the children in the care of their mother and noted that their counsellor, Ms H, was prepared to re-engage.
The final conclusion expressed by Mr C at paragraph 142 was:
The writer would further note that, in his opinion, having to deal with any contact with Mr Fassom at the present time would further overburden this family and likely undermine any gains on which they continue to work.
Mr C went on to recommend that the children continue to live with their mother and spend no time with their father but be kept aware of his contact details and be able to contact him at any stage if they wished. He also made ancillary recommendations designed to assist the children’s well-being in the care of their mother.
THE SUBMISSIONS MADE AT COURT
What follows is taken from my notes.
Counsel for the father referred to his case outline. He submitted that the children’s views should carry some weight. He traversed the history of the matter from separation in September 2017, noting that the father had been jailed for family violence and both parents had been charged with growing marijuana. The father was released on bail and breached the intervention order which led to more time in jail. The Department was involved in 2017 and the children were returned to the mother who has been the sole carer since 2017. Counsel noted the intervention order due to expire in 2024 and the family report and the assessment of Dr D. It was submitted there were two main issues, namely sole parental responsibility and whether there should be any contact with the father.
Counsel referred to section 61B of the Act and noted that the presumption of equal shared parental responsibility can be rebutted if there is family violence or if it is not in the children’s best interests. The father concedes sole responsibility. All he seeks is information if there is a serious illness or major decision to be made about the children. It was conceded that the children live with the mother. The father was not seeking direct contact with the children. He sought the capacity to send letters and cards and gifts. There was an issue of identity. The children have the same surname as the father. The father cares about the children and it is important that they know this. The father wants to receive school reports (order 7 of his proposed orders).
Counsel noted the children are alienated at the present time and that the father had some input as to that but that the mother might also have contributed. Counsel also traversed the other orders in the case outline noting that order 10 (the father complete a men’s behavioural change program and provide a certificate to the mother) showed some insight. There are allegations of family violence in the proceeding and the proposed order for a men’s behaviour change course would provide some comfort to the mother.
The proposed order 11 (which sought that the father have leave to bring further proceedings if he engaged in the men’s behavioural change program and obtained a report from his counsellor as to his progress) gave the opportunity to the father to proceed. The mother’s orders would shut the door on the father completely and this was premature. The father had tried mediation twice and issued these proceedings and wants to keep the door slightly open. These orders give control to the mother but let the father tell the children he still loves them.
There are two things, perhaps, to be noted at this point. First, the mother was visibly distressed by the physical presence of the father on the screen (the matter was heard by Microsoft Teams), and I requested the father to turn his video camera off, which it should be noted he promptly and politely did.
The other thing to be noted is that despite the very significant criticisms made of him by both Dr D and Mr C, the father had not seen fit to file any further affidavit material suggesting he had taken onboard their criticisms of him and his attitude to the mother. Although the father did lose legal representation for a period of time, he has been legally represented throughout the vast bulk of these proceedings and it is noteworthy that he has failed to go on affidavit to support the otherwise laudable propositions that Counsel put on his part.
THE SUBMISSIONS OF THE MOTHER
Ms Carbett, who is self-represented, said the children are almost adults, being 14, 11 and 10 years of age. In a flick of the eye they will be adults. She has a lot of concerns and only received the father’s proposals the previous day. She accepts that she should have sole custody but desires there be no contact by the father with the children’s school. Letters could be sent to a third party, but she cannot have direct contact with the father. His lawyer could be the contact point. He can send one letter and the children can decide. She has never spoken badly of the father. Her son still struggles every day and so do all the children. Her father might be able to help also. Notification to the father would be okay if through a third party.
SUBMISSIONS OF THE INDEPENDENT CHILDREN'S LAWYER
Independent Children's Lawyer broadly supported the father’s position. He suggested there should be therapeutic counselling as the father sought. There was a safeguard for the mother in the men’s behavioural change course. Contact should be through a third party, namely, the mother’s father.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
The parties agree there should be sole parental responsibility to the mother. The question is whether the mother should be required to notify the father of any serious illness on the children’s part and/or any major long-term decisions she proposes to make. This question is really bound up in the overarching issue as to whether the father should be permanently excised from the children’s lives at the present time, and I will return to it in my conclusions.
Spend Time and Communication Regime – The Primary Considerations
This case is, to an extent, complicated by the fact that the matter proceeded by way of submissions alone. That is not insignificant, given that the mother makes very serious allegations of family violence which are in part reciprocated by the father. What the Court has, however, is the objective history of the matter. It is the father who has been jailed for assaulting the mother and for breaches of the intervention orders. The mother’s clearly not unfeigned fear of the father and discomfort of being even in his presence via audio-visual contact strongly support a conclusion that there has indeed been family violence visited by the father upon both the mother and, indeed, on the children who have reported it. The five-year intervention order speaks for itself.
In the face of these materials, I am comfortably satisfied that the father has indeed assaulted the mother and indeed hit at least the two elder children as they have described.
While even the mother agrees that, as a matter of broad principle, there may be the benefit of a relationship with the father, the Court is required to give greater weight to the need to protect the children from family violence. This is all the more accentuated by the father’s lack of insight and remorse and his failure, according to Dr D, to get any benefit whatsoever from the men’s behavioural change programs he has already attended.
The Additional Considerations of Section 60CC(3)(a)
The children have all expressed unequivocal and clear views. They do not wish to see their father. The elder two in particular vividly remember the family violence perpetrated by the father during the relationship and their views, particularly those of X, could scarcely be more forthright. Given their age now, the views of all of these three children must be given considerable weight.
The children appear to have a well-established and loving bond with their mother as they expressed to Mr C. They also appear to have good relations with the extended maternal family. At the present time, they have no relationship with their father other than one of fear, particularly, it would seem in the case of Y, who described herself as “freaked out” when she saw him by accident. They have no relationship of any meaningful sort with the father’s family.
Section 60CC(3)(c)
The mother has undoubtedly done what is necessary to make decisions about long-term issues in relation to the children, albeit that I note Mr C felt she still needed some support. The father has, of course, been excluded from the children’s lives now for approximately four years. He has, however, sought to mediate and has issued these proceedings which necessarily have taken a considerable amount of time to come to fruition.
Section 60CC(3)(ca)
The mother has undoubtedly fulfilled her obligations to maintain the children. The father does not appear to have provided anything whatever by way of assistance since 2017 but I note the intervention order in place since that time and also the fact that he is living on a disability support pension and is scarcely well in funds.
Section 60CC(3)(d)
There is no suggestion that the children should separate in any way from their mother. The father has sought what he would see as the most incipient way forward.
The father has not ultimately pressed, at least at this time, the possibilities of therapeutic counselling but, in my view, the report of Mr C could not be clearer. Any endeavour to compel this would likely undermine this family’s capacity to function. It is also strongly contraindicated by the very clear views of the children.
Section 60CC(3)(e)
There is not inconsiderable practical difficulty and expense involved in any time being spent with the father. He lives a long way from where the children live. He is impecunious and would not be able to afford private supervision. There is also the practical difficulty that the children simply do not wish to see him.
Section 60CC(3)(f)
Despite Mr C’s reservations, the mother is the person who has been looking after these children for the past four years and I note that, in their conversations with Mr C, X in particular was praising his mother’s conduct as a parent. She must be taken to have at least sufficient capacity to provide for the children’s needs. The father’s capacity to do so is seriously compromised by his lack of insight, lack of remorse and emotional dysregulation as described by Dr D.
Section 60CC(3)(g)
The mother’s previously unsatisfactory lifestyle (she was, after all, convicted of cultivation of marijuana and was in an abusive relationship with Mr Fassom), appears to have now settled down. She is now engaged to be married with a person with whom she has been living with for some time (and is likely to continue to do so notwithstanding the father’s unsubstantiated and vitriolic criticism of her in this regard).
The father, by way of contradistinction has the deficits identified both by Dr D and Mr C.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The mother’s attitude to the responsibilities of parenthood and the children are unremarkable. Those of the father are concerning. His suggestion that the children would all be well with him in 10 minutes of time speaks volumes of his lack of insight. There can be no doubt that he loves his children but there is equally no doubt as to his difficulties.
Section 60CC(3)(j)
I have already dealt with the history of family violence. I have no doubt whatever that the father was violent towards the mother and not she to him.
Section 60CC(3)(k)
There is, of course, a five-year intervention order in place and it would appear that this was the finalisation of an interim order originally taken out in 2017. The father has breached the order on a number of occasions and been incarcerated for this. The length of the intervention order speaks volumes.
Section 60CC(3)(l)
The father appears to press for interim orders and a number of ancillary steps which would facilitate a further application on his part. The father’s position in my view cannot be sustained. He seeks in effect that he complete a further men’s behavioural change program and that provided he has done so and provides a report from his counsellor Mr G there be FDR mediation prior to a further period of 12 months without any application on his part.
In my view these proceedings should be ought to an end now. The mother needs relief from the anxiety and concerns of further interaction with the father and the children simply do not wish to see him. The state of the evidence does not suggest the father has attained any kind of insight into the matters noted in the independent reports. He should not have in place a pathway that enables him at his own election to emerge back before the Court without a Rice & Asplund [1978] FamCA 84 objection. The Court should not compel the mother into further mediation with Mr Fassom.
In the event that the father can complete a men’s behaviour change program and can over a period of a year engage with Mr G in such a fashion as to give real confidence that he has at long last addressed those issues that he has not thus far addressed, then he would in my opinion in all probability be able to point to a material change in circumstances to overcome any Rice & Asplund objection. The history of this matter as I have described it however means that it is entirely in the children’s best interests that the father be required fully to address the issues that this judgement has detailed before there can be any question whatever of any re-introduction of him into the children’s lives.
Section 60CC(3)(m)
There are a number of other minor issues of dispute. The father has sought an order that the children be permitted to reply to any information the father sends and the mother be required to facilitate this. In my opinion it is sufficient that there be an order that the children communicate with the father in accordance with their wishes. As I have pointed out they are in a position to do so.
I do not think it is appropriate for the father to have any interaction with the children’s school whatsoever. I have confidence that any contact on the father’s part with the school would be extremely disturbing to the mother and not therefore in the children’s best interests, unusual as though such an order is.
I note the mother as I understood it agreed that the father could be informed of any serious injury on the children’s part or major decisions made about them provided the same as communicated through her own father and I will make an order to permit this to be done.
CONCLUSION
It is no small thing to excise a parent who loves their children from the children’s lives. In this case, it is important to remember, however, that what the Court is concerned with as a matter of paramount importance are the best interests of the children (section 65AA).
In my view, and perhaps to repeat myself, the following matters militate decisively against the opening of the door that the father seeks. First, any contact, even in the most tangential way, for the mother with the father will be deeply distressing to her. To have her so fearful is not in the children’s best interests as she is their primary carer. Second, the children are of an age when their views must be given weight and they adamantly do not wish to see their father, and the elder two in particular have an active memory of assaults by him on at least the mother and, in X’s case, apparently on him also. Third, the father has the deficits described by Dr D. He remains vitriolic about the mother and has not put on any affidavit material to suggest any increase in insight since the relatively recent interviews both with Dr D and Mr C.
Sad as it is to have to contemplate the making of such an order, I am of the clear view that the children’s best interests in the most unhappy circumstances of this case will be made by making only those orders that the mother herself will agree to and which, it should be noted, are entirely consistent with Mr C’s recommendations. The mother is to have sole parental responsibility. The children are to live with her and spend no time with the father. I understood the mother to be prepared to have cards, gifts and messages sent via her own father, but she is to decide whether or this should be communicated to the children. It is, of course, open to the children to contact their father should they wish to do so, and they appear to have his contact details.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 17 December 2021
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