Finhurst & Finhurst
[2023] FedCFamC1F 636
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Finhurst & Finhurst [2023] FedCFamC1F 636
File number(s): NCC 3522 of 2019 Judgment of: AUSTIN J Date of judgment: 2 August 2023 Catchwords: FAMILY LAW – PARENTING – Where the parties agreed sole parental responsibility should be allocated to the mother and the children should live with her – Whether the children should spend any time with the father – Where the mother alleges the father poses a material risk of harm to the children – Where alcohol consumption has been a problem for the father for nearly 20 years – Where the father has had multiple admissions to hospital due to impaired mental health related to his excessive consumption of alcohol – Where the mother is concerned about the state of the father’s mental health – Where the father has not been diagnosed with a psychiatric or psychological condition – Where the father has attended upon a psychologist for the past five years to help prevent relapse – Where the father’s claim he has been abstinent from alcohol over the past nine months was not contradicted – Where the father has spent supervised time with the children since October 2022 – Where it was common ground the children would benefit from having meaningful relationships with both parents – Ordered that the children spend supervised spend time with the father subject to certain conditions – Where the father will need to demonstrate his continuing sobriety – Costs reserved. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65Y, 68B, 68C, 114, 114AB
Cases cited: B & B (1993) 16 Fam LR 353; [1993] FamCA 143
Champness & Hansen (2009) FLC 93-407; [2009] FamCAFC 96
Marriage of B & B (1993) FLC 92-357; [1993] FamCA 143
Moose v Moose (2008) FLC 93-375; [2008] FamCAFC 108
Re C & J (1996) 20 Fam LR 930; [1996] FamCA 86
Re W (Sex abuse: standard of proof) (2004) FLC 93-192; [2004] FamCA 768
Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892
Division: Division 1 First Instance Number of paragraphs: 109 Date of hearing: 10, 11 & 12 July 2023 Place: Newcastle Counsel for the Applicant: Mr Flanigan Solicitor for the Applicant: Grant & Co Counsel for the Respondent: Ms Otrebski Solicitor for the Respondent: Pigdon Norgate Family Lawyers Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Wooi Legal ORDERS
NCC 3522 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FINHURST
Applicant
AND: MS FINHURST
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
2 AUGUST 2023
THE COURT ORDERS THAT:
1.All former orders relating to the following children are discharged:
(a)X, born 2011; and
(b)Y, born 2013.
2.The mother shall have sole parental responsibility for the children.
3.The children shall live with the mother.
4.Subject to continuing compliance with Order 5, the parties shall take all reasonable steps to ensure the children spend time with the father from 10.00 am on the second Saturday of each calendar month until 4.00 pm the next day.
5.As pre-conditions to the operation of Order 4, the father shall:
(a)ensure the time the children spend with him is supervised by one of the following persons:
(i)Mr B;
(ii)Mr C;
(iii)Mr D;
(iv)Ms E.
(b)ensure any person named within Order 5(a) upon whom he relies for supervision has, in advance, filed with the Court and served upon the mother an undertaking affirming his or her:
(i)understanding that the duty and responsibility of a supervisor is to ensure the children’s safety;
(ii)understanding that any breach of such duty may be regarded as contempt of the Court, which could result in prosecution and punishment;
(iii)willingness and commitment to remain within the presence and hearing of the children and the father during the period of supervision;
(iv)willingness and commitment to remove the children from the father’s care in the event he appears intoxicated;
(v)willingness and commitment to ensure the father only drives a vehicle containing the children if it is fitted with an inter-lock device, whilst ever required to do so by order of a State court.
(c)submit to hair follicle testing for use of alcohol and illicit drugs, at his expense, no less frequently than once every two months, for which purpose:
(i)the next test must be taken by 31 August 2023;
(ii)the tests must show negative results for illicit drug use, meaning that no such drug reading exceeds the Mass Spectrometry cut-off; and
(iii)the tests must show negative results for alcohol use, meaning the EtG level is less than 2.0 pg/mg.
(d)ensure copies of the written reports issued by the agency which conducts the hair follicle testing are forthwith furnished to the mother upon their receipt.
6.The operation of Order 4 is suspended in the event of any default in compliance with Order 5(c) or Order 5(d) and the suspension will not lift until the default is rectified.
7.For the purpose of implementing Orders 3 and 4 hereof, the parties shall ensure the children’s exchange outside the Town F Police Station, NSW.
8.Pursuant to ss 68B(1) and 68C(2) of the Family Law Act 1975 (Cth), the father is restrained from:
(a)approaching within 20 metres of the mother; and
(b)communicating with the mother other than in writing.
9.The parties shall take all reasonable steps to ensure the children communicate privately with the father by video call, commencing at 6:30 pm each alternate Monday for no more than 45 minutes, commencing on the first Monday after these orders, for which purpose the father shall use the Microsoft Teams link provided to him by the mother.
10.The father is restrained from consuming alcohol at any time while the children are spending time or communicating with him.
11.The parties shall forthwith inform the other and keep the other informed of their current mobile telephone number and email address.
12.The father shall forthwith inform the mother in the event of:
(a)his arrest and charge with any criminal offence involving allegations of violence or alcohol;
(b)any application made against him by any person for a family violence order; or
(c)his hospitalisation for any reason associated with impaired mental health or alcohol consumption.
13.The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.
14.Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a medical professional and the mother shall exercise her exclusive parental responsibility to authorise any treating medical professionals to communicate with the father about the condition and treatment of the children.
15.Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
16.For the purpose of application of s 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth), the mother is authorised to take the children to a place outside Australia at times which do not impinge upon the children spending time with the father in accordance with these orders.
17.The parties are authorised to provide copies of these orders to:
(a)the principal of any school attended by the children;
(b)the children’s treating medical professionals; and
(c)NSW police.
18.The father shall forthwith provide copies of these orders and the published reasons to his treating medical practitioners.
19.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
20.The mother shall forthwith make arrangements with the Independent Children’s Lawyer to cause the children to confer privately with the Independent Children’s Lawyer to have explained to them the effect of these orders and the reasons for such orders.
21.The Independent Children’s Lawyer is discharged upon the latter of compliance with Order 20, the determination of any appeal, or the expiration of the applicable appeal period.
22.Costs are reserved for 28 days.
23.Any and all other outstanding applications are dismissed.
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 Finhurst & Finhurst has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings comprise a parenting dispute between the applicant father and the respondent mother in respect of their two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The parties agree the children should live with the mother and she should have sole parental responsibility for them. The dispute is largely confined to whether or not the children should spend any time with the father and, if so, the nature of the restrictions which should condition the time they spend with him.
The dispute is underpinned by a factual contest over the question of whether the father poses a material risk of harm to the children. The mother alleges he does, on account of his misuse of alcohol and his impaired mental health making him unpredictable and prone to violent conduct or risk-taking behaviour. The father initially denied he poses any risk to the children, though he ultimately advocated for orders which imply his admission of some risk, but the denial of risk which cannot be satisfactorily contained by safeguards.
These reasons explain why the children should spend time with the father, subject to two conditions: first, the supervision of their interaction; and secondly, continuing proof of the father’s sobriety. Fulfilment of both conditions should sufficiently attenuate the risk, help enhance the children’s sense of security, and abate the mother’s anxiety.
BACKGROUND
The parties commenced cohabitation no earlier than 2001, married in 2010, finally separated in August 2017, and divorced in 2019.
The two children were born in 2011 and 2013. They are now aged 12 and 10 years respectively.
From the time of separation in August 2017, the mother encouraged the children to spend time with the father, albeit under the supervision of either her or the paternal grandfather. The parties even sometimes socialised and went on holidays together.[1] However, the situation changed after an incident between the parties in late 2018, following which a State court made a family violence order against the father for the protection of the mother and children. The terms of the family violence order precluded the father’s contact with the mother and children, subject to certain conditions, until October 2020.[2]
[1] Mother’s affidavit at [88], [91], [101], [102], [103] and [104]
[2] Exhibit M2
These proceedings were commenced by the father in October 2019, after which time several sets of interim orders were made.
In December 2019, the father was ordered to submit to testing for illicit drug use and the parties were restrained from discussing the proceedings with the children.
In February 2020, the mother was ordered to submit to testing for alcohol abuse. The Independent Children’s Lawyer (“the ICL”) was also appointed at that time.
In October 2020, orders were made by consent providing for the children to live with the mother and to spend time with the father under professional supervision for two hours each fortnight. The commencement of the children’s supervised visits with the father was delayed because of the COVID-19 pandemic. The father was otherwise restrained from approaching the mother and children and was ordered to complete a post-separation parenting course.
In September 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
Some delay in procuring an update Family Report from the Regulation 7 Family Consultant meant the trial was pushed back from March 2023 to July 2023.
With the trial being pushed back by several months, more interim orders were made by consent in February 2023, providing for the children to live with the mother and to spend time with the father for four hours once each calendar month, supervised by an adult chosen by the mother from a fixed list of relatives and friends. The variation was needed as the professional supervisor declined to provide the parties with any more resources. Provision was also made for the children to communicate electronically with the father. The father gave unchallenged evidence the visits have since occurred without incident and have been positive experiences for both the children and him,[3] with which the mother readily agreed in cross-examination.
[3] Father’s affidavit at [52]; Mother’s affidavit at [8.2], [182], [188], [194], [196]
At trial, the mother contended for orders (on the basis the father represented an unacceptable risk of harm to the children) declaring the children should spend no time at all with the father and to confine their interaction to monthly video calls. Her fall-back position was that any time the children spend with him should be professionally supervised and strictly confined to only a few hours on four occasions each year for the next six years.[4] In addition, the mother wanted an order restraining the father from driving the children, if orders are made for them to spend any time together.[5]
[4] Amended Response filed on 29 May 2023
[5] Exhibit M20
The father initially proposed that (subject to a further short period of supervision) the children spend time with him on one weekend each month and, from the commencement of the 2025 school year, for half of all school holiday periods.[6] However, by the time of final submissions, the father resiled from his proposal and instead embraced the proposal of the ICL.
[6] Exhibit F1
The ICL did not adopt any particular position at the commencement of the trial, but tendered a revised minute of proposed orders just before final submissions were commenced.[7] The ICL sought orders for the children to spend time with the father for one weekend each school term and for weekly periods during the school holidays (two in the summer holidays), but subject to fulfilment of certain conditions. Such conditions included the children’s visits with the father always being supervised by a paternal family member or friend, the father submitting to quarterly alcohol tests, the tests returning negative results, and the tests being promptly furnished to the mother.
[7] Exhibit ICL2
EVIDENCE
The father relied upon his affidavit (and annexures) filed on 24 June 2023. The mother took no issue with it being filed about one week late.
The mother relied upon her affidavit (and annexures) filed on 26 June 2023. The father took no issue with it being filed 10 days late.
The parties and the ICL relied upon the two Family Reports prepared by the Family Consultant on 8 April 2021 and 26 April 2023.
Multiple exhibits were tendered during the trial.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
The presumption of equal shared parental responsibility does not apply in certain circumstances (s 61DA(2)) and may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
It was common ground the children would benefit from having meaningful relationships with both parents.
The father wants the children to remain living with the mother and thereby accepts the quality and importance of their relationships with her.
The mother conceded to the Family Consultant that the children love the father, enjoy their visits with him, and she ideally wants them to spend time with him.[8] The Family Consultant observed how the children enjoyed their interaction with the father, who was calm, caring and supportive.[9] An inference is easily drawn that the children would derive benefit from developing and maintaining their meaningful relationships with the father.
[8] Second Family Report at [21] and [47]
[9] Second Family Report at [75]
Subject to the necessity of the children’s protection against the risk of any harm, the orders should provide for the children to spend regular amounts of time with the father.
It was the mother’s case that the need to protect the children from harm outweighed the benefit they would derive from meaningful relationships with the father (s 60CC(2A)).
Section 60CC(2)(b)
The mother contended the father poses a material risk of harm to the children for two reasons: first, his excessive alcohol consumption; and secondly, he suffers from impaired psychological health. For either or both reasons, the mother fears that if the children spend time with him, particularly without reliable supervision, he may become distracted, disinhibited, violent, or take unnecessary risks and thereby put the children in physical or emotional danger.[10]
[10] Second Family Report at [32], [38] and [85]
The mother gave evidence of the father’s historical excessive alcohol consumption.[11] The father admitted alcohol consumption has been a problem for him for nearly the last 20 years. He conceded he was convicted of alcohol-related driving offences in 2004 (though not verified by criminal record), 2018, and 2022.[12] He had several admissions to hospital between 2006 and 2009 for self-inflicted injuries and reports of impaired mental health related to his excessive consumption of alcohol. Then, in 2017, he had another admission to a hospital due to impaired mental health related to his excessive consumption of alcohol. Regrettably for the family, the father’s past periods of alcohol abstinence have not lasted and he has relapsed.
[11] Mother’s affidavit at [47]-[48], [93]
[12] Exhibit M3 and M6
The father has been attending a psychologist for the past five years to help prevent his relapse and claims to now be making better progress. He claims to have been abstinent from alcohol use over the past nine months,[13] which claim was not contradicted. The mother doubts his current abstinence will last, which doubt is not unreasonable based on his past conduct, but her doubt is not proof of the fact. The father gave the impression he realised how his alcohol consumption and associated anti-social behaviour had compromised the chance of him seeing much more of the children over the past few years and he was now finally intent on rectifying that situation. When challenged in cross-examination about his long history of alcohol misuse, the father plaintively said “I have been trying very hard to address those issues”. He exuded sincerity. Of course, sincerity alone will not ensure prolonged abstinence, but it is a good start.
[13] Father’s affidavit at [49]-[50]
The father’s apparently earnest commitment to change was independently corroborated. His hair follicle tests show negative results for excessive alcohol consumption and illicit drug use over the last two years.[14] The most recent negative test was recorded in June 2023. The mother had no option but to concede the father’s test results bear out his evidence of abstinence, or at least significantly reduced consumption. In late 2019 and early 2020, the father’s test results showed “low to moderate” consumption,[15] but his test results since early 2021 have shown such low readings that they are recorded as “negative” results.[16]
[14] Father’s affidavit at [63] and Annex B; Exhibit F2
[15] Mother’s affidavit at [118] and Annex SS-9, [121] and Annex S-11
[16] Mother’s affidavit at [134] and Annex SS-18, [145] and Annex SS-26, [154], [179] and Annex SS-36
However, two qualifications must be noted. First, there was a slight undulation in the father’s test results in November 2021, when a test showed “low to moderate” consumption of alcohol instead of a “negative” result.[17] Secondly, the period of relapse in 2022, when the father was convicted for alcohol-related driving offences, fell between the tests he took in March 2022 and March 2023.[18] Both those complications can be satisfactorily addressed, as the ICL and father contended, by requiring the father to continue taking more frequent tests showing negative results as a pre-condition to the children spending time with him.
[17] Mother’s affidavit at [152] and Annex SS-27
[18] Father’s affidavit at [63G], [63H] and [63I] and Annex B
Understandably, the Family Consultant expressed some apprehension about the father’s past history of alcohol misuse, particularly given the alcohol-related driving convictions while he was being counselled against alcohol misuse.[19] The Family Consultant said this:[20]
Whilst the writer is not a drug and alcohol expert … The writer does consider [the father’s] alcohol use to pose a risk to any children in his care. The Court may be required to determine whether that risk is unacceptable.
[19] Second Family Report at [90]
[20] Second Family Report at [91]
Correctly, the Family Consultant acknowledged the question of risk is a fact-based finding reserved to the Court. Her inexpert lay opinions on that specific issue are not probative. Indisputably, any child in the father’s care is liable to be at risk of some form of harm if he is intoxicated, because his supervisory capacity would then be impaired, but the evidence does not reasonably admit of the conclusion that the level of risk is so high that the only way in which it can be satisfactorily attenuated is to permanently eliminate all physical contact between the children and father, or to indefinitely confine their future interaction to a few hours every few months under professional supervision, as were the mother’s suggestions.
The father’s past consumption of alcohol has undoubtedly been excessive, but that was not disputed. The issue is the extent to which alcohol misuse remains problematic for him. The test results corroborate his evolving rehabilitation over the past two years. The alcohol-related driving offences nearly a year ago demonstrate how such rehabilitation is not an entirely linear progression, but do not vindicate the mother’s elevated level of apprehension.
The mother is also apprehensive the father will cause the children harm by exposing them to family violence, perpetrated by him upon either her or upon another domestic partner. Again, her concerns are not baseless, but an evaluative assessment of the level of the risk is key.
After their separation in 2017, the parties maintained reasonably harmonious relations. They continued to see one another without rancour and sometimes went on outings together with the children. However, such conviviality ceased in late 2018, following an incident at the mother’s home. After dinner out together with the children, the parties argued. The father took an external door off its runner to gain access to the house and then barged through a locked bedroom door to confront the mother, who was taking refuge with the children within the bedroom. The father was drunk. The police were summoned. The father was arrested and charged.[21]
[21] Exhibit M1
Shortly afterwards, he was convicted for offences of damaging property and intimidating the mother.[22] He also submitted to a family violence order for a period of two years, the terms of which impeded his contact with both the mother and the children.[23] Foolishly, he breached the family violence order the next day by contacting the mother to ask for the return of some property, which led to his conviction and fine for the breach.[24]
[22] Exhibit M3
[23] Exhibit M2
[24] Exhibit M3
In early 2018, the father began a relationship with another woman, which ended in late 2020. Their separation was bitter. The father sent the woman text messages threatening to damage her property and to report her to authorities for tax fraud and misrepresentations in her citizenship application. The father was charged and convicted of intimidating the woman and a family violence order was made against him for her protection. The father was convicted of two separate breaches of the order, the first committed one day later in late 2020 and the second several months later in early 2021, on both occasions by him parking his car in close proximity to the woman’s home or car.[25]
[25] Exhibits M3 and M5
The father was cross-examined about those incidents, as they plainly lend themselves to an inference of his willingness to intimidate women with whom he has shared a domestic relationship when in conflict with them. The father said he has learned he should not resort to violence or intimidation to solve disputes, which could have simply been a glib attempt to abate concern about his attitude, but it did not seem so.
When challenged about the violent incident with the mother in late 2018, which must have been frightening for her and the children, the father said with apparent candour:
If I had my time again it would never have happened.
It is my deepest regret that happened.
The father has been in a romantic relationship with Ms G since early 2022 and they have been cohabiting since early 2023. Although she did not give evidence as a witness, the Family Consultant spoke with her. She confirmed her knowledge of a previous family violence order against the father, but said she had not encountered any problem with him. She could not remember the last time she saw him drink alcohol.[26] Of course, that is not sworn testimony, but the Family Consultant did not say she entertained any doubts about her veracity.
[26] Second Family Report at [78]-[81]
The mother’s other concern is about the state of the father’s mental health. She pejoratively deposed he has “a history of mental illness” and has had “periods of mania”,[27] but has no qualifications or experience to imbue such opinions with any probative value. The mother’s factual observations of the father’s past hyperactivity and periods of low mood or depression are probably correct,[28] but such lay observations cannot be construed as clinical diagnoses.
[27] Mother’s affidavit at [6] and [46]
[28] Mother’s affidavit at [46]
There is a limited amount of reliable evidence about the father’s psychological state. Even though it was forecast as a controversial issue in the proceedings, neither party sought the appointment of a single expert psychiatrist or psychologist to offer expert opinion evidence on the topic.
From an array of documents produced on subpoena, the mother selectively tendered historical medical records as exhibits, but none was current. The exhibits extend back to 2006 and none is more recent than 2020.
The father had three hospital admissions long ago between 2006 and 2009, but no psychiatric condition, psychological condition, or personality disorder was ever diagnosed.[29] Nor was any diagnosis made when the father was hospitalised again in 2017.[30] On each admission, excessive alcohol consumption was an integral feature of his presentation.
[29] Exhibits M7, M8, M9, M10, M19
[30] Exhibit M11, M16, M17, M18
Upon the father’s discharge from hospital in late 2017, he was advised to seek out further psychological therapy to assist with his abstinence from alcohol consumption,[31] which he then did by consulting his psychologist some months later in early 2018. He has had reasonably regular monthly psychological therapy ever since. Such therapy is currently being administered pursuant to a mental health care plan formulated by the father’s general practitioner.[32] The father said he has started cognitive behavioural therapy with the psychologist and is working on acceptance of past events and not being so reactive to irritants in the future.
[31] Exhibit M11
[32] Exhibit M15
The father’s treating psychologist feared he was not making much progress during 2018,[33] 2019,[34] and 2020,[35] but by then the psychologist only described the father’s problem as being “low mood” associated with separation from the children, the slow pace of this litigation, and his impecuniosity. However, low mood seems an unexceptional consequence of such compounding disappointments.
[33] Exhibit M12
[34] Exhibit M13
[35] Exhibit M14
In any event, the past pessimism about the father’s progress no longer pervades the psychological evidence. The Family Consultant recently consulted the father’s current psychologist, who confirmed the father does not have a mental illness but does experience reactive depression.[36] That is the most recent expert opinion evidence available. The father is medicated, with medication the Family Consultant called an anti-depressant, but which he said was prescribed to help him sleep.[37]
[36] Second Family Report at [43] and [92]
[37] Second Family Report at [40]
In cross-examination, the Family Consultant rejected the proposition put to her by the mother’s counsel that the father’s engagement with mental health services over a prolonged period of years was itself problematic. On the contrary, the Family Consultant said that could actually be beneficial. She said it could be problematic if the father did not follow up with recommended treatment but, upon his last discharge from hospital, the father complied with the recommendation for follow-up. He consulted a psychologist, whom he still sees regularly.
Significantly, the Family Consultant said the manner of the father’s presentation at their most recent meeting in April 2023 was unremarkable. She only expressed reservations about what she described as the “co-morbidity” of his prolonged unemployment and his past alcohol relapses. She stood by the observations in her report that she is “concerned” the father “may not be receiving the supports he needs to address his mental health”.[38] Succinctly put, the “concern” of the Family Consultant is one thing, but objective evidence of impaired mental health which poses a danger to the children is quite another. Even if the father is medicated for “reactive depression”, that of itself is hardly enough to justify the permanent elimination of all physical contact between him and the children to ensure their protection from harm.
[38] Second Family Report at [93]-[94]
Nebulous expressions of “concern” by witnesses, both lay and expert, are usually quite unhelpful because they are, by nature, deliberately unspecific and tend to obscure more than they reveal. Courts can only properly react to evidence which, either directly or inferentially, objectively supports findings.
While the Family Consultant still had “concern” about the father, she still simultaneously recommended the children spend regular amounts of time with him, which time she envisaged would only need to be supervised if the Court concluded the risk of harm posed by the father to the children was unacceptably high.[39] She endorsed that recommendation during cross‑examination. She also recommended against the mother’s primary proposal for the children to spend no time at all with the father.
[39] Second Family Report at [107]
The mother’s concerns about the children’s safety while in the father’s care are accentuated by her anxiety. She readily agreed in cross-examination that “anxiety has become a problem for me”, for which condition she acknowledged she is medicated.[40] She also agreed the children do “pick up on” her anxiety. She admitted she still entertained suspicion the father might murder the children which, on the evidence adduced, is an irrational (even if genuine) apprehension. The mother admitted she was “overprotective”.[41] It should be tritely observed that, in determining what orders should be made to resolve this cause under Pt VII of the Act, the paramount consideration is the children’s best interests – not the abatement of the mother’s anxiety – though the latter is liable to influence the former.
[40] Second Family Report at [42]; Mother’s affidavit at [114]
[41] Second Family Report at [33]
Without intending criticism, at times, the mother’s evidence had a punitive rather than protective flavour. She said the father should not be able to attend parental events at the children’s school, because she expected he would misbehave. She said he should not even be able to receive copies of the children’s school reports and school photographs, because “it doesn’t feel right to me”. She also said the father should not have details about any important aspects of the children’s medical treatment, despite her having the security of exclusive parental responsibility for them, because “there is no need for him to be involved”.
The mother’s proposals to permanently eliminate physical visits between the children and the father or, alternatively, to ensure their interaction is confined and permanently supervised by a paid professional are disproportionate responses to the level of risk which may be reasonably imputed from the father’s past conduct. While his past conduct gives rise to legitimate enquiries about the children’s future need for protection from harm and his competence as a parent, past conduct is not of itself dispositive of findings about how the children’s best interests will be served into the future.
The evidence does not demand a conclusion that the mother’s proposals are the only feasible way to protect the children from physical or psychological harm caused by their subjection or exposure by the father to neglect or family violence. There are other more moderate remedies.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
The elder child has enjoyed visits with the father and wants to spend time with him.[42]
[42] Second Family Report at [52], [97]
The younger child has enjoyed visits with the father and is happy to continue doing so.[43]
[43] Second Family Report at [64], [65], [68], [99]
The children both have sufficient maturity to warrant some weight being attributed to their expressed views.
Section 60CC(3)(b)
No submission was made about the nature of the children’s relationships with anyone other than the parties, which has already been addressed under s 60CC(2)(a) of the Act.
Section 60CC(3)(c)
The father could not participate in any decisions made about the children’s “long-term issues” because a family violence order precluded him from contacting the mother from late 2018 until late 2020. The mother has refused any contact with him since September 2018.
The father has taken every available opportunity to spend time with the children and to communicate with them electronically.
Section 60CC(3)(ca)
The father is assessed for a paltry amount of child support on account of his unemployment. There is no evidence he defaults in payment.[44]
[44] Mother’s affidavit at [216], [223]
Section 60CC(3)(d)
In October 2020, the mother consented to the children spending time with the father under professional supervision. She agreed in cross-examination that the children’s visits with the father at the contact centre went well.
In February 2023, the mother consented to the children spending time with the father under the supervision of a paternal family members or friends. She agreed in cross-examination that the children’s visits with the father under that regime have gone well. She also conceded that supervision provided by a family member or friend is more flexible than paid professional supervision, particularly if at a contact centre.
Notwithstanding such steady progress in the children’s re-introduction to the father, when asked in cross-examination, the mother had no sensible answer for why she was proposing to dismantle current arrangements and retreat to a position in which the children have no physical interaction with the father at all. She conceded nothing had happened to warrant the change she primarily proposed. The absence of any such compelling reason was all the more stark in the face of the Family Consultant’s evidence that orders for supervised time were superior to the children spending no time at all with the father.
Given the children’s wishes to spend time with the father and the Family Consultant’s expert advice about the detriment the children would experience by their physical contact with him being severed, the children would likely be deleteriously affected by making the orders primarily sought by the mother.
The orders proposed by the ICL and the father are generally consistent with the current interim regime, which formerly enjoyed the mother’s support, and the children would not likely be affected by perpetuation of similar arrangements to those which currently exist.
Section 60CC(3)(e)
The scheme of infrequent visits proposed by the ICL and the father reflects, at least in part, the distance between the parties’ homes. The mother moved to live in a region of NSW in early 2023, several hours’ driving time from the father’s home in NSW.[45]
[45] Second Family Report at [3] and [18]
The mother earns modest income and receives little child support. She cannot afford frequent trips between the regions in which the parties live.[46]
[46] Mother’s affidavit at [216]-[219]
The father is unemployed, so his financial circumstances are also modest. His driving licence has been returned to him, so he is now capable of driving.
There is some practical difficulty and expense involved in the children spending time with the father, though the parties should be able to manage the children’s exchange on a monthly basis, particularly if they share the travel and meet half-way between their homes. The parties agreed the Town F Police Station would be a suitable mid-point venue for that purpose.
Sections 60CC(3)(f) and 60CC(3)(i)
The mother’s capacity to provide for the children’s needs is well demonstrated, save that she needed to be chided about discussing her concerns about the father’s uncontrolled alcohol consumption with the children.[47]
[47] Second Family Report at [25]
The father’s capacity to provide for the children’s needs and his attitude to the responsibilities of parenthood have been impaired, as exemplified by the discussion of his past behaviour in the context of s 60CC(2)(b) of the Act. However, on a more positive note, the Family Consultant recently observed him to be calm, caring and supportive with the children.[48]
[48] Second Family Report at [75]
Section 60CC(3)(g)
The parties did not separately address the maturity, sex, lifestyle or background of either themselves or the children.
Section 60CC(3)(h)
There is no evidence the children are indigenous.
Section 60CC(3)(j)
The issue of family violence has already been addressed in the context of s 60CC(2)(b) of the Act. There is nothing more to usefully add.
Section 60CC(3)(k)
The family violence order previously made by the State court against the father for the mother’s protection expired in late 2020.[49]
[49] Exhibit M2
The family violence order previously made by the State court against the father for the protection of his next domestic partner has also now expired.[50]
[50] Second Family Report at [26], [87]
The findings made by the State court when those family violence orders were made are not in evidence. Nevertheless, it may be readily imputed from the making of the family violence orders that the mother and the father’s other domestic partner both felt apprehensive about their safety at the time.
Section 60CC(3)(l)
Given the narrow ambit of the dispute posited by the parties, no particular outcome seems any more or less likely than any other to lead to the institution of further proceedings.
Section 60CC(3)(m)
No other fact or circumstance was urged by the parties or the ICL to be relevant.
CONCLUSIONS
By reason of the family violence perpetrated by the father during the incident at the mother’s home in late 2018, the presumption of equal shared parental responsibility does not apply (s 61DA(2)). The parties and the ICL agreed the mother should have sole parental responsibility for the children. Their residence with her was also agreed.
The children’s best interests demand that they spend supervised time with the father, as he and the ICL proposed, and that he not be effectively eliminated from their lives, as the mother proposed. There are several reasons why that is so. In summary:
(a)the Family Consultant said, and I accept, the children’s interests are advanced by spending time with the father, provided they remain safe;
(b)the children’s safety can be satisfactorily ensured by the imposition of numerous conditions, such as supervision and proof of alcohol and illicit drug abstinence, which the father was willing to meet;
(c)the children want to continue spending time with the father;
(d)no plausible reason was advanced for why the existing consensual regime of supervised visits between the children and the father should be eradicated; and
(e)the Family Consultant said, and I accept, the children would likely experience emotional detriment if denied physical visits with the father, with which proposition the mother said in cross-examination she “absolutely” agreed.
The supervision of the children when visiting with the father can be provided by one of the family members or friends whom the mother approved during her cross-examination. She expressly admitted they would be suitable supervisors for overnight visits.
There is no need for the imposition of professional supervision. First, the mother agreed it was unnecessary when she agreed to vary the interim orders in February 2023. Secondly, one reason the orders were amended in February 2023 is because the erstwhile professional supervisor agency told the parties they had already used their allocated share of its resources and it could offer them no more, so the same situation is liable to arise again if a paid professional supervisor is engaged. Thirdly, the mother acknowledged the family-supervised visits have been occurring without incident. Although family members and friends are often not ideal supervisors (Marriage of B & B (1993) FLC 92-357 at 79,780–79,781), that is not the situation here because the mother expressly approved of some in cross-examination and earlier told the Family Consultant she trusts the father’s family members will not lie for him.[51] It will be necessary for the potential supervisors to file undertakings in the Court acknowledging the nature of their obligations.
[51] Second Family Report at [20]
The imposition of long-term supervision is generally regarded as undesirable (Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hansen (2009) FLC 93-407 at [209]–[215]; Moose v Moose (2008) FLC 93-375 at [119]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368), but it still remains an option for final parenting orders (Champness & Hansen at [216]; Re C & J (1996) 20 Fam LR 930 at 948–949 and 959–960). Indefinite supervision is still a better outcome than the complete severance of personal interaction, which must be the option of last resort (W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [112]–[115]; Re W (Sex abuse: standard of proof) (2004) FLC 93-192 at [54]–[56]; Re C & J at 960). Here, the father and ICL both sought indefinite supervision and it was the mother’s fall-back position.
Another measure of protection will be the requirement for the father to undertake regular hair follicle tests to confirm his continuing sobriety. The regularity of tests showing negative results will be a pre-condition to the children spending time with the father. Although the father and ICL proposed tests every three months, it should occur every two months, which frequency is apparently more desirable for reliable results.[52]
[52] Mother’s affidavit at [160], [162], Annex SS-29 (page 132 of 211)
The results of the tests must be “negative” for illicit drugs and alcohol, which in respect of alcohol means average alcohol use in the test period is “EtG level less than 2.0 pg/mg”. Although the mother’s counsel argued in final submissions that such tests do not offer satisfactory protection, the mother said in cross-examination she would be satisfied by the provision of such tests being a condition of the children spending time with the father.
The father will also be restrained from consuming alcohol at any time while the children are spending supervised time or communicating with him. He said he would submit to such restraint, but he hardly had any option.
The frequency with which the children should spend supervised time with the father and the duration of the visits are the next questions to be addressed. The mother envisaged visits of only a few hours every three months. She was opposed to overnight visits. The father and ICL proposed a short weekend visit once every school term and then periods of one week in each school holiday, with two weeks over summer.
The desired standard of supervision is likely to wane if the supervised visits are any longer than a weekend, as it would be impossible for a supervisor to be vigilant over prolonged periods, so the proposal for week-long holiday visits is rejected. Weekends are long enough. However, the confinement of visits to only weekends means the frequency of the visits must be enough for the children to still derive benefit from their meaningful relationships with the father. The practical difficulty and expense of regular weekend trips for the parties, particularly the mother, is a countervailing consideration. In an exercise of discretion, the correct balance is struck at one weekend each calendar month.
The parties agreed the children could be exchanged at a mid-point in the journey, nominated to be the Town F Police Station. The mother could easily convey the children to that venue by 10.00 am on Saturday morning. If the father returns the children to the venue by 4.00 pm on Sunday, the mother would have the children home by around 7.00 pm at latest. The ICL’s proposal for an order compelling the father to take the children back to a region of NSW every weekend is rejected.[53] He may prefer to stay in the area of the changeover or take them to Sydney to reduce travel time. That is not unreasonable.
[53] Exhibit ICL2, Order 5(d)
The mother’s proposal for an injunction restraining the father from driving a car containing the children is rejected.[54] For the next four years, the father’s car is fitted with an inter-lock device which prevents him from driving it if he has consumed alcohol. That would not stop him from driving another car, but even then he will necessarily be accompanied by a supervisor to guard against that risk. The Family Consultant agreed that should be sufficient reassurance.
[54] Exhibit M20
Given the children will spend time with the father once each month, they should have regular electronic communication by video calls. The mother acknowledged that was so, but suggested fortnightly frequency, thereby resiling from her proposal for monthly frequency.[55] The father and the ICL agreed the frequency should be fortnightly.[56] The calls should be confined to 45 minutes duration. In the past, such calls have lasted much longer,[57] which may prove to be an unnecessary burden upon the children and the mother.
[55] Amended Response filed 29/5/23, Order 6
[56] Exhibit ICL2, Order 6
[57] Second Family Report at [22] and [67]
The ICL’s proposal for an order permitting the father to attend the children’s sporting events is rejected.[58] The proposed order neither compels the father to do anything, nor restrains him from doing anything, and so it is not an injunction (s 68B and s 114(3)). Nor is it a parenting order (s 64B). The Family Consultant said the father’s attendance at sporting events would help the bond develop between him and the children. There is nothing to prevent the father from attending a sporting event in which the children participate, subject to the mother’s application for an injunction of much broader and stricter operation under s 68B of the Act.[59]
[58] Exhibit ICL2, Order 4
[59] Amended Response filed 29/5/23, Order 7
Despite her reservations about him, the mother was content to associate with the father until the violent argument between them in late 2018, immediately after which the father was bound by the State family violence order. Aside from the father contacting the mother the day after the family violence order was made, trying to retrieve property, the parties have never spoken since.[60]
[60] Second Family Report at [7]
An interim injunction of similar type was made against the father by the Federal Circuit Court (as it was then known) with the parties consent in October 2020.[61] That interim order was made before the State order expired in late 2020 and was not expressed to only apply upon expiration of the State order. It was probably improperly made (s 114AB). Regardless, there is no suggestion the father ever acted contrary to it.
[61] Orders 1.6, 1.7, 1.8 and 1.9 made on 8/10/20
The father has respected the mother’s wish not to communicate. They have not spoken since September 2018. Against that factual background, the Act permits the grant of injunctions of the sort envisaged by the mother in proceedings brought under Pt VII of the Act, but only if it is considered to be “appropriate for the welfare of the child[ren]” (s 68B(1)). No aspect of the evidence reasonably suggests it would be appropriate for the welfare of the children to make the injunction in the very wide and restrictive terms sought by the mother. The father accedes to the ICL’s modified proposal for an injunction under s 68B of the Act,[62] so an order is instead made in those terms. That should be enough to assuage the mother’s apprehension about confrontation with the father.
[62] Exhibit ICL2, Order 5(g)
The ICL’s proposal for an order compelling the parties to use an intermediary is rejected.[63] When asked, the mother’s counsel could not advance any reason why the parties ought not be able to communicate in writing by email or text message. The mother may not want to communicate with the father, but it may be necessary in extreme circumstances, such as if there is mechanical failure on the way to a weekend changeover or serious injury is sustained by one of the children. Some mode of written rather than oral communication means, if it ever be needed as evidence, the email or text messages will be proof of the content and tone of the communication. The orders require the parties to keep one another informed of their mobile telephone numbers and email addresses. The mother need not divulge her address.
[63] Exhibit ICL2, Order 5(a)
The parties and the ICL agreed about orders:
(a)requiring the father to inform the mother about any criminal charges or hospitalisation and diagnoses of mental ill health;[64]
(b)allowing the provision of the orders to the children’s school and medical practitioners,[65] but that permission may also extend to police;[66] and
(c)requiring the provision of the orders to the father’s treating medical practitioners.[67]
[64] Amended Response filed 29/5/23, Order 8; Exhibit ICL2, Order 8
[65] Amended Response filed 29/5/23, Orders 9.1, 9.2; Exhibit ICL2, Order 14
[66] Amended Response filed 29/5/23, Order 9.3
[67] Amended Response filed 29/5/23, Order 10; Exhibit ICL2, Order 15
The parties and the ICL also agreed upon orders enabling the mother to procure passports for the children and travel overseas with them, without the father’s consent.[68] However, it is only necessary to make an order under s 65Y(1)(c)(ii) of the Act declaring the mother is authorised to take the children outside Australia. That order, in combination with the mother’s conferral with exclusive parental responsibility for the children, means she can apply for passports for the children without interference by the father (s 11(1)(a) and s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth)). Any overseas travel should not impinge upon the time the children are due to spend with the father.
[68] Amended Response filed 29/5/23, Orders 6.5, 6.6; Exhibit ICL2, Orders 12, 13
Other orders proposed by the ICL,[69] with which the father expressly agreed, are made in either identical or similar terms to those proposed. Any express or implicit opposition to such miscellaneous orders by the mother is or would be unreasonable.
[69] Exhibit ICL2, Orders 9, 10 and 11
The orders and the reasons given for them should be explained to the children by the ICL.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 2 August 2023
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