FORTIN & FORTIN

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORTIN & FORTIN

[2015] FCCA 2887

Catchwords:
FAMILY LAW – Parenting – dispute over father’s time with two children aged 9 and 5 – where father has an issue with anger – where father has little insight as to how his behaviours affect others – where supervised time was occurring but has ceased as father can no longer afford it – where history of drug use and drug dealing – where father unemployed and possibly homeless – Held – that the mother have sole parental responsibility – that supervised time resume and upon completion of certain requirements time become unsupervised but if father does not follow through on spend time with arrangements then all time to cease with exchange of gifts, cards and letters only.

Legislation:

Family Law Act 1975, ss.4AB, 60CA, 60CC, 61DA, 65DAA, Pt VIII

Briginshaw v. Briginshaw (1938) 60 CLR 336
Champness & Hanson [2009] FamCAFC 93-377
G & C [2006] FamCA 994
Godfrey & Sanders (2007) 208 FLR 287
Hardie & Capris [2010] FamCA 1046
Johnson & Johnson (2000) 201 CLR 488
Johnson & Page [2007] FamCA 1235
Mazorski & Albright (2008) 37 Fam LR
McCall & Clark (2009) FLC 93-405
Moose & Moose [2008] FamCACF 108
MRR v GR (2010) 263 ALR 368
R & C [1993] FamCA 62
R & R: Childrens’ Wishes [2000] FamCA 43
Re F Litigants In Person Guidelines [2001] FamCA 348

Applicant:

MR FORTIN

Respondent:

MS FORTIN

File Number:

BRC 7786 of 2013

Judgment of:

Judge L. Turner

Hearing dates:

6 March 2015 and 8 May 2015

Date of Last Submission:

17 June 2015

Delivered at:

Brisbane

Delivered on:

9 November 2015

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms Oakley

Solicitors for the Respondent:

Andrew Burrows & Associates

Counsel for the Independent Children’s Lawyer:

Ms McDiarmid

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

FINAL PARENTING ORDERS

That any orders made before 5 March 2015 are hereby discharged.
That these orders are to be read in conjunction with the final parenting orders made by consent on 5 March 2015.
That the children X born (omitted) 2006 and Y born (omitted) 2010 live with the mother.
That the mother have sole parental responsibility for the children.
That in the event the father is spending time with the children then within fourteen (14) days of making a major long term decision for the children in accordance with Order (4), the mother is to inform the father in writing as to such major long term decision.
That until compliance with Order (9) the father is to spend time with the children at a contact centre as nominated by the father (provided such contact centre is no more than thirty (30) kilometres from the mother’s residence) for two (2) hours every month with each party to pay their own fees associated with the contact centre.
That should the father fail to advise the mother in writing as to the nominated contact centre within thirty (30) days from the date hereof and should the father fail to complete the intake required by that contact centre within three (3) months, then the father’s time with the children is to cease and Order (6) will no longer apply.
That should the father through his own actions fail to miss two (2) or more consecutive supervised time periods with the children in accordance with Order (6) then then the father’s time with the children is to cease and Order (6) will no longer apply.
That the father spend time with the children every second Saturday from 9:00am to 2:00pm such time to be unsupervised (with changeover to occur at a place as nominated by the mother) upon the father providing to the mother all of the following:-
(a)A copy of a lease in the father’s name which shows the father’s residential address.
(b)Evidence from the father’s employer as to the father’s employment.
(c)In the event that the father is self-employed, then evidence from the father’s accountant as to the business being operated by the father.
(d)A letter from the father’s treating therapist confirming that the father has attended anger management sessions and that, in the therapist opinion, the father is capable of spending unsupervised time with the children.
That in the event the father’s time with the children is occurring in accordance with Order (9) for a continuous period of twelve (12) months then the parties are to attend Family Dispute Resolution to discuss the father’s increase of time to overnight time, failing which proceedings are able to be commenced in the Federal Circuit Court of Australia to determine this issue.
That in the event that the father does not comply with Order (9), then supervised time in accordance with Order (6) is to continue for a period of twelve (12) months after which time:-
(a)Supervised time is to occur once every two (2) months at the contact centre for two (2) hours.
(b)Upon X reaching 12 years of age supervised time is to occur once every three (3) months at the contact centre for two (2) hours.
That should the father fail to miss two (2) or more consecutive supervised time periods with the children in accordance with Order (11) then spend time with periods between the father and the children are to cease immediately and Order (11) will no longer apply.
That the father is restrained from attending the children’s school during such times as the father is spending supervised time with the children.
The once the father is spending unsupervised time with the children then the father may attend all school events where parents are invited to attend at the school, including teacher parent nights.
That the father communicate with the children as follows:-
(a)During such times when the father is spending supervised time with the children then telephone calls between 6:00pm and 6:30pm on the first Wednesday of each month with the children to make the telephone call to the father.
(b)During such times when the father is spending unsupervised time with the children then telephone calls between 6:00pm and 6:30pm each Wednesday with the children to make the telephone call to the father.
That the father must not discuss any adult issues and be respectful of the mother during all telephone calls.
That the mother must ensure that the children have privacy during telephone calls.
That should the father not be spending time with the children in accordance with these orders then telephone calls are to cease between the father and the children.
That the father restrain from any criminal activity whilst the children are in his care and not associate with any persons who may be involved in criminal behaviour when the children are in his care.
That the father be at liberty to provide to the children cards, gifts and letters to be sent to a PO box created by the mother, such details of which are to be provided by the mother to the father within fourteen (14) days from the date of these orders.
That the mother shall encourage the children to correspond with the father and forward cards, gifts and letters to the father at an address as nominated by the father.
That these Orders act as an authority to the children’s health care providers and schools to release, at the father’s expense, any requested information provided such information does not contain details as to the mother’s residential address.
That the independent children’s lawyer hereby be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7786 of 2013

MR FORTIN

Applicant

And

MS FORTIN

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are in dispute as to the future parenting arrangements for X aged 9 and Y aged 5.

Agreed orders

On the first day of hearing that parties agreed to the following orders:-
a)The exchange of information as to health issues and education issues regarding the children.
b)That communication between the parties occur by way of email or text message, with such communication not to be abusive or degrading or contain superfluous information.
c)That the parties not consume illicit drugs 24 hours prior to or during their time with the children.
d)That the parties not consume alcohol in excess of the legal limit when the children are in their care.
e)A non denigration order.

Proposals

The father proposes that the following orders be made:-
a)That the children live with the mother.
b)That the parties have equal shared parental responsibility for the children.
c)That the children spend time with the father two days a week.
The mother proposes that the following orders be made:-
a)That the children live with the mother.
b)That the mother have sole parental responsibility for the children.
c)That the father not spend time with or communicate with the children.
d)That if the Court was minded not to make an order for no time then that the father spend supervised time with the children once every two months at a contact centre for twelve months then once each school term and in the event the father fails to complete the intake interview within three months of the orders then no time or communication occur.
e)That during the first twelve month period the father telephone the children once a week and after that period then for once a month.
f)Sharing of decisions and information with the father by the mother.
g)That the father not discuss adult issues with the children.
h)That the father be restrained from attending the children’s schools.
i)That the father could send cards gifts and letter and the mother would encourage the children to correspond with the father.
The independent children’s lawyer (ICL) is of the view that this one of those rare matters where a long term supervision order needs to be made.

Issues

The issues requiring determination are:-
a)Who is to have parental responsibility?
b)Should the father spend time with the children?
c)If so, should such time be supervised?
d)If supervised, then how will time progress?

Evidence

At the commencement of the trial the father’s legal representative and counsel withdrew and the father became self represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and Re F Litigants In Person Guidelines [2001] FamCA 348, the Court process was thoroughly explained to the father and every attempt was made to ensure that there was fair process afforded to the father during the course of the hearing.
The mother is legally represented.
The Court has the benefit of the appointment of an ICL.
In considering the issues the following has been taken into account:-
a)The material as marked on the court file.
b)The family reports of Ms E released in March 2014 (the March report) and November 2014 (the November report).
c)The exhibits.
d)The oral evidence of the parties.
e)Part VII Family Law Act 1975.
f)Relevant authorities.
For the father, the following witnesses were called and cross-examined:-
a)The father.
For the mother, the following witnesses were called and cross-examined:-
a)The mother.
I will address the issue of the credibility of the parties later in the judgment.
In addition to the parties, the family report writer was cross-examined by both parties and the ICL.
I find the family report writer to be a credible witness and I give significant weight to the family reports and the oral evidence.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

Relevant facts

Before considering the issues it is necessary to capture the relevant facts:-
a)The mother is aged 35 and works part time three days a week during school hours.
b)The father is aged nearly 36 and is unemployed.
c)In 2000 the parties commenced a relationship.
d)In (omitted) 2005 the parties married.
e)In (omitted) 2006 X was born.
f)In (omitted) 2010 Y was born.
g)In 2011 the father suffered a back injury as a consequence of the motor bike accident and gave up his employment as a (occupation omitted).
h)In late 2011 the father commenced using crystal methamphetamines (ICE) and cannabis.
i)In late 2011 the parties commenced dealing in ICE.
j)Prior to separation it was rumoured that the father was having an affair with the neighbour’s wife Ms L.
k)In July 2013 the parties separated when the father left the home.
l)At the time of separation the mother obtained a domestic violence order (DVO) against the father.
m)Just after separation the father commenced cohabitation with Ms L.
n)In August 2013 dispute resolution was attempted between the parties but was unsuccessful.
o)In September 2013 the father commenced parenting proceedings.
p)In September 2013 the father entered into an undertaking whereby the father agreed:-
i)To return the children to the mother’s care after spending time with the children.
ii)Not to be under the influence of illicit drugs and alcohol when the children are in his care.
iii)To use proper car restraints for the children.
iv)To speak of the mother respectfully when children are in his care.
q)In October 2013 an ICL was appointed.
r)In November 2013 the mother filed a Notice of Child Abuse alleging that the father had taken inappropriate photographs of one of the children and took one of the children to lunch with another woman when still with the mother.
s)In December 2013 the family consultant Ms E conducted a Child Inclusive Conference and issued a Memorandum to Court recommending that:
“Given the serious nature of the allegations and X’s refusal to spend time with his father…..on an interim basis the boys spend time with the father in a public place and be in the presence of the mother’s stepfather”.
t)In December 2013 interim consent orders were reached whereby the children live with the mother and spend supervised time with the father at (omitted) Contact Centre ((omitted)) with the father to undergo random drug tests as requested by the ICL.
u)On Christmas Eve 2013 the father spent time with the children at a shopping centre.
v)In January 2014 an interim hearing was conducted where findings were made that the father’s brother-in-law was not a suitable substitute supervisor for time between the father and the children.
w)Between December 2013 and March 2014 the father had two motor bike accidents and one car accident from which the father sustained injuries. These accidents prevented the father from registering with (omitted).
x)In early 2014 the father had a dispute with (omitted) about who would pay the contact centre fees and (omitted) decided that the father was not welcome to use their services.
y)By the time of the family report interviews in March 2014, the father’s relationship with Ms L had ceased and the father had not spent any supervised time with the children in accordance with the December 2013 interim orders.
z)In March 2014 the first family report was released which recommended that:-
i)Parties participate in a Parenting Orders Program ([74]).
ii)The children live with the mother ([76]).
iii)The children spend time with the father at a contact centre for four visits to progress (if time proceeds well) to day time visits for six visits, with changeover at the contact centre ([77]).
iv)The father then spend overnight time with the children each alternate weekend once the father had suitable sleeping arrangements for the children ([78]).
v)The parents ensure the children are not exposed to parental conflict ([79]).
aa)In April 2014 the interim orders made in December 2013 were varied to reflect a different contact centre.
bb)In May 2014 the father’s supervised time with the children commenced at the (omitted) Contact Centre ((omitted) Contact).
cc)In June 2014 the parties resolved the property proceedings by way of final order.
dd)In November 2014 the second family report was released which recommended that:-
i)The children live with the mother ([56]).
ii)That the parties keep each other informed as to their addresses ([57]).
iii)That the father attend school events and parent teacher interviews ([58]).
iv)That telephone calls be reinstated.
v)That if the court is satisfied that the father is not involved in criminal behaviour that will place the children at risk then:-
· The children to spend day time periods unsupervised each alternate Sunday.
· Time progress to overnight once father can provide an address and there are appropriate sleeping arrangements for the children with changeover to be at the school and or contact centre.
ee)In early December 2014 the father unilaterally ceased spending time with the children at (omitted) Contact.
ff)On the first day of the hearing the parties entered into final parenting orders as follows:-
i)Exchange of information on education and health issues.
ii)Communication by email and/ or text and telephone in case of emergency.
iii)Non consumption of illicit drugs and alcohol to excess of the legal limit when the children are in their respective care.
iv)Non denigration clause.
gg)On the second day of hearing an interim order was made that the father not attend at the children’s schools unless agreed upon.
As at the date of the final hearing:-
a)The mother has not repartnered.
b)The mother is living with the children at (omitted) with X attending school and Y in pre-school.
c)The mother is working.
d)The father has not repartnered.
e)The father has no fixed place of abode.
f)The father is not in employment.
g)The father is not in contact with his parents.
h)The father is not spending time with the children.
i)The father is having some telephone calls with the children.

The law

The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence when making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
But as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:
“Best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child…of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCACF 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to
“the matters set out in section 60CC(2) and (3) guided in…consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2)”
As to the primary considerations in the leading authority of Mazorski & Albright (2008) 37 Fam LR Brown J refers to such considerations as the “twin pillars” where:-
a) The first pillar is the importance of a child to have a meaningful relationship with both parents; and
b) The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interest of the individual child sections 61DA and 65DAA come into play and if the child is subject to an equal shared parental responsibility order then the amount of time to be spent by the non-resident parent if reasonably practical must also be considered.

This distinct pathway, which applies to parenting matters where an equal shared parental responsibility order has been made is the subject of much discussion by the High Court in MRR v GR (2010) 263 ALR 368.
Before applying the law to the facts and determining what should be the future parenting arrangements for the children, it is useful for certain findings to be made in respect to each of the parties.

Father’s credibility

Putting aside the aggressive manner in which the father conducted himself in Court (which is addressed later in this judgment) I find that the father’s credibility is questionable given his evasiveness in the evidence.
During cross-examination it was difficult to extract a clear answer to many of the questions and in particular details as to where the father had been living and with whom.
The evasiveness continued surrounding his relationship with Ms L and his dealings in ICE and how much money he made, with his answers changing in every breath.
Although the father had in his material admitted to be involved in the “drug scene”, the father backpedalled and refused to clarify or elaborate his position in respect of drug dealing, drug usage and who the father has been associating with.
I find that the father was not credible in the delivery of his evidence, especially in relation to his involvement in criminal activity and his current living circumstances.

Family violence perpetrated by the father

The mother alleges family violence perpetrated by the father both during and after the relationship has ended.
The father denies the existence of family violence.
The evidence however suggests otherwise.
The Queensland Police Records contain the following information:-
a)In July 2011 the father became verbally abusive when the mother was moving items from the house and attempted to attack his own father with a metal bar and after the mother left the house, rammed a 4WD vehicle into an unregistered vehicle in the front yard of the house. This incident was captured by video camera on the premises, footage of which is in the exhibits. The father later made full admissions to the police which accorded with the mother’s versions of events.
b)In June 2013 the father was accused of common assault of the mother with minor bruising observed to her right ankle and foot as a consequence of the father slamming the driver’s car door on her leg. The father denied the incident although admitted to putting his arms around the mother for her own safety as she was hysterical and out of control near the road. As there were no witnesses, charges were not laid against the father.
c)In July 2013 a domestic violence order (DVO) was taken out against the father in favour of the mother for two years.
d)In July/August 2013 the father sent several abusive text messages to the mother which were reported and sighted by the police. The messages contained several derogatory comments including:-
i)“U and your mum are a bunch of disrespectful cunts”
ii)“…u should go and fuck yourself with a leg of ham cause you are being a bad disrespectful two faced lose slut of a mother”
iii)“rot in hell slut”
iv)“Fuck you and I hope you have the most fucked up life”
v)“A shame that you cunt scans never came back with a positive for cancer and then you would be slowly suffering for wat your putting my kid threw u slut”
vi)“Slut….Bitch….Hore….Cunt…And so is your mum..”
e)In August 2013 the situation was assessed by the (omitted) CPIU who found that “the mother is acting protectively for her children” and “matter has been assessed as a child protection concern only”.
f)In September 2013 the father was abusive to the mother during telephone calls and sent abusive text messages which were reported to the police.
g)In September 2013 in front of the real estate agent the father had a verbal argument with the mother during which time the father snatched sunglasses and keys out of the mother’s hand causing a small cut to her finger and swore at the mother and threatening to smash “the fuck out of the car”.
h)In September 2013 the matter was assessed by police as a child protection concern where the mother had acted protectively towards the children.
In addition to the above incident the mother deposes to:-
a)An incident in (omitted) 2013 when during a birthday celebration for Y’s third birthday the father became verbally abusive towards the mother and the children and threw a box of car parts at the side fence ([18] mother’s October 2013 affidavit).
b)An incident in June 2013 where the father threatened to burn the house down ([24] mother’s October 2013 affidavit).
c)Text messages in August 2013 which included the comment “Disrespectful stick up childish hatred little girl”
d)An incident in October 2013 when after a visit with the children in a park the father punched the driver’s side of the mother’s car “with great force” which the children found frightening ([98] mother’s February 2015 affidavit).
e)Phone calls where the father has harassed the mother ([54] November 2014 family report).
In his material the father makes the following admissions:-
a)That during an incident in July 2013 just prior to separation:-
i)“Ms Fortin took off walking down the street. I restrained her by grabbing her by the elbows and walked her back inside the home, at no time did I physically hurt her…” ([38] father’s March 2015 affidavit).
ii)“I was upset and smashed 2 bottles of Alcohol on the bench and following this I calmed down…” ([39] father’s March 2015 affidavit).
b)That during an incident in July 2013 just after separation:-
i)“I grabbed a metal bar and attempted to go thru the garage to the cars with the intention of taking out my frustration on the vehicles” ([56] father’s March 2015 affidavit).
ii)“I was restrained by my father and my neighbour and Ms Fortin then left, I think she saw the altercation with my father” ([57] father’s March 2015 affidavit).
iii)“I then jumped into my 4 wheel drive that has a large bull bar on the front and rammed the front of one of the cars...” ([58] father’s March 2015 affidavit).
iv)“Police…interviewed me on site and I admitted to the wilful damage” ([61] father’s March 2015 affidavit).
v)“…police then took me to the station incarcerated me approx…. 3 hours and issued a DV Order…” ([62] father’s March 2015 affidavit).
c)“That in a few of these text messages, out of frustration I denigrated both Ms Fortin and her mother” ([77] of the father’s September 2013 affidavit).
Family violence is defined in section 4AB Family Law Act 1975.
The definition is wide and the examples provided includes assault (section 4AB(a)), repeated derogatory taunts (section 4AB(d)), and intentionally damaging or destroying property (section 4AB(e)).
I find, given the admissions made to the police and on the father’s own admissions that the father has perpetrated family violence in accordance with the definition, as the father has physically restrained the mother, made threats and derogatory remarks to the mother and deliberately destroyed property such as bottles of alcohol, car parts and a motor vehicle.
In addition the father is the subject of a DVO.
I further find that incidents of family violence have occurred in front of the children, such as the incident on Y’s third birthday and the incident in the park.
Lastly, I find that the existence of domestic violence is an issue that will be of significant weight in this matter in determining the future parenting arrangements for the children.

Father’s difficulty with anger control

The mother is concerned about the father’s anger and the impact this has had and may continue to have on the children.
The evidence supports that the father has had difficulty in controlling his emotions as illustrated by the following:-
a)The (omitted) 2013 incident at Y’s third birthday party where the father lost his temper yelling at people and destroying car parts. The father in cross-examination explained that he was “disappointed” at the time because of how people treated his property and part of his reaction was to kick around a “cardboard box” that had bits in it.
b)The July 2013 incident where the father rammed a perfectly good motor vehicle with his 4WD, demolishing the other car.
c)The October 2013 incident where the father punched the mother’s car.
d)Where (omitted) refused to assist the father in supervised time after being contacted by the father and abused verbally about their fees.
The father is reluctant to refer to his emotional outbursts as being “anger”.
In cross-examination the father stated loudly that he did not “have a problem with my anger…..never have”.
The father admitted to having “issues with my temper…And I continue to try and control this. However I have never physically assaulted Ms Fortin or our boys and I express this anger by striking out at objects” ([40] father’s September 2013 affidavit).
During cross-examination the father stated that “ I don’t have issues with my temper unless I’m being agitated like I am now”
Evidently the Court process must have agitated the father significantly as his behaviour in Court was one of the worse displays of immaturity and disrespect I have ever witnessed in a courtroom.
During the trial the father repeatedly was :-
a)Openly rude and abusive.
b)Physically intimidating, thumping the witness stand, raising his voice and deliberately yelling into the microphone.
c)Smiling uncontrollably.
d)Attempted to stare down anyone who asked questions that the father was not prepared to answer.
e)Yelling out abuse to witnesses whilst in the stand.
Although spoken to on several occasions as to his behaviour, the father was defiant, showing a complete lack of respect not only to the Court, but to the mother, her counsel, the ICL and their counsel.
During cross-examination of the family report writer the father quickly resorted to a personal attack on a professional that he had met only twice yelling out “You’re delusional. That’s ridiculous….I think you’re heartless. I don’t think you should be a psychologist”.
The family report writer in cross-examination spoke of the father’s “impulsive nature”.
In the March 2014 report the family report writer noted that the father presented as “defensive” ([31]).
The father has purportedly attended a psychologist in respect to his anger since proceedings were commenced but it was unclear how frequently and there was no evidence before the Court as to the existence or effectiveness of such treatment.
I find that the father is emotionally volatile and I find that this is an issue which will impact heavily on the determining the future parenting arrangements for the children.

Father’s lack of insight

The mother is concerned that the father has a lack of insight as to how his behaviours impact on those around him.
I agree.
The father in his presentation in Court and in his comments demonstrated his failure to understand that what he does and what he says may have a negative impact on the children.
I find that this puts into question the frequency and length of time that the father is able to spend with the children.
The family report observed in the March 2014 report that the father:
“appeared to have little insight into the part he had played in the conflict in their relationship and minimised any of the violence that has occurred” ([31]) and “has little insight into the impact his behaviour has on others” ([67]).
When asked in cross-examination about his alleged drug use the father exploded yelling “none of this has the ability to prove that I am not capable of looking after me kids. This is about my kids…not on trial here for anything else” and “I want my children in my life and my life will go back to normal”.
When discussing the prospect of paying for supervised time the father stated:
“it’s unfair that I’ve got to pay for full service when the children are equally owned…..equally owned by one another….we have made our two children, and they are our property”.
The father also held the view that:
“I could be the biggest drug dealer in the world. I could be the most abusive person in Australia. It doesn’t mean that I’m a bad father, and this is what today is about. It’s about my children.”
In addition to the failure of the father to recognise how his actions impact on the children, the father, according to the mother, has made repeated threats to take the children away from the mother as the father does not have ties to Brisbane ([18] November report).
The father denies such threats deposing that:
“I categorically deny this I have never said this, I have had the opportunity to take one or both children into my care but I would never do this as I consider it would distress the children” ([70] father’s September 2013 affidavit).
Whilst it may not be the father’s intention to remove the children there have been instances where the father has attended the children’s school and day care without the knowledge of the mother and in the absence of a Court order permitting the father to do so:-
a)In August 2015 the father admitted that “out of desperation I went to Y’s child care centre ….and requested that I spend time with my son” ([81] father’s September 2013 affidavit).
b)“Friday of the following week I rang X’s school and attempted the same process, I attended the Principals office and explained my position, the Principal rang Ms Fortin and she arrived at school and took X from the school, she held him out of school ….and has now enrolled him in a new school unknown to me” ([83] father’s September 2013 affidavit).
The father has taken the opportunity, during telephone calls with the children, to discuss such things as sleepovers with the children when the interim orders provided for supervised time only.
Clearly the father does not think about the impact of his words, before he utters them.
An example is when the father informed staff at the (omitted) State College where X was attending that:
“I’m going over to her house…and kick the door in and take the children….women don’t understand, I’ve done nothing wrong, and this is what makes men want to go and get a gun and shoot themselves and the kids”.
The family report writer concluded that these types of views “reflect the father’s inability to be reflective and his insight into the sort of comment that would make….it reflects an impulsive nature.”
However the father has been cautious in demonstrating this lack of insight around the children.
In the (omitted) Supervised Contact Report it is noted that:
“During the course of the Service involvement there have been no observations made by the staff of either parent denigrating, belittling or insulting or discussion of any of the matters relating to the proceedings whilst in the presence of the children”.
I, however, find that the father’s lack of insight into how his views and actions may impact on the children is of a concern and as such is an issue which factors heavily in determining the future parenting arrangements for the children.

Father’s drug use

The mother raises the father’s alleged use of ICE as a basis as to why the father’s time with the children should not occur or why such time should be supervised.
At first blush this seems reasonable especially as the parties admit to dealing in ICE to supplement their income during their marriage and both parties have admitted, albeit infrequently, to using ICE.
But in real terms I find that there is no evidence to support that the father is currently using ICE or any other illicit drug as illustrated by the following:-
a)The claims of the mother are historical with the only independent piece of evidence as to the recent use of ICE by the father in 2013 being the text message to Ms L which reads in part “I’ll give up ice and get a job honey”.
b)The father emphatically denies using ICE and has undertaken five drug tests from July 2013 to April 2014, all of which returned as negative.
c)There is no evidence to support that the father has faked the drug tests as suggested by the mother.
d)I accept that it is unfortunate that the father has failed to undergo the drug tests requested by the ICL in the lead up to the final hearing, but I further accept that the father is facing financial difficulties and his explanation, which was consistently provided, that the father could not afford the testing. Failing to attend testing does not necessarily equate to someone having a drug addiction.
e)There is nothing in the police records or criminal records which support that the father is currently using drugs.
f)There is nothing in the contact centre notes that indicate that the father is using drugs. In the (omitted) Supervised Contact Report it is noted that:
“during involvement with the Service, there have been no observations noted by staff to indicate either parent to be under the influence of alcohol or be affected by illicit drugs”.
g)The only evidence supporting the father’s drug use is that of the mother, stating that the father had lost weight and had been scratching himself (although his presentation in Court did not support her observations) with the mother failing to call or subpoena any independent witnesses (such as the father’s sister, the father’s father or the father’s brother-in law) to support her assertions.
h)There is no established link that the father’s anger issues have anything to do with current drug use.
i)There is no evidence that the father’s numerous motor vehicle accidents are drug related as alleged by the mother.
j)In the final orders reached by consent the father has agreed not to consume illicit drugs twenty-four hours prior to or when spending time with the children.
I find that there is insufficient evidence before the Court to make a finding that the father is currently using ICE or any other drug.
This is therefore not an issue which will be given weight in determining the future parenting arrangements for the children.

Father’s suspected criminal activity

The mother is concerned because of the various incidents that have occurred since separation that the father may continue to be engaged in some form of criminal activity.
There have been a series of events since separation which raise concerns as to the father being involved in suspicious activity:-
a)In July 2013 (after separation) when the father together with Ms L and a drug dealer was involved in an incident where glass doors were smashed by three individuals telling the father to come outside. The father states that it was just teenagers although in an email to the mother he accuses the mother of having “(omitted)….smash the windows”. Although denying in cross-examination that it was a serious incident, in a letter written by the father’s legal practitioners the incident was referred to as a “home invasion” (Letter Thomson Law to Craig Jensen Solicitors dated 1 August 2013).
b)In July 2013 (after separation) the mother was contacted by police about the father having a Glock hand gun in his possession. The father denies having a gun but admits to having a Ramset gun which shoots blanks.
c)After separation the father bought and was living in a house boat which the mother heard had burnt and sank as a consequence of a meth lab on board, whereby the father said it sunk from a mechanical failure.
d)After separation the father was involved in a car jacking where his car was stolen and burnt out.
e)Since separation the father has been pulled over by the police on several occasions looking for guns and drugs. The father explained to the family report writer that he
“thought that the mother was making complaints to the police as he has been pulled over ‘hundreds’ of time including once by six police cars when they searched for guns….he has also been subject to strip searches” ([33] March family report).
f)Since separation the father has been convicted of driving an unregistered vehicle. The father explained that he took the blame for a friend ([35] March family report).
g)In November 2013 the father sent an email to Ms L stating that “I will stop selling drugs and all the bad stuff”.
h)In early 2014 the father was involved in three serious motor vehicle accidents in a space of seven weeks ([19] March family report).
i)In September 2014 there was an article in a (omitted) newspaper referring to the father by name and reporting that the father was involved in number plate fraud where the father had “photocopied and laminated” registration plates on his (omitted) motor vehicle.
j)The mother reports that the police often drop by asking for the location of the father.
k)Just prior to the final hearing the mother’s legal representative was contacted by the father’s father who provided the following information:-
i)The father was in “hiding” from a bikie gang who had turned up at his father’s house looking for the father.
ii)That the father was aware he was being sought after by bikies and that the father had refused to stay at his father’s house as they would find him. This is denied by the father.
l)The mother is also concerned that Mr J (a (occupation omitted)) and Ms K, a couple the father has stayed with from time to time, are well known drug dealers in the (omitted) area. This is denied by the father although unusually in cross-examination the father referred to Mr J as “his partner”; a strange term to use as if the father was involved in business dealings with him. When the father was questioned about his use of the word “partner” the father stumbled, offering an excuse that it was just a poor use of words.

I find, applying the reasonable person test, that the average person on the street would believe that the father is involved either directly or indirectly with some dubious and perhaps criminal activity.
Therefore, this is an issue which may factor in determining the future parenting arrangements for the children.

Mother’s credibility and attitude

Whilst overall I find the mother to be a credible witness, I hold the view that the mother did her utmost to add a touch of drama to all incidents which could be seen as negatively impacting on the father so as to paint the father in the worst possible light.
I believe that the mother would like the Court to view her as the hapless innocent victim with the father as the evil wrongdoer.
But that is simply not borne out in the evidence.
Firstly the mother, like the father, was involved in and made money from the illegal dealing of the highly addictive and destructive drug, ICE.
The mother’s level of involvement and knowledge is evident in a text message sent by the mother to the father around the time of separation which read in part:
“Just got your Lawyers letter, so I gather from it your not happy with giving me the figure I ask….So instead what I’m going to do is go back to the cops and make a full statement about you, you’re associates, addresses, names & rego number. Everything we have & your parents have will be taken by police through proceeds of crime coz if I’m getting nothing…… u r too.”
Secondly the mother freely involved the police in every aspect of their dysfunctional relationship with the police records noting that the mother “appears to place” the father “in situations whereby she knows that he will become upset and emotional and then reports to Police”.
One such incident is where the mother accompanied police to the child care centre in August 2013 when the father dropped in to spend time with Y.
Thirdly, whilst not for one moment downplaying the family violence, the mother’s fear of the father may not be as high as one is lead to believe. In the (omitted) Contact records it is noted that the “mother came to the front door which was not what we had planned…it was interesting that she had no issue walking into the Centre when she knew Mr Fortin would be present”.
(omitted) Contact further noted their suspicion that the mother was “attempting to set up” the father “by providing opportunities for” the father to “obtain information such as phone numbers and addresses and details of the school” but that “these attempts had been unsuccessful” because the father “is illiterate”.
Fourthly the mother, despite a pending final hearing and with both parties being legally represented sent a text message to the father in January 2015 stating “I am only going to say this once and so there is no confusion, you can have kids overnight every fortnight and help out at their school whenever you like ONCE you have set up a stable safe living environment – shared or not, as long as its not a druggie hangout!! Until then or until a different court order is in place, you and your parents may see them at a contact centre……..If you would like to end this….once you have yourself sorted with a house, job etc you can have them as per the family report…let me know if u agree & I’ll have my lawyer draw up the agreement tmw…ok”; a very different proposal to the orders being sought at the final hearing whereby the mother has a preference of no time for the father with the children, otherwise supervised time which is to decrease over time.
The mother maintained her earlier position during the first family report interviews stating that:
“if the children can re-establish a relationship with their father is a safe environment and the father can demonstrate that he has stable living arrangements the boys should be able to spend time with him unsupervised” ([20] March report).
Whilst not dispelling the mother’s evidence in total, I will be taking with a grain of salt some of the accusations made by the mother against the father, unless there is some corroborating evidence in support.

Verbal abuse by the mother

I find that the mother was just as capable as the father of making verbal threats.
The mother was embroiled in the arguments with the father which occurred in front of the children.
The mother has sent abusive and provoking emails to the father, such as :-
a)“I’m sick of your lies…u and Ms L. It makes me physically sick and I’ve told u, u cheat on me I will not be happy & I’m fucking not!”
b)“DO NOT CONTACT ME, DON’T CALL ME, DON’T TXT ME.”
c)“…you can move on and continue your revolting, lying, feral existence that you refer to as your life that you have created for yourself”
d)“Tell you’re slutty whore to never contact me again Mr Fortin, if I hear from either of you again I will breach you……I’m so sick of both of you bullying me into who I can & can’t speak to….you’ve both got bigger problems than me to deal with”
e)“ U MADE YOUR CHOICE WHEN U STRTED FUCKING WHORES AT BROTHELS & Ms L……………THERE IS NO WAY I’M EXPOSING THE BOYS TO YOUR DIRTY FILTHY LIFE”
Whilst this finding however does not diminish in any way the family violence perpetrated by the father, it supports that the mother was involved in family violence albeit to be far lesser extent than the father.

The children

Before determining the issues, let’s talk about the children who are the subject of these proceedings.

The family report writer after the March family report interviews describes X as a “finely built boy” ([47]) and that “X like his father was volatile during his individual interview” ([69]).
X has struggled at school and his behaviour has caused concern for teachers.
The school notes from 2012 revealed that X had been involved in bullying type incidents such as throwing other’s children’s items around and that X was suffering anxiety from the family break up and held a negative view about himself.
X when speaking about himself to the family report writer said that “he was aware of the group dynamics at play in his peer group”, that he and his counsellor had “developed strategies for managing his peer group”, that “he does not get in trouble at school for his behaviour” but “he struggles with his academic work” ([48] March report) and that after school he likes playing “computer games…(omitted) and (omitted)” ([49]).
The maternal grandmother describes X as “an anxious child who often struggled to be away from his mother” ([43] March report).
The father describes X as a “beautiful little boy…well mannered …always happy” but in cross-examination spoke of X’s propensity to lie in order to get the father into trouble with his mother.

The family report writer describes Y as “an emotionally robust child …who was easy to engage…and was competitive for attention when his brother was with him” ([53] March report).
Y “delighted” in telling the family report writer “of mischievous things he has done….stealing beans off his brother’s plate and putting his hand and foot in potato” ([56] March report)
The mother describes Y as a “robust, happy child who is eagerly anticipating starting prep” in 2015 ([21] November report).

Application of the law to the issue

Parental responsibility

As a finding has been made as to the existence of family violence then pursuant to section 61DA(2) I find that the presumption of equal shared parental responsibility as set out in section 61DA does not apply in this matter.
I further find that it would not be in the children’s best interests for the parties to have equal shared parental responsibility for the children due to the following:-
a)The parties do not have a co-parenting relationship ([15] November report).
b)The parties have very poor communication with the mother explaining that the “conversations…often end with the father abusing her if she did not agree with him” ([15] November report).
c)The father informed the family report writer that he “thought the mother had difficulties in communicating both when they were married and now into their separation” ([36] March report).
d)The family report writer opines that “The parents are not yet able to communicate in a productive manner” ([54] November report) and stated in cross-examination that “it would seem unlikely that the parents would be able to constructively have shared parental; responsibility”.
e)The family report writer in cross-examination indicated that if all the factors put to the Court are accepted that “it would seem unlikely that the parents would be able to constructively have shared parental responsibility”.
As an order for shared parental responsibility is not in the children’s best interests then consideration must be given as to who it to have sole parental responsibility.
I find, having considered the evidence that an order for sole parental responsibility for the children in favour of the mother, is in the children’s best interests.
I base this finding on the following:-
a)The mother has always been the primary carer for the children and is currently the sole provider for the children.
b)The evidence supports that to date the mother has acted responsibly and protectively in the long term decision making for the children.
c)The father has not raised any concerns as to the long term decisions made to date by the mother for the children
I therefore make an order that the mother have sole parental responsibility for the children.
I further order that in the event the father is spending time with the children then the mother is to provide to the father written information as to any long term decisions made by the mother for the children.

Primary considerations

Benefit to the child of having a meaningful relationship with both of the child’s parents

What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski with the Full Court in Moose stating at [68] that:
“Her Honour’s discussions is helpful and her conclusions about s60CC(2)(a) are cogent.”
At [26] Brown J concluded:-
“What these definitions convey is that ‘meaningful’ when used in the context of ‘meaningful relationship’ is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or of ‘consequence’ ….a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”
Kay J in Godfrey & Sanders (2007) 208 FLR 287 spoke of the legislation promoting a “meaningful relationship, not an optimal relationship.”
The Full Court in McCall & Clark (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child”.

Conclusion

It is not in dispute that the children have a strong and loving bond with both parents.
The children, when spending time with the father, enjoy their time.
The mother wishes for the father to have a relationship with the children, as long as the children are safe ([19] March report).
I find that maintaining and nurturing a meaningful relationship between the children and the father is therefore an important consideration and supports the children having an ongoing relationship with the father.

Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

A finding has been made that the father has been the perpetrator of family violence and that the mother to a far lesser extent may have contributed to the conflict.
The children therefore have been exposed to family violence.
Whilst in denial as to being responsible for the family violence the father admits that “the children have been exposed to raised voices and arguments from both of us” ([25] father’s March 2015 affidavit).
During the March 2014 family report interviews X spoke openly about the father’s anger:-
a)“Dad used to scream at me and tell me to get back inside” ([51]).
b)“He said it was scary when Dad smashed the window and ‘it would be okay if Dad didn’t do those things’” ([52]).
During the November 2014 family report interviews X again spoke openly his father’s behaviour:-
a)“He ‘is a sweary Dad, he shoots targets and animals and he has two massive guns, a brown one and a white one’. X was disapproving when he said his father went shooting with his grandfather and they had put a ‘bomb’ into the water’” ([43]).
b)“X said that he has given his father advice about saying “fire truck” instead of the “f word” to his mother” ([44]).
X has also spoken about the mother:-
a)“X says that his parents swear at each other and he has told them not to swear” ([42] November report).
b)“X thought his mother only ‘sometimes swears at Dad’” ([46] November report).
X explained to the family report writer how his parents actions have impacted on he and his brother:-
a)X depicted his father as being “frightening” ([51] March report).
b)“Y got upset when his parents fought” ([44] November report).
The family report writer expressed concern that X is “clearly prone to becoming stressed at witnessing conflict between his parents and feels he has to manage his parents behaviour by telling them not to swear at each other” ([51] November report).
The family report warns that “If the boys experience abuse from either parent to the other it is likely that they will become more aligned with one parent and reject the perceived abusive parent” ([54] November report).
The family report writer stresses that it is in the “boy’s best interests that they do not experience their parents in conflict” and that if unsupervised time occurs the changeover occur at school ([54] November report).
The parties have adopted the recommendation that communication occur via email so as to avoid exposing the children to parental conflict ([52] November report).

Conclusion

Unfortunately for the children, especially X, the long term conflict between the parties has caused fear and dismay.
These parties are not able to communicate effectively and their volatility when in close proximity with each other is a consideration which weighs heavily in determining how spend time with arrangements, if any, are to occur between the father and the children.

Additional considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

In the March 2014 family report interviews (when X was aged 8) the family report writer noted that:-
a)“He was explosive in his interview and vociferous in telling me that he did not want to spend time with the father and that he would ‘slap’ me if I made him do it” ([47]).
b)“X stressed that he did not want to talk with his father” ([51]).
c)“X said ‘I never want to see Dad again’” ([51]).
d)“X…would like a ‘perfect dad’. When asked what a perfect dad would be like X replied ‘he would never scream, never yell, never put me in my room, and then never yell at mum or pick up Y’”([52]).
e)When the family report writer told X that she was bringing the father into the child care room “X again protested vigorously to seeing his father” ([59]).
It was noted however by the family report writer that X’s protests abated as soon as X saw his father “As soon as Mr Fortin entered the room Y leapt into his father’s arms and X followed suit almost immediately” ([59] March family report).
The family report writer concluded that:
“At both the interviews for the Child Inclusive Interviews and the Family Report he had been strident in emphasising he wanted nothing to do with his father. Yet when observations took place he was intimate in his play with his father and appeared to be pleased with how the interaction had gone” ([69] March report).
At the second lot of family report interviews in November 2014 the mother reported that “X is no longer anxious about spending time with his father” ([14]) and that “X was markedly more relaxed” ([39]).
X himself was “positive about the …time he spends with his father” ([41]).
The family report noted that “Both boys were enthusiastic about spending time with their father and ran to the room where they knew he would be” ([48] November report).

In the March 2014 family report interviews (when Y was aged 4) the family report writer noted that:-
a)“Y spoke fondly of both of his parents” ([56]).
b)“Y did not express any concerns about being with either his mother or his father” ([57]).
In the November 2014 family report interviews Y’s position remained the same “He continues to be an enthusiastic and was happy to chat about time he spends with his mother and his father and brother” ([47]).

Conclusion

The authorities provide guidance as to considering children’s views.
In R & R: Childrens’ Wishes [2000] FamCA 43 (where after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286) the Full Court states at [44]:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so”
As to the weight to be given to such wishes the Full Court states at [54]:
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”
These are two young children who have witnessed the corrosive breakdown of their parent’s tumultuous relationship.
More than likely Y has little memory of the adult friction.
But it is clear that X recalls the arguments.
After the first family report interviews the family report writer opines
“It is my opinion that X has been frightened by events that have happened between his parents in the family home while he has had no experience to modify these views they have become even exaggerated for him leaving his to superficially grow in his opposition to spending time with his father” ([71]).
By the second family report interviews where the children had been spending regular time with the father at the contact centre X was calm and positive about his time with the father.
Y has no difficulty with spending time with his father.
But X has suffered.
As a consequence his childhood to an extent has been robbed by the parents with X having to formulate adult type opinions to cope with the adult drama created by feuding parents.
X is angry with both parents, but more so with his father and when the father is not around he voices that anger readily and defiantly.
X is also the “man of the house” and undoubtedly feels the need to be protective and to take his mother’s side.
But when with the father, X reverts to being a small boy who loves his father and wants to spend time together with his father and his brother.
I therefore give little weight to X’s views expressed as to not wanting to see his father.
I do however give weight to X’s vulnerabilities in being caught up in the adult issues and this consideration factors heavily in determining how any spend time with arrangement is to take place between the children and the father.

Nature of the relationship of the child with each of the child’s parents and other persons

The family report writer describes the children’s “interaction” with the father as being “happy, boisterous, affectionate and warm” ([48] November report) and in cross-examination agreed that the interactions between the father and the children were positive.
X described the father as “fun” ([45] November report).
During his unscheduled visit with Y at the child care centre it was noted that “When Y saw his dad he ran into his Dad’s arms, threw his arms around his Dad’s neck and cried…. They talked…they played” (Letter (omitted) Early Learning Centre August 2013).
During the father’s visits with the children at (omitted) Contact it was observed that “both children very affectionate and playful” with the father and that “The Supervisors have consistently observed the children’s affection” for the father and “the children’s eagerness and ability to communicate freely during contact visits”.
Supervised time commenced in May 2014 and until it was ceased by the father in December 2014 the evidence supports that supervised time has progressed well for the children:-
a)The family report writer observed that “Supervised time has given the boys the opportunity to re-establish their relationship with the father at the contact centre. The indications from the parents and boys are that this time has progressed well with the boys and the father enjoying their time together” ([50] November report).
b)The mother stated that despite all her concerns as to the father “the boys time with their father has been going well at the contact centre” ([19] November report).
c)The father reported that “He was positive about the visits he had with X and Y” ([25] November 2015 family report) and “was positive about the contact centre he and the boys attends…it is a rural setting for them to enjoy” ([27] November 2015 family report).
As to the mother X describes the mother as a “good mum” ([46] November report) and the family report writer observed that the “boys were both warm to their mother” ([49] November report).

Conclusion

I find that the children have a good relationship with both parents.
This consideration supports an order for the father to continue to spend time with the children.

Extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions, to spend time with and to communicate with the child

Although I have my suspicions that the mother was at times setting up the father to fail, the mother is to be commended for her consistency in trying to ensure that the father retain a relationship with the children.
The difficulty for the father though, is that he has not and continues not to take up the opportunity to see his children.
In part this is because of the father’s stubborn and forceful view that if time is not spent the way he wants it to be spent then time does not occur with the children.
Add to this the father’s confronting behaviours and lack of insight and what has resulted is a history of unstructured and erratic time between the father and the children which has been stressful for the mother and confusing for the children.
The following illustrates the irregularity of time and the father’s repeated failure to avail himself of time with the children:-
a)An attempt by the mother for the father to spend time with the children on Father’s Day 2013 at a park failed as “the father declined the offer, instead offering to have dinner with him, his girlfriend and the boys” which the mother refused due to her concern that this “would have been confusing and confronting” for the children” and that the children “deserve undivided attention from the father” ([42] mother’s October 2013 affidavit).
b)During 2013 the mother “offered on many occasions for Mr Fortin to meet us at a park but each time Mr Fortin has rejected some part of the offer” ([43] mother’s October 2013 affidavit)
c)Although orders were made by consent for supervised time between the father and the children in December 2013, the father did not commenced supervised visits until May 2014.
d)Between March 2014 and November 2014, the father, according to the mother, only telephoned the children some six times.
e)In December 2014 the father ceased the fortnightly supervised visits with the children on the basis that the father could no longer afford such visits.
f)The mother arranged for the father to spend time with the children over Christmas 2014 but the father did not take up the offer from the father.

Conclusion

What is of great concern is that any order made by this Court in respect of spend time with arrangements between the father and the children may not be followed by the father.
Given the anxiety suffered by X and the young age of the children, I find that it is not in the best interests of the children for the father to sporadically be part of the children’s lives; popping in and out depending on how the father is feeling or what the father is doing.
I therefore find that this consideration factors heavily in ensuring that there is compliance by the father with the orders and that non compliance brings the orders to an end, so as to ensure that uncertainty does not exist for the mother and more importantly exist for the children.

Extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother is wholly supporting the children with the father failing to make any financial contribution towards the children including payment of child support.
Whilst this may illustrate the father’s lack of responsibility, I find that this is not a consideration which factors heavily in determining whether the father is to spend time with the children.

Likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child, or other person

I find that this is not a relevant consideration as any orders made for the father to spend time with the children will not cause significant separation from the mother or bring about a significant change in circumstances for the children.

Practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are difficulties with the children spending time with the father.
The first issue is costs.
The biggest difficulty for the parties and in particular the father is the costs associated with supervised time at a contact centre.
The father has struggled to meet the costs to date with the father falling out of favour with (omitted) after an argument about costs and the father ceasing time with (omitted) Contact because of the inability of the father to fund the visits.
The father explained to the family report writer that “the costs involved in spending time with the boys have stopped him from being able to secure independent accommodation” ([25] November report).
The father estimates that costs at contact centres will range from “250 to 450” with the father paying $350 a fortnight for two hours when with (omitted) Contact.
The father ceased time with the children at (omitted) Contact in December 2014 because “I could no longer afford to pay the contact centre fees and the fuel to travel out to the centre” ([95] father’s March 2015 affidavit).
The father states that he cannot afford to spend time with the children if it is at a contact centre stating in cross-examination “I can’t afford to pay for seeing my children…full stop….This is all a waste of money. Me having to pay to see my children is a waste because it could be going to get better things. It could be going to stuff I need to buy them for when they are with me”.
But when push came to shove, the father conceded in cross-examination that if a long term order was made for supervision then “I would have to go and see the kids, because I couldn’t live with myself, and it would never be a waste of time”
The second issue is the uncertainty for the mother if unsupervised time between the father and the children was to be considered.
The mother explained that before any unsupervised time can occur the mother would require “some confirmation that the father had suitable living arrangements and that he was not involved in criminal behaviour of selling drugs. She would also like to know where the boys were when spending time with the father” ([23] November family report).
I find that an order whereby the father not involve himself in criminal behaviour or associate himself with persons who are involved in criminal behaviour when the children are in his care is appropriate in this matter.
Because of these two issues, this consideration weighs heavily in determining how the father is to spend time with the children, if a finding is made it is in the best interests of the children to continue in a relationship with the children.

Capacity of each of the child’s parents and any other person to provide for the needs of the child

Issues have not been raised as to the mother’s capacity to meet the children’s needs.
The question then is whether the father is capable of providing for the needs of the children.
Comment can only be made as to this issue in the context of supervised time as this has been historically the only structured time the children have spent time with the father.
I find that despite the father’s anger and lack of insight the father has demonstrated that when around the children, the father makes a concerted effort to shield the children from his otherwise concerning behaviours.
(omitted) Contact notes reflect that the “father conversed minimally with Supervisors and remained focussed on his time with the children and is totally focussed on the children and being a parent” but that “after the visit had concluded” the father “returned to a more anxious state where he wanted to talk…..about the frustration…” and where the father “doesn’t seem to attempt to inhibit the expression of this frustration or anger”.
The family report writer notes that “during his individual interview the father was uncontained in his views and feeling that he was discriminated against. It was surprising to observe how contained and child focussed he was when he was with the children. While with the boys he was warm and appropriate. He not only contained his own feelings of hopelessness he also was able to easily effectively manage the boys rough and tumble behaviour and their competition for his attention” ([68] March report).
(omitted) Contact notes speak highly of the father and comment favourably on his time with the children, where he provides boundaries and guidance to the children, supplies healthy lunches and engages in appropriate play.
The children are observed by the centre to be “happy, laughing, cuddling” when with the father.
The family report writer observed that “The father was able to divide his time and include both boys in play despite the boys being a little competitive for his time” ([48] November report).

Conclusion

I find that the father therefore has the ability to meet the needs of the children in a supervised environment.
As to whether the father will demonstrate the same capacity should unsupervised time occur is questionable.
As at the date of the hearing the father had not acknowledged or addressed his issues with anger, the father was unemployed, perhaps homeless and had no clear plans for the future.
As such this consideration factors heavily in determining what the father may need to address before time can progress to unsupervised time, if considered in the children’s best interests.

Maturity, sex, lifestyle and background of the child and parents and any characteristic of the child that the court thinks are relevant

The father’s current lifestyle raises concerns as to whether it is lifestyle which is conducive to spending unsupervised time with children.
Firstly, findings have been made that the father is involved in suspected criminal behaviour due to persons the father associates with and the various events that have occurred since separation.
Secondly it is unknown as to where the father has been living and where the father may live in the future.
The issue as to the father’s abode caused much in the way of evasive responses from the father during cross-examination.
From what could be ascertained from the evidence since separation:-
a)The father lived on a house boat which was subsequently destroyed.
b)The father lived with friends Ms K and Mr J but no other details were provided.
c)The father may have lived in his car.
d)The father cannot live with his parents due to their concerns that there are bikies after the father.
e)The father has refused to provide the mother or the ICL with his current addresses with all correspondence being sent to the parents who did not know how to contact the father as at the date of the final hearing.
f)The father was unable to say with any certainty where the father was living as at the date of the final hearing.
Thirdly the father is unemployed and there was no clear indication as to what attempts were being made by the father to obtain employment.
Fourthly the father is financially destitute and is in receipt of New Start allowance.
Lastly the father is not speaking to his father and appears to have little by way of support from his parents or siblings.
I therefore find that this is a consideration which weighs heavily in considering whether any unsupervised spend time with arrangements will be in the best interests of the children.

Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed order will have on that right

As this consideration has not been raised by either parent, then this consideration will not be factored in in determining the future parenting arrangements for the children.

Attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The father states that the mother is a “good mother”.
Unfortunately the father upon separation abdicated himself from all parenting responsibilities.
Further the finding of lack of insight puts into question the ability of the father to be child focussed.
This consideration therefore weighs heavily in determining the future spend time arrangements between the father and the children.

Family violence involving the child or a member of the child’s family

A finding has been made that the children were exposed to family violence.
Any orders therefore must reflect the need to protect the children from future involvement in such violence.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

These parties need final orders.
This is a consideration which will be taken into account when determining the parenting orders to be made.

Any other fact or circumstance

The parties have not raised any other fact or circumstance which is to be taken into account.

Overall conclusion as to the parenting arrangements for the children

Should the father spend time with the children?

The mother seeks that the father spend no time with the children as the father poses an unacceptable risk to the children based on the following:-
a)The father is unreliable, evasive and aggressive.
b)The father’s behaviour places the children at risk as the father lacks insight and acts with “aggressive belligerence”.
c)The father has been involved in drug distribution and drug use.
d)Where and with whom the father lives with is an unknown.
e)The father is the perpetrator of family violence.
f)The father is unlikely to comply with Court orders; such as when the father lied to the school about being able to see the children when the existing Court orders provided for supervised time.
g)The father is likely to remove the children from the mother.
The ICL does not agree with the mother, stating that whilst the father poses a risk, long term supervision orders should be made.
The standard of proof in determining whether unacceptable risk exists is the civil standard based on the balance of probabilities.
The factors to be considered in applying the civil standard were addressed by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362:-
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inference.”
As to what amounts to unacceptable risk was discussed by the Full Court in Johnson & Page [2007] FamCA 1235.
In conclusion the Full Court adopted the seven principal points to be applied in determining acceptable risk as set out by Hon. John Fogarty A.M. in his paper ‘Unacceptable risk – A return to basics’ within the Australian Journal of Family Law:
In summary the seven points are as follows:-
a)The best interest of the child will always be the decisive issue;
b)Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable;
c)Where past abuse is alleged, the Court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies;
d)A failure to prove past abuse in accordance with the Briginshaw test does not prevent the Court from considering the circumstances in determining whether unacceptable risk exits;
e)Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child;
f)The onus of proof to be applied in reaching any conclusion as to unacceptable risk is the ordinary civil standard;
g)The individual components in reaching that conclusion need not be proven on the balance of probabilities. The Court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard. The Full Court however expressed a word a caution in making a finding of unacceptable risk where none of the components are proven on the balance of probabilities.
In addition to determining the risk to a child, the Court must also consider the impact on the primary parent.
As stated by Full Court in R & C [1993] FamCA 62
“in upholding children’s rights to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary care giver concerning the child’s exposer to potential harm where such anxiety is likely to impact on that parent’s caregiving ability.”

Conclusion

The father is an abusive, reactive individual who is so caught up in his own issues that he fails to understand how his actions and words can create destruction around him.
There has been family violence with both parties contributing and unfortunately the children have witnessed this violence.
Both parties were involved in drug use including dealing although there is no evidence to support that the father is still using or still dealing in ICE.
Both parties associated with dubious persons and whilst the mother has moved on, it appears that the father has yet to dissociate himself with his former colleagues.
But in amongst all of the adult issues, the father has not been overly abusive to the children nor has caused the children any physical harm.

There has been emotional damage to X but this has been caused not only by the father but by the drama created by both parties in the breakdown of their relationship.
X has received help from counsellors and openly enjoys spending time with the father.
The father is repeatedly recorded as being appropriate with the children when spending time with the children, providing guidance and assurance and managing to park his frustrations and views whilst this time occurs.
The children want to see the father.
Is there risk to the children in continuing to see their father?
The answer is yes.
The father does need to get his act together.
On an internal level the father needs to do something about his anger and lack of insight.
On an external level the father needs to find a job and accommodation.
So is this risk unacceptable?
I find that the answer is no.
Up until the final hearing, the mother was of the same view.
The mother wanted the father to have a continuing relationship with the children.
But for that to happen the mother wanted the father to provide stability for the children as well as a safe environment and for the father to stop associating with troublemakers and having brushes with the law.
But the mother at the final hearing changed her view to wanting to seek a no spend time with order and unfortunately the father’s appalling behaviour at the hearing gave momentum to this view.
However, whilst credibility and attitude of a party go a long way in assisting a determination, it is only some of the many factors that must be considered by the Court in determining a parenting matter.
The findings as to the section 60CC considerations show that:-
a)A meaningful relationship between the father and the children should be maintained and nurtured.
b)The children love their father and enjoy their time with the father.
c)The father acts appropriately with the children when spending time with the children.
d)The father is able to meet the children’s needs in a supervised setting.
e)There has been family violence but this conflict is able to be contained with the making of detailed orders whereby the contact between the parties is minimalized.
f)There is no evidence of current drug use by the father and the father has consented to orders whereby the father will not consume drugs or alcohol when the children are in his care.
These findings support that the Briginshaw test has not been met.
As a finding has not been made as to unacceptable risk, then I find that an order for no time between the father and the children is not warranted.
The issue then is whether the father’s time with the children is to be supervised or unsupervised.

Should such time be supervised or unsupervised?

The mother supported by the ICL is seeking for supervised time to occur between the father and the children.
I agree that any resumed time needs to be supervised.
On its face, supervised time appears to be the only available solution in this matter because of the father’s anger issues, his lack of insight and his precarious financial position.
The evidence supports that supervised time is a workable arrangement based on the following:-
a)Supervised time has occurred in the past and has worked well.
b)The children want to spend time with the father and enjoy their time with the father.
c)The father behaves when spending supervised time with the children.
d)Supervision would avoid the necessity of the parties seeing each other or speaking to each other and therefore reduce the risk of the children being exposed to parental conflict.
But unfortunately in this matter there are inherent problems with making any order for supervised time:-
a)The father in the past has been very tardy in making arrangements for supervised time, taking months to organise time.
b)The father in the past has had disputes with contact centres which have resulted in their services being withdrawn ((omitted)).
c)The father ceased supervised time with the children due to financial restraints.
d)The father maintains that these financial restraints will continue to impede his ability to spend supervised time with the children.
e)The father does not accept that supervision is required and therefore is opposed to any form of supervision.
f)There is concern that the father will not adhere to an order for supervised time.
The father however assured the Court that he would spend supervised time with the children if it was ordered.

Conclusion

Having considered these inherent problems I find that it is in the children’s best interests that supervised time recommence between the children and the father.
I further find, however, that before such time recommences the father must select the location of the contact centre and attend to the intake in a timely manner.
If this process is completed by the father, then supervised time is to resume.
If it is not completed, then supervised time is not to occur.

Should time progress from supervised time to unsupervised time?

The mother and the ICL submit that there is no choice open to the Court other than for a long term supervision order.
In submissions counsel for the mother stated:-
“Nonetheless the boys have – it would seem – on all accounts….utterly enjoyed the time with their father. The tragedy of the case is that we have absolutely nowhere to go in terms of moving from supervised time to unsupervised time.”
It is acknowledged by the mother and the ICL that a long term supervision order has its limitations as it raises the question as to whether a meaningful relationship can exist and be maintained in the artificial surroundings created by supervised time as a contact centre.
Further, as pointed out by the ICL in submissions (after citing the decision of Champness & Hanson [2009] FamCAFC 93-377 at 291) “the emotional wellbeing of the children cannot be ignored” and “consideration must be given to the long term effects on the children of an indefinite order for supervised contact in a children’s contact centre”.
The family report writer in cross-examination expressed strong views as to the practicality and effect of a long term supervision order:-
a)In respect to the immediate effects on the children:-
“I would like to just preface it with, it’s ideal for children to have ongoing relationships with both parents……However that has to be weighed up against the risk factors. Supervised time is intended to be an opportunity to build a relationship which then goes on to be unsupervised, in most instances. And the reason for that is because the relationship you develop within a supervised setting is not the same as a normal relationship – or a normal parental relationship which includes all parts of a child’s life and gives, you know, parents and children an opportunity to be a long-term part of their life. So that’s one danger of ongoing supervised time. The other danger, leading on from that, is that children – especially as they get older and reach adolescence – then begin to question, “Well, why is it that my relationship is like this?” and, “Why is it that, you know, dad can’t change?” so “that dad can’t meet the requirements to have time with me in a unsupervised setting?........obviously in a supervised setting some of the benefits of knowing a parent aren’t as readily available. Like being part of the community that that parent belongs to, their extended family etc.”
b)As to the long term effects on children:-
“as children get older, obviously, there’s practicalities of attending supervision session – centres. There’s not the flexibility, obviously, with supervised time of being able to change things to suit just general lifestyle and moving – you know, doing things that adolescents then do, or older children do. It becomes more of an interference in general day-to-day life…….. But as they get older they will have more and more events and friendship things. They will want more autonomy in choosing how they spend their time as they hit adolescence”
c)In respect to the financial and emotional strain of long term supervision on the parties:-
“There’s costs to both the parents. Both financial – which I understand from the previous contact centre was quite substantial – and then also emotional. And whilst the mother is saying that she would agree to that, I would be concerned about the cumulative effect of the ongoing going to the contact centre and the telephone calls if they are, as you’ve said, continue to be problematic on her”.
d)As to the impact on the mother of long term supervision orders:-
“On the mother as well as a parent for having the stress of – if the relationship is poor enough that it needs – or dangerous enough that it needs to be supervised forever then that also indicates that there’s a level of stress on the mother to maintain that relationship”.
e)As to the positive aspect of a long term supervision order:-
“The possible positives are that it allows the children to continue to have a relationship with their father, of some sort, which has then the opportunity to move to an unsupervised setting – even if it is as an adult – so that they’ve known – known that person continuously. It also – you know, it gives a smaller role of – the father would still have a smaller role in their life in being able to, you know, affirm and praise them when they’ve done good things. So helps with their identity, the gender roles. Those sorts of things”.
The ICL submitted in support of a long term supervision order that:-
“surely this relationship with the father is important and significant and valuable to these children and that the preferred interpretation when you’re assessing the benefit of a meaningful relationship is a perspective approach”.

Conclusion

The Full Court in Moose expressed very strong and clear views about the difficulties of long term supervision orders cautioning at [119]:-
“The undesirability of, and practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C4.1.1 and 4.1.2…..In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case ‘objectively viewed reveals the potential of unacceptable risk to the children if contact with the father is not supervised…’ then referred to the difficulty associated with long term supervised contact and said ‘the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests…whilst supervised contact in this case will protect the children from any potential physical harm, the effect on the emotional well-being cannot be ignored.’”
To be effective a supervised time should only be a stop gap measure with arrangements increasing and changing to unsupervised time once time has passed and the parties have addressed the issues which initially led to supervised time occurring.
I find that the father in this matter could progress his supervised time to unsupervised time, but only after the father has improved his circumstances.
Firstly the father needs to address his anger and obtain a report from his treating therapist which supports unsupervised time occurring.
Secondly the father needs to obtain employment. This is not only to provide the father with some financial security but focus his energies into a worthwhile pursuit which hopefully will lessen his chances of brushes with the law and associating with undesirable persons.
Thirdly the father needs to acquire secure accommodation. This will provide the mother with the assurance that the father is in a stable environment and moving forward with his life.
Once the father has attended to these requirements then time between the father and the children can progress from supervised to unsupervised time for day time periods initially.
If day time periods go well then I encourage the parties to discuss an increase of time.
If, however, the father chooses not to take these steps then I find that given the children’s close bond to the father and their enjoyment of time that the unusual step for a long term supervision order is warranted and in the children’s best interests.
As to the frequency of the visits, I give significant weight to the view of the family report writer that once every two months is sufficient.

Additional orders

Telephone calls

Telephone calls between the father and the children have been problematic.
The mother complains of:-
a)Being abused during such calls to the mother.
b)Speaking to the children in an aggressive manner.
c)X being berated.
d)The father talking to the children about adult issues and making promises about spending time which cannot occur.
The father confirms that this is occurring with the father stating that conversations between he and the mother often ended in arguments ([28] November family report).
The father complains that telephone time has not been working because:-
a)The mother is “making the children hang up from telephone conversations with him” ([28] November family report).
b)The mother puts the telephone:-
“on speaker…..listens in on conversations and interjects if she does not agree or if I attempt to ask which school/childcare the boys are attending” ([84] father’s September 2013 affidavit).
c)The mother changed her telephone number without informing the father of the new number ([28] November family report).

Conclusion

I find that if the father is spending time with the children then telephone calls are in the children’s best interest.
However, to avoid adult conflict the calls should be made by the children to the father.
As to the frequency of the calls during supervised time, then once a month is sufficient.
Should time increase to unsupervised time then telephone calls once a week are appropriate.

Sending of gifts, cards and letters

There is a real risk in this matter that the father either will be complacent and do nothing to put supervised time in place or that if the father does take the appropriate steps, the father will not keep up the regime.
If that is the case then time must cease by the father with the children.
This unfortunately is the only option as it is not fair on the children to have an unreliable father who turns up out of the blue.
Further, it is not fair on the mother who is the sole provider for the children; physically, financially and emotionally.
However, a no time order should not result in the father being a complete unknown to the children.
I adopt the recommendation of the family report writer that in the event the father is not spending time with the children, then gifts, cards and letters can be sent by the father to the children, with the mother to encourage the children to respond.

I certify that the preceding three hundred and one (301) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date: 9 November 2015

[2015] FCCA 2887

9 November 2015

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