GABLER & GABLER

[2021] FCCA 562

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABLER & GABLER [2021] FCCA 562

Catchwords:
FAMILY LAW – Parenting – Father seeking an order permitting him to spend time with his son aged 7 – where the child has spent limited time with the father since separation in 2016 and no time with him since late 2017 although he does have telephone communication with him – where the child’s brothers aged 17 and 13 refuse to spend time with the father – where the father perpetrated family violence during the relationship and subjected the older  children and their step-brother to harsh treatment – where the father says that he has changed – where the father commenced but was exited from a parenting course K – where the mother does not intend to stop the telephone calls but seeks an order that time occur at her discretion – where this is likely to be tantamount to a no time order but where in the circumstances of the case no other option is open to the court.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Mertens & Mertens [2020] FCCA 207

Applicant: MR GABLER

Respondent: MS GABLER

File Number: NCC 3068 of 2018

Judgment of: Judge Terry

Hearing date: 19 January 2021

Date of Last Submission: 19 January 2021

Delivered at: Newcastle

Delivered on: 26 February 2021

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Guyder

Solicitors for the Respondent: Harpers Legal

ORDERS

1. The child X born 2013 (“X”) shall spend time with and communicate with the father as determined by the mother NOTING THAT X is currently having telephone communication with the father each Friday with the father calling the mother’s mobile telephone number between 6.00pm and 8.00pm but that the continuation of those calls is at the mother’s sole discretion.

2. The father is at liberty to send X a card and gift on or about the date of his birthday and at Easter and at Christmas and the mother shall unless there is an issue with the content of the card or the suitability of the gift ensure that these are passed on to X.

3. Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any member of that parents’ family to or in the presence or hearing of X or from permitting X to remain in the presence or hearing of any other person doing so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3068 of 2018

MR GABLER

Applicant

And

MS GABLER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Mr Gabler and Ms Gabler have three children: Y, who is 17, Z, who is 13 and a half, and X, who is seven. 

3. In October 2018 the father commenced proceedings in this Court seeking orders that the parties have equal shared parental responsibility and that the children spend regular time with him.

4. Y and Z had ceased spending time with the father over a year prior to that, and in Y’s case, close to two years prior to that. It was clear from a Child Inclusive Child Dispute conference that occurred after the father filed his application that they were resistant to spending time with the father, and no order was made during the course of the proceedings for them to do so.

5. On 1 December 2020 the father consented to final orders that the children live with the mother and that Y and Z spend time and communicate with him in accordance with his wishes.  He also consented to a final order that the mother have sole parental responsibility for the children.

6. The issue which remained in dispute was whether an order should be made about the father spending time with and communicating with X. 

7. X had also ceased to spend time with the father a little over 12 months before he commenced proceedings, but he was much younger when the parties separated and it was clear at the Child Inclusive Conference he did not have the same memories of the father as the older boys did and would perhaps at that stage have been receptive to the idea of spending some time with the father. No orders were made for this to occur but orders were made for the father to have telephone communication with X, and that has been happening since mid-2019, although it had petered out prior to the trial.

8. The issue in dispute at the trial on 19 January 2021 was whether an order should be made for X to spend time with the father.  The father said that all he wanted was to be able to see X and if the Court ordered that his time be supervised by contact centre A or contact centre B or similar he would pay for it. He said he was also seeking to have regular telephone communication with X.

9. The father either minimised or explained away the allegations the mother made about family violence and the allegations she made that he had abused the children and her older son, C.  It was his case the mother had poisoned the children against him, and that while the situation with Y and Z was irretrievable, X was still interested in spending time with him and was young enough for that to happen successfully if an order was made.

10. The father is living in Town D and has repartnered. He has a daughter, E, who is about two, and he said it was important for X to have a relationship with E and the father’s new family unit.  He said he had no current mental health issues and was dealing appropriately with his pain management issues and did not pose a risk of harm to X.

11. The mother proposed that X spend time with and communicate with the father at her sole discretion, but as is often the case when that order is sought, the reality is that if the Court made that order it is unlikely the mother would consent to time occurring.

12. The mother said that the father was violent to her during the relationship and was violent within the home and that he belittled, degraded and assaulted her son C. She said that Y and Z had vivid memories of what had occurred, which is why they did not want to see the father.  She said she had no confidence that all those problems were in the past, because the father had made few admissions about the family violence and had been exited from the parenting course K.

13. She was also concerned about the father’s mental health and his use of painkilling drugs. She considered that he posed a potential risk of harm to X and was a very poor role model for him and she did not support the court making an order for regular time.

14. The mother is living in Sydney. She has repartnered with Mr F, who has fifty-fifty care of his children, who are 10 and 15. She said that X was part of a secure family unit with no turbulent issues going on within the home and it would not be in his best interests to make an order that he spend regular time with his father.

The evidence

1. The father relied on his amended initiating application filed on 10 May 2019 and his affidavits filed on 3 October 2019 and 2 July 2020. 

2. The mother relied on her affidavits filed on 16 December 2020 and the affidavit of her oldest child, C.

3. There is in the material an affidavit from the father’s partner, Ms G.  That was filed some time ago, on 4 October 2019.

4. A Child Inclusive Child Dispute memorandum was prepared by Ms H, a family consultant, on 21 January 2019, and that was in evidence, although Ms H was not made available for cross-examination and there is a limit to the weight that I can place on anything controversial in that memo. No family report was prepared in the matter.

Background

1. The mother and father commenced a relationship in 2002 when they were 23 and 28 respectively, and commenced cohabitation shortly afterwards. 

2. The mother’s son C was born 1999.  He was about three when cohabitation commenced and he lived with the parties throughout the relationship.

3. The mother and father married in 2006, and they have the three children: Y born 2004, Z born 2007 and X born 2013. 

4. The mother was the children’s primary carer during the relationship.  She also worked in a business the parties established, and the father was employed in that business.

5. It was the mother’s case that the father always had a short fuse and that he regularly picked on and abused C. She said his behaviour became worse after he injured his back for the second time in 2011 or 2012 and that he had issues with pain management, anger and irritability. The mother described an assault she said occurred in 2015.

6. The father made minimal admissions in response to the mother’s allegations about violence and about his behaviour.

7. The parties separated on 24 January 2016 when the father moved out of the home. In the following few months – or, perhaps, six or eight months, I have not got the time exact – there was an occasion or occasions when the father slept over at the home and perhaps the relationship lingered on a little bit, but the final separation was really on 24 January 2016.

8. The mother said that she encouraged the father to come to the home to spend time with the children and that he came to the house to see them. There were also telephone calls. However it was her evidence that Y was reluctant from the start to spend time with the father and was never willing to take part in the telephone calls.

9. In May 2016 there was a very unpleasant incident between the mother and the father which occurred at a caravan, and I will refer to that later when discussing family violence. The mother alleged she was assaulted. The mother bit the father during that assault, she said to stop him harming her.  The mother was charged and an ADVO was made for the father’s protection, but the father did not pursue the charge and the ADVO was dismissed. At trial the father denied that he was the aggressor and said that the mother was.  

10. There was an incident on 5 June 2016 when the father came to the home on the day of C’s birthday.  He became upset and there was no dispute that he kicked the screen door off its hinges. He was charged with malicious damage and an ADVO was made for the mother’s protection on 18 August 2016. 

11. The father was convicted of malicious damage but he gave some evidence at the trial which he said put what happened to the door in a different light, and I will refer to that later.

12. I accept the mother’s evidence that between September 2016 and the end of that year she facilitated time between the children and the father in public places.  The father conceded that something of that nature occurred, although he complained about what the mother was offering. The mother said, and the evidence supports the fact that this was a valid concern, that the father had some intermittent mental health issues during this period which meant that regular time was not established.

13. The father last spent time with Y in about December 2016, his time with Z ceased in mid-2017, and his time with X stopped in November 2017. The mother said that in reality everything had largely stopped in the April 2017 but time with Z and X occasionally occurred until those dates that I have given.

14. The mother said, and I have no reason to doubt and it appears to have been due to things that were going on in the father’s life, that she did not hear from the father again until 2018 when he attempted to organise mediation.

15. Mediation took place in 2018 and that resulted in an agreement in August 2018 for the father to have telephone communication with Z and X. However in October 2018 the father filed an application in this Court. He sought an order for telephone calls between him and Z and X each Friday, and an order was made for that to occur. It did not take very long before the calls with Z petered out but he continued to have telephone communication with X.

16. In January 2019 a child inclusive child dispute memorandum was prepared. Y and Z told the family consultant that they did not want to see the father, but X showed some interest. However no agreement could be reached about the father spending time with the children and in May 2019 the matter was listed for trial in November 2019.

17. The trial did not proceed in November 2019. The father proposed that the matter be adjourned to give him time to undertake a perpetrator’s course.  It may also be that the matter was over listed and would not have been reached anyway, I cannot remember that fine detail, but regardless, the father offered to engage in the parenting course K and the trial was adjourned to allow him time to do this.

18. An order was made for him to have telephone communication with X each Friday, and there was also an order that he be able to commence supervised time with X once he had done five sessions of the course, and that he be able to commence unsupervised time with him once he had completed it.

19. The father was accepted into the course. It did not proceed as quickly as it normally would have because of COVID 19 issues, but he was able to commence the face to face group sessions in August 2020.

20. After completing five of those sessions he asked for supervised time to commence and an arrangement was made for that to happen with a private supervisor called parenting course C.

21. The first visit was scheduled for 17 October 2020. However on 2 October 2020 the mother became aware that the father may no longer be in the course. She had always been involved in the arrangements for the course because that is how those courses operate and she rang the course providers and they informed her that the father had been exited from the course on 21 September 2020.  As a result, the mother would not agree to the supervised time with parenting course C commencing.

22. The matter was listed for trial commencing on 1 December 2020.

23. On 20 November 2020 the father sent the mother a message saying that he would not be calling X anymore and he was not going to continue with Court. However on 1 December 2020 he turned up and told the Court that he did want to take part in a hearing.  Once again, the matter could not be reached, but on this occasion it was put off for the least possible time and the trial was conducted on 19 January 2021.

The family violence allegations

1. The mother made detailed and extensive allegations about family violence. She said that after Y was born the father became verbally abusive and that he would snap his fingers at her and call her an idiot and a bitch.  She said it escalated and he began yelling at her and throwing things around the house. She said as follows in her affidavit:

   It was not uncommon for Mr Gabler to say horrible things to me, I recall Mr Gabler saying to me on one occasion, “I hope you die painfully from cancer and that your boys piss on your grave.”

   He also called me a “slut” and a “cunt”.

2. The mother then said, and this is a bit sad because it is not uncommon to find this in cases where family violence is alleged, that after the father subjected her to that abuse it was followed by him telling her that he loved her, and that this was a bit of a cycle during the relationship.

3. The mother said that the father would punch doors and walls, punch and barge the boys’ doors so the frames split and punched holes in the parents’ bedroom door and the wardrobe. She said he would also remove C’s doors from the hinges. 

4. The mother described some incidents of family violence which occurred notwithstanding that third parties were there, which suggest a real inability of the father to control himself if true. 

5. She referred to an occasion when the father threw a beer bottle at a sliding door. She said that the bottle shattered and glass went into X’s high chair.  She said friends were there for dinner and they tried to calm the father down but he continued to be extremely angry and called C a black cunt (C, I pause to add, has a Country I father) and that C had to leave the house and sleep at a friend’s house.

6. She said the father also did things such as stopping her access to bank accounts and changing PIN numbers, and that she suffered embarrassment at a grocery store or a petrol station as a result.  She said that he would kick dogs and once threatened to shoot the dogs.

7. She described an incident where she said that she and X were thrown out of the house and locked outside with no water on a very hot day.  She said the police were called and neighbours helped them and gave them some water until the police arrived.

8. The mother said that there was an occasion in 2016 when she went to Tasmania and left the boys with the maternal grandfather. She said that father saw the boys in a car with the maternal grandfather and threatened to kill the maternal grandfather and put his hand through the window and around his neck and threatened to choke him. She said that the boys witnessed this.

9. The mother described an incident on New Year’s Eve 2014/ New Year’s Day 2015 when she said the father pushed her head through the wall near a light switch and punched her in the face and chest repeatedly while she was lying on the bed.  She said she tried to grab her phone and the father threw it away.  The mother’s evidence was that Y and Z came in and were screaming at the father to stop and she said she recalled thinking, “This is it.  I’m going to die”.  She said the father did stop though and she got the boys and left the house.

10. The mother alleged that there was a constant problem in the home with the father abusing and belittling C and there was an occasion where he tore his shirt off him. She alleged that police were called on a number of occasions. She detailed an occasion when she said the father was holding up her arm and she called out for C to help. C intervened, and the father hit C. She said that the police were called and that she now regretted convincing C not to press charges. 

11. She referred to another occasion when she said the father hit C in the back of the head when C would not do what he wanted.

12. There were also the two occasions that I have referred to earlier that happened in 2016. 

13. The mother alleged that in May 2016 she went to the caravan the father was living in. The father was there with a girlfriend.  She said the father grabbed her, dragged her down the steps of the caravan and pinned her to the wall and that she bit his arm to get away. She said she suffered significant bruising and grazing on that occasion.

14. The mother alleged that on C’s 17^th birthday 2016 the father came to the house. He wished C happy birthday and all C did was grunt at him. She said the father became very agitated and upset and began demanding money. She said that she called a friend and she alleged the father started to smash up the house and kicked the screen door off its hinges.  She said one of C’s friends called 000.

15. The father denied most of the mother’s allegations. He agreed that toward the end of the relationship there were many arguments, but he said the mother would tell him to get out and threaten to call the cops and say he had hit her if he did not, and he said he would leave.

16. He said the mother was verbally abusive to him and did not support him with his back pain and called him a fat lazy cunt.  He said the mother would slap and push him during arguments and that he never hit back but just blocked her blows. He agreed the children were distressed at seeing arguments.

17. He said the mother threw a phone at him and it hit him on the head, bounced off the wall and made a hole in the gyprock, and he said that on another occasion the mother punched a wall and also kicked a hole in the wall lower down.

18. The father admitted pushing the mother and punching a wall on the New Year’s Eve occasion, but he said that it was because he saw a shadowy figure.  The shadowy figure threw a jewellery box at his head and he got up and pushed the shadowy figure and realised it was the mother and then punched the wall in frustration.

19. The father said that after the separation in January 2016 the mother and C were both very rude to him. He described the incident that happened on the birthday in June 2016. He said that he did demand money, but what he demanded was the money he had given C for his birthday.  He said he wanted it back as a result of C’s behaviour. He said the friend the mother called to the house threatened him. He wanted to leave but he found the screen door was locked and he could not get out so he kicked in the screen door to escape from a threatening situation. 

1. The father admitted he was charged with malicious damage and pleaded guilty, but said that in reality he was just trying to escape and was not trying to cause harm.

2. The father alleged that in August 2016 the mother threatened him with a knife, and he alleged that Z and X were there and looked terrified.  He said he had no idea why the mother did it. He said he did not report it to the police because he did not think anyone would believe him.

3. The father denied ever harming or abusing C and said he brought C up as his own.

4. I have diametrically different versions of events about family violence. The father was adamant to the end of the trial that almost everything the mother said was a tissue of lies. He said he was exited from the course because he would not make admissions and he was not going to admit to something he had not done.

5. There is quite a bit of evidence which casts doubt on the father’s denials and supports the mother’s evidence about what occurred during the relationship. 

6. The father has had a longstanding issue with pain, and there are references in doctor’s records in the subpoena material to the father admitting to behaving quite aggressively and in a dysregulated way as a result.

7. In an assessment on 26 July 2012 he is recorded as reporting relationship difficulties, having a short fuse with wife and kids, stress at work and increased alcohol consumption including a case of beer in one night. 

8. The father did some pain therapy following that consultation but there is another report in October 2014 which includes the following:

   Pain is getting no better and mood irritable and getting worse.

9. On 16 December 2014 the father was referred for counselling and the notes include the following:

   Needs help with irritability, frustration and anger issues.  Stressed out about money and his family and arguing with his wife.

10. On 9 February 2016 the following appears:

    Quality of life is tremendously impacted on by his pain. His sleep is disturbed and his mood is very low. He becomes quite angry and distressed and there is considerable family distress and he is currently separated from his wife.

11. All of those things suggest that the father suffered issues with anger, irritability and stress during the relationship.

12. The children’s counselling records support the mother’s version of events, and I am not talking about what they said to the family consultant, but their counselling records.

13. Z’s counselling notes from 2017 record that he was sad, angry and scared about his Dad and include the following:

    Says his dad would hit him often and hurt his brothers.

14. Y’s notes from 2017 include the following:

    Said he had been assaulted by the father and there was ongoing abuse of his mother and older brother. Said he doesn’t want to speak to the father due to the abuse.

15. In regard to the incident at the caravan, I have the mother alleging she was assaulted and injured and the father saying that he did nothing and the mother bit his thumb. 

16. The mother went to the doctor following this incident. This was long before Court proceedings commenced and the mother had no motive to try and manufacture evidence.  She told the doctor that she had been assaulted and that there had been previous domestic violence that had not been reported. The doctor recorded her injuries, which were bruising and grazing, and that supports the mother’s version of events that she was dragged and manhandled.

17. There are little snippets in the evidence which suggest that the father may not accurately remember the past. During cross-examination he said that he had only ever made one threat of suicide.  The subpoena material suggests that there were four occasions when the father either took tablets or threatened to take them.  When all that was put to the father he said he had forgotten about it, so I have some concerns the father may not have the clearest memory of the past.

18. As the mother’s counsel also pointed out in submissions, the father kept saying at trial that he was a changed man and that leads to the question, changed from what? That again gives credence to the mother’s evidence that things were much more dire, threatening and dangerous for her during the relationship than the father is now willing to admit.

19. In broad general terms I accept the mother’s evidence about what occurred during the relationship and I do not accept the father’s denials.  I also do not accept the father’s assertion about the mother being seriously violent to him.

X’s best interests

1. Against that background I have to consider what I am going to do in relation to orders about X. To decide that I must have regard to X’s best interests, and to determine those I must have regard to the matters in s. 60CC (2) and (3) of the Family Law Act.

2. There are additional and primary considerations. I am going to start with the additional considerations, and the first of those is the views of the child and the weight to be given to those views. 

3. X told the family consultant in January 2019, when he was five, that he liked talking to the father on the phone.

4. X was very young when the parties separated and he would be very unlikely to remember the things his brothers do, and he may have a different attitude to his brothers about spending time with his father.

5. I must consider the nature of the relationship between X and each of his parents and any other relevant person. 

6. The mother has always been X’s primary carer. The children raised no issues about her parenting at the child inclusive conference, and the mother said that X had a good relationship with her partner and the other children in her household at present and I have no reason to doubt that.

7. X has not seen the father for at least two and a half years.  He has spoken to him on the phone, but that ceased three months ago and I will refer later on to how that came about.

8. The father said that when he talked to X it went well.  He said, for example, that X talked about golf.  The father said X told him that he was excited about the prospect of seeing him. 

9. I have some reservations about the father’s reliability as a witness, but until fairly recently X had spoken regularly to the father since the orders were made. They do not have a relationship at the moment, because X has not spoken to him since November.  However there may be some embers that could be stoked so that there would be a possibility of them having a relationship in the future. 

10. The father has just interjected to inform me that notwithstanding the incident last November he is currently having telephone communication with X.

11. I must consider issues of child support. 

12. The father said he had been paying $155.00 per week for years.  I will make some reference later to the father’s evidence about the mother demanding money and telling him he could not see the children unless he paid her, but there is nothing to suggest that either party’s present position in this case is motivated by child support considerations.

13. I must have regard to the extent to which each party has taken or failed to take the opportunity to spend time with the children, communicate with the children or make decisions about them. 

14. X has spent limited time with the father since the ADVO was made in 2016, but the father has been very interested in spending time with him since he commenced the proceedings in 2018.

15. I must consider the practical difficulty and expense of the child spending time with the father. 

16. The parties do not live that far apart. The father is in region J and the mother in Sydney, and in terms of what the father is proposing about time, practical difficulty and expense is not a consideration.

17. I must consider the likely effect of any change in the child’s circumstances.

18. As if often the case that is a big issue which is best considered in a conclusion to the judgment after all the other findings have been made.

19. I must consider the capacity of the parties to provide for the child’s needs, including his intellectual and emotional needs.

20. The mother questioned the father’s parenting capacity on a number of levels.

21. She questioned his capacity to provide for X’s emotional needs. She said that he would often say inappropriate things to the children on the telephone, blaming the mother for the fact that he was not seeing them and crying on the phone. 

22. She referred to a visit at McDonald’s early on where she alleged, and I have no reason to doubt, that the father said that he was “not feeling loved by anyone today”. 

23. The mother also said as follows:

    Y was not involved in these phone calls or visits, as he was clear he didn’t want to. On the odd occasion, Mr Gabler would ask if Y wanted to talk. He also passed on a message for his birthday in 2017 but didn’t wish him Happy Birthday directly. On 5 April 2017, when asked, Y stated he didn’t want to talk to Mr Gabler. Mr Gabler said he loved and missed him, and Y responded that he didn’t. This was unusual for Y, as usually he keeps it all inside so I wasn’t expecting him to respond in that way. After this, Mr Gabler sent me a text message saying “I bet you’re proud of that” and “Ask Y if I died would he feel better then or miss me then.”

24. The mother said that the father was often full of self-pity and was self-centred in his approach to the children, and there is some sign that the risk of the father behaving like that may not have passed.  The mother said as follows in paragraph 41 of her affidavit:

    On 19 November 2020, I received text messages from Mr Gabler about calling the boys and speaking to them all on Friday. In these messages, Mr Gabler said “after this you won’t hear from me again, you can live your life….I won’t bother you with court or anything …I love my sons with all my heart and I just want them to know this. Thank you.”

25. The mother said that on 20 November 2021 the father called at the usual time to speak to X.  She said that he asked to talk to Z and Y, but they would not come on the phone. She said that the father told X that he had tried to see him but was not going to try any more, and that if the children wanted to see him one day they could and he loved them.

26. She said that X started telling the father about his upcoming birthday, and the father did not respond to that and just kept asking about Y and Z and whether they would come to the phone. She did say, however, that on the birthday he sent X a message.

27. That sort of response by the father was just full of self-pity and not focused at all on X’s needs. The father now tells me that he has since resumed speaking to X, but children should not have to cope with that rollercoaster of emotion.  It can be very difficult for them and cause them to feel some guilt over the way their parents are feeling, so I have some concerns about the father’s capacity to provide for X’s emotional needs as a result of his quite recent behaviour.

28. The mother expressed concern about the father’s drug use and his use of painkillers. 

29. There was no dispute that the father used cocaine during the relationship.  The mother gave some quite extensive evidence about that, but the father has been drug tested during the course of these proceedings. He has not tested positive for cocaine or other illicit drugs and it is not open to me to find that he currently has a problem with illicit drug use.

30. The issue of the father’s use of pain medication is a concern, because the father has returned, in at least one drug test, results showing quite heavy use of oxycodone, and one of the tests that he did in July 2020 showed a higher rate for that than an earlier test, suggesting the father was not trying to reduce his oxycodone use. 

31. There is also quite a bit of evidence in the subpoena material about the father’s doctors trying to get him to reduce his use of pain medication and being concerned about some of his requests for the pain medication.

32. To his credit the father has taken positive steps to deal with his use of the pain medication. He has engaged in the ADAPT program in the past. His explanation for having the high level of oxycodone in the July 2020 result was that he had just recently had an operation. 

33. I am not a doctor and I do not have a doctor available to interpret results and on the basis of the evidence available to me it is not open to me to find that the father is abusing his pain medication.

34. The father has had some quite significant issues mental health issues in the past.

35. The subpoena material shows that in December 2015 he was taken to a psychiatric ward where he said he was struggling with marital issues. It appears that the mother called the police because the father was threatening to kill himself by overdosing on his pain medication.

36. On 16 May 2016 the father took a handful of tablets and called a friend.  He was again taken to the Emergency Department.

37. On 16 June 2016 he took a handful of tablets while intoxicated after the incident where he had an argument at the mother’s home on C’s birthday.

38. There was also an occasion on 13 January 2017 when the father was drinking all night and he took 10 OxyContin and 10 Endone. He texted a friend saying he was sorry. The friend called an ambulance and the father was taken to hospital.

39. Finally the mother said, and I accept her evidence because it is entirely credible in the light of all the other evidence about the father’s mental health, that there was an occasion after separation when the father sent her a picture of himself with a noose around his neck, sticking a finger up at her.

40. There is clear evidence that at least in the period 2015 to 2017 the father was in some quite dire straits in relation to his mental health, and on a four occasions he was taken to hospital because of threatening to kill himself or having taken too many tablets.

41. The father’s case was that his mental health issues were in the past. He said that his back pain and his arguments with his mother sometimes led to him feeling suicidal. He said he was in a very different place in his life now.  He had a job, he had a young daughter, E, he was in a relationship with someone who did not cause him to react in the same way as the mother had and he was simply a different person now.

42. I cannot find that the father is using drugs, based on the state of the evidence. I cannot find that he is abusing his pain medication. However the father has had some significant mental health issues historically and he has not appropriately dealt with the family violence issues as I have previously discussed, and he needs to understand that the fact that he is sitting there saying he has changed and is in a different place in his life does not necessarily cut it with the mother. She has no yardstick against which to judge that, and it is difficult for her to trust that those changes have occurred.

43. I referred earlier to the family violence, and that is a significant issue in the case, because the mother described a very lengthy period of time in which the father acted out, was violent and damaged property.

44. The father volunteered to do the parenting course K and he enrolled in it. He was accepted into it in 2019 and he engaged in the group sessions in 2020, but he has been exited from the course because the course providers were extremely concerned about his attitude.

45. It was not just the issue of how many admissions he was prepared to make. They were also concerned that they simply could not budge him off a mindset that the behaviour was mutual and the mother was partly to blame for it. From their perspective, with minimal admissions and that sort of attitude, they could see no prospect of the father changing, and therefore they told him that he could not continue to attend the course.

46. That feeds back into what I said a few moments ago. The father wants the mother to believe that he is a changed person.  She does not see him on a day-to-day basis, so she cannot judge whether he has changed from seeing him, and she is confronted with a situation where he has engaged in the course, and the course providers have been dissatisfied with his level of engagement with it and have exited him from the course. 

47. The father needs to understand that in those circumstances it must be extremely difficult for the mother to accept his assertion that he has changed.

48. I must consider whether there are any family violence orders.

49. An ADVO was made against the mother in May 2016 following the incident at the caravan, but it was discharged when the father did not follow through with the police.

50. An ADVO was made against the father in August 2016 after he pleaded guilty to malicious damage. It was in place for 12 months but there is no current family violence order.

51. I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.

52. I want to return here to what the father did in November 2020.  He had been talking regularly to X on the telephone. He had been pursuing time with X through the court system although he had reluctantly given up on achieving anything with Z and Y. Then, at the end of November, he had a dummy spit and he told the mother that he was not going to go on with it, and he was not very engaged with X on the telephone on that occasion, even though X wanted to talk to him about his birthday.

53. The father got over the dummy spit fairly rapidly because he turned up in court on 1 December 2020, but that sort of behaviour does not suggest a very good attitude to X or the responsibilities of parenthood.

54. I must consider whether the Court should make the order least likely to lead to further proceedings. 

55. The orders sought by the mother are the orders least likely to lead to further proceedings but for reasons I will discuss later they could still lead to that.  The orders sought by the father contain an inherent risk of further proceedings, but I will also expand on that a little bit later.

56. Before coming to a conclusion I must return to the primary considerations, and the first of those is the benefit to child of having a meaningful relationship with both of his parents.

57. Provided that they can do it safely and without being emotionally burdened, children benefit from having a relationship with both of their parents. 

58. X has a good relationship with his mother and there are aspects of the father that X would benefit from knowing about. When the parties were together they went camping and fishing.  The father was talking to his pain counsellor at one stage about trying to get back into fishing.  The father is a tradesman, so he learnt trade skills, and X could well benefit from having the father in his life so that he could learn some of those skills from the father.

59. The father also has a young daughter E and there would be a benefit to X in being able to have a relationship with his little sibling.

60. However it would only be beneficial for X to spend time with the father if he was safe and not emotionally burdened.

61. The father said that he did not have a relationship with Z and Y because the mother had poisoned them against him.  In support of this he attached to his affidavit some text message the mother had sent him and they lend some credence to his claims.   

62. The mother admitted that she had told Y that the father was responsible for the former matrimonial home being sold. There is evidence that she coached X to repeat, “I hate you, Daddy”.  There was no dispute that she changed the father’s name on her phone to “Soul Destroyer” and used a foul image to go with it, and the father said the children had to use that phone to communicate with him. 

63. The mother did not deny that those things had occurred but said that they   happened early on.

64. The fact that the mother did those things does not show her in a good light, but there was no evidence that it had turned X against the father.

65. X showed some glimmer of interest in the father at the child inclusive child dispute conference.  He has been willing to talk to the father on the phone since orders were made for that to occur.  It is not to the mother’s credit that she behaved in that way, but it has not turned X against the father and I am satisfied that in more recent times the mother has been cooperative about agreeing to orders for the father to spend time with and communicate with X.

1. It was the father, not the mother, who had the dummy spit in November 2020 about going on with the proceedings.  The mother consented to orders in November 2019 for the father to commence supervised time with X once he completed five sessions of the parenting course K and unsupervised time once he completed the course, and it is not the mother’s fault that neither of those things have occurred. I do not accept that in recent times the mother is the person responsible for the father not being able to spend time with X.

2. I must also have regard to the second primary consideration, which is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

3. The mother gave extensive evidence about the father’s abusive behaviour to the children during the relationship and in particular to C. Z and Y reported to their counsellor experiencing similar behaviour from the father. The mother also gave comprehensive evidence about family violence perpetrated by the father.

4. The father says that he is not that person anymore, but the way for the father to demonstrate that would have been to engage in and complete the parenting course K. That has not happened, and I accept that as a result the mother does not feel confident that X will not be at risk of harm as a result of being exposed to family violence if he spends unsupervised time with the father.

5. The father might be in a different relationship and his behaviour towards his current partner might be different. That can happen, but the mother gave extensive evidence about the father being extremely impatient, aggressive, and domineering in relation to the children over things such as them eating their meals. There is no evidence available to her, or to me, to suggest the father now has a different parenting capacity. The father says he has, but the one thing he could have done to show it, he has not done.

Conclusion

1. The father has not had an easy life.  He had problems growing up. He said, and I accept, that his father and his brother were physically violent to him.

2. He formed a relationship with the mother and they had three children and C was in the household, but he hurt his back on two occasions and from the information he gave to treating practitioners, by 2012 he was suffering significant difficulties with pain, anger, and frustration and he admitted having a short fuse with his wife and children, which makes the mother’s evidence about his treatment of C and the other children, and his violence to her, credible. 

3. The father made admissions about threatening children about what would happen if they did not eat their dinner. He was struggling with pain, and I am satisfied on the balance of probabilities that he was violent and acted in a far more dysregulated fashion in the home than he is now willing to admit.

4. I do not accept that Z and Y have rejected the father simply because the mother has got in their ear.  I am satisfied that they have rejected him because of their own experiences of him.

5. After separation in early 2016 the father continued to struggle with pain, with distress about his inability to do his job as a tradesman because of pain and with distress about the forced sale of the business and home which impacted on him and the mother financially. He and the mother argued about the financial support he was providing and there is evidence that the mother kept the children at a distance from him because of her anger and upset about the financial situation. 

6. The father did not help the situation. Regardless of whether he was locked in and was trying to get out of the house in 2016 or simply erupted in anger, the evidence is very clear that he lost his temper when C did not respond the way he wanted, and he damaged a door rather than calmly leaving the house, and that sort of behaviour simply stoked the mother’s concerns about what might happen if the children, particularly X, who was only three, spent time with him alone.

7. Nearly three years passed before the matter came to court, and during those three years the children became quite distanced from the father. I accept that the father probably would have liked the process to go more speedily. He went to Legal Aid and they required him to go through a mediation path with them first, and that took nearly a year, and I can imagine he must have found that frustrating, but I cannot do anything about that.  By the time the matter came to court Z and Y were older children. They were very firm in their views that they did not want to see him and by that stage there was nothing the Court could do to rectify that situation.

8. The father blames the mother for Z and Y’s rejection of him, but I am satisfied that they have their own memories of the father being violent and threatening and that this has contributed to their rejection of him.  There is evidence that Y was not keen to see the father from the very day of separation.

9. X was only two at the time of separation.  I accept that early on the mother drew X, also, into her anger toward the father over the financial situation, but when the child-inclusive conference was conducted X was not opposed to seeing the father.  He did not have the negative memories of him that Y and Z did, and he has spoken to him regularly on the telephone since orders were made for that to occur, except possibly for a cessation after the November incident, although the father says the calls resumed.

10. The family situation is very complex. I am satisfied on the balance of probabilities that the father was violent in the relationship and that he has behaved in a violent and dysregulated to C, Z and Y. However X has no recollection of those events, and it is possible that if the mother supported it X would be willing to spend time with the father.

11. However the mother cannot bring herself to support it, and I do not accept that this arises simply from some ongoing hatred of the father over financial matters.

12. The mother experienced the father’s behaviour during the relationship.  She experienced his treatment of C, Y, and Z. The father agreed to complete a parenting course K and the mother agreed to him starting some unsupervised time with X once he completed it, but he has not completed it. The mother is concerned how he might act toward X given her experience of him during the relationship.

13. The father says that he has changed, but he has done nothing which would give the mother confidence that he would not be short-tempered, aggressive and impatient with X in the future.

14. I cannot have that confidence either, because the father is still prone to impulsive, self-centred outbursts, the same self-centred outbursts which led to violence on C’s birthday in 2016. 

15. I have referred to the fact that at the end of November 2020 he rang the mother and had a dummy-spit and said it was finished and he was not going to continue going to Court, and then two weeks later he turned up and wanted to continue with the hearing.

16. Another example of the father behaving in that way occurred at the end of the trial. At the end of submissions the father, who is self-represented, unexpectedly began berating the mother about not having returned some of his deceased mother’s pottery to him. 

17. I cannot expect the mother to trust that the father will remain on an even keel and will remain calm and will not have dummy spits, and that he will not treat X in the way she remembers him treating Y, Z and C if they would not eat their dinner and do what he wanted. I cannot expect her to trust him to do that, and I could not possibly, at this time, consider ordering any unsupervised time.

18. I could make an order for supervised time and it might be that in a supervised setting things would go well, because it would be for a limited period of time and the father and son could do fun things together, but long-term orders for supervised time are not usually made by the Court.  All sorts of difficulties can arise. I have footnoted in other cases recently a decision I handed down in the matter of Mertens & Mertens.[1] That case highlights all the difficulties that can occur with such an order; a service provider can become unavailable, the parties may be unable to agree on an alternative service provider, one party might clash with the service provider, children can become resistant to going to that sort of limited time. There is always the risk in this case, given what happened in November 2020, that the father might decide to throw in the towel and then want time to resume, and the parties do not have the kind of relationship which would allow them to deal with that sort of problem.

    [1] Mertens & Mertens [2020] FCCA 207

19. The Court does not usually make orders for long-term supervised time and I am not prepared to do so in this case because I cannot consider making an order for unsupervised time at some time in the future.

20. I am not without sympathy for the father but making orders for X to spend supervised time with the father, which is all I could do, is not in X’s best interests. The father did not complete the parenting course K and would not listen to what the course providers were trying to say to him. This was a significant problem for him in this case.  The mother is always going to be concerned about his parenting capacity in the light of that.

21. The mother sought an order that X spend time with and communicate with the father at her discretion. In discussion with the mother’s counsel during submissions. I expressed some concern about making such an order.

22. From what the father just said to me, telephone time has been continuing but I cannot be confident that it will necessarily continue if I make an order that X spend time with and communicate with the father at the mother’s discretion. 

23. The mother has some concerns about the father. There is a possibility that if I make that order telephone communication also will cease. It is very clear the mother does not believe the father has changed. The best she said in her affidavit was that if the children wanted to connect with the father when they were older and could protect themselves, she would not stand in their way.

24. If I make an order that X spend time with and communicate with the father at the mother’s discretion, it may be tantamount to making a no time, no communication order, and it is evident from other cases that I have been involved in that this can lead to problems.

25. One problem that could arise is that the father might pester the mother about being able to spend time with the child, and there is nothing to stop him doing that. The other problem is that at some point in the future he might bring another application saying, look, you made this order that time could happen at the mother’s discretion, but she is not letting me have any time, so I want to have another go and try to persuade the court to make some orders.

26. It is not a desirable kind of order to make, but the Court is in a very difficult situation in these cases. The mother did not seek a no time/no communication order.  She has, in the past, permitted some communication to occur between X and the father. It is clear she does not believe the father has changed, but it might be that at some point in the future she will be prepared to agree to a little bit of time.  I cannot say for certain that will not happen, although I have some reservations about it at the moment.

27. In circumstances where I cannot make the orders the father is wanting, and where the mother does not want me to make a no time, no communication order, making an order that X spend time with the father and communicate with the father at the mother’s discretion is probably as good as it gets.

28. I am not making an order for telephone communication to occur, I am making an order that the time and communication occur at the mother’s discretion. I intend to note on the order that telephone communication is occurring, but the father needs to understand that the mother might, if there is an incident such as the one that happened in November 2020, say that it is not going to continue.

29. The mother originally proposed an order, although this was not discussed during submissions, that the father be at liberty to send letters and gifts to the children.  Those sorts of orders can have their own issues as well, but if the father wants to form a bond with X which might persuade the mother to agree to something more than the telephone calls, it might be a good idea if he has the opportunity to send X a card and a gift on his birthday and at Christmas, and I can say at Easter.

30. I am sure the father feels very frustrated and upset by the court system. The matter has taken a long time to come to final hearing, although that was contributed to by the delay in the behaviour change course getting off the ground because of Covid-19 and there is no use blaming the court system for that. Regardless, the matter has taken a long time to come to a final hearing, and I am sure the father feels frustrated and upset, in part by the court system. But this has been a difficult case with a conflicted and complex family background.

31. The father says that he is a good father to E and a good partner to his current partner. I hope it is true, and if it is true, he may well be able to resume contact with his children when they are older and re-establish a bond with them.  But the Court does not have a solution to every problem that is put before it.

32. I am satisfied that, at the moment, I cannot expect the mother to accept, and I cannot find, that there would be no unacceptable risk of harm to X if he spent unsupervised time with the father. I am concerned that the mother will be on the lookout for things to go wrong and for X to be upset, and that if I made an order for unsupervised time, the matter could rapidly end up back in Court.

33. The mother and father have an extremely poor and mistrustful relationship, which means they are not likely to be able to talk to each other and discuss an incident that occurs if X comes home complaining about something and consider whether there is an innocent explanation for it. 

34. I cannot order unsupervised time and I am not prepared, in those circumstances, to order supervised time. X is settled in a household with his older brothers and stepsiblings. He is just at the beginning of a school career. I am not prepared to take a risk of introducing him to the father without some certainty that it is going to run smoothly in the future.

35. I am not without sympathy for the father, but I am going to make that order that the time and communication be at the mother’s discretion. The father is currently speaking to X. If he remains calm and patient then things might change, although I would not want to hold out an unreasonable hope to him of that. It is a great shame that he was not able to take on board the content of the parenting course K, but there is nothing that I can do about that and those are the orders that I am going to make, subject to anything that the parties might want to say to me.

I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date:  24 March 2021