GAINES & TEBBS

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAINES & TEBBS

[2018] FCCA 3925

Catchwords:
FAMILY LAW – Parenting – application by a father to spend time with his children aged four and five – where the children have spent no time with the father for nearly two years – where the father has been violent in two separate domestic relationships in two years – where the father has drug, alcohol and mental health issues – where the children would be at unacceptable risk of harm in the father’s unsupervised care – order made for no time and no communication.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Mazorski & Albright (2008) 37 FamLR 518

Applicant:

MR GAINES

Respondent:

MS TEBBS

File Number:

NCC 1116 of 2017

Judgment of:

Judge Terry

Hearing dates:

3 & 4 December 2018

Date of Last Submission:

4 December 2018

Delivered at:

Newcastle

Delivered on:

18 December 2018

REPRESENTATION

The Applicant:

In person

Solicitor Advocate for the Respondent:

Ms O’Rourke

Solicitors for the Respondent:

Legal Aid NSW - Newcastle

Counsel for the Independent Children’s Lawyer:

Solicitors for the Independent Childrens Lawyer:

Mr Williams

Krstina Wooi Lawyer

ORDERS

The mother shall have sole parental responsibility for the children X born in 2014 and Y born in 2013 (“the children”).
The children shall live with the mother.
The father shall spend no time with and have no communication with the children NOTING HOWEVER that this does not prevent the mother facilitating some time between the father and the children in the event of a family situation such as hospitalisation, a funeral or other family event which the mother feels it may be safe and appropriate for the children attend.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1116 of 2017

MR GAINES

Applicant

And

MS TEBBS

Respondent

REASONS FOR JUDGMENT

Introduction

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.
These proceedings concern Y, 5 and X, 4. They live with their mother and residence is not in dispute. The issues in the case are the allocation of parental responsibility and the time the children should spend with their father.
The parties separated three years ago. The father spent time with children for most of the first year after separation but save for a couple of brief occasions thereafter, once at the family report interviews and once when he ran across them at the hospital when they were visiting the paternal grandfather, he has not spent any time with the children since December 2016.
The father seeks an order for equal shared parental responsibility and in his application he sought equal time. However he told the family report writer that he wanted to be able to spend five nights per fortnight and four weeks during the school holidays with the children.
To put another spin on the father’s case, he would be happy to spend any time with the children. His sole wish is that the court orders some time and does not tell him that he is not able to see the children at all.
In his trial affidavit he said that he was willing to spend supervised time with the children for three months prior to the commencement of what he called equal shared care.
The mother sought an order for sole parental responsibility and an order for no time and no communication.
The issues in the case are the father’s parenting capacity and the implications of the evidence about his drug use, alcohol use, mental health and perpetration of family violence.
At the end of the trial the Independent Children's Lawyer supported an order for the mother to have sole parental responsibility and for the father to spend no time with and have no communication with the children.

The evidence

The father and his partner Ms B gave evidence in the father’s case, the mother gave evidence in hers and a family report was prepared by Ms C who was a Regulation 7 family consultant at the time the report was prepared.
The father was a poor witness. He denied many of the details of the family violence incidents in which he had been involved. He told the family report writer that he had not wielded a knife during the incident in the mother’s home in May 2016 and yet his partner gave vivid evidence in the witness box of the father telling her about wielding the knife.
I have many concerns about the father’s evidence. That does not mean I will automatically accept everything the mother says but the fact that there are credit issues with the father will be a relevant consideration when I come to determining issues in dispute.

Background

The mother is 35 and the father 38. They met online in 2012 and commenced living together in 2013 when Y was born. They separated on 13 December 2015 so it was a short relationship, 2012 to 13 December 2015.
The parties have two children, Y, born in 2013 and X, born in 2014.
The mother said that the relationship was marked by the father’s lack of engagement with the family due to cannabis use and a preference to be at the pub and drink and smoke. I will have to assess what I do with that evidence later on.
The mother was the children’s primary carer during the relationship and after the parties separated the children remained with her. She encouraged the father to spend time with them and he did spend time with them. The mother said that it was for short periods and that he was not entirely reliable but nevertheless he spent time with the children after separation with the mother’s agreement and encouragement.
That ceased following an incident in May 2016 which involved the father invading the mother’s home and assaulting her and which led to the father being charged.
After about three months however the mother was approached by the paternal grandparents. She said they told her the father had rights. There is no point me going into the detail about that alleged conversation; it really does not matter after all this time. Whatever was said, the mother agreed to the father resuming spending time with the children provided that the paternal grandmother picked the children up and was present during the time.
The paternal grandmother agreed to that but after a few weeks she said she could not do it anymore. The mother, while not happy about it, nevertheless continued to facilitate the father spending time with the children. She said the time was not regular but some time certainly occurred.
The father saw the children between about July/August 2016 and Christmas 2016
The mother had agreed for the father to have the children on Christmas Eve but she said that on the morning of the day they were due to go to him Y became incredibly upset and was crying inconsolably and said that the father had hit her and pulled her hair. As a result the mother did not make the children available to spend time with the father at Christmas and made a report to the police. She then did not facilitate any further time between the children and the father.
The father did not waste too much time trying to rectify the situation. He filed an application in April 2017 in which he sought week-about shared care on a final basis and on an interim basis proposed supervised visits.
It took a little while to serve the mother as she had moved but the father eventually found her and she filed a response.
On 23 October 2017 a drug-testing order was made because of the allegations of drug use and because of all the allegations in the case an Independent Children's Lawyer was appointed and an early family report was ordered.
The family report was released in June 2018. It made a number of alternative recommendations, one of which was for there to be no time. The parties could not agree following the release of the report and the matter was listed for trial at the earliest date then available which was 3 December 2018.
The father has not spent time with the children in any meaningful way since December 2016 and I have to decide whether the time should resume or whether there should be a no time order.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine their best interests I must have regard to the matters in section 60CC(2) and (3) of the Family Law Act 1975.
There are primary and additional considerations. I am going to start with the additional considerations and I am going to go through each of them because most of them have some relevance to these proceedings.
The first consideration is the views of the children and the weight to be given to their views.
The children are four and five and they were even younger when the family report writer saw them. However they did tell her after the observation session with the father that they wished to recommence spending time with him.
I cannot place any weight on that as a determinative factor in the case but it does indicate that if I made an order for the children to see their father then as long as they were safe and not exposed to family violence or drug or alcohol use or mental health issues they would probably be content to do so.
I must consider the nature of the relationship of the children with each of their parents and any other relevant persons.
The mother has always been the children’s primary carer. She is clearly their primary attachment figure and the children were observed to have a good relationship with her at the family report interviews.
The children were two and three and a half when they last saw him in December 2016. It was clear at the family report interviews in 2018 that they remembered him. They told the report writer after their session with him that it had been good to see their father and the family report writer said in cross-examination that the fact that they related well to him at the interviews suggested that they had had a secondary psychological attachment to him in the past.
However the children have not spent any substantial time with the father in almost two years. They said at the family report interviews that they did not mind seeing him and they were happy to see him at the observation session and hugged him and played comfortably with him but that does not necessarily indicate that they have much of a relationship with him. There is something there, a previous attachment, which means that if it were safe and appropriate to allow some time there is something positive to build on between the children and the father.
The children have a good relationship with the maternal extended family. At one time they had also a good relationship with their paternal grandparents. When Y was little she used to spend time either once a week or once a fortnight with her paternal grandparents.
That relationship no longer exists. Sadly the paternal grandfather died a couple of months ago but the paternal grandmother also has not had a relationship with the children during the period when they have not seen the father. She did not attend the family report interviews and she did not give evidence at the hearing. Whether there is something positive to be built there on I cannot be so sure of.
I must consider issues of child support.
The mother said that she had applied for a child support assessment and for a period of time the payments were small, then they increased, then they went back to being either small or sporadic.
In the context of this case child support is not a particularly relevant issue. If the father is paying sporadically it is more likely because of issues to do with employment than because he wants to avoid paying and although non-payment of child support is a problem for the mother in terms of how she can provide for the children, it is not a critically important issue in the context of what I am being asked to decide.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the children, communicate with them or to make decisions about them.
The father has always wanted to spend time with the children in a broad general sense. The mother said that he was sometimes unreliable but that is something different. He sought time after separation and he commenced these proceedings within a few months of the mother stopping the time. I am satisfied that he does want and has always wanted an involvement with his children.
I must consider the likely effect of any change in the children’s circumstances.
The father’s proposal would see the children commencing to spend time with him. Whether that would overall be a beneficial or detrimental outcome for the children I can only consider after making findings about the remainder of the s. 60CC (3) matters and the s. 60CC (2) matters.
I must consider the practical difficulty and expense of the children spending time with a parent.
I am not sure where the mother is living because she did not want to reveal her address. It is reasonable to assume she is living in the City G area given that the visits to the hospital seem to have occurred without too much difficulty.
The father also lives in City G. It does not appear that there would be any practical difficulty and expense in the children spending time with the father if it was ordered.
I must consider the capacity of each parent to provide for the needs of the children, including their intellectual and emotional needs.
This is a highly relevant matter, indeed it is one of the central matters in the case.
I am going to start with the mother, although she is the respondent, and on any view she is a very competent parent. She has degrees in health care. She has done a post-graduate certificate. She is working causally for a health care organisation and she is taking good care of the children on a day-to-day basis. There are no complaints about their attendance at school or day care or about them being unkempt or not properly fed.
The father maintained that when the parties were together the mother screamed at the children and handled them roughly when they were upset. There was no independent evidence to give any colour of credibility to that. The father was not a particularly reliable witness and I do not accept that evidence.
The mother has used cannabis but she said she has not used it since separation and there was nothing to contradict that and no adverse test results.
The father alleged the mother used alcohol to excess. The mother made the same allegation about the father and as a result earlier in the proceedings I ordered that each party do a CDT test. The mother’s result was 2.8 which is a very high reading. The form notes that it is suggestive of excessive alcohol consumption.
The mother said in her affidavit she was shocked and mortified at that result. She gave some information about her drinking in the three weeks prior to the test which suggested very heavy drinking on several special occasions. However the mother alleged that in September 2018 she ceased consuming alcohol altogether, and the result of the CDT test she did on 8 November 2018 was within a normal range.
There is no doubt that the mother enjoys a social drink. A wide range of people in our society do. There is also no doubt that she has drunk heavily on occasions in the past. The high CDT test result and what the mother described about her drinking is evidence of that.
The mother has a long history of alcohol consumption. She enjoys a social drink and she has not had any drug and alcohol counselling. The risk of her drinking again in the future has to be very high; I certainly cannot be satisfied that she is never going to have another drink of alcohol but things have to be kept in proportion.
There is no evidence in the case which indicates that alcohol consumption is having an adverse impact on the mother’s life. There is no evidence of that in the form of work absences, involvement with the police or being notably late to drop the children off at school or day care or in anything the children said to the family report writer, the kind of indications you sometimes one get in different cases which suggest that excessive alcohol consumption is impacting on someone’s life and therefore on their capacity to care for the children.
The mother has on more occasions than she should drunk alcohol in a way which has not been healthy but there is no evidence that she has an alcohol problem in terms of it impacting adversely on her life and her capacity to care for the children, and that will be relevant when I come to consider whether I should make a particular order sought by the Independent Children’s Lawyer.
The father alleged that the mother was causing emotional harm to the children by her unrestrained expressions of dislike of him and hostility toward him and by refusing to allow him or his family to spend time with the children.
I do not consider that the mother has prevented the children spending time with the father out of some personal dislike of the father or out of some desire to keep the children to herself and prevent the father spending time with them for no good reason. I agree with the view of the family report writer that there is no evidence that the mother is attempting to align the children against the father or the paternal family.
As the family report writer pointed out the mother facilitated time between the father and the children between December 2015 and December 2016 despite the concerns she had about him, concerns which as will become apparent later in the judgment had merit. The incident in May 2016 resulted in a break in the time but it did not result in a complete cessation of the time.
Despite her concern about the paternal grandmother not sticking to her agreement that she would be present when the children spent time with the father the mother still persisted with the time. It was only in December 2016 as a result of a disclosure by Y, a disclosure which certainly was made if you have regard to what is in paragraph 69 of the family report, that she put a stop to the time.
Even then, when the paternal grandmother contacted her in late 2018 and told her that the paternal grandfather was dying and asked her to bring the children to the hospital she agreed to do so and she facilitated not one but two visits at the hospital between the children and the paternal grandfather.
None of those things are signs of someone who is blindly determined to exclude the other party from the children’s lives for no good reason. I do not accept that the mother has been engaging in aligning behaviour and emotionally harming the children.
In summary I have a slight concern about the mother’s alcohol consumption, as much because it is likely to damage her health if it continues at that level as anything else, but overall I am satisfied that she is a very capable parent who is doing a good job looking after her children.
I then have to consider the father’s parenting capacity.
The father said in his affidavit that he was a customer service officer working about 30 hours a week. He is currently living with the paternal grandmother but he is in a relationship with Ms B who has four children.
Ms B is not the first person the father has been in a relationship with since separation. He was also in a relationship with a lady called Ms D and that ended after a family violence incident and I will refer to that a bit later on.
Currently he is in a relationship with Ms B and they told the family report writer they might cohabit in the future. At trial they were still not doing so and Ms B appeared to have some reservations about it so whether that will actually come about I do not know.
I would have concerns for the children going into a household with the father and Ms B if they did commence to cohabit because of the family violence issue but I will refer to that in later in the judgment.

If the father does not commence cohabitation with Ms B that leads to a concern about his housing. There was no evidence that since his separation from the mother he had been able to establish stable accommodation. He lived with Ms D for a while. That ended when an ADVO was made. At the time of the family report interviews he said that he was renting somewhere. He is now living with the paternal grandmother. I am concerned about the lack of clarity around the father’s future housing but that is the least of my concerns about the father.
Greater concerns about the father, apart from the family violence issue which I will come to, are his alcohol consumption, cannabis use and mental health.
The mother said that during the relationship the father drank a lot and sometimes got drunk and that he used cannabis and synthetic cannabis. She said that he sometimes did not come home at all after going out and when he finally arrived home told her that he had fallen asleep in a park and that he sometimes came home and fell asleep on the lawn. She also said that he told her that he has used ice at his mother’s home with his brother.
A lot of that evidence the mother gave about the father’s alcohol consumption and drug use was not challenged at trial and I have no reason to believe that the mother is simply making those things up.
The father denied using ice and there is no independent evidence about that but there is no doubt that he is a long-term cannabis user. He was using it when the parties met. He used it during the relationship and he has continued to use it.
In the family report the report writer went into some detail about the father’s cannabis use. She said as follows:
The father reports to use marijuana once a week and said he began using the drug at age fourteen. He said he was a daily user of the drug until Y was born and then he reduced his use. He said he used speed, ecstasy and acid recreationally in his twenties. The father underwent a court ordered hair follicle test on 3/11/17, which produced a positive result for marijuana. Following discussions, the father said he is prepared to engage in Drug and Alcohol counselling with his past psychologist, Mr E, to address his continuing marijuana use.[1]
[1] Family Report paragraph X
The father tested positive for cannabis on more than one occasion during these proceedings and he admitted in the witness box that he was still using cannabis. Cannabis use and drinking seem to go hand in hand for the father because he described having a smoke when he was also drinking with Ms B.
The father was evasive during cross-examination about the extent to which he was currently using cannabis. He made out that it was only occasional and when he was also having a drink but I cannot place any weight on that evidence. The father was not a witness of credit. He had a strong propensity, especially when giving evidence about the family violence matters, to minimise what had happened.
The father may well be using cannabis much more extensively than he is willing to admit but perhaps more importantly there was nothing in the father’s affidavit or in anything he said to the family report writer to suggest that he intended to give up using cannabis.
It was put to the father in cross-examination that he needed to do something about his cannabis use and he was asked if he had any drug and alcohol counselling. His answer was “I haven’t, but I probably should.” A bit later on he said, “I need to,” but the father has been using cannabis since he was 14. There does not seem to have been a time when he has not used it since then and he continues to use it.
The father knew his cannabis use was an issue in the proceedings. He has not attempted to stop using it during the course of these proceedings. He has not engaged in any drug and alcohol counselling and there is considerable force in what the family report writer said in cross-examination namely that if the father has not done anything about it by now one could not place any weight on any assertion he might make that he intended to do something about it in the future.
I therefore have to proceed with this case and consider the orders I should make about these children on the basis that the father is using and will continue to use cannabis. There is nothing to suggest that he has either the intention to stop using it or the willingness or ability to do so.
In relation to the father’s drinking I cannot make any findings about the extent to which he is consuming alcohol at the moment. I have a little bit of evidence from him about that but he was not a reliable witness.
Scattered through the doctor’s notes in the tender bundle there is reference to the father’s drinking and a suggestion that he should try and cut back.
The father did a CDT test very recently, not long before the trial in November, and it had a very high reading, a reading which indicated probable excessive consumption of alcohol.
The father knew that his alcohol consumption as well as his substance use was an issue in the case. He has made absolutely no effort to do anything about it during the course of the proceedings. I cannot make a finding about the extent to which it is a problem but it seems to go hand in hand with his cannabis use and I cannot have any confidence at all that the father is going to do anything about his drinking and a considerable concern that he may on occasions drink to excess in the future.
The father was caught drug driving on 26 September 2016 and he has a conviction for special category PCA for which he was fined and disqualified, so the father has had some brushes with the law in relation to his drug use and alcohol use.
Scattered through documents in the tender bundle are references to the father having some challenging mental health issues. The mother said that the father told her that he had psychotic episodes sometimes when using drugs and felt suicidal. There are notes in medical records about the father telling people that he had heard voices telling him to hurt himself. The mother had concerns about his mental health toward the end of the relationship and went with him to see a doctor but nothing in particular came of that.
I cannot make any findings about exactly what is going on with the father’s mental health. I do not know whether he has some condition which is capable of having a diagnostic label attached to it but I am being asked to make orders about young children and I have concerns about the father’s alcohol use that I cannot resolve, an absolute certainty that he is continuing to use cannabis and a concern about his mental health that I cannot resolve because I cannot be certain what the state of his mental health is at the moment. It seems that on and off for quite a lengthy period of time and he has some difficulties with his mental health which have caused him to seek medical attention.
The mother said that she had concerns about the father’s parenting during the relationship. She was concerned about hot baths being prepared for Y. She described another occasion when she said Y fell in the pool and the father just sat there and did nothing and his brother had to jump in to get her. She said that the father was not responsive to the children and did not help much around the house.
Given the father’s drinking and cannabis use it is impossible for me to say that the mother is not right and that there might not be serious concerns about the father’s capacity to respond to children’s needs and to appropriately parent them.
So leaving aside the issue of family violence which I am going to come to in a moment I have considerable concern about the father’s parenting capacity because of his drug use, alcohol use and mental health issues.
The family violence issue is a significant one in this case.
The mother alleged that there was family violence during her relationship with the father but she did not go into much detail in her affidavit about exactly what happened and I cannot make any findings about that.
However after the end of the relationship there was an incident on 9 May 2016.
It began with the mother going to a party. The father also attended, the mother said uninvited but the father said he was invited. It seems somewhat unlikely the mother would have invited the father but it really doesn’t matter one way or the other where the truth lies about that. They were both at the party and the mother’s unchallenged evidence was that the father started saying some very threatening and concerning things.
The mother said in paragraph 7 of her affidavit that the father started saying things like, “I’m going to slit your throat. I’m going to burn your house down.” There are some admission by the father to having made at least made one of those comments.
The mother said that she was terrified and a friend walked her home and stayed the night with her and that they fell asleep on the bed in her room. The parents by this stage had been separated for five months.
The mother said that at 6.00am she woke to find the father standing above her screaming, “You fucking cunt. I’m going to fucking kill you.” She said she tried to push the father out of the room and he became very aggressive and slapped her face really hard. She said that he then picked up a kitchen knife and lunged at her, trying to stab her.
The mother said that her friend came out and said, “What are you doing?” and the father ran off.
The mother reported the matter to the police and the father was charged. He declined to participate in a record of interview.
In conversation with the family report writer the father admitted slapping the mother’s face but denied using the knife. However when Ms B was asked about whether the father had told her about the incident she said that he told her that he went into the house and found the mother at home with his friend and he lost it.
She said: “I can empathise with that to a degree” although obviously the father did not tell her how long he and the mother had been separated.
She then said, “I do not know what happened” but she went on to say that the father told her when they were in the kitchen, “I got a knife and I held it up to her and said, ‘I want to kill you’ ”.
Ms B had no reason to lie to me. I accept that this was her genuine recollection of what was said. It corroborates the mother’s version of events and I accept that the father picked up a knife, threatened the mother with it and said he wanted to kill her.
The mother acted protectively of the children at the time. She rang the paternal grandmother who was looking after them and told her that the father had hit her and she was scared and asked her not to let him hurt the children. However the paternal grandmother obviously did not act on that because later on the father dropped the children home to the mother’s house.
The father was charged with common assault and stalk, intimidate and I think with more than one count of each. He pleaded not guilty but he was found guilty after a hearing and was placed on a section 9 good behaviour bond for 12 months.
The mother said that was not the end of it though. She said that the father continued to stalk her after that incident. She said he would loiter near her house and she saw him walk past and look in the windows. She saw him drive past. She said she would hear him out the front screaming, “Fuck you, you fucking cunt”. She said that Y woke up and heard it and asked if it was the father. She said she heard glass shattering and found broken beer bottles. She also said that on occasion her tyres were let down. She said she sometimes reported these incidents to the police.
The mother said that on 27 June 2016 the father came to the door even though an ADVO was in place as a result of the May 2016 incident. She answered and the father asked to see the children. The mother told him he should not be there and he began swearing and told the mother to “Fuck off”. The mother reported that to the police and the father was charged with contravening the ADVO and he was convicted and fined.
The mother said that there was an incident at Court where she felt intimidated by the father’s behaviour because he seemed to be hanging about waiting for her. She said that at Court on 19 December 2017 she again felt the father was stalking her and alleged that he made a finger motion across his throat and as a result of that the mother applied for another ADVO, the first one having expired.
The father challenged that ADVO. He cross-examined the mother during the hearing and suggested that she had an ulterior motive for applying for it but an ADVO was made in May 2018.
The mother also claimed that the father intimidated people she befriended on Facebook and made comments to men that she had any interest in to try and warn them off.
The father made some admissions about the family violence. He admitted that he had entered the mother’s house uninvited. He admitted slapping her. He denied using the knife but as I mentioned Ms B told the Court that he admitted that to her.
The father made some admissions to the family report writer about contacting people on Facebook but not complete admissions about trying to warn them off. The family report writer then went on to say:
When asked if he had made threats to slit her throat following separation, the father said he was not sure. And when asked if he threatened to burn her house down, the father said he said this to the group the mother was with at her birthday party, and he then volunteered, “I remember I said I hate her and I am going to kill her, but I never meant it.[2]
[2] Family Report paragraph 60
In October 2016, about six months after the May incident, the father commenced a relationship with Ms D. The father and Ms D separated about a year later and the father was charged with stalk/ intimidate in relation to Ms D.
Ms D told police that she and the father had argued and that the father threatened to kill her and toss her body in a ditch at a festival. When Ms D challenged him about what he had said and said, “Do not threaten me”, he said “It is not a threat but a promise”. She said that he repeated that over and over again and she was very scared.
Ms D called the Domestic Violence Hotline and the police and the father was charged with stalk/intimidate and a provisional ADVO was made.
The father was later charged with breaching the ADVO made for Ms D’s protection.
I accept the mother’s evidence about what happened in May 2016 and I accept her evidence about what happened after the incident in terms of the father stalking and intimidating her.
I also accept that she is genuinely frightened of the father as a result of his behaviour. I accept it not just because the mother was a credible witness but because the father made very similar threats to Ms D and as with the mother even after an ADVO was put into place he breached the ADVO.
I accept that the information in the police reports about the incident with Ms D is correct and what happened is strikingly similar in content to what occurred with the mother.
The father has been involved in two serious domestic violence incidents within 12 months and the last one was only 12 months ago. He made limited admissions about what had occurred. He tried to cast blame on each occasion on the partners involved. In the case of the mother he seemed to think that she had done something wrong being in the house with a male friend. In the case of Ms D he laid some blame on her for what had happened.
The father seems oblivious to the fact that his threats to kill and his use of a knife engender fear in other people. He lied about whether he had a knife during the domestic violence incident with the mother. I cannot be satisfied that there is no risk of the father behaving in a similarly violent manner in domestic relationships in the future.
The father said that I should be satisfied of that because he had commenced doing a Facing-Up, Taking Responsibility course and had done about nine weeks of the course.
That sort of course is designed to assist people who have behaved violently to face up to what they have done, take responsibility for what they have done and learn to behave differently in the future. It is to the father’s credit that he has enrolled in the course but I have to be concerned about how much of it is going to rub off on him and what protection it will give in terms of ensuring that no further domestic violence incidents happen in the future.
The father minimised what had happened with the mother when talking to the family report writer. He told her that he had a big fight with the mother in May 2016 and said he had been a ratbag. When he was challenged, he said:
Okay. I was being psycho.
He used the excuse that he had found the mother in bed with his friend, a similar excuse to what he gave Ms B, to somehow exculpate himself for his behaviour and try to engender sympathy for what had happened.
Even in court the father did not tell the whole truth about what had happened.
One of my reasons for not being satisfied that the fact that the father has started the Facing-Up course is any sort of a guarantee that he is not going to behave in that way in the future is that he made no mention of the May 2016 incident in his trial affidavit and he suggested in that affidavit that any difficulties with him seeing the children were down to the mother being hostile to him and unreasonably withholding the children.
He made no mention in that affidavit of the incidents with Ms D. He expressed no remorse for what had happened in relation to the mother. He showed no insight into the impact on the mother or indeed on Ms D of being exposed to that kind of behaviour. He is not a witness of credit and he does not always tell the truth. I cannot readily accept that he is telling me the truth about having learnt things from the F Counselling course so the fact that the father is doing that course does not give me any confidence that the risk of family violence occurring in the future has abated.
Another matter I have to take into account is that because of what the mother was subjected to and because she now knows that the father did something not dissimilar with Ms D, the mother is very frightened of the father. She is frightened that he will try to get into her house again in the future and hurt her. It is credible that she would be frightened and that also plays into what I am going to do about the father spending time with the children.
The next matter I have to consider is the children’s maturity, sex and background.
That is not relevant as a separate consideration.
I must consider whether there are any family violence orders.
An order was made in 2016 for one year and it was continued after the father was convicted. A further order was made in May 2018 on the mother’s application following some other incidents in relation to the father. However talking about those as separate matters does not assist me.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.
The mother has demonstrated a very good attitude to the children and the responsibilities of parenthood. The father’s attitude is poor. It is his behaviour which has led to a situation where he has not seen his children for a lengthy period and yet if you read his affidavit his view is that the only reason he is not seeing his children is because the mother is hostile to him.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is a no time order. Given the father’s issues an order for unsupervised time is the order most likely to lead to further proceedings.
I must consider any other relevant matter.
If I make an order that the father spend no time with the children the likelihood is that they are going to be cut off from the paternal family. The mother took the children to see the paternal grandfather when he was dying in hospital but she does not trust the paternal grandmother so it is very unlikely that she will allow the children to spend regular unsupervised time with the paternal grandmother. She made no proposal at trial for that to occur.

Another matter I must consider which also involves the paternal grandmother is that if I form the view that the children would be unsafe in the unsupervised care of the father, one option open to me is to make an order that the children spend supervised time with the father and there are occasions when it is appropriate for family members to do that supervision and sometimes the people who do that supervision are grandparents.
The paternal grandmother has had involvement with the children in the past, particularly Y. From that perspective she might be considered a potential supervisor of the father’s time with the children. However there are a whole host of other reasons why I could not consider that.
The paternal grandmother was not willing to supervise the children and prevent them spending time alone with the father in 2016. She did not give evidence and I could not form the view on the state of the evidence that she was an appropriate person to supervise the father’s time with the children or even that she was willing to do so.
I now return to the primary considerations in s. 60CC (2) and the first of those is the benefit to the children of having a meaningful relationship with both of their parents.
The family report writer referred to that issue in the family report and said as follows:
If the children have no contact with the father as the mother seeks, this may cause them to be negatively psychologically affected well into adulthood; however, such potential psychological impacts needs to be weighed against the risk the father may pose to the children.[3]
[3] Family Report paragraph 87
Children benefit from having a meaningful relationship with both of their parents. It can be detrimental to them not to have that relationship as the family report writer pointed out, and if the children do not see the father they are clearly not going to have a meaningful relationship with him at all.
If they only see him in a supervised setting because that is all that is considered safe their relationship with him is unlikely to be meaningful; it is not going to be a relationship which is significant, valuable and important to them.[4]
[4] Mazorski & Albright (2008) 37FamLR 518
The only way in which the children would be able to have a meaningful relationship with the father would be if I ordered unsupervised time and that went uneventfully and well for the children. However the second primary consideration, which takes priority over the first, is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The father perpetrated family violence in two relationships in 2016 and 2017 and there is considerable similarity between the two incidents. They both seem to have arisen out of frustration and/or jealousy. There is no evidence that drugs and alcohol were a motivating factor to what happened. The father may have been drinking on one or more of the occasions but there was no evidence that this behaviour arose simply out of alcohol consumption or drug use.
Following both of those incidents the father breached an ADVO and in the case of the mother engaged in some quite significant stalking and harassing behaviour.
The father is completing a perpetrators course but he made many excuses for his behaviour. He does not accept responsibility for it in any real sense. He expresses no remorse. He does not tell the whole truth about what happened. He has convinced his current girlfriend that he should be excused for his behaviour to the mother because he saw her in bed with a friend. There is an unacceptable risk that the father may be violent in future domestic relationships.
The risk is heightened by the fact that the father’s partner Ms B has been in relationships in the past where people were violent to her. There is a considerable risk that because of her past experiences she may put up with certain behaviours by the father and not call him out if he behaves violently. There is an unacceptable risk of family violence occurring in that relationship or indeed in any other future domestic relationship.
The father’s capacity to care for the children and keep them safe is compromised by his drug and alcohol use. He continues to use cannabis. He says he ought to do drug and alcohol counselling but he has not done so to date. He has expressed no intention to cease using cannabis. Drug and alcohol use are a part of his lifestyle and he is not willing to leave that lifestyle behind.
The mother was very concerned about his parenting capacity and drug and alcohol use undermine parenting capacity. The children are very young. They could easily be neglected in his care.
Another aspect of that matter, although it does not entirely come within this particular category, is that because of the father’s behaviour toward the mother and Ms D in 2016 and 2017 and because of the mother’s knowledge of his drug and alcohol use, her knowledge that he has not stopped using cannabis, her knowledge about certain things that happened to the children while they were in his care and because the children are very young, it would be very difficult for the mother to send the children off to spend unsupervised time with the father. It would be natural for her to be extremely worried about the level of care they would receive.
I am not sure it would necessarily impact on her parenting capacity if I made an order for the children to spend time with the father unsupervised and she was very worried about them and did not want to let them go. She seems a robust and forthright person. However there is a risk that the mother would not comply with the orders for some reason or another. She would consider herself within her rights not to do so if the children came back complaining about things that had happened while they were with the father.
If I make orders for the children to spend unsupervised time with the father there is a very high risk that the orders will break down and not be complied with.
There is also an unacceptable risk of the children being exposed to family violence if they spend unsupervised time with the father and an unacceptable risk that aspects of their care will be neglected because of the father using drugs and alcohol.

Parental Responsibility

S.61DA of the Family Law Act 1975 says that I must apply a presumption that the parents should have equal shared parental responsibility for the children absent a finding that one of the parents has engaged in abuse of the children or family violence.
The father has committed acts of family violence so the presumption does not apply.
I can still make an order for equal shared parental responsibility if I choose to do so. The father in final submissions seemed to agree to the mother having sole parental responsibility but I am not going to place any weight on that because I do not think the father really understood the concept from listening to the rest of his submissions. I am going to determine the issue as if the father were still seeking what he sought in his application, namely equal shared parental responsibility.
I would not be prepared to make an order for equal shared parental responsibility. The mother says she is afraid of the father. She does not want to have to communicate with him. It is entirely credible that she would be afraid of him and I would not be willing to make an order which would force her to attempt to communicate with him and reach agreement with him about major long-term issues for the children. It would not be in the children’s best interests for me to do so. The presumption does not apply and an order for sole parental responsibility is strongly indicated.

Conclusion

I will start by considering what the family report writer recommended because family reports deserve respect. I cannot slavishly follow the recommendations in reports, I must decide whether they fit with my findings in the case but I do have to have regard to the recommendations and the recommendation of the family report writer was as follows:
If the Court finds that the father poses an unacceptable level of risk of harm to the children, it is recommended the children have no contact with the father. It is further recommended that the children spend time once a month with the paternal grandmother if the Court is of the view that she will not bring the children into contact with the father.[5]
[5] Family Report paragraph 90
The family report writer went on to make some alternative recommendations.[6] The first was that if the Court felt that it was in the children’s best interests to rekindle their relationship with their father it was recommended they commence spending supervised time with him and that during that period he complete a perpetrators of family violence course, remain engaged with his treating psychologist, address his continued illicit drug use in therapy and complete an age-appropriate practical parenting skills program.
[6] Family Report paragraphs 91 & 92
She recommended that after those six months and if the father did those things then he could commence spending unsupervised time with the children building up in amount.
I have to consider what to do in light of the findings that I have made and bearing in mind those recommendations because those recommendations are important in this case. The things that the family report writer brought to bear in making those recommendations are things which I have found have substance, in other words concerns about the father’s propensity to be violent in domestic relationships, his drug use, his alcohol use and his mental health.
The father’s case was that he had always been interested in spending time with his children and that the only reason he was not doing so now was because the mother had stopped it happening. He said that the children related well to him at the family report interviews so the foundation was there for them to resume having a good relationship with him.
The father also said that the children reacted well to seeing him at the hospital in October 2018, and I pause to add I have not gone into the issue of whether the meeting in October 2018 at the hospital was accidental or deliberate because nothing turns on it.
The father alleged the mother was engaged in aligning behaviour and that if the Court made orders for him to spend time with the children the family could move past what the mother had been doing. He stressed that it was very important for the children to spend time with him and through him the paternal family and particularly the paternal grandmother with whom they had spent a lot of time when they were younger.
The first point to note is that I do not accept that the mother has been engaging in any aligning behaviour. I share the view of the family report writer that this is not the case and I refer to the matters I mentioned earlier about her facilitation of time for the first year after separation, even after the family violence incident in May 2016.
Some evidence was given about the mother using the surname Tebbs for the children rather than Tebbs-Gaines but I do not accept that this has been done to distance the children from the father or cut them off from him. It is very likely a convenience thing because the children only have a relationship with the mother at the moment and her surname is Tebbs. I do not accept that use of the surname is evidence of aligning behaviour.
The mother’s reaction when the paternal grandmother asked her to bring the children to the hospital is also not suggestive of aligning behaviour or a determination to cut the children off from the paternal family for no reason.
I accept that the mother is frightened of the father and it is natural that she would be. She has given details about the home invasion. There can be few more frightening things than waking up and seeing someone standing in your house when you have not invited them in and the wielding of the knife and the threat to kill was frightening. The father’s behaviour after that in coming to the home and doing things like smashing beer bottles was frightening.
The mother’s knowledge that the father tracked her with a private detective will not have increased her feeling of safety nor will learning of the domestic violence incident with Ms D which also involved threats to kill.
The children are only four and five and I accept that it would be extremely difficult for the mother to send the children off to spend unsupervised time with the father. She is likely to feel extremely anxious about it and while I do not believe it would lead to her not being able to properly parent them I do consider that there is a high risk of the arrangement breaking down because of noncompliance with the orders.
If the mother’s fears about the father were unfounded, if her fears about him were unreasonable, then I would expect her to move past her fears and require her to master them and comply with orders but in this case there is an unacceptable risk of these children being subjected or exposed to neglect or family violence in the father’s unsupervised care.
There have been two family violence incidents in the space of less than 18 months, a lot of excuses and no remorse. The father is doing a perpetrators’ course but it is questionable how much of that is going to rub off on him when he accepts no responsibility for his actions and minimises his behaviour.
There is a considerable risk that he will behave violently in future relationships, especially given the situation with Ms B, but it could happen in any new relationship and if the children were in his unsupervised care they could very easily be exposed to that.
The father also has the drug and alcohol issues which impact on his capacity to provide safe day-to-day care for the children. There is nothing in the case to suggest that he is going to cease using cannabis or is willing or able to deal with any issues to do his drinking. The children are only four and five. I could not possibly consider making an order that they spend unsupervised time with the father. They would be at unacceptable risk of harm.
It is very sad for children to have no relationship with a parent and there are other options to ordering no time. One is to order supervised time but the problem with that is that an order for indefinite professionally supervised time is usually not viable. People cannot afford it. There is a high likelihood of breakdown because there is a change in service providers. There is little benefit to the children in regular professionally supervised time. They may get someone to play with for a couple of hours every fortnight or month but it does not lead to the creation of a meaningful relationship.
Professionally supervised time is not viable, especially in this case where these parents cannot afford to pay for any high-end professionally supervised time and I cannot be certain that any of the cheaper alternatives would be available.
Sometimes supervision by a family member is viable depending on the nature of the case. In this case the paternal grandmother is a possibility as I mentioned earlier. This is not a case where the father has a conflicted relationship with his own mother which can sometimes happen and she has had a relationship with the children.
However there are inherent problems with grandparents supervising. They may not be willing to challenge an adult child. They may not fully accept the extent of the problems and in this case I have a particular problem in that the paternal grandmother has not been willing to supervise in the past and she did not give evidence before me. I cannot consider her as an option because I cannot be sure that she would be willing to supervise or willing to keep the children safe.
It is very sad to have to order no time and another sad thing is that sometimes when matters are not in the Court system families can manage these matters themselves so that a relationship with a parent or an adult who has problems is not completely lost. There can be informal supervision and restrictions on time that children may not even be aware are being put into place.
However I am sitting in Court and I have to consider what options I have in terms of making orders and I just do not have any options. I cannot order unsupervised time and I would not be prepared to order supervised time because professionally supervised time has inherent problems with it.
It is also often said, and I am pretty sure the family report writer said it in this case, that it is not particularly kind or useful to make an order for supervised time if there is no light at the end of the tunnel, no situation where one can say, “If X amount of time passes, then unsupervised time will be appropriate.” I do not have a family member who is an appropriate supervisor in the case and the only option I have is to make a no time order.

I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 5 February 2019

[2018] FCCA 3925

18 December 2018

Key Legal Topics

Areas of Law

Family Law

Evidence