Gamber & Landy
[2023] FedCFamC2F 743
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gamber & Landy [2023] FedCFamC2F 743
File number(s): WOC 676 of 2016 Judgment of: JUDGE MORLEY Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – parenting application – application for interim orders – where current interim parenting orders were made by consent in 2021 – where Father has not spent time with children since June 2019 – where the Court finds the Father has perpetrated acts of family violence –application dismissed Legislation: Crimes (Sentencing Procedure) Act 1999 (Cth) s 7(1)
Family Law Act 1975 (Cth) ss 4AB, 60, 60CA, 60CC, 61D, 61DA, 65DAA, 68B, 68L, 69ZL
Cases cited: A & A & The Child Rep (1998) 22 FamLR 756
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FLC 93-654
George & George [2013] FamCAFC 182
Grella & Jamieson [2017] FamCAFC 21
Hannigan & Sorraw [2010] FamCAFC 257
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FLC 93-344
M & M [1988] FLC 91-973
Napier & Hepburn [2006] FLC 93-303
Division: Division 2 Family Law Number of paragraphs: 104 Date of hearing: 16 March 2023 Place: Wollongong The Applicant: Litigant in person Solicitor for the Respondent: Ms Finney Solicitor for the Independent Children's Lawyer: Ms Ung ORDERS
WOC 676 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAMBER
Applicant
AND: MS LANDY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
1.The Father’s Application in a Proceeding filed on 16 November 2021 is dismissed.
THE COURT NOTES THAT:
A.The interim parenting orders that have been in force up to the present time continue.
B.The matter is set down for final hearing before Judge Neville between 14 and 16 August 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gamber & Landy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
These are the Reasons for Judgment that were delivered ex tempore on 3 May 2023. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these Reasons.
These Reasons relate to an interim hearing that took place in the City B Registry of the Court on 16 March 2023 and these are short form reasons pursuant to section 69ZL, being in relation to an interim parenting matter.
The proceedings are between the Applicant Mr Gamber, the father, and Ms Landy, the mother, and involve the Independent Children's Lawyer appointed pursuant to section 68L, Ms Ng. The subject children are X born in 2009, and Y born in 2012. At the time of the interim hearing, X was 14 years of age. Y was 10 years, very nearly 11 years. She is now 11 years of age.
The parties apparently met in 2004, commenced cohabitation in 2005, married in 2008 – although the father says a different date in his affidavit of 28 April 2022 – and separated on 5 January 2015, though the father says the parties separated in August 2015 in that affidavit.
The matter went to interim hearing on the basis of an Application in a Proceeding filed by the father on 8 November 2022 seeking parenting orders that I will go through in a few moments.
The matter is currently set down for a final hearing in the City B Registry to take place in, I think, August of this year. That hearing is at the moment listed before Judge Neville. In that final hearing, the father seeks that the care of X and Y be shared between the parents, whilst in the mother's case she seeks that no order be made in relation to the children spending time with their father, that they live with her and she have sole parental responsibility. It is a situation where the parties separated eight years ago, on any telling, and both X and Y have lived with their mother since that time. Where initially, as I will come to in the evidence, there was a shared care arrangement between the parties, but ultimately, and particularly due to an event that took place in June of 2019, the children ceased spending time with their father, and since then it has been sporadic telephone communication, though even that has not occurred for quite some time now between X and her father.
Presently in the matter I should indicate that parenting orders were made by consent between the parties by then Senior Registrar Campbell, now Judge Campbell, on 19 March 2021, and those orders provided that until further order both children live with their mother, she have sole parental responsibility for the children, and pursuant to section 68B, the father was restrained by injunction from approaching either of the children, from attending upon their place of residence, school or extracurricular activities, or from approaching the mother. An order was made for the children to have communication with the father by use of what was referred to as a "strict purpose phone". Further injunctive orders were made by consent under section 68B restraining the parties without admissions from discussing the proceedings with the children for any purpose. A specific order was made that the mother do all things possible to ensure the children do not spend time alone with Mr EE outside of school hours. An order was made permitting the children to make telephone calls to the paternal grandfather on special occasions, provided those calls are monitored by the mother.
At the time those orders were made, the father was awaiting what at that time had been set down for his trial of criminal proceedings, serious criminal proceedings against him in May 2022. As I will get to, in the evidence that went to a plea.
Orders were made on 9 March 2022 by Judge Campbell, in particular that by consent, without admissions and without prejudice, the mother was restrained from bringing the children into contact or communication with the paternal uncle, Mr C.
On 7 June 2022, the matter was set down for its final hearing.
At the interim hearing, the father relied upon his Outline of Case document filed 14 March 2023, his Application in a Proceeding filed 8 November 2022. He relied on a number of affidavits but was required to particularise what parts of earlier affidavits he was relying upon, and he indicated he was relying on his affidavit of 4 March 2021 in relation to paragraphs 43 to 47 inclusive, paragraph 49, and Annexure G, page 3 thereof, the item known as 1.450 on page 3 of Annexure F, and paragraphs 66 to 72 inclusive in the first page of Annexure G. He relied on his affidavit of 28 April 2022. He relied upon his affidavit of 18 November 2021, but only in relation to paragraphs 10 to 16 inclusive, and Annexures A, B and G. He relied in particular on his affidavit of 2 November 2022 filed 3 November 2022.
The mother relied upon her Case Outline document filed 15 March 2023, her Response to Application in a Proceeding filed 15 March 2023, and her affidavit sworn or affirmed and filed 15 March 2023.
The Independent Children's Lawyer, Ms Ng, relied upon her Outline of Case document filed 15 March 2023.
Each of the parties and the Independent Children's Lawyer relied upon both a previous Family Report prepared by Dr D dated 27 November 2017. A copy of that report became Exhibit ICL1 in the proceedings. They also relied on an affidavit sworn 14 March 2023 of Dr D that attached, besides the usual CV details, an Expert Report dated 14 March 2023 that had been ordered by Judge Campbell on 7 June 2022, and that was based upon certain materials read as listed in the report and an interview with each of the children. The parents were not interviewed for that report.
There were a number of exhibits in the matter, and in particular, as I said, exhibit ICL1 was the previous Family Report of 27 November 2017. ICL2 was the Statement of Agreed Facts presented to the learned presiding District Court Judge at the time of sentencing of the father in relation to his serious criminal matters, which I will get to in the evidence shortly. ICL3 was the criminal history from NSW Police of the father, including the most recent charge, wounding a person with the intent to cause grievous bodily harm. That was the matter being dealt with in the District Court in the Statement of Agreed Facts.
Exhibit ICL4 is the judgment upon sentencing of the Judge dated 2022. It is only noted at this stage from that exhibit that the sentencing decision of his Honour was a conviction of the father, imposition of a term of imprisonment, but that pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed to be served by way of an intensive correction order commencing in 2022, expiring in 2024. The father was to report to the Suburb F Community Corrections office on or before 4:00PM, which no doubt was done. Standard conditions of the Community Corrections order are set out in orders 5 and 6 of the order on sentencing. Exhibit ICL5, a document from G Contact Centre which was a centre that at one time, pursuant to orders made, was to provide a location for and supervision of time to be spent between the father and the children. That time did not eventuate.
Exhibit A1, an exhibit for the applicant father, is a bundle from the applicant father's tender bundle from page 200 to 247, being certain medical records for the children. The first part of that document contains various letters of reports. The first one is from H Psychology Clinic dated 10 April 2022 in relation to Y, and is prepared by Ms J, a clinical psychologist. There is a document from the K Psychology Clinic in relation to the mother, being a psychological assessment report in relation to the mother from the K Psychology Clinic. There is a medical report from Region L Family Medical Centre in relation to the mother, dated 23 March 2021, and there is a student summary from 2021 for the child X. There is a report in relation to Y from M Centre prepared by a Ms N, an occupational therapist, unfortunately without dating. There is a letter from Dr O, a staff specialist paediatrician, in relation to Y and dated 26 May 2021, and then there are some block medical records, an assessment and care plan and other medical records relating to the child X from Region P Local Health District, another block headed Community Health Documentation in relation to X, also from Region P Local Health District, and a block of records from Region P Local Health District in relation to Y, being a discharge referral, community health documentation.
Exhibit A2 is a copy of a document prepared by the father dated 8 December 2017 in relation to some matters traversed at a mediation between the parties. It mainly consists of the father setting questions to the then ICL and to the mother.
Exhibit A3 is a confidential psychologist report in relation to Y on the letterhead of Region P Local Health District, and prepared by Ms Q, senior psychologist, a psychologist who was providing some assistance to Y in the past.
There is a block of documents produced on subpoena by Family and Community Services as Exhibit A4, and that is relied upon by the father in evidence, as to the tags attached thereto and numbered 14, 15, 18, 19, 21, 22, 23, 25, 26, 27 and 32.
Exhibit A5 is a block of documents produced on subpoena also by Family and Community Services. It is relied upon by the father in relation to tags numbered 37 and 38. The tag numbered 38 has also got a tag M12 on it.
Exhibit A6 are documents produced on subpoena by R Counselling Services. They are relied upon by the father in relation to the tags attached thereto, numbered 9, which is a large tag, and then small tags 34 and 35.
Exhibit A7 is a short bundle consisting of six pages of print-outs of various email correspondence between the father and solicitor for the mother and the Independent Children's Lawyer, Ms Ng.
Exhibit A8 is a report on the letterhead of H Psychology Clinic in relation to the father and dated 15 March 2023, consisting of five pages and prepared by Mr S, a registered psychologist. His Curriculum Vitae is the bulk of that document, the second page of it only being his adoption by signature, so the document itself as to substance is only the first page thereof.
I have read and considered all of that material that I have traversed that is relied upon by the parties, including all of the exhibits.
At the interim hearing, the father was self-represented and he was present in the Courtroom. The mother was represented by Ms Finney who appeared by video link, and Ms Ng appeared on her own behalf as Independent Children's Lawyer, also by video link.
Some extensive oral submissions were made on behalf of each of the parties and by the ICL at the hearing. The father, of course, made submissions on his own behalf. Ms Finney made submissions for the mother and Ms Ng commenced by making submissions as ICL. The father made short submissions in reply to the mother's submissions, and then Ms Ng made a short reply to the submissions made by both the father and the mother, after which the father once again made a very short reply. I have reviewed all of those submissions made.
In relation to the evidence in the matter, I will outline it in brief. Before I do that, the father's application, in essence, as set out in his Application in a Proceeding but amplified in his Outline of Case document, seeks unrestricted and open communication through each of the children's telephones, emails or other electronic applications, and seeks unsupervised visitation with the children, X and Y, every second weekend. If not given unsupervised visitation, supervised visitation through G Contact Centre in City T, or through U Contact Centre, a private company contact service, seeking that the father be allowed to travel with the children interstate to holiday or visit his relatives for seven days with a month's notice to the mother, without interrupting school and/or other social activities, and seeking the father's inclusion in and consultation with any mental health care treatments for the children.
The orders sought by the mother were as set out at the end of her Case Outline document, in that she sought that that application and any outstanding Application in a Proceeding of the father be dismissed. She also sought costs of and incidental to the application.
Ms Ng set out the orders that she thought appropriate in her Case Outline document, being that all outstanding Applications in a Proceeding, which, of course, refers to interim applications, be dismissed.
Now, turning to the evidence, firstly the evidence of the father. As I say, I have carefully read and considered all of the evidence. The evidence in the father's affidavit of 4 March 2021 in those specific paragraphs I referred to was by way of a reply in the main to a previous affidavit of the mother. I have considered that material. I have also considered the annexures that the father specifically referred to in his evidence, being the notation at 1.450 on page 3 of 10 of his Annexure F to the affidavit, and also material on the first page of Exhibit G, being the first page of the 2020 Semester 1 school report from V School for Y. Of the father's affidavit of 18 November 2021, I have considered the material in his paragraphs 10 to 16 and annexures A, B and G. The father referred in paragraph 13 to the orders that were made on 9 July 2020 for him to spend time with the children supervised through the G Contact Centre in City T. He then details a course of correspondence between himself and the then Independent Children's Lawyer in relation to the parameters and rules surrounding spending such time, and then in paragraph 15 he says:
In mid-January 2021, with still no response from either ICLs, out of total frustration that this was not going to be complied with, I informed the centre that it appeared that [Ms Landy] was not going to comply so our spot should be given to someone else.
He then gives his reasons for taking that fairly drastic step, which concludes with him saying that he felt that he could not talk to the children at that stage anymore until after his trial, which was then pending, because he felt there was no way that he could prepare fully for the criminal trial with the constant "psychological abuse I felt from the respondent", the respondent, of course, being the mother. I have considered the annexures to that affidavit the father relied upon, particularly Annexure B was a course of correspondence that I have referred to in relation to the parameters for time at the centre and so forth, and touching on other matters, and Annexure B was also details of correspondence entered into by the father, and in particular a letter of 1 November 2021 which he headed Open Letter of Offer and which was not objected to in the interim hearing, in which he set out his proposal for an interim arrangement at that time and his reasons for making that proposal. The father's affidavit of 28 April 2022 is where he gives his evidence that in mid-2019, he was arrested and charged with multiple offences in relation to an incident that occurred between himself and Mr W in 2019. From the perusal of the Exhibit ICL2, that involved delivery of certain wounds to Mr W by the father. At that relevant time, everything indicates that the father was intoxicated. The father indicates in paragraph 49 of the affidavit, that he has not seen the children face to face since the time of his arrest in 2019. He subsequently entered a plea of not guilty to the charges. It was set down for a hearing in 2022, but ultimately, as I say, the father entered a plea.
The father says he is a tradesman by trade and he has run his own business throughout the relationship between he and the mother. He says that on 5 January 2015, which is the date given variously for the parties' separation, though the father also asserts in another affidavit, August 2015. But he says on 5 January 2015 he was confronted by the maternal grandmother and maternal aunt at the family home. He says they were taunting him about property and parenting orders. He asserts they said to him words to the effect of:
You won't get anything from the asset split and you will not see the kids. We will be supporting [Ms Landy] and we will give her as much money as she needs to fight you.
He says he was angry and under the influence of alcohol, and in frustration, he damaged the kitchen and some of the rooms in the matrimonial home. In other evidence, we know that that damage was inflicted with a sledgehammer and was "extensive". The police attended the home and an interim AVO was issued for the protection of the mother. He left the home and stayed with friends, and shortly afterwards moved into a two-bedroom unit, and in 2015 consented to a final AVO for a period of 12 months. In 2015, the parties reconciled and he moved back into the matrimonial home. They commenced some counselling, attending five or six sessions, but in August 2015, separated on a final basis and he again vacated the matrimonial home. The parties pursued an equal time relationship in relation to the care of the children, with changeovers occurring at 3:00PM on Fridays.
In late 2015, the AVO was varied to include the children as protected persons and was extended from its original 12-month duration up to early 2017, following an incident between the father and the mother's brother Mr AA. The incident was considered to be a breach of the father's AVO and he was given an intensive correction order. The parents' shared care of the children continued.
In November 2015, the parents entered into a parenting plan formalising their shared care arrangement. At that time, the parents were communicating through telephone, texts and emails.
On 13 July 2016, the father filed his application for final parenting orders seeking a shared care arrangement, as I have said, on a week about basis.
On 14 February 2017, final property orders were made by consent.
In October 2017, the parents attended a counselling session together to discuss co‑parenting.
In November 2018, the original Family Report by Dr D was released.
Of course, in 2019, the father's criminal matters intervened and he has not seen the children face to face since that time. On 19 June 2019, interim orders were made by Judge Tonkin that the children live with the mother and she have sole parental responsibility, and the section 60AB protection orders that I have referred to were made.
In July of 2019, the father made a call to the mother's phone and spoke to the children. Following that, he communicated with them via text messages to the mother's phone.
In February 2020, the interim orders were made allowing him to have telephone and video calls with the children twice a week, and for the supervised visitation - or time between the father and children at G Contact Centre, City T. That ultimately did not eventuate, having been cancelled by the father. For a period of time, the father ceased telephone communication with the children, but ultimately at Y's texted request he resumed the calls.
The father says in paragraph 67 that:
After our final separation in 2015, I realised I had a problem with alcohol and how it made be behave. I attended counselling at [BB Centre] with counsellor [Mr CC] for six sessions between 17 September 2015 and 4 December 2015.
He also attended some counselling ordered by the Court with Dr DD in October 2015 to February 2016. The father asserted that that helped him with his anger issues.
On 16 March 2022, the father voluntarily attended an Australian Workplace Drug Testing Service clinic to provide a sample of his head hair for drug and alcohol testing. He tested negative for all drugs screened and alcohol, and he annexes as Annexure D to the affidavit a copy of that report.
The father gives some evidence in that affidavit about his concerns for the children's safety with the person Mr EE, but I refer to the order 6 made by consent on 19 March 2021 in relation to that. He also said he has concerns for the safety of the children in the presence of his father, Mr FF, based on his father's treatment of the father and his siblings. He also says there he has concerns for the safety of the children in the presence of his brother, Mr C, and I refer to order 1 made by consent on 9 March 2022 in that regard.
The father's main affidavit for the purpose of the interim hearing was his affidavit of 2 November 2022, and that was directed in part to an order he was seeking in relation to certain affidavits that have been taken into consideration by Dr D in preparing the supplementary Family Report. The report was done and available to the Court at the time of the interim hearing.
Under the heading ‘Unrestricted Communication with the Children’, the father says that in March 2021 he consented to the current communication order under duress and without full understanding of the consequences of consenting to the order. He says that in July 2020, Judge Altobelli had ordered that he should be allowed to set times of communication through a purpose telephone, and the video calls were allowed through a valid app. This raised some issues but eventually settled down into functioning communication. Unfortunately, that has all lapsed.
He referred to some comments by the sentencing judge and asserted that, with full knowledge of the facts, that judge gave an opinion that he was a low risk to the community and safety around his children, due to the criminal matters having nothing to do with his children. Under the heading ‘Unsupervised Access with his Children’, he refers to his criminal matter having been finalised and there being nothing in that matter that raises a risk for the children. He is allowed back into the City T area, which was an element of difficulty prior to that time in relation to his bail conditions. In saying, of course, that there is nothing raised in his criminal matter in relation to risk to the children, well, in assessing matters of risk to the children, the Court, of course, has to take into account all the facts relating to that criminal matter, the father's state of intoxication and the father's anger, the father's actions in acting out his state of anger, and so forth.
He points out that he has had no time with his children for three years since the mid-2019 incident, and that he is seeking limited unsupervised time with them to re-establish the bond that he asserts was so strong prior to mid-2019, as had been noted by Dr D in her report in 2017.
As I say, I have carefully read and considered all of the exhibits in the matter. I will just refer briefly to Exhibit A8, which is the one-page report by Mr S, registered psychologist, on the letterhead of H Psychology Clinic and dated 15 March 2023, on the day before the interim hearing. Mr S says that the opinion expressed in the report is based on his ongoing assessment of the father, and it is by way of a treatment update letter. He has had 10 consultations with the father since his initial assessment in July 2022. He has been an active participant in his treatment, and since December 2022, the consultations have been monthly. He says the father was originally diagnosed with adjustment disorder with mixed anxiety and depressive symptoms. He says since his treatment commenced, the symptoms have reduced. He says:
There are still psychosocial issues that [Mr Gamber] faces (currently now more related to custody of his children). However, his condition is stable and has been since late last year.
He says the father continues to receive cognitive behavioural therapy, but Mr S does not envisage the father needing that to be ongoing, as it will likely cease treatment over the next few months.
From the mother's documents, her affidavit of 15 March 2023, she asserts in a general statement, not objected to, in paragraph 6, that since the parties separated in 2015, the father has perpetrated psychological abuse of the children by way of discussing adult issues with them, involving them in the Court proceedings, interrogating them, denigrating the mother, exposing the children to conflict, and playing games with their minds. She says that during the relationship she was a victim of family violence perpetrated by the father by way of verbal, psychological and emotional abuse from the father whilst he was intoxicated, and that the children were also exposed to that behaviour. In paragraph 9, she refers to the incident on 6 January 2015 when the father smashed up the house with a sledgehammer whilst the mother and children were at an amusement park. She refers to an incident on 12 September 2015 when there was an altercation between the father and the mother's brother Mr FF who was residing with them at the time, and in view of verbal abuse Mr FF was packing up his belongings, put his son GG in the car, to leave these parties' matrimonial home. As he was leaving, the father grabbed him by the throat and punched him in the face. A physical altercation ensued, with the mother screaming, "Stop it. Let him go". The father is asserted to have said to Mr FF, "I'm going to fucking kill you," and then walked off. Mr FF's child GG was in the car in full view of the incident. Police were called. They deemed it a breach of the existing AVO protection order and the father was charged accordingly. It was as a result of that that the AVO order existing was extended.
She says in paragraph 19 that during the period 9 July 2020 to 19 March 2021, there were numerous occasions when the father would inappropriately communicate with the children, or failed to take the opportunity to communicate with the children in accordance with the then prevailing interim Court orders. She then goes on in the subsequent paragraphs of that affidavit, from paragraph 20 down to 37, to detail some of these occasions. I have considered all of that material.
It is mentioned briefly in paragraph 28 the family had a tradition of the children being allowed to open one present on Christmas Eve. The children opened one of the presents they received from their father, and then Y sent a message to her father thanking him for the present. The father did not respond. On Christmas Day, both children sent a text message to the father asking if they can call him. The father did not respond. She refers to an occasion on 7 January 2021 when her solicitor sent an email to the father and the ICL proposing some non-denigration orders following feedback from the ICL after a meeting with the children, and says that the father's response email included the words:
Since [Ms Landy] has already convinced the children that I'm a crazy cunt, what's the point in stopping now?
And annexes a copy of the said email to the affidavit.
She says that on 5 January 2023, the father sent a phone text message in words to the effect of:
Morning, [X] and [Y]. Just thinking of you on this anniversary. Love you lots xoxo.
And another quote:
It was eight years this morning my life went from a misery to really happy.
And also:
Doesn't matter. Just when I stopped being abused and started to feel happy like I once was.
5 January, of course, is the prime date given for the separation of the parties.
The mother asserts in paragraph 38 that when the father has messaged or telephoned the children, or asked that they call him, she has encouraged the children to call him and has facilitated the calls when they want to talk to him. She says that X has expressed to the mother that she does not want to spend time with her father, and she has not asked to speak to her father for over 18 months except for a brief conversation at Christmas 2021, and in relation to that conversation Y expressed her opinion in the updated Family Report by Dr D that X only spoke to her father on that occasion because Y pressured her to do. She said Y is 11 and has expressed mixed views, being on occasion that she does not want to spend time with her father, and on other occasions that she does want to spend time. That is also reflected in the updated Family Report. She says that Y's telephone calls with their father are sporadic. She does communicate with him through text messages on the mother's phone. She says Y has difficulties with aggressive outbursts and emotional regulation and has been diagnosed with ADHD in 2022, and is being monitored for autism, given her rigid thinking patterns and hyper‑reactivity. That relates to a certain matter, of course, in the exhibit documents.
Turning to the updated Family Report. I must say I have considered the original Family Report and the updated Family Report. The original Family Report is now five and a half years old. The updated Family Report was based upon interviews on 15 December 2022 with both of the children and the reading of various materials. Dr D in relation to X notes that she attends City T High School in Year 9, and that she lives with her mother and is able to call her father, though she does not do so. X said she had not spoken to her father since 2020 except for that one occasion at Christmas 2021 which she said she did to please her sister Y. At paragraph 16:
[X] stated that she stopped speaking with her father after a telephone call in 2020 when he told them that he was hurt and they were not worth talking to because they were so happy living with a woman who had ruined their lives, namely, their mother. [Y] stated that she felt sad and angry toward her father for making that comment about her mother. She became quite distressed as she talked about her father's attitude. She said that she felt hurt at the time as she had been trying to be happy for so long, and as her father he should be wanting the best for her. She said that she does not want to be around someone who made her feel bad for the way she felt. [X] stated that she blamed herself for her parents' separation at one time.
Paragraph 18, Dr D notes that:
[X] reported that she has some good memories of being with her father, that he was a fun dad who tried to make time for them. She said, "He was a good dad but not a good person". She said that he was not violent, and although he used physical discipline when they were young, it was not excessive. However, she said that she understands he has been violent in other contexts. She then referred to him destroying their kitchen with a sledgehammer because he was angry. She said she has not seen her father since she was in Year 5 "and her life has been easier not seeing him". She said that her father continuously made snide remarks about her mother which made her feel uncomfortable. She also asserted that the rules changed from house to house. She finds it easier to be in one house where there is only one set of rules.
At paragraph 20:
[X] stated she currently does not know where her father is and she is not interested in having contact with him. [X] said she cannot see any future or possibility of repairing her relationship with her father. She said that she can't look passed what he has done, namely, destroy the kitchen, blaming everything on their mother, making snide remarks and fighting with her uncle.
At paragraph 21:
She stated her mother is a good mother and that she is lucky to have such a good parent. She referred to her mother helping her develop better organisational skills. She nominated her mother as friend and friends as her go-to people and people who give her the best hugs. She said she is currently in a good space, did not want anything to jeopardise that. She said she no longer sees a counsellor and is not on any medication.
When asked by Dr D what message she would wish to be conveyed to the Court, she said:
She would like to communicate the message to the Court that she currently does not want to see her father unless she chooses to. She stated she does not expect anything from her father, such as presents. She said that at some time in the future she may resume a relationship with her father but she would like to determine when that time might be. She stated that she does not see that there would be any obstacles to her seeing her father if that is what she chooses.
In relation to Dr D's interview with Y, she noted that Y is in Year 6 at V School, and that:
During the interview her presentation was as flat in her effect, short and impatient, not wishing to be interviewed. She mumbled at various points through the interview and said she did not want to be there. [Y] said she used to live with her father on a week about basis, that her father was fun to be around, but since he has done what he has done, he has been a changed person. [Y] stated she did not think her father was all that able to look after them.
At paragraph 28:
[Y] stated that she had some unpleasant interactions with her father on the telephone. She said that he has told her and [X] that he did not love them because they saw and spoke with their paternal family and not with him. [Y] stated that her father has been gaslighting on the phone. [Y] stated that she stopped talking to her father at the time but then resumed several months later.
At paragraph 29:
[Y] said that her father has been telling her that his situation is not his fault, and that it is practically her mother's fault. She stated that she believes her father is lying to her and defends himself trying to convince her that he is a good guy. [Y] stated that she is not afraid of either parent. [Y] seemed ambivalent about her wishes to see her father. She said that there are times when she thinks she would like to see him every fortnight, but then there are times when she thinks she would like to choose when she sees him. She said she would prefer to spend time with her father alone because her mother and [X] make things worse, although she was unable to articulate in what way that was the case. She said she would probably feel annoyed if she did not get to see her father.
From Dr D's ‘Evaluation’ section, I note the following direct quotes:
The children expressed different views about spending time with their father. [X] indicated she does not currently want her living arrangements to change. She indicated she would like to pause contact with the father electronically and in person, in the knowledge that she could reconnect with him if and when she was ready. Her position is not atypical of children who move into their adolescent years and find that they can no longer traverse the delicate terrain of moving between two warring parents, and that it is much more manageable for them to live in the care of one parent and park the relationship with the other to some future date. [Y] seemed to be more ambivalent in respect of her views to have a relationship with her father. She appears to have felt disappointed with their father when there have been interruptions in their contact, and sought to resume communication after the interruption in 2020. She indicated she would like to have contact with him electronically and face to face, perhaps fortnightly. She also indicated that she believes she could manage to do that individually, even though her sister may think she should also be present.
Dr D noted:
The children at the time of their interviews were 14 years and 11 years of age, and that given their ages, some weight needs to be accorded to their views.
She said:
[X] in particular displayed considerable maturity and insight in her disclosures in respect of her feelings and thoughts. In the case of [Y], her living arrangements will need to juxtapose her views alongside safety concerns.
In paragraph 38, she noted that:
[Mr Gamber] seems to have minimised the seriousness of his actions in his conversations with the children, and possibly has limited insight into how his behaviour extrapolates to parenting relationships. If the children reach the point where they wish to delve further into what has occurred with their father - and there she is referring to the [mid] 2019 criminal matter - that may best be processed in a therapeutic environment.
At paragraph 39, she says:
The children seem to have formed the belief that their father has been unreliable and undermining of their mother, and they have become progressively more disgruntled with the way he has interacted with them and his lack of insight into the impact of his behaviour, and some of his choices, such as suspending telephone contact and not following through on visits at the contact centre, would have contributed to the children feeling their father has abandoned them. It also provides the Court with little material with which to move forward in making orders that are child-focused and ensure the children's safety.
At paragraph 40, she says that:
The capacity of the father to self-regulate seems to have been compromised when he has been under the influence of alcohol. June 2019 certainly seems to bear that out. The Court would need to have the assurance that if either of the children was to spend time with their father, he would need to provide evidence that he has not been consuming alcohol.
She makes recommendations that the children live with:
…that [X] live with her mother and spend time with her father in accordance with her wishes.
She recommends:
…that [Y] spend time with her father initially supervised, and that progress to unsupervised time, contingent on the feedback from the contact supervision service. If the time between [Y] and the father was to progress to unsupervised time, it would be recommended it be no longer than alternate weekends.
She recommends that:
If the Court considers that the father's alcohol use poses a risk to the children, orders may need to be put in place in relation to his consumption of alcohol if either child is in his care.
She recommended, of course:
…that the parties do not discuss their adult issues in the presence of the children or expose them to conversations which denigrate the other or significant others.
In relation to the contents of that updated Family Report and the recommendations therein, I must note, of course, that the report and the material upon which it is based, particularly the written materials read, are untested, and as the Full Court has pointed out on several occasions, the Court must be cautious in interim proceedings in proceeding to make interim parenting orders based upon the contents of and recommendations in untested Family Reports and Expert Reports. In that regard, I refer to the authorities of Hannigan & Sorraw [2010] FamCAFC 257, and George & George [2013] FamCAFC 182.
In any parenting proceedings, interim or final, the Court must follow the legislative pathway and give attention to section 60B of the Family Law Act 1975 (Cth), which sets out the objects of Part VII of the Act relating to parenting matters and the principles underlying those objects, and I have considered those objects and their principles behind the objects for this matter.
Section 60CA of the Act provides that when deciding to make a particular parenting order in relation to children, the Court must regard the best interests of the children as the paramount consideration. The children's interests are not the only consideration. Parents and other persons, extended families and so forth are often relevant, but the children’s interests must always be the paramount consideration. In determining what is in the children’s best interests, the Court must consider the matters set out as the primary and additional considerations in section 60CC of the Act and make findings.
Section 61D provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the children for the children's parents to have equal shared parental responsibility for the children. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse of the child, and the presumption when applying may be rebutted by evidence if it satisfies the Court it would not be in the best interests of children for the parents to have equal shared parental responsibility. On an interim basis, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
If an order for equal shared parental responsibility is made, the Court must consider the matters set out in section 65DAA of the Act in relation to the children spending equal time with each of their parents, and make findings as to whether such would be in the best interests of children, whether such would be reasonably practicable, giving attention to the considerations in subsection (5) of that section, and if the answer to both is ‘yes’, the Court must consider making orders that relate to the children spending equal time with each parent. If ‘no’ such orders are made and there is an equal shared parental responsibility, the Court must consider making orders that provide for the children to spend substantial and significant time with each of their parents, and substantial and significant time is explained in subsection (3) of that section. In considering that, the Court must consider whether substantial and significant time with each parent is in the children's best interests. It must consider whether such is reasonably practicable, and if the answer to both is ‘yes’, the Court should consider going on to make an order of that nature. If the Court does not make such an order, then the Court must decide what orders are proper to be made in all the circumstances, with the best interests of the children as the paramount consideration. In using the expression "the children", of course, the Court must give attention to the best interests of each of the children individually, as well as the children collectively, with those interests as the paramount consideration.
As to what is proper and how the Court's discretion is to be exercised, I note the comments of the Full Court of the Family Court in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments, assumptions, necessarily uncertain predictions, and intuition.
Of course, in interim proceedings, the Court has a mass of untested evidence and very often there is a mass of conflicting or contested evidence. In this matter, the principal evidence for the Court's consideration is not really on a contested basis, but where it is, the Court can only make findings one way or the other where it is safe to do so on the basis of either admissions or sufficient corroborative evidence to render a finding safe in interim circumstances.
There is much jurisprudence on the question of risk in parenting proceedings. For these short form reasons, I would simplify the jurisprudence by saying the task of the Court where risk is asserted, it is not necessary to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, such a finding rarely being open to the Court on the evidence, but rather to assess whether the evidence establishes that there is a risk to the best interests of the child, and if there is such a risk, to assess whether that risk is an unacceptable risk or an acceptable risk, and if it is assessed to be an unacceptable risk, to assess whether or not the risk can be mitigated by appropriate orders, to decide what order is proper in all the circumstances in the best interests of the child. Detailed exposition of the treatment of risk in family law parenting matters can be found in the High Court's decision in M & M [1988] FLC 91-973, and from the Full Court of the Family Court of Australia in A & A & The Child Rep (1998) 22 FamLR 756, particularly paragraphs 3.23 to 3.25, Napier & Hepburn [2006] FLC 93-303, Johnson & Page [2007] FLC 93-344, Deiter & Deiter [2011] FamCAFC 82, particularly at paragraphs 61, and Eaby & Speelman [2015] FLC 93-654, particularly at paragraph 19.
This is a matter that is put before the Court as a matter involving risk, asserted by the mother and the Independent Children’s Lawyer to be an unacceptable risk consequent upon the father's past behaviours in relation to violence, family violence, destructive behaviours and criminal behaviours leading to the various charges brought against the father, an ungovernable anger, a propensity to intoxication and, when intoxicated, to give way to ungovernable angers.
Turning to section 60CC of the Act and the primary considerations, the primary considerations are the benefit to the children of having a meaningful relationship with both of their parents, and any need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and the Court is mandated by subsection (2A) to give greater weight to any consideration of a need to protect children over consideration of the benefit to the children of having a meaningful relationship with their parents. It is under these primary considerations that the question of risk is usually examined, though some of the additional considerations, such as that relating to family violence and capacity of parents and so forth also bear into risk. When determining questions of risk, the Court may be making findings based on the balance of probabilities on various matters presented in the evidence and so forth, but the assessment by the Court of risk is not a matter based on findings on the balance of probabilities, as questions of risk can very much be possibilities rather than probabilities, and as the Full Court has said of recent time, it is not a matter of assessing risk on a balance of probabilities, but of weighing up all of the relevant material and evidence and assessing whether there is risk, whether it is an unacceptable risk, and if so, whether appropriate orders can be made to mitigate, or what orders are proper to be made in all the circumstances. The reference to that, of course, is Isles & Nelissen [2022] FedCFamC1A 97.
In this matter, the Court has in the past made relevant interim orders based on an assessment of unacceptable risk posed for the children in the unsupervised care of the father consequent upon his difficulties with alcohol, his difficulties with anger management, and the violent actions he has given way to in the past. Nothing has been presented in these interim proceedings which, being heard in March, some only five or six months before the matter is set down for a final hearing in August of this year, that would change my view that on all of the evidence I assess that the father does represent an unacceptable risk to the children at the present time if the children were in his unsupervised care, and I also find at the present time that there is an unacceptable risk to the children, even in circumstances of supervision, that the father may give way either to his anger or to his propensity to make statements to the children psychologically harming to them in relation to expressing his views of the mother, his views about the adult relationship and other matters. There is that unacceptable risk, I find, and it is yet to be determined by me if there are orders that could be made that mitigate that risk so as to approach making the orders for unsupervised time between the father and the children, or orders not sought by the father but open to the Court on a consideration of supervised time between the father and the children as is - well, I should not say sought by the father. It is not in his application but he certainly has referred to it in the orders sought in his Outline of Case document, through G Contact Centre, City T, or U Contact Centre.
Whether or not there is a benefit to these children in having a meaningful relationship with both of their parents, I am not able to determine on the evidence before the Court on this interim hearing. The evidence before the Court on this interim hearing must raise some doubts about the level of benefit to each of these children of having a meaningful relationship with their father, given his actions in the past, given his choices to forego the possibility of spending supervised time with the children at a supervision centre, given his choices to cease even telephone and other electronic communication with the children for certain periods of time, though he certainly seeks that now, seeks it most earnestly, and expressed not only urgently but cogently in his submissions, particularly his oral submissions, the force of his desire to come back into a relationship with his children. Nevertheless, I must find that at the moment the evidence does not allow me to make a positive finding that there is benefit to the children in that relationship. I must leave examination of that and any relevant finding to the trial judge who hears this matter on the final basis in August.
In relation to primary considerations, I have made a finding of unacceptable risk.
In relation to the additional considerations, I have the views expressed by the children as reported virtually on the very lip of the interim hearing, though it came from the interview in December of 2022, by Dr D in her updated Family Report. The child X expresses very strong views that she does not wish to spend time with her father, supervised or unsupervised, and that at the present time she does not wish to communicate with him. As it says in that report, and as the Independent Children's Lawyer notes in her Outline of Case document, Y is quite a bit more uncertain in her approach to spending time with and communicating with her father, being critical of him but still quite ambivalent about the question of spending time with him and communicating with him. The tenor of her views seem to come down on the side of her wanting to have an ongoing relationship with him, to have that ongoing relationship commence, if it is to commence, in safe circumstances of supervision, and electronic communication with him on her terms, and very much on the condition that he does not once again launch into making statements to her or in her hearing that are upsetting to her, and particularly critical of her mother.
In relation to the nature of the relationship of the children with each of their parents and other persons, the children have been in the mother's primary care all their lives, certainly since the parties separated in 2015, except for the period of time when they were in a shared care relationship with their father. They have been solely in their mother's care since June 2019. There is nothing in any of this to indicate that their relationship with their mother is other than a close and loving relationship, and that is reinforced by the children's comments in the updated Family Report. The nature of the relationship between each of the children and their father is once again a vexed question which the evidence on this interim proceeding does not provide a great deal of material for assessment. Certainly, I must find that at the present time the relationship between X and her father is breached, and X does not seek to resume that relationship except on her own terms at some time in the future. The relationship between Y and her father has also been breached to a fair extent in that there has been no time together since June 2019, and their electronic communication has been sporadic and has ceased over periods of time. I must find that the nature of the relationship between each of the children and their father is in a deteriorating state at the present time.
The additional consideration, to the extent to which each of the children's parents has taken or failed to take the opportunity to participate in long-term decision-making, to spend time with them and communicate with them. Unfortunately, we have the evidence of the father, as his own choice, for the reasons he gives, choosing not to spend time with the children that was available to him under the interim order to spend time at the G Contact Centre at City T, and on occasions choosing not to communicate with them.
I do not have evidence to enable me to consider the extent to which the children's parents have fulfilled or failed to fulfil their obligation to maintain the child in relation to the father. To the extent the children have been maintained, certainly the mother must have been maintaining them. Whether or not the father contributes towards that, I do not have any evidence.
Likely effect of any change in the children's circumstances. The change sought by the orders sought by the father is that both children begin to spend time with him, preferably on an unsupervised basis, as far as he puts it, or, if not, on a supervised basis either at the G Contact Centre in City T or through U Contact Centre. The effect of that at the present time on X, given her strong expression of her views and the reasons she gives for those views, would be to the detriment of her best interests at the present time. The effect of that on Y is difficult to judge, given the ambivalence with which she expressed her views, as reflected in the updated Family Report. At the present time, I have to find that the likely effect of the changes proposed by the father on the children would not be in their best interests, but I am saying that only on the basis of the evidence I have before me now, and it will be a vastly different matter in relation to the evidence available and therefore the findings that can be made and drawn from that evidence, particularly cross-examination of parties, witnesses and Dr D, at a final hearing.
There is nothing to be found of relevance in relation to the consideration of practicable difficulty and expense of the child spending time with and communicating with the father.
In relation to capacity of each of the children's parents, the father seeks the Court pour doubt on the mother's capacity by seeking, even through the children, to blame him for all the ill that has befallen him and the family more widely since January 2015. I particularly read out part of the mother's evidence about text messages sent by the father for consumption by the children on 5 January of recent time, in which he still seems to consider that everything that has befallen him and the children is at the mother's fault. It shows a lack of parenting capacity and it shows a remarkable lack of child focus on the part of the father. If the father is ultimately to be reunited with his children, whether as to orders made on a final hearing or whatever, then the father is going to have to develop and develop pretty quickly some really careful self-analysis leading to a real realisation of what child focus is, and how to conduct himself in a child-focused manner so as to resurrect, save and try to rebuild his relationship with his children. I do not say that to harm or offend or be pejorative, but in the tragic circumstances I am compelled to make these findings. The father attempts to cast doubt on the mother's capacity, but I cannot find on the evidence available to me in this interim hearing other than that the mother has adequate capacity to provide for the needs of the children, including their emotional and intellectual needs.
In relation to the maturity, sex, lifestyle and background of the children, X is 14, going toward 14 and a half, and Y is now 11 years of age. Female children, at school, X at high school, Y in primary school, and in the circumstances of this sad and tragic case, there is nothing further to be drawn from that consideration.
The attitude to the children and to the responsibilities of parenthood as demonstrated by each of the parents. On the basis of the evidence I have on this interim hearing, I find that the mother has acted in an appropriately protective way in relation to the children, and on the evidence, I am prepared to make a finding that the mother has acted in a child-focused manner in relation to the children. Despite the many things that have gone forward, the evidence establishes that she has facilitated the electronic communication between the father and the children, particularly Y in more recent times, so far as that has occurred. The father has not demonstrated an appropriate attitude to the responsibilities of parenthood, pointing only to make that finding as necessary to his conduct, leading the various criminal matters and charges against him and the effect of his behaviour in engaging in those matters on his relationship with his children. His activities in June 2019, albeit perhaps prompted by alcohol, led to the complete breach in his face-to-face relationship with both of his children.
I find there has been family violence involving the children and members of the children's family. The father's damage to the family home with the sledgehammer, the father's attack upon Mr FF simply and of themselves are family violence well and truly inside the definition in section 4AB of the Act.
Now, as these are interim proceedings and the matter is set down for its final hearing in August of this year, there is no real need for me to consider the consideration of orders that would be least likely to lead to the institution of further proceedings.
Now, having gone through the primary and additional considerations, the legislative pathway compels me to consider section 61DA of the Act and the presumption of equal shared parental responsibility, but, as I have found that there has been family violence perpetrated by the father, I need do no other than say that, accordingly, the presumption does not apply and need not be rebutted. It does not apply in the first instance, and I consider that the existing order made in this matter by consent on 19 March 2021, that the mother have sole parental responsibility for the children, should continue, pending the final hearing of this matter.
As there is no order and will be no order for equal shared parental responsibility, I do not need to consider the matters in section 65DAA of the Act.
I found that there is an unacceptable risk to the children. That has been found in the past. It has been conceded in the interim orders made by consent back in March 2021. It has been the theme of the orders made since the June 2019 incident. The evidence bears that out. The matter is going to final hearing in August of this year, when all of the evidence can be tested, in cross‑examination and so forth, and I find that on the basis of that unacceptable risk, none of the orders proposed by the father in his Outline of Case document are orders that are proper to be made in the best interests of the children. That has to be said with a great deal of sadness because the father's relationship with his children has been breached for so many years now, and it all hinges on the findings of the trial judge in the final hearing in August, but that is on the basis of the conduct of the father himself. It is the finding that I am compelled to make at the present time, and that finding leads me to order that all outstanding interim applications in this matter are dismissed.
The Court notes that the interim parenting orders in force up to the present time continue.
The Court further notes that the matter is set down for a final hearing before Judge Neville on 16 to 18 August 2023.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 3 May 2023
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