Garthorne & Garthorne
[2023] FedCFamC2F 462
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garthorne & Garthorne [2023] FedCFamC2F 462
File number: NCC 4533 of 2020 Judgment of: JUDGE KEARNEY Date of judgment: 26 April 2023 Catchwords: FAMILY LAW – parenting – three neuro-diverse children aged 12, 11 and 9 have not spent time with the father for nearly six months - father poses a material possibility of risk of harm to the children’s emotional and psychological health – mental health and alcohol abuse – increased risk of family violence – long-term supervision order to protect the children from harm while encouraging a meaningful relationship with the father – injunctions to address each parent’s deficits - reduced risk of exposure to parental conflict – best interests of children Legislation: Family Law Act 1975 (Cth) Cases cited: Bielen & Kozma [2022] FedCFamC1A 221
Blinko & Blinko [2015] FamCAFC 146
Bondelmonte v Bondelmonte [2017] HCA 8
Browne v Dunn (1893) 6 R 67
Eastley & Eastley [2021] FedCFamC1F 212
Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045
Godfrey & Saunders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520
Moose & Moose (2008) FLC 93-375
Napier & Hepburn [2006] FamCA 1316
Penfold and Penfold (1980) 144 CLR 311
Russell & Close [1993] FamCA 62
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 2 Family Law Number of paragraphs: 124 Date of hearing: 20-22 March 2023 Place: City B Counsel for the Applicant: Mr Moshides Solicitor for the Applicant: Darley Legal Counsel for the Respondent: Mr Antill Solicitor for the Respondent: SCB Legal Counsel for the Independent Children's Lawyer: Ms Callander (Solicitor Advocate) Solicitor for the Independent Children's Lawyer: Legal Aid NSW (City B) ORDERS
NCC 4533 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GARTHORNE
Applicant
AND: MR GARTHORNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
26 April 2023
THE COURT ORDERS THAT:
1.All previous Orders are discharged.
2.The applicant, MS GARTHORNE (‘the mother’) shall have sole parental responsibility for:
(a)X born in 2010;
(b)Y born in 2012; and
(c)Z born in 2013,
(collectively described as ‘the children’).
3.The children shall live with the mother.
The time the children spend with the father
4.Until 30 November 2026, the children shall spend professionally supervised time with the respondent, MR GARTHORNE (‘the father’) for a period of two (2) hours, four (4) times each year falling on a day between 14 days and seven (7) days before each of the children’s birthdays and Christmas Day PROVIDED THAT:
(a)The mother shall have sole discretion as to the selection of the children’s contact service who is to provide professional supervision of the children’s time with the father (‘the supervisor’);
(b)The father shall be responsible for the costs of the supervisor;
(c)The mother and the father shall do all acts and things as reasonably required by the supervisor including attending any intake sessions and ensuring the children attend for any intake as requested; and
(d)Any supervised time the children spend with the father does not need to include all three children and can be attended by one or more of the children.
5.For the purpose of facilitating Order 4 –
(a)The mother is permitted to provide to the supervisor, a copy of the Judgment in these proceedings published today;
(b)By 4:00pm Wednesday 24 May 2023, the mother shall notify the father of the relevant details about the supervisor appointed by the mother;
(c)By Wednesday 4.00pm 7 June 2023, the mother and the father shall contact the supervisor for the purposes of participating in any required intake procedure.
6.In the event that the supervised time as ordered does not occur on two (2) consecutive occasions because of –
(a)the father’s action (or lack of action); and/or
(b)a decision being made by the supervisor to suspend or cease the supervised time;
THEN Order 4 is discharged and the children shall spend no time with the father other than as set out at Order 7.
7.In addition to Order 4, the children shall spend time with the father at the sole discretion of the mother including as to –
(a)the regularity (if any) and period/s of time; and
(b)any other conditions determined by the mother including as to the location and supervision of such time as well as whether one, some or all of the children shall participate.
Communication between the children and the father
8.The father is at liberty to communicate with the children by telephone, FaceTime or other audio-visual platform, at times to be agreed in writing between the mother and the father, but failing agreement at the following times;
(a)On each of the children’s birthdays at 6.00pm;
(b)On the father’s birthday at 6.00pm;
(c)On Father’s Day at 10.00am; and
(d)On Christmas Day at 10.00am.
9.To facilitate Order 8, mandatory injunctions shall issue for the specified person to carry out the nominated actions as follows:
(a)The father will call or FaceTime the children’s iPad;
(b)The mother will ensure that the children’s iPad is turned on, fully charged and that the children are available to speak with the father at the times specified in these Orders or as otherwise agreed; and
(c)The mother will speak positively to the children about speaking with the father and is always to be encouraging of the children speaking to the father either together or individually but is not required to ensure that the children answer the father’s calls if they do not wish to communicate with him.
10.The father is at liberty to send the children letters, cards and gifts to an address to be nominated by the mother to the father in writing, on six (6) occasions each calendar year or as otherwise agreed in writing between the parties.
Communication between the parties
11.The mother and the father shall continue to use the ‘Our Family Wizard’ application to notify and communicate with each other with respect to the children except in the case of emergencies when they shall communicate via telephone.
12.The mother is to advise the father as soon as practicable on the happening of any of the following events:
(a)Any of the children becoming seriously ill;
(b)Any of the children being hospitalised;
(c)Any of the children being injured such as to require medical treatment.
13.In the event the mother advises the father pursuant to Order 12, the mother is to keep the father updated as to the child/ren’s medical condition and progress and in the case of hospitalisation, to advise the father when the child/ren are home.
14.Without derogating the mother’s sole parental responsibility for the children, in relation to decisions the mother is required to make about the children’s education, health or lifestyle (lifestyle including but not limited to such matters as tattoos, piercing and overseas travel) the mother will undertake the following actions:
(a)Provide the father with no less than fourteen (14) days’ notice in writing of any such proposed decision;
(b)Consult with the father regarding any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the father about any such proposed decision; and
(c)If no agreement is reached between the parties, the mother shall make the final decision and, within fourteen (14) days of doing so, provide the father with written confirmation of the decision and briefly set out the reasons why she has made the decision.
15.The father is at liberty to forward to the mother, no more frequently than once every three (3) months (unless otherwise agreed in writing between them) information in relation to his alcohol rehabilitation and relapse prevention (including copies of any hair follicle or other tests he undertakes to establish his sobriety) and letters and reports from his mental health treator/s regarding his mental health, particularly as it relates to his level of risk to himself.
Information about the children to be available to the father
16.Without derogating the mother’s sole parental responsibility for the children, these Orders serve as an irrevocable authority (by the mother) giving permission to;
(a)any school, TAFE or academic institution the children attend from time to time to provide to the father, on his request and at his expense, all of the information a parent would be provided with in the normal course of events;
(b)any of the children’s treating medical or psychological practitioners to provide to the father on his request and at his expense, information about the treatment of the children that a parent would be at liberty to receive in the normal course of events and at their discretion, to speak with the father if he so requests.
17.The mother is at liberty to provide a copy of these Orders to the children’s school or to any of the children’s treators.
18.Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’), and for the personal protection of the children, the father is restrained and an injunction shall issue prohibiting him from:
(a)Consuming alcohol 12 hours prior to, or during any communication with the children and any time he spends with the children, including his attendance at events and functions where the children are present;
(b)Being within 100 metres of the home of the mother and the children without the written consent of the mother;
(c)Being within 100 metres of the school the children attend from time to time whilst the children are present at the school and within 100 metres of any sporting or other activities the children are attending or in which they participate, without the written consent of the mother; and
(d)Approaching within 100 metres of or attending any venue or function which the children are attending without the written consent of the mother, and if the father sees the children and does not have the mother’s consent to him being present, the father shall immediately remove himself from the said venue or event.
19.Pursuant to s 68B of the Act, and for the personal protection of the children, the parties are restrained from and an injunction shall issue prohibiting them from;
(a)Insulting, belittling, undermining or otherwise denigrating the other parent or the other parent’s family members or friends in the presence, hearing or sight of the children;
(b)Exposing the children to family violence;
(c)Communicating about adult or parenting issues, or the Court proceedings or the Court Orders through the children or directly with the children unless it is to clarify what the Orders mean in practice;
(d)Asking the children questions about the other parent or the other parent’s lifestyle or family;
(e)Discussing with or questioning the children about any past or present conflict between the parties or the children’s preferred living and spend time with arrangements.
20.The mother shall be at liberty to apply for or renew an Australian travel document and/or Commonwealth of Australia passports for the children, X born in 2010, Y born in 2012 and Z born in 2013, and the consent of the father is not required for such passport applications.
21.For the purpose of s 65Y of the Family Law Act 1975 (Cth), the mother shall be at liberty to remove the children, X born in 2010, Y born in 2012 and Z born in 2013, from the Commonwealth of Australia for the purpose of taking them on an international holiday and the consent of the father is not required for such removal.
22.By Wednesday 10 May 2023, the Independent Children’s Lawyer shall meet with the children to explain the effect of these Orders to them.
23.By 26 April 2024, the father shall pay $4,206.60 (inclusive of GST) for his contribution to the costs of the Independent Children’s Lawyer unless a waiver is granted or obtained.
24.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
25.All outstanding applications are otherwise dismissed.
THE COURT NOTES THAT:
A.At the conclusion of the hearing it was established that the parties agreed to the making (in effect) of orders 1 to 3, 6, 7, 9 to 16.1 and 17 of exhibit ‘ICL3’.
B.Without derogating from the discretion of the supervisor - when the determining a suitable location for supervised time to occur, consideration should be given to the mother’s personal circumstances and her role as primary carer for the children.
C.In exercising the discretion afforded to the mother at Order 7, the mother will take into consideration the children’s wishes which may include that only one or some (but not all) of the children wish to spend time with the father.
D.In making Order 15, it is not the intention of the Court for there to be any expectation on the part of either parent that the father is obliged to provide the information set out therein, or that, upon receipt of the information, that the mother is to consider exercising any discretion given to her by these Orders about the time and communication that the children may have with the father.
E.Within the father’s proposed relief at exhibit ‘F8’, he sought the making of various orders requiring him to continue / commence attending upon various services or a program. Whilst the Court decided not to make those proposed orders, the Court encourages the father to continue to act upon his stated intention.
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 Garthorne & Garthorne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
Since their parents’ relationship ended some three (3) years ago, three vulnerable children have lived with their mother. The father too is vulnerable, having lately accepted that he is a childhood victim of sexual and physical abuse. Amidst all of the adverse behaviours the mother has seen the children exposed to, the mother wants the children to have some sort of relationship with the father. Will the children benefit from such a relationship with their dad and if so, how do I keep them safe from harm?
These Part VII[1] proceedings were commenced by the Applicant, MS GARTHORNE (‘the mother’). The respondent was MR GARTHORNE (‘the father).
[1] Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth)
The subject children are –
(a)X born in 2010 (‘X’);
(b)Y born in 2012 (‘Y’); and
(c)Z born in 2013 (‘Z’);
collectively described as ‘the children’.
The children were independently represented by Alexis Presker (‘the ICL’).
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and, where appropriate, there will be an avoidance of the use of gendered pronouns.
PRECIS
Following separation, the children lived in an equal-time arrangement (week-about) with each of their parents. Over a period of several months, the mother became increasingly concerned about whether the father was meeting or was capable of meeting the children’s complex needs including ensuring they took their prescribed medication, the father attempting suicide and X requiring psychological support after expressing suicidal ideation at her school and to the father. As a result of her rising concerns, the parenting proceedings were commenced and the equal-time arrangement was unilaterally ceased by the mother.
In responding to the proceedings, the father sought the reinstatement of the equal-time arrangement.
The parties’ proposals changed during the course of the trial but by submissions, the parties all agreed that –
·the children should live with the mother;
·the mother should have sole parental responsibility for the children;
·any time spent by the children with the father did not need to include all of them;
·the children could electronically communicate with the father as agreed and on the occasion of various significant events being the children’s birthdays, the father’s birthday, Father’s Day and Christmas Day;
·the children could receive written correspondence from the father on six (6) occasions annually;
·there could be defined communication between the parents and with specified third parties about issues to do with the children’s welfare including the opportunity for the father to give the mother feedback before she exercises her sole parental responsibility about the children’s education, health or lifestyle;
·no more than once per every three (3) months, the father would be at liberty to provide to the mother information about his alcohol rehabilitation and relapse prevention and the management of his mental health particularly insofar as the level of risk he poses to himself;
·a restraint being imposed on the father regarding his consumption of alcohol before and during any contact (time/communication) he has with the children;
·various restraints being imposed upon the parents aimed at preventing the children from being exposed to family violence and parental conflict.
The mother and the ICL agreed that –
·the children should spend time with the father in accordance with their wishes with the mother having the sole discretion to determine what that looks like;
·the father should be geographically restrained from being within 100 metres of the home of the mother and the children, the children’s school and other activities whilst the children are present, the venue or function where the children are attending – unless the mother has given written consent for him to be present;
·the mother should be able to obtain Australian travel documents for the children and for the children to travel overseas without the father’s consent.
In addition, the mother sought that any parental communication occur via the ‘Our Family Wizard’ Application.
Further to the parties’ agreed position, the father sought that –
·the children spend time with him as follows –
ofor six (6) months for two (2) hours per fortnight supervised by C Contact Service with the father to pay for the costs of such visits;
ofor three (3) months for two (2) hours per fortnight unsupervised PROVIDED THAT the 6-month supervised visits have concluded and the father has demonstrated successful engagement in mental health and alcohol abuse services; and then
ofor three (3) months overnight from 5.30pm Saturday to 5.30pm Sunday each fortnight; and ultimately
ofor two (2) nights each fortnight from 6.00pm Friday to 5.30pm Sunday.
·Changeovers to occur at the McDonald’s Restaurant at Suburb D;
·The father to continue attending trauma counselling for so long as is recommended by his treating practitioner;
·The father to continue or commence engaging with services to address his abusive relationship with alcohol and his family violent/abusive behaviours.
Finally, the ICL sought a costs order of in excess of $4,200 against the father.
The main issues in dispute were what risks of harm the children were exposed to in the father’s care and whether those risks could be ameliorated by either the amount of time the children spent in the father’s care, his mandatory engagement with various health services and/or injunctive relief.
In the father’s household the significant risks were related to the children being –
(a)potentially exposed to family violence[2] including physical violence perpetrated by the father upon his current partner and her son; and
(b)emotionally and/or psychologically harmed[3] because of the father’s incapacity to meet their needs arising out of his inability to manage his mental health and/or his abuse of alcohol.
[2] See s 4AB.
[3] Section 60CC(3)(f).
When contending with issues of risk of harm to children, it is not for the Court to find a solution which eradicates the chance of serious harm: see Napier & Hepburn [2006] FamCA 1316 (‘Napier & Hepburn’). Instead, the Court must balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy parent-child relationship not being permitted to flourish: see Napier & Hepburn.
For the reasons that follow, I have adopted the joint position of all parties. In addition, I have (in part) adopted the agreed position between the mother and the ICL and have also adopted the mother’s proposal about how the parties should communicate, as well as specifying that the children should spend supervised time with the father four (4) times a year until Z’s 13th birthday which will mean in summary that –
(a)The children will live with the mother;
(b)The mother will exercise sole parental responsibility;
(c)The children will spend time with the father in accordance with their wishes - subject to mother’s discretion about whether the time should be supervised and if so, by who;
(d)The children will spend professionally supervised time with the father four times a year to coincide just before four Christmas Day and the children’s respective birthdays provided that if there is a suspension of time on two consecutive occasions, then the order for such time will be discharged;
(e)There will be injunctive orders made to protect the children from the risks of harm posed by the parents and the father more specifically; and
(f)Within one year the father will pay $4,206.60 towards the costs of the ICL (unless he obtains a waiver).
ISSUES
There is a legislative pathway that I have to follow when exercising my discretion pursuant to Part VII. I can make a parenting order provided I think it is proper[4] but subject to a consideration of the presumption of equal shared parental responsibility[5] and the objects and principles of Part VII[6]. The High Court observed that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (bold emphasis added): see Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [8] (‘Masson v Parsons’).
[4] Section 65D(1).
[5] Section 61DA.
[6] Section 60B.
When deciding whether to make a particular parenting order I must have regard to the best interests of the children being the paramount consideration: see ss 60CA and 65DAA. As such, in parenting proceedings the focus should be on the effect on the child of the parties’ respective proposals: see Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045 at [71] and Bielen & Kozma [2022] FedCFamC1A 221 (‘Bielen & Kozma’) at [28].
As enunciated by the Full Court in Bielen & Kozma at [29]-[30], s 43(1)(c) requires me to have regard to the ‘the need to protect the rights of children and to promote their welfare’ which invites me, when considering matters impacting upon the welfare of the child, to focus on the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
62….A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Before exploring the issues in dispute, it is important to record that it was uncontroversial that:
(a)The children have and will benefit from a meaningful relationship with the mother;
(b)The children have a meaningful relationship with the father but the future benefit to be derived from that relationship needs to be considered through the prism of risk posed by him to them[7];
[7] See s 60CC.
(c)To varying degrees (based on their stage of development and/or exposure to the relevant person/s), the children have secure relationships with the father’s partner MS E (‘MS E’) and her children, F, G and H.
(d)The mother was not challenged about her evidence as to the family violence she (and the children) were subjected to by the father, despite the father largely rejecting her allegations in his cross-examination;
(e)The father is a victim of childhood trauma and says he has had a problematic relationship with alcohol for about 20 years which he says can at least in part be explained as his way of masking the effects of the trauma he has suffered;
(f)The father was diagnosed in 2012 with mental health issues and consequently being prescribed Medication;
(g)In early 2020, the father was admitted into hospital for two (2) nights following an attempted suicide which resulted in a diagnosis of mental health conditions (arising from the breakdown of the marriage). Consequently, his existing prescription was ceased and instead his prescribed use of Medications (for mental health issues) was increased and the father also commenced taking a low dose of Medication;
(h)In late March 2020, the father’s existing prescribed doses of Medications were increased;
(i)In late 2022, the father self-referred to the Region J Local Health District Drug & Alcohol Clinical Service (‘the Alcohol Clinic’);
(j)In January 2023, G was dropped off at the father’s home by G’s father, Mr K and a nephew. The father became upset at the behaviour of the two males and after preparing a meal for the children he left the home. The father later returned by which time MS E had arrived. The father was intoxicated and then became upset by a comment made by F which led to the father pushing MS E from her feet and onto a lounge, chasing F into a bedroom and punching F in the head. G and H were present in the house at the time and saw/heard some of the events described above;
(k)On 30 January 2023 the father was assessed by the Alcohol Clinic, attending several appointments since then for relapse prevention counselling;
(l)As a result of the January 2023 incident, the father is now subject to an 18-month community correction order for the offence of assault occasioning actual bodily harm, has a conviction for that offence and is the defendant to a two-year final apprehended domestic violence order (‘the ADVO’) protecting MS E and F which includes a condition that he must not approach or be in the company of MS E or F whilst intoxicated;
(m)The father has recently (mid-February 2023) engaged with social worker Ms L (‘MS L’) for trauma counselling;
(n)The father is compliant with his existing prescribed daily medication and since March 2020 the father has remained under the care of psychiatrist Dr M (‘DR M’) and psychologist Ms N (‘MS N’);
(o)X is 12 years of age and was diagnosed with a behavioural condition when she was nine (9) years of age;
(p)Y is 11 years of age and was diagnosed with a behavioural condition when he was about three (3) years of age;
(q)Z was diagnosed with a behavioural condition when she was about four (4) years of age. In 2019, Z was diagnosed with mental and behavioural disorders. In 2022, Z was diagnosed with a learning disability. She is now aged nine (9).
Are the children at unacceptable risk of harm?
The mother gave evidence about the family violence perpetrated by the father during and after their relationship ended in January 2020. In his trial affidavit the father expressly denied the various allegations made by the mother of family violence. The mother was not cross-examined by the father about any of her evidence which in summary included –
(a)The father repeatedly being verbally abusive towards her, sometimes in the presence of the children both before and after separation;
(b)The father drinking alcohol to excess during the relationship resulting in him becoming verbally abusive and physically threatening;
(c)The father becoming heavily intoxicated with alcohol at the mother’s 21st birthday party, shouting at her and breaking his hand after punching a concrete wall;
(d)As a response when the parties would argue, the father threatening the mother that he would kill himself or take the children away,
(e)The father being unable to control his anger to the point where he would shout into the mother’s face with his hand in a clenched fist and at times punch a wall or nearby object;
(f)The father becoming intoxicated with alcohol at a concert in the Region O and screaming abuse at the mother in front of their friend group;
(g)Post-separation, at the time of Y’s 8th birthday party –
(i)the father verbally abusing the mother in front of the children and maternal grandparents;
(ii)the father threatening self-harm if the mother did not declare her loyalty to him, after which he said goodbye to the children (causing them to feel confused and upset) and went to a local reserve to attempt suicide where he reportedly told Police he would not get out of the car until the mother got into it;
(h)the father driving past the mother’s home to monitor her movements.
In circumstances where the father’s evidence of him not perpetrating family violence was inconsistent with the mother’s evidence, his failure to put his version of events to the mother was of concern and could have broader implications for his case: see Browne v Dunn (1893) 6 R 67 at [70], [76].
I had regard to other evidence including Y’s recorded memories of –
…many times before his parents separated, they would argue, his father would drink alcohol and “go crazy”…his father would often yell and swear at his mother in front of him and his siblings.[8]
[8] Affidavit of Ms P at annex ‘A’, [30]. For convenience, references to content of this report shall be prefaced with ‘SWR’ followed by the relevant paragraph number.
Further on in the social work report, Y is recorded as saying “I don’t feel safe” when speaking of his experiences with the father.[9] The father and MS E gave evidence about what they saw and heard during an incident involving Y in October 2022. Z described the incident as her father beating up her brother and said the incident made her feel “sad” and that she “still feels bad about it a lot” saying that she feels guilty because she went to comfort her crying father and didn’t think about how Y was.[10] It is noted that all three children consistently recounted an incident between Y and his father which appears to have had a significant impact on each child and has impacted on their view of their father.[11] One of the only consistent features of all the evidence about this event was that the father rang the mother who travelled hours to come and collect Y and that as a result of the incident, upon the other two children returning to the mother, none of the children have spent time nor communicated with the father since.
[9] See SWR-34
[10] SWR-41
[11] SWR-49
The father said that (essentially) that he had been taken by surprise by Y’s “attack”, had had acted defensively and did not pick up or throw his son but did push Y away. My assessment of the father’s evidence was that he appeared to be downplaying or minimising what he did and its effect on others. Irrespective of what the father did or didn’t do, the reality is that all three children perceived their father to have behaved in a threatening and/or violent manner towards Y causing one or more of them to be fearful or distressed.
I have also reflected on the evidence of the father and MS E, as well as G’s electronic message received by X on 25 January 2023[12]. As I alluded to during the course of submissions, I found the manner of the father’s oral testimony about this incident to be unsatisfactory insofar as I am satisfied that he sought to minimise his behaviour as being, at least in part if not all, as a result of his “buttons being pushed” (to use my vernacular) by either F or the two men who interacted with him earlier in the afternoon. This lack of acceptance of responsibility causes me concern about his ability to manage his emotions in order to resist engaging in family violence into the future.
[12] See the affidavit of Ms Garthorne at paragraph 48 and annex ‘D’
This concern is amplified by the reality that for the past three (3) years the father has had the support of a treating psychiatrist and psychologist and ongoing prescribed medication which were presumably aimed at assisting the father stabilise his mental health. In addition, during that same period the father has sought advice about his relationship with alcohol and been the subject of alcohol testing (with varying results).
On that background and following another hospitalisation in 2022 (arising out of a call by MS E to the police because of her concerns about the father’s behaviour which ultimately saw a police report of the father consuming a 1-litre bottle of alcohol), the event with Y in October 2022 (and the subsequent fall-out), and then the release of the family report in November 2022 – in January 2023, the father once again was unable to appropriately regulate his emotions and/or avoid turning to alcohol. Instead when faced with oppositional or inappropriate behaviours from others, he reacted with physical violence upon those whose welfare should have been paramount in his mind. Since then, the only change to his treating team has been the engagement of MS L and some sessions with the Alcohol Clinic but these are very recent changes (post-dating the January 2023 incident).
There is no evidence upon which I could make a finding that the father’s longstanding mental health and abusive relationship with alcohol have either now stabilised or will stabilise in the short to medium-term sufficient to reduce the risk of family violence that I have already identified. Given his long history of difficulties, if the father chooses to continue down the path he apparently intends to[13] then it is likely to take years, not months for there to be hope of a brighter long-term future for him. This is in part, because ever since these proceedings started the father has been aware of the mother’s concerns, and whilst in the very short-term he appears to have gained some insight, I am not able to hold the same assurance as he does that he has now “turned the corner”.
[13] See proposed orders 10-12 of exhibit ‘F8’
I also have concerns about MS E’s capacity to act protectively should she decide to continue in the relationship with the father, irrespective of whether they resume co-habitation or not. I found MS E’s evidence particularly concerning because even after having been assaulted (pushed) and having to restrain the father by putting him in a headlock (to stop him further assaulting her son) and then moving out of the home where she lived with him, in her affidavit she:
(a)accused the mother of alienating the children from the father (rather than perhaps acknowledging that at least part of the discord was as a result of his behaviour and/or the mother acting protectively as a result e.g. her decision to suspend the children’s time with the father following their disclosures to her in October 2022); and
(b)appeared to minimise his behaviours by in summary accepting his statements to her that since January 2023 –
(i)he has changed and has now got his mental health under control (when it appears he has been treated for this for at least the last three (3) years and yet still engaged in family violence against her and her children [including exposure in the case of G and H]);
(ii)he has changed and has now effectively engaged in alcohol relapse prevention after what appears to be decades of abuse and despite getting a referral back in November 2022 but not being assessed until after the January 2023 incident; and
(c)is intent on moving herself and her children back into a domestic relationship with the father without (it seems) any thought for the impact on the children (in particular F) from such a decision.
Against that background, I am asked to make a finding that the father poses an unacceptable risk of harm to the children as a result of family violence. I am satisfied that the evidence demonstrates that the father has perpetrated family violence against two intimate partners and their children (either by way of the children being physically assaulted or witnessing his behaviours). I am also satisfied that the father poses a material possibility of risk of harm to the children’s emotional and psychological health arising from future exposure to family violence and/or deficits in his mental health and/or abusive relationship with alcohol: see Isles & Nelissen [2022] FedCFamC1A 97 at [6], [7], [46]-[51] and [81] and Eastley & Eastley [2021] FedCFamC1F 212 at [45]. This is because of:
(a)the abject failure (to-date) of the treatment of the father’s mental health deficits and his abusive relationship with alcohol which have (at least in part) led to the father’s inability to regulate his emotions appropriately when dealing with stress or oppositional behaviours from adults and/or children;
(b)my observation as to his minimisation of his behaviours in October 2022 and January 2023; and
(c)my finding that MS E is not someone capable of protecting the children from the father’s behaviours.
Whether the risk of harm posed by the father can be sufficiently managed or ameliorated through injunctive orders or supervised time, (see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62) is a topic I will return to later.
What are the views, needs and characteristics of the children?
X is 12 years of age, Y is 11 years of age and Z is 9 years of age.
All three children have been diagnosed with behavioural conditions. The family report writer opined[14] that –
…Children [with behavioural issues] often make choices on how they feel in the moment and struggle to imagine that they may have a different perspective in the future, or that there may be irreversible consequences for choosing one course of action over another.[15]
[14] For convenience, references to any content within the family report shall be prefaced by ‘FR’ followed by the numbered paragraph.
[15] FR-121
At the family report interviews on 13 October 2022 and just days before the incident between Y and the father –
(a)X said she did not mind going to visit her father[16] particularly when he takes her shopping; and
(b)Y said he did not want to spend more time at his father’s home[17].
[16] FR-107
[17] FR-121
At the social work report interviews with Ms P (‘MS P’) on 9 February 2023 and having not seen their dad for about four months -
(a)X said that she thought it would perhaps be okay to see the father very occasionally for special occasions such as birthdays and Christmas (if he brought gifts). X placed the father and MS E almost at the bottom of a notional “ladder with many rungs” with the top rung being the spot to identify person/s who make her feel “the best”, and each descending rung being spots to identify person/s who make her feel a little bit less good and finally the bottom rung being a spot for any person who makes her feel sad, angry or unsafe (‘the feelings ladder’);
(b)Y said that he never wanted to see or talk to his father again. Y said that the last time he saw his father he “dropped me on the concrete and the grass”[18] and explained that having taken issue with the father talking badly of the mother, Y ran and pushed the father who then picked him up until their faces were at the same height and “dropped” him to the ground, with his body landing on the concrete and his head landing on the grass. Y said he was then sent to the garage before his mother collected him. Y said that since, then the father had attempted to apologise via text messages, but said that an apology was not “going to cut it”. Y was reported as being very angry with his father, not only because of the incident, but because he was aware that the father had told others that Y had assaulted him first and also about other incidents as well. Y identified his father and MS E on the bottom rung of the feelings ladder.
(c)Z said that she never wanted to see or talk to the father and placed her father on the bottom rung of the feelings ladder, albeit Z also put MS P on the top rung along with other persons (including the mother and MS E).
[18] SWR-31
The weight to be given to the children’s views was explored in cross-examination of the mother (insofar as the father’s contention that the mother was aligning the children against him) and with the two expert witnesses, the family report writer (‘Q’) and the wishes report writer (‘MS P’).
Accepting at face value the unchallenged accuracy of the children’s statements to the two expert witnesses, it is apparent to me that there is evidence of at least Y having been exposed to parental conflict – firstly by him overhearing the father denigrating his mother, secondly by him asserting to MS P that the father had “tested positive” to drinking alcohol in a test (information he should not have been privy to) and thirdly, Y was aware (from an unknown third party) of the father asserting that Y had assaulted him first. I say “unknown third party” because all three children were interviewed by the police and I do not know what specific information was conveyed by any of the participants either to each other and/or to Y.
In submissions, counsel for the father reminded me of Q’s opinions about some limitations inherent in expressions and decisions made by children with behavioural conditions.[19] In the High Court decision of Bondelmonte v Bondelmonte [2017] HCA 8, the primary decision was upheld such that the law does not mandate the elevation of a view expressed by a child to something akin to being decisive of the outcome (although it may rise to that status based on the facts of a particular case) but rather, the views of a child are one of a number of considerations to be taken into account.
[19] See FR-148
I found no evidence of the mother deliberately aligning the children so as to cause them to hold the views they do about the father, with the most recent example being that despite everything, in February 2023, X still thought it would be okay to spend time with the father.
Having regard to all the evidence and submissions, I accept that I should approach with some caution, the children’s views or expressions (reported or recorded) firstly because of their diagnoses and secondly because (at least insofar as Y is concerned) I am satisfied that he has been privy to inappropriate information that has drawn him into the parental conflict and means it is more likely he has made a pragmatic decision to choose the mother over the father at any cost.
Having said that, I am also acutely aware of the frank assessment by Q that if the children don’t want to see their father, the mother will be walking a tightrope between risking a contravention being made out against her versus damaging her relationship with the children by forcing them to go. Put bluntly, the children will adopt a “black and white” view based on their needs and wishes irrespective of whether it means their mother gets into trouble and/or the parents are drawn back into conflict.
I accept the opinion of MS P that the children all articulated that they did not feel that their father understood them or their basic needs and that the previously genuine and positive connection they had with their father has been significantly damaged by events since the family report interviews in mid-October 2022.
What are the parenting capacities of the parties?
The father’s history of mental health deficits (which includes two admissions to hospital, firstly in 2020 and then again in 2022) and his decades-long abuse of alcohol, have caused him to display adverse behaviours and/or emotional dysregulation which have (at the very least) caused emotional harm to his children - the most recent example being my acceptance of what all the children described to MS P about the cause and effect on them of the October 2022 incident. Of particular note, it seems that the whole event was triggered by the father denigrating the mother in the presence of at least Y, drawing him unfairly into the parental conflict.
Some of the disclosures by the children and the oral evidence of the mother that there was nothing she could identify as “positive” about the father do align with the father’s contention that her capacity to support the children’s relationship with the father is also impaired.
In tandem, these specific incidents are of concern to the Court because ordinarily children will experience longstanding emotional and psychological benefits from having a relationship with both parents (provided it is safe for them to do so). I have a situation here, where I cannot be sure that either parent has the capacity to do that and/or whether it is actually emotionally and/or psychologically safe for the children to be exposed to attempts to do so.
At the very least, I am satisfied that both parents have an impaired capacity to support the children’s emotional needs, with the father’s being assessed as far more of a concern to the Court than the mother’s.
What will be the impact of change upon the children?
The children have not experienced regularised time or communication with the father for about six months. Save for X, they don’t want to, and at least for Y, he does not feel safe in the father’s care.
The ICL and the mother propose that subject to the children’s wishes, the mother be given sole discretion about what time (if any) the children have with their dad. I am unable to say with any certainty whether that will ever occur because like her, I have concerns about whether the father can overcome the unacceptable risk he presents to the children. So in that regard, superficially the proposal may see little (if any) change in the children’s lived experience.
All parties agreed on a regime of specified communication between the father and the children moving forward and presumably this is because they all considered the children sufficiently resilient to the significant change this brings to their current lived experience.
This agreed position does cause me some angst. This is because if I see little prospect of the children spending time with the father, what is the impact on changing their current experience of having no regularised communication with him?
To explore this further –
(a)if I adopt the proposal of the ICL and the mother and accept the evidence of the experts about firstly the strong negative views held by at least two of the children and the inherent vulnerabilities that children with behavioural conditions bring to their views and expressions THEN without a future meeting with the father, what is the likely chance of the children ever wanting to spend time with him? and
(b)viewed through the above prism, what is the impact on the children in changing their current lived experience by introducing regularised and specified long-term communication with their dad, without a reasonable prospect of actually meeting him in person to experience (perhaps) version 2.0 (to use my expressed vernacular during closing submissions)?
The father proposes a regime of specified time commencing with professional supervision and ultimately leading to unsupervised time. To support the transition of time from supervised to unsupervised, and in addition to the parties’ agreed position about various injunctions, the father seeks –
(a)to be mandated to continue working with MS L and the Alcohol Clinic and to enrol and complete a men’s behaviour change course; and
(b)to only progress to unsupervised time after six (6) months’ of supervision and him successfully engaging in mental health and alcohol abuse services.
Superficially, the impact for the children of the father’s proposal for supervised time would see them re-engage with him in a safe and supported setting which aligns with the Act in the promotion of a meaningful relationship, but not necessarily an optimal one (Godfrey & Saunders [2007] FamCA 102 at [36]). Put another way, the father’s proposal would see the children have the benefit of the father having a meaningful involvement in their lives “to the maximum extent possible” (Masson v Parsons). There is a risk that the children do not wish to participate, causing them to be exposed to conflict (at least between the children and the mother who is required to take them); but there is some safeguard against any hiccups with the children attending because –
(a)Any alleged incapacity sought to be sheeted home to the mother in failing to support the relationship would at least at the first stage, need to withstand the supervisor’s record of the attempts made to have the children participate; and
(b)Despite the mother’s evidence of the children having expressed unwillingness prior to October 2022, and Q’s view that if they don’t want to go the children won’t; the children have largely spent time with the father since these proceedings kicked off.
However, as I observed during closing submissions, I have concerns that (given the finding of unacceptable risk and the circumstances behind that finding) there is the potential for the supervised time to go on indefinitely (unless I put a timeframe on it) which amongst other issues, raises questions about –
(a)what will be the effect or impact on the children of that circumstance (Fairfield & Hoffman [2021] FamCAFC 151 at [71]); and/or
(b)whether it would be desirable to for that to occur (Moose & Moose (2008) FLC 93-375 [Moose & Moose]).
What consideration should be given to the perpetration of family violence and what inferences should be drawn from the family violence orders?
I have already made adverse findings against the father.
However, my concerns about the perpetration of family violence by the father do not stop there, because he is also the subject of a 18-month community correction order because of his actions in January 2023 and he is the defendant in the ADVO.
I have no hesitation in agreeing with at least the tenor of the proposed restraints against the father (as sought in the first instance by the ICL, whether by consent of the parties or not) but will return to the particular restraints later.
Is it preferable to make an order that reduces the prospect of further litigation about the children?
Both parties give evidence about the stress the proceedings (and the parental conflict) has caused to them.
In my view, if the evidence demonstrates that the parties can comply with the orders then there is a significant benefit to the children in making orders to that effect, if not, then for the same reasons as set out below, the sole discretion for any future decisions about the children should be afforded to the mother to avoid future conflict.
Insofar as the orders sought for international travel, in light of their history, it seems improbable to contemplate that the parties could ever reach an informal agreement about such issues. This is because of the findings I have made about –
(a)The father’s lack of insight into him being solely responsible for the violence he perpetrated on Y, MS E and F, suggesting that he may have little insight and/or capacity to regulate himself in the face of controversy about any proposal for travel; and
(b)The mother’s uncontested evidence about the violence experienced by the family and the father’s mental health vulnerabilities, and how that may adversely impact upon her ability to negotiate with the father about a desire to travel.
Given the parties’ agreed position that the mother will remain the primary carer for the children and ultimate decision-maker about their welfare, it is open for me to find that no one considers the mother to be a flight-risk or to otherwise make ill-informed choices about where she may decide to take the children.
For the above reasons, I am satisfied that if an order is sought that supports the mother’s role and removes the prospect of the parents coming into conflict and/or having to negotiate in a way that they have not already agreed upon by consent[20]; then to do so would reduce the risk of future litigation.
Are there any practical difficulties of the children spending time with the father and what is the effect of the parties’ proposals on the children moving forward?
[20] see for example paragraph 12 of exhibit ‘ICL3’
Whilst I have found the mother has some deficits in her capacity to support a relationship between the father and the children, I am mindful that despite all that X may (or may not) have experienced in the mother’s household; she still sees some benefit in spending time with the father on significant occasions.
With that in mind, I am satisfied that if the mother was afforded the sole discretion to permit time between the children and the father, there is some chance of this occurring in the future, provided there is an avenue by which the father can demonstrate it is safe to do so or a supervised arrangement could be implemented.
This means there is some merit in the proposal of the ICL (as adopted by the mother) for the children spending time with the father at the mother’s discretion, albeit it does require “the door to remain open” (so to speak) between the mother and the father – something that does cause me a level of concern given the family violence perpetrated by the father and his inability to regulate his emotions when confronted either with an unexpected situation or opposition/confrontation (see for example his behaviour in October 2022 and January 2023).
That said, inherent in the ICL’s proposal is an understanding that there is a benefit in the children having some opportunity to re-engage with their father provided it is safe to do so but there is also a fairly obvious difficulty as well, because the time spent is premised on the children’s wishes (problems with which I have already alluded to through the prism of Q’s expert evidence).
On the other hand, the father proposes a number of stages aimed at improving his relationship with the children through the regularisation of time commencing with supervision and only extending to unsupervised time after the expiration of at least six (6) months and the father showing (presumably the mother) that he has successfully engaged in mental health and alcohol abuse services.
As was discussed during submissions, I have a number of concerns with the father’s proposal. Firstly, if the interpretation of a successful engagement is meant to be left to the mother (which is not obvious from the face of the proposal), THEN doesn’t that risk re-litigation because the father may be unhappy with how the mother exercises her discretion? If the intention is not for the mother to interpret success or otherwise, then who?
In my view, the only practical way to resolve this without a re-determination by the Court, is to give the mother the discretion because she is the only person who has the capacity to act protectively.
Flowing on from the above, what does a successful engagement actually look like and does it invite the Court to relinquish its jurisdiction to make appropriate protective parenting orders to someone else, namely the mother?
The second difficulty is what the effect will be on the children if the orders are made as sought by the father, but they never get past supervised time because there is decision made by (in my view) the mother, that the father has not ‘successfully engaged’. It is quite likely that the father’s proposal could see the children spending supervised time with the father for two (2) hours a fortnight for much more than six (6) months or at least until the proceedings kick off again for round #2.
In submissions there was some discussion about the supervised time enduring for 12 months and the mother submitted that whilst she would not necessarily be opposed to supervised time, her personal circumstances (she has no car and limited means) should be taken into account by the supervisor when determining a location. The father’s proposal saw him paying for the supervisor’s costs so that practical aspect is of no consequence.
With whom should the children live?
The two primary considerations require a consideration about whether the children will benefit from a meaningful relationship with their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b).
There is no dispute that the children should live with the mother and that they benefit from a meaningful relationship with her.
Should the children spend time with the father and if so, how should this be facilitated?
Since these proceedings commenced over two (2) years ago, the children have spent a mix of private supervised and unsupervised time with the father. I heard no evidence about the children being upset or uncomfortable with supervision but to the contrary, following a period of unsupervised time, later on in October 2022 there has been a complete breakdown in the children’s relationship (and time) with the father, amplified by what G told X the father had done in January 2023.
No one sought a “no time and no communication” order and all agreed on limited regularised communication. As such it is open for me to find that they all agree that the children would benefit from some connection or relationship (if not meaningful) with the father.
What the ICL and the mother proposed was that the mother have unfettered discretion subject to the children’s wishes – leaving open a range of options from “no time” to “regular time” during school terms and school holidays or something “in between” such as on special occasions (as was X’s expressed view to MS P in February this year). The circumstances around how that time was facilitated were similarly broad – meaning that the time could range from being supervised or monitored to a completely unfettered arrangement.
If it was not already apparent, I was satisfied that both Q and MS P were open to persuasion about different scenarios that were put to them in cross-examination. They both gave thoughtful and consistent evidence. When giving opinions, their analysis was clear from the identified facts/propositions put to them. There was a clear and logical pathway to the conclusion/s formed and/or expressed. As such I have put some weight on their independently formed opinions, especially insofar as the children’s expressions.
What this means is that I accept that –
(a)The children have all been negatively impacted (to varying degrees) by their experiences in the sole care of the father, even with MS E living in the same house. MS P laid bare the children’s lived experience of their father and that the previously genuine and positive connection they had with their father when Q saw them had been significantly damaged by events since.
(b)The children have in the past benefitted from a meaningful relationship with the father reflected for example in X still expressing a desire to spend time (and keep connected) with the father this year and all parties agreeing that limited communication between the father and the children should occur.
(c)The children’s capacity to think of the broader implications of their views about the time they spend with the father is impaired not only by their age and developmental stage but also by their behavioural issues diagnosis. As summarised by me, Q said it would be commonplace for them to preference their relationship with their primary caregiver (the mother) over all others including the other parent (the father) without reflecting on the ramifications of those choices.[21]
(d)The father has an impaired capacity to meet the emotional and psychological needs of the children not only because of his failure to meaningfully address his longstanding mental health issues and abusive relationship with alcohol (other than perhaps having just embarked or re-embarked on that journey this year); but also for example because there was no evidence that he has an understanding of children with neurodiversity and strategies to negotiate with egocentric headstrong neuro-diverse children[22] which was on full display in October 2022 in his inappropriate management of Y (which arose out of Y being exposed to negative comments about his primary carer).[23]
(e)The mother has a deficit in her capacity to meet the emotional needs of the children (but nowhere near to the same level as the father’s) because it is apparent that at least Y has been exposed to the parental conflict in some way such that Y was aware of the father having taken a positive alcohol test.
(f)The mother does have some capacity to quarantine her negative attitude about the father because otherwise, why would X express to MS P that despite all that has happened, she would still like to spend limited time with her dad?
[21] FR-148
[22] FR-149
[23] See SWR-31
Taken as a whole, the father’s proposal is either impractical and/or so fraught with the risk of re-litigation and uncertainty as to have a negative impact on the children either because of the change in their circumstances and/or the overall effect upon them into the short, medium and long-term future.
The breadth of the proposal from the ICL and the mother permits me to not only give consideration to affording the mother the discretion that she seeks but also to contemplate making an order for supervised time (something that in any event the father sought, albeit on different terms and conditions).
Why supervision as well? Because in my view it supports, by way of some examples only –
(a)Meaningful communication (and therefore connection) with the father because otherwise the risk is that the negative attitudes that at least Y and Z currently have will be reinforced (given their vulnerabilities) because they question why bother with that communication if we don’t see him?
(b)The development of a more positive experience of the father by the children (in a safe setting), rather than the realistic estrangement the children currently have with the father, which, given Q’s assessment of children with behavioural issues, would likely see no prospect of an improvement in their relationship with the father or at best only a limited improvement;
(c)X’s expression in February 2023 to spend some time with her dad without there being any pressure upon her to say so to her mother, in circumstances where children with behavioural issues may have trouble with making choices that don’t preference their primary carer, and in this case X would be aware of the conflict between her parents (if nothing else then at least by way of being interviewed for these proceedings);
(d)The children’s safety even though I accept the down-side is that it is somewhat artificial given the children will be acutely aware that someone is watching them which would usually have a negative impact but in this case, they all recall bad memories of their dad and a supervisor will make them feel emotionally safe; and finally
(e)The children being able to have some sort of relationship with the father that is safe whilst allowing their currently damaged relationship with the father to hopefully flourish sometime in the future either because the mother becomes satisfied that they will be safe in spending more time (supervised or unsupervised) in his care or the children reach adulthood and decide to explore the relationship more at that point when, based on Q’s evidence, they will be better equipped to make big decisions with big ramifications on the relationships they hold with others.
I accept that long-term supervision is generally undesirable and cogent reasons should be given for such an order (Moose & Moose). In my view, the father’s proposal had the potentiality of this occurring given the broad language used to trigger a change to unsupervised time that I have already discussed. The alternative proposal (put by the ICL and the mother) also had the potential for this to occur should the mother determine that would be appropriate.
The children are neuro-diverse and either are, or will become, headstrong and egocentric. Q opined that up until the events of October 2022 and January 2023, it was reasonable to see benefit in the maintenance of a relationship between the children and their father. Despite all she has been through, X remained open to spending time with the father on special occasions. There is the real potential that without any order for specified time, the children will not have meaningful time with their father, until they reach adulthood (if at all). No one contemplated a “no contact” order presumably because no one wanted to completely close the door on the children having a relationship with their father, demonstrated in part by their agreed position on communication.
Very late in the piece, the father came to Court and asked the Court to accept that he has taken steps to address the trauma he endured as a child which he says informs the adverse behaviours he has engaged in ever since. There was insufficient evidence upon which I could make a positive finding that his late-breaking (alleged) insight and engagement with additional therapists ameliorates the risks he poses now or in (at least) the short to medium-term future (particularly given my findings about his minimisation of his two most recent physical interactions). Conversely, if there is no proposal to entirely shut-out the father through a “no time no communication” order then, is it not too late to (so to speak) keep the door ajar a little so that there is some certainty of quality interaction between the children and the father that meets their specific emotional and psychological needs and keeps them safe from harm?
In considering supervision, I have also had regard to the practical realities of asking these children (with their vulnerabilities) to persist with supervision until they are 18 years of age. In my view, to do so runs the real risk of a formerly positive experience turning into drudgery for all and achieving the exact opposite of my intention. As such, any supervision should not be long-term but rather capped once Z reaches adolescence (set by me as being on her 13th birthday). If by that time, the mother has not become satisfied that the children want to see their dad and it is safe for them to do so; then there is little hope for future meaningful relationships between the father and the children.
In addition, if there is a pause in the supervision either due to the father or a decision made by the supervisor, then it would be in the children’s best interests to end the supervised time entirely rather than to keep trying to “swim against the tide” (so to speak).
Any regime of time should also have some regard to what X expressed, because if nothing else it will allow her to feel “heard” and ensure a better chance of acceptance of my decision not only by her but the other children who will undoubtedly see some benefit around seeing their dad at a time when most children spend time with their parents to celebrate. This may be one of the reasons why everyone agreed to communications occurring at certain times during the year. To ensure that the supervised time does not interfere with the children’s social or family celebrations, any supervised time should happen in advance – giving sufficient breathing space for the children to experience two forms of celebrations and also to allow the children something else meaningful to talk about with their dad when he calls them on some of those special occasions.
Weighing up all the evidence and balancing all the risks, I intend to make a supervised time order.
As for communication, in my view, the same arbitrary cap (Z’s 13th birthday) should not be placed on the communication between the children and the father because all parties agreed to this order and they must have contemplated the long-term effect (including the children’s resilience to adjust to change) in doing so.
To avoid conflict and to support the mother’s role and her circumstances, she will have the sole discretion to appoint the children’s contact service (‘the supervisor’) and to ensure that the supervisor has a full understanding of the particular needs of the children, and the family’s circumstances, the mother will be permitted to provide a copy of the judgment to the supervisor.
A supervision order also means that some pressure can be taken off the mother who can, if nothing else, assess the exercise of the discretion she seeks, based on (in part) the feedback she receives from the supervisor, as well has having records to support any difficulties she may encounter in ensuring the children attend.
In my view, none of the options available to me (based on the evidence and/or the parties’ proposals) will see the children having an optimal relationship with their father, but a combination of supervised time and the mother’s discretion as to other time, leaves the possibility open into the future. In making this observation I am also acutely aware of what Q opined about it being commonplace for children with behavioural issues such as X, Y and Z to prefer a relationship with their mother as their primary carer over all others including their father.
It may be that the parenting orders I intend to make never achieve the benefit of a meaningful relationship between the children and their father, but I have to act protectively first and foremost. To be clear, there is no evidence upon which I could make a finding that the unacceptable risk posed by the father could be ameliorated by any of the relief sought by any of the parties, to the point of permitting unsupervised time to occur in the short, medium or long-term.
Even without the Court’s involvement and/or the behaviours of the father in particular, these particular children (with their vulnerabilities), may never have been able to achieve a relationship with their father that they could view as important, significant and valuable (Mazorski & Albright [2007] FamCA 520).
What injunctions should be made?
The parties largely agreed on the mandatory and prohibitory injunctions that the Court ought to make and I am satisfied that the evidence and the findings I have made support the making of those injunctions.
To be clear, however, on their own, neither the making of such injunctions (or the other injunctive orders sought by the father such as his completion of a men’s behaviour change course) ameliorate all the risks posed by the father to the children, something that in my view can only be accomplished through very limited supervised time and a reliance on the mother’s discretion to act protectively in the event that she considers additional time is warranted.
There were three prohibitory injunctions that were opposed by the father. In broad terms these amounted to geographical restraints on the father coming within 100 metres of the children whether that be their home, their school, and other places where they are engaged in activities within the community - unless it is with the written consent of the mother.
I heard no evidence to contradict that even within the relative safety of their classmates at a school assembly for their big sister to graduate from primary school late last year, Y and Z requested to be excused and this was accommodated by the school staff. In February 2023, Y is recorded to say he does not feel safe around his father. All three children were consistent in their description of the physical treatment of Y by their father in October 2022. I have made adverse findings about the father’s minimisation of his behaviour in October 2022 and of him deflecting blame on others for his behaviour in January 2023. There are no current family violence orders to protect the children.
For the reasons above, I am satisfied that it is in the best interests of the children to make a personal protection order restraining the father from coming within 100 metres of the children in the terms sought by the ICL and the mother. In summary this is because it will reassure the children (once these Orders are explained to them) that the father will keep his distance, particularly in light of my reservations about whether the father fully accepts responsibility for his past actions or is capable of gaining the tools he needs to remedy his deficits.
Given the changes to their current lived experience and in light of my concerns about the mother’s deficits in capacity, I will order that the ICL explain the orders to the children so that the father is reassured that the way in which the children are informed about these orders will be supportive of their emotional needs including their future relationships with both their parents.
How should parental responsibility be allocated and to whom?
When making a parenting order, I need to give consideration to the allocation of parental responsibility noting that there is a rebuttable presumption that it is in the best interests of children for parents to be afforded equal shared parental responsibility for them.[24] Section 61DA sets out the circumstances by which the presumption can be rebutted. I have found that the father has perpetrated family violence and the presumption is rebutted: s 61DA(2)(b).
[24] Section 61DA(1)
All parties agreed that the mother should have sole parental responsibility with specific provisions affording the father either access to information about the children and/or the ability to give feedback to the mother before she makes certain decisions. I am satisfied that allocating parental responsibility as sought by the parties is in the best interests of the children and is otherwise proper.[25]
[25] Sections 60CA, 61D & 65D(1)
I have already explored the proposal about international travel and for the reasons set out above, orders will be made as sought by the ICL and the mother.
The mother sought that any communication between the parents be via a parenting app and submitted that on a final basis, an order be made in the same terms as the existing interlocutory Order 11 made with the consent of the parties on 6 December 2022.
Given the father has perpetrated family violence against her and as recently as January 2023, resorted to physical violence when met with oppositional behaviour, I am satisfied that the “distance” provided by a parenting app will enable the parents to communicate respectfully and not in the heat of the moment when the father may become inappropriately agitated and engage in adverse behaviours that impair the mother’s ability to communicate with him about important issues to do with the welfare of their children.
CONCLUSION
All parties agreed that the children should live with the mother to whom sole parental responsibility should be afforded.
There was no dispute that the relationships between the father and the children have fractured although the cause of this remained somewhat contested. Nonetheless by his relief, it was clear that the father considered himself to pose a risk to the children until (at least) he had spent supervised time with the children for six (6) months and successfully undertaken some work to address his mental health and alcohol issues. The ICL and the mother were united in the unacceptable risks posed by the father and that regularised time was not appropriate but rather any time should be left to the discretion of the mother provided it accorded with the children’s wishes.
How to address the unacceptable risk posed by the father was the key issue in this case whilst at the same time seeking to permit the children to have some sort of valuable relationship with the father (as was originally opined by Q to be of benefit to them).
In my view an order permitting the mother sole discretion as to the time the children spend with the father (with a notation about the children’s wishes), and an order for supervised time of two hours on the weekend before each of the children’s birthdays and the weekend before Christmas Eve until Z’s 13th birthday will keep open the door to all of the children having a better relationship with the father in the future and meanwhile supporting meaningful communication between the children and their dad.
However, if due to actions by the father or the supervisor, the time is suspended on two consecutive occasions, then the supervised time order will be discharged and any future time will be left solely to the mother’s discretion. The reason for the “sunset clause” (so to speak) is because I remain wary of the father’s capacity to change given that even after all he has been through (including hospitalisations, these proceedings and his longstanding engagement with various medical and allied health treators), as recently as 14 March 2023 (when he signed his trial affidavit), the father said at paragraph 146 that For the first time in my life, I am working hard at dealing with my mental health and alcohol issues. If I accept him on his word, this statement is demonstrative of someone who has only recently begun to gain insight, responsibility and acceptance but weighed against some of his evidence (which I found to minimise his behaviours) and the untested nature of his current regime of supports - it is in the best interests of the children that if the father does become lost along this new journey, then they don’t have to experience either anxiety or disappointment if supervision either doesn’t occur or ends abruptly.
As for allowing the mother the discretion to permit additional time, I am confident that the mother does have the capacity to support the father’s relationship with the children if she knows they are safe and the tranche of orders I will make, will ensure (to the best of my ability) that this is the case.
The parties were largely agreed on other ancillary orders either to support parental responsibility, the exchange of information and the provision for injunctions to address each parent’s deficits, including orders to reduce the children’s exposure to parental conflict. I will make the permissive order sought by all parties about the father providing information to the mother about his progress, but will couple that with a notation so that the parents understand there should be no expectation that any reports or updates he provides will impose an obligation on the mother to give consideration to an exercise of her sole discretion insofar as time or communication is concerned. I will also make a notation supporting the father’s intention to continue with various supports and to complete a men’s behaviour change program because he should be encouraged in the difficult journey ahead.
If an order sought was not made, it is because there was insufficient evidence upon which a finding could be made that would justify an order.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.
THE APPLICABLE LAW, ANALYSIS & CONCLUSION – COSTS
The ICL brought an application for costs against the father fixed in the sum of $4,206.60 payable within 12 months.
In exercising my discretion I must have regard to s 117 which sets out the Court’s jurisdiction insofar as costs are concerned including a rebuttable principle that each party should bear their own costs.
The mother was legally aided and quite properly no application was made against her.
The father gave evidence that if he had 12 months to pay he would be able to meet the cost. The father made no submissions against the order sought.
In the circumstances of this case, I am satisfied that presumption that each party bear their own costs is rebutted (see Penfold and Penfold (1980) 144 CLR 311).
This is because, taking into account all the circumstances of this case, I am satisfied that it is just for me to make a costs order against the father to pay the sum sought by the ICL within 12 months, because his evidence was that he could do so and there was no submission against the ICL’s application.
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 26 April 2023
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