Gerrard and Conway

FEDERAL CIRCUIT COURT OF AUSTRALIA

GERRARD & CONWAY

[2015] FCCA 2109

Catchwords:
FAMILY LAW – Parenting – final orders – whether the children should have infrequent professionally supervised contact with their father – where the father has drug misuse, alcohol misuse and cognitive impairment issues and personality disorder traits – no orders for time made – orders for the sending of cards, letters, gifts at specified times.

Legislation:

Family Law Act 1975, Part 7

Mazorski & Albright [2008] 37 FLR 518

Applicant:

MR GERRARD

Respondent:

MS CONWAY

File Number:

BRC 3410 of 2013

Judgment of:

Judge Demack

Hearing dates:

16 & 17 July 2015

Date of Last Submission:

17 July 2015

Delivered at:

Brisbane

Delivered on:

6 August 2015

REPRESENTATION

Counsel for the Applicant:

Ms Oakley

Solicitors for the Applicant:

Blanch Towers Lawyers

Counsel for the Respondent:

The Hon. M Foley

Solicitors for the Respondent:

Michael Hefford Solicitors

Counsel for the Independent Children’s Lawyer:

Ms Quinn

Solicitors for the Independent Children’s Lawyer:

Parker Family Law

UPON THE UNDERTAKING BY THE father that he will comply with an Order of the Court that allows the father to spend face to face time with the children or to communicate with the children

ORDERS

That all previous Parenting Plans and Orders be discharged.
That the mother have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009 (‘the children’).
That the children live with the mother.
That the father communicate with the children as follows PROVIDED THAT any correspondence from the father, whether gifts, cards or letters needs to ensure that they are sent to both children at the same time and any gifts are to be of equal or similar value:
(a)by cards and letters addressed to both of the children once during each of the school terms, to the mother (care of the maternal grandmother’s address) who shall be responsible for ensuring that, having regard to the respective ages and levels of maturity of the children, no inappropriate written material from the father is given to them; and then
(b)by gifts and presents on the birthdays of both of the children, Christmas time and Easter time in each year, to be provided to them through the mother (care of the maternal grandmother’s address) who shall be responsible for ensuring that the children receive such items.
That unless otherwise expressly provided for in these Orders, the father is to spend no time nor communicate with the children except as agreed by the mother.
That the Independent Children’s Lawyer be discharged.
That all outstanding applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 3410 of 2013

MR GERRARD

Applicant

And

MS CONWAY

Respondent

REASONS FOR JUDGMENT

X, born (omitted) 2008, is now seven years old. Her little sister, Y, born (omitted) 2009, is six. Apart from the family report interviews on 13 February 2014, the children have not seen their father since December 2011. There have been Court ordered opportunities for the father to spend time with the children and either because of a lack of capacity, or a lack of motivation, he has failed to take those opportunities.
The father had a compromised childhood. He has a family history of alcoholism and suicide.
The father has mental health difficulties. He has previously been diagnosed with bipolar affective disorder and has been medicated as a result. The consultant psychiatrist, Dr V, who filed an affidavit 20 November 2014, who was briefed by the Independent Children’s Lawyer after the family report writer expressed the need for psychiatric assessment, preferred a position that the father has significant Cluster B personality traits, specifically Borderline personality traits.
The doctor notes that the father’s personality disorder has been complicated by significant alcohol abuse with periods of dependence. He noted cognitive impairment – specifically, short-term and long-term memory difficulties, attention difficulties, difficulties with executive function - and suggested an assessment of these matters, which was then undertaken.
The assessment was undertaken by Mr P, psychologist[1]. He found that the father has deficits in his intellectual functioning. He has a full-scale IQ of 80, a spelling age of a child in grade 4 or 5, mild deficits in working memory, poor immediate auditory attention. The assessment of Mr P was that he suspected the father was learning disabled. He was unable to say whether this was as a result of known multiple head injuries, or known years of alcohol abuse, or for some other factor.
[1] Mr P’s affidavit filed 18 June 2015 annexing his report.
The father started these proceedings. Despite his monumental lack of real progress, or demonstrated commitment to actually do something towards being in a better position to be a parent with whom X and Y may benefit from having a meaningful relationship, he seeks final orders that compel the mother to advise him whenever she makes a long-term decision for the children (which was the independent children’s lawyer’s drafting) and would have the children spend time with him at a contact centre from time to time. By the end of the trial the frequency of contact sought had reduced from monthly to perhaps a couple of times per year.
The independent children’s lawyer’s final position was that the children should have no time with and communication with the father, except for the receipt of letters and cards four times per year and gifts at Christmas, birthdays and Easter. The mother’s position was in line with the Independent Children’s Lawyer’s about the receipt of mail from the father to the children but she did not agree that she should be compelled to receipt that mail, or that she should have to advise the father of long-term decisions she had made, or tell the father of the school the children attend, or authorise the principal to release information from the school to the father.

The Evidence

The father is the applicant. He relied upon his initiating application and a supporting affidavit, both filed 3 May 2013, along with further affidavits of himself of 10 December 2013 and 24 June 2015. The father has been legally represented throughout. He was required and made himself available for cross-examination. His affidavits are remarkably brief, remarkable because he is legally represented but not remarkable in the sense of the father’s deficits in terms of his capacities and perhaps his motivation. The father’s material amounts to maybe about a third of the material which was gathered by the independent children’s lawyer.
The mother is the respondent. She reads and relies upon a response and supporting affidavit, both filed 20 August 203, along with an affidavit prepared for trial on 7 July 2015. Her outline of case document was filed on 10 July 2015. Written submissions were provided by counsel for the mother at the conclusion of the trial. They became exhibit 7.
The Independent Children’s Lawyer was represented by a solicitor and counsel at trial. The independent children’s lawyer had the benefit of the family report by Ms R, social worker. Ms R, the Independent Children’s Lawyer, had briefed Ms R. Ms R’s report had suggested the requirement for psychiatric testing. Psychiatric testing was undertaken by Dr V, psychiatrist. His helpful report of the two parents is annexed to an affidavit filed on 20 November 2014.
Dr V suggested that the father should be neuropsychologically assessed. That was undertaken by Mr P, neuropsychologist. His report is annexed to his affidavit filed 18 June 2015. I also have before me interim orders which have been made in this case, filed 26 May 2014 and 21 November 2014.
There are a number of documents which were tendered as exhibits during the trial. Exhibit 1 is from Dr I, consultant paediatrician, who attended to the assessment of X and the diagnosis that she has autistic spectrum disorder. Exhibit 2 are reports from Ms J, psychologist and Ms M, occupational therapist, dated 15 December 2011 and 19 February 2012, with respect to matters to do with X. Exhibit 3 was no longer relied upon when the author was not able to be available for cross-examination. That was a report by Dr C, child, adolescent and family psychiatrist, with respect to matters to do with X. That document is no longer before me.
Exhibit 4 were results of a drug screen by the father which was collected on 13 July 2015 noting the trial occurred on 17 July 2015. The results of that test was a four plus for cannabis.
I also have exhibit 5, which is a bundle of documents from subpoenas which was put together in the first instance by the Independent Children’s Lawyer, with the invitation for other parties to contribute any documents that they thought the Independent Children’s Lawyer may have overlooked. Those documents come from the subpoenas from the Department of Communities, Child Safety and Disability Services (so that is effectively the child protection statutory authority in Queensland), Queensland Police Service subpoena material, (omitted) Hospital subpoenaed material, subpoenaed material from (omitted) Medical Centre, a local medical practice and material from Ms A, psychologist.
The other document which I have before me came after the trial was concluded. It is an undertaking filed by the father on 28 July 2015. It reads:
I will comply with an order of the Court that allows me to spend face to face time with the children or to communicate with the children.
I will speak more of that undertaking later in my reasons.
The mother likewise was required and made herself available for cross-examination.
Neither Dr V nor Mr P were required for cross-examination but Ms R, the social worker who prepared the family report was. She was able to give her evidence after I had heard from both the mother and the father. Her report, of course, had some age to it but she was able to be provided with some updated information including the report of Dr V and the report of Mr P.
There are no matters before me in the cross-examination of any of the parties that require me to make any negative ruling or view with respect to any person’s credit. Both the mother and the father did their best, it would seem to me, to answer their questions. My concerns with respect to the father and his parenting capacity, his intellectual capacity, his mental health presentation and the like, do not equate to any difficulties with respect to the father’s credit.

Background Facts

The applicant father was born in (omitted) 1971. He had an older brother. Their parents separated when the father was very young. Both his father and his stepfather were problem drinkers. He was bullied at school and at home he was beaten up by his brother. He was sexually abused by a neighbour when he was six years old. He performed poorly at school and left during Year 7.
His first significant relationship was when he was 18. Police were called due to allegations of violence. Two children were born to that relationship: Ms S, now 24, and Ms E, now 21. After that relationship ended, their mother commenced a relationship with the father’s brother and more children were born. After that relationship subsequently ended the father’s brother suicided. The father has had no contact with Ms S since 2008 and no contact with Ms E since 2010. The mother and X and Y have regular but not frequent contact with both Ms S and Ms E.
The respondent mother was born in (omitted) 1972. She has full and half-siblings. Her parents separated when she was eight and she had no further contact with her father until she approached him when she was 18 and he hung up on her. Her father was cold and weird. He once pointed a gun at her and her brother. He once held a knife to her throat. Her mother re-partnered. She did well at school and left and worked in a (employer omitted) in year 9. Her first child, Mr M, was born in (omitted) 1991, after non-consensual sex with an old boss. She moved out of the area, did not tell the man of the pregnancy and raised Mr M alone.
The parents commenced their relationship in 2006, having first met nearly 10 years earlier. Throughout the relationship, there were times when the parties did not cohabit. At times, the father boarded with the mother’s parents, that is, her mother and her mother’s partner. At times, the father was in rehab. The first child of the relationship, X, was born on (omitted) 2008.
A child concern report was made to the statutory child protection authority in Queensland (“the Department”) on 22 July 2008. They were advised that the father had an alcohol problem and had been binge drinking since May 2008 and he became violent and verbally abusive when he was intoxicated. They were told that the first episode of physical violence towards the mother had occurred two weeks earlier when he hit her jaw. The notifier had observed photos of the mother’s face. The Department were advised that there were holes in the plaster and a broken screen door. The Department was advised that the mother had agreed to remove her pregnant self and the child from the family home.
On 22 September 2008, the police were called to the home of the mother and the father. The father had come home at 4.30 in the afternoon moderately intoxicated and had had an argument with the mother about money. He had left the home and had returned again at about 10pm seriously intoxicated. He had thrown a bag on the floor containing bottles of alcohol that smashed inside the bag and then lay on the floor. The mother had asked him to go to bed and the father got into a fit of rage, stood up and said, “I’m going to join my brother,” that is, the brother who had committed suicide. He then picked up a knife and was stabbing the kitchen bench with it. The mother knocked the knife out of the father’s hand and he then started head-butting the kitchen bench causing a cut to his forehead. He then got a Stanley knife from his tools and cut his left forearm causing a deep wound.
The mother told the police the father had started drinking again from the end of June. The mother told the police there had been a fight three weeks earlier when the father had threatened to push her over in the bathroom to get rid of the baby. He had smashed property and he had left the home. He had sent text messages saying he was going to commit suicide by gassing himself with exhaust fumes.
The Department were advised and completed an assessment. An outcome was to substantiate a finding about X. The Department’s records document the following within their assessment[2]:
Although Ms Conway made efforts to protect X during the last incident by placing her in the bedroom, when Mr Gerrard was yelling and screaming and self harming, it still got to a level where Mr Gerrard required police attendance and hospital admission by ambulance. Mr Gerrard’s downward spiral was triggered by the first anniversary of his brother’s suicide to which he admits he has not grieved as yet and this combined with the factors most of his close family members are also alcoholics. Ms Conway has made Mr Gerrard aware their relationship as a family can not continue unless he addresses his alcoholism. Mr Gerrard is committed to attending Rehab and this was evidenced by him staying for a longer period than necessary at (omitted) Hospital, after an overnight admittance by the ambulance. Mr Gerrard has also demonstrated his commitment to his rehabilitation by staying at (omitted) Hospital until a bed was available at Brisbane. During this assessment, Mr Gerrard had been released from an acute rehabilitation program. Mr Gerrard has previously been involved with (omitted) Drug and Alcohol Clinic and (omitted) but this is his first time to being admitted to a residential rehabilitation program (6 months). Given Mr Gerrard’s commitment to addressing his alcoholism and Ms Conway’s protectiveness of X and her unborn child, at this time there will not be any further departmental involvement. Both parents understand that should a similar situation reoccur, the department may undertake more intrusive intention.
[2] Exhibit 5 – Screening criteria Summary dated 18 February 2014.
On 18 November 2008, the police were called to the parents’ home. The father had come home under the influence of alcohol. The mother had asked where there was grocery money. The father said he did not have any on him and he proceeded to empty the cupboards of the kitchen, smashing a glass on the kitchen bench. He pushed the mother against the wall whilst she was holding the 10-month old X. He called her a fat slut and a fat cunt. He left the property. He was found by police who had to negotiate with him. The father threatened to shoot police dead. He had cuts on his arms. He had blood on his clothes. The dog squad were called and a Taser was used to subdue the father who was subsequently arrested.
The Department necessarily became involved. They completed as assessment. They substantiated a finding that X was a child in need of protection. Their documents record[3]:
[3] Exhibit 5 – Assessment & Outcome note date created 10 December 2008 from the Department of Communities, Child Safety & Disability Services.
It is my assessment that X [sic] and her unborn sibling have been exposed to a high level of emotional harm as well as ongoing risk of physical harm while living with Ms Conway and Mr Gerrard. The domestic violence has been escalating since July this year and at each episode Mr Gerrard has been self harming with knives where police are called. Added to this, Mr Gerrard has stopped taking his medication to control his alcohol use. This has led to X witnessing ongoing verbal and physical abuse by Mr Gerrard to Ms Conway. Although Ms Conway minimises the amount of times X has been exposed to domestic violence, she still has been living in the home with ongoing stress and anger. It is well documented in research, the impact of parental conflict within the home environment has an impact upon both unborn children and young babies anxiety levels which in turn can have long term effects on their brain development and behaviour.
…
At this time both parents are willing to engage with the IPA team for further assessment.
On 16 August 2009, the police were called to the family’s home. The second child, Y, had been born by this stage on (omitted) 2009. The mother had found that the father was sleeping in the bed of one of the children and had woken him to ask him to leave the house. The father became angry and started yelling and screaming at the mother calling her a cunt and a slut. He punched a hole in the bedroom door and pushed the mother against the bedroom wall and left the home.
The mother also told the police about something that had happened the day before when the father became angry when he saw X hit Y. He yelled at X and then yelled at the mother. The mother asked the father to leave the house and he refused, so she left the house with the children and did not come back until later. The father had left by then.
At 11.30 at night, the mother woke up to hear a noise from the backyard and found the father drunk and lying on the cement floor. After that time, he had then taken himself into the house to sleep on one of the children’s beds with them. The Department records indicate that a child concern report was received by them on 17 August 2009.
On 21 August 2009, the mother advised the police she wanted to withdraw her complaint about these events and refused to sign her police statement. She was unwilling to go to Court over the apparent breach of a domestic violence order.

The Department next became involved through a child protection notification on 11 September 2010. The parties continued at that time to be in an intact relationship. The notification was unsubstantiated. It was with respect to physical discipline by both of the parents towards the children, smacking them, allegedly, around the head, thumping them with a closed fist on the arms and backs or shoulder blade area and the smashing of objects and slamming doors in the house.
A further child concern report was made on 28 September 2010 with respect to the children’s exposure to the father’s self-harming.
As best as I can understand, the parents then separated in October 2011 or September 2011. There was an incident in December 2011 when the children last spent time with their father.
A child concern report was received by the Department then next on 11 July 2012. The mother, it is said, had answered her telephone. There was no response initially and then after about 20 seconds, she heard a voice that she recognised to be the father’s saying words to the effect that she would be dead. The mother advised the police that there had been four attempts by the father to contact her. She had not answered three of them. The mother told the police she had also received harassing calls from the father’s new girlfriend, as well as associates of his claiming to be police officers. That information had been received by the police.
The Department received information from the mother on 11 July 2012 with respect to concerns that the mother had an agenda with respect to getting medication for X. The notifier was aware of the diagnosis of autism that had been made. It was said that the mother described out of control behaviours, including emotional outbursts, tantrums, running away and poor sleep. Others, including the day care centre, had not noticed a single problem for the child. Nothing further was undertaken by the Department at that time on that issue.
When the police spoke with the father about the matters that were raised on 11 July, the father denied calling the mother and, in fact, said that the mother had been calling him at his work in attempts to entice him to breach the order. The father also told the police that the mother had been contacting his new girlfriend and harassing her. The father was advised to take out a domestic violence order to include his partner.
After final separation in about September or October 2012, the father spent some time with the children during daytime time only. The mother had a domestic violence order and the time was considered to be very limited by both parties.
The fourth visit occurred in about December 2011. The mother says that the father arrived at her home in an inebriated state, threatened to slit her throat, grabbed the children and took off. Neighbours called the police. The mother removed the children from the father at a bus stop and has since then not provided the children to spend any time with their father.
The father then commenced these proceedings in May 2013, having not spent any time with the children, at that stage, for about 16 months. Within these proceedings then, the family report interviews were held and the children saw the father at that time.
The mother had been previously criticised by the Department of Child Safety for her lack of protective behaviours towards the children. She has taken on board the Department’s concerns with respect to that and has long had the view that it is not safe for the children to be spending time with the father, with respect to his mental health issues and his uncontrolled use of alcohol and illicit drugs.

The Law

The best interests of the children are my paramount consideration. I am mindful of the objects and principles of Part 7 of the Family Law Act 1975.
The starting point in any matter is the consideration of parental responsibility for major long-term issues. The mother seeks an order that she have sole parental responsibility. By the conclusion of the trial, on behalf of the father, it was conceded that the mother should have sole parental responsibility. It seems to me that the notion of the Independent Children’s Lawyer’s that the mother should be obliged to advise the father of decisions that she makes, does not involve consideration of the allocation of parental responsibility per se.
In case there be any doubt, it seems to me that the presumption, with respect to the parents sharing parental responsibility equally, is rebutted in this case on the grounds of both child abuse and family violence. I am further satisfied that it is not in the best interests of the children for the parents to share parental responsibility. In forming that view, I take into account the fact the father has not taken the opportunity to participate in decisions with respect to the parents’ responsibilities and he has not taken the opportunity to take any steps with respect to spending time with or communicating with the children.
It is the position of all parties to the proceedings that the children should live with the mother. The question before the Court is what time, if any, should the children spend with their father. It is agreed that the father may communicate with the children in writing at set times during the year. The question is whether the children should have any time with their father at a contact centre and, if so, how much?
An important matter for my consideration then is to consider where the facts fall in this case and to identify and analyse any risk to the children and whether that risk is an unacceptable risk. I should also ensure that I consider whether there are any conditions that can be imposed as safeguards upon the father in this case, which would address any matters of risk.

The Best Interest Factors

Meaningful Relationship

The first is the benefit to the children in having a meaningful relationship with both of their parents. The word “meaningful” has been examined by the Courts. Brown J said in Mazorski & Albright [2008] 37 FLR 518 at 526:
The word “meaningful” is a qualitative adjective, not a strictly quantitative one.
X and Y have no relationship with their father presently. They saw him in the presence of the family report writer, social worker, Ms R, in mid-February 2014. X was six years and three months old at that time and Y was five years and two months old. The girls initially expressed concern about seeing their father. X stated “excuse me, we don’t want to see Dad.”
X repeated that they did not want to see their father.
She said he had been mean to them when he lived with them and had said if they were good, he would whack them in the face with a baseball bat.[4]
[4] Paragraph 104 of the family report prepared by Ms R filed 14 May 2015.
X expressed concerns a number of times to Ms R that he may hit them.
Ms R records that both children were aware that their mother knew that they would be seeing their father. Indeed, X sought her mother’s approval about participating in a session with the father. Ms R negotiated a number of rules with the children in the event that they would spend time with their father in her presence. X required Ms R to ensure that their father didn’t hit them and that there would be no hitting, no pinching, no punching them in the eye. Ms R had to sit in front of the door so that the father could not take them away and the children were given a signal to use if they felt uncomfortable.
After all these preliminary matters had been attended to, when the father entered the room the children ran to him. X said, “Daddy, we haven’t seen you in ages. I had a birthday and turned 6.” The father gave them a hug and then went and sat in a chair and the children returned to the toys. The children’s behaviour escalated during their time with the father. Y became overexcited. She was squealing and attention seeking. This impacted upon X who started to throw stuffed toys on the floor and jump on them. Their attention-seeking behaviour continued throughout the observation session. The father’s capacity to manage this behaviour appeared non-existent. The younger child pretended to be a dog and woofed. She banged a baby doll on the table. She squealed and her voice became more and more high pitched. The older child jumped like a dog and talked about dogs peeing in the flowers and chanted, “Poo. Poo. Poo”.
At the conclusion of the session X told her father that she missed him very much. Both children drew pictures of their father to take away. X told her father that she loved him and Y said she would see him soon. The children were still excited at the time they saw their mother soon after and she was able to settle them quickly.
The mother gave evidence in court that after the family report interviews the children were distraught all night. They sobbed and cried. They told her that they didn’t want to see their father and the mother considered that they were upset because of the memories which they had. The independent children’s lawyer’s family report writer, Ms R, formed the view that the father was merely and simply incapable of attending to the children’s needs during that period in front of her. He was unable to assist them with containing their emotions. He was not able to respond to their escalating behaviours. He had no skill set upon which to draw and the relationship that she observed between the children and the father plainly was one which had many unsatisfactory elements.
The children were very concerned about seeing their father beforehand. They were concerned about what he might do to them. They required a complete stranger to ensure their safety for them and they were definite that they needed to have rules in place before they were able to see their father. With those rules in place they were able to be excited about seeing him but they were not able to contain their emotions and their father was not able to assist them in containing their emotions. He was not able to ensure that their behaviours didn’t escalate. He was not able to demonstrate any particular relationship with them which enabled them to respond to any sensible parenting from him.
The mother is their primary carer and there is no dispute that the children are appropriately bonded to their mother.

The need to protect the children from physical or psychological harm; from being subjected to or exposed to abuse, neglect or family violence.

The chronology I read through earlier in these reasons, demonstrates that during the parents’ relationship, there was significant exposure of the children to family violence between the parents and their father’s unchecked alcohol and drug misuse and their father’s difficulties with respect to his mental health.
Since final separation the mother has not re-partnered. There is no evidence that within her life there are matters of family violence which the children continue to be exposed to.
The father has re-partnered at times. The father has, as I will discuss later in these reasons, continued to drink and continued to use cannabis. The father’s mental health is now better understood through the provision of Dr V’s report and the father’s capacity has been assessed through the neuropsychologist’s assessment. Those matters will be spoken of later in these reasons.
It seems to me that I can safely say that there is no basis for a concern that the children are at present risk of physical or psychological harm in their mother’s household.
The one historic matter to do with psychological harm or physical harm in their mother’s care arose at a time when the department assessed that the mother was not appropriately protective towards the children. The department assessed that more than once during the time when the parents were in an intact relationship. The mother has taken – and did take seriously – the department’s assessment and has reflected, it would seem to me, quite appropriately and now understands very clearly the need to be appropriately protective of the children, which means removing them from being exposed to her relationship with the father, which she did by separating from him on a final basis and then removing them from unchecked time with their father which she did in December 2011.
The mother has taken very seriously the department’s views that she was not appropriately protective of the children and now ensures that the children and their safety are first and foremost in her mind.
In terms of the father’s own functioning as assessed it is demonstrated that the children continue to be at risk from him as a result of his own deficits and his inability, it would seem, to address those or to even acknowledge them.

Views of the Children

In terms of the views of the children, the children were five and six at the time they saw the father for the family report interviews. They are now seven and six. Their views are of interest to the court but bearing in mind their ages they wouldn’t be determinative.
As best as I can understand their views, they’re in line with their mother’s views which is that they do not want to spend time with the father. The mother considered that the children were well aware of the court date, as she had to arrange for somebody else to be collecting them from school and the children would know that the mother would only make such an arrangement if there was an event of significance for her to be attending to, as she would not fail to pick the children up from school if there was anything other than something very significant happening.
It is certainly the case that Ms R, the family report writer, was required to put into place significant steps for the children’s sense of security and comfort before they spent time with the father even in her presence. Ms R was particularly struck by the father’s lack of capacity to manage the children’s behaviour during the limited session in her presence.

Nature of Relationships

The children have only lived with their mother and since final separation in the second half of 2011 they have only seen their father up until December 2011 and then for the purposes of the family report interviews. Ms R assessed their relationship with their mother as appropriate and that their mother is their primary carer. Certainly, there is no dispute that their mother will continue to be their primary carer.
The mother was criticised by the Department of Child Safety, however then named, for her failure to place the children’s safety as a priority over her relationship with the father and the father’s need to address his significant mental health issues and his substance abuse issues. The department warned the mother she was at risk of the children being taken from her care because of her priority over her relationship with the father. The mother plainly was committed to her relationship with the father and the children having two parents in their life who were in an intact relationship. The mother was criticised by the department for what they perceived to be her lack of protective behaviours towards the children. The mother was incredibly chastened by the department’s firm view and it would seem to me that it is reasonable for the court to form the view that her present protective position is informed by her interaction with the department along with her growing significant insight into the needs of the children and her awareness of her responsibility to provide safely for them.
There is no reason for the court to form the view that the mother’s position comes from a place of disinterest in the children having a relationship with their father. Rather, she has become aware of the very real risk to the children because of their father’s behaviours and deficits in capacity.
From their mother’s home they have an older half-brother, Mr M, who is 23. He is many years older than them and their relationship with him, as best as I can understand it, is appropriate bearing in mind their age difference. The father has the two older children to the earlier relationship: Ms S, 24 and Ms E, 21. The mother keeps in touch with Ms S and Ms E to facilitate and relationship between X and Y and them.
The children’s relationship with their father is now almost completely historical. Bearing in mind the fact the children are now seven and a half and six and a half years of age and they last saw their father in February 2014, it is reasonable to expect that even that brief meeting with their father will have faded in terms of clear memories.
One of the significant questions before the court is whether the children should spend time with their father at a contact centre for a few short times each and every year so that they can effectively have what might be called identity contact. The children’s views of their father as they grow and mature and develop will no doubt change. There is the possibility that without contact with their father they may come to form a view of him which is at odds with reality. The notion that occasional supervised contact would allow them to have a clear and personal understanding of who their father really is underpins the style of orders that are sought on behalf of the father.
There is the possibility, which is not able to be quantified, that if the children do not have regular contact with their father from time to time in a supervised way over the years, they may come to resent or to have negative views with respect to their mother for any role they perceive that she may have had in preventing them from having a relationship with their father. The mother was cross-examined about these matters. She considered that, in the event the children come to form an unrealistic view of their father and/or to have negative views towards her because of them not spending time with their father that she would be able to appropriately respond at that point in time. She thought that she might get some help from somebody to talk with the children. She also thought that she would be prepared to see if there was the capacity for the children to see their father at that point of time in the future if she formed the view that it was necessary or appropriate.
Indeed, the orders that the mother seeks on a final basis are expressed to say that the children would spend no time with the father except as agreed by the mother. The mother considers that, in the future, if it was proper for the children to be seeing the father because of the very matters which were raised, the order would allow her to facilitate that time.
The other part of the orders which are sought by both the Independent Children’s Lawyer and by the mother are that the father would have the capacity to send gifts and cards to the children throughout the year. It was considered that a letter or a card could be sent four times a year at regular intervals and that gifts could be sent at Christmas time, the children’s birthdays and at Easter. From what the father writes in those letters and cards, the children will be able to glean something of their father. I do not hold any high hopes that those letters and cards will be expressed in such a way that the children will feel as though they are missing something positive from their life. It is difficult to imagine that those letters or cards will contain much of positive substance. The father’s capacity is simply so limited that it is difficult to see that the children will gain a misinformed positive impression of their father by reading or having read to them the contents of those letters and cards.

The extent to which the parents have taken or failed to take opportunities to participate in decisions and the attitudes to the children and to the responsibilities of parenthood demonstrated by each of the child’s parents.

The father commenced these proceedings. After the release of the family report (filed on 14 May 2014), interim consent orders were entered into that provided for the children to spend time with the father one visit per month at the (omitted) Contact Centre for two hours. The father was to meet the sole costs of the contact centre and both parties were to attend to all necessary administrative intake procedures at their own expense.

Prior to the time starting, the father was to do various things and to provide written evidence to the solicitor for the mother and the Independent Children’s Lawyer. Those things were the completion of drug screen, urine analysis, the completion of blood testing to show the use of alcohol and the father was to obtain information about Asperger’s syndrome and the management of the behaviour of children who have that condition from Asperger’s Services Australia with a view to completing a program. The telephone number for Asperger Services Australia was provided on the face of the order.
So the things the father needed to do before he could start spending time with the children was: within 48 hours of the order, attend to having his urine tested; having a blood test taken; and making a phone call to a number which was provided to him on the face of the order and to talk with the people about doing a course about children with Asperger’s.
The father did not do the urine test. The father did not get the carbohydrate deficient transferrin tests done. He says he phoned the telephone number and they could not tell him anything. There is no evidence that the father in fact phoned Asperger Services Australia and it seems unlikely that such a service would not be in a position to assist the parent of a child who suffers Asperger’s.
The father never made contact successfully with the contact centre. He says he telephoned them twice and left a message and they never got back to him. He says he walked there once and knocked on the door and realised that the opening hours were listed on the door and that they were closed at that time. And that is the extent of what the father did with respect to putting into place the consent orders of 26 May 2014.
The father was asked what he had subsequently done with respect to learning about Asperger’s. He says he has borrowed a book from his local library. He has not read that book and he does not know what it is called.
There is no evidence that he has done that from any corroborating evidence.
The father had one test for drug screening which was attended to not long before trial. It was requested on 8 July 2015 and was collected on 13 July 2015. It had a four plus cannabis reading. At the time of swearing his affidavit 16 June 2015 (his very brief affidavit filed in line with my trial directions) the father deposed to having completely stopped marijuana. Less than a month later, he gave a reading of four pluses.
The parties were psychiatrically assessed by Dr V and his reports were finalised on 31 October 2014. On the next court event, 21 November 2014, the parties agreed to suspend the order for the children to be spending time with the father. The Independent Children’s Lawyer was to attend to a neuropsychological assessment of the father which was subsequently done. The father was to seek a referral to a drug and alcohol service and attend at such a service to achieve his total abstinence from alcohol and drug use. The father was to attend upon a suitably qualified mental health practitioner to work with that practitioner on matters to do with complexities of relationships and parenthood.
The father has not stopped drinking alcohol. He did not get a referral to a drug and alcohol service. He did not seek to achieve total abstinence. He says that he has reduced his drinking, although there is no evidence that this has been done with any consistency. He failed, as I said earlier, to have attended to the carbohydrate deficient transferrin testing.
His evidence seems to be that he has six to seven beers, five to six days per week. He had had two beers the night before trial. His evidence was that he will only drink socially in the future. There is no evidence what that means. The father has been drinking since he was 12 years of age. The Department’s material before me reveals that historically at times the father has been the drinker of methylated spirits. There was one period of time historically when the father received medication designed to stop someone drinking by making them sick whenever they drank.
The father has not stopped using drugs. He says they help him to relax. He says that if he didn’t use drugs he would be stressed and he would not be able to sleep. The father did not seek the counselling that was referred to in the court order of 21 November 2014. The father says he takes his medication as prescribed by his medical practitioner regularly and that this is a positive change for him as, in the past, he has not been compliant.
The father denies he has impaired capacity. The father does not understand himself to have a pervasive learning disability. The father does not understand what it means when the family report says he has limited insight.
The expert evidence is clear and unchallenged with respect to the father’s limited intellect and intellectual capacity and his mental health issues. The father has no useful understanding of any of those matters and he has no acceptance of there being real deficits within his functioning which needs to be addressed or managed appropriately.
There is no evidence to suggest the father will do something differently in the future. At the end of May 2015, when he was legally represented and the litigation was ongoing and he had the benefit of the family report, the father was given the opportunity to do a number of very clear things, with the result being that he would be able to spend time with the children in a way that was safe for the children and supportive of him. The father failed to do each and every one of the things that he was required to do.
There is no reason for the Court to form the view that the father will be able to do anything different in the future. He will not have the benefit of a lawyer who was there to provide him with legal advice. He will not have the benefit of the Court watching him to see if he is going to do the things and to provide him with some form of external motivation for his actions. He plainly has no internal motivator to do anything differently. That does not mean that he does not love his children or that he does not desire to spend time with them but rather, there is a distinct chasm between what he would like to have happen and what he is able to actually achieve.
All of these matters concerned me so greatly during the trial that I invited counsel for the father to consider and to take her client’s instructions about an undertaking being given by the father to the Court with respect to him taking up any of the orders of the Court with respect to his time with or communication with the children.
It seems to me there could be no benefit to the children in an order being made which provides opportunities for the father to be spending time with them but because of the father’s own significant deficits or potentially lack in useful motivation, those times were not taken up by the father. The father has not taken up any of the things which were required of him in the orders of 26 May 2014 or 21 November 2014. Why would the Court think he was going to take up any of the things which were set out in the order made after the trial on a final basis?
I gave a date by which any undertaking was to be filed if one was to be provided. An undertaking was subsequently filed on behalf of the father on 28 July 2015 which reads:
I will comply with an order of the Court that allows me to spend face to face time with the children or to communicate with the children.
Of course, this came very late in the piece after the trial and submissions had concluded and there was no opportunity for the father to be cross-examined with respect to his understanding of that or what he thought that might mean for him. It is clear the father has not taken any steps with respect to the uptake of parental responsibility or to respond time with or communicate with the children. The mother has remained wholly responsible for providing for the children and has taken all necessary steps with respect to decisions that need to be made for the children both on a long-term basis and on a day-to-day basis.

Child maintenance

The father is in receipt of government benefits. He does not work. He does not pay child support. The evidence of the mother is that the mother has received $1 in child support when the parties first separated and nothing more. Any future child support which might be paid will likely be minimal and of no practical assistance.

Change in the children’s circumstances

Exhibit 2 are reports by a psychologist, Ms J and by an occupational therapist, Ms M, dated 15 December 2011 and 19 February 2012. The psychologist had assessed X and was seeking to provide further assessment assistance to X. X’s diagnosis with autistic spectrum disorder had been made by Dr I. The joint document of the occupational therapist and the psychologist read, in part:
It is particularly important to X to have a structured and consistent routine in her home environment. She finds change to her routine difficult to understand and struggles to function.
Ms R’s observations of the children’s time with the father shows that the father lacked the capacity to manage the children’s behaviours and even in the structured setting with Ms R’s experience as a social worker. There is no reason for the Court to consider that time at a contact centre will provide the children with the necessary structure for their father to better manage their behaviours and to keep the children’s behaviours and emotions appropriately contained such that they do not escalate throughout their time with him.
Whether the children spend time with the father once per month at a contact centre or a couple or four times per year at a contact centre, it is reasonable for the Court to form the view that there will be sequela in the children’s behaviours and emotions following any time with the father.
The mother’s evidence was that after they had spent time with the father in the presence of Ms R, X’s behaviour was difficult and X was emotionally distressed by the encounter. When one considers that the basis for the children spending time with the father into the future appears to mainly surround the notion that they should not get an unrealistic and fantasised view of their father, it is difficult to reconcile how the upset to the children could be thought to be proportionate to the need to protect them from this fantasised unrealistic view. It is also the case that the fact that their father is to be sending them cards and letters at set times during the year may ameliorate any fantasised view they have a risk of developing.
The children have not had time with their father since December 2011. For them to start spending time with their father on a regular basis, whether it is monthly, or two to four times per year will be a change in their circumstances. Although this opportunity may give them the possibility of forming some form of relationship with their father, it is difficult to see that it provides sufficient opportunity for them to develop a meaningful relationship with their father given their father’s particular deficits and lack of capacity, it would seem, to change or to improve.

Practical Difficulty and Expense

The mother seeks to continue to be allowed to not reveal to the father hers and the children’s actual address or the area they live in or the school that the children attend. The mother acknowledges that the contact centres which would be used, if the Court ordered, would be the (omitted) Contact Centre or potentially one in (omitted).
The (omitted) Contact Centre requires the mother to use one bus and one train to get to it. If she was to use the contact centre at (omitted) that would take two buses. The mother’s evidence includes that X does not handle the travel well on public transport. Any travel then to a contact centre will have that extra level of burden.
The mother agrees that her mother’s address should be the address used by the father for the sending of gifts, cards or presents. The father is familiar with and knows the mother’s mother’s contact details.

Capacity of the Parents

It is undisputed that the mother has the appropriate capacity to provide for the children. It must be acknowledged that the needs of X are in particular arising from her diagnosis of being on the autistic spectrum. The father’s capacity is completely limited. He has no knowledge of how to respond to X and her particular needs. He has not read the book that he borrowed from the library. He has not done any courses.
The father’s capacity is also inconsistent arising from his continued use of alcohol and cannabis. It has previously been assessed that his alcohol use should be addressed by complete abstinence. He has no intention of abstaining from alcohol. There is no reason for the Court to consider that the father’s alcohol use will continue to be anything other than ongoing use. It is plain also the father has no internal or external motivator to cease the use of cannabis. The father’s capacity is also significantly lessened as a result of his mental health issues, his mental health presentation, his apparent personality disorder and his limited intellectual capacity. As best as I can understand it, the father is only barely functional literate.

Characteristics of the Children

These two little girls were born 13 months apart. They are plainly a close sibship of two. They have been in their mother’s exclusive care since they were three and two years respectively. Before their parents separated there was significant intervention by the Child Protection Authority and the police in their lives. X has a diagnosis of autistic spectrum disorder.

Family Violence

Family violence was a feature of the relationship between the mother and father when it was an intact relationship. After the relationship has ended the mother has, for the most part, managed to limit her contact with the father. The children are not exposed to family violence in their mother’s care.

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

A decision which creates the outcome that the children do not spend any face-to-face time with a parent is a significant decision. It is the mother’s position in this case that if it was safe for the children to spend time with the father and if she could be assured that the father was going to be reliable in taking up the time with the children and was addressing his own personal matters at the same time, the children should be spending time with their father.
It seems to me that a significant part of the mother’s case is the father’s complete inability to take any positive steps to put himself in a better position so that she and the children could be assured that he would reliably take up the time with the children and would be able to manage that time with the children, such that it worked well for the children.
The father urges the Court to make orders on the basis that things will be different in the future. There is no reason for the Court to think the father is going to do anything different in the future to what he has done in the past. The only basis, upon which the Court might think that there is any reason for a different view to be held, is the filing of the undertaking by the father after the conclusion of the trial.
With respect to the father, it seems to me that is way too little, way too late.
For the last 15 months or thereabouts, the father has had the opportunity to address the significant issues which, one-by-one, have been pointed to him by the experts engaged in the case. He has not successfully addressed even one of those issues or made any real attempt to address any one of the issues. There can be no basis for the Court to think he will do something different in the future and the Court cannot make an order, at this stage, based on some faint hope that the father will do something different in the future. The orders need to be based upon the facts as they presently present themselves.

Conclusion

Turning to all of those things, then:
·the risk to the children if there is an order in place which requires them to be spending time with the father at a contact centre on an occasional basis arising not only from the father’s inability to contain their behaviours when they spend time with him and to be able to provide in an emotionally safe way for them;
·the capacity to have a relationship with him but significantly;
·the demonstrated failure by the father to take up any of the matters which have been open to him whilst this litigation has been continuing.
There is every prospect that even if the Court made an order that the children were to spend time with the father from time to time at a contact centre, the father would be unable to take that time up. If that time required any preconditions, including for example, the father undertaking intake, there is no evidence that the father would successfully conclude even that most basic step. He failed to conclude that step between May and November 2014.
What that would then do is, if I made such an order with the view that the father would be unlikely to conclude his requirements under that order, place an obligation upon the mother – the mother who has historically been warned by the department that she places her children at risk in not being protective of them, the mother who has taken on the sole burden – lovingly taken but hers alone – of parenting the children since final separation with no assistance and no respite from the father of the children.
That this mother, who would then have the requirement to prepare the children for spending time with the father, the anxiety that that creates in her, knowing that the children are not wanting that to happen, knowing that the older child, X, has particular needs which need to be managed appropriately by the mother, knowing that the father doesn’t have the emotional capacity or parenting skill to be able to appropriately contain the children’s emotions when they’re spending time with him – knowing all of those things, the mother would be placed in the added emotional stress of the requirement of presenting the children for time with their father if and when the father did any of the preconditions for the children spending time with him.
This case is one which has unusual features which should not be considered to be authority for or precedent for any matters in the future. Here, not only are the children at risk in the father’s care such that the time could only be supervised but we also have a father who has a demonstrated inability to actually attend to any of the matters which the Court has required him to do as preconditions for spending time with the children.
In the circumstances of this case, there cannot be said to be any benefit to the children in an order which requires them to be spending time with their father at a contact centre. That order would place unfair burdens on the mother. The father, it seems to me, would be unlikely to take up any of the responsibilities and the order in a sense would become a nonsense.
The authorities are clear that no contact orders are serious orders which should not be made lightly. In this case of course the Court does not make the order lightly. In many ways though rather than it being a no contact order, it is an order which provides for the children to receive gifts and cards from their father and provides a mechanism for the mother in later years, at times when she considers it to be in the best interests of the children to organise for the children to see their father if that’s something she considers needs to be done at a later time.
Of course, in the event that the father makes significant changes to his presentation or his life in years to come and is able to demonstrate sustained change, able to demonstrate that he has had relationships free from violence and dysfunction, that he has been able to demonstrate sustained abstinence from alcohol and drug misuse, then maybe things might be different for X and Y. But for the time being, for these two little girls there is no evidence which suggests that it is in the best interests of them that there should be an order in place which requires them to be spending time with their father at a contact centre or in any other way.

The mother will have sole parental responsibility. I cannot see that there is any basis for the mother being required to advise the father of decisions that she makes. The father will be able to send letters and cards to the mother’s mother’s contact address and the mother’s mother will always of course know, it would seem to me, her daughter and grandchildren’s contact details and will be able to forward them on.
The independent children’s lawyer expressed the order with respect to that written communication to be that it would be cards and letters addressed to the children once during each of the school terms care of the contact address provided by the mother who shall be responsible for ensuring that, having regard to the respective ages and levels of maturity for the children, no inappropriate written material from the father is to be given to them and by gifts and presents on the birthdays of the children, Christmas time and Easter time in each year to be provided to them through the mother who shall be responsible for ensuring that the children receive such items.
The independent children’s lawyer had also sought the order that the mother shall by written communication advise the father of having received all items and setting out whether the item has been given to the relevant child and if not, why not. The mother opposes that order being made. I cannot see that the mother should be obliged to be advising the father of anything. If the mother considers that there is something about the communication that the mother wants to relay back to the father, the orders will not prohibit her from advising the father; neither will the orders require the mother to advise the father.
The mother agreed in cross-examination that she would keep any letters which were not then read to the children at a young age and she would keep them until they were young people or adults, so that they could then have anything that she had thought was not appropriate. I do not consider that I need to make an order obliging that of the mother; her evidence was that that would be her intention.
The mother was also concerned to ensure that both of the children received gifts and letters and cards any time that something was sent. It seems to me that that is a useful reminder to the father that there are two children. The mother has had some concerns that one child may be favoured over the other and that, for example, a birthday present may arrive for one child but not the other. It seems to me that any correspondence from the father – whether it’s gifts, cards or letters – needs to ensure that it is sent to both children and that any gifts are of equal or similar value.
The mother, with respect to the way she seeks the orders be worded with respect to the children’s time with the father, is:
…for the children to spend no time nor communicate with the father save for as expressed in these orders and except as agreed by the mother.
It seems to me that the provision in the order should include those words “except as agreed by the mother”, so that in the event in the future the mother forms the view that the children should be spending time with the father in a particular way, she would not be prohibited from doing that because of an order which provided for no time.
The mother also simply seeks orders that she have sole parental responsibility; that order should be made in the plain and simple terms as expressed in the mother’s minute of orders sought. The orders need to include that the children live with the mother.
The mother also opposed any orders which provided for the father being able to gain any knowledge from the children’s school or extracurricular activities. The mother seeks to continue to have hers and the children’s contact details not provided to the father. It seems to me that in the circumstances of this case, where the father has demonstrated no interest historically in being provided with any of that style of information, that there should be no obligation on the mother to disclose her whereabouts which would necessarily happen in the event that the father was able to make contact with the school. There is no way that he could be making contact with the school without knowing the school’s identity. I decline to make those orders.
None of these things, of course, prohibit the mother from advising the father if she thinks there is a real need to in the future. I will leave that to the mother’s judgment. I’m satisfied that the mother over time has come to exercise sound judgment with respect to these children and their relationship with their father.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of Judge Demack

Date: 2 October 2015

[2015] FCCA 2109

6 August 2015

Key Legal Topics

Areas of Law

Family Law