Glendale and Rubin
[2018] FCCA 1716
•4 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GLENDALE & RUBIN | [2018] FCCA 1716 |
| Catchwords: FAMILY LAW – Parenting application – two children aged 7 and 14 – father seeks equal shared parental responsibility, children live with mother, no time with father and engage in family therapy with children – mother and independent children’s lawyer (“ICL”) seek sole parental responsibility for mother, live with mother, no time or communication with father except by cards, gifts and letters on special occasions – mother alleges family violence by father – numerous family violence intervention orders (“IVO”) against father and breach of IVO – father has no insight into impact of his behaviour and does not accept responsibility – findings of serious family violence – orders made as sought by mother and ICL – no time with father. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4AB(1), 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, pt.VII |
| Cases cited: Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 Blinko and Blinko [2018] FamCAFC 104 |
| Applicant: | MR GLENDALE |
| Respondent: | MS RUBIN |
| File Number: | DGC 226 of 2015 |
| Judgment of: | Judge Jones |
| Hearing dates: | 5-6 October 2017 and 5-6 February 2018 |
| Date of Last Submission: | 6 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 July 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Ms Papson |
| Solicitors for the Respondent: | Sutherland Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Agresta |
| Solicitors for the Independent Children’s Lawyer: | CE Family Lawyers |
ORDERS
All previous parenting orders in respect of the children [X] born 2003 (“[X]”) and [Y] born 2011 (“[Y]”) (collectively, “the children”) be discharged.
The Mother have sole parental responsibility for the children.
The children live with the Mother.
The Father communicate with the children by way of cards, gifts and letters on the children’s birthdays, Easter, and Christmas, with such correspondence to be posted to the children to a postal address to be advised by the Mother to the Father within seven days of these Orders and the Mother to advise the Father of any change in postal address within 48 hours of such change.
The Mother shall on receipt of any correspondence or gifts from the Father in accordance with Order 4 herein be permitted to exercise her discretion to provide such correspondence or gifts to the children after reading any content.
Subject to Orders 4 and 5 herein, the Father spend no time or communicate with the children.
The Mother do all acts and things necessary to authorise the school/s that the children attend upon to provide the Father with copies of the children’s school reports, at the Father’s expense (if any), and the Mother be permitted to provide a copy of these orders to the school/s and such service shall stand as authorisation for the purpose of this Order.
The Father forthwith provide to the Mother details of a current address and telephone number on which he can be contacted.
The Independent Children’s Lawyer explain these Orders to the children forthwith.
Upon the Independent Children’s Lawyer explaining these Orders to the children in accordance with Order 9 herein, the appointment of the Independent Children’s Lawyer be discharged.
Otherwise, all extant applications be dismissed.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATION:
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
IT IS NOTED that publication of this judgment under the pseudonym Glendale & Rubin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 226 of 2015
| MR GLENDALE |
Applicant
And
| MS RUBIN |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns the future parenting arrangements for:
a)[X] born on 2003 (“[X]”); and
b)[Y] born on 2011 (“[Y]”).
(collectively, “the children”)
The mother of the children is Ms Rubin (“the Mother”). The Mother is 42 years of age and is engaged in home duties.
The father of the children is Mr Glendale (“the Father”). The Father is 47 years of age, and is qualified as a (occupation omitted) but is presently unemployed.
The parents commenced their relationship in or about 1999. They married on 2006. They finally separated on 19 November 2014, although the Father had moved out of the former matrimonial home to live with the paternal grandmother, Ms J, before that date. During the latter part of the relationship, the Mother and the children spent extended periods of time living with the maternal grandparents.
An interim family violence intervention order (“IVO”) was made on
24 November 2014. The interim IVO provided for the Father to spend supervised time with the children, as supervised by the Mother’s step-mother, Ms K, at the maternal grandfather’s (Mr G) home each Tuesday from 5.30pm to 8.00pm. The Mother says that [X] refused to attend these supervised sessions. Consequently, only [Y] spent supervised time with the Father. This arrangement ceased on 2 March 2015, when the Mother says she was informed by Ms K that she and the paternal grandfather could no longer supervise the Father’s time with [Y] because it was too traumatic and stressful. In cross-examination, the Father denied that he was aggressive towards Ms K and the maternal grandfather. The Father alleges that the arrangement ceased because of the behaviour of the maternal grandfather, whom he alleges assaulted him. Neither the maternal grandfather nor Ms K filed affidavits or were called to give evidence in relation to the Father’s supervised spent with [Y] and the reasons for its cessation.[1]
[1] Statements made by Mr G and Ms K, originally annexed to the Mother’s affidavit filed on 2 October 2017, were struck out on the basis that they were not filed in the proper form; that is, as affidavits sworn/affirmed by each of them.
The Father filed his initiating application on 27 January 2015 seeking orders that the parents have equal shared parental responsibility, the children live with the Mother, and the children spend significant and substantial time with him.
On 28 April 2015, orders were made by consent that the parents have equal shared parental responsibility, the children live with the Mother, and the Father spend time each alternate Sunday supervised by a professional supervisor. In accordance with those orders, supervised time commenced on 3 May 2015, with supervision provided by the Family Contact Service (“FCS”). FCS’s Manager, Ms R, annexed reports and correspondence regarding the supervised sessions to her affidavit. The reports record that at the commencement of each session, [X] refused to spend supervised time with the Father. The Father’s last supervised session with [Y] was on 9 August 2015.
On 24 September 2015, orders were made by consent that the Father spend time and communicate with [Y] each alternate Sunday, with such time to be supervised by a professional supervisor and the Father to pay the costs, or in the event the Father is unable to pay, his time with [Y] occur at a Children’s Contact Centre. The orders provided for [X] to spend time with the Father as she may request.
On 21 December 2015, Ms R informed the parties’ solicitors that the professional supervision services were terminated.
The Father did not take any steps to engage other professional supervision services, nor to spend time with [Y] at a Children’s Contact Centre. Consequently, at the commencement of the final hearing, the Father had not spent time with [X] since 19 November 2014, and had spent limited supervised time with [Y] from November 2014 to 2 March 2015, and from 3 May 2015 to 9 August 2015.
At the commencement of the final hearing, the Father sought an adjournment of the hearing on the basis that he wished to obtain legal representation (his previous solicitor having withdrawn on 1 June 2016), and because he said he had not had an opportunity to read the Mother’s trial affidavit filed on 2 October 2017. The Father’s application for the adjournment was refused, for the following reasons:
a)the Father had had more than sufficient time to obtain new legal representation;
b)the proceedings were stood down to enable the Father to read the Mother’s trial affidavit;
c)in any event, a substantive part of the Mother’s trial affidavit repeated matters deposed to by the Mother in earlier affidavits filed in the proceedings;
d)the Father was granted leave to give evidence-in-chief in relation to the matters deposed by the Mother in her trial affidavit; and
e)any further delay in finalising the proceedings was not in the best interests of the children.
In any event, the trial was not completed in the two days it was originally listed for hearing. The proceedings were adjourned part-heard, and recommenced on 5 February 2018. The Father again appeared in person at the resumed hearing.
On 5 February 2018, the Father sought an adjournment of the part-heard hearing. His reasons were that the resumed hearing was originally listed for 20 February 2018, and the bringing forward of the resumed hearing by two weeks had the effect that he had not been able to properly prepare his case, nor make a Freedom of Information (“FOI”) application. I rejected his application for adjournment, on the basis that the Father had had ample opportunity since 7 October 2017 to make a FOI application and to prepare for the part-heard hearing.
Evidence
The Father relies on the following affidavits and documents:
a)his Initiating Application filed on 27 January 2015; and
b)his affidavits filed on:
i)27 January 2015;
ii)23 April 2015; and
iii)21 April 2016.
The Father tendered the following exhibits:
a)his three above-mentioned affidavits (Exhibits A1-A3);
b)Exhibit A4 – Intake Report by Health Centre dated 3 April 2008; and
c)Exhibit A5 – Letter titled “[X]” dated circa 2014.
The Father was cross-examined.
The Mother relies on the following affidavits and documents:
a)her Response filed on 27 April 2015;
b)her Application in a Case filed on 27 April 2015; and
c)her affidavits filed on:
i)27 April 2015;
ii)24 June 2016; and
iii)2 October 2017.
The Mother did not tender any exhibits.
The Mother was cross-examined.
The Independent Children’s Lawyer filed the following affidavits and tendered the following exhibits:
a)an affidavit of Ms R, Manager at the Family Contact Service in Suburb A, filed on 12 July 2018;
b)an affidavit of Dr G filed on 15 February 2017, annexing a psychiatric assessment of the Father;
c)Exhibit ICL1 – Report by Dr M dated 15 May 2015; and
d)Exhibit ICL2 – Extract from Victoria Police LEAP records dated 3 October 2017.
Family Reports prepared by Family Consultant Ms E were marked as exhibits by the Court as follows:
a)
Court Exhibit 1 – Family Report prepared by Ms E dated
26 August 2015; and
b)Court Exhibit 2 – Updated Family Report prepared by Ms E dated 25 May 2016.
Ms E was cross-examined.
The Father issued a subpoena to Mr P (the Mother’s sister’s husband) to attend Court and give oral evidence. Mr P was cross-examined regarding an incident which occurred on 19 November 2014.
Proposed orders
The Mother and the ICL propose the following orders:
1. That all previous parenting orders in respect of the children [X] born 2003 and [Y] born 2011 be discharged.
2. That the mother have sole parental responsibility for the children.
3. The children live with the mother.
4. That the father communicate with the children by way of cards, gifts and letters on the children’s birthdays, Easter and Christmas, such correspondence to be posted to the children to a postal address to be advised by the mother within 7 days of this order and keep the father advised of a postal address at all times.
5. Subject to order 4 herein, the father otherwise have no contact with the children.
6. That the mother shall on receipt of any correspondence be permitted to exercise her discretion to provide such correspondence and gifts to the children after reading any content.
7. The mother do all acts and things necessary to authorise the schools at which the children attend to provide to the father with copies of the children’s school reports bi-annually each year and the mother be permitted to provide a copy of this order to the school and such service shall stand as authorisation for the purpose of this paragraph.
8. That the father provide to the mother forthwith details of a current address and telephone number on which he can be contacted.
9. Usual 65DA and 62B orders.
10. All applications be dismissed.
11. That the order for the appointment of the ICL be discharged.
At the hearing on 5 October 2017, the Father informed the Court that he no longer sought the orders specified in his Initiating Application. However, he had not prepared written orders for the parties and the Court to consider. The Father informed the Court that he sought orders for equal shared parental responsibility, that the children live with the Mother, that he have telephone communication with the children at least on special occasions and be permitted to give the children gifts and cards on special occasions, and that he be provided with the children’s school reports and general reports by the Mother every six months about what is happening in the children’s lives. The Father also proposed supervised time with the children in or around six months’ time after the final orders were made, to be followed by an assessment of his time with the children conducted by a family therapist and/or psychiatrist. The Father told the Court that he wanted the children to know that he still loves them, and cares about them.
At the hearing on 5 February 2018, the Father informed the Court that he now sought orders that he engage in family therapy with the children before his time with the children commenced. In response to questions from the Court, he said that he would comply with all the recommendations of the family therapists, including if the family therapist recommended that family therapy should cease, or that he spend no time with the children. The Father suggested that he had an expectation that, following or during the family therapy process, the family therapist may recommend he have unsupervised time with the children.
In the absence of the Father providing the Court with written proposed orders, I take the Father’s proposed orders to be as follows:
a)the parents have equal shared parental responsibility for the children;
b)the children live with the Mother;
c)the children and the Father attend upon family therapy;
d)the children commence spending time with the Father in accordance with the recommendations of the family therapist;
e)the Father communicate with the children by telephone, at least on special occasions;
f)the Father be permitted to provide the children with cards and gifts on special occasions;
g)the Father be authorised by the Mother to receive the children’s school reports; and
h)the Father be provided with reports from the Mother every six months regarding the children’s progress.
Reports by the Family Contact Service
As noted earlier, [X] refused to attend the sessions supervised by the FCS. The supervised sessions of the Father’s time with [Y] took place from 3 May 2015 to 9 August 2015 (who was 3 years old at the commencement). The summary in the report generally reveal a warm and positive relationship between the Father and [Y], although on a few occasions, [Y] disclosed reluctance at the commencement of the session when the location of the supervised time changed from the play centre to the Father’s residence. [X] was brought by the Mother to each session, and [X] was asked by the contact supervisor if she wanted to spend time with the Father. On one occasion, 14 June 2015, the supervisor reported that the Mother encouraged [X] to stay and say hello to the Father, even if only for five minutes, however [X] still refused.
In an email dated 22 September 2015 from Ms R to the parties’ solicitors, Ms R stated that the Father had advised her that he could no longer afford to pay for sessions, and that:[2]
…the family report stated [Ms R] had said [the Father] was “unpredictable” which [Ms R] explained to the father he can present so based on [Ms R’s] observations of him, which he was not happy about.
[2] The Affidavit of Ms R filed on 12 July 2017, Annexure R-2, 46.
The circumstances in which FCS terminated their professional services are set out in an email dated 21 December 2015 from Ms R to the parties’ solicitors. The email states:[3]
Dear Practitioners, my service had scheduled a supervised session for the father to see [Y] at play centre in Suburb B 20/12/2015. My allocated worker (omitted) called the father on 19/12/2015 to discuss the arrangements including the father meeting her inside the centre to await [Y]’s arrival. The father abruptly told my worker “no” to this arrangement and herself and Ms R are over involved in his case. The father stated he would wait outside the play centre for the mother to arrive and say hello to the mother inviting her inside to discuss how they could co parent the children and get [X] to attend sessions. The father also advised if the mother did not want to speak to him he would accept this. In fairness to the father I called the mother to ascertain if this is something she would participate in. The mother advised she would not as she is still fearful of the father.
I then called the father with no answer, then texted the father to confirm in writing by 5.30pm on the 19/12/2015 that we could agree to the workers terms and conditions of meeting the worked inside the centre. I received no response and the session was cancelled. It is my role to make sure any potential situation where conflict may arise does not occur which may expose [Y] to conflict between her parents. Discussions I have had with the father in relation to supervised time spent since August 2015 when the family report was released which stated I had said the father was unpredictable has caused a breakdown in the working relationship my service had with the father. Family Contact Service can no longer offer service to this family.
[3] Ibid Annexure JR-2, 47.
The reports of the supervised sessions reveal earlier occasions on which the Father refused to comply with the guidelines established by FCS; namely, that on changeover there be no contact between the parents, and that the contact supervisor collect and deliver [Y] to commence the sessions. On 17 May 2015, the contact supervisor reported that the Mother informed her that the Father was parked in the play centre’s car park prior to the scheduled commencement time, and had approached the Mother and the children. The supervisor reported that [X] appeared upset that the Father had approached her. In cross-examination, the Father conceded there was one day when he saw the Mother and [X] in the car park, but denied that he purposely arrived early and parked there in the hope of seeing them.
On 31 May 2015, Ms R reported that she was required to take over a session from another contact supervisor, because that supervisor and the Father had not successfully engaged. In a report dated 14 June 2015,[4] the supervisor reported that she reminded the Father that he needed to ensure he had no contact with the Mother. The Father said that he was engaged in a co-parenting agreement with the Mother, and that he could walk [Y] directly to the Mother, as he needed to discuss some things with her regarding [Y]. The supervisor advised the Father that it is the responsibility of FCS to ensure shuttle pickup and drop-off, and therefore the Father would not be seeing the Mother. The supervisor received a call from the Mother saying she had arrived, and the supervisor told her they were in the car park on their way to the reception area. The Mother expressed panic over being in the car park with the Father at the same time. It appeared to the supervisor that the Father wished to gather presents for [Y]’s birthday from his car and give them directly to the Mother. The supervisor reported that while [Y] was asleep in his arms, the Father again insisted that he take [Y] to the Mother, and the supervisor responded this would not happen. The supervisor reported that the Father continued to discuss the matter, and the supervisor informed the Father that they were to cease discussing the matter in front of [Y]. The supervisor reported that she gathered [Y] in her arms for changeover, and as she left the reception area to take [Y] to the Mother:[5]
…the father went to push in front of her through the double glass doors; [the supervisor] lifted her left leg to prevent him from walking through and said “no!” while still holding [Y] in her arms, seemingly fast asleep.
[4] Ibid Annexure R-2, 21.
[5] Ibid.
The supervisor then walked across the car park to the Mother, who appeared to be hiding behind her car. The supervisor reported that the Mother presented as “frightened and tense, noting the fact that the father was watching her from the reception window, and would now know the car that she drives”. The supervisor reported that the Father was watching them, very obviously, through the glass window. The Mother attempted to continue talking about the Father to the supervisor, and the supervisor explained that she was unwilling to expose [Y] to any further discussions regarding their conflict. The Mother then thanked her, and left the car park with [Y].
The Father denied that he tried to push past the supervisor to see the Mother.
The Father’s evidence regarding his engagement with FCS was as follows:
a)the service was too expensive. The Mother refused to change the times of the sessions to weekdays, which would have been cheaper than weekends;
b)with respect to the incident referred to by Ms R, an IVO had expired and he wanted to talk to the Mother about [Y]’s immunisation, so he refused the request of the contact supervisor that he not approach the Mother directly;
c)he was not happy that he had different supervisors during the course of the supervised sessions;
d)he was only supervised by Ms R twice, so he was puzzled by her comments to the family consultant that he was unpredictable; and
e)one of the contact supervisors, whom the Father asserts was inexperienced, stopped him from giving [Y] (who was sleeping) directly to the Mother. The Father accuses the supervisor of “ripping” [Y] out of his arms to affect changeover. He says she made a detrimental report about him, as did all of the supervisors.
In cross-examination, the Father agreed that the interim orders made by consent permitted him to apply to the Berry Street Contact Centre for supervised time with [Y]. The Father said that he never applied to the Berry Street Contact Centre for supervised time.
Psychiatric assessment of the Father
A psychiatric assessment of the Father was prepared by Dr G dated 3 December 2015. In the summary of his report, Dr G relevantly stated:[6]
[6] The Affidavit of Dr G filed on 15 February 2017, Annexure W-2, 15.
[The Father] also denied his estranged wife’s claims about his physical and verbal abuse.
At examination, [the Father] presented as a reasonably pleasant and plausible man who may have tended to minimise some aspects of his previous behaviours, but did not demonstrate any inconsistencies in his history.
He expressed considerable frustration about his family law matters, but did not otherwise present as being more than mildly depressed or understandably angry.
…
He demonstrated a tendency to believe in an external locus of control, in that he perceived his problems to be caused by others and not himself. However, he did not demonstrate any significant cognitive deficits or signs of psychiatric disorder at interview.
Dr G was unable to make a diagnosis of any current psychiatric disorder in the Father. In his conclusions, Dr G opined that on the face of the Father’s version of events:[7]
…psychiatric disorder would not appear to be a significant factor with regard to his ability to provide a reasonable level of positive parenting and have his children spend time with him unsupervised.
[7] Ibid, Annexure W-2, 16.
However, Dr G qualified this opinion by noting that the Father had acknowledged he still was sporadically using illicit substances, and that if he were to use illicit substances while caring for the children, they would be at risk of neglect or aggressive behaviours. Dr G further noted that the Mother was not assessed by him, and therefore it was difficult to comment on her claims.
Dr G disagreed with Ms E’s assessment in the first Family Report that the Father presented in a “somewhat casual detached manner, and at times he did not seem fully present”. Dr G further disagreed with Ms E’s opinion that the Father showed little awareness or took any responsibility for the Mother or [X]’s attitudes towards him. Dr G stated that the Father “did express remorse to this examiner about some of his behaviours”.[8]
[8] Ibid.
As is evident from my findings in relation to family violence (set out below), I disagree with Dr G’s assessment of the Father’s capacity to appropriately parent the children, and his acceptance of responsibility for the family violence which occurred. As set out below, I find that there was serious family violence during the relationship, including on the date of separation, 19 November 2014. I further find that the Father demonstrates no insight into the impact of his behaviours on the Mother and the children, nor does he accept responsibility for his actions. Indeed, his evidence in response to a question from Counsel for the ICL about what he had learned from engaging in an Anger Management Course in 2008 reveals that the Father views the Mother’s behaviour as a trigger to his engagement in family violence; in other words, he blames the Mother for any family violence which may have occurred.
I further find that Dr G’s disagreement with Ms R’s report to Ms E that some staff at FCS found the Father to be difficult and had concerns dealing with him, completely overlooks the reports of FCS staff attempting to prevent contact between the Father and the Mother. I agree with Dr G that the FCS reports generally disclose positive interaction between the Father and [Y]. However, the FCS reports also disclose a father who is unable to comply with the rules or protocols established by a professional organisation and professional supervisors, and who persisted in attempting to contact the Mother at the beginning and/or end of the supervised sessions, against protocol. Further, the FCS reports independently disclose the anxiety that the Father caused the Mother through these persistent attempts.
Under the heading “clinical history”, Dr G reported as follows:[9]
[The Father] denied any history of drug or alcohol problems, although [said] “I smoked a fair bit of pot (cannabis) from when I was 17 to about 30… and during that time, once in a blue moon at a party, I would use speed (amphetamines), acid (LSD) or cocaine… Since I’ve been 30, I’ve randomly used pot… and there has been spur of the moment party drugs… Last week I used acid, but haven’t used anything else in 2015… used pot last Christmas... Before the separation, I used ice (crystal methamphetamines) once”.
[9] Ibid Annexure W-2, 11.
Under the heading “relationships”, Dr G reported as follows:[10]
[The Father] denied any history of physical violence, saying, “Once we had an argument that she grabbed [X], and turned away with her… I grabbed [the Mother’s] ponytail… I consider it was unacceptable… Three years ago, she threatened to tell the police that I attacked her and that I would never see the kids again. I grabbed her on the chin to look at me and said, ‘how dare you’… they are the only two times I have physically touched her”.
…
He acknowledged that he had a loud voice at times, “when we argued… I was probably scary”.
[10] Ibid, Annexure W-2, 12.
Family Reports
Two Family Reports were prepared by Family Consultant, Ms E.
In the first Family Report dated 26 August 2015 (Court Exhibit 1), Ms E reported that the Father:
a)when asked about any drug or mental health issues, denied any drug use (at [7]);
b)
said that the Mother “lied” to police and others in order to obtain an interim IVO, which was to be heard in September 2015
(at [8]);
c)reported that his older brother had an IVO against him, and said that “[his older brother] is in collusion with [the Mother]… they both lied to get it… [they] lied to the police” about him (at [9]);
d)claimed that the Mother was “very controlling” over him and “controlled the relationship”. The Father said that she was a “reasonably good mother”, but she did all the parenting herself and did not allow the Father to be involved (at [10]);
e)claimed that he had a good relationship with the children, but that [X] was afraid of him for no reason other than the Mother’s influence. Ms E reported that “[the Father] said the mother misconstrued various events to [X], for example, she claimed that he had imprisoned her and the children in the house and scared them” (at [10]);
f)the Father attended an Anger Management Course in May 2008, and stated that it taught him “to manage [the Mother’s] angry outbursts”, describing her as “very angry and bitter”. He claimed the Mother “yelled and screamed” at him in the final months of their relationship, and alleged that she commenced an affair near the end of their relationship (at [11]); and
g)the Father expressed concerns about [X] and [Y] are being pressured against seeing him by the Mother and the Mother’s sister, Ms D. He also alleged that the maternal grandmother was addicted to prescription painkillers (at [12]).
In the first Family Report, Ms E opined (at [13]):
13. [The Father] demonstrated little awareness of any responsibility for the mother’s or [X]’s attitudes towards him other than commenting that “I was no angel, I argued back sometimes”. He also spoke of his belief that the mother was prepared to consider the reconciliation of their relationship if he presented well at these report interviews…
Ms E reported that she was unable to observe time spent by the Father with the children, as [X] did not want to see the Father, and [Y] clung to the Mother, and refused to stay in the room without the Mother or [Y], neither of whom wanted to see the Father (the first Family Report at [14]-[15]).
Ms E recorded the Mother’s experience of the Father as follows (the first Family Report at [17], [21]):
17. [The Mother] presented as a softly spoken and highly anxious woman whose primary focus was on the safe welfare of her children rather than any retaliatory motivation towards the father. She seemed very frightened about what [the Father] might do to her, the children and other members of her family…
…
21. When asked about [the Father’s] parental capacity, [the Mother] said that “He needs a lot of help… he can be really nice and seconds later he can be screaming and swearing. (For example,) if [X] doesn’t answer correctly, he will scream and swear at her, he is very unpredictable; things broken, holes in walls, pulling [X]’s hair, pushing her, gets worse and worse”…
With respect to both [X] (who was then 11 years old) and [Y] (who was then 4 years old), Ms E observed a close bond between them “as evidenced by their interactive chatter and sharing of tasks” (the first Family Report at [25]).
With respect to [X], Ms E reported (the first Family Report
at [28]-[31]):
28. When asked about her father, [X] said she did “not want anything to do with him” as he made her feel “scared ... he gets angry and yells ... he used to say bad things about my mother but I know they are not true”. She felt unable to trust him or rely on his moods and said “he doesn’t keep promises”. She said that “he always blames everyone else, it’s never his fault”. She indicated her concern for [Y] spending time with him and recalled an incident involving his (alleged) poor supervision of [Y] in a swimming pool.
29. [X] was asked whether her mother had spoken to her about seeing her father. She replied that her mother has told her “It’s my choice ... she always encourages me to see him but I don’t want to ... he thinks she is stopping me and said he would call the police because I need protection from her”.
30. [X] made it very clear she did not want to see her father even when told the family consultant would remain with her at all times.
31. [X] was otherwise vivacious and upbeat during the day.
Ms E reported that [Y] impressed as quite determined and able to convey her preferences and needs, and that (the first Family Report at [34]):
34. When asked to stay in the room with the family consultant, in order to spend time with her father, [Y] clung to her mother and refused to separate from her despite the mother’s appropriate encouragement.
Ms E reported that she had spoken to Ms R about the Father’s supervised time with [Y], and that Ms R had confirmed that (the first Family Report at [35]):
35. …some of her staff had found [the Father] to be difficult and concerning to deal with as he was “unpredictable” and pursued problematic and insistent challenges about [FCS’s] procedures, acting as though “the rules don’t apply to him”.
Ms R informed Ms E that she or her associate, who were both highly experienced, would supervise the Father with the children when away from the centre, as both of them were “able to manage him” (the first Family Report at [35]).
In her evaluation, Ms E relevantly stated (the first Family Report at [37]-[38]):
37. The mother described a fraught relationship during the marriage and since the separation that included the father’s alleged volatile and frightening behaviour and threats of serious harm by him towards her, the children and others. The mother was assessed as an excellent parent who was genuinely concerned for herself and her children’s safety and was motivated by her need to protect their welfare rather than by any punitive intent towards the father.
38. The father denied or minimised all the mother’s allegations and claimed that she fabricated and convinced others, including the police to believe “her lies”. He expressed some persecutory ideas which indicated possibly delusional thinking and showed little capacity to accept any responsibility for the situation which included that his older daughter [X] has continued to refuse any contact with him.
Ms E ultimately recommended that the Court’s interim orders be amended so that the Father spend only supervised time with [Y], and time with [X] be in accordance with [X]’s wishes. Ms E also recommended that the Father undergo random supervised drug screens, and a full psychiatric assessment.
In the Updated Family Report dated 25 May 2016 (Court Exhibit 2), Ms E noted that the Father continued to live with the paternal grandmother, although she had an IVO against him until 2018. The Father reported he took the paternal grandmother to court in order to withdraw the IVO, but “[the maternal grandmother] was pressured by a court worker not to withdraw it”. In respect of the paternal grandmother, the Father said that “she likes to feel secure and in control and she also lies, like [the Mother]” (the Updated Family Report at [12]).
Ms E reported the Father as saying the following (the Updated Family Report at [16]):
16. [The Father] has not seen [X] since the separation and [Y] since August 2015. He said, “[the Mother] doesn’t want me to see them... and everyone thinks she’s a sweet and innocent person who doesn't tell lies but she lies about everything.” He said he has had concerns about the mother’s mental health for the past eighteen years and referred to her “violent and aggressive behaviours” (including) yelling and screaming... controlling behaviours ... very unreasonable. He alleged that the mother had been extremely aggressive toward his barrister at a previous court appearance, “screaming and yelling... she tells different lies to different people... she used me in order to have an easy life, supported by me with rent and bills paid”. He complained that the mother’s “present to me for giving her $200,000 financial settlement was to take out an Intervention Order against me” and contended that the main reason for the application was because “the ICL was going to have the paternal grandmother appointed as a supervisor and [the Mother] wanted to stop that so she made up other stories to get another Intervention Order”.
Ms E reported that when she asked the Father why he did not continue with Ms R's Family Contact Service, he responded that it was not because he did not want to use a service, but rather that it was because the Mother refused to pay for the service (the Updated Family Report at [20]). This response clearly conflicts with documented evidence contained in the email sent by Ms R to the parties’ solicitors dated 21 December 2015 (see [30] above). In any event, interim orders were made by consent (well prior to the Father’s interview with Ms E) on 24 September 2015, providing that the Father pay for the professional supervision, or alternatively, for supervision at a children’s contact centre.
Ms E observed that the Mother presented as quietly spoken and very anxious (the Updated Family Report at [22]). From her observations, Ms E reported that the Mother and the children have a warm and loving relationship, which is interactive and communicative. Ms E observed that [X] presented in a very confident manner, and was very considerate and accommodating towards [Y], playing with and including her in various activities. Ms E stated that [Y] was observed to be a happy and interested child, who remained physically close to the Mother at all times and refused to be seen separately from her (the Updated Family Report at [29]-[31]).
With respect to [X] (who was then 12 years old), Ms E reported that [X] said she was doing extremely well in all aspects of school, that she was a form captain, that she had lots of friends, and was very happy with her life since she has not had to see or speak with the Father. Ms E stated (the Updated Family Report at [32]-[34]):
32. …[X] said she has a few positive memories of her father which tended to be blocked out by her negative memories, such as him yelling at her and making her sad. [X] was clear in her view that she did not want to see her father, saying he made her feel “scared... I was scared when I saw him in the waiting room... he gets angry and yells”. She felt unable to trust him because she never knew what mood he would be in and “he always blames everyone else, it’s never his fault”…
33. [X] expressed her continuing concern about her father seeing [Y] because she did not believe he would look after her properly. She commented that [Y] thinks that seeing him means she’ll go to the play centre which she loves and that she doesn't want to go anywhere else with him.
34. [X]’s views were assessed as reflecting her own independent opinions and there was no indication that she had been pressured by anyone else in conveying her views.
Ms E observed that [Y] (who was then 4 years old) presented as shy, and clinging to the Mother. Ms E reported (the Updated Family Report at [36]):
36. [Y]’s language was somewhat difficult to understand and she was less than cooperative with the interview process. When asked about seeing her father, [Y] initially said she wanted to go to the “Lollipops” play centre with him but then refused to separate from her mother. The mother was seen and heard to encourage [Y] to spend time with her father but [Y] refused to let go of and separate from her.
Consequently, Ms E did not observe the Father with the children.
In her evaluation, Ms E said with respect to the Father (the Updated Family Report at [42]-[45]):
42. As was noted in the previous report (Para 38), the father continued to assign responsibility and blame to others in relation to his difficulties without indicating that he accepted any responsibility on his part. For example, he stated that his exemption from the Family Contact Service was due to the service and to the mother rather than because of his refusal to accept their conditions. He stated that [X]’s fear of him was caused by the mother rather than by any of his behaviours and he believed that the paternal grandmother’s wish to continue an Intervention order against him was due to the pressure from a court worker rather than from his behaviour.
43. These concerning aspects about the father are summarised below:
· He lives with his mother who has obtained an intervention order against him relating to claims of his physical, emotional and financial abuse of her.
· His brother has an Intervention order against him for physical abuse.
· The mother has had more than one Intervention order against him for physical and emotional abuse.
· The father has consistently refused to comply with basic precautionary conditions by a contact centre to the point that his contract with them has been suspended.
44. He consistently assigns blame to others without accepting any responsibility for the situation he finds himself in.
45. Given the record of the history of his relationships with his family, there is a distinct lack of confidence in his capacity to form and develop a nurturing relationship with his younger daughter.
With respect to the Mother and the children, Ms E relevantly said (the Updated Family Report at [47]-[49]):
47. The mother was assessed as a woman who was doing her best to look after her children in difficult circumstances where she continued to be extremely anxious about her and the children’s security. Her relationship with her children was assessed as excellent although it was clear to the family consultant that she was dealing with significant pressure because of the ongoing and uncertain court related issues. The impact of the continuing intrusion into the stability of her relationship with her daughters impacts negatively on her parenting and it was considered that she very much requires the court to finalise these issues so that she can continue to care well for the children.
48. The children were assessed as having an excellent relationship with their mother and they are both thriving in her care. [X] was assessed as indicating her own independent views, including her concerns about her younger sister and they should be given considerable weight given her age and maturity.
49. While [Y] said she would see her father, at her young age, her spoken response has less significance than her behaviour which was to cling to her mother and refuse to leave her.
Ms E’s opinion was that it was difficult to see how the children could realistically spend time with the Father in the current circumstances. Ms E recommended that the children live with the Mother, and that there be no orders for the Father to spend time with the children.
In cross-examination by Counsel for the ICL, Ms E’s evidence was that:
a)having read the conclusion of Dr G that, from a psychiatric perspective, the Father does not present a risk to the children, Ms E’s opinion in the Updated Family Report that it was not in the best interests of the children to spend time with the Father (whether supervised or unsupervised) had not changed. The reasons for this opinion were as follows:
i)the children (particularly [X]) have gone through a protracted period of conflict between the parents, which has been extremely anxiety-provoking for them;
ii)[Y] is much younger, however she would be picking-up on [X]’s fears and anxieties about being in a situation where she is forced to see the Father against her wishes;
iii)although [X] commented on having some positive memories of the Father, which was a good thing, overall she was quite apprehensive about having anything to do with him. Ms E confirmed her view that, given [X]’s age and Ms E’s view that her wishes were independently formed as a result of her own lived experience of the Father, significant weight should be placed on [X]’s wishes;
iv)in response to being informed that the Father has a very strong view that [X] is parroting the Mother’s view of him, and is influenced by the Mother because she is scared of the Mother, Ms E said that she has no evidence to support the Father’s view. Ms E commented that [X] otherwise appears to be a happy, chirpy girl, who is doing well at school, has been a form captain, and is intelligent and bright. Ms E said that in her 30-odd years of interviewing children for the preparation of family reports, she has, on occasion, formed the view that the children were influenced by a parent. Ms E said there was nothing in [X]’s presentation which would lead her to that view;
v)Ms E’s understanding from the Father was that he was not prepared to spend supervised time with [Y]. Having read the FCS reports by contact supervisors, Ms E opined that it is apparent that when challenged, the Father found it difficult to abide by the protocols of the service, to the extent that he did not want to go back to that service. Given the past experience, Ms E’s concern about an order providing for supervision is that it would put the children into an “on-again, off-again situation”, which would perpetuate this current period of uncertainty and continued anxiety;
vi)further, if orders were made for [Y] to spend time with the Father, Ms E would be concerned that both [X] and the Mother would experience a high level of anxiety about the prospect of [Y] spending time with the Father, and [Y] is close with both [X] and the Mother;
vii)the Mother has a strong anxiety and fear about the Father which has arisen from threats of physical danger and emotional abuse, and the children would be aware of the Mother’s anxiety; and
viii)in that context, there needs to be closure for the Mother and the children to have some freedom from the level of stress that has surrounded them for a long period of time. Ms E said that the Mother needed to be given the opportunity to provide the children with a stable base, free of anxiety;
b)with respect to the Father’s proposal that he and the children engage in family therapy, Ms E said that [Y] is too young to engage effectively in family therapy, and that [X] has made it plain that she does not want to engage with the Father. Ms E further said that if the Court found that the Father was a person who has not accepted that he is responsible for the present state of affairs, family therapy would be ineffective, as parties need to have sufficient insight to appreciate that they have played some part in, or caused the problems or the issues in respect of which they are attending family therapy. Ms E said that if the Father attended family therapy holding fast to a view that he was not responsible for his fractured relationship with the children, in effect he would be attending family therapy with the expectation that it was the child who should change her mind;
c)in response to a question about whether she had factored in the long term emotional impact on the children where they do not have a relationship with a parent, Ms E responded that she had factored in that consideration in making her recommendations. She said it was a question of balancing what the risks are now, as compared to the risks in the future. She said that any risks in future in terms of [X] and [Y]’s emotional functioning and self-esteem would be mitigated by the way in which the Mother deals with that; for example, by personal counselling for the children. Ms E accepted that this placed an enormous responsibility on the Mother, but she formed the view (as expressed in the family reports) that the Mother was focused on what was best for the girls, rather than having any punitive negative attitudes towards the Father. Ms E opined that the Mother would be able to manage the situation, and that it may at times be helpful for the Mother to attend counselling herself, in managing these issues; and
d)in response to being informed that the Father had given evidence that part of this motivation for initiating these proceedings was that he did not want the children to feel that he did not fight for them, Ms E responded that a provision in any orders that the Father communicate with the children by cards, gifts and letters at significant times in the year would be beneficial for the children, provided the Mother had the ability to review what is in them to ensure that they are suitable and appropriate. Ms E said that it was important for the children to know that the Father is out there, and does love and care for them.
The Father cross-examined Ms E about his attempt to present to her with text messages received from [X] in the months before the alleged incident on 19 November 2014. He also asserted that he had attempted to give her a recording of that incident. He asserted that Ms E said something to the effect that she “was not interested in seeing them”. Ms E responded that she did not recall the Father asking her to see the text messages or hear a recording. Ms E said that she would not have said something like she was not interested in seeing them. She said her standard practice when clients offered her video or audio recordings was to indicate that she did not believe that it was a good idea for her to hear or view recordings of which she did not know the circumstances in which the audio recording was made. She generally would say to a client that she would leave that up to the Court to decide. The Father cavilled with this response, arguing that in the Updated Family Report, Ms E referred to a recording of the maternal grandmother by the Father’s brother that the Mother had presented to her. The Father noted that at the commencement of the Family Report, under the heading “documents read”, Ms E referred to “record of a conversation on 28/5/2015 between Ms J and Mr J”. Ms E responded that her practice was only to read written documents, and in these proceedings, written documents sent by the parties’ solicitors. Ms E said that although the reference to “documents read” could have been clearer, she did not listen to the audio recording referred to by the Mother.
The Father has submitted into evidence a copy of what he says is a Father’s Day letter written by [X] in 2014 (Exhibit A5) and an audio recording made on the Father’s mobile phone on 19 November 2014. These may be material the Father was referring to in cross-examining Ms E, and are considered below.
The Father cross-examined Ms E about his allegation that the children sleep with the Mother constantly. He asked Ms E whether in relation to [X], she considered this to be abusive behaviour. Ms E responded that she was not sure whether [X] slept with the Mother all the time, but that if it was happening, in her view that would be an indication of extreme anxiety on the part of the child. When asked whether that might reflect a controlling mother, Ms E responded that it might in some cases, but her opinion was that it did not in this case, because her assessment of the Mother was that she was not a controlling mother.
The Father asked Ms E whether she could explain why [Y] was happy to spend time with him on 9 August 2015, and yet refused to be observed with the Father during the family report interview held on 12 August 2015. Ms E responded that, having read the reports of the contact supervisors at FCS, she noted there were two, if not three, instances of [Y] indicating her distress about going with the Father, and being coerced against her will to do so. Ms E said that children at that young age are easily pushed into a situation against their will, and that the effect is that they lose trust and feel they are not listened to.
Ms E was cross-examined by Counsel for the Mother about her views regarding telephone communication between the Father and the children. Ms E said she would not support an order providing for telephone communication between the Father and the children, because [X] had expressed her anxiety about the communication she previously had on the telephone. [X] had told Ms E that the Father was saying negative things about the Mother which had made her very sad and upset.
Family violence and intervention orders
The Mother alleges that she was the victim of physical and verbal family violence perpetrated by the Father. The Mother alleges that the family violence occurred throughout their relationship and in the post-separation period. In her affidavit filed on 24 April 2015, the Mother deposes to specific incidences of family violence which occurred in 2002, 2003, 2008, 2012 and in late-2014. In his affidavits, (the latest of which was filed on 21 April 2016), the Father did not address these incidents in any detail, save to say that he denied that he perpetrated family violence on the Mother.
The Father stated in his evidence-in-chief that he never engaged in family violence with the Mother. He said that no proof had been presented by the Mother by way of doctor’s reports, or the police observing him being violent or aggressive. The Father said that roughly 90% of the Mother’s allegations against him were lies. The Father said that the Mother makes up these allegations with nothing to substantiate them. In cross-examination by Counsel for the ICL, the Father conceded that there had been police involvement on two occasions in 2008 and 2012 in respect of which the Mother had alleged family violence; however, when put to him by Counsel for the ICL, the Father did not agree with the proposition that the police involvement suggests that there might have been difficulties in their relationship to do with family violence. The Father agreed with the proposition put by the ICL that it was his view that the Mother (and women generally) merely had to say these lies to the police, and magistrates will make the orders.
Despite disavowing any engagement in family violence at the commencement of his oral evidence, the Father did not deny Counsel for the ICL’s suggestion that he was someone who was loud, scary, and who, from time to time, did assault the Mother in the way she described in her affidavits.
The specific incidents of family violence alleged by the Mother are set out below.
The Mother deposes to an incident in 2002, in which the Father met her and some friends at a pool hall.[11] The Mother stated that she went to greet the Father as soon as she saw him, however the Father became abusive and aggressive because he said he had been standing there for five minutes. The Mother says that he threw a chair, and left. The Mother deposed that she was too scared to go home, so she spent the night at her friend’s boyfriend’s house. The Mother says that the Father had “tracked [her] down, taken [her] car back home”, and returned to collect her in the paternal grandfather’s car. He then verbally abused the Mother during the drive home, at which point the Mother attempted to end the relationship. The Mother then alleges that the Father “turned the wheel, crashing the car on the passenger side”. The Mother said that she suffered minor scratches and bruising, but had whiplash in her neck, wore a neck brace, and was unable to work. The Mother says that the Father tried to convince her that he did not mean it, and that he was stressed out by a court case he was facing.
[11] The Mother’s Affidavit filed on 24 April 2015 at [16].
In cross-examination, the Father denied that he threw a chair or verbally abused the Mother, and although he agreed there was an accident on the way home from the Mother’s friend’s house, he denied that he purposely crashed the car. He agreed that the Mother suffered scratches and bruises, but denied that she suffered whiplash.
The Father cross-examined the Mother about the 2002 incident. The Father put to the Mother that she was attacking him in the car. The Mother denied this, and responded that the Father was abusing her and that she had told him she wanted to break up. The Mother said that the Father then turned the wheel and crashed the car on the passenger side, in which she was sitting. She went on to say that she suffered whiplash, for which she had treatment and received TAC cover. She said an ambulance was called, and she had cuts and bruises, and was in shock.
The Mother deposes to an incident in 2003 in which the Father held the Mother down by her hair, and ran at her with a fist while she was holding [X].[12] The Mother deposes to another incident in 2003, in which she ran to the car without shoes on, and had no clothes or nappies packed. She then locked the car, and drove to the maternal grandmother’s house, where she lived for a period of time. The Mother deposed that the parents then re-united. In cross-examination, the Father denied that he engaged in this behaviour. He denied that he broke property at the house, but agreed that a chair was broken one time.
[12] The Mother’s Affidavit filed on 24 April 2015 at [17].
The parties agree that there was an incident in 2008 in which the police were called to the Mother’s house, and the Father was arrested. The Mother alleges that she was lying with [X] to help her sleep, that the Father was drunk and had used illicit drugs, and the Father entered the room and threatened to drag the Mother out of the room by her hair if she did not get up.[13] The Mother alleges that the Father then verbally abused her. The following morning, the Mother alleges that the Father told her and [X] to leave the house, and they went to the maternal grandmother’s house.
[13] Ibid at [18].
In cross-examination, the Father said that he could not remember if this was the occasion, but agreed that at some point, the Mother went to the maternal grandmother’s house. The Father agreed that the following day, he attended the maternal grandmother’s house. The Mother alleges that the maternal grandmother told the Father that the Mother was too upset to talk to him. The Father agrees that he walked around the outside of the maternal grandmother’s house. He denies the Mother’s allegation that he was screaming [X]’s name and banging on the windows. He said he walked around the outside of the property, because he heard [X] calling his name.
The Mother said that following the 2008 incident, the maternal grandmother called the police, who issued an interim protection order and arrested the Father. The Mother says that the Father “…talked [her] into asking the police not to fight for an intervention order”.[14]
[14] Ibid.
The Father says that the Mother went to the police station to make a statement, and then he was arrested. However, the Father’s evidence is that the Mother fabricated the statement to the police, and that the police acted upon the fabricated statement and with no evidence.
In cross-examination by the Father, the Mother gave evidence that she remained at the maternal grandmother’s house with [X] for a few months following the 2008 incident. This was not challenged by the Father.
The Mother deposed to an incident in March 2012, in which the Father grabbed her around the neck and held her against the wall while she was holding [Y].[15] The Mother says that she “…told [the Father] he needed to stop and get help, and if he didn’t he would lose everything”. The Mother says that the Father then “…grabbed [her] with his hand around [her] neck, and held [her] against the wall, screaming at [her], “Are you threatening me”?”[16] The Mother says that [X] was screaming “let mummy go… stop”, and that [Y] was crying.
[15] Ibid at [20].
[16] Ibid.
The Mother deposes that the following morning, she and the children went to the maternal grandmother’s house. The Father then came to the maternal grandmother’s house, and was screaming at the Mother. The Mother deposes that she rang the police, who told her to apply for an IVO. The parents agree that following the March 2012 incident, the Mother applied for and obtained an interim IVO against the Father. The Mother deposes that in July 2013, after the paternal grandfather died, the Father contacted her promising to give up drugs and to get help from psychologists. The Mother deposes that he talked to her into accepting an undertaking from him, instead of an IVO.
In respect of the March 2012 incident, the Father initially said in oral evidence that none of the incident occurred.
Counsel for the ICL took the Father to Dr G’s report, where Dr G said:[17]
[The Father] denied any history of physical violence, saying, “Once we had an argument that she grabbed [X], and turned away with her… I grabbed [the Mother’s] ponytail… I consider it was unacceptable… Three years ago, she threatened to tell the police that I attacked her and that I would never see the kids again. I grabbed her on the chin to look at me and said, ‘how dare you’… they are the only two times I have physically touched her”.
[17] The Affidavit of Dr G filed on 15 February 2017, Annexure W-2, 12.
When Counsel for the ICL suggested that he was referring to the same incident in which the Mother says he grabbed her by the throat, as the time frames lined-up, the Father conceded that it might be, but said that grabbing someone by the throat and someone’s chin is “a bit different.” He said that he grabbed the Mother’s chin to make her look at him.
When Counsel for the ICL asked for him to elaborate on his version of the events, the Father said that the Mother threatened that he would never see the children again. The Father conceded that the context of the March 2012 incident might have been how the Mother recalled the events, however he again denied that he grabbed her by the throat or held her against the wall.
In cross-examination by the Father, the Mother gave evidence that after the March 2012 incident, she stayed at the maternal grandmother’s house with the children for a period of one year. This was not challenged by the Father.
It appears from the evidence given by the Mother in response to cross-examination by the Father, that two days prior to the 19 November 2014 incident, there was another incident involving the Father and [X]. The Father put the proposition to the Mother that [X] had told him that the Mother had told [X] that she did not have to listen to the Father anymore. The Mother denied this. The Mother’s evidence is that the Father told [X] that he was going to “write her off”, and that the Mother and children had to walk the streets until the Father left the former matrimonial home. The Mother alleges the Father had blocked his car in front of hers and refused to move it so they had to leave on foot. In cross-examination, the Father agreed that the Mother took the children for a walk after an argument but denied blocking her car in the driveway.
The Mother alleges there was a family violence incident that took place on 19 November 2014 (the date of final separation) in the presence of the children. The Mother was moving herself, the children and their belongings out of the former marital home. At this time, the Father was living with the paternal grandmother. The Mother’s evidence is, in summary:
a)in the morning, the Father arrived at the former marital home unannounced. He then left, following an altercation with the maternal grandmother, however returned later in the day. The maternal grandmother left before the Father arrived. In cross-examination, the Mother estimated that the Father returned around three hours later. The Mother says she asked him to leave, but he refused;
b)when the Father returned to the former matrimonial home, Ms and Mr P were assisting the Mother to move her possessions from the house. Mr P had hired a rental truck for the move;
c)the Mother says that she, the children and her sister locked themselves in the truck “for [their] safety”.[18] Ms P called the police, who later attended the home. The Mother deposes that the Father “pounded on the windows and windscreen with his fists as well as screaming and trying to open the doors”.[19] In cross-examination, the Mother said he was banging on the windscreen and the driver’s window, trying to open the doors, and screaming at her and the children to “look at him”. The children were crying, scared, and hiding under the dashboard of the truck during this incident;
d)when asked by the Father why the audio recording that he produced does not record any bashing on the windows, the Mother estimated that she, Ms P and children were in the truck for around 40 minutes, as it took 40 minutes for the police to arrive, whereas the audio recording was around 20 minutes; and
e)the police issued a personal protection order, and she subsequently obtained an IVO.
[18] The Mother’s Affidavit filed on 2 October 2017 at [9].
[19] Ibid.
In his evidence-in-chief, the Father says that he had informed the Mother shortly before 19 November 2014 that he did not want to pursue the marriage anymore, and that she should take whatever she wanted from the house. The Father maintained that the only reason he was at the former matrimonial home that day was to tell her not to throw away his stuff, and otherwise take what she wanted. In cross-examination, the Father said that he found that the Mother was throwing away his and the children’s possessions on the nature strip. The Mother’s evidence is that she had put only broken toys and old school books that had barely been used on the nature strip.
In cross-examination, the Father described the Mother’s allegations as false, and denied that he was screaming at the Mother and the children from outside of the truck. The Father denied that he was banging on the windows of the truck, and denied that the children were crying and hiding inside the truck. The Father said that the police issued a warrant for his arrest because the Mother told the police a fabricated story about him hitting the truck. The Father said that it was because of this alleged incident by the Mother that he has not seen the children (especially [X]) since then.
In cross-examining the Mother, the Father asked whether she remembered [X] covering [Y]’s eyes. The Mother said that she did not. The Father did not elaborate on the reason for this question.
In cross-examination by Counsel for the ICL, the Father denied that there was any violence during the 2014 incident. He denied that he hit the truck. The Father maintained that he did nothing wrong at that time.
Mr P gave the following oral evidence about the events of
19 November 2014:
a)the Father was initially frustrated, and at times (particularly when “the girls”[20] were in the truck), the Father raised his voice. Mr P said he would not describe the Father’s demeanour (particularly at the start of the day) as aggressive. However, the Father came into the house, and despite the fact “the girls” wanted him to leave, he repeatedly said he just wanted to see “the girls” and have a conversation. As the day progressed, he was later saying things to the Mother such as “you have a mental problem”, and “are you on medication?”, and was raising his voice louder than earlier in the day;
b)Mr P could not think of a single thing the Mother said that was unreasonable. He recalled the Mother asking the Father to leave, which he thought was very reasonable because it was not an appropriate time to be having discussions, as she was in the process of moving house. He believed the Father should have stopped attempting to engage in a conversation when the Mother requested to him to stop. He suggested to the Father that now was not the time or the place, and that the Mother thought they should have a discussion another time, however the Father did not leave;
c)he did not notice the Mother, Ms P (his wife) and the children go into the truck;
d)he could not recall if the Father hit or did not hit the windows of the truck. He was able to say that there was no damage on the truck;
e)he was not at the truck the whole time, because whilst the Mother, Ms P and the children were in the rental truck, he was still moving boxes from the house to the truck. The Father did not follow him around the whole time;
f)he did not recall witnessing the children crying, nor did he recall [X] covering [Y]’s eyes;
g)he recalled that when the Mother and Ms P came out of the truck, he was very surprised to see them shaking and visibly distressed. He was surprised because he says that Ms P (his wife) is a person who is not easily intimidated;
h)when asked what he thought when he observed that the Mother, Ms P and children were in the truck when it was not fully packed, Mr P said that it was clear that “the girls” were intimidated. He felt that they were safe as a result of being in the truck, and that he did not need to stand by the truck the whole time. He believed “the girls” were intimidated because they had repeatedly asked the Father to leave. He said he assumed they went in the truck for sanctuary, to get away from the Father, and assumed that because of this, the doors of the truck were locked; and
i)he was unable to recall precisely how long the Father was present, but believed it was more than half an hour, and possibly up to two hours.
[20] Mr P clarified in his oral evidence that his reference to “the girls” was a reference to the Mother and Ms D.
The Father brought to Court an audio recording which he recorded on his mobile phone on 19 November 2014. The parties were given an opportunity to individually listen to the audio recording, and it was played in open court. In accordance with my instructions to the Father, after the hearing he filed an affidavit annexing a USB device said to contain the audio recording. Having listened to the USB device in chambers (although I note that the audio recording is of poor quality), I am satisfied that it is the same recording as was played in open court.
The audio recording commences at approximately 1.00pm on 19 November 2014 (this is not disputed), and is 20 minutes in length. In cross-examination, the Father conceded that the audio recording only covered part of the time that he was present at the former matrimonial home in the afternoon.
The following is a summary of the audio recording, insofar as it is audible. I note that insofar as location and time is concerned, is informed by the evidence of the parties:
a)the audio recording appears to commence with the Father entering the former matrimonial home, and attempting to talk to the children. The Mother asks the Father to leave the property and tells him [X] is scared. The Father ignores her and persists in attempting to speak to [X]. The Father tells the Mother he wants to have a quick chat with her. The Mother responds that she does not want to talk to him at the moment. He ignores this response as well. The Father says to the Mother that he has not done anything, and words to the effect, “not like the other times when I’ve been upset”;
b)the Mother asks the Father to leave on a number of occasions, which the Father ignores;
c)the Father then refers to items that I assume were on the nature strip outside the house, and his concern that the Mother is throwing out what he refers to as “the kids’ memories” and “stuff”. The Mother responds that it was just junk, but later says that she will put those items back in the house. The Mother repeats her request that the Father leave property, but this is also ignored;
d)the Father refers to the Mother and the maternal grandmother’s behaviour in the morning as “erratic, disturbing behaviour”. He then refers to an incident on the previous Sunday, where the Mother called the police. The Mother responds that she did that because he was scaring her and the children. The Father disputes this;
e)the Father tells the Mother he is being rational, and that she is being irrational;
f)the Father then speaks to Mr P, and describes the Mother as “totally erratic”. The Father says to Mr P that the Mother is erratic and tells “lies out of her ass”, and that he is dealing with “irrational behaviour”. At around 12 to 13 minutes through the audio recording, the Father asks Mr P to come outside with him;
g)it appears that the Father approaches the rental truck, in which the Mother, Ms P and the children were sitting. The Father asks the Mother to open the door, as he wants to talk to her. The Father says he wants to say goodbye to [Y], as the Mother has not “petrified her” of the Father yet. The Father’s voice is audibly louder as he continues to ask the Mother why she will not let him see the children, and again refers to the Mother’s “erratic behaviour which is disturbing”. The Father continues to say how disturbing the situation is, and asks the children, “are you guys okay”. The Father then asks “why is [X] doing that to [Y]?”, and then says “this is really disturbing”. The Father describes the Mother’s behaviour as “abuse”; and
h)the Father calls out to [X], telling her that her school books have been thrown away. The Father continues to call out to the Mother, asking whether she understands why he does not want her to throw things away, and asking her whether she understands. The Father calls out to the Mother, saying that maybe he should get the police involved, and they can talk to her and mediate for them. Mr P then says to the Father that this is probably not the right time to have the conversation. The Father says that “this is sick”. The Father then calls out the Mother, saying that he needed to know whether she was on any medication at the moment. He says that if anyone is scared, it should be him, because of the Mother’s “disturbing behaviour”.
The period of the audio recording during which the Father addresses to the Mother and children whilst they are in the van is around six minutes in length. The audio recording ends abruptly, which the Father says is because he received a phone call from the maternal grandmother.
When asked by Counsel for the Mother what he meant when he said in the audio recording that he had not done anything, not like the other times when he had been upset, the Father responded that he had yelled, screamed, and had arguments with the Mother, but this time there were no arguments. When asked by Counsel for the Mother where the children are when he says to them “why is [X] doing that to [Y]?”, the Father responded that the children were sitting in the truck, in between the two front seats.
During the hearing, the Father was provided an opportunity to respond to aspects of the audio recording which concerned the Court. The Court noted that he repeatedly referred to the Mother’s “erratic, irrational behaviour and delusional behaviour”, said she was “showing her true colours”, and asked her whether she was on medication. When asked whether, having completed a Men’s Behavioural Change program, he would agree that those statements amounted to denigration of the Mother, he responded “yes”. He agreed that would be an example of family violence. The Father agreed that saying to [X] that her school books were being thrown out was emotionally inappropriate. The Father gave evidence that he said “why is [X] doing that to [Y]” in the presence of the children, and conceded that this was not appropriate parenting behaviour. The Father’s explanation for his behaviour was that he was beside himself with stress and worry because his personal property was being thrown out, and no one cared about how he felt about it.
The Father said that he was trying to be reasonable with the Mother. He agreed that early in the audio recording, the Mother had informed him that she did not want to talk to him, but that he persisted engaging with her. The Father said that the Mother knows that all she has to do is say certain keywords, and she can do whatever she wants. The Father denied that this statement was him blaming his behaviour in denigrating the Mother on her.
The Victoria Police applied for an interim IVO which was made on
24 November 2014, naming the Father as the respondent and the Mother and the children as the affected family members. The order was made by consent without admission.[21] An IVO was made on
23 September 2015 and expired on 24 November 2015, naming the Father as the respondent, and the Mother and children as the affected family members.[22]
[21] The Mother’s Affidavit filed on 2 October 2017, Annexure R-1, 2-3.
[22] Ibid, Annexure R-1, 7.
The Father agreed with the proposition that it was his position that the IVOs and the November 2014 incident were the reason that he has not seen the children. The Father agreed that the IVO made in November 2014 allowed for supervised time with the children (supervised by Ms K), and otherwise in accordance with family law orders and by written agreement, and that he could negotiate other arrangements in writing with the Mother.
The parties agree that the Father breached the IVO in 2015. The Mother deposes that in March 2015, the Father would hide in his car, and wait in a street where the traffic moved at walking pace. The Mother deposes that he would approach the Mother’s car, and gesture with his hand to call him, and would write signs and leave them on his parked car where the Mother would drive past with the children. The Father denied that he engaged in this behaviour.
The Father was charged with contravening a family violence interim IVO (Exhibit ICL2) on 15 September 2015 and fined without conviction. The Father says that the breach of the IVO related to text messages sent by him to the Mother about seeing the children, and had nothing to do with what the Mother says happened. The Father said that he was attempting to get information from the Mother about the children’s vaccinations, and that he had attempted to contact the Mother through his solicitor, but had not received a response. The Father says that he plead guilty to the charges because a mutual friend had died, and when he sent the text messages, he was ignorant of the fact that that this was a breach. However, the Father conceded that when he sent the text messages, he was aware that the Mother had not wanted anything to do with him for some time. He accepted the proposition that a breach of an IVO was a significant matter.
The Father’s evidence that he was ignorant of the fact that he was breaching the IVO beggars belief. I can safely infer from the history of applications for IVOs, the undertakings given by the Father and the making of IVOs that the Father had a good understanding of limitations imposed by an IVO. I find the Father’s explanation that the breach was because he sent text messages to find out about the children’s vaccinations, to be unconvincing. At the time, he was legally in these proceedings, and there is evidence that the parties’ solicitors were communicating about matters relating to the children. There is no documentary evidence that the Father took steps to enquire about vaccinations through his solicitor. In respect of the reason for the Father’s breach of the IVO, I prefer the Mother’s evidence as contained in her affidavits.
The Mother deposed that toward the end of June 2015, the maternal grandmother called her, saying that police attended the maternal grandmother’s house as they had a report from someone that the Father had threatened to kill the Mother and the children.[23] The Mother says that the police then called her, confirming what the maternal grandmother had told her. The Mother deposes that later in the evening, the police called her and said they had spoken to the Father, and there was nothing they could do as he had calmed down. The Mother deposes that sometime later, she found out from the police that it was the paternal grandmother who made the report to police. The Father agreed that it was the paternal grandmother who called the police. However, the Father said that she called the police because she was concerned about his whereabouts.
[23] Ibid at [33].
When cross-examined by Counsel for the ICL, the Father denied that he made the threat. The Father said that the police came to see him that evening, and that the police did not speak to him about a threat, but reminded him to abide by the IVO. I find the Father’s evidence that the police would approach him, without any apparent reason to remind him about the conditions of the IVO, to be implausible. In my opinion, the fact the police located the Father, who was apparently at the swimming pool, and then contacted the Mother suggest that the police had sufficiently serious concerns about safety risks.
The Mother deposes that sometime in the second half of 2015 (upon the expiration of the IVO), that she began to receive up to five calls and messages from the Father every day.[24]
[24] Ibid at [38].
In cross-examination, the Father agreed that after the expiry of the third IVO, he attempted to make contact with the Mother. The Father said this was because he was having no success communicating with the Mother through her solicitor, and wanted to talk to the Mother as he was getting letters from Medicare about [Y]’s vaccinations. He denied he left text messages every day, sometimes twice a day. He agreed that the Mother’s solicitors sent a letter to his then solicitor, asking the Father to stop calling. The Father agreed that after he saw that letter, he may have left a message on the Mother’s phone saying that he loved her and requesting that she ring before it is too late. The Father said he might have done this in relation to any chance of being able to see the children.
It is not an easy decision to deprive a child of a relationship with a parent, but in my view, it is necessary in this case. As Ms E opined, it is a question of balancing the immediate and short-term risks against the long term risks. In circumstances where the Father has revealed a complete lack of insight and persists in blaming the Mother, and even [X], for his behaviour, the need to protect these children from the Father’s emotional abuse must be given significant weight by this Court. I agree with the submissions of Counsel for the ICL, that the Mother and children need the time and space in which they can establish stability and emotional security, free from fear of the consequences of litigation, and in particular, orders that require the children to engage with the Father.
Given that the Mother is the primary caregiver for the children and plays a significant role in providing them with a sense of emotional security (as well as attending to their intellectual needs), I have given weight to Ms E’s opinion that (the Updated Family Report at [47]):
47. …The impact of the continuing intrusion into the stability of her relationship with her daughters impacts negatively on her parenting and it was considered that she very much requires the court to finalise these issues so that she can continue to care well for the children.
The Mother genuinely believes that the Father poses a risk to the children’s physical and emotional safety. Thus, any form of contact between the Father and the children will only exacerbate the Mother’s heightened sense of anxiety about the Father. Ms E referred to the impact of the continuing stress and anxiety on the Mother’s parental capacity, which I accept. This is a relevant consideration, as the Mother is the primary caregiver and has the potential to undermine her relationship with the children. This clearly would not be in the best interests of the children: see Blinko and Blinko [2018] FamCAFC 104 at [45].
The Father also proposes that he communicate by telephone with the children on significant occasions, such as their birthdays, his birthday, Father’s Day, Easter and Christmas. The evidence before the Court is that the telephone communication time that was previously provided for in interim orders were not productive of a meaningful relationship between the children and the Father. In my opinion, nothing has changed to satisfy me that providing for telephone communication, even limited to special occasions, would be in the children’s best interests. Indeed, in my opinion, such communication will likely be destructive of any chance of the Father building a meaningful relationship with the children into the future.
In my opinion, the orders proposed by the ICL and the Mother provide the optimum path for the children to have a meaningful relationship with the Father in the future. The orders will provide for the Father to send cards and gifts to the children, and enable him to let them know that he loves them. The orders provide for the Father to be informed about the children’s lives, in the sense that he will be able to receive reports from the schools of the children attend of their children’s progress. The orders will also provide the Mother with the ability to care for the children without the continuing stress that she has suffered. There is no evidence before the Court that the Mother denigrates the Father in front of the children. Her evidence is that, when asked by the children, she reassures them that the Father loves them. I have found that the Mother does not influence or coach the children against the Father. I am satisfied that, to the extent possible under those orders, the Mother will facilitate the development of a positive relationship with the Father.
Given that since late 2014, the Mother has managed in the difficult circumstances to provide the children with an environment in which they are clearly thriving, I accept that the Mother has the capacity to manage challenges which may well arise when the other parent is not involved in the children’s lives. In cross-examination, the Mother indicated that she would seek counselling to assist in this task. I expect and trust that she will take advantage of appropriate counselling services to assist her. The Father will also have the opportunity to engage in therapeutic processes by himself to enable him to make the necessary change in his attitudes and behaviour. It is up to the Father to take advantage of these opportunities.
Additional considerations pursuant to s.60CC(3) of the Act
[X] and [Y]’s views – sub-s.60CC(3)(a) of the Act
In the Updated Family Report, [X] maintained her position that she did not want to see the Father, and refused to be observed by the family consultant with him. She also expressed her ongoing concerns about [Y] spending time with the Father. [Y] initially told Ms E that she wanted to see the Father, but then refused to separate from the Mother in order to be observed by Ms E with the Father.
Ms E reported the views expressed by the children as follows (the Updated Family Report at [48]-[49]):
48. …[X] was assessed as indicating her own independent views, including her concerns about her younger sister and they should be given considerable weight given her age and maturity.
49. While [Y] said she would see her father, at her young age, her spoken response has less significance than her behaviour which was to cling to her mother and refuse to leave her.
It is relevant to observe that [Y] thought she was going to the Lollipops Playland Centre (which she had mostly attended during the supervision of her time with the Father by FCS). This is consistent with [X]’s view expressed to Ms E that [Y] is only happy to spend time with the Father at the play centre.
In cross-examination, Ms E opined that although [X] commented on having some positive memories of the Father, which was a good thing, overall she was quite apprehensive about having anything to do with him. Ms E confirmed her view that, given [X]’s age and that her wishes were independently formed as a result of her own lived experience of the Father, significant weight should be placed on [X]’s wishes.
Ms E said that she had no evidence to support the Father’s assertion that [X] is parroting the Mother’s view of him, and is influenced by the Mother because she is scared of the Mother. Ms E commented that [X] otherwise appears to be a happy, chirpy girl, who is doing well at school, has been a form captain of the school and is intelligent and bright. She said that in her 30-odd years of interviewing children for the preparation of family reports, she has on occasions formed the view that a child was influenced by a parent. Ms E said there was nothing in [X]’s presentation which would lead her to that view.
I am satisfied that the Court should give significant weight to [X]’s views, including her anxiety about her younger sister, [Y], spending time with the Father.
I am not satisfied weight should be given to [Y]’s views. It seemed to me that her willingness to see the Father might have been influenced by the view that they were going to spend time at a play centre. In my opinion, [Y] is not at an age or maturity where the Court should give weight to her expressed views. In any event, [Y]’s actions in refusing to leave the Mother’s side contradicted her expressed views,
The Father’s proposed orders may well have the effect of requiring [X] to be in the presence of the Father against her wishes, depending on the family therapist’s recommendations. It is more than likely that [X] would see the requirement to attend family therapy as a requirement to engage with the Father against her wishes. For the reasons set out above (at [193]), orders for telephone communication between the Father and the children would be contrary to [X]’s views, and unworkable for [Y]. I find that requiring telephone communication between the Father and the children, even only on special occasions, is not in the best interests of the children.
The nature of [X]’s and [Y]’s relationships with the parents and other persons – sub-s.60CC(3)(b) of the Act
There is no doubt that the Mother has a close, loving, and nurturing relationship with the children. In cross-examination, the Father agreed that during the relationship, the Mother mostly fed, dressed and bathed the children, put them to sleep, assisted them with their homework and educational needs, including extracurricular activities, and engaged them in social activities with members of her family. He also agreed that the children are in a safe situation with the Mother at present. The Father conceded that there was no reason why this would not be continuing.
The evidence is that the Mother spent quite significant periods of time with the children away from the Father because of various family violence incidents. The Father’s relationship with the children would have been affected by this. I accept that the Father did provide the children with happy times, which involved outdoor activities, and both of the children will have memories of this.
The relationship between the children and the Father is now clearly fractured. The Father blames the Mother for this, which I have rejected. I have found that he has engaged in serious family violence, which has impacted the Mother and [X] directly, and has affected [Y] indirectly due to the obvious anxiety and stress of the Mother and [X] about the Father’s behaviour.
I have found that the Father’s proposal for family therapy would not assist to rebuild his relationship with the children, but rather, would likely cause their relationship to deteriorate even further. I have found that significant changes would be required in the Father’s insight into the impact on and acceptance of his role in a long history of family violence before engaging in family therapy would be in the best interests of the children.
The family consultant observed that [X] and [Y] have a very close relationship, and that [X] is very protective of [Y]. I have no doubt that if an order for family therapy between the children and the Father was made, [X] would refuse to attend. It may be that [Y], with a great deal of encouragement, would attend family therapy. However, I am satisfied that if only [Y] attended family therapy, and given their close relationship, this would have a negative impact on both [X] and [Y]. This would not be conducive to continuing their close and loving relationship, and consequently, not the best interests of the children.
Under the ICL and the Mother’s proposed orders, the Father will have no face-to-face contact with the children. I have earlier considered the impact on children in the long term where they have no relationship with one of the parents. There is no doubt that an order that a parent not spend time with a child is a serious matter. However, I am required to balance the necessity to protect the children from emotional abuse (in particular), against the risks to the children from the absence of the Father figure in their lives.
Under the ICL and the Mother’s proposed orders, the relationship between the Mother and children will be enabled to continue. Indeed, given the evidence of the significant impact that the Father’s behaviour has had on the Mother’s emotional well-being, the orders will provide her with the sense of respite and relief that she needs to parent the children to the best of her capacity.
The Father will be enabled to express his love and affection for the children through appropriate correspondence, which will assist in beginning to nurture the relationship between him and the children. The Father, however, needs to be realistic and accept that this will be a long process.
The parents’ participation in the children’s lives – sub-s.60CC(3)(c) of the Act
Consideration of this factor overlaps with that of the nature of the parents’ relationship with the children (considered above).
Since separation, the Father has not taken every opportunity to spend time with [Y]. He failed to take steps to facilitate supervised time with her. I have rejected the Father’s claim that he has been prevented from seeing the children because of the Mother’s influence on [X] and because she has taken out IVOs. I have accepted that [X]’s views about the Father.
The Mother was prepared, notwithstanding her anxiety and stress about the Father and the risk of the children coming into contact with him, to consent to orders that he spend supervised time with the children.
The interim IVO made on 24 November 2014 provided for the Father to spend supervised time with the children, and other times as agreed between the Mother and the Father. [X] refused to attend, but [Y] spent limited time with the Father under the supervision of Ms K. The reasons for the breakdown in that arrangement in March 2015 have not been tested in these proceedings.
However, by reason of consent interim orders made on 28 April 2015, the Father was permitted to spend supervised time with the children, supervised by a professional supervisor each alternate Sunday. On each occasion, [X] refused to attend, while [Y] did attend. I find that the reason the supervision by FCS was terminated was because of the Father’s refusal to accept the protocols and rules established by FCS. Nevertheless, under the interim orders of 24 September 2015, the Father was able to use another professional supervision service or through the Berry Street Contact Centre. The Father took no steps to engage in an alternative professional supervision service, or to engage the services of the contact centre to spend time with [Y].
The evidence before the Court is that the Father’s telephone communication with the children, as permitted by the interim orders made by consent, was not successful. In cross-examination, the Father agreed that on one occasion during a telephone call, [X] screamed that she did not want to talk to him. He also agreed that often [Y] would scream. He denied that he denigrated the Mother to the children during the telephone conversations. His evidence is that the Mother terminated the telephone calls, although he agreed that on one occasion, he heard the Mother encouraging one of the children to speak to him. Curiously, he disagreed that this was evidence of the Mother encouraging the children to have a relationship with him. The Father accused the Mother of calling, and not having the “common courtesy” to say hello to him in front of the children. He said he believed that this behaviour would have caused anxiety in the children, and believed that this made phone contact very difficult. I do not accept this. The purpose of the order was for the Father to communicate with the children, and not for the Father to engage with the Mother.
It is in dispute whether the Father had been given copies of the children’s school reports. Under the ICL and the Mother’s proposal, the Mother will be required to authorise the school to provide those to the Father. This will enable him to participate in the children’s lives, in the sense that he will be informed about their school life and academic progress. He will also be able to participate in their lives through correspondence, gifts and cards. The importance of the Father, through correspondence, letting the children know that he loves them and is interested in what they are doing, should not be underestimated.
The extent to which each of the parents have fulfilled or failed to fulfil their obligations to maintain [X] and [Y] – sub-s.60CC(3)(ca) of the Act
The Mother has fulfilled her obligations to maintain [X] and [Y] and provide for their needs. There is no evidence before the Court as to whether the Father does or does not provide any maintenance.
The likely effect of any changes in [X] and [Y]’s circumstances –
sub-s.60CC(3)(d) of the Act
The parenting orders proposed by the ICL and the Mother would not result in a change in the children’s present circumstances, save that they would receive correspondence from the Father on special occasions (subject to the Mother approving the suitability of the correspondence).
Under the Father’s proposed parenting orders, the children would be required to engage in family therapy, and would know that they may have the sessions conducted by the family therapist with the Father. I am confident that [X] would refuse to attend. Ms E reported [X]’s concerns about her time with the Father. The Mother’s evidence was that while [Y] was having supervised contact with the Father, [X] was very stressed and worried, even though the Mother assured [Y] that she was safe because they would be supervised by a professional. If [Y] did attend sessions with the family therapist, the likely effect on [X] would be for her to experience anxiety and distress.
I have already found that it is not in the best interests of the children to engage in family therapy. The likely effect on the children is the opposite of what the Father hopes will be achieved through family therapy. I have no doubt that he does not want to cause the children anxiety and stress. Unfortunately, he has not shown any awareness of the impact of his behaviour on the children, and therefore likely has not considered how family therapy might impact on the children. His evidence that if he simply tells the children “the facts”, family therapy and his time with them will run smoothly, is sadly naïve and lacks insight.
The practical difficulty and expenses associated with spending time and/or communicating with a parent – sub-s.60CC(3)(e) of the Act
Under the Father’s proposed orders, time with the children would only occur in circumstances where the family therapist formed the view that joint sessions between the Father and one or both of the children would be appropriate. I have considered the practical difficulties of ensuring [X]’s attendance at any sessions. I have no doubt that there will be difficulties also with [Y] attending, in circumstances where [X] does not attend and she is aware of her sister’s anxiety about the Father.
The Father is unemployed, and on the evidence, has been so for some time. It is not clear whether he would be able to sustain the financial costs associated with family therapy.
This factor is not relevant under the proposed parenting orders of the ICL and the Mother.
The capacity of the parents to meet [X]’s and [Y]’s needs –
sub-s.60CC(3)(f) of the Act
The Mother has demonstrated a capacity to meet [X] and [Y]’s emotional and intellectual needs. As earlier stated, the parenting orders proposed by the ICL and the Mother will facilitate her capacity to continue to do so.
Given my findings in relation to family violence, the Father’s lack of insight and lack of acceptance of the impact of his behaviour, I am not satisfied the Father has the capacity to understand, let alone meet, the children’s emotional needs.
The maturity, sex, lifestyle and background of [X] and [Y] and the parents – sub-s.60CC(3)(g) of the Act
I have considered this factor in earlier considerations under s.60CC of the Act.
The attitude of the parents to [X] and [Y] and to the responsibilities of parenthood – sub-s.60CC(3)(i) of the Act
The Mother has demonstrated a committed and mature attitude to the responsibilities of parenthood. This is apparent from the observations reported by the family consultant of each of the children, and also by [X]’s academic progress.
I have formed the view that the Father’s attitude to the responsibilities of parenting centre on his entitlement to see the children, rather than understanding or accepting the responsibilities. The Father has an opportunity to develop a mature and deep understanding of the responsibilities of parenthood through counselling directed to this issue. I accept the Father has undertaken counselling before, but it appears that the counselling was not effective in assisting the Father to appropriately parent.
Family violence involving [X] and/or [Y] or member of their family and any inferences that can be drawn from family violence orders which apply or have applied to [X] and/or [Y] – sub-ss.60CC(3)(j) and (k) of the Act
These considerations have been dealt with in detail (see [174]-[195] above). The history and effect of the Father’s perpetration of family violence on Mother and [X] on occasions, the numerous IVOs and breach of an IVO, the Father’s failure to accept any responsibility and blame others, and lack of insight into the impact of his behaviour have been significant considerations in determining that the risk of emotional harm to the children outweighs the desirability of a meaningful relationship with the Father.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to [X] and [Y] –
sub-s.60CC(3)(l) of the Act
It is in the best interests of the children that the litigation which has occurred over a long period of time be finalised, and final orders made.
The Father needs to address the various issues raised in this decision, and therefore has a great deal of work to do, which will take time.
I am satisfied that the orders made are least likely to lead to the institution of further proceedings. In my opinion, the Father’s proposed orders, insofar as they relate to the engagement in family therapy, are likely to lead to further litigation.
Any other fact or circumstance that the Court thinks is relevant –
sub-s.60CC(3)(m) of the Act
The Court considers the reports made by the contact supervisors at FCS to be relevant in relation to the Father’s proposed orders for family therapy. It is apparent from these reports that contact supervisors experienced difficulty in ensuring that the Father complied with the rules or protocols established at the changeover. These protocols were essentially put in place to avoid contact between the Father and the Mother. There were occasions where the Father was not cooperative, and rather, according to the reports, asserted his right to engage with the Mother, in conflict with the protocol. In cross-examination by Counsel for the ICL, the Mother confirmed the reports that the Father would go against the rules established by FCS by turning up early to sessions, and attempting to leave the centre to engage with the Mother.
The relevance of this, is that in order for family therapy to be effective, (setting aside concerns that family therapy for this family would be destructive), those engaging must cooperate and comply with the rules or guidelines established by the family therapist, as well as the family therapist’s recommendations. Given the Father’s behaviour when engaging with third parties in relation to the children, I am not satisfied that he would accept the authority of the family therapist, or comply with any rules or recommendations.
The Mother and the ICL’s proposed order that the Mother authorise the children’s school/s to provide the Father with copies of the children’s school reports, is silent about the costs (if any) involved in the school providing the school reports. Generally, it is the parent who is a beneficiary of such an order to bear the expense (if any) of the order. I see no reason why the Mother should bear the costs of such an order. The Father is unemployed, however he lives with the paternal grandmother. He proposed an order for family therapy, and gave evidence that he believed he would be able to afford the cost these services provided by community based organisations. In those circumstances, I make orders that the Father bear the expense (if any) of the school providing him with the children’s school reports.
Sections 61DA and 65DAA of the Act
As noted earlier, the presumption of equal shared parental responsibility does not apply in circumstances where the Court has reasonable ground to suspect abuse of the child/ren, or family violence has occurred. Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child/ren for the child/ren’s parents to have equal shared parental responsibility for the child/ren.
Given my findings in relation to family violence, I am satisfied that the presumption of equal shared parental responsibility should not apply. Furthermore, the Father’s evidence was that the Mother was not capable of communicating with him in reaching agreement on long term issues, as required under s.65DAC of the Act where an order for equal shared parental responsibility is made. The Father’s evidence was that during their relationship, the Mother made the decisions about long term issues affecting the children, and conceded that the Mother continues to make decisions that are in the children’s best interests.
There is no dispute that there is, and has been for some time, no communication between the parents. In my opinion, the parents are incapable of consulting and making a genuine effort to come to a joint decision on long term issues affecting the children. I am satisfied that requiring the Mother to communicate and consult with the Father on long term issues will only amplify her anxiety and fear of the Father. Additionally, I am not satisfied that the Father would not use the opportunity to denigrate the Mother, or attempt to impose his will on her.
Accordingly, an order will be made for the Mother to have sole parental responsibility for the children. As orders will not be made for equal shared parental responsibility, it is not necessary for the Court to follow the legal pathway mandated by the Act. Indeed, the Father is not seeking times with the children (either supervised or unsupervised) until he has engaged in family therapy with the children. It appears that the Father proposes the decision regarding his time with the children will follow recommendations (if any) made by the family therapist.
I am satisfied that the Mother should be provided with the responsibility to ensure that the correspondence the Father sends to the children is suitable. I am satisfied that despite her intense fears and anxieties about the Father, she appreciates the need for the children to know that the Father loves them and cares about them. I am confident she will ensure that the correspondence the Father sends to the children is appropriate, and in their best interests.
The Father proposes an order that the Mother provide him with a report every six months on developments in the children’s lives. I am not satisfied that this would be in the best interests of the children because, in my opinion, it would be emotionally burdensome for the Mother and creates a risk that the Father would use the order to attempt to engage with the Mother in the way he has in the past. The Mother’s evidence was that, if the children wished to correspond with the Father having received gives, cards or letters from him, she would encourage and facilitate this. I accept her evidence, and am satisfied she would behave in this way.
Conclusion
For the reasons set out in this judgment, I am satisfied that the orders made are in the best interests of [X] and [Y].
I certify that the preceding two hundred and forty four (244) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 4 July 2018
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