Golena and Golena
[2020] FCCA 860
•22 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOLENA & GOLENA | [2020] FCCA 860 |
| Catchwords: FAMILY LAW – Parenting – Issue in dispute the time children aged 6 & 4 should spend with their father – where the father has been spending professionally supervised time with the children for two years – where the father proposes that the children commence spending unsupervised time with him – where the mother proposes an order for no time and limited communication – where the mother has concerns about the father’s drug use, alcohol use, mental health and perpetration of family violence – where the father has completed a Taking Responsibility course – whether the court can be satisfied that the risk of the children being exposed to family violence or to harm, neglect or inappropriate parenting arising from alcohol use, drug use or unmanaged mental health issues has abated – where the court cannot be so satisfied – where neither party sought a continuation of supervised time – where a no time outcome is regrettable but where no options were put to the court which would enable a relationship to continue and the children to be safe. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 102NA |
| Cases cited: Mazorski & Albright (2008) 37 FamLR 518 Pitman & Bond (No. 2) [2008] FMCAfam 1316 Pitman & Bond [2014] FCCA 2126 Sedgley & Sedgley (1995) FLC 92-623 |
| Applicant: | MS GOLENA |
| Respondent: | MR GOLENA |
| File Number: | NCC 3332 of 2017 |
| Judgment of: | Judge Terry |
| Hearing dates: | 13 & 14 February 2020 |
| Date of Last Submission: | 14 February 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 22 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors appearing for the Applicant: | Adams & Associates |
| Counsel for the Respondent: | Mr Guyder |
| Solicitors appearing for the Respondent: | Joplin Lawyers |
ORDERS
All previous Orders concerning X born in 2013 and Y born in 2016 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with the father.
The children shall have no communication with the father excepting that the mother shall maintain a postal address known to the father and the mother shall facilitate the children receiving from the father such cards, gifts or letters as the father may forward to the nominated postal address on no more than four (4) occasions per year.
The mother shall authorise the schools attended by the children to forward to the father at the father’s request (which can be made to the school by email or by telephone) copies of the children’s school reports and order forms for school photographs.
Pursuant to s.68B of the Family Law Act the father is restrained and an injunction is granted restraining him from approaching any premises at which the children live and any school or preschool attended by either of the children.
IT IS NOTED that publication of this judgment under the pseudonym Golena & Golena is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3332 of 2017
| MS GOLENA |
Applicant
And
| MR GOLENA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings concerning X, 6 and Y, 4.
There is no dispute about where the children should live. The parties separated when X was 2 and Y was as yet unborn. The children have lived with their mother in the case of X since separation and in the case of Y since she was born and there was no dispute that this should continue.
There is also no dispute about parental responsibility. It was originally in dispute but at the commencement of the trial the father agreed that the mother should have sole parental responsibility for the children.
The dispute at trial was about the time the children’s time with the father. He has been spending supervised time with them since March 2018 and it was his case that unsupervised time should commence. The mother sought an order for no time and limited communication.
When the mother commenced proceedings in 2018 she was not averse to the children spending time with the father as long as it was supervised. She said that she wanted them to have a relationship with him but they needed protection from harm because of his alcohol use, drug use, mental health issues and propensity for violence.
At trial the mother sought an order for no time and proposed that the only communication be in the form of the father being able to send the children letters cards and gifts. She said that supervised time could not go on indefinitely and that while she had hoped that the father would change she did not believe that he had. She remained fearful that the children would be exposed to violent, dysregulated behaviour, excessive alcohol consumption, drug use and inadequate parenting if they spent unsupervised time with him.
The father sought an order that the children commence spending unsupervised time with him, beginning with four hours each Saturday and culminating in each alternate weekend from Friday to Sunday, an overnight during the week each week and half of the school holidays.
The father does not accept that he poses a risk of harm to the children. At trial he repeatedly said that he would never use drugs, consume excessive alcohol or behave violently if the children were in his care.
The father asked the court to take on trust that he would not use drugs or consume excessive alcohol if the children were with him but in regard to the family violence he said that the risk had abated because he had completed a Taking Responsibility course, taken ownership of his past violent behaviour and learnt strategies to ensure that he would not behave violently in the future.
The father is Aboriginal and he said that it was particularly important that the children continue to spend time with him because it was the only way they would maintain a connection with their Aboriginal culture and extended Aboriginal family.
The evidence
The mother relied on her Amended Initiating Application filed on 11 October 2019, her affidavit filed on 10 October 2019 and a proof of evidence dated 13 February 2020 which was marked Exhibit E.
The father relied on his Amended Response filed on 7 February 2020 and his affidavit filed on the same day.
A Family Report was prepared by Ms A, a Family Consultant.
All of the witnesses were cross-examined.
The matter was originally listed for trial on 7 & 8 November 2019 but the trial could not proceed because the father turned up unrepresented. He has convictions for family violence offences committed against the mother and pursuant to s. 102NA of the Family Law Act he would not have been permitted to cross-examine her and there was no Independent Children’s Lawyer who might have filled the gap.
The matter was relisted on 13 & 14 February 2020 to allow the father time to apply for legal representation under the scheme set up to assist people who are prevented from cross-examining pursuant to s. 102NA and he was represented at trial by a solicitor and counsel.
An assessment of the witnesses
The mother was a good witness. I will need to keep in mind that because of her experiences with the father she may have a tendency to leap to conclusions confirming her worst fears about him if something obscure is said or she hears rumours about him when other possibilities are open but I found her very genuine and I had no cause to be concerned that she was being less than frank with the court.
There were credit issues with the father. I will not attempt to list them all here but examples were that he gave contradictory information about his drug and alcohol use on different occasions, he minimised what occurred during the incident on 21 January 2017 when he forcibly entered the mother’s home and took X from her and it defies belief that the allegations his family made to the police about an incident on 27 December 2018 were a tissue of lies.
The father revealed during cross-examination that he had been diagnosed with bipolar disorder in late 2018. He did not mention this to the family report writer in February 2019 nor did he mention it in the affidavit he filed only a week before the trial. When pressed about it he said that he had some information about it at home which he could provide but when this was called for nothing was produced.
My concern about the father’s credit has ramifications not only for the findings I can make about issues in dispute but for the weight I can place on his assertions that he would not use drugs or alcohol or behave in a violent and dysregulated way if the children were in his care.
Background
The mother is 34 and the father 35. They met when they were in high school and the father commenced living in the maternal grandparents home when he was 15.
The father is Aboriginal and has connections with the B tribe from the Town C area and the D tribe from the Town E area. As a child he variously lived in Town F, Town G and Town C and he spent part of his childhood living with his grandparents.
The father had a traumatic upbringing and was diagnosed with PTSD when he was 16. The family report writer was sensitive to this issue and said as follows:
The father reported a history of anxiety, depression and PTSD on the background of extensive developmental and interfamilial trauma. This must also be understood in the much broader, intergenerational context of the dispossession of Aboriginal people and the severing of their spiritual and cultural links to their land, and the devastating impact on the cohesiveness and strength of Aboriginal families. [1]
[1] Family Report paragraph 94
The mother and father married in 2010. They established a household of their own and subsequently bought a home and they have two children, X (X) born in 2013 and Y born in 2016.
The mother alleged that during the relationship the father was controlling and angry and was emotionally, verbally and physically abusive to her. She alleged that he drank heavily and that she was always on edge when he was drinking and she also alleged that he used drugs. I will examine these allegations in more detail later but the father’s admissions and information in subpoena material leave no room for doubt that the father’s alcohol consumption, drug use and violence were issues during the relationship.
The parties separated on 29 November 2015. The mother said and I accept that this occurred after the father returned home drunk and she believed under the influence of drugs and began ranting and raving. She feared for her safety and left the former matrimonial home with X and commenced living with her parents.
The father remained in the former matrimonial home and by agreement between the parties began spending time with X including some overnight time from 6.00pm to 6.00am.
Y was born in 2016. The father was introduced to her after her birth but spent only brief periods of time with her at the maternal grandparents’ home.
The family report writer gained the impression that the father spent time with X overnight once a week for much of 2016 and the father’s trial affidavit also sought to create that impression. The mother said that the time was not regular and that sometimes weeks would go by when the father did not see X and the information the father provided to H Contact Service during an intake interview in March 2018 is more consistent with the mother’s version of events.[2]
[2] Exhibit I
The father said that in the second half of 2018 the mother began restricting his time with X and there is no doubt that this occurred. The father suggested that it was because he had re-partnered. However the mother claimed that it was because the father began threatening to take X and not return her and COPS records confirm that she did have concerns about the father’s behaviour at that time.
In September 2016 the mother went to the police to report a concern about text messages the father was sending her although she said that she did not want any action taken.
In December 2016 she again went to the police who viewed text messages the mother was concerned about. In the entry they made about this attendance they observed that the mother’s messages to the father were abusive but the father’s messages to the mother were much worse. However they did not take any action at that time.
On 11 January 2017 the mother again went to police and complained that the father was making threats to harm her and take X. I will refer to those threats in detail later in the judgement but on this occasion the Police decided to apply for a non-urgent ADVO and it was listed to come before the court in February 2017.
On 21 January 2017 the father turned up at the maternal grandparent’s home in an agitated state demanding to see X. The mother told him she did not agree to him taking her until some orders or some legal agreement was in place and the maternal grandparents told him that he was not to come into the house.
The father became very angry and pulled the screen door off its hinges, entered the house and chased the mother, who was holding X and Y, into a bedroom. The mother said that he was yelling and screaming and pulled X from her arms and ran off with her. She said that he put X into his car and drove off with her unrestrained and that X was crying and screaming for her.
The mother called the police and X was recovered. The father was charged with a number of offences and an Apprehended Domestic Violence Order (ADVO) made for the protection of the mother, the children and the maternal grandparents.
The father gave a more benign version of this incident in his trial affidavit. He did not mention X being upset and said that when he entered the bedroom she was on the ground not in the mother’s arms and that she ran happily to him
During cross-examination the father agreed that the mother and maternal grandparents told him he could not come into the house but he forced his way in anyway. He said that he lost control. When he was asked if X was screaming and crying for her mother after he took her away he said ‘Yes’. He agreed that he did not have a car seat in his car and said that he put her into the front seat and used a seat belt.
I accept the mother’s evidence about what occurred on 21 January 2017. It is consistent with the answers the father gave in cross-examination and the information the mother gave to police at the time and it is also consistent with the way she appeared to police when they attended. They observed her to be distraught.
In May 2017 the father was convicted of stalk intimidate and destroy or damage property and placed on bonds for three years and 12 months respectively. At the time of his arrest he had been found in possession of a small quantity of amphetamines and he was also convicted without penalty of possessing a prohibited drug.
The father spent no time with the children after the incident on 21 January but it would appear, although the details are unclear, that the mother did facilitate some telephone communication.
On 3 September 2017 the father rang to speak to the children on Father’s Day. The mother alleged he threatened her. She made a complaint to police and the father was arrested and charged with stalk intimidate and breaching the ADVO. He was convicted of those offences and placed on a bond and it would appear from his criminal record that he was also called up on the earlier offences and given community service orders of 150 hours and 50 hours respectively.
On 30 October 2017 the mother filed an application in this court seeking parenting and property orders. The property matter has since been finalised.
On 31 January 2018 an order was made by consent for the children to spend supervised time with the father and in March 2018 the father commenced spending time with the children once a week supervised by H Contact Services. H Contact Services is a private supervision service where the supervisor accompanies the children and the parent to a variety of venues including shopping centres, the movies, parks and play venues.
The father did not accept that supervision was necessary and in due course a family report was prepared but the matter did not settle and was listed for trial.
The father was still spending supervised time with the children when the trial commenced in February 2020. He missed four visits in August/September 2019 and two visits in January 2020 but he has otherwise attended regularly since time commenced in March 2018.
There has never been an order for telephone or video communication but until September 2019 the children were having telephone or video calls with the father. In her affidavit filed in October 2019 the mother said that she had recently blocked him due to constant harassment.
The allegations about the father
The mother’s case was that the children would be at risk of harm if they spent unsupervised time with the father because he had no capacity to deal with frustrations or challenges without resorting to violence. She said that this was compounded if he had been drinking and using drugs and that he then lost all inhibitions, made threats, got involved in fights and professed not to remember the next day what he had done.
She was also concerned about his mental health because he had been diagnosed with mental health issues when he was 16 and was briefly admitted to a mental health unit in late 2018.
I intend to make findings about the allegations concerning the father’s drug use, alcohol use, violence and mental health before considering the matters in s. 60CC (2) & (3) of the Family Law Act.
The family violence allegations
The mother alleged that during the relationship the father was controlling and angry and was emotionally, verbally and physically abusive to her.
In her trial affidavit she described an incident which occurred in 2010 when she went to collect the father from a Christmas party. She said that when she arrived he was lying on the side of the road extremely intoxicated and with his shirt ripped.
She said that he got into the car and as she drove away he screamed abuse at her, insisted she drive through red lights and made threats to kill. She said that she was extremely frightened.
She said that she dropped the father off at his car and quickly drove off and returned to her parent’s place where the parties were living. She said that the father turned up at the house and smashed the back window to gain access to the house to look for his car keys. She said that she gave him her keys so that he would leave her alone and he got into her car, lost control of it and drove it into a retaining wall. Her car was written off.
The father decamped the scene after the accident and was not breath tested but the police attended and their notes confirm aspects of the mother’s evidence and I accept her evidence about this incident.
The mother said that on 29 November 2015 the father went out for drinks with a friend and returned home extremely intoxicated and she believed under the influence of drugs and began carrying on loudly. She said that she was scared for her and X’s safety and that when he eventually left she took X and went to her parents place.
The mother referred to other incidents of family violence when speaking to the report writer who said as follows:
The mother identified a particular concern in this matter for the father’s threating behaviour. She alleged the father has said to her that he would kill her before certain things would happen, for example, “I’ll burn this house down with you inside it” before he sells it. The mother alleged the father has pushed her on one occasion, and punched holes in walls and thrown objects, such as glassware. She alleged he has smashed the window screen of their car on at least three occasions.[3]
[3] Family Report paragraph 77
The family report writer raised the allegations with the father and said as follows:
The father generally conceded the mother’s allegations of family violence. He did not attribute any significance of his actions to the current proceedings or parenting capacity. The father denied that he was ever physically violent or aggressive towards the mother or anyone else. He conceded to punching walls on occasion, as well as the property damage to the maternal grandparents’ home. When asked about threatening to kill the mother, he considered this, saying, “I think there were threats, I’m not sure what was said.” The father maintains that he has never physically assaulted the mother, thereby refuting her allegations that his time with the children requires supervision. He said he understands from his adverse childhood the need for children to be protected from violence, and he would never expose the children to violence.[4]
[4] Family Report paragraph 83
The father was not quite so forthcoming with his admissions at trial and while there is nothing in the family report to suggest that the father considered that family violence was a two way street during the relationship that was the tack he took in his trial affidavit. In summary he said as follows:
i)During the relationship we would argue as most couples do. On occasions these arguments would escalate to us both yelling and swearing at each other.
ii)There was never any physical violence in our relationship and neither of us ever physically harmed the other.
iii)The mother and I did perpetrate verbal abuse against one another during arguments.
iv)On a couple of occasions during arguments I did punch a windscreen in the heat of the moment.
The mother said that the violence continued after the relationship ended. In September and December 2016 she went to the police and her complaints in December 2016 were about text messages she had received from the father. Police viewed the exchanges and felt that the messages from both parties were “abusive and antagonistic” but noted that the father’s messages contained threats such as “Ur clothes r at the front n I will kill u b4 u get half this house Ms Golena so go be with your new bf ok” “I’m a complete psycho ok” and “U play games Ms Golena I’ll fucking end u ok”
On 11 January 2017 the father sent further text messages which included “say yr goodbyes to X Ms Golena”. Police spoke to the father the following day and advised him to stay away from the maternal grandparents’ home and made a decision to apply for a non-urgent ADVO.
I accept the mother’s evidence about family violence as outlined to date. She was a witness of credit and she made reports to police before court proceedings were even thought of and had no motive to be untruthful. The threats recorded in the police material ring true when the threats the father made to his subsequent partner Ms J are considered and the father made some non-specific admissions to the family report writer and some specific admissions at trial about his perpetration of family violence.
I do not accept that was mutual verbal abuse.
On 21 January 2017 the father went to the maternal grandparents’ home and after being refused entry forcibly entered the home by pulling the screen door off its hinges, followed the mother into the bedroom, pulled X from her arms and drove off with X. I have already noted that I accept the mother’s evidence about what occurred on this occasion.
Following the 21 January 2017 incident the father was convicted of destroy and damage property and stalk intimidate but he did not concede in conversation with the family report writer that the incident exposed X to violence. The report writer said as follows:
The father disputed the suggestion that his behaviour at the maternal grandparents’ home in January 2017 exposed X to violence. He was asked to reflect on that event, and said that he was “remorseful because it has caused drama for me.” The father was asked to consider the drama it may have caused for X, to which he responded that it has not “to the degree the mother stated.” He said it obviously would have been “scary” for X, however she has no problems interacting with him now. The father maintains he was acting at time on advice that he was entitled to take X, however he would not act in a similar manner again. The father appeared to lack understanding of the dynamics and impacts of family violence and the impacts on children. He presented as dismissive of any effects of his behaviour on the children based on his understanding that he has not directly physically assaulted them.[5]
[5] Family Report paragraph 83
In his trial affidavit the father minimised what had occurred on 21 January 2017. He said that he “took” the screen door from its hinges to gain entry, that when he entered the bedroom he asked the mother to put the children down and let them come to him but she refused and that when she let go of X the child ran to him and was excited to see him. He said that after he took X from the house he took her to a movie and then took her shopping before returning to his home. He said that the police arrived and forcibly took X from his arms.
In his affidavit the father said that he was charged with damage property and pleaded guilty and received a good behaviour bond. He did not mention that he was also charged with stalk intimidate, he expressed no remorse for his behaviour and he made no comment about its likely impact on the mother and X.
In September 2017 the father was charged with stalk intimidate and breaching the ADVO after the mother made a complaint to police. In his trial affidavit he mentioned only the charge of breaching the ADVO and said that it arose out of his attempt to speak to X on Father’s Day.
The father was however also charged with stalk intimidate and the mother told a very different story about what happened. She said that the father rang to speak to X but the conversation degenerated after he began asking her questions and yelling at her to stop lying. She said that the father told her that he was coming around to her house to break the front door down and was not frightened of the consequences and police could not stop him. She said that she was concerned that the father might be on drugs given her past experience of him.
At or about the same time the father sent the mother a text message saying that he was going to put all her belongings out on the grass and he didn’t care what happened to them. Police who viewed the message did not deem this family violence but it undoubtedly is.
During cross-examination the father admitted that there was more to the Father’s Day incident than him just ringing up to speak to X and said that he and the mother had an argument. I accept the mother’s evidence about what occurred. She was a reliable witness and her evidence is consistent with the charges which were laid against the father.
In the report she prepared after interviews with the parties in February 2019 the family report writer said as follows:
The description provided by the mother of the family violence is consistent with coercive-controlling violence. Specifically she reports an ongoing pattern of the father’s use of threat, force and use of physical aggression (including damage to property) to induce fear and force compliance. X has directly witnessed at least one occasion of the father’s violence, which the mother has taken subsequent steps to protect her from. The father appears to minimise or dismiss the both the incidents of his violence and the impact on others of his acts, calling into question both his motivation to change his behaviour and his capacity to act protectively towards the children. [6]
[6] Family Report paragraph 86
I accept the family report writer’s assessment of the nature of the violence and accept that it did indeed induce fear in the mother.
The father has been very slow to accept that if he accepts it at all. When he was asked during his intake interview with H Contact Services in March 2018 about staggered arrivals he said this:
Happy to be there at the same time. She has been known to play the victim, when it suits her she will put a show on. At times she is fine to see me in public, and me to drop money off, but she plays it up. I am happy to do what she wants.[7]
[7] Exhibit I
The father’s counsel submitted that the father now showed remorse for his past violent behaviour and some insight into its effect on the mother but the only remorse he expressed in his trial affidavit is found in the following paragraphs and it is heavily qualified:
We would both yell, swear and call each other names. On reflection I understand that this behaviour may (my emphasis) have upset and hurt Ms Golena and that the yelling, if X heard it, could have caused her distress.
On a couple of occasions during arguments during our relationship I did punch a windscreen in the heat of the moment. I deeply regret these incidents. I never did it intentionally to harm her, the situation just got out of hand and I let my emotions get the better of me. I understand now that this behaviour may have caused Ms Golena to be fearful.[8]
[8] Father’s affidavit paragraphs 12 and 13
The father expressed no remorse for his behaviour on 21 January 2017, made no comment about its likely impact on the mother and X and was critical of the mother for claiming that X continued to be affected by the incident.
The father was at pains in his trial affidavit to emphasise that the mother had continued to text him after the incident in January 2017 and that she subsequently came to the former matrimonial home on two occasions when he was there, once entering the house, and his counsel cross-examined the mother with a view to establishing that she had initiated meetings with the father after the 21 January 2017 incident and in particular to arrange for him to sign a passport for the children.
I am satisfied that the mother is genuinely frightened of the father. Her persistent complaints to police and persistent requests that they put another ADVO in place for her protection are consistent with this. The fact that she went around to the former matrimonial home on a couple of occasions in 2017 and met the father to arrange for him to sign a passport application does not mean that she is not frightened of what the father might do if he is displeased.
The mother believes that the father continues to stalk and harass her. She said that there were occasions when he rang her number 25 times or rang her very late or in the early hours of the morning. She alleged that he had created a fake Facebook account to stalk and harass her. She alleged that he left a threatening message on her answering machine in September 2019. The father did not hang up after attempting to call the mother and was recorded as saying “You will learn, you will learn.”
The mother reported the last incident to the police and they applied for a further ADVO. The father did not concede that he intended to threaten the mother and said that he had no recollection of what he had said but consented to the ADVO without admissions.
The words which were recorded on the mother’s answering service in September 2019 could have had a non-threatening meaning; the father might for example have been talking to himself. The mother may be mistaken about the fake Facebook account. The difficulty in the matter is that given the father’s past behaviour it is highly likely that the mother will continue to assume that words are threatening or that the father is behind suspicious social media activity even when other alternatives are open and this could all to readily give rise to further reports to the police or further court proceedings and in one respect the father admitted some ongoing harassing behaviour. He admitted to constantly calling the mother if she did not answer.
After his relationship with the mother ended the father came to the attention of the police on a three occasions as a result of allegations by two new partners and by his family.
In 2016 the father formed a relationship with Ms K. In November 2016 Ms K called the police alleging that the father had come to her home unannounced and uninvited, gained access through the back door and smashed up her belongings. Police records state that Ms K did not want an ADVO but wanted police to speak to the father. She said she was moving to a different town in a few weeks.
At trial the father said that he knew nothing about Ms K making a complaint to the police. He denied that he had behaved in the way described and said that he was on good terms with Ms K and spoke to her on the telephone.
I cannot be sure that the police did speak to the father and it may be true that he knows nothing about a complaint to police. I also cannot be sure about what if anything happened in November 2016. Ms K did not give evidence, the account in the police records cannot be tested in any way and the father denied the allegations.
I could not find on the balance of probabilities that the father did behave as suggested in that COPS record but that does not mean that I can completely ignore it. In light of the mother’s evidence about what occurred before and after her relationship with the father, the threats the father was making to the mother at around the same time as the incident with Ms K which cause concern about his state of mind at that time and the evidence about the father’s behaviour to Ms J and his family I am left with considerable unease about whether there may not be truth in that particular COPS entry.
After his relationship with Ms K ended the father formed a relationship with Ms J. During cross-examination he said that they were together for about two years and shared a home.
On 5 November 2018 Ms J contacted police alleging that the father had threatened to kill her. He was charged with stalk intimidate using a carriage service and an ADVO was made for Ms J’s protection.
The father acknowledged to the family report writer that he was charged over messages sent to Ms J and in conversation with the family report writer he conceded that he:
…threatened to kill her, chop her up into pieces and make the partner’s mother watch.[9]
[9] Family Report paragraph 84
This admission appeared to be based on some evidence he had been shown. He said that he did not remember making the actual threat as he was intoxicated at the time.
When he was asked in cross-examination if the report writer had accurately reported this he agreed that he had said “something along those lines.”
While conceding in cross-examination that this was the nature of the threat he did not seem to attribute any significance to the incident. He did not challenge the evidence of the family consultant that he had told her that he did not remember the threat because he was intoxicated at the time but professed in cross-examination to remember that the threat was made in response to Ms J sending him a text message saying she was taking a hit out on him.
The father told the family report writer that he intended to plead guilty to the charge in respect of Ms J but the charge was later withdrawn. That does not alter the fact that the father made the threat and that Ms J was concerned enough to call the police.
On 27 December 2018 there was an incident at the father’s home. It was alleged that he had been drinking heavily and using cocaine. It was alleged that he had argument with his twin sister and grabbed his sister’s arm hard enough to hurt causing bruising; that his sister ran to the car and that the father picked up a length of PVC piping and swung it at her; and that after his sister got into the car the father punched the windscreen and spat on his sister.
The father’s sister and his mother went to the police and reported the incident. The father was charged with three counts of assault domestic violence and police applied for an ADVO for the protection of the father’s sister.
The father barely mentioned this incident in his trial affidavit save to note that the charges were withdrawn and that he was now on good terms with his family. At trial he denied that he had grabbed his sister arm and spat on her or damaged a windscreen.
I am satisfied on the balance of probabilities that the father behaved as described by the police. His behaviour in punching the windscreen is consistent with incidents which occurred during his relationship with the mother and he admitted that he was intoxicated and professed to have little recollection of the incident save for the fact that everything his family said was a fabrication. Finally he professed to be on good terms with his family again but did not explain why none of them were called to give evidence and I am entitled to find that he did not call them because their evidence would not have assisted his case.
The father’s drug use
The father had amphetamines in his possession when he was arrested in January 2017 and he agreed that he had historically used MDMA and cocaine. He said in his affidavit that it was infrequent and on a recreational social basis and was at pains during cross-examination to stress that he had used these drugs recreationally but this is hardly reassuring. The mother said that she believed that on some occasions when the father was out of control during the relationship he was under the influence of drugs and several of the reports to the police about the father’s behaviour after separation include an allegation that he had been using cocaine or may have been under the influence of drugs.[10]
[10] Ms K in 2016; the mother in respect of the 2017 Father’s Day telephone call; the father’s family
The father told the family report writer in February 2019 that he had last used illicit drugs of any kind approximately three years ago.[11] The report writer said that he denied that the drugs found on him in January 2017 were for his own use and said that they belonged to friends he was accompanying to a Bucks party.
[11] Family Report paragraph 88
During cross-examination the father was very clear that the drugs in his possession in January 2017 were for his own use. He was pressed about this and said that he was not suggesting otherwise.
In his trial affidavit the father said that he had not used any illicit substances for nine months. His affidavit was affirmed on 7 February 2020 and he was therefore asserting that he had not used illicit drugs since May 2019.
The father said that he was remaining abstinent from illicit drugs and did not plan to use them in the future. He said that in the past when he was using illicit drugs it was never when the children were in his care or he was spending time with them.
The mother is deeply suspicious that the father continues to use drugs. She has no proof of that, it is mere supposition, but it is difficult to ask her to put her concerns aside when the father has given contradictory information about his drug use on different occasions, when drug use has been mentioned in police reports in connection with incidents which have been reported to police and when the father has done no drug and alcohol counselling.
I cannot make a definitive finding about the extent to which the father has used drugs but he has not done any recent drug tests and I only have his word that he has not used drugs for nine months and he was not a witness of credit.
I also cannot make a definitive finding about the extent to which drug use causes the father to lose control but it is concerning that allegations of drug use co-exist so often with allegations by others about the father’s behaviour.
The father’s alcohol consumption
The father has a long history of consuming excessive alcohol. The mother said that it commenced when he gained some fame as a sportsman and that his violence during the relationship often occurred when he was drunk.
The father was convicted of mid-range PCA in 2008 and COPS records in the tender bundle suggest that in 2008 and 2009 police became involved because of incidents involving the father and other people outside hotels.
The mother said and I accept that the father was heavily intoxicated during the incident in 2010 where her car was written off and was intoxicated on 29 November 2015 when he was ranting and raving causing her to be fearful and leave the home and go to her parents’ home.
In a COPS entry dated 5 June 2016 police state that the father was intoxicated when the police investigated a fight which was occurring.
An entry dated 9 October 2016 refers to the police intervening when the father was involved in a scuffle with a patron outside a hotel. The father refused to move on and he was issued with an infringement notice for Offensive Behaviour.
The father told the family report writer that he could not remember the threats he made to his former partner Ms J in November 2018 because he was drunk and he was described by the police as intoxicated when he was arrested on 27 December 2018 after his family made a report to police. The father admitted during cross-examination that he had been drinking on that occasion and eventually said that he had drunk about 10 vodka cruisers.
A COPS record dated 21 April 2019 refers to the police becoming involved as a result of an incident outside a hotel at about 2.00am. Police records state that the father had been asked to leave the hotel because he was intoxicated and that a fight broke out with a security guard. The record states that the hotel and the guard did not want the father or the other person involved charged and that they intended to bar them from entry to the hotel.
In his trial affidavit the father said that when he was younger, before he had children, he would consume alcohol to excess on special occasions and that he would drink to excess once every three months. He did not refer to any of incidents which appear in the COPS records or to the mother’s allegations about him being intoxicated during incidents in the home. He said that during times he had drunk alcohol to excess the children were not in his care and that he would never use drugs or [drink] alcohol to excess around the children.
The father did not refer to the April 2019 incident in his affidavit but during cross-examination he agreed that he was involved in an altercation outside a hotel in April 2019 which led to police being called. He said that he was “physical towards the guards” but denied that he was asked to leave the hotel due to intoxication and said that he had become involved with the security guard when he came to the aid of a friend.
The father was not a witness of credit and I am satisfied on the balance of probabilities that his intoxication was a factor in that incident.
The father did a CDT and LFT test in early 2018 which did not suggest that he was regularly consuming alcohol at an excessive level or had issues with his liver which suggested heavy drinking. However these tests are only ever part of the picture when the court is trying to assess whether a person has a problem with alcohol consumption. There is abundant evidence that the father has on numerous occasions in the past drunk heavily to the point where he cannot recollect what he had done or has been involved in incidents with the police.
The father found himself in this position when he was celebrating with his family on 27 December 2018 and I can have absolutely no confidence that all risk of the father consuming excessive alcohol and becoming violent has passed.
The father’s mental health
The father agreed that he had been diagnosed with anxiety, depression and PTSD when he was 16 as a result of his upbringing. He said that he was prescribed medication and had taken his medication as prescribed and attended counselling when it was suggested.
At the family report interviews the father agreed that he had experienced suicide ideation in the past. On 7 November 2018 he sent the mother a text message saying that his daughters would be better off without him and that he had a gun and was ready to go. Police were called and he was taken to L Mental Health unit and spent three days there.
The father told the family report writer in February 2019 that he was not taking any medication because he had made a decision not to rely on it.
The mother alleged that in May 2019 the father rang her and was paranoid and screaming and accused her of sending people to his house and told her that Ninjas were coming through the roof and that she had sent people with laser beams. She telephoned the police because she was concerned about his welfare. The father also telephoned the police. Police later did a welfare check and did not observe any issues with the father.
The father’s counsel put it to the mother that she had misinterpreted what the father had said and that he had not spoken about ninja’s coming through the roof. A text message the father sent at this time was tendered and it does not entirely support the mother’s claim about what the father said. However I do not consider that the mother set out to mislead. The father had spent a few days at the L Mental Health unit less than six months earlier and the fact that the mother rang the police and asked them to check on the father suggests that she had a genuine belief that he was having issues.
The most concerning thing which emerged at trial about the father’s mental health was that he said that in late 2018 he had been diagnosed with bi-polar. He did not mention this to the family report writer although he did mention that he had been prescribed medication which can be used to treat that condition. However during cross-examination he said that he was no longer seeing his doctor or taking any medication because he was better.
I cannot make a concluded finding about the state of the father’s mental health and the extent to which I should be concerned about it but he provided no evidence which was likely to set the mother’s mind at rest about it and he sought to deal with it in his orders sought by proposing the following order:
That the father continue to engage with his general practitioner and any mental health professional he is referred to, for treatment of his mental health, for as long as is recommended by those professionals, and follow all reasonable direction and advice of those professionals and comply with all recommended treatments.
That is hardly likely to give the mother comfort when the father said in his affidavit that he was not currently taking any medication or seeing any mental health professional.
The children’s best interests
Any orders I make about the children must be determined by treating their best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s. 60CC (2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S. 60CC (3) contains the additional considerations and as I often do I intend to start by making findings about the additional considerations and then return to the primary considerations.
The first of the additional considerations is any views expressed by the children and the weight to be given to those views.
X was just over 5 at the time of the family report interviews. She was not very forthcoming with the report writer who said as follows:
When given options, X thought that she might like to see the father with Ms M (the H Contact Services supervisor) rather than at his house, and she thought this would be better because “he’ll get into trouble”. X said that she did not know why the father might get into trouble, before abruptly ending the conversation stating it was Y’s turn to talk now.[12]
[12] Family Report paragraph 103
Y was not quite 3 and did not participate in an interview.
The children are now 6 and 4. Neither parent suggested at trial that they had a view about future parenting arrangements.
I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent or other relatives of the children.
The mother is the children’s primary attachment figure. They have a close relationship with her and with their maternal grandparents. This was evident at the family report interviews and was not in dispute at trial.
The children have spent supervised time with the father since March 2018. They relate well to him at the visits and the mother said that when the father cancelled a series of visits in August-September 2019 X became distressed.
The children interacted reasonably well with the father at the report interviews but the report writer said as follows:
The father’s interactions with the children were warm and interactive. His manner and behaviour was calm and moderated, however his attention was inconsistently divided between the children and he did not appear to manage well Y’s attempt at inclusive play with X. Rather, the father appeared to reinforce X’s instructive behaviour, lending weight to the mother’s concern of the favouritism displayed towards her. [13]
[13] Family Report paragraph 117
The father has family in Town C and in the Town F area. He does not appear to have extensive contact with them although he does see them from time to time. His Nan lives in Town F and he said that the children had had some FaceTime communication with her. The father also has family in the Region N area but there was no evidence that they had a relationship with the children.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children.
The father is not currently paying child support. That is because the mother has not applied for an assessment but he has not volunteered any contribution to their care and his attitude to the payment of child support is concerning. He claimed in his trial affidavit that prior to the mother commencing proceedings he used to pay her $500.00 per month by agreement. He went on to say as follows:
I noticed however that the children never seemed to have new clothes or shoes and would always wear shoes and clothes that were too small and didn’t fit, and were really old. I asked Ms Golena about this and she denied not using the money for the children. However mutual friends were telling me that she was spending it on Botox. I started purchasing things for Ms Golena that she needed for the children instead.[14]
[14] Father’s affidavit paragraph 75
This illustration of the father’s lack of respect for the mother appeared in an affidavit he filed in February 2020, many months after completing the Taking Responsibility course.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
The mother has cared reliably for the children since separation and has made appropriate decisions about them.
The father has been consistently interested in spending time with X since the parties separated and with Y since she was born. He may not have consistently behaved in a way which made that achievable but that is another issue. He has attended most supervised visits and has remained engaged in the court proceedings. I accept that the father genuinely wishes to have a relationship with the children.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom he or she has been living.
Both parties proposed a change for the children.
The mother proposed that the children cease spending any time with the father and that their only communication with him be in the form of receiving cards, letters and gifts from him on four occasions each year.
The mother felt that given the limited amount of time the children had spent with the father since separation this would not have a significant impact on them.
I agree that in the immediate future the children would probably take that in their stride. The mother said that X was distressed when the father cancelled some visits last year but she does not see him frequently and she is strongly attached to her mother. If not seeing the father became her “new normal” it is likely that she would adjust to that and that is even more likely to be the case for Y who has spent so little time with her father.
In the longer term the outcome could be detrimental for the children. They would grow up not knowing their biological father and not having an opportunity to connect with their Aboriginality through him. The extent to which that would negatively impact on them is impossible to know but they may regret the loss of those opportunities as they got older especially if because of their ages they retained no memory of the father as a dangerous person.
The father proposed that the children immediately commence spending unsupervised time with him, beginning with a few hours and leading eventually to alternate weekends, a night during the school week and half of the school holidays.
If the children were not exposed to risk of harm in the father’s care and he was able to provide appropriately for their day to day needs this would be a beneficial outcome for the children. They would have two valuable parents in their lives and they would have the opportunity to connect with a large extended family on the father’s side.
However if the children were exposed to risk of harm or inadequate parenting it would be a detrimental outcome and I cannot make a finding about the likely impact on the children of the change the father proposes until I make further findings about the s. 60CC (2) and (3) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is no practical difficulty created by distance.
A practical difficulty could arise if supervised time continued. H Contact Services charge something in the vicinity of $110.00 for a two hour session. The father said that the reason he missed time with the children in or around September 2019 was because he couldn’t pay and the mother is not in a position to contribute. Other practical difficulties could also arise with an order for long term supervised time but neither of the parties asked the court to make an order that supervised time continue.
I must consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs.
The father lives in rented accommodation and is employed as a tradesman. He said that his hours were flexible and that he would have no problem being available to care for the children pursuant to the orders he proposed. He said that they would have their own room and he could arrange his employment so he was always available to care for them. The tenor of his case was that he would have no difficulty looking after the children if he spent unsupervised time with them.
The mother did not accept that this. She said that he had never had Y in his care unsupervised and had never spent more than two consecutive hours with her. She said that when the father had X overnight in 2016 he sometimes returned her to the mother saying that he could not handle her.
The mother said that the supervisor asked her to pick up the children early from a visit in January 2020 because the father was not coping and that on the next visit the supervisor told her that the father had been ready to leave half an hour earlier. She was a witness of credit and I accept her evidence about these matters.
The mother was also concerned that the father favoured X over Y to the point of giving X a gift and not Y. She was particularly concerned that his capacity to look after the children could be compromised by him being impatient and losing his temper if the girls did not do what he wanted or were fractious.
If the only problem in the matter was that the father did not have much parenting experience that could be dealt with by making orders similar to those proposed by the father which provide for time to initially be only for a few hours and increase gradually. This would give the father the opportunity to gain confidence as a parent and get to know the children and develop strategies to deal with them and would give the mother time to gain trust in the father. The problem of the father favouring X over Y might well be overcome if the father routinely had both children in his sole care.
However these are not the only problems. The father’s drug and alcohol use and mental health issues could all impact on his capacity to provide safe and appropriate care for the children as could his perpetration of family violence. I place weight on the following evidence of the family report writer:
If the Court finds that the father lacks insight into his behaviours, then concerns exist in relation to his parenting capacity. His own lack of understanding into his behaviour, including an unwillingness to address areas of identified concern, will raise concern as to whether he is able to provide stability and consistency to the children, and model appropriate behaviour to them. The father’s ability to understand and effectively meet the needs of the children is assessed as potentially limited in this regard.[15]
[15] Family Report paragraph 127
It was the father’s case that the court should not be concerned about his parenting capacity insofar as it might be impacted on by drug or alcohol use or perpetration of family violence because he would not use drugs or alcohol while the children were with him and as a result of doing the Taking Responsibility course he had gained insight into the nature of family violence and the impact of it and had learnt strategies to manage his own reactions so he was not violent.
The father’s assertions in this regard are also relevant to the issue of whether the children might be at unacceptable risk of physical or psychological harm from being exposed to or subjected to abuse neglect or family violence if they spend unsupervised time with the father and rather than considering this issue here I will consider it later when making findings about the s 60CC(2) matters.
The family report writer was concerned that the father’s mental health might have a negative impact on his parenting capacity. She said as follows:
This report has also identified risks for the children with regard to the father’s mental health. The father reportedly historically sought psychological and pharmaceutical treatment for PTSD, depression and anxiety. However, despite his reports of recent decline in mental health requiring a four-day inpatient admission, the father has decided to be non-compliant with medication and therapeutic intervention. If the father was to spend increased, unsupervised periods of time with the children then consideration would need to be given to any additional stress this may place the father under, and the potential for increase in the acuity of PTSD symptoms. [16]
[16] Family Report paragraph 127
At trial the father did not provide any evidence about the current state of his mental health and his revelation at trial that he had been diagnosed with bipolar in late 2018 gives rise to unease.
As a result of the limited information the father provided about this issue I cannot make a finding about exactly what impact the father’s mental health issues might have on his parenting but this gap in his case causes me considerable unease and even if there were no other issues would make me reluctant to consider unsupervised time.
The mother is taking excellent care of the children on a day to day basis. She has remained living with the maternal grandparents. She has not re-partnered and has no immediate plans to leave their home although she would no doubt like to become independent in the future.
The mother works part time as a customer service officer.
X commenced kindergarten in 2019 and is now in Year 1 and Y has commenced pre-school at O Pre-School. The mother said that the girls loved swimming and sports and that X loved drawing.
The father told the family report writer that he did not have any issues with the mother’s parenting.
The mother has seen a doctor for depression and anxiety and has been prescribed Sertraline. She has also had some counselling. She does therefore have some mental issues but she is taking and always has taken appropriate steps to manage her mental health.
The mother is more than capable of providing for the children’s needs including their educational and emotional needs.
The mother’s counsel submitted that the court should take into account the impact on the mother of an order that the children spend unsupervised time with the father.
There was no evidence that if such an order was made the mother was likely to have a mental health breakdown, fall deeper into depression or become unavailable emotionally for the children as a result of anxiety. She has parented them well to date and I consider that if such an order was made she would be likely to soldier on rather than to collapse in a heap.
However the mother been under constant pressure trying to manage the father’s behaviour around his demands to spend time with and have communication with the children since the parties separated four and a half years ago and although I could consider the implications of this later in the judgment under the heading “any other relevant matter” I intend to consider it here.
After separation the parties reached agreement about the father spending time with X and being introduced to Y but in the second half of 2016 the father began behaving in a threatening way and the mother went to the police on several occasions. They were in the process of applying for an ADVO for her protection when on 21 January 2017 the father invaded the mother’s home and took X.
After this event the mother did not facilitate the father spending time with the children but she had to manage his requests for telephone communication and on Father’s Day 2017 he threatened the mother and was charged with breaching the ADVO and stalk intimidate.
The mother therefore commenced proceedings seeking court orders about the children and this resulted in the need for numerous court appearances.
Supervised time commenced in March 2018 and happened reasonably uneventfully after that but the mother still had to deal with issues in connection with the father’s telephone communication and with the father becoming suicidal toward the end of that year. He named her as his contact person on his admission form at the L Hospital.
In February 2019 the mother felt concerned for her safety and approached police for an extension of the ADVO but they did not consider that there were any grounds to apply for it. In May 2019 she was sufficiently concerned about the father following a telephone conversation to call the police and asked them to check on his welfare. In September 2019 she felt that the father was stalking her using Facebook and was concerned about a message accidentally left on her answering machine. She again went to the police asking for an ADVO. This time they applied for one and the father consented to a further ADVO being made.
The mother ceased to make the children available for telephone communication after September 2019 because she felt that it was oppressive for her and not beneficial for the children. The father admitted at trial that he still rang the mother, sometimes every day, and that when she did not answer he rang her over and over again. He said that he considered that he was justified in doing that because he wanted to find out how the children were going.
The mother has also had to deal with communications with the father when he has been unable to attend the supervised visits and she said and her evidence about this was not challenged that in January 2020 she was asked to come and get the children early on one occasion because the father was not coping.
As a result of her own experiences with the father, her knowledge of the fact that he was charged over incidents with Ms J and with his family and her knowledge as a result of the material produced on subpoena about the complaint by Ms K the mother is extremely fearful of the father and concerned that the children would be at risk of harm if they spent unsupervised time with him. She would be anxious, on edge and hyper vigilant if such an order was made.
When I asked the mother how she would cope if I made an order for the father to spend unsupervised time with the children she burst into tears. She went on to say:
I know him so well, I was hoping he would improve and I know he hasn’t.
The mother is a high functioning parent and she might not collapse and be unable to care for the children if an order was made for unsupervised time but I am entitled to take into account that there is a considerable risk that if such an order was made further issues might arise which aroused the mother’s concern and that the children might be impacted on by the mother’s anxiety. The father alleged that this had already happened with respect of X because of the mother’s (rather than X’s) failure to put the 21 January 2017 incident behind her.
The parties separated over four years ago. There has never been a time when the mother has not been concerned about the father’s behaviour and concerned about the children. There have been ADVO applications, criminal proceedings against the father and proceedings in this court.
The mother’s counsel referred me to Sedgley and Sedgley in which the Full Court said as follows:
Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
Whilst the wife is haunted by the prospect of there being a refusal of access, she has elected to choose that option, rather than the one she chose before Smithers J. She has done so because of continued behaviour by the husband which has been reprehensible.[17]
[17] Sedgley & Sedgley (1995) FLC 92-623
There is a very real risk that an order for unsupervised time will result in ongoing issues which the mother has to cope with and I consider that I am entitled to take into account that it would be an advantage for the children if the mother could have a period of peace and tranquillity untroubled by court proceedings of any kind and by being on edge about what might be happening to the children. However that is only one matter to be weighed into the mix and it does not determine the outcome.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
After the January 2017 incident the mother arranged for X to see a psychologist and at trial she alleged that X still had some fear of the father and suffered from anxiety as a result of the incident and slept in the mother’s bed.
X was a little over three when the incident occurred and the father’s case was that X would not have a memory of it unless the mother had reinforced it.
I cannot make a finding about the extent if any to which X remembers the incident or about the impact it has had on her but she did not show any fear of the father at the family report interviews. She might be anxious if she began to spend unsupervised time or overnight time with the father but that could arise from her lack of time with him to date and anxiety about being away from their mother.
I must consider if the children are Aboriginal children their right to enjoy their Aboriginal culture (including their right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order will have on that right.
The father is Aboriginal and the children are Aboriginal children.
There is flavour in some of the answers given by the father to the family report writer of him believing that he was being discriminated against by this court because he was Aboriginal and it was a strong plank of his case that the children needed the opportunity to connect with their Aboriginal culture, and not just aboriginal culture generally but their own particular culture.
The children do not have that opportunity at present. The mother went to Town C with the father on two occasions and has met the father’s Nan and some other family members. However she is not on good terms with any members of the paternal family and if an order is made that the children spend no time with the father it will mean that they will have no contact with their extended Aboriginal family.
X attended and Y currently attends O Pre-school. X does a culture class at school once a week and the children attend NAIDOC week events. This will help to ensure that they value their aboriginal heritage but they will not be enjoying their culture with relatives who share that culture or learning direct from those relatives about their particular culture as opposed to aboriginal culture generally.
That will be a loss for the children but if it happens it will not be because the mother does not recognise the importance of the children connecting with their aboriginal culture. She became very emotional during cross-examination when she was challenged by the father’s counsel that in order to learn about their Aboriginality and their culture the children needed to spend time with the father and paternal family and needed to be able to travel to Town C and said as follows:
I don’t trust his family. I’m not denying them learning their culture, that’s not the issue here. His family have a long history of violence. His father has been in and out of jail his entire life. His mother has had incidents where she has assaulted Mr Golena and she has assaulted other children. There have been incidents recently where they fight with each other. I don’t want my children around that. That’s why. It’s not got anything to do with aboriginality, it’s their safety and the violence that I am concerned about with their family and you would read in the affidavit of Town C he has had a history of family violence his whole life. I don’t want my children around that. That is why.
I must consider any family violence involving the children or a member of the children’s family.
Exposure to family violence is incredibly damaging for children. If X and Y were exposed to the father being violent to a new partner or to members of his family they would be very distressed, may be frightened and could be physically injured if they got in the way of what was happening. When the father lost control on 21 January 2017 he had no thought for his children’s safety. He ran off with X and drove away with her strapped into the front seat; he had no child car seat in his car.
Exposure to family violence can have long terms effects on children. It can lead to them having mental health issues or being perpetrators of violence themselves, something the father knows only too well as he has suffered those outcomes. It can also lead to children becoming desensitised to violence and becoming victims of violence in their adult relationships.
The mother was also concerned about the example the father might set for the children because due to his exposure to family violence it had become normative for him. She said that her concerns were reinforced by the fact that that during a FaceTime interaction with the children they were arguing over a toy and one child hit the other and the father said “Go on, hit her back.”
The father’s case was that he could not change the past but as a result of doing the Taking Responsibility Course he had learned strategies to avoid being violent in the future and as I indicated earlier I will assess this when considering the s. 60CC(2) matters.
I must consider if a family violence order which applies, or has applied, to the children or a member of the children family and any relevant inferences that can be drawn from the order taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
An ADVO was made in January 2017 for the protection of the mother, the children and the maternal grandparents. The final ADVO which was made after the father was convicted was in place for 12 months from 27 May 2017.
Two separate ADVO’s were made against the father in December 2018 for the protection of Ms J and his two sisters. The father appeared to concede during cross-examination that these had been continued when the charges in respect of these people went to the court in 2019 even after the charges were withdrawn but it is unclear to me whether that is in fact the case.
In September 2019 the mother made a complaint to police when the father left a message on her voice mail which she considered threatening and an interim ADVO was made for her protection. On 3 February 2020 the father consented to an ADVO being made for a period of 2 years and it will be in force until 3 February 2022.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
Discussing this as a separate consideration will not help me.
I must consider 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 the children.
There is no such order.
If I make an order that the children spend no time with and have no communication with the father it will be because at this time I cannot be satisfied that they would be safe from harm and properly cared for if they spent time with him unsupervised. The father may make another application in the future if he considers after some further time has passed that he can demonstrate that he has been able to sustain change in relation to family violence, drug use and alcohol use and that his mental health is not a matter of concern and it is right that he should be able to do so.
If I make an order for the children to spend unsupervised time with the father the mother is likely to be hyper vigilant and to very quickly assume the worst if the children come home saying things or she hears rumours in the community. She may or may not be right but there is a risk that she will become so concerned about something that happens or something she believes has happened that she fails to comply with the orders which could result in contravention proceedings or an application to change the orders.
There is also a risk that despite the father’s insistence that nothing will go wrong there will be further incidents in his life which will also bring the matter back to court.
I must have regard to any other fact or circumstance which the court thinks is relevant.
The father does not necessarily pose a risk to his children every minute of every day. The children have related well to him during the supervised visits and he is personable, has an employment history and is a good sportsman. Unfortunately he also sometimes gets intoxicated, uses drugs, behaves violently, has run-ins with the police and has mental health issues.
Sometimes families are able to manage situations where one parent intermittently poses a risk to children. The mother and father did this in the first year after separation and occasionally the relationship between the parents is such that rather than making a no time order the court can make a final order that time be as agreed.
Unfortunately this matter has moved well past that point. The father has threatened the mother in the past when things have not gone his way concerning telephone communication or his time with X, he continued until recently to make a large number of unwanted telephone calls to her and he does not respect her. I mentioned earlier his comment about the mother spending his child support money on Botox. There was also a concerning comment in his trial affidavit to the effect that as far as he was aware the mother had not been diagnosed with any mental health issues but that her mother had and he had observed her to have similar characteristics. He also said that she could be controlling. He did not pursue these allegations at trial.
The father also alleged that the mother had drunk to the point of intoxication on special occasions. There is nothing in any of the material available to me to support such an allegation and that allegation also was not pursued at trial.
An order that the children spend time with the father as agreed between the parents would not only be completely unacceptable to the father it would place the mother under unacceptable stress. I hasten to add that nobody asked me to make such an order but when I am faced with potentially making a no time order I like to reflect on all possibilities.
The primary considerations in s. 60CC (2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
A meaningful relationship has been described as a relationship which is significant, important and valuable to the child[18] and it is self-evident that children benefit if they can have such a relationship with both of their parents. Parents are different and can offer the children different things and in this case there is a particular benefit to the children in having a relationship with their father because he shares their Aboriginality.
[18] Mazorski & Albright (2007) 37Fam LR 518
The children will have no relationship with their father if they do not see him. However s. 60CC (2A) of the Family Law Act provides that in applying the primary considerations the court must give greater weight to the need to protect the children from harm.
After the relationship ended in November 2015 the mother tried to balance the two considerations by agreeing to some time but also pulling back on time when she considered that the father was being threatening and was likely to expose the children to harm. Her consent to the children spending supervised time with the father in March 2018 was another example of the mother trying to balance the two competing considerations.
In February 2019 the family report writer shared the mother’s concerns about the children’s safety in the father’s unsupervised care. She was concerned about the family violence and the potential for the children to be exposed to family violence in the father’s care in the future. She was concerned about the possibility not only of the children being exposed to psychological harm and distress as a result but about the children being physically harmed and there is merit in her concern. The father completely lost control of himself on 21 February 2017 and grabbed X who was then aged 3 and ran off with her sitting in the front seat of his car. She could easily have been injured.
The family report said as follows:
The father has a history of family violence towards the mother which he appears to lack the contrition, insight into, and participation in treatment that would demonstrate an assurance that his behaviour would not recur. It is concerning that recently the father, by his own report, has escalated in his violence towards other members of his family. This was also reported by the mother and maternal grandparents. It is especially concerning that this escalation has occurred whilst under the scrutiny of this Court and under conditions of a bond. The father appears to have a long term issue with family violence which he does not consider to be a concern, and he has taken no steps to remedy this. Given these considerations, the current spending time arrangements may need to be reconsidered.
The family report writer also identified the risk to the children of the father using drugs or abusing alcohol while they were with him. She said as follows:
This report has also identified risks for the children with the father related to alcohol abuse and illicit substance use. The father asserted that alcohol and drugs are not current problems for him, denying his current use. The assessment does not support the father’s view in this regard. The father made a number of contradictory statements admitting very recent problematic intoxication from substances, leading to circumstances of violence which he concedes, but cannot recall. The father has a criminal history of medium range prescribed concentration of alcohol (2008) and possess prohibited drug (2017). The family consultant is concerned the father may be idealising his abstinence during his future as a father, with statements such as I’d never drink in front of the girls. [19]
[19] Family Report paragraph 126
She further identified concerns arising out of his mental health, saying as follows:
This report has also identified risks for the children with regard to the father’s mental health. The father reportedly historically sought psychological and pharmaceutical treatment for PTSD, depression and anxiety. However, despite his reports of recent decline in mental health requiring a four-day inpatient admission, the father has decided to be non-compliant with medication and therapeutic intervention. If the father was to spend increased, unsupervised periods of time with the children then consideration would need to be given to any additional stress this may place the father under, and the potential for increase in the acuity of PTSD symptoms.
As things stood in February 2019 it would have been well open to me to find that not only did the father lack the capacity to provide adequate care for the children, they would be at unacceptable risk of neglect or exposure to family violence if they spent unsupervised time with him.
The father’s counsel submitted that careful consideration of the evidence meant that the court could not make such a finding following the trial. He submitted that as a result of the father doing the Taking Responsibility course the court should have confidence that the risk of the father perpetrating family violence had abated and that it should accept his word that he would not drink excessively or use drugs when the children were with him.
The father said as follows in his affidavit about the Taking Responsibility Course:
I have found this course to be very helpful and educational. It has really opened my eyes as to what family violence is and what it involves. It helped me understand what problems I had and what I needed to fix and how to manage my behaviours. It gave me strategies to deal with my emotions and frustrations without resorting to aggression.
It has shown me that some of the things I had done in my relationship with Ms Golena and following separation were not acceptable.[20]
[20] Father’s affidavit paragraphs 32 & 33
It is good that the father has done the course but the mere fact that a family violence perpetrator has done a course or has had counselling is not a guarantee that they will not commit further acts of family violence. This is simply sound common sense but I mentioned during submissions a case I had been involved in where despite all his counselling and all his promises the father committed acts of family violence in a second relationship to which the children of his first relationship were exposed.[21]
[21] Pittman & Bond [2008] FMCAfam 1316; Pitman & Bond [2014] FCCA 2126
Based on the evidence trial I have some doubt about whether the course has opened the father’s eyes to what family violence is and what it involves. During cross-examination he repeatedly returned to the fact that he had not been physically violent to anyone. When I asked him what he thought making threats and smashing a windscreen were he responded:
That’s poor behaviour.
The father made very limited admissions in his trial affidavit about his perpetration of family violence and he tried to suggest that the mother had been a participant in what occurred during the relationship. He displayed very limited remorse and very little insight into the impact of the violence on the mother. He denied that he had done anything wrong during the incident on 27 December 2018 and claimed his family fabricated everything.
After paying lip service to the fact that his behaviour would on occasions have frightened the mother he went to some lengths in his affidavit to establish that she was not truly frightened of him and some of the cross-examination of the mother was directed to establishing this.
I have considerable reservations about whether the fact that the father has done the course means that the risk of him perpetrating family violence in the future has diminished to a significant extent and part of the problem is that even if the father has learnt strategies to help him avoid behaving violently, intoxication and drug use have been a feature of many incidents of violence in the past and he would not be able to apply what he had learnt if he was drunk or drug affected.
The father said that he would not drink excessively or use drugs if the children were with him but he was not a witness of credit. He has never done any drug and alcohol counselling and he gave contradictory evidence about his past drug and alcohol use. He did not deal at all in his trial affidavit with the fact that excessive use of alcohol had resulted in him having numerous run-ins with the police. He dealt with the allegations about his behaviour at a family gathering in December 2018 by saying that they were a tissue of lies while at the same time admitting that he was intoxicated during the incident.
The way the father proposed dealing with the issue of his drug use and alcohol use in the orders he sought was that he asked the court to make the following order:
That both (sic) parties be restrained from consuming illicit substances or alcohol to above the legal driving limit at any time that X or Y are in their care or within 24 hours prior to X or Y coming into their care.
That provides no comfort. The father said that he was a binge drinker. He provided no evidence which would cause the court to feel confident that he could control his drinking and drink a certain amount of alcohol and then stop. The proposed restraint envisages him drinking while the children are with him and is more likely to cause the mother fear than confidence.
The father also provided no evidence which would allow me to feel confident that he would not give in to the temptation to use illicit drugs.
During closing submissions the father’s counsel said that the father would be willing to consent to an order that he do regular CDT and drug testing but this would not be a satisfactory solution to the problem. The mother, who has good reason to fear the father, would be required to regularly request these tests from him and the matter could also swiftly return to court if the father failed to comply with a request.
During cross-examination the family report writer was asked whether it was positive that the father had not taken drugs for 9 months, had had no mental health issues for 9 months and had not come to the attention of the police for any family violence incidents for 9 months.
She said that this was positive, but a greater period of time, 18 months to 2 years, was necessary before she would be prepared to support unsupervised time because the risk the father posed to the children had sufficiently abated.
The family report writer did not provide any foundation for this opinion. However I am satisfied that it should be given weight because the father has historically been able to go for periods of time without coming to the attention of the police. The parties separated in November 2015 and it was around September 2016 before the mother began going to the police making complaints about the father and it was about the same time that Ms K made a complaint to police. There was then another complaint by the mother and the January 2017 incident. After the January 2017 incident there was no further incident until September 2017 when the father was charged with breaching the ADVO.
The next time the father came to the police was in November/December 2018, 13 to 14 months later.
He did not come to the attention of the police about any family violence matters subsequent to that until the mother made a complaint about the content of a call in September 2019 although there was the incident outside the hotel in April 2019.
The father has not done any drug and alcohol counselling. He has done a Taking Responsibility court but has not completely taken ownership of his past behaviour and he has no insight into the long term impact on the mother of his behaviour including the 21 January 2017 incident and the threats he made on Father’s Day 2018.
The father is not in a relationship at present but history suggests that he is likely to re-partner and it is far too early to say that the risk of the father behaving violently to a domestic partner or indeed to a member of his family is past.
It is also far too early to say that the risk of the father consuming alcohol excessively and using drugs while the children are in his care has passed. He had amphetamines in his pocket when he was arrested with X in his care in 2018. He was violent to members of his own family during a drunken incident in December 2018, which is only 16 months ago.
On the current state of the evidence the children would be at unacceptable risk of exposure to family violence if they spent unsupervised time with the father. His alcohol and drug use could also result in them being exposed at the high end of the scale to neglect or at the very least to inadequate parenting.
Conclusion
The mother would find it very difficult to accept an order that children spend unsupervised time with the father. For much of the parties’ relationship she endured him intermittently using drugs, becoming intoxicated, behaving violently, making threats and damaging property. He wrote off her car in a fit of drunken anger. She separated from him after an incident when he came home drunk and she believed drug affected and ranted and threatened her.
Since separation she has endured the father making threats to harm her, breaking into her home and carrying out his threat to take X who had to be recovered by police, threatening to put her belongings outside and threatening to come and break her door down.
She is aware of the complaints by Ms K and Ms J. She is aware of the father making threats of self-harm and spending a few days in a mental health unit in December 2018 and she is aware of the incident where he became drunk and assaulted his sister and damaged property on 27 December 2018.
She is aware that he was involved in yet another incident outside a hotel in April 2019. She called police because of her concern about his mental health in May 2019 and she believes that the father was caught out threatening her in September 2019.
She burst into tears when I gently tried to explain to her that I might make orders for the father to spend unsupervised time with the children.
If the whole of the evidence suggested that despite the mother’s inability to accept it the father had changed and the children would be safe and appropriately cared for if they spent unsupervised time with him it would be worth making the orders the father seeks. If those things were true then the father could learn to look after the children and the children would return to mother happy and well cared for and over time her trust might be regained. There would be a risk of the orders breaking down because the mother was hyper vigilant but if those things were true the court could deal robustly with any breach of the orders by the mother.
The difficulty is that I cannot be satisfied that the father has changed sufficiently to mean that the children would be safe in his unsupervised care.
He said he had. He has done the Taking Responsibility course and he set out (briefly) in his affidavit what he said that he had learned from it. However he continues to show no insight into the impact of his actions on the mother. He made minimal admissions. He failed to provide any evidence in his affidavit about the incidents with Ms J and his family and in cross-examination he denied any wrongdoing with his family. He failed to mention the incident in April 2019 when he came to the attention of the police following an incident outside a hotel.
He has given inconsistent evidence about his drug and alcohol use during the proceedings and the order he proposed to deal with those issues would not deal with them at all. He provided no independent evidence about the current state of his mental health and revealed during cross-examination that he had been diagnosed with bipolar.
The father does not bear an onus of proof in the proceedings but it was up to him to provide evidence which satisfied the court that the children would not be at risk of harm and would be appropriately cared for if they spent unsupervised time with him and he has failed to do that.
The children are 6 and 4 and are utterly unable to protect themselves. Y is particularly vulnerable as she has never had a relationship of any real sort with him. The father would need to be very responsive to her if she showed distress at being separated from her mother and there is no sign that he has the capacity to do that.
It will be regrettable if the father’s relationship with the children is completely severed but the only alternative to a no time order would be an order for ongoing supervised time.
The advantage of that would be that the children would maintain a connection of sorts with the father so that if in the future he was able to satisfy the court that unsupervised time was appropriate there was a foundation to build on. It would also keep them connected albeit tenuously with the parent who is Aboriginal like them.
However an order for indefinite supervised time is often problematic. Supervised time can all too easily break down because a service provider become unavailable or a party cannot pay. Children can become resistant to going. A parent might lose interest and then want to resume time after a lengthy break. Children do not form a meaningful relationship with a parent that way and such orders can be an ongoing source of conflict between the parties.
Orders for supervised time are not usually made unless there is a realistic prospect that time might be able to become unsupervised in due course and although I would like to think that this may be the case here I can have no confidence that it will be and in any event no party asked me to make such an order.
In any event neither party asked me to make an order for supervised time on a final basis.
An order for no time will result in the children having no relationship with their father when he is the parent who shares their Aboriginality. Sometimes that loss can be overcome to an extent by the children remaining in contact with members of the paternal family but there is no prospect of that occurring here except perhaps in some fleeting and occasional way.
If I make a no time order there is a risk of further litigation if the next couple of years are uneventful for the father. He might form a new relationship in which there is no family violence. He might not have any further incidents involving alcohol or drugs. The parties might have to endure further litigation. However the parties have been in the court system for nearly 2 ½ years. Even under the gaze of the court the father has not been able to keep out of trouble. I cannot have faith at present that the children can safely spend unsupervised time with him or that he has the capacity to care for them without incident and the mother and the children deserve a period of peace where court proceedings are not hanging over their heads.
Although I do so with considerable regret because there are positives about the father as well as negatives, because he can behave well and interact with others well at times and because it will mean that for the time being the children do not through him have a connection with their Aboriginal culture, I intend to make an order for no time and no communication save that I will make an order for the provision of letters cards and gifts.
During closing submissions the mother’s counsel said that the mother would consent to an order that she provide the father with copies of the children’s school reports and school photographs. I intend to deal with this by making an order that the father may request the school to forward those items to him, a request he can make by telephone or email.
I certify that the preceding two hundred and seventy-one (271) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 22 April 2020
in December 2018.
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