Graham and Kovacs (No 4)
[2015] FamCA 1073
•21 October 2015
FAMILY COURT OF AUSTRALIA
| GRAHAM & KOVACS (NO 4) | [2015] FamCA 1073 |
| FAMILY LAW – CHILDREN – sole parental responsibility – children to live with the mother – the father be restrained from contacting or attending upon the children’s school – consideration of capacity of the father to be primary carer – where an acquired brain injury affects the fathers behaviour – where overnight time with the father is not considered in the children’s best interest. FAMILY LAW – PROPERTY – where net financial position is one of debt – where mortgagee has exercised power of sale – where parties found equally liable for debt. |
| Family Law Act 1975 (Cth) s 60B s 60CA s 60CC s 61DA s 61DAC s 68B s 75 s 79 s 114 |
| Graham & Kovacs [2014] FamCA 702 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Graham |
| RESPONDENT: | Mr Kovacs |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 30 September, 1 and 2 October 2013, 27, 28, 29 and 30 April, 1 May, and 13 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITORS FOR THE APPLICANT: | Sandra Sinclair |
| THE RESPONDENT: | In person excluding 13 August 2015 when there was no appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Victoire |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
All previous parenting orders are hereby forthwith discharged.
PARENTAL RESPONSIBILITY
The mother have sole parental responsibility for the children B born … 2005; C born … 2007 and D born … 2009 (“the children”), save that she is restrained from changing, or causing the children to be known by, other than their aforementioned names.
LIVING ARRANGEMENTS
The children are to live with the mother.
TIME AND COMMUNICATION WITH THE FATHER
The children C and D are to spend unsupervised time with the father on the first and third Sunday of each calendar month, between 11:00am and 3:00pm, with changeovers to occur at the F Town Contact Centre.
If on any occasion the father fails to attend the Contact Centre by 11:15am to effect changeover of the children so as to spend unsupervised time with him, then the mother may thereupon cancel that occasion and leave with the children.
If the father fails to attend the Contact Centre by 11:15am to effect changeover of the children so as to spend unsupervised time with him on three consecutive occasions, then the mother may thereupon suspend the father spending further time with the children under these orders, unless and until the father advises her that he wishes to resume spending time with the children.
If the father can identify a suitable person or venue other that the F Town Contact Centre for changeovers, to which person or venue the mother agrees (noting that such agreement is not to be unreasonably withheld) then the children C and D are to spend no more than 3 hours of unsupervised time with the father on the further following days:
(a)Christmas Day;
(b)Easter Sunday;
(c)C’s birthday,
(d)D’ birthday;
(e)The father’s birthday
(f)Father’s Day;
with the father to nominate the time at which the 3 hour period commences, save that:
(i) any time on Christmas Day and Easter Sunday is to conclude no later than 12 noon in odd numbered years, and start no earlier than 12 noon in even numbered years;
(ii) if the event falls on a school day, any time on C’s, D’ or the father’s birthdays is to conclude no later than 8:00pm.
The father is to meet any and all costs associated with the parties’ use of any Contact Centre or alternative venue or person under these orders.
The child B is not required to spend time with the father unless she expresses a desire to do so, and if she so does, then orders 4, 5, 6, 7 and 8 will apply to her spending time with the father as if she was a named child in those orders.
In the event that the F Town Contact Centre cannot accommodate the times provided for in these orders, then within 28 days of the date of these orders the parties have liberty to apply to vary them in that respect only.
RETRAINTS AND PERSONAL PROTECTIONS
For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) unless requested by the principal or his or her delegate, the father is prohibited and restrained from spending time with, or attempting to contact or approach the children, or attending the children’s school other than as provided for in these orders.
PROPERTY
Each of the parties is declared the sole and beneficial owners to the exclusion of the other of all property (including superannuation) presently held in their sole name or in their possession.
Each of the parties is declared to be jointly and equally liable for the debt presently in the sum of $73,246.50 arising from the previous mortgage over K Street, Suburb L in the State of Queensland.
OTHER ORDERS
The Independent Children's Lawyer is forthwith discharged with the thanks of the Court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal (including any application for special leave to appeal or subsequent appeal to the High Court of Australia).
Otherwise all extant Applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Kovacs (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC762/2010
| Ms Graham |
Applicant
And
| Mr Kovacs |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings primarily relate to the parties’ three children, being B (born in 2005 and therefore presently 10 years of age) C (born in 2007 and therefore presently 8 years of age) and D (born in 2009 and therefore presently 5 years of age) (collectively “the children”).
As ultimately formulated, Ms Graham (“the mother”) seeks orders that the children live with her, that she have sole parental responsibility for the major long term decisions in relation to them and that they spend no time nor communicate with Mr Kovacs (“the father”). She justified such orders on the basis that the father is an unacceptable risk of physical and/or emotional harm to each of the three children.
By his Amended Response to Initiating Application filed 21 March 2013 the father seeks orders that he have sole parental responsibility for major long term decisions in relation to the children, who would live with him and spend every second weekend with the mother from 9:00am on Saturday until 5:00pm on Sunday.
In the event that orders were not made in accordance with his primary position, then the father proposed orders that the parties have equal shared parental responsibility for the children, who would live with the parties on a week about basis.
In any event, irrespective of which of those alternatives were ordered, he sought, in broad terms, that the children spend one half of each school holiday period with each parent.
As ultimately formulated, the Independent Children's Lawyer proposed orders which supported the mother’s position.
There are also property proceedings on foot between the parties, although the pool is extremely modest. I shall consider the property issues after determining the parenting proceedings.
BACKGROUND FACTS
The mother
The mother was born in the Northern Territory in 1974 (and therefore is presently 41 years of age). She grew up in M Town, where her parents continue to reside, operating a local mechanical repair business. I know little of her life up until at about 26 years of age, when she was backpacking in the United States, she met the father in City N.
The father
The father was born in 1969 (and therefore is presently 46 years of age). He was born in Country S. His family was very close. After leaving high school he attended an academy, acquiring what he said was the equivalent of a master’s degree with distinctions. Intending to follow a career in media, he then went to the City O School of Marketing and Management where he undertook post graduate study. Probably during the time that he was studying, he undertook some allied work.
Whilst he was living in Country S he married, to which relationship was born his first child, Ms P, who is presently about 18 years of age. That marriage terminated with divorce in 1999.
The father then wished to further his professional career in the United States. He travelled to City Q intending to undertake further study. It was around that time he met the mother in 2000 when he was 31 years of age.
The relationship
The parties initially lived together in City V for eight months. They then moved to City Q for about a year. Apparently at that time the father was studying. The parties then came to Australia and lived in Sydney for three years. Thereafter they moved to F Town. In that city the father established a business, which it appears he operates to this day. The children were all born when the parties were living in F Town.
It appears as though the parties’ relationship has always been fractious and to a degree chaotic, at least since the birth of their children. Particularly the mother asserts that the father was highly denigratory of her, and regularly criticised her weight, competence and intelligence.
In 2007, during the course of what may have been an argument, the father was standing on the parties’ bed when his head collided with a fast moving ceiling fan. I will discuss more of the consequences of that event in due course, however there is little doubt that it considerably affected the father’s behaviour. There was surgery to his brain, in which some part of it was removed. He spent four to five days in the T Hospital before returning to F Town where he was in hospital for a further two weeks. Thereafter for the first two to three months he slept most of the day. He suffered short term memory loss and depression, and became forgetful. He started to suffer from small epileptic fits at night.
It appears as though this added further strain to the relationship, which finally failed while the parties were on holiday in M Town with the mother’s parents in July 2010. They had been together for about 10 years. B was then 5 years of age, C 3 and D only 6 months old.
Post-separation
At the time of separation (or perhaps shortly thereafter) the father was served with an Apprehended Violence Order which the mother had obtained from Northern Territory Police. In consequence of that – although why is not exactly clear – the police placed the father on a bus bound for F Town. The mother remained in M Town. The father consulted solicitors in F Town and threatened to bring proceedings for the recovery of the children to F Town. The mother voluntarily returned. The children remained living with her.
Initially the parties were able to, with their solicitors’ assistance, negotiate the children spending some time with the father. However the mother says – and I accept – that from the outset, the father sought to constantly change those arrangements. That necessitated further negotiation and inevitable argument between the parties.
On 15 October 2010 C spent overnight time with the father, after which the mother unilaterally suspended the father’s time with the children under their agreement. She says she did so because the children were returning from the father’s care hyperactive, angry and aggressive towards her. She said it would take her a week to settle them down.
Also it appears as though changeovers were being made more difficult than they needed to be because on those occasions the father would demand that the mother signed forms or do other things, which requests were accompanied by threats.
One Friday afternoon in November 2010, the father attempted to take the three children out of school early without the mother’s agreement. He succeeded in removing B, but not the other two. He did not return her to the mother until Sunday morning. The mother says that when she came back into her care the child was anxious, chewing on her clothes and urinating on the floor. The mother then commenced these proceedings on 17 December 2010.
At some time the parties negotiated the re-commencement of the father spending time with the children, save that it would be supervised. They used independent third party supervisors, some of whom have filed affidavits in these proceedings. However again the father used changeovers to argue with the mother, and from time to time again attempted to take one or more of the children from their school without the mother’s agreement.
In 2011 the children began to develop and display sexualised behaviours, but that appears to have abated and that issue was not a major feature of the litigation before me.
The parties began to experiment with the children spending longer periods of time with the father (albeit still supervised). That did not work because within a relatively short period of time the supervisor indicated that she was no longer willing to be involved.
Then in October 2011, consequent upon some family report interviews, the mother decided “that it would benefit the children to start having unsupervised time their father”. That appears to have initially worked with a degree of success.
The father however continued to attempt to see the children during school hours at their schools, or in the case of D, at his day care. Worse, the father appears to have told the children that they would in future be spending one week him and one week with the mother. He was also denigrating the mother to the children by calling her “big fat mummy” although the father denies this, and says that the children referred to the mother in those terms of their own volition.
Then on 8 June 2012 the mother “trialled” letting the father collect the children from school and day care every alternate Friday, returning them to day care and school on the following Monday. In her affidavit filed 10 July 2013 she said “that arrangement appeared to be working quite well for the children as they seemed less stressed and happier and were not seeing [the father] and me in conflict at changeovers.”
At around this time, the parties commenced to use a communication book which travelled with the children. That did not work. Neither party were able to withstand the temptation of provoking the other, and more, the children became aware of the communication book and the conflict and hostility it generated.
Notwithstanding the fact that the arrangements were, in broad terms, apparently working, from time to time the parties would still engage in direct conflict. An example of this was on Christmas Day in 2012 when the mother apparently changed the agreed arrangements which provoked the father to some unpleasantness. There was a further episode of hostility on New Years Eve.
Then in January 2013 the mother unilaterally determined to reduce the father’s time with the children back to one night a fortnight rather than three. This inevitably caused the father to become angry. Whether in consequence of that reduction or otherwise, the children’s behaviour relapsed. They returned to being angry and aggressive.
That was the arrangement that prevailed when the trial commenced before me on 30 September 2013. On 2 October 2013 the parties agreed to interim orders which saw the mother have sole parental responsibility for the children, who would live with her and spend alternate weekend time with the father, from after school on Friday until the commencement of school on Monday, together with one week of each gazetted school holiday period.
However the cornerstone of those orders was the parties agreeing to attend upon a psychologist for a minimum of six months “to engage specifically in reportable psycho-educational assistance to effectively improve individual and co-parenting capacities; or to at least develop appropriate communications and reasonable expectations of the other, as per the Family Report of Mr S filed 18 July 2013.”
Almost immediately the father purported to withdraw his consent to the orders, even though they had been pronounced. He then refused to engage in the counselling. The matter returned to court on interim proceedings, in the course of which the father ultimately agreed that he would submit to the relevant counselling intervention, albeit with a different psychologist to that which the consent orders had originally identified.
That counselling finally concluded in about February 2015. The mother says that each session consisted of the father speaking over her, and loudly complaining and arguing with her. Sometimes his behaviour would be so extreme that the mother was asked by the psychologist to leave the room. On occasions she chose to unilaterally leave the premises. Ultimately the counselling was abandoned.
Far from the 2 October 2013 consent orders heralding some improvement in the parties’ relationship, things have gotten worse. The parties appear to have derived no benefit whatsoever from the counselling.
At a stage which the evidence does not permit me to determine with precision, the father’s daughter Ms P came to live with him in F Town from Country S.
An incident occurred at the father’s home on the evening of 16 August 2014. That was a Saturday night, and one of the weekends on which the father had the three children with him. Ms P was also staying with the father. I am satisfied that Ms P and the father had an argument after the children had gone to bed. That led to Ms P leaving the home. The police were called and arrived but the father refused to admit them, apparently by pretending to be asleep. In fact initially he was hiding behind a door but later did go to bed. After some time the police forcibly entered the premises, handcuffed the father and dragged him outside. Precisely why they felt the need to so restrain and manhandle him is unclear. It appears as though the child B saw the whole episode, but the two boys did not. B, then aged 9, was greatly distressed by what she saw and otherwise experienced.
The mother was called by police to come and collect the children and did so. Since then B has refused to go back into the father’s care, and has not done so.
Initially, given the father’s conceded highly disturbed state following the police involvement, I suspended the time which he would otherwise have spent with the children under the consent orders, pending receipt of a medical certificate certifying that the father was recovered to an extent that he could safely have the children back in his care. That ultimately was provided, and the suspension lifted. Thereafter C and D resumed spending time with the father under the 2 October 2013 orders.
The father has been most upset at B not being made available to spend time with him and the boys. On several occasions he has attempted to take her from her school, albeit unsuccessfully. He most recently attempted to do so on 31 July 2015. The father has also filed numerous Contravention Applications in relation to the mother’s failure to make B available, and indeed in relation to other occasions when the mother did not make any of the children available.
He became determined to have his contravention proceedings against the mother determined before the trial resumed. Kent J determined that those contravention proceedings should be determined by me at the conclusion of the trial: Graham & Kovacs(No 3) [2014] FamCA 829. A Full Court appeal from that decision was brought by the father, and notwithstanding that neither the mother nor the Independent Children's Lawyer attended the hearing on 26 May 2015, the appeal was dismissed: Graham & Kovacs [2015] FamCAFC 98. An application for Special Leave from that dismissal was deemed abandoned on 21 July 2015.
In the meantime the trial had resumed before me on 28 April 2015 in F Town. The father unsuccessfully sought to have the trial adjourned. He wanted his appeal from the decision of Kent J determined before the trial resumed. I declined to do so: Graham & Kovacs [2015] FamCA 450. The trial then ran another four days until the end of the sittings, however still had not concluded. The father was still under cross-examination when the trial adjourned. It was listed for a further two days in the next F Town sittings. However prior to then, the father filed a certificate from a doctor asserting that he was unfit to appear at the resumed trial, although no reason for the asserted unfitness was given. The father was directed by Registry staff to make an application to adjourn the trial, which he did, but did not serve that application or supporting affidavits on the mother or Independent Children's Lawyer, and did not appear at the resumption of the trial (to which date the application for an adjournment had been made returnable) to argue in support of that application. Attempts at contacting him by telephone by registry staff were fruitless. He had been advised that in the event that he did not appear the matter may proceed without him. That is what occurred. Absent the father being present to prosecute the contravention proceedings, they were dismissed. Only the mother led evidence in the property proceedings.
Therefore whilst it is not correct to say that the parenting matter proceeded entirely as an undefended hearing – as 8 days of trial had elapsed – the reality is that ultimately the father’s absence meant that his cross-examination could not continue, and oral submissions were only made by the mother and the Independent Children's Lawyer.
THE ISSUES
With the assistance of the parties, I identify that the following are the major issues in the case, in that their determination is likely to substantially shape the outcome of the proceedings. They are as follows:
1. What risk does the father pose to the children.
2. Does the father have the capacity to be the primary carer of the children.
3. What would be the effect upon the children of a change in primary care.
4.What benefit is there in the children spending time with the father, and if any, how can that benefit best be facilitated.
5.Will the mother ever promote a relationship between the children and father.
6.Will the father ever promote a relationship between the children and mother.
7. Will the parties ever be able to communicate effectively.
Once I have discussed the relevant statutory provisions and legal principles, I will consider those issues in advance of a general traverse of the s 60CC considerations, and then consider what specific parenting orders are in the best interests of the children.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is also potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. They are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Moreover it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
WHAT RISK DOES THE FATHER POSE TO THE CHILDREN?
Overview
The mother asserts that the father is an unacceptable risk of both physical and emotional harm to the children if he were to spend time with them. She says that derives from, in large part, his personality, as affected by his acquired brain injury. As to the physical risk, she particularly points to the events of 16 August 2014, as demonstrating that the father does not have the capacity to properly care for the children. As to emotional risk, she particularly points to the father’s anger and hostility which seems to be regularly played out in front of the children, at least insofar as it involves him interacting with the mother. It is therefore useful at the outset to discuss in detail the father’s personality and medical issues.
The father’s injury and its effects
From the discharge records of the T Hospital, it is clear that in the 2007 accident, the father suffered a compound depressed skull fracture. The depressed aspects of the skull were elevated and “dural tear exposed and all subdural clot and devitalised brain tissue sucked out, small extradural blood also removed.” It appears as though about a five centimetre portion of his brain was removed. He then attended the F Town Hospital and in a report by a specialist to the father’s GP dated 2 October 2007, it was said:
[The father] continues to report high levels of anxiety, with disabling anxiety effecting him several times per day. This anxiety is not specific but he readily becomes very anxious with a perception of any abnormal symptoms such as of normal sounds, minor difficulties with vision as well as instances where he loses his concentration, forgets things or has difficulty controlling his emotions. He also experiences disabling headache which incapacitates him several times a week.
After discharge he was referred to Adult Mental Health Services, but was discharged from that service on 30 June 2009 for refusing to participate, and particularly by failing to present to doctors’ appointments and scheduled case management meetings. His case was reviewed again in 2010, and a further report from the specialist, Dr U, was provided on 2 August 2010. That report noted that the father was “more agitated than usual” and was seeking assistance with “relaxation”. However presciently Dr U concluded:
My major concern at present is [the father’s] ability to cope with the usual aggravations associated with an adversarial legal process, particularly involving access to children.
For the purposes of these proceedings, the father was examined by a psychiatrist, Dr G, who provided a report dated 27 April 2011. In that report he opined that the father’s injury in 2007 was a significant event and effected considerable change in the father. Particularly Dr G is of the view that the father presents as very self-righteous and argumentative.
In his report he said at [63]-[71]:
63. However, keeping in mind the way he presents and the other documentation I have read and the fact he’s had this significant brain injury and there are several statements in the documentation that he’s had acquired brain injury with frontal lobe problems, I have to say that I believe him to have quite significant residual impairments associated with the brain injury.
64. Now I can’t say with any authority how he was functioning before the brain injury. But it certainly seems that there were some problems in the relationship and he was very insistent about sex et cetera and very assertive.
65. But it certainly seems – from the documentation – that there has been quite marked change in his behaviour since the time of the head injury.
66. It may well be that the head injury simply made certain aspects of his personality much more prominent.
67. But nevertheless on the basis of the information I have read I would have to say that it is most likely that he has very significant residual behavioural problems associated with his brain injury.
68. I couldn’t help but note in the documentation there is reference to him being insightless and if we accept the other documentation and information and evidence and his statement there’s nothing much the matter with him, then it’s quite clear that he is really quite insightless.
69. I am afraid I think the critical issue is his acquired brain injury. Were it not for that he might be a somewhat difficult fellow although I can’t say that with confidence – but I think with this acquired brain injury he is considerably different; he doesn’t really know when to stop; that he does have a problem with impulse control; he does get angry and I can well imagine that it has created problems in his relationship and that’s led to the separation.
70. In my reading of the documentation, the evidence about his behaviour is really quite persuasive and certainly justifies the mother’s concerns.
71. In my view of his reported behaviour and the understanding he has an acquired brain injury I am afraid I think it is appropriate that he have supervised contact only into the foreseeable future.
Under cross-examination, Dr G emphasised that is was the father’s anger which made him concerned about the risks which he poses. His evidence was that the father demonstrated underlying rage with a loss of insight and control. He recounted that the father himself had described him as suffering from a “non-stop syndrome”. He said he was not surprised that the father had been unwilling to engage in the counselling. When told that in fact the parties had consensually moved to the children spending unsupervised time with the father, he expressed concern that the father’s hostility and rage may be “rubbing off” on the children and affecting them unless they were being appropriately protected from it.
In cross-examination by the father Dr G conceded that in all family law matters in which he was involved, he kept an open mind as to who was telling the truth, and emphasised that he was not a trier of fact. He was pressed as to what he meant when he described the father as hostile. He said that that was demonstrated by the rage which he said emerged from the father’s SMS messages that were by then before me in evidence. He described the father as extremely angry and hostile with a high level of rage. He did not suggest that the father posed a physical danger to the children, but said that the critical issue was how much anger the father had and how it “rubs off” on the children. He said that rage and anger around children was destabilising for them. Whilst he accepted that the mother may also be angry, he said that was much less of a feature, and was more in the nature of frustration.
The father further cross-examined Dr G as to whether his anger was justified. Whilst Dr G said he was not unsympathetic to the father, he said that the critical issue is the fact of the rage and the level at which it is being expressed.
As to the father’s lack of insight, he emphasised that this particularly related to the effects of his rage. The father suggested that perhaps some part of his anger might be generated by his culture and family values, but Dr G emphasised that whatever its source, the problem was the effect of the anger upon the children.
Later in his cross-examination Dr G emphasised that, as he had said earlier in his report, simply based upon the father’s presentation on the day, he would not have identified that the father suffered any problem, but rather his opinion was based upon his perusal of the other documents, particularly the communications between the mother and father. The father inquired of him as to how, from a psychiatric perspective, he could help. Dr G said that the best that could be hoped is that the father would become aware of his anger, appreciate that it was a negative, and would made a decision to “back right off.” By that he explained that the father should accept the level of time he presently has with the children, and use it in a good way rather than a negative or angry way. Time and time again he emphasised that his concern lay in the father’s level of anger and the likelihood that it would impact upon the children because it was difficult to protect the children from it. He expressly disavowed that being exposed to anger can be of any sort of assistance to children whatsoever. Although he conceded that it was possible the father could protect the children from his anger, he said that it was nonetheless highly likely to “rub off” on them.
Mr S also gave some evidence relevant to this. He said that already the children were showing signs of “adjustment difficulties” and opined that their emotional capacity and robustness will be increasingly tested over time if they continued to be exposed to the parental conflict.
The father was also assessed by the Family Report writer, a psychologist, Mr S. He administered tests upon the father which discerned that he may not have answered the test in a completely forthright manner, and had a notable tendency to present himself in a consistently favourable light. Likewise, he tended to repress or deny distress.
At paragraph 133 of the Family Report, Mr S said as follows:
With respect to anger management, [the father] described himself as a very meek and unassertive person who has difficulty standing up for himself, even when assertiveness is warranted. Individuals with similar score patterns often have some difficulties with the appropriate expression of anger.
Although Mr S was of the view that the father suffered no diagnosable psychiatric condition, he “did evidence significant anxiety and distress concerning the content and protracted nature of family law proceedings to date.”
Ultimately he recommended that the father (and mother) undertake psycho-educational therapy. At paragraph 161 he set out his reasoning for that recommendation as follows:
161. In essence, the writer recommends that a particular protocol of intervention is necessary; and is based on assessments informing that both parent (though differentially):
·Experience practical, attitudinal and thinking difficulties in separating their own needs from those or their children;
·Continue to have unresolved personal and relationship issues that also limit their parenting generally; and that such may extend to emotional availability and nurturant capacities;
·Have developed minimal and entrenched communications; hallmarked by an over-reliance and fear of the legal process; particularly strategic elements; and in particular, remain engaged in a passive-aggressive stance toward each other;
·Require psycho educational assistance to effectively improve individual and co-parenting capacities; or to at least develop appropriate communications and reasonable expectations of each other.
Pursuant to the 2 October 2013 consent orders a psychologist, Mr R administered the therapy. He conducted five sessions with the parties between 17 October and 10 December 2014, although one session was solely with the father. He expressed the results and his opinions as follows:
4. The parties’ motivation to work together waned towards the end of these sessions as their considerable differences and animosities continued to be raised. It seemed clear that they had difficult communication patterns and their previous and current dispute interfered with their ability to work effectively together. I considered that both parties perceived the value in being able to work together, but they were unable to do so.
5. The parties were committed towards working together and at times demonstrated limited capacity to do so. Their animosity and poor communication prevented them from exercising their commitment towards working together.
6. It was my opinion that it would be possible for them to share the parenting but this would continue to be difficult for them both, and it seemed likely there would be further episodes of conflict and misunderstandings which would interfere with shared parenting efforts.
In his oral evidence Mr R identified that, in his opinion, the mother was the trigger for much of the father’s emotional display and anger.
Mr S gave further evidence before me when the trial resumed after the failed attempt at counselling by Mr R. He then said that he thought that the risks to the children were embedded in the parent’s relationship rather than in either individual’s pathology.
It has to be accepted that the father presents as angry, agitated, domineering, and on occasions aggressive. All of those traits were fully observable by me during the course of the trial. Undoubtedly he is a very difficult person to deal with, and he does on occasion adopt extreme positions which demonstrate no flexibility. I have little doubt that any interaction with the mother triggers the very worst display by him of these traits.
Physical harm
The physical risk which the father is said to pose to the children’s physical safety is on two fronts. The first arises from his use of physical discipline upon the children. The second arises as an incident from his anger and impulsiveness, and probably reached its zenith in the events of 16 August 2014.
There have consistently been reports of physical discipline of the children by the father. Relevant to this is a report prepared by a family consultant, Ms W, arising from an attempt to reintroduce B to the father. Interviews were conducted by Ms W with the child on 20 November 2014. In her subsequent memorandum, she said that B identified that she had witnessed violence between her father and Ms P and between the father and his ex-partner. She further reported that the father uses physical punishment upon her and C when disciplining them, and had threatened to kill her and particularly “cut me to death.” She reported that her father had attempted to drown D by pushing his head underwater approximately five times. She further said that her father was “always angry” and that he says and does things which scare her. She particularly recalled the episode during which the police arrested her father and other occasions when he had attempted to take her from school.
She was specifically recorded as having said as follows:
[B] stated “when I back chat him, he is really mean” referring to her father. [B] stated that her father hits herself and her brother [C] with his hand on their arms, thigh and bottom. She stated that her father also hits her and [C] on some occasions with a belt.
When asked what would need to be different to enable her to feel safe to spend time with her father [B] stated “not angry anymore – no hitting”, she then stated she was most nervous about spending time with him at night.
However with one exception there do not appear to have been any allegations raised of actual physical harm suffered by the children consequent upon the administration of any corporal punishment. The exception is the allegation by Ms P that on 16 August 2014 the father “forcefully hit” her in the chest area causing her to fall over.
The evidence of the children’s counsellor, Ms X, is also relevant to this topic. She conceded that her role was purely therapeutic, and not forensic. Part of her therapy involved the children doing drawings. She interpreted those; on occasion she interpreted them as demonstrating anger, for instance when C drew his family without faces, but in red. I am afraid but I confess to considerable disquiet in relation to such interpretations.
Moreover it appeared to me that Ms X was heavily emotionally invested in the children, to the point where she broke down and cried whilst giving evidence. She also appears to have been in regular email communication with the mother. In many of those, the mother is plainly providing a partisan history in relation to the father and his actions. I place little weight on her evidence and particularly the specific content of what the children allegedly disclosed to her, save that it appears as though the children have regularly expressed some fear of the father’s discipline to her, have regularly expressed their experiencing the father’s anger and that they themselves report feeling angry. Upon analysis, that is consistent with much of the other evidence in this case.
I am satisfied that from time to time the father does physically discipline children, and when angry, may do so with force. However the evidence falls far short of satisfying me that, on its own and without more, the father presents an unacceptable risk of physical harm to the children consequent upon his administration of physical discipline, such that his time with them could only safely occur if supervised.
Turning then to the father’s anger and impulsive behaviours, perhaps the most serious episode was the 16 August 2014 events which started with verbal disagreement between the father and Ms P. It appears as though a neighbour hearing the dispute called the police. The father refused to respond to police requests to open the door, despite police seeing him only several minutes earlier and the lights on the house then being turned off. Notwithstanding repeated knocks and calls, the father refused to answer the door and police used a sledgehammer to gain entry into the dwelling. The two boys were observed by police to be asleep in the lounge room whereas the father was in his bedroom with B. The father’s version of events is that he did not deliberately refuse to answer the door but was unaware that the police were seeking access. In his cross-examination he seemed to say he was under the influence of sleeping tablets. I do not accept that evidence.
The father has also impulsively on several occasions now sought to take the children from their school without any forewarning to either the school, the children or the mother. On occasions this has led to the police being called. However thus far the father has in all of those situations not placed the children at risk of any physical harm, and there is no reason to think that he would be disposed to do so.
In her interview with Ms W, B recounted a specific instance of the father having an argument with his ex-partner in which she took a large knife outside of the unit to meet the father. However it was the partner, not the father, who seems to have been acting inappropriately on that occasion.
Again the evidence does not satisfy me that the father’s anger and impulsiveness presents an unacceptable risk of physical harm to the children if he were to spend unsupervised time with them.
Emotional harm
Virtually ever since separation, the father has been angry, hostile and argumentative with the mother. Despite the father’s denials, it is plain that this has been played out in front of the children. It is no exaggeration to say that all three children have grown up – and remain growing up – in the cross fire of the hostility between their parents. Moreover, the father, and perhaps the mother too, remain quite insightless as to the adverse emotional impact which the children’s exposure to anger, hostility and conflict has upon them.
I am satisfied that the 2007 accident is likely largely to blame for the father’s angry behaviour. His anger and rage cause him to become obsessed. In a sense, his undoubted intelligence, when coupled with his anger, is a disadvantage to him. He has become plainly obsessed with this litigation, and what he perceives to be the injustice of it. However because he views the conflict from his perspective, and probably from a rights-based, winning-or-losing approach, he has not stopped to think of what damage it is doing to the children. To the extent that he may have thought about it, it is only to try and deflect blame for the situation to the mother.
The evidence is littered with many instances of the father’s self-obsessed, angry, non-child focussed behaviour. The most notable are the events of 16 August 2014, and the father’s most recent and appalling attempt to physically remove B from school so as to force her to spend time with him. There are, however, many more.
I accept both the evidence of Mr S and Dr G that children who are exposed to the sort of hostility, anger and conflict such as exists between these parents suffer real emotional damage in consequence. Already the effect of that can be seen on B, who has voted with her feet – again as recently as July of this year – to have nothing further to do with the father. Far from heeding the advice of Dr G to take a backward step, the father has kept firmly on the front foot. He is angrily obsessed with vindicating what he believes to be his rights. He is obsessed with defeating the mother. He is strongly litigation focussed. However his anger and lack of insight substantially erodes the value which the children would otherwise obtain from his undoubted love and affection for them.
I am satisfied that the father presents a real and significant risk of emotional harm to all three children. However I am not satisfied that that risk is of a kind that it is unacceptable in every circumstance. Particularly I am satisfied that the extent to which the father poses such a risk to the children is directly proportionate to the amount of time he spends with them. If he were to reduce the time which he spends with the children and hence their exposure to his anger and conflict, ironically their relationship with him is likely to improve rather than decay. However the father appears oblivious to that possibility in his campaign against the mother.
That is not to say that the mother does not contribute to the chaos. She does. Ordinarily one might feel inclined to attribute at least equal responsibility to her for the situation. However the father is an extremely difficult person to deal with. He is obstinate, inflexible and on occasions, extreme. Whilst he may have had those characteristics prior to the 2007 injury, it seems plain that it exacerbated them. The father is simply not amenable to reason. I have little doubt that the mother has found engaging with the father a most difficult and daunting prospect since the 2007 injury. Therefore whilst I do not wholly absolve the mother from responsibility for the parental conflict, I certainly do assess the father as being largely responsible for it.
WHAT RISK DOES THE MOTHER POSE TO THE CHILDREN
No party suggested that the mother posed any risk of physical harm to the children. Rather it appears as though the father structured his case in a way to assert that she was attempting to alienate the children from him, and to that extent posed a risk of emotional harm to the children. However the father did not propose, on any of his scenarios, that the children should not spend substantial time with the mother, or that her time with them should be supervised, and indeed on frequent occasions the father asserted that an equal shared care arrangement should prevail.
In my view, the mother has on occasions either provoked or over-reacted to the father (for instance regularly involving the police) but as I have previously indicated, the father has been a very difficult person to her to engage with in relation to the children after separation.
The mother is not an unacceptable risk of harm to the children.
DOES THE FATHER HAVE THE CAPACITY TO BE THE PRIMARY CARER OF THE CHILDREN
The father’s injury sustained in 2007 has dramatically affected him in many respects. Plainly some of these have impacted upon his capacity to adequately provide care for the children.
However the real problem is the father’s anger and impulsive behaviour. Whilst these may not affect the father to the extent that he cannot feed and clothe the children and attend to their bodily needs, it does cast serious doubt over his capacity to make proper decisions in relation to them and to provide child focussed care for them.
EFFECT UPON CHILDREN OF A CHANGE IN PRIMARY CARE
Mr S’s evidence was that a change in primary care always effects some need for adjustment in children. That said, he noted that children can be remarkably flexible. In this case he said that the children were attached and strongly bonded to both parents. They would likely remain attached to both parents were there to be a change in primary care. I accept that evidence. However I am also satisfied that the father’s approach to parenting is quite different to the mother’s, and there would be some considerable dislocation in the children’s lives.
BENEFIT IN CHILDREN SPENDING TIME WITH FATHER AND HOW BEST FACILITATED
Mr S’s evidence was that as a general proposition, children gain benefit from access to both parents. Particularly he said that during their teenage years, children have an increased need for same sex identification as part of the formation of their identity. He said that children develop best if there is plenty of opportunity to see appropriate mother/father relationships on display. He said that this is best experienced through their own parents.
Here plainly both of the boys enjoy spending time with their father, whereas of recent times, B has not.
Leaving aside his anger, the father has much to offer these children. His world experience is considerable. He is also their gateway to experiencing and understanding their Country S heritage. I have little doubt that when he is not demonstrating anger, he presents as an exciting experience for the children, and no doubt he has a sense of fun and play which on occasions comes to the surface in his relationship with them.
However unfortunately, one cannot just leave aside the father’s anger. I have already discussed in detail the adverse effects which it has upon the children and noted that ironically, a reduction in time might affect a better relationship. That is because as I have indicated, in my view the risk of harm which the father’s anger poses to the children is directly proportionate to the amount of time he spends with them.
The key to maximising the benefit which the children obtain from their relationship with the father is to seek to diffuse the father’s anger towards the mother. Unfortunately that was tried in the October 2013 consent orders which were, it is clear, an abject failure. Far from the parties improving their communication, the sessions became a fresh battle ground for conflict. It appears as though the father may never let go of his anger towards the mother. Unfortunately that means that he is likely to continue to demonstrate that anger when the children are with him, and I do not accept his denials that the children have thus far been shielded from his anger. It is plain from their statements to the several interviewers that they are well aware of their parent’s conflict and have been monumentally embarrassed on occasions when the father has demonstrated that conflict at school or sporting events in front of their peers.
Moreover in evidence before me where some recordings of the father engaging with one or more of the children. In them, often he proceeds by way of interrogation of them about the mother and events which he is concerned about pertaining to her. It is particularly unsubtle. The children could be left in no doubt that the father actively dislikes the mother. The fact that the father introduced these into evidence – apparently thinking that the children’s utterances which he was able to eventually badger out of them, would help his case – just serves to underline his lack of insight.
There is no magic formula as to how the father’s relationship with the children can best be facilitated without exposing them to the risks associated with his anger. However plainly the present regime of orders which sees the father spending time with the children on alternate weekends (accepting that B has not been there since August 2014) is not working. The parties’ conflict is still monumental. The children are still being exposed to it. The father is still relentlessly pressing his agenda. He refuses to take the backward step recommended by Dr G.
In his oral evidence, Mr R did acknowledge that some children do endure – and cope with – share cared in the face of parental hostility (for instance by changeovers being effected by them walking across a park between the parents who cannot be trusted to even come within earshot of each other) however he accepted that this was inevitably exhausting and frustrating for the children.
I am satisfied that the best means of facilitating the children deriving benefit for their relationship with the father is for them to spend regular time with the father, but in circumstances which sufficiently protect them from his anger. That may best be achieved by limited blocks of regular time.
WILL MOTHER EVER PROMOTE RELATIONSHIP WITH FATHER
Ordinarily one would legitimately think that a parent who sought orders that the other parent neither spend time nor communicate with their children would not be willing to facilitate a relationship. However the mother only reached that position after a lengthy litigious journey, and indeed her Initiating Application still seeks orders which would see the father spend unsupervised time with the children. She has, despite all of the hostility between her and the father, supported the children spending time with her father. Even as evidenced in the October 2013 orders, recognising the need for improved parental communication, she – albeit perhaps reluctantly – agreed to a regime of joint counselling designed to improve communication, no doubt so as the co-parenting relationship could improve.
I have little doubt that the mother is exasperated by the father’s often unreasonable and unremitting conduct towards her. Likewise I have little doubt that protecting the children from the conflict between herself and the father is what primarily motivates her present position in relation to final orders, rather than a simple desire to rid the father from her and the children’s lives.
That said I am confident that on occasion the mother does know precisely which buttons to push for the father to get him to react and does succumb to the temptation to push them. But there is a considerable difference between that, on the one hand, and not facilitating a meaningful relationship between the children and the father, on the other.
Indeed this was best illustrated when during the course of addresses. I raised with counsel for the mother the prospect of the father’s time with the children being reduced, but remaining unsupervised. Far from resolutely resisting such a proposal, via her counsel, the mother indicated that she “could live with” such an arrangement. To my mind that speaks not of a parent who is begrudging of time between other and their children; rather it shows a person whose patience has been tested to breaking point, but who nonetheless recognises the benefits to the children of the relationship with the father.
WOULD THE FATHER PROMOTE A RELATIONSHIP BETWEEN THE CHILDREN AND MOTHER
It seems to me that the answer to this question is a vexed one. On one level the father would be prepared to tolerate the children maintaining a relationship with the mother, but I fear that it may largely because he would use that relationship to continue to vent his hostility and anger towards her. However ultimately this issue was not substantially pressed by the mother, and in the circumstances I am not persuaded that the father would not promote a relationship between the children and the mother.
WILL THE PARENTS EVER COMMUNICATE EFFECTIVELY
The sad fact of this case is that the answer to this question must be a resounding no. These parents do not have any realistic prospect of ever being able to communicate in a child focussed way that is not dominated by anger, hostility and conflict. That much has been borne out by the failed attempt to counsel them into proper communication. Unfortunately it appears as though these parents are doomed to a lifetime of conflict in relation to the children.
SECTION 60CC CONSIDERATIONS
In discussing the issues, I have necessarily dealt with many of the s 60CC considerations. However by reference to them, I make the following further observations.
I am satisfied that the children would benefit from an ongoing meaningful relationship with both of their parents. However the difficulty in the case of the father is to facilitate that relationship in a way that does not expose the children to an undue risk of emotional harm from the father’s anger and hostility.
The children have expressed views in relation to their preferred parenting arrangements. B’s view is plain: she wishes to have nothing more to do with her father at this point in time. Perhaps time will heal that, but I give her views real weight, particularly given that they appear to be primarily borne out of the events of 16 August 2014. On any view that would be a terrifying experience for a young girl, and would substantially erode her faith in the father to properly and safely care for her. Moreover the father’s repeated attempts to cajole – or force – her into spending weekends with him have only again exposed her to not only parental conflict, but the humiliation of it being played out in front of her peers at school. I have little doubt that she was being truthful when she told Ms W that if she was to forced to spend overnight time with her father she would run away.
As to the other two children, C has expressed some desire to spend more time with his father, and D has strongly expressed that view. I give C’s views some weight, but in the case of D, given his age, I do not. He does not understand the risk which the father poses to him from exposing him to the parental conflict and particularly the father’s anger.
The children appear to have good relationships with both of their grandmothers. The father is the only means by which the children will experience their Country S relatives, given that as I understand it the mother is not fluent in Country S and the Country S relatives not fluent in English.
The father has poor history of child support payments. At present he is assessed at a fortnightly payment of $5.26, but even still he has arrears of $901.79. He has not made proper contribution towards the costs of raising his children. In part that is likely because he sees his obligations as best being fulfilled by him meeting those costs while the children are in his care, accepting that he would like that to be at least 50 per cent. However that does not justify his failure to properly contribute to the costs of raising the children when they have been primarily in the mother’s care.
There are present family violence orders in place and there have been both interim and final orders in place over the years. The only inference which I draw from those is that the father behaves in a hostile, angry and conflictual way when forced to interact with the mother, particularly involving the children.
Plainly this litigation needs to come to an end. These parties have now been separated for more than five years. They have been in trial for nearly two years. This is a factor to which I give considerable weight.
PARENTAL RESPONSIBILITY
Both parties alleged that the other was domestically violent to them. The father concedes – albeit he appears to claim it was justified – that during the relationship he struck the mother’s thigh with sufficient force to leave visible bruising. I am therefore satisfied that there are reasonable grounds to believe that there has been family violence between the parties, and hence the presumption of equal shared parental responsibility does not apply. Even if I am wrong as to that, these parties cannot possibly even begin to negotiate in good faith towards resolving or making decisions about them, with the likelihood - or even certainty – that further litigation would ensue. It would not be in the children’s best interests for these parties to be required to perpetually war over either major or niggling minor matters about the children. One parent must have sole parental responsibility. Anything else would be utterly unworkable. It should reflect the primary residence of the children.
There is one exception. There is evidence that the mother causes the children to be known, at times, as “Graham” rather than “Kovacs.” Neither parent should be permitted to change the children’s surnames.
WITH WHOM SHOULD THE CHILDREN LIVE
The following points tell in favour of the children living with the mother:
·She has always been their primary carer;
·She appears to have a good track record of medical and educational involvement with the children;
·B refuses to presently spend time with her father, much less live with him. No party contended that there should be a separation of the siblings’ primary residence;
·The father presents as some risk of harm to the children arising from his use of physical discipline;
·The father’s capacity to emotionally provide for the children is dubious at best;
·The father presents as a risk of emotional harm to the children from exposing them to his anger, which risk is proportionate to the amount of time he spends with them;
·The father has no insight as to the effect on the children of the anger which he demonstrates both towards the mother, and generally, or the adverse consequences to them of being exposed to it.
Unfortunately I can identify no considerations in favour of the children primarily living with the father, other than it would maximise their exposure to him. However as I have indicated earlier in these reasons, maximisation of exposure is contra-indicated given the risk which the father poses to the children, and would not best facilitate their relationship with him.
As to the prospect of equal shared care, Mr S opined in his oral evidence that any attempt at shared care as proposed by the father would be disastrous. He later said that he simply “couldn’t entertain” the idea of shared care in this case. I accept that evidence.
In my view the best interests of the children clearly lie with them living with their mother.
TIME WITH THE FATHER
The following points tell in favour of the children continuing to spend time with the father:
·They would clearly benefit from having a relationship with him and particularly it will assist them in developing their identity as they move into adolescence;
·Both of the younger children have expressed a desire to spend time with the father, and in the case of D, to increase the amount of time;
·The father represents the only real opportunity for the children to understand and experience their Country S heritage.
On the other hand the following points tell in favour of the mother’s primary proposal:
·The father’s obsessional anger with the mother is likely to continue, and there is a real risk of emotional harm to the children in being continually exposed to that;
·Her proposal would wholly protect the children from any risk of harm posed to them by the father.
In my view the weighing of those factors lie in favour of the children maintaining some form of relationship with the father. In so observing I am particularly mindful of the principles expressed in s 60B(2).
The question then becomes at what level should that relationship be maintained. This is not a case where the best interests of the child lie in spending equal time with the father, or substantial and significant time with him. I say that because of the magnitude of the risk which the father poses to the children from exposure to his anger, his use of physical discipline, and his doubtful capacity to provide for their emotional needs.
I have given some consideration as to whether, particularly given Dr G’s view in relation to supervision, the father’s time with the children should be supervised. However not only do I suspect that the father is not a good candidate for Contact Centre supervision, which would probably be withdrawn upon the nigh inevitable demonstration of anger by the father, but there is also the difficulty that the children’s experience of their father would be in other than a home environment and hence somewhat artificial.
There is probably no ideal solution to this case. However I am provisionally of the view that the best interests of the children lie in spending something in the order of four hours each alternate weekend with the father, save that is should be optional for B. However I am satisfied that to avoid the children being exposed to the parents’ conflict the changeovers should be effected at the F Town Contact Centre, and more, that the time should be spent on Sunday rather than on Saturdays so as to enable the children to meet any sporting commitments which they may have. Moreover in my tentative view it is appropriate that the time should be so structured as to enable the father to spend some part of Sunday afternoon with the children, perhaps ideally sharing a meal with them. Providing that the Contact Centre can facilitate it, I have provisionally concluded that the appropriate regime of orders would be for the children to spend time with the father between 11:00pm and 3:00pm, acknowledging that that would require them to be dropped off at the Contact Centre at 10:30am and picked up from it at 3:30pm. Subject to what follows, I am therefore inclined to make orders to that effect. In any event there will be liberty to apply if such times as I may order cannot be accommodated by the Centre.
The practical difficulty in making those orders is that I have not given the mother an opportunity to make submissions in relation to such a regime. I did, during the course of argument, raise the prospect of monthly, rather than fortnightly visits, however I will allow the mother seven days to make any submissions she may wish to make in relation to fortnightly visits. I should say that part of the attraction of fortnightly visits is that if the father’s time was restricted to monthly visits only, it is likely that a communication regime would also be required, but as shall be seen, if there are fortnightly visits, I am of the view no orders in relation to communication are required.
I have also given some thought as to whether there should also be orders for the children to spend some time with the father on special days such as Christmas, Easter, birthdays and Father’s Day, to the extent that those days do not fall on occasions which the father would otherwise be spending time with them. The difficulty is that if the children’s or father’s birthday falls on a school day, getting the children to and from a Contact Centre before it closes is likely to be problematic. It is also highly likely that the Contact Centre would not be open on Christmas Day and Easter Sunday. However I am provisionally satisfied that in the event that the father can identify a suitable alternative person or venue where the mother can drop the children off and the father can pick them up, he should be permitted to spend three hours of time with all of the children (noting that B will not be coerced by any such orders). The time should be of his choosing save that they should not be during school hours nor after 8:00pm at night. The mother should not be able to unreasonably withhold her consent if the person or venue is indeed reasonably suitable for effecting non-conflictual changeovers. Again, however, since this was not a matter raised by me during the hearing, I will give the mother seven days to make any further written submissions on this matter.
I should also specifically explain why, upon balance, I am of the view that the children spending overnight time with the father is not in their best interests, at least at present. Particularly:
·It seems plain that B will not participate in overnight time, but if four hours of day time is on offer, and the boys are attending it, it is more likely that she will work towards re-establishing her relationship with her father, given the likely increased perception of safety;
·It will limit the father’s opportunity to expose the children to his anger or to physically discipline them;
·It will minimise the prospect of the children being exposed to conflicting or divergent regimes of medical care (in which regard I should note that the parties have proved incapable of any responsible communication in relation to medical issues pertaining to the children);
·It may serve to limit the mother’s anxiety at the risks which the children are exposed to when spending unsupervised time with the father;
·As I have previously noted, ironically the children’s experience of the father is likely to be improved by less time rather than more time.
Finally I should say that the reasons which persuade me that the father should not spend overnight time with the children apply with stronger force in relation to any suggestion that he should have block holiday time with them.
COMMUNICATION
In my view if there is regular alternate weekend time, that will be sufficient to enable the relationship between the father and the children to be maintained and for them to obtain the benefits of that relationship. Further, the father is likely to use any telephone or Skype communication in a way to engage with the mother, and in any event such communication is likely to require the parents to continue to interact, at least at the beginning and conclusion of the call. The need to restrict the children’s exposure to parental conflict outweighs any benefits to them from a communication regime.
OTHER ORDERS
During the course of submissions I discussed with counsel for the Independent Children's Lawyer and the mother whether the father should be precluded from attending the school. Plainly he has made a nuisance of himself there on many occasions. On other occasions he has attended the school to meet with the children without the mother’s knowledge. Videos of his interacting with them (taken by the father) were tendered into evidence. His attendance confers no educational benefit on the children. It may have some emotional benefit for the father, but I have the distinct impression that the videos were made only to generate evidence for the trial. Whilst I am satisfied that the father should be able to seek and obtain information and school reports, he should not be permitted to attend upon the school unless first requested by the school to do so. There will be an order to that effect.
PROPERTY PROCEEDINGS
In the property proceedings the mother self-represented. The father did not appear, nor lead evidence. Although in her Amended Initiating Application filed 12 September 2013, the mother sought a suite of orders dividing the parties’ property, ultimately before me she simply pressed for an order that the father be responsible for 50 per cent of a debt to Westpac. That debt arose because the mortgage sum exceeded the sale price obtained when the mortgagee bank exercised its power of sale and sold the former matrimonial home. Otherwise she sought that the parties retain the property presently in their possession.
The pool is very modest, comprising a 4WD motor vehicle said to be valued at $10,000.00 in the wife’s possession, a hatch back said to be worth $5,500.00 in the husband’s possession, and a motor scooter said to be worth $1,500.00 also in the husband’s possession. In addition the wife says she has $1,000.00 worth of household contents, and the father asserts that he has $7,000.00 of such chattels. That is the full extent of the pool, save that the wife has superannuation said to be worth $4,500.00 in her name, and the husband has superannuation said to be worth $2,136.85 in his name.
The wife deposed in her Financial Statement filed 12 September 2013 to having liabilities of $58,800.00; $47,000.00 of this was attributable to her share of the liability to Westpac, with the balance being personal loans and credit card liabilities. The father conceded in his Financial Statement filed 30 September 2013 that he had a liability of $47,000.00 being 50 per cent of the Westpac liability, but also asserted a $30,000.00 debt to a friend and $2,700.00 worth of credit card liabilities.
Neither party updated their Financial Statement, but on the final day of trial the mother did give some updating evidence and tendered some documents. They showed that as at February 2015 the outstanding balance due to Westpac was $73,246.50, which the wife was repaying at the rate of $25.00 per week.
It can therefore be seen that the parties’ financial position is a negative one, with net debt of $86,119.15 (even after treating superannuation as a vested asset).
The husband had a greater initial financial contribution to the relationship by virtue of a US$70,000.00 property settlement arising from the breakdown of his marriage with the first wife in Country S. However the mother says that a lot of this money was spent on study expenses in the United States and the father only had about AU$20,000.00 remaining when they came to Australia.
At the commencement of the relationship the wife had a car and a $12,000.00 insurance payout.
After the parties returned to Australia the wife was the primary income earner because the father was unable to work due to visa restrictions. However from about February 2004 onwards he was in receipt of some earnings, initially in Sydney and then in North Queensland in his business. However the business always ran at a loss, and it was doing so when the father was injured in February 2007.
Although the evidence is not strong, the impression I have is that the wife has been the primary income earner in the household during the course of the relationship.
Just prior to separation the husband transferred $29,000.00 from the home loan account to his personal account, for purposes which are not explained on the evidence. Then at separation, the father transferred a further $36,000.00 from the home loan account to his personal account. None of these funds appear to be presently represented in any asset or bank account under the husband’s control.
As to s 75(2) factors, under the parenting orders the wife will have the primary care of three children. The husband continues, it appears, to undertake some casual work for which he is remunerated in cash. I have no evidence as to the amount which he would receive from that business per year, nor the expenses which he would incur in earning that income. The wife is not presently in employment, but she would appear to have the capacity for employment.
Plainly a relevant s 75(2) factor is the husband’s state of health, and more precisely his brain injury. That would almost certainly preclude him from employment in most fields.
Given the lack of current information in relation to the father’s financial position, it is idle to try and express the mother’s proposal as a percentage division of assets, particularly given that on any view the parties’ position is likely to be one of net liability. Ultimately is it the final outcome which must be just and equitable.
I am satisfied that it is just and equitable that the parties should be entitled to retain such chattels as are presently in their names of under their control, and that the husband should remain liable for 50 per cent of the present outstanding debt arising from the shortfall on the sale of the former matrimonial home. There will therefore be orders to that effect.
CONCLUSION
For these reasons there will be orders substantially as set out at the commencement of these reasons, save that I will defer making them at this time pending the mother, if she so wishes, availing herself of the opportunity to make written submissions as to the proposed fortnightly time, and the proposed orders in relation to the children spending time with the father on special days.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 October 2015
Associate:
Date: 21 October 2015
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