GRANT & GRANT

[2011] FamCA 298

FAMILY COURT OF AUSTRALIA

GRANT & GRANT [2011] FamCA 298

FAMILY LAW - CHILDREN – Parental responsibility – meaningful relationships – where the children have grown apprehensive of or do not wish to spend time with the father – the children’s relationships with the father have deteriorated and are no longer meaningful – the father has anger issues – the father has propensity to behave aggressively towards the mother – the father’s behaviour has capacity to constitute family violence – where the father has undertaken psychological therapy and educational courses – the father has not shown real or genuine change – children at risk of psychological harm as a result of the father’s behaviour – where the mother remains willing and able to facilitate relationships between the children and the father – the mother inappropriately involved the children in the parties’ child support matters – the mother is aware this involvement was inappropriate – sole parental responsibility allocated to the mother

FAMILY LAW - CHILDREN – With whom a child spends time – where interim orders were in place for the children to spend supervised time with the father – Grant & Grant [2010] FamCA 534 – interim orders designed to assess the viability of final orders for the children to spend time with the father – review of interim orders – where the children only spent time with the father in accordance with interim orders on one occasion – views – where the children no longer wish to spend time with the father – supervised time – where appropriate supervisors are not available on an indefinite basis – no orders are made regarding the children’s time with the father – children’s time with the father is at the discretion of the mother – weekly telephone communication

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Grant

RESPONDENT: Ms Grant

INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke, Legal Aid NSW

FILE NUMBER: NCC 1053 of 2009

DATE DELIVERED: 05 May 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 29 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Garrick, Barbara Garrick & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW

Orders

1. All former parenting orders in respect of the children L, born … May 2001, and G, born … September 2002, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The father is restrained from attending:

   (a)       The home of the mother and children, and

   (b)       The schools at which the children are enrolled.

5. Each of the parties shall take all reasonable steps to ensure that the children communicate with the father each Tuesday, between 7.00 pm and 8.00 pm, and for that purpose the father shall telephone the children on the mother’s landline telephone, and the mother shall ensure that the children are able to receive the father’s calls at that time and encourage them to each speak with the father.

6. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

   a)By the father being able to send letters, cards, and/or gifts to the children on or about the dates of their birthdays, the father’s birthday, Father’s Day, and Christmas Day, and

   b)By the mother promptly sending to the father:

   i)Written acknowledgement of receipt of the father’s written communication, and

   ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

7. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

8. The mother shall notify the father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.

9. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms.

10. Each party shall forthwith inform the other, and keep each other informed, in writing, of their respective current residential address, landline telephone number, mobile telephone number, and email address.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. Any and all outstanding applications are dismissed.

Notation

(A)No order is made providing for the children to spend time with the father, or precluding the children from doing so. Whether the children spend time with the father, and the circumstances under which that should occur, will be decided by the mother as an incident of her sole parental responsibility for the children.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1053 of 2009

Mr Grant

Applicant

And

Ms Grant

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings litigated their differences of opinion about the orders that would reflect their children’s best interests in mid 2010. The circumstances were then such that the Court concluded a series of interim parenting orders were warranted, designed to trial the re-engagement of the children with the father under a regime of supervised time together (see Grant & Grant [2010] FamCA 534).

2. Regrettably, the trial was an abject failure. The estrangement between the children and father has only intensified over the intervening period. The father failed to adhere to the interim orders and the situation remains as conflicted as it ever was.

3. The trial was resumed and concluded on 29 March 2011, after a hiatus of some eight months. The only tenable outcome was to refrain from imposing any orders that compelled the children to spend time with the father.

Background

1. The following background facts are, in part, drawn from the judgment delivered on 2 July 2010.

2. The parties began a relationship on 24 April 1998 and commenced cohabitation in April 1999.

3. They married in 2002 and later separated on 24 November 2007, although they lived within the same home until the mother vacated that residence with the children on 10 December 2007.

4. The children have lived with the mother continuously ever since.

5. The parties attended a mediation session in May 2008, but they failed to reach agreement about proper parenting orders at that time.

6. The proceedings were commenced by the father on 30 April 2009. For the period between separation and the commencement of the proceedings the parties were able to satisfactorily negotiate the time spent by the children with the father and their communication with him.

7. However, from at least April 2009, the children have spent very little time with the father and had very little communication with him. The mother would not permit the children to spend unsupervised time with the father and she was no longer prepared to act as the supervisor.

8. No interim parenting orders were initially made in the proceedings. Because of the mother’s concerns about the father’s emotional stability, which concerns were corroborated by the Family Consultant in her initial reports, the Court was not prepared to mandate the children spending time with the father in the absence of professional supervision.

9. The father declined to permit the children to see him under supervised conditions, and as a consequence of his attitude, apart from one occasion in June 2009 when the father saw the youngest child in the company of the mother, the children did not spend any time with the father after March 2009 until the matter came before the Court for trial in June 2010.

10. Judgment was reserved after that trial but orders and reasons were published several weeks later on 2 July 2010. It was concluded that interim orders were warranted, designed to trial re-engagement of the children with the father. The interim parenting orders of 2 July 2010 made provision for:

    a)The allocation of sole parental responsibility for the children to the mother (Order 2).

    b)The children to live with the mother (Order 3).

    c)The children to spend supervised time with the father at “W Org.” for a period of two hours no less frequently than once every four weeks and no more frequently than once every two weeks (Orders 4-5).

    d)The children to communicate with the father weekly by telephone (Order 6).

    e)The restraint of the parties’ denigration of one another in the children’s presence (Order 7).

    f)The parties to keep one another appraised of their respective contact details (Order 10).

    g)The father’s participation in a post-separation parenting program, subject to approval by the Family Consultant (Order 11).

    h)The father’s continuation of a therapeutic relationship with his medical general practitioner (Order 12).

    i)The father’s commencement of, and continued commitment to, therapeutic treatment by a psychologist (Order 13).

11. The matter was adjourned until 28 January 2011 to review the success of the interim arrangements and the Family Consultant was required to prepare an updated Family Report.

12. In the meantime, the Independent Children’s Lawyer filed an Application in a Case on 5 November 2010 seeking to revise the interim orders providing for the children to spend time with the father. That Application was listed before the Court on 13 December 2010, at which time it became clear the interim orders had not been successfully implemented.

13. The first and only time the father attended “W Org.” to enable the children to spend supervised time with him, being 31 July 2010, disintegrated in acrimony between the father and supervisory staff. The father was plainly disappointed when his expectations were frustrated. He was informed he could not take the children away from the venue, even though he understood from prior inquiries he would be able to do so in the company of a supervisor. The father spoke with the supervisor outside the room to express his displeasure. He was unable to see the senior supervisor and so demanded a refund of the costs he had paid for the supervised session. The security officer was summoned. The father returned to the room and ordered the supervisor from the room, but she did not comply. The children were resistant to his entreaties for conversation and intimacy with them. After the father was chastised for talking to the children about the Court, he decided he would leave. He kissed the children and then departed. Only some ten minutes of the session had elapsed.[1]

    [1] Mother’s affidavit, par 9

14. The father said in cross examination he was resentful about what had occurred. It was not as easy as he thought it would or should be. He decided that day he would not use W Org. again.

15. The children spent no time with the father after that single occasion, however telephone communication was maintained.[2]

    [2] Mother’s affidavit, par 10

16. Although the father attended Court on 13 December 2010, he voluntarily departed the Court before the proceedings were resolved by either substantive or procedural order. Consequently, the Application in a Case was adjourned to 28 January 2011 to coincide with the substantive proceedings.

17. The updated Family Report, dated 12 January 2011, was released to the parties shortly after it became available.

18. The father attended Court on 28 January 2011, but the proceedings were incapable of consensual resolution. Consequently, the Application in a Case filed earlier by the Independent Children’s Lawyer was dismissed and further procedural orders were made to bring the substantive proceedings to a conclusion on 29 March 2011.

19. The trial resumed and concluded on 29 March 2011. Judgment was reserved.

Proposal of the father

1. The father informed the Family Consultant in November and December 2010 that he was uncertain about the orders he sought[3] and planned withdrawing from the proceedings.[4] That did not eventuate.

   [3] Updated Family Report, pars 10, 22

   [4] Updated Family Report, par 15

2. The father did not avail himself of the permission granted on 28 January 2011 to file an Amended Initiating Application.[5] The last Amended Initiating Application was filed by the father on 2 February 2010, in advance of the trial conducted in June 2010. By reference to that document, the father’s proposal remained that the parties have equal shared parental responsibility for the children, that they live with the mother, and spend time with him as ordered by the Court.

   [5] Order 4 made on 28 January 2011

3. In response to an inquiry about the nature of the parenting orders he proposed, the father announced he broadly proposed that the children spend time with him under supervised conditions each fortnight for a period of 6 months, following which the matter would return to Court for further review, at which time he hoped for dispensation of the need for supervision. The father did not contest the existing allocation of sole parental responsibility to the mother, or the requirement that the children live with the mother.

4. The father later said during cross examination he did not believe any supervision was necessary, but was prepared to accept it to appease the Court. That made his final submissions at the conclusion of the evidence even more curious, when he proposed an interim period of supervision of 12 months in lieu of the 6 months period he initially suggested.

5. In breach of the orders made on 28 January 2011, the father failed to file any further affidavit evidence.[6] He said “I ran out of time [to file an affidavit] and I will proceed with what I have”. The father adduced no fresh evidence.. He was briefly cross examined nevertheless.

   [6] Orders 6-7 made on 28 January 2011

Proposal and additional evidence of the mother

1. As permitted, the mother filed a Further Amended Response on 18 February 2011, proposing that she have sole parental responsibility for the children, that they live with her, and that they spend supervised time with the father at an approved contact service for two hours at least once per month. The mother also proposed continuing weekly telephone communication between the children and father.

2. Despite some initial prevarication about whether she would support the orders proposed by the Independent Children’s Lawyer, the mother adhered to the orders proposed in her Further Amended Response.

3. In support of her proposal the mother relied upon her affidavit filed on 4 March 2011, upon which she was cross examined, and the updated Family Report.

Proposal and additional evidence of the independent children’s lawyer

1. The Independent Children’s Lawyer proposed orders set out within her Case Outline document dated 23 March 2011. In summary, those orders provided for:

   a)The mother to have sole parental responsibility for the children.

   b)The children to communicate with the father weekly by telephone, but that the eldest child participate according to her wishes.

   c)The children to be free to communicate with the father by letters, cards, and gifts on special occasions.

   d)The imposition of miscellaneous obligations upon the parties, and the mother in particular, consistent with the interim orders made on 2 July 2010.

2. The orders proposed by the Independent Children’s Lawyer were generally consistent with those proposed by the mother, save in one material respect. Whereas the mother proposed an express order that the children spend supervised time with the father on a periodic basis, the Independent Children’s Lawyer proposed that no such express order be made. However, nor did the Independent Children’s Lawyer press for an injunction precluding it.

3. The Independent Children’s Lawyer relied upon her own affidavit filed on 5 November 2010, upon which she was not required for cross examination, and the updated Family Report.

Summary of parenting law

1. The following principles will be familiar to the parties. They were quoted in the former judgment.

2. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

3. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

4. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

5. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

6. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

7. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

8. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

9. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Children’s best interests – primary considerations

1. The state of the children’s relationships with the father was the subject of comprehensive findings in the last judgment published on 2 July 2010. The eldest child was very apprehensive of the father, and so was the youngest child, though less so. It was then concluded the children would benefit from recovering the meaningful relationships they each previously enjoyed with the father, if that could safely be achieved (see Grant & Grant at [64-74]).

2. The best way to assess the nature of the children’s current relationships with the father is to analyse the manner in which they have since interacted with him and to take account of what they now say about him.

3. The children only had a single opportunity to interact personally with the father in accordance with the interim orders, that being the supervised visit at W Org. on 31 July 2010. The event is the subject of written report by the co-ordinator of the Access Service at W Org.[7] The report discloses the eldest child was compliant with the father’s requests, but little more. The youngest child, who had previously been more favourably disposed to the father, did not speak with the father and rebuffed his attempts at communication. When he walked towards her to engage her personally, she ran to the supervisor. The children did kiss and cuddle the father, upon his request, after he announced his decision to leave the centre after only a short while. In cross examination the father conceded the children were “stand-offish” with him.

   [7] Affidavit of Independent Children’s Lawyer, par 3, Annexure A

4. On subsequent occasions when the father telephoned the children the eldest child refused to speak with him. Her willing engagement in telephone communication with the father has been intermittent.[8]

   [8] Mother’s affidavit, pars 12-15, 21

5. On one particular occasion recently when the mother and children saw the father, but were unobserved by him, the eldest child reacted with heightened alarm. She locked the doors of the car in which they were travelling and slid down onto the floor of the car so that she would be out of view.[9]

   [9] Mother’s affidavit, pars 27-38

6. As with their reactions, the views previously expressed by the children about the father have only hardened.

7. The eldest child told the Family Consultant she did not like seeing the father, even with a supervisor present, and was resistant to the idea of even seeing him in an observation session with the Family Consultant.[10] The child linked her desire not to see the father with her perception of his anger,[11] which link is consistent with comments she has made to the mother.[12] When asked how she would feel about seeing her father with another adult present in an outside setting such as a park, the eldest child responded that she did not want to go out as the father “might run away with us or take [her] sister.”[13] The eldest child wanted the Court to know her wish was not to see the father.[14] Her views were more adamant than before.[15]

   [10] Updated Family Report, pars 56-59

   [11] Updated Family Report, par 63

   [12] Mother’s affidavit, par 37

   [13] Updated Family Report, par 58

   [14] Updated Family Report, par 60

   [15] Updated Family Report, par 93

8. Although not completely oppositional like her sister, the youngest child was also resistant to seeing the father, either under supervision or in an observation session with the Family Consultant present. She would only consider visits with the father if two independent adults were present.[16] She also appeared to link her apprehension of the father to his anger.[17] The youngest child is now considerably more ambivalent towards the father than formerly.[18]

   [16] Updated Family Report, pars 67-69, 72

   [17] Updated Family Report, pars 71, 73

   [18] Updated Family Report, par 92

9. Those facts lead inevitably to the conclusion that the children no longer have meaningful relationships with the father and the attempt over the last 9 months at restoration of the relationships failed.

10. In the past, the father’s behaviour towards the mother has been violent and aggressive (see Grant & Grant at [75-98]). The aspiration expressed in July 2010 for the father to rehabilitate his psychological state and his attitude towards the mother has regrettably not been fulfilled.

11. The father was required by the interim orders made on 2 July 2010 to undertake a post-separation parenting program, continue his therapeutic relationship with his medical general practitioner, and submit to psychological therapy.[19] Although the father has been compliant with those orders, it has made no appreciable difference to his demeanour.

    [19] Orders 11-13 made on 2 July 2010

12. In December 2010 the father successfully completed two post-separation parenting programs entitled “Taking Responsibility”, which apparently entailed “learning to relate without abuse or control”.[20] The sessions began in September 2010 and concluded on 15 December 2010. As demonstrated by his demeanour at Court on 13 December and when in the company of the Family Consultant on 16 December 2010, the father was seemingly unable to apply any techniques he may have learned to control himself satisfactorily. The father was more controlled with the Family Consultant on 20 December 2010, but there were again instances during the trial on 29 March 2011 when the father’s anger flared and he was quite unrestrained. If the father continues to present to the Court and Family Consultant in that way in circumstances where formality and restraint are expected, even with the benefit of completed educational courses, the propensity for him to continue acting in that manner towards the mother when alone or in informal public settings is obvious.

    [20] Exhibit F7

13. The Family Consultant wrote to the father advising him of numerous other courses that may assist him,[21] but there is no independent evidence of his participation in them. The father told the Family Consultant he had completed the “Hey Dad’s” course at R Contact Centre.[22] The Family Consultant’s belief that the father also completed an introductory “Facing Up” course is not borne out by the evidence.[23] He certainly did not enrol or participate in the “Introduction to Facing Up” or “Facing Up” courses conducted by Counselling Service 1.[24]

    [21] Updated Family Report, page 1, heading “Correspondence”

    [22] Updated Family Report, par 24

    [23] Updated Family Report, par 81

    [24] Exhibit M11

14. The father has continued to see his general practitioner with average frequency of once every 3-4 weeks. The doctor confirmed to the Family Consultant the father still experiences episodic anger, but his medication has abated. The doctor believes that “it would help the father if he saw his children”.[25] That may be so, but the material question is whether that is best for the children. The father’s interests must yield to theirs.

    [25] Updated Family Report, par 74

15. The father began seeing a psychologist through Health Service 1. Enquiries made of the psychologist by the Family Consultant were not answered.[26] The father told the Family Consultant that he intended to cease consulting with the psychologist forthwith,[27] but in cross examination the father said that he has since maintained appointments with the psychologist.

    [26] Updated Family Report, par 6

    [27] Updated Family Report, par 27

16. Although there is no direct evidence from the psychologist, records current to November 2010 were produced in answer to a subpoena and were tendered.[28] On initial presentation on 20 August 2010 the father was enraged and frustrated. He expressed fury with the Court’s decision in July 2010 and did not believe a psychiatrist could “fix [his] problems”. He conceded he did not like people any more and spent most of his time isolated in a room smoking cannabis. He was unwilling to take medication, which he did not find helpful. The psychologist formulated a diagnosis of “Adjustment Disorder with depressed mood” coupled with illicit drug abuse and “Narcissistic/Antisocial personality traits”, which was reminiscent of the preliminary diagnoses of the father by the single expert in February 2010 (see Grant & Grant at [47-54]). The single expert’s pessimism about the father’s willingness to accept psychological or pharmacological therapies appears justified.

    [28] Exhibit ICL6

17. In September 2010 the father continued to harbour resentment towards the mother and Independent Children’s Lawyer. The father’s condition was such that he was apparently involuntarily admitted to Hospital 1.

18. In early October 2010 the father told the psychologist that “absolutely nothing” had changed in his life. He spent the remainder of that session venting about his experiences and grievances with the mother, courts, and the “people scum” in his life. Later that month the father was able to demonstrate a modicum of insight by telling the psychologist he was unsure whether he should “continue to battle with [the mother] at the cost of the children’s relationships or whether to step back and allow time to take its course”.

19. In November 2010 the father was emotional in a session with the psychologist when discussing the children and expressed disappointment he felt at “the failure [he] and [the mother] have made of being parents”.

20. In the absence of any further evidence it is impossible to know what progress, if any, the psychologist believes the father has made since November 2010.

21. The Court can have little confidence in the father’s rehabilitative process. His demeanour continues to exhibit pendulous swings and his reports to the Family Consultant are unreliable. For example, he:

    a)Admitted earlier misleading the Family Consultant about the nature of his accommodation,[29]

    b)Refused to disclose details about his employment to the Family Consultant,[30]

    c)Denied the hostility with W Org. staff on 31 July 2010 occurred in the presence of the children,[31] but was contradicted by the children,[32] and the appointed supervisor.[33]

    d)Alleged that W Org. staff offered further supervision to him after the incident on 31 July 2010,[34] but was contradicted by the supervisor.[35] Even if the father’s allegation is accepted, he admits declining to accept the offer of further supervision for the facile reason that the children’s Friday afternoon physical education would be interrupted.[36]

    e)Told the Family Consultant he could afford the cost of supervision, but was contradicted by the supervisor, who reported that the father complained of being unable to afford it.[37]

    f)Told the Family Consultant he was still being medicated with a tranquiliser,[38] but was contradicted by his general practitioner.[39]

    g)Told the Family Consultant he had contacted her office about possible use of the B Contact Centre for supervision, whereas it seems the father actually contacted Legal Aid.[40]

    [29] Updated Family Report, pars 21, 89

    [30] Updated Family Report, par 21

    [31] Updated Family Report, pars 25, 89

    [32] Updated Family Report, pars 56, 65, 66, 89

    [33] Updated Family Report, pars 75, 89

    [34] Updated Family Report, pars 38, 89

    [35] Updated Family Report, pars 78-79, 89

    [36] Updated Family Report, pars 38, 78

    [37] Updated Family Report, pars 77, 89

    [38] Updated Family Report, par 37

    [39] Updated Family Report, pars 74, 89

    [40] Updated Family Report, par 23

22. The Family Consultant was cross examined. She adopted the contents of her updated Family Report in the course of giving evidence, and elaborated her opinions and reasons in various respects, particularly regarding the father’s conduct.

23. She said the father was perhaps now a little more insightful about the litigious process, but her concession was cautious and based entirely upon his less hostile presentation in her last consultation with him on 20 December 2010. She was still left with the impression the father had not found the educational courses valuable.

24. The Family Consultant retained numerous concerns about further attempts to re-introduce the children to the father, which she catalogued. They included the adverse emotional consequences for the children being involved in further unsuccessful trials and interviews about their relationships with the father, the children’s apparently increasing antipathy towards the father, the adverse effect upon the mother of the father’s continuing hostility towards her, and the indirect effect of that upon the children. The Family Consultant doubted the father’s ability to demonstrate genuine change in his attitudes and demeanour, as evidenced by his inability to comply with the directions of the supervisor at W Org. in circumstances where he must have known that he was on trial and his best behaviour was warranted. The same may be said of the father’s presentation to the Court and Family Consultant at various times over a long period which demonstrated brazen disregard for how his behaviour was objectively perceived.

25. The Family Consultant considered the father needed to address all of those concerns before any further steps were taken to re-introduce the children to him, even under supervised conditions.

26. The Family Consultant was very guarded about the idea of imposing long-term supervision to monitor any time spent by the children with the father. She regarded the father as having had more than sufficient time to demonstrate a genuine commitment to rehabilitation, and has not done so. Evidence of his completion of the post-separation parenting programs, continued liaison with his general practitioner, and submission to counselling is merely evidence of his compliance with the interim orders. In light of all the evidence it is not proof of him experiencing real and genuine change.

27. I accept the evidence of the Family Consultant, which was balanced, reasoned, and logical. The children remain exposed to the risk of psychological harm by reason of the father’s propensity to behave aggressively towards the mother and other adults in the presence of the children when the father does not get his way, which behaviour has the capacity to constitute “family violence” as defined in the Act.

Children’s best interests – additional considerations

1. The subject children are now aged nearly 10 and 8 years respectively. The children are still too immature for their views to be particularly influential in the outcome of the proceedings, but they should now carry some weight.

2. Both children were content to continue weekly telephone communication with the father.[41] I infer the children wish to retain some semblance of a relationship with the father, but they desire the security derived through absence of his personal presence.

   [41] Updated Family Report, pars 61, 71

3. There is little evidence of the children’s relationships with extended family members. In September 2010 the father reported to his psychologist that he had no positive support from any member of his family. He said he wanted no contact with his mother, whom he learned had been seeing the children by arrangement with the mother without his knowledge.[42] That is a relatively graphic demonstration of the mother’s capacity and willingness to promote the children’s relationships with members of the paternal family. The Family Consultant considers, and I agree, that the mother remains able and willing to facilitate relationships between the children and the father.[43]

   [42] Exhibit ICL6

   [43] Updated Family Report, par 49

4. The mother still retains an open mind about the retention of relationships between the children and the father despite the torrid history. She proposed an order that the children spend some restricted supervised time with the father on a monthly basis, which she explained in cross examination by saying she was not prepared to shut the father out of the children’s lives, provided the children are adequately protected.

5. Understandably, the mother doubts the father’s capacity to control himself and worries that the history of the failed supervised visit in July 2010 will repeat. She is now beyond negotiation with the father and wants the Court to determine the matter on the evidence. Although she and the father exchanged text messages on 24 November 2010 about the prospect of a negotiated settlement,[44] that has not proven possible. The father showed those emails to the Family Consultant in cross examination, who responded that the mother had told her she wanted the dispute litigated to finality because of her lack of trust in the father.

   [44] Exhibit F6

6. Despite proposing an indefinite order for supervised time between the children and the father, the mother adduced no evidence as to the identity of a suitable supervisor apart from those already identified and effectively discounted by the Family Consultant.[45] Nor did the father adduce evidence of any suitable supervisor other than R Contact Centre. The father told the Family Consultant that R Contact Centre was “willing to take him on”,[46] but that organisation will not supervise on a long term basis.[47]

   [45] Updated Family Report, pars 79, 95, 96

   [46] Updated Family Report, par 24

   [47] Updated Family Report, par 95

7. Despite the failed supervision by W Org. in July 2010, the father did not apparently contact either R Contact Centre or B Contact Centre as alternatives until after the Independent Children’s Lawyer brought her Application in a Case in late 2010. The information provided by the father to the Court on 13 December 2010 about those potential supervisors was unsatisfactorily scant.[48]

   [48] Notation B made on 13 December 2010

8. The father does not contest the Family Consultant’s evidence that B Contact Centre cannot provide supervisory services.[49] Nor can he now effectively dispute the refusal of W Org. to deal with him.

   [49] Updated Family Report, par 96

9. The father sent a text message to the mother on 15 January 2011 about their registration for use of R Contact Centre, but the mother rejected his approach.[50] By that time the father had sat on his hands for some 6 months, the mother had seen the father’s churlish behaviour at Court on 13 December 2010, and she had witnessed the alarming reaction of the eldest child to the father only two days before on 13 January 2011.[51] Another text message sent by the father to the mother on 28 January 2011 about engagement of R Contact Centre was ignored.[52]

   [50] Exhibit F6

   [51] Mother’s affidavit, pars 27-37

   [52] Exhibit F6

10. If orders were made mandating that the children spend supervised time with the father there would be some significant changes for the children to confront. I am far from confident the adjustment would be seamless and contented having regard to recent and more historical experiences. That the father continues to hold the view that he has not perpetrated family violence on the mother and takes no responsibility for how his actions have influenced his lack of time with the children[53] are factors which indicate he remains incapable of meeting the emotional needs of the children, despite his ardent wish to do so.

    [53] Updated Family Report, par 83.

11. The evidence portrays the father in a poor light, but there is an aspect of the evidence concerning the mother which cannot pass without adverse comment. It is uncontentious that the mother has involved the children in communications with the father about the provision of money for their support.

12. It is unsurprising that the mother would have requested financial support from the father, as she reported to the Family Consultant.[54] The father pays minimal child support and refuses to disclose details about his source of income. The mother suggested in cross examination that she receives child support of only $46 per fortnight from the father, as a consequence of which she requests extra money from him. The father has often provided it upon request, as text messages between them show.[55] However, the credit that might otherwise be accorded to him for that is all but eradicated by his failure to ensure the payment of a proper amount of child support in the first place, which means he exerts a degree of control over the mother and perpetuates the need for her to stay in touch with him for financial assistance.

    [54] Updated Family Report, par 47

    [55] Exhibit F6

1. The mother is liable to criticism for involving the children in that process. She admits having arranged for the children to telephone, or send text messages to, the father requesting the provision of money for the children and herself. On 28 January 2011 when the father sent a text message to the mother telling her he thought she was pathetic for involving the children in that way,[56] the mother showed the message to the eldest child and then had her telephone the father to say to him words to the effect “Mum’s not pathetic. I think you’re pathetic.”

   [56] Mother’s affidavit, par 49; Exhibit F6

2. The mother initially explained her involvement of the children in that way by her exasperation with the father and her desire to no longer “sugar-coat” the father’s shortcomings for the children, as she has done in the past. Her motivations may explain her behaviour, but they do not justify it, which her ultimate embarrassment appeared to acknowledge. Although asked about it, the mother credibly denied that her proposal for the children to continue spending time with the father under supervised conditions was a “sweetener” for the father to encourage his continued financial support of the children.

3. The Family Consultant said in cross examination that the mother’s involvement of the children in financial matters between the parties was “not a good thing” and placed “inappropriate pressure” upon them. That was a milder assessment of the situation than my own, but the implications are clear enough. I accept that the mother was chastened by the criticism.

4. In all other respects, the findings expressed in the former judgment, Grant & Grant [2010] FamCA 534, published on 2 July 2010 remain efficacious.

Parenting orders

1. There is no need to disturb the existing allocation of sole parental responsibility for the children to the mother and their residence with her.

2. The former interim orders were designed for the sole purpose of assessing the viability of orders providing for the children to spend time with the father. Both the expansion and erasure of the interim orders were contemplated as options when the time came for review of the orders (see Grant & Grant at [166]). The determination was intended to be, and is, influenced by the continued rehabilitation of the father as a parent.

3. Unfortunately, the cautious optimism previously expressed about the father’s improvement (see Grant & Grant at [98, 161]) has not been vindicated. The father has not demonstrated any material improvement in his behaviour, which has continued to fluctuate unpredictably.

4. He was so hostile and unco-operative at the one and only attempt at introduction of the children to the supervised time regime on 31 July 2010 that the supervisor declined to assist in the process any further.

5. Thereafter, at least until after further interim proceedings were commenced by the Independent Children’s Lawyer many months later, the father made no attempt to either re-list the matter before the Court to review the fractured arrangement or reach varied consensual arrangements with the mother, Independent Children’s Lawyer, and an alternate supervisor.

6. On 8 November 2010 the father attended an interview with the Family Consultant and was reasonably calm,[57] but he did not remain that way.

   [57] Updated Family Report, par 31

7. On 13 December 2010 the father attended before the Court in respect of the Independent Children’s Lawyer’s Application in a Case, but then departed the Court soon after without waiting for the matter to be concluded, expressing disaffection with the proceedings. He subsequently contacted the Court’s National Inquiry Centre, informing of his intention not to attend the scheduled interview with the Family Consultant,[58] but later relented.

   [58] Updated Family Report, par 20

8. When the father attended upon the Family Consultant on 16 December 2010 his demeanour was “tense, angry, and resistant.”[59] The father reacted to a telephone call from the mother as if he would throw his telephone away.[60] He was so angry the Family Consultant determined not to discuss with him any information she had gleaned from the children. She also decided not to expose the children to the father in an observation session.[61] The father attributed his anger that day to his perception that the Court was unreceptive to his wishes three days before.[62]

   [59] Updated Family Report, pars 21, 30, 80, 82

   [60] Updated Family Report, par 29

   [61] Updated Family Report, pars 33, 80

   [62] Updated Family Report, par 31

9. At the father’s insistence, the Family Consultant arranged another interview with him several days later on 20 December 2010.[63] He was less hostile on that occasion.[64]

   [63] Updated Family Report, par 34

   [64] Updated Family Report, par 35

10. The fluctuations in his demeanour have continued despite medication by his general practitioner,[65] his participation in therapy with a psychologist,[66] and his participation in a number of educative courses.[67] The father has still done nothing to address his dependence upon cannabis,[68] despite the Court’s adverse comments about that predicament in the last judgment (see Grant & Grant at [128, 130-131, 171-172]).

    [65] Updated Family Report, pars 37, 74

    [66] Updated Family Report, pars 6, 27, 81

    [67] Updated Family Report, par 81; Exhibit F7

    [68] Updated Family Report, par 43

11. The father repeated his assertion to the Family Consultant that he had no faults as a parent.[69] He also told the Family Consultant he had not perpetrated family violence, and appeared to take no responsibility for the lack of time spent by the children with him.[70] In the face of the findings made in the earlier trial, and events following the failed supervised visit with the children on 31 July 2010, the father’s contentions were either disingenuous or lacked insight. The Family Consultant was unclear in her report,[71] but doubtful in her cross examination, about whether the father was able to genuinely take responsibility for, and make positive changes to, his behaviour. The evidence leads inevitably to the conclusion that he will not or cannot.

    [69] Updated Family Report, par 41

    [70] Updated Family Report, par 83

    [71] Updated Family Report, par 85

12. The Family Consultant observed that in the absence of an abusive parent’s genuine commitment to change the Court must act cautiously to protect the interests of the children.[72] I accept that evidence.

    [72] Updated Family Report, par 85

13. Although the father recognised the difficulty he sometimes encounters in controlling his anger, he still presents as incapable of appreciating the deleterious emotional disturbance his behaviour causes the children.[73] The Family Consultant concluded the father still appears unable and unwilling to quarantine the children from his negative views about the mother, and remains hostile to prospective supervisors and the Court.[74]

    [73] Updated Family Report, pars 42, 87

    [74] Updated Family Report, par 87

14. I accept the Family Consultant’s evidence that the father is uncommitted to retention of his relationships with the children unless it is on his terms.[75] That is consistent with the father’s inaction following the termination of the supervised visit on 31 July 2010.

    [75] Updated Family Report, par 90

15. The father candidly acknowledged to the Family Consultant that he had “nowhere to go” with respect to options about the children spending time with him.[76] That comment may have been meant literally, figuratively, or both.

    [76] Updated Family Report, par 44

16. So far as the evidence goes, the father still lives above a hotel in accommodation which is unsuitable for the children, even if it was feasible for the children to spend unsupervised time with him.[77] W Org. refuses to supervise the children with the father,[78] R Contact Centre is unwilling to provide long term supervision,[79] and the B Contact Centre is unable to assist due to lack of resources.[80]

    [77] Updated Family Report, par 21

    [78] Updated Family Report, par 79

    [79] Updated Family Report, par 95

    [80] Updated Family Report, par 96

17. The father’s proposal is for the imposition of another battery of interim orders providing for the children to spend supervised time with him, followed by further review. The mother acknowledged that her proposal was also effectively an interim proposal, because she expects that only R Contact Centre can offer supervision and the provision of that organisation’s supervision is for a maximum period of 12 months.

18. I am not satisfied that the evidence provides a convincing foundation for another attempt to re-introduce the children to the father. The last attempted re-introduction of the children to the father under the orders made on 2 July 2010 was a failure, largely of the father’s own making. The evidence gives me no confidence that another attempt stands any better chance of success.

19. The frank opinion of the Family Consultant was that supervised time is not generally a long-term option and its purpose and value must be carefully considered.[81] That evidence militates against final orders for the children to spend supervised time with the father, even if it was possible. But it is not. There is no evidence of a supervisor being available on an indefinite basis.

    [81] Updated Family Report, par 94

20. The Independent Children’s Lawyer proposes that no orders be made requiring the children to spend time with the father. I am satisfied that proposal is validated by the evidence. The father has not demonstrated the necessary commitment to improvement of his behaviour and his relationships with the children in order to justify continuity of arrangements for the children to spend time with him. The father’s ruminations with the psychologist in October 2010 about stepping back and allowing time to take its course were prescient.

21. By reference to the Family Consultant’s stated concerns,[82] I am satisfied that the father continues to present a risk of exposing the children to emotional harm by reason of his volatility, that he remains an inappropriate role model to the children, and that there remains a risk he will continue to undermine the children’s relationships with the mother.

    [82] Updated Family Report, pars 99

22. However, that is not to say that it is impossible for the children to spend time with the father at some point in the future. Therefore, no orders are made either mandating or restraining the children’s time with the father. The decision about whether such time occurs, and the circumstances under which it occurs, will be a matter for the mother as an incident of her sole parental responsibility for the children.

23. The orders preclude the father’s attendance at the mother’s home and the children’s schools, to avoid any attempt by the father to unilaterally frustrate the intention of the orders. Despite the Independent Children’s Lawyer’s proposal for an additional embargo upon the father’s attendance at “sporting and other activities”, the injunction is not so broadly drawn. The mother could later decide that the father’s improved behaviour is such as to warrant his attendance at a sporting or extra-curricular activity of the children, with the attendant safety offered by the public nature of such an event, but that would be precluded by an order of the type proposed by the Independent Children’s Lawyer.

24. Orders are made for the children to continue their communication with the father. Both children were willing to continue weekly telephone communication with the father.[83] Although the Independent Children’s Lawyer proposed that the eldest child participate in that form of communication only if she desired, I do not accept that submission, even though it has the support of the Family Consultant.[84] The eldest child told the Family Consultant she was willing to participate and the mother was also content for her to participate. If the child knows she is expected to participate and the mother encourages her to do so in accordance with the orders it is more likely that her willingness will increase. She is still too young to dictate terms.

    [83] Updated Family Report, pars 61, 71

    [84] Updated Family Report, par 100

25. The parties alleged their mutual non-compliance with the interim orders concerning communication between the children and the father, which was partially due to the children’s wish to watch a particular television program on Monday nights when the communication was to occur. The parties agreed during the trial that the telephone communication should occur on Tuesday nights between 7.00 pm and 8.00 pm.

26. The orders also permit a modest amount of written communication between the children and the father, consistent with the proposal of the Independent Children’s Lawyer. The order is restricted to prevent a torrent of correspondence. There is no evidence that would occur, but the potentiality should be eradicated.

27. The combination of weekly telephone communication and occasional written correspondence between the children and the father serves to preserve rudimentary relationships between them, so that if the children do spend time with the father it will commence from a basal level of familiarity.

28. In final submissions the Independent Children’s Lawyer proposed an additional order to the effect that the mother not involve the children in requests of the father for money. I decline to make such an order because of the scope such an order offers for further recriminations and litigation, which will not affect the allocation of parental responsibility for the children or where they live. I am satisfied that the mother is painfully aware of her past mistakes in that regard and is unlikely to repeat them.

29. The remaining orders either replicate orders made on 2 July 2010, reflect orders in similar terms sought by the mother and Independent Children’s Lawyer, or are orders about which there could be no sensible controversy.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Thursday, 5 May 2011.

Associate: 

Date:  5 May 2011