HABEN & PADDON

[2018] FCCA 2238

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABEN & PADDON [2018] FCCA 2238

Catchwords:
FAMILY LAW – Interim parenting – whether supervised time at a contact centre or no time at all – where serious allegations of violence and abuse are made – where one of the children is especially vulnerable – no contact or communication ordered – what violent and abusive parents might be able to do.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:

Goode & Goode [2006] FamCA 1346

Insley & Insley [2018] FCCA 438

MRR v GR [2010] HCA 4

Applicant: MR HABEN

Respondent: MS PADDON

File Number: WOC 284 of 2018

Judgment of: Judge Altobelli

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Wollongong

Delivered on: 24 August 2018

REPRESENTATION

Solicitors for the Applicant: Marsdens Law Group

Counsel for the Respondent: Soden Legal

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Campbelltown - Family Law

ORDERS

1. That the Mother have sole responsibility for the children [X] (born 2012) and [Y] (born 2016) (“the children”).

2. That the children live with the Mother.

3. That pursuant to section 68B of the Family Law Act 1975 (Cth) an injunction issue and the Father be restrained from entering or remaining in any place of residence or education of the children, harassing, stalking, intimidating or otherwise approaching or contacting the Mother, the children or anyone the Mother is in a domestic relationship with.

4. In the event that the Father does not comply with Order 3 and a Police Officer believes, on reasonable grounds, that the injunction has been breached, then such Police Officer is authorised to arrest the Father without warrant pursuant to the provision of section 68C of the Family Law Act 1975 (Cth).

5. The matter be adjourned to a date to be fixed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 284 of 2018

MR HABEN

Applicant

And

MS PADDON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about two children – [X], six years old, and her sister [Y], two years old. The Court was called on to decide whether the children should be spending supervised time with their Father, as he contends, supported by the Independent Children’s Lawyer, or no time at all with their Father, as the Mother contends, pending the receipt of expert evidence. These Reasons for Judgment explain why the Court has decided the children should have no time with their Father, pending receipt of an Expert’s Report.

Background

1. The Applicant in this case is the Father. He is forty-three years old and describes himself as a (occupation omitted). The Respondent is the Mother. She is 35 years old, and describes herself as a (occupation omitted).  Both parents live in Sydney. The children live with their Mother. The parents met in 2002 and commenced cohabitation in 2003. On the Mother’s case, what she describes as a long history of family violence perpetrated by him commenced the year after cohabitation.

2. The relationship ended on 30 April 2017, when the Mother moved out of the home with the children. There was an incident on 14 June 2017 involving the parents, and the Mother’s new partner. As a result of this, the Father was charged with intimidation, and an interim Apprehended Domestic Violence Order (‘ADVO’) was made. That ADVO was made final for 12 months on 14 August 2017. The Father received a section 10 bond in relation to the other matters which, by that date, had included a breach of an ADVO charge.

3. The Father spent time with the children in the post-separation period. The Mother apparently facilitated this in a manner that ensured that the Father did not know where she and the children were living. The Mother became increasingly concerned about what the children, particularly [X], would say after returning from time with their Father. As a result of this, in early January 2018, possibly at February 2018 (nothing turns on this), the children ceased spending time with their Father. In consequence of this, he commenced the present proceedings in March 2018. On 28 May 2018, an Independent Children’s Lawyer was appointed, the parents were ordered to attend a Child Dispute Conference, some procedural Orders were made, and the matter was listed for Interim Hearing before me on 8 August 2018.

4. The Child Dispute Conference was held on 29 June 2018. The contents of this document will be discussed below. When the Child Dispute Conference Memorandum came to the attention of myself on 9 July 2018 (following a short absence from the Registry) I made the Orders in Chambers for the children to live with their Mother, and Orders under section 68B of the Family Law Act 1975 (Cth) (‘the Act) restraining the Father from entering or remaining in any place of residence or education of the children, harassing, stalking, intimidating or otherwise approaching or contacting the Mother and the children. The Child Dispute Conference Memorandum was released to the legal representatives only. It is important to note, however, that the children had already ceased spending time with their Father.

5. At the Interim Hearing, Mr McGrath, Solicitor, appeared with the Father, Ms Haughton of Counsel appeared for the Mother, and Mr Walkden appeared as Independent Children’s Lawyer.

The competing proposals

1. The Independent Children’s Lawyer’s proposal was for the children to live with their Mother, and to spend time with their Father under supervision at the Suburb A Supervised Contact Centre.

2. The Father’s proposal is set out in his Application, filed 15 March 2018, was that the parents have equal shared parental responsibility, the children live with their Mother, but spend time with their Father each alternate weekend from Friday evening to the commencement of school on Monday, as well as half the school holidays, and on special days. In the Father’s Case Outline document settled by Mr McGrath, the Father’s Solicitor, and dated 2 August 2018, he proposed an order “on a without admissions basis” that the children spend time with the Father for a period of eight weeks, for two hours each alternate Saturday, with supervision to be provided by a private supervising agency. At the conclusion of the eight-week period, the Father’s time would be each alternate Saturday from 10:00 am until 5:00 pm. The costs of this private supervision was to be borne equally. However, by the time of the Interim Hearing itself, the Father’s proposal had changed once again, and now aligned with that of the Independent Children’s Lawyer.

3. The Mother’s proposal was, at all relevant times, that the Father not have time with the children, or communicate with them. When pressed by myself to provide the Mother’s perspective should the Court consider time at a supervised contact centre, her Counsel directed the Court to a number of concerns about the Independent Children’s Lawyer’s proposed Order. Where relevant, these will be discussed below.

The material before the court

1. In the Father’s case, he relied on the following documents:

   a)Initiating Application, filed 15 March 2018;

   b)Affidavit of Mr Haben, filed 15 March 2018;

   c)Notice of Risk filed by Mr Haben on 15 March 2018; and

   d)Case Outline document, dated 2 August 2018.

2. In the Mother’s case, she relied on the following documents:

   a)Amended Response to Initiating Application, filed 25 July 2018

   b)Affidavit of Ms Paddon, filed 25 July 2018;

   c)Affidavit of Ms P, filed 25 July 2018;

   d)Affidavit of Mr S, filed 25 July 2018;

   e)Notice of Risk filed by Ms Paddon, on 26 May 2018; and

   f)Case Outline document, dated 1 August 2018.

3. The following materials were tendered as evidence:

   a)Documents produced in answer to subpoena on New South Wales Police;

   b)Documents produced in answer to subpoena on Dr A;

   c)Child Dispute Conference Memorandum dated 29 June 2018;

   d)Documents produced in answer to subpoena on Coverage International;

   e)Letter from Marsdens’ Law Group attaching Mr Haben’s GP Mental Health Care Plan;

   f)Documents produced in answer to subpoena on Dr N (General Practitioner); and

   g)Documents produced in answer to subpoena on Hospital, Suburb B.

The cases summarised

1. The Independent Children’s Lawyer’s case was that whilst there was some concern about family violence, this was adequately addressed through supervision at a supervised contact centre. He submitted that a no contact Order was not in the children’s best interests because of the risk of the children losing what relationship they have with their Father, at least partly from the Mother projecting onto them her fears and anxieties. The Independent Children’s Lawyer’s concern was that the psychologist records in evidence create the impression that these children are repeating allegations over and over again, thus raising the question of whether the Mother is able to adequately regulate her own feelings about the Father, and what she has experienced from him.

2. Thus, the Independent Children’s Lawyer submitted no contact or communication threatens the children’s relationship with their Father. The risks to the Mother, if supervised contact was ordered, is less than the risk to the children of the loss of relationship if it is not ordered. He emphasised that the matter could be relisted, even on short notice, if supervised contact were ordered, and the children were shown to be suffering as a result of that.

3. The Father’s case endorsed the Independent Children’s Lawyer’s submissions. On behalf of the Father, Mr McGrath emphasised that whilst there was evidence before the Court about [X]’s special needs (to be discussed below) there was no evidence to link those special needs to the alleged conduct of the Father during the relationship. In any event, he submitted, there is no reason why [Y] could not have time with her Father at a supervised contact centre, even if [X] could not. In the Father’s case, he agreed to the continuation of the section 68B injunction. He conceded that the Mother was a good Mother, and agreed to an order for sole parental responsibility, and that the children live with her.

4. Mr McGrath was pressed by the Court on two issues. Firstly, what was the Father’s case in response to the Mother’s case about sustained coercive and controlling violence? On behalf of the Father he submitted that it was not the “reign of terror” depicted in the Mother’s Affidavit, but it was, in reality, a high-conflict relationship in which there was what he described as “couple/couple violence”. The Court also asked Mr McGrath to explain the Father’s changes of proposal in the proceedings. Mr McGrath took the Court to documents produced on subpoena which, he contended, evidences the Father recognising that he had an anger management issue and commencing “a journey of realisation”. This evidence will be discussed below.

5. The Mother’s case was that the Father had engaged in significant violence towards both her, and [X]. The allegation was corroborated in the independent material before the Court. There was a history of violence. There was an AVO, and conviction in respect of the breach of AVO. The objective evidence was very strong. The vulnerabilities of [X] in particular, but of the family generally, was such that even supervised contact at a contact centre could be detrimental to them. On behalf of the Mother, Ms Haughton contended that this could be a case where an order for no contact was made at a Final Hearing.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (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).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, 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.

   (2)     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:

   (a)     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

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The challenge of fact finding in this case

1. This is a case like so many in the Wollongong Registry of the Court that involves very serious allegations of violence, but where a decision needs to be made without the benefit of any form of Hearing at which the evidence can be tested. In a recent decision of Insley & Insley [2018] FCCA 438 the Court considered some of the particular challenges of fact finding in these cases, at paragraphs 63-74:

   63.    In Goode & Goode the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.

   64. Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode.  Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Nonetheless, the Full Court warned, findings must be couched with circumspection. 

   65. The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.

   66. In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination.  In that case the evidence was a Family Report.  In this case, of course, it is a Child Dispute Conference Memorandum.

   67. In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  It is nonetheless imperative that allegations of family violence are treated seriously.

   68. At [61] in Deiter, the Full Court discussed risk analysis:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   69. The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.

   70. The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.

   71. In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.  Moreover, at [21] the Full Court recognised:

   Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available.  It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.

   72. In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence.  Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available. 

   73. Applying that law to the facts of the case as presently before the Court, the Court must consider the likely impact on X of ignoring, or failing to act, on the Mother’s allegation.  His Mother would be placed in a situation that, for whatever reason, she considers unacceptable because of the fear that she would experience.  The Mother is clearly X’s primary carer.  It cannot be in X’s best interests to so expose the Mother. 

   74. Even in a case like this where the facts are so contested, the Court must adopt the course that is likely to avoid harm to X.  In circumstances where the Mother is his primary carer, the Father’s proposals for X to live with him are clearly problematic.  The Court would have to completely disregard the Mother’s allegations, which it is not willing to do.

The evidence in the Mother’s case

1. The Mother’s Affidavit was affirmed and filed on 25 July 2018. It is an extensive Affidavit. The Mother’s evidence about family violence is found at paragraphs 17 to 37. Her evidence about the Father’s abuse of the children is at paragraphs 38 to 46. The AVO, and the criminal charges against the Father are dealt with at paragraphs 47 to 61. The evidence that the Mother leads under this heading is detailed. For example, on Christmas Eve 2002, the Mother describes an incident in which the Father pushed her off a raised area at the granny flat of his parents’ home in which they were living at the time. It was about one metre in height. She sustained a hairline fracture to her left wrist. She consulted a doctor, and her wrist was strapped. This is merely the first of a long list of incidents of alleged family violence.

2. Her evidence about the Father abusing the children is likewise detailed. She describes, for example, how the Father hit [X] on her right upper thigh so hard that it left a raised bruise that was purple and red in colour in the shape of his hand, including his finger marks. She deposes that it took around a week for the mark to disappear. The Mother deposes to actually hearing the slap on [X], hearing her scream, and then running into the bathroom to see the aftermath of this event. The Mother deposes to not sending [X] to day care that week as she was so concerned that a report would be made to Family and Community Services. The Maternal Grandmother instead cared for [X].

3. The evidence about the AVO and criminal charges is likewise detailed. The Father was spending time with the children on 13 June 2017, shortly after separation  The person who later became the Mother’s partner was at the Mother’s house, having dropped his dog over as he was planning to move back into the area. He stayed the night. At 4:00 am on the morning of 14 June 2017, the Father rang the Mother, explaining that he was returning the children early as he had to start work earlier that day. In the subsequent telephone conversation, the Father told the Mother that he knew about “your dirty fucking night, so you can come out now and get the kids”. The Mother observed the Father’s car to be parked across the road from her house. She went out. She observed the Father to be tense:

   His jaw was clenched, he was pacing around the car and I could see he had his head slightly tilted back with his eyes wide. I often referred to this face as his ‘crazy eyes’, and I knew immediately that he was angry.

4. Certain things were said. The Mother took the children into the house. The next day she took them to school and day care, and went to work. The Father was due to collect the children that afternoon. She decided to attend the former matrimonial home where the Father and children were with a view to collecting them. It seems as if [X] told her Father that “Mummy’s got a new boyfriend”. There was a confrontation between the parents. She deposes that the Father said: “Go and get that fucking cunt so I can come and flog him. You too.” She eventually went home. The man who later became the Mother’s partner went around to the Mother’s home.

5. Whilst he was there, the Father arrived in his car. The other gentleman left. The Father pursued in his vehicle. The Mother reports that he told her: “…he tailgated me. He keeps coming up the side and he is staring at me. I’m just going to keep driving. Can you please call the Police and tell them what is happening?” The Mother called the Police. The Father was subsequently charged with stalk/intimidate, and a provisional ADVO was supplied for the Mother’s protection. The ADVO in question was made final in Suburb C Local Court on 14 August 2017, for a period of 12 months. In relation to the stalk/intimidation charge, the Father pleaded guilty and was given a sentence under section 10 with a 12-month bond and fined $600.

6. There is an Affidavit from the Maternal Grandmother affirmed 25 July 2018. It is corroborative of the Mother’s allegations about the Father’s physical abuse of [X].

7. There is an Affidavit of Mr S, affirmed 25 July 2018. He deposes that he is in a relationship with the Mother, and they are engaged to be married. He corroborates the Mother’s evidence about the incident on and after 11 June 2017. He also deposes to [X] making disclosures to him about the Father’s physical punishment of her.

The evidence in the Father’s case

1. The Father relied on an Affidavit sworn on 9 March 2018, filed 15 March 2018. He deposes to a post-separation informal parenting agreement that saw the children living with the Mother, and spending time with him each alternate weekend from Friday afternoon through to Sunday evening, as well as after school on Mondays, Tuesdays and Wednesdays. He also deposes to further occasions when the Mother has requested him to have the children. This he attributed to the Mother entering into a relationship with another person, a matter that “upset” him (paragraph 33). He raises issues about the children’s progress at school and, inferentially, the Mother’s parenting capacity.

2. He gives evidence about the AVO at paragraphs 42 to 50 of his Affidavit. He describes the incident on 14 June 2017 as “an incident at changeover” at which “the Police attended and I was issued with a provision Apprehended Violence Order”. This minimalist description of the events in question stands in strong contrast to that of the Mother, and Mr S.

3. At paragraph 43, the Father deposes: “Prior to this incident there had been no issues between Ms Paddon and me in respect of any sort of family violence.” The court observes the curious inconsistency between this evidence, and his Solicitor’s submissions about the conflicted relationship, and the “couple/couple violence” that took place.

4. The Father gives evidence about how, notwithstanding the AVO, the Mother has sought to communicate with him in relation to parenting issues.

5. In his Affidavit, he deposes to the Mother having suspended his time with the children, indeed more than once, on the basis of alleged concerns about the children’s trauma, and his parenting capacity. At paragraph 57 he says: “I strongly deny all these allegations and reject that I have behaved as Ms Paddon has alleged.” The context of this denial is the Mother’s contention that the Father had threatened violence against the Mother’s new partner, and that he was responsible for causing [X]’s mental health concerns.

6. The Court finds it curious that no effort was made by the Father to file any evidence to respond to the Mother’s Affidavit filed 25 July 2018. True it is that 25 July 2018 was the last date that the parties were permitted to file their evidence, in accordance with directions made. However, that would not have prevented the Father, through his Solicitor, from seeking leave to file an Affidavit out of time. It would have been very helpful to have had further evidence from the Father.

The Child Dispute Conference Memorandum to the Court dated 29 June 2018

1. This document contains a number of important admissions by the Father that need to be recorded. The Child Dispute Conference Memorandum was tendered into evidence without objection. No submission was made that the Court should not give it anything other than significant weight. On the first page of the Memorandum, and referring to the Mother re-partnering after separation and (presumably) the incident referred to earlier in these Reasons, the Family Consultant records about the Father:

   He said that Ms Paddon would have likely been frightened of him during this argument, although he denied that the children would have been frightened of him during this incident. Mr Haben said that he has pushed Ms Paddon, however denied that there have been other instances of family violence. He alleges that Ms Paddon, throughout their relationship, was violent towards him, including swinging punches at him and smashing the glass shower screen while he was showering.

2. There are obvious difficulties with what the Father is recorded as having said. It is not in his Affidavit. It is inconsistent with the Mother’s evidence. In the context of an incident in which the children were plainly present, it is hard to understand how he might form the view that whilst the Mother might have been frightened of him, the children would not have been.

1. On the second dot point on page 2, the Family Consultant records about the Father:

   Mr Haben said that he is completing an anger management course and counselling due to solicitor’s advice that he do so. This author was unclear whether Mr Haben considered that he had a problem with anger that would benefit from education or counselling. He said that he had completed two sessions at the time of his appointment.

2. More will be said about this issue below.

3. On the fifth dot point on page 2, under the heading Mental Health, the Family Consultant records:

   Mr Haben said that he feels down and has had thoughts of suicide, especially after a friend of his recently suicided. He said that he has no intentions of suicide and that he has engaged in counselling to assist him with the feelings associated with not spending time with his daughters

4. At the sixth dot point on the second page of the Memorandum, under the heading Child Abuse, the Family Consultant records:

   Ms Paddon alleges that Mr Haben has hit [X] with a belt, leaving her bleeding and bruised (approximately the week prior to the parental separation). She said that [X] has alleged that her Father has tried to drown her by holding her head underwater, and that [X] has witnessed her Father hurt her Mother while pregnant with [Y]. Ms Paddon said that [X] has been diagnosed by a paediatrician as having post-traumatic disorder due to her experience of witnessing family violence and being abused by her Father. Mr Haben denies that he has ever frightened or hurt the children.

5. The incident about the Father hitting [X] with a belt is deposed to at paragraphs 41 to 43 of the Mother’s Affidavit, and bears reproduction:

   On 11 April 2017 I was with [Y] in her room changing her and Mr Haben and [X] were in the kitchen at the other end of the house. I heard Mr Haben scream loudly at [X] saying words to the effect “eat your fucking dinner now. I told you to fucking eat your food.” I then heard a very distressed high-pitched scream from [X]. By the tone of her voice I immediately knew something was wrong.

   I ran over to [X] and saw Mr Haben standing over the top of her with a leather belt in his hands. [X] was hysterical and was having difficulty breathy. She was taking short, shallow breaths and was crying uncontrollably. I said words to the effect “what’s happened? What have you done to her?”. Mr Haben said to me words to the effect “she wouldn’t eat her fucking dinner”.

   I lifted [X]’s shirt and observed a long bloodied, red welt across the top of her back just under her shoulder blades. I could see an imprint of a plaited pattern in her skin matching the pattern of the belt in Mr Haben’s hands. It became clear to me that Mr Haben had assaulted [X] with his belt. [X]’s wound was slightly bleeding. At this point [X] was so distressed she wasn’t making much noise and some of the food in her mouth had fallen out. I recall screaming at Mr Haben and I picked up [X] and carried hr to the bath to run cold water over her back. I yelled at Mr Haben words to the effect “Get out. Get away from her. Get away from me. Get out. Leave. Get out of the house now/” Mr Haben left and did not stay home that night. I did not report the matter as I was scared of how Mr Haben would react, and I was also concerned that FaCS would become involved. It is one of my biggest regrets that I did not report the incident.

6. More will be said about [X]’s mental health issues below.

7. The fourth paragraph on the third page of the Memorandum is relevant to the important issue before the Court; namely, whether there should be supervised time for [X]. The Family Consultant records:

   Ms Paddon said that she is concerned that, if [X] and [Y] were to spend time with their Father again, [X]’s behaviour would deteriorate. Ms Paddon said that she (Ms Paddon) and the professionals involved (both her teachers and health practitioners) have worked hard at stabilising [X], and she said that [Y] appears settled and happy. Ms Paddon said that [X] has historically been very unsettled when she has had contact with her Father.

8. An issue for the Court is to consider how [X] might experience even supervised contact with her Father. The evidence about this will need to be closely considered.

9. On the last page of the memorandum, under the heading Future Directions, at the first dot point, the family consultant records:

   There are serious allegations made within this matter regarding child abuse and family violence that, if accurate, would potentially place the children at risk were they to spend unsupervised time with their father.  Although Mr Haben said that he is completing an anger management course, this author is concerned that, if the risk is as Ms Paddon alleges, such a course would be considered inadequate.  Conversely if, as the father states, the children are safe with him, they are missing out on spending time with their father, who would usually be a significant and important person in their lives.

Documents produced by Converge International

1. The Solicitor for the Mother caused to be issued to Converge International a subpoena to produce their records in relation to their involvement with the Father. It was the Father’s Solicitor, however, who caused these documents to be tendered into evidence. Each of the parties flagged pages contained in this bundle. What becomes apparent from examining the totality of the pages flagged is that Converge is an employee assistance program (EAP), that is, an employment-based counselling and psychological service. All of the Father’s attendances on a counsellor or psychologist (it is unclear which) were by telephone.

2. The Father’s first session appears to have been on 20 June 2018, just over three months after he commenced the proceedings. Under the heading ‘Issues as described by the Client’, the Father is recorded as saying: “My solicitor said that I should do to [sic] anger management and a parenting course”. Under the heading ‘General notes from session’, the Father is recorded as saying: “My solicitor said I will have to start off with supervised visits.” The goals for session was described as: “Manage uncomfortable emotions.” The action/homework was described as: “Work on anger management over the next two sessions, and parenting skills for the remainder of the sessions.”

3. The Court observes that the Father clearly had good legal advice. One inference available to be drawn is that he didn’t listen to that advice because his Application filed 15 March 2018 makes no reference to supervised visits. The Court observes that if the Father’s participation with Converge is evidence that the Father accepts that he has an anger management issue, or that it somehow exemplifies the “journey of realisation” that the Father was on, the first session certainly doesn’t demonstrate the former, but might evidence tentative steps along the journey.

4. The last session recorded in the documents was on 24 July 2018, and in this session the Father is stated as wanting “to do further work on anger management”.

5. One of the difficult issues in this case is for the Court to assess the Father’s response to the family violence allegations made against him, and to factor in that response in any risk assessment exercise, even risks associated with supervised contact itself. This will be discussed in greater detail below.

Documents produced by (omitted) Psychology

1. This company provided psychological assistance to [X]. It is clear that in the early sessions [X] was accompanied by her Mother, who gave a history, which clearly included a history of family violence to which, the Mother asserts, [X] was exposed. Whilst the Court recognises the potential impact that this might have had on what [X] later told her Psychologist, what is clear from the important entries that will be discussed below is that there is no evidence of the Mother having been present at these sessions. Indeed, these records seem to helpfully differentiate between sessions that the Mother attended with [X], and those where she attended herself.

2. The record for session five on 16 March 2018 includes the following notes:

   [X] recalled her Father hitting her with a belt on her back, which resulted in her bleeding.

   [X] said that her Father would mainly hit her when she didn’t eat her dinner.

   [X] said that her Father threw a stool at her Mother when she was pregnant with [Y].

   [X] said that her Father used to hit her Mother.

3. Session number eight took place on 26 July 2018 and contains the following records:

   [X] recalled her Father calling her the “c” word a lot.

   Recalls her Father always being angry at her and her Mother.

   [X] said that she hasn’t been scared like that since.

   Said that the stool incident that happened with her Mother still keeps popping in her head.

   [X] said that she feels safe now.

   Dreams at night are happy.

4. Within this record is a Psychometric Report prepared in relation to [X] dated 26 February 2018. The summary commences at page 9 and is quite long. The recommendations are found on page 10. The first recommendation is that a copy of the Report be provided to [X]’s Mother, her general practitioner, and her current paediatrician. The second recommendation is that: “[X] continue psychological therapy to treat her symptoms of ADHD, anxiety, post-traumatic stress and oppositional behaviour.”

Documents produced by Dr N, General Practitioner of Suburb D

1. This doctor appears to be both [X] and [Y]’s General Practitioner. Some of the records flagged demonstrate the challenges associated with parenting [X] as a result of her hyperactivity. There are two medical reports of particular interest in the present context. There is Dr M’s Report to the Doctor, dated 12 December 2017. Dr M appears to be [X]’s Paediatrician. In this Report, Dr M discusses what seems to be the difficulty in diagnosing [X]’s hyperactivity at home and at school because of a number of other confounding factors. The fourth paragraph of the letter is in the following terms:

   A key issue in differentiating emotional disturbance and anxiety from primary inattention is the background of complex trauma. It is unclear as to exactly how pervasive these problematic behaviours are, both longitudinally and in various domains. The basis of the disruptive behaviours and emotional dysregulation – anxiety, complex trauma, ADHD, ODD, etcetera – remains to be established.

2. In the penultimate paragraph, Dr M records that he is reinforced in his impression “that there are a combination of factors at play for [X]”.

3. This is an important document to be considered in the context of the submission made on behalf of the Father that [X]’s special needs are not necessarily attributable to any issues pertaining to the Father. Dr M’s Report, however, neither rules out the significance of trauma experienced by [X] as a complicating contributor to her ADHD, nor does he provide any reassurance from the Court’s perspective about how she would cope with the reintroduction of the Father into her life.

4. A further document in the bundle, which was flagged, is a Report dated 20 February 2018 from a Dr R to [X]’s General Practitioner. It refers to her learning issues, behavioural problems, defiance and hyperactivity, suboptimal fine motor skills and a range of other issues. What the Court derives from this Report, together with the other material before the Court about [X], is that clearly she is a vulnerable child. The precise source or explanation of this is not clear. Of interest in this Report, however, is Dr R’s reference in the third paragraph of his letter that: “There is no H/O exposure to DV and there is AVO against Dad.” If this is meant to say there is no history of [X]’s exposure to domestic violence, this is clearly inconsistent with the evidence before the Court.

Orders in the best interests of the children?

1. Both children have a meaningful relationship with their Mother. That is not in contention. Even though the children have not spent time with their Father for many months now, there is no reason to believe that they have lost the meaningful relationship which the Court is prepared to infer they had with him. In a prospective sense, the Court accepts they would benefit from having a meaningful relationship with their Father. In this case, risk considerations must prevail.

2. In a sense, it is common ground that there is the need to protect the children from at least psychological harm, because even the Father proposes supervised time at a supervised contact centre. The Mother’s case is that the children need to be protected from the risk of psychological harm, even with supervised time. The case in relation to [X] is made out. The Court is satisfied that there is a risk of psychological harm to her even if she were to see her Father on a limited basis, and in the restricted confines of a supervised contact centre.

3. [X] seems to have a clear recollection of the violence to which she was exposed, or suffered. This Court believes she is a vulnerable child. Her psychiatrist, Dr M, in his letter to [X]’s General Practitioner, refers to;

   “the pervasive impact of primary learning difficulties for [X] – affecting memory and information retention, and language and literacy skills – which remain at a beginner kindergarten level at the end of 2017. There are impulsive, intrusive and distractible behaviours.

   These are difficulties in addition to the inevitable challenges associated with having experienced family violence from a parent. One of her treating doctors, Dr E, refers to her anxiety/post-traumatic stress and oppositional behaviours in her letter of 15 December 2017. In Dr M’s letter of 12 December 2017 he raises the issue of [X]’s “background of complex trauma” and expresses uncertainty as to how this interacts with her other behavioural problems. This Court is not prepared to take the chance with [X]. Whilst supervised time at a supervised contact centre would probably protect many, if not most, children who have been exposed to family violence, that is not necessarily the case in relation to [X].

4. Mr McGrath, on behalf of the Father, quite correctly submitted that different risk considerations apply for [Y], indeed the risk profile is entirely different. The prospect of splitting the siblings in the context of spending time with their Father was not seriously considered by any of the parties, and the Court is most reluctant to make such an order, again without further expert evidence.

5. Given the concerns about [X], the Court is concerned about making a change to her circumstances, the effect of which is unknown, but which carries a risk of destabilising her life.

6. The Court is aware of no issues of practical difficulty and expense which would be associated with the Father spending supervised time at a supervised contact centre. There will be delays, but these are unavoidable. The Court has considered the possibility of a private external but professional supervised contact service, but it is not prepared to consider that option, in this case, for the time being. The Father’s time with the children needs to take place in an environment where there is both vigilant supervision, and record taking.

7. There are probably matters of parental capacity that will need to be explored further at a Final Hearing. Based on the material before the Court at present, the Mother seems more than capable of providing all of the needs of the children. The concerns raised about the Father suggest some deficiency, but again this will need to be explored in greater detail at a later time.

8. There are many issues about parental attitudes that need to be explored. At a Final Hearing the Court will want to understand why the Mother facilitated unsupervised time between the children and their Father, knowing what she did about his conduct both towards her, and the children. Whatever she did, and whatever reasons she held for so doing, are not regarded by this Court as a fetter to making a decision which it considers to be in the best interests of the children, having regard to all the knowledge available to it at this point in time.

9. The issue of the Father’s attitude was, quite properly, raised by his Solicitor in submissions. It was submitted, for example, that he was on a journey of realisation. That remains to be seen. The Father will, no doubt, be disappointed by the Orders the Court has made. It would be most unfortunate, from his children’s perspective, if he were now to, in effect, give up. He has an opportunity now. The Court has concerns about the behaviour that it has identified in these Reasons for Judgment. The Court is not able to make findings, but has nonetheless formed an impression. The forming of an impression is necessary in order to undertake the risk assessment exercise that is at the heart of the current process.

10. But what can the Father do to influence a different outcome at a Final Hearing?  He might consider a number of things. Perhaps the first thing is his motivation: is it to achieve a better outcome in the present litigation, or is the real motivation to bring about deep personal and lasting changes as a result of hard work, deep reflection, and a commitment to lifelong reform? A change in the Father’s attitude might be manifested, for example, by a full disclosure of the history (if any) of physical and psychological abuse that has been perpetrated towards others. There would need to be no denial, or minimisation. 

11. Disclosure would need to be accompanied by acceptance of responsibility. The Father would need to demonstrate recognition that his behaviour was unacceptable, and that he chose to behave the way he did and is responsible for its consequences. The Father would have to openly recognise the consequences of his actions on his family, and demonstrate empathy and understanding. It would be helpful for him to be able to understand how his behaviour was part of a pattern of behaviours and attitudes, if that was the case. He would need to develop deeply respectful behaviours and attitudes, and perhaps re-evaluate his image of the Mother of his children, and the children themselves. The Father would need to make amends, and accept the personal consequences of his behaviour on himself. He would need to demonstrate a commitment not to repeat his abusive behaviour. He would have to be in there for the long term, rather than the short term, and accept the difficult process of being held accountable for past actions. This is not an exhaustive list.

12. Of course, the Court does not rule out the possibility that at a Final Hearing the Father will actually prove his case, and show to the Court that the Mother’s evidence is exaggerated. Together with his legal advisors, he is encouraged to earnestly evaluate the evidence before the Court.

13. Attitudinal change on the part of the Father is not impossible. The Court asks him to understand that the current Interim Order for no contact or communication does not mean that the Final Order will be the same.

14. For the time being, the Father should have no contact or communication with the children. This will be revisited on receipt of further expert evidence. The Orders proposed by the Mother will be made. The presumption of equal shared parental responsibility is negated by virtue of the evidence before the Court. The evidence likewise justifies the making of the s68B Order sought by the Mother.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 24 August 2018