HADDON & BANOS
[2019] FCCA 2865
•9 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADDON & BANOS | [2019] FCCA 2865 |
| Catchwords: FAMILY LAW – Parenting – best interests of the children – allegations of severe family violence – assessment of risk – unacceptable risk – sole parental responsibility – no time. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), Pt VII, ss.4, 4AB(1), 4AB(2), 4AB(4), 11F, 60B, 60B(1), 60CA, 60CC(2), 60CC(3), 61DA, 65D |
| Cases cited: Andrew & Delaine [2009] FamCAFC 182 B and B [1993] FamCA 143 Grella & Jamieson [2017] FamCAFC 21 In the Marriage of Hall [1979] FamCA 73 M & M [1998] FamCA 1742 |
| Applicant: | MR HADDON |
| Respondent: | MS BANOS |
| File Number: | MLC 8323 of 2018 |
| Judgment of: | Judge Carter |
| Hearing dates: | 29 & 30 August 2019 |
| Date of Last Submission: | 30 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 9 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Willee |
| Solicitors for the Applicant: | Randles Cooper & Co |
| Counsel for the Respondent: | Ms Bastick |
| Solicitors for the Respondent: | Cathleen Corridon & Associates |
| Counsel for the Independent Children's Lawyer: | Mr Eidelson |
| Solicitors for the Independent Children's Lawyer: | Westminster Lawyers Pty Ltd |
ORDERS
All previous parenting orders in relation to the children Y born on … 2011 and X born on … 2014 (collectively, “the children”) be discharged.
The Mother have sole parental responsibility for the children.
The children live with the Mother.
The children spend no time and have no communication with the Father.
The Respondent Mother MS BANOS may apply for a passport for the children or either of them, without first obtaining the consent of the Applicant Father MR HADDON.
For the purposes of order (5) hereof, liberty is granted to the solicitors for the Respondent Mother, Messrs. Cathleen Corridon & Associates, to provide a copy of these orders to the Department of Foreign Affairs and Trade.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Haddon & Banos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8323 of 2018
| MR HADDON |
Applicant
And
| MS BANOS |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings I have been asked to determine parenting arrangements for the two children of the parties, Y born on … 2011, aged 8 (“Y”) and X born on … 2014, aged 5 (“X”).
At the commencement of the proceedings Counsel for the Father proposed on behalf of the Father that the parties have equal shared parental responsibility for the children, the children live with their Mother, and that the Father spend supervised time with the children on six occasions in each year at a supervised children’s contact centre. He proposed that each session be two hours long and coincide roughly with the Father’s birthday, the children’s birthdays, Father’s Day, Christmas and one other occasion.
The Mother and the Independent Children’s Lawyer proposed that the Mother have sole parental responsibility for the children and that they live with her. They sought that the children spend no time and have no communication with their Father, and that the Mother be authorised to obtain the children’s passports without obtaining the consent of the Father.
The Mother and the Independent Children’s Lawyer assert that the Father presents an unacceptable risk to the children, and that any benefits to the children of having or maintaining a relationship with their Father are outweighed by the risks associated with that.
The Father denies that he presents an unacceptable risk to the children. It is his case that supervised time will provide a safe environment for the children to spend time and communicate with him. It is also the Father’s case that it is in the children’s best interests that they know their Father and have a relationship with him, albeit limited.
The Court is accordingly faced with an exquisitely difficult determination, as the orders sought by the Mother and the Independent Children’s Lawyer effectively eliminate the Father from the children’s lives.
Background
The parties were in a relationship between approximately 2006 and June 2017. There are two children of the relationship as already set out. The Mother also has a child from a previous relationship, Mr A, born on … 2001 and aged 18 (“Mr A”).
The Mother is aged 43. She is employed as a health care worker for Employer B and is employed on a part-time basis. She continues to have both the children and her son Mr A in her full-time care. The Mother is in a relationship with Mr C (“Mr C”). Mr C is a tradesman. He has two children aged 11 and 12 who he is not currently seeing.
The Father is aged 44. He is living with the paternal grandfather. He obtains sporadic casual employment as a labourer and is otherwise in receipt of the Newstart Allowance through Centrelink.
Y has been diagnosed with Autism Spectrum Disorder (“ASD”). She is in grade four at school and is reportedly progressing satisfactorily.
X is attending kindergarten. He has been assessed as having ASD and likely Attention Deficit Hyperactivity Disorder (“ADHD”) with an intellectual and language impairment. The Mother asserts that as a result, X experiences delayed speech, severe expressive language impairment, receptive language impairment, speech sound disorder, short attention span, delayed play and is constantly active. She says he has severe difficulties coping with changes to his routine or environment, and struggles with social interactions, crowds and loud noises. It is understood that X does not communicate verbally and uses sign language to communicate.
The Mother asserts that the Father perpetrated significant verbal, emotional and physical violence upon her and her son Mr A during the course of the relationship, and that the children witnessed this abuse.
The Department of Health and Human Services (“DHHS”) was first involved with this family in December 2015. At that time, Mr A had called the police, saying that the Father was yelling at him and the Mother. The report from DHHS sets out that the police attended at that time, spoke to all parties, and that the Father appeared to be alcohol affected. However, Ms Banos was reported as not being fearful and not requiring police involvement. The police took no further action, and Child Protection closed the file.
The Mother says the Father’s abusive behaviour escalated until in June 2017 when she decided to end the relationship. At that time, the Mother asserts the Father was violent and aggressive. It is common ground that the Father subsequently sent her multiple vicious and threatening text messages, which included making threats to her life. At some point he also made threats to the children’s lives. I will return to the allegations of violence later in these reasons.
At that time, the police assisted the Mother to obtain an Intervention Order which has subsequently been extended and remains in full force and effect. The Intervention Order includes the children as affected family members. They have had no time with their Father since separation in June 2017, save briefly for the purposes of observations during the preparation of the Family Report in June 2019.
The Father was arrested and held in remand for two weeks in … 2017. He was charged with using a carriage service to menace, three counts of threat to damage property, two counts of threat to kill, threat to inflict serious injury and intentionally damage property. The charges of using a carriage service to menace and threats to damage property were struck out and withdrawn respectively. In relation to the balance of the charges, the Father pleaded guilty and was dealt with without conviction. He entered into a 12 month Community Corrections Order with a condition to undergo treatment and rehabilitation. He was subsequently charged with breaching both the Intervention Order and the Community Corrections Order.
On 29 June 2017, DHHS was once again notified. The report from DHHS records the Father as having been aggressive when interviewed by Child Protection and demonstrating little insight into the impact of the violence on the children. Child Protection closed their file on the basis that the Mother was assessed as acting protectively, as she had no intention of returning to the relationship and had the benefit of a full Intervention Order in place.
On 26 August 2018, the Father completed an Anger Management course.
On 27 March 2018, the Father was dealt with for breaching both the Intervention Order and the Community Corrections Order. The contravention of the Community Corrections Order was proven and he was also convicted of breaching the Intervention Order. He was placed on a Community Corrections Order for 18 months requiring unpaid community work, 30 hours of which was to include “treatment and rehabilitation” by attending an offending behaviours program. At some stage, that condition was amended to include a requirement that the Father undergo regular and random drug testing. I am not aware that there has been any compliance with that condition. He is still completing that order.
On 14 June 2018, the Father was dealt with regarding a charge of the use of a carriage service to harass. He was fined $500 without conviction.
A third report was received by DHHS on 21 June 2018. The allegations at that time were that Y and X were at risk from Mr A’s anger. The report also asserted that Mr A had grabbed the Mother by the neck and was non-compliant with taking his medication. DHHS assessed the allegations as historical, and did not take the view that there was any risk to the children in their Mother’s care. That report was closed at intake.
The Father issued these proceedings on 23 July 2018. At that time, he sought orders that the children spend each alternate weekend with him together with half of the school holidays.
In or around September 2018, the Father sent the Mother text messages saying that he wanted to see the children. These were sent in breach of the Intervention Order. The Mother reported the messages to the police and the Father was subsequently charged with those breaches.
Orders were made on 3 September 2018 by her Honour Judge Stewart for the appointment of an Independent Children’s Lawyer. A further order was made for a Child Inclusive Conference to occur pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”) (“the Child Inclusive Conference”).
On 19 October 2018, the Father completed a Men’s Behaviour Change Program.
On 11 October 2018, DHHS provided a report to the Court that assessed the children as not being at significant risk of harm if supervised contact commenced. They recommended contact at a supervised family contact centre until an alternate suitable supervisor could be determined.
On 19 December 2018, the parties met with Family Consultant Ms D (“Ms D”) for the Child Inclusive Conference. She recommended that if there was to be time between the children and their Father, it should be at a supervised children’s contact centre. She further recommended that time should only commence following the Father undergoing a forensic psychological assessment to assess the risks he may pose to the children, his cognitive capacity, his mental health and substance use issues. Ms D also recommended that the Father submit to hair follicle testing for illicit substances. She was clearly concerned about the Father’s presentation on that day and recommended that he attend upon a mental health professional or psychologist.
Further orders were made on 14 January 2019 by her Honour reserving the issue of the Father’s time with the children. Orders were also made for the preparation of a Family Report. The Father was to undergo hair follicle testing for drug use, and was to attend upon a forensic psychologist for the purposes of a psychological assessment.
The Mother tendered a document from Victoria Police indicating that the Father was dealt with in relation to a number of offences in March 2019. Those charges were dealt with as follows:-
a)the Father was convicted and ordered to pay a $1,000 fine in relation to the charge of threat to inflict serious injury. He was to engage with a psychologist “to address ongoing inability to regulate his emotions”. He was also required to “remain abstinent from all illicit drug use”; and
b)the charge of contravene Community Corrections Order was proven with conviction. The Father was fined $400.
It appears that the Father’s Community Corrections Order was varied at that time, adding in conditions that the Father undergo assessment and treatment, including testing for drug abuse or dependency, attending such offending behaviour program as directed and undergoing regular and random drug testing.
The Family Report was released on 25 July 2019. Ms D made recommendations that the children remained living with their Mother and spend supervised time with their Father on no more than four occasions each year. She also recommended that the Father attend upon a psychologist to undertake individual therapeutic work regarding anger management and impulse control issues, and to improve his reflective functioning capacity.
The evidence
I have read each of the affidavits and applications of the parties to which I was referred. I also had the benefit of hearing both the Mother and the Father give evidence and be subjected to cross-examination. Ms D, who prepared both the Child Inclusive Conference Memorandum and the Family Report, also gave evidence and was cross-examined.
The Father had obtained a psychological assessment from Ms E, forensic psychologist (“Ms E”). The Father did not seek to rely on that report. The report was not put before me, and nor was Ms E required for cross-examination. Accordingly, I have no independent or expert evidence before me as to the Father’s cognitive capacity or mental health.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings to a balance of probabilities.
I also add that as a result of the allegations of violence, the Mother sought that she be permitted to participate in the proceedings and give her evidence via video link from a separate secure courtroom. Given the significant allegations in this matter, arrangements were made to accommodate that.
Accordingly, when the Father gave his evidence and was cross-examined, the Mother sat in another courtroom, but was able to observe the proceedings via video link. When the Mother gave her evidence and was subject to cross-examination, she was present in the courtroom in which I was sitting. The Father was in turn able to observe the proceedings from the secure courtroom via video link. This gave me the advantage of being able to observe the parties each giving their evidence in person. I was also able to observe the Father’s behaviour not only during the giving of his evidence, but also his behaviour and attitude towards the Mother during her cross-examination.
The Mother’s affidavit evidence
Although the Mother was the Respondent in these proceedings, I shall set out her evidence first as a significant portion of the Father’s case is to deny the Mother’s allegations of violence. Accordingly, it is logical to set out the allegations before turning to the Father’s responses and explanations for those allegations.
The Mother relied on a trial affidavit filed in these proceedings on 21 August 2019. In that affidavit, she set out the children’s diagnoses, and in particular, X’s impaired capacity to communicate or deal with everyday activities and his limited capacity to cope with changes to his routine or environment.
The Mother acknowledges that for most of the duration of the relationship, she worked three different jobs. The Father did not work. In her oral evidence, the Mother said she had to work as the Father reused to do so, and someone needed to bring in income to support the family.
The Mother deposes that the Father was violent and aggressive towards her and Mr A on a number of occasions, often in the presence of the children. Her evidence included allegations that the Father had smashed a television, thrown his own mobile telephone, put rubbish into Mr A’s bed, and subjected her to verbal abuse in calling her names such as “fat cunt”, “mega cunt”, “weak cunt” and “slut cunt”. She said the Father yelled and swore at all three children, and that they were frightened of that behaviour.
The Mother also deposed to two incidents where she said the Father had his hands on Mr A’s neck. She said this first occurred in 2014, during an altercation where the Father smashed a hole in Mr A’s bedroom door in Y’s presence. The second occasion occurred in 2017, where the Father tried to strangle Mr A and hit him on the head. The Mother said the Father then threw a coffee table and smashed it. She said at the time the children were hiding under the bed, and she locked the bedroom door and called the police. The Mother said the Father had been drinking before that incident. At that time, the Mother said she took the children and stayed at the maternal grandparents’ home for a few days. The Mother returned to the relationship at this time. She said she did so on the condition that the Father would complete an anger management course, however he did not attend such a course at that time.
The Mother deposed that the Father drank beer on a daily basis, and that his aggressive and abusive behaviour worsened when he had been drinking. She said that in addition to drinking alcohol excessively, he regularly used marijuana.
The Mother said the Father’s abusive behaviour continued unabated. She said she asked him to leave on a few occasions, and he would refuse, saying such things as “I would rather let my kids see me go down with the police firing at me”, and that he would put her in “a pine box”.
The Mother said that the Father’s behaviour escalated in June 2017. On 24 June 2017, she said she was at work and texted the Father to let him know that Mr A would be coming to their house that afternoon. The Father sent her text messages saying “these [two] kids are fucked… and now HIM”. He also called the Mother a “dumb cunt” and a “weak cunt”, before sending a further 51 text messages saying, amongst other things, “fuck you”, “cunt slut”, and “fuck you… drown slowly”.
The following day, the Father continued to send abusive text messages to the Mother while she was at work.
On 27 June 2017, the Mother returned home from working night shift at 8.00am. She says later that day when she was in the bathroom, the Father got angry about Mr A and threw a Tupperware container filled with buttons against the bathroom door, smashing the container and spilling the contents all over the floor. She said the children were at day-care, and she left the house at that time to collect them. She says the Father ran after her and punched the windscreen of her car. When she was in the process of collecting the children from day-care, the Father sent her text message saying “fuck off blob” and suggested that the relationship was over.
The Mother then deposed to multiple text messages being sent by the Father to her throughout that evening which were of a particularly nasty and threatening nature. The texts included threatening to damage the home, killing the dogs, telling her “you are a cunt… watch your back and your car… you will get it [sic]”, sending a gun emoji, saying:-
… hope you fucking die… hope you hit a roo and then into a tree, but before you die, I hope you’re in that much pain and suffering then the kids will be mine… Just need you to die now, weak fat cunt.
In addition to the text messages, the Father also sent numerous Facebook messages that evening. The Mother estimated that there were about 100 messages from the Father, which included comments such as “I fucking hate you”, “I will cut your brakes and watch you die”, “die cunt die” and “Will put weedkiller in your drink one night”. He also threatened the Mother’s family, the Mother’s sister and her husband, threatened to “fire bomb” their caravan, and told them to “watch it”.
The Mother reported the matter to the police and the Father was subsequently arrested and was remanded in custody. Whilst he was detained, it is the Mother’s case that the Father made comments to the police that referred to him throwing the children off the Westgate Bridge, and telling the police that he wanted to make her “life hell”. The Family Violence Safety Notice issued on 28 June 2017 confirmed that the Father made such references, and that the police therefore had serious concern for the safety and welfare of the Mother and the children. Accordingly, the police assisted the Mother to obtain an Intervention Order.
A Full Intervention Order was obtained by the Mother on 13 July 2017.
The Mother deposed to the Father continuing to text her and telephone her between 7 August 2017 and 15 October 2017, in breach of that Intervention Order. She said that the Father did occasionally ask to see the children, however on a number of occasions the contact had nothing to do with spending time with them. She said for instance, he had threatened her job, told her she would not cope once the Intervention Order was finished, demanded money from her, called her mean and cruel, and said that it was her fault that he was not seeing the children.
As set out above, the Father was charged in relation to breaching the Intervention Order.
The Mother deposes to obtaining assistance from Berry Street in 2017, who assisted her to change the locks on her home. She also deposes to having installed CCTV in the main areas of the home with the assistance of the maternal grandfather.
The Mother said she has subsequently and successfully applied to have the Intervention Order extended. The last Intervention Order was made on 16 August 2018 and will expire on 15 August 2020. That Intervention Order was made in circumstances where the Father did not attend court.
On or around 10 September 2018 the Father obtained an Intervention Order against the Mother. She denies that there was ever any basis for him to do so. At any rate, when she attended the hearing, the Father did not attend to prosecute his application and the matter was struck out. There certainly was limited, if any, evidence led by the Father that could be justification for him making an application for an Intervention Order. It is difficult to see his application as motivated by anything other than a desire to distress and upset the Mother.
On 14 September 2018 the Father sent the Mother another text message requesting to see the children. The Mother again reported that as another breach of the Intervention Order.
At some stage, the Mother issued proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”) to have the entirety of the bond paid to her after the parties vacated the home they were previously renting in June 2017. The Mother said she had paid for the whole of the bond but the Father had refused to agree to it being repaid to her. That necessitated the Mother bringing VCAT proceedings, which the Father did not attend. The Father did not adequately explain either why he did not agree to her being refunded the full bond, nor why he failed to attend at the VCAT proceedings she was forced to bring as a result of his failure to co-operate.
The Mother asserts that the children are scared of their Father, are worried he will hurt them or their Mother, and that Y has nightmares about the Father. She said Y has told her that she remembers hiding under the bed with X when the Father was angry and the Father smashing things and screaming.
The Mother further deposes that following the observation sessions conducted as part of the Family Report, Y was very distressed and unsettled, struggled to sleep, refused to attend school or extra-curricular activities for a few days, and had nightmares when she fell asleep. The Mother said that X’s behaviour was similarly problematic following the observation session with his Father.
The Father’s affidavit evidence
The Father swore two affidavits in these proceedings. His first affidavit was filed on 23 July 2018 and his subsequent trial affidavit was filed on 27 August 2019. Both affidavits were remarkably short in length.
In his affidavits, the Father briefly set out the history of the matter. He acknowledges that he was charged in relation to breaches of the Intervention Order, and for having contravened a Community Corrections Order. He said that during the relationship the Mother went to work, leaving the children in his care, and did not raise issues or concerns in relation to their safety at that stage.
The Father sets out in his first affidavit that he had not seen the children since around 28 June 2017. He says at paragraph 8:-
…I have endeavoured to negotiate with the Respondent Mother in relation to spending time with the children however I have had to deal with an Intervention Order and also Police charges in relation to a breach of the Intervention Order and other related matters including a threat to kill.
He goes on to say at paragraph 12 that he attempted to arrange for mediation in April 2018, “however the Respondent Mother refused to participate” and as such the mediation did not occur.
Save for setting out a brief history in relation to the Intervention Order and related criminal proceedings, the Father makes no reference to the events surrounding these charges, nor makes any reference to family violence or the relationship between the parties.
The Father’s second affidavit does not extend on these matters much further. He continues to minimise issues as to family violence, saying that:-
…although the Applicant alleges that there had been at least 25 breaches of the intervention order by me, I was only charged by the Police on approximately 3 occasions in 2017, 2018 and 2019 in relation to breaches of Family Violence Orders and related charges.
Much like his reference to the charge of threat to kill in his first affidavit, the Father says at paragraph 5 of his second affidavit that he was charged with “threatening to inflict serious injury”, for which he was “convicted and fined $1000 and ordered to attend Psychological Counselling”. The Father does not go into any particulars as to the instance which brought about this charge.
The Father says that the Mother “did not raise issues or concerns in relation to the safety or the welfare of the children” whilst the parties were in a relationship, and that the Father and the children “would regularly go on weekends away…whilst the Respondent worked” and that “again she never expressed any concerns about my looking after the children”.
In relation to Mr A, he deposed that there were issues between the Mother and Mr A, and that the Mother had told him she was “terrified” of Mr A, resulting from “his outburst and even physical assaults on her”. The Father also takes issue with Mr C, alleging that he “has been found guilty of assaulting his wife and has a history of drug issues”.
The Father then goes on to set out in some detail all of the positive observations between he and the children from the Family Report interviews. He says:-
…on the basis of the observations made by Ms D during the time that the children were engaged with me, I say that it would be in the children’s’ [sic] interest for me to spend more time, even if initially it was to be on a supervised basis.
Effectively, the Father’s case is that the children should spend time with him, that they will benefit from that time and that this is important for their sense of identity. He denies that he presents a risk to the children, or that he subjected them to abuse. He also denies that he assaulted Mr A, although he said that on occasion Mr A had to be restrained from assaulting the Mother.
It is his case that the children are at risk of emotional harm if they are not permitted to have a relationship with him. He regards the Mother as withholding the children from him and restricting their relationship with him.
Ms D’s reports
The Child Inclusive Conference Memorandum
Ms D met with the parties and children on 19 December 2018 to undertake interviews for the Child Inclusive Conference. The observations regarding the Father included:-
a)when asked about having made the comments about throwing the children off the Westgate Bridge, the Father “…laughed and minimised them and stated that he didn’t mean what he said and that these comments were said out of anger”;
b)when the Father was informed he would not be seeing the children as part of the assessment, the Father:-
…became hostile and appeared angry and stated that he would be taking charges against Mr A… for punching holes in his property in the past if he didn’t get to see the children on the day of interview.
c)the Father:-
…indicated that he has little regard for the IVO conditions around contacting Ms Banos and confirmed that he has been contacting her regularly requesting to see the children.
d)the Father admitted to being verbally and physically violent towards Mr A;
e)the Father “…displayed limited insight into the impact of ongoing family violence on the children who regularly witnessed…” these incidents;
f)the Father admitted to regularly calling the Mother offensive names. He also used offensive language to describe the Mother during the process of the assessment, calling her a “pig” and “mentally retarded”;
g)the Father is described as presenting as “… aggressive, hostile, defensive and lacking in insight during interview”;
h)the Father said he had ceased using marijuana but that he would not do drug tests even if ordered stating that it has “nothing to do with the [sic] it” as he did not believe using marijuana impacted on his parenting in any way. Ms D described the Father as minimising concerns regarding substance abuse issues and the impact that may have on the children;
i)the Father denied misusing alcohol, saying that he consumed six beers per week; and
j)the Father:-
…displayed a hostile, reactive style of communicating and threatened that if he does not get to see his children within 3 months that he would “die from suicide” and that he would “do it on Christmas Day to wreck the children’s Christmas Day”. Given his impulsivity and apparent reactive nature, there are concerns about Mr Haddon’s mental stability and he may be high risk of suicide if he does not obtain the outcome he desires.
Ms D expressed a view that she had serious concerns about the children’s welfare given the Father’s “… presentation and impulsivity and revengeful [sic] nature. It is possible that Mr Haddon may harm the children to enact revenge on Ms Banos”.
In her interview, Y is recorded as having reported that the Father had thrown furniture, corroborating the Mother’s evidence, and that it was “scary” for her. She said that the Father had many fights with Mr A and she hid with X under the “hidey hole in the couch” because she said she had to “protect [her] brother X”.
Ms D reports that when Y sees a photograph of her Father, it brings up bad memories of the fights, and she worries about what might happen in the future. She said that whilst Y said she would like to see her Father, “…her narrative expressed fear and a desire to feel safe”.
Ms D noted at the time that both children have been exposed to significant family violence, and:-
…it is likely that they could be exposed to emotional harm if they were to see their father even in a supervised capacity given Mr Haddon’s impulsivity and apparent inability to control his verbal content…
She recommended that children live with the Mother, and that if there was to be any time between the children and their Father, it should occur at a supervised children’s contact centre, but not before the Father has had a psychological assessment and submitted to hair follicle testing.
The Family Report
The parties again attended upon Ms D for the purposes of the preparation of the Family Report on 24 June 2019.
The Father reported that he was using two to three “bongs” each weekend. At that time he had not yet completed a hair follicle test. Ms D described him as presenting as:-
…slightly more cooperative and in control of his emotions compared to his concerning presentation at the S11F interviews. However, Mr Haddon continued to become agitated at times and demonstrated heightened emotions requiring support from the writer to complete the interview.
Ms D said the Father again used denigrating language regarding the Mother, calling her “fat and wobbly, like a turtle”. He appeared to remain angry at the Mother, describing the situation as “it’s a joke. I haven’t done anything. [The Mother] is just trying to start trouble”. That comment suggests that the Father has very limited insight into the impact and consequences arising from his behaviours and threats.
Ms D said that the Father’s attitude towards the law and the Court continued to be problematic. The Father was displeased that both the Family Consultant and the judge determining his matter were both female. He said that his case would be treated more sympathetically if both had been males. He is recorded to have said “it’s so one sided…It’s sexist the family court, you are a female, the judge is a female, I want to request a male”.
Although not in his affidavit material, the Father alleged to Ms D that the Mother had on one occasion threatened to kill X when she was trying to sleep after a night shift and he was keeping her awake. The Father had not previously reported this allegation to anyone.
In relation to his criminal history, the Father appeared “somewhat dismissive” and did not believe that it was of any significance.
Although it was not in the Father’s affidavit material, he asserted to Ms D that the Mother and the maternal grandmother have attempted to “stalk him” on social media, breaching his privacy. He was described as being “very preoccupied with his concern” about this. Indeed, at one stage during the interview, the Father threatened to leave the room in order to report the alleged stalking to the police. Ms D said Mr Haddon then said “… someone is going down today… I am going to the Court. I want to bring her down so hard”, in reference to the Mother.
In relation to the allegations of family violence during the relationship, the Father said “nothing happened” to the Mother other than him having sent verbally abusive text messages. He did acknowledge that these were “revolting messages” which he appeared to regret sending.
The Father described Mr A as a “spoiled brat” and that he did not believe his diagnosis of Asperger’s Syndrome. He acknowledged he had put rubbish in Mr A’s bed which he said he did to “teach him a lesson” when Mr A did not tidy his room. He did not see any issue with him behaving this way.
The Father acknowledged he had dragged Mr A by the arm, but only after Mr A had allegedly punched a hole in the wall. He denied that he had attempted to choke Mr A or ever hit him. He said he dislikes Mr A intensely, and threatened to “bring charges” against him for punching holes in the walls of the family home. He said that he holds Mr A responsible for “all the issues in the family” and that Mr A was the cause of many arguments between himself and the Mother. Blaming Mr A suggests that the Father has very limited insight into his behaviours and the role he played in the conflict. It also suggests a significantly impaired ability to take responsibility for his own actions and behaviour. It is worth noting that Mr A had only just turned 16 when the parties separated.
Ms D conducted an observation session between the children and their Father in preparing the Family Report. When she informed the Father he would be seeing the children, she noted that he responded “somewhat sarcastically”, saying “whoop de do, oh, for five minutes”.
In relation to his threat to throw the children of the Westgate Bridge, he dismissed that as a comment made out of anger which he never intended to act upon. He was dismissive of the Mother’s concerns regarding that threat and implied that he felt she was overreacting. He maintained to Ms D that there is no reason why he cannot spend time with children, and that in his view, any such time need not be supervised.
In relation to the hair follicle testing, the Father said he had not complied with the Court-ordered tests, as he could not afford the cost of them. He said he continues to use cannabis on the weekends and cannot see an issue with this, saying “it’s not a crime”.
Ms D spoke with the Father regarding their children’s diagnosis of autism. She says that:-
He expressed his discontent regarding this and blamed Ms Banos’ side of the family for their genes. He expressed no empathy for the children’s issues or concern for their needs and only expressed anger that he has not been kept informed of their progress from Ms Banos.
During interview, the Father refused to give his permission for Ms D to liaise with the children’s school and kindergarten, as he has no information regarding the children’s progress. This was notwithstanding that he would have been able to obtain that same information via the Family Report had he provided his consent. It is very difficult to understand why the Father refused to co-operate. There seems no logical or rational basis for him to take that position.
Ms D said that the Father’s interview content was “focused mostly on his hostility towards Ms Banos”. She described the lack of respect that the Father displayed towards the Mother and his “revengeful [sic] position that he appears to be stuck in” as being concerning with regard to the Mother’s safety, as well as a hindrance to a successful co-parenting relationship. She said the Father used “highly denigrating language” to describe the Mother and that his denigration of her was “relentless”. She further said he displayed a strong desire to “bring her down”, and had “limited insight into the impact of his expressed hatred of the children’s Mother on them”. Ms D noted further that the Father:-
…demonstrated misogynistic views coupled with limited respect for the report writer in the overall process across both interviews. It is unlikely that Mr Haddon would be capable of withholding his views and opinions from his children and it would be highly possible that the children would be exposed to both his highly critical views in relation to their Mother and also towards women in general if they were to spend any time with him given his lack of self-control during these interviews. This could be particularly damaging to Y who has experienced bullying with regards to her weight at school and appears to suffer from lack of confidence at times.
In relation to Mr A, Ms D described the relationship with the Father as “troubling”. She said he displayed no sensitivity towards Mr A and his issues and that:-
Mr Haddon’s ongoing struggles with Mr A and his lack of reflective capacity surrounding this behaviour speaks to his limited parenting skills, lack of empathy and capacity to understand children’s developmental needs.
Ms D also met with the Mother. She was described as being co-operative, child-focused, having a good understanding of the children’s diagnoses and needs but presenting as anxious. Indeed, the Mother reported feeling a “high level of anxiety” regarding the possibility of seeing the Father. She had accordingly organised a secure room, which she remained within save for when she needed to attend for interview.
Y told Ms D that she would like to see her Father, but that she felt a bit nervous given it had been so long since she last saw him. When asked if she would like to have supervised time with him, she stated “half yes and half no”. Y was aware that her Mother is scared of her Father and said that sometimes makes her feel a bit scared. Y said her Father had never hurt her or X physically, however she had seen him hit Mr A, and she had heard a lot of yelling between her parents and between her Father and Mr A. Y reported feeling afraid and hiding with her brother many times in a “secret spot” when her Father was angry. Ms D noted that Y had some positive memories of her Father, including recalling enjoying playing with him on Christmas Day, a memory she recalled with “a big smile”.
Given X’s young age and developmental difficulties, he was not interviewed separately from his sister. He presented at interview as a “very friendly, extroverted child” who used a mixture of sign language and signals in conjunction with single words to communicate.
It was Ms D’s evidence that the observation session between the Father and the children proceeded more positively than she had anticipated. She described Y “spontaneously” putting her arm around her Father, and reported that neither child appeared to be “afraid, or ambivalent during the observation”. The children appeared to have enjoyed spending time with their Father. Ms D said that the Father appeared to cope well with responding and engaging with the children, and they “… displayed warmth and affection towards him”. Additionally, she observed that the Father was:-
…reasonably composed and was appropriate and engaged with the children in an age appropriate manner and was able to follow their lead around the room from activity to activity”.
Ms D did however note that she was “… curious as to whether Mr Haddon would have been able to maintain his composure had the children behaved differently”. Ms D went on to say:-
In light of Mr Haddon’s imposing demeanour and apparent low frustration tolerance it is anticipated that if the children attempted to stand up to him as they age that this could prove difficult and could be dangerous for them.
She also observed:-
Given the behaviour that Mr Haddon had displayed in interview across two occasions, it is expected that it would be unlikely that he could manage to regulate and manage his emotions over a longer period of time without exposing the children to distress.
She also said that the Father was unable to be contained in the interview process even though he was fully aware of the structured environment in which he was being observed. Notwithstanding that formal, structured environment, Ms D noted that the Father:-
…could not contain his open hostility. This inability to regulate his emotions in any meaningful way would most likely impact the children significantly if they were to spend time with him without supervision.
She described the Father as becoming “incredibly defensive and hostile” when he does not get his way, which has led him to make threats of self-harm, or the infliction of harm upon others.
Ms D said that in regards to the children’s relationship with their Mother, they appeared very comfortable in her presence and interacted with her with ease. She observed that the interaction between the Mother and children appeared natural and there were loving physical interactions between them.
In terms of the children’s additional needs, given the diagnoses of autism, Ms D said they are potentially more vulnerable in terms of their need for stability and consistency. She described X’s needs as being the “most significant” given his very limited capacity to communicate verbally. She said the Father lacked insight and empathy into the children’s individual needs.
Ms D formed a view that given the circumstances, a cautious approach should be adopted and time should be limited to supervised visits on four occasions per year. She recommended the children live with their Mother who should have sole parental responsibility for them. She further recommended that the Father have a forensic, cognitive psychological assessment and follow any recommendations made, or attend upon a psychologist for therapeutic work to explore his anger issues, impulse control and improve his reflective functioning capacity.
Responses from DHHS
As already set out, there have been three notifications to DHHS in relation to this family. DHHS provided a report to this Court on 11 October 2018, signed by Ms F, Child Protection Practitioner and Mr G, Senior Child Protection Practitioner. That response from DHHS records, in summary, as follows:-
a)the Mother has been consistent in her reporting of incidents of family violence. She has also told DHHS that the Father does not believe in X's ASD diagnosis and attributes that to “bad parenting” by the Mother;
b)Y was interviewed by DHHS in preparation for the 11 October 2018 report and began to cry when the topic of her Father was raised with her. She told the Child Protection worker “I get scared if I see dad” and did not want to talk about her Father;
c)in a telephone meeting with DHHS, the Father was described as being “easily heightened and started shouting through the phone resulting in the worker needing to terminate the call”. The Father then called back several minutes later and “continued to verbally abuse the worker, not understanding why Child Protection was involved and why he needed to be interviewed”;
d)during a later interview in person, the Father was described as being unable to regulate his anger. In that interview, the Father said he had held Mr A down in an attempt to control him when Mr A was punching holes in the wall and started to attack him. The Father denied having strangled or attempting to strangle Mr A;
e)in relation to the comments the Father had made about throwing the children off the Westgate Bridge, DHHS recorded that “Mr Haddon advised he had said something to the effect of this is why people do such things, for example, when people take their kids away”. He also conceded that his text messages to the Mother had “started to get stupid” and whilst he had threatened the Mother, he denied ever directly threatening the children;
f)the Father was recorded as having confirmed that he previously used marijuana recreationally, but stated that he did not do so any longer; and
g)the Father acknowledged and demonstrated insight into the impact the family violence had on his children. He said he had completed an Anger Management Course, and was currently engaged in a Men’s Behaviour Change Program. He said to the DHHS worker that he had left a recent class feeling “ashamed and horrible” after learning about the impacts of family violence on children.
As at 11 October 2018, DHHS regarded the Father as having “taken steps to engage with services to address his inability to regulate his anger”. Child Protection accordingly concluded there appeared to have been “positive gains” made by the Father, in that he had demonstrated insight into the impact of his behaviour on the children and was remorseful and ashamed of his actions. DHHS spoke with the facilitator of the Men’s Behaviour Change Program who indicated that the Father attended punctually each week, did not miss any classes and actively engaged with the program. DHHS also advised the Father had been attending counselling sessions where he had been working on “strategies to manage his emotions”.
At that time, Child Protection assessed that the children would not be placed at significant risk of harm if supervised contact commenced with the Father. DHHS met with the Father’s parents to consider whether or not they would be appropriate supervisors. They were assessed as not being appropriate on the basis that the paternal grandmother minimised the family violence perpetrated by the Father, demonstrated a lack of insight into the impact of the Father’s behaviour on the children and was dismissive of the Mother’s fear and experience of being a victim of family violence.
The Father’s oral evidence
In his oral evidence, the Father asserted that there had been serious family violence “on both sides”. The Father was cross-examined about the text messages he sent in June 2017. His evidence in relation to the text messages was confusing, inconsistent and troubling. The Father at times denied sending various messages and at times stated that he could not recall sending them. He later said that he had probably sent them and then at another time he confirmed that he had sent all of them.
The Father acknowledged he had sent verbally abusive messages to the Mother, and said that she had also abused him. When asked if he had sent a message to the Mother asking “why are you being a cunt”, his response was “yeah, why is she being one?” That response in the witness box is highly troubling and suggests he does not regard his denigration of the Mother as being inappropriate. It also belies his assertion that he has now gained insight into his verbally abusive behaviours or that he regrets or is ashamed of his denigration of her. The response also strongly suggests poor impulse control and is patently inappropriate.
In relation to the allegation that he had sent a picture to the Mother of her dogs, saying “last time u see them…gate wide open now…Pay back bitch ha ha…fuck u 1 hit by car [sic]”, he said he was just trying to get a reaction. When it was put to him he had sent a gun emoji in another text, he said maybe his thumb had hit the wrong button. That explanation appeared entirely disingenuous given the content of the surrounding messages.
The Father send a further message to the Mother which read:-
hope you fucking die… hope you hit a roo and then into a tree, but before you die I hope you’re in that much pain and suffering, then the kids will be mine… Just need you to die now, weak fat cunt.
[sic]
In relation to that allegation, the Father explained that the Mother hitting kangaroos in her car was a normal occurrence and suggested that was what he was referring to. He also said she had put him through pain and suffering, and that he was angry on that night. Those text messages are highly troubling and clearly constitute family violence.
When asked if he had anything positive to say about the Mother, he said she was a good Mother, the children are always clean and healthy, and that she is a good health care worker and provider for the children. He said he never doubted that. He also said he thought the Mother had been “brainwashing” the children against him for two years.
The Father strenuously denied having ever subjected the Mother to physical violence. He said he did not remember throwing Y’s bottle at the television and smashing it. He also denied throwing his mobile telephone. He was cross-examined about the incident in which the Mother asserts he had thrown a cup or container. The Father recalled that the Mother was in the shower getting ready for work, and that he threw a plastic bucket or a cup at the wall, but said that he was nowhere near where she was. He said she was in the bathroom and he was in the next room. He acknowledged he was “probably angry” at the time and said it was “probably” in response to “her mouthing off”. He went on to say the maternal grandmother had commented about the Mother “squawking all the time”. Again, that response undermines his evidence that he has gained any insight into his poor behaviour as a result of undertaking the Men’s Behaviour Change program. He is plainly of the view that his response was justified. It also has misogynistic undertones.
During his evidence, the Father repeatedly referred to an allegation that the Mother had threatened to kill X either three or four years ago. This was not referred to in his affidavit material, and he gave no particulars as to when this was alleged to have occurred or the precise circumstances in which he said the threat was made. He was inconsistent in relation to his response to that alleged threat, saying at times that she said it in anger, but he knew she did not mean it and it was a “throw away comment”. He also said if he had known how “things would go”, he would have had her charged, and that he did not know if she would have killed X. Later in his evidence, the Father said he was scared when she said she would kill X and described it as a “very savage threat”.
In relation to the DHHS report in which he was alleged to have been aggressive during a telephone call, the Father said he was driving and could not hear the worker properly. He denied abusing the worker and then said he had no recollection of it.
The Father was asked about the Mother obtaining an Intervention Order. When shown the Family Violence Safety Notice whilst in the witness box, under his breath the Father said “shred it”. When I enquired as to what he had said, he denied that he had said “shred it” and mumbled something that sounded like he had said “Fred it”. He was dismissive of the Intervention Order and those proceedings saying that the orders are handed out like “M&M’s”. With regard to the breaches of the Intervention Order, he said they were not his fault as he did not know the provisions permitting him to call the Mother about the children were not included in the order. At one point, under his breath, the Father said “she’s a know it all” which I understood to be a complaint he was making about Counsel for the Mother, who was cross-examining him at that time. The Father’s attitudes towards the Intervention Order and to Counsel for the Mother were highly troubling.
The Father appeared to accept the information in relation to the children’s diagnoses of ASD. He agreed that he had not undertaken any courses regarding how to parent children on the spectrum, but said he has experience with ASD children as his partner’s daughter is non-verbal and autistic, and he has spent time caring for her.
In relation to Mr A, the Father acknowledged he never got along with Mr A, and he did not think much of him. He agreed that he thought Mr A was a “spoilt brat”, and that he had had verbal and physical fights with him. He maintained that he restrained Mr A in response to Mr A’s physical aggression towards the Mother.
The Father was also cross-examined about his drug use. He said he continued to use marijuana on weekends as he had done for many years, smoking around two grams each weekend. He agreed that he had not complied with the order of this Court requiring him to undertake hair follicle testing, but was adamant that if he had done so, it would have come back positive for marijuana only. He responded angrily to the suggestion that he also uses methamphetamine. He appeared to be unable to understand that he could have produced proof of his assertions had he complied with the order for drug testing. There was no indication that the Father was engaged in treatment and/or rehabilitation, notwithstanding that this appears to be a condition of his Community Corrections Order. I note his continued and chronic use of marijuana endures despite the conditions imposed in the Magistrates’ Court of Victoria requiring him to remain abstinent. His failure to comply with or abide by Court orders gives rise to further concerns about the Father’s behaviours.
Despite being evasive and difficult in answering questions regarding the text messages he sent, the Father did acknowledge that he had sent some terrible, threatening and stupid messages that he said he now regrets. It was his evidence that whilst he may have at times said inappropriate things, he would never have acted on those threats and was effectively just “blowing off steam”. He said as a result of completing an Anger Management Program in 2017 and a Men’s Behaviour Change Program in 2018, he had come to understand that the verbal denigration and name-calling were not appropriate. He said those courses helped him understand the impact of those behaviours on the Mother and children. He said he wanted to say sorry to the Mother, but thought the Intervention Order prevented him from doing so, and said he was ashamed about what he said to the Mother and the children.
The Father also said he had learned skills to manage his anger, but he did not articulate what those skills might be. In re-examination he was asked how he regulates his emotion now. He said he makes it all about the children, he is calmer when he is with them, and that the friction in the household was centred on Mr A. That answer did not provide me with any comfort that he has learnt techniques or skills to assist him.
The Father was cross-examined for several hours. During that time I observed him becoming angry, frustrated, hostile, defensive, argumentative, aggressive, raising his voice and talking over the top of Counsel.
Overall, the Father’s presentation whilst giving his evidence was deeply troubling. He was dismissive of the Mother and her feelings and was demeaning and belittling of her when she gave her evidence. He was dismissive and minimising of his own behaviour. He referred to propositions being put to him as “lies” and called Ms D “a liar” on several occasions. When asked, the Father denied that he was angry or frustrated when he was being cross-examined. I am unsure whether he denied that because he was concerned admitting it would damage his case, or whether he has limited insight into how he presented. I did not have the advantage of a psychological report, so I do not know whether the Father is labouring under any cognitive or personality difficulties.
Very worryingly, the day after apologising to the Mother in the witness box and asserting he knew how inappropriate his denigration of the Mother had been, the Father continued to mock and belittle the Mother whilst she was giving evidence. The Father was seated in another courtroom, watching via video link. The Mother became distressed and began to cry when giving evidence that the children had been negatively affected after seeing the Father during the Family Report interviews. The Father started making comments under his breath and then mocked the Mother for crying, saying words to the effect of “boo hoo hoo” whilst miming rubbing his eyes.
The Father’s answers under cross-examination and behaviour in Court gave me no comfort at all that he has genuinely understood the impact of his behaviours. It demonstrates a significant inability to manage or regulate his behaviours, even in a formal Court setting, where his behaviour and attitudes are under examination. It also undermined both the sincerity of his earlier apology and his evidence that he had gained any insights or skills as a result of the two courses completed by him.
The Mother’s oral evidence
The Mother acknowledged that she had left the children in the Father’s care when she had worked night shift. She denied being comfortable with that arrangement but said she had no choice as the Father generally did not work and the parties required an income to maintain the household.
The Mother agreed she had provided the Father with urine for a urine screen he was required to undertake for employment purposes. She also conceded that she had previously provided him with funds to purchase illicit substances.
The Mother denies that the Father was acting to stop Mr A attacking her in the 2014 and 2017 incidents as earlier described. She also said the children have not asked to see their Father.
In relation to the proposition that the Father’s threats were idle, the Mother said that she did not know what he might do, given the severity and vengeful nature of the threat to harm the children. She said she was concerned about the psychological impact on the children of his comments and threats. She was also concerned about the Father’s inability to consider the ramifications of what he says and his incapacity to control himself. I share those concerns.
The Mother said as the children are on the spectrum they require routine and predictability. She was concerned about the impact on the children of adding in visits to see their Father. She said the children had already been exposed to his violent behaviour and it was traumatic for them to see their Father in the context of the Family Report being prepared, triggering disturbed and unsettled behaviour for them both.
I note that Counsel for the Father sought to cross-examine the Mother further about the children’s views. It seems to me that whilst Y has expressed some interest in having a relationship with her Father, this is a matter in which little weight will be given to the children’s views, given their ages and their ASD diagnoses. Additionally, the crux of this matter is not the children’s views. Rather, I must conduct a careful assessment of the risks of physical and psychological harm to the children and balance that against the other considerations as required. When I raised this with Counsel for the Father, he elected to abruptly terminate his cross-examination of the Mother. He was invited to reconsider that position, but he declined to ask any further questions. I am unsure why he terminated the cross-examination on that point and declined to resume, despite my invitation that he do so.
Ms D’s oral evidence
Ms D confirmed that the Father had not demonstrated any real change in the level of insight or behaviour management between the appointments for the Child Inclusive Conference or the Family Report. She confirmed her view that the Father has limited appreciation in relation to the impact of his words and behaviours on their recipients. She further confirmed that the Father appeared to be driven by feelings of revenge and vindictiveness towards the Mother.
Ms D agreed that whilst both children are on the Autism Spectrum, X is more profoundly impacted by such a diagnosis. She further agreed that as a result of the children’s young age and their developmental delays, they need to be completely protected from their Father’s inappropriate and uncontained behaviours.
Ms D said that the Father’s attitude towards both her and the Mother continued to be very poor. However, she said his behaviour towards the children during the observation session was appropriate, and what she observed during the Family Report interviews was more positive than she had anticipated. Accordingly, she said it appeared that the Father has “a slight capacity” to regulate himself in that regard. Ms D said he was slightly more restrained in their second meeting than the first, and felt there was a “slight increase” in his ability to contain himself and “the slightest bit” of self-reflection that had occurred.
In relation to the Father’s attitude towards the Mother, Ms D said the Father maintained and expressed hatred and a desire for revenge towards the Mother throughout interview. She said that these feelings were the genesis of the threats made to throw the children off the Westgate Bridge. She confirmed that nothing had changed in the Father’s demeanour or presentation in relation to those matters.
Ms D said that the observations between the Father and children went for approximately 20 minutes. Notwithstanding that the Father has not done any formal courses regarding children on the spectrum, she said he did appear to have a capacity to “tune in” to the children and “roll with that” which she had not been expecting. Ms D said he demonstrated a capacity to connect with the children in a playful manner to which the children responded positively. She confirmed he managed and regulated his emotions during that short session and did not make any inappropriate comments. However she continued to have concerns about his capacity to manage or regulate his emotions over a longer period of time.
Ms D confirmed that the ongoing abuse of the Father towards the Mother, in addition to the threats he had made to harm her and the children, could be characterised as extreme family violence.
She also conceded that given the Father’s history and presentation, she could not be confident that the Father could contain his behaviour in a supervised contact setting, and had concerns about his ability to do so. However, she said that the supervisors at such a centre would manage his behaviours and terminate the time if he behaved in an inappropriate manner. Ms D said she believed that he would manage his behaviours for one to two hours.
In terms of the children’s ability to manage at a children’s contact centre, Ms D said that on the day of the observations, the playroom was busy and the children were able to manage quite well. She said she did not see any signs of distress or anxiety nor any level of fear that she could detect. She said further that the playroom staff had been well able to manage the children over an extended period of time and did not report any issues with the children’s behaviour. Accordingly, Ms D did not have concerns that staff at a contact centre would be unable to manage the children or that the children would not cope in that setting.
Ms D said that if there is to be time between the children and the Father, it should be closely supervised, as it would be an unacceptable risk to the children if they experienced a further incident of the Father’s vitriol, abuse or angry outbursts.
Ms D confirmed that the recommendations she made for supervised time on four occasions per year would provide the children with the benefit of knowing who their Father is. She said it was important that the children had some contact with him as they move forward to become fully functioning adults. She said they need to know who he is, including his limitations, and knowing him was important to the children’s sense of identity. She referred to Y being able to recall positive memories of her Father at Christmas time, of which she spoke warmly. Ms D acknowledged such a supervised arrangement would not allow the children to develop any proper relationship with their Father.
Ms D said there may be negative impacts on the children if they did not have the opportunity to know their Father. Those impacts could include that the children may experience a sense of rejection.
In terms of the Father’s presentation in Court, and in particular in relation to him having referred to her “a liar”, Ms D said she was not surprised. She said the Father was very heightened during the interview with her, may have a low IQ or memory retention issues, has poor impulse control and may not remember how he behaved towards her.
Ms D agreed that the Mother may well struggle to cope with an order for contact, given the threats that the Father has made to harm her and the children.
Relevant legal principles
The legislation
Part VII of the Family Law Act 1975 (“the Act”) guides the process in relation to the making of parenting orders.
Section 60B of the Act sets out the objects and principles of Part VII. They are to ensure that the best interests of children are met and hence, the objects act as a guide. The objects as set out in section 60B(1) of the Act are as follows:-
(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.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to children, the Court must consider the best interests of the children as the paramount consideration.
When determining the children’s best interests, there are two primary matters or considerations, and several additional matters or considerations which I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations I must consider:-
(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.
I must also weigh and consider the additional considerations set out in section 60CC(3) of the Act. I will turn to those primary and additional considerations shortly.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:-
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Parental responsibility
Pursuant to section 61DA of the Act, I must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children. Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility was shared.
As is clear from these reasons, I am satisfied that family violence has occurred and has been perpetrated by the Father. This includes being demeaning and denigrating of the Mother, and threatening her life and the lives of the children. Accordingly, the presumption does not apply.
When an order is made for equal shared parental responsibility, parents are required to consult each other and make a genuine effort to come to a joint decision on matters. I am satisfied that these parents do not have the capacity to liaise and negotiate in relation to the children’s long term care. It would place the Mother in a difficult and distressing situation to require her to consult with the Father and attempt to reach joint decisions with him. It would be unreasonable and untenable to require her to engage in co-operative communication with the Father, which is what an order for equal shared parental responsibility would require. It would also potentially expose the Mother to further abuse and denigration by the Father. It is unlikely the Father could engage co-operatively with the Mother regarding the children given his strong antipathy towards her.
The Mother is engaged in the children’s schooling and extra-curricular activities. She has made appropriate arrangements for their assessment and treatment with appropriate specialists. This includes arranging attendances on paediatricians, occupational therapists and speech pathologists. I am satisfied she is well placed to make appropriate decisions regarding the children. Given the children’s special needs, it is also necessary that decisions regarding treatment and treators be made quickly and competently. Requiring the parties to jointly make decisions would in all likelihood dramatically slow any decision making process.
Accordingly, it is in the children’s best interests that the Mother exercises sole parental responsibility for them.
Although the Father sought an order for equal shared parental responsibility at the outset of trial, in closing submissions, Counsel for the Father conceded that such an application could not be successful. It is notable however that Counsel for the Father was unable to obtain instructions to concede that point.
The primary considerations
The first of the primary considerations is the benefit to the children of having a meaningful relationship with both of their parents. It is not disputed that the children have a meaningful relationship with their Mother and that they derive significant benefit from that.
The orders sought by the Mother and Independent Children’s Lawyer do not allow for the children to have any relationship with the Father. The orders sought by the Father effectively provide for ‘identity’ contact, which he says is still meaningful for the children and will still be of benefit to them.
In Tait & Densmore [2007] FamCA 1383, Cronin J said at paragraph 170:-
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
I am satisfied that the Father has a very limited capacity to self-discipline or be an appropriate role model for the children. I have significant reservations that the relationship as sought by the Father, could be healthy, worthwhile or advantageous to the children. I am deeply troubled by his attitude towards the Mother and his verbal denigration of her, his threats to harm her and the children, his expressed attitude towards women, his lack of insight into the impact of his behaviours, his demeanour and presentation in Court and his attitude towards Court orders, including orders of this Court and the Intervention Order. It is difficult to see him as an appropriate role model, or how he could lead the children by example.
In the event there is a conflict or tension between the primary considerations, I must give greater weight to the need to protect the children from harm and from being subjected or exposed to abuse, neglect or family violence. In this case, the need to protect the children from harm is the predominant issue.
Section 4 of the Act defines abuse in relation to a child as including:-
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence;
…
The definition of family violence is set out in section 4AB(1) of the Act. Section 4AB(2) and 4AB(4) set out a non-exhaustive list of examples of family violence and of children being exposed to family violence respectively. Section 4AB(2) states as follows:-
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the familymember's family, of his or her liberty.
Section 4AB(4) sets out:-
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
I have already set out the verbal abuse and denigration perpetrated by the Father upon the Mother, including the derogatory text messages and the threats he has made to harm her, her dogs, the children and himself.
I am satisfied from Y’s accounts to Ms D that she has heard her Father shouting at her Mother and brother, that she has seen him throw furniture and that she has been afraid and frightened by his behaviour, hiding herself and her brother in an effort to protect him from the Father’s angry outbursts. The Father acknowledged that the verbal abuse and denigration to which he subjected the Mother also occurred in the presence of the children. He also acknowledged the children were at home when he fought with the Mother and with Mr A, although he maintained that it was Mr A’s behaviour that caused the physical altercations between them. He also said that the children were not troubled by it, which does not accord with Y’s recollections. This reflects a significant lack of insight as to the impact being exposed to the Father’s abusive behaviours had on the children.
Accordingly, I am satisfied the children have been repeatedly exposed to family violence.
The following questions then arise:-
a)whether there is an unacceptable risk that the children will be exposed to such behaviour in the future; and
b)whether there is an unacceptable risk of physical and/or psychological harm to the children in the event orders are made for time and communication to occur between them and the Father, even on a supervised basis.
Unacceptable risk
The High Court in M v M [1988] HCA 68 said that, in relation to allegations of sexual abuse, the Court is not required to arrive at a “definitive conclusion” as to whether such abuse has occurred. The High Court of Australia considered the “magnitude of risk” that would justify a judge in denying a parent time with a child. Their Honours concluded that the test is best expressed by asking whether time would expose a child to “an unacceptable risk” of abuse.
In B and B [1993] FamCA 143, the Full Court of the Family Court of Australia said:-
The “unacceptable risk'' test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
His Honour Justice Fogarty provided the following guidance in N and S and the Separate Representative [1995] FamCA 139 at paragraph 138:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
His Honour went on to say at paragraph 141:-
In answering the unacceptable risk question the Court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates.
In Slater & Light [2013] FamCAFC 4, the Full Court of the Family Court of Australia generally agreed with the factors expressed by Justice Fogarty writing extra-judicially, and set out these factors at paragraph 37 as follows:-
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
Although many of the cases with regard to unacceptable risk deal with allegations of sexual abuse, the observations apply equally to allegations of physical or psychological abuse.
Accordingly, the overriding consideration of what is in the best interests of the children remains. In determining that, part of my task is to evaluate the magnitude of the risk to the children that they will be exposed to family violence or abuse. I need also to weigh and consider the gravity of the consequences for the children in the event they are so exposed to same. I must also take into account that the orders sought by the Mother and the Independent Children’s Lawyer will necessarily prohibit the children from having any relationship at all with their Father, which is itself a potentially grave consequence.
The orders sought by the Father seek supervised time on six occasions per year, on the basis that such supervision will alleviate the risk of harm or abuse to the children. I note that the Full Court of the Family Court of Australia in Betros & Betros [2017] FamCAFC 90 considered the question of ongoing, long-term supervision. Their Honours said at paragraph 13 that:-
It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted.
[citations omitted]
In this case and for reasons that will be explored further in these reasons, such an order for ongoing supervised time is not warranted.
I will return to the question of unacceptable risk later in these reasons.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The children are aged four and eight. As set out at the commencement of these reasons, both have been diagnosed with ASD. X has additional issues, including delayed speech, severe expressive language impairment, receptive language impairment and speech sound disorder. He does not communicate well verbally and uses sign language. In those circumstances, X’s views were not obtained and in any event would not be determinative.
Y appears to have some mixed emotions regarding her Father. She recalled hiding with her brother in “a secret spot” to protect him when her Father was angry. She remembers being afraid and there being fighting, and she has some worries about what might happen in the future. She said “half yes and half no” in relation to wanting to see her Father and said she had heard a lot of yelling and seen the Father hit Mr A.
Given the ages of the children and their diagnosis of ASD, there is limited weight I could put on their views at any rate.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
It does not appear to be in dispute that the children have a close and loving relationship with their Mother. The children are wholly dependent on their Mother to meet their needs and that relationship needs to be supported and protected.
The nature of the children’s relationship with their Father is more difficult to assess. They have not seen him since separation, save for a short period of time during the preparation of the Family Report.
I have already outlined Y’s ambivalent attitude to seeing her Father. Notwithstanding that, and the many months since they saw their Father, the observations between the children and their Father proceeded warmly and positively. There was physical interaction and affection and the children and the Father engaged well. This suggests that prior to the separation the children’s relationship with their Father was close and loving. I also note Ms D’s evidence that Y was able to recall some happy memories of her Father, and that he engaged very well and responsively with them during the observation session.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
The Mother has effectively made all decisions regarding the children since separation. The Father has been effectively excluded from being involved in decision making, as a result of the Intervention Orders and the orders of this Court, pursuant to which he has been unable to spend time with the children.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The Father does not currently provide any Child Support for the children. The Mother deposes that is because Centrelink have deemed it “too unsafe” to make an application for payment by him. Accordingly, the Mother bears the substantial burden of providing for the children.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
The children have not spent any real time with their Father since separation.
It is the Father’s case that if the orders are made for time as sought by him, the effect of that will be that the children will have the opportunity to meet with their Father and gain some understanding of who he is.
Ms D’s evidence was that it was important for the children to have the opportunity to know who their Father is. She said that if they are denied that opportunity, there may be negative consequences, including a sense of abandonment by him.
The orders sought by the Father would not separate the children from their Mother in any real way. However, I do accept that the Mother will be anxious and worried about the children when they attend for time. I will consider this in more detail later in these reasons.
The orders sought by the Mother and the Independent Children’s Lawyer would separate the children and their Father. It would deprive the children the opportunity of knowing the Father or anything about him, other than what their Mother may tell them or what little they may recall. Ms D outlined that this may result in the children feeling abandoned, and may also impact on their sense of self and their development of their sense of identity. These are serious and significant consequences.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
There was no evidence put before me regarding which supervised contact centres would be able to accommodate the children if time were ordered, nor how frequently that could occur, the days or times of that occurring, or any costs involved. Accordingly, I have no evidence as to whether or not there would be any practical difficulties with the orders as sought by the Father.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
The Mother is well able to care for the children. She is well attuned to their special needs, and I am satisfied she works hard with the children and the professionals engaged in their care to provide them with all the assistance she can. She does this with no assistance from the Father. That is very much to her credit.
Despite the positive interactions observed for the 20 minute duration of the Family Report interviews between the children and the Father, the Father’s capacity to provide for the children’s needs appears to be seriously impaired. This concern arises substantially from the Father’s anger management issues and apparent impaired impulse control.
Ms D noted the Father had slightly improved in his presentation between the Child Inclusive Conference and the Family Report Interviews. However, such improvement was marginal.
It is part of the Father’s case that although he has made stupid, terrible threats, he has not carried out what he has threatened. This assertion overlooks both the consequences and ramifications of making those statements. It also overlooks the Father’s apparent failure to manage and modify his comments, notwithstanding that he can, in retrospect, acknowledge that they were unacceptable statements and threats to make.
The Father’s demeaning and degrading comments about the Mother to Ms D both during the Child Inclusive Conference and the Family Report Interviews, as well as his presentation and attitude towards the Mother in Court, are deeply concerning. There seems little basis upon which I could begin to be satisfied that the courses undertaken by the Father have caused him to reflect meaningfully on his attitudes and behaviours or have provided him with tools or skills to manage and regulate his emotions.
Whilst attending those courses is commendable, the Father has done little more than simply complete them. There was nothing in his evidence or presentation that demonstrated he had gained any real insight into his behaviours beyond acknowledging that his words were not acceptable, nor anything that demonstrated he had learnt or implemented any skills to alter his reactions and responses.
The Father’s lack of insight, anger management issues and abusive and aggressive behaviours indicate in particular that the Father is unable to adequately or appropriately meet the children’s emotional needs. His deficits in this regard raise real concern about the risks to the children in spending any time with him. Additionally, his strong dislike of the Mother coupled with Ms D’s impression that he has an “obsession with enacting revenge” on her amplify those concerns.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have already set out the children’s diagnoses.
I have significant reservations about the Father’s capacity to manage his behaviours even in a supervised setting. I have no evidence that these children would be able to process and understand that their Father is just “blowing off steam” if he were to become angry or make derogatory comments or threats. Indeed, Ms D noted that children with ASD tend to be more concrete in their thinking. She said the children may believe statements or threats that may be made in their presence. Additionally, I note Ms D’ concerns that the Father’s lack of self-control “could be particularly damaging for Y” as she has experienced bullying at school about her weight and at times lacks self-confidence. Any of the sort of derogatory comments the Father frequently makes about the Mother, which has included denigrating her physically and mentally, would be devastating to Y if similar comments were made to her.
The Father acknowledged that he continues to consume one to two grams of marijuana each weekend and that he has done so for many years. The Father appeared to have no concern that this was illegal or that it may impair his parenting capacity or functioning. His consumption seems to occur notwithstanding conditions imposed by the Magistrates’ Court of Victoria that he undergo drug and alcohol treatment and rehabilitation and abstain from illicit drug use. In addition, he has not complied with the orders of this Court for hair follicle testing.
The Father’s non-compliance with Court orders raises further concerns about the Father’s functioning.
Attitudes to the children and to the responsibility of parenthood demonstrated by each of the children’s parents
It is clear that I have significant concerns about the Father’s attitude towards the children and the responsibilities of parenthood. I acknowledge that he loves the children, and that until separation he was significantly involved in their care. However, he has also subjected their Mother and brother to terrible verbal abuse, and at times, physical abuse. He did this in the children’s presence and without regard to the impact on them or on their Mother and brother. He has made appalling threats to their safety and to that of their Mother.
It is to the Father’s credit that he has undertaken courses to address these shortcomings in his parenting. However, notwithstanding his asserted insight into the inappropriateness of his behaviours, there appears to be limited indication that the Father has developed any capacity to alter the way he acts and responds.
I have no concerns regarding the Mother’s attitude to the children and her responsibilities as a parent.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
The Father has subjected the Mother to family violence by way of verbal abuse, aggressive and abusive text messages and threatening both her life and the lives of the children. In addition, I accept the Father engaged in abusive conduct towards the Mother and Mr A during the relationship. This is remembered by Y, who described being fearful when the Father got angry. The Father admitted he had engaged in physical altercations with Mr A, although justified those on the basis that Mr A required restraining. He also admitted he had put rubbish in Mr A’s bed as punishment. He saw no issue with him doing so.
The Father has also engaged in violent and abusive behaviour towards the Mother. He conceded he had done so in the presence or hearing of the children. Indeed, in his closing submissions, Counsel for the Father readily and sensibly conceded that his client’s behaviour falls far short of community standards and has had an impact on the Mother.
The current Intervention Order in this matter is for the protection of the Mother, Mr A and the children until 15 August 2020. That Intervention Order was made in the absence of the Father, notwithstanding the fact that he was served with the application and summons, as set out in the Intervention Order.
I also note the Father has been charged and dealt with for breaching the Intervention Order. He appeared quite dismissive of both these breaches and the Intervention Order throughout the Final Hearing.
Counsel for the Independent Children’s Lawyer argued that the Mother’s physical and emotional wellbeing ought not be jeopardised or compromised, as she is their unchallenged primary carer. He says there is a risk that an order for even supervised time will impinge on her capacity to properly parent the children. She is fearful of the Father, and she has a genuine and reasonable basis to be fearful for the safety of the children if they are to spend time with him. It was also the evidence of Ms D that the Mother may well struggle to cope with an order for contact as a result of threats made to her. These are significant considerations.
I accept that the Father’s abuse and threats have had a considerable impact on the Mother and her sense of security, and have given her grave concerns for the safety of the children. I note the Mother was sufficiently concerned for her safety and for the children’s safety that she sought assistance to have her locks changed and CCTV installed at her home following separation. The Mother was described by Ms D as anxious, and remained in the secure room at Court on the day of the Family Report save for when she was interviewed. Her partner presented to Child Dispute Services on the day of the Family Report to check on the children and try to end the observation session early, as the Mother was concerned for their wellbeing. The Mother’s partner reported to Ms D that she had vomited in the carpark after suffering a major anxiety attack regarding attending the Family Report. The Mother requested attending the Court and giving her evidence in a separate courtroom from the Father. I accept that she will be anxious and very worried about the safety of the children in the event orders were made for even supervised time. As the children’s primary carer, and even on the Father’s case, effectively the sole carer for the children, her worries and anxieties are clearly highly relevant to the children’s welfare and best interests.
I should add that given the vicious and vile threats that the Father has made to the Mother, the threats he has made to harm the children and the threats he made to end his own life on Christmas to ruin Christmas for the children, I specifically reject the submissions made by Counsel for the Father that he is “not the most dangerous type of person”.
I have set out the Father’s evidence in relation to his allegation that the Mother threatened to kill X. I do not accept that any genuine threat was made by the Mother. I note the Father’s own evidence fluctuated between saying it was a throw away comment, to asserting it was a very savage threat and he did not know if she would actually kill X. I am not satisfied that the Mother has engaged in any family violence. There seemed no rational or credible basis for the Father to make this assertion. It appears designed to try to make the Mother ‘look bad’ and cause her distress and upset.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is almost always preferable to end proceedings between parents and make the order that is least likely to lead to further proceedings. In this case, it is appropriate, and in the children’s best interests, that these proceedings be brought to an end.
Orders to be made & assessment of risk
Cases in which one parent seeks an order that there be no time between the children and the other parent are very serious. Such an order can only be made if the situation is dire. Additionally, all other options and alternatives should be explored. An order for no time is an order of last resort. Their Honours in Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 at paragraph 19:-
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
I accept that the consequences for children in the loss of a parental relationship are likely to be profound. I am satisfied in this case that there are no safeguards that can be implemented to reduce or ameliorate the risk to the children, converting what is otherwise an unacceptable risk into a situation that is appropriate and of benefit to the child. Regrettably in this case, I have made the difficult decision that the children’s best interests require an order for no time and for no communication. That is notwithstanding the recommendations of Ms D.
Whilst her insights of Ms D as set out in her Family Report were certainly helpful in my determination of this matter, a Family Report is only one part of a myriad of evidence in this case that I am required to take into account. The Full Court of the Family Court of Australia in Andrew & Delaine [2009] FamCAFC 182 endorsed the view taken by the Full Court in In the Marriage of Hall [1979] FamCA 73 at paragraph 24, where their Honours held:-
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities…;
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…
Whilst Ms D felt the Father may be able to contain himself for one to two hours to participate in supervised time with the children, I do not share her optimism.
I have set out already in these reasons the abuse and threats perpetrated by the Father on the Mother, at times in the presence of the children.
The Father completed an Anger Management Program on 26 August 2017. According to the certificate the program identifies:-
…the personal triggers, effects and behaviours associated with an unhealthy expression of anger and provides evidence based techniques for dealing with anger in a number of situations.
The Father completed Men’s Behaviour Change Program on 19 October 2018. According to the certificate that program:-
…challenges men to identify and resolve aspects of the behaviour that are harmful to the women and children in their lives and to learn ways to support and nurture healthy relationships generally.
Notwithstanding having completed those courses, the Father’s presentation at the Child Inclusive Conference, the Family Report interviews and at Court during these proceedings, indicates to me that little has been learnt by him as to how he should manage his behaviours. Although he was able to articulate that the verbal abuse to which he had subjected the Mother was not acceptable, he was unable to refrain from belittling and mocking her during the Court proceedings at a time when she was becoming distressed. That is, his underlying attitude towards the Mother remained unchanged, he continued to have poor impulse control and was at times significantly unable to contain himself.
His presentation at Court and for the purposes of the two assessments with Ms D was markedly different to the warm, positive and appropriate engagement he had with the children during the 20 minute observation as part of the preparation of the Family Report. The Father was not inappropriate with the children and related well to them throughout the assessment. However, the observation session was only for 20 minutes. I remain most concerned about how the Father will respond if, for instance, there is some reason the children cannot attend for time. His response when he did not see the children during the Child Inclusive Conference was to threaten that he would “die from suicide” on Christmas Day. This response is wholly inappropriate.
I remain very concerned about how he will respond if the children do not behave as expected by him during a supervised visit. In that regard, I note Ms D queried whether the Father would have been able to maintain his composure in the event the children had not responded warmly towards him. I have significant concerns about how the Father will respond to requests by the supervisors, particularly if they are female, should they attempt to manage or contain his behaviours in the event his behaviour begins to disintegrate.
Although Ms D’s oral evidence was he should be able to manage his emotions for one to two hours, in her Report she also said that:-
…it is expected that it would be unlikely that he could manage to regulate and manage his emotions over a longer period of time without exposing the children to distress.
It was submitted by Counsel for the Father that if the Father did begin to act inappropriately during supervised time, the supervisor could step in and end the time. In my view, it is naïve to anticipate a supervisor would be able to contain the Father. He struggled significantly to contain himself during the Court proceedings. I have significant concerns about how he would respond to a supervisor intervening in his time, correcting his behaviour, or requiring time to cease. It would be extremely damaging and frightening for the children to see their Father behaving in an angry and uncontained manner.
I also share Ms D’s concerns regarding not only the Father’s presentation and impulsivity, but what she described as his “revengeful [sic] nature” and the possibility that he “may harm the children to enact revenge” on the Mother. I note his comments to her during the Child Inclusive Conference about wanting to “bring her down so hard”. I accept the evidence of Ms D regarding the Father’s expressed hatred of the Mother and what Ms D described as “his obsession with enacting revenge on her”. This is most concerning.
These children are young and particularly vulnerable children. I have already set out the impact that the Father’s behaviours may have on the children given their diagnoses and history. Additionally, the impact on children exposed to family violence is well documented. It can have long lasting, deleterious effects on both parents and children. Violence to a partner involves a significant failure in parenting, in that the violent parent has failed to protect both their partner, and the children emotionally.
His Honour Justice Mullane observed in the case of M & M [1998] FamCA 1742 at paragraph 94:-
The father's abusive behaviour presents a multi faceted danger for the children. There is a risk of violence to them personally and injury. There is a risk that violence poses when it involves living with fear, insecurity and vigilance. There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father's abusive behaviour that abuse is part of life for females and become even more accepting of such behaviour. There is a danger that both children will come to believe from the father's abuse of the mother, that women are lesser beings.
Those concerns and risks apply in this case.
In this case, I am well satisfied that the Father’s reported behaviour, along with the highly inappropriate behaviour demonstrated by him in Court, has borne out a finding that the Father presents a serious risk to these children, even in a supervised setting.
The Father’s very limited capacity to regulate and manage his behaviours and emotions and his inability to demonstrate any meaningful change in his attitudes, reactions and responses, means that those risks continue to exist. There is also a risk to the children that an order for time would require their Mother to live with fear, insecurity and vigilance. These factors strongly support a finding that the Father presents an unacceptable risk to the children, even if time was to be supervised.
An unacceptable risk to the children may arise by virtue of the Father saying further inappropriate statements about their Mother. It may arise as a result of the Father responding to the supervisors in the presence of the children, or the children themselves, in an inappropriate manner. It may be as a result of the Father acting impulsively or out of a desire to seek revenge. It may further arise as a result of the Mother’s struggle to cope with her anxieties about the safety of the children during any time, and the impact that will have on her functioning as their primary carer.
The Father did not seek an order that he be permitted to send cards, letters and gifts, or to communicate with the children in any similar way. At any rate, on the basis of the text messages he has sent to the Mother, I could not be satisfied that the Father could contain himself in that medium to communicate appropriately, had such an order been sought. Any such communication would need to be vetted by the Mother, and I have no confidence the Father would not take the opportunity to communicate with her inappropriately.
I acknowledge that the observations during the preparation of the Family Report were positive, loving, warm and entirely appropriate. I further acknowledge that Y has some happy memories of her Father. Additionally, I have taken into account the evidence of Ms D that the Father may likely be able to contain himself for one to two hours, and her concerns that the children may suffer negative consequences if time does not occur. I acknowledge the Father’s application is modest, as it must be as a result of the circumstances. The children will be deprived of having their Father in their life, and deprived of the emotional and psychological benefits that children are generally able to derive from having both parents in their lives. It is likely they will experience this as a loss.
I have carefully considered and weighed the evidence in relation to each of the considerations. I have also carefully assessed the magnitude of the risk of harm to the children and whether those risks can be ameliorated. In my view, even the limited orders as sought by the Father for strictly supervised time do not, in my view, sufficiently safeguard these children. I am satisfied that it is not in the children’s best interests to have time or communication with the Father at this time.
The weight of the evidence, on balance, requires that orders are made as sought by the Mother and the Independent Children’s Lawyer. The primary consideration, requiring that the children be protected from physical or psychological harm, must be given greater weight than the children having a meaningful relationship with their Father. The weight of the evidence in relation to the additional considerations, as set out at length in these reasons, similarly leads to a conclusion that the children’s best interests are met at this time, by spending no time or having no communication with their Father. It is not an easy decision to deprive the children of a relationship with their Father, but in this case it is necessary to do so.
Overseas travel
The Mother seeks an order that will permit her to obtain the children’s passports without having to first obtain the consent of the Father. The Independent Children’s Lawyer supports the Mother in that application.
The Mother deposes she would like to be able to take the children overseas on a holiday. Given the significant violence in this case, it is not surprising that she feels unsafe approaching the Father to obtain his prior consent before a passport is issued for the children.
In light of the findings I have made about the Father’s behaviour, and the orders that I am making regarding:-
a)there being no time between the Father and the children; and
b)the Mother having sole parental responsibility for them;
it is appropriate that I also make the order that the Mother seeks in relation to the issuing of passports.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding two hundred and forty-two (242) paragraphs are a true copy of the reasons for judgment of Judge Carter
Date: 9 October 2019
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