Hampstead and McDougall

[2018] FamCA 553

FAMILY COURT OF AUSTRALIA

HAMPSTEAD & MCDOUGALL [2018] FamCA 553

FAMILY LAW – CHILDREN – Undefended Hearing – Where mother seeks sole parental responsibility, for children to live with her and spend no time with father until the conclusion of his criminal proceedings – Where father is presently in custody awaiting a criminal trial – Where the father poses a risk of emotional harm to the children – Where the children may benefit from a meaningful relationship with the father but that will depend upon the outcome of his criminal trial – Where children’s wishes given weight –  Where the children are not to spend time with the father while he is incarcerated – Where the children may only spend time with the father if they express a wish to do so and on the condition that it is spent in a group of three or more of the children with the father.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
M v M (1988) 166 CLR 69
Harridge and Anor & Harridge and Anor [2010] FamCA 445

APPLICANT: Ms Hampstead

RESPONDENT: Mr McDougall

INDEPENDENT CHILDREN’S LAWYER: Ms Steiner

FILE NUMBER: PAC 4008 of 2011

DATE DELIVERED: 24 July 2018

PLACE DELIVERED: Townsville

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 15 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smith

SOLICITORS FOR THE APPLICANT: Susan Green Legal

THE RESPONDENT: No appearance

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Burridge Harris & Flynn Solicitors

Orders

1. All previous orders in relation to the children X born … 2001, Y born … 2002, Z born … 2005 and W born … 2007 be discharged.

2. The mother have sole parental responsibility for the children of the relationship X born ... 2001, Y born ... 2002, Z born ... 2005 and W born ... 2007.

1. That the children live with the mother.

1. That the children not spend time with the Father until after he has been sentenced or acquitted in relation to his current criminal matters.

1. After the Father has been sentenced or acquitted in relation to his current criminal matters, the mother is to advise the children of the outcome and establish if they wish to see their father.

1. If the children express a wish to spend time with the Father they shall do so as determined by the mother, provided:

i) Any time is to be with at least three of the children; and

ii) The father’s brother Mr B McDougall or another suitable person agreed to by the mother is to act as supervisor.

1. The Father can write to the children once per calendar month. Such communication is to be read by the mother and only provided to the children if appropriate.

1. Should the children seek to spend time with the Father the mother will assist the children in contacting the C Organisation or other similar organisation that assists children with relatives in the criminal justice system.

1. That upon the later of either the expiration of the appeal period, or the determination of any appeal that may be brought, the Independent Children’s Lawyer be forthwith discharged with the thanks of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDougall & Hampstead has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: PAC4008/2011

Ms Hampstead

Applicant

And

Mr McDougall

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. These proceedings concern four of the parties’ five children, being X, born in 2001, and hence presently 16 years of age, Y, born in 2002, and hence presently 15 years of age, Z, born in 2005, and hence presently 13 years of age, and W born in 2007, and hence presently 11 years of age (“the children”).  The parties’ eldest child, Ms V, is now over the age of 18, and therefore no parenting orders are sought in relation to her.

2. The matter has a very long and complicated history. Ultimately it proceeded by way of undefended hearing, partly because Mr McDougall (“the father”) had disengaged from the proceedings, but also because, as I shall shortly detail, he is presently in custody awaiting the trial of numerous criminal proceedings against him.

3. As ultimately formulated, Ms Hampstead (“the mother”) sought orders that she have sole parental responsibility for the children, who would live with her and not spend time with the father until the conclusion of his criminal proceedings. She then contemplated that, with the conclusion of those proceedings, if they wished the children would be able to spend time with the father, so long as there were at least three of them doing so, and such time was in the presence of the paternal uncle. She also sought orders permitting the father to communicate on a monthly basis with the children.

4. Those orders were supported by the Independent Children's Lawyer.

5. On 15 March 2018 I reserved my decision in relation to this matter. This is that decision and the reasons for it.

BACKGROUND FACTS

1. The mother was born in 1972 and hence is presently 46 years of age. She completed high school, and then studied for a degree, graduating in 1993. She then obtained employment with her professional qualification and was so employed when, aged 22, she commenced a relationship with the father.

2. The father was born in 1971, and hence is presently 46 years of age. It appears as though he has for most, if not all, of his life after completing school, worked in a variety of occupations.

3. The parties’ relationship commenced in January 1995.  They were married in 1997 and, as I have already indicated, had five children. It appears as though initially the parties lived in Western New South Wales, but in 2004 they moved to D Town on the New South Wales coast.

4. The mother’s evidence is that the father’s aggression became noticeably worse after that move. She also says that his personality and behaviour changed during the course of the relationship, and she identifies that as being related to his longstanding use of marijuana.

5. The mother’s evidence is that, although the parties’ sexual relations had always been characterised by the father’s forcefulness, from about 2009 that became more pronouncedly aggressive and violent. Her police statement details that on occasion he would assault her, causing her to cry and have difficulty breathing. I should interpolate that the mother is one of a number of complainants in the father’s current criminal proceedings, and as I understand it, the father has been charged with rape of the mother based upon her statement.

6. Throughout the relationship the mother has worked, and remained doing so at the time of separation, which was 26 April 2010.

7. Post separation, there has been almost unremitting conflict between the parties, characterised by the father’s threatening and aggressive communication, both with the mother and her lawyers, and almost non-stop litigation between the parties. That commenced on 4 May 2010 when the mother obtained an interim AVO against the father and thereafter Federal Magistrates Court proceedings were commenced in July 2010.

8. On 28 July 2010 the father was found to have breached the terms of the domestic violence order protecting the mother.

9. It appears as though interim orders were first made in the Federal Magistrates Court on 14 October 2010, with final orders being made on 19 May 2011 by Jarrett FM (as his Honour then was). Those orders provided for equal shared parental responsibility, and for the children to live with the mother, but spend substantial and significant time with the father pursuant to a relatively complicated regime which saw them spend blocks of week day and weekend time with him, together with time on special days and half of school holidays.

10. However the conflict did not abate. From time to time the father would withhold the children from the mother, which led to contravention proceedings and recovery orders being made. A further breach by the father of the AVO protecting the mother was found proven on 28 February 2013.

11. The father also brought contravention proceedings against the mother. On 4 June 2013 that application was dismissed, but the court, on application by the mother, suspended the orders of Jarrett FM, and made further interim orders affording the mother sole parental responsibility for the children, who would remain living with her, but spend a decreased amount of time with the father comprising in each month, Monday and Tuesday nights in week 1, and Friday, Saturday and Sunday nights in week 3. Further orders were made for school holiday time to be spent in blocks of five consecutive days.

12. Judge Altobelli gave written reasons for so ordering; McDougall & Hampstead [2013] FCCA 390. It is sad to relate that many of the observations which his Honour then made, remain pertinent. For instance at [65] his Honour said:

    There is no doubt on all the evidence before the court that these children are caught in parental conflict that is primary instigated, and maintained, by the father who seems quite incapable of understanding his role in all of this, his responsibility in managing the situation appropriately and the distress this causes the children.

13. Earlier at [50] his Honour had observed:

    … There is a pervasive issue of dysfunctional and toxic communication between the parents, seemingly fuelled by the father’s insistence on his own rights, self-focussed and manifestly limited insight into the children’s needs…

14. Although the father appealed that interim decision, the appeal was deemed abandoned as at 30 July 2013.

15. The matter was transferred to this court on 6 September 2013. Ultimately it came before me at a case management hearing on 14 July 2017, and, in light of the father’s non-appearance on that occasion, I made orders requiring the parties to file material by a certain time, and in the event the father did not avail himself of that opportunity, that the matter to proceed as an undefended hearing on Thursday 16 November 2017.

16. The father did not file material, and accordingly the matter first came before me in November. Ultimately in view of there being no current family report or other objective evidence of the children’s wishes, on 27 November 2017 I made orders for the preparation of an updated family report, and listed the matter for an undefended hearing in March 2018.

17. I have made mention of the father’s extent criminal proceedings. It appears as though he was arrested in early 2017, and has remained in custody since.

18. Within the tender bundle provided to me in the course of the hearing, there are a number of police reports in relation to the father, however it is difficult to obtain any coherent understanding of the totality of the charges facing him. What is clear is that there are a number of complainants, some, or all, of whom appear to have been domestic partners of the father from time to time, including the mother.

19. A snapshot of the charges involving the father that were mentioned at the E Town Local Court in June 2017 was annexed to the mother’s trial affidavit. Doing the best I can, it appears as though there was then listed:

    ·An application for an Apprehended Domestic Violence Order against the father, for the protection of a former domestic partner;

    ·Seven charges of sexual intercourse without consent, and two charges of intentionally choking a person, all seemingly in relation to one alleged victim;

    ·One charge of aggravated sexual assault and deprivation of liberty, two charges of assault with acts of indecency, one charge of kidnapping, one charge of assault occasioning actual bodily harm, and one charge of aggravated break and enter, again all seemingly in relation to another alleged victim;

    ·Two charges of sexual intercourse without consent, again relating to another alleged victim;

    ·One charge of contravening an Apprehended Violence Order;

    ·One charge of larceny;

    ·One charge of intentionally choking a person, and two charges of assault (one being assault occasioning actual bodily harm), again seemingly in relation to another alleged victim.

20. Bail has been refused both in the Local Court and in the Supreme Court.

21. An unusual development occurred in mid-2017, when the paternal grandmother wrote to the mother asking her, in substance, not to press charges against the father on the basis that he would move to live with her in Western New South Wales, work in her business, seek assistance for his anger, and pay the mother $400 a week by way of child support (although it is referred to as maintenance). Unsurprisingly, this then led to the paternal grandmother being arrested and charged, although precisely with what offence is not clear, but likely to be either interfering with a witness, or seeking to pervert the course of justice.

22. The children have not spent time, nor communicated, with the father since early 2017. The mother has explained to them that the father is in custody as he has done some bad things to people.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (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; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

1. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

SECTION 60CC CONSIDERATIONS

Section 60CC(2)(a) – Benefit of meaningful relationship with both parents

1. There can be no doubt that the children derive benefit from a meaningful relationship with the mother, and that is amply demonstrated in the material.

2. The real question is whether the children would benefit from having a meaningful relationship with the father.

3. All of the children (including Ms V) have reported their experience of the father from time to time in troubling terms. Ms V, who has not had a relationship with the father for many years arising from a violent episode, told the family report writer, Ms F, that she did not wish to renew contact with him. X described the father as “very angry and intimidating at times.” Y recounted an episode when the father verbally abused the paternal grandmother with such vehemence that the children became so scared that they locked themselves in a bathroom. Z described the father “as at times becoming very angry and really scary” and her fearing that the father could hurt them. Only W seemed to identify that there were “fun times visiting Dad”, and in that regard it is interesting to note the mother’s evidence that the father does not behave towards W as he does towards his daughters.

4. Annexed to the mother’s affidavit were a large number of instances of the father’s anger, as expressed in correspondence to her solicitor, Facebook posts, text messages to her and the like. Frequently, he will send multiple communications about the same topic, seemingly in an attempt to berate or intimidate the recipient to bending to his wishes.

5. That said, the children do seem to have enjoyed time with the father on occasions, and particular as the mother says, he is activity focussed, was involved in some of the children’s sporting and other activities (for instance, junior surf lifesaving) and as she concedes, does genuinely love them.

6. However the recurrent difficulty with the father is his anger, and perhaps more troubling, his lack of insight as to the effect to which his anger has upon the children. It is now clear that this is longstanding, and one would have to doubt it is likely to moderate in any significant way in the future. Further, there remains the substantial prospect that the father will be found guilty of one or more of the charges which he presently faces, with the prospect of him being incarcerated for a significant period of time.

7. Ultimately it seems to me as though the children may benefit from having some form of relationship with the father, but that will much depend upon the outcome of the criminal proceedings, and any period of actual imprisonment which he may be sentenced to. However I do not assess that the children would derive absolutely no benefit from a relationship with the father in the future, particularly W, who does not seem to have a particularly adverse view of the father, or an adverse recollection of his experience of him.

Section 60CC(2)(b) – Need to protect child from harm

1. Other than Ms V, there does not appear to have been any actual physical assault of the children by the father. However the prospect of them suffering some form of emotional – or perhaps psychological – harm from the father’s anger and family violence is real. The impact of exposure to family violence upon children is well established, and cannot be doubted. Moreover, as I have observed, the father’s anger has been in full – at times it seems, almost uncontrolled – display over many years, and it appears as though he has now, on several occasions, to several women, breached domestic violence orders intended to ensure their safety. I am well satisfied that the father does not have any insight in relation to the potential impact of his behaviour on the children.

2. Plainly if the children are to again spend time with the father, it needs to be in circumstances which adequately safeguards them against the risk of harm from the father’s anger.

3. Finally, so long as the father remains incarcerated, Ms F’s evidence was that this of itself poses a risk of psychological problems to the children. She said “these include problems associated with potential shame and embarrassment amongst their peer group as well as confusion, loss, anger, worry and insecurity.” Whilst the father’s incarceration is not abuse, neglect or family violence, nonetheless the risk of harm to the children posed from his incarceration is a matter of relevance in these proceedings.

4. In accordance with the legislation, I give the need to protect the children from harm from being subjected or exposed to abuse, neglect or family violence from the father greater weight than the benefit to them of having a meaningful relationship with him.

Section 60CC (3)(a) – Views of children

1. The three girls are of an age that their wishes deserve weight; W is only 11 and whilst his wishes do deserve weight, they do not deserve the weight which I give to his sisters’ wishes.

2. X reported to Ms F that she does not want to see her father, and has little curiosity about his circumstances. Y expressed uncertainty about whether she wished to see the father, and told Ms F that she would like to be able to choose whether, at some later time, she wishes to see him.

3. Z said she did not know if she wanted to see her father, and recounted a number of angry and scaring episodes in the past when spending time with him.

4. As I have indicated, only W expresses some desire to see the father, but at [54] Ms F reported:

   [W] would like to see his father but expected that it would be very upsetting saying goodbye at the end of a visit. He said that he could perhaps go with “Uncle [G]” but the jail might be too far away. [W] said he would be upset if he cannot see his father. He asked how long his father might be in jail for.

Section 60CC(3)(b) – Nature of relationship with parents

1. All of the children have a good relationship with their mother, from which they derive comfort, nurture and support.

2. Again it is the nature of the children’s relationship with the father which is problematic. None of the children have now seen or communicated with him since January 2017. Their recollection of the relationship varies, but is characterised by ambivalence in relation to the three girls. It is likely that only W is in some way mourning the lack of a relationship with his father, and that otherwise the children’s lack of exposure to his anger and hostility has likely been of benefit to them.

Section 60CC(3)(c) – Parental involvement in children’s lives

1. Up until his incarceration, it appears as though the father has been keen to be involved in the children’s lives, and to spend time with and communicate with them.

Section 60CC(3)(ca) – Parental maintenance of children

1. The mother deposes to the father paying child support, but also annexes text messages and other communications which demonstrate that he has sought to minimise his payment of child support by concealing income from authorities.

2. It is plain that the costs of raising five, and currently four children, are considerable. The father has, post-separation, made limited contribution to the children’s upkeep, and has plainly made no contribution since his incarceration. Although one might not be inclined to blame him for a lack of contribution arising from incarceration, it cannot be doubted that the father’s present imprisonment is likely the result of his own choices as to how he engages with people. The consequence of those choices has been that he has not been able to provide for his children in any respect since January 2017.

Section 60CC(3)(f) – Capacity of parents to provide for children’s needs

1. There can be no doubt that the mother’s capacity to provide for the children’s needs is good. Again it is the father who is the focus of this enquiry.

2. I have already observed that he is an angry man, with no or little insight into the effects of his anger upon the children. I am well satisfied, as indeed was Judge Altobelli in June 2013, that the father used physical force on Ms V at a shopping centre in an attempt to persuade her to come with him. That, of itself and without more, causes doubt in relation to his capacity to provide for the children’s emotional needs, given that that episode was played out in front of Ms V’s peer group.

3. I am satisfied that, although not entirely without capacity, the father has limited capacity to provide for the children’s emotional needs.

Section 60CC(3)(j) – Family violence

1. I am satisfied that the father has engaged in family violence from time to time towards the mother, and towards Ms V as well. I am also satisfied that the father has, on occasions, behaved in a highly angry and aggressive way towards other family members, including his own mother as recounted by the children. The simple fact is that the father is an angry man, and on occasions that plays out as family violence.

2. I accept the mother’s evidence contained in her police statement about the father’s rape and other violence towards her in the course of the parties’ sexual relations. That is, of course, extreme family violence. The fact that the children may not have been exposed to it is relevant, but does not diminish the fact that the father is an angry, forceful and violent man.

Section 60CC(3)(k) – Family violence orders

1. Family violence orders have applied to protect the mother. The father has breached them from time to time. Sadly that does nothing more than further reinforce the earlier observations I have made in relation to the father’s anger, forcefulness, aggression and violence.

Section 60CC(3)(l) – Prospect of institution of further proceedings

1. Whilst it would be best in this case to make orders which did not allow the prospect of further proceedings – given that the parties have now been in litigation almost constantly since separation 8 years ago – the father’s present incarceration and the uncertainty in relation to the outcome of his criminal proceedings, makes that not possible.

PARENTAL RESPONSIBILITY

1. The mother is one of the complainants in the father’s criminal proceedings, and alleges, it seems, multiple rapes and assaults of her. I am satisfied that they occurred. There are therefore reasonable grounds to believe that there has been family violence, and accordingly, the presumption of equal shared parental responsibility does not apply. In any event, there is no suggestion that these parties could adequately discharge the obligations imposed upon them under s 65DAC in relation to an order for equal shared parental responsibility, as communication between them is virtually impossible.

2. I am well satisfied that the only possible order in the circumstances, and one which is the children’s best interests, is for sole parental responsibility to be given to the mother.

With whom should children live

1. The father is in custody, and there is no prospect of him presently being able to care for the children. Even if he were to be released from custody tomorrow, he is not a candidate for the children to live with him. I have already emphasised his anger, his lack of insight, and his dubious capacity to provide for the children’s emotional needs. However on a more practical level, there is no evidence as to his present housing, and in the past, as demonstrated by photographs annexed to the mother’s affidavit, his home has assumed something of the appearance of a junkyard, with quantities of metal and roofing materials littered about.

2. In all the circumstances, plainly it is in the children’s best interests that they live with the mother and it remains, at present, the only viable option for them in any event. There will therefore be an order to that effect.

Time and communication with father

1. This is the nub of the case. The uncontradicted evidence of the Family Report writer, Ms F, is that so long as the father remains in custody, the children should not be required to visit him. Particularly she noted at [62] “there is material in the subpoena bundle that suggests [the father] is unlikely to be sensitive to the children’s psychological needs were they to see him in jail.” I accept that evidence.

2. I have already observed in relation to the children’s wishes, that the girls are ambivalent about whether they wish to spend time with the father again, and whilst W is desirous of doing so, is anxious about how he would terminate the visit, and particularly being distressed at having to do so.

3. I accept Ms F’s recommendation that there should be no orders requiring the children to visit their father in jail. As she says “orders such as this would be contrary to most of the children’s desires and likely to expose them to confusing information and intense emotions”.

4. I am therefore satisfied that there should be no order requiring the children to spend time with the father, so long as he is incarcerated.

5. The length of time of the father’s ongoing incarceration is impossible to presently predict. He faces a number of very serious charges, with the prospect, if he were to be convicted in relation to all of them, of a very lengthy period of actual imprisonment. It is therefore difficult to make any present assessment as the circumstances that are likely to prevail at the time of his release. Indeed it is quite foreseeable that the father will remain in jail for the next seven years, and hence there will never be an opportunity for him to spend time with or communicate with any of the children during their minority. However to cover the eventuality that he is released from custody before W turns 18, consideration needs to be given as to the circumstances in which any such time should be experienced.

6. I am satisfied that the children should not be required to spend time with the father unless they express a desire to do so. There are many variables at play here, including the prospect of the father’s conviction for serious offences. However fundamental to my thinking is the father’s history of anger and conflict. The children should only be exposed to the risk of that if they so desire.

7. However in addition to their wishes, I am satisfied that there should be other safeguards imposed, and particularly, that any time with the father should be in the presence of another adult who can, if not control him, at least seek to control him, and potentially remove the children from any misbehaviour. It is said that his brother would be an appropriate supervisor, and I am satisfied that if he is willing to supervise, then he should be permitted to do so, or alternatively, another supervisor that the mother may be willing to agree to could act instead.

1. However there is a further protective factor which is recommended, and that is that the children should only spend time with the father in a group of three or more. As I understand the recommendation, this is principally to protect W. At [61] Ms F recommended:

   The family consultant is of the opinion that [W] should not have visits to his father unless the majority of his siblings wish to share those visits. Visits would be intensely emotional and anxiety provoking for [W] and it is an experience best he not have separate to all of his siblings. [W] could become unduly burdened by feeling responsible to please and support his father were he to have visits with his father.

2. I accept that evidence and recommendation. I am satisfied that it is in the best interests of the children collectively that any time they spend with the father be in a group of at least three. There will therefore be an order to that effect.

3. As to communication, I am satisfied that the orders as proposed by the Independent Children's Lawyer are in the best interests of the children. Particularly as developed during submissions, I am satisfied that the father should be able to write to the children no more than once per calendar month during the time that he is incarcerated, save that such correspondence should be first vetted by the mother to ensure it is appropriate. The father’s long history of intemperate and aggressive communication mandates such supervision and monitoring of his proposed communications.

OTHER ORDERS

1. Otherwise there will be orders as proposed by the Independent Children's Lawyer.

CONCLUSION

1. For these reasons, there will be orders as set out at the commencement of this judgment.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 July 2018.

Associate:

Date: 24 July 2018