Hanjan & Mahani
[2023] FedCFamC2F 719
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanjan & Mahani [2023] FedCFamC2F 719
File number(s): NCC 1718 of 2021 Judgment of: JUDGE CARTY Date of judgment: 15 June 2023 Catchwords: FAMILY LAW – PARENTING – Final parenting orders – application by father to spend time with children – key issue is consideration of risk of harm to the children from being subjected to or exposed to neglect and family violence in the household of the father – impact on mother’s parenting capacity if required to facilitate the children spending time with or communicating with father – whether it is appropriate for the welfare of the children to make s.68B restraints for the personal protection of the children – proposed international travel for children with mother – best interests of children Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA,65DAA, 68B, Pt VII Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348
Russell & Close [1993] FamCA 62
Re Andrew [1996] FamCA 43
Division: Division 2 Family Law Number of paragraphs: 124 Date of last submission/s: 12 January 2023 Date of hearing: 10, 11 and 12 January 2023 Place: City G The Applicant: Self - represented Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: GG Lawyers Counsel for the Independent Children's Lawyer: Ms Hamilton Solicitor for the Independent Children's Lawyer: HH Lawyers
Table of Corrections 15 June 2023 In paragraph 27 one reference to “She” has been corrected to show “He”. 15 June 2023 In paragraph 38 one reference to “Ms B” has been corrected to show “Mr Hill”. 15 June 2023 In paragraph 39 one reference to “herself” has been corrected to show “himself”. ORDERS
NCC 1718 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HANJAN
Applicant
AND: MS MAHANI
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE CARTY
DATE OF ORDER:
15 June 2023
THE COURT ORDERS ON FINAL BASIS BY CONSENT THAT:
1.All previous parenting orders are discharged.
2.The mother have sole parental responsibility for the children X, born in 2015 and Y, born in 2018 (“the children”).
3.The children live with the mother.
4.Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 the mother is permitted to apply for a passport for each of the children X, born in 2015 and Y, born in 2018 without the consent of the father.
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
5.The children spend no time and have no communication with the father.
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of the children the father is restrained and an injunction is granted restraining the father from:
(a)Approaching within 200 metres of the children or either of the children;
(b)Attending at or loitering within 200 metres of the children’s place of residence or any other place where the children may reside or spend time including but not limited to the D Store;
(c)Contacting, communicating with or attempting to contact or communicate with the children or either of the children, in person, through another person or through any electronic communication or device including by telephone, text message, social media, written mail and electronic mail or by any other form of communication; and
(d)Removing the children or either of the children from the mother’s care or from the care of any other person in whose care the mother may place the children from time to time.
7.Pursuant to section 65Y(l)(c)(ii) of the Family Law Act 1975 (Cth), the children X, born in 2015 and Y, born in 2018, or either of the children, are permitted to travel to a place outside the Commonwealth of Australia with the mother, whether or not the father has consented to such travel.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hanjan & Mahani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 15 June 2023
JUDGE CARTY
INTRODUCTION
These parenting proceedings concern two young children who have not spent time or communicated with the applicant father Mr Hanjan (“the father”) since the parents separated more than two years ago.
The father has a criminal record, including for offences involving family violence, drink driving and drug possession. He has a history of poor mental health and substance abuse.
The parties agree that the respondent mother Ms Mahani (“the mother”) will have sole parental responsibility for the children, that the children will continue to live with the mother, and that she will be permitted to apply for a passport for each child without the consent of the father.
There are three issues which the court is required to determine:
(a)Whether the children will spend time with, or have any communication with, the father;
(b)Whether the father will be restrained by injunction from contacting or approaching the children, and from removing the children from the mother’s care; and
(c)Whether the children will be permitted to travel outside the Commonwealth of Australia with the mother, without the consent of the father.
For reasons which follow, the court has found that the father has not demonstrated that he has adequately addressed his mental health issues, his substance misuse, and his criminal offending behaviour. The children will be exposed at an unacceptably high risk of physical and psychological harm from neglect and family violence if they spend time or communicate with the father, until such time as he is able to demonstrate that his mental health is stable, that he no longer abuses alcohol or takes illicit drugs, and that he is rehabilitated and is no longer likely to commit criminal offences. Accordingly, there will be a final parenting order that the children do not spend time with or communicate with the father, and the restraints sought by the mother will be made for the personal protection of the children.
The court is satisfied that the children will benefit from the opportunity to travel internationally with the mother, whether or not the father has provided his consent, and an order will be made permitting the children to travel internationally with the mother.
BACKGROUND
The father was born in India in 1989. He is currently 33 years old. The father immigrated to Australia in 2007, and is a permanent resident of Australia[1]. At the date of hearing he was living at Town E, New South Wales and working in the construction industry.
[1] Father’s affidavit filed 15 march 2022 paragraph 2
The mother was born in Australia in 1983 and is currently 39 years old. At the date of hearing she was working full time in a small business, which the parents operated during their marriage. The mother lives with the two children, at an address in the Town F area, which she wishes to keep private from the father.
The parents married in 2009, and commenced cohabitation[2].
[2] Mother’s affidavit filed 19 December 2022, paragraph 3
There are two children of the marriage, X born in 2015 and Y born in 2018. At the date of the hearing the children were 7 years old and 4 years old respectively,
The parents finally separated on 26 November 2020. The father was charged with the offences Stalk/intimidate (Domestic), Use carriage service to menace/ harass/ offend and Possess Prohibited Drug. Those charges, except the drug possession, related to the father’s conduct towards the mother in the period between 4 November 2020 and 26 November 2020. The children have not spent time with the father, or communicated with the father since the parents separated.
In 2021 the father was convicted of the above offences, and a Final Apprehended Domestic Violence Order was made in the Local Court at City G against the father for the protection of the mother and the children for a period of two years, expiring in 2023.[3]
[3] Annexure JL1, Exhibit G p 184
On 25 May 2021 the father filed an Initiating Application seeking final parenting (and property) orders. The orders he sought included that the parents have equal shared parental responsibility for the children, that the children live with the mother, and the children spend time with the father each alternate weekend and for one half of the school holidays.
On 28 June 2021 the mother filed a Response seeking final parenting (and property) orders. The orders which she sought included that the mother have sole parental responsibility for the children, that the children live with the mother, and that the father not initiate contact with the children and he be restrained from approaching the mother and the children.
The parenting proceedings
On 30 June 2021 interim parenting orders were made, including that within 7 days the father submit to hair testing to detect the presence of illicit drugs or excessive alcohol use over a three to six month period. The father was prevented by injunction from cutting his hair and was to pay the costs of the hair testing. It is common ground that the father did not submit to the hair testing within the time frame required by the orders, and instead he provided a sample for testing which was collected on 20 September 2021.
Pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”) an order was made that the parents and children attend a Child Inclusive Dispute Conference with a family consultant on 28 September 2021. A Child Inclusive Conference Memorandum to Court, prepared by Court Child Expert Ms H, was released to the parties.[4]
[4] Exhibit E
On 9 November 2021 an order was made for the appointment of an Independent Children’s Lawyer, pursuant to section 68L of the Act. The court noted that the father intended to seek an early interim hearing date in respect of his proposal to spend time with the children.
On 4 February 2022 the matter was adjourned to 29 March 2022 for hearing of the father’s application for an interim order that the children spend time with him, and directions were made for filing of documents required for the interim hearing. On 29 March 2022 father was represented by Learned Counsel. The interim hearing was vacated and adjourned until 9 May 2022 because the father was unable to attend the hearing, and had presented himself to hospital. On 9 May 2022 the father was represented by Counsel. By consent, the court ordered that the father’s application for interim parenting orders is withdrawn and dismissed and that, within 28 days, the father pay the mother’s costs in the sum of $6,677.56 and the costs of the Independent Children’s Lawyer in the sum of $1,320. On 15 August 2022 the mother filed an Application – Enforcement seeking enforcement of the costs order made on 9 May 2022.
On 9 June 2022 the court ordered, pursuant to s.62G of the Act, that a family report be prepared. On 2 September 2022 the family report prepared by Court Child Expert Ms H, was released.[5]
[5] Exhibit A
On 19 September 2022 it was ordered, by consent, that the father pay by instalments the costs which were ordered to be paid on 9 May 2022, with the final instalment due by no later than 22 November 2022, and that the property proceedings be bifurcated from the parenting proceedings. The parenting proceedings were listed for final hearing commencing at 10.00 am on 10 January 2023. The court ordered, pursuant to section 102NA of the Act, that the father is prohibited from personally cross examining the mother at the hearing.
At the date of final hearing there was an Apprehended Domestic Violence Order (“ADVO”) in place for the protection of the mother and the children for two years, due to expire in 2023.
DOCUMENTS RELIED UPON
In support of his case the father relied on:
(a)Outline of case document filed 9 January 2023;
(b)Affidavit of father filed 1 June 2022 (with leave, unopposed);
(c)Affidavit of father filed 15 March 2022 (with leave, unopposed); and
(d)Exhibit A.
In support of her case the mother relied on:
(a)Outline of case document (final hearing) filed 3 January 2023;
(b)Amended response filed 24 October 2022;
(c)Affidavit of mother filed 19 December 2022; and
(d)Exhibit A.
The Independent Children’s Lawyer relied on:
(a)Outline of case document filed 9 January 2023; and
(b)Exhibit A.
Each party tendered further material which became exhibits in the proceedings.
The proposals of the parties
The father sought final parenting orders set out in Annexure A to his Outline of Case Document (“Annexure A”). At the outset of the hearing, Learned Counsel for the father confirmed that the father sought orders that the mother have sole parental responsibility for the children, and that the children live with her. Those two orders will be made by consent, as the mother and the Independent Children’s Lawyer seek identical orders.
Counsel for the father was asked to clarify what final orders the father sought, due to some apparent anomalies in Annexure A. He confirmed that the father sought orders that the children spend time with him as follows:
(a)Upon him starting a men’s behaviour change program through J Counsellors, and throughout the duration of that program, on the first Saturday of each month for two hours between 10.00 am and 12.00 noon supervised by K Contact Centre or a similar authorised supervisory service, with the father to bear all costs associated with the supervision;
(b)Upon him completing the men’s behaviour change program then for a period of three months on a fortnightly basis from 10.00 am to 12.00 noon, supervised by K Contact Centre or a similar authorised supervisory service, with the father to bear all costs associated;
(c)Upon expiry of three months, and for a further period of three months, on a fortnightly basis from 10.00 am to 2.00 pm, supervised by K Contact Centre or a similar authorised supervisory service, with the father to bear all costs associated;
(d)Thereafter, and for a further period of three months, on a fortnightly basis from 10.00 am to 4.00 pm supervised by K Contact Centre or a similar authorised supervisory service, with the father to bear all costs associated; and
(e)Upon expiration of the above order, between 10.00 am and 4.00 pm on one weekend a fortnight, with a supervised changeover.
In addition, the father sought orders that:
(a)Authority to attend upon and liaise with the medical practitioners for the children regarding medical treatment, and that each party telephone the other immediately upon the children becoming ill, being hospitalised or being involved in an accident;
(b)The parents exchange details of their landline telephone number, mobile telephone number and residential address;
(c)Authorities to enable each parent to receive the children’s school reports and school photos, or other notes relating to the children, and to speak to the teachers of the children concerning the children’s school performance; and
(d)That each parent be restrained from allowing the children to witness domestic violence and from denigrating the other parent or members of their family, and from posting on social media about the other parent or their family.
In addition to the orders that the mother have sole parental responsibility for the children and the children live with her, the mother adopted the orders proposed by the Independent Children’s Lawyer[6], that the children spend no time and have no communication with the father, and orders restraining the father from approaching or attending or loitering anywhere near the children or contacting or communicating or attempting to communicate with the children, or removing them from the mother’s care.
[6] Exhibit K
The mother and the Independent Children’s Lawyer also sought an order that, pursuant to Section 11(1)(b)(2) of the Australian Passports Act2005, the mother is permitted to apply for a passport for each child without the consent of the father. During his final submissions the father agreed that the children should have passports, so that order will be made by consent.
The father opposed the order, proposed by the mother and the Independent Children’s Lawyer that the children be permitted to travel to a place outside of the Commonwealth of Australia with the mother whether or not the father has consented.
LEGAL PRINCIPLES
Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII, and the principles underlying the objects, are set out in section 60B of the Act, which provides relevantly for present purposes that:
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
In determining what is in the child’s best interests, the court must consider the matters set out in sections 60CC (2) and (3) of the Act in so far as they are relevant. The court is required to give greater weight to the need to protect the child from harm from being subjected to, or exposed to, abuse, neglect or family violence[7] than to the benefit to the child of having a meaningful relationship with both of the child’s parents[8].
[7] Sections 60CC(2)(b) and 60CC(2A)
[8] Section 60CC (2)(a)
When making a parenting order 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 (s.61DA). The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child (or another child who was a member of the parent’s family) or family violence. The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
When the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
THE HEARING
Throughout the course of the first one and a half days of the final hearing the father was represented by Mr Hill of Counsel. The mother was represented throughout the trial by Mr Willoughby of Counsel. The Independent Children’s Lawyer was represented by Ms Hamilton of Counsel.
At 12.05 pm on the second day of the trial, after the father’s cross examination had been completed and the mother’s cross examination was under way, an application was made on behalf of the father that the hearing be adjourned, part heard, for one or two months, because the father was prosecuting a severity appeal in the District Court of NSW, due to be heard on in 2023[9], and it was submitted that there would benefit if the court awaited the outcome of the severity appeal before finally determining the parenting proceedings. The application to adjourn the part heard trial was opposed by the mother, and by the Independent Children’s Lawyer. The court refused the application for adjournment and delivered extempore` reasons. Following the luncheon adjournment Counsel for the father sought leave for himself, and the instructing solicitor, to withdraw. Counsel submitted that it had been explained to the father that he would not be able to carry on the cross examination of the mother personally, once his Counsel withdrew. Leave to withdraw was unopposed and was granted. Thereafter the father represented himself for the balance of the hearing. He confirmed that he understood that could not carry on the cross examination of the mother personally. The court then explained the further conduct of the trial to the father, in accordance with the requirements of Re F: Litigants in person guidelines.[10]
[9] Although the father placed no up to date evidence before the court about the offences which are the subject of the severity appeal to the District Court of New South Wales, Exhibit I contains a criminal history report for the father produced by NSW Police . In 2022 in the Town E Local Court the father was sentenced to a term of imprisonment (aggregate) for four months commencing in 2022 concluding in 2022 and that he lodged a severity appeal, with an appearance due in 2023 in City G District Court.
[10] (2001) FLC 93-072; [2001] FamCA 348
Although the father adequately represented himself in the proceedings after the withdrawal of his legal representatives, he plainly failed to fully grasp the key issue in this case, which is the need to protect the children from harm, nor did he fully appreciate the considerable amount of work that he must do before the court could be satisfied that the children would not be placed at an unacceptably high level of risk of harm if they spend time with the father.
The court child expert Ms H is a social worker and Family Consultant. As noted previously Ms H prepared the Family Report in this matter[11] and the Child Inclusive Conference Memorandum to the Court.[12] She gave oral evidence and was cross examined. Ms H confirmed under cross examination that she stood by her assessments, opinions and the recommendations which are set out in her two reports. I consider the evidence of the court child expert is valuable and relevant material, and that her assessments and recommendations of the expert are entirely consistent with the rest of the body of evidence before me. Accordingly I have afforded the evidence of the court child expert considerable weight in coming to my determination about the orders that are in the best interests of the children in this matter.
CONSIDERATION OF WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN IN THIS MATTER
[11] Exhibit A in the proceedings
[12] Exhibit E in the proceedings
Primary considerations
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
X was five years old when the parents separated. He has fond memories of the father teaching him how to ride a bike without training wheels. X can also remember his parents fighting and arguing[13].
[13] Exhibit A paragraph 67
Except where it is contrary to X’s best interests, he has a right to know and be cared for by both parents[14]. The law recognises that children benefit from both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.[15] A ‘meaningful relationship’ for the child with a parent is ‘one which is important, significant and valuable to the child’[16] X has not had a significant relationship with the father for more than two years. The benefits to X of his relationship with the father being resumed or restored must be weighed and balanced against the risks of harm for X if he spends time with and communicates with the father.
[14] Section 60B(2) (a) of the Act.
[15] Section 60B(1) of the Act
[16] Mazorski & Albright (2007) 37 Fam LR 518
Y was 2 years and 5 months old when she last spent time with the father, and she will likely have no memory of him. She has no current relationship with him. As with X, the benefits to Y of her being introduced to the father must be weighed and balanced against the risks of harm for Y if she spends time with and communicates with the father.
The court is mindful of the potential life-long consequences for each child if he or she does not have the benefit of having a meaningful relationship with the father.[17] The court must give greater weight to the need to protect the children from harm than to the benefit of the children having a meaningful relationship with both parents[18].
[17] For example, the children may harbour blame and resentment towards the mother, as they grow older, which may destabilise that relationship; their sense of identity may suffer, they will be deprived of the father supporting their growth and development, and they may be deprived of access to their extended paternal family: Exhibit A paragraph 87
[18] Section 60CC(2A) of the Act
The mother has consistently proposed that the children spend no time with the father. She has expressed her fear of the father and her significant concerns around the safety of the children while in his care[19]. The mother has also expressed her hope “that the children would be able to have some relationship with the father in the future.”[20] During her cross examination by Counsel for the Independent Children’s Lawyer the mother was able to articulate precisely the minimum steps the father would have to take in order for her to be satisfied that the children could be safe with him, namely that the father demonstrates:
(a)That he is completely abstinent from alcohol and other drugs, by undertaking regular HFT;
(b)That he is adequately addressing his mental health issues, including obtaining an independent psychiatric evaluation and complying with prescribed treatments[21];
(c)That his home is safe, including other people who may reside with him;
(d)That he has committed no further family and domestic violence offences and has no further family violence episodes; and
(e)That he has no further criminal charges or convictions.
[19] Exhibit E paragraphs 4 - 5, 7, 11 - 12, 16 - 17, 22
[20] Exhibit E paragraph 2, 36, 40
[21] The father would have to obtain an up to date, independent psychiatric assessment, with a full history provided to the psychiatrist, in order to obtain a current diagnosis
It is not in dispute, and there is no doubt, that the children have the benefit of a meaningful relationship with the mother, and will continue to have that benefit while they continue to live with the mother.
Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence
When the mother first spoke to the court child expert on 28 September 2021 she “described a history of family violence that spanned the length of the relationship.”[22] The father accepted that there was family violence in the relationship with the mother, but he disputed the severity and extent of it[23] and stated “that the family violence occurred only when he was under the influence of alcohol”. The expert records that the father could offer little insight into his behaviour.
[22] Exhibit E paragraph 6
[23] Id
The mother told the court child expert that she
“remains in fear of the father… feeling scared and anxious around him due to his unpredictable moods and aggressive demeanour towards her and others.”[24]
The mother says that her fear of the father impacts on her capacity to interact with him. The father acknowledged that there would have been times when the mother was fearful of him
“however stated that she would not be scared of him as he is part of the community and a nice person… that as he has not seen the mother…she would no longer be fearful of him.”[25]
[24] Ibid paragraph 7
[25] Id
When the father spoke with the court child expert for the preparation of the family report in August 2022, he conceded that he had a criminal history but he did not fully disclose the extent of the history[26]. The father’s criminal history is before the court.[27] His earliest convictions for violence are recorded in 2010[28] and his most recent convictions, for Contravene prohibition/restriction in AVO (Domestic) and Behave in an Offensive Manner, are recorded in 2022, a mere two months before the final hearing.
[26] Exhibit A paragraph 31
[27] Exhibit G pages 1-5 and 178-179 and Exhibit I pages 21-23
[28] Exhibit G page 2
In 2010, less than one year into the parents’ marriage, the father was charged with Common Assault and Assault Occasioning Actual Bodily Harm, where the mother was the alleged victim.[29] Upon the application of police, a Provisional Apprehended Domestic violence order was made against the father for the protection of the mother[30]. One of the conditions of the ADVO was that the father not approach the mother, or her premises, within 12 hours of him consuming intoxicating liquor or illicit drugs. The charge of Common Assault was found proven and the father was sentenced to a Section 10 Bond for 12 months. In cross examination by Learned Counsel for the mother, the father attempted to justify his conduct towards the mother on the relevant occasion, telling the court that the mother was intoxicated and that he was “trying to put her back together”. I reject the father’s attempt to justify his assault on the mother, and consider that his evidence demonstrates that he does not accept full responsibility for his actions and that he seeks to deflect responsibility for his offending onto the mother.
[29] Exhibit G page 2 and page 21 et seq
[30] Exhibit G p21 et seq
In early 2013 the father was convicted of driving with a mid-range PCA, fined $300 and disqualified from driving for six months. In 2018 he was sentenced to an Intensive Corrections Order (Aggregate) for 11 months for offences of Common assault and Armed with intent to commit an indictable offence.
At the date of the final hearing there was a Final ADVO in place against the father for the protection of the mother and the children. In 2021, in respect of the charges laid against the father in 2020, he was sentenced to an Intensive Correction Order for 13 months, with supervision by Community Corrections, and to a Community Service Order for 250 hours, as well as a Community Corrections Order for two months. The father conceded in cross examination that he had sent the mother a huge amount of abusive text messages, and that he had made an enormous number of phone calls to her, in the period leading up to final separation, and prior to him being charged in 2020.
The mother annexed to her affidavit a copy of the abusive, accusatory and threatening messages she received from the father between 4 November 2020 and 26 November 2020.[31] I accept the mother’s unchallenged evidence that on 26 November 2020 the father told her during a phone call “I will kill you and your mother before you even get to the police”[32]. I accept that the threat made by the father to the mother caused her so much fear that she and her mother left work immediately, went home, packed bags for themselves and the children, and went to stay at the home of relatives.[33]
[31] Mother’s affidavit annexure JL-2
[32] Ibid 37-39
[33] Ibid paragraph 40
The father’s involvement with police and the criminal justice system has continued well after his separation from the mother, and has more recently involved his relationship with Ms L. The father initially denied, in his oral evidence, that he has ever been in a relationship with Ms L. He said that she was his landlord, and that he lived in her premises for nine days in early 2021. Later on in his evidence he said that before he moved into Ms L’s premises they engaged in sexual relations. An entry in notes created by police in 2022 records that the father resided with Ms L for a period of 4 months, during which time a sexual relationship developed, and that in mid 2022 the relationship ceased and the father had moved out, and since that time the father and Ms L have engaged in a casual sexual relationship.[34] Police record their belief that domestic violence is occurring within the relationship between the father and Ms L and that without an ADVO in place Ms L is at risk of physical harm or having further property destroyed. In 2022 the father was served with an enforceable ADVO made against him for the protection of Ms L for a period of six months.
[34] Exhibit G p 212-213
In 2022 the father was served with an enforceable Final ADVO made against him for the protection of Ms L for a period of two years, due to expire in 2024. The father did not inform the court child expert of this ADVO when he was interviewed on 22 August 2022.[35]
[35] Exhibit A paragraph 55
On 27 August 2022, five days after his interview with the court child expert for preparation of the family report, and in breach of the ADVO, the father spray painted offensive words onto the rear and front driver’s side doors of Ms L’s car, which was parked outside her home. In late 2022 he pleaded guilty to Contravene ADVO and Behave in an offensive manner and was sentenced to imprisonment for four months and fined. He has lodged a severity appeal due to be heard in early 2023.[36] During cross examination the father said that the offences were “a mistake” which he made due to his circumstances, and he blamed the victim, telling the court that he’d been getting harassed by the victim and her family for a long time. The father said that he considers the sentence is too harsh due to the effect of the victim’s actions on his mental health, and on his conduct. He agreed that if the severity appeal fails then he will be incarcerated.
[36] Exhibit G p 178
There are multiple entries made by police in records for the period between mid 2022 and late 2022 involving arguments between the father and Ms L, with each party attending the police station to report the conduct of the other. An entry in mid 2022 records that the father reported that Ms L was stalking and harassing him, and that she had attended his house uninvited and was banging on his door. Police checked the father’s phone and saw that he had invited Ms L to come over to return some of his property.[37]
[37] Exhibit G p 208-209
Throughout the father’s oral evidence, when asked about family violence, he gave inconsistent and evasive answers, and he generally attempted to minimise and justify his conduct, often stating that he couldn’t recall a particular event while maintaining that there was no violence involved in the event. He minimised the seriousness of his offending and he was at times dismissive, including when he was answering questions, during cross examination, about his efforts to enrol in programs for offenders. He said that he really wants to do a course, but clearly he has not completed any course to date.
In November 2021, prompted by advice from his criminal lawyer, the father attempted to obtain support from M Counsellors, a free six hour group or specialist workshop for men who engage in intimate partner relationships, but due to his risk rating with Community Corrections, he was not accepted into that program. He was referred to N Course, a 10 week program running at O Counsellors.[38] The father has not completed the O Counsellors course.
[38] Exhibit C
In early 2023 the father again contacted M Counsellors, and was booked into the P Course workshop in early 2023.[39] He has not completed that course.
[39] Exhibit B
The father struggled to accept responsibility for his offending and demonstrated little insight into the impact on other people. For example, when asked by Learned Counsel for the Independent Children’s Lawyer about the mother’s concern, that if the parents have to communicate with each other about children, the father might take the opportunity to harass or intimidate her, the father answered “I should be punished if I do this.” He was not able to consider how the mother might feel.
It appears that the father has not yet reached the first stage of addressing his violent offending behaviour. He is yet to admit that some of the violence occurred, and he does not accept full responsibility for his conduct, and instead seeks to minimise, excuse and justify it, including by blaming his victims.
The father failed to abide by the conditions of an ADVO in place for the protection of Ms L. He has been convicted of criminal offences he committed during the course of the parenting proceedings, while under the scrutiny of this court. He consistently maintained that his circumstances and situations caused him to commit these offences. He conceded that, in his words, the court was in a “tricky situation” when asked to make orders for the children to commence having supervised time with the father, when there was a real prospect of him being incarcerated in 2023 if his severity appeal is unsuccessful. He agreed that if he started supervised time and was subsequently incarcerated then this would not be good for the children.
The father maintained under cross examination that he is not mentally sick, and that he is “mentally down” and that he does not think that he suffers from any mental health condition. The father’s medical history suggests otherwise. The father also maintained in cross examination that he’s never had a problem with substance abuse. He said that he wanted to see the evidence. He professed not to understand that that alcohol is a substance, but eventually conceded that alcohol has caused problems in his life, and he attributed alcohol for his offending, as well as “mental pressure from maternal family”, once again seeking to deflect responsibility for his offending onto the mother’s family. The father denied that he has ever had an alcohol dependency, and said that he was a binge drinker and not a regular alcoholic who drinks every day. He eventually conceded that alcohol dependency can include binge drinking. He agreed that there is no up to date evidence about his attendance at meetings with Alcoholics Anonymous, and said that he has not been able to attend meetings as he has been “too busy”.
Under cross examination, the father said that he could not recall presenting to hospital in 2012 and stating that he has drunk 1 cup full of a poisonous substance, wants to die and can’t cope.[40] The hospital notes record that the father has past history Anxiety/panic attacks. Progress/clinical notes from the father’s admission to hospital under the Mental Health Act2007 record that the father “is minimising the seriousness of his suicide attempt stating that he made a silly mistake”. The Schedule 1 record notes “chemical burns to mouth and throat” and “high risk of self-harm”. In his evidence to the court, the father said that 2011 had been a very tough time for him, that he and the mother had been having issues, and that he was very new in Australia back then. The father minimised this episode and I consider that he was evasive when he asserted that he could not recall it.
[40] Exhibit D page 4 et seq
In 2012 the father was diagnosed with a mental condition, current episode severe depression without psychotic symptoms.[41] It was recorded that there were “significantly conflicting stories” between the father and the mother. The mother reported finding the father with a rope around his neck.[42] The father
“Denies any suicidal ideation but is clearly minimising his symptoms of depression and was not forthcoming with his previous DSP[43] in [2012]”.
[41] Exhibit D page 16
[42] Exhibit D page 18
[43] DSP is understood to refer to deliberate self-poisoning
Following this episode and his early voluntary discharge from the psychiatric unit, the father did not follow up with the treatment recommended for him.
Under cross examination the father denied ever having expressed suicidal thoughts. He denied that he was having suicidal thoughts in 2018 when he presented to the Emergency Department of Town E Hospital, although the records from the hospital contradict that evidence[44]. He denied that he had reported in 2018 that he’d attempted suicide in 2011, but again the independent evidence contradicts the father’s evidence[45]. A number of exhibits record the father reporting to medical practitioners that he has experienced suicidal ideation, and that he has self-harmed[46].
[44] Exhibit H page 168
[45] Exhibit H page 169
[46] Exhibits D, H and I
Notes produced by NSW Corrective Services record that in 2020 the father reported to a community corrections officer that his mental health had declined recently and that he was using $50 of cannabis per day to cope.
In 2021 the father presented to hospital reporting suicidal ideation[47] and he was admitted to Q Hospital Mental Health Ward as a voluntary patient, where he remained for a few weeks in 2021. Upon admission the father’s medications were noted as R and S. The assessment notes low mood, anxiety, and drinking alcohol heavily for 10 years, and smoking cannabis regularly for 3 years. The father reported attending AA meeting and that he had stopped drinking and using cannabis 2 ½ months ago. The provisional diagnosis was adjustment disorder and history of alcohol/cannabis misuse. On discharge he was prescribed a number of medications, including R.[48] Follow up was arranged including Day program – DBT, to continue attending AA meetings, and a psychologist[49]. The father did not complete a DBT program.
[47] Exhibit D page 1
[48] Exhibit G p. 144
[49] Exhibit G 143 et seq
The father deposed that he has not consumed alcohol since late 2020[50] and as at early 2022 and that he had been attending Alcoholics Anonymous meetings since late 2020. He did not provide evidence of his attendance at Alcoholics Anonymous after early 2022.
[50] Paragraph 46 of father’s affidavit dated 15 March 2022
The father gave evidence that he was prescribed T in 2021 for his depression and anxiety, and that he attended upon Mr U Psychologist at Town V. He says that by mid –2022 he believed that his mental health had improved[51], and he stopped taking his medication. He does not say whether or not his decision to stop taking his medication was made under the supervision of his doctor.
[51] Paragraph 13 of father’s affidavit filed 1 June 2022
In mid- 2022 the father attended the Emergency Department of Town E Hospital[52] due to an anxiety/panic attack, but left the hospital after two hours, without speaking to a doctor or nurse. The father says that he had been experiencing nightmares and suffering from difficulty sleeping and shortness of breath.
[52] Ibid paragraph 14-16
In early 2022 the father suffered an anxiety/panic attack and attended on the Emergency Department of Town E Hospital[53], but after waiting several hours at the hospital he left without treatment. He said that he is still experiencing shortness of breath and difficulty sleeping with associated nightmares.
[53] Ibid paragraph 20-22
In 2022 the father attended the Emergency Department of Town E Hospital[54] after experiencing an anxiety/panic attack and after consultation with a doctor he recommenced anti-depressant medication.
[54] Ibid paragraph 23-24
The only expert evidence the father presented about his psychological condition is a report from Mr W, Forensic/Clinical psychologist at City Z Psychology dated 29 January 2021 and addressed to the Local Court.[55] Mr W’s report was prepared for use in the sentencing proceedings for the criminal charges against the father at the time of separation. Mr W noted that the father felt he wasn’t accepted by the mother’s family and that “this created resentful tension between him and Ms Mahani’s family.” The father reportedly agreed that “his negative or even paranoid interpretation of the family interaction with him has probably been affected by his history of abusing alcohol and cannabis.” He started using cannabis around 2017, and soon progressed to 10 to 12 bongs a day, typically using cannabis from after work each day and he would have two beers as well. On a day off the father would drink 20 cans of mixed alcoholic drinks. Mr W noted that the Depression Anxiety and Stress scale (DASS-21) results indicated clinical concern for depression and anxiety and that the father’s mood presentation revealed extremely high indicators of depression and slightly lower levels for anxiety and stress.
[55] Annexure B to the father’s affidavit of 15 March 2022.
Mr W noted that the father’s results on the Brief Symptom Inventory (BSI53) were clinically concerning and that his clinical profile
“…could be considered a typical patient with alcohol and drug problems where those problems have caused multiple presentations of severe psychopathology… [Mr Hanjan] endorsed [several mental health conditions], depression [and] anxiety. Research suggests the longer addicted patients stay sober then the more the presenting psychopathology are likely to reduce in the normal and non-clinically range.”
Mr W notes that “the sober individual is more amenable to mental health treatment after a long period of abstinence starting from around six weeks sober and onwards”.
The father reported attending 19 Alcoholics Anonymous meetings since being arrested in 2020, and that in early 2021 he was 49 days sober. The treatment plan was 10 consultations with a psychologist to provide evidence base cognitive behavioural therapy for the treatment of alcohol and cannabis dependence. Mr W was of the opinion that the father had good prospects of rehabilitation and a consequent low probability of reoffending, if he maintains and adheres to his rehabilitation plan including the suggested psychological treatment plan. It appears, unfortunately, that the father did not adhere to the rehabilitation plan.
The father’s evidence about when he stopped drinking alcohol is entirely unsatisfactory. In his affidavit[56] he deposed that he hadn’t consumed any alcohol since late 2020. He told the family consultant in August 2022 that he has not consumed alcohol since mid 2021.[57] In his oral evidence the father said that his last drink was early 2021, and that he has only consumed alcohol twice since late 2020, and that around mid 2021 he had one episode of binge drinking. There are obvious inconsistencies in what the father has said about his drinking. When Counsel for the Independent Children’s Lawyer put to the father that he had relapsed, he said “relapse is not the right word”.
[56] Father’s affidavit filed 15 March 2022 at paragraph 45
[57] Family Report paragraph 38
The father last obtained a HFT in September 2021. It was negative for drugs and alcohol. He did not provide the sample for HFT within the seven days required by the order made on 30 June 2021. His sample was provided on 20 September 2021. The father conceded that he had read the family report and he was aware that an updated HFT would be required to assist the court to determine whether he is still misusing drugs or alcohol[58]. The father gave a variety of excuses for not providing an updated HFT, but ultimately he conceded he could have saved up and obtained a test.
[58] Exhibit A paragraph 59
I am satisfied that the father has a significant history of poor mental health and substance misuse. Apart from his inconsistent evidence about when he last used alcohol, he has provided no recent HFT to verify that he is not currently misusing any substance. There is no evidence that the father has engaged in any drug and alcohol counselling program which would address the risk of him relapsing into substance misuse. He has provided no up to date assessment of the current state of his mental health.
I accept the submission of Counsel for the mother and Counsel for the Independent Children’s Lawyer that the risks of harm to the children which the father poses are multifactorial.
Orders for supervision of a child’s time with a parent are, more often than not, time limited. Supervision is not intended to continue into the long term. There is little prospect of a child developing a meaningful relationship with a parent when that child is only spending time with that parent under professional supervision. In order for a child to benefit from spending supervised time with a parent, there must be a purpose to that time occurring. One purpose might be to preserve a child’s relationship with a parent while the parent addresses their issues which have given rise to the requirement for supervision. Another purpose might be to re – introduce a child to a parent, once the parent has demonstrated that he or she has the capacity to provide consistent and safe care for the child, so that the child is no longer at risk of harm in the parent’s care.
Having regard to all of the evidence, I accept the assessment of the court child expert in this case that the father has not demonstrated any real commitment to change in terms of his offending behaviours.[59] Nor has the father demonstrated that this mental health is currently stable and that his is abstinent from alcohol and other drugs.
[59] Exhibit A paragraph 93
These young children currently have no meaningful relationship with the father. They are settled with the mother and have adjusted to their current circumstances. Before the court could be satisfied that it is in the best interests of the children that they are re-introduced to the father by way of supervised time, the father would need to demonstrate that he has adequately addressed the issues which have given rise to the risks.
Relevant additional considerations
X expressed a fondness for the father, and a desire to spend time with him. Y could not remember much about the father, although she said she saw pictures of him sometimes,[60] and in response to the court child expert asking Y if she would like to see the father again Y said “yes I’d like to see him again”.
[60] The mother said in her oral evidence that the children still have photographs of the father on their iPads.
The children’s views must be considered, however the children are too young to appreciate the risks of harm that the father poses.
The children have not spent time, or had any communication, with the father for more than two years. The father has no current experience of the children’s routines and needs and if it was safe for the children to re – establish a relationship with him, then that would need to be done by way of a reintroduction.[61] I accept the mother’s evidence that the children have adjusted to not seeing the father and have come to terms with their situation and are settled.
[61] Ibid paragraph 78
I accept the assessment of the court child expert that the father appears to have extremely poor insight into the needs of the children.[62] He has no current experience of the children’s routines or preferences, their health and educational needs, and their developmental needs. He demonstrates no awareness of the children as individuals. The expert notes that it would “take significant time, effort and commitment on his part to be able to support these children if an order was made for the children to spend time with him.”[63]
[62] Exhibit A paragraph 91
[63] Ibid paragraph 86
The father has not demonstrated a capacity to provide for the needs of the children.[64] He has minimised the impact of his behaviours on the children, and seeks to excuse his behaviour as related to his substance abuse. The court child expert comments:
“…throughout the assessment the father did not present as having the capacity to reflect on the children’s experience and/or to assume responsibility for the violence and a commitment to repairing the damage and addressing his behaviour through a behaviour change program.”[65]
[64] Ibid paragraph 91
[65] Id
Having had the opportunity to see and hear the father give his evidence I accept that the father loves the children and that he misses them and wants to be involved in their lives, however he has displays a self – focus, and a lack of insight into and awareness of the needs of the children. If children were to spend time with the father, I am not satisfied that the father is capable, currently, of meeting the children’s basic needs, including their emotional need for comfort and nurturing, and even for food and shelter.
The court child expert assessed that the mother’s ability to understand and effectively meet the needs of the children is adequate[66]. I agree. The father raised no risk of harm concerns for the children in the household of the mother and described her as a “good mother”.[67]
[66] Ibid paragraph 96
[67] Ibid paragraph 33
The court shares the mother’s concern, and the expert’s concern, about the potential for negative impacts on the children if they are reintroduced to the father before he has adequately addressed his mental health, substance misuse and offending issues, and before he is can demonstrate that he has the capacity to provide safe and consistent parenting for the children. The father has acknowledged “… the difficulty the children may experience with me re-entering their lives…”[68]
[68] Father’s affidavit 15 March 2022 at paragraph 84
The father proposes to spend time with the children, supervised by an agency called K Contact Centre. He agreed under cross examination that the costs of supervision may be up to $700 for two hours. He said that he has not thoroughly looked into the costs of supervision, and conceded that he has not yet been able to comply with a previous order of this court that he pay the mother’s costs, by way of instalments. He said he has a car and the gold he is wearing, which he can sell to pay the costs order.
The father provides no evidence that K Contact Centre will accept him as a suitable candidate for supervision of time with his children. He said that “yesterday”[69] he made three enquiries with three separate supervision providers, but had heard nothing back. He has never thought about the impact on the children if supervised time was commenced, and he could not afford to continue to pay the fees. He volunteered, under cross examination, that before he would start supervision he would make sure he was financially stable, and that he had spoken to family back home and that they would help financially. I note that his family have not assisted him to pay the costs order in favour of the mother. The father said that his “finances have been all over the shop.” Currently he is assessed to pay $52.00 per fortnight for both children, by way of child support.
[69] 9 January 2023, the day before the hearing commenced
The father has not provided evidence which is capable of satisfying the court that his nominated supervisor is willing and able to supervise his time with the children, or that the father will be able to meet the fees for supervision. There is likely to be significant practical difficulty and expense if an order was made for the children to spend supervised time with the father.
The mother reports that she experiences symptoms of anxiety at the prospect of the children spending time with the father[70]. She attends upon a psychologist to assist her with her trauma. She has expressed her constant fear that the father will take the children, and said that if he gets up to date photos of the children then he may approach and try to remove them. The court accepts that the mother lives in fear of the father, and that her concerns about him are genuine.
[70] Mother’s affidavit paragraphs 142-161
The court child expert notes that the mother “remains extremely vulnerable, experiencing ongoing trauma symptoms relating directly to the violence and control she experienced directly from the father”[71]. I accept that currently it is unlikely the mother would be able to facilitate time for the children with the father, and that if time with the father was ordered the impact on the mother will be significant, and includes the mother being anxious and experiencing a decline in her emotional wellbeing, which will likely affect the children, and impact on their behaviour, and that this has “the potential to destabilise the mother’s home environment and the children’s relationship with her.”[72]
[71] Ibid paragraph 49
[72] Exhibit A paragraph 83
The court is satisfied that the mother has the capacity to provide for the needs of the children, provided that she is not re – traumatised by being required to facilitate time for the children with the father before he has demonstrated that he has adequately addressed the identified risk issues.
The father has a history of not complying with court orders, including the costs order, and with the law. He has very recently been convicted of contravening an ADVO in place for the protection of Ms L. He has been convicted of stalking and intimidating the mother and using a carriage service to menace, harass and offend her.
The court child expert noted that, during her interview with the mother, that the mother was extremely distressed recalling her experiences of violence in her relationship with the father. I accept the evidence of the expert that if the mother had to accept phone calls and emails from the father, then it is likely her trauma will be retriggered and will adversely impact her parenting capacity. I accept that the mother is currently unable to interact with the father in any way without triggering her trauma. I am satisfied that it is not in the best interests of the children to require the mother to divulge her contact details to the father.
In light of all the evidence I am satisfied that the injunctions proposed by the mother and the Independent Children’s Lawyer are appropriate for the welfare of the children. The injunctions will send a clear message to the father and dissuade him from making any attempt to subvert the parenting orders which the court will make, and will provide some measure of comfort to the mother, and assist the children by enhancing her parenting capacity.
The father was born and raised in City AA, India. I accept that Indian culture and EE religion are an important part of the children’s lives. X has been to India twice and was baptised in the EE religion in India in 2016. The father says that about two or three times a week he would telephone or FaceTime his mother in India, and that the children would have an opportunity to talk with his mother. The father spent time with the children watching Indian movies and teaching them about their Indian culture and celebrating important EE religious occasions.
The mother deposes that the children have Indian and Country BB heritage[73]. In her oral evidence she said that she was primarily responsible for ensuring that the children were participating in EE religious occasions, and their Indian culture. She remains open to celebrating important EE cultural traditions with the children. The mother celebrates Country BB culture and CC religious traditions with the children.[74] I am satisfied that the mother will assist the children to maintain their cultural traditions.
[73] Mother’s affidavit paragraph 191
[74] Ibid paragraph 193
As noted already, at the date of hearing there was a Final ADVO made in 2021 for two years until 2023, placing restrictions on the father’s behaviour toward the mother, the maternal grandmother and the two children. In addition to the mandatory conditions, the other conditions were that the father must not approach the maternal grandmother, the mother or the children or contact them in any way unless as agreed in writing between the parents, and he must not go into any place where the maternal grandmother, mother or children live or any place they work or any place including the D Store in Town DD.
Currently there is a Final ADVO order in place against the father for the protection of Ms L, which the father was proved to have contravened in 2022.
There was a Provisional ADVO in place against the father for the protection of the mother in 2010[75]. One of the conditions of that order was that the father not approach the mother, or her premises, within 12 hours of him consuming intoxicating liquor or illicit drugs.
[75] Exhibit G p21 et seq
In mid 2017, upon the application of police, a Provisional ADVO was made against the father for the protection of the mother, and one of the conditions was that the father not approach the mother or her premises within 12 hours of drinking alcohol or taking illicit drugs.[76]
[76] Exhibit G p 37 et seq
In mid 2017, upon the application of police, a Final ADVO was made against the father for the protection of the mother for a period of 12 months. One of the conditions was that the father not approach the mother or her premises within 12 hours of drinking alcohol or taking illicit drugs.[77]
[77] Exhibit G p 37 et seq
In late 2020, upon the application of police, a Provisional ADVO was made against the father for the protection of the mother, the maternal grandmother Ms FF, and the two children. The conditions included that the father not contact or approach the protected persons, unless as agreed in writing about contact with the children, and not enter any place where the protected persons live and work or the parties’ business premises in Town DD[78]. The Final ADVO for the protection of the mother, the maternal grandmother and the children was made in 2021, upon the father’s convictions for the offences of stalk/intimidate intend fear physical etc harm, use carriage service to menace, harass and offend and possess prohibited drug.
[78] Exhibit G p 53 et seq
There have also been numerous ADVOs put in place against the father, for the protection of Ms L, and a contravention by the father, as previously noted. The conditions of many of those orders indicate that alcohol and substance misuse have been factors in the father’s offending.
The court is satisfied that the father has perpetrated family violence against his intimate female partners.
International travel and passports
The parents agree that the children will each have a passport.
The mother seeks an order that the children be permitted to travel internationally with her without the consent of the father. The father opposes that order.
The mother sets out in her affidavit[79] that it is her intention to travel overseas with the children, especially to visit family, when she is in a financial position to travel. I take into account that the mother is the primary carer for the children and that she is an Australian citizen domiciled in Australia. The children have paternal family in India. There is no evidence that the mother is a flight risk, or that she has ever threatened to remove the children permanently from Australia. Noting the above, and the children’s multicultural heritage, I consider that it is in their best interest that they be permitted to travel internationally with the mother, and I will make that order. I consider that it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
[79] Paragraph 190
SECTION 61DA
There are reasonable grounds to believe that the father has engaged in family violence, and I find that the presumption does not apply.
In any event the parties agree that the court will made an order that the mother have sole parental responsibility for the children. That order is consistent with the recommendation of the court child expert[80] who has based her opinion on the substantiated family violence and the mother’s trauma reactions, as well as the lack of capacity of the parents to communicate in a respectful and child focussed way.
[80] Exhibit A paragraphs 99, 100
CONCLUSION
When determining what orders are in the best interests of the children the court must prioritise the children’s safety. The children have not spent time with the father since late 2020. It is important that if the children are to be re – introduced to the father, at some point in the future, that he has demonstrated that he can provide safe and consistent care for them.
The father has been charged and convicted of family violence offences, as recently as late 2022. At the date of hearing he was awaiting the outcome of his appeal against a sentence of imprisonment of four months, and he conceded that if that appeal fails then he will be incarcerated. He has not successfully completed a men’s behaviour change program and, more concerning, he does not accept full responsibility for his conduct and has not demonstrated insight into the impact of his behaviour on others.
The father has a documented history of significant mental health issues, dating back to at least 2010 and continuing throughout 2022. He has provided no independent assessment of the current state of his mental health. He has a significant history of alcohol and cannabis misuse, and has provided no independent evidence to verify that he is abstaining from illicit drugs or alcohol misuse. There is no evidence that the father has addressed the risk of him relapsing into substance misuse, even if he is currently abstinent. In short, the father has not satisfied the court that he is capable of providing safe and consistent care for two young and vulnerable children. The court has found that the children are at risk of harm in the care of the father.
The mother remains very fearful of the father and has genuine concerns for the safety of the children if they spend time with the father. The court child expert shares the mother’s concerns and expresses her concern for the negative impact on the mother and her capacity to parent, if the court orders time for the children with the father, given the mother’s presentation and reported trauma symptoms.
If in the future the father can demonstrate that he has adequately addressed the issues which give rise to the current risks, including by successfully completing an accredited men’s behaviour change program, by obtaining an independent and current psychiatric assessment, by demonstrating that his mental health is stable and well managed, and that he is complying with prescribed treatment, by proving that he is abstaining from illicit substances and alcohol, by engaging in a drug and alcohol relapse prevention program and maintaining abstinence for a sufficient period of time, and by demonstrating that he has been able to live in the community without committing further criminal offences, then the father may be able to satisfy the court that the children will not be at risk of harm in his care, and that it is safe to re-introduce the children to the father.
In the meantime, and for the reasons provided, having regard to the current state of the evidence to which I have referred, I consider that the orders at the forefront of these reasons are the orders which are in the best interests of the children.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 15 June 2023
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