Henderson & Mumford
[2022] FedCFamC2F 1344
Federal Circuit and Family Court of Australia
(DIVISION 2)
Henderson & Mumford [2022] FedCFamC2F 1344
File number(s): NCC 3747 of 2018 Judgment of: JUDGE BETTS Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – Parenting – final orders – two children, aged 9 and 8 years – where the Mother relocated from rural Victoria to the NSW Region B in 2018 – where the Father has remained living in Victoria – where the Mother alleges the Father perpetrated physical, verbal, emotional and sexual family violence – where the Father has a history of abusing alcohol and prescription medication – where the Father has previously tested positive for using methamphetamine – where the Mother seeks a “no time and no communication order” – where the Father adopted the ICL’s proposal for limited school holiday time, with safeguards – where the Court must weigh up the risks posed by the Father and his history of perpetrating family violence – where the court must consider if the Mother’s capacity to parent the children would be adversely impacted by making the Father’s proposed orders – best interests of the children. Legislation: Family Law Act 1975 (Cth), Pt VII
Summary Offences Act 1966 (Victoria), s 7
Cases cited: A v A (1998) FLC 92-800
Amador & Amador (2009) 43 Fam LR 268
Blinko & Blinko [2015] FamCAFC 146
Helbig & Rowe [2016] FamCAFC 117
Jones v Dunkel (1959) 101 CLR 298
Keane & Keane [2021] FamCAFC 1
M & M (1988) FLC 91-979
Russell & Close (Unreported Full Court, 25 June 1993)
Sedgley & Sedgley (1995) FLC 92-623
Division: Division 2 Family Law Number of paragraphs: 199 Date of last submission/s: 7 June 2022 Date of hearing: 29, 30 November 2021, 24, 25 March 2022 and 7 June 2022 Place: Newcastle Counsel for the Applicant: Mr Graham Solicitor for the Applicant: Tony Cox Lawyers Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Strive Family Law & Mediations Solicitor Advocate for the Independent Children’s Lawyer: Ms Blackman Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Town Y ORDERS
NCC 3747 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HENDERSON
Applicant
AND: MR MUMFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BETTS
DATE OF ORDER:
11 October 2022
THE COURT ORDERS THAT:
1.The children X born in 2012 and Y born in 2014 (“the children”) live with the Mother.
2.The Mother have sole parental responsibility for the children.
3.The children spend no time with, and have no communication with the Father.
4.Pursuant to section 68B of the Family Law Act1975 (Cth), the Father is restrained by injunction from removing the children from any day care centre, school, extra-curricular activity or from the care of any person in whose care the Mother has placed the children.
5.Pursuant to section 11(1)(b) of the Australian Passports Act2005, the Mother is authorised to apply for and retain a passport for the children without the Father’s written consent or approval and without him having to sign any documents.
6.Pursuant to section 65Y of the Family Law Act 1975, the Mother is at liberty to travel outside of the Commonwealth of Australia with the children whether or not the Father has consented to any such travel.
7.Each party bear their own costs of and incidental to the proceedings.
8.The matter is removed from the Active Pending Cases List.
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 Henderson & Mumford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
introduction
These proceedings concern the future parenting of two (2) siblings:
·X, a girl born in 2012. She is presently nine (9) years and eleven (11) months old;
·Y, a boy born in 2014. He is presently eight (8) years and one (1) month old.
Their parents, Ms Henderson (“the Mother”) and Mr Mumford (“the Father”), were in a de facto relationship between October 2011 and 17 July 2018. Following separation, the Mother left their home in rural Victoria and relocated with the children to the NSW Region B, about twelve (12) hours’ drive away. The Father has remained living in Victoria.
If it were entirely up to her, the Mother would have completely severed the relationship between the Father and the children. Her case is that she had to flee Victoria as a result of the Father’s ongoing perpetration of family violence against her, to which the children were exposed and sometimes victims. She also says that the Father is a long-term abuser of alcohol, that he abuses prescription medication (specifically amphetamine medication used to treat his ADHD), that he uses illicit drugs including methamphetamine (“ice”) and that he generally lacks the necessary capacity to safely parent the children.
The Mother is particularly concerned about the risks posed by the Father to Y, who was born with a significant heart defect and whose health requires vigilant monitoring. Y also has some behavioural challenges (particularly angry outbursts) and he may have ADHD and/or Oppositional Defiance Disorder. He also seems to be somewhat developmentally delayed. The NDIS provide Y with occupational therapy, speech therapy and counselling support.
The Father denies the Mother’s allegations against him and says he is no risk to the children. Throughout the proceedings he has consistently sought to be able to maintain a relationship with them. Pursuant to orders of the Court, he was able to spend some supervised time with them in 2019, together with a block of unsupervised time in January 2020 and another block in April 2020 (daytime only). The last such visit occurred on 24 April 2020, following which the arrangements broke down as discussed later. In May 2020, his telephone/Facetime communication with the children also broke down and he has had no contact with the children since.
The parents’ competing versions of events, and their future proposals for the children, are poles apart. In the circumstances, the evidence at the final hearing was vigorously tested. At the conclusion, and having considered all of the evidence, the Independent Children’s Lawyer (“ICL”) proposed that it would be in the best interests of the children to have some limited school holiday time with the Father, subject to various machinery orders and safeguards (for instance, that the time occur in the children’s local area). The Father adopted the ICL’s proposal. The Mother maintained that a “no time and no communication” order was necessary.
The fundamental issue before the Court is whether or not the relationship between the Father and the children:
·should be given the opportunity to continue, albeit in a modest and circumscribed way and with safeguards; or
·should be severed.
The stakes are high for the children and the parents; it is no easy decision.
THE FATHER’S CIRCUMSTANCES
The Father is 36 years old. He is single and lives with the Paternal Grandmother in Town C, Victoria, about 1 ½ hours’ drive from greater Melbourne. Diagnosed with ADHD from a very young age, he had difficulty concentrating at school and struggled to learn. As a result, he has significant literacy issues; in the witness box he explained that he can only read fairly “basic” books (for example books written for children) and the Paternal Grandmother assists him with reading and writing emails. The Father has experienced mental health difficulties throughout his life, particularly anxiety and depression. Ever since he was a teenager, he has smoked cigarettes and sought refuge in alcohol.
Although the Father qualifies for a Disability Support Pension, he has taken up paid employment at different times in his life, most recently as a labourer which he enjoys.
The Father has an older son, D, who was born in 2008 and is presently fourteen (14) years, eight (8) months old. D’s mother is a former partner of the Father’s, Ms E. Historically, D has had a lengthy child protection history with the Victorian Department of Human Services (“DHS”) who held concerns about both the Father and Ms E. In more recent times those concerns have abated; D’s parents have developed a cooperative co-parenting relationship and D spends more or less equal time with each of them without the need for Court orders.
THE MOTHER’S CIRCUMSTANCES
The Mother is 38 years old and has a longstanding history of anxiety. She lives with the Maternal Grandparents at an undisclosed address on the NSW Region B. Since August 2019 she has been in a relationship with Mr F, who does not live with her but does stay with her most nights. She has no other children.
The HEARING BEFORE ME
The final hearing was originally listed for 29 and 30 November 2021. However, it proceeded slowly. In the course of the hearing it became apparent that the Father’s literacy was a bigger issue than even his own legal representatives had appreciated. The Father ended up filing a further Proof of Evidence responding to various allegations against him as well as filing an affidavit by his solicitor confirming that the Father’s trial affidavit and Proof of Evidence had both been read over to him and advising as to some minor corrections.
The hearing was otherwise adjourned over to 24 and 25 March 2022, when the evidence concluded. The parties made closing submissions on 7 June 2022, following which judgment was reserved.
Throughout the hearing, Mr Graham of Counsel appeared for the Mother, Ms Kaiti of Counsel appeared for the Father (on a s 102NA basis as I understand it) and Ms Blackman (Solicitor Advocate) appeared for the ICL.
At the hearing the parties relied upon the following documents:
Mother:
(a)Case Outline Document;
(b)Initiating Application filed 29 November 2018;
(c)Mother’s trial affidavit filed 1 November 2021;
(d)Affidavit of Ms G (the Father’s subsequent partner from before he was estranged) filed 1 November 2021.
Father:
(a)Case Outline Document;
(b)Father’s trial affidavit filed 2 November 2021;
(c)Affidavit of Ms H (Paternal Grandmother) filed 25 May 2020;
(d)Affidavit of Ms J (Father’s solicitor) filed 30 November 2021;
(e)Father’s Proof of Evidence – which was marked as exhibit 5.
ICL:
(a)Case Outline Document;
(b)Family Report of Senior Family Consultant Ms K dated 3 June 2020 - which was marked as exhibit 2.
The parties tendered numerous documentary exhibits which will be referred to as relevant.
Having had the advantage of seeing and hearing all of the witnesses give evidence, I wish to make some preliminary observations.
The Mother was the first witness and it was apparent throughout her evidence that she has a very low opinion of the Father. Having earlier told the Family Report Writer that “there is nothing positive that man can bring to the children” [1] she went on to say in the witness box that the children had “lucked out in the Father department”. She considers that they need to be protected from him; that there is no benefit to maintaining their relationship.
In assessing her evidence, I am mindful that the Mother’s obvious ill-feeling towards the Father may have potentially coloured her evidence to some degree. She certainly sees the worst in him.
The Mother’s witness, Ms G, had been in a casual intimate relationship with the Father in more recent times. Her affidavit painted him as a violent man who abused alcohol and illicit drugs. But she had “an axe to grind” against the Father in that she had clearly had much stronger feelings for him than he had for her; their intimate relationship broke down when the Paternal Grandmother told her as much. Scorned in this way, she lashed out at the Father. Through Facebook, she actively reached out to the Mother – a woman she did not know – and offered to be a witness in support of the Mother’s case. She did so intending to cause as much distress and hurt to the Father as she could.
Ms G’s evidence was not entirely reliable in some instances. For example, her affidavit deposed to an interim intervention order (“IVO”) taken out by Police to protect her from the Father. She even annexed a copy. But what she did not reveal in her affidavit was that she had since withdrawn her complaint to Police and the IVO had been dismissed. Confronted with this, she said she only withdrew her IVO application because the Father had sent her a threatening text message – which she could not produce. I do not accept that evidence.
Challenged as to why she didn’t once call DHS during their relationship to tell them her concerns about the Father, her quick response was that she “didn’t have their number”. In my observation, her answer was simply the first thing she thought of. She also said the Father had “intimidated her” into moving in with him and “blackmailed” her a few times so that she would not leave him – both of which I reject as being against the weight of the evidence.
But while Ms G’s evidence was not entirely reliable, I do accept some of her evidence, particularly where it has the support of other evidence or is otherwise consistent with the weight of the evidence as a whole.
With all due respect to him, the Father came across as entirely unsophisticated in the witness box. His lack of formal education was apparent. He did not try to “second guess” or anticipate lines of questioning; he spoke plainly and responsively. His mannerisms were somewhat unusual in that he regularly blinked, twitched and fidgeted and he notably avoided making eye contact, but this is something that had also been observed by his medical practitioners over the years and does not adversely reflect on his credit.
The fundamental problems with the Father’s evidence were his consistent minimizing of his past alcohol abuse, and of his past family violence. He was also unable to explain his positive hair strand drug test. In short, the Father’s evidence was self-serving and on occasions simply “too good to be true”.
The Paternal Grandmother was a strident witness with quite a lot to say. It was obvious that she felt hurt and betrayed that the Mother had raised her mental health as an issue in the proceedings. Although she was clear that her feelings towards the Mother have forever changed, she said she will always “respect” the Mother as a parent. She wants no part in the parental conflict and in my view the Paternal Grandmother was very much there to defend her own reputation, and to defend her son. In the latter sense, some of her evidence was also “too good to be true”. For example, she did not accept that the Father had had a longstanding alcohol problem since the age of 18. She minimized the seriousness of the past DHS history concerning D. Overall, she just wants the children to be able to have a relationship with the Father (and with her if possible).
Ms K was also cross-examined on her detailed Family Report. She expressed a number of concerns about the Father’s capacity to safely parent the children and supported a “no time and no communication” order. I was assisted by both her Family Report and her oral evidence.
DETAILED CHRONOLOGY OF EVENTS
Pre-relationship: the Father
Prior to his relationship with the Mother, the Father had clearly experienced significant problems in his educational development and in his interpersonal relationships.
In his early twenties, he had formed an intimate relationship with Ms E. She was an illicit drug user and their relationship was volatile. After the birth of D in 2008, the family soon came to the attention of DHS due to significant ongoing concerns about the child’s safety.
The Father perpetrated family violence on 11 April 2008. While holding three (3) month old D, the Father bit Ms E as well as punching her pregnant sister. Police ended up being called to the home. DHS became involved but later closed their file when Ms E decided to move away to City L and deny the Father any time with D.
The Father perpetrated further family violence on the evening of 3 August 2008. While heavily intoxicated, he decided to visit Ms E and then seven (7) month old D at their home. He wanted to sleep on the floor with D and when she would not agree they argued and he punched Ms E in the chest. She threw him out. After initially picking up a rock and threatening to throw it through the window, the Father decided to kick the window instead. It broke, deeply lacerating his leg and cutting his Achilles tendon. Afterwards he had to crawl down the street and knock on a lady’s door to get help. His Father soon arrived and took him to hospital, where he required surgery.
Following this event, Victorian Police took out an Intervention Order (“IVO”) to protect Ms E from the Father.[2] Notwithstanding, their relationship was to remain volatile for years thereafter.
The Father later formed an intimate relationship with one Ms M. In October 2009 they had a loud argument in the course of which the Father ended up pushing her out the front door of his house, shutting the door on her arm as he did so. This was another act of family violence. Both of them were clearly very agitated at the time. Police were called. In the witness box, the Father admitted that Ms M may have grazed her arm when he shut the door on her. Police took out an IVO to protect Ms M from him. They also considered charging him with “recklessly causing injury” to her. Ultimately however, Ms M was unwilling to give evidence with the result that the IVO was dismissed and no charges were in fact laid against him. [3]
In the meantime, the Father was still having some contact with D and DHS were maintaining their involvement. They received numerous concerns about both the Father and Ms E’s parenting including lifestyle, safety, and neglect issues.
In April 2011, the Father’s GP placed him on a mental health plan, recording that the Father “becomes too angry too quickly. He was ordered by Court order to attend Anger Management classes following a complaint by his ex-partner”. In the witness box, the Father explained that the ex-partner was Ms E and that she too had been ordered to undertake anger management. He could not however recall whether this was a formal order of the (then) Federal Circuit Court or a direction from the DHS. [4]
Notably, the Father’s attendance upon anger management counselling was half-hearted and unsuccessful, according to the Clinical Psychologist whom he consulted, Ms N. In her report to the Father’s GP of 30 August 2011, she diagnosed him as suffering depression with angry outbursts but noted that the Father denied his problems and that after a mere three (3) visits had stopped attending. She said she had since been unable to reach him on the telephone but had spoken to the Paternal Grandmother who told her that the Father needed to motivate and commit himself if he was to resume therapy. According to Ms N, the outcome of therapy was “therapy incomplete, poor insight and compliance.” [5]
When questioned about this report, the Father said he stopped going to Ms N because she gave him negligent medical advice about nose bleeds. That evidence made no sense and I reject it. I consider that the Father simply disengaged.
Pre-relationship: the Mother
The Mother’s life experience had been comparatively uneventful. She did suffer from some depression and anxiety, admitting that as a younger person she was something of a hypochondriac. But there is no suggestion that her mental health was unmanaged, or that she had ever come to the attention of Victoria Police or the DHS. She had no other children.
The early years of the parents’ relationship
In 2011 the parents moved into the Paternal Grandmother’s rental home.
In early 2012, the Mother fell pregnant with X which is when she says the Father began verbally abusing her. I accept her evidence that he was drinking heavily and that while alcohol initially made him happy, he could later became negative, angry and abusive towards her, particularly in relation to her mental health.
X was born in 2012 and the Mother took on the role of primary carer.
In 2013 the parents moved into their own rental property after a verbal dispute between the Mother and the Paternal Grandmother.
The Father continued drinking heavily and verbally abusing the Mother. I accept her evidence that, on a number of occasions during the relationship, he threatened to burn the house down if the Mother left him. I accept that over time she began feeling somewhat “trapped”.
By 2014, there had been some eighteen (18) reports to DHS concerning D. The reports centred around the chaotic family lifestyle, difficulty ensuring the safety of the child, difficulty providing stability, emotional trauma, failure to ensure safety and poor parenting skills or knowledge. It was noted that there was high conflict between the Father and Ms E and that there had been a number of recovery orders issued (the Mother having assisted the Father to keep D on one such occasion). [6] DHS had assessed the Father as being responsible for some harm to D, including as a result of perpetrating “high level family violence” against Ms E. [7]
Y
The Mother fell pregnant with Y in late 2013/early 2014. A routine pregnancy scan revealed significant congenital heart issues. In anticipation of his birth, the parents were required to move close to the O Hospital in Melbourne. They lived between P House and some rental accommodation. To better support the family the Father obtained work as a transport worker.
Y was born in 2014 with complex cardiac defects. He was required to spend the first six (6) months of his life at the O Hospital in Melbourne, undergoing numerous surgical procedures. The Father was unable to look after X given his work commitments and so the Paternal Grandmother played a large role in caring for her, including bringing her to visit the Mother in hospital. The Father also brought X to the hospital sometimes, as well as swapping places with the Mother on occasions so that he stayed with Y at the hospital and the Mother spent time with X at home.
The Paternal Grandfather also assisted on occasions although I accept the Mother’s evidence that he and the Father drank together and that on one occasion both ended up extremely intoxicated.
The Mother’s evidence is that the Father was still verbally abusive towards her, one example being when she bought McDonalds for X and he smacked the food onto the ground, while telling her “you’re not feeding our daughter that shit, you’re fucking fat you don’t need that shit”. I accept her evidence that this occurred and that the Father was continuing to drink heavily. He was also regularly gambling on the poker machines, a habit he continued throughout the relationship.
More insidiously, the Mother’s evidence is that the Father was behaving in a sexually abusive and unwelcome manner towards her. On her case, he had a long history of such behaviour during the relationship.
The Mother’s evidence is that the Father made relentless and unreasonable sexual demands of her. If he felt like having sex – which she said was every day – he had no compunction about telling her things like “I’m horny lets go fuck”, sometimes pulling out his erect penis and telling her things such as “he’s ready for you, hop on” or “give me a blow job, give me sex, let’s go to the bedroom”. Sometimes he shoved his penis into her face. She says he did so whether or not the children were present and that when he got older Y began to imitate him by hitting her with his own penis.
The Mother says that on occasions she became sick of the Father’s harassment and she would just give in and have sex with him. She says that the Father would continue intercourse even if the children came in. She says that her reluctance was such that on occasions the Father said to her that “I feel like I’m raping you”. She says that sometimes he coerced her into having sex with him under a blanket while the children were sitting next to her, which she found embarrassing if not humiliating particularly when he was pushing her into them.
The Mother’s evidence is that the Father would grab and squeeze her breasts to the point of pain. If she bent over, such as if she was tying the children’s shoelaces, the Father would run his fingers from the top of her vaginal area to the back of her bottom and try to push his fingers through her underpants. When she told him to stop, he would say that she couldn’t make him and that “you’re my missus so I can touch you wherever I like”. Similar behaviour occurred if she was at the sink doing the dishes. He did these things whether the children were present or not.
Over time, the Mother says she began to be apprehensive about being naked in her own home. For instance she would only shower very briefly lest the Father get in the shower with her and try to initiate sex. After showering, she would quickly dress herself.
For his part, the Father denies that he perpetrated any sexually abusive or unwelcome behaviour towards the Mother whatsoever.
I do not have evidence from any independent witnesses. Their social worker at the hospital, Ms Q, did not witness any such behaviour as her “To whom it may concern” letter of 11 December 2014 spoke positively about the parents and their relationship. But this does not take me very far.
The Mother did not make any contemporaneous complaints to Police or to anyone else about the Father’s violent behaviour, including his sexual abuse of her. But such a failure is not an uncommon phenomenon: Amador & Amador (2009) 43 Fam LR 268. Moreover, the Mother did make a complaint to Police after separation. She has also accessed extensive counselling support, primarily for issues relating to his sexual behaviour.
I accept the Mother’s evidence as to the Father’s sexual conduct, and that much of it was unwelcome and he knew it. This behaviour constituted “sexually abusive behaviour” and was therefore “family violence” as defined within s 4AB of the Family Law Act. That said, I do not accept her assertion that the Father sexually abused her every day of the relationship or that he wanted sex up to fifty (50) times per day. He did however engage in such behaviour on a great many occasions, which has contributed to her adverse opinion of him. The evidence does not permit me to, nor do I need to, make more specific findings as to, the exact dates and times of such sexually abusive behaviour.
2015 & 2016
In early 2015 the parents located to Suburb R in Victoria, about half an hour drive from the hospital. By early 2016 they had received medical approval to return to their home in Town C.
The Mother’s case is that the Father continued to drink heavily, to be verbally and sexually abusive towards her and to sometimes threaten her.
The Father denied these things, although on 4 May 2016 the Father saw his GP at which point he admitted to drinking to excess.[8] In the witness box the Father denied saying this to his GP but I accept that he did.
I also accept the Mother’s evidence that in mid-2016 the parents visited the Paternal Grandfather at Town S in NSW when there was another incident of family violence. The Mother put X to sleep on the lounge while the Father and Paternal Grandfather were out drinking. When they returned home, X woke up and started crying as a result of which the Father then yelled at her “If you don’t stop crying I am going to throw your blanket into the fire”. X continued to cry at which point the Paternal Grandfather threw her blanket into the fire.
Aghast, the Mother went into the bedroom where she began packing a suitcase to leave with the children. But when she told the Father, he grabbed the suitcase and threw it at her, hitting her in the back of the head and knocking her to the ground. The Mother ended up staying, too frightened to leave.
On 14 June 2017 the Father’s GP recorded the Father’s alcohol use in emphatic terms, using the notation: “etOH!!” [9] I am satisfied that the Father was abusing alcohol as the Mother alleges.
I also accept the Mother’s evidence that the Father would sometimes lock the children in their bedrooms as a form of behaviour management, particularly X. On one occasion he locked X in her bedroom when she needed to go to the toilet, resisting both her pleas and those of the Mother. Eventually when he opened the door, X was red-faced, crying, sweating and covered in urine.
The Father would also become angry if X or Y woke him up during the night. His response was to tell the Mother by telling her to “shut the fucking door” and “control your fucking kids, I need to get some sleep”. She would sit with them and beg them to be quiet.
The Father also disciplined the children by hitting them with implements such as plastic soup ladles; he also got the Mother to do so.
I also accept the Mother’s evidence that the Father used to repeatedly punch her in the legs and the arms. He did the same to the children as they got older. The punches were sufficiently forceful as to cause pain and sometimes bruising. When the Mother complained about being hit, he would tell her that he hit the children harder than he hit her and not to worry about it as it was “just a corkey”.
Leadup to separation
In 2017 the Mother saw a psychologist, Ms T, in relation to issues concerning Y. She did not tell Ms T about family violence. When asked why not, she said she had previously told her GP that “things were not okay at home” and that he had not taken the matter up with her. He was the GP for the whole family; disclosing to him was obviously awkward. I accept her statement that, from her perspective, she felt she “did not have a voice”.
Over the Easter long weekend in 2017, the family went camping in Town S NSW. The Father drank heavily and when they got back to the tent he began harassing the Mother for sex. I accept her evidence that she pushed him off her, as a result of which he smashed his palm into her face, attempting to drag her out of the tent by her hair and telling her “you’re a dog, get out!”
One evening in July 2018 when he was intoxicated, the Father dropped X while lifting her out of the bath. Luckily she was not seriously injured. [10]
Final separation
The parents finally separated on 16 July 2018 after another episode of family violence.
At that time, the parents were having a holiday with the Father’s brother Mr U and his family. The Father and the Paternal Grandmother got into an argument and the Paternal Grandmother left. After she had gone, the Mother and the Father then argued. The Mother says that in the course of their argument, the Father lost his temper and threw a melamine cup in her direction, while she had X in her arms. The cup missed her but hit the wall with so much force that it broke.
The Mother says that at that point Mr U intervened, telling her:
“This is bullshit, his behaviour is out of control, I am getting you and the kids out of here.”
He called the Police and took the Mother and children to a hotel in Town C for the night.
The Father disputes throwing the cup in the Mother’s direction. He said that where the cup hit the wall was “nowhere near the Mother”. He minimized his actions by stating that both parents were at fault because the Mother had been yelling, screaming and swearing at him beforehand. He had earlier minimized his actions on that occasion when speaking to Ms K, describing his actions as “technically family violence”. [11]
It is noteworthy that Mr U travelled to Court to support the Father during the hearing but did not go on affidavit. Given the effort he had made to travel, the Father’s failure to call him as a witness justifies a Jones v Dunkel inference. [12] I prefer the Mother’s evidence as to what happened.
While in the witness box the Father accepted that his actions constituted “family violence”, and that it was not a mere “technicality” as he had said to Ms K, he did not appear to be genuinely remorseful or insightful about what had happened.
After this event, Victoria Police took out an interim IVO to protect the Mother and the children from the Father.
DHS conducted an investigation. Against the backdrop of their extensive file for D, they were concerned about the risk of harm the Father posed to the children if he were to have contact with them or if he were to remove them from the Mother’s care. They were particularly concerned about the Father’s use of family violence and his alcohol abuse. Ultimately DHS concluded that the children had been exposed to significant cumulative harm and chronic family violence as a result of the Father’s actions. [13]
Mother relocates with the children; Father does not cope
After separation the Mother promptly relocated with the children to the Region B of NSW to live with her parents. At trial the Mother’s counsel suggested that she “fled interstate”; the Father’s Counsel suggested that she only moved interstate because that was where her parents happened to live. In my view, both are true.
Thereafter the Father had some form of mental breakdown. He continued to abuse alcohol, admitting as much when he consulted his GP on 21 July in the presence of the Paternal Grandmother. He told the GP that, up until the day of separation, he had been drinking “<bottle of spirits” per day. He accepted that he was not handling life very well, something he reiterated in the witness box.[14] When the Father underwent a formal psychiatric assessment a few days later, the psychiatrist noted him to be a “binge drinker”. [15]
On 26 July 2018 the Father’s GP wrote a “To whom it may concern” letter confirming that the Father was “suffering depression and extreme anxiety”, couldn’t presently work and that he needed legal support. The letter noted his previous heavy alcohol use (stated to be about 10 standard drinks per night), while asserting that the Father was now only drinking to that level on two (2) nights per week.[16]
The Father was also struggling to manage his prescription medication. On 18 August 2018, he saw his GP for an updated Ritalin prescription but he was unable to even say what his current dosage was. Although he was given a private script “to tide him over”, he returned just days later asking for an increased dose. [17]
IVO is made to protect the Mother from the Father
On 16 August 2018 the Father consented to a twelve (12) month final IVO protecting the Mother and children from him. Amongst other things, the IVO prohibited the Father from approaching them, attempting to locate them or communicating with them except as agreed or ordered under the Family Law Act. [18] The Mother did initially facilitate some sporadic telephone communication between the Father and the children. I accept her evidence that she only did so because the Police advised her that she might “look bad” in a family law context if she didn’t.
Leadup to these proceedings
In the meantime the Mother had started sexual abuse counselling in August 2018. She was to attend twenty-one (21) such sessions over the ensuing nine (9) months. [19] At one session on 18 September 2018 her counsellor noted that the Mother had spoken to her about “some events of abuse over the course of her marriage, but remains distressed that she is unable to detail specific events so that charges can be sought by Police”. [20]
That same month the Father took ten (10) prescription tablets in some sort of suicide attempt or perhaps more likely cry for help. He was at Ms E’s house at the time which makes the latter the more likely. She and her partner called an Ambulance for him. There was not much evidence about his event. Not long after, on 3 October 2018 the Father’s GP recorded that the Father “has been drinking badly lately; refuses D & A Counselling”.
By this time the Mother had instructed solicitors. She was finding it triggering to draw affidavits. She told her counsellor that it was distressing to be asked why she did not report the Father’s sexual violence earlier. [21] The Mother seems to have been feeling somewhat overwhelmed. [22] On legal advice, she stopped the Father’s telephone communication with the children.
The Father continued to have trouble managing his medication. On 7 November 2018 his GP recorded that “they are not to dispense Ritalin to him (directive from DHS poisons/S8)”, the concern being that “he is doctor shopping”. The notes also stated that any dexamphetamine had to be specifically prescribed by a Dr V of their practice.
Mother commences proceedings
On 29 November 2018 the Mother filed these proceedings in the (then) Federal Circuit Court of Australia. Not long after, she attended upon Police to complain about the Father’s previous sexual behaviour towards her and to explore the prospect of criminal charges being laid.
In December 2018 the Father was formally charged with three (3) offences in respect of the throwing of the cup at separation. Later that month, he suffered acute liver failure. He initially went to see his GP with symptoms of jaundice. He said that he had not consumed any alcohol for the past three (3) months – which I reject. [23] He was promptly admitted to hospital where he remained for the next week while undergoing various tests. Notably, he told them he had been previously using alcohol heavily but had been abstinent from alcohol for six (6) weeks. He admitted that he was using Campril medication (which supresses the urge to drink alcohol). He said he had been feeling unwell for about four weeks.
While in hospital, the Father was diagnosed with acute hepatitis; at one point his doctors even discussed with him the possible need for a liver transplant. Fortunately however, his liver function returned while in hospital and it was ultimately concluded that the Father’s prescription amphetamines were the culprit. His doctors recommended that he stop taking them for a time. [24]
On 21 March 2019 the Father underwent a CDT test which produced a normal result. He had reduced his alcohol intake, his GP noting several weeks later that he was suffering “alcohol withdrawal”. [25] Through his solicitors the Father sought some supervised time with the children pending an interim hearing, but the Mother demurred. She wanted to see the subpoenaed documents first.
In her ongoing meetings with her counsellor, the Mother disclosed that she was worried about the upcoming Court case, and that she was also dealing with traumatic memories of her relationship with the Father and associated grief. Her counsellor considered that she was experiencing symptomatology consistent with PTSD in that she felt avoidant, socially anxious and at times despondent and teary. [26]
On 30 May 2019, the Father pleaded guilty to one (1) offence of discharging a missile at separation. Pursuant to the relevant Victorian statute, the offence is committed by a person who “throws or discharges a stone, arrow or other missile to the injury of or danger to any person or damage to any property”. He was placed on a twelve (12) month good behaviour bond with no conviction recorded. [27] (The other two charges arising out of this event were dropped.)
Interim orders on 8 July 2019
The matter came on for interim hearing on 8 July 2019, as a result of which orders were made for the Father to spend some time with the children in the NSW Region B, supervised by the W Support Service. There were no orders for telephone communication.
I accept the Mother’s evidence that her anxiety “went through the roof after this order”.
Pursuant to the order, the Father saw the children on 10, 11 and 12 July 2019. D accompanied him. As a general statement the visits went very well. When the children first saw the Father and D, both children smiled and gave their Father a brief hug. The supervisor did however miss some thirty (30) seconds of a private conversation the Father had with Y.
On the second visit on 11 July 2019, Y ran to the Father, calling him “dad” and hugging him. Both children were physically affectionate with him and the visit was a good one. On this occasion the Mother told the supervisor that Y had revealed what the Father had said to him privately on the last visit – namely that he did not drink anymore. I accept that this conversation had occurred. The Father had raised this adult issue with Y in rather a clumsy manner and should not have done so.
Both children interacted well with the Father on the last visit on 12 July 2019. Afterwards, the Father and D left the building slightly early and without waiting for the worker to give them the “all clear”. As a result the Mother saw them leaving the building, later complaining to the supervisor. In the witness box the Father denied any malice, saying that “he just wanted to beat the traffic” which I accept.
The Mother facilitated the children speaking to the Father by telephone, even though the orders were silent. She monitored the calls but cannot be criticised for doing so.
In August 2019 the Mother formed a relationship with Mr F.
Second round of supervised visits
The Father returned to the NSW Region B to spend time with the children, again supervised by W Support Services, on 30 September, 1 October, 2 October and 3 October 2019. D attended with him throughout and interacted with the children reasonably well - although on occasions he was a little bored. The Paternal Grandfather attended the last visit.
The visits were positive although the Father did arrive early on the first two (2) occasions. Again I do not consider that any malice was intended.
In November 2019 when bushfires were raging through the NSW Region B, the Mother was kind enough to contact the Father to let him know that she and the children were safe. The Mother said she only did so because it was a rather extreme situation but it reflects well on her that she was able to put her feelings to one side.
By then, the Father and Ms G had formed a casual intimate relationship with Ms G who had three (3) children of her own - all under six (6) years of age. They met at Town S, where the Father was living with the Paternal Grandfather.
Paternal Grandfather assaults the Father
On 13 November 2019 the Paternal Grandfather assaulted the Father by repeatedly hitting him over the head with a beer bottle.
There is dispute about exactly what happened. The Father said that he was initially asleep when the Paternal Grandfather “bottled me in the head”. He claims the Paternal Grandfather did so because he was angry that the Father had not cleaned up his room as requested.
Ms G gives an entirely different account. She says that the Father had been taking dexamphetamine tablets to such an extent that he had been awake for four (4) days straight, and that he became aggressive. She said that at some stage the Father had thrown a chair through a window and ultimately had to be held down by four (4) people including Ms G’s sister, her sister’s partner, the Paternal grandfather and the Father’s cousin. She said the Paternal Grandfather hit the Father over the head after the Father had thrown a bucket of toys at him.
In assessing the competing versions, I am mindful of the Father having abused his prescription medication and “doctor shopping”. I also note that a few weeks later on 5 December 2019 his GP had specifically sought authority to treat the Father with dexamphetamine for a six (6) month period from which I infer that the Father was still struggling with managing his medication. [28]
I accept Ms G’s evidence and reject the Father’s account. I am satisfied that the Father was abusing his prescription medication [29] and behaving aggressively - although it goes without saying that the Paternal Grandfather’s response was grossly excessive and violent.
Following this assault, the Father moved from Town S to Town C to live with the Paternal Grandmother. He remained in a casual intimate relationship with Ms G. On 28 November 2019 the Father filed an Application in a Case on 28 November 2019 seeking some unsupervised time. His affidavit referred to his father assaulting him, but gave no details of the event beyond saying that he didn’t know why he had done so and that it was out of character.
Interim hearing on 6 December 2019
Following an interim hearing on 6 December 2019, orders were made for the Father to have some blocks of unsupervised day visits with the children from 9am to 5pm on five (5) consecutive days. The order provided for up to two (2) blocks over the Christmas holidays and one (1) block at the end of Term 1 holidays.
Once again the orders were made over the Mother’s opposition. I accept her evidence that it was “absolutely not what she wanted” and caused an increase in her anxiety. Presumably the children were well aware of their Mother’s anxiety, as although his supervised visits had been positive, the children had not talked to the Mother about the visits and she had not asked them.
The Father spent a block of time with the children from 20 - 24 January 2020. He rented a beachside cabin at Town Y and D accompanied him. The visits went very well.
The Father and Ms G separate & she obtains an IVO against him
I am satisfied that Ms G was reluctantly invited into the home by the Paternal Grandmother after having told her that she was behind in her rent and facing eviction.
I reject Ms G’s evidence that in March 2020 the Father “invited” her to move in with him so that she could act as a carer for the Paternal Grandmother. The Paternal Grandmother already had carer support and did not need Ms G. Having formed a negative view of Ms G’s ability to care for her own children, the Paternal Grandmother would not have sought such assistance from her. [30] Moreover, the Father was at best ambivalent about Ms G moving in with them; it was Ms G who wanted to pursue a more committed relationship.
On 15 March 2020, Ms G was moving in when she had a discussion with the Paternal Grandmother about her feelings for the Father. The Paternal Grandmother told her (correctly) that the Father’s feelings were not reciprocal. She also suggested that Ms G start putting her children first. Ms G did not take kindly to this advice, leaving the home and returning a short time later in the company of some other people, including her brother and sister. She wanted to immediately remove her belongings from the home.
There followed an unpleasant verbal altercation wherein her brother was aggressive towards the Father. Ms G suggests that the Father pushed her in the chest but I do not accept that evidence. I prefer the Paternal Grandmother’s evidence that it was Ms G who was aggressive and I accept that the Father was in fact somewhat intimidated given the number of people present.
Ms G promptly complained to Police about what she said was a litany of family violence perpetrated against her by the Father, including slapping her on 15 March 2020. [31]
Just three (3) days later on 19 March 2020, Ms G texted the Father to tell him how sorry she was, that she never meant to hurt him, that she still loved him and that “it was killing her that he didn’t feel the same way”. [32]
Not wanting to proceed with Police action, Ms G emailed them on 26 March 2020 to advise that “we both have sorted things out and have both agreed to do the right thing by each other”.[33] In the witness box she claimed she only sent that email because the Father had sent her a threatening text. She was unable to produce the text, nor did she tell Police about it at the time. I do not accept that the Father sent her any such text.
On 26 March 2020 the Father attended upon his GP who recorded his drinking history as “previously heavy…recently stopped drinking”. [34] This corroborates Ms G’s evidence that the Father was abusing alcohol during their relationship and I accept that to be true.
On 1 April 2020 Police served the Father with an IVO application to protect Ms G. The same day, Ms G sent the Mother this Facebook message:
Hi [Ms Henderson] you don’t know me but I am one of [Mr Mumford’s] x friends as from only a couple of weeks ago just so you know [Mr Mumford] is on ice he is also on weed and he is also a woman basher he assaulted me as well as my daughter
And I’m doing a statement [sic] to have him charged
If u would like to subpoena me to court on ur behalf for the [sic]
Sending this message was not the action of someone who was intimidated by the Father. Moreover, Ms G decided to send a copy of the above message to the Father just to make sure he knew what she had done.
In her oral evidence Ms G she was just trying “to show Mr Mumford I had gone to the next step to protect the children”. But her actual message to the Father was:
“ya mum wants to start and accuse me of harrising [sic] u and start her shit game is on.”
Ms G also suggested in the witness box that she hadn’t actually sent the above message; her sister had. I reject that.
The Mother was wary of responding to Ms G at that stage.
Second block of unsupervised time in April 2020
The Father spent another block of unsupervised day time with the children from 20 - 24 April 2020. On this occasion he rented a cabin at the W River near Town Y and both D and the Paternal Grandmother accompanied him. The cabin had a fire pit nearby and the Father’s evidence is they lit the fire late every afternoon before he took the children home and that they would cook marshmallows on a stick.
Unfortunately, Y’s hair was accidentally singed on 24 April 2020 while in the Father’s care. The evidence about this event is contradictory. The Mother’s evidence was that the children were anxious when she collected them afterwards and that X in particular was very anxious about the Father telling her he missed her. The Mother says she did not notice that Y’s hair was singed until the next day and that when she asked him about it, he responded that “daddy did it with a cigarette”. She says Y told her that he was scared as the Father had told him not to say anything about it. She says X confirmed that the cigarette had landed on Y’s head, saying the Father had thrown it at the ashtray and missed.
The Paternal Grandmother’s affidavit was silent as to the burn. Her affidavit did however annexe a message the Mother sent her on 26 April 2020:
Dear [Ms H],
I hope this email finds you well. I wanted to write to you to express my thanks for the clothes and items that you brought for the children they are very much appreciated. [X] and [Y] have not stopped talking about their visit nannie. [Ms Henderson].
Sent the very day after the Mother says the children made the cigarette disclosures, her message is incompatible with the Mother treating any such disclosure as serious.
The Father’s version was that Y’s hair was accidentally singed as a result of the children being silly with their marshmallow sticks around the fire. But in my view he was reconstructing; in the witness box he said he did not even know that Y had singed his hair at the time. He says he only found out about the burn a few weeks later in the Mother’s affidavit.
In my view, the burn was minor and accidental. I do not accept that it arose from the Father throwing a cigarette or that the Mother had any genuine concerns about the event at the time. Her concerns escalated only after contacting Ms G.
Mother’s application to suspend time
Having communicated with Ms G, on 12 May 2020 the Mother filed an Application in a Case seeking to suspend the Father’s time and communication with the children.
Despite the content of her email to the Paternal Grandmother, the Mother now thought the most recent visits had gone poorly. She said that while the children were quite positive about seeing D and the Paternal Grandmother, they were decidedly less so in relation to the Father who she accused of emotionally pressuring X by telling her how much he missed her. She also accused him of swearing at her over the phone in a recent call and upsetting X.
I consider that the Mother’s application was very much motivated by Ms G’s disclosure to her about the Father’s conduct. The Mother’s anxiety had been triggered significantly.
At that stage, there were no orders in place for future time to occur. Pending an interim hearing, the Mother also ceased all phone communication between the children and the Father.
Father undertakes a hair strand test
On 26 May 2020 the Father undertook a hair strand test. However, the result was not provided. The Father’s evidence is that the test results were sent to his previous solicitors to whom he owed money and that they did not forward him the results. (Those solicitors later withdrew on 23 July 2020).
Family Report
The interviews took place on 13 May 2020. Given the COVID pandemic, there were no in-person observations. The Father denied being a perpetrator of family violence; he denied heavy use of alcohol during his relationship with the Mother. [35] Ms K was concerned about the risk the Father posed to the children. She was also concerned about the impact on the Mother of making an order in the Father’s favour. Ultimately her report recommended that there be “no time and no communication”.
Further interim hearing
On 10 February 2021 there was a further interim hearing before her Honour Judge Beckhouse. Her Honour suspended the Father’s time but did reinstate electronic communication on a once per month basis, to be professionally supervised.
Initially the Father delayed in nominating a supervising agency (the Father was grieving the recent death of a close friend). The Mother was in no hurry to facilitate communication, telling the proposed supervisor (W Support Service) she did not want the calls to happen at her home given her concern about the Father possibly taking in the surroundings and tracking her. In the end, the order was never implemented; it seems to have been all too difficult for everyone involved.
Father’s hair strand test is finally produced – and it is positive for illicit drugs
On 9 November 2021 the ICL wrote to the Father’s new solicitor requesting a copy of the May 2020 hair strand test results. The letter asserted that if no test results were available then the Father should undertake another hair strand test for both alcohol and drugs. [36]
On 17 November 2021 the Father provided the hair strand test result. It showed amphetamines at more than 1,000pg/mg - a level above their highest calibrator. This was in keeping with his declared use of dexamphetamine and lisdexamphetamine both of which metabolise to amphetamine.
However, the Father also had a methamphetamine (ice) reading of 84pg/mg and an MDMA (ecstasy) reading of 77pg/mg. According to the testing authority the presence of those substances was not accounted for by use of his prescribed medications and indicated additional exposure to these drugs.
The Father adamantly stated that he had never used ecstasy or ICE. I have to reject that evidence. The delay in producing the test result is also suspicious and casts the Father in an unfavourable light.
On 26 November 2021 the Father undertook a further hair strand test; this time it was negative for the presence of illicit drugs.[37] Notably, alcohol was not tested despite the ICL’s request. Given the Father’s literacy issues I am inclined to accept his evidence that he thought alcohol had been tested. Nonetheless he had solicitors on record at the time; his case cannot be improved by the resultant ‘gap’ in the evidence.
parenting proceedings: the law
Parenting proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act1975 (“the Act”).
Relevantly, when making a parenting order the Court must regard the “best interests” of the children as the paramount consideration: s 60CA, s 65AA. In determining what order is in a child’s “best interests” the Court is obliged to take into account two (2) “primary considerations” set out in s 60CC(2), which are further explained in s 60CC(2A). The Court is also obliged to take into account fourteen (14) “additional considerations” as set out in s 60CC(3). For convenience, those provisions of s 60CC are set out below:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(iii)the nature of the order;
(iv)the circumstances in which the order was made;
(v)any evidence admitted in proceedings for the order;
(vi)any findings made by the court in, or in proceedings for, the order;
(vii)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The “best interests” considerations can and do intersect with one another. But s 60CC(2A) does create a statutory hierarchy, at least insofar as the primary considerations are concerned. Children should be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. “Abuse” is statutorily defined in s 4 of the Act; “family violence” in s 4AB; “neglect” is not the subject of specific statutory definition.
Assessing and weighing risks of harm to a child necessarily involves forecasting into the future. The consequence of a finding either way can potentially have grave consequences for all concerned.
In M & M (1988) FLC 91-979, the High Court of Australia considered how trial Judges should weigh up the future risks of harm to a child, ultimately holding that an order cannot be made which would place the children at “unacceptable risk” of harm. Notwithstanding the subsequent amendments to Part VII of the Act, the “unacceptable risk” test remains good law.
In this case, the Mother runs an “unacceptable risk” case. But if that case fails, she also has a fallback position to justify her “no time and no communication” order. Specifically, she asserts that the making of an order for the Father to spend time and communicate with the children would cause her such significant fear and anxiety as to discernibly and adversely impact her parenting capacity as primary carer, which adverse impact would outweigh the benefits to the children that may otherwise flow from the making of an order (the “adverse impact on parenting” argument).
In Keane & Keane [2021] FamCAFC 1, the Full Court of the Family Court (Alstergren CJ, McClelland DCJ & Benjamin J) reviewed the various authorities dealing with the “adverse impact on parenting” argument. Citing that Court’s earlier decision in Blinko & Blinko [2015] FamCAFC 146, their Honours observed in a joint judgment that:
82We respectfully agree with senior counsel for the father that the Full Court in Blinko did not intend to modify the principles adumbrated in the relevant authorities that have considered whether, on the facts of each particular case, the primary judge did or did not err in finding that a primary carer's parenting capacity had been adversely impacted by the emotional and/or psychological consequences of orders being made for a child or children to spend time with the non-resident parent. What the Full Court did in Blinko was draw upon the line of authority commencing with Russell v Close and, at [83], usefully summarised the relevant principles adumbrated in those authorities as follows:
[83]It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent's belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent's capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent's capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
83Also of assistance is the decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 which explained, at [214], the correct approach in considering what the mother, in this case, has described as "the Re Andrew Principle", as adumbrated in A v A (1998) FLC 92-800 where the Full Court said at 84,996, [3.29]:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party's capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
(Emphasis added)
84In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
Where it is “appropriate” to do so, risks of harm can be ameliorated and sometimes removed by the Court imposing injunctions under section 68B of the Act for the personal protection of parties and children.
FINDINGS AS TO BEST INTERESTS OF THE CHILDREN & QUESTIONS OF UNACCEPTABLE RISK
The fundamental question in this case is whether or not it would be in the best interests of X and Y to have the opportunity for a fairly circumscribed relationship with the Father. He contends that the children would benefit from such a relationship and is agreeable to various safeguards. The circumscribed nature of the time that he actually seeks with the children, and the requirement that it occur on the NSW Region B, are themselves safeguards. The Mother’s case is that even with safeguards, the Father poses an unacceptable risk.
I have already made numerous factual findings which engage the overlapping mandatory best interests considerations in s 60CC. Many of my findings are relevant to more than one consideration and I will try to avoid unnecessary repetition.
Primary considerations
At separation, the children already had established relationships with the Father. They know who he is; he had played a meaningful role in their lives until that time. Since separation, although their opportunity to have a relationship with him has been very limited, the time they have spent together (supervised and unsupervised) has been overwhelmingly positive. The children love him and he loves them. Y may face educational challenges that are similar to the Father’s, so perhaps the Father can also be a sounding board for him in that respect.
I am satisfied that the children would benefit from having the opportunity to have a meaningful relationship with the Father.
I turn then to matters of risk, beginning with the Father’s perpetration of family violence. On the evidence I am satisfied that he has been a perpetrator over a long period, with the violence taking various forms. He has been physically violent; he has been verbally abusive and demeaning; he has engaged in sexual violence.
The Mother has experienced the full gamut of his violent behaviour; she has suffered to the greatest extent. Some of his sexual behaviour was witnessed by the children and imitated by Y for months afterwards. On any view the children should have been much better shielded from his sexually compulsive urges.
Ms G was also a victim of verbal abuse from the Father, although I reject that he physically abused her. He may have sexually toucher her when his children were present. He may have threatened to burn her with his lighter as she deposes; he may have deliberately flicked cigarette butts at her. The evidence does not permit me to be more specific. I otherwise reject her allegations of violence against him.
The “corkeys” regularly administered by the Father to the Mother constitute family violence; insofar as the children are concerned they also constitute “abuse”. They were not an occasional “joke” as between family members with equal power. Locking the children in their rooms as a form of behaviour management was also emotionally abusive on the Father’s part.
Overall, I have concerns about the Father’s perpetration of family violence - physically, verbally, emotionally and sexually. I am concerned about the children being exposed to his sexual compulsivity and lack of inhibition. I also consider that the Father minimizes his past violence and behaviours, as well as their impact on others. This was also the view of Ms K. [38] He failed to complete anger management counselling.
I turn then to the Father’s longstanding alcohol abuse. The associated risks to the children are obvious enough and include the risk of accidental injury (eg. as happened with X). Alcohol abuse also increases the risk of him perpetrating family violence, or otherwise behaving in a volatile or inappropriate manner towards the children, or in their presence.
Alcohol abuse also makes the Father less emotionally attuned and responsive to the children’s needs.
I am unpersuaded that the Father has made any comprehensive attempt to address his alcohol abuse. He relies on abstinence and medication such as Campril to suppress his urge to drink. From his own perspective, he now drinks very little. At trial he said he had last consumed alcohol some three (3) weeks earlier (early March 2022) and to be fair there is no evidence that he has used alcohol to excess in recent times. But given his history, total abstinence seems much wiser.
Alcohol can be addressed to some extent by way of an injunction restraining the Father from consuming any alcohol for twenty-four (24) hours before spending time with the children. He is agreeable to such an injunction, also indicating that he was happy to undertake alcohol rehabilitation if necessary - while stressing that online courses were difficult for him given his literacy issues.
A more insidious issue is the Father’s abuse of prescribed amphetamine medication as a means of regulating his emotions or otherwise coping with life when things are tough. There is evidence of him “doctor shopping”.
The Father’s hair strand test from 26 May 2020 is a major concern. Although his prescribed medication resulted in him recording a reading above the highest calibrator for amphetamines, he had clearly used both ice and ecstacy as well. It is troubling that he used illicit drugs in addition to the very high readings produced by his use of prescribed drugs. It is troubling that this test result went ‘missing’ for eighteen (18) months.
This positive hair strand test tends to corroborate Ms G’s allegations that the Father used ice during the relationship. I accept her evidence that in January 2020 she saw him smoking ice and that he admitted using it on another occasion. I also accept her evidence that in December 2019 she had disposed of a black box at the Father’s request, which had ten (10) used needles in it. I also accept her evidence that on one occasion he sent her to the chemist to collect extra prescriptions for him, telling her that if they asked why, she was to “lie to them and tell them that my last lot was stolen at a party we had” [39]
Overall, there are significant and multi-faceted risks to the children if they spend time with the Father. His propensity for family violence, and his drug and alcohol use and abuse create serious and abiding risks to them. Unsupervised time is not an option in my view, even limited to day visits. The Paternal Grandmother’s supervision would not be a sufficient safeguard. Any such time requires professional supervision; family supervision would not be sufficient.
With appropriate safeguards, the risks posed by the Father will not be “unacceptable” if the time is professionally supervised by W Support Service or by some other properly-accredited supervising organisation.
Additional considerations in s 60CC(3)
The ICL contended that the orders proposed by her reflected the children’s views; they want a relationship with the Father. I accept that.
The children are primarily attached to the Mother but have also developed an attachment to Mr F. X calls him “Mr F” and Y sometimes calls him “dad”. The children also have established relationships with the maternal family.
In my view the children do still have a (diminished) relationship with the Father, and to a lesser extent with the Paternal Grandmother. They also have a (diminished) sibling relationship with D.
The Mother has been making all major long-term decisions for the children. The Father has done all he reasonably can to be involved in the children’s lives, including participating in these proceedings. While he could have been more proactive in relation to supervised telephone communication, he faced resistance from both the Mother and seemingly from W Support Services as well.
There are real practical difficulties and expenses in promoting the Father’s relationship with the children on a face-to-face basis, particularly given the distances involved and the Father’s modest financial circumstances. So much is recognised in the Father and ICL’s proposal that the Father spend time with the children only during school holiday periods. If time is to occur, this is probably all that is practicable. (Notably, when the Mother was asked about the long travel time for the Father, her response was that it was “not my problem”.)
I have addressed issues of family violence already and will not repeat myself.
The Father has a positive attitude towards the Mother as a parent; he values her critical role in the children’s lives. His capacity to parent the children is however limited.
The Mother has the capacity to provide for all of the children’s needs except for any perceived need for them to have a relationship with the Father. She said she was happy for D to have a relationship with the children, but only on condition that the Father was not involved. She was adamant that there was absolutely nothing that the Father could do to develop a relationship with the children in the future. She said it was absolutely not in their best interest to have a relationship with him, vehemently stating in the witness box that “the children need to be safe, they will never be safe with him”. The Mother genuinely believes that she has acted throughout to protect the children; she regards this as her overwhelming duty.
The Mother said she did not know how she would prepare the children if orders were made for the Father to spend time with them. She said she would need a lot of time to prepare them. Her position throughout the proceedings has been consistent – the Father should have “no time and no communication”. The content of the supervised reports did not change her view in any way and she regards every order that this Court has made for the Father to spend time or communicate with the children as unfortunate.
She said the children never ask about the Father when they are with her nor does she encourage them to do so.
The above matters demonstrate the Mother’s unremitting negativity towards the Father which in my view stems to a large extent from his previous family violence towards her, particularly his sexual violence.
The Mother’s evidence was somewhat confusing as to the children’s characteristics, and how they were coping with life. She said that X suffers from anxiety and in her affidavit she deposed to X receiving counselling through Victims Services NSW. But in cross-examination she admitted that no such counselling had yet occurred. The Mother said that X has been diagnosed as suffering from “textbook trauma” but produced no expert evidence to corroborate that. Moreover, the Mother deposed at the same time that X has “thrived in all aspects of her life” ever since she relocated.
As for Y, the Mother originally deposed that he was in good health and doing well. It was only in the witness box that she said he had “behavioural issues”. She explained that this was omitted from her affidavit as she did not want to bring it to the Court’s attention. She also said that Y’s paediatrician had told her that Y’s ADHD might relate to the impact of trauma from family violence but again she produced no corroborating report.
I accept that the children have been exposed to family violence and that their life has also undergone major upheaval since separation. They are likely unsettled to some extent, most particularly Y. They also know that the Mother does not like the Father, which places them in a difficult emotional position and likely explains why they do not mention him at home.
If I make an order for the Father to spend any time with the children, there is inevitably a risk of future litigation which would be adverse to the children’s interest. Including strict safeguards in the order may ameliorate that risk but not completely remove it.
In relation to the effect of any change in circumstances, this in some respect dovetails with the Mother’s argument that there would be an adverse impact upon her parenting capacity if the Court were to make an order for the Father to spend time.
Ms K’s evidence was that, if such time was to be ordered, then the Court should err on the side of caution and tread slowly. She said that the difficulty with the Mother was that “she reinforces a negative view of the Father which his not helpful for the children” and suggested that perhaps the Mother may require counselling to help her cope and to assist with messaging appropriately to the children that the Father is still their father. In my view the Mother would not be motivated to attend such counselling given her past experience of family violence at the Father’s hands.
Would the Mother’s parenting be adversely impacted if an order was made for time that is professionally supervised?
This is a difficult question. Her affidavit simply deposes:
99. I have received support from my experiences by seeing a psychologist.
This is a reference to her sexual assault counsellor, whose subpoenaed notes I have earlier quoted from.
The Mother’s distress is real. She became genuinely upset during the Family Report interview when discussing the Father’s past history of family violence.[40] Ms G also deposed that the Father told her he was trying to locate the Mother’s address. I accept this and it is a matter which alarms the Mother.
To be clear, some of the Mother’s fear is not objectively based; for instance she considered that even professionally supervised time was unsafe as “you can’t stop words and manipulation”. Professional supervision should however exclude such risks.
The ICL submitted that the Mother had not made out a case that her parenting capacity would be adversely impacted by the making of an order for time; the ICL suggested that the Mother undertake some counselling if necessary.
WEIGHING UP THE COMPETING PROPOSALS
I have determined that the multi-faceted risks posed by the Father to the children require professional supervision of time. But given its inherently very limited nature, is the making of a long-term supervision order in the best interests of the children?
In my view, it is not. Such time would be very limited and fragmented; the Mother would be implacably resistant to it. The Mother’s long-term experience as a victim of family violence at the Father’s hands renders entirely artificial a requirement that she undertake counselling in order to assist her to “promote” the Father/children relationship in the intervening periods. In my view her parenting capacity would be discernibly impaired by the making of an order, even for supervised time. The detriment would outweigh the benefit to the children that might otherwise flow from maintaining this faint shadow of a relationship with the Father.
Long-term supervision orders are not usually in the best interests of children; this case is no exception.
This is not to say that severing the relationship is an easy decision, or one which will be entirely trouble-free for the children. During what remains of their childhood they are likely to feel some angst from time to time as a result of the Father’s absence from their lives, as well as perhaps suffering longer term adverse consequences, such as the children maybe questioning whether they were the cause of their Father not being in their life. It is difficult to imagine the weight that could fall on the children’s shoulders as a result of such concerns; the Mother has to manage them as best she can.
In my view the Mother’s orders are in the children’s best interests. To the extent that the Mother seeks various injunctions against the Father, I consider these to be “appropriate” as required by s 68B. I have added an “overseas travel” order to the Mother’s proposed “passport order” so as to make it effectual.
CONCLUSION & ORDERS
For these reasons, I make the orders set out at the commencement herein.
I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 11 October 2022
[1] Ex 2, para 38.
[2] See exs 19 & 20.
[3] Ex 24.
[4] Ex 25.
[5] Ex 25.
[6] Ex 2, para 66.
[7] Ex 22.
[8] Ex 10.
[9] Ex 10.
[10] Ex 2, para 24.
[11] Ex 2, para 112.
[12] A decision of the High Court of Australia, reported in (1959) 101 CLR 298
[13] Ex 2, paras 68 & 69.
[14] Ex 10.
[15] Ex 14.
[16] Ex 13.
[17] Ex 15.
[18] The IVO is annexure “A” to Mother’s trial affidavit.
[19] Ex 2, para 102.
[20] Ex 2, para 104.
[21] Ex 2, para 105.
[22] Ex 38, exhibit 39.
[23] Ex 12.
[24] Ex 17.
[25] Ex15; date of GP visit was 10 May 2019.
[26] Ex 2, para 106.
[27] Summary Offences Act 1966 (Victoria), s 7
[28] Ex 18.
[29] See particularly the Father’s hair strand test result of 26 May 2020 discussed later in these Reasons
[30] See paras 1 – 13 of the Paternal Grandmother’s affidavit
[31] Ex 27.
[32] Ex 5.
[33] Ex 27.
[34] Ex 36.
[35] Ex 2, paras 22, 61 & 65.
[36] Ex 8.
[37] Ex 7.
[38] Ex 2, para 115.
[39] Ms G’s affidavit, paras 9 – 12.
[40] Ex 2, para 31
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