HILDER & JESSUP

[2015] FCCA 2283

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILDER & JESSUP [2015] FCCA 2283

Catchwords:
FAMILY LAW – Interim parenting – whether the father should have supervised time or no time at all – where serious allegations of family violence and self-harm by father – where the mother’s evidence demonstrates an inconsistency between her actions and her stated concerns – where the Court considers this irrelevant in circumstances where the evidence objectively raises issues of concern about the children – where no time or communication ordered.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS HILDER

Respondent: MR JESSUP

File Number: WOC 575 of 2014

Judgment of: Judge Altobelli

Hearing date: 6 August 2015

Date of Last Submission: 6 August 2015

Delivered at: Wollongong

Delivered on: 28 August 2015

REPRESENTATION

Counsel for the Applicant: Ms Doosey

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr Millar

Solicitors for the Respondent: Hilton King Lawyers

Solicitors for the Independent Children's Lawyer: Carter Ferguson Solicitors

ORDERS, PENDING FURTHER ORDER

1. That the Children, [X] (born [in] 2000), [Y] (born [in] 2006), and [Z] (born [in] 2007) live with the Mother

2. Pending further Order, the Children spend no time with and have no communication with the Father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 575 of 2014

MS HILDER

Applicant

And

MR JESSUP

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the Interim Orders that the Court has made in relation to three children, [X] who is 14, [Y] who is 9, and [Z] who is 8.  The issue for the Court to decide is whether the children have no contact and communication with their father, or whether they have supervised contact with him.

Background

1. The Mother is the Applicant in this case.  She seeks Orders for sole parental responsibility, that the children live with her, and have no contact or communication with their father.  She is a 41 year old [occupation omitted] living in the Illawarra.  The Respondent is the children’s father.  He is a 41 year old IT specialist, also living in the Illawarra.  He is of [omitted] background, the mother Australian.  He arrived in Australia in 1995.  The parents started living together in 1997.  Whilst there were several periods of separation throughout the relationship, they appear to have separated on a final basis in the middle of 2014, when the Father vacated the former matrimonial home.  He continued to spend time and communicate with the children, sometimes on a supervised basis, and sometimes unsupervised until January 2015.  He has not seen the children since then.

2. Both the Father, and the Independent Children’s Lawyer propose that the children continue to live with the Mother and that, pending an Expert’s Report that is to be prepared by Dr K, that he spend supervised time with the children provided by the private supervised contact service called SuCo.  It is common ground that no Orders are sought in relation to the child [X].  There are slight differences between the proposals of the Independent Children’s Lawyer, and the Father, in relation to just how much supervised time should take place. 

Detailed chronology

1. The Court was greatly assisted by the comprehensive chronology prepared by the Independent Children’s Lawyer, and included in her Case Outline document filed 3 August 2015.  This comprehensive document draws on the Affidavits filed by both parents.  The chronology is reproduced in the first schedule to these reasons. 

2. In addition, a number of documents were tendered in evidence.  Exhibits A1-A3 comprised documents produced on subpoena by Ms L, psychologist, Department of Family Community Services, and New South Wales Police. The Child Inclusive Conference Memorandum became Exhibit ICL 1, and two reports in relation to [Y] and [Z] from a psychologist, Ms R, became Exhibit ICL 2.

The applicable law

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

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

   60B  Objects of Part and principles underlying it

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

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

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

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

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

   Equal time

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

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

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

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

   Substantial and significant time

   (2)     If:

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

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

   the court must:

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

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

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

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

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

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

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

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

   (i) the child’s daily routine; and

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

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

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

   Reasonable practicality

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

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

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

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

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

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

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

   Determining child's best interests

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

   Primary considerations

   (2)  The primary considerations are:

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

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

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

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

   Additional considerations

   (3)  Additional considerations are:

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

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

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

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

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

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

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

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

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

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

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

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

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

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

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

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

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

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

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

   (i)  the nature of the order;

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

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

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

   (v)  any other relevant matter;

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

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

6. Family violence is defined in s.4AB of the Act:

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

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

7. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

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

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

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

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

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

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

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

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

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

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

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

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

1. In the Full Court’s decision of Goode & Goode [2006] FamCA 1346, the Court provides some guidance as to determining matters on an interim basis:

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

   …

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

   …

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

   (a) identifying the competing proposals of the parties;

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

   (c) identifying any agreed or uncontested relevant facts;

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

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

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

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

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

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

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

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

Discussion of the evidence

1. Family Consultant S conducted a Child Inclusive Conference on Wednesday, 29 July 2015.  The three children were seen with the parents.  A number of important matters emerge from the Conference.  The Family Consultant notes, for example, that the Mother made a number of serious allegations about the Father’s controlling, manipulative, emotionally and physically abusive behaviour towards her.  It was noted that there was already an AVO protecting the Mother and the children from their father.  The Father’s response to this is of interest: 

   Mr Jessup said that he had never physically hurt Ms Hilder.  He said that he has made ‘mistakes’ including having texted inappropriate and lengthy texts to Ms Hilder, that they have argued and that he approached their relationship with a ‘persistence’ that he accepts has been perceived by her as him being controlling.  He accepts that Ms Hilder is genuinely fearful of him and that he needs to provide consistent and lengthy reassurances to her to regain her trust.

2. The Court construes these statements as being an admission by the father, albeit limited. 

3. Under the heading “homicidal and suicidal threat” the Family Consultant records the Mother’s allegations that the Father has repeatedly made reference to homicidal ideas and suicidal ideas.  She alleged that he has poured petrol on himself, threatening to set himself on fire, held a knife to his chest threatening to kill himself (in the presence of the children) and has written numerous letters that appear to be suicide notes.  The Mother alleges that the Father has sent her an article about fathers who kill their children and that he has expressed an understanding of such behaviour.  The Father’s response to these allegations are recorded as follows:

   Mr Jessup said that he has emailed such articles to the mother as he thought she would find the articles of ‘interest’.  He denied that he has ever thought about, or would ever hurt his children.  He appeared to accept that such behaviour would be perceived by Ms Hilder as frightening and, in hindsight, he wishes that he had not made such a ‘bad choice’ by emailing them to her.

4. He then mentioned that he is seeing a psychologist and is undergoing cognitive behavioural treatment for depression and anxiety.  The evidence of his psychologist will be discussed below.

5. In relation to the children, the Family Consultant recorded the following:

   ·The Father believes the Mother is an excellent mother who lovingly and competently cares for the children.  Sometimes she can be overprotective, and is risk-averse in her approach.

   ·Both boys are developmentally delayed

   ·Both boys have a close and positive relationship with their mother, but each described a distant relationship with their father.

   ·They had both positive and negative memories of their father, which included a sense that their father was angry and their mother had to protect them.

   ·[Y] said that he misses his father and would like to see him.

   ·[X] described ambivalent feelings about whether or not she wants to spend time with her father.  She said that there are times when she misses her father and times when she wants to avoid him.

6. Under the heading “Future directions” the Family Consultant stated that her limited assessment suggests that the alleged risk raised by the mother be given priority until sufficient reassurances can be obtained about potential risk.  This is especially important as both [Z] and [Y] are considered to be vulnerable children who are dependent on their carers.  She thought that an expert psychiatric report for the family was needed.

7. The documents produced by Ms R, the psychologist for each of the boys, confirms that their cognitive ability is in the extremely low range.  Both fulfil the diagnostic criteria for intellectual disability ([Z] was diagnosed with Intellectual Development Disorder DSM-V 317 (F70) Mild Level of Severity, and [Y] was diagnosed with Intellectual Developmental Disorder DSM-V 318 (F71) Moderate Level of Severity).

8. Mr A swore an Affidavit on 27 July 2015, in the Father’s case.  He is a general psychologist who has been treating the Father since 25 May 2015.  His Report dated 20 July 2015 is annexed to his Affidavit.  His diagnosis of the Father is generalised anxiety disorder;  major depressive episode.  He had been provided the four Affidavits that had been sworn by both the Mother and the Father.  He first consulted with the Father on 25 May 2015, and then had five further sessions, the last one before the Report being 13 July 2015.  He explained that the psychological intervention being provided was using a cognitive behaviour therapy framework.  He was asked to comment whether the Father presented any risk to the children.  His conclusion was that, based on his involvement with the Father, and the material before him, he posed a low risk to the children.

9. For present purposes, it is clear from the Report that Mr A was aware of the allegations made by the Mother in relation to the Father’s mental instability.  He believed that there were times when the Father made poor decisions and demonstrated impulsivity and emotional regulation problems.  Ultimately, however, and particularly given the fact that the relationship continued after these incidents, and that the Father continued to spend time with the children, that there was no basis to be concerned about the Father’s psychological state. 

Submissions made by the parties

1. Each of the parties provided a very helpful outline of submissions, and indeed in the Mother’s case, this was supplemented by written submissions.  The Mother’s submissions will be dealt with last. 

2. Ms Collis, the Independent Children’s Lawyer, submitted that the threats made by the Father are indeed serious, and his own evidence suggests a lack of insight into the repercussions of his behaviour on both the Mother and the children.  She was quite concerned, however, about Mr A’s evidence, submitting that he had become, in effect, the mouthpiece of the Father and thus had not objectively assessed the events in question, or reality tested what the Father said.  The Independent Children’s Lawyer submitted that there was a risk of psychological harm to the children, at the very least, but this risk was adequately managed by the imposition of supervision.  On balance, she submitted that any risk in relation to the children was adequately managed through supervision, at least pending the receipt of an Expert’s Report.  She did express concern, however, about any further communication between the Father and the children that was otherwise inconsistent with the need for his time to be supervised. 

3. Mr Millar of Counsel, appeared for the Father.  He emphasised that it would be impossible for the children to have a meaningful relationship with their father, particularly given that he has not seen them for seven months, if no order was made for him to spend time with the children.  He emphasised the history of the case – that the Father had spent regular time with the children post-separation until about December 2014.  This fact was plainly inconsistent with the Mother’s stated concerns in her Affidavit.  Moreover, the evidence demonstrated that as at February 2015, the Mother had in fact agreed to supervised time with the Father, another matter quite inconsistent with her stated concerns.  There was no explanation for the Mother’s change of position in this regard. 

4. Mr Millar submitted that such concerns as might be apparent could adequately be managed through the supervision proposed by both the Father and the Independent Children’s Lawyer.  He submitted that both parents knew exactly what happened at various incidents, and yet the two parents continued to act in ways that, inferentially, were protective of the children afterwards.  Having regard to that, there could be no objective basis for the Mother’s concern.

5. Mr Millar also submitted that the Court should not engage in a process of dealing with parental responsibility at an early stage in the proceedings where so much was in dispute.

6. Ms Doosey of Counsel appeared for the Mother.  She urged the Court to look very carefully at the Father’s own evidence, and the admissions that he makes about his behaviour.  She submitted that when the Court did this what would become apparent was a confounding pattern of the Father acknowledging his bizarre behaviour, but then advancing an otherwise benign explanation.  She submitted that even supervision was not adequately protective of the children when the risk of harm was of psychological abuse, and where there continued to be concerns about the Father’s ability to contain and regulate himself.  Ms Doosey emphasised the broader context in which Interim Orders were being made – a very anxious mother, and two children with special needs.  Thus, she submitted, the context was one of great vulnerability for both the Mother and the children. 

7. When challenged about the inconsistency between the Mother’s stated concerns, and her actions in nonetheless allowing the Father to spend time with the children after separation, both supervised and unsupervised, and when confronted with the reality that her client had at one stage agreed to supervised contact as recently as February this year, Ms Doosey acknowledged that her actions were disconcerting.  She conceded the possibility that the Mother’s inaction at times was troubling.  She agreed there were serious unanswered questions, not only about why the Father would act as he did, but why the Mother would not act more protectively.

8. Ms Doosey sought to shift the focus to the children, however.  She described the issue confronting the Court as whether it could be comfortably satisfied that the children would be completely safe spending time with their father in the circumstances of this case.  She submitted that on a close examination of the Father’s own evidence, the Court would not be satisfied about the children’s safety, even in the context of supervised contact.  She submitted, therefore, that there should be no contact, at least until a psychiatric assessment has been conducted.  There was a reasonable prospect that a report would be available this year.

Discussion

1. This is a complex case, particularly in the context of having to make Interim Orders.  The evidence is untested.  Counsel for the Mother is quite correct in submitting that the Father has made a number of admissions, particularly in the Child Inclusive Conference, but also in his own Affidavit of evidence.  The focus will be on this in order to attempt to assess the risk to the children of even having supervised contact with him.

2. It is beyond doubt that the task of the Court to make Orders in the best interests of these children is framed by the primary consideration which is the need to protect them from, in this case, psychological harm – from being subjected to, or exposed to, abuse, neglect or family violence. Given the expanded definition of family violence contained in s.4AB of the Act, the Court is satisfied that the Father’s behaviour, which will be discussed below, probably does fall within the definition of family violence. The risk to the children appears psychological, rather than physical. It must also be acknowledged that the Court is required to give greater weight to the need to protect the children from harm, than the benefit of having a meaningful relationship with their father: s.60CC(2A).

3. This case will be determined having regard to the primary considerations in s.60CC(2), rather than s.60CC(3). This must be the case, having regard to the parameters of the dispute established by the parties themselves. The Court’s task is essentially a risk assessment and management exercise. Is the risk to the children so great, that even an order for supervised time will not be adequately protective of them?

4. The focus will be on the Father’s own evidence.  It should be acknowledged that it differs from the Mother’s in many material respects, but it is obviously not possible to make findings of fact in relation to the different versions of the alleged events, at this point in the proceedings.

5. At paragraph 67 of the father’s affidavit sworn 15 April 2015, he refers to the Mother’s allegation that he poured petrol on himself.  He asserts that the Mother has exaggerated this incident.  There was never any fire involved.  He agrees that he was filling up the lawnmower, the Mother was getting ready to go out, no children were around.  He went into the kitchen.

   I lifted the petrol container I was using to fill the lawnmower.  I said, ‘Hey, Ms Hilder, maybe I should have a silent protest like the monk on the video’.  I was referring to an online video we watched that morning with the monk on fire protesting about Chinese occupation of Tibet.  Some of the petrol splashed on my T-shirt as I lifted it up.  That’s where it ended.  This happened three years ago. 

6. The Court comments that if this were the only incident in respect of which the Mother raises concern, it could be described as somewhat unusual, perhaps extravagant. 

7. At paragraph 68 of his Affidavit, the Father deals with the Mother’s allegation that he held a knife to his chest as though to stab himself.  He says:

   In early 2013 I was in the kitchen at dinner time chopping up the veggies.  There was a news story on TV about a man keeping police at bay with a knife.  I said to Ms Hilder whilst holding the knife in my hand, ‘Ms Hilder, all I have to do is hold this knife and walk out in front of the cops.  That’s all that will be required for the cops to shoot me.’  The children were not around at the time.

8. The Court comments that taken in isolation, the incident might be dismissed as somewhat odd, if not extravagant.  The proximity of the two events, does elevate the level of concern.  The Father deposes that the petrol incident was either late 2012 or early 2013, and the knife to his chest as being early 2013. 

9. At paragraph 69 of his Affidavit he seeks to downplay the potential significance of the knife event by referring to physical jokes that they had, one with another, involving a knife.  It was all a joke, he asserts. 

10. At paragraph 76, the Father deals with the Mother’s allegation of his surveillance.  She alleges that he used a camera surveillance to spy on her.  At paragraph 76 he says: 

    I installed a security camera outside our home in the backyard near the back gate.  The property is open on two sides with a low picket fence.  We had a dog who escaped.  I could check it from my iPhone if we went on holidays.  Ms Hilder removed it after one day.  This was the only camera that I installed at our home.

11. Again, if this evidence is taken in isolation it might be excused as odd, if not extravagant.  The father is an IT specialist.  He admits that he could check the camera from his iPhone.

12. At paragraph 77 he refers to the auto-answering system that he installed in the house.  He deposes as follows:

    It is like a phone that doesn’t need to be picked up.  It plugs into a power point.  You can hear any conversation happening in the room that you call.  You can talk to the people in the room.  It is just like a phone that you don’t need to pick up.  I connected one in the living area downstairs and the other in our bedroom.  Often Ms Hilder would not pick up the phone.  I wanted to be able to hear and talk to my family.  They were installed for security reasons not for spying.  Ms Hilder discovered it after a few days.  She said to me, ‘I’m not impressed.  You should have asked me before you put it in.’  I said, ‘I installed it to listen to what the boys are up to when you won’t answer the phone.’

13. Counsel for the Mother submitted that the Father’s actions were extreme and invasive behaviour, and that his rationalisation for what he did would only exacerbate the Court’s concern.  What is clear is that the allegation that the Father is responding to in paragraph 77 is one that relates to a period when the parents had separated.  This is disconcerting evidence.

1. At paragraph 81, the Father acknowledges that he has

   …had emotional outbursts when life has become too much for me with the breakdown of our relationship.  I have said at times something like, ‘I’ve had enough of this life.’  I feel Ms Hilder has pushed me to the edge in last couple of years during our breakup roller coaster ride.  I am not suicidal.

   Viewed in isolation this statement by the Father would not be of concern.  When viewed in context of the totality of his admissions his evidence becomes even more disconcerting.  

2. Annexed to the Mother’s Affidavit of 25 May 2015, there are a number of written or electronic communications that the Father has sent to her.  On 28 June 2012 he forwarded to her a story with the headline, “A spouse who refuses to have sex with their partner is guilty of cruelty, the Delhi High Court has ruled.”  The accompanying message from the father was:  “So it looks like I have been the victim of cruelty for last 11 years…”

3. On 18 May 2011 he forwarded a story from the Sydney Morning Herald of the same date entitled, “Obsessive love lost:  why some father’s kill.” 

4. On 17 December 2012 he forwarded a news story, “Nancy Lanza may have triggered son Adam Lanza’s gun rampage,” with the message: 

   What a waste of young lives… interesting that almost all times these kids come from a broken family…what on earth is happening in this world… two much freedom with everything is never a good thing either… whether it’s guns or making life choices!!

5. There are other examples from the evidence, but it is unnecessary to go further.  It is quite possible that any one of the examples of communication and the events referred to above would not raise any risk issues so far as the children are concerned.  When all of these events are put together, the Mother’s concern about the Father’s behaviour becomes more understandable.  One event might be excused as being odd, perhaps extravagant.  A number of similar events start to raise serious issues not just about the Father’s mental health, but personality and insight.  Even on the Father’s own benign interpretation of these events, it may be possible to discern manipulation or control.

6. But why can’t this risk therefore be managed by supervision?

7. There is one matter that the Court wishes to rule out as irrelevant at this point.  Even if the Mother continued to allow the Father to spend time with the children despite her concerns, and even if the Mother agreed as recently as February this year that there should be supervised contact, that does not absolve this Court from its duty to independently conduct a risk assessment as part of the exercise of establishing what is in the best interests of these children.  The Court cannot ever be bound by the imprudent acts of a parent.  It is bound, by statute, to look at risk of harm issues as at the date of the exercise.  A Court may have regard to what a parent may in the past have considered to be acceptable to their children, but a Court is never bound by it.  In the quest for determining what is in the best interests of a child, what a parent has considered adequately protective in the past is but one of many considerations, and not necessarily determinative.  When all of the evidence before the Court is objectively reviewed at the present time, and adequately factoring in the realisation that this evidence has not been subjected to the critical scrutiny of cross-examination, there is still more than ample reason to be concerned about the welfare of the children.  The evidence reviewed above demonstrates that there is a risk of psychological harm to them.

8. Why, then, is supervision not an adequate means to manage that risk?  At the end of the day this is a difficult balancing exercise.  The Court believes it should proceed conservatively.  The risk in question is of psychological harm, a risk that is far more subtle and insidious, and thus much more difficult to protect against as compared to, for example, the risk of physical harm or neglect.  The Father does not appear to have gained any insight about the inappropriateness of his actions, or their potential impact on the Mother or the children indirectly.

9. When all the factors are taken into account the least risk to the children is if, for the time being and pending an expert assessment, they have no contact or communication with their father at all.  The Court acknowledges it is a finely balanced case.  It is often impossible to completely eliminate risk, but for the limited period until an Expert’s Report is available, that is what the Court will do.  Orders will be made in terms of those sought by the Mother, but the Court declines to deal with the issue of parental responsibility, at an interim stage of the proceedings. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:         28 August 2015

Schedule One

Date	Event	Evidence
[omitted] 1973	Father born.
[omitted] 1974	Mother born.
1995	Father migrated to Australia.	F Aff (1) para 3
11/1997	Parties commenced living together	M Aff (1) para 5
[omitted] 2000	[X] born
2000	·    Mother claims father assists in care for first 6 months of her life e.g. nappy changes. After 6 months, majority of responsibility left to mother ·    Maternal grandmother cares for first child 2-3 days a week while mother studies and works. Mother sole carer otherwise ·    Father claims to have had sole care of the child while mother studied	M Aff (1) paras 6- 7 M Aff (1) para 6 F Aff (1) para 9
August 2001 to 2002	·    Father requests that he and the mother film themselves having sex. Mother uncomfortable at the prospect, but agreed to appease the father. ·    The father retains a copy of this footage and has threatened directly/indirectly to reveal it to others. This causes the mother shame and embarrassment. ·    The mother believes the father has taped further instances of sexual intercourse without her consent	M Aff (1) para 29
January 2002	Father became Australian citizen. Renounced [omitted] citizenship and passport	F Aff (1) para 3
2005	Father cared for child one day a week while the mother work. Arrangement lasted approx. 1 year	M Aff (1) para 8
January 2006	Father claimed he would not be present for birth of second child. Mother concerned and made alternate support arrangements. Ultimately father was present	M Aff (1) para 10
[omitted] 2006	[Y] born
June 2006	Father embarks on around the world trip for 6 weeks alone. Mother cares for children	M Aff (1) para 12
25/09/2006	Email sent by father to his brother regarding father’s attempt to obtain [omitted] passports for the children. Email sent after mother had told the father she wanted to separate. Mother frightened her children would be taken away, so she remained with the father.	M Aff (1) para 23
08/2007	Father took [X] to visit his [omitted] workplace. She returned to tell her mother she had sat in the car all day with her paternal uncle.	M Aff (1) para 56
[omitted] 2007	[Z] born.
January 2008	Mother discovers father is having an affair with a 19 year old girl, Ms S.	M Aff (1) para 26 F Aff (2) para
When the affair ended, a Facebook profile was set up by the father to humiliate and expose Ms S. Posts included pictures of the father and Ms S having sex. Father denies posting explicit material.
August 2008	Mother observes [Y] is not progressing with language skills. Mother arranged speech therapy by the time child was aged 3.	M Aff (1) para 15
January 2009	Father enrols [X] in nippers. Mother alleges father only took her once or twice and she attended to this for the remainder of the season.	M Aff (1) para 55
16/12/2010	At a time of marriage difficulties, with the mother attempting to leave the father, he prepared “Agreement on Non-contact with Father” which stated he wanted no contact with the children.	M Aff (1) para 109-110
01/01/2011	Father took [Y] without the mother knowing and disappeared. The father sent a text message claiming they were about to board a plane to Queensland. The father returned with the child at approx. 7pm that evening	M Aff (1) para 83
18/05/2011	Mother received an email from the father, attached with a report from SMH “Obsessive Love Lost: Why Some Father’s Kill”	M Aff (1) para 113
01/01/2012	[X] wanted to have friends sleep over, wrote to her mother in a note “I also understand and know it’s hard with papa but maybe he won’t act up…”	M Aff (1) para 57
January 2012	Father enrolled [Y] and [Z] in soccer. Mother asserts the children did not want to play the  season, with the father blaming the mother for this. The father following applied a lot of pressure on the children, even though their condition made soccer harder for them in comparison to other children The children were also enrolled by their father in cricket. Mother alleges they did not enjoy the experience, with [Y] crying for almost 2 hours after one game. The father would leave the mother with the emotional children, to attend his own cricket game	M Aff (1) para 96 M Aff (1) para 97-98 M Aff (1) para 99-100
January 2012	[Y] starts school. Due to learning difficulties, special school times for the child had to be arranged By end of the year mother observes main-stream schooling not going to be of highest benefit to the child and decision made to home school the child. Mother attends Noah’s Ark early Intervention School to assist the child in learning and motor skills. The father did not participate.	M Aff (1) para 16 & 105 M Aff (1) para 16 F Aff (1) para 14 M, Aff (1) para 104
2/01/2012 onwards	When [X] was beginning to go through puberty, the father would walk into her room while she was dressing. The mother explained to the father he could not continue doing so. The father put his hands around the mother’s throat and said “Are you accusing me of being a pervert?” Father would encourage younger two children to run through [X]’s room. Caused disharmony between the children. Father would play bongo drums, loud music or chant CD’s while [X] studied.	M Aff (1) para 59
February 2012	During one of mother and father’s periods of separation, the mother’s solicitors contacted the father. Father stated he would not see the children if they separated.	M Aff (1) para 22
28/06/2012	Father sent the mother an email regarding a decision of the High Court in Delhi where it was ruled that denial of sex was a justifiable grounds for divorce	M Aff (1) para 37
August 2012	Mother asserts that an incident occurred where the father requested sex from the mother, and the mother refused. The father then played a recording of the two having sex at high volume at approx. 10pm. The recording was played via a USB port to the television. The mother attempted to gain possession of the USB but was prevented by the father. As far as the mother is aware, the father retains possession of the USB. Mother asserts have been numerous instances throughout the marriage where the mother has refused sexual intercourse with the father reacting violently.	M Aff (1) para 30 M Aff (1) para 31-35
17/12/2012	Father emailed mother an article about a child who had taken his mother’s gun and killed some children	M Aff (1) para 114
01/01/2013	Father went through first child’s draws and cupboards, upsetting her. Mother questioned father’s actions, he responded saying he was looking for his old phone	M Aff (1) para 62
January 2013	Mother commences home schooling for [Z], observing similar language deficiencies as in [Y] Both [Y] and [Z] suffer from Dyspraxia The father spends more time at home due to semi-retirement	M Aff (1) para 17
02/01/2013	The father purchased the [X]’s first mobile phone. He set the phone up so that her emails would be forwarded to his phone. On one occasion, the father blocked the child’s phone because she refused to come out of her room. The mother had to purchase another phone for her	M Aff (1) para 63
3/01/2013	Father took computer from the mother and children, claiming it belonged to the company. [X] had homework to do. The maternal grandmother intervened and took the computer back off the father to enable [X] to complete an assignment	M Aff (1) para 66
4/01/2013	Father said he was going to take the children camping. He packed the caravan and the two younger children were excited. The mother and [X] did not want to go. The father drove away with the boys. He returned 2 hours later. The mother had to attend the shops and left with [X] for 15 mins. Upon her return, the two younger children were crying hysterically.	M Aff (1) para 84
5/01/2013	Father would play with [Y] and [Z] in the backyard, though always favoured one over the other causing disharmony	M Aff (1) para 101
February 2013	The father attempted to hug and hold the mother and would not let her go. Mother asserts [Z] attempted to stop the father by pouring water on him. The water bottle scraped the father’s nose. The father became angry. The mother grabbed the two youngest children and took them to their room where she sat with her back against the door to prevent the father entering the room. The father gained access to the room, and the mother prevented the father from taking [Z]. She asked the father to leave, the father put his hands around her mouth and became angry. The father then left	M Aff (1) para 38
Early February 2013	The mother found listening devices in the lounge room and bedroom of the family home Mother also found a camera set up at the back of the house Mother had also located other listening and recording devices over past 5 years e.g. in a pen.	M Aff (1) para 45
July 2013	Father takes all 3 children bike riding, kayaking, tennis, soccer, cricket, jumping on a trampoline at home, riding go-kart and running almost every week. Mother states father has taken children on a 6km bike ride, which she says is beyond what they are capable of.	F, para 18 M, para 102
20/02/2013	Mother received an email from the father, attached with a story about an American news anchor charged with choking his wife
2/11/2013	Father wrote note to mother, stating “I will not claim custody on my kids. My spouse Ms Hilder can have them all”	M Aff (1) para 111
December 2013	Mother told the father she wanted to separate. Mother alleges that the father grabbed a knife and held it to his chest as though he was going to stab himself.	M Aff (1) para 122
February 2014	Mother told the father she wanted to separate. The father went to the lawn mower, removed petrol from it and poured it over himself. He was talking about Buddhist “Setting themselves on fire in protest”. He held a piece of burning paper as he did this. The mother removed herself and the children from the house.	M Aff (1) para 123
June 2014	Father wanted the mother to watch an ABC podcast detailing a father who had taken his young children out of Australia by yacht, believing their mother wasn’t providing sufficient care. The mother refused to watch the podcast, however the father turned up the volume so she could hear it. Around this time, the father was overheard telling the children he was going to take the boys away on a boat.
May/ June 2014	Father told the mother he was getting flying lessons. Comments were made to the mother and the children that the father was going to fly them away
21/06/2014 and 22/06/2014	Father became increasingly aggressive towards the mother, calling her a “fucking bitch” also claiming “the boys and I have lost all respect for you, I will get them to call you bitch as well”. Around this time, the mother overheard a phone call the father was making to the [Z]. The father was saying to [Z] “I’m alone and don’t have anything to eat”. The child suggested the father go to a restaurant. [Z] then began saving food for the father. The father also said to [Y] and [Z] “Mama doesn’t love me”, “I want to be with your Mama” and “I want the family to be together but your Mama doesn’t”	M Aff (1) para 88 M Aff (1) para 89  M Aff (1) para 90
24/06/2014	Instance of derogatory sexual comments made to the mother by the father. Mother was shown a photo of herself getting out of the shower which was taken without her consent. The father was asked to leave the home.	M Aff (1) para 40
7/07/2014	These proceedings initiated by the mother, seeking only orders for property settlement
21/07/2014	The father moved out of the family home after being served with the mother’s application	M Aff (1) para 48 F Aff (1) para 10
August- October 2014	Father states parties continue to contact each other at least once per day and on occasion for several hours.	F Aff (1) para 29
August 2014	Father spent unsupervised time with [Y] and [Z] on 15 occasions, with mothers consent Father asserts that at times, father stayed at the family home at mothers request	F Aff (1) para 31
September 2014	Father asserts he spent unsupervised time with the children on 11 occasions. At times, father stayed at the family home at mothers request	F Aff (1) para 32
12/09/2014	Family stayed together at [omitted] beach	F Aff (1) para 33
3 October 2014	Family spends the night at [omitted] Caravan Park	F, para 37
5 October 2014	Family spends the day at Jamberoo Action Park	F, para 38
October 2014	The mother discovered her personal computer had spyware installed on it	M Aff (1) para 45
Mid October 2014 – 01/11/2014	Mother and father agree upon the second and third children having contact with the father on weekends. Father asserts he spent unsupervised time with the children on 8 occasions	F Aff (1) para 35 F Aff (1) para 37
2/11/2014	Father supposed to spend time with the second and third children. Mother does not drop the children to the father and does not respond to contact	F Aff (1) para 36
9 November 2014	Mother contacts the father via telephone. Offers she and the children spend time with him for his birthday. The family goes shopping. The mother makes lunch at the [K] property. After 3 hours, the mother and children leave. The mother later contacts the father asking if he wished to spend the evening with her and the children. The father attends the family home for dinner, also staying the evening.	F Aff(1) para 40
15 November 2014	Children left with the father at the tennis court by maternal grandmother	F Aff (1) para 41
[date omitted] 2014	On [X]’s 14th birthday, her father made contact to say he had organised for her to see Peppa Pig in Sydney. [X] did not want to attend and the mother told her that she had to explain this to her father. [X] was visibly upset, with the mother taking the phone call and explaining to the father the child did not want to go. Eventually it was decided the father come to the residence for dinner	M Aff (1) para 68 F Aff (1) para 42
November- December 2014	Father spent unsupervised time with the children on 5 occasions	F Aff (1) para 43
November 2014 (late)	Father’s time with children ceased. Father asserts the mother said to him “[Mr Jessup] you need to take me to Court if you want to spend time with children. Why don’t you go back to [country omitted] for good”.	F Aff (1) para 44
December 2014	Father attempts contact with the mother on numerous occasions. Mother does not respond	F Aff (1) para 45
18/12/2014	Mother contacts the father stating she will bring the children for lunch on the 20 December	F Aff (1) para 46
20/12/2014	Mother does not take the children to spend time with the father. Father contacts the mother. Telephone discussions last 1hr. The father asks why the children were not dropped off and the mother responds “That’s just the way it is [Mr Jessup]” The father contacts the maternal grandmother to seek her assistance in forming a parenting agreement. The grandmother responds “[Mr Jessup], if you want to do good for the children never see them again. If you ever try to get access to children I will push Ms Hilder to get an AVO”	F Aff (1) para 46 F Aff (1) para 47
22/12/2014	Father contacts the mother explaining he has bought the children presents and asks to drop them to the family home. The mother agrees. The father attends the home, gives the children their presents. The father plays with [Y] and [Z]. Hugs and kisses the mother and [X].	F Aff (1) para 48
23/12/2014	The father contacts the mother requesting to see the children before she attends the maternal grandparent’s residence. She explains that she is at the shops at [K]. The father attends [K] Woolworths and sees the children.	F Aff (1) para 49
25/12/2014	Father attempts contact with the mother via telephone. She does not pick up. The father then sends a text message to the mother saying “When hope dies, everything in a person dies.” The mother responded “I am not here to give you hope”	F Aff (1) para 50
30/12/2014	Mother contacts the father via telephone stating she will allow contact for one day per week. Father argues, “Why not two days? We agreed on two days?” mother affirms, “No I will drop them off only one day a week”.	F Aff (1) para 52
3/01/2015	Father entered the mother’s house without invitation. He entered [X]’s room and said to her “Your mother does not want to be with me cause I cheated on her”. The mother responded “it’s not just that”. He further said to the child “Papa was only joking when he tipped petrol on himself and held the knife to his chest”. The child did not respond and the father left. The mother locked the home. The father got a ladder and leant it against the house and left a chocolate on [X]’s window sill. [X] will not go to bed without ensuring her window is locked.	M Aff (1) para 70-71
16/01/2015	The mother made contact with the police and an AVO made on her behalf against the father	M Aff (1) para 52
30/01/2015	Final AVO made naming the father as defendant and the mother and children as protected persons.	M Aff (1) para 52
March 2015	Father sent [X] a book titled ‘He’ll be OK’ and marked it with comments. Father also sent [X] a text stating the mother listened to “all bad advice from your nan”	M Aff (1) para 76
25 May 2015	At 8:30 am, the father took [Y] in his car. [Z] was distressed because his brother had left without telling him. The mother received a text 20 mins later from the father explaining he and the child were playing tennis, and invited the rest of the family to join. When the father returned with [Y] who said he had not wanted to play tennis. [Y] was upset at being removed from the house in such a way	M Aff (1) para 85-87