HINCH & McDOWELL

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINCH & McDOWELL

[2017] FCCA 3371

Catchwords:

FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101, (2010) 43 Fam LR 348

Eaby & Speelman [2015] FamCAFC 104
SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Applicant:

MR HINCH

Respondent:

MS MCDOWELL

File Number:

PAC 5891 of 2016

Judgment of:

Judge Newbrun

Hearing date:

6 December 2017

Date of Last Submission:

6 December 2017

Delivered at:

Parramatta

Delivered on:

6 December 2017

REPRESENTATION

Solicitors for the Applicant:

Mr Chapman of D J Chapman Solicitors

Solicitors for the Respondent:

East Coast Family Lawyers

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Sydney Central Family Law

ORDERS PENDING FINAL ORDER

The Respondent mother shall have sole parental responsibility for the children, X born (omitted) 2008, and Y born (omitted) 2012.
The father’s proposed interim parenting Orders sought in his Initiating Application filed 14 December 2016, and relating to his proposed interim Orders to spend time with the children, including proposed Orders 2-15, are dismissed.
The father’s proposed interim Order, in the alternative, that he spends supervised time with the children for two hours a fortnight at a Contact Centre on the (omitted) of NSW, such interim application having been made at the interim hearing on 6 December 2017, is dismissed.
The children shall spend no time and have no communication with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5891 of 2016

MR HINCH

Applicant

And

MS MCDOWELL

Respondent

REASONS FOR JUDGMENT

Introduction

This was an interim hearing relating to the children X, born (omitted) 2008, and Y, born (omitted) 2012.
The father has not spent time with the children since about 31 May 2014.
The mother was born (omitted) 1982. The father was born (omitted) 1972.
The father, on an interim basis, seeks to spend time with the children in accordance with the proposals set out in his case outline dated 20 November 2017. At the interim hearing, his solicitor, Mr Chapman, informed the Court that his alternate proposal was to spend supervised time, two hours per fortnight, with the children at a Contact Centre in the (omitted) area.
The mother and the Independent Children’s Lawyer (“ICL”) opposed the making of any interim Orders that the children spend time with the father.

Materials relied upon by the parties

The father relied upon his Case Outline and the documents referred to on page 5 of 13 of his Case Outline, comprising:
a)Initiating Application filed 14 December 2016
b)Notice of risk filed 14 December 2016
c)Affidavit of Mr Hinch filed 14 December 2016
d)Affidavit of Ms D filed 14 December 2016
e)Affidavit of Mr Hinch filed 28 August 2017
The mother relied upon her Case Outline and the documents referred to on page 4 of 4 of that case outline, comprising:
a)Response to Initiating Application filed 21 February 2017
b)Affidavit of Ms S filed 21 February 2017
c)Affidavit of Mr N filed 21 February 2017
The ICL relied upon her Case Outline dated 29 November 2017.
The Child Inclusive Conference Memorandum to Court dated 21 June 2017 was admitted into evidence and is Exhibit A.

Agreed facts unless otherwise stated

The parties commenced a relationship in about 2006.
During the relationship and since the parties’ separation, the mother was the primary carer of the children. The father asserts that by December 2012 the parties’ relationship had declined to a point that he was sleeping in the parties’ son’s bedroom with him. The father asserts that at about this time he started consuming excessive amounts of alcohol.
The father asserts that at the end of 2012, he was dismissed from his job because he attended work under the influence of alcohol. He asserts that he lost his income of $67,000 per year. He asserts that after the loss of his job, the parties’ relationship further declined.
The father asserts that in August 2013 the mother purchased alcohol for him knowing that he was addicted to alcohol.
The father asserts that in about August 2013, the parties separated.
After the parties’ separation and between August and December 2013, the father asserts that he saw the children briefly on 1 September 2013 and 13 September 2013. He further asserts that in early 2014 he saw the children briefly on 1 February 2014, 16 March 2014, 3 May 2014 and 31 May 2014. The father asserts he has had no time with the children since 31 May 2014.
The father asserts that as at 21 October 2016 he has been seeing Mr N, a psychologist at (omitted). He asserts in his Affidavit filed 14 December 2016 that he has been seeing Mr N for about 18 months.
The report of psychologist Mr N dated 28 November 2016, annexed to the father’s Affidavit filed 14 December 2016, is a three paragraphed, one page report from Mr N stating, inter alia, that the father is engaged in psychological treatment and has attended a number of sessions since 20 October 2015. He states that the father has demonstrated progressive adjustment and modification to his presenting issues and is not currently demonstrating any clinically significant symptoms. He further states that full remission has been warranted for the past three months evidenced by the father’s presentation, self report and normal scores, as measured by the depression, anxiety and stress scales (DASS).
Mr N recommends that:
the above mentioned be considered regarding any decision involving Mr. Hinch’s welfare and his capacity to fulfil his primary identified need of being an actively engaged father to his two children.
Annexed to the father’s first Affidavit filed 14 December 2016 is a chain-of-custody report dated 2 December 2016, being a negative urine drug test for numerous stated drugs referred to in that document. The report is actually a two-page document forming pages 35 and 36 of the Affidavit of the father.

Relevant legal principles

The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel (No. 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court on Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child and for those issues not to be ignored.
The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36 especially at paragraphs 46 to 52.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
Pursuant to section 60CA of the Act, in deciding whether to make a particular parenting Order in relation to a child, the court must regard the best interests of the children as the paramount consideration.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2) and (3).

The best interests of the children

Section 60CC considerations

Subsection (2)(a)

The benefit to the children of having a meaningful relationship with both of the child’s parents is a primary consideration. The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship. The mother has been the children’s primary carer from birth to date.
The child, X, appears to formerly have had a meaningful relationship with the father. It would also appear that the child Y born (omitted) 2012 had a meaningful relationship with the father, the Court noting that the parties physically separated in about August 2013 with the father thereafter only spending quite a limited time with the children in 2013 and 2014 leading up to the last occasion when he spent time with the children on about 31 May 2014.
It would appear that presently the children do not enjoy a meaningful relationship with the father, particularly by reason of the effluxion of time since last spending time with him.
Further, in relation to the child X, the Court refers to its discussion below under the need to protect primary consideration.
Prospectively, the children may benefit from a meaningful relationship with the father, provided that they are not exposed to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in his care.
As discussed below, under the need to protect primary consideration, the Court has some concern as to the real risk of emotional harm to the children if an interim Order is made as to spending time with the father and later the mother’s ultimate no-time Order is successful at a final hearing.
The potential benefit to the children having a meaningful relationship with the father should await final hearing at which the below discussed need to protect primary consideration issues can be determined.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2)(b), the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

The mother contends that the father perpetrated serious family violence against her during the relationship, including physical violence.
For example, in paragraph 29 of the mother’s Affidavit affirmed on 17 February 2017, she asserts that the parties had an argument about the father allegedly taking money from her wallet and that the father became angry and began throwing X’s walker and other toys around the room. The mother asserts that she was very afraid and cowered on the ground. She alleges that she was hit in the knees as the father swung X’s activities centre around in the air. In response to this particular allegation, the father states that he recalls getting upset because he was sick of being treated like he could not control his money and was being restricted from access to funds in the parties’ relationship, and he agrees that he threw X’s toys because he was frustrated and upset. He agrees that the mother was hit but he asserts he had no intention of hitting her. He asserts that it was an incident he deeply regrets.
Another example is paragraph 50, 51, 52, and 53 of the mother’s Affidavit where she asserts that on a date in January 2012 (the Court interpolates here that the eldest child, X, was then aged about four years), the parents were standing together in the kitchen. The mother asserts that she was standing in the middle of the kitchen leaning against the bench and the father was about one metre away from her. She asserts that the child, X, was a few metres away from the parties in the front lounge room. The mother asserts the father was hassling her for money to buy alcohol. She asserts that the father threatened her, saying, “Give me some money or I’m going to get angry” and “don’t fucking piss me off, I’m not playing”.
The mother asserts that she noticed then that X had moved towards the kitchen and was standing outside the study, watching the parties. In response to these particular assertions, the father states that he recalls being in the kitchen, he does not recall asking the mother for alcohol and he does not remember the conversation as asserted by the mother. He also states he does not remember the child X being nearby.
In paragraph 51 of the mother’s Affidavit, she asserts that the father then opened the kitchen drawer and reached his hand in to where the knives were. She asserts that the father threw two or three knives at her, but she cannot be sure how many. The mother asserts that she yelled out and began moving away towards the laundry door, which was locked. She asserts that the father came at her and pushed her up against the door. She asserts that the father grabbed her face with his right hand, breaking her glasses and the necklace she was wearing, and held a knife up to her chin with his left hand. The mother that asserts she was saying, “Mr Hinch, stop! What are you doing?”. In response to paragraph 51 of the mother’s Affidavit, the father asserts, inter alia, that he recalls being in the kitchen; he recalls grabbing a steak knife; he held the knife in the mother’s direction; the mother was about one metre from him; he then threw the knife down and grabbed the mother. He agrees that he pushed the mother up against the door; he agrees that he grabbed the mother around the face area; he agrees that he broke her glasses and necklace; he denies holding a knife up to her chin; and states that his behaviour was inappropriate and wrong.
In paragraph 52 of the mother’s Affidavit, she asserts that the child X came running towards her and was crying. She asserts that the father lowered the knife and let go of her face. She asserts that she picked the child X up in her arms to protect him. The mother asserts she began begging the father to leave, repeating, “Just leave, please just leave” but he refused. The mother asserts that she then said, ““Will you let us leave?” “Just let X and I go”” and he eventually let them pass.
In relation to this paragraph 52, the father asserts in reply that, inter alia, he does not remember the child X crying, he was not holding the knife when the child X came in, he recalls walking away, he did not leave the house, he totally regrets his actions which were very serious and a serious form of domestic violence, and he has no excuse for his behaviour but he would like to say that he felt that the parties’ relationship was falling apart, he was being deprived of any financial support, his sexual relationship had come to an end, and he was sleeping in another room. He further asserts in respect of domestic violence that he has completed the “Facing Up” program at (omitted).
In paragraph 62 of the mother’s Affidavit, she asserts that she finally made the decision to end the parties’ relationship in late July 2012, when she told the father that their relationship was over. She asserts that she could no longer handle the father’s drinking or his behaviour. The mother asserts that when she told the father they were over, the father threatened her, saying, “If you try and take the kids from me, I’ll kill you. If I don’t kill you, I’ll kill them and then myself. One way or another, we’ll be together.”
In response to this paragraph 62, the father asserts that he does not recall the mother telling him that their relationship was over, he denies threatening to kill the mother, he denies threatening to kill the children and he denies the alleged conversation.
The mother makes further assertions of the father having threatened to kill her or himself and the children. For example, in September 2012, the mother asserts that the father was terminated from (employer omitted) for drinking at work. In response to this allegation, the father agrees he was terminated for drinking at work, but he denies the suggestion that he threatened to kill the mother and the children.
In paragraph 79 of the mother’s Affidavit she alleges that the father, in about early July 2013, followed her, yelling, “Don’t take my fucking son”. She asserts that the father then grabbed X’s legs to try and pull him from her. She asserts that she didn’t want X to get hurt, so she put him down. The mother asserts that, as soon as she put X down, the father started taking swings at her but he was very unsteady on his feet. The mother asserts that she was able to move out of the way so that the father did not make contact with her body, aside from the edge of her wrist. The mother asserts that she was cowering at the front door and the father yelled at her, “I’m going to slit your fucking throat”. The mother asserts that she then started screaming out, “Help. Help. Someone call the police”, in the hope that a neighbour would hear her and call the police.
In paragraph 80, the mother asserts that, once she started screaming, the father grabbed the child X and walked away. The mother asserts that she called the police and hid in her room, waiting for them. She asserts that, after about 20 minutes, she realised she could not hear anything, tiptoed through the house to check where the child X was, and called the police but then told them not to come anymore, because the father was asleep and she didn’t want to aggravate him.
In response to these allegations in the mother’s Affidavit, the father states that, inter alia, he does not recall being intoxicated, he recalls that he confronted the mother and took the child X off her, he does not recall pulling her leg, he thinks he tried to slap the mother but he missed, he does not recall threatening to slit her throat, he recalls that the mother was calling out and he regrets the events (in paragraph 79 of the mother’s Affidavit) and states that obviously his behaviour was inappropriate at that time. In relation to paragraph 80 of the mother’s Affidavit, the father states that, after the incident with the mother, he went to bed with X.
The mother asserts that, within a week of the above incident in early July 2013, she was visited by the police and she spoke with police officers more openly about her relationship with the father. She asserts that the police were supportive and provided her with pamphlets about help for victims of domestic violence. She refers to an application for an Apprehended Domestic Violence Order (“AVO”) dated 23 July 2013, being annexure D to her Affidavit. In response to paragraph 82 of the mother’s Affidavit, the father agrees that the mother took out an AVO on him.

The mother asserts in paragraph 87 of her Affidavit that she started receiving, at a certain time in late August 2013, sexually explicit text messages from the father. They are set out in annexure E to the mother’s Affidavit. In response to these allegations, the father states, inter alia, that he regrets the text messages that he sent to the mother.
In paragraph 89 of the mother’s Affidavit she asserts that on the night of 21 August 2013, the night before she was due to appear in Court, she was lying in bed, watching television. She asserts that the father came into her room and started walking towards her bed. She asserts that the father was looking at her strangely and the mother said to him, “What are you doing?”. She asserts that the father didn’t say anything and kept walking towards the bed. She alleges that he came over next to her side of the bed and pulled back the bedsheets. She asserts that she moved towards the other side of the bed to get away and then the father sat down on the bed and tried to put his arm around the mother. The mother asserts that she began panicking and tried to crawl out of the bed. She asserts that the father then grabbed her ankle and pulled her towards him. The mother states that she was very frightened and she tried to wriggle out of the father’s grip. She asserts that she ended up on her back and the father grabbed the waistband of her pyjama pants and started trying to pull down her pants. At this point, the mother asserts, she screamed, “Get out. Get out. I’m calling the police”. She asserts that the father immediately let go of her and walked out of the room. In response to this paragraph and assertions, the father states that he regrets his actions. He denies trying to pull the mother’s pants down. He asserts that he wanted to say that he still loved the mother at this point.
In paragraph 90 of the mother’s Affidavit she asserts that, immediately following this incident on 21 August 2013, she ran to her bedroom door and locked it. She asserts that the father stood on the other side of the door and said, “Now is the time for my hooker. If you don’t get me one, I’m coming for you”. The mother asserts that she called the police and then locked herself in the bathroom for a period of around two hours. She asserts that, during this time, the father kept coming back to the bathroom door and threatening to sexually assault her. He kept, according to the mother, calling her and sending her explicit text messages. On the advice of the police, the mother asserts, she replied to one of the father’s texts, saying she had organised a prostitute for him, in an attempt to calm him down. She annexes a copy of those text messages in annexure F to her Affidavit.
In paragraph 91 of the mother’s Affidavit she states she was terrified while she was waiting for the police in the bathroom and she called the police another two times, asking that they hurry, as the father’s behaviour was escalating. When the police arrived, the mother spoke with them and they placed the father under arrest. She annexes to her Affidavit annexure G a copy of a Provisional Order (Ex-Parte) Apprehended Domestic Violence Order dated 22 August 2013.
In paragraph 92 of the mother’s Affidavit she asserts that, at about 3am, she received a call from the father who yelled at the mother words to the following effect:
You fucking cunt, I had to spend the night in a cell because of you. You stupid fuckwit. You think that was smart? All you’ve done is piss me off. I’ve killed people for less. I’m going to kill you – I’ve done it before.
In response, the father states that he denies the words in paragraph 90 of the mother’s Affidavit, alleging that he said to the mother words to the following effect: “You are having sex. Get my [sic] a prostitute so that I can have sex”. He denies saying that he would sexually assault the mother, he doesn’t know when the mother spoke to the police about organising a prostitute for him, the mother did not organise a prostitute for him, he agrees that the police took him away and he agrees that the police put an AVO on him.
In paragraph 124 of the mother’s Affidavit, she asserts that the child X and herself had not spoken much of the father. She states that the child X generally does not want to talk about the father. The mother states that occasionally X will bring up the father in a conversation but it is normally after he has had a nightmare or has recalled a bad memory. The mother states that X gets very distressed and shows physical signs of stress, such as shaking and shortness of breath when he talks about the father. The mother states that X has told her that he remembers the father trying to pull him away from the mother and threatening the mother with a knife.
The mother states in paragraph 125 of her Affidavit that following a Court date in August 2013 she recalls thirteen occasions when the father spent time with the children, and all of these visits were supervised. In paragraph 126 the mother states that she also offered a further six occasions for the father to spend time with the children and the father either declined or did not reply.
In paragraph 127 of her Affidavit the mother asserts that, on 22 February 2016, following the expiration of the AVO, the father asked the mother if she would enter into a parenting plan for him to spend time with the children. The mother asserts that she told the father that she did not think it was it the children’s best interests to have contact with him. The mother states that, after she received the email, she said to X, “How would you feel about seeing Mr Hinch again?” The mother asserts that X became upset and said, “No. I never want to see him again”.
The Court refers to the Child Inclusive Conference Memorandum to Court, Exhibit A, dated 21 June 2017. This Memorandum refers to the Child Inclusive Conference held on 15 June 2017. The parents were interviewed separately, and the eldest child, X was interviewed, but the child Y was not interviewed.
In that Memorandum, the father described to the family consultant being aggressive towards the mother and reported one instance of throwing a chair across a room. He added that the mother had also, in the past, told him that at one point he had held a knife against her.
Later in the interview, the family consultant states that the father volunteered that he remembered that the mother was holding the child X while he threatened her with a knife. The father also reported to the family consultant that, towards the end of the parties’ relationship, he had become more aggressive towards the mother and described his behaviour as “yelling, screaming, grabbed her, probably scared her”.
At this conference the mother reported to the family consultant significant controlling and coercive behaviour from the father towards herself. She stated to the family consultant that the aggression was always in the context of alcohol, either because the father was intoxicated or because he was demanding that she provide him with money to buy alcohol.
The mother reported to the family consultant that, on one occasion, the father had become aggressive towards her in front of the child X, when the child X was about four years old. She said that on this occasion she had contacted the police and the police took out an Apprehended Violence Order and also advised the mother that they would be making a child protection report and that this is when the mother realised that things were serious. The mother asserted that this happened in July 2013.
The mother told the family consultant that she has had no contact with the father for three years but is concerned about the father’s capacity to control his alcohol intake and the effect that this has on his behaviour.
The mother raised concerns with the family consultant about the father’s drinking, stating that she did not trust that the father would stop abusing alcohol. She said to the family consultant that it is her experience that the father has a poor capacity to avoid consuming alcohol and that he has in the past neglected the children in order to drink. She gave a certain example in relation to the child Y in this context. The mother also raised concerns with the family consultant about the father’s claim that he had stopped abusing alcohol, asserting that he has, on multiple occasions, abstained for a period of months, sometimes with the aid of medication, but would always revert to alcohol abuse, and she alleged that, while under the influence of alcohol, the father was aggressive and cannot be trusted to look after the children.
The father stated to the family consultant that he has in the past used alcohol to self-medicate. He further stated that he is currently only consuming one or two beers once or twice a week and that he is also considering using medication such as Antabuse to stop drinking.
According to the family consultant, both parties described there was no current co-parenting relationship.
The mother asserted to the family consultant that having to deal with the father again is likely to cause her significant distress and anxiety about the children’s welfare.
The mother told the family consultant that the children were developing well and doing very well academically and socially. She stated that the child Y is not aware that her current husband, Mr N, is not her biological father. She stated that the child X does remember the father and at present has to keep this information from his sister Y.
The mother voiced concern about the child X’s reaction to the current proceedings. She stated that he becomes distressed and cries at the thought of having to have contact with the father, and that X has told her he remembers being dragged by the father, being made to call the mother a “bitch and a slut” and being asked by the father to “leave his bedroom window open at night”. The mother had added to the family consultant that the child X has expressed to her a wish that he were Mr N’s son.
When the child X was collected from the childcare room by the family consultant, he was observed to be relaxed, playing a game as the family consultant entered the room. However, as he got up to follow the family consultant, his body became tightened, and he walked towards the family consultant’s office in a tense manner, wringing his hands in front of him, with a concerned expression on his face. The family consultant said to the child X that he looked nervous, and the child X replied that he was scared, because he didn’t want to see the father. The family consultant explained to X about the process of the Child Inclusive Conference and that he would not be seeing the father at the Court today. Once the process was explained to X, he appeared to become more relaxed. The family consultant referred to X being a nine year old boy currently in year 4.
Inter alia, when the family consultant asked X about the father, the child X was observed to go quiet, and then his eyes became teary. When the family consultant asked X how he was feeling, he replied, “Thinking about him (the father) makes me sad, because I remember really bad memories, bad things could happen”. The child X reported to the family consultant several memories of him witnessing the father being violent towards the mother. For example, he described seeing the father throw a knife at the mother and later threaten her with a knife, as the child X tried to intervene by placing himself between the mother and the father, and hearing the father threaten to kill them. He stated that following this event he and the mother went to sleep at Nanna’s house. X stated to the family consultant that he has heard the father call the mother a “fucking slut, and fucking bitch, and you’re a fucking retard” while they were living together and also recalled being asked by the father to stand outside of the mother’s room and call her rude names. The child X describes to the family consultant several instances of the father being aggressive towards him, such as one time when the child X spilled some orange juice. The child X reported that he was afraid of making the father upset, because the father would get “really mad”, but the child X was unable to describe what the father would do at these times.
The child X told the family consultant that he did not want to have any contact with the father, because he did not want anything to happen to the mother or Y and himself. He said he is “scared of something like the knife thing and (he) can’t stop it, so (he) might actually be dead.”
Under the heading “Future directions” the family consultant stated, inter alia, that, given the significant allegations of family violence, it might be in the children’s best interests for the Court to consider the veracity of the allegations prior to the making of Orders that may facilitate the re-establishment of a relationship between the father and the children. She further stated that should the Court find that re-establishing the relationship between the father and the children is in the best interests of the children, a supervision centre could be of help to minimise anxiety in the children and the parties.
At this interim stage, the Court has concerns in relation to the children spending unsupervised or supervised time with the father.
In relation to the children potentially spending unsupervised time with the father, the Court’s concerns arise cumulatively from, inter alia:
·The risk of the children being exposed to abuse, neglect or family violence, in particular by reference to the father’s acknowledged alcohol problem and the lack of significant evidence presently before the Court that the father has adequately addressed this alcohol issue;
·The significant risk of the child X experiencing emotional harm in spending time with the father, taking into account the mother’s assertions of what this child has told her in relation to the prospect of spending time with the father, X’s arguable recollection of the knife incident, and taking into account X’s comments to the family consultant at the Child Inclusive Conference in relation to the prospect of spending time with the father, including the family consultant’s physical observations of X at certain times during the Child Inclusive Conference;
· The significant risk of emotional harm to the children if they were to begin spending time with the father on an interim basis, but then later, if the mother’s final proposed parenting Order seeking a no time Order between the children and the father was made;
·The significant risk that should the children begin to spend time with the father, the mother would experience significant distress and anxiety about the children’s welfare, with potential adverse effects upon her parental capacity of the children (and noting in this context the mother’s statements to the family consultant at the Child Inclusive Conference).
In the view of the Court, at this interim stage, there is an unacceptable risk of the children being exposed to family violence should they begin to spend unsupervised time with the father. There is a need to protect the children from the risk of exposure to abuse, neglect or family violence in spending unsupervised time with the father.
The Court also has concerns in relation to the children spending even supervised time with the father at this interim stage. In this context, the Court’s concerns arise cumulatively from, inter alia:
·The significant risk of emotional harm being caused to the child, X, were he to spend supervised time with the father (and, in this context, the Court again refers to the mother’s assertions in relation to the child X’s statements to her about the prospect of spending time with the father, and the child X’s comments to the family consultant at the Child Inclusive Conference);
·The significant risk of emotional harm to the children were they to begin to spend supervised time with the father on an interim basis, and later, following the final hearing of the parenting proceedings between the parties, the Court were to accede to the mother’s final parenting proposal that the children spend no time with the father;
·The significant risk that the mother may experience significant distress and anxiety about the children’s welfare and having to deal with the father again (and, in this context, the Court refers to the mother’s statements to the family consultant at the Child Inclusive Conference).
In relation to the father’s alternative proposal that the children spend supervised time with him, and his primary proposal that, at least initially, the children spend supervised time with him, supervised by the paternal grandparents, the father refers to the Affidavit of the paternal grandmother, Ms D, filed 14 December 2016. The father submits that this Affidavit of the paternal grandmother, inter alia, indicates that the paternal grandmother is a woman of good character, that she is a sound grandmother to her other grandchildren, and that she is willing to be the father’s supervisor with the children. The Affidavit also sets out the paternal grandmother’s understanding of the responsibility of a supervisor. The Affidavit does not refer in any manner to the mother’s allegations of family violence made in these proceedings. Nor does it refer to the father’s alcohol problem.
At the interim hearing, the father submitted that, inter alia, when the Court sought submissions from the father in relation to the child X’s statement both to the mother and to the family consultant in relation to the prospect of spending time with the father, prospectively the Court could make an Order that at least the mother be directed, perhaps through family therapy or otherwise, to speak positively to this child in particular, if not both children, about the father. In submissions in reply on this point, the mother’s solicitor submitted that the benefit of such a proposed Order was “a hope at best.”
In this context, the Court refers to the mother’s evidence, particularly paragraph 135 of her Affidavit, that she seeks that the father not have any contact with the children. The mother believes that the father’s Affidavit demonstrates that he is in denial about his drinking problem and the instances of domestic violence that occurred during the relationship, that it appears that the father still has not received any help or attended rehabilitation for his alcohol abuse, and that the father lacks insight into the effect of his alcohol abuse and domestic violence on the children and his relationship with the children. In these circumstances, the Court is of the view that a prospective Order requiring, at least, the mother to speak positively about the father to the children would not, at least at this interim stage, and on the present material before the Court, be in the best interests of the children.
The Court also makes the same comments in relation to a further submission from the father’s solicitor that if the parents work together, any prospective emotional harm to the children can be ameliorated. Again, there is some force to the views and beliefs of the mother, as stated above, that in circumstances where the mother believes that the father is presently in denial about his drinking problem and the instances of domestic violence that occurred during the relationship, the father lacks insight into the effect of his alcohol abuse and domestic violence on the children and his relationship with the children.
The Court should state, from the totality of the father’s evidence adduced at this interim hearing, that there is some force to both the mother’s beliefs as expressed in paragraph 135 of her Affidavit and also in the mother’s solicitor’s submission that it is strongly arguable that the father lacks insight into the effects of his alcohol abuse and domestic violence on the children and his relationship with the children.

The father, through his solicitor, also submitted at the interim hearing that, by reference to paragraph 343 and paragraph 401 of the father’s Affidavit filed 28 September 2017, together with the annexed photographs of father with the children, including a photo of the father with the child X, at separate occasions in August 2013 and on 31 May 2014, those photos showing the children being happy in the presence of the father, that the nature of those photographs relevantly diminishes the child X’s alleged statements to the mother about the prospect of him spending time with the father and diminishes the substance of the child X’s remarks to the family consultant about the prospect of spending time with the father. With respect, in the view of the Court, the nature of those photographs, taken at the particular time they were taken, does not impact on the Court’s significant concerns previously addressed under the need to protect primary consideration. In the view of the Court, the nature of these photographs are not necessarily inconsistent with the child X’s alleged remarks to the mother regarding the prospect of spending time with the father or his statements to the family consultant including the family consultant’s observations, physical observations, of the child X at the Child Inclusive Conference.
Again, the Court is of the view, at this interim stage, that there is a need to protect the children from the risk of emotional harm should they even spend supervised time with the father on an interim basis.
The Court gives significant weight to this need to protect primary consideration (and notes that pursuant to section 60CC(2A) of the Act, the Court is to give greater weight to the need to protect primary consideration than the meaningful relationship primary consideration).

Subsection (3), additional considerations:

(a) Any views expressed by the children

The Court refers to the views of the child X as allegedly expressed to the mother in relation to the prospect of spending time with the father, and also this child’s statements to the family consultant at the Child Inclusive Conference. The Court notes the age of X – he was born on (omitted) 2008. When X spoke to the family consultant on 15 June 2017, he was about nine years and five months. The Court notes the child Y has not presently expressed any views, again noting that apparently – according to the mother – she is not aware that the father is her biological father. In all the circumstances, again whilst taking into account the fairly young age of the child X, but taking into account the arguable similarities in the child’s views as allegedly expressed to the mother about the prospect of spending time with the father, and his views as expressed to the family consultant, the similarity in the mother’s assertions as to the negative physical reactions that the child X exhibits when discussing the prospect of spending time with the father, when set against the similar negative physical reactions observed in X by the family consultant at the Child Inclusive Conference, the Court gives significant weight to the views of X in relation to the prospect of spending time with the father. It is of particular significance that the child X still, it would appear, has memories of the knife incident, noting that that incident occurred in his presence when he was some four years of age and he still recalls this incident when discussing the matter with the family consultant in June this year.

(b) The nature of the relationship of the children with each of the children’s parents and other persons

The Court refers to its discussion about the meaningful relationship primary consideration.
The Court notes the Affidavit of Mr N, the mother’s new partner, who states, inter alia, that he and the mother were married on (omitted) 2015 and they had a daughter, A, who was born on (omitted) 2015. He states that he considers the child X and the child Y to be his own children and both children refer to him as “Dad”.
The Court notes the Affidavit of the paternal grandmother filed 14 December 2016, and notes that the paternal grandmother states that the last time she had contact with the children was in 2014 when the mother took the children to McDonald’s for a period of about 10 minutes. She states that prior to 2014, she saw the children on some occasions when the father took them up to their home. She states that the children also saw their cousins in the paternal grandmother’s area and they had a great time together. She states that, unfortunately, this relationship has declined over the past two years.

(c) The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend with the children and to communicate with the children

Each party asserts that they have taken such opportunities, although the mother asserts that on certain occasions post-separation the father declined her offers to see the children or did not show up to their arranged meeting places.

(ca) The extent to which each of the children’s parents fulfilled, or failed to fulfil, the parents’ obligations to maintain the children

The mother asserts that the father did not pay any child support until April 2014, after the Child Support Agency started garnisheeing his wages. She says she currently receives just over $15 a fortnight in child support for both children. In response, the father asserts that he had asked the mother to go through child support and have them assess him and he would pay the assessment. He asserts that the mother wanted cash in hand so that she would not have to disclose the money. He asserts that the mother received a sum of about $4,000 from the father’s tax return at this time. It would appear that the mother has fulfilled her obligations to maintain the children.

(d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other children or other person with whom he or she has been living

The Court refers to its discussion above under the meaningful relationship and need to protect primary considerations.

(f) The capacity of each of the children’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The mother would appear to have such capacities. As for the father’s capacities to provide for the emotional needs of the children, the Court refers to its discussion above under the need to protect primary consideration, and also notes its discussion above under the meaningful relationship primary consideration. In this context, the Court notes the photos annexed to the father’s Affidavit filed 28 September 2017 showing him being physically affectionate to the children. There is little material presently before the Court as to the father’s capacities to provide for the intellectual needs for the children.

(g) The maturity, lifestyle, sex and background of the children and of either of the children’s parents, and any other characteristics of the children the Court thinks are relevant

According to the mother, the children are progressing well.

(i) The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

The mother, as the primary carer of the children from birth to date, has demonstrated appropriate attitudes and discharged her parenthood responsibilities diligently. The Court refers to its discussion above under the need to protect primary consideration, relating to the father perpetrating family violence against the mother in the presence of at least the eldest child.

(j) Any family violence involving the children or a member of the children’s family

The Court refers to its discussion above under the need to protect primary consideration.

(k) Family violence orders

The Court refers to the mother’s Affidavit referring to the issuing of previous interim and final Apprehended Domestic Violence Orders against the father for the benefit of the mother.

(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 children

In the view of the Court, at this interim stage, the mother’s interim parenting proposals, compared to the father’s interim parenting proposals, would be least likely to lead to the institution of further proceedings in relation to the children.

Parental Responsibility

The father seeks an interim Order that the parties have equal shared parental responsibility for the children. The mother seeks an interim Order that she has sole parental responsibility for the children. The family consultant in the Child Inclusive Conference memorandum of 21 June 2017, Exhibit A, states, inter alia, that both parties describe there is no current co-parenting relationship. The family consultant also states again, that the mother stated that having to deal with the father again was likely to cause her significant distress and anxiety about the children’s welfare.
The father has not spent time with the children since 31 May 2014, and even before then, and following the parties’ separation, had spent fairly limited time with them. The mother has been the primary carer of the children from birth to date.
Again, the Court refers to the mother’s Affidavit evidence including at paragraph 135 of her Affidavit where she states, inter alia, that she believes the father’s Affidavit demonstrates he is in denial about his drinking problem and the instances of domestic violence that occurred during the relationship, that the father still has not received any help or attended rehabilitation for his alcohol abuse (the Court interpolates here that there is scant evidence presently before the Court in this interim hearing relating to steps the father has taken to rehabilitate himself in relation to his alcohol issue), and her belief that the father lacks insight into the effect of his alcohol abuse and domestic violence on the children and his relationship with the children.
One can infer from the mother’s evidence, just stated, in paragraph 135 of her Affidavit that she does not trust the father, in particular in the context of his drinking problem. In the view of the Court, at this interim stage, it would be in the best interests of the children that the mother have sole parental responsibility for the children.
It is unnecessary for the Court to consider equal time or substantial and significant time by reason of the father’s admitted perpetration of historical family violence towards the mother and, on at least one occasion, in the presence of the eldest child.
The Court is of the view at this interim stage that it would not be in the best interests of the children that the Court make proposed Order 6 in the father’s Case Outline relating to telephone communication with the children. In this context the Court refers to its discussion above under the need to protect primary consideration. In particular, the Court has concerns that emotional harm could well be caused to the children should the father be permitted to have telephone communication with them as sought.
In relation to proposed Orders 9, 10, 11, 12 and 13 of the father’s Case Outline, the Court is not satisfied on the material before it that it would be in the best interest of the children to make such Orders. In this regard, the Court again refers to its discussion above under the need to protect primary consideration, including the mother’s statements to the family consultant that having to deal with the father again was likely to cause her significant distress and anxiety about the children’s welfare. The Court also refers to its discussion above in relation to parental responsibility.
In relation to the father’s proposed non-relocation Order, the Court is presently not satisfied on the material before it that it is in the best interests of the children to make such an Order, and in any event, the material put before the Court in this issue was scant.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 13 March 2018

[2017] FCCA 3371

6 December 2017

Key Legal Topics

Areas of Law

Family Law