HINCH & MCDOWELL (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINCH & MCDOWELL (No.2)

[2019] FCCA 863

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

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

Applicant:

MR HINCH

Respondent:

MS MCDOWELL

File Number:

PAC 5891 of 2016

Judgment of:

Judge Newbrun

Hearing dates:

25, 26 and 27 February 2019

Date of Last Submission:

27 February 2019

Delivered at:

Parramatta

Delivered on:

8 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Cairns

Solicitors for the Applicant:

D J Chapman Solicitors

Counsel for the Respondent:

Mr Rugendyke

Solicitors for the Respondent:

East Coast Family Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Shea

Independent Children’s Lawyer:

Legal Aid NSW Sydney Central Family Law

ORDERS

The Respondent mother shall have sole parental responsibility for the children, [X] born … 2008, and [Y] born … 2012.
Subject to Order (3) below, the children shall spend no time and have no communication with the father.
The father be permitted to send letters, cards and/or gifts to the children on their birthdays and at Christmas time, provided such items are sent by the father to a post office address, to be supplied by the mother to the father within 14 days of the date of these Orders, and not to the mother’s residential address.

IT IS NOTED that publication of this judgment under the pseudonym Hinch & McDowell (No.2) 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 final parenting hearing relates to the children [X], born … 2008, and [Y], born … 2012.
The father has not spent time with the children since about 31 May 2014.
The mother was born … 1982. The father was born … 1972.
The father seeks to spend time with the children in accordance with the proposals set out in his Amended Initiating Application filed 1 February 2019; he seeks to initially spend supervised time with the children graduating ultimately to unsupervised overnight time.
The mother and the Independent Children’s Lawyer (“ICL”) opposed the father’s proposed Orders. They proposed that the children spend no time with the father.
The father sought equal shared parental responsibility whereas the mother sought sole parental responsibility.

Materials relied upon by the parties

The father relied upon his Case Outline filed 18 February 2019 and the following documents:
a)Amended Initiating Application filed 1 February 2019;
b)Affidavit of Mr Hinch filed 29 February 2019;
c)Affidavit of Ms A filed 28 June 2018.
The mother relied upon her Case Outline filed 18 February 2019 and the documents referred to on page 2 of that Case Outline, comprising:
a)Response to Initiating Application filed 21 February 2017;
b)Affidavit of Ms McDowell filed 1 February 2019;
c)Affidavit of Mr B filed 1 February 2019.
The ICL relied upon her Case Outline dated 21 February 2019 and the following documents:
a)The Child Inclusive Conference Memorandum to Court dated 21 June 2017;
b)Family report of Mr C dated 28 March 2018;
c)ICL’s outline of submissions dated 27 February 2019;
d)ICL’s list of authorities dated 27 February 2019.

Credit and reliability

The mother asserted that the father had perpetrated very serious family violence against her in the presence of one or both of the children, particularly at times when he was significantly intoxicated. The father’s recollection of several of these events was poor by reason of his conceded intoxication. Further, in relation to such assertions of the mother, the father’s Affidavit responses were often that he could “not recall” the alleged event. Further, the father gave conflicting affidavit evidence when contrasted with his cross examination evidence. For example, in relation to the events of 21 August 2013, when the father physically confronted the mother in her bed and the mother locked herself in the bathroom and called the police, during which time the father sent text messages to the mother, the father stated in his Affidavit at paragraph 414 that as far as he could recall he had not been charged with any criminal matter by the police. In fact, the father had been convicted of an assault with act of indecency; stalk/intimidate intend fear physical etc harm (domestic); and use carriage service to menace harass/offend. The Court had imposed a section 9 bond with the father to remain in treatment with Dr D for no less than twelve months for the first offence, a section 9 bond for the second offence, and a fine for the third offence. However, in cross examination he stated, inter alia, that he did recall being convicted of the charge of use carriage service to menace and pleading guilty to criminal charges arising out of the incident. He stated that he did not realise he had to state the fact of conviction in his Affidavit.
Where the mother’s evidence is in conflict with the father’s evidence, the Court prefers the evidence of the mother.

Evidence

The Court now refers to various findings of fact. The Court also refers to various findings of fact, later in these Reasons, during its discussion of relevant considerations under section 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The mother is 37 years of age. The father is aged 46 years.
The parties commenced a relationship in about 2006. The parties separated in July 2012 and remained living under the same roof until August 2013, when the father moved out of the family home.
During the relationship and since the parties’ separation, the mother was and has been the primary carer of the children.
At the outset of the parties’ relationship, the father told the mother that he had committed four drink driving offences in the past and that his mother looking after his money limited his access to his money, which limited how much he could drink.
At about the time the parties began living together, the mother noticed that the father drank a lot of alcohol.
In May 2007 the father told the mother that he had been sent home from work because his employer believed he was drinking on the job.
At about the time of commencement of living together, the mother told the father that she thought he needed to stop drinking. The father then verbally abused the mother. At about this time the mother noticed that the father was taking cash from her wallet without her permission. Later the father admitted to the mother that he had been taking money from her wallet.
After the mother’s baby shower, held in … 2007 when she was seven months pregnant, the father verbally abused the mother and started throwing things around the kitchen and family room. He picked up a stool and threw it at the glass door, causing the stool to break. The mother was afraid and very upset. She went to the parties’ bedroom and cried.
The parties’ son [X] was born in … 2008. Following the mother taking two months of maternity leave, the father took three months' paternity leave from his position at Employer. He returned to work in … 2008. The mother continued to manage the parties’ finances and provided the father with a weekly allowance. She continued to lock her wallet in her car and hide the keys to prevent the father from taking extra money. The father continued to drink alcohol a lot and come home drunk, but the mother could not establish how the father was buying alcohol.
In about 2010, the mother believed the father was drinking alcohol a lot. The mother questioned the father about how he was accessing alcohol the father refused to tell the mother. The mother noticed that there had been withdrawals coming from their bank account, which only the mother had the card for. The mother confronted the father about this and the father said that he had been going into the bank and doing over-the-counter withdrawals by showing his driver’s licence, and that he would then spend the money on alcohol. After this, the mother went to the bank and changed the settings on their account so that there could be no over-the-counter withdrawals.
In about October 2011 the father admitted to the mother that he had refunded certain nappies that had been purchased by the mother for the children and used the money to buy alcohol. The mother confronted the father, telling him he was an alcoholic, to which the father admitted that he was an alcoholic, and that he had tried Alcoholics Anonymous and other measures without success.
In about January 2012, in the parties’ kitchen, the father began to hassle the mother for money to buy alcohol. He verbally threatened the mother. The child [X] was watching the parties. The father then opened the kitchen drawer in which the knives were stored and reached his hand in. He threw two or three knives at the mother. The mother yelled out and began moving away towards the laundry door. The father came at the mother and pushed her up against the door. He grabbed the mother’s 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 child [X] came running towards the mother and was crying. The father lowered the knife and let go of the mother’s face. The mother picked up [X] to protect him. The mother began begging the father to leave but the father refused. Eventually the father let the mother and [X] pass. The mother put [X] in the car and she drove herself and [X] to her mother’s residence. The mother was very distressed and upset but mostly afraid.
In about late February 2012 the father told the mother that he was suspended from his employment due to suspicions that he was drinking alcohol during his shifts and working under the influence of alcohol. The father told the mother that he had been stealing alcohol from his employer. A short time later the father was dismissed from his employment due to his drinking.
At about this time the father was admitted to a detoxification facility for ten days.
In about May 2012 the mother observed that the father had been drinking alcohol as she could smell alcohol on his breath. The mother confronted the father asking him why he was drinking again. The mother said to the father that she thought that after the father lost his job he realised how serious his drinking was and that he had a problem. The father replied to the mother, “I can’t just not drink … I need to drink something.”
By July 2012 he was drinking heavily again. The mother was not purchasing the father any alcohol and she was controlling the finances. The mother decided to end the parties’ relationship at about this time. She confronted the father with her decision. The father then verbally threatened the mother, stating, “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 … 2012, the father was terminated from his employment for drinking at work. When the father told the mother that this had occurred, the mother gave the father an ultimatum that if he did not seek help for his drinking problem, she would no longer provide him with financial support and he would have to move out of the house. In response to this, the father once again threatened to kill the mother or himself and the children.
In about March 2013 the father started making sexual remarks to the mother in person and via text message.
In about … 2013, the mother began seeing her current husband, Mr B.
In July 2013 there was an altercation between the parties. The mother was holding the child [X]. The father grabbed this child’s legs to try and pull him from the mother. The mother placed [X] down. The father then started taking swings at the mother but he was very unsteady on his feet. The father yelled at the mother that he was going to slit her throat. The mother called the police. Later that evening the police attended the family home. Then about a week later the police applied for an Apprehended Domestic Violence Order (“ADVO”) against the father for the mother’s protection. The matter was returnable before the Town E Local Court in August 2013.
Later in July 2013 the mother told the father that she would like to introduce Mr B to the children. The father reacted adversely and said to the mother, inter alia, that if the mother tried to take the children away from him he would kill the mother and if he didn’t kill the mother he would kill the children and himself.
On about 21 August 2013, when the mother was lying on her bed, the father came into her bedroom and pulled back the bedsheets. The father tried to put his arm around the mother. The mother began to panic and try to crawl out of the bed. The father then grabbed the mother’s ankle and pulled her towards him. The mother was very frightened and tried to wriggle out of his grip. The mother ended up on her back, and the father grabbed the waistband of her pyjama pants and started trying to pull down her pants. The mother screamed at the father to get out and that she was going to call the police, following which the father walked out of the bedroom.
The mother then locked her bedroom door. The father, on the other side of the door, told the mother that if she didn’t get a prostitute for the father then he was “coming to you”. The mother called the police and then locked herself in the bathroom for about two hours. During this time, the father kept coming back to the bathroom door and threatening to sexually assault the mother. The father kept calling the mother and sending her explicit text messages. The mother was terrified while she was waiting for the police in the bathroom. The police arrived and the father was placed under arrest. Following the father being released, he verbally abused the mother and threatened to kill her. The police applied for a provisional ADVO against the father for the mother’s protection.
A short time later, following the mother appearing in Court for the ADVO proceedings, the father confronted the mother and started yelling at her with words to the effect:
I’m going to rape your whole fucking family and kill them. I’ll kill [X] and [Y] and hold their severed heads up to you so you can see what you’ve done to them. Then I’m going to cut your face off before killing you.
By this stage the mother was crying and saying to the father, “I’m sorry, I’m sorry, don’t do that”. But the father just kept yelling. After a couple of minutes, the father stopped yelling and looked at the mother. He started shaking his head at the mother and said, “you’re fucking pathetic”.
On 22 August 2013 an interim ADVO was made against the father for the protection of the mother and children.
Following phone calls between the child [X] and the father in early September 2013, the child [X] would become upset and cry. The mother asked him what was wrong and he said, “Dad keeps telling me to say bad things”. This child started to say that he did not want to talk to the father when the mother told him that the father was on the telephone. The mother became concerned about the child [X]’s phone calls with the father so Mr B and the mother listened to a call between them on 9 September 2013. The mother heard the father say to [X] words to the effect, “[c]all your mum a fucking slut” and “Call [Mr B] a fuckwit”. After this occurrence, the mother began to limit the father’s telephone contact with the child [X].
On 7 November 2013, Mr B and the mother moved into their new home with the children.
In early December 2013 the mother asked the father to start giving her some child support for the children. The father did not pay any child support until April 2014 after the Child Support Agency started garnishing his wages. The mother receives just over $15 per fortnight in child support for both children.
By this time, the father was spending time with the children, supervised, in a public place and Mr B was always with the mother.
On 23 February 2014 Mr B and the mother agreed to meet the father and his parents to drop off the rest of the father’s belongings that he had not yet collected. The children attended. When the mother, Mr B and the children arrived, both Mr B and the mother said hello to the paternal grandparents but they did not reply. The paternal grandmother took the children to the nearby playground even though the mother said that they did not have time. When the mother had to leave, the paternal grandmother brought the children back over, tossed [Y]’s blanket and dummy at the mother and then walked off without saying goodbye.
The parties organised to meet at the McDonalds restaurant at Town F on 31 May 2014. The child [X] had had a fall at school on 28 May 2014 and the father wanted to see him. When the mother was going to leave, the father grabbed her arms and yelled in her face words to the effect, “[t]ime my son hurts himself, you call me first. You understand?” The mother could smell alcohol in the father’s breath and he was slurring his words. A very short time later, the father approached Mr B and verbally abused him. The mother remained in the car with the children. The child [X] was very upset and crying.
About two weeks later the mother informed the father, who had requested to see the children, that due to the father’s ongoing inappropriate behaviour towards herself and the children and the ADVO in place, she would not be allowing any contact.
On 12 October 2016 the mother received an email from the paternal grandparents asking to see the children. This was the first and only time that they had contacted the mother seeking to spend time with the children since August 2013. They have only seen the children once since that time, which was during the visit in February 2014, when the mother took the children to drop off the father’s belongings.
The mother commenced counselling with Relationships Australia on 30 June 2017. She attended for a two month period.
The child [X] gets very distressed and shows physical signs of stress such as shaking and shortness of breath when he talks about the father. The child [X] has told the mother that he remembers the father trying to pull him away from the mother and the father threatening the mother with a knife. This child rarely speaks about the father now. This child has told the mother that he does not want to see the father. He has said to the mother, “I don’t want to see him, and I’m scared he will hurt us”, and, “[w]hy can’t he just leave us alone?”
The mother married Mr B in … 2015. There is one child of their relationship, [G] born on … 2015.
The mother works as a professional. Mr B works full-time as a tradesman. The mother, Mr B, the children and [G] live on the Region H. The mother does not ingest illicit drugs, smoke or drink alcohol.
The thought of the children being required to spend time with the father fills the mother with dread. The mother feels sick to her stomach thinking about the possibility of the father spending time with the children, and the mother has no doubt that if this were to eventuate, she would be unable to eat or sleep while the children were with the father, and on the days leading up to visits.
Based on the mother’s past experiences with the father, she does not believe that the father is capable of putting the children’s needs before his own, and she believes that they would be neglected if they were to spend time with him. The mother is scared of what the father might do if he were to become angry at the children or if he were to drink and drive with the children in a car. The mother’s greatest concern is for the emotional trauma the children would experience if they were to spend time with the father and the potential devastating effects this would have on them.

Aside from the mother’s fears for the children’s safety and well-being, she is also scared for her own safety. She believes that if the father was ever to have contact with her again, she would be subjected to his harassment, as she was after the parties separated. The mother is worried that if the father was to have a relationship with the children, he would find out which school they attended, and from there the mother believes that it would not be difficult for the father to find out where she lives. Mr B occasionally goes away for work, and mother states her belief that she would be scared to be at home alone without Mr B, for fear that the father might attend the house and attempt to harm her.
The father is currently on a Newstart allowance. He has been employed casually by Employer. His last pay was $600. He rents premises in Town J, holding a lease on a month-to-month basis. He has been renting those premises for the past five years. He shares the premises with another man.
The father admits that he consumes intoxicating liquor, but asserts that he is not addicted.
In 2010 the mother admitted to the father that she had had an affair with an employee at her workplace. The father asserts that as at the beginning of 2011, he was consuming probably too much intoxicating liquor,
because I was very upset by the actions of (the mother) during the preceding months. I was having “trust” issues with her. I suppose my consumption of intoxicating liquor did not help our strange relationship.
In about October 2012 the father heard rumours that the mother was being unfaithful to him. The father asserts that by about the end of 2012,
after the discovery of [the mother’s] behaviour and the decline in our relationship, I started to consume excessive amounts of alcohol. I regret my conduct but I was deeply upset by [the mother’s] behaviour.
The parties had no sexual relationship after the birth of the child [Y] in … 2012.
At the end of 2012, the father’s employment was terminated because he attended work under the influence of intoxicating liquor.
By about March 2013 the father was not coping well with the parties’ separation.
After the parties’ separation, between August and December 2013, the father saw the children briefly on two occasions in September 2013, with such brief time being supervised by the mother and Mr B. In 2014 he saw the children on brief visits in February and March, and on two occasions in May, with such visits being supervised by the mother and Mr B.
The father has spent no time with the children since 31 May 2014.
The father asserts that the mother deprived him of spending money during the relationship. He considers it a form of domestic violence on the part of the mother to have deprived the father of money and controlled him in this manner. He asserts that the main seat of argument in the parties’ relationship was the father’s access to money.
The father asserts that he has been seeing Mr K, a psychologist at Town L, for over eighteen months.
The father had a urine drug test – chain of custody in early July 2017 which was negative for drugs of abuse and alcohol. Also at this time he had a liver function test.
In late December 2017 the father received a urine drug test – chain of custody which was negative for drugs of abuse and alcohol.
The father attended fifteen weeks of the sixteen week “Facing Up” group program and six individual sessions through Baptist Care. The father’s certificate of attendance in relation to that course states, inter alia, that the program is based on the principles that women have the right to safety and freedom from fear in their domestic and family relationships.
In early March 2018 the father received a urine drug test – chain of custody which was negative for drugs of abuse and alcohol.
In about early March 2018 the father had a liver function test that returned a normal result.
In about June 2018 the father completed the Town M Relapse Prevention Group through the Region H local health districts area Drug and Alcohol Service.
In about late July 2018 the father received two urine drug tests – chain of custody which were negative for drugs of abuse and alcohol.
The father gave oral evidence.
The father confirmed that he had told the Family Report writer that he had been violent towards the mother.
The father stated that the mother’s parenting proposal that the children spend no time with him was not justified because it was “something that happened a long time ago and I have done things to correct my actions”.
The father stated that his alcohol consumption and violence perpetrated towards the mother during the relationship was only infrequent.
The father’s attention was drawn to paragraph 12 of the Family Report which referred to the father reporting to the Family Report writer that while he was a heavy drinker, and had been violent, he was not at the time of the Family Report interviews on 10 March 2018, and had not used alcohol to excess for two years. The father stated that he would change the terminology in paragraph 12 to state that he had been involved in binge drinking (as opposed to being a heavy drinker).
The father stated that when he previously had access to alcohol during the relationship he had been unable to stop. However, he had not been craving alcohol all the time.
The father admitted to a lapse in his alcohol consumption. He explained that this lapse had resulted in him drinking alcohol to excess on one occasion. The lapse had occurred in the context of the breakdown of his relationship with a woman, Ms N. The father conceded that, from his history, when he experienced emotional distress his default reaction was to consume alcohol.
The father stated that his above lapse was referred to in the clinical notes of his treating psychologist Mr K, but otherwise he had no idea why he had not referred to this lapse in his trial Affidavit. (The Court observes from Exhibit D that the lapse occurred in about June 2017.)
The father was directed to paragraphs 372 to 380 of his trial Affidavit. The father agreed that he had intended to convey from those paragraphs in his trial Affidavit that though his behaviour was inappropriate at the time, he had only behaved in that way because of things that the mother had done. The father stated that he had been swayed or pressured by the mother to do the things that he had done.
The father agreed that the child [Y] has no memories of him. The father accepted that from this child’s perspective, her family comprises the mother, Mr B, the child [X] and her younger sister [G].
The father agreed that he commenced seeing Mr K, psychologist, in about October 2015. At this time the father told Mr K that on average he was consuming seventeen standard drinks of beer on each day of the week.
The father’s attention was drawn to the incident in August 2013 involving, inter alia, the father pulling back the mother’s bedsheets. The father was asked whether he regretted any aspect of his behaviour. The father stated that he regretted the fact that he had consumed alcohol to the point where he had lost control and let his anger take control of his actions.
The father’s attention was drawn to Exhibit A, being a psychological report of Dr D dated 14 February 2014 and prepared for use in the sentencing proceedings at the Town E Local Court on 19 February 2014. In that report the psychologist, inter alia, recommended as a course of treatment for the father that the father undergo detoxification and commit to a lifestyle of abstinence from alcohol. The father stated that he chose not to be abstinent from the consumption of alcohol. He stated that this was an appropriate choice by him in light of being trained by psychologist Mr K as to ways to drink alcohol.
In relation to the father’s urine – chain of custody tests, the father agreed that he chose when to do these particular tests and they were not the subject of random requests to him to carry out these tests.
The father was asked whether he could think of any examples of times when he showed disrespect to the mother. The father responded that there were maybe a couple of occasions when this occurred.
The paternal grandmother swore an Affidavit on 28 June 2018 and gave oral evidence.
She stated that between 11 October 2016 and the date of swearing her Affidavit she had seen the father on a number of occasions, and that during this period she had not seen the father drunk or disorderly in her presence. She states that during this period she noticed that the father had had some alcohol at family gatherings, but did not drink to excess.
The paternal grandmother stated, in oral evidence, that the father did not tell her that when he was in a relationship with the mother that he had drunk too much alcohol. She stated that the father had never told her that he drank alcohol too much. She stated that the mother had sent the father to a detoxification centre, where the father was given treatment and sent home; she stated that the father had not needed help.
The paternal grandmother was asked whether the father had ever told her that he had a problem with alcohol. She stated that the father does not think he has a problem and that he just drinks socially.
The paternal grandmother stated that the father had told her of one incident of violence between the parties, being the incident when the father pulled the mother across the bed by her leg. She stated that both parties were to blame. She stated that the father had never told her that he had previously threatened the mother, including with a knife, or that he had broken the mother’s necklace and glasses.
The paternal grandmother did not believe that the child [X] did not want to see the father.
The attention of the paternal grandmother was drawn to statements made by the child [X] to the family consultant in June 2017 that he had seen the father throw a knife at the mother and heard the father call the mother, inter alia, a fucking bitch. The paternal grandmother was asked whether, if that was something the child [X] recalled of the father, that might be good reason for this child not want to see the father. The paternal grandmother did not agree.
The paternal grandmother confirmed that she considered the mother to be unnecessarily protective of the children. The paternal grandmother was asked whether, if the Court were to find that the father had been physically violent to the mother, threatened her, thrown household objects, and sworn at the mother, she would still maintain that the mother was unnecessarily protective of the children. The paternal grandmother answered that she would still be of this view because the mother was plying the father with alcohol, which she had done with her first husband. She stated that she believed that the mother was feeding the father with alcohol to get rid of him.
The Court found the paternal grandmother to be clearly aligned with the father, and her evidence was not child focused. She had not been given a full history of the parties’ relationship, including details relating to the father’s alcohol consumption and family violence perpetrated against the mother. The Court does not accept her criticisms of the mother.
The mother’s new partner and husband, Mr B, affirmed an Affidavit on 30 January 2019, filed on 1 February 2019. He also gave oral evidence.
Mr B stated his belief that if the children were forced to spend time with the father, this would impact their family severely in a negative way. He states that from what he had observed of the children’s reactions to himself and the mother discussing spending time with the father, he believes both children would be upset, particularly [X], and that [X] would also be fearful. He is concerned that the children would not be safe and that the mother and himself would be under an enormous amount of stress, worrying about the children. The mother had told him that she is scared that the father will find out where they live and that she would no longer feel safe in their own home.
The Court accepts his evidence.
Ms O, psychologist gave evidence on behalf of the father.
Annexed to the father’s trial Affidavit was a confidential psychology report by Ms O dated 8 August 2018. She had been requested by the father’s solicitors to provide a psychological assessment of the father and a written report. She had been asked to provide an opinion as to whether the father currently posed an unacceptable risk of harm to the children (emotional and physical risk), and whether such risk could be ameliorated by the father attending psychological treatment or courses.
Ms O had not been provided with any information from the father’s treating psychologist, Mr K; she was not provided with a copy of the Family Report; she was not provided with the father’s criminal record; she was not provided with collateral information sourced from the children or the mother and she did not conduct interviews of the children or the mother; and she received no information about victim impact statements.
In oral evidence, the psychologist agreed that by reason of the absence of interviews by her of the children, she could not assess how the children might be impacted.
The psychologist stated in her report that in the absence of collateral information about the children’s current emotional well-being, past relationship with the father and current perceptions or memories of the father, it was difficult to provide a professional opinion regarding any emotional risk or vulnerability to re-traumatisation as a result of reintroducing contact with the father.
The psychologist’s report refers to information provided by the father that between the ages of 26 to 35 years he continued to consume alcohol two to three times per week, drinking an estimated twelve beers per night. He told the psychologist that during this time he was drinking as his primary coping mechanism. The father advised that between the ages of 35 to 41 years, his alcohol consumption was primarily motivated by habit and dependence. He advised that he had slightly reduced his alcohol use during his relationship with the mother, but was unable to quantify this reduction. The father told the psychologist that he currently drinks alcohol recreationally on social occasions, and that he presently drinks two to three times per week and about three standard drinks per night.
The psychologist was asked, in oral evidence, whether there is still a risk that the father will turn to alcohol in times of stress. The psychologist stated that most people will have lapses (related to alcohol consumption) but the question is how they handle the lapse, including whether or not there is police involvement, and whether or not the lapse continues over a period of time.
The psychologist agreed that the absence of relevant information (including details of treatment goals, interventions the father engaged with, and details of the father’s progress during therapy) from Mr K was a significant limitation upon her assessment of the father.
The psychologist confirmed that she had not read any affidavit material of the mother.
The psychologist stated that she had not been told of the father’s alcohol consumption during the period when the father was aged 41 to 45 years, or between 2013 and 2018.
The psychologist stated that complete abstinence from alcohol would be a safe option for the father.
The psychologist stated that she had not been aware, in relation to the father’s negative urine tests, that the father had chosen the dates and times for such tests. She stated that it was unlikely that the father would do the urine tests if he had known that he had been drinking alcohol. She stated that one could have a normal liver function test even if alcohol had been drunk.
The Court discusses Ms O’s evidence later in these Reasons.
The mother gave oral evidence.
The child [Y] was stated to be in Year 2 and the child [X] was stated to be in Year 6.
The mother did not accept that the father had accepted responsibility for his past behaviour towards the mother. In this context she stated that the father, in her view, blames the mother.
The mother stated that while she did not believe the children would be at risk of physical harm if spending supervised time with the father at a contact centre, she was nevertheless of the view that the children would be at risk of significant emotional harm if spending such time with the father. She stated that the child [X] would have to go through emotional trauma if this occurred.
The mother stated that if time was ordered by the Court between the children and the father, she did not see how her family could cope without significant therapy. She stated she hoped that her family would not be put in the position of being traumatised and then needing to have therapy.
The mother stated that there had been some good times during the parties’ relationship when the father could be funny and played with the children, more so with the child [X]. The mother stated that the father could be interesting to talk to at times. However, the father was not that person when he was affected by alcohol or when the father was feeling the need to be affected by alcohol.
The mother did not accept that the father had been rehabilitated in relation to his alcohol use.
The mother was asked whether, if the Court decided that the father had his need to be affected by alcohol under control, the mother could support and encourage an Order that the children spend time with the father. The mother stated that she felt sick to her stomach to answer that question. She asked rhetorically whether she could put on a brave face “and think it’s great or that I think it’s in their best interests” and answered such question in the negative; she stated that it was “absolutely” not in the children’s best interests.
The mother confirmed that the child [X] tells her that he does not want anything to do with the father in view of his memories.
The mother was asked whether, if the Court accepts that the father was consuming alcohol on a social basis at an acceptable level, that would give her comfort and whether she would consider that a positive change in the father. The mother responded by stating that during the relationship the father had made promises to change, but he always relapsed. The father told the mother that he had done courses and taken medication prior to their relationship. He always recommenced drinking. The mother stated that if the father had truly changed and if he had learnt from his errors, he would acknowledge in full what he had done, show remorse for that, and acknowledge that the mother did not deserve “to be subjected to those violent incidents”.
The mother stated that she does have difficulty with the paternal grandparents spending time with the children. She stated that they are in denial of the father’s “behaviour, about his addictions, about his violent tendencies”. She stated that their loyalty toward the father would mean that they would breach any Orders and allow the children to have contact with the father. She stated that she does not believe that the paternal grandmother understands the seriousness of the father’s crimes. She stated that she does not believe that the paternal grandparents would put the appropriate precautions in place (if they were spending time with the children).
The mother stated that she did not think that any amount of counselling would make her believe that the children could ever be safe in the presence of the father; any counselling would only manage trauma and stress.
The mother stated that she would have an issue with the children spending supervised time with the father at a contact centre. She stated that the children would be traumatised. In this context she referred to emotional harm. In the context of the children ultimately spending unsupervised time with the father, on the father’s proposals, the mother expressed her concern with the evidence that lapses in alcohol consumption were to be expected with the father.

The mother stated that if the Court ordered contact between the children and the father, she thought that “we will all need therapy. We will all need to overcome the issues that that will bring upon us”.
The mother gave this oral evidence:
MS SHEA:   You just said, ma’am, that you will all need to overcome the issues that will bring upon us. What are those issues, ma’am?
MS MCDOWELL:      Firstly, the children – [X] – and I can’t – I could call it a million different words, but he is traumatised by what he remembers. He wants nothing to do with Mr Hinch. He feels that he would be unsafe. He is very protective of [Y], and he feels that she would be unsafe. He – I worry about the impact that that would then have on him in a whole range of issues. I worry for my own safety. I haven’t eaten properly or slept properly in the last couple of days just knowing that we’re coming here today. The feeling that I have is what I would have to live with. It is a fear for their physical safety. It is a fear for their emotional and mental wellbeing. And knowing that I was opening myself up to being back in that vicious cycle that we were in before that we haven’t had to deal with for the most part for the last five years – we have such a great life now, and I’m so lucky to have the husband that I have. And the thought of derailing everything and introducing the instability and the confusion to the children and having [X]’s behaviour no doubt change for the worse – impact that that will have on his education – he’s in his last year of primary school. He’s about to go into high school. I just want us to be happy and healthy.
MS SHEA:     Why is it that you say you have no doubt that [X]’s behaviour would change for the worse?
MS MCDOWELL: Because he – when he was in kindergarten, the – and this is when Mr Hinch and I lived together – there were concerns from the teachers regarding [X]’s behaviour. He has come along in leaps and bounds. He is so smart. He is insightful. He’s a good boy, and he’s – I consider him to be a leader, not a follower. He – he’s the person that will play with the kid that has no friends. And if we put him in a situation where he’s scared, where he’s anxious, where his world has turned upside down, then that’s bound to impact his view on the world. In addition to anything that in time he would eventually be exposed to, if violence is normalised to him, if abusing women is normalised to him, I have concerns about what kind of man he will grow into. At the moment, he’s got a great man that he looks up to who treats me with respect and love. That’s what he sees as a normal relationship, and that’s, at the moment, what he is likely to want in the future. If he’s exposed to something that is unhealthy and it’s normalised and it’s just the way things are, how will that impact him?
MS SHEA:     If the court makes orders for time – some contact – any level of contact between the children and their father in the future, have you thought about what, if anything, you would say to the children?
MS MCDOWELL: I would try to assure them that – that they will be safe and, certainly, in the short term at least, with – if it was in a contact centre that they would be physically safe. And I wouldn’t want to add to their anxiety at all. So I would do my best to reassure them.
MS SHEA:     Do you think [X] would believe you?
MS MCDOWELL:      No, I don’t. [X]’s very insightful, and as I said, he’s the kid that plays with the kid that’s got no friends. He’s the kid that stands up for the kid getting bullied. He can see if I’m upset and I’m just trying to say the right thing. I would still try to reassure him because I’m the mum and that’s my job, but he knows – he lived it. He knows full well what I’d be scared of, because what I’m scared of is what he’s scared of.
MS SHEA:     I take it you tell his Honour that you would do your best to hold it together, so to speak, and not expose the children to your anxiety. Do you think, though, that they might pick up on it?
MS MCDOWELL:      Yes. I – in the last couple days, you know, “Mummy, what’s wrong” and I can’t eat. And they’re not stupid.
MS SHEA:     Just pausing there. Who said to you, “Mummy, what’s wrong”?
MS MCDOWELL:      [Y].
MS SHEA:     In the last few days?
MS MCDOWELL:      Yes.
The Court accepts the mother’s evidence, including oral evidence.

Family report writer

The Family Report writer, Mr C, prepared a report dated 28 March 2018, having interviewed the children, the parents, Mr B and the paternal grandparents on 10 March and 17 March 2018. The children were not observed with the father; the Family Report writer stated that this was in view of the interim Order of the Court of 6 December 2017.
In relation to the history of the dispute, the Family Report writer stated that the father agreed that he had, during his relationship with the mother, subjected her to violence, and admitted that he drank excessively. However, he added that he was not as violent, nor as alcohol dependent, as the mother had indicated in her Affidavit.
In relation to issues of family violence and abuse, the father reported to the Family Report writer that while he was a heavy drinker, and was violent, he was not now (at the time of the Family Report interviews). He said that he had not used alcohol to excess for two years, and he added that he had benefited from counselling in relation to alcohol, and to violence.
The Family Report writer stated that his assessment indicated that the child [X] may have been disturbed and troubled by recollections of the father’s violence and that any arrangements about contact between the father and [X] should be considered cautiously, if the Court determines that they should spend time together.
In relation to issues of alcohol and substance use, the father agreed that he had used alcohol excessively and that consequently he had been violent during the relationship and the separation.
The mother was interviewed by the Family Report writer. The mother stated that she continues to fear the father, particularly regarding the affect his violence may have on the children.
When asked by the Family Report writer why the mother wanted the children to spend no time with the father, the mother stated that she was scared for the children. She was scared of what the father might do to the children intentionally or by neglect. She stated that she did not want the children to accept violence as normal. She feared that if the child [X] identified with the father, [X] would become violent, and that [Y], if exposed to the father, may come to expect violence as the norm. She feared that renewed contact between her and her family and the father may give rise to harassing phone calls from him. She added that she felt sick when she saw the father’s name come up on the phone.
The mother stated that she had asked the child [X], on several occasions, if he wanted to spend time with the father. She stated that [X] responded by becoming emotional and by saying that he feared the father. The mother added that while [Y] was aware that Mr B was not her father, she showed no interest in meeting the father.
The mother confirmed that the child [X] had witnessed violence by the father on several occasions. She stated that [X] had heard the father threaten to kill herself and the children. She stated that the child [X] had heard the father swear and verbally abuse her frequently, to the extent that the child [X] told her she was a “fucking slut” (words used often by the father). The mother stated that as the child [X] became older he occasionally mentioned that he remembered things about the father’s aggression, things that he once thought were normal.
The mother stated that she had become more convinced that the father would not change. She stated that every step of the way the father had blamed her despite the subpoenaed documents. She stated that the father had not accepted responsibility. The mother stated that the father tried to make out that the mother deserved the violence and abuse that had been perpetrated against her by the father.
The mother reported that the child [X] is emotionally secure, but occasionally has nightmares. The mother stated that his only concern is that he and his sister may have to see the father and that he fears for his sister’s welfare.
Mr B was interviewed by the Family Report writer. Inter alia, he stated that currently the child [X] does not feel safe and is concerned about spending time with the father. He stated that when the father is occasionally mentioned, the child [X] becomes distressed.
The father was interviewed by the Family Report writer.
The father was asked why the parties separated. The father stated that he had a drinking problem and the mother had an affair. He stated that he had responded to the mother’s infidelity by drinking to excess and that alcohol brought anger out in him.
The father stated that he no longer had a problem with alcohol use and had not relied on alcohol for over two years. He reported that he had benefited greatly from multiple sessions over the past years with the psychologist Mr K. He agreed that he may have the occasional drink, but emphasised he was not dependent on, nor did he excessively use alcohol.
The father was asked about violence perpetrated against the mother. The father agreed that he had been violent but added that it was not ongoing. He stated that he deeply regretted his actions. He stated, in relation to the mother’s specific allegations of violence, that he agreed with some of them, did not agree with some allegations, and that some allegations by the mother had been embellished. However, he stated that there was “truth in them”.
The father stated that he had learned to deal with anger, and referred to having participated fully in the Facing Up program provided by Baptist Care. He added that he was attending a Circle of Security Program aimed at helping him to understand the issues children face when they are exposed to violence.
The father stated that he wanted a program of involvement with the children that would not be anxiety provoking for the children. He stressed to the Family Report writer that he does not want to disturb or impact “their family”.
The father asserted that with a gradual introduction to the father, the child [X] would overcome his fear of him.
The paternal grandparents were interviewed by the Family Report writer. They stated, inter alia, that the father no longer drank and had settled down a lot. They considered the mother to be unnecessarily protective and indicated that she was somewhat manipulative.
The child [X] was interviewed by the Family Report writer.
[X] presented as a polite, articulate and intelligent ten year old boy. However, his manner was somewhat downcast. The child stated that it still scared him that one day he might have to go into a room with the father, even under supervision. During the interview, the child’s affect remained anxious and his eyes moistened occasionally. The Family Report writer asked this child why he referred to the father by his first name. The child showed some distress and stated that it was because he had never thought of the father as being the right father for him. When asked how the mother felt about the father, this child stated, “I would not care if mum liked him or not. It is just some of the things I remember that makes me hate him.”
This child was reminded by the Family Report writer that he need not discuss these issues if it was hard for him. The child’s tears became more pronounced when he answered, “I don’t want to talk about it. I don’t want to talk about it to anyone.” He added, “Talking about it requires me to think about it and I don’t want to do that.” He stated that the father wanted to see him and that was why the Court case started. However, he said that he did not want anything to do with the father.
When the Family Report writer asked this child what made him sad, the child stated, “Generally when I get hurt by someone, or I think about [the father]”. He stated that occasionally he had nightmares that included the father.
The child [Y] impressed the Family Report writer as an energetic and emotionally secure child about to turn five years. When asked what made her happy, the child stated that it was her brother, her little sister, and her family. She stated that she was sad when she was not with her family.
Under the heading “Evaluation”, the Family Report writer referred to the child [X]’s aversion to spending time with the father.
The Family report writer stated that the child [X]’s attitude had remained consistent; his responses during the child inclusive counselling and his interview for the Family Report matched. When being interviewed for the Family Report this child was emotional and stated that it still scared him that one day he might have to go into a room with the father, even under supervision. The Family Report writer observed that the child’s emotion heightened when he said that “the things” he remembered about the father made him “hate him”; the child did not want to talk about or think about his memories.
The Family Report writer stated that while the child [X] was a nine year old, he impressed as intelligent and sensitive. He stated that this child’s views appeared to be firmly held and reflected the reality of his feelings. He stated that this child had been exposed to violence perpetrated by the father, and as indicated by the Family Report assessment, this child was worried by his recollections. The child stated that he was happy with his family and indicated that the father threatened that happiness.
The Family Report writer stated that if the mother could substantiate her assertions that the father had not changed, then the children’s best interests would appear to be served if they were not involved with the father. However, the Family Report writer stated that the Court may determine that the father has changed in the manner he has described. If so, the Family Report writer stated that it would then seem counter-productive if the child [X] were to maintain the view that the father is an aggressive alcoholic, and that the father is a person who should be feared and shunned. The Family Report writer stated it would be far better for him to carry a positive image of his father into his later years and to grasp an understanding that regret and change is possible.
The Family Report writer stated that, therefore, the Family Report assessment indicated that if the Court finds that the father is not a threat to the children’s welfare, the children might begin to spend time with the father within the context of therapeutic supervision, managed by the ICL.
The Family Report writer stated that it should be noted that given the child [X]’s anxiety and the child [Y]’s age, a quick resolution of the dispute would be in the children’s best interest. The Family Report writer stated that if the child [X]’s fear of the father is to be extinguished, he will need to soon experience the father as benign and accepting, within a nonthreatening environment, over a period of several months or longer. He stated that if the children respond positively to their supervised time with the father, more substantial involvement might follow.
Under the heading “Recommendations”, the Family Report writer recommended that the children begin to spend time with the father for one hour per fortnight for three months supervised by a contact centre; that after three months, supervised time might extend to two hours per fortnight; and that if the Court decides in the father’s favour, then the mother might take professional advice on how to prepare herself and the children. Supervised time might be monitored by the ICL in consultation with the contact centre, and, if necessary, suspended by the ICL until the matter is dealt with, if required, by the Court.
The Family Report writer gave oral evidence.
The Court does not propose to set out the entirety of the Family Report writer’s oral evidence.
The Family Report writer agreed that a relevant consideration in determining whether it is in the children’s best interest to spend time with the father is the impact of any proposed parenting Order on the children and the mother.
The Family Report writer gave this oral evidence:
MS SHEA:     In your experience, it’s not unusual for a 10 year old, that’s how old [X] was at the time, to remember things that happened when he was four or five years old?
MR C:       No, it’s possible.
MS SHEA:     And that’s especially the case if they’re traumatic events. Would you agree with that?
MR C:       If the event is connected to arousal in any form, and in this case the allegation of domestic violence which would produce arousal in the child, then those memories would be firm.
MS SHEA:     When you say “arousal”, can you explain what you mean?
MR C:       Emotional arousal.
MS SHEA:     Right. And is that     ?
MR C:       Fear, wanting to avoid, wanting to rescue, all sorts of emotions.
MS SHEA:     And are those     ?
MR C:       Your question was how permanent is the memory, and because of that context I’m saying that the memory is almost indelible.
MS SHEA:     And would you agree that the sorts of memories or the sorts of events that [X] spoke to you about that he could remember of his father were traumatic events for him?
MR C:       The memories that he chose to disclose were traumatic, yes.
He stated that [X]’s fears, when talking and thinking about the father, were genuine.
The Family Report writer agreed that given the consistent views and memories expressed by [X] to both the family consultant and to the Family Report writer in relation to the father, the reintroduction of contact between [X] and the father was likely to have a significant emotional and psychological impact upon him, and was likely to cause distress and anxiety.
The Family Report writer was referred to the child [X]’s statements to the family consultant at the Child Inclusive Conference that he did not want to have any contact with the father because he did not want anything to happen to the mother, [Y] and himself. The Family Report writer was asked whether the child [X] was likely to worry about his own safety if he was to spend time with the father. The Family Report writer stated that this child would experience apprehension and generalised fear about his own safety and that of the mother and his sister (that is, those he loved). He stated that such fear or apprehension can be very stressful for children.
The Family Report writer was asked whether any stress experienced by a child when experiencing fear and apprehension in relation to spending time with the parent can have an impact on the child’s development.The Family Report writer responded as follows:
Yes … I think if a child is preoccupied with fear then there’s little room left for other important perceptions and experiences that they will benefit from because the – the fear is a – within the receptacle of their mind a fairly voluminous entity. And the preoccupation with fear precludes the absorption of other environmental stimulus that he would benefit from. Not in relation to anything, but in a general sense a child’s capacity to study to learn to participate in school, to enjoy relationships with friends, to avoid or to be susceptible to nightmares, bad dreams, to not be able to participate in joyful events and even, say, TV programs if that fear predominates…
The Family Report writer was asked whether the risk of exposing the child [X] to a source of his trauma, that is the father, could have a traumatic effect upon him again. The Family Report writer stated that it depended on how the exposure was handled.
The Family Report writer was asked whether the introduction of the child [Y] to the father could be confusing for the child. The Family Report writer stated that it would depend upon how it was dealt with and what was done to facilitate the reintroduction.

The Family Report writer stated that how the children would cope with a reintroduction of contact with the father depended very much on how it was managed by the adults around them. It would depend, to a significant extent, on the mother’s capacity to support the reintroduction; because the mother was the primary carer of the children and she would be the one that needed to emotionally make the reintroduction happen.
The Family Report writer’s attention was drawn to paragraph 120 of the mother’s trial Affidavit in which she stated, inter alia, that the thought of the children being forced to spend time with the father filled her with dread, it would cause the mother a great deal of distress knowing that the children were in an environment that she considered unsafe and that would cause them considerable emotional harm, and that she felt sick to her stomach just thinking about the possibility of the father spending time with the children. The Family Report writer stated that these concerns of the mother were not unreasonable or irrational.
It was suggested to the Family Report writer that to expect the mother to turn around and support the father was “a big ask”. The Family Report writer agreed that the mother had a fundamental belief that the children spending time with the father was not in their best interests and that the mother would need to change her beliefs.
The Family Report writer agreed that it was likely to be very stressful for the mother to be put in a position where she has to try and support and facilitate contact between the children and the father, and he stated that the mother would need psychological assistance, support and therapy to deal with her emotional reaction. He acknowledged that stress and anxiety can have a negative impact upon parenting. He agreed that it was not possible to put a timeframe now on how long the mother may experience stress and anxiety. The Family Report writer stated that if the mother was stressed and anxious about the children having contact with the father, the children were likely to pick up on that stress and anxiety.
The Family Report writer agreed that when looking at the potential emotional and psychological impact on the children and the mother, in relation to the children spending time with the father, it seemed likely that the children spending time with the father would cause a significant upheaval to the mother’s family.
The Family Report writer’s attention was drawn to paragraph 380 of the father’s trial Affidavit. The Family Report writer agreed that the content of paragraph 380 did not suggest the father had accepted responsibility in relation to the event the subject of paragraph 380. The Family Report writer agreed that the father’s oral evidence that he had been swayed or pressured by the mother’s actions to behave in the way he did, the subject of paragraph 380, did not suggest an acceptance of responsibility by the father for his actions.
The Family Report writer agreed that long term supervision of the children’s time with the father was not a viable option.
It was suggested to the Family Report writer that it may not be in the children’s best interests to commence spending supervised time with the father now unless there could be a progression to unsupervised time. The Family Report writer stated in response, “I don’t think you could be confident of anything really. I think you just start and see how it goes and review it”. It was then put to the Family Report writer that that was an “experiment”, to which he responded, “of course”. This evidence then was given:
MS SHEA:   An experiment?
MR C:       Yes. But like most – like many decisions in life, I mean, you’re dealing with a father who says that he has changed. He no longer – that his behaviour was a function of his alcohol dependence; that he’s not violent; he’s saying that he hasn’t been violent towards the children. You’ve got children that witnessed him six or seven years ago, whenever, throwing steak knives at their mother, holding their mother against the laundry door, attempting to strangle her, etcetera. I think if you want to repair that, I don’t think you can say with any certainty that whatever you do is going to work, so therefore it’s certainly an experiment.
MS SHEA:     But wouldn’t it be worse for these children to go through the process of attempting a reintroduction of contact; to go through the therapy that you envisage they would need and their mother would need and then have that go nowhere, ultimately because it fails either because the mother can’t support it or the father misbehaves or the children can’t cope with it?   Wouldn’t that be worse?
MR C:       There are any number of reasons why it could fail, but I think you’ve got to consider what the ultimate and overall objective is. And it seems to me that, if the father is reformed in the manner he says he has, that’s for this child, [X] in particular, to carry with him for rest of his life a perception of a father who has been violent and who was violent and who was fearful, “Is someone I should avoid at all costs. Someone that promotes anxiety and fear in me.” For him to carry that through his life or expose him gently to a benign father that doesn’t have these characteristics and with whom he can build some sort of a relationship and I guess that goal is worth the experiment.
The Family Report writer was cross-examined by Counsel for the mother. This exchange occurred:
MR RUGENDYKE:   Now, if the court finds that what the father portrays about himself is accurate?
MR C:       Yes.
MR RUGENDYKE:   And the other benefit, am I correct in this, that the children would develop a relation with their father which you don’t think will ever be a close relationship, but their father might have something positive to offer them from that relationship?
MR C: Well, obviously, it wouldn’t be as close as it would have been if they were an intact family for the past five or six years. But given the child’s involvement and being embedded in his current family situation, I don’t think the father can really expect to have a relationship that he might hope for. I think all he can hope for is a relationship that would build over time where the child would be comfortable with him and want to spend some time with him now and again.

Subpoenaed records in evidence

The Court does not propose to detail the content of all the subpoenaed records tendered in evidence.
The report of treating psychologist Mr K to the father’s general practitioner dated 10 August 2017 states, inter alia, that the father’s presenting issues were alcohol dependence with physiological dependence, in early partial remission; adjustment disorder with depressed mood.
The report states that in June 2017 the father experienced a brief relationship breakdown and separation that caused him to lapse with respect to alcohol in an attempt to cope. It states that, pleasingly, he did not go on to relapse and the status of full remission can be considered ongoing with regards to his former diagnosis of alcohol dependence.
The report of psychologist Mr K to the general practitioner dated 15 February 2018 refers to the father’s presenting issue as being adjustment disorder with mixed anxiety and depressed mood. Inter alia, the report states that the father was not demonstrating any clinically significant symptoms during his first session. However, reactive features soon became prominent again in response to interpersonal discord when his partner estranged herself from their relationship. It states that the relationship was subsequently reconciled conditional upon the father’s partner’s needs being met that he seriously apply himself and make a more considered effort to obtain employment and re-establishes financial independence to achieve joint financial security. Despite the father’s most recent presentation reflecting subclinical levels once again, the report recommends that he continue in treatment to guard against significant relapse until he demonstrates maintenance of change regarding his reported gains further to addressing his unresolved custodial dispute which is not only chronic but his primary stressor.
The report of psychologist Mr K to the general practitioner dated 9 November 2018 states, inter alia, that the father’s presenting issue is adjustment disorder with depressed mood. Inter alia, it states that the father has largely demonstrated persisting clinically significant reactive depressive features in response to his custodial issues that still remain unresolved. He has also experienced interpersonal instability pertaining to his intimate relationship dissolving. It states that the father’s predominant issue of late has been his chronic unemployment associated with his inconsistent level of motivation and capacity to actively engage and initiate effort to secure a nonphysical role that he could sustain managing his reported physical injuries particularly his sciatica.
The report states that the father is currently attempting to lodge an application for one job per week in addition to maintaining self caring behaviour, including consistent nutrition and exercise as part of his stress management regime to inhibit his vulnerability to relapse. Despite the father’s most recent presentation reflecting subclinical levels, it was recommended that he continue in periodical treatment to guard against significant relapse until he secures employment and attains access to his children therefore nullifying his primary stressors. It was suggested that the above-mentioned interventions be continued and that the father attend sessions every one to two months.

Relevant legal principles

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 child of having a meaningful relationship with both parents; 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 have had a meaningful relationship previously with the father. It would also appear that the child [Y] born … 2012 previously had a meaningful relationship with the father, albeit when she was very young in about August 2013, when the parties physically separated. The father thereafter has only spent 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.
The children do not presently enjoy a meaningful relationship with the father.
The Family Report writer stated in his Family Report that if the Court finds that the father has changed “in the manner he described” (that is, he is now not dependent upon alcohol and thereby is no longer liable to exhibit aggressive behaviour) then it would seem counter-productive if the child [X] were to maintain the view that the father is an aggressive alcoholic and a person who should be feared and shunned. Rather, the Family Report writer stated that it will be far better for the child [X] to carry a positive image of the father into his later years and to grasp an understanding that regret and change is possible.
As discussed below under the need to protect primary consideration, there is an unacceptable risk of harm posed to the children in spending supervised or unsupervised time with the father. Firstly, the court is not satisfied that the father has overcome his long-standing alcohol problem. Secondly, there is a significant risk of the children being exposed to family violence if spending unsupervised time with the father. Further, even if the court is incorrect as to the above two findings, there is an unacceptable risk of psychological harm posed to the children and the mother if the children were to spend any time with the father, whether supervised or unsupervised.
It is helpful at this point to deal with the Family Report writer’s evidence that, assuming the father has changed in the manner he contends, it would be worthwhile that the child [X] and the mother undergo therapy to address and alleviate any psychological harm that they would experience following any Court Orders that the children spend time with the father including the facilitation of such Orders.
The Court does not accept the evidence of the Family Report writer that, assuming the father has reformed himself in relation to alcohol dependence and related aggressive behaviour, the goal of removing [X]’s negative views about the father (and thereby facilitating time between this child in particular and the father), is worth the “experiment” of commencing supervised time between the children, in conjunction with therapeutic counselling for the mother and the child [X]. The Court does not accept the Family Report writer’s initial recommendation that the children spend time with the father, as set out in the Family Report, or his belated recommendation in oral evidence that interim Orders be made that the children spend supervised time with the father for nine months at a contact centre.
In the view of the Court, in this context, the Family Report writer has not given sufficient weight to the significant risk, if not a likelihood, of the children and the mother experiencing significant emotional harm if they are required to undergo therapy either before or in conjunction with spending time with the father, whether supervised or unsupervised. Further, the Family Report writer has not given sufficient weight to the significant risk, if not a likelihood, that the mother will not have sufficient capacity to support any arrangement for the children to spend time with the father. The Court should state that the mother’s oral evidence relating to the prospect of the children spending time with the father, whether supervised or unsupervised, including her oral evidence relating to what she believed would be the detrimental emotional impact upon herself and the children in this regard, was compelling (the mother’s demeanour during such evidence was entirely consistent with her affidavit evidence, particularly paragraphs 120 to 122), and the Court, together with the balance of the mother’s evidence in these proceedings, accepts her evidence.
In this context, the Court takes into account the evidence of the Family Report writer that there is merely a possibility, that following therapeutic counselling for the children and the mother, the children may be able to feel comfortable spending time with the father. Additionally, the Court takes into account the evidence of the Family Report writer that he does not think that the child [X] will ever have a close relationship with the father, and that all the father can hope for is a relationship that will build over time, with this child becoming comfortable with the father and wanting to spend some time with him now and again.
As for the child [Y], bearing in mind that she has no memory of the father and the only father she has ever known is Mr B, and the significant risk that the child [X] and the mother will experience significant emotional harm should the children be required to spend time with the father, there is a significant risk that the introduction of the father into her life now will cause her significant confusion and anxiety.
Accordingly, and giving greater weight to the below discussed need to protect primary consideration, the Court is not satisfied that the children would benefit from Court orders that they spend time with the father, whether supervised or unsupervised, with a view to them developing a positive if not a meaningful relationship with the father.
In reaching this view, the Court has taken into account, and has not overlooked, the evidence of the Family Report writer and Ms O relating to the potential detriment to the children of not having a relationship with the father.

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; a primary consideration

There is an unacceptable risk of the children being exposed to abuse, neglect or family violence should they spend unsupervised time with the father.
The Court refers to its discussion above under the meaningful relationship primary consideration.
To a significant extent, the perpetration of family violence by the father occurred in the context of his alcohol abuse and dependence.
During the relationship, when the father had access to alcohol he was “unable to stop”. He consumed alcohol to the point where he lost control and let his anger take control of his actions. The father commenced seeing Mr K, psychologist, in about October 2015. At this time the father told Mr K that on average he was consuming seventeen standard drinks of beer on each day of the week.
The father remains vulnerable to relapse of alcohol consumption and dependency. As discussed below, the Court does not accept Ms O’s view that the father has effectively addressed “his past alcohol concerns”. The Court observes that he suffered a lapse in about June 2017, when he resorted to excessive consumption of alcohol following a breakdown in his relationship with his then partner.
The last written report of Mr K, psychologist, to the father’s general practitioner, dated 9 November 2018, recommends further periodical treatment by the father to guard against significant relapse. In that report the recommendation was made that the father continue to attend psychological sessions every one to two months. The psychologist refers to “the predominant issue of late”, being the father’s chronic unemployment associated with his inconsistent level of motivation and capacity to actively engage and initiate effort to secure a nonphysical role that he could sustain managing his reported physical injuries particularly his sciatica.
The psychologist refers to the father currently attempting to lodge an application to apply for one job per week, in addition to maintaining self caring behaviour including consistent nutrition and exercise as part of his stress management regime to inhibit his vulnerability to relapse.
The Court observes that no written report was specifically prepared by Mr K for the purposes of these final parenting proceedings. Mr K had been treating the father since October 2015 both in relation to his alcohol dependence and mental health. The father stated in oral evidence that he had chosen not to be abstinent, and that this was an appropriate choice by him in light of being trained by Mr K as to ways to drink alcohol. Again, by reference to Mr K’s report to the general practitioner, referred to immediately above, Mr K recommended that the father continue periodical treatment to guard against significant relapse “until he secures employment and attains access to his children therefore nullifying his primary stressors”. Ms O had found that, having administered the Personality Assessment Inventory upon the father, his scores suggested that he was generally satisfied with his well-being and had little motivation for treatment. The Court would have been assisted by evidence from Mr K in relation to, inter alia, these issues, and the Court infers that Mr K’s evidence would not have assisted the father’s case.
The Court does not accept Ms O’s view that the father has effectively addressed his past alcohol concerns. The Court does not accept any suggestion or opinion of Ms O that the father does not pose a significant risk of harm to the children.

Inter alia, Ms O was not provided with any material from Mr K, psychologist (Ms O stated that she would have been assisted in her assessment of the father by having been provided with information about Mr K’s treatment goals for the father, the nature of the intervention provided by Mr K, and the father’s progress in therapy with Mr K); the father’s urine test results had not resulted from random urine requests but were the subject of urine specimens provided by the father at times of his choosing; liver function test results could not rule out alcohol consumption; Ms O had not read any affidavit material of the parties; Ms O was not able to read the Child Inclusive Conference Memorandum or the Family Report; and Ms O had not been told about the father’s alcohol consumption during the period when the father was aged 41 to 45 years, or between 2013 and 2018.
The father places not insignificant blame upon the mother for his resorting to alcohol consumption during the relationship, including her extramarital affairs and controlling of finances.
The father continues to drink alcohol despite his history of problematic drinking of alcohol (a finding was made by Dr D, psychologist, in February 2014 that the father was alcohol dependent), and despite advice by Dr D that he should undergo detoxification and commit to a lifestyle of abstinence. The psychologist Ms O stated in oral evidence that complete abstinence from alcohol would be a safe option for the father.
The Court is not satisfied, in light of the above matters relating to alcohol and the father, that the father’s proposed restraining Order as to the parties not consuming alcohol whilst the children are in their respective care will minimise the real risk of the father consuming, or being affected by, alcohol if the children are spending time with him.
Despite the father having, inter alia, completed the “Facing Up” program, the father has not taken complete responsibility for his past aggressive and violent behaviour towards the mother, and he continues to cast significant responsibility upon the mother for such past behaviour. For example, the father’s oral evidence included evidence that he was swayed or pressured by things the mother had done to behave in the way he did.
The evidence of the Family Report writer is consistent with the above views.
Further and in any event, there is an unacceptable risk of the children being exposed to psychological harm should they spend supervised or unsupervised time with the father.
The father perpetrated serious family violence against the mother during the relationship, including physical violence. Serious family violence was perpetrated by the father against the mother in the presence of the eldest child [X]. [X] was encouraged by the father to verbally abuse the mother.
[X] fears spending time with the father by reason of his own lived experience of having been exposed to the father’s family violence, and he has held such fears for a considerable time. The Court refers, in this context, to his statements expressed to the family consultant, the mother and the Family Report writer. There is a significant risk, if not a likelihood, that [X] will experience significant distress and anxiety if the children were to spend time with the father, whether supervised or unsupervised.
Again, the Court does not accept the evidence of the Family Report writer that the goal of removing [X]’s negative views about the father is worth the experiment of commencing supervised time between the children, in conjunction with therapeutic counselling for the mother and the child [X]; the Court refers to its discussion above under the meaningful relationship primary consideration in this context.
As for [Y], again, as discussed above under the meaningful relationship primary consideration, the introduction of the father into her life now, particularly given the significant risk of [X] and the mother experiencing psychological harm in the event of time being ordered between the children and the father, will carry the significant risk of [Y] suffering significant confusion and anxiety.
The mother fears the father by reason of her own lived experience of being the victim of serious family violence perpetrated against her by the father. She dreads the prospect of the children spending time with the father, whether supervised or unsupervised, and fears that the children will be exposed to psychological harm and physical violence. She remains of the view that the father has not changed or rehabilitated himself from alcohol dependency, and there is a significant prospect, if not a likelihood, that she will not change this view.
There is a significant risk that the mother will experience significant distress and anxiety should the children spend time with the father, whether supervised or unsupervised, with consequential adverse impacts upon her parenting capacity for the children.
In the view of the Court, in light of the mother’s lived experience of having endured serious family violence and the firm negative views she holds in relation to the father, there is not a significant prospect that such distress and anxiety will be relieved by therapeutic counselling; there is a significant prospect, if not a likelihood, that the mother will not be able to support the re-establishment of a relationship between the children and the father, even with the assistance of therapeutic counselling. In any event, it is not possible to predict whether therapeutic counselling might enable the mother to overcome her genuine and reasonable beliefs, based on her lived experiences, that the father poses a significant risk of harm to the children if they were to spend time with him. However, what can be reasonably predicted is the significant risk, if not the likelihood, that the mother will experience significant anxiety should the children be required to spend time with the father, with consequential adverse impacts upon her parenting capacity.It is not without relevance that the Family Report writer could not put a timeframe on how long the mother’s stress and anxiety might persist if an Order was made for the children to spend time with the father.
It follows from the Court’s above views that the prospect of the paternal grandparents, or either one of them, supervising the children’s time with the father is not relevant. The Court should state in passing that, in any event, it would have no confidence that the paternal grandparents, in particular the paternal grandmother, could adequately or appropriately supervise the children’s time with the father. This is in view of the evidence of the paternal grandmother that, inter alia, she believes that the mother was to blame for plying the father with alcohol (which the Court does not accept), and that the paternal grandmother has not given proper consideration to the serious family violence perpetrated by the father against the mother in the context of his alcohol dependency.
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] in relation to the prospect of spending time with the father as expressed to the mother, to the family consultant at the Child Inclusive Conference, and to the Family Report writer.
The Court notes the age of [X] – he was born on … 2008. When [X] spoke to the family consultant on 15 June 2017, he was about nine years. When he spoke to the Family Report writer in March 2018, he was aged ten years.
The Court gives significant weight to the views of [X] in relation to the prospect of spending time with the father. [X]’s views in relation to the father are held by reason of his lived experience with the father. It is of particular significance that the child [X] still has memories of the knife incident, noting that that incident occurred in his presence when he was some four years of age. [X] still recalled this incident in June 2017 when he discussed the matter with the family consultant.
The evidence of the Family Report writer is consistent with the Court giving significant weight to the views of [X].

(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 above under the meaningful relationship primary consideration.
The Court notes the Affidavit of Mr B, the mother’s present husband, who states, inter alia, that he and the mother were married on … 2015 and they have a daughter, [G], who was born on … 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 observes that the paternal grandparents have not had contact with the children for over four 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

The mother has taken such opportunities. Following the parties’ separation, the father sought to spend time with the children, which occurred for a period on a supervised basis, until eventually the mother ceased the children’s time with the father and ceased significant communication with him.

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

The father did not pay any child support until April 2014, after the Child Support Agency started garnisheeing his wages. The mother receives just over $15 a fortnight in child support for both children. 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 need to protect primary consideration, and also notes its discussion above under the meaningful relationship primary consideration.
The court observes that there were times during the parties’ relationship that the father interacted positively with 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. The Court refers to the mother’s and Family Report writer’s evidence relating to [X].

(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. The Court observes that there were significant periods during the parties’ relationship when the father was in paid employment and contributing to the family’s finances, and he also at times assisted the mother with childcare.

(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 its previous discussion of the evidence relating to ADVOs against the father for the benefit of the mother and the children.

(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, the mother’s parenting proposals, compared to the father’s parenting proposals, would be least likely to lead to the institution of further proceedings in relation to the children. The Court refers to its discussions above under the primary considerations.

(m) Any other fact or circumstance that the Court thinks is relevant

Following the Family Report writer’s oral evidence, the father informed the Court that he now sought interim parenting Orders (see Exhibit G) providing, inter alia, for the children spend time with the father at a contact centre for a period of not less than nine months “before the matter is relisted before this Court”. Further, the proposed interim Orders sought an Order that the parties engage in therapeutic interaction with an appropriate professional to deal with the father’s reintroduction to the children, with the father to continue to engage in his regular psychological treatment.
The Court refers to its discussion above under the primary considerations, including its discussion in relation to the significant prospect, if not the likelihood, of the children and mother experiencing emotional detriment if the children were to even begin spending supervised time with the father. The Court also refers to its discussion above under the primary considerations relating to the Family Report writer’s evidence about the potential benefit to the children of therapy. The Court accepts the ICL’s submissions in relation to the father’s interim proposals in Exhibit G. It will not be in the best interests of the children to make such proposed interim Orders as set out in Exhibit G.
As to the Court permitting the father to send letters, cards and/or gifts to the children on their birthdays or at Christmas, provided that such items are sent to a post office address of the mother and not to her residential address, the Court is of the view that such an Order will be in the best interests the children, as it will leave open the prospect of the children, as they grow up, perhaps one day re-establishing contact with the father. The Court would assess that there is not a significant prospect of the children suffering emotional detriment if they receive such items on such occasions.

Parental responsibility

The father seeks an Order that the parties have equal shared parental responsibility for the children. The mother seeks an Order that she has sole parental responsibility for the children.
By reason of the father’s past family violence perpetrated against the mother the presumption of equal shared parental responsibility does not apply.
In the Child Inclusive Conference Memorandum to Court of 21 June 2017, Exhibit A, the family consultant 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, spent fairly limited time with them. The mother has been the primary carer of the children from birth to date.
The mother does not trust the father, in particular in the context of his drinking alcohol, and she is fearful of him. The parties have no capacity to communicate cooperatively in relation to the children. The parties have not communicated with each other for a lengthy period of time. Should the mother have to deal with the father in relation to major decisions affecting the children, there is a significant risk that this will cause her significant distress and anxiety, which may well affect her parenting capacity.
In the view of the Court, it will be in the best interests of the children that the mother have sole parental responsibility for the children.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following final parenting Orders:
(1)The Respondent mother shall have sole parental responsibility for the children, [X] born … 2008, and [Y] born … 2012.
(2)Subject to order (3) below, the children shall spend no time and have no communication with the father.
(3)The father be permitted to send letters, cards and/or gifts to the children on their birthdays and at Christmas time, provided such items are sent by the father to a post office address, to be supplied by the mother to the father within 14 days of the date of these Orders, and not to the mother’s residential address.

I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 8 April 2019

[2019] FCCA 863

8 April 2019

Key Legal Topics

Areas of Law

Family Law