Holgar and Stott and Anor
[2016] FamCA 632
•5 August 2016
FAMILY COURT OF AUSTRALIA
| HOLGAR & STOTT AND ANOR | [2016] FamCA 632 |
| FAMILY LAW - CHILDREN – final orders – where the father seeks parenting orders – where the orders are opposed by the maternal grandmother – where the mother has a limited right of appearance and supports the position of the maternal grandmother – where there are allegations of family violence – where consideration is given to the principles relevant to parenting orders – where it is ordered that the grandmother have sole parental responsibility and that the child live with her – where the child is to spend time with the father on a gradually increasing basis provided he engages in counselling and therapy in respect of matters of family violence. |
| Family Law Act 1975 (Cth) s 4AB, 60 CA, 60B, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT |
| Beckham & Desprez [2015] FamCAFC 247 Blanding & Blanding [2016] FamCAFC 21 Champness & Hansen (2009) FLC 93-407 Cotton & Cotton (1983) FLC 91-330 Loddington & Derringford (No 2) [2008] FamCA 925 Maluka & Maluka (2011) FLC 93-464 MRR v GR (2010) 240 CLR 461 Sigley & Evor [2011] FamCAFC 22 Soulos & Sorbo [2015] FamCA 196 |
| APPLICANT: | Mr Holgar |
| 1st RESPONDENT: | Ms B Stott |
| 2nd RESPONDENT: | Ms Stott |
| INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse Lawyers |
| FILE NUMBER: | ADC | 2199 | of | 2008 |
| DATE DELIVERED: | 5 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 15, 16, 17, 21, 22, 23 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE 1ST RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE 1ST RESPONDENT: |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE 2ND RESPONDENT: | Georgina Parker Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McQuade |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse Lawyers |
Orders
That the maternal grandmother have sole parental responsibility for C born … 2006 (“the child”).
That the child live with the maternal grandmother.
That the child spend time with the mother upon such terms and conditions as may be agreed between the maternal grandmother and the mother.
That the child spend time with the father as follows:-
(a) From 10 am to 4 pm each alternate Saturday;
(b)As and from 15 November 2017 from 10 am Saturday to 4 pm Sunday each alternate weekend;
(c) From 3 pm to 5 pm on Christmas Day in 2016;
(d)From 6 pm on Christmas Eve to 10 am on Christmas Day in 2017 and in each alternate year thereafter;
(e)From 6 pm on Christmas Day to 4 pm on Boxing Day in 2018 and each alternate year thereafter.
That the father be restrained and an injunction granted restraining him from:-
(a) Attending at the child’s school;
(b) Attending at or in the vicinity of the home of the maternal grandmother;
(c)Telephoning, texting or otherwise communicating with the maternal grandmother EXCEPT by email;
(d) Approaching or remaining in the vicinity of the maternal grandmother.
That in respect of education and health issues affecting the child, the maternal grandmother will advise the mother of same and provide her views about any major issues affecting the child’s education and health and shall consult with the mother about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between them THEN the maternal grandmother shall make the final decision and advise the mother of that decision.
That the mother and the father be authorised to receive direct from the child’s school (at their separate expense) information regarding the child’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
That the maternal grandmother will keep the mother and the father advised of the name and address of the child’s treating medical practitioner and any changes thereto and shall advise each of them in writing of any hospital admission in respect of the child.
That the father is restrained and an injunction granted restraining him from denigrating the maternal grandmother or the mother in the presence or hearing of the child and from preventing any other person to do so in the presence or hearing of the child.
That the operation of paragraph (4)(b),(d) and (e) of these orders is conditional upon the father undertaking and completing a successful course of counselling and therapy with Mr G or such other like or approved organisation or service in respect of matters of family violence and for that purpose a copy of these reasons can be provided to the counsellor, therapist or clinician.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Holgar & Stott and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2199 of 2008
| Mr Holgar |
Applicant
And
| Ms B Stott |
1st Respondent
And
Ms Stott
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 8 December 2015, Mr Holgar (“the father”) seeks parenting orders in respect of C born in 2006 (“the child”). The final orders sought by the father are extensive, but can be summarised as follows:-
(1)The father shall have sole parental responsibility for the child.
(2)The child shall live with the father.
(3)The child shall spend supervised time with the mother initially at a children’s contact service and in addition, such further or other times as may be agreed between the father and the maternal grandmother.
In the alternative, the father proposes that the care of the child be shared with the maternal grandmother.
In the further alternative, the child to spend time with the father each weekend from 4.30 pm Friday to 6 pm Sunday and half of the school holidays.
Common to the various proposals of the father as set out in the final order sought are detailed orders of restraint in respect of any time that the child spends with the mother and orders restraining the maternal grandmother from allowing the child to spend time with the mother at her election.
By Response filed 11 May 2011, Ms B Stott (“the mother”) seeks orders that she have sole parental responsibility for the child and that he shall live with her.
By Amended Response to the Initiating Application, Ms Stott (“the maternal grandmother”) seeks orders that she have equal shared parental responsibility with the mother, but that she have sole parental responsibility for decisions relating to the education, autism and therapeutic assistance for the child. She seeks that the child live with her but spend time with the mother on each weekend and on special occasions as may be agreed between them, but that the father’s involvement with the child is limited to sending cards and presents and the father being entitled to receive copies of school reports and other similar information.
The father and the mother were self-represented litigants. The maternal grandmother was represented by counsel and the Court was assisted by the involvement of the Independent Children’s Lawyer (“ICL”).
The father relied upon the following documents:-
(1)Amended Initiating Application filed 8 December 2015.
(2)Affidavit of father filed 8 December 2015.
(3)Affidavit of father filed 26 February 2016.
The mother did not file any affidavit material.
On 28 October 2015, orders were made listing all applications for final orders for trial and setting out the timetable for the filing of trial affidavit material. The mother was required to file and serve an amended response and her affidavits of evidence by 4pm on 5 February 2016. The mother did not comply with that order and time was extended for compliance to 12 February 2016. On 3 March 2016 time was further extended to the mother to file and serve her trial affidavit material to 7 March 2016.
On the first day of trial namely 15 March 2016, the mother had not filed her trial material and the Court was required to consider the extent to which, if any, the mother would be involved in the proceedings.
The mother agreed that the orders as reflected in her Response filed 11 May 2011 were no longer current. She conceded that if the proceedings were further adjourned it would be unlikely that she would either obtain legal representation or file any affidavit material. I accept that she found the proceedings very stressful and that the task of complying with trial direction orders was likely to be beyond her ability.
I determined that it was important that she have some involvement in the proceedings and accordingly I ordered that she have a limited right of appearance, but restricted to an entitlement to cross examine witnesses called on behalf of the father, the maternal grandmother and the ICL.
Accordingly, the mother conceded that her future involvement with the child was to be determined by reference to the orders sought by the maternal grandmother. Notwithstanding that the mother would have wanted the child to live with her, she accepted the reality of the situation namely, that the child’s best interests were better served in the care of the maternal grandmother. She did not speak against the orders sought by her.
The maternal grandmother relied upon the following documents:-
(1)Amended Response filed 12 February 2016.
(2)Affidavit of maternal grandmother filed 12 February 2016.
(3)Affidavit of Dr H filed 4 February 2016.
(4)Affidavit of Ms I Holgar filed 12 February 2016.
(5)Affidavit of Mr J filed 12 February 2016.
In addition, the maternal grandmother relied upon a Case Outline document dated 9 March 2016.
The ICL relied upon the following documents:-
(1)Family Assessment reports of Ms K dated 11 January 2012, 5 September 2012 and 14 November 2013.
(2)Family Reports of Ms L (family consultant) dated 20 January 2016 and 4 February 2016.
(3)Report of Dr M dated 27 June 2013.
(4)Affidavits of Mr N (“ICL”) filed 26 November 2013, 15 January 2014, 21 February 2014 and 27 October 2015.
The only witness to be called by the ICL was the family consultant.
BACKGROUND
The maternal grandmother was born in 1956. The father was born in 1971 and the mother in 1980.
The mother has a child of a prior relationship namely O who is 14 years of age. O resides with the maternal grandmother.
The father has three adult children of two prior relationships. His relationship with his children is troubled. The father’s adult daughter Ms I Holgar gave evidence in the proceedings in support of the orders sought by the maternal grandmother.
The mother and father commenced their relationship in 2003 and finally separated on 25 December 2007.
The mother alleged that there was significant family violence during the relationship. On 6 December 2005, the mother obtained an intervention order which prevented the father from coming into contact with her.
The father was charged with assault in December 2007.
The proceedings commenced by application in June 2008. The father alleged that the mother was a drug user. Her response detailed allegations that the father was violent towards her and his other children.
An order was made on 4 November 2008 providing for the child to spend limited and supervised time with the father. The first round of proceedings was resolved by agreement in May 2009.
The father pleaded guilty to a charge of aggravated assault involving an unrelated third party. He was imprisoned from January until August 2010.
Upon his release, the father issued proceedings in the Federal Circuit Court. The mother was ordered to enrol in a children’s contact service. Her refusal to do so and her inability or refusal to engage in the proceedings resulted in Simpson FM (as he then was) issuing a warrant for the mother’s arrest.
On 20 June 2011, the Court suspended the existing orders for supervised periods between the father and the child.
There were issues in respect of the father’s alleged threatening behaviour towards the mother and the uncertainty of the mother’s drug use.
On 19 April 2012, the father was further convicted of an aggravated assault involving the brother of the mother’s former partner. It was alleged that this person was assaulted by the father and then kidnapped. The father was sentenced on 28 August 2012 and received a suspended sentence.
Following the mother’s release from prison in respect of her contempt of Court, she did comply with orders that enabled the preparation of a family report. The report filed 5 September 2012 recommended that the child spend supervised time with the father but gradually transitioning to unsupervised time.
The maternal grandmother was clearly concerned as to the ability of either of the child’s parents to provide a safe and stable environment for him. She alleged that the mother was not able to adequately care for the child and that there were concerns in respect of drug use and various behavioural issues which were likely to adversely impact upon her ability to parent. A Families SA investigation in May 2013 did not consider that the child was at significant risk in the care of the mother.
The father’s circumstances were aggravated by a charge of assault in respect of Ms I Holgar on 19 June 2013. Whilst those charges were dismissed on 28 November 2013, it is in respect of that incident that forms the substance of her affidavit filed in support of the maternal grandmother.
The mother underwent psychiatric assessment by Dr M and in his report of 27 June 2013, whilst he highlights the adverse aspects of the mother’s behaviour including generalised anxiety, he accepted that she was both genuine and capable of modifying her amphetamine use and as such was able to care for the child from time to time.
Notwithstanding the confidence in the mother’s ability to care for the child, there were serious adverse indicators emerging. The child’s school attendance was poor and it was felt that the mother was not likely to support an ongoing relationship between the child and the father. This relationship was considered important.
A family report dated 14 November 2013 made recommendations that the child should live with the father. This report is central to the father’s presentation during the proceedings. He argued that as recently as November 2013, there was a clear recommendation that he could best provide for the child. He considered that the circumstances had not changed and accordingly, the report supported the primary orders sought by him. The report writer was not called.
It is apparent that the Court considered the circumstances of the child to be parlous. There was significant uncertainty as to the ability of either of the parties to provide a safe and protective environment for the child and their separate behaviours were not indicative of an environment that would promote the proper development of the child in circumstances where there were signs of aggression, oppositional and disturbed behaviour, in particular at the child’s school.
This promoted the maternal grandmother to intervene in the proceedings on 27 February 2014. The child was readily placed in her care and she facilitated the child’s attendance at school on a regular basis, the father to have supervised time at a contact centre and for the mother to care for the child from Friday to Monday of each week.
At the time that the proceedings were transferred to the Family Court of Australia in October 2014, the maternal grandmother supported the proposal of the mother namely that the child live with her, but reserved a right to intervene if she considered that the mother was not able to look after the child. The mother considered that the father should spend either no time with the child or if such an order was made then it should be limited to supervised time only.
The maternal grandmother was a little more benign and considered that the child should see the father for some hours unsupervised on alternate Saturdays.
On 22 October 2014, orders were made that the child spend unsupervised time with the father each Saturday from 12 noon until 3 pm for eight occasions and thereafter extending to 4 pm.
Unfortunately the child’s behaviour did not improve. He continued to have difficulties throughout 2014 and 2015 and as a result of his violent and aggressive behaviour he was suspended on at least two occasions in 2015.
The child was assessed as having met the criteria for Attention Deficit Disorder and he commenced a medication regime involving the drug Ritalin. The child was placed on a negotiated education program which regulated his attendance at school and included support from a special education officer.
By order made 13 May 2015, the father was to spend time with the child from 10 am until 4 pm each alternate Saturday.
Notwithstanding the intervention in respect of the child’s education, there were further examples of violent behaviour in September 2015.
The parties could not be said to have reconciled their differences but there appears to have been some lessening of the tension between them in the months leading up to the trial.
Having said that, the mistrust and dislike between the parties is clearly apparent.
The maternal grandmother considers that the father is a recalcitrant aggressive person who is unlikely to be rehabilitated. She does not consider that he has any insight into his conduct and the effect that his violence has on others, in particular the mother, her daughter O and the child.
The maternal grandmother does not consider that the current order which provides for the child to spend six hours a fortnight unsupervised with the father every second Saturday, is in the child’s best interests. She alleges that the child is becoming increasingly more withdrawn and that it is difficult for her to persuade the child of the benefits of spending time with his father.
The mother remains clearly terrified of the father and does not support the child spending any time with him.
She appears to recognise the significant improvement in the child’s development, behaviour and outlook arising from his continuing residence in the home of the maternal grandmother. She does not seek to interfere with the arrangement and is content with the child spending time with her each week from Friday after school to 6 pm Sunday, with that arrangement suspended to accommodate the orders that provide for the child to spend time with the father.
The father’s primary position is that the child live with him and spend limited time with the mother and the maternal grandmother. If not, then he seeks shared care with the maternal grandmother with the child to spend time with the mother for some hours each alternate Sunday when the child would ordinarily be with the maternal grandmother.
The parties are not in agreement as to parental responsibility.
PROCEDURAL MATTERS
On the first day of trial, consideration was given as to the manner in which the mother would be permitted to engage in the proceedings. She had not filed any affidavit material and I did not consider there was any basis to alter the orders made on 15 March 2016 which gave her an ability only to cross examine witnesses who may be called, but not to present any evidence.
In addition, I discussed with counsel, the father and the mothers that the proceedings would be conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein, I advised of the general duties and powers as set out in s 69ZQ and the ability I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR. I specifically outlined the principles that highlights the importance of proceedings being conducted in a way that would safeguard the children concerned from being subjected to or exposed to abuse, neglect or family violence.
Given the focus on family violence, I raised the potential importance of s 69ZT to those matters. This section relates directly to the applicability or otherwise of the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) in relation to child-related proceedings. In determining whether the Evidence Act should apply, I considered the provisions of s 69ZT(3) namely, that I must be satisfied that the circumstances are exceptional and that I have had regard to the following matters:-
(a)The importance of the evidence in the proceedings; and
(b)The nature of the subject matter of the proceedings; and
(c)The probative value of the evidence; and
(d)The power of the court (if any) to adjourn the hearing, to make another order or to give direction in relation to the evidence.
The maternal grandmother in her Case Outline document alleges the following:-
(a)That the father is a poor role model for the child;
(b)That the father presents a risk of physical and psychological harm to the child;
(c)That the child has been exposed to domestic and family violence;
(d)That the father has an extensive criminal history characterised by him acting violently to others.
It is the position of the maternal grandmother that there was a violent relationship between the father and the mother and that the child and his half- sister O have experienced violent conflict at “the top end of the scale”. The mother has no ability to deal with the father at any level and is frightened of him.
There are allegations as to the extent to which the father has engaged in criminal activity, in particular those involving violent conduct.
The father agrees that he has a poor criminal history and that there is some offending which involves physical assault. He says however that his behaviour is a matter of historical relevance only and he denied the more recent allegation of the mother of an assault upon her in 2014 and the alleged assault on his daughter, Ms I.
The Full Court in Maluka & Maluka (2011) FLC 93-464 gave consideration to the circumstances of the application of s 69ZT in a case that involved allegations of family violence and sexual abuse. From [121] the Full Court considered the extent of usual discretion in the application of the section and held:-
[121]Before us, it was submitted that where the subject matter of the hearing involved consideration of the determination of a child’s relationship with a parent a trial Judge must apply s 69ZT(3) of the Act to the entire hearing. While it was acknowledged the sub- section is not expressed in mandatory terms, any other outcome was said to be erroneous.
[122]The Full Court decisions in Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to s 69ZT. Namely, that the decision to apply sub-section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein….
[123]We do not accept the father’s argument that the effect of s 69ZT is to establish a rule of general application that in cases where a court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by s 69ZT(1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victim partners why, notwithstanding an order is sought to terminate the child’s relationship with a parent, a judge might determine the risk issue by reference to ss 69ZT(1) and (2) of the Act.
I am also mindful that the father is a self-represented litigant and whilst his affidavit material is voluminous, it could not be said that it has been drafted with any level of legal skill. If the rules of evidence were to apply it is likely that much of his evidence would be rendered inadmissible. It is also important in this case to have regard to some aspects of the husband’s extensive criminal history, not as to the detail but in order to assess the risks that the child remaining in the care of the mother, father and on his case the maternal grandmother, to which the child is exposed.
In the circumstances of this case I do not consider it appropriate to apply the rules of evidence and to dispense with the provisions of s 69ZT.
The proceedings commenced on 15 March 2016 and concluded with submission on 23 March 2016 after six days of evidence.
EVIDENCE
The family consultant
On 22 October 2014 and 28 October 2015, orders were made for the preparation of a family report. Ms L (“the family consultant”) published her reports on 20 January 2015 (“the first report”) and 4 February 2016 (“the second report”).
The family consultant considered an extensive quantity of documents that comprised the Court file, subpoenaed documents from SAPOL which had not been the subject of objection and telephone interviews with the principal of the child’s school, Ms Q, a psychologist and Ms I and Ms P Holgar being the child’s paternal half-sisters.
The first report sets out the relevant background and identifies the following issues in dispute:-
·Whether coercive family violence may be a factor in this matter.
·The extent to which drug use and mental health issues are a factor in this matter.
·The parenting ability of the father, mother and maternal grandmother and their respective ability to manage the special needs of the child.
It is reasonable to note that the issues in dispute as identified by the family consultant are relevant considerations for the Court.
In interview the mother alleged that the father was violent and controlling. She summarised the relationship in the following statement:-
I went through years and years of shit and he frightened and hurt me beyond what anybody would know… He bashed me that many times and tried to kill me. He has done horrendous things and I am not the only one he has done it to. He will do whatever it takes to be the one that wins in this court battle. Even if I won in the courts he would not let it happen. Like he says often: ‘Dead woman walking’.’
The mother then detailed significant and graphic detail of incidents where the father had assaulted her and she was fearful that he would kill her. She refers to one incident where the father struck her in the face with sufficient force to cause injury, with her blood being sprayed onto her daughter O. The father denied that he had ever been violent to the mother.
She related a snapshot of life within the home where she and the children would barricade themselves in a room in fear of the father. She alleges that he fired a bullet through her bedroom window and such was her ongoing and abject terror that at the time of the report she had been too fearful of the father’s intimidating behaviour that she no longer socialised.
She was asked about letters expressing affection towards the father. These had become annexures to the father’s affidavits. She explained what would appear to be contradictory remarks by alleging that she was pregnant, fearful of the father and concerned about his threats to harm not just her but her daughter and other members of her family.
The family consultant considered that the father attempted to minimise aspects of his criminal record. He was challenged in respect of a most recent conviction in 2012 for assault. The father’s response was “I admitted to a minor assault but at trial I was found totally not guilty of all charges”. The family consultant reminded the father that he had been convicted of aggravated assault. The father’s response was to allege that they were stories people had been making up about him and that in some way his criminal offending was linked to the mother.
The family consultant was properly concerned as to the history of the mother’s drug use and mental health issues. She had the advantage of psychiatric reports from Dr R who diagnosed the mother with Adjustment Disorder with Anxious Mood and with amphetamine abuse and Dr M who considered that if the mother was able to reduce and/or cease her amphetamine use then there was no other issue that would stop her from spending time with the child.
The father completed all of the required drug testing with a negative result. The same could not be said for the mother. She did not take the tests that were ordered and the concern was that she was still using amphetamines.
It was an important consideration to the family consultant that the supervised contact with the father demonstrated positive parenting behaviour on his part. Whilst it was conceded that the duration of the observed interaction was short, nonetheless it was indicative that “he has the skills to play and interact positively with the child”.
At the time of the assessment it was the position of the maternal grandmother that the mother was still the appropriate primary carer for the child.
The maternal grandmother was supportive of the mother and remained disparaging of the father. She supported the mother’s anxiety about the child spending time with the father.
The child was diagnosed with Asperger’s Syndrome and is registered with the Autism Society. The family consultant considered that the child’s behaviour under observation was consistent with the diagnosis.
The maternal grandmother summarised the child’s presentation as follows:-
I haven’t dealt with a child like him. I have only had [the mother]… There have been times I have phoned [the mother] because he was having a major meltdown. She has talked to him and he has come off the phone fine. It can be a simple thing like when he tips all his toys out to play with them and you ask him to pick them up. It can be like speaking to a wall. I have had him attack me and smack me. Once I smacked him on the bum. It was a big mistake, he just escalated and it got worse. He said: why can’t you be like a nice Nanna.
Issues in respect of the child’s education were clearly problematic. The father and the maternal grandmother both considered that the child’s school attendance was poor and unacceptable. The family consultant considered that 21 days absence out of a possible 100 days might be considered as neglect. The mother’s explanation was that she was in some way fearful of coming into contact with the father if she took the child to school.
The observations of interaction between the child and the maternal grandmother were positive. There was clear warmth and affection and the maternal grandmother was attuned to the child’s words and was sensitive to his needs.
His behaviour was however challenging and there were aspects of impatience and aggressive behaviour.
The interaction with the mother was also positive. The family consultant noted that the mother managed the child with skill and importantly, that he seemed to be responsive to her. Such was the connection that the family consultant considered that “it was clear that the mother is his primary attachment figure and the level and quality of interaction between them was impressive”.
The same could not be said for the observations of interaction between the child and the father. Notwithstanding that the father tried hard to interact over a 65 minute session, he was not able to engage the child. The family consultant observed that the child did not make eye contact with him and the father was not able to engage the child. There was however more interaction and the child became more animated when the paternal grandmother entered the room. The contrast was remarkable. The child appeared to become more relaxed and he engaged in a game with the father that was animated and appropriate.
The family consultant was impressed with the presentation of O. She considered her to be “an intelligent, thoughtful, articulate child”. She recognised that she had not attended school for a long period of time out of fear of coming into contact with the father. She did however do home schooling whilst living primarily in the care of the maternal grandmother. She gave graphic description of the domestic violence in the home and said that she saw the father hit her mother on many occasions. The frequency and severity of the father’s violence towards the mother was such that she remained affected by her observations. She said:-
Ever since I had to relive those memories I live with them every day. Even though it was so long ago it still feels like yesterday… I remember [the father] as a big, scary man. I don’t like seeing him. I think of all the bad things he did. Nan asked if I want to see a psychiatrist or psychologist in the New Year and I told her that I do. I have this fear that people will hurt me when they are just playing. I feel angry towards [the father] because of what he did.
The family consultant made observations that she suffered a physical reaction when speaking about the father and her recollections of his conduct.
She was asked to consider her reaction following the child’s time with the father. It appears that there was nothing untoward in the child’s presentation, but that at times he had to be persuaded to spend time with her father. O’s concern was that the father would not be able to handle the child’s “melt down” and that he might react with aggression.
In interview with the maternal grandmother, she was highly critical of the father. She recognised that the mother had a troubled and traumatic history. Following the death of her father she confirmed that the mother had attempted to commit suicide at 14 years of age and became involved with drugs soon thereafter. She considered that following extensive counselling and therapy, the mother appeared to be making good progress but then deteriorated following her involvement with him. She recounted her observations of the father smashing the front windows of the mother’s house and she alleged that he had shot a bullet into the mother’s home.
The maternal grandmother impressed as being genuine in respect of her fear of the father and held a firm belief that he was capable of hurting the mother and O.
She remained worried as to how to deal with the mother’s extreme anxiety.
The paternal grandmother was also the subject of interview. She would regularly spend time with the child when in the care of the father. Her observations of the interaction was that:-
[The child] has a loving relationship with his Dad and they have an absolute ball together… As a father [the father] is absolutely doting. They get along so well it is absolutely gorgeous to watch. He is really caring for him and watches over him every minute…
The paternal grandmother appeared in denial of the father’s criminal history. In particular, she did not consider that her son was violent and believed what the father had clearly told her namely, that his troubles were as a result of people lying about him and that he had been found not guilty.
The paternal grandmother recognised that the father’s adult children hold him in low regard and said:-
His other children are going to be bagging him. The children were found to be telling lies in the courtroom. I pray it will all be reconciled. I would love to see them again. They have my phone number. I know my son loves his children. [The father] cared for [Ms P], [Mr S] and [Ms I] when they were growing up.
Whilst the family consultant was clearly impressed with the strength of the attachment between the mother and the child, she nonetheless recognised that the mother presented with significant difficulties. She was not satisfied that the mother was able to control her amphetamine and drug use and whilst the mother’s anxiety and fear of the father may well be a catalyst for her drug taking, the focus must be on whether the mother could provide a protective environment for the child.
There was no such uncertainty in respect of the father. The family consultant was firmly of the view that the father’s behaviour was violent and aggressive and that there were clear reasons for others to be fearful of him.
She did not accept the father’s denials of his violent disposition and the inability of the father and his mother to admit the accuracy and implication of the father’s criminal history involving offences of violence could speak against the child spending significant time in the care of the father. Nonetheless, the observed interaction between the child and the father was positive and sufficiently so to support a recommendation that the child continue to spend regular time with him.
If the mother was not able to moderate her drug use then the child should live with the maternal grandmother who was clearly able to recognise the child’s needs and take appropriate steps to engage the child in counselling and therapy in order to better manage his at times defiant behaviour.
In preparation for the upcoming trial, the parties were the subject of further interview and observation resulting in a family report being published on 4 February 2016.
The attitudes of the parties towards each other was unchanged. The father still considered that the mother had a problem with prescription medication and alcohol.
The mother remained frightened of the father and did not resile from her stated history of being the subject of extreme domestic violence, threats and controlling and coercive behaviour. She remained concerned for the psychological functioning of her daughter O who whilst no longer coming into contact with the father, remained fearful of him and protective of the child. The mother admitted that she had been a user of amphetamines but had not used the drug for at least two years.
She acknowledged that she had failed to comply with drug tests that had been the subject of Court order, but considered the stress and trauma of the proceedings explained her inability to comply with the Court direction.
The parties continued to mistrust each other. The father described the mother as a “out of control drug addict” and both she and the maternal grandmother as “liars”.
The mother and the maternal grandmother did not consider the father in any other light other than an extremely violent and unpredictable individual.
The family consultant was of the view that even if the parties were diligent in keeping the conflict out of the child’s focus, the depth of feeling felt by each of them was likely to impact upon the child, particularly given his Autism.
The mother conceded that the maternal grandmother made important decisions in respect of the child. The maternal grandmother considered that given the difficulties that the mother had experienced, her quality of parenting was high. This was particularly evident when the child became distressed.
Relevant to the current circumstances of the mother was her admission to the family consultant that she had taken out a restraining order in respect of her ex-partner following a recent breakdown of their relationship. The relationship had the depressing feature of family violence and the police were required to attend. The children had been exposed to verbal altercations and in particular O was likely to be affected given her fragility.
The family consultant found that the relationship between the mother and the maternal grandmother was respectful and summarised her observation as follows:-
[78]Overall, it appears that the maternal grandmother and the mother have worked cooperatively to achieve a child focused approach to the child’s care and developmental needs. Neither the mother nor the maternal grandmother appear able to communicate with the father in any effective way. This suggests that a cooperative co-parenting relationship between the father and the mother or the father and the maternal grandmother is unlikely.
In the observation between the father and the child, it was noted that a significant period of time elapsed before the child appeared prepared to engage with the father. The child was clearly boisterous and was testing the limits of his allowed behaviour. The child was observed to kick a toy towards the ceiling which hit a light fitting. Earlier in the observation the child had picked up a wooden toy with the intent of throwing it against the window.
Once the child appeared to calm down, the family consultant observed that there was engagement by the child in the activities promoted by the father and that they appeared to laugh together and enjoy themselves.
There were however significant periods of time when the child appeared to disassociate himself from the father. In particular, it was observed that he spent 26 minutes of the 45 minute session with the father reading or focusing on a magazine rather than becoming involved in the various activities that the father properly promoted.
The family consultant was not critical of the father. She considered that he had tried throughout the session to engage the child, but that he was “emotionally shut down to the father”.
There was an obvious difference in the interaction between the mother and the child. There was clearly an emotional attachment, the child was engaged and when corrected, the child remained “cheerful and attentive to her instruction”. Ultimately the family consultant considered that the mother continue to be the child’s primary attachment and her view of the interaction was described as “impressive”.
There were no difficulties in the observation between the child and the maternal grandmother. The family consultant considered that the child’s relationship with her had deepened over the past 12 months.
The child was the subject of an interview and whilst there was some clarity to the child’s views, it is difficult to know how much weight can be placed on them.
He did have a clear understanding as to the relationship between the parties and it is noted when asked the question “Does dad like your mum?” his reply was “Not really”. He considered that his mum was the nicest person to spend time with followed by the paternal grandmother, O and then the father. Whilst he did not wish to spend more time with his father, he considered that the current arrangement was about right.
The family consultant received information from the principal of the child’s school. It is notable that the maternal grandmother appears to be the primary interface between the child and the school and the important position she plays is summarised as follows:-
[183][The maternal grandmother] makes herself available. If he was struggling we can call her and she will pick him up earlier. She is a good advocate for [the child] and listens. She wants him at school and seeks other agencies to support him. She attends meetings. When he hurts people she is never angry with him but talks through it. At sports day he hurt a child and we could not resettle him. It was difficult because [the child] wanted to stay. It was a complex day. Other parents had seen [the child] hurt children. [The maternal grandmother] helped him and talked him through leaving in a way he could cope with.
The family consultant considered that if there was evidence which substantiated or supported the allegations by the mother, maternal grandmother and the father’s two adult children that he engaged in coercive controlling family violence, then the current parenting arrangements should not be altered. If however the evidence did not support the allegations of violence, then the time with the child should increase to each alternate weekend from Friday night to Sunday afternoon.
The relationship between the maternal grandmother and the mother was considered to be functional but that there was significant uncertainty in respect of the mother’s presentation which spoke against the mother being able to provide the stability and day to day management of the child necessary for primary care. The current arrangement with the child residing primarily in the care of the maternal grandmother but spending significant and substantial time in the care of the mother appeared to best suit the child’s current needs.
Cross examination of the family consultant by counsel for the ICL predictably focused on her observations that the father and the child were not able to engage in either the observed interaction in respect of the first report and then the second report.
The family consultant was concerned that the father’s interaction with the child was based upon competition and promoted aggressive involvement by the child. It was not considered deliberate on the part of the father, but he was not able to control and manage the child with the same level of ease as the mother and in particular the maternal grandmother.
Whilst there were no observations of interaction between the child and the father that could be considered close and affection, this did not necessarily speak against the importance to the child of a relationship with his father.
The family consultant remained opposed to overnight time on the basis that if the child had a “meltdown” the father may not have sufficient skills to calm the child and restore his equilibrium.
The father did not accept the observations of the family consultant that the child appeared to have little attachment to him. He put to the family consultant that whilst the child took an aggressive position in terms of throwing a wooden toy against the window, he did not do so and accordingly the father did manage to moderate his behaviour. The father was also concerned to highlight that the assessment had taken up most of the day and given the artificial atmosphere in which the parties and the child found themselves, it may well be an explanation for the child’s difficult behaviour that the process had become too lengthy and was stressful for the child.
The father referred the family consultant to the report of family consultant Ms K who had prepared a report dated 14 November 2013 recommending that the child be placed in his primary care. In essence, the family consultant was asked to reconcile her recommendations and those contained in the earlier assessment by Ms K.
The father also considered that the family consultant may have been influenced by the experience of his adult children who he expected to be disparaging of him. It was likely that the family consultant was also influenced by the negative remarks of O.
The difference between the family consultants can be explained by the focus of the earlier assessment was on the parenting capacity of the mother and the father, but did not consider the subsequent beneficial involvement of the maternal grandmother in respect of the child’s care.
The father was also concerned to make clear his objection to the acquiescence of the maternal grandmother to the child spending each weekend with the mother. He referred the family consultant to an affidavit detailing the content of an unsolicited telephone call with the maternal grandmother on 4 February 2013. It was clear that the maternal grandmother was worried as to the mother’s ability to care for both O and the subject child.
Paragraph 4 of the affidavit sworn 20 February 2013 sets out a litany of serious allegations in respect of the mother’s conduct, behaviour and inability to provide safely for the child. The list of complaints are extensive and should be considered as representing serious allegations about the mother’s ability to care for the child. Moreover, the child had a poor attendance record at school and the mother seemed incapable of recognising the importance of the child attending school on a regular basis.
The family consultant conceded that the allegations of the maternal grandmother, if substantiated, represented a serious deficiency in the mother’s ability to parent the child, but it was noted that some three years had passed since that telephone call and the objective observations of those now involved in the child’s care suggest that the mother has rehabilitated herself to the extent that her involvement with the child is of substantial benefit providing that the maternal grandmother is the safety net for the child’s day to day needs.
Counsel for the maternal grandmother sought to link the child’s current aggressive behaviour as a direct reflection of the father’s predisposition to violence.
The family consultant agreed that the child is in a delicate state at the moment. The maternal grandmother has a close, open and positive relationship with the child and is best able to provide the stability that the child needs. This is particularly important in respect of a child with Asperger’s Syndrome or Autism Spectrum Disorder.
The family consultant conceded that what is required is that there needs to be put in place some quite sophisticated management plans for the child, otherwise there is a real risk that the child’s current trajectory will not be halted and he will resort to violence and run the risk of developing mental health issues later in life.
The family consultant agreed that what is important to the child at present is that he has consistency of care and that he not be exposed to aggressive conduct.
The family consultant would not agree with the general thrust of the cross examination seeking to link the child’s currently aggressive conduct with the father’s history of violent behaviour. The concern is not so much the father’s history but whether he would expose the child to violence, particularly given that the child is now nine years of age and is significantly more cognisant of the behaviour of those who are closely involved with him.
The family consultant was asked to comment on whether the child should be considered at risk of physical or emotional harm in the care of the father and what benefit there might be to the child of having a relationship with the father in circumstances where the mother is a victim of family violence.
The family consultant held the view that the father’s persistence may well ultimately be a positive for the child and it was difficult to divine what effect there might be to the child of not having a relationship with the father. This was the case even if the observations of the maternal grandmother were accepted namely, that the child appeared “resigned” to the time that he spends with the father.
Generally, I consider the evidence of the family consultant to be insightful and was supportive of future parenting arrangements being generally similar to the current arrangements. In particular, I do not form the view that the family consultant was prepared to change her recommendation that the child should spend the same time with the father as currently occurs and without extension unless the Court was satisfied that the allegation and assertion of coercive conduct and physical violence perpetrated by the father were without substance.
The father
At the commencement of his evidence the father was concerned to correct what he considered to be a misstatement of the circumstances in which he was imprisoned. It was said that the father was placed in solitary confinement. His evidence is that he was part of the general prison population.
Of greater moment was his evidence that the child’s behaviour was completely different and far more engaged with him generally than was observed by the family consultant. The father offers little explanation for the coincidence of observation by the family consultant of the father and the child on two occasions separated by almost 12 months.
There was focus on the father’s criminal history and in particular offences of violence where the mother was the victim.
He conceded that he had been convicted of an offence of violence against the mother but that he was innocent. He continued his denial of ever having been physically violent to her. There were no incidents where he hit the mother, pushed her or was in any way controlling.
He denied that he ever had a gun in his possession.
In his interview with the family consultant, the father admitted to a minor assault involving the mother. His response to the apparent inconsistency was that he remained innocent and the circumstances of the assault were of little consequence.
He repeated his earlier claim that the alleged victims of various criminal charges were in some way linked to the mother. His position was to deny his involvement in violence and in particular, family violence.
If anything, the father considered that he was the victim of ill-will by others.
He was trenchant in his view of himself as a gentle and non-violent person. Whilst he acknowledged that sometimes problems did arise, his current position was that he just wanted to be left alone.
It was a common mantra of the father during his evidence that he was non-violent by nature and did not get angry.
On occasion where he pleaded guilty, the explanation was not that it should be seen as an admission of guilt but rather, that his plea took into account his solicitor’s advice that an early plea would likely reduce any sentence of imprisonment.
He also denied that he had damaged any property of the mother and in particular, the allegation of the maternal grandmother and the mother that he had smashed the front windows of the mother’s home.
The father considered that the mother had never been able to back up her allegations and accordingly the charges were dismissed.
The father is however clearly capable of violence. He admitted that he had been violent in jail but that was in order to protect himself from assault and intimidation.
The father’s history of offending setting out the charges, brief facts and whether there was or was not a conviction was put to him. He refused to accept the accuracy of his criminal history.
In her affidavit, the maternal grandmother alleges that on 7 April 2005 the father attended her home in an agitated state. His concern arose from the mother terminating his relationship with her. He allegedly jumped the fence and entered the maternal grandmother’s property without her consent.
When he determined that the mother was not present, he left the property and the maternal grandmother records a subsequent telephone conversation in the following terms “I have a gun, I am going to go and shoot [the mother’s] cousin.”
The father also threatened to harm the mother and Mr T.
On the following day the mother contacted the maternal grandmother and asserted that the father had fired a bullet into her property and the home of Mr T and his current partner. The maternal grandmother attended and observed the damage caused by the bullet. The police were advised and the father was arrested and charged.
The father did not concede the version of the events as set out by the maternal grandmother. He denied that the incident had occurred. Notwithstanding his complete denials, I consider that the father was not being truthful.
It was put to the father that he had been charged with assault on his former partner Ms U in April 1999 and then in October 2005. He was convicted of the earlier offence but not convicted in the latter offence. The relevance of violent interaction with Ms U is to be seen against the background of the recollection of the incident by the father’s adult daughter Ms P who referred to the violence in her interview with the family consultant.
Paragraph 49 of the maternal grandmother’s affidavit refers to the allegation that on 18 November 2005 the father smashed six panel glass windows at the front of the mother’s home with an implement, probably a crowbar. The father denies the allegations. The offender history confirms that in respect of an offence committed on 18 November 2005, the father was convicted of a charge of causing damage and failing to comply with a bail agreement.
I do not accept the father’s denial of the offending for which he was charged and ultimately convicted.
The father was convicted of the offence of carrying an offensive weapon and common assault in circumstances where on 26 November 2005 the father had attended at the office of a real estate agent in a highly agitated state threatening to kill people and pulled a knife approaching the manager in a threatening fashion in order to have returned to him monies in respect of a rental property.
Following the father’s attendance at the mother’s property on 3 December 2005 and his behaviour in smashing a bedroom window, the father was charged with damaged property and failure to comply with a bail agreement and a domestic violence order. The mother received the benefit of a further intervention order on 5 December 2005 and he was ultimately convicted on 19 March 2007.
On 19 April 2007 the father was charged with failure to comply with a restraining order, failing to comply with a bail agreement and possible use of prohibited weapon in that he contacted the mother whilst he was holding a third person at his home. The Tactical Response Squad of SAPOL attended and the father was convicted on 23 July 2007.
The father was convicted of the lesser offence of recklessly causing harm to another person being a charge downgraded from attempted murder involving a third person being threatened by the father on 23 May 2006. The father was in prison from 26 May 2007 to 23 May 2008.
On 16 January 2010 the father was charged with aggravated assault in that he attended at the home of Mr V looking for Mr T. Mr V was assaulted and his partner and their children were frightened. Mr V was then taken against his will by the father. He was convicted of the offence of aggravated assault on 28 August 2012 and was in custody from 24 January 2010 to 16 June 2011. He was on home detention and then on supervised bail until he was ultimately sentenced on 28 August 2012.
It was finally put to the father that he assaulted his adult daughter on 25 December 2012. It is noted that the father denied assaulting his daughter and gave a somewhat convoluted explanation of how a happy day had a violent conclusion. He said that any injury sustained by his daughter was as a result of an accidental touching rather than a deliberate intention to hurt her.
Whilst the father was not able to deny the periods of imprisonment, he seemed incapable of accepting that at the very least the offences for which he was charged and convicted had a common theme of violent and aggressive conduct by him. His response to the proposition that the sheer number of offences indicated a propensity to violent behaviour was dismissed by him asserting that there was more to the circumstances surrounding each of the offences than was apparent by the alleged particulars and either his plea of guilty or a subsequent conviction.
The father denied kidnapping anybody but could not explain how in those circumstances it was possible for there to be a conviction with the resultant term of imprisonment.
It was put to the father that in November 2011 he presented to his doctor demonstrating symptoms of depression, anxiety, anger and social phobia. The father denied that he presented with those symptoms but failed to provide any information or evidence in order to counter the assertion or to demonstrate that he had received appropriate and effective treatment.
He considered that the maternal grandmother was trying to manipulate his general practitioner and that she had concocted the child’s diagnosis of Autism Spectrum Disorder.
When asked to consider a possible explanation for the child’s clear behavioural difficulties and oppositional behaviour, the father considered that it was as a result of manipulation by the maternal grandmother and the mother.
Given that proposition, the father was then asked whether there was any likelihood of effective communication between the parties in respect of matters of importance to the child’s care and welfare. The father considered that it would be possible to communicate with the maternal grandmother but less so with the mother.
CONCLUSION
The circumstances of this case require the Court to closely consider the benefit to the child of a relationship with his father and the extent to which the Court should recognise and give effect to family violence, particularly in a case where it is overt, extreme and enduring over a substantial period of time.
Ultimately, I have been persuaded that the father’s behaviour may well have ameliorated as evidenced by the lack of further criminal charge or allegation. There is advantage to the child spending time with the father and the paternal grandmother. There has been now significant history of the time that they spend together and there is a distinct lack of complaint that has arisen notwithstanding the current arrangements have been in place for a reasonable period of time.
The family consultant considered that if the father’s conduct was either not substantiated or there was some evidence of the father having gained insight into his behaviour and present to the child as a better role-model, then that may well present as an opportunity for the time currently spent between the child and the father to be extended.
As at the present date, I do not find that the father has gained that level of insight. If circumstances should exist where the father undertakes appropriate violence counselling, time should be extended to include an overnight period commencing 15 November 2017.
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 August 2016.
Associate:
Date: 5 August 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness