Hunter and Haro and Anor
[2011] FMCAfam 638
•18 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUNTER & HARO & ANOR | [2011] FMCAfam 638 |
| FAMILY LAW – Parenting – father has a child with each of the respondent mothers – father has a significant history of drug and alcohol addiction, criminal behaviour and perpetration of domestic violence – orders made for the father to spend time with the eldest child in accordance with the child’s wishes – orders made for the father to spend limited time with the youngest child – all of the father’s time with either child to be supervised by the paternal grandmother. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MR HUNTER |
| First Respondent: | MS HARO |
| Second Respondent: | MS DURAN |
| File Number: | MLC 7959 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 20, 21, 22, 23 & 24 June 2011 |
| Date of Last Submission: | 24 June 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Cahills |
| Counsel for the First Respondent: | Ms Goldsworthy |
| Solicitors for the First Respondent: | O'Farrell Robertson McMahon |
| Counsel for the Second Respondent: | Mr Puckey |
| Solicitors for the Second Respondent: | Hillier Quinn Law |
| Counsel for the Independent Children’s Lawyer: | Ms Agresta |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Lawyers |
ORDERS
The first-named respondent mother have sole parental responsibility for the child [X] born [in] 2000 (“[X]”).
[X] live with the first-named respondent mother.
Subject to the father’s compliance with orders 12, 14, 17 and 19 herein, [X] spend time and communicate with the father as follows:
(a)each alternate Saturday from 1.00 pm to 5.00 pm, commencing 27 August 2011 and each alternate Saturday thereafter; and
(b)each Father’s Day from 1.00 pm to 5.00 pm.
The second-named respondent mother have sole parental responsibility for the child [Y] born [in] 1998 (“[Y]”).
[Y] live with the second-named respondent mother.
[Y] spend time and communicate with the father at such times and upon such terms as [Y] may wish save that if [Y] expresses a wish to spend time with the father, such time coincide with the time [X] spends with the father pursuant to order 3 herein.
For the purposes of order 6 herein:
(a)the father be restrained by himself, his servants and agents from contacting or communicating with [Y] or attempting to do so, save as provided for in order 8 herein; and
(b)the second-named respondent mother shall give [Y] such assistance as he may require to contact or communicate with the father as [Y] may request from time to time.
Provided the father does not:
(a)harass, intimidate or threaten [Y] or the second-named respondent mother, her partner or family members;
(b)abuse, denigrate or criticise [Y] or the second-named respondent mother, her partner or family members; or
(c)commit any acts of family violence;
the father shall not contravene order 7(a) of these orders by participating in spending time with [Y] or responding to communication from [Y] which is initiated by [Y] in accordance with these orders.
All time spent by the father with [X] and [Y], pursuant to these orders shall be supervised by the paternal grandmother.
In the event the paternal grandmother is unable or unwilling to supervise [X] and [Y]’s time with the father pursuant to order 9 herein, the father’s time shall be suspended on the occasions the paternal grandmother is unable to supervise such time and the paternal grandmother is to give the first-named respondent mother and, if [Y] has chosen to spend time with his father on the occasion/s the paternal grandmother is unable to supervise time, the second-named respondent mother advanced notice of her inability to supervise time no less than seven days beforehand by text message to the mothers’ mobile telephones.
In the event the first-named respondent mother wishes to take [X] away during the long summer vacation then the father’s time pursuant to order 3(a) herein shall be suspended for a period of not more than four weeks upon the first-named respondent mother giving the father two weeks written notice by way of text message to the paternal grandmother’s mobile telephone.
The father, his servants and agents be and are hereby restrained by injunction from abusing, belittling, rebuking or otherwise denigrating the first-named respondent mother and/or the second-named respondent mother, their partners or any members of their families in the presence or hearing of either of [X] and [Y] or either of them, or permitting any other person to do so.
The father shall cause the paternal grandmother to immediately advise either of the first-named respondent mother or the second-named respondent mother of any substantial injury or emergency medical or dental treatment concerning either of [Y] or [X] whilst either of them are spending time with the father pursuant to these orders.
That the father be restrained from:
(a)being at or within 200 metres of any school attended by [Y] or [X];
(b)being present at [X]’s football training sessions unless he has the prior written consent of the first-named respondent mother;
(c)approaching or contacting either [Y] or [X] in any way other than as provided for in these orders; and
(d)consuming any illicit drugs or prescription medication other than as strictly prescribed, or consuming alcohol 24 hours prior to and at any time during which either of [Y] and/or [X] are in his care.
The father is permitted to attend [X]’s weekend football match during any time [X] is spending time with him pursuant to these orders and subject to his compliance with the terms of any current Intervention Orders.
The father be at liberty to receive copies of [Y] and [X]’s school reports and an order form for school photographs and to facilitate this order the first-named respondent mother and the second-named respondent mother cause copies of these documents to be posted to the father’s residential address and such obligation remains only as long as the father maintains an address known to [Y] and [X]’s mothers.
The father continue to attend upon Ms R of [B] Community Health Service in accordance with her recommendations.
At their election, the first-named respondent mother and the second-named respondent mother be at liberty to contact Ms R to discuss the father’s compliance with her recommendation as to attendance.
For a period of 12 months from the date of these orders, the father undertake supervised urine drug screens every second month and provide the results of such drug screens to the first-named respondent mother and the second-named respondent mother by sending a copy of such results by pre-paid post to their known residential addresses, such obligation to send the results of the screens to remain only as long as the residential addresses of the first-named respondent mother and the second-named respondent mother are known to the father.
The first-named respondent mother ensure that [X] attend upon all specialists, including any psychologist, as recommended by his general practitioner and abide by all recommendations as may be made by such specialist as to attendance, assessments, treatment or referral to other persons/organisations.
The first-named respondent mother provide a copy of the Family Report dated 3 May 2011, a copy of the reasons for judgment delivered on 18 August 2011 and a copy of these orders to any psychologist treating [X] and without in any way fettering the discretion of any psychologist treating [X], the father is at liberty to attend upon [X]’s treating psychologist if he is invited to participate in such counselling by [X]’s treating psychologist.
IT IS REQUESTED that the Independent Children’s Lawyer meet with [Y] on or before 26 August 2011 to explain these orders to [Y] and the second-named respondent mother shall cooperate with the Independent Children’s Lawyer in arranging for [Y] to meet with the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Hunter & Haro & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7959 of 2007
| MR HUNTER |
Applicant
And
| MS HARO |
First Respondent
| MS DURAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This very complex matter relates to what time, if any, the applicant father should spend with his two youngest sons in circumstances where his relationship with their mothers has been marked by his extreme domestic violence and drug and alcohol addictions.
The applicant father is seeking orders whereby he will spend regular time with his two youngest sons [Y] born [in] 1998 (“[Y]”) born from his relationship with the second-named respondent Ms Duran and [X] born [in] 2000 (“[X]”) born from his relationship with the first-named respondent Ms Haro, such time to initially be supervised and to build to unsupervised alternate weekend and holiday time over a 16 month period.
The first-named respondent mother is seeking orders that she have sole parental responsibility for [X], that he live with her and that the father’s time with [X] “be reserved”.
The second-named respondent mother seeks orders that she have sole parental responsibility for [Y], that [Y] live with her and spend time with the father at such times and upon such terms as [Y] may wish.
Background
The father was born [in] 1972 and is 39 years of age. He is in receipt of a disability pension. He is currently single.
The first-named respondent, Ms Haro, was born [in] 1981 and is 30 years of age. Her mother is Papua New Guinean and her father is Australian. She is engaged in home duties. Ms Haro has re-partnered and she and [X] live with her partner, Mr H, and their daughter [Z] who was born [in] 2009 (“[Z]”).
The second-named respondent, Ms Duran, was born [in] 1977 and is aged 34 years. She is employed as a [omitted]. Ms Duran is in a relationship with Mr M who is a [occupation omitted]. Ms Duran and Mr M do not live together.
The father has a long history of alcohol and substance addiction, starting when he was 16 years of age. The father has, at differing times, been addicted to and abused marijuana, amphetamines, heroin and prescription drugs.
The father also has a long and continuous criminal history starting in 1989, with his most recent offence taking place in May 2010. The father’s charges include matters of dishonesty, aggravated burglary, drug related offences, alcohol related offences, serious assaults, domestic violence and traffic offences. He has been jailed on many occasions including in 1994, 1996, 1999, 2002, 2004, 2005, 2006 and 2008/2009.
The father also has an older son [S] born [in] 1996 (“[S]”). [S] was born after the father and [S]’s mother had a fleeting one month relationship. They never lived together. The father has spent time with [S] on very few occasions and last saw him around Christmas 2009. It was the father’s evidence that he and [S]’s mother agreed that the father would not take an active role in [S]’s life.
Save for the very brief relationship with [S]’s mother, the father’s relationships have been marked by serious domestic violence. Both respondents in these proceedings report serious violence during and after their relationships with the father. This will be expanded on in more detail later in this judgment.
The father commenced a relationship with Ms S in 2008. This relationship was marked by both parties’ addiction to prescription medication, excessive alcohol abuse and domestic violence. During their relationship, Ms S’s five year old son was removed from her care by the Department of Human Services.
During his relationship with Ms S, the father committed a series of offences including theft, burglary and recklessly causing injury for which he was incarcerated for nine months in 2008/2009.
After his release from jail in May 2009, it is the father’s evidence that he made a decision to try to turn his life around, to address his drug addiction and to close off any contact with his former associates.
In May 2010, the father was convicted of shop stealing, having stolen a can of Wild Turkey. He was placed on a Community Based Order which required him, in addition to performing 50 hours of community work, to undergo alcohol and drug counselling.
The father reconnected with Ms R, a drug and alcohol counsellor with [B] Health Services. The father had first seen Ms R in 2007, having been previously referred to her for drug and alcohol counselling. The father continues to see Ms R on a voluntary basis to this day and, on his evidence, will continue to do so into the future.
The father’s evidence is that he has remained drug free since his release from jail in May 2009. He has voluntarily undertaken drug screens over the last 12 months. The father produced some 11 screen results taken regularly between 13 April 2010 and 6 May 2011, and all were clear of illicit substances.
The father continues to drink alcohol but indicates this is very rarely, and no more than six cans of beer in one sitting.
The father is currently on a disability pension. He lives on his own in a unit in [omitted]. He is supported by his mother, Ms E, who lives nearby and visits him daily. As the father does not have a driver’s license, his mother takes him to all appointments. He has only a couple of friends with whom he has occasional contact and otherwise occupies himself by going to the gym, tending his roses and playing on his computer.
I will consider each of the respondents, their relationship with the father and the history of the father’s relationship and interaction with each of [X] and [Y] in turn.
Mr Hunter/Ms Haro/[X]
The father and Ms Haro were in an on-again/off-again relationship between 1999 and 2005. The parties met when Ms Haro was aged 16 years and the father aged 26 years.
Ms Haro describes their relationship as dominated by the father’s drug addictions and his physical and verbal violence towards her, including threats to kill, punches to the head and damage to property.
In December 2004, Ms Haro and [X] travelled to Perth to meet the father with a view to travelling around Australia together. The parties separated in [town omitted] in June 2005 after a violent argument.
Ms Haro and [X] returned to Bendigo.
The father returned to Bendigo in August/September 2005 and then moved to Queensland until April 2006 when he returned to Victoria to face outstanding Police charges. He was jailed until February 2007.
Commencing in December 2005, [X] spent regular time with his paternal grandmother, Ms E.
In May 2007, shortly after his release from jail, the father commenced proceedings in the Magistrates Court at Bendigo seeking orders that the parties have a shared care arrangement for [X].
On 13 June 2007, interim orders were made in the [B] Magistrates Court for [X] to live with the mother and spend alternate weekends and Wednesday nights with the father. The matter was otherwise transferred to the Federal Magistrates Court.
On 21 August 2007, interim orders were made in the Federal Magistrates Court revising the orders of 13 June 2007 such that [X]’s time with his father was ordered to be each Tuesday from after school to 7.00 pm and each Saturday from 9.00 am to 7.00 pm.
On 30 April 2008, final orders were made by consent which provided for the mother to have sole parental responsibility, for [X] to live with her and spend time with the father each alternate Tuesday from after school to 7.00 pm, each alternate Saturday from 2.00 pm to 4.30 pm, on Christmas Day from 2.00 pm to 4.00 pm and on Father’s Day from 2.00 pm to 4.00 pm. The orders provided that all [X]’s time with his father take place at the paternal grandmother’s home and be supervised by her at all times.
The orders further provided that if the father was unable to spend time with [X], [X] was to spend the time he would have otherwise spent with his father with the paternal grandmother.
After the 2008 orders were made, [X] generally spent time with his father in the terms of those orders, save when the father was jailed or otherwise drug or alcohol affected.
[X] however continued to spend regular time with the paternal grandmother, including overnight time when the father was in jail.
It is the father’s evidence that in 2010, [X] began asking to spend more time with him and accordingly he issued an Application on 20 August 2010 in which he sought orders that [X] live with each of the parties on a week about basis.
After issuing the Application, the father continued to spend time with [X] in accordance with the 2008 orders. In 2011, [X] started playing junior football with [omitted]. This involves training twice a week and a Saturday game. The father started attending at [X]’s football training and games.
On 11 May 2011, Ms Haro returned to her home to find her home had been disturbed. Her underwear had been taken out of her laundry basket and laid out on her laundry floor and her toilet had been used.
Ms Haro believes it was the father who broke into her home as a means to frighten her. The father categorically denies that he broke into
Ms Haro’s home.
When asked by [X] whether the intruder had been the father, Ms Haro told [X] that she thought it could have been.
Because of the break-in, Ms Haro sought an Intervention Order against the father on behalf of herself and [X]. An Intervention Order was granted.
It is Ms Haro’s evidence that in recent months [X] has become increasingly distressed about spending time with the father. She reports that [X] has discussed memories of the father being physically abusive towards her, of him being anxious about seeing his father, of bed wetting, of waking in the night shaking and crying and that these symptoms have become more severe since the May 2011 home break-in.
It is Ms Haro’s evidence that because of [X]’s increasing distress, she took him to their treating General Practitioner who has referred him to a paediatrician, Dr M, and to psychologist/social worker Ms C. [X] has an appointment with Dr M in August 2011, the earliest available, and is on the waiting list to see Ms C.
Because of [X]’s distress, and based on advice from [X]’s treating General Practitioner, in May 2011 Ms Haro advised the father [X] would not be available to spend time with him. [X] missed two visits with his father and was then collected by the paternal grandmother from school on the Tuesday and Saturday before this matter was heard.
At the conclusion of the evidence in this matter, an interim order was made suspending [X]’s time with the father.
The Independent Children’s Lawyer placed into evidence a report prepared by [L] Psychological Consultancy Services, who were engaged by the Education Department at the instigation of [X]’s school, [B] Primary School, to conduct a cognitive assessment of [X] to assess his eligibility for the Department of Education and Early Childhood Development’s Program for students with disabilities.
Having set out [X]’s test results, under the heading “Summary”, the report states as follows:
“[X]’s overall cognitive score placed him within the Mild Intellectual Disability range of functioning at the 0.2nd percentile. The difference between the composite scores was not significant. [X]’s results are reflected in the difficulty he is experiencing in the classroom and in his progression with the school curriculum. [X] will require a modified curriculum and specific support to assist in his academic development.”
It was of major concern that at no time did either the father or
Ms Haro, when giving their evidence, advise the court that [X] had been diagnosed in 2008 with a mild intellectual disability.
Mr Hunter/Ms Duran/[Y]
The father and Ms Duran commenced a relationship in 1996 and separated in May 1998.
Their relationship was marked by the father’s heavy use of illicit substances, including marijuana and amphetamines.
[Y] was born prematurely and was hospitalised for five months after his birth. Upon his release from hospital, Ms Duran and [Y] moved into the paternal grandmother’s home. Three weeks after moving into the paternal grandmother’s home, the father threw petrol over
Ms Duran’s car when she and [Y] were in it and threatened to set it alight. Ms Duran left the paternal grandmother’s home with [Y] the next day.
After leaving the paternal grandmother’s home, Ms Duran moved in to the home of a friend. Two days after moving into her friend’s home, the father rang Ms Duran yelling abuse and threatening her. The father then broke through the front door of Ms Duran’s friend’s home wielding a bat, yelling, swearing and threatening Ms Duran.
As a result of this incident, the father was charged with aggravated burglary and, after a contested hearing, was convicted and sentenced, on appeal, to two years jail.
After the father’s break-in and before he went to jail, he spent supervised time with [Y] at the [S] Contact Centre over a three month period. He did not spend any further time with [Y] until [Y] was approximately five years of age.
When [Y] was about five years of age, the father contacted Ms Duran asking to spend time with [Y]. At this time, he was in a relationship with Ms Haro. [Y] commenced spending time with his father for about four months. The father and Ms Haro then separated and [Y] stopped seeing the father.
When [Y] was about eight years of age, the father again sought time with him. A small number of visits took place at the paternal grandmother’s home but ceased when the father was again incarcerated.
After the father obtained orders in 2008 to spend regular supervised time with [X], [Y] began regularly spending time with [X] at the paternal grandmother’s home, usually every second Saturday for a couple of hours. This time continued whilst the father was incarcerated.
It was the father’s evidence that when [Y] because aware of the father’s Application to this court to spend additional time with [X], he asked his father to go to court so he too could spend additional time with his father.
On Saturday 18 December 2010, it was the father’s expectation that [Y] was to spend time with him. This did not occur as Ms Duran and [Y] went Christmas shopping. That evening the father made a series of telephone calls to Ms Duran. It was her evidence that during those phone calls, the father threatened her, threatened her partner, threatened to kill her partner’s dog and threatened to kill [Y]’s dog. It was
Ms Duran’s evidence that he told her he would make her:
“cower like a puppy again”
as he had done 13 years earlier.
Ms Duran gave evidence that [Y] heard some of the father’s threats and was extremely upset.
Immediately following the father’s telephone calls, Ms Duran made an Application for an Intervention Order against the father. When the matter came before the court, it was Ms Duran’s evidence the father was openly aggressive towards her in court making throat cutting gestures. An Intervention Order was granted in Ms Duran’s favour for five years.
On 7 February 2011, [Y] commenced High School. At the end of [Y]’s first day, the father, driven by the paternal grandmother, went to [Y]’s new school. The father yelled at [Y], demanding to know if [Y] still wished for him to go to court. This exchange took place in front of [Y]’s new school community and caused him extreme embarrassment.
[Y] and his father had commenced communicating with each other via Facebook in mid 2010. After the school incident, the father posted a message on Facebook to [Y] which read:
“how gay try to act like a man liuke (sic) your dad brought you up not how you are hahaha [Ms Duran] will mbe (sic) proud but not [first name omitted] pmsl”
(It is noted “pmsl” is an electronic communication abbreviation commonly known to mean “pissing myself laughing”)
After the school incident and the receipt of the “gay” Facebook posting, Ms Duran sought a variation of the Intervention Order taken out by her in December 2010 so that it included [Y]. Such a variation was granted on an interim basis. The father is contesting the variation to the Intervention Order and the matter is listed for a defended hearing in the [B] Magistrates Court after the conclusion of these proceedings.
After [Y] received the father’s message referred to above, he removed the father as a friend on Facebook.
[Y] has not spent any time with the father since the threatening phone calls in December 2010.
The father
The father’s evidence
The father
In his Initiating Application, the father sought orders that [Y] and [X] live week about with him and each of their mothers. When interviewed by Mr O for the purposes of the Family Report, the father also maintained that these were the orders he was seeking.
However, at the commencement of the final hearing of this matter, Counsel for the father handed up a document headed “Father’s Proposed Orders” which is in the following terms:
(1)The Father and the 1st + 2nd Respondent Mothers have equal shared parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 1998 (the children).
(2) The Father spend time with the children as follows:
(a)for a period of 4 months until the 21st of October 2011 from after school each alternate Tuesday until 7.30 pm and each alternate Saturday 12.00 noon until 7.30 pm with such contact occurring at the Paternal grandmothers home who shall supervise such time.
(b)for a period of 6 months each alternate Tuesday from after school until 7.30 pm and from 11.00 am until
7.30 pm each alternate Saturday or Sunday subject to the childrens sporting commitments.
(c)for a further period of 6 months from after school Tuesday until 7.30 pm each alternate week and from 10 am Saturday until 7.30 pm Sunday each alternate week.
(d)Thereafter from after school each alternate Tuesday until 7.30 pm and from after school Friday until
7.30 pm Sunday each alternate weekend.
(e)from 5.00 pm Xmas eve until 4.00 pm Xmas Day in odd numbered years and from 4.00 pm Boxing Day in Even numbered years.
(f)In 2012 for 3 days commencing the middle Friday at 5.00pm until 5.00 pm Monday in each school term holiday.
(g)Commencing the 2012 long summer holidays + thereafter on an alternating week basis with first week in even numbered years and second week in odd numbered years including school term holidays thereafter in 2012.
(h)on fathers day from 10 am until 7.30 pm.
(i)on the childrens birthdays for 2 hours at times to be agreed or in default between 3.30 and 5.30 pm.
(j)at other times as agreed.
(3)The fathers time as set out herein be subject to him providing clean supervised urine screens for illicit substances at the commencement of each period referred to in these orders which increases his time.
(4)In the event the father provides urine screens showing the use of illicit substances unless prescribed the Respondents be entitled to suspend contact pursuant to these orders.
(5)The father be entitled to receive (at his cost) copies of all notices, reports and photographs of the children from their respective schools and attend all school events and occasions where parents are usually invited.
(6)The father be and is hereby restrained from consuming any illicit drugs or alcohol 24 hours prior to and at any time the children are in his care.
(7)The father continue to engage Ms R [B] Community Health Services in accordance with her recommendations.
(8)The Respondents be authorised to contact Ms R to confirm the fathers compliance with treatment.
(9)The fathers time where applicable be suspended as follows:
(a)from 5.00 pm Xmas Eve until 4.00 pm Xmas Day in odd numbered years
(b)from 4.00 pm Xmas Day until 4.00 pm Boxing Day in even numbered years
(c)from 10 am Sunday until school or 9.00 am Monday on the Mother’s Day weekend.
(10)Each party keep the other informed by text message only in the event that one of the children is injured or ill whereby the child requires medical treatment.
(11)Save as set out herein the father be restrained from communicating with either Respondent.
(12)That changeover for the purposes of these orders occur at McDonalds Restaurant…/[B] Police Station when not at school.
(13)These orders apply to [Y] for a period of 2 years and thereafter the contact with the father be in accordance with [Y]’s wishes.
(14)Each party be and is hereby restrained from denigrating the other in the presence or hearing of the children.
Whilst in the proposed orders the father indicated he was seeking equal shared parental responsibility, in his Counsel’s closing at the conclusion of the hearing of this matter, it was indicated that the father was not pursuing orders in these terms and that he conceded that the boys’ respective mothers should have sole parental responsibility.
It is the father’s evidence that upon his release from jail in 2009, he made the decision that he wished to turn his life around. It was his evidence that he has not used illicit substances since that time and that his alcohol consumption is now minimal.
It was the father’s evidence that the motivation for this change was his wish to be more involved in [Y] and [X]’s lives and that this had been brought home to him when [X] had told him how he had let him down by going to jail and not being there to see him.
The father gave evidence that he was convicted of stealing a can of Wild Turkey from a bottle shop in 2010 for which he was sentenced to a Community Based Order and required to undergo assessment and treatment for alcohol and drug addiction. As a result, the father reconnected with Ms R from the [B] Community Health Services, with whom he had previously undertaken counselling as a result of prior criminal offences.
It was the father’s evidence that he continues to see Ms R on a voluntary basis once a month and that whilst she has told him he doesn’t need to continue to attend, he does so as she gives him someone with whom he can touch base and talk. It is his evidence he will continue to do so into the future.
The father indicated that he had voluntarily been undergoing supervised drug screens since his release from jail. He produced some 11 screen results between the period 13 April 2010 to 6 May 2011, all of which were clear of illicit substances. The father indicated that he is able to have six drug screens each year free of charge and that he would agree to any orders requiring him to continue to undergo drug screens as a condition of him spending time with [Y] and [X].
It was the father’s evidence that he had commenced proceedings in this court seeking further time with [X] and [Y] as a direct result of their request that he do so. It was his evidence that [X] first raised the matter with him and that as a result he issued proceedings seeking extra time with [X]. He indicated that [Y] then asked him why he was not also seeking additional time with him and that [Y] indicated he wanted to spend equal time with his father like his friend [name omitted] was spending with his father.
The father spoke of wasting the last 15 years of his life through drugs and alcohol. He acknowledged that his relationships with the mothers of [Y] and [X] had been impacted by his drug and alcohol addictions and by violence perpetrated by him.
Whilst the father expressed some remorse in relation to this violence, when closely questioned about the violence perpetrated he sought to downplay or deny the extent of that violence.
When cross-examined by Counsel for Ms Haro, and when particular instances of violence were put to him, the father either denied they happened, indicated that he could not recall the incident or that the extent of the violence was much less than that which was alleged. For example, when it was put to him that he had punched Ms Haro in the face, it was his evidence that it was probably more pushing her. When it was alleged that he had threatened Ms Haro with a knife whilst [X] was in her arms, the father denied the existence of the knife and indicated that [X] might have been in her arms when he pushed her onto a couch. The father denied attending [X]’s school in an alcohol or drug-affected state and having to be escorted from the school premises, even though the school records confirmed this incident. He agreed that he and Ms Haro had had an argument at [X]’s school in his presence, but was adamant that he had neither assaulted or spat at her, though did concede that he had pulled her hair because he got upset when she had taken [X] from his arms.
When asked if he thought that Ms Haro was scared of him, it was the father’s evidence that he did not believe so as in recent times he had attended at [X]’s football games on at least 16 occasions and that they had been able to stand 10 metres apart without there being any problems between them.
The father absolutely denied any knowledge of or responsibility for the break-in into Ms Haro’s home in May this year.
The father was questioned as to his attendance at [X]’s football after being served with the Intervention Order that Ms Haro took out against him on behalf of herself and [X] after the break-in incident. It was the father’s evidence that he had attended at the football at a time he thought would mean the mother and [X] had left in order to show the Intervention Order to those in charge of [X]’s football to explain why he was unable to attend. He denied waving the Intervention Order at Ms Haro when he saw that she and [X] were still at the ground.
The father was cross-examined in relation to the incident in 1998 involving Ms Duran that led to him being convicted of aggravated burglary and jailed for two years.
In the father’s trial affidavit, sworn and filed 9 June 2011, in paragraph 15, the father describes the incident as follows:
“I forced my way into [Ms A]’s home and gave [Y] a kiss and a cuddle and then left. As a result of this incident I was convicted of aggravated burglary (although I did not remove anything from the house). I was sentenced to three years jail. I served 13 and a half months waiting an appeal to the Supreme Court. Judge Vincent reduced the sentence to two years and 14 months. I served a further two weeks and was then released on parole.”
When cross-examined in relation to this incident, the father conceded that there was a little more to the incident than just entering the house to give [Y] a kiss and a cuddle, and indicated as follows:
“At that time I went up there and kicked the door in, went and gave him a kiss and a cuddle, said ‘won’t be seeing you for a while’, and walked out, and said ‘don’t stop me from seeing my son’.”
The father was then asked if that was it, to which he replied:
“Yes.”
Counsel for Ms Duran suggested to the father that he would not have been charged or convicted of aggravated burglary if he had not been armed with a weapon. He conceded that that was correct. When asked what that weapon was, he indicated it was a bat, but:
“just a little wooden bat, like, made out of red wood.”
In her affidavit sworn and filed 28 February 2011, Ms Duran sets out in great detail an incident that occurred on 18 December 2010. She alleges the father made a series of threatening telephone calls to her home in which he threatened to come over to her house, kill her boyfriend, kill her boyfriend’s dog, kill [Y]’s dog and that he knew where the boyfriend lived and worked.
Ms Duran details that having spoken to the Police after receiving these initial calls, the father rang back laughing because the Police had gone to the wrong home.
Ms Duran then deposes that sometime later, the father again called her and threatened that he was going to make her:
“cower like a puppy like you did at [Ms A’s].”
Ms Duran told the father that her boyfriend was present and he wouldn’t do anything whilst her boyfriend was there. The father threatened to come to “[omitted]”. Ms Duran works for [omitted] and understood this comment to be a threat by the father that he would come to her place of work.
It was Ms Duran’s evidence that the father sounded intoxicated or drug affected during the threatening phone calls.
When questioned as to this incident, the father conceded that he did make several calls to Ms Duran’s home that night but denied threatening her in any way. He denied making any reference to the earlier assault, denied threatening to kill Ms Duran’s partner’s dog or [Y]’s dog and indicated that the only reference he made to “[omitted]” was in the context of her putting on the water works, meaning crying, as soon as [Y] had indicated that he wanted to live week about with each of his parents.
It was the father’s evidence that Ms Duran has not only exaggerated this incident, but has lied about it in order to prevent him having contact with [Y].
The father conceded that on this evening he had been drinking alcohol. He did not indicate the quantity of alcohol consumed.
The father was also cross-examined in relation to attending [Y]’s school on his first day of high school. It was put to the father that [Y] had told Mr O about this incident and in particular how upset he had been by this incident. Further [Y] recalled that his Nan was telling the father that they shouldn’t be parked where they were outside the school and that he remembered the father telling his Nan to “shut up”. [Y] told Mr O he had been embarrassed by the father’s behaviour on that day when he was trying to make a first impression at his new school.
The father was asked whether [Y]’s version of that incident was wrong. It was the father’s response that [Y] had exaggerated what had happened and that he had not meant to upset [Y].
The father was then questioned about the Facebook message that he sent [Y] shortly after that incident, the contents of which have previously been set out in this judgment.
It was the father’s evidence that his comments were meant as a joke and related to a photograph that [Y] had posted on Facebook in which [Y] was wearing makeup. It was the father’s evidence that his comments were not intended to be in any way insulting or upsetting.
It was the father’s evidence that he was of the view that [Y] has changed his views in relation to spending time with him, from Facebook postings in early December 2010 that detailed that he wanted to live week about with his father to only wanting to spend time with him as he chose, because [Y] was trying to placate his mother. The father did not recognise any correlation between the December 2010 and school incidents to [Y]’s change of heart.
When asked as to his opinion of the parental capacities of his sons’ mothers, it was the father’s evidence that when in a relationship with them, he was of the view that they were both lazy.
In relation to Ms Haro, the father was most critical of her parenting of [X] since separation. He raised concerns as to her lack of attention to [X]’s health, and in particular to the eczema from which he suffers quite badly, recalling instances of [X] attending at the paternal grandmother’s home with dried and scabbed legs. The father also expressed concerns about Ms Haro’s lack of attention to [X]’s education, noting multiple unexplained absences from school over many years and his concerns in relation to [X]’s academic progress being at a level less than his peers. As noted earlier, the father seemed to be ignorant of any diagnosis of [X] with mild intellectual disability and the impact that might have on his schooling.
By contrast, the father was most complimentary of Ms Duran’s parenting of [Y] since separation and expressed the view that she had properly attended to all [Y]’s emotional, physical and educational needs.
Whilst conceding that he had been an intermittent presence in his sons’ lives because of his drug and alcohol issues and his periods of incarceration, the father was of the view that he had a positive relationship with both his sons.
The father was asked why he thought it was important that his sons have a relationship with him and what it was that he could contribute to their lives. It was his evidence that he wanted to be a role model for his boys by showing them, through his own life experiences, why they should refrain from drugs, alcohol, violence and crime. The father indicated that he wanted to show his sons that he loves them, for them to be able to go out and do things like fathers and sons do and to show them that their father would stand by them and support them.
When giving his evidence, there were times when I had real concerns as to whether the father had fully understood the questions being put to him as his answers were at times disjointed and unrelated to the question put. The father conceded that he has difficulties with both his short-term and long-term memory, and whilst there were occasions where his failure to remember incidences could be interpreted as avoidance or denial, there were also occasions where it was quite apparent that he had no recollection of the events in question.
Ms E
Ms E is the paternal grandmother. She filed an affidavit in support of the father on 9 June 2011 and gave viva voce evidence at the final hearing of this matter.
It was the paternal grandmother’s evidence that she and the father have a really close relationship and that if she didn’t stick by him, he would have no one else.
It was her evidence that she drives the father to all his appointments as he does not have a license and is reluctant to use public transport, as he is seeking to avoid meeting old acquaintances.
It was the paternal grandmother’s evidence that the father can forget his appointments, so they have an arrangement where he advises her of them, she writes them down and takes him to them to ensure that he attends.
The paternal grandmother noted that the father has somewhat of a lonely life now and that if it wasn’t for his hobby of playing on his computer she would worry about him.
It was her evidence that she sees her son daily by either dropping in to him at his home or him coming to visit her.
The paternal grandmother agreed that whilst the father was using drugs and drinking there were a great deal of difficulties with his behaviour, but that he had really turned his life around in the last year or so.
It was the paternal grandmother’s evidence that even whilst the father was in the throes of his drug and alcohol addictions, he ensured that he was not drug or alcohol affected if he spent time with [X] and [Y]. It was her evidence that if he had attended her home alcohol or drug affected when [X] and [Y] were with her, she would have told him to leave.
The paternal grandmother conceded that the father could be aggressive when drug or alcohol affected. She gave evidence that when he was like that she:
“never pushed the issue and aggravated it any more. I would wait and then the next day I would say my piece then.”
The paternal grandmother described a close and loving relationship with both her grandsons and confirmed that they have spent regular time with her, even when the father was in jail or otherwise absent.
The paternal grandmother described a positive relationship between the boys and their father, though conceded that it can get boring for them having to remain in her home during their time with their father. She gave evidence that there had been occasions where she, the father, [Y] and [X] had gone to the father’s home and somewhat naively indicated that she didn’t believe she was in breach of the existing orders because she was with the father and the boys and supervising their time.
The paternal grandmother was asked about her relationship with [X] and [Y]’s mothers.
In relation to Ms Haro, the paternal grandmother indicated that whilst their relationship had once been good, at this time there had been a deterioration in that relationship and that they were currently unable to communicate civilly with each other.
When questioned as to her views on Ms Haro’s parenting capacity, the paternal grandmother was quite negative. She raised concerns in relation to Ms Haro’s physical care of [X], and in particular the care of [X]’s eczema. She produced photographs that showed [X]’s legs in what must have been a very painful condition for him. The paternal grandmother conceded those photographs were taken some years ago.
She was also very critical of Ms Haro’s lack of attention to [X]’s education, noting he was often absent from school and that for his age he was behind in his reading and his spelling. The paternal grandmother also appeared to have no knowledge of [X]’s learning difficulties and diagnosis of mild intellectual disability.
In relation to Ms Duran, the paternal grandmother spoke much more glowingly. She was most complimentary of Ms Duran’s parenting of [Y] and indicated there were no issues as far as she was aware with her relationship with Ms Duran.
However, like the father, the paternal grandmother believes [Y]’s “change of heart” in respect to no longer wanting to spend regular time with his father is because of the influence of Ms Duran.
The paternal grandmother confirmed that the father does occasionally still consume alcohol. It was her evidence that on such occasions, he has some six cans of beer and that she has occasionally driven him to the bottle shop in order to purchase the alcohol. She expressed the view that she did not see this as an issue as he drinks no more than six cans of beer on those occasions.
It was the paternal grandmother’s evidence that on 18 December 2010, the night where the father has rung and threatened Ms Duran, he was angry and upset because he had not seen [Y]. She confirmed that he had been drinking. It was her evidence that she has a regular Saturday night dinner date and that she was not available to the father to assist him during this period.
When questioned as to the father’s abusive behaviour on that day, it was the paternal grandmother’s evidence as follows:
“That very day, from what I understand is, I think there was a bit on both sides. And they know exactly what buttons to press and that as well.”
The paternal grandmother was asked whether she was frightened of the father. She was questioned in particular in relation to the two incidences that were reported where the father had told her to shut up, firstly at [Y]’s school and secondly during the Family Report interview process with Mr O.
The paternal grandmother denied that she was frightened of the father. Further, she denied that the father had told her to shut up, either at the school or in the Family Report interview process with Mr O. When advised that the father had already conceded that he had told her to shut up on both these occasions, the paternal grandmother seemed somewhat flustered. She explained her evidence by indicating that as she talks far too much, her sons are always telling her to shut up and she just doesn’t notice when they do. She indicated that she does not believe there is anything malicious or threatening in her sons telling her to shut up.
Ms R
Ms R is a drug and alcohol counsellor with [B] Community Health Services. The father attached a Report from Ms R dated 31 May 2011 to his affidavit of evidence in chief. By agreement, Ms R gave viva voce evidence by telephone at the final hearing of this matter.
It was Ms R’s evidence that she first treated the father in 2007. She again treated him in 2008 and most recently had re-engaged with him in 2010 as a result of a Magistrates Court order that he undergo drug and alcohol counselling as a result of his conviction for shop stealing.
It was Ms R’s evidence that she saw the father on four occasions in the context of the Corrections Order and thereafter discharged him on
16 August 2010. It was her evidence that the father has continued to consult her fortnightly on a voluntary basis. It was her evidence that she would normally have disengaged with the father because she was of the view that he was able to maintain his abstinence from illicit substances, but because he had requested ongoing contact to enable him to have someone to talk to and help him stay focussed that she had been happy to continue her involvement with him and was happy to continue her involvement with him into the future.
Whilst it was Ms R’s evidence that complete abstinence from drugs and alcohol was ideal, she indicated that it was not of concern to her that the father had given evidence that from time to time he would drink up to six stubbies of beer. She indicated that having so dramatically reduced his alcohol consumption in recent times, his tolerance levels would have lowered and that a small amount of alcohol would not adversely affect his behaviour.
Ms R also expressed the view that she did not believe the father would drink in the presence of or whilst he was spending time with his children.
When challenged as to her evidence as to her lack of concern in relation to the father’s consumption of alcohol, Ms R conceded that her main concern had been about the father’s illicit drug use and that this was the more important focus for her as far as abstinence was concerned.
When it was put to her that six stubbies of full strength beer was the equivalent of nine standard drinks, she indicated that she did not see that as a problem as long as the father was not drinking that level of alcohol day after day after day.
It was Ms R’s evidence that she viewed the father as having been one of her successes, in that he was developing the requisite insights and skills to ensure that he did not revert to his former addictions. It was her evidence as follows:
“I really have no hesitation in saying what I’m saying in regard to Mr Hunter now having some access to his two sons. I have seen such a remarkable progress of lapses, relapses and then this change of attitude towards what he believes is the best for him and for his children. He is making these changes and they are significant changes. They are not without struggle and they are not without – they are not with a guarantee. However, I believe if there are orders put in place where Mr Hunter can be continued to be monitored and continue with his urine screens, I see no reason why – and I would certainly be the first one who would say that children should not be placed in any risk situation whatsoever, but I – I believe that changes can happen. Positive changes can happen and I have seen this and I have no hesitation in saying that I believe that the children, he can be a good role model for his children, for his two boys.”
Ms R was questioned about the allegations that had been made against the father of extreme acts of violence against his former partners. Ms R indicated that she had been told about that, but:
“The accusations that Mr Hunter presented to me in his words were ‘not true and unsubstantiated’.”
The mothers
The mothers’ evidence
Ms Haro
Ms Haro is seeking orders that she have sole parental responsibility for [X], that he live with her and that his time with his father be reserved.
At the conclusion of evidence, Counsel for Ms Haro handed up a minute of her proposed orders and they are set out below:
1.That all previous parenting orders be discharged.
2.That the child of the relationship [X] born [in] 200 (sic) live with the First Respondent Mother.
3.That the First Respondent mother have the sole parental responsibility for the child.
4.That the Father’s time with the child be reserved.
5.The Father be and is hereby restrained from attending at the residence of the First Respondent Mother or otherwise contacting or approaching her or the child.
6.That the First Respondent Mother authorise the child’s school to provide to the Father at the Father’s expense (if any) copies of school reports, newsletters, photo order forms, notices and the like.
7.The First Respondent Mother shall keep each the Father informed as to any substantial medical treatments or conditions for the child, and inform him as soon as practicable in the event of serious injury or hospitalisation for the child.
8. That the First Respondent Mother : -
a)engage the child in counselling with Ms. Ms C as soon as practicable, and
b)ensure that the child attends for all scheduled appointments;
c) follow any recommendations made by Ms C.
9. That Ms C be provided with :-
a.a copy of the Family Report prepared by Mr. O dated 3 May 2011; and
b. a copy of these orders.
10.Should Ms C recommend, then the Father be invited to participate in such counselling, upon such terms and in such a manner as Ms C thinks in the best interests of the child.
11. That the Mother:
a.ensure that the child attend for appointments with
Dr. M, Paediatrician.
b. Follow any recommendations made by Dr M
12. Otherwise all extant applications be dismissed.
13.Pursuant to ss.62B and 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
It was Ms Haro’s evidence that whilst initially she proposed that the arrangements for [X] to spend time with his father as contained in the 2008 orders continue, in recent times [X] has been exhibiting real signs of distress about spending time with his father.
It was Ms Haro’s evidence that [X] has become very distressed, that he is not sleeping well and is bed-wetting. She gave evidence that [X] tells her that he does not want to spend time with his father, that he is afraid and feels he will get in trouble if he doesn’t go and see his father and is most fearful of what will happen if his father was to find out that he feels that way.
Ms Haro gave evidence that she believes as [X] gets older, he is remembering his father’s violence.
It was Ms Haro’s evidence that [X] has told her that when he spends time at his paternal grandmother’s house, his father and paternal grandmother “pump him” about what happens in her home. It was her evidence that [X] comes home miserable and tells her there is nothing to do at the paternal grandmother’s home. It was Ms Haro’s evidence that in the last two weeks, [X] has been adamant about not wanting to go and has started crying at the thought of being made to do so.
It was Ms Haro’s evidence that she had taken [X] to their treating General Practitioner because of the levels of distress he was exhibiting. She indicated that the General Practitioner has referred [X] to a paediatrician and social worker/psychologist with a view to assisting [X] to address the distress and symptomology he is currently exhibiting. [X] had not seen either the paediatrician or social worker at the time of the final hearing. He has an appointment to see the paediatrician in August and was on the waiting list to see the social worker/psychologist.
It was Ms Haro’s evidence that since [X] stopped spending time with his father, he had improved considerably and was a lot happier.
It was Ms Haro’s evidence that historically she has attempted to shield [X] from the father’s behaviours and their impact upon her.
It was Ms Haro’s evidence that she was unable to do this at the time of the recent break-in into her home. It was her evidence that when [X] saw what had happened, and her distress and fear, he asked her whether it had been his father and that she had told him she didn’t know but that she thought it probably had been.
It was Ms Haro’s evidence that [X] is also aware of the Intervention Order that she took out against the father subsequent to this incident, and conceded that he did so because she had told him as:
“he is old enough to be told.”
It was Ms Haro’s evidence that she did not believe the paternal grandmother has or would adequately supervise [X]’s time with his father as she is so very much aligned with her son. She expressed the concern that in the past if any issues or concerns were raised with the paternal grandmother, she did not want to hear them and that she would not challenge her son in relation to his behaviour.
Whilst indicating that initially she had a positive relationship with the paternal grandmother, Ms Haro indicated that this has completely broken down and that they now have no relationship at all. She indicated that she was aware that the paternal grandmother spoke very negatively of her parenting capacity and did so in front of [X].
Ms Haro was asked about the relationship that [X] has with his brother [Y]. She indicated that they were close and that up until last year had been at the same Primary School.
Ms Haro indicated that with [Y]’s move to high school, the boys had not spent as much time together. She gave evidence however that this year, [X] has spent a weekend with [Y] in his home and that similarly [Y] had spent a weekend with [X] in her home.
Ms Haro was quite honest with the court that because of her experience with the father, she would be happy to have him completely out of her and [X]’s lives.
When asked whether she thought the father loved [X], she indicated that she really didn’t know given his violence, drug addiction, multiple jail sentences and past behaviour.
When asked what she would do if [X] were ever to come to her in the future and ask her whether his father loved him, she responded as follows:
“It is not my place to say that.”
Ms Haro was asked as to [X]’s progress at school. It was her evidence that he is going very well, that his school is very happy with him and that there had been a measurable improvement in his writing and reading. It was her evidence she was very proud of him but she agreed that he was still not up to the same level as his peers.
Ms Haro was asked as to whether there had been any formal diagnosis in relation to [X] and his learning difficulties. Her response was that she had spoken to the school about his “educational side” and that there was some investigations to take place as to whether there was a correlation between his exposure to domestic violence and his learning disability as part of the referral to the paediatrician.
At no time did Ms Haro give evidence of the assessment that had been completed by [L] Psychological Consulting Services at the request of the school in 2007 or of the diagnosis of mild intellectual disability.
Ms Duran
Ms Duran is seeking orders that she have sole parental responsibility for [Y], that [Y] live with her and spend time and communicate with the father at such times and upon such terms as [Y] may wish. Her full proposal was provided by Counsel at the conclusion of the matter and is set out below:
1.The Mother have sole parental responsibility for the child [Y] born [in] 98.
2.The child live with the Mother.
3.The child spend time and/or communicate with the Father at such times and upon such terms as he may wish.
4.For the purposes of para 3:
a)the Father is restrained by himself, his servants and agents from contacting or communicating with the child or attempting to do so save as provided in para 5
b)the Mother is to give to the child such assistance as he may require to contact or communicate with the Father as the child may request from time to time.
5. Provided he does not:
a)harass, intimidate or threaten the child or the Mother or family members including partners thereof; or
b)abuse, denigrate or criticise the child or the Mother or family members including partners thereof; or
c)commit any form of family violence;
the father shall not contravene para 4(a) of these Orders by participating in spending time with the child or responding to communication from the child which is initiated by the child in accordance with these Orders.
6.All extant applications concerning the child are otherwise dismissed.
7. Usual s65DA(2) orders.
Ms Duran was a most impressive witness.
It was Ms Duran’s evidence that up until the 18 December 2010 incident, she had done her best to shield [Y] from his father’s behaviours as she was of the view that it was not for her to make the decision for [Y] as to whether he should or wanted to see his father.
Ms Duran gave evidence that she didn’t want [Y] to get to 14 or 15 years of age and say to her:
“You kept me from my Dad and I’m going to seek him out.”
Ms Duran expressed the view that [Y]’s regular visits to his paternal grandmother’s up to December 2010 was more to see his Nan and [X] than necessarily to spend time with his father.
It was Ms Duran’s evidence that whilst [Y] may have been expressing views to spend more time with his father towards the end of last year, the 18 December 2010 incident, the school incident and the following Facebook message had caused [Y] to change his mind about wanting to spend regular time with his father.
Whilst Ms Duran spoke positively of the paternal grandmother and her relationship with her, noting that she had been there for [Y] over many years and always had Christmas and birthday presents for him, after the most recent events, she was not confident that the paternal grandmother would be able to protect [Y] in the event the father was to become agitated, particularly if, as [Y] got older, he started to challenge his father.
Ms Duran became quite angry when questioned about the father’s evidence that the Facebook communication that referred to [Y] as being gay was a joke and made reference to a photograph that [Y] had posted on Facebook. It was her evidence that this photograph had been posted towards the end of 2010, some months before the father’s Facebook message and the message was not related to that photograph in any way. She confirmed that [Y] was very upset and very hurt by the comments that his father made on Facebook.
Ms Duran confirmed that [Y] and [X] have a close relationship. She indicated that whilst they do not see as much of each other as they did when they were both at the same school, they have spent time with each other this year, as well as regularly speaking to each other on the telephone. She was confident that the brother’s relationship would remain strong into the future.
Ms Duran was asked how [Y] would be able to see his father, if in the future he expressed a desire to do so.
It was Ms Duran’s evidence that she believed that she and [Y] had a sufficiently strong relationship that [Y] would be able to raise his wish to see his father with her, and that if he did so, whilst it would be difficult, she would ring the paternal grandmother and make the appropriate arrangements.
Ms Duran conceded that she would in all probability not raise the issue of him seeing his father with [Y] herself, and that she would probably wait for [Y] to raise it with her.
Ms Duran was asked whether she would agree to orders that would allow Facebook or email communication between [Y] and his father. She expressed concerns about such orders as she was worried that it would lead to the potential harassment of [Y] by his father. She indicated that for the short period of time that [Y] was friends with his father on Facebook, the father would become quite demanding if [Y] didn’t immediately respond to his messages if the father was aware that [Y] was online at that time. Ms Duran indicated that if [Y] chose to
re-open electronic communication with his father, she would support him in that decision.
It was Ms Duran’s evidence that she did not believe [Y] and the father had a particularly strong relationship, primarily because of the father’s long absences in [Y]’s life.
Ms Duran however expressed a view that the father does love [Y] and that on some level [Y] also loves his dad, albeit this is as much his idealised idea of what a father should be rather than necessarily the father himself.
Mr D
Mr D is a registered psychologist who is currently treating Ms Duran.
Mr D prepared a Report for Ms Duran dated 7 June 2011 and it was placed before the court by way of an affidavit sworn by Mr D on
9 June 2011. None of the parties sought to cross-examine Mr D.
In his Report, Mr D indicated that Ms Duran had been referred by her employer for counselling as a result of the incident on 18 December 2010 and as a result of the proceedings currently before the court. In his Report Mr D stated on page 7 as follows:
“Ms Duran has experienced Extremely Severe levels of Anxiety as she has feared for her life. She perceives Mr Hunter as dangerous, threatening and cites as evidence his history of violence and incarceration. As a consequence, whenever contact is made by phone, at handover or by way of the impact on [Y] during contact, she has become anxious to the point of panic attacks.”
Mr D noted that Ms Duran has begun to feel marginally safer as a result of the Intervention Order, support from work and friends and cognitive behavioural intervention.
Mr D noted as follows:
“From what she has described of her history and recent incidents, she is realistic in feeling frightened. As the supports have slowly fallen into place, such as the intervention order, she has gained some confidence to stand up for her rights and obtain protection of her family. An example of this was she was initially so terrified and afraid of Mr Hunter that she could not appear in the witness box in seeking an intervention order. This was despite desperately wanting to also protect their son. Slowly she has gained confidence to do so and has attended court on recent occasions and been able to state her views. Her anxiety is still very high but with the affect regulation strategies she has developed, and with the knowledge that she is relatively safe in court, she has slowly developed the courage to put her case in order to protect her son as well as herself.”
In describing Ms Duran, Mr D said as follows:
“She presents as a genuine, honest and capable woman who wants to do the best for herself and her son in an extremely trying and threatening environment.”
Finally, under the heading “Conclusion”, Mr D stated as follows:
“At this time, in my opinion, Ms Duran is improving but is at a transition stage where she remains vulnerable to reminders of the alleged abuse she has suffered as well as direct aggressive behaviours.
While she may not fully meet criteria for Post-Traumatic Stress Disorder she exhibits a number of symptoms consistent with this diagnosis, including numbing, hyper-arousal and intrusive thoughts. Her anxiety levels can vary but are often at Extremely Severe levels, although as she is facing her issues I estimate they have decreased to Severe levels.”
Mr D also noted that he met with [Y] on one occasion in February 2011.
In his Report, under the heading “[Y]”, Mr D referred to the incident outside [Y]’s school and indicated that this had been embarrassing and anger provoking for [Y] as well as causing him and Ms Duran anxiety.
Mr D also indicated that [Y] told him that the father had called him “gay” and “a pussy” and that whilst [Y] had indicated this had only occurred once, the way [Y] discussed his relationship with his father, Mr D was of the view that such behaviour appeared to be indicative of a pattern.
Mr D indicated as follows in his Report:
“He (sic [Y]) discussed his father’s behaviour towards him as varying from nice through to indifferent and often threatening and abusive to him about his mother, for example, calling Ms Duran a ‘bitch’ and threatening to ‘kill us all’.”
Mr D then indicated in his Report the following:
“Extremely disturbing for this child were the threats to kill them all as well as specifically Ms Duran, her new partner and ‘all the dogs’ in one incident. He remembers a number of incidents in detail including turning off all the lights at home after threats from Mr Hunter that he was just around the corner. He recalls his mother and her partner being very scared. This impacted badly on him.
When his mother becomes terrified and agitated it clearly distresses [Y].”
Mr D indicated that [Y] expressed a desire to him to see his father, but not for overnights. Mr D also indicated that it became apparent to him that [Y] gained more from seeing his half-brother and his grandmother as he often described his father as being preoccupied with other interests when he visited his father at his grandmother’s home.
Mr D indicated in his Report that [Y] had told him that his mother had become upset at him for wanting to see his father after Mr Hunter had threatened to kill them all.
Ms Duran explained that this request from [Y] to see his father was on Christmas Day 2010, only a week after the father had made the series of threatening phone calls. She confirmed she had become very upset and had asked [Y] how he could want to see his father after what he had threatened to do. It was her evidence that she believed [Y] actually wanted to go and see his grandmother in order to get his Christmas presents.
Mr O
Mr O is a Regulation 7 Family Consultant with the Federal Magistrates Court and prepared a Family Report in this matter dated 3 May 2011. Mr O also gave viva voce evidence at the final hearing of this matter.
After a lengthy Report, Mr O summarised his observations and recommendations under the heading “Evaluation” set out as follows:
Evaluation
The writer grew more concerned as the process of the assessment continued. It is very clear to the writer that there is a significant history of family violence that has been perpetrated in this matter that involves Mr Hunter and at least four partners. The pattern and history of the abuse Ms Duran and Ms Haro endured seem to mirror each other and is most significant.
The writer also grew concerned about the risk of psychological abuse that these women were being exposed to by the application before the Court.
It was very evident that Mr Hunter is deeply committed to seek change and increase his time with the boys, and that he will not be able to consider alternative proposals.
It struck the writer as very unusual that both boys would seemingly independently seek equal time at the same time.
The writer was left in little doubt as to the fear that Ms Duran holds in regard to such a prospect. The impact of litigation upon her was palpable.
Ms Haro seemed more resigned to the fact that there was, in all probability, little risk of this occurring. Nonetheless, she indicated that she was shocked that Mr Hunter could reapply to the Court and ‘drag’ her back in to litigation as has occurred.
Both mothers seemed anxious about the consequences of a poor outcome for Mr Hunter from Court. Both seemed keen to limit Mr Hunter’s connection with them and saw his actions as strategic and aimed at hurting them psychologically. Ms Duran saw it as punishment for seeking an Intervention Order.
Mr Hunter seemed intent upon pursuing change in arrangements and increased time. He seemed to know exactly what he was doing with respect to the adverse impact of his decision on the children’s mothers.
The parenting history is such that it appears that both women have stepped between Mr Hunter and the children and sheltered the boys from potential harm. It appeared that they were more than aware that it may only take one action by Mr Hunter to have a profound effect on one or both boys.
Mr Hunter was intent to present as having mellowed and corrected previous antisocial and destructive behaviours. The writer struggled to link this improvement with the threats made to Ms Duran in December 2010 and the incident with [Y] in January 2011. It seemed to the writer that Mr Hunter has possibly sought litigation to focus upon his rights rather than the best interests of the boys. However, it should be noted that
Mr Hunter has seemingly made significant change to his lifestyle and should be congratulated for this. He may however have deep unresolved psychological issues that complicate matters and eclipse his capacity to be child-focused in his considerations.
In summary, Mr Hunter sees both mothers in a negative light.
Equally, both mothers fear Mr Hunter’s potential for harm.
These views are historically based on adverse experiences and will be hard to shift.
Mr Hunter was seemingly unable to explain how week about would be in the children’s best interests. He did however state that this was their preferred wish as expressed to him, although this was not corroborated in the course of this assessment.
In contrast, Ms Duran and Ms Haro gave views as to how their proposals protected the boys and they seemed to remain child focussed and protective. They seemed to shield the boys from the negative past of the adult relationship whilst Mr Hunter and Ms E seemed to portray the mother’s in a negative light, including in the boy’s presence, to improve their chances of securing extra time.
Ms Haro and to a lesser extent Ms Duran seemed willing, to a degree, to facilitate and manage a continuing relationship between the boys and their father but want safety measures to remain.
It struck the writer that equal shared parental responsibility would create difficulty, equal time would create significant distress and potential for disturbance/harm for the boys could well increase as a result.
On balance the writer respectfully recommends that the current Orders for [X] remain as they are unless matters deteriorate further.
The writer would also respectfully recommend that [Y]’s proposal that he have flexibility to fit in with such Orders as he sees fit be given significant weight and be accepted by all.
In the writer’s view this affords the boys with a relationship with their father with very limited supports.
At the conclusion of the Evaluation, Mr O set out his recommendations as follows:
1.That the current Orders in relation to [X] remain in full force and effect unless matters deteriorate.
2.That [Y] be permitted to attend in line with [X] as he sees fit unless matters deteriorate.
3.That any suggestion of significant risk of the boys be noted with Child Protection as soon as practicable. That a copy of this report be made available to Child Protection as background information should assistance be required by this agency.
In his evidence before the court, Mr O indicated that he thought that the primary issue in this matter was the safety of [Y] and [X], given the level of violence to which both mothers and the boys had been exposed.
Mr O made the observation that there had been a history of both mothers placating the father and trying to keep things as calm as possible, and that they had worked incredibly hard to do that over many years. Mr O posited the opinion that the boys had certainly benefited from their mothers’ protective behaviours, and had learnt to model their own behaviours on that of their mothers. By this, Mr O indicated that he meant the boys would say or do what they thought their father wanted in order to keep him happy and calm.
When describing the boys’ interactions with their father during the Family Report process, Mr O reported [X] running happily into his father’s arms and being very pleased to see him.
By contrast, [Y], who had not seen his father since before Christmas in 2010, was initially very reluctant to speak to him. He indicated that [Y] was only willing to do so if [X] was also present.
When [Y] did meet with his father, he made it clear to his father that he did not want to spend equal time with him, although he might have previously said that. He told his father that he wanted to be able to spend time with him when he wished to do so.
Mr O noted that the father started to challenge [Y] as to this change in view and that Mr O made the decision to curtail their interaction at that time.
In relation to Ms Duran, Mr O described her as someone who gave every indication of having experienced trauma and that her overall presentation was fear-based. He noted that her fear extended to the potential risk to [Y], as well as fear for herself.
Mr O indicated that Ms Duran advised him that [Y]’s recent experiences of his father in relation to the December 2010 phone calls and death threats and the school incident had been the first time [Y] had been exposed to his father’s behaviours and that [Y] was very confused about this and wanted to know why his father was so angry and so threatening.
In relation to Ms Haro, Mr O in his Report noted her to have a particular calmness that gave every indication she had matured and was able to manage the litigation process with some level of equability.
When giving his viva voce evidence, Mr O indicated that he may well have overestimated Ms Haro’s level of calmness and had perhaps done so because of the contrast in her behaviour with that of Ms Duran.
Mr O indicated that when he interviewed Ms Haro, she had told him that [X] probably did want to spend more time with his father but that she was of the view that the existing arrangements were satisfactory and should continue into the future.
It was explained to Mr O that Ms Haro was now proposing that [X] not spend any time with his father in light of [X]’s increased levels of distress, particularly following the break-in into Ms Haro’s home.
It was Mr O’s evidence that the [X] he met wanted a relationship with his dad. It was Mr O’s evidence that he was not sure how [X] would manage if he didn’t see his father at all and that he would probably yearn to see him at some stage in the future. Mr O also indicated that he was of the view that [X] would miss his grandmother as well.
Mr O indicated that he was of the view that there was probably merit in [X] spending some time with his father and that such time should be strictly supervised. He expressed some doubt however as to whether Ms E would be in a position to provide such strict supervision.
In relation to Ms E, Mr O noted her to be in something of an unenviable position in that she clearly loves her grandsons but at the same time is a staunch advocate for her son as well, possibly being somewhat fearful of him.
In his Report, on page 32 at paragraph 11, Mr O made the following observation:
11.Ms E was noted to advocate for Mr Hunter. Both she and Mr Hunter spoke negatively about both mothers to the writer in front of the boys. It was almost as if this was a natural occurrence and gave every indication that this was not the first time something like this had occurred. On one occasion Mr Hunter told his mother to ‘shut-up’ and she did so very swiftly. Otherwise she smilingly worked hard to advance Mr Hunter’s plight. She embraced the boys and spoke to them but the discussion was about the issues at hand.
When discussing the father, Mr O indicated that he was of the view that he was not someone who would hear the word “no” very well and that when he does he can react badly. Mr O indicated that he was trying to alert the court that there was potential for future problems with the father depending on the outcome of this matter. Mr O indicated that he was of the view that the father would probably struggle, depending on the outcome of the case, and if the court were to order no time the father would find that very difficult. Similarly if the court were to order limited time and the father didn’t like the limitations, Mr O observed that the father may find this difficult as well.
Mr O was asked his opinion as to the father’s proposal for a graduated increase in time with [X] and [Y]. It was Mr O’s evidence that given the history of volatility, violence and instability exhibited by the father, that increasing his time with [X] and [Y] would not be an appropriate way forward at this time, particularly absent the monitoring of the progress of that time. Mr O expressed concern that if there were to be another incident, and there were orders that locked the boys into an increasing pattern of time, this would not be in the boys’ best interests.
Mr O was asked his views as to whether Ms Duran would support [Y] spending time with his father if orders were made in the terms being suggested by her, that is that [Y] spend time with his father as requested by him. Mr O was very strongly of the opinion that
Ms Duran would support any requests from [Y] to spend time with his father and would facilitate that taking place.
Because of the history of violence, the more recent incidences of violence and the reported resistance of both [X] and [Y] to spending time with their father, both mothers are now resistant to orders that would provide for ongoing regular time between the father and their sons.
Both mothers however gave evidence that in the event the court were to make orders for [Y] and [X] to spend regular time with the father, they would comply with those orders and ensure that such time took place. Whilst this was clearly not their preferred option, I am satisfied that the mothers would comply with such orders if they were made.
The father does not hold either of the mothers in high regard, particularly Ms Haro, and it is apparent that he has spoken badly of their mothers when the boys have been with him. I am not satisfied that the father would be able to contain himself from expressing these negative views about both Ms Haro and Ms Duran in the boys’ presence in the future.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
If the court were to make orders in the terms sought by their mothers, [Y] and [X] would cease to spend time with their father.
The reality for [Y] and [X] is that they have only spent very irregular time with their father and are therefore somewhat used to him not being in their lives for quite extended periods.
If orders were made in the terms sought by Ms Duran, [Y] would be aware that the door is open for him to see his father if he were to choose to do so and, as he matures, it will be for him to make that decision as to when, if and how that should occur.
[X], who is younger and much less mature, could potentially be more vulnerable to his father’s absence. Mr O opined that it was possible that if [X] was to stop seeing his father, he may as he gets older decide to seek him out to satisfy his curiosity in relation to his father.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties are all based in Bendigo and there is no practical difficulty in orders being made for [Y] and [X] to spend time with their father, at least geographically.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that Ms Duran has the capacity to provide and has provided for [Y]’s physical, intellectual and emotional needs.
I am also satisfied that Ms Haro has the capacity to provide for [X]’s intellectual, emotional and physical needs. However, I do have some slight reservations in this regard. At no time did she give evidence to the court about [X]’s diagnosis of mild intellectual disability. When specifically asked about what assessments of [X] had taken place,
Ms Haro said there had not been any conducted. If [X] does have these difficulties, then it is incumbent upon her as his primary carer to be fully cognisant of his issues so that she can ensure that all appropriate interventions are put in place to assist him to maximise his full potential.
It is because of this that I am very pleased that [X] has had recent referrals to a paediatrician and psychologist so that further assessments and assistance can be proffered.
I was also somewhat concerned with Ms Haro’s evidence that if in the future [X] came to her and asked her if his dad loved him, that she would tell him that that was not for her to say.
This answer reflected very much Ms Haro’s negative view of the father and whilst that is very understandable given the violence to which she has been exposed, is not an answer that is focussed on [X]’s best interests.
It was Ms Haro’s evidence that she has had minimal counselling to assist her to come to terms with the violence that she had experienced and its’ impact upon her. It would be very much in her best interests that she pursue such counselling, not only to assist her but also to assist her to assist [X] into the future.
The father’s capacity to provide for [Y] and [X]’s needs is very questionable. He is to be commended for the efforts that he is taking to address his drug and alcohol addiction issues. However, it is very early days and as the December 2010 incident shows, he is still very much prone to relapse.
Until such time as he has fully addressed those issues, including the underlying causes for those addictions, there must be a question mark about his capacity to provide for his children’s needs.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Ms Haro’s mother is a native of Papua New Guinea and her father is Australian. Accordingly, [X] has that heritage.
Ms Haro’s parents and siblings live in Bendigo and the family regularly interact.
In these circumstances, [X] is afforded the opportunity to explore his New Guinea heritage with his maternal family.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both Ms Haro and Ms Duran have had the primary care of [X] and [Y] both during their relationships with the father and following separation.
[Y] is described as a delightful young man, who is polite and well behaved. His mother indicates that he is an average student, that he tries hard and that she is very proud of him.
[X]’s difficulties have been canvassed previously in this judgment. His mother describes him as a sweet, gentle boy who will give his lunch to another student at school if that student is hungry. She indicates that he is improving in his schooling and that his teachers are very pleased with him, albeit that he does have some difficulties in meeting the same standards as his peers.
The father and paternal grandmother raised concerns about the quality of Ms Haro’s parenting of [X], criticising her management of his eczema and questioning her commitment to his education because of lateness and missed school days.
I do not accept that these criticisms are warranted and am of the view, subject to observations I have made earlier in this judgment, that
Ms Haro has fulfilled the responsibilities of parenthood commendably.Further, despite their understandable reservations about the father because of his behaviours, both Ms Haro and Ms Duran have, within proper restraints as to safety, allowed [X] and [Y] the opportunity to develop a relationship with their father.
Because of his drug and alcohol addictions, the father has not historically fulfilled his responsibilities as a parent.
He has often been absent from the boys’ lives and has not been a participant in the decisions that have had to be made as to their care, education and future.
Whilst the father’s evidence is that he has made the decision to turn his life around in order to be a better parent to [Y] and [X], it is very early days and I am satisfied that he still has a long way to go.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
As noted earlier in this judgment, the father’s violence, both physical and emotional, towards Ms Haro and Ms Duran is at the core of this case.
Both Ms Haro and Ms Duran make serious allegations of ongoing domestic violence by the father during their relationships and subsequently.
I am satisfied that such violence did take place and that it did so as recently as December 2010.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
After the December 2010 incident, Ms Duran obtained an Intervention Order against the father for a period of five years.
After the school incident in February 2011, Ms Duran made Application for that Intervention Order to include [Y]. That Order was granted on an interim basis. At this time, the father is opposing that Application and the defended hearing has been postponed until the matters before this court are concluded.
Ms Haro obtained an Intervention Order against the father for both herself and [X] after her home was broken into in May 2011. That Intervention Order remains live.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Given [Y]’s age, if orders were to be made in the terms proposed by Ms Duran, it is unlikely that this court would entertain any further Applications in relation to his living arrangements.
If orders were made in relation to [X] in the terms that are being proposed by Ms Haro, one is left to speculate what would happen in the event that [X]’s counsellor formed the view that it was necessary for his wellbeing to recommence spending time with his father. Given the parties’ total inability to communicate, and given the breakdown of the relationship between Ms Haro and the paternal grandmother, one wonders how such arrangements could be put in place absent court intervention.
By comparison, if orders were made in the terms sought by the father, there is a real risk that given the father’s history and volatility, any inappropriate behaviours on his behalf would, of necessity, require Applications to this court for a suspension of those orders.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
At the conclusion of this matter, the Independent Children’s Lawyer handed to the court a detailed set of orders that set out her proposal as to what would be the best arrangements for [Y] and [X]. Those proposed orders are set out in detail below:
[Y]
(1) Order (1) + (2) as proposed by mother.
(2)Order (3) That the child spend time +/or communicate with the father at such time as he wishes save that if the child expresses a wish to spend time with the father such time coincide with the time the father spends with the child [X] pursuant to these orders.
(4)Order 4(a) + (b) as proposed by mother and additional order as follows:
4(c)without otherwise limiting paragraph 4(b) hereof the mother shall ensure that the child has an established email account for the purpose of initiating communication with the father + the mother be at liberty to monitor any communication initiated by the child and any responses made by the father.
(5) (6) + (7) as per mother’s proposal.
[X]
Orders proposed by ICL
(1)That orders 4(a) + (d) of the orders of 30 April 2008 remain in full force and effect subject to the father’s compliance with all restrained provided for in this order + subject to the provision of monthly drug screens indicating an absence of all drugs as required pursuant to this order.
(3)That all time spent by the father with [X] be supervised by the paternal grandmother.
(4)That paragraphs (6) (7) (8) (10) + (11) of the orders of
30 April 2008 remain in full force + effect.[Y] and [X]
(1) That the father be restrained from:
(a)being at or within 200 metres of any school attended by the children of either of them
(b)being present at [X]’s football training sessions unless he has the prior written consent of Ms Haro
(c)approaching or contacting either child in any way other than as provided for in this order
(d)consuming any illicit drugs or prescription medication otherwise than as strictly prescribed, or consuming alcohol 24 hours prior to and at any time during which the child or children are in his care.
(2)The father is permitted to attend [X]’s weekend football match subject to his compliance with the terms of any current Intervention Orders.
(3)The father be at liberty to receive copies of the children’s school reports and an order form for school photographs + to facilitate this order the mother cause copies of these documents to be posted to the father’s residential address + such obligation remains only as long as the father maintains an address known to the children’s mothers.
(4)The father continue to attend upon Ms R of [B] Community Health Service in accordance with her recommendations.
(5)That at their election the Respondents be at liberty to contact Ms R to discuss the father’s compliance with her recommendation as to attendance.
(6)That for a period of 12 months the father undertake supervised urine drug screens on a monthly basis + provide the results of such drug screens to [X]’s mother (and [Y]’s mother if [Y] is spending time with the father) by post.
(7)That Ms Haro ensure that [X] attend upon all specialists including psychologist as currently recommended by his general practitioner + abide by all recommendations as may be made by them as to attendance, assessments, treatment or referral to other persons/organisations.
(8)That Ms Haro be at liberty to provide a copy of the Family Report dated May 2011 to any psychologist treating [X] + without in any way fettering the discretion of any psychologist treating [X] the father is at liberty to attend upon [X]’s treating psychologist if he is invited to participate in such counselling.
Counsel for the Independent Children’s Lawyer indicated that the orders that were proposed in relation to both [Y] and [X] spending time with their father was for very very limited supervised time.
The Independent Children’s Lawyer submitted that this matter was one where you had to balance the benefit of the children having a relationship with their father against the need to protect them from abuse.
The Independent Children’s Lawyer submitted that whilst the Family Report Writer was most concerned about the level of domestic violence in this matter, it was not such that he formed the view that the severity of the violence and the behaviour of the father was such that there was no benefit to these children in having a relationship with their father.
The Independent Children’s Lawyer further submitted that whilst her proposal was not to be seen as a minimisation of the concerns of the potential risks to the children in this case, there was evidence that did support ongoing limited time between [Y] and [X] and their father. The Independent Children’s Lawyer indicated that at least for the last several years, [X] and [Y] had spent some limited time with their father and that there was no evidence that there had been any risk of harm to them at the hands of their father during such time.
The Independent Children’s Lawyer further submitted that whilst there had to be some concerns about the capacity of the paternal grandmother, Ms E, to act as the supervisor of [Y] and [X]’s time given her clear loyalty to her son and the concerns that she could be fearful of challenging him, the Independent Children’s Lawyer submitted that she is a loving grandmother who has historically ensured that the children had not been placed at risk whilst she has supervised their time with their father since 2008.
It was the Independent Children’s Lawyer’s submission that [Y] should be given the opportunity to spend time with his father in accordance with his wishes. The Independent Children’s Lawyer also proposed that there should be arrangements made for an avenue of electronic communication between [Y] and his father to facilitate his ability to communicate with his father if he wishes to do so.
It was also the Independent Children’s Lawyer’s submission that there needed to be quite stringent further safeguards around the time that [Y] and [X] spend with their father to address the concerns that arose during the course of the evidence. These include 12 months of drug screens, restraints on the father’s consumption of illicit substances or alcohol whilst spending time with the children, that [Y]’s time always be when [X] is spending time with the father, that all time be supervised by the paternal grandmother and that the father continue with his drug and alcohol counselling.
The orders in place from 30 April 2008 provided that the time spent had to be at the paternal grandmother’s home. The Independent Children’s Lawyer proposed that this restraint be lifted so that the father, the paternal grandmother and [X], and [Y] if he has chosen to attend, would be able to undertake outings to the pictures, to Playzone, to kick the footy in the park and the like. The Independent Children’s Lawyer argued this would in fact afford a greater degree of safety for [Y] and [X] as the time would take place in the public arena. It would also ensure a much more entertaining and enjoyable time for the father and the boys. This was supported by Mr O.
Counsel for Ms Duran indicated that Ms Duran did not agree with the Independent Children’s Lawyer’s proposal for a dedicated electronic communication avenue between [Y] and his father. It was submitted on behalf of Ms Duran that this left [Y] exposed to risk of manipulation and pressure by his father. She made reference to the Facebook difficulties that [Y] faced during the period that he and his father were communicating electronically. She was of the view that it would be not in [Y]’s best interests for that communication to be available to the father as he would try to influence [Y] in his decisions about when and what kind of time [Y] should spend with him.
Conclusion
This case is very much about the balance between [Y] and [X]’s right to have a relationship with their father and the importance of protecting them from the risk the father poses because of his history of alcohol and drug addiction, and serious domestic violence.
Whilst it was the father’s evidence that after his release from jail in 2009, he made the decision to turn his life around and address his addiction issues, it is a journey very much in its’ early and infant stages.
In many ways the father is asking the court to draw a line in the sand and differentiate his behaviours pre May 2009 with his behaviours post 2009. He argues that since then he has remained drug-free, committed himself to ongoing counselling interventions and distanced himself from his former associates so that he could change his behaviours and become a better parent to his sons. Accordingly, the father argues that he should have a greater involvement in his sons’ lives.
The difficulty is that this transformation has only been partly successful.
In December 2010, under the influence of alcohol, the father reverted to his previous patterns of behaviour. He was frustrated that he had not seen his son that day. He therefore rang Ms Duran, not once but up to 40 times, and made serious threats against her, her partner and her home such that she has required ongoing psychological intervention to assist her to deal with the trauma that that behaviour caused.
Some two months later, the father then attended at [Y]’s school and proceeded to abuse and embarrass him on his first day of high school, again because [Y] was refusing to spend any time with him.
Perhaps of greatest concern, is that at no time when giving his evidence in relation to both of these incidents, did the father exhibit a scintilla of remorse or any insight as to the impact that these behaviours had on [Y]’s mother and on [Y] himself.
It was the father’s evidence that the mother and [Y] were exaggerating these events in order to bolster their case that there should be no orders made for regular time between himself and [Y].
Further, the father’s explanation as to why [Y] was now reluctant to spend regular time with him was not because of his behaviours in December 2010 and February 2011, but because [Y] was seeking to protect his mother because she was so upset about his Application for [Y] to spend extra time with him.
In relation to Ms Haro and [X], the father was of the view that Ms Haro had no cause to be scared or fearful of him and that his continued presence at [X]’s football confirmed this, rather than acknowledging Ms Haro’s evidence that she found his constant presence at the football intimidating.
I am satisfied that on some level, both [Y] and [X] do want an opportunity to have a relationship with their father, but that both boys require that any such interaction between themselves and their father be safe and secure.
In relation to [Y], I am satisfied that orders should be made in the terms that are being proposed by his mother, Ms Duran. [Y] is 13 and a half years of age, and is a sensible, delightful young man, whose emerging maturity must be respected. He has indicated a desire to be able to see his father, but only when he wishes to.
I am satisfied that orders in the terms proposed by Ms Duran would meet this need and that if he were to ask his mother to put arrangements in place to enable this to happen, she would do so.
I do not believe that it would be in [Y]’s best interests that there be a dedicated means of electronic communication between himself and his father. I have real concerns that the father will misuse this in an endeavour to persuade or manipulate [Y] into agreeing to see him against his true wishes.
I am satisfied that if [Y] did wish to contact his father electronically, he would be able to do so.
The situation in relation to [X] is more complex. [X] is younger than [Y] and also has a diagnosed intellectual disability. In this circumstance, he is not emotionally able to determine when and if he wants to see his father.
Mr O observed [X] to happily embrace his father and to clearly exhibit a desire to have a relationship with him.
Subsequent to [X]’s interview with Mr O, Ms Haro’s home was broken into and, understandably, Ms Haro immediately suspected the father as being the perpetrator of that incident. Whilst historically Ms Haro has shielded [X] from her fears in relation to the father, on this occasion she did not. It is no coincidence that in recent times, [X] has evidenced a fear of his father and a reluctance to spend time with him.
It is also clear that it is Ms Haro’s preference that the father be removed from her life and [X]’s life, and that she would not actively encourage or promote any relationship between [X] and his father, even if [X] was to express a desire to see his father in the future.
Both Mr O and the Independent Children’s Lawyer were of the view that it would be in [X]’s best interests if orders were made for him to spend regular, limited time with the father, subject to the implementation of appropriate precautions to safeguard against the potential risk to him of spending that time with his father.
On balance I am satisfied that orders should be made for [X] to spend limited time with his father, with those appropriate safeguards in place.
Mr O and the Independent Children’s Lawyer proposed that the existing arrangements that were in place pursuant to orders made in 2008 should continue. This involved [X] spending alternate Tuesday afternoons with his father and alternate Saturdays with his father, supervised by the paternal grandmother.
When those orders were initially made, [X] was very young and it made sense for him to spend time with his father each week. Now that he is older, I do not believe that it is necessary for him to spend weekly time with his father in order to maintain his relationship with him.
I am of the view that [X] should spend an alternate Saturday afternoon with his father, but that time be for a slightly longer period than the two hours that currently take place. Such time will continue to be supervised by the paternal grandmother, but will be able to take place away from the grandmother’s home. A slightly longer time each alternate Saturday will enable [X], his father and grandmother to undertake enjoyable activities such as going to the movies, going to the football, going to Playzone and the like.
Accordingly, orders will be made for [X] to spend supervised time with his father each alternate Saturday from 1.00 pm to 5.00 pm.
The Independent Children’s Lawyer proposed that the father be permitted to attend [X]’s football games. Given the level of stress that Ms Haro suffered as a result of the father’s presence at those games, I am of the view that orders should be made that the father can attend [X]’s football games on the alternate Saturdays that [X] spends time with him pursuant to the orders of this court.
Otherwise, orders will be made in the terms proposed by the Independent Children’s Lawyer, as to the restraints and safeguards that are to be put in place for [Y] and [X]’s safety, as well as positive obligations of the father in relation to his behaviours in the context of his care of [Y] and [X].
Further orders will be made as recommended by the Independent Children’s Lawyer requiring Ms Haro to ensure that [X] continues to engage with the professionals that he has been referred to by his treating General Practitioner and that she abide by all recommendations that are made by [X]’s treaters.
I certify that the preceding three hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 18 August 2011
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