Hunter & Berg

[2017] FamCA 1051

FAMILY COURT OF AUSTRALIA

HUNTER & BERG [2017] FamCA 1051

FAMILY LAW – CHILDREN – Undefended Hearing – Where father sought orders for equal shared parental responsibility and equal shared care – Where mother sought orders for sole parental responsibility and orders restraining the father from spending any time with the children or communicating with them – Where father discontinued his application and disengaged from proceedings – Where father has extensive history of criminal activity – Sexual abuse allegations – Where cumulative effect of father’s mental health issues, substance abuse and domestic violence history poses a real risk of harm to children – Without independent evidence, the father poses an unacceptable risk of harm to the children – Where mother to have sole parental responsibility – Where it is in the children’s best interests to spend no time with the father nor communicate with him, unless agreed to by the mother.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
Russell v Close (Unreported, 25 June 1993)
Bayer & Imhoff [2010] FamCA 532

APPLICANT: Mr Hunter

RESPONDENT: Ms Berg

INDEPENDENT CHILDREN’S LAWYER: Mr Wright

FILE NUMBER: CSC 440 of 2013

DATE DELIVERED: 15 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 5 December 2017

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Murray & Lyons Solicitors

Orders

1. All previous parenting orders be discharged.

2. B born … 2008 and C born … 2008 (“the children”) live with the mother.

3. The mother have sole parental responsibility for the children.

4. Unless agreed by the mother in writing, the father is to spend no time with the children.

5. Unless agreed by the mother in writing, the father is not to communicate with the children.

6. The father is restrained from removing the children from their school or their home or any place they are at any time without the written consent of the mother.

7. The Independent Children's Lawyer is forthwith discharged with the thanks of the court.

8. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Berg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC440/2013

Mr Hunter

Applicant

And

Ms Berg

Respondent

REASONS FOR JUDGMENT

introduction    

1. These proceedings relate to the appropriate parenting order for the parties’ two children, B, born in 2006 and hence 11 years of age, and C, born in 2008, and hence presently 9 years of age (“the children”).  Although Mr Hunter (“the father”) commenced these proceedings by Initiating Application filed 27 September 2016, in which he sought equal shared parental responsibility and equal shared care, on 14 June 2017 he filed a Notice of Discontinuance, and thereafter has not engaged in the proceedings in any respect save that, at the subsequent undefended hearing of this matter, he attended court, but left prior to the matter being called on.

2. By her Amended Response to Initiating Application filed 18 June 2017, Ms Berg (“the mother”) sought orders giving her sole parental responsibility for the children, and orders restraining the father from spending any time with the children or communicating with them, together with restraints in relation to his approaching her or the children, including at the children’s school.  At the undefended hearing of this matter, the Independent Children's Lawyer substantially supported those orders, save that he pressed for orders in the terms that, unless agreed by the mother, the father spend no time nor communicate with the children.

3. These are my reasons for judgment arising out of the undefended hearing.

BACKGROUND FACTS

1. The father was born in 1980, and hence is presently 37 years of age.  The mother was born in 1983, and hence is presently 34 years of age.  Although the parties’ relationship commenced in 2005, prior to then the father had started to accumulate a number of criminal convictions involving violence, weapons and drugs.  It is fair to say that these have remained recurrent themes of his life, even to date.

2. For most of the relationship, the parties lived in D Town.

3. B, the parties’ first children was born in 2006.  She was followed by C in 2008.

4. The parties’ relationship concluded sometime in 2010.  The mother has inconsistently reported the date, but nothing turns upon that.  Initially the parties had considerable difficulty in achieving both an amicable co-parenting relationship, and in agreeing the times which the father would spend with the children, which led to domestic violence proceedings and some acrimony in relation to the father spending time with the children.

5. On 28 May 2012 the father was again convicted of possession of unlawful drugs.  On 7 December 2012 there was an incident in which the father attended the mother’s residence without her permission, which led to further domestic violence proceedings.

6. The parties continued to have difficulty in agreeing to the regime under which the father would spend and communicate with the children.

7. The mother says that the father’s behaviour to her, and the fact that they both lived in D Town, led to her leaving there in 2013, and moving to J Town.  That precipitated the father commencing proceedings in 2013 seeking orders that the mother be required to return the children to D Town, and for equal shared parental responsibility.  After a location order was made, the mother engaged in the proceedings, including returning to E Town for a Child Inclusive Conference.  That occurred on 4 February 2014, and was the first occasion that the father had seen the children for 13 months.

8. On 8 May 2014 interim orders were made in the Federal Circuit Court in E Town, which regularised the children living with the mother in J Town, and provided for Skype communication and supervised time with the father.

9. The proceedings were listed for trial on 17 July 2014 in J Town, however the parties ultimately reached consent orders, which provided that the mother have sole parental responsibility for the children, who lived with her, but spent holiday time with the father in the Northern Territory.  They also provided for him to have Skype and phone contact with the children twice a week.

10. Pursuant to those orders, the father spent holiday time with the children in September 2014, over Christmas in 2014 and then in April in 2015.  However in June 2015 the mother relocated back to the D Town area, and in consequence, applied for a Domestic Violence Order against the father, which was ultimately dismissed.

11. The father continued to have holiday time with the children, including a three week period in July 2016.  However, obviously not content with the amount of time he was having, the father commenced these proceedings on 27 September 2016.

12. Notwithstanding that these proceedings were on foot, the father has continued to be engaged with the courts in relation to drugs, weapons and domestic violence matters, as I shall shortly discuss.  There was a particularly troubling episode on 6 February 2017, which led, on 8 March 2017, to the father’s time with the children under the 2014 orders being suspended.

13. A Child Inclusive Conference was conducted on 26 April 2017 and the ensuing report released to the parties the following month.  It identified risks associated with the father exposing the children to domestic violence, poor mental health, extensive substance abuse and the prospect of a risk of sexual abuse.

14. After that Child Inclusive Conference memorandum was released, as I have indicated, on 14 June 2017 the father discontinued his application.

15. As at the present time, the mother resides with the children and her partner in D Town.  It appears as though both children are doing well at school, although it seems that C may evidence some behavioural issues from time to time.

16. For his part, the father lives a little more than half an hour outside of D Town, but also spends time in a more remote location.  It appears that he is a regular user of marijuana, and likely speed and ice as well.  He resides with his partner and her son from a previous relationship, together with a child to that relationship, now aged about one year.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

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

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

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

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

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

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

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

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

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

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

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

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father that the mother presents a risk of sexual, physical and emotional harm to the child are of real gravity.

4. Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave.  As is demonstrated by this case itself, based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently.  Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of, for instance, criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.

5. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

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

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

1. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

2. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

3. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

RISK OF HARM POSED BY FATHER

Overview

1. As I have already identified, the risks which the father poses lie in several areas, including exposure of the children to domestic violence, his mental health issues, his use of illegal drugs, and his consistent history of illegal possession of firearms.  Of course, they are not necessarily unrelated, and likely frequently overlap.  However it is convenient if, at least in the first instance, I discuss them individually, and then consider the cumulative effects of those risks.

Domestic violence

1. The mother asserts a long history of verbal and physical violence from the father, however there does not appear to be a present risk of any magnitude that the father will continue to be domestically violent towards the mother.  Rather it is his current relationship which is the potential setting for the exposure of the children to ongoing domestic violence.  Unfortunately it seems clear that the father is violent in that relationship.  The most obvious example are the events of 6 February 2017.  That led to the father being hospitalised on an Emergency Examination Order.  F, the father’s partner’s child to a previous relationship, told police that on that occasion, the father was getting angry at his mother, and smashed the bathroom door down whilst she and their baby were inside.  He then smashed his partner’s computer, ripped the satellite dish off the roof, ripped the home phone off the wall, punched a hole in the wall and made threats to kill his partner’s father and other extended family members.  The father also punched a window, causing it to smash, while the mother and baby were approximately one metre away from it.  F said that he was fearful for his safety, and the safety of his mother and sister.

2. Police who attended at the father’s home observed the partner to be distressed and fearful of the father.  She told police that during the day, the father’s actions included:

   ·Threats to kill her father and extended family members;

   ·Breaking down the bathroom whilst she and one year old child were inside;

   ·Smashing the bedroom window with his fist;

   ·Smashing her computer

   ·Ripping the phone and satellite dish off the walls whilst the mother was speaking with police.

3. Police searched the dwelling and observed smashed louvres in the bedroom, a photo of the father and the partner which had been torn in half, a damaged satellite dish lying on that ground at the rear of the house, a broken door frame to the door of the bathroom, a white canvas painting near the rubbish bin with a series of holes (which appeared to be stab marks), and a garbage bin bag containing broken glass in the rubbish bin.

4. How this all came to be is a little unclear, but his partner is recorded as having told mental health services that the father “has been using amphetamines for over a year and his behaviour has progressively gotten worse.  He has become quiet and hard to talk to and been suicidal at times.  [The father] would sometimes get in a car at the [G Town] property and go for a drive with a gun threatening to kill himself.  His bad behaviour and stress levels have built up so much that it has become difficult to live with.  On the day of 6 February, he was extremely angry with no pot to smoke – she has never seen him like that before and does not want that behaviour in her or her children’s life.  Things were ok for the first one and a half years of relationship with minimal drug use, just THC…”

5. On 23 February 2017 F was interviewed by Child Safety officers.  He recounted that on the 6 February he was scared because the father was “smashing all the stuff.”  He identified that bad things about his house were that the father had smashed the wall, there was broken glass all over the floor in the garage, and that he observed his mother trying to take pills away from the father and the father becoming mad at that.  He said that the father was angry lots of the time.

6. As I have indicated, the father was hospitalised as a result of that episode, and a Domestic Violence Order was obtained in which his partner was the aggrieved and he the respondent.  However since then, he and the partner have reconciled.  The father now asserts that police overreacted to the situation on the day, and his partner has changed her version of events as well.  Indeed the father appears to be attempting to minimise significance of his behaviour on 6 and 7 February, and this was noted by the psychiatric registrar who saw him on 15 February, as she recorded that the father “was able to identify the precipitants leading to his dramatic presentation, but was somewhat evasive about taking full responsibility for preventing this in future.”

7. Whilst the events of 6 February 2017 may have been extreme examples of the father’s capacity to be violent, they cannot be overlooked.  Further, there are some facts which tend to aggravate the risk of recurrence, including the remote location in which the father lives, his long history of drug misuse, his poor mental health, his disinclination to take responsibility for his conduct, and subsequent attempts to minimise it.  Also added to that mix needs to be the father’s seeming obsession with weapons.

8. The effects on children of exposure to domestic violence are well recognised.  For instance, the Child Inclusive Conference memorandum records that “children exposed to family violence may experience a range of difficulties such as problems with peer relationships, academic achievement, depression, anxiety and aggression.”  In any event, one has the direct evidence of F as to the impact and feelings which he experienced, during what must have been terrifying events on the day in question.

9. It is difficult to predict the likelihood that the father will so act again in the future.  However plainly so long as the risk factors which I have identified above continue, the prospect of him doing so must be assessed as real and substantial.

Drug misuse

1. The father appears to have been a lifelong user of marijuana.  He has also regularly used both speed and ice.  There can be no doubt that he was using ice on 24 March 2016, as his medical practitioner referred the father for a mental health assessment, noting “current ice IV use.”  Likewise in the psychiatric registrar’s report on 15 February 2017, she recorded a history of use of ice, speed, dexamphetamines and marijuana.  Additionally it appears that the father brews his own spirits at home, said to have a 40 per cent alcohol content, which he ingests. 

2. It does not appear as though the father has, for any extensive period of time, sought professional assistance with his drug misuse, although he has from time to time been referred to appropriate supports.  Whether he has or has not engaged seriously with them is not to the point – the reality is that he remains a significant risk of relapse, even if he is presently abstinent.

3. I am well satisfied that the father poses a risk of harm to others when he is under the influence of drugs, although the specific nature of the risks will vary, depending upon circumstances and time.

Mental health

1. The father has had a number of psychiatric descriptions applied to him and his mental health.  It appears from his GP’s letter to the Community Mental Health Services on 24 March 2016, that at some stage he has been diagnosed as having a personality disorder.  However her provisional diagnosis was one of adult ADHD.  The subsequent report of the psychiatric registrar on15 February 2017 suggested a provisional diagnosis of an Adjustment Disorder with Mixed Disturbance of Emotion and Conduct, together with Attention Deficit Hyperactivity Disorder.  Whatever be the correct diagnosis, it appears as though from time to time his condition leads to suicidal ideation, but perhaps more importantly, impulsive behaviours; particularly the registrar noted that the father and his partner “describe him having long term ADHD – type symptoms even when substance free (inattention in multiple settings, restless, impulsive, difficulty concentrating, hyperactive and impulsive, speaks excessively and blurts answers prematurely)…”

2. Of themselves and without more, these probably pose little risk to children in his care, but plainly, when mixed with substance abuse, are highly concerning.

Sexual abuse

1. B has reported being sexually abused by the father on two occasions.  The first was prior to her fifth birthday.  The relevant police report records that she told them that she was staying with the father in a motel room at the H Motel in D Town, together with C.  She said they were lying on a double bed and her brother was asleep on the smaller bed.  They were watching a “Bigfoot” documentary on TV, when the father removed her shorts and nickers and begun rubbing her buttocks.  During ad breaks on the television, the father removed his pants, and requested that B rub his buttocks.  This continued for about 30 minutes prior to the show ending. 

2. Later, B told police that on another occasion after her fifth birthday, she was at the father’s house with her younger brother, and the father injected an unknown drug using a needle.  The father then told C to go outside, pulled B towards him and rubbed her arms and legs in a soft stroking motion, and then rubbed her vagina through her clothing for a short period of time.

3. B told the police that she had not told anyone about the offences prior to those interviews.

4. Apparently, given the absence of any corroborative evidence, police were of the view that it would be “highly unlikely” that such allegations “would withstand the scrutiny of a Criminal Court.”  However for reasons which are not altogether clear, police went further and concluded “that it is highly doubtful that an offence has occurred as disclosed by” B, and therefore the report was listed as unfounded.

5. The father declined to engage in a record of interview with police.

6. The 93A interviews were not in evidence before me.  It is therefore impossible for me to make my own assessment as to the reliability of the child’s disclosures.  That said, there is a degree of detail, for instance the name of the TV show that the father and child were watching in the motel at D Town, and the fact that certain things happened during ad breaks, which does tend to suggest there may be truth to her assertions.  However the evidence falls well short of satisfying me that indeed the events occurred, or indeed that the father poses an unacceptable risk of sexual harm to the children if he was to have them in his unsupervised care.  However the fact that B has made those disclosures inevitably means that there must be some concern in relation to the father in this respect.

Cumulative effect

1. The father’s mental health concerns, coupled with his long history of substance abuse, domestic violence and weapons offences, means that the father poses a real risk of harm to these children if they were to be in his unsupervised care.  Further, his disengagement from the proceedings has meant that the proper evaluation of the risks which he poses, by psychiatric assessment and the preparation of a Family Report, have not been able to be undertaken.  Whilst those investigations may have, to a degree, ameliorated the concerns which those matters raise, they may not have either.

2. Absent proper opportunity for the court to investigate the magnitude of the risks which the father poses, I am satisfied that the risk should be assessed as an unacceptable one.  One only needs to consider the recent events of 6 February 2017 to realise that the risks are real, the prospect of violence being perpetrated in front of the children substantial, and hence the risks of emotional, and indeed physical harm, to them likewise substantial.

3. I am satisfied that on the material, and in the circumstances of this case, the conclusion that the father poses an unacceptable risk of harm to the children is not only available, but appropriate.

SECTION 60CC CONSIDERATIONS

1. It is likely that the children would, but for the risk which the father poses to them, benefit from having a meaningful relationship with him.

2. During the Child Inclusive Conference on 26 April 2017, B said that she did not wish to see her father at present, or speak to him via telephone.  That is because she is worried he will get angry at her because she spoke to a detective about what happened to her.  Given that she is 11 years of age, I give those views some, but not great, weight.

3. C did not express any views and, in any event, is too young to think that his views should be given any weight.

4. The father has always been keen to be involved in the children’s lives.

5. The father’s capacity to provide for the needs of the children must highly doubted.

6. I have already discussed family violence.  Family violence orders have applied between the parties from time to time, from which I conclude that the father is, on occasion, prone to acting aggressively and violently.  The events of 6 February 2017 only serve to buttress that conclusion.

PARENTAL RESPONSIBILITY

1. There is no reason to think that the mother and father could possibly discharge the obligations of equal shared parental responsibility which any such order would place upon them pursuant to s 65DAC. There must be an order for sole parental responsibility, as anything else would be unworkable. The beneficiary of such an order should be the person with whom the children primarily live. As shall be seen, that is the mother. There will therefore be an order that she have sole parental responsibility in relation to the children.

WITH WHOM SHOULD CHILDREN LIVE

1. The father no longer presses his application, and has expressly discontinued it.  Although he did attend court at the day of the hearing, he had departed prior to the hearing being called on.  Precisely why he attended, and then left, was unclear, but it may be yet another indication of his impulsive behaviour.

2. The risks which the father poses to the children disqualify him from being their primary carer.  Even accepting that his present partner may be a mitigating influence, after 6 February 2017, on the material before me, one could not confidently so conclude.

3. I am satisfied that it is in the children’s best interests that they live with the mother, and will so order.

TIME AND COMMUNICATION WITH FATHER

1. This is the essence of the case.  The mother and Independent Children's Lawyer contend that the father poses such a risk of harm to the children, that it is appropriate to order that there be no contact or communication between him and the children.  I am satisfied that those submissions are indeed correct.  The events of 6 February are highly troubling, particularly given the isolated environment in which the father lives.  This is not a situation where, if the father begins to act inappropriately, the children can simply run to a next door neighbour, or safely flee the environment.

2. Further, the fact that the father has disengaged from the proceedings prior to him being psychiatrically assessed, or a Family Report being prepared, has deprived the court of an opportunity to properly investigate the magnitude of the risk.  As I have indicated, in those circumstances I am satisfied that the risk is an unacceptable one.  There will therefore be an order that the father spend no time with the children.  I am satisfied, however, that it should be in the terms as suggested by the Independent Children's Lawyer, namely that the mother may agree to the children spending time with the father.  For instance, as the children age, and if the father’s substance abuse is able to be controlled, the risk which he poses to the children may be seen to be sufficiently mitigated.  However that is a matter for the mother’s determination in due course.

3. The father poses less of a risk of harm to the children from a communication regime, but he does not press any such regime before me.  Absent him in doing so, I am satisfied that there should be a restraint on him from seeking to communicate with the children, except with the mother’s agreement.  Again, I am satisfied that she will be best placed in the future to determine whether that communication regime should occur, and by what means and in what circumstances.

OTHER ORDERS

1. Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer are in the children’s best interests and will pronounce them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 December 2017.

Associate:

Date: 15 December 2017