Hurst and Biggs
[2012] FamCA 536
FAMILY COURT OF AUSTRALIA
HURST & BIGGS [2012] FamCA 536
FAMILY LAW – CHILDREN – whether the children should continue spending time with their father – where the father engages in alcohol misuse - where the father refuses to participate in a residential rehabilitation program – where it is held that the father should spend supervised time with the children for a limited time to enable him to participate in certain programs if he changes his mind and chooses to do so – where the father alleges the mother’s new partner poses an unacceptable risk to the children – where the Court accepts the undertakings from the mother and the mother’s new partner
Family Law Act 1975 (Cth)
APPLICANT: Ms Hurst
RESPONDENT: Mr Biggs
INDEPENDENT CHILDREN’S LAWYER: Chris Wright
FILE NUMBER: CSC 373 of 2009
DATE DELIVERED: 6 July 2012
PLACE DELIVERED: Sydney
PLACE HEARD: Cairns
JUDGMENT OF: Watts J
HEARING DATE: 5 – 8 March 2012 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Trevino
SOLICITOR FOR THE APPLICANT: Legal Aid Queensland
SOLICITOR FOR THE RESPONDENT: Litigant in person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Jacobs
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray Lyons Solicitors Orders and Undertakings
1.All previous parenting orders, and any order relating to Mr M, be discharged.
2.The mother have sole parental responsibility for the child B born … November 1999 and the child T born … October 2003 (“the children”).
3.The children live with the mother.
4.The father spend time with the children in accordance with these orders conditional upon the following:
4.1.For a period of 12 months of supervised time at C Contact Centre for a period of two hours in each alternate week, on a Saturday or Sunday, subject to the availability of the Centre.
4.2.Within 12 months of the date of these orders, the father enrol, attend, and successfully complete a three month residential rehabilitation program at Ozcare at Cairns;
4.3.Within 12 months of the date of these orders, the father enrol, attend, and successfully complete the Parenting Orders Program and Focus on Kids Program offered by Relationships Australia Queensland;
4.4.Upon the father satisfying the requirements of orders 4.2 and 4.3 above, the father shall provide notice in writing to the mother:
4.4.1.Confirming that the father has satisfied the requirements of orders 4.2 and 4.3 above;
4.4.2.Providing documentary proof from both Ozcare and Relationships Australia Queensland that the father has attended and successfully completed the relevant programs.
4.5.In the event that the father fails to comply with order 4.2 and 4.3 within a period of 12 months, the father shall thereafter see the children for two hours at C Contact Centre once every six months.
5.Upon receipt by the mother of the notice referred to in order 4.4 above, the father spend time with the children every second Saturday from 8.30am until 4.30pm.
6.The father’s time with the children in accordance with orders 4 and 5 is suspended during one half of gazetted Queensland School holiday periods.
7.All changeovers pursuant to order 5 are to occur at McDonald’s Restaurant at Town D.
8.The children have telephone time with the father:
8.1.on one occasion in each week at a regular time to be nominated by the mother in writing, with the children to initiate the call to the father;
8.2.on Christmas Day, Easter Sunday, Father’s Day, the father’s birthday, and the children’s birthdays if the children have not seen their father on these days, with the children to initiate the call to the father;
8.3.at all times when the children express a wish to telephone the father, with the children to initiate the call to the father.
9.The father shall not consume alcohol 24 hours prior to or during his time with the children.
10.The father shall not consume alcohol prior to or during telephone communication with the children that is scheduled to take place pursuant to orders 8.1 and 8.2.
11.Neither parent expose the children to excessive alcohol or illegal drugs or allow any other person to do so while the children are in their care.
12.The father is restrained from contacting the mother directly or indirectly except for the purpose of spending time with the children in accordance with orders 4.1 and 5.
13.The father is restrained from approaching the mother at any place except for the purposes of changeovers as provided in order 7 above.
14.The mother, in consultation with Ms L, determine what further therapy the child B might need with Ms L and ensure that the child B receives that therapy.
15.The Independent Children’s Lawyer is discharged.
16.The court accepts the mother’s undertaking to not, in any circumstance, leave the children in the unsupervised care of Mr M.
17.The court accepts Mr M’s undertaking to not, in any circumstance, physically discipline the children or allow the children to be left in his unsupervised care.
18.Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Biggs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: CSC 373 of 2009
Ms Hurst Applicant
And
Mr Biggs Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.At the centre of my concerns in this case, is the question of what involvement, if any, two children aged 12 and 8 can have with their father. A focus of this hearing was the father’s lack of insight into his problems with alcohol and his inability to respect boundaries. These difficulties have been the cause of angry and aggressive behaviour by the father in respect of the children and the mother. A further compounding factor is the father’s inability to take responsibility for his actions. A combination of these problems leads to the inquiry as to what risk there is to the children of continuing time with the father in circumstances where the father has indicated he will not accept expert advice about remedial treatment.
APPLICATIONS
2.The applications of the mother and father are set out in schedules 1 and 2 respectively.
3.Both parties agree the children should live with their mother. The mother is seeking sole parental responsibility for the children. The mother seeks that the children spend no time with the father until the father enrols, attends, and successfully completes a three month residential rehabilitation program at Ozcare at Cairns. Upon his completion of that program, the mother seeks supervised time at a contact centre for a further period of six months and then for the children to spend time with their father every second Saturday from 8.30am to 4.30pm. The mother seeks a suspension of time during all school holidays. There is also a provision the children have telephone contact with their father. The mother seeks other restraints on the father, particularly in relation to the use of alcohol and given the history of domestic violence, restraints on the father from contacting her directly. Both the mother and Mr M, the man with whom the mother has a relationship, give undertakings to the court that Mr M will not be left alone unsupervised with the children and Mr M also gives an undertaking that he will not in any circumstances physically discipline the children.
4.The father wanted an order that the children not come into contact at all with Mr M until they were of a “suitable mature age”.
5.The Independent Children's Lawyer did not prepare any written minute of order. In oral submissions the Independent Children's Lawyer made it clear that the Independent Children's Lawyer had hoped that the father would agree to take up the opportunity to undertake a residential program relating to his use of alcohol, either at Ozcare in Cairns or in Townsville. In those circumstances, the Independent Children's Lawyer would have sought that this hearing not be finalised, that interim orders be made, and that the matter come back to court at an appropriate time to revisit final orders once the father’s residential program had been completed. As the Independent Children's Lawyer pointed out however, the father has made it clear that he does not intend to enrol himself in any residential program. Consequently it is the Independent Children's Lawyer’s “regrettable” position that final orders should be made now. The Independent Children's Lawyer suggested that the father’s time with the children be restricted to six months, supervised at a contact centre in Cairns on an alternate fortnightly basis and then it should cease. If the father was to have supervised time, then an order should be made that he abstain from drinking alcohol for at least 24 hours prior to any contact with the children. The Independent Children's Lawyer submitted that the current restraining order in place in relation to Mr M should be discharged on the basis that the court accept the undertakings proffered by Mr M and the mother. It was further submitted that the elder child’s therapy with Ms L from Relationships Australia should continue.
DOCUMENTS RELIED UPON
6.The applicant mother relies on the following:
6.1.3rd Further Amended Initiating Application filed 31.01.2012
6.2.Applicant’s affidavit filed 31.01.2012
6.3.Applicant’s affidavit filed 9.08.2011
6.4.Applicant’s affidavit filed 14.02.2011
6.5.Applicant’s affidavit filed 20.01.2011
6.6.Applicant’s affidavit filed 25.06.2010
6.7.Affidavit of Ms J 15.02.2012
6.8.Affidavit of Ms A filed 14.10.2011
6.9.Affidavit of Mr M filed 9.08.2011
7.The respondent father relies on the following:
7.1.“Further Amended” Response to Initiating Application filed 20.02.2012
7.2.Respondent’s affidavit filed 20.02.2012
7.3.Respondent’s affidavit filed 27.09.2011
7.4.Respondent’s affidavit filed 24.12.2010
8.The Independent Children’s Lawyer relies on the following:
8.1.Updated Expert Report of Dr R filed 21.10.2011
8.2.Expert Report of Dr R filed 5.05.2010
8.3.Report of psychiatrist Dr K filed 11.08.2010
SHORT HISTORY
9.The father was born in 1960 and is now aged 52.
10.The mother was born in 1966 and is now aged 46.
11.The parties commenced cohabitation in August 1990.
12.The child B was born in November 1999 and is now aged 12.
13.The child T was born in October 2003 and is now aged 8.
14.The parties separated in late 2008 or early 2009.
CREDIT
Mother
15.The mother presented as a very credible witness, particularly when being cross examined by the father. She made many concessions. I am happy to accept her evidence in its entirety.
Father
16.The father, on the other hand, on a number of occasions within the space of a couple of minutes, gave a positive answer to a question then a negative answer to the same question and then a positive answer again (or vice versa). I have no doubt that the father has a heartfelt desire to see his children and have a relationship with them. I got the impression that this has led him to saying things which were objectively unsustainable.
The father, for example, had difficulty in accepting that he had pleaded guilty to the most recent charge that had seen him go to prison (a third offence for driving with a high range of concentration of alcohol in his blood stream). Notwithstanding the certificate that was before the court (upon which the prosecution was based which indicated a reading of .194), the father maintained a story about his drinking prior to his apprehension in the motor vehicle with the children that bore no credible relationship to the objective evidence contained in the certificate.
18.His statements to the police in relation to the quantity of alcohol he drank were at odds with his written evidence in this case (his written evidence for this case was prepared in prison and is a detailed document to which I find a great deal of attention was given by the father).
19.In the second family report, Dr R has recorded what the children have told her about their observations in respect of their father’s use of alcohol whilst they were in his care. The father’s assertion was that the mother had coached the children to say what they had said. Dr R was not prepared to accept the children were coached. I do not find the assertion by the father to be credible.
20.The father asserted that part of the reason why he has on three occasions had seriously high readings of driving under the influence (on 4.8.2007 he returned a reading of .253; on 24.1.2009 he returned a reading of .307; and most recently on 27.11.2011 he returned a reading of .194), is that he has an abnormal metabolism. There was no objective evidence to support this assertion. The father said he was intending to have a liver test done and that he was also challenging the most recent conviction on appeal. The father asserted that he only pleaded guilty because he had been “instructed” by his lawyer to do so but as I have already mentioned, at a later stage the father was even unable to acknowledge that he had pleaded guilty.
21.I find that the father lacked candour and credibility.
DETAILED CHRONOLOGY
22.The father was born in 1960.
23.The mother was born in 1966.
24.The parties commenced cohabitation in August 1990.
25.The parties married in October 1993.
26.The parties’ first child B was born in November 1999.
27.Around 2000, the mother’s new partner, Mr M’s, son S was born.
28.In March 2001, the mother alleges the father made his first suicide attempt. The mother found the father hanging by a rope, turning blue. The mother cut him down. The father refused to attend the hospital when he was asked to do so by the police.
29.In 2002, the parties moved to Northeastern New South Wales.
30.In 2003, the parties moved to Far North Queensland.
31.The parties’ second child T was born in October 2003.
32.Around 2004, Mr M’s son V was born.
33.The paternal uncle committed suicide in 2004. The father admitted he was incredibly upset and began drinking very heavily.
34.In March 2005, the mother alleges the father made his second suicide attempt. The father was hanging from the rafters. The mother cut him down and rang an ambulance. He was admitted to hospital with minor rope burns. The father denied any serious intent to take his life.
35.In August 2007, the mother alleges the father threatened his third suicide attempt. The father sent text messages to the mother’s friend Ms A saying he was going to “blow his brains out”. The father admits he told police he would kill himself. He was taken to a hospital Mental Health Unit.
36.In 2008, the police applied for a Protection Order for the mother after the father punched her in the face.
37.Later in 2008, the police also applied for a Protection Order in favour of the father. The mother admitted to police that she grabbed the father by the throat and pushed him through a window, causing the window to smash. The father told police the mother had continually locked him out of the house and hid his keys in order to deny him access to the matrimonial home.
38.The parties separated in the period between November 2008 and February 2009.
39.In January 2009, T went to stay with his father overnight. The mother alleges the father refused to give T back to the mother, stating “I will not give him back unless you have some court orders in place stating we each have him 50/50. I have just as much right as you.”
40.Around February 2009, the father undertook some detoxification for his alcohol abuse.
41.In August 2009, the father was sentenced to three months in gaol for breach of a Domestic Violence Order.
42.On 26 October 2009, Federal Magistrate Willis made orders by consent that the children spend supervised time with the father for two hours per fortnight.
43.Around March 2010, the mother commenced a relationship with Mr M.
44.On 9 July 2010, Mr M assaulted his son S. Mr M taped the child’s arms and legs together using gaffer tape. The child sustained bruising. Mr M was convicted of common assault in April 2011.
45.On 2 February 2011, Mr M was at the mother’s house helping prepare for Cyclone Yasi. The father arrived at the mother’s house, against court orders, to drop off a gas stove, water containers and duct tape. He shouted for the children to come out of the house and see him. When the mother refused this request, the father became aggressive. The father, who had become aware Mr M had been charged with assaulting his son S, allegedly used words to the effect of “[Mr M] is nothing but a kid basher”. He then raised his fist as if he was going to punch Mr M’s car window.
46.On 17 February 2011, Federal Magistrate Willis made orders that the children spend unsupervised time with the father for six hours on two out of every three Saturdays, as well as for two hours on a Wednesday. Her Honour also made an order restraining Mr M from coming into contact with the children.
47.On 18 July 2011, Federal Magistrate Willis made orders by consent that the children spend two out of three weekends with their father, such that they spend overnight time with their father. Her Honour also ordered that the children continue to spend time with their father on Wednesday evenings.
48.In January 2012, the father was convicted of:
48.1.drinking under the influence; the father was found to have a blood alcohol concentration of 0.194 with the children present in the car;
48.2.two breaches of Domestic Violence Orders; one against the mother, and one against Ms E, the father’s more recent partner.
49.The father had been released from prison shortly before the hearing before me commenced.
MAJOR ISSUES AND EVENTS
Domestic Violence
50.I find the mother has suffered a long history of domestic violence, both verbal and physical assault at the hands of the father. The father has physically assaulted the mother on four or five occasions during their relationship.
51.The father admits there was “a fair amount of verbal aggression”.
52.I find the father has made death threats against the mother:
52.1.On 15 May 2009, the father said to the mother “the kids are no good to you when you’re in a box in the ground”.
52.2.On 24 May 2009, the father said to the mother “you’re no good if you are a dead mum”.
53.The father regularly swore at the mother, saying things such as “get off your fat arse”, “you’re fucking useless”, calling her a “slut” or “fucking bitch” and accusing her of “fucking all the boys next door”.
54.The father has engaged in other abusive and controlling behaviours such as:
54.1.smashing windows;
54.2.using a chainsaw to cut open the front door (I do not accept the father’s claim that he never cut open the front door. He deposes the chainsaw “was a joke after being locked out of my own house”);
54.3.kicking holes in doors;
54.4.breaking telephones leaving the mother with no communication access;
54.5.turning off the power at the mother’s house.
55.In the morning of 7 October 2008, the father removed the licence plate from the mother’s car and placed a steering wheel lock on the car, so she was unable to drive to her workplace. The father arranged to disconnect the phone line and turned the power off numerous times during the day. The father removed the mother’s glasses from her face so she was unable to see properly. He then punched the mother’s face and shoulder. This incident resulted in a Protection Order placed against the father on the 18 November 2008.
56.The father denies punching the mother in the face. He claims he removed the number plate from his vehicle to polish the vehicle. He asserts she was still able to drive her own vehicle to work. The father asserts the mother’s glasses were “found on the bonnet of he [sic] vehicle.” I do not accept the father’s evidence about this.
57.The father has denigrated the mother to her friends calling the mother “a single slut”, an “alcoholic”, a “compulsive liar” and “disease ridden because [she] has slept around so much with other men since being together”.
58.The father asserts that both parties engaged in violence. He alleges the mother slapped and hit him while they were married. The police applied for a Protection Order in favour of the father when the mother admitted to them she grabbed the father by the throat and threw him through a window. Apart from this occasion, I do not accept that the mother regularly instigated or perpetrated family violence against the father.
59.I do not accept the mother ran into the father with a 4WD vehicle and then ran over his foot.
60.The father asserts he has never hit the children but admits to swearing, and raising his voice to the children. The father alleges, and the mother denies that, the mother has “belted” the children. I do not accept the father’s assertion.
61.The mother’s new partner Mr M has a history of domestic violence.
61.1.In April 2011, Mr M pleaded guilty to the common assault of his son S, where he taped S’s wrists together and legs together with black gaffer tape. No conviction was recorded. His children S and V continue to reside with him.
61.2.Around June 2011, Mr M was found guilty of assaulting Mr I (the new partner of Mr M’s former wife). The Court ordered him to complete an anger management program.
I deal with allegations against Mr M in more detail below.
The parties’ mental health
62.In her initial interview with Dr R, the mother reported that the father had attempted or threatened suicide on three occasions. I have made findings about these matters in the detailed chronology above.
63.The father admits he made a suicidal threat on one occasion. He asserts he had no actual intention to take his life, but he was in possession of a rope that he put around his neck. He asserts it was not in the presence of the children.
64.The father admits he has not continued with his sessions with his psychologist, Mr P, however at the hearing he said he had made an appointment to see Mr P again.
65.In his initial report dated 5 May 2010, Dr R expressed the opinion that “it is …probable… [the father] experiences difficulties with Major Depressive Disorder.” Dr R also reported that the father’s “behaviours provide some indication of a personality disorder”, however no specific personality disorder could be determined.
66.Around June 2010, the parties attended upon a psychiatrist, Dr K, for psychiatric assessment. Dr K expressed the opinion that “neither of these two people has a formal psychiatric disturbance that should restrict the contact with the children”.
Drug and alcohol use
67.The father admits he has used amphetamines and dope in the past. The father alleges the mother “was a chronic dope smoker”.
68.The mother indicated to Dr K that during her relationship with the father, she smoked marijuana. She denied any current drug use and I accept her evidence about that.
69.During their relationship, the mother alleges the father drank heavily every day and although that may not be literally true, I accept the mother’s perception that it was true and I accept it was substantially true.
70.The children have witnessed their father purchase alcohol, and consume alcohol in excess.
71.The children reported to Dr R that they smell alcohol on their father, and have seen bottles of wine in the bathroom. The father denies these are alcoholic beverages, asserting they are bottles of ginger beer or non-alcoholic sparkling wine.
72.The father admits that he has continued to drink alcohol, but asserts his drinking is at a low level. The father admits there is sometimes alcohol kept in the pantry when it has not been consumed at a social function.
73.In his most recent affidavit, the father admits he consumes one bottle of beer on a Sunday night after the children have left.
74.The father alleges the mother has a drinking problem and during their marriage, she demanded he purchase alcohol for her. The mother conceded she had difficulties with alcohol, and began attending therapy in early 2011 in order to rehabilitate herself. Her counsellor, Ms J, gives evidence that the mother’s drinking was under control within the first few sessions of therapy, and the focus of therapy has now shifted towards her relationship difficulties with the father and her self esteem. Ms J is confident that the mother will continue to abstain from alcohol.
75.Although the mother reported to Dr R she no longer consumes alcohol, T told Dr R “[Mr M] and [the mother] don’t argue or get angry when they drink.” I find that the drinking referred to related to a time prior to 2011.
Hostility between the parties and their inability to communicate effectively
76.The parties began using a communication book from early March 2011, but it was only used on a couple of occasions.
77.The mother alleges the father made B write in the communication book “you should dorp [sic] cort [sic] case about the day Dad came round when [Mr M] was there plese [sic]!!! By [B]”.
78.The father has inappropriately discussed the court proceedings with the children. On 16 March 2011, the father wrote a letter to the children regarding the day the father went to the mother’s house while Mr M was present. The father wrote:
I find if your Mum makes us go to court it would only hurt you little kids. If I go to jail you would miss me and I would miss you…I [sic] would hurt you. I do not want that for you…If I don’t go to jail I will get a heavy fine. Which I have no money to pay for. I would have to sell our motor bikes to pay for that fine… hope mum comes to her sences [sic] and thinks about not just hurting Dad but you two little kids. I [sic] would be good if she would forget about putting Dad through court again. [I have read the third and last sentences, by assuming, in the father’s favour, they contain typographical errors.]
79.The father has harassed the mother by constantly sending her abusive text messages or calling her and leaving abusive voicemails.
80.The father admits he has “left [voicemails] and said inappropriate things in the past on the phone”. He says this behaviour ceased a long time ago. The father asserts he has not verbally abused the mother during any changeovers with the children.
81.The father alleges that around 2010 the mother changed the children’s school from F Primary School to G Primary School without any consultation.
82.The mother admits to changing the children’s school. The mother asserts she instructed her solicitors to write to the father’s solicitors proposing a change of school. No letter saying this was produced by the mother.
83.The mother’s reason for the change was because B was not coping well in a composite class in F Primary School. The mother also felt the teacher’s aide Mr H who attended T’s class weekly was becoming involved in the parenting dispute and was communicating with the father against the mother’s wishes.
84.The father asserts the mother is a compulsive liar who is ‘on a hate trip’ against him. He asserts she is vindictive and deliberately inflexible with the arrangements for the children.
85.The father alleges Mr M has taunted and threatened him on many occasions saying:
85.1.“I will spear you”
85.2.“I am going to feed you to my pigs”
85.3.“I [am] fucking the arse of your missus”
85.4.“You are going to get fucked up the arse when we [referring to the mother and Mr M] get you into [prison]”
I don’t accept the assertions by the father.
86.The father asserts the mother refuses to communicate with him by phone, in person, or via the communication book. I accept that the level of communication between the parents is entirely dysfunctional.
Last Father’s Day
87.There was some focus during oral evidence on what happened or did not happen last Father’s Day. The mother went away to do a trek on the Father’s Day weekend and left the children with a friend, Ms A, who was to deliver them to the father at a pre-arranged spot at 8am on a Saturday morning. Ms A gives evidence that she had the children there on time. There were only two or three motor vehicles in the car park and when she left there were no vehicles in the car park. The father asserted that he arrived prior to 8am and did not see the children at any time. He asserted that he was looking out for another type of motor vehicle. The place where they were to meet was a park and the father said he had a dog with him. I accept that the children were there on time. I am invited by counsel for the mother to find that the father overslept and did not get there until about 9.30am. I think that is unlikely given that he sent a telephone message asking where the children were at 8.47am. I am unable to precisely work out why it was the father missed seeing the children at the scheduled changeover time.
88.The events after the missed changeover are of more significance. B rang her father at approximately 4.00pm, saying that she would like to see him for Father’s Day (the following day). She had a card to give him. The father had already made alternate plans to go camping overnight to catch yabbies. He was going with a friend and a child of that friend. Although he had packed to go, he had not actually left his home at the time of B’s call. The father did not give any satisfactory explanation as to why he either could not change his plans in order to see the children the following day (Father’s Day) or include the children in his plans. When I asked why it was the children might not have been able to go camping with him, the father said words to the effect that he had to leave straight away because otherwise they would not have caught yabbies that night.
89.The father sent a text message to the children the next afternoon in the following terms:
Hi [B] & [T] ive had a great farthers [sic] day but missed you so much love u dad xo”
90.The implied message that this sent to the children was unfortunate. The father was clearly attempting to make at least B feel guilty for not having seen him on Father’s Day. I accept that this is an example of what Dr R described as the father trying to control things and when he did not get his own way, he got angry.
THE APPROACH IN CHILDREN’S CASES
91.The objects of Part VII FLA 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
92.The principles underlying those objects (unless contrary to a child’s best interests) are:
(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).
93.Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
94.Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)
95.The children have a primary attachment with their mother and she is their primary carer. The mother does not suggest that the children do not have an attachment with their father. Dr R, in her updated family report of October 2011, says that B is afraid of her father, that he yells at her a lot and B is afraid that she may become the victim of family violence in the way that she perceives her mother became a victim of violence. In her earlier report of May 2010, the report writer opined that B had observed events that had occurred between her parents and had made her own observations and attributions about them. It appears that B herself has reservations about the quality of time she spends with her father (and certainly the quantity).
96.The first report also stated that T’s attachment to his father was obvious and that T felt comfortable with his father.
97.The father emphasised that Dr K made the point in his report filed 11 August 2010, that the father “has a fair amount to offer the children.” However Dr K later qualified this statement in his letter to the ICL dated 2 February 2011 (forming part of exhibit 10) where he says “the point I made in my report was that as long as [the father] stays off alcohol (and behaves himself appropriately) I considered he may have a fair amount to offer [the] children.”
98.I conclude that the children would benefit from having a meaningful relationship with their father however, whether that is possible depends very much on balancing the risk that the father poses to the children.
99.Dr R gave evidence that in order to have a meaningful relationship, the father needed to “get real” and become an “authentic person” rather than blaming everybody else.
The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)
100.Dr R identified the major risk factor in the case to be a total lack of insight by the father. The father and I had a discussion about “boundaries”. In the early stage of that discussion, the father seemed to have difficulties in understanding what that concept might mean. There were however through the trial, a number of occasions where I pointed out to the father things that he had done which would reasonably be described as being outside normal boundaries for adult behaviour.
101.The inability of the father to accept responsible boundaries and in particular boundaries around his use of alcohol when the children are with him makes him an unacceptable risk to the children at the present time, if the children are left with him unsupervised.
Mr M
102.There is a further issue that was canvassed during the hearing relating to whether or not Mr M poses an unacceptable risk to the children. Mr M and the mother have a serious relationship. They intend to keep their own households separate and I find that Mr M will not be attempting to step into the role of a step-father for the children.
103.The Department of Community Services (“DoCS”) records have some unflattering assertions about Mr M, particularly in respect of excessive discipline. Complaints were made to DoCS about him kicking N (who is recorded as the older sibling of Mr M’s step-son O) and hitting the child with a belt. A statement was made on 13 May 2010 which detailed a number of allegations against Mr M. There was an assertion that between 1 January 2003 and 28 February 2004 Mr M stabbed the forearm of the child with a fork. Between 1 February 2002 and 28 February 2003 it was alleged that Mr M punched a child in the nose causing the nose to break. Between 1 January 2006 and 30 December 2007 it was alleged Mr M punished his step-son O, for not properly supervising V. Mr M allegedly punished O by taking his hand and placing it on the top of the mower near the cooling fins which resulted in the child sustaining blisters to his hand. There was an allegation recorded in police records dated 26 June 2010 that Mr M spat making contact with a child’s head.
104.Finally, there was an incident on 9 July 2010 which was the subject of a criminal charge against Mr M. It arose out of a circumstance where his son S asked his father whether or not he could go and visit his mother. There was a disagreement about whether or not the child would help his father with work in the yard. His father warned him that if he did not get up on the count of five, “I am going to tape you”. The child indicated to his father that it was not right that he would not let him go and see his mother. Mr M then taped the child’s arms together in front of him and then bound his legs together on the shins with black gaffer tape. There was further conversation between the father and child. The child then started to rip the tape off with his teeth at which time Mr M applied more tape around the child’s arms. The father removed the tape after the child indicated that “I won’t go today”. The child sustained bruising to the forearms and the lower legs as a result of being bound by the tape. As a result of this incident, Mr M was charged and was convicted in April 2011 of common assault of his son S. He was ordered to enter into a 12 month good behaviour bond with $500 and no conviction was recorded.
105.The DoCS records were not fully explored with Mr M in cross examination. There is an entry there for example that he was charged with wilful maiming of animals. There is no indication anywhere else in the material that he did any such thing. Mr M’s criminal record is in evidence and it does not include anything of that nature. I therefore can place very little weight on the hearsay statement of the DoCS records about behaviour by Mr M’s of a criminal nature – the objective evidence, namely his actual criminal record, does not support it.
106.Mr M has been compliant with probation and he gave oral evidence about the benefit he has taken from the probation order. He has done a PPP parenting course recently. He has done quite an amount of anger management counselling.
107.During final submissions, the father made assertions about Mr M, some of which were not the subject of any evidence.
108.The father also said:
“… this guy can duct tape his own children’s hands together. There’s also statements by his other children where he has stabbed them with a fork, broke the other one’s nose. If you read carefully through the child safety reports where he has touched my daughter on the bum, my daughter told me and she was uncomfortable with that. Her ex partner told me, [Ms Q], [Mr M’s] ex partner, “He’s only preening your daughter, be careful of him”. I’m just being protective that way like [the mother] is with me of my problems. You know, this has been in my head for three years, I’m sorry to spill it out like that but like I said I’m not a professional.”
109.The father submitted that the court could not be confident that the mother at some time during any 24 hour period, 7 days a week, would want to go to the toilet and they might be camping where the children will be exposed to “that fellow”. The father made it clear he did not begrudge the mother having a relationship with Mr M, but he did not want his children to have one.
110.Mr M has provided undertakings to the court which I have referred to at other places in these Reasons. I find that, in light of those undertakings, Mr M does not pose an unacceptable risk to the children.
The additional considerations
Children’s views (s60CC(3)(a))
111.In her initial interview with Dr R in May 2010, B indicated she “would like to spend half [her] time with both parents” but noted that she runs out of things to do at her father’s house. Dr R also reported that T was clearly attached to the father. T said he “wants to spend more time with [the father], like every fourth day, and [he] would like to have sleep over’s [sic] with [the father].”
112.However, in the children’s recent interview with Dr R in October 2011, they indicated they wish to have the time they spend with their father reduced. The children reported a level of fear when in their father’s care.
113.Dr R reports that B says she is “afraid of [the father], he yells at [her] a lot and [she] is afraid that he might hit [her] or do something like that because [she] used to [see] him do that to [the mother]”. As I will discuss below, the father conceded that he, at least, called B a “silly bitch” in a “dominating voice”.
114.Dr R asserts that B is anxious in the father’s company. He reports “she is concerned not only for herself, but also for T when with [the father].”
115.T also reported to Dr R that, if he spends time with his father, he prefers for B to be there as well because he “feels safe with [B] there”. He also reported that he “is a bit worried that maybe [the father] might do something to [him]”.
116.The father asserts that the children’s expressed views about spending time with him are a product of coaching from the mother. He reiterated in his affidavits that any fear the children feel is fear instilled in them by their mother.
117.The father admits he gives more attention to T, and that B may get jealous. He admits he has difficulties with “[B’s] attitude” and argues that he does not placate her “addiction to shopping” and this upsets her.
118.Overall, both children are increasingly expressing a reluctance to spend the amount of time which they formerly had with their father. I accept the expression of those views as genuine and not the product of rehearsal by the mother.
Relationships of the children with the parents and other persons (s60CC(3)(b))
119.The children reported to Dr R that they have good relationships with Mr M and his children.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))
120.The father argues that the mother has not always facilitated contact and “does not let the children phone” him. I do not accept the mother has failed to facilitate the children’s relationship with their father.
Likely effect of any change in the children’s circumstances (s60CC(3)(d))
121.The children have not seen their father for some time because of his incarceration, and if the mother’s application is successful that position will not change in the short term.
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
122.The father is currently not in employment but expects to be able to re-engage in the building industry or some other activity of an income earning nature in the short term.
123.The father has pointed out that it is inconvenient to the mother and the father to get the children down from the Atherton Tablelands to Cairns in order for him to participate in seeing the children in a contact centre. I think that that however is what has to happen and the inconvenience involved is outweighed by the protection that that arrangement gives the children from the father’s inappropriate behaviours, including the abuse of alcohol.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))
124.The mother’s history of alcohol use indicates that it was problematic at a point in time in the past but she had taken steps and undertaken appropriate programs to address the problem.
125.Ms J (the mother’s counsellor) had assessed that the mother’s risk of relapse is low and she had benefited from the parenting programs in which she was involved. She presented herself as a child-focused mother with good insight into the conflict that currently existed.
126.The father originally denied that he directed angry and foul language towards the children. He later conceded that he may have called B a “silly bitch” and this may have been said in a “dominating voice”. He said that this “wouldn’t be shouting of abuse at her”. The father didn’t seem to have any insight as to the effect that that behaviour might have on a 12 year old girl.
127.I accept counsel for the mother’s submission that the father has very little insight into the problems that his behaviour has created for the children.
128.On almost all relevant occasions during the hearing, the father blamed the problems that he has on external forces that were aligned against him.
129.The father does admit he has difficulties with B. He says B’s “unpleasant attitude” when she visits the father affects T as well. The father says this was the catalyst behind his proposal to spend time with the children separately. This was something the mother had agreed to in earlier interim orders. The father’s rationale is that B behaves herself with him far better when her brother is not around. B commented to Dr R that the proposal to see her father without T upsets her. Given the children’s fears about spending time with the father separately, and B’s comments to Dr R, I find it is not in the children’s best interests to spend time with their father separately.
130.The father alleges B suffers from warts and open sores. He alleges the mother has not sought medical treatment for these conditions, but I do not put any weight on these allegations.
131.Whilst the father has some positive attributes, when comparing the parenting capacities of both parents, there is a stark difference. The mother has the superior parenting capacity.
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
132.B is 12 and is in her first year of high school. T is 8. I have already commented upon their expressed views and the weight they should be afforded.
If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))
133.The father’s Aboriginality did not feature as an issue in the case and it was not mentioned until the court raised it with the father in final submissions.
134.This issue was not the focus of any questioning during the four days of the hearing. In his affidavit, the father says he involves himself in indigenous culture by camping regularly and “painting and gathering, bush skills [and] tucker”. He deposes he has taken the children camping from a young age, “showing them traditional ways; hunting, fishing, animal tracking, bird watching, bush skills”. He says he “care[s]…for the culture and the bush” and he wants the children “to respect… the land”.
135.The father asserts the children are Aboriginal. In his affidavits, the father identifies himself as Aboriginal. He says his grandmother was part Aboriginal.
136.The father’s evidence about his Aboriginality is set out in his affidavit filed 24 December 2010. In her affidavit filed 20 January 2011, the mother claimed the father never spoke of being from an Indigenous background during their relationship. The father did not seek to dispute this and I accept that the father did not refer to his Aboriginal heritage whilst in a relationship with the mother.
137.When this s 60CC(3) matter was raised with the father during his final submissions, he attempted to say that both his drinking and his resistance to going to residential rehabilitation should be seen through the prism of his Aboriginal heritage. This is not an issue that had been raised with Dr R nor Dr K. I have got no evidence that would lead me to believe that anything in the father’s cultural heritage would predispose him to alcoholism nor predispose him to higher resistance of having his liberty constrained by a residential placement.
138.Based on things that the father said in final submissions, it may be that that the father has renewed his interest in his Aboriginal culture during his most recent period of incarceration. He pointed out that the various ring binders that he prepared in prison in preparation for the trial had on the front of them symbols relating to Aboriginal and Torres Strait Islander culture. However, given that the father did not refer to his Aboriginal heritage at any stage during the whole of his relationship with the mother, I am unable to find that it is a significant issue in this case.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
139.The father demonstrated on a number of occasions an inability to take responsibility. He also demonstrated the need to be in control of other persons’ behaviours.
140.The father has bought T numerous weapons. In 2009, when T was only five years old, the father purchased him a bow and arrow set. The mother told Dr R the father purchased T two hunting knives for his 8th birthday. The father asserts he gave T one hunting knife, to be used under strict supervision.
141.The mother alleges the father has regularly cancelled his time with the children, or not shown up to collect the children. The father asserts his status as self employed means he often has work commitments he cannot rearrange.
142.The father has not complied with orders that he attend the Parenting Orders Program and the Focus on Kids program. The father asserts Relationships Australia has had difficulty enrolling him in the courses. The father tendered a letter from Relationships Australia (Exhibit 17) dated 8 March 2012 which says the father “attended [his] intake appointment via telephone on 08/10/2010” and that he had been placed on the “Focus on Kids parenting after separation course Cairns waiting list.”
Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))
143.As already mentioned, there has been significant family violence between the parties. The father has been convicted of breaching domestic violence orders on a number of occasions.
Likelihood of order leading to further proceedings (s60CC(3)(l))
144.None of the proposals are more likely than another to mitigate against the commencement of new proceedings in the future.
EQUAL SHARED PARENTAL RESPONSIBILITY
145.Given the family violence in this case, the presumption of equal shared parental responsibility does not apply.
146.I have already accepted the parties are unable to communicate. When the mother was asked by the father whether or not they could communicate in the future for the sake of the children, the mother’s response was words to the effect, “you are impossible to deal with, you talk over the top of me”.
147.I noticed during the four days of the trial that the father did have a habit of talking over the top of answers that were being given after he had asked a question, or over the top of myself when I was talking to him.
148.The mother showed a great deal of insight when again asked by the father whether or not they could communicate in the future for the sake of the children. Her response was ‘I’m not a counsellor, I can’t counsel my ex-husband. I don’t feel I can. I haven’t got that skill to counsel my ex-husband to help his relationship with our daughter. He needs outside counselling for that as far as I feel’. I find the mother had perceptively described the dynamics that currently exist between the father and mother. The lack of any likelihood the parties could effectively communicate in the foreseeable future is a sufficiently powerful reason in this case for me to be convinced that it is in the best interests of the children to make a sole order for parental responsibility in the mother’s favour.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
149.Given there is to be no order for equal shared parental responsibility, the provisions of ss 65DAA(1) and (2) are not enlivened and I otherwise find that neither equal time nor substantial and significant time with the father is in the children’s best interests.
CONCLUSION ABOUT BEST INTERESTS
150.I generally conclude the proposal of the mother is in the children’s best interests with exceptions referred to below.
151.In her most recent report, Dr R had changed the position which she had previously taken. She had become aware of the most recent drink driving offence (.194 with the children in the car). Dr R said that the children seeing their father in the contact centre was only useful for a short period of time. I am however of the view that it would be important for the children to retain some type of relationship with their father, if he does rehabilitate himself and he does heed the advice that he has been given most recently by Dr R in the witness box when he was asking her questions. In those circumstances the father could eventually spend time with the children unsupervised.
152.The father was given a number of opportunities during the four day hearing to consider and accept Dr R’s recommendation for him to attend a residential rehabilitation program. By the end of the hearing the father had reached a firm decision not to involve himself in such a program.
153.I find that it is in the children’s best interests to continue, in the short term, to see their father in a professional supervised setting. The aim of the continuation of that time is to afford the father an opportunity to reflect upon the position that he took at trial. A reasonable period for him to be able to firstly, have a change of attitude, and secondly, implement what is required is a period of 12 months. What is required is for him to enrol, attend and successfully complete a three month residential rehabilitation program at Ozcare at Cairns and secondly, enrol, attend and successfully complete the “Parenting Orders” program and the “Focus on Kids” program offered by Relationships Australia Queensland. In the event the father has done both of those things within a period of 12 months and provided documentary proof to the mother that he has done so, then I find it is in the children’s best interest to spend unsupervised time with their father during the day every second weekend.
154.If the father remains unwilling, or otherwise fails, to comply with these conditions then it is not in the children’s long term best interests for this arrangement to continue, other than to provide an occasion twice a year for the purposes of the children being able to spend some face to face time with their father.
155.The mother has sought that the father’s time with the children be suspended during school holidays. It would be appropriate, whilst the father is seeing the children, to suspend the father’s time with them during school holidays for one half of each school holidays to enable the mother to go on holidays with the children for at least half of the holidays without the requirement of them having to be in Cairns for the purposes of periodic contact.
156.The other orders that the mother is seeking are appropriate.
THE UNDERTAKINGS PROFERRED BY THE MOTHER AND MR M
157.Mr M has provided to the court a written undertaking in the following terms:
“I undertake to the court not in any circumstance (to) physically discipline the children, [B] and/or [T] or allow the children to be left in my unsupervised care.”
158.The mother has given a similar undertaking. I am prepared to accept those undertakings for reasons previously discussed.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 6 July 2012.
Associate:
Date: 6 July 2012
SCHEDULE 1
Orders sought by mother
Parenting Orders and Parental Responsibility:
1.The children [B] born […] November 1999 and [T] born […] October 2003 live with the mother.
2.The mother have sole parental responsibility for the children.
3.Unless and until the father satisfies the requirements of order 4 below, the father shall spend no time with the children.
4.The father spend time with the children in accordance with these orders conditional upon the following:
(a)Within 18 months of the date of these orders, the father enrol, attend and successfully complete a 3 month residential rehabilitation program at Ozcare at Cairns;
(b)Within 18 months of the date of these orders, the father enrol, attend and successfully complete the Parenting Orders Program and Focus on Kids Program offered by Relationships Australia Queensland;
(c)Upon the father satisfying the requirements of 4(a) and 4(b) above, the father shall provide notice in writing to the mother:
i) Confirming that the father has satisfied the requirements of 4(a) and 4(b);
ii) Providing documentary proof from both Ozcare and Relationships Australia Queensland that the father has attended and successfully completed the relevant programs.
5.Upon receipt by the mother of the notice referred to in order 4(c) above, the father spend supervised time with and communicate with the children at [C] Contact Centre for a period of two hours in each alternate week on a Saturday or Sunday subject to the availability of the centre and with such supervised time:
(a)to commence on the weekend 14 days after receipt of the notice;
(b)to continue for a period of 6 months.
6.At the end of the 6 month period of supervised time referred to in order 5 above the father shall thereafter spend time and communicate with the children every second Saturday from 8.30am until 4.30pm.
7.The father’s time with the children in accordance with orders 5 and 6 is suspended during gazetted Queensland School holiday periods.
8.All changeovers are to occur to and from McDonald’s Restaurant at [Town D].
Telephone time:
9.The children have telephone time with the father:
(a)on one occasion in each week and on special occasions Christmas Day; Easter Sunday; Father’s Day, father’s birthday and the children’s birthdays if not in the father’s care on the special occasions with the children to initiate the call to the father and
(b)at all times when the children express a wish to telephone the father.
Prohibitions on alcohol consumption:
10.The father shall not consume alcohol 24 hours prior to or during his time with the children.
11.The father shall not consume alcohol prior to or during telephone communication with the children.
12.Neither parent expose the children to excessive alcohol or illegal drugs or allow any other person to do so while the children are in their care.
Restraints
13.The father is restrained from contacting the mother directly or indirectly except for the purpose of spending time with the children in accordance with orders 4,5,6,7 and 8.
14.The father is restrained from approaching the mother at any place except for the purposes of changeovers as provided in order 8 above.
Discharge of ICL
15.The Independent Children’s Lawyer is discharged.
Undertakings
16.The mother undertakes to not in any circumstance leave the children [B] and [T] in the unsupervised care of [Mr M].
17.[Mr M] undertakes to not in any circumstance physically discipline the children [B] and [T] or allow the children to be left in his unsupervised care.
SCHEDULE 2
Orders sought by father
1.That the children do not come into contact with [Mr M] until they are of a suitable mature age.
2.That the children live with the mother until either child chooses or expresses that they want to live with the father.
3.That both parents have shared parental responsibility.
4.That neither child change their surname until over the age of 18 years.
5.That the father have every second weekend with both children from Friday afternoon until Sunday afternoon.
6.That the father have each Wednesday afternoon with both children and any other afternoon the children do wish or want to from 4.30pm until 6.30pm.
7.That the children live and reside (as to move) no more than 40kms from the father’s residence.
8.That the mother hand over the children at a location upon agreement close to the father’s residence and the father to hand back the children at the [Town D] Bus Stop, [Town D].
9.That either child be able to phone their father at any time that they wish.
10.The father have reasonable time to phone the children as he finds suitable at a reasonable hour.
11.That the children phone their father two times during the week Tuesday evening and Friday evening on his land line if there is no answer then call his mobile phone.
12.That the children phone the father on the Saturday mornings when it is their weekend off from his access weekend.
13.The mother is to encourage the children to phone the father at any time.
14.The children have shared gazette school holidays alternating with both parents.
15.The children alternate long weekends with both parents.
16.The children to alternate Easter holidays with both parents.
17.The children to spend the weekend with the parent of the [sic] Mother’s Day or Father’s Day even if it coincides or clashes with standard access weekends.
18.Alternate birthdays with the children.
19.Neither parent to expose the children to excessive alcohol and no illegal drugs.
20.The children to alternate Christmas Eve and Christmas Day. The children to spend that afternoon Christmas Day and Boxing Day with the other parent.
21.That neither parent expose the children or talk to them about any court related matters, nor slander or denigrate either parent or allow any other person to do the same.
22.Neither parent to question the children or any of their friends as to what the parent does or says or their whereabouts.
23.Neither parent to “listen in” on any phone calls or conversation the children have with the other parent nor question the children about their conversation with either parent.
24.That either parent may change or exchange times set out as long as they both agree in writing and without any argument with the other parent.
25.That both parents appreciate difficulties with access at or for unforeseen events.
26.Each parent let the other parent know or [sic] change of access within seven days as well as all phone numbers and postal address.
27.Each parent must notify the other parent of any medical emergency immediately or any medical issue that they or the children think is of any importance.
28.Neither parent to travel with the children without consent of the other for a holiday. But they must have substantial grounds in which to deny such travel. And if done so give one month’s notice, detailed itinerary as to dates of departure and arrival and destination. And a courtesy call on arrival to say they arrived safe and the same on the return. Also to be able to have contact with the children while they are away on holidays every three days or as they would at home.
29.The father to be kept up to date and have a say in the children’s education, school changes, all day care, sporting clubs etc. To keep the father informed of all the above and to be actively involved in all the above. To have the opportunity to be invited on a….(photocopy incomplete)…in all above.
30.To have current up to date reports on the children’s education including school reports, school sporting events, parent teacher interviews and to be included. The father also to be notified of sporting club events and to be able to attend these events when they arise, being weekdays or weekends etc.
31.Both parents to keep the other parent informed of the children’s current doctor, medical specialists and mental health professionals and counsellors and provide progress reports and release all information to either parent.
32.I agree with [the mother’s] request as to order 25(a) and (b) Dispute Resolution.
33.That the father have the contact details if the children are left in the care of any person for a length of time.
34.That the father be notified of a contact address and phone number to contact the children for access issues if the contact number of the children is not serviceable.
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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Statutory Construction
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Duty of Care
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