Jamieson and Jamieson

[2018] FamCA 576

FAMILY COURT OF AUSTRALIA

JAMIESON & JAMIESON [2018] FamCA 576

FAMILY LAW – CHILDREN – Unacceptable risk – Where mother seeks for the children to live with her and neither spend time nor communicate with father unless they wish to do so – Where father seeks children live with mother and that he be permitted to send correspondence to the children and if successful, he have liberty to apply – Where father’s relationship with the children is severely fractured – Where the father poses an unacceptable risk of emotional harm to the children – Where the father has been domestically violent towards the mother and children – Where children’s wishes given weight – Where children are unlikely to obtain any benefit from being reintroduced to the father – Where the need to protect the children from harm outweighs any benefit of having a relationship with the father – Where the father is prohibited from spending time and communicating with the children.

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

APPLICANT: Mr Jamieson

RESPONDENT: Ms Jamieson

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 266 of 2016

DATE DELIVERED: 30 July 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 11, 12, 13, 14 and 15 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Raeburn

SOLICITORS FOR THE APPLICANT: Stevenson & McNamara Lawyers

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITORS FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Williams

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: M M Meehan

Orders

1. All previous parenting orders are forthwith discharged.

2. The mother has sole parental responsibility for decisions in relation to the long term care, welfare and development of X born … 2004, Y …born 2006 and Z born … 2010 (“the children”) including but not limited to:

   (a)       The children’s education;

   (b)       The children’s religious and cultural upbringing;

   (c)       The children’s health;

   (d)       The children’s names;

   (e)       Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the other parent;

   (f)       All extra-curricular activities involving the children.

3. The children live with the mother.

4. The children neither spend time nor communicate with the father unless it is in accordance with their wishes.

5. The mother will take all reasonable steps to locate the father and facilitate the following should the children request it:

   (a)       Communicate with the father; and/or

   (b)       Spend supervised time with the father; and/or

   (c)       Spend unsupervised time with the father.

6. The mother be permitted to relocate the children.

7. The mother may apply for a passport for the children, without first obtaining the consent of the father, and the passport is to issue notwithstanding that the father has failed to sign all documents necessary to do so.

8. The children are permitted to travel internationally.

RESTRAINTS

1. Except with the written consent of the mother, the father, his servants or agents be restrained from and an injunction issue restraining the father, his servants or agents from approaching within 100 metres of:

   (a)       Any home where the children are residing;

   (b)       Any school or care facility attended by the children;

   (c)       Any place at which the children engage in extra-curricular activity;

   (d)       Any place of employment of the children;

   (e)       Any place of employment of the mother, save for in the event of a medical emergency of the father;

   (f)       Any service of any church attended by the children prior to 1:30pm on any Sunday.

2. The father, his servants or agents (other than a lawyer) be restrained from and an injunction issue restraining the father, his servants or agents (other than a lawyer) from in any way communicating or attempting to communicate with the children or the mother, unless it be in response to communication initiated by the children or the mother.

3. If the father receives a communication in accordance with Order 10, he is restrained from communicating or attempting to communicate with the children or the mother, unless it is in accordance with the following:

   (a)       The father may communicate once in response to each communication received; and

   (b)       The father is limited in his response to the subject matters contained in the initiating communication.

4. The Independent Children's Lawyer is forthwith discharged with the thanks of the Court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

5. Otherwise all extant applications be 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 Jamieson & Jamieson 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 F TOWN

FILE NUMBER: TVC266/2016

Mr Jamieson

Applicant

And

Ms Jamieson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the appropriate parenting orders for the parties’ three children, being X (born in 2004, and hence presently 13 years of age), Y (born in 2006, and hence presently 12 years of age) and Z (born in 2010 and hence presently 7 years of age) (“the children”).

2. Although by his Second Amended Initiating Application filed 21 May 2018, Mr Jamieson (“the father”) then sought orders for equal shared parental responsibility, for the children to live with Ms Jamieson (“the mother”) and to spend time with him, initially for six months supervised by his parents during school holidays, but from 2019 onwards, for one half of all school holiday time unsupervised, by the conclusion of the trial, his position had changed markedly.  Particularly he sought orders that the mother have sole parental responsibility (albeit with an obligation to advise) and for the children to live with her, but that for a period of 12 months, he be permitted to send correspondence to the children.  In the event that the children did not respond, or seek to communicate or spend time with him, then at the conclusion of the 12 months, his right to send the communications would cease, and there would be no further opportunity to do so, or to spend time or otherwise communicate with the children.  On the other hand, if the children did seek to spend time or communicate with him, then he would have liberty to apply to come back to the Court, so that appropriate orders could be determined.

3. For her part, the mother sought orders for sole parental responsibility, that the children live with her, and that they neither spend time nor communicate with the father ever again, unless it be their wish to do so.  She justified those orders on the basis that the father presents such a risk of emotional harm to the children, arising from his diagnosed personality disorder, that not even strict supervision could adequately protect the children.  In substance, the Independent Children's Lawyer supported the position of the mother with some minor exceptions.

4. On 15 June 2018 I concluded the trial of this matter and reserved my judgment.  This is that judgment and the reasons for it.

BACKGROUND FACTS

The father

1. The father was born in Melbourne in 1969, and hence is presently 48 years of age.  He told Dr B, a psychiatrist who examined him for the purposes of these proceedings, that he had a “good childhood” and grew up on a 20 acre hobby farm with his parents and younger sister.  However he recalls being badly bullied at school, and was seemingly not able to be protected from it.  He further told Dr B that his parents relied on “traditional discipline” in the form of corporal punishment, although he did not identify that it had caused him any harm.

2. He completed grade 12, and then worked for a year as an apprentice, but for reasons which are unclear on the evidence, did not continue in that trade. He enrolled at university and ultimately obtained a degree in 1996.  Also whilst studying at university he obtained an operator’s licence.  His first employment in his profession was in Darwin, but after a short period of employment there, he returned to Melbourne to attend college.  It was at this stage of his life, at age 27, that he met the mother and formed a relationship with her.

The mother

1. The mother was born in Canberra in 1973, and hence is presently 44 years of age.  She, too, was assessed by Dr B, and described that although she was a shy child, she had an enjoyable childhood and enjoyed good peer relationships at high school.  She completed grade 12 and then undertook a bachelor’s degree at university, and obtained employment.  It was at that stage of her life that she met the father in 1997, at 23 years of age.

The relationship

1. The parties’ relationship moved quickly, with them becoming engaged within three months and married about a year later, in 1998.  At the time both were working in Melbourne.  However in 1999 the father undertook training for a new career and started working with C Group.

2. It is common ground that, during that first year of their marriage, whilst the parties were living in Melbourne, there was physical violence between the parties.  The mother told Dr B that she was angry at the father for him looking at other girls, and not doing his share of household chores.  Indeed it culminated with her leaving him for three months, at the conclusion of which reconciliation was effected.  She told Dr B that she was thereafter “less contentious” in view of her religious faith, and became “submissive” and avoided provoking conflict with the father.

3. The father also told Dr B about that first year, who reported that the father “recalls with hindsight that he was excessively controlling towards [the mother] and had an excessive need “to resolve conflict” whilst [the mother] would “retreat from conflict”. He acknowledged that he would hit her, and said that she would hit him, during this period.”

4. In about 1999 the parties moved to the Northern Territory for a year with C Group. However it appears as that things did not go smoothly in the father’s employment there, and he saw a psychiatrist. In the material in evidence before me was a report by that psychiatrist, Dr Buchanan, dated 28 September 2000. That report includes the following:

   …

   Essentially [the father] describes some difficulties in relating to other staff and had some problems with administration in [C Group]. He recognises that there are some features of his personality style which cause some difficulties from time to time. These have caused difficulties for him both in his area of employment and at times in his personal relationships.

   He does not have any psychiatric syndrome, such as depression, anxiety disorder, etc, but rather has some features of his personality style which do not constitute a psychiatric illness…

   He recognises that his personality style is such that he is sensitive to criticism, easily offended and tends to become defensive… [the father] is aware, then, that sometimes when confronted with some issue where he may have made some error in his work, he tends to “tune out and become defensive”. This is a pattern that he learned in his family of origin, and the whole family has the same personality characteristic. He is aware that at times he can be a little inflexible in his thinking.

   There is some ways of working on his personal development if he wishes to do that, ... [the father] recognises there are some issues about his personality style or “coping style” which he may wish to do some work on personally.

   …

5. In 2001, the parties left C Group and returned to Melbourne. The father obtained employment at D Town in Western Australia for six months, before returning to Darwin where he was unable to obtain employment. Next, they moved to Hobart for about a year, where it seems as though the father undertook some training and casual work, and the mother returned to work, having been unable to obtain employment as such in the remoter areas where the parties had been living. The father then obtained employment in E Town, and the parties moved there. Then in 2003 the parties again moved to Darwin, and the father obtained employment with a company for a period of six months.

6. In 2004, the father accepted an internal transfer with that company to Melbourne, and it was there in 2004 that X, the first child to the parties’ marriage, was born.

7. The parties then relocated to F Town in 2005, with the father obtaining a job there, and the mother obtaining employment as well.

8. In December 2005 the parties purchased the former matrimonial home in F Town.

9. In 2006 Y was born.

10. In April 2007 the father’s employment in F Town terminated, but he was able to obtain casual employment with another company until July 2008. It appears he was then not in employment until January 2009, when he obtained employment in Darwin. It seems as though the mother and the parties’ children moved to live in Darwin, albeit retaining their home in F Town.

11. In evidence before me were a number of witnesses who told of the father’s tendency to rage on occasion, over many years, and often in front of the children. Sometimes these rages were in public, particularly if he was inconvenienced when driving. Thus the maternal grandparents gave evidence of the father angrily verbally abusing a parking attendant in Melbourne, who did nothing more than direct the father where to park. There are several more such episodes in evidence, and I accept the evidence in relation to them. However a far more serious occasion of rage occurred in 2009, when the father was involved in a motor vehicle accident; he was driving a 4WD which came into collision with a motor scooter. I am satisfied he was, for no good cause, angry with the scooter driver, and was pursuing him in rage when the collision occurred, in consequence of which the rider was seriously injured.

12. Three criminal charges were laid against the father in relation to that event, and ultimately he was found not guilty on two, but convicted of an offence, described in the material as “hit and run cause serious harm”. He was sentenced to two years imprisonment, immediately suspended upon condition that he was of good behaviour for two years. He was disqualified from holding or obtaining a driver’s license for twelve months.

13. However that sentence was not imposed until the 20^th of April 2011, by which time, Z had been born in 2010.

14. It seems as though during the period between first being charged and ultimately sentenced, the father was not engaged in employment, but was focussed upon restoring the parties’ house in F Town, and the criminal proceedings.

15. In January 2012 the father obtained employment in Western Australia, on a fly-in, fly-out basis. He maintained that employment for approximately 18 months, but was injured at work and in due course his employment was terminated, although he received a compensation payout of a little less than $70,000.

16. Whilst I shall need to discuss the parties’ disciplinary style with their children in greater detail in due course, it is important to note that both parties concede that they would smack their children, and that the father would on occasion use a leather belt to discipline them.

17. On the 18 May 2012 the parties had their first involvement with child protection in relation to their children, in that there was a notification to the Department that “[X] had disclosed to her teacher that she had been hit with a strap by her father on the buttocks. It is unknown if there are any injuries, however, the victim child was unable to sit on the floor at the school due to pain in her buttocks. The victim child [Y] has also previously disclosed to being hit with a strap by his father.”

18. During cross-examination, this matter was explored with both parties.  It appears as though X had fallen into the habit of losing her hat, and perhaps other items of uniform. It seems as though the application of the belt to her buttocks was, by some means, intended to make her more careful with her possessions.

19. In due course police interviewed the father, who had told them that he would no longer use this form of discipline, and would utilise alternative means. No proceedings were brought against the father; police were apparently concerned that it may have fallen within lawful discipline.

20. Given the driving incident, and given his injuries in Western Australia, both of the father’s previous occupations were now effectively closed to him. He then began seeking alternative employment, and in May 2014, obtained a cadetship that saw him training to be a manager.

21. Things did not go well in that employment. He appears to have had conflict with his supervisor, and at all events, in December 2014, his employment as a cadet was terminated due to alleged safety breaches by him.

22. On any view, this was a very low time for the father, because now his third potential career was foreclosed to him.

23. The father became particularly focussed upon the ongoing renovations of the former matrimonial home. The mother says that during January 2015, the father insisted that she assist him with completing a gazebo, to the point where she had little time to care for the children.

24. On 26 January 2015 (being Australia day) the parties attended with some friends for a barbeque at a public park. The father says that on the way to the park, he had explained to the children the need to show respect to adults. In his trial affidavit the father relates some difficulties in getting access to a barbecue in a timely way, but importantly that when the children were called, they did not come up from a swimming pool where they were enjoying themselves. The father concedes that made him agitated. He relayed a message for the children to get out of the pool “now” and whilst that worked with X, Y seemed to disregard the command again.

25. The father then attended the pool and demanded Y to go and sit in the car, which was about 60 metres away. A woman who was at the barbeque with the family interjected, and indicated that confining a child in a car on a hot summer’s day was unlawful. The father conceded he felt annoyed by that intervention, and says “it made it more complicated for me than it needed to be”. The father says that he did not want to defer the discipline until he got home, as “I wanted the kids to know that I was prepared to discipline them in front of their friends and other adults if they misbehaved, so they could feel the shame that they were causing by not doing as they were asked…”.

26. The mother then became involved, and indicated that the father couldn’t discipline the children by confining them to the car, which annoyed the father further. His affidavit says “I felt [the mother] undermine me and divided me from her as a parent and yielded to peer pressure rather than to do what is in the best interests of the child – which was to straighten out the rebellious behaviour.”

27. That caused the father to then take X and Y back home, where he, on his version, gave each child two firm smacks on the backside. He then “began to lecture them not only on obedience but also respect and not causing dishonour in public to themselves or to me and [the mother]...”.

1. Precisely what he did to Y on that occasion is difficult to discern. At [234] – [236] of his affidavit the father says;-  

   234. I did not pick [Y] up by the throat, hold him and/or throw him on the bed. He also had no such injuries because he simply wasn’t treated in this manner. Nor was [the mother] present at the time.

   235. I rather lifted [Y] up from the ground and kind of placed him over onto the bed from just to the left of it in a single motion from where he was sitting, attempting to catch him under the arm pit to simply stand him up, but my hand instead slipped and kept travelling upwards, catching him near his near jaw line with my left hand across my body to the right, in something of an unintentional push-fling-lift. It was not a hit, a shove, nor was it a hold.

   236. To my surprise, he came up light as a feather and plonked onto the bed next to [X] without harm. He was squatting beside [X’s] bed and he moved only a very short distance, maybe a couple of feet, laterally at most, mainly it was upright from where I had tried to stand him up. The fact that he moved the way he did kind of surprised me and I stopped my lecture and then began to try and soothe the kids from any trauma. I then spent nearly forty minutes reaffirming them after this and giving them love as best I could. We had a good talk and I got to show love to them with words and embraces…

2. This is a markedly different version to that which the children ultimately gave to the Department, and indeed have consistently reported to others thereafter. Thus for instance, on 17 February 2017 they told their psychologist, Dr G, that “when they got home their father yelled and hit them several times. Both children recounted that their father had grabbed [Y] by the throat and threw him. They both recounted their fear.”

3. A notification was made to the Department on the 29^th January, but when it was apparently in the process of being investigated, a second, more alarming, event occurred on 8 February 2015. Again it is not altogether easy to discern what occurred, as the father and the children have differing versions, and the mother was not present.

4. The father was at home, as were all of the family. The mother was in the front yard, attending to some work; the father was inside working on his computer; the children were also inside, but indicated that they wished to go and play in the pool. The father refused that permission, as it required an adult to supervise, given Z’s young age and vulnerability in a pool. At the time, as part of the renovation works on the home, there were one or two frangipani trees that had been acquired by the parties, and were in the process of being transplanted, apparently supported by ropes, somewhere near the pool.

5. The father says that sometime later he heard a loud commotion coming from the pool area. He looked and saw the children pushing each other into the pool in what he thought was a dangerous manner. In his trial affidavit at [11] he says:

   When I saw the children in the pool horsing around as they were I immediately panicked. I was then immediately furious that the kids had flagrantly disobeyed the rule about getting into the pool without an adult present. I immediately told them off very sharply for having done this as I saw it was dangerous. The kids all scattered to three different positions in the pool as I spoke to them.

6. He then observed that a frangipani had been knocked over by the children.  On his version of events, he then proceeded over to X and clipped her behind the left ear with his right hand.  He denies he did so in a hard way, or caused her to fall into another tree.  He then walked over to Z on the other side of the pool, and gave him a light clip also.

7. However when he approached Y, he began to immediately run around the pool.  The father told him to stop, but Y did not do so, so he pursued him.  The father says he ran around the pool a full two and a half times before he finally caught up with him, yelling at him the whole way to stop, which Y did not do.  The father says it was his intention, when he eventually caught up with him, “to boot him up the backside,” but unexpectedly Y fell over, and instead the father caught him in the small of his lower back with his right foot.  He says he was only wearing socks at the time.

8. On the following day a notification was made to the Department.  The record of that notification was in evidence, but heavily redacted.  Relevant parts that are not redacted include “frantic yelling and shrieking and a child pleading innocence,” “[Mr Jamieson] then appeared to kick (redacted),” “the impact of the kick and the child yelped and continued to cry,” “[Mr Jamieson] slap his daughter with his right hand across her face while he yelled at her, and then [Mr Jamieson] yelled at the youngest son and hit him with an open right hand/palm across the left side of the boy’s head.  Both children remain standing and could be heard crying.”

9. Although the children were interviewed by the Department, their interviews were not in evidence before me, and the typed summary of them is heavily redacted.

10. However in the children’s first interview with Dr G on 17 February 2016, they are reported as having told her as follows about the episode:

    The children recounted another occasion where their father had bought some very grown and expensive trees worth collectively over $1,000.00.  They reported playing by the pool and [Z] pushing [X] and [Y] around nearby.  They reported their father running out and yelling at them.  They reported [X] taking [Z] and running and hiding inside the palms and [Y] running around and being tripped by their father then kicked in the back with steel-capped boots ([Y] reported his back being sore for months afterwards).  They reported their father going to [X] and [Z] several times and hitting them in the face.  They reported screaming out and the lady next door calling out over the fence what was wrong.

11. At all events, the mother then became involved, having heard the commotion from the front yard.  The father says that she said to him “hit me if you are going to hit anyone instead of them.”  He and the mother then engaged in an argument, and during the course of that, the father recalls “as I yelled however, I could see a look of genuine fear now registering on [X’s] face.  I looked over to [Z] and he was hiding behind his mother with [Y] towards the laundry, [the mother] having positioned herself in front of them both.  They were all crying.  This saddened me greatly because I didn’t want to scare my children.”

12. The father suggested to the mother that she take the children out for a while so that things could settle down and, in effect, distract the children.  It is common ground that the mother did indeed leave with the children, but never returned.  That was final separation between the parties.

Post-separation

1. As the mother and children were driving away from the home, Y said to her “mum, no one should have to live this way.”  She said that she felt very sad that they had been living this way, and knew that he was right.

2. The mother intended to stay with some friends.  However the father remained in telephone and text communication with her, and advised her that night that the police were outside his home.  It is common ground that, upon knowing that the police were there, he turned off the lights of the home, and left via the back door.  He contacted the mother to let her know that, and she advised him that she was not going to return to the house that night.  He thereafter became concerned that both he and the mother needed to engage a lawyer to assist them in their interactions with the police.

3. On 12 February 2015, the father attended the home where the mother was staying.  He left a note on her windscreen which was in evidence.  Part of it reads:

   Don’t be afraid of me.  I will never again hurt you or kids.  I will get all medical/psychological help.

4. He also continued to urge the mother to co-operate in relation to a joint strategy for the police.

5. On 13 February 2015, the mother obtained a temporary protection order in which she and the children were the aggrieved, and the father was the respondent.  However the father continued to ring and text her, including one text message at around that time, which said:

   You’ve picked a fight with the wrong person.

   I’m not afraid of jail.  What have I got to lose? Job? Bwah-ha-ha! Family? You’ve got to be kidding!  Rats who abandon the ship when it gets a bit too hard.  Freedom?  Have you seen my mortgage lately?  My life?  It isn’t worth shit to me.

6. The father then began stalking-like behaviour, in which he would arrive unexpectedly at the mother’s home, or the children’s schools.  This alarmed the children.

7. On 22 February 2015 the father’s car was observed by the mother to pull up across the road from where she and the children were staying, and the headlights were then turned off.  She observed the father walk towards the apartment complex, but he then disappeared from view.  The mother called the police.  By the time they arrived, the father had gone.  That night the father sent the mother a number of text messages, including one which reads:

   I shall not speak further.

   My life is a disaster.

   I wish death to come to me that the only one who loves me might hold me in His arms.

   Goodbye my love.

8. Underneath that message a photograph of the father holding a photo of the family.

9. In that, and similar messages that night, the father alluded to having been tempted to kill himself on previous occasions and having “begged God to kill me and take me home.”

10. It seems that the mother was troubled by those messages, to the point where she called police to advise them of her fears for the father.  He was visited, and then taken to hospital under an emergency examination order.  The police officer who completed the order recorded, presumably derived from a conversation with the father, that the father had lost his job approximately one to two months ago, and “since then he hasn’t been himself.”  There is then reference to the 8 February incident, and the loss of his wife and kids.  “Since then he has suffered from deep depression – resulting in his lowest point tonight.  He is genuinely at a critical point tonight and requiring an emergency examination.  Police believe any delay in that process will result in an imminent risk of harm to [the father].”

11. Although taken to the hospital emergency department, the father was discharged either that night, or later the next day.

12. Because of the unsuitability of the accommodation that the mother was staying in, she and her friends agreed that they would jointly take a home which had an upstairs/downstairs situation, so that they could live in somewhat separate households.  However the father soon located them in that new home, and would drive past the property.  With some assistance, the mother installed cameras at the property, which recorded the father dropping presents at the home.

13. The mother’s domestic violence proceedings against the father concluded on the basis of him proffering an undertaking to be of good behaviour to the mother and children, not to harass her, and importantly “not attend at any residence where [the mother] and the children may be living or visiting without [the mother’s] prior written consent or an order of the Court.”

14. At about this time the father obtained a tenant for the former matrimonial home, however the mother says the tenant started to “come to our church and stare at myself.”  One day she handed to the mother some presents and a booklet, which is in the form of long letter, with a photograph of the parties and their children in happier times.  The letter is dated 4 November 2015.  It runs to nine pages.  Whilst it is unnecessary to recite it all, in part it reads:

    .. I see that I have become a very mixed up person and I have been fighting a losing battle with my grave mental and emotional issues, all of which have taken a tremendous toll on the family…

    …

    I have no doubt that you have felt very unsupported, neglected, unfulfilled and unloved, abused emotionally – for sure – and physically at times too, continually controlled, demeaned, not allowed to be your own person but conformed to what suits me through a selfish perfectionist’s prism, often humiliated and frightened by my unpredictable and volatile behaviour, ranging from a rational angry outbursts at home to in the presence of friends as well as in public.  You have also had the continual heartache caused as a caring mother standing by and watching me cause emotional and physical harm to our beautiful children with my inflexible, threatening behaviour and fits of rage.

    …

    I want to express my absolute resolve and commitment but that from this point onwards that you never experience this pain from me ever again.  Shell and BHP both had a “zero harm” policy.  I thought it was unattainable – and before these changes in my life that God has confronted me to make and helped me achieve, indeed it was.  God has shown me however that I really can – despite my past – demonstrate to you and the kids an absolute metric of zero harm, ie of complete, thorough self-control with zero voice raising, rage, swearing and yelling, physical contact (hitting), contention, arguing or strife, frustrated outbursts, put downs, lectures, harassment, manipulation or hectoring, forcible coercion, stand over or control, insane behaviour, depressive mood swings and zero problem-dumping on you moving forwards.  I have made and will continue in the total lifestyle transformation already underway.

    (emphasis in original)  

15. The mother and children, together with her friends, moved to yet another residence.  Again they installed security cameras, but again the father discovered the address and started leaving gifts at the property.  This, of course, was a breach of his undertaking.

16. Some of his gifts were extravagant; however probably none was more extravagant than the pregnant dog which he left in a cage on the lawn, without prior notice to the mother.  Her protests to the lawyers that were then acting for the father bore no result; the gifts continued.

17. The mother says that the father’s continued pursuit of the family was impacting upon the children.  At paragraph 117 of her trial affidavit she said:

    117. For months after we left the family home the children would have strong anxiety reactions, to the point of headaches/stomach aches whenever they thought [the father] was nearby or when they thought they saw his car.  Every [similar motor vehicle] induced these reactions.  I did not want to subject my children to that form of emotional and physical abuse again.  I wanted contact to start only when they were psychologically stronger and felt safe.

18. There can be no doubt about the children’s reactions.  On one occasion the father attended X’s school, and it caused her to become extremely upset and highly distressed.

19. On 19 September 2015 the father commenced spending supervised time with the children at the H Contact Centre in F Town. By then, he had commenced, and perhaps completed, a number of parenting and other courses.  On the whole, those visits appear to have proceeded smoothly, although as I shall discuss in due course, the father appears to have used those opportunities, at least to the children’s perception, to seek to elicit information in relation to the mother, with a view to reconciling with her.

20. X has always been the most reluctant to engage with the father.  Indeed it was only towards the end of the supervised contact visits that she was able to be coaxed to attend with the inducements of, firstly, the father bringing his dogs to the Contact Centre, and secondly, she being permitted to bring a friend with her.

21. In July 2016, the supervised time moved to unsupervised contact.  This included the father going out to dinner with the children and taking them to movies.  Again it appeared that this went well.  Indeed X even engaged (albeit still with a friend) with the father, by going out to dinner with him and her brothers on 9 July 2016, followed by a movie.

22. Unfortunately however, the unsupervised time soon started to become problematic when the father became agitated at the second such outing, which occurred at a dog park, when a gentleman with some larger dogs engaged with him.  The mother recalls that the father spoke in an angry tone to that person, telling him to get his dogs back.  She continued “then for a few minutes afterwards [the father] swore and ranted angrily about the man until I called his name and he realised that the children were beside him listening.”  Notwithstanding that incident, it appears that the contact time went well, and later that night the father, the children and X’s friend, all attended dinner and a movie.

23. On Friday 29 July 2016 the boys requested to sleep over at their father’s.  X did not attend.  It appears as though it went well.

24. There was a further overnight visit on 5 August 2016.  All three children attended dinner with the father, with the mother picking up X and her friend, and the boys staying with their father for a sleep over.  However the next day there was an argument in relation to a soup.  The father had made some food for the boys but Y did not wish to eat the soup and, in consequence, the father put Y in his room for 20 minutes.  The matter ultimately resolved with Z offering to eat the soup, and Y eating some pasta.

25. The father asked the mother to discipline Y for not eating his food, by confiscating his electronic device for a week.  The mother disagreed, and said that such strong discipline was disproportionate to the provocation.

26. The mother began to be concerned about whether the father really had the capacity to cope with caring for the children without stress and trouble.  Particularly she was troubled that Y was upset by the soup incident, and refused to speak to the father on the phone that week.  The mother, in view of her concerns, suggested to the father that perhaps the progression of unsupervised time should go a little slower, and that it be scaled back to once per month.  The father became angry during that conversation, and blamed the mother for the breakdown of their relationship and subsequent divorce.

27. The last time the father spent unsupervised time – or any time – with the children, was an overnight on 20 August 2016.  Again, only the boys attended, and X stayed with the mother.  The mother said that the boys indicated that they did not wish to stay overnight, but she nonetheless packed their clothes and bedding, just in case they changed their minds.

28. At 9:00pm she sent the father a text inquiring whether they boys wanted to stay, to which the father indicated that they were fine.  However although Z was by then in bed, about 20 to 30 minutes later, Y indicated that he wished to return to the mother’s place, rather than stay with the father.  The father rang the mother, and an argument ensued.  The father seems to think that the mother had not properly informed him as to the arrangements, and he was obviously disappointed that the boys were not moving to unsupervised at the rate that he wished.

29. The mother says that the father was shouting so loudly that she hung up, but rang back, because she was worried about Y.  She then texted the father saying “please get Y to ring” and rang again.  Y answered and said that he wanted to come home.  The mother says his voice sounded weak and scared.  She drove over to the father’s home, and the father, albeit angrily, nonetheless carried Z out to the car, but slammed the door to the home as he went back inside.

30. As the mother was backing down the driveway, Y burst into tears and said “I’m so terrified.”  The mother says that the whole way home, he shook like a leaf, and often said “I’m so terrified I thought he was going to hit me.”

31. There is a dispute as to what occurred between the father and Y that night, however there is no dispute that a conversation occurred.  Y says that the father blamed him for the separation, and emphasised that God did not agree with divorce, and that it was a sin.

1. On 25 August 2016 – only 5 days after the incident – the children attended upon Dr G.  In Y’s notes there is the following recorded:

   [Y] reported that heard his father yelling at his mother on the phone saying really mean things.  He reported that he just sat on the couch and stared ahead.  He said his father got off the phone and came to stand over him and yelled at him.  [Y] reported that he thought his father was going to hit him.  He recounted the time that his father had grabbed him by the throat and held him in the air and he was choking for breath.  He reported being let go and gasping to try and breathe in air.

   [Y] reported that he was afraid of his father.  [Y] reported that his father was yelling things at him that were really mean.  When asked he informed that his father told him that he was responsible for the divorce.  He reported that his father said that he/[Y] was asking his mother every day for a divorce.  He informed his father told him that he did not eat dinner and that he was ungrateful, that he was trying to make them a perfect family and [Y] was ruining everything.  [Y] reported that his father kept yelling at him, that he was a sinner with big sins.  He reported staring at the television and not saying anything.  He reported that he wanted his mother and wanted to go home.  

2. The father denies that he had any such discussion with Y, but I regret to say that I do not accept that evidence.  The father would have it that, in the five days between the incident and Y seeing Dr G, the mother had coached him to make the disclosures which he did.  However that is simply inconsistent with much of the father’s own version of events, which include that during the course of the argument between he and the mother, Y sat on the couch and looked at the television.  I am well satisfied that the father was extremely angry on the evening in question, and that Y was again re-exposed to the father’s rage and was traumatised by it.

3. In mid-2016, these proceedings were commenced by the father.  On 8 September 2016 a Child Inclusive Conference was convened with Ms J.  The children recounted some truly alarming matters.  For instance X related that her father was “really unpredictable.”  Further she said “he goes from zero to one million in a second.”  She gave illustrations of that.  She said “dinnertime was never pleasant.  We weren’t allowed to make a sound.  If we did he’d smack us or hit us on the head.”  She recounted the Australia Day incident, saying that the father picked up Y “by his neck” and that “[Y] was gasping for breath.”  She also recounted the pool episode, and worryingly said “I’ve grown up with dad being abusive, I didn’t know it was wrong.”  She said that she had heard the mother and father fighting on the phone on 22 August 2016, which had caused her to reflect “I guess I don’t want a connection” with the father.  She recounted that Y said that he was terrified during that occasion, had cried the whole way home, and was “freaking” the father might be following.  Despite all that, she did say that she felt comfortable with the father at the Contact Centre.

4. As to the incident on 22 August, Y is recorded as having said that he had told his father that he wanted to go home, and his father having a conversation with his mother, in which he swore a lot.  The Child Inclusive Memorandum continues:

   [Y] recalled he stared at the television “in shock and terror” about “how horrible he was.”  [Y] recalled mean words that “made me really sad.”  “I was terrified that day.”

5. Y indicated that his perception of supervised time with the father was that the father put a lot of pressure on him.

6. As to the prospect of seeing the father again, X reported to the Family Consultant that her stomach hurt immediately, with “sharp pains.”  Y is recorded as having stated firmly “I don’t want to see him at all 100%.”

7. In consequence of that Child Inclusive Conference Memorandum, on 21 September 2016, in the course of an interim hearing before her Honour, Judge Willis made orders that forbade the father from either spending time or communicating with the children.  With an exception I shall shortly detail, those were the orders which prevailed at the time of trial before me.

8. On 28 November 2016 the matter was transferred to this Court,

9. On 30 May 2016, I dealt with an Application in a Case brought by the father, seeking the reintroduction of supervised time with the children.  Consent orders were made for the children to engage in reunification counselling, with a view to potentially being reintroduced to him.  However for reasons which are not entirely clear, but plainly not the fault of any party, that was not able to be achieved.  It appears as though the person at H Contact Centre that was able, at the time of the orders, to undertake such counselling, thereafter left her employment, and no other person with the appropriate skillset replaced her.  Further, an alternative potential provider, K Contact Centre, proved in fact unable to provide the service.

10. That was the situation that prevailed when the father moved the United States of America in December 2017, to commence employment.  It appears as though he was in some species of training program.  However that employment was terminated on 17 May 2018, and he thereafter returned to Australia on 2 June 2018.

Current situation

1. As at the time of trial, the father was in very straitened financial circumstances, living in the former matrimonial home (which is listed for sale) and unemployed.  He believes he has reasonable prospects of employment in the United States.

2. For her part, the mother has now completed a degree, and is working at the F Town Hospital.  She and the children remain living with a friend and her partner in a dual occupancy type dwelling.

3. The children are all at school, and by all reports, are doing well there.  X told the Family Report Writer, Dr L, in her interview on 7 May 2018, that she was enjoying school and had lots of friends and liked socialising and shopping.  Dr L concluded that X “presented as a bright young girl who is very articulate and spoke up for herself well.”  Unfortunately, X stated that she did not want to see her father under any circumstances.

4. In Y’s interview with Dr L, he reported that he has some friends at school, and says that his teachers are good.  He recalled that his father “gets really angry quickly and then it is really scary.”

5. Z was also interviewed.  He said that he did not want to live with his father as “he gets really angry.”

THE ISSUES

1. At the Trial Management Hearing with the assistance of the parties, I identified that the following are the issues in this case, in that their determination was likely to substantially inform the appropriate parenting orders:

   1.What is the nature of the relationship between the children and each parent.

   2.What, if any, risk of harm does the father pose to the children, and what, if any, measures are available to adequately mitigate any such risk.

   3.Would the children benefit from a meaningful relationship with each parent, and if so, in the circumstances of this case, how might it best be facilitated.

   4.What would be the likely effect on the children of each party’s proposal.

   5.Could the parties’ communication support equal shared parental responsibility.

2. However in view of the father’s change in position during the course of the trial, such that he no longer sought orders for equal shared parental responsibility, issue 5 fell away. 

3. Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residual s 60CC considerations, I shall consider the issues, and then determine the appropriate parenting orders which are in the children’s best interests.

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.

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 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. Therefore consistent with s 140(2), in taking into account the gravity of the allegations against the father, 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].

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.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of 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.

3. 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.

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

“No contact” orders

1. Obviously 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.

ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN THE CHILDREN AND EACH PARENT

The mother

1. Dr L’s unchallenged evidence was that the mother has a good, loving relationship with the children, from which they derive nurture, comfort and support.  I accept that evidence.  Perhaps it was most poignantly summed up by Y in his interview with the Family Consultant during the course of the Child Inclusive Conference on 8 September 2016.  He said to her “I barely laughed any times I was living with dad – maybe once a year.  I laugh one thousand times with mum.”  Even accepting that there will be an element of childish exaggeration in it, his perception of his relationship with the mother is obvious.

The father    

1. There was a difficulty in the Family Report process, in that the father was unable to be interviewed by the writer prior to her report being prepared.  However, based upon what the children had told her, and what she had read in the material supplied to her, she was of the view that there was not much of a relationship remaining between the children and the father.  She said that the eldest two children had a severely fractured relationship with him, and Z’s relationship was fractured.

2. Sadly, I must accept that evidence.  Particularly:

   ·The children have for most of their life been exposed to the father’s personality, and particularly the difficult reaction which it causes him to have when stressed;

   ·Their memory of the father is one of a violent man, who was controlling, manipulative, and abusive, including physically abusive;

   ·Their perception of the father is one of fear, the risk of violence, and manipulation;

   ·The separation incident would plainly have been terrifying for all three children, with the father apparently in rage, and inflicting physical violence upon all three children;

   ·Since separation, the father has engaged in stalking-like behaviour of the children and the mother, despite undertakings and orders which should have made it plain to him that such behaviour was not to be tolerated.

   ·The attempt at reintroducing the children to the father in 2015 and 2016 ended in dismal failure, when again the father flew into a rage.

3. The father claims that the mother and her friend have alienated the children against him.  I wholly reject that.  It is absurd.  Particularly I note that in her communications with the children’s counsellor, the mother has, on occasion, expressed joy at the children becoming equipped with strategies which might assist them in dealing with their interactions with the father.  This does not speak of a woman who is intent on destroying the relationship; rather it speaks of a woman who is determined to ensure that the children have an experience of their father, but that it must nonetheless be a safe one.

4. The father’s relationship with the children is severely fractured, is not one relationship from which they perceive that they receive nurture comfort or support, and it is one which causes them anxiety, fear and distress.

ISSUE 2 – RISK OF HARM FATHER POSES TO CHILDREN

Overview

1. No party asserted that the mother posed a risk of harm to the children, other than the father’s allegation that she has alienated the children from him.  As has been seen, I reject that.  It is therefore the father, and any risk of harm which he poses to the children, which is the focus of this issue.  As to that, it is said that the risk is of two species, firstly physical, and secondly emotional.  

Physical harm

1. Up until May 2012, the father was physically abusing both X and Y by what I determine to be excessive discipline.  Firstly, there is the use of the strap, which is of itself and without more is highly worrying, however further there is X’s apparently unsolicited revelation to her teacher that her bottom was so sore that she could not sit down on the floor at school.  On any view, whatever be the father’s view as to the force which he was applying to her buttocks, the result – that a child is unable to sit down some hours later – is horrifying.

2. However I do not need to take X’s word for it, as the father himself in the November 2014 leaflet to the mother, has plainly confessed to his abuse of the children, and specifically that he had caused emotional and physical harm to them, by his inflexible, threatening behaviour and fits of rage.  He concedes in that correspondence that he hit the children and that it caused harm.  The most recent example of that is, of course, his discipline when in a rage in the pool incident.  For his part, the father would have me believe that he was then under an enormous amount of stress because he had lost his third career, and finances in the household were poor.  However not only does that explanation only go so far – and plainly it can only be an explanation, not a justification – but the father appears to continue to have difficulty maintaining regular employment, and so the stress is likely to continue.  He is no longer a young man, and has a long and chequered employment history.  His attractiveness to employers must be declining.

3. I assess that the primary difficulty with the father’s interaction with the children, is that he is demanding of respect, and finds any defiance by the children as enraging.  I have little doubt that, in February 2015, he perceived that Y was again defying him, as he had done on Australia Day.

4. As to this, Dr B opined that the father “has a rigid personality, a preoccupation with rules, and a need to be in control of social situations and social interactions.  This includes a need to be in control of family relationships and the behaviour of his wife and children.  He seems to have had difficulty managing stress and conflict particularly when challenged or contradicted, and his aggression seems at times to be triggered by a sense of panic, when he feels a situation is out of control.. He seems to have limited awareness of other’s perspectives (including his children)…”   That evidence was not challenged.

5. Dr B initially diagnosed the father as having a narcissistic personality disorder.  There is no dispute that the father displays narcissistic traits; the only dispute is whether they might be sufficiently serious as to warrant a diagnosis of a disorder, as Dr B was inclined to.  In his evidence, he explained that the difference between traits and a disorder is the extent to which the traits have adversely impacted upon the person in question’s life.  There can be no doubt that the father has, for at least the last 18 years, demonstrated difficulty in accommodating his personality traits, in both his work and personal life.  Whilst I accept it was unlikely that level of disturbance justified a narcissistic personality disorder diagnosis in 2000, by 2018 it plainly did, and I reject any challenge to that diagnosis

6. Unfortunately the courses which the father has completed do not appear to have caused him to change his ways, and I am well satisfied, from the events of August 2016, that under the right circumstances, the father still presents a real risk of out of control rage, and that he will feel entitled, if in his view the circumstances justify it, to again seek to inflict physical discipline upon the children.  I am well satisfied that he has for most of his adult life, suffered from angry rages, and that in those moments he can behave disproportionately.  As to that, one only needs to look at the evidence of the number of road rage type incidents involving the father, and particularly his disproportionate response to what he perceived as provocation in Darwin in 2009.  It is but pure luck that motor cyclist was not killed.  Moreover at that time the father was in employment, and was not suffering the stresses that he was suffering thereafter.

7. However plainly such risk of physical harm which the father might pose to the children could be effectively mitigated by supervision.  Indeed it would not need necessarily to be particularly strict supervision.  If the father were to commence to demonstrate some agitation, then even relatively loose supervision – assuming the supervisor was able to defy the father – would be able to have the children removed from the father’s care promptly.

8. Therefore whilst I am satisfied that the father does pose a real risk of some physical harm to the children, there are means of mitigating it to an acceptable level.

Emotional harm

1. This was the true focus of the mother’s and Independent Children's Lawyer’s cases.

2. The most powerful example of this risk is the emotional harm inflicted upon Y in August 2016, on the last occasion that the father spent time with the two boys.  There can be no doubt that Y was highly traumatised by the father’s behaviour on that occasion.  It must have brought crashing back to earth any hope that he had that his father was a changed man post-separation.  It must have reminded him of all the extreme, angry behaviours of the father during the course of the relationship.  Such trust as Y had been able to re-establish with his father, was undoubtedly dashed that night.

3. However there is a long list of other concerning behaviours by the father, including even his behaviour with the children at the Contact Centre.  From its notes, it is apparent that at least in the early stages, the father was using those occasions to press the children in relation to the mother.  For instance on 31 October 2015, the H Contact Centre notes specifically detail the father asking Y “how’s mum?” and then having been told that she was good, pressing on, asking “is she still studying?”

4. Moreover, it is obvious that on occasions the supervision was not sufficiently close as to monitor all conversations.  So, for instance, on 16 April 2016, the Contact Centre’s notes record:

   Just before it was time for [the father] to leave he was observed talking to [Y].  The CCS staff member moved somewhat closer to hear what [Mr Jamieson] was saying as [Y’s] facial expression seemed to be somewhat worried.  He no longer smiled and did not maintain eye contact with [the father].  [The father] was stating to [Y] that he will have to ask his mother to have contact outside of the centre as it will be more fun and they would be able to do more.  [Y] responded that his mother said it was still a bit too early for that.  [The father] however stated that it was something he had to ask his mother if that was what he wanted.  The CCS staff member interrupted the conversation as [Y] looked uncomfortable.  [Y] appeared relieved as he immediately got up and walked away.

5. That persuades me that the boys’ recollection of engagement with the father at supervised visits, namely that he was pressuring them, is likely correct.

6. Further, there is the father’s stalking like behaviour of the mother and children post-separation.  There can be no doubt that the children have, on occasion, been terrified at the prospect of the father’s unexpected presence.  The most recent example – which is telling – was at the end-of-school concert for X, which the father attended, and was observed sitting in a gallery above where the mother and X were sitting.  Leaving aside the effect on the mother of having the father in such close proximity, in plain breach of orders, there is no dispute that X froze, and was extremely traumatised by the father’s presence.  It is apparently this event that she described to Dr L, who said “[X] went to describe incidents where he had come to school and she had been scared.  [X] said she had always anxious and scared when her father was in [F Town] as she never knew when or where he was likely to appear.”

7. Unfortunately for the father, Dr B also identified that he has obsessive traits in his personality, and hence when giving oral evidence, suggested that a mixed personality disorder may now be the more appropriate diagnosis.

8. There can be no doubt that the father has demonstrated obsessive traits in the past.  His obsession with completing the house, both in 2015, and subsequently, bear testimony to that.  Further, his relentless pursuit of the mother post-separation, with a view to reconciliation, plainly has obsessional aspects to it.

9. The unchallenged evidence of Dr L was that the prospect of the father being reintroduced to the children’s lives would be to cause them anxiety and panic.  She was of the view that, even under supervision, the father had demonstrated that he was subjecting the children to questioning about the mother, and that pressuring was in itself a form of emotional harm.  She said that the children’s response to being reintroduced to the father would be beyond mere upset, and would comprise emotional harm.  She was not challenged in that respect.

10. Although she conceded that very close supervision might be able to stop the father from seeking to manipulate or pressure the children, she said that if that was required as the condition of the father spending any time with the children, then the value of that relationship must seriously be questioned.  I accept that evidence.

Evaluation

1. The father presents some risk of physical harm to the children, and a serious risk of emotional harm to them.  Whilst there might be some means of mitigating that latter risk by strict supervision, it would, however, need to be very strict.

ISSUE 3 – BENEFIT TO CHILDREN OF MEANINGFUL RELATIONSHIP WITH EACH PARENT AND HOW BEST FACILITATED

1. There was no dispute that the children would benefit from a meaningful relationship with the mother, and that it would best be facilitated by them spending time with her, and her being engaged in all areas of their life.  That was the evidence of Dr L and it was not challenged in any way.  I accept it.

2. Sadly however, her evidence in relation to the benefit which the children would obtain with a relationship with the father, was of a quite different character, and again not seriously challenged.  Although she acknowledged that the literature generally suggests that all children do better if they have a relationship with both parents, on the basis of what she had read in relation to this case, she was of the view that the father did not have anything to offer these children, although she did give a significant caveat to that opinion, because she had not met him.

3. During the course of submissions I asked counsel for the father what benefit he could confer upon the children.  Counsel said that it was love.  Sadly, that may be what the father wishes to confer, but the evidence is light on as to him having demonstrated it in the past.  He has physically abused his children, he has emotionally abused them, and he concedes both.  He claims that he wishes to discipline the children so as to make them good adults, but sadly, objectively, his discipline of them has only made them terrified of him.  Discipline in rage is ill-advised, and I am well satisfied that the father regularly suffers rage.  I only needed to watch him under cross-examination, where he was plainly angry, and conceded as much.  When counsel for the mother was challenging him and defying him, even though he was in full public view, and no doubt attempting to acquit himself as well as he could, yet he continued to demonstrate signs of anger, including clasping his fists and hands, and aggressively challenging counsel.  I regret to say that if that is how he was prepared to behave under cross-examination before me, then in the face of challenge from children - who he believes should obey him - I have little doubt that his reaction would be far more extreme.

4. I accept that the father does love the children – although the mother doubts it – but sadly his personality disorder makes the expression of that love extremely problematic.

5. When pressed as to how such benefits as the father may be able to confer to the children might best be facilitated, Dr L thought that at first, there would need to be an extended period of supervised communication between the father and the children, for instance Skype communication conducted at a Contact Centre.  She thought that one could also commence with monitored letter writing, with the option for any of the children to opt out of receiving such communications.  However she thought that the elder two children would likely opt out as soon as possible, or, if there were to be orders for supervised electronic communication, would simply not engage with the father or speak to him.  Sadly, that is consistent with my own assessment of the evidence.

6. It therefore follows that, in my view, these children are unlikely to obtain much, if any, benefit from being reintroduced to the father.

ISSUE 4 – EFFECT ON CHILDREN OF PARTIES’ PROPOSALS

The mother’s proposal

1. Dr L’s evidence was that the children have been estranged from the father for nearly two years, and no detrimental effects whatsoever have been shown to have been suffered by them.  She described them as well adjusted.  As to later in life, she could not see any problems, notwithstanding her general view that children normally have better outcomes with both parents engaged in their lives.  She emphasised, in this respect, that the father’s relationship with the children was not presently intact.

2. As to the father’s proposal, she thought that reintroduction to the children would inevitably re-traumatise them to some degree.  Her unchallenged evidence was that they would suffer anxiety and panic at the proposal of even receiving regular letters from the father, as they would see it as the thin end of the wedge.  Accepting, as she did, that the children could nonetheless be somewhat cushioned from trauma, for instance by it being explained to the children they were in control of the situation, and could disengage at any time, she nonetheless thought that there would be anxiety and panic. 

3. As to the prospect of the father then going on to spend supervised time with the children – irrespective of the outcome of the letter writing experiment, which was, at that time, the father’s proposal – she thought it would likely be very negative for the children.  All of the children said that they did not wish to spend any time with him, even under supervision.  She struggled with the proposition that, given the good times which had, at least on a superficial level, been experienced at the Contact Centre, might return again, would influence the children.

4. Sadly, I am of the view that the impact of the father’s proposal – whether as extant at the time of the cross-examination of Dr L, or as ultimately formulated by him – would be other than to cause the children to suffer anxiety and panic.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already discussed both of the primary considerations in traversing the issues.  However by reference to the additional considerations that I have not addressed, I observe as follows.

2. The children have expressed strong, consistent and justifiable views that they do not wish to re-engage with the father.  X is 13 years of age and approaching 14.  Y is 12, and Z seven.  In the case of X, her wishes must now be seen as almost determinative.  Moreover, they have been consistently expressed in a variety of ways, including her not initially engaging in supervised time until she brought a friend with her, and continuing to require the friend to be in attendance during unsupervised day time visits.  She did not engage at all in relation to overnight time.

3. Her wishes are fully justified.  Most recently, there was the horrible fight between the father and mother, of which she was plainly aware, and moreover, then she saw Y’s response to having been on the other side of the phone in the father’s household. However the father’s anger has been a constant feature of her life. One simply cannot overlook her very mature statement to the family consultant during the Child Inclusive Memorandum that “I have grown up with dad being abusive, I didn’t know it was wrong.”  She now knows it was wrong, and does not wish to engage with him.

4. As to Y, it was common ground that he was behaviourally the most challenging child during the course of the relationship.  Perhaps because of that, Y perceives that he was singled out for special treatment.  However his experience on the night of 22 August 2016 cannot be ignored.  He was plainly terrified by what he was exposed to.  Whilst it is difficult to discern whether or not the father did indeed blame Y for the divorce, I am inclined to conclude that he did, because of the father’s rage, his lack of control during them, his deflection of blame (which comes from his personality disorder) and his belief that Y did indeed wish the parties to separate.

1. Z’s wishes must be given less weight, but nonetheless in his counselling, he “reported that he found the day that dad kicked [Y] and hit [X] and wacked him as sad and scary.”

2. He is only seven years of age, and I give his wishes limited weight.  Nonetheless I do give them some.

3. This case is unusual, in that the father appears to have fractured relationships with his family of origin,[4] and yet the mother has maintained the children’s relationships with the paternal family, including the paternal grandparents and paternal aunt. I am satisfied that those relationships are important to the children, as indeed are their relationships with the maternal grandparents. However as I say, unusually, the mother appears determined to support the children’s relationships with both sides of their family.

   [4] The father even, as an adult, had a physical fight with the paternal grandfather

4. No criticism can be made of the father for trying to take opportunities to engage with the children and be involved in their lives, but unfortunately he has done so in ill-considered ways that I assess to be in breach of his undertaking and orders from time to time, and which have traumatised the children.

5. It appears that the father has paid little child support in relation to the children or otherwise made contribution to the costs of their care, but it has been in accordance with what he was assessed from time to time.

6. There is practical difficulty and expense in the children spending time and communicating with the father if he moves to the United States, as he contends he likely will.

7. There has been extensive family violence, as that term is defined in the Act, by the father towards the children and the mother.  Family violence orders have applied, and the matters which I infer from the family violence and the orders, is that the father is from time to time angry and violent, both physically and otherwise.

8. The father’s orders contemplate the prospect that this litigation may not conclude.  These parties separated in February 2015, more than three years ago.  Plainly it would be preferable to make an order that would be least likely to see further proceedings instituted.  That said, counsel for the mother conceded that, if the father were able to engage effectively with some form of counselling that was able to modify the impact of his personality disorder upon his life, then he may be able to bring proceedings afresh.

PARENTAL RESPONSIBILITY

1. Ultimately the father conceded that there should be final orders for sole parental responsibility in favour of the mother.  The only difference between he and the other parties, was that there should be an obligation to inform.  In my view, the only reason for an obligation to inform would be if there was some realistic prospect that, in the future, the father may re-engage with the children.  In the event that I am satisfied that the father should neither spend time nor communicate with the children again, under any circumstances, then there is no point to the mother being obliged to continue to report to the father.  It is likely only to see a fertile ground for further disputation, and to require these parties to continue to engage, runs the risk that the father will continue to abuse the mother, as he has in the past.

2. As shall ultimately be seen, I am satisfied that this is a no contact case.  It therefore follows that I am satisfied that the mother should have sole parental responsibility, with no obligation to report.

3. I am satisfied that such an order is in the best interests of the children.

CHILDREN’S LIVING ARRANGEMENTS

1. As I have observed, although initially the father sought to spend supervised, but then moving to unsupervised, time with the children, by the end of the trial, he had resigned himself to the fact that the only orders which could be made on a final basis at this point were for communication only.  He therefore conceded that the children should live with the mother.  They have done so since separation.  The mother is truly an exemplary parent.  I am well satisfied that the children derive all of their necessary requirements, both physically, emotionally and spiritually, from her, and that she is the only viable – but nonetheless stand-out – candidate for the children to live with.  There will therefore be an order for the children to live with the mother, as it is plainly in their best interests.

TIME AND COMMUNICATION WITH FATHER

1. At the conclusion of the trial, I circulated points in favour of the father’s proposal, and points in favour of the mother’s proposal.  The points in favour of the father’s proposal or contrary to the mother’s proposal were as follows:

   ·Whilst either fractured or severely fractured, the children’s relationship with the father may not be irreparable (noting that it has been able to be repaired in the past);

   ·In the past, the children have enjoyed aspects of spending time with the father, and hence, if it can be restored, may possibly obtain some benefit from a meaningful relationship with him;

   ·The father’s proposal is the only one which affords any realistic prospect of the children ever having a meaningful relationship with both their parents;

   ·The risks of harm which the father poses to the children can be, to a degree, mitigated by appropriate control measures, such as supervision, or a strict protocol for communication (noting that the father’s personality sees him likely bound to not comply with rules);

   ·The father’s proposal might, to some degree, appease him, and hence curb, or reduce, his obsession with the children and/or mother;

   ·The mother’s proposal likely sees the children permanently estranged from the father (noting that it is possible that the children may later spontaneously seek to re-engage with the father out of teenage curiosity).

2. On the other hand, the points in favour of the mother’s proposal, or contrary to the father’s proposal, are as follows:

   ·The older two children have been physically and emotionally abused by the father in the past, and have clear recollections of it.  The youngest child has been exposed to the father’s family violence, and has a clear recollection of it.

   ·Unless strict mitigatory measures can be identified and employed, the risk of further emotional harm being visited on the children by the father is high, given:

   ·       His personality disorder;

   ·       His long history of anger, rage, violence and conflict;

   ·His conduct on 8 August 2016, even though he had completed many courses designed to assist him to better control himself, and his failure, since then, to do any further courses;

   ·The probability he will continue to experience serious stressors in his life, especially in relation to employment;

   ·The risk of physical harm to the children, if spending time with the father, cannot be wholly dismissed;

   ·The father has little to offer these children, and the benefits which they might obtain from a meaningful relationship with him are dubious;

   ·In any event, the need to protect children from harm, logically should, and legally must, be given greater weight than the benefit to them of a meaningful relationship with both parents (s 60CC(2A));

   ·Despite his protestations to the contrary, there remains a real prospect that the father still wishes, or in the future may return to wishing, to reconcile with the mother, given his unwavering, religious-based, emphatic views about marriage, and hence the children become enmeshed in that obsessive quest;

   ·The mother’s proposal maintains the status quo of the last two years, under which the children have flourished;

   ·The mother’s proposal accords with the children’s strongly expressed, reasonably held, and professionally supported, views;

   ·The father’s proposal will inevitably lead to panic and anxiety in the children, which is itself a form of emotional harm, and which no control measures can wholly avoid;

   ·The father’s likely future employment in the USA renders any long lived arrangements for the children to spend time with him (even if the relationship can be restored) difficult to structure.  Renegotiating such arrangements would be beyond these parties;

   ·The father’s proposal may see this litigation continue, and perhaps the trial resume;

   ·The father’s proposal can legitimately be described as the triumph of hope over experience;

   ·The mother’s proposal leaves the children to choose if they wish to recommence a relationship with the father, which in the context of the father’s personality and history, is justifiable.

3. Sadly, I weigh those factors as telling overwhelmingly in favour of the orders proposed by the mother and the Independent Children's Lawyer, at least in relation to time and communication.

4. Critical to my thinking is the father’s behaviour in August 2016.  By then, he had done all of the courses which he contends should have equipped him to better behave around the children.  He had gathered the benefit of supervised time, and then unsupervised day time, and yet not withstanding those protective, facilitatory measures, nonetheless he yet again traumatised Y, and in doing so, further traumatised X, and to a lesser extent Z.

5. In effect, the father says that he made a mistake on that occasion, and he should have a second chance.  Regrettably, it is difficult to see what has changed since then, that should justify the children yet again being potentially exposed to the risk of harm that giving him a second chance necessarily entails.  The answer is that, other than the father having been confronted with the prospect of not spending time or communicating with his children again, nothing has changed.  There is no indication that he has engaged with any relevant professionals; on the contrary, he even disputed the diagnosis of Dr B that he suffered from personality disorder, and sought to suggest that he was within the usual range of the demonstration of narcissistic features.  That must be rejected.  Sadly, it speaks to a father who has absolutely no insight into his condition, and hence his need to change.

6. Sadly – and this is a very sad case – I am satisfied that it is one where there should be orders which do not permit the father to spend time and communicate with the children, and prohibit him from doing so.  At the present time, those orders are plainly in the best interests of the children.

7. The fact is that, if the father chooses to regard his failure in these proceedings as an opportunity to re-evaluate his view about those things, he would be well advised to do so, but I assess the prospect of him doing so as small.  He will likely regress to his usual response, which is to blame others, and to treat himself as a victim.

RESTRAINTS

1. The Independent Children's Lawyer, in recognition of the relatively small environment which is F Town, disagreed with the mother’s suggestion that the father should not be able to approach within one kilometre of her home, school or place of worship, and suggested 50 metres instead because, as counsel for the father indicated, the prospect of inadvertent breach of a 1km order is high in F Town, depending upon where the mother lives. 

2. I am satisfied that the Independent Children's Lawyer’s orders in this respect are more reasonable, but will enlarge the distance to 100 metres.  Otherwise the restraints brought are in the best interests of the children, and hence I will make them.

CONCLUSION

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

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 July 2018.

Associate: 

Date: 30 July 2018