Jandal & Haddix
[2023] FedCFamC1F 749
•1 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jandal & Haddix [2023] FedCFamC1F 749
File number(s): BRC 367 of 2022 Judgment of: BAUMANN J Date of judgment: 1 September 2023 Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Where the father was convicted of multiple counts of offences including assault against the mother – Where the father still demonstrates a lack of insight into the effect of his behaviour upon the mother and the children – Where the Court finds the father presents as a risk in the future, both physically and psychologically, to all of the children – Where the mother’s capacity to parent into the future, if there was to be an order made for the children to spend any form of time with the father, would be significantly compromised – Where family violence in this case rebuts the presumption of equal shared parental responsibility – Where it is contrary to the best interests of the children for them to spend time with the father – Final orders made in the children’s best interests Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 1 First Instance Number of paragraphs: 119 Date of hearing: 16 May 2023 Place: Brisbane Counsel for the Applicant: Mr Neaves Solicitor for the Applicant: Family Law Solicitors Qld Counsel for the Respondent: Mr Fellows Solicitor for the Respondent: Beckey Knight & Elliott Counsel for the Independent Children's Lawyer: Ms Lyons Solicitor for the Independent Children's Lawyer: Everett’s Family Law ORDERS
BRC 367 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JANDAL
Applicant
AND: MS HADDIX
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS:
1.That the Respondent mother have sole parental responsibility for the long term care, welfare and development of the children, X born 2012, Y born 2016 and Z born 2017 (“the children”).
2.That the children live with the mother.
3.That X:
(a)spend time and communicate with his father, Mr B , at all such reasonable time as may be agreed between Mr B and the mother; and
(b)have no contact with the Applicant father.
4.That the father have no contact with Y and Z save as prescribed in these Orders or otherwise agreed between the Applicant father and mother in writing.
5.That the mother and the father shall, within fourteen (14) days, provide to the solicitors on the record for the father and the mother, an email address; a postal address and emergency telephone number where a message relating to the child can be sent.
6.That the mother shall advise the father of any serious and/or life threating accident or illness that either of the children X, Y or Z suffer.
7.That the father shall be permitted to send to the children, X, Y or Z a card and gift proximate to their birthday and Christmas Day each year, and if he does so, the mother shall pass the card and gift to the children.
8.That the Independent Children’s Lawyer be discharged after thirty (30) days from the date of this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jandal & Haddix has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
When the parties commenced their relationship in early 2015, the Respondent mother, Ms Haddix, was the parent and full-time carer of a Country S born child, X, from an earlier overseas relationship, who was nearly three years of age at the time. The parents’ children being, Y and Z, were both born within two years of the relationship commencing.
As the history below reveals, both parents variously describe their relationship as being on and off, tumultuous, and violent and, at most times, volatile. Allegations of domestic violence more fully discussed below are made and often denied – where both the mother and father allege the other parent was the perpetrator and they were the victim.
There is no doubt, however, that a serious assault upon the mother at the hands of the father occurred in mid-2020 which not only caused the relationship to end but also resulted in all three children having, since that time, no time with the father – a consequence which has continued until the final hearing before the Court started on 15 May 2023.
The Reasons which follow seek to explain why the orders the Court now pronounces are in the children’s best interest.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and:
when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.
As the principles set out above make clear, the need to protect the children from harm must be given greater weight than the benefit to a child of having a meaningful relationship with the parent.
In this regard, although the mother conceded that X has regarded the father as his father figure for most of his life, the fact remains that X’s biological father is a Country S resident, Mr B. Although Mr B was named as a party in these parenting proceedings, and I am satisfied was aware of the ongoing litigation, he has not elected to engage in the dispute.
As the competing proposals next identified make clear, the assessment of the evidence arising from the father’s conviction; an earlier family violence event; and how the parents and the children have developed since separation is a major focus of these Reasons shaping, to a large extent, the orders at this time to be in the children’s best interests.
COMPETING PROPOSALS
The minute of final orders as proposed by the Independent Children’s Lawyer are contained in the case outline filed 12 May 2023 and includes alternatives, depending on the Court making a finding that the father was an unacceptable risk to the children or not. By final oral submissions, Counsel for the Independent Children’s Lawyer, Ms Lyons, contended that the Court should find the father was an unacceptable risk and, further, that the mother’s parenting capacity would be so adversely affected if she was required to facilitate time with the father, and that it was in the best interests of the children, that no prescribed time be ordered.
The mother, who had, since separation, maintained her position that none of the three children should be ordered to spend time with the father (a position made clear by the minute proposed in her Response filed 11 March 2022) did not deviate from that position and when her Counsel, Mr Fellows, delivered his final oral submissions, he continued to so contend.
The father’s amended Initiating Application filed 3 May 2023 sought extensive orders beginning with three months of supervised time at a contact centre which, in increments graduated over 12 months to a point where the children would be spending unsupervised alternate weekends with him (5.00pm Friday until 5.00pm Sunday). In a second alternate proposed order, the father sought that week about time occur after two years. The father also proposed holiday time.
Mr Neeves of Counsel on behalf of the father submitted, based on the oral argument he advanced, that these orders were both achievable, sustainable and in the children’s best interests. Although, as the orders identified, the assistance of a family counsellor, Ms C, would be required to assist, which the father was prepared to fund.
In oral submissions, although, at the start of the case the father was insistent that the orders he proposed should apply to all three children, by the end of the case, he conceded it would not be in X’s best interests to force him to attend visits contrary to the wishes he currently expresses – although the father was saddened by such an outcome for X.
EVIDENCE
The parties identified in their case outlines the witnesses they relied upon in addition to their own evidence.
The father and his partner, Ms D, were the subject of cross-examination as was the father’s former treating psychologist, Ms E.
As I will observe, both parties initially relied upon a number of family supporters who deposed to historical events and their dislike of the other party.
Little of that evidence in the father’s case was particularly helpful when viewed through the accusatory prism he applied and, sensibly, Mr Fellows, for the mother, elected not to cross‑examine the following witnesses in the father’s case even though there were difficulties with their evidence and their availability was not clear;
(a)the maternal grandfather, Mr F, had not seen his daughter or his grandchildren for some time and was clearly saddened by that outcome;
(b)Ms G is the older sister of the mother who made a number of very hurtful statements about the mother. I accept the statement in the form of an affidavit was not sworn, and as a result no weight could be applied to those statements;
(c)Ms H, a lady who claimed to be a former friend of the mother who, again, made a number of hurtful statements in a form of affidavit that was also unsworn; and
(d)Mr J, a person who claimed, again, in an unsworn statement, he had lived with the couple prior to separation some time in 2018 with some observations made by him adverse to the mother.
The mother and her partner, Mr K, were the subject of cross-examination. Importantly, in my view, the mother’s sister, Ms L, had sworn an affidavit, filed 24 April 2023, but the father elected not to cross-examine her.
Ms L gave evidence inter alia about observing bruises on the mother’s face and about complaints of violence made to her by the mother and admissions made by the father to her of kicking the mother and children out of the home because the mother would not have sex with him, by way of example.
The evidence of Ms L remained unchallenged and, in many ways, was corroborative of her sister’s evidence offered to the Court of family violence.
The Independent Children’s Lawyer relied on Child Court Expert, Ms M, and a risk of violence assessment of the father by Ms N, who is a clinical and forensic psychologist. Furthermore, the Independent Children’s Lawyer, Ms Everett, produced, under an affidavit sworn by her, details of recent drug test by each party, a summary of which can be found and contained in Exhibit 9.
Both parties have had experience using illicit substances in the past and during their relationship. In final submissions, no contention was made that use of drugs is currently a significant issue although the mother and her partner both acknowledge that they still use marijuana recreationally.
The father is obliged to undertake regular drug testing for his work.
I will deal discretely below with the father’s alleged history of domestic violence and his conviction for offences against the mother, as well as an analysis of the family reporter’s evidence, to provide some context.
HISTORY
I now set out a succinct chronology of the history. Statements of fact which follow should be construed as findings of fact.
As earlier indicated, both parties are now 35 years of age and when the relationship commenced in early 2015 the mother had the care of X who had been born in 2012 and was therefore approaching his third birthday.
The parties’ daughter, Y, was born in 2016 followed shortly thereafter by Z, born in 2017. Those children are now aged seven years and six years respectively.
I am satisfied that the relationship was tumultuous, volatile and frequent disharmony was created in the household. There were periods of separation.
In mid-2018 a temporary domestic violence order was made at the request of the mother but no final order was sought or perfected at that time.
In April 2019 the father claimed he had stopped using illicit substances. However, in mid‑2019, the mother, with the assistance of police, made another application for a temporary domestic violence order which ultimately was made a final order for five years commencing mid-2019.
There was a major assault upon the mother in mid-2020 which I will deal with shortly. This resulted in time ceasing between the children and the father.
At the time of separation, X was eight years of age, Y four years of age and Z was three years of age. Even if there were no orders for time, the bail conditions of the father restricted him having any contact with the mother or the children.
Shortly after this major event the father commenced a relationship with Ms D. Ms D has two children, O, eight years, and P, six years, from an earlier relationship. This couple commenced cohabitation in 2021 and were an intact couple – happily they say – at the time of hearing.
By mid-2020 the mother claims to have been abstinent from the use of illicit substances except for marijuana.
In 2021 the mother commenced a relationship with Mr K. That relationship was intact as at the date of the hearing.
The father pled guilty to multiple charges before District Court Judge Dick SC in mid-2021. I will deal with that conviction later in these Reasons.
The mother and Mr K commenced cohabitation in late 2021 and shortly thereafter, the father commenced counselling with Ms E. Ms E says – and I accept – that although initially the counselling was motivated by some bullying in the father’s workplace, he was, by this time, demonstrating significant anxiety and distress from not having time with his children. It also was alleged by the father that he was suffering post-traumatic stress disorder as a result of the conduct of the mother towards him.
On 14 January 2022, the father commenced proceedings in Division 2 of the Federal Circuit and Family Court of Australia and orders were made for drug testing (see Orders dated 21 June 2022 of a Senior Judicial Registrar) and counselling and an order for a family report, which was prepared by Ms M on interviews conducted in July 2022 and a risk assessment of Dr N, when the matter came before Judge Demack in early 2023. Her Honour adjourned an interim hearing so as to determine an Application filed by the father that she be recused from further dealing with the matter.
On early 2023, as I understand it, Judge Demack dismissed the application for recusal but decided not to proceed with an interim hearing at that time preferring to transfer the matter to Division 1 of the Federal Circuit and Family Court of Australia.
The matter was listed urgently before me on 17 February 2023 and, rather than conducting an interim hearing, I was able to offer the parties a trial commencing 15 May 2023. Appropriate orders under the s 102NA Cross-Examination Scheme were made because of the family violence order in existence.
The trial commenced and proceeded on 15 May 2023.
THE FATHER’S CRIMINAL CONVICTION
Whilst the father and mother each gave evidence of the events that took place in mid-2020, the agreed statement of facts put before the sentencing Judge, District Court Judge Dick SC, in mid-2021 is the best evidence of what occurred.
That statement of facts (forming part of Exhibit 2) speaks for itself but, relevantly, it was agreed that an argument began when the mother told the father she wished to separate, but when the mother attempted to leave the main bedroom the father grabbed both of her arms and threw her on the bed. She landed on her back and the father got onto the bed. The father used his hands or forearm to hold the mother down by her chest. The father used his other hand to cover the mother’s mouth and grip her throat. The father switched between grabbing her throat and covering her mouth an unknown number of times. The mother was unable to breathe and, at one stage, was hyperventilating.
The mother fought back and scratched the father’s neck in an attempt to free herself. The assault by the father continued and, when the mother tried to get away, the father continued to push her back on the bed and covered her face with his hand. At one point, a child (who I find was X) came into the room and said words to the effect, “Mummy, is he hurting you?” which the mother confirmed was the case.
When the father left the room to go and check on the kids stating “I’ll go check on them, you are not going anywhere”, the mother escaped the bedroom through a window which was approximately two metres above the ground. When outside on the grass, the father and children joined the mother and the father offered the mother a beer and no longer appeared agitated.
The following day the mother attended City T Hospital and was medically examined and observed. The hospital records reveal bruises underneath the mother’s eye in addition to miscellaneous bruising and abrasions. They were photographed in mid-2020 and were consistent with the assault asserted by the mother.
The father admitted, in a conversation with the mother’s sister in mid-2020, that he had (words to the effect) “[attacked] your sister until she passed out.”
At paragraph 18 of the statement of agreed facts, the father gave his version of the circumstances leading up to the assault including an allegation the mother was affected by drugs, wanted more drugs at the time, which caused a dispute, and that, in effect, the mother instigated the conflict. This was a totally different version to that given to police by the mother (see police statement by the mother – Exhibit 12).
The father had his Counsel at the criminal trial (Mr Neeves – the same Counsel that appeared before me in the parenting trial) make submissions on the agreed facts and the circumstances including that, after the offences were committed, the father took immediate steps to commence and complete a men’s behavioural change program.
I have read the sentencing remarks of District Court Judge Dick SC after which the father was convicted:
(a)On multiple counts, to imprisonment for a period, in each case, wholly suspended on the basis he does not commit other offences within three years; and
(b)on the counts of assault in each case, the father was ordered to perform unpaid community service for a period of 150 hours with the sentences being concurrent.
It is clear that the father having no prior criminal offences was an important consideration for the sentencing judge as was the existence of domestic violence orders to which I refer next.
Whilst the conviction is, of itself, a relevant factor when assessing risk, the effect of this serious assault upon the mother, both on the mother and the fact that X did witness part of this incident, as I find that he did, are, in many ways, more relevant to my ultimate determination.
DOMESTIC VIOLENCE WITHIN THE HOUSEHOLD
The Court does not ignore that the relationship between the parties was volatile and I accept at times both parties probably contributed to disharmony which resulted in at least two separations (before the final separation) and was at times fuelled by the parties’ drug use.
There are hospital records going back to February 2017 where the mother disclosed to her hospital social worker about alleged psychological abuse by the father.
The mother’s application for a temporary protection order in mid-2018, which did not progress to a final order, and then, in mid-2019 (which resulted in a final protection order for five years being made in mid-2019) were founded on statements made by the mother about abuse and controlling behaviour by the father towards the mother.
The father, on all the evidence, sought to both minimise the frequency of the conflict and often said he was at times (including the assault in mid-2020) merely defending himself. I am not satisfied he necessarily saw himself as a victim – but he was quick to blame the mother – including when he sought therapeutic support from the psychologist, Ms E, initially in late 2021.
I find the father, after he was sentenced in mid-2021 – he was not incarcerated – took the view that the events in the past were not an impediment in any way to him reconnecting with all three children. He says, which I reject for reasons given shortly, that his aggressive behaviour, if at all, was only directed to the mother. He says, with the support of his new partner, Ms D, who says she has not experienced any such behaviour from the father during their relationship, that he has grown and improved and is a very different person now.
Whilst I am prepared to accept that the father has tried to put past events behind him, I agree with the assessment of the family report writer that he still demonstrates a lack of insight into the effect of his behaviour upon the mother and the children, particularly X.
Whilst I accept some of the mother’s past behaviour in returning to the relationship after violent events, and even meeting him at the dam in mid-2020 after the serious assault in mid-2020 (the mother says so as to try and obtain child support – she obtained $500 at the time), are not consistent with her stated view of the father at that time.
I, however, regard the mother’s evidence of abusive behaviour towards her as more convincing and plausible than the father’s denials.
With Y and Z being only four years and three years respectively at final separation (and accepting some cognitive challenges they have) much of the adult behaviour between their parents may not have been witnessed or understood by them with any lasting effects.
I am firmly of the view – and I find – X, unfortunately, was old enough to recall incidents when the father was aggressive towards him. Cautious though I am about X adopting the mother’s shared narrative, and aligning with her, his statements to Ms M (recorded at paragraphs 129 to 148 of the family report) are, in my view, believable. That they are often consistent with the mother’s evidence does not mean she has influenced them – rather, I find they represent his lived experienced and they are generally accurate.
I particularly refer to:
(a)X was very direct about stating he did not want time with the father or for his siblings to have time (paragraph 130);
(b)at paragraph 137 X gave examples of the father’s behaviour towards him, and the father ultimately acknowledged he had smashed the child’s gaming console with a hammer; and
(c)the father consistently denied he rubbed X’s nose in the child’s dead pet’s blood, whilst he did concede he had put the pet down.
The mother’s evidence on this “dead pet” event occurring is corroborated by the child, X. I reject the father’s denial. Such an event would have been extremely traumatic for X and not something he was ever likely to invent or forget. It is amongst a range of allegations and actions of emotional cruelty by the father and are highly concerning.
I also accept that, at one stage before separation, the father did grab the child and drag him through part of the house, as the mother claims and the child recalls.
It might be said that the father is unlikely to act this way again.
Despite the evidence of Dr N made in a cross-sectional interview and without, of course, having the benefit of knowing what facts the Court would find, I am not so confident that the father is unlikely to act this way again.
The father says he lost control in mid-2020 and did not know how to stop. Although Ms E says the father’s post-traumatic stress disorder and anxiety are effectively in remission, the evidence of the father’s past behaviour is a poor predictor of any future improvement – particularly if challenged by the children’s behaviour as so often innocently can occur.
Although I am prepared to accept both parents used physical discipline in the form of smacking the children in the past, I am prepared to also accept that they use better behaviour management techniques now. I find, however, that the father’s actions of requiring and using a strategy on Ms D’s children to do a “hand-stand” or “balance on one leg for time”, is not one of these strategies for child behaviour management, that is appropriate and he should know that. In fact, Ms M describes such an approach as “cruel and unusual.” I agree.
I take these findings into account.
FAMILY REPORT EVIDENCE
The report of Ms M, dated on 23 September 2022, was based not only on the extensive material identified in her report but, importantly, interviews and observations conducted on 26 and 27 July 2022.
At paragraphs 230 to 236 in the family report, Ms M summarised her position and opinions as follows:
230.Children have a right to and should be encouraged to have a relationship with both parents, where it is possible and safe to do so. Currently I am of the opinion that there are not only significant risk factors for the children if time with [Mr Jandal] is granted, however, I also hold concerns about the children’s wellbeing given [Ms Haddix] and [X’s] strong views against the children having time with [Mr Jandal] and how this may discourage them from building a relationship with him.
231.Given [X’s] very strong steadfast views of not wanting time with [Mr Jandal], and [Mr Jandal] not being the biological father of [X], he should not be forced or ordered to have time with [Mr Jandal] if he does not wish to. Furthermore, if [X’s] experiences of [Mr Jandal] have not been influenced by other factors, there is significant risk of emotional harm for him if he is forced back in [Mr Jandal’s] care.
232.Given the violence [Mr Jandal] appears to have perpetrated against [Ms Haddix] previously, there appears to be little hope of a positive co‑parenting relationship arising. In my opinion, this will further create new problems for the children to navigate as they get older and likely effect their relationships with both parents. Furthermore, this is likely to further negatively impact on their developmental problems.
233.In my opinion, if [Y] and [Z] are ordered time with [Mr Jandal], I have concerns that [X’s] anxiety about the safety of his siblings may discourage their willingness. Currently [Z] and [Y] have little relationship with [Mr Jandal], which will require long term, intensive support to build. Whilst this may be achievable, I am unaware of any appropriate services in the region that could provide the level of support [Z] and [Y] would likely require, or that can support the children’s delays in conjunction with their emotional needs in developing this relationship.
234.I am currently of the opinion that the children should not be forced to have time with [Mr Jandal] unless they voice a desire to do so.
235.If, however the [Court] holds a different view and is in support of the children having time with [Mr Jandal], then this should be fully supervised by a professional who has qualifications and experience to support the emotional and developmental needs of the children as priority, particularly given the risk of harm identified. In my experience this is going to be a lengthy process which will require a specialised service that can provide intensive support in a developmentally appropriate way.
236.In addition, if time is granted for [Mr Jandal], this should be introduced slowly with minimal short supervised telephone and face to face visits initially and build this over time to increase familiarity and feelings of safety for the children. It is also highly discouraged for the parents to have to communicate or have contact, therefore a service who can provide the level of support required is unlikely to be easily located in the family’s current location.
It would be expected that these opinions in the family report were the focus of her cross‑examination as the last witness in the case and, from that cross-examination, some further relevant opinions were expressed inter alia:
(a)Ms D is assessed by Ms M as a “protective factor” in the father’s household now but Ms D acknowledges that she has not met the children and they have no relationship with her;
(b)Although there may be some evidence, especially shortly after separation, that X was missing “the father”, his lived experience has shaped his strong views expressed now;
(c)The mother’s strong entrenched resistance in the children spending any time with the father, and her views about the father (demonstrated, for example, by her statements about Y bringing home a “water bottle” from the father’s possession) are such that Ms M is not sure the mother would cope with the children spending time with the father;
(d)Whilst there is some potential of relationships being repaired, there are many barriers and it would take a great deal of time and effort to achieve;
(e)Although counselling might assist, this is an area requiring a highly skilled therapist and Ms M was not able to identify anyone proximate in the City T region that had those specialist skills. It is noted the father’s choice of Ms C was not supported by any evidence from Ms C or any understanding of whether she possesses the sorts of specialist skills that Ms M spoke about;
(f)When asked about Exhibit 8 (an email of further views by Ms M to the Independent Children’s Lawyer dated 15 May 2023 after perusing further material) she confirmed that she could not see any other options other than those contained within her original family report and would not advocate a change of residence even where the mother has “made it very clear that she has no intention of supporting the children’s relationship with [Mr Jandal].”
Based on the opinions expressed, and concluded in the family report, Ms M made a number of recommendations which are contained at paragraph 237 of the report which I incorporate in these Reasons:
237. Based on this assessment, it is respectfully recommended that:
a.[Ms Haddix] be given sole parental responsibility for the children.
b.The children be fully supported with graduated supervised time with [Mr Jandal] if they express interest in building a relationship with him, or the [Court] deems that time should occur.
c.[Ms Haddix] and the children continue with counselling at the domestic violence service.
d.[Ms Haddix] have [Y] and [Z] developmentally assessed and engaged with support services as priority.
e.[Ms Haddix] engage in a parenting course to learn new discipline strategies.
f.[Ms Haddix] have her mental health assessed by a psychiatrist.
g.Drug testing to be repeated for [Ms Haddix].
h.[Mr Jandal] [be permitted] to make an application to amended any final orders, if circumstances change suddenly and the children are wanting to have time with him.
I broadly accept the evidence of Ms M and, where her opinions where cautiously founded on some dispute as to the historic facts of abuse, my findings about the father’s behaviour towards the mother and the child, X, before separation in May 2020, only strengthen, in my view, the foundation of Ms M’s opinions.
PRIMARY CONSIDERATIONS
Under section 60CC(2)(a), the Court is required to consider the benefits to the child of having a meaningful relationship with both of the children’s parents. By definition, the father, in this case, is not the biological father and, therefore, the “parent” of X. I deal with that relationship later in these Reasons.
The mother’s view is that there is little benefit in the children having a meaningful relationship with the father. That may be seen to be a harsh view based entirely on the mother’s experiences of her relationship. The father, of course, says there is a benefit. I accept the children would likely benefit from a meaningful relationship, if it could be created.
The Court is required to give section 60CC(2)(b) greater weight than section 60CC(2)(a) (see section 60CC(2A)).
Mr Fellows, on behalf of the mother, in final submissions, said that whilst it is still the mother’s position that there should be a no time order, it is not necessary for the Court to make an order of any unacceptable risk the father poses to the children. The Independent Children’s Lawyer seeks such a finding. Not surprisingly, the father says such a finding is not open on the evidence.
I take into consideration that, in this case, I am required to protect the children from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. In my view, the father does present as a risk in the future, both physically and psychologically, to all the children and even if X does not see him, then, to the younger children who have yet to form a relationship of any substance with him. For the reasons which follow, a risk of harm from the father could be ameliorated by supervision, but I am not satisfied it will create a foundation for a future relationship. Courts are reluctant to order long term supervision, for good reasons.
ADDITIONAL CONSIDERATIONS
Views of children must always be cautiously assessed where there is a high level of conflict and where, as here, the children have spent no time with the father for some time.
I find that X’s views, as expressed to Ms M, are as a result of his lived experience. He is entrenched in not wishing to spend time with the father. I could not ignore the reality that he speaks now to his biological father, who lives in Country S, on a weekly basis. That is an issue which Mr Jandal has not been happy with because he was the psychological father to X for a good deal of his life until separation. Nonetheless, I am strongly of the view that it would be contrary to X’s best interests to force him to re-engage with Mr Jandal, contrary to his expressed views.
I accept the two younger children, with a lived experienced that has not included, really, their father in their life in any cognitive sense for over three years means any feelings or views they express are more shaped by the narrative in the mother’s home (which, of course, includes their older brother, X) and their assessment of the history, as Ms M says, and I agree, little weight could be applied to any views they express. What is clear, however, is that the lack of information about their father and connection with him has not made them curious or desirous of spending time at this time but rather they align themselves with their mother’s position.
These children’s primary relationship is with their mother. She has been the centre of their security and support both before and, in my view, exclusively since separation. All the children have positive relationships with their mother. They also have positive relationships with each other as siblings. This is an important factor in this case because, as X has expressed, he is very concerned about his younger siblings having any time with the father. Those views are well captured in the report of Ms M and cannot be, in my view, ignored.
I accept that the children have developed a level of comfort with the mother’s partner, Mr K. There is no evidence that he is abusive towards them.
X, as indicated, is developing a relationship, through electronic means, with his biological father in Country S and where that will go the Court does not know.
To the extent that the children have any relationship with their father at the time of separation (and, in this respect, I include X in that general description) the relationship has, sadly, in some way, since separation, almost been extinguished.
The Court is required to consider the extent to which the children’s parents have fulfilled or failed to fulfil their obligations to maintain the child. In this regard, the father acknowledged that he is in arrears of child support to the extent of $6000. No good explanation for why he does not pay child support for his two biological children was offered to the Court.
The father is in a modestly paid position in industry. It seems that he has been happy for the mother to rely upon Government support and now the support of Mr K for day-to-day financial needs of the children. That does not reflect well on him.
I will deal with the likely effects of changes towards the end of these Reasons.
The parties live in the same general community in the general City T area and if there were orders for time to occur (even at a contact centre in City T) these could be achieved with limited disruption to the children’s routines.
As to the capacity and attitude of parenting of the parents, in my view, the mother’s capacity to parent is a very significant issue. She has, on the evidence, demonstrated the ability to maintain and meet the children’s needs, including emotional and intellectual needs, but, in this regard, Y has a diagnosis that requires special management in such a way, and since separation, that she deserves much credit. It would not have been easy for her. She has, to some degree, been supported by her new partner.
There is no evidence, for example, that these children are not meeting their milestones, attending school and, in all respects, are progressing well. They presented well to the report writer.
The father’s capacity to parent, without the support of the mother but with the support of Ms D, is really untested. I have no doubt he is anxious and willing to do whatever he can to be a good parent. But, in my view, his capacity to parent is likely to be affected by his past inability to control his emotions at times and to react impulsively. This is an explanation for some of the events referred to by X in his comments to Ms M.
I have formed the view that the mother’s capacity to parent into the future, if there was to be an order made for the children to spend any form of time with the father, would be significantly compromised and, as a result, would affect the children.
It is very simple for the father to say, in effect, that the mother should move on from the events of mid-2020 and that her attitude in not supporting a relationship between the children and the father is wrong and deserving of condemnation.
As I have identified the nature of the family violence events; the serious assaults involving choking in mid-2020; and the distress to the mother’s son, X, to some very inappropriate and cruel behaviour of the father in this case, is a basis for the mother’s concerns and I do not regard those concerns as being other than genuine. I do not regard them as being, in the circumstances, unreasonable.
To the extent that the mother was criticised for this stance as being a reflection of a poor attitude, I reject such a submission.
I have dealt earlier in these Reasons with family violence and family violence orders and I rely upon those reasons.
Section 60CC(3)(l) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of parenting proceedings in relation to the child.”
It is clear, even if the father’s proposal initially for supervised time was adopted, that there would need to be expensive family therapy to support reunification between Y and Z and their father. Leaving aside for a moment the lack of evidence about who could bring the specialist skills identified by Ms M to that exercise for the benefit of the children, it would require a commitment, not only financially but emotionally, to an end goal that, once starting supervised time, will develop through a more enduring unsupervised contact regime between the children and the father.
The evidence, at this stage, does not support such a finding. In many respects, therefore, starting time in the current circumstances is almost doomed to fail, in my view.
Although the mother said she would comply with orders if she had to, I think it is likely that the children would resist, despite the skills of any identified therapist (if one can be found in City T region) and that that this would add fuel to the mother continuing to support them rather than support them having a relationship with the father, a relationship in which she sees no benefit for the children.
Another factor or circumstance which I think is relevant in this case is the effect on X, who will not be, even on the father’s case, forced to spend time with him if his younger siblings are required to do so. Whilst I accept that sometimes when younger siblings spend time with a parent, an older or reluctant sibling might be encouraged to do so, on the evidence, that is unlikely to occur here.
More likely, X’s founded fears, arising from the father’s conduct and how that could be conveyed to his younger siblings, is a matter of significant concern to the Court. This could affect the sibship relationship in such a way as to damage lifelong bonding. The Court would be very reluctant to allow that to occur even if it is only a possibility and not a probability.
CONCLUSION
In my view, the family violence in this case rebuts the presumption of equal shared parental responsibility. It is in the best interests of the children that the mother have sole parental responsibility.
I have come to the regrettable conclusion, regrettable because Courts are always keen to investigate any possibility of a parent maintaining, preserving, and even initiating a relationship with their biological child, that the circumstances in this case are such that it would be contrary to the best interests of the children to spend time with their father.
In making this finding – and pronouncing Reasons to that effect – I am conscious that, as with all such cases, these children’s curiosity about their biological father (who, I am sure, they know exists) as they get older, may manifest in behaviour that the mother will be required to manage rather than to allow them to fantasise and/or, through curiosity or hope, pursue independently time with their biological father.
To this extent, an issue arose during the course of the trial, and in final submission, about whether it would be in the children’s best interests for the father to be able to send to the children a recognition of his love for them by a card or gift at least at birthdays and at Christmas.
Ms M was invited to consider this issue and, although her opinion was not totally clear, she did express the concerns about the difficulties in trying to erase the father from the children’s lives.
In the circumstances, therefore, I will make orders that permit the father to send gifts and cards to the children on their birthday and at Christmas. I do not know, nor would I necessarily predict that, by him continuing to do this, this may, in future, cause one or other of Z and Y to seek out or initiate some contact with the father. If they do, it is a matter that the mother will need to manage at the appropriate time in the appropriate way. Although not specifically raised, but consistent with these Reasons, I will order that the mother give notice to the father of any life threatening accident or illness suffered by the children. This is the decent thing to do.
I do not propose to make orders, at this stage, requiring the mother to do anything about facilitating that time.
In the end result, this is a mother, in my view, who has had a very difficult co-parenting experience with the father since separation. She has shown the capacity, since separation, to weather significant difficulties and forge both a new relationship and a happier household for these children.
The mother has an awareness, as all parents should, that you cannot change history and, at some stage in the children’s development and life, they may seek out a person who they know exists. Pretending he does not exist is not the answer to that potential future dilemma.
For the reasons I give, the orders which appear at the commencement of these Reasons are, at this stage, on the evidence, in the best interests of the children.
I discharge the Independent Children’s Lawyer with the thanks of the Court.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 1 September 2023
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