JANSSEN & JANSSEN
[2015] FamCA 942
•3 November 2015
FAMILY COURT OF AUSTRALIA
JANSSEN & JANSSEN [2015] FamCA 942
FAMILY LAW – CHILDREN – WITH WHOM A CHILD SPENDS TIME – FAMILY VIOLENCE – Interim application by the father to spend time with and communicate with the children – Where the central issue is whether, on an interim basis and pending the expedited final hearing, the Court should make interim orders that the children spend face to face time with the father – Where the mother is the primary carer for the young children – Where the mother raises allegations of family violence by the father toward her and the children – Where the father has made admissions in respect of inappropriate behaviour – Where the Court finds, on the basis of the observations of the single expert, that there is a risk that the mother’s psychological health would be detrimentally affected if orders were made for the children to spend face to face time with the father – Where, given the overriding obligation of the Court to protect the children from physical or psychological harm, the father’s application is dismissed.
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 64B
Banks & Banks (2015) FLC 93-367
Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Enmore & Smoothe [2014] FamCAFC 131
Cowling & Cowling (1998) FLC 92-801
George & George [2013] FamCAFC182
Goode & Goode (2006) FLC 93-286
Reid & Lynch (2010) FLC 93-448
T & N (2003) FLC 93-172
APPLICANT: Mr Janssen
RESPONDENT: Ms Janssen
INDEPENDENT CHILDREN’S LAWYER: Ms Volk
FILE NUMBER: SYC 5802 of 2013
DATE DELIVERED: 3 November 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: McClelland J
HEARING DATE: 17 September 2015
REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Grew
SOLICITOR FOR THE APPLICANT: Verekers Lawyers
COUNSEL FOR THE RESPONDENT: Mr Levy
SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Helen Volk Lawyers THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
(1)The mother is to have sole parental responsibility for the children, X born … 2008, Y born on … 2009 and Z born on … 2011 (“the children”).
(2)The children are to live with the mother.
(3)The children are to communicate with the father by telephone each Tuesday and Thursday between 5.00 pm and 6.00 pm, with such communication to terminate at the natural conclusion of the conversation, or the children otherwise indicating a wish to terminate the conversation.
(4)Through the mother’s solicitor, the father is at liberty to send cards and gifts to the children on special occasions, including birthdays, religious celebrations and otherwise limit the provision of gifts to the children to occasional and insubstantial gifts.
(5)The Independent Children’s lawyer is to write to Dr Q to request that, in her updated report, she includes advice as to:
(a)whether it would be appropriate for the parents to engage in individual counselling and/or therapy, and if so, the nature and timing of that therapy or counselling;
(b)the appropriate timing and method in which the father should advise the children of the birth of his daughter, R; and
(c)any other matter or matters that may be agreed between the parties and the Independent Children’s Lawyer.
(6)The Independent Children’s lawyer is granted leave to provide to Dr Q:
(a) any document filed in these proceedings;
(b) any order or judgment of the Court; and
(c) any document produced under subpoena.
(7)In so far as it may be necessary to give effect to Order (6), the Independent Children’s Lawyer is authorised to uplift and copy any such document referred to in Order (6) above, for the purposes of providing that document or documents to Dr Q.
(8)Each of the parents is restrained from:
(a)speaking about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children or permitting any other person to do so; and
(b)discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janssen & Janssen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 5802 of 2013
Mr Janssen
Applicant
Applica
And
Ms Janssen Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
1.This matter has a long and complicated litigation history. The proceedings currently before the Court concern an Amended Application in a Case filed on 1 September 2015 by the father, Mr Janssen (“the father”) seeking interim parenting orders in respect to the three children of the marriage to allow him to:
·spend supervised time with the children;
·communicate with the children by telephone or Skype; and
·provide cards and gifts to the children.
2.The application by the father to spend time with the children is strongly opposed by the mother, Ms Janssen (“the mother”), who believes that the prospect of the father having any time with the children, including supervised time, presents an unacceptable risk to the children. As result of the father’s conduct, both during and subsequent to the marriage, the mother believes that any face to face contact between the father and the children would, in itself, pose a risk of psychological harm to the children.
3.Further, the mother asserted that she has been so traumatised by the conduct of the father that even the prospect of him spending face-to-face time with the children has such a psychological impact upon her that it will affect her parenting ability. This, in turn, it was argued, presents an unacceptable risk to the children.
Background
4.The father is 39 years of age and the mother is 37. The parents met in about January 2005 and were married in 2006. The parents separated on 11 September 2013.
5.Both parents are professionals and had met during the course of their professional training.
6.There are three children of the marriage, X born in 2008 (currently aged seven), Y born in 2009 (currently aged five) and Z born in 2011 (currently aged four).
7.On 19 September 2013 an interim Apprehended Domestic Violence Order was made against the father for the protection of the mother and the children in the Local Court.
8.On 3 October 2013 the mother commenced parenting proceedings in the Federal Circuit Court, Sydney Registry.
9.On 7 November 2013 the father filed an Application in a Case seeking orders for the transfer of the proceedings to the Wollongong Registry. The father also sought, by way of interim parenting orders, orders for equal shared parental responsibility, that the children return to live in the former matrimonial home either with the mother if she chooses to live there or with the father, that the children spend time with and have telephone communication with the father, that the mother be restrained from moving the residence of the children from the Illawarra region and other ancillary orders.
10.On 17 December 2013 Judge Scarlett heard the parties’ competing applications for interim parenting orders and on 19 December 2013 made the following Orders:
1.That the children be represented by an Independent Children's Lawyer (“ICL”).
2.That the mother have sole parental responsibility for the children.
3.That the children live with the mother.
4.That the father have telephone communication with the children between 5.00 pm and 6.00 pm each Monday, Wednesday and Friday and the mother facilitate such calls, including providing the father with a telephone number upon which he may telephone the children.
5.That the father is permitted to send cards and Christmas gifts to the mother's solicitor for the children.
6.That the father's Application in a Case filed 7 November 2013 be dismissed.
11.As result of impending criminal proceedings against the father, the Federal Circuit Court proceedings were adjourned until 29 January 2014.
12.On 22 January 2014 the father was convicted of common assault and was directed to enter into a good behaviour bond for a period of 12 months, pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and to be of good behaviour and appear before the Court during the bond if required.
13.On 29 January 2014 Judge Scarlett made orders appointing Dr Q as the single expert to inquire into and provide a report in respect to parenting matters.
14.On 31 January 2014 the father lodged an appeal against his criminal conviction to the District Court of New South Wales.
15.On 14 February 2014 the father filed an Application in a Case in the Federal Circuit Court seeking the following interim parenting orders:
·That the parties have equal shared parental responsibility;
·That the father spend time with the children, initially under supervision extending to unsupervised time for six hours each Saturday; and
·That the father have telephone communication with the children, initially for a period of one hour for three mornings per week, decreasing to one hour periods twice a week as his face to face time with the children increased.
16.In her Response to Application in a Case filed on 12 March 2014 the mother sought that the father’s application be dismissed.
17.Judge Scarlett heard the father’s Application in a Case on 9 April 2014 following which his Honour reserved his decision. Before judgment was handed down, the parents and the children attended upon Dr Q, who subsequently provided her report to the Court.
18.On 3 July 2014 Judge Scarlett released the report of Dr Q (“the Report”) to the parties. The Report was admitted into evidence in the proceedings in respect to which his Honour had reserved judgment. Directions were made on 17 July 2014 for the admission of further evidence and for written submissions. Written submissions were made by the parties and the ICL.
19.In August 2014 a judge of the District Court of New South Wales upheld the father’s appeal in respect to the criminal proceedings and set aside the convictions recorded against the father and the Apprehended Domestic Violence Order.
20.On 22 October 2014 the father filed an Application in a Case to adduce further evidence in respect to the reserved interim parenting proceedings. This application was withdrawn on 16 December 2014.
21.On 19 January 2015 the father attended Y and Z's daycare centre in the company of his current partner, Ms D.
22.On 20 January 2015 the police applied for a further Apprehended Domestic Violence Order against the father protecting the mother and the children.
23.On 21 January 2015 the mother filed an Application in a Case for various restraining orders against the father, including orders preventing the father from coming within 50 metres of any residence in which she and the children reside, the children’s school and daycare, the mother’s work and her and the children’s church. The mother also sought orders preventing the father from coming into direct contact with the children, other than by way of telephone communication or as ordered by the Court.
24.On 2 March 2015 Consent Orders were made pursuant to Undertakings entered into by the father and mother on 3 February 2015 in respect to the mother’s interim application for restraining orders against the father. The Consent Orders also provided that the mother’s Application in a Case filed 21 January 2015 be dismissed.
25.On 8 April 2015 Judge Scarlett transferred the proceedings to the Family Court of Australia pursuant to section 39 of the Federal Circuit Court of Australia Act 1999 (Cth) and the matter was accordingly listed before a Registrar for directions on 10 August 2015.
26.On 30 June 2015, following the transfer of the proceedings to the Family Court, Judge Scarlett in the Federal Circuit Court made the following interim parenting Orders in respect of the father’s Application in a Case filed on 14 February 2014:
(1)All earlier parenting Orders are suspended.
(2)The mother is to have sole parental responsibility for the children [X] born … 2008, [Y] born … 2009 and [Z] born … 2011.
(3)The children [X], [Y] and [Z] are to live with the mother.
(4)The father is to have telephone communication with all three children [X], [Y] and [Z] for a period of no longer than fifteen (15) minutes between the hours of 5:00 pm and 6:00 pm each Tuesday and Thursday and the mother is to do all acts and things necessary to facilitate such calls.
(5)The father is permitted to send birthday cards and reasonable birthday gifts to the children by forwarding the cards and gifts to the address of the mother’s solicitors who are to forward those cards and gifts on to the mother for her to give to the children.
(6)The children [X], [Y] and [Z] are to spend time with the father each alternate Saturday commencing on 1 August 2015 from 10:00 am to 11:00 am supervised by [A Service], such supervision to occur in Sydney, until 30 September 2015.
(7)From and after Saturday 3 October 2015 the children [X], [Y] and [Z] are to spend time with the father each alternate Saturday in Sydney from 10:00 am until 12:00 noon, supervised by [A Service], until Further Order of the Court.
27.On 27 July 2015 the mother filed an appeal against the Orders of 30 June 2015. She sought the discharge of Orders 6 and 7 of those Orders and also sought orders that the father spend no time with the children. The mother further sought that Order 5 of the Orders of 30 June 2015 be varied so that the father be restrained from sending cards, letters and gifts to the children other than birthday and Christmas cards and reasonable birthday and Christmas gifts through the mother’s solicitors. It was the mother’s case in her appeal proceedings that, as the parenting proceedings had been transferred by Judge Scarlett to the Family Court on 8 April 2015, the Orders subsequently made by his Honour on 30 June 2015 were a nullity. The mother also filed an application for expedition in respect to the appeal. That application for expedition was listed for hearing on 7 August 2015.
28.On the same day as she filed her appeal, the mother also filed an Application in a Case in the Federal Circuit Court seeking that Orders 6 and 7 of the Orders made on 30 June 2015 be stayed pending the resolution of the appeal and seeking the variation of Order 5 as outlined above. The application was listed for hearing on 17 August 2015. The father, in response, sought that the mother’s Application in a Case be dismissed.
29.On 7 August 2015, the same day that the mother’s application for the expedition of the appeal was listed for hearing, Judge Scarlett delivered reasons for the interim parenting Orders made by his Honour on 30 June 2015.
30.On 17 August 2015, Judge Scarlett dismissed the mother’s Application in a Case filed on 27 July 2015 for the stay and variation of the Orders of 30 June 2015.
31.On 21 August 2015 the Full Court upheld the mother’s appeal against the Orders made by Judge Scarlett on the basis that, after the proceedings were transferred to the Family Court, his Honour was without jurisdiction to make the Orders which he proceeded to then make on 30 June 2015 pursuant to the father’s Application in a Case filed on 14 February 2014.
32.As the Orders of 30 June 2015 were found to be a nullity and were set aside by the Full Court, the father’s Application in a Case was remitted by the Full Court for a rehearing before the Family Court on 7 September 2015.
33.On 28 August 2015 the matter was listed before me for case management. On that date Orders were made providing for a timetable for the filing of further material. The listing on 7 September 2015 was vacated and the matter was set down for interim hearing on 17 September 2015.
34.On 1 September 2015 the father filed an Amended Application in a Case pursuant to the Orders made on 28 August 2015. The mother filed an Amended Response to the father’s Application in a Case on 4 September 2015.
35.The mother, the father and the ICL also provided the Court with case outline documents on 16 September 2015 detailing the orders they respectively sought.
36.As will be discussed, the mother and the ICL set out the Orders they sought in their respective Case Outline documents.
37.On 17 September 2015 the Court heard the father’s Amended Application in a Case filed on 1 September 2015.
Issues pending expedited hearing
38.All parties were in agreement that this case is an appropriate case for expedition and the matter has been set down for hearing in respect to parenting matters for four days commencing on 1 February 2016.
39.All parties acknowledged that the central issue before the Court was whether, on an interim basis and pending the expedited final hearing, the Court should order that the children have face-to-face time with the father.
Orders sought
Orders sought by the father
40.At the hearing the father indicated that he sought orders for the children to spend supervised time with him in accordance with the proposed Minute of Order originally provided by the ICL to the Court. In addition to those Orders, the father sought the following:
5. That the father be permitted to bring toys, books, birthday presents, Christmas presents, electronic games and small gifts for the children when spending time with the children.
8. That the mother shall encourage and foster the children's relationship with the father.
9. That the mother shall use her best endeavours to encourage members of her family to facilitate the telephone communication between the children and the father.
10. That the mother shall encourage the children to spend time with the immediate and extended family of the father, including communicating by telephone and in writing.
11. That both parties be restrained by injunction from denigrating the other party or members of the other parties family to the children, or in the presence or hearing of the children, or at all.
12. That the parties be restrained by injunction from discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings.
Orders sought by the mother
41.Counsel for the mother argued that the history and issues in the matter were such that it was entirely unsafe for the Court to consider parenting matters on an interim basis. Accordingly, it was argued that the interim orders made by his Honour, Judge Scarlett, on 19 December 2013 should remain in force until the final hearing.
Orders sought by the Independent Children's Lawyer
42.Prior to the hearing the ICL provided a proposed Minute of Order to the parties and to the Court. Those proposed orders were as follows:
PENDING FURTHER ORDER:
1. That the [children] live with the mother.
2. That the children spend time with the father:
(a) each alternate Saturday from 10am until 11am, supervised by [A Service] for a period of two months; and thereafter
(b) each alternate Saturday from 10am until 12 noon supervised by [A Service], for a period of 2 months; and thereafter
(c) each alternate Saturday from 10am until 1pm supervised by [A Service], for 2 months; and thereafter
(d) each alternate Saturday from 10am until 2pm, supervised by [A Service], pending further Order.
3. That the children communicate with the father by telephone each Tuesday and Thursday between the hours of 5pm and 6pm, with such communication to terminate at the natural conclusion of the conversation, or the children indicating a wish to terminate the conversation.
4. That the father be at liberty to send gifts to the children on special occasions, including birthdays, religious celebrations and otherwise limit the provision of gifts to the children to occasional and insubstantial gifts.
5. That the father be at liberty to introduce the children to his daughter [R], at the commencement of the time the children spent with the father pursuant to Order 2(b) above, unless otherwise agreed.
6. That each parent be restrained from denigrating the other parent, or any member of that parent’s household or family, and immediately remove the children from the presence of any other person who does so.
43.However, at the hearing on 17 September 2015 the ICL advised the Court that, having had regard to additional material that had been filed on behalf of the mother, the ICL had formed the view that, pending final hearing, it was not appropriate for the Court to order that the children spend face-to-face time with the father. The objection was made even on the basis of the father’s proposal that the time be supervised.
Evidence
44.The father relied on:
·His affidavits sworn on 9 September 2015, 23 July 2014, 2 April 2014 and 13 February 2014; and
·The affidavit of his partner, Ms D, sworn on 17 August 2015 and filed on 9 September 2015.
45.The mother relied on:
·Her affidavits sworn on 9 September 2015 and paragraph 68 and Annexure L of her affidavit sworn on 22 July 2014;
·Her financial statement sworn on 9 September 2015;
·The affidavit of Dr S sworn on 9 September 2015 and paragraph 14 and Annexure A of the affidavit of Dr S sworn on 3 April 2014;
·The affidavit of her mother, Ms M, sworn on 9 September 2015;
·The affidavit of Ms L sworn on 21 January 2015; and
·Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 3 October 2013.
46.The mother also referred the Court to various paragraphs of the father’s affidavit sworn on 6 November 2013 that she characterised as admissions made by him. The mother additionally relied upon the father’s financial statement sworn on 6 February 2015 and his Undertaking to the Court dated 3 February 2015.
Contentions
Father’s Contentions
47.Counsel for the father argued:
·The interim orders made by Judge Scarlett on 19 December 2013 which restricted the communication between the father and the children to telephone contact, were made pending:
othe appointment of the ICL;
othe appointment of a single expert witness to provide a report in respect to parenting matters; and
othe father being convicted of assault (which has now been overturned).
·The Court now has the advantage of an ICL and the benefit of the Report of Dr Q dated 25 June 2014 and released on 3 July 2014.
·At the time Dr Q prepared her report she had before her the mother's allegations against the father and she was aware that the father had been convicted of assaulting the mother.
·Despite that knowledge, Dr Q still recommended that the father have face-to-face time with the children.
·It is relevant that the father’s criminal conviction has now been overturned.
·Moreover, even if, applying the civil onus of proof, the Family Court were to find the mother’s allegations against the father to be sustained, at its highest, the material would cause some concern for the Court regarding the relationship between the mother and the father but this should not impact upon the children having face-to-face time with the father.
·If, despite that argument, the Court also found that, as result of the father engaging in past inappropriate conduct in respect to the children, there was some risk in the father having face-to-face time with the children, that risk could be ameliorated by the face-to-face time being supervised. This, it was argued was essentially a recommendation in Dr Q’s report.
·In terms of the mother’s psychological state and, specifically her anxiety about the father spending face-to-face time with the children, counsel for the father noted that it is not disputed that the mother holds the belief that the children having face-to-face time with their father would present a risk to the children. Counsel for the father submitted, however, that the question before the Court is whether those beliefs are valid.
·At page 36 of her report Dr Q commented that if the mother's safety and the children's safety can be assured, then the mother's sound judgment should prevail.
·The concerns are not valid in the context of the orders sought by the father which are essentially for the father to have very limited contact of one hour’s supervised time with the children.
·The father’s undertakings provided to the Court on 3 February 2015, in respect to his conduct when in the company of the children, should also provide some assurance to the mother and ameliorate any risk and fear that the mother may have in respect to her own safety and that of the children.
·The mother's fear is based on her assessment that the father is effectively a "charming psychopath" and there is no independent evidence to that effect.
·The Court should not rely on the reports of the mother's treating psychologist, Dr S, because:
oshe had only performed some psychometric testing and she had not made a diagnosis of the mother;
oshe is not a psychiatrist and it is questionable whether she could make any diagnosis of the mother's mental capacity and of the mother’s consequent ability to parent;
othe reports have been prepared solely on the information provided to Dr S by the mother. Dr S did not interview the father or the children or other relatives; and
oDr S indicated that she feared that the mother may be withholding things from her because of Dr S’s obligations as a mandatory reporter of child welfare concerns. This withholding of information, it was argued, affected the validity of Dr S’s conclusions.
48.In summary, in respect to the mother’s psychological health it was argued:
·At this stage there is insufficient material for the Court to make a finding of risk in respect to the mother’s psychological health and her consequent ability to parent.
·The Court cannot make a finding of risk to the children, presented by the mother’s psychological health, until the Court has professionally qualified material available to it that would justify such a finding being made.
·On the reverse side of the argument, counsel for the father argued there is no independent evidence before the Court to support the proposition that the father should have no face-to-face contact with the children.
Contentions of the mother
49.Counsel for the mother submitted that there were two prongs to the mother's objection to the father having face-to-face time with the children. They were:
1.the possibility of a direct psychological risk to the children; and
2.the impact on the psychological health of the mother and her consequent ability to parent which, in turn, would present a risk to the children.
50.In developing the first prong of those two arguments, it was submitted:
·The mother's evidence is that the father has perpetrated family violence upon her and the children over a long period.
·The admissions contained in the father's affidavit sworn on 6 November 2013 are admissions "of extreme seriousness" and constitute admissions of sustained verbal abuse, physical abuse and sexual coercion.
·While the Court cannot make findings of fact based only on the mother's evidence, those allegations nonetheless form part of the factual matrix that the Court must consider. It was argued that mother’s allegations “are remarkably similar” to those facts which the father has admitted to in his November 2013 affidavit.
·Those allegations made by the mother include that:
oshe has been physically assaulted on a number of occasions;[1]
[1] Mother’s affidavit filed 9 September 2015, paragraphs 24, 26, 43, 58 and 98.
othe father has been verbally abusive and physically abusive towards the children;[2]
[2] Mother’s affidavit filed 9 September 2015, paragraphs 154, 155 and 158.
othe father has been sexually coercive of the mother.[3]
[3] Mother’s affidavit filed 9 September 2015, paragraphs 109 to 143.
·It is of significance that Dr Q noted that:
oThe children reported that their father had hit them and it was reported "in a very convincing way."
oThe children reported to her the father’s anger, including yelling and hitting the child X.
·Facebook posts of the father which are attached to the mother’s affidavit sworn on 9 September 2015 provide “objective evidence” of the father engaging in ongoing threatening, insulting and belittling conduct in respect to the mother.
·The father’s telephone conversations with the children demonstrate inappropriate conduct including:
othe father insisting that the length of the telephone conversations go beyond a time that is comfortable for the children;
othe father involving the children in the parent’s dispute; and
othe father making direct adverse references to the mother .
51.In terms of the second limb of the mother's argument, it was argued that:
·Paragraphs 332 to 348 of the mother's affidavit sworn on 9 September 2015 referred to the psychological impact of the mother learning of the decision of Judge Scarlett making interim orders for the father to spend time with the children.
·Dr S’s opinion is that the mother is suffering from a post-traumatic stress disorder and depression and anxiety and that the father having face-to-face time with the children would have such a psychological impact upon the mother, that it would impede her parenting ability.
·It is particularly significant that Dr Q referred to the children being young and vulnerable in circumstances where the mother is and has been the primary carer of the children for approximately two years.
52.In summary, in respect to the second limb of the mother’s argument, it was argued that any order for the children to have face to face time with the father would be destructive of the mother’s ability to care for the children and therefore presents a psychological risk to the children.
Submissions of the Independent Children's Lawyer
53.The ICL submitted that:
·There is sufficient evidence before the Court to enable the Court to conclude that, even on an interim basis, the father has engaged in conduct that falls within the broader definition of family violence as set out in section 4AB of the Family Law Act 1975 (Cth) (“the Act”).
·The mother’s most recent affidavit sworn on 9 September 2015 demonstrates an ongoing pattern of behaviour of the father that presents a risk to her and the children. In particular it was submitted the social media commentary shows an ongoing pattern of intimidation, denigration and abuse by the father.
·The father’s approach to telephone communication with the children is conducted in a monopolising and coercive manner with the father insisting that the children stay on the phone for the specified period of time.
·The Court should adopt a cautious approach and should be reluctant to place the children in a situation of risk until such time as an updated expert report is available, and the evidence is tested in a trial.
·At final hearing the Court will be required to explore the nature of the relationship between the father and his new partner, Ms D, and whether a motivator for that relationship is the fact that Ms D resides at Suburb N and that Ms D apparently has an association with another woman who the mother is in regular contact with as result of their children attending the same childcare centre.
·The father admits to anger management issues and it appears that the children lived in a toxic environment. In those circumstances it is difficult to see how the mother could contemplate the children spending time with the father.
Agreed or objectively verifiable facts
The criminal conviction and subsequent successful appeal
54.All parties acknowledge that in interim proceedings the Court is unable to make findings of fact where there is a conflict between the parties regarding those facts. In those circumstances the Court will look to those facts which are agreed or which are objectively verifiable.
55.As has been noted, during the litigation between the parties, considerable weight was placed on the significance of criminal proceedings involving the father. The mother referred to the fact that the father had been convicted of common assault in the Local Court on 22 January 2014. On the other hand, the father emphasised that in August 2014 a judge of the District Court of New South Wales upheld his appeal and set aside the conviction.
56.The appeal before the District Court judge was dealt with on the transcript of evidence taken before the Magistrate. Relevant passages are as follows:
·At page 9 of the transcript the District Court judge notes that: "There is no evidence before the Court of any mistreatment by the appellant [the father] towards his children.”
·Further at page 9-10 his Honour said:
I must say these cases are very difficult when you have one person's word against another but there is enough material for me to have a feeling of disquiet about the conviction that was recorded. From my point of view and my examination of the evidence I am not satisfied beyond reasonable doubt that the offences have been made out and accordingly the appeal is allowed, the conviction is quashed.
57.The District Court judge also set aside the Apprehended Violence Order that had been made against the father and in so doing said:
I mean there is nothing before me which indicates that this woman’s safety or the children's safety was at risk. At its highest there was an altercation and from the complainant's point of view, there might have been some physical contact but on what is before [the Court] it is a one off incident. This is not a violent or aggressive or angry man.
58.While the Court notes the findings of the District Court judge, it remains the task of this Court to determine, according to the civil standard of proof, whether there is evidence of:
·“any mistreatment by the [father] towards his children”;
·whether there has been more than a “one off” incident of physical contact between the father and the mother”; and
·whether the father is “a violent or aggressive man”.
The father’s affidavit sworn on 6 November 2013
59.Counsel for the father indicated that the father did not resile from admissions contained in his affidavit sworn on 6 November 2013, however, he stressed that any such admissions need to be seen in context, including the context of the entire affidavit. In endeavouring to evaluate the father’s affidavit sworn on 6 November 2013 in that context, the following passages are relevant:
·At paragraph 57 of his affidavit, the father reports a conversation with the mother which occurred on 10 September 2013. He says:
I recall saying to her words to the effect "you're a useless wife" I regret saying this comment and realise it could be upsetting to [the mother].
·At paragraph 93, the father says: "At times I may have used derogatory language, but never in front of the children."
·At paragraphs 109, 116, 117, 119, 120, 122, 127, 128, 129, the father admits to incidents in which he was overprotective with the children but attributes this to the experience he has had in his workplace.
·At paragraph 136, the father said: "I admit that I do tap the children on the ears to ‘move along’ if they are in the way. It is usually a gentle tap on the back of their ears."
·At paragraph 162, the father does not appear to challenge the mother's evidence that after their son, Y, had an accident and lost a tooth he said to her:
…you are a terrible mother. You have ruined my son's life. You will end up with dead kids due to your negligence.
·The father acknowledged taking a photo of Y's mouth and did not appear to challenge that he used the words: "I will use this to remind you of what you did to my son." However, the father states that he took the photograph in the event that it may be useful for future treatment.
·At paragraph 166, in response to the mother's allegations that he called her a "‘fucking’ this or that” and a “cunt " and stating that "he lives with morons", the father replied that :
I accept that I do swear when we have disagreements but this never occurs in front of the children. [The mother] has called me a ‘dickhead’ on occasions. I do not take offence at the term as I feel that it was said in the heat of the moment. We usually make up and move on after a disagreement.
·At paragraph 167, the father stated:
Between 2010 - 2011 while [the mother] was pregnant and breastfeeding, my requests for oral sex and trying a new sexual activity were turned down by her. I understood that due to her condition that this was understandable.
·At paragraph 169, the father stated:
In January 2013 we both agreed to try new things sexually. I bought up ideas like having a ‘threesome’ which [the mother] initially agreed to on her own accord. [The mother] did not want to try anal sex and agreed to have oral sex in different positions. I accepted her decision.
·At paragraph 170, the father stated:
When things did not progress with our sexual activity I suggested in May 2013 words to the effect “Why don't you take control of the situation and organise our sexual exploration activity”. I gave [the mother] a number of websites as a starting point for her to consider so that she could look into our sexual relationship in her own way.
·At paragraph 172, the father stated:
I admit that I do request oral sex from my wife but there are no set times. I am very mindful of her mood and if she is fatigued from work. I suggested doing it before we have a late dinner.
·At paragraph 173, in response to paragraph 91 of the mother's affidavit where the mother said she was forced to clean up her own vomit after engaging in oral sex:
I recall that [the mother] did vomit once but I cannot recall the date. I suggested that we engage in it prior to dinner. I am very mindful about the risk of aspiration … and I am over-concerned that our sexual activity has to be safe.
·At paragraph 177, the father stated:
As to paragraphs 94 - 96 of [the mother’s] Affidavit. I have watched various types of pornography with my wife to find out what may be of interest to her in our sexual relationship. [The mother] has not been willing to tell me what she likes or dislikes. [The mother] has watched the pornography with me before sex.
·At paragraph 178, the father states in response to paragraph 97 of the mother's affidavit that:
[The mother] had initially agreed to a ‘threesome’ so I went about trying to organise one. [The mother] later said to me words to the effect "I am not comfortable with the idea". I was initially upset but agreed not to continue as I did not consider that it would be a fun activity if she was not a willing participant.
·At paragraph 181, the father acknowledged that: "I have said to [the mother] words to the effect “I am a sex addict”. This was said as a joke and I have referred to and laughed about Charlie Sheen the actor as also being a sex addict."
·At paragraph 183, in response to paragraph 105 of the mother’s earlier affidavit, the father stated:
I did say some things in frustration but I cannot recall the detail. I do not expect my wife to be a porn star. I suggested watching porn to get ideas for us to do things together as she does not communicate her sexual needs and plans to me.
·At paragraph 185, the father stated that: "I have said in recent months to [the mother] on multiple occasions words to the effect “I am sad that you have ignored all efforts to do your part in organising something sexually fun for us.”
·At paragraph 187, in response to the mother's allegations that the father did not speak to her for two days because she forgot X’s hat, the father responded that: "I accept that I was annoyed at [the mother] for forgetting [X’s] hat on that day."
·At paragraph 189, the father admits to responding to mother's advice that she was suffering from the vaginal thrush that it "was too much information, it is a turn off" but the father stated that he made those comments in a joking sense.
·At paragraph 191, in response to the mother's allegations that he called her "a fucking cunt", the father admits to having an argument in which both parties swore at each other in respect to missing a taxi.
·At paragraph 196, the father acknowledged expressing annoyance to the mother for refusing to attend "Sexpo."
·At paragraph 197, the father admits suggesting that they take children to "Hooters" for their birthday but commented that he did so as a joke.
·At paragraph 201, the father admitted to using the term "homework" in terms of his request for the mother to watch pornography but said he did so "as a playful reference to [the mother] organising our sexual activity".
·At paragraph 203, in response to the mother's assertion that he used abusive and belittling language because she forgot the backpack of one of the children, the father acknowledged:
I did get angry with [the mother] for not putting the bags in the car and we did argue about this as Wednesday is the most stressful day of the week for me driving the children and stressful work commitments. I accept that I should have approached the situation differently.
Admission of anger
60.The father did not challenge that, on or about 19 September 2013, the father left a note to the mother which included the following statements:
“I'm sorry for being angry all the time, I have no excuses”
“I know I have to change”
“I have to address my issues”[4]
[4] Mother’s affidavit filed 10 September 2015, paragraph 57 and Annexure ‘C’.
THE SINGLE EXPERT’S REPORT
The following observations of Dr Q are also of relevance to the Court’s consideration of risk in this matter:
·Page 16: "[The mother] expects that [the father] will ‘behave perfectly’ until he has unsupervised contact but then she fears he may do something to get back at her. She believes that will be a risk for a long time."
·Page 17: "[The mother] had remained very agitated and was manifestly very frightened; she was tremulous and her thought processes were at times fragmented by her intense fearfulness."
·Page 24: Dr Q reported that the father said to her: "I can't understand it. What did I do? She said I made a threat against [Z]; I never did that. I am close to my mother and I am close to [Z]; [Z] looks just like my mother. I don't punish them; I'm not physical with them; if they do misbehave I’ll put a ban on the computer; I’ve never hit them. We would either ban the computer or put them in time out."
·Page 25: In respect to the children meeting with the father at the interview Dr Q commented:
o"The boys were very excited about seeing their father and dashed into the room"; and
o"The boys instantly engaged with him their father but were very focused on the bag of gifts he had bought.”
·Page 27: In commenting on an interview with the two boys, Dr Q said:
Asked if they understood the reason why their mum and dad weren't living together anymore, both boys spoke of their father being angry and smacking and yelling. Asked where they were smacked, [X] indicated on his head with an open hand.
·Page 27: "[The mother] had remained manifestly stressed and fearful and much preoccupied with the risk of harm to the children."
·Page 29; "[The mother] is manifestly quite terrified and extremely preoccupied with the possibility of harm to the children."
·Page 29: "[X] shows a significant degree of emotional dysregulation and this was apparent at interview. Dysregulation is often a symptom of trauma, including exposure to domestic violence, but it is a nonspecific symptom and could be the result of any kind of trauma or abuse that a child might have suffered. "
·Page 30: "It was of concern that the boys made disclosures of their father hitting them at home. They volunteered that he yells and smacks and [X] provided a demonstration of open handed smacking. Both are of sufficient maturity to be able to make a coherent disclosure".
·Page 30: "That [X] was fiercely resistant to telephone contact at the beginning: this would suggest that there had been difficulties at home that had caused [X] to become somewhat estranged from his father."
·Page 31: "That the children seem happier and more relaxed since separation: this would suggest that there had been difficulties at home that had caused the children to become somewhat estranged from or perhaps rather anxious in regard to their father."
·Page 33: "The mother is manifestly terrified of [the father] and on that basis seeks to limit contact; it appears that she is motivated entirely by a perceived need to protect children."
·Page 34: "The mother has provided well for the children in all respects except that she is somewhat compromised at present by the intensity of her fears."
·Page 34: "Notably [the mother] is in a marked state of terror and it may be relevant to the assessment of risk, that there is strong research evidence that the perception of threat by victims generally and victims of interpersonal violence in particular, is frequently reliable."
·Page 35: "The children are very young and vulnerable."
·Page 36: in respect to the mother:
o"Currently, however, she presents in a state of terror";
o"She presents the clinical profile of mixed depressive and post-traumatic stress disorder symptoms that are characteristically in evidence in victims of interpersonal violence,"; and
o"If her safety and that of her children could be assured, it is likely that her fundamentally sound adjustment would be restored."
·Page 37: "[The mother] also provides an account of considerable sexual coercion in the relationship; this is frequently a feature of coercive control; it is mostly psychological coercion and is more likely to be manifest where psychological aggression is more in evidence than physical aggression."
·Page 37: "The fact of [the father’s] conviction for assault plus the mother's account of a relationship of coercive control plus the disclosures of the older two children taken together suggests that this has been a situation of family violence and hence one that has been potentially damaging to the development of the children… There are already indications of affective dysregulation in [X] and in [Z], although both have improved since the separation."
Social media commentary
61.Much of the social media print outs attached to the mother's affidavit sworn on 9 September 2015,[5] relates to communication between the father and his new partner Ms D. The photo insignia used by the father in each of the Facebook posts is of a fiery skull.
[5] Mother’s affidavit sworn on 9 September 2015, Annexures “I,” “J,” “K” and “R through to “W” inclusive.
62.In January 2015 the father posted a Facebook message referring to a young boy who was being treated in the hospital where the father works and who had asked for his father. The message read in part:
The father was there for him looking after him after his surgery. The little boy needed his Dad and his Dad was there for him. At 6:15am sometimes all a child wants is his father to be there for him… be there for him.
63.By way of response on that same day, Ms D replied:
At least nobody will take away your daughter, unlike those cruel idiots have, I cant believe the stupidity and cruelty! She calls herself a mother, what a JOKE!!!!
64.It is understood that reference to the daughter was a reference to the daughter of the father and Ms D.
65.By way of further response the father replied: "Well said". A smile face was attached to the bottom of the message.
66.In January 2014, in response to a Facebook message opposing the culling of sharks in Western Australia, the father posted the following message:
Mother shark must know without daddy shark her offspring will grow up screwed up. Her enemies with cc problems must be glad everything is going to plan.
67.In April 2015 the father posted a reference to a petition website titled "Stop False Allegations of Domestic Violence."
68.In June 2015 the father posted a Facebook message which read:
When a friend of mine notices at 4pm a really old lady (hunched and all) struggle with 3 young kids at a Northern Beaches Mall, it makes her wonder where the mum and dad are? Poor kids suffering for someone else's mess up is her thought. I try not to judge. After all Christ does not judge those without guilt… - feeling amused.
69.In November 2014 the father posted a message which contained a photograph of a DVD cover which showed a leather jacket with a photo of the Grim Reaper on the back. The father's accompanying message was: "I hope this weekend's Northern Beaches fun doesn't end this way. Ha ha (No criminal record and counting)."
70.In December 2014. The father posted another Facebook message:
My father has a piece of Padre Pio and the majority of the Australian Catholics would agree if he was here now he wouldn't be a fan of Catholics who fake domestic violence to cover up an extra-marital affair with a work colleague which is documented - just saying!!!!
71.On 26 January 2015 the father posted a Facebook message which was in response to a message from White Ribbon Australia congratulating Ms Rosie Batty on being named Australian of the year. The father's message read:
Domestic violence is a serious issue my Australia Day wish is that all those that fake domestic violence for their own selfish and sinister motive be accountable by the legal system. Rosie may be sad to see her hard work be for nothing, due to the actions of a few horrible individuals.
The Law
The Legislation
72.Parenting proceedings are to be determined in accordance with Part VII of the Act.
73.Section 64B(2) sets out what parenting orders may deal with and, relevantly includes:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
…
(e) the communication a child is to have with another person or other persons;
…
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
74.The objects of Part VII are set out in section 60B and include, in subsection (1), the following:
(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.
75.The overarching principle for parenting orders are found in section 60CA of the Act, which states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
76.Section 60CC sets out a legislative pathway by identifying a number of considerations that the Court must take into account in arriving at a determination as to what is in the best interests of the children.
77.In Banks & Banks (2015) FLC 93-367 at 80,116, the Full Court outlined a practical and common sense approach to applying section 60CC in the following terms:
…there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.
Evidentiary Challenges
78.The nature of the truncated process of interim hearings is that it is not possible to make findings about matters that are significantly in dispute between the parties. In that context, in Cowling & Cowling (1998) FLC 92-801 the Full Court said at 85,006:
…Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
79.Further guidance is obtained from Goode & Goode (2006) FLC 93-286 where the Full Court said that, where findings are not possible, the Court should look to less contentious matters “such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.”[6]
[6] Goode & Goode (2006) FLC 93-286 at 80,900, quoting Cowling & Cowling (1998) FLC 92-801 at 85,006.
Obligation to address issues of risk
80.Despite the evidentiary challenges that exist in interim proceedings, it is nonetheless essential to address issues of risk of violent and abusive conduct when they arise. The following, often cited, observation of Moore J in T & N,[7] is reflective of the Court’s serious concerns about family violence:
It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the well-being of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to[78761] violence and the serious consequences such experiences have for their personality formation. They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations…and so on.[8]
[7] (2003) FLC 93-172, at 78,760 – 78,761.
[8] Also see Reid & Lynch (2010) FLC 93-448 at [211].
81.It is important for parties to appreciate that the concept of family violence referred to by Moore J, includes broader concept of abusive, controlling and threatening behaviour. Section 4AB of the Act provides the following examples of behaviour that may constitute family violence:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
82.In terms of the obligation to address issues of risk associated with children being subject to or exposed to family violence, in Deiter & Deiter[9] (“Deiter”), the Full Court at [61] said:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…[10]
[9] [2011] FamCAFC 82.
[10] Referred to with approval in George & George [2013] FamCAFC 182 at [21] and see also Enmore & Smoothe [2014] FamCAFC 131 at [35].
Identification of and dealing with risk
83.In Blinko and Blinko[11] (“Blinko”), the Full Court discussed the appropriate approach in dealing with issues of risks and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised the relevant authorities as follows:
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
·If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
·If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
·Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
[11] [2015] FamCAFC 146 at [83].
84.In Blinko the Full Court made it clear that a necessary part of assessing risk requires the Court to also consider possible measures to ameliorate that risk. In that respect the Full Court said:
A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261” [12]
[12] Ibid at [27].
85.It is of significance that the Full Court found that the learned trial judge fell into “discretionary error” when he failed to consider a range of potential means whereby the risk to the child of having a relationship with the father could have been ameliorated. Possible options, the Full Court noted, were:
1.Permitting the father to send cards, gifts or letters to the child, whether on special occasions or more regularly;
2.Permitting the child to spend supervised time with the father on one or more occasions during the year for a fixed period (on a final and not interim basis);
3.Introducing, on an interim basis, some closely supervised time between the child and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and
4.Requiring the mother and child to engage with appropriate therapists with a view to preparing the child for re-unification counselling with the father.[13]
[13] Ibid at [31].
Consideration
86.As noted, all the parties in this matter agreed that the central issue to be determined in these interim proceedings is whether the father should have supervised face-to-face time with the children. Less significant issues concern telephone etiquette, the provision of gifts and cards, non-disparagement and issues upon which the advice of the single expert should be obtained.
87.In addressing the question as to whether the children should have any face-to-face time with the father, the Court has considered all of the matters set out in section 60CC including, in particular, the matters set out in subsections 60CC(2) and (3). The most relevant considerations are the primary considerations which are set out in section 60CC(2) and are as follows:
a)the benefit of the child having a meaningful relationship with both of the child’s parents (section 60CC(2)(a)); and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (Section 60CC(2)(b)).
88.The legislation recognises that these two primary considerations may be competing. Section 60CC(2A) provides that in applying or in balancing those two considerations “the court is to give greater weight to the considerations set out in paragraph (2)(b).”
89.Also of relevance is section 60CC(3)(j) which requires the Court to consider whether there has been “any violence involving the child or a member of the child’s family”
90.As noted, in these interim proceedings, the Court is unable to make findings of fact where those facts are in dispute between the parties. In this matter it is of significance that the following matters are not in dispute:
·the allegations of the mother in respect to inappropriate conduct by the father to the extent to which such conduct is admitted by the father in his affidavit sworn on 6 November 2013;
·the Facebook posts of the father which are attached to the mother’s affidavit sworn on 9 September 2015 and filed the following day; and
·on or about 19 September 2013 the father left a handwritten note to the mother containing the acknowledgement of instances of inappropriate behaviour by him.
91.The admissions contained in the father’s affidavit sworn on 6 November 2013 and filed the following day include admissions of inappropriate behaviour on the part of the father. Counsel for the mother argued that the admissions of the father, in themselves, are sufficient to find that the father has engaged in family violence, as defined in s 4AB of the Act, directly against the mother and the children. He further argued that the children have been exposed to such family violence.
92.In these interim proceedings, it is unnecessary for the Court to make findings as to whether the facts, as admitted, constitute family violence. The Court’s task is to determine whether, in light of the conduct that has been admitted or otherwise objectively verified, the children would be exposed to risk of physical or psychological harm if orders were made for the children to spend face-to-face time with the father.
93.Counsel for the mother argued that the children would be at risk of psychological harm if an order was made for them to spend face-to-face time with the father for two reasons. Those reasons were said to be twofold:
1)Firstly, the children would be required to spend face-to-face time with a man who has subjected them to family violence and abuse, which would, in itself, present a psychological risk to them; and
2)Secondly, as a result of the mother having been subject to such family violence and abuse, the mother has been so psychologically affected that, should the Court order the children to spend face-to-face time with the father, the mother would be so significantly affected that it would impact upon her ability to provide proper parenting to the children.
94.On the basis of the available evidence before the Court, the Court is not in a position to conclude that the children will be exposed to risk of psychological harm in terms of the first of those two arguments. It would be possible to order that any such contact between the children and the father be subject to professional supervision of that time. This would supervise both physical contact between the father and the children as well as appropriate communication between them.
95.In that respect, the Court notes that at page 16 of the Report, Dr Q reported:
Regarding [the father’s] contact with the children, [the mother] expects that he will ‘behave perfectly’ until he has unsupervised contact but then she fears he may do something to get back at her.
96.It is possible that the accuracy of that observation by Dr Q will be challenged at final hearing. However, consistent with that observation, in terms of the first of the mother’s two arguments, the Court is satisfied that appropriate professional supervision of the contact between the children and the father, particularly in a controlled environment, could ameliorate any potential risk to the children of physical or psychological harm to the children.
97.The more difficult task is to assess the impact of such face-to-face time on the mother. In particular, it is necessary to consider whether such contact would cause such distress and anguish to the mother that it would adversely impact upon her psychological wellbeing and consequent parenting ability.
98.Adopting the approach discussed in Deiter, it is necessary to make an assessment of the possibility of that risk occurring in the context of also assessing the consequences if that risk does eventuate.
99.As noted, counsel for the father argued that the Court should not place any weight on the reports of Dr S. It is not necessary in these interim proceedings to determine whether that submission is of merit. The Court is satisfied, on the basis of the observations of Dr Q as set out in her Report, that there is a risk that the mother’s psychological health would be detrimentally affected to a significant extent if orders are made for the children to spend face-to-face time with the father. This would be the case even if that face-to-face time were supervised. The Court notes, in particular, the observations of Dr Q, in respect to the mother’s level of anxiety, as set out on pages 17, 27, 29, 33, 34 and 36 of her Report. Those relevant paragraphs have been extracted above.
100.It is noted that Dr Q also refers to the mother’s anxiety impacting on her current parenting capacity. Specifically at page 36, she notes:
The mother has provided well for the children in all respects except that she is somewhat compromised at present by the intensity of her fears.
101.There is a legitimate concern that if orders are made for the children to spend face-to-face time with the father that the mother’s parenting capacity will be further diminished. This is of particular concern in circumstances where the mother has been the sole carer for the children for a period of approximately two years.
102.Insofar as counsel for the father argued that it was necessary for the Court to make an assessment of the reasonableness of the mother’s response, the Court has had regard to the admissions set out in the father’s affidavit sworn on 6 November 2013, and in particular those admissions relating to the parties’ sexual relationship. Those admissions establish that the father has:
·made sexually inappropriate remarks to the mother including in respect to an infection affecting her genital region;
·applied pressure on the mother to engage in sex and engage in sexual practices that she was not comfortable with;
·pressured her to look at pornography;
·pressured her to engage in sexual activity with a third person (albeit without the act being carried out); and
·engaged in a sexual activity to the point where the father said he was able to rely on his professional expertise and experience to ensure there was no risk of “aspiration.” That act nonetheless caused the mother to vomit.
103.There is a substantial dispute as to whether the father has engaged in physical violence towards the mother and/or the children. No conclusion has been made about those allegations in these interim proceedings. Leaving aside that issue, there is sufficient evidence to conclude that there is a real risk that the mother will experience such anxiety about the prospect of the father having contact with the children that it may impact upon her parenting ability. While it is a matter to be determined at final hearing, it is arguable that the mother’s response to the conduct that has been admitted by the father is not unreasonable.
104.The father’s affidavit sworn on 6 November 2013 and the handwritten letter left by the father for the mother on or about 19 September 2013,[14] are suggestive of bona fide acknowledgement and expression of remorse on the part of the father in respect to the conduct that he has admitted to.
[14] Annexure “C” to mother’s affidavit sworn on 9 September 2015.
105.There will, however, be a live issue at final hearing about the sincerity of that acknowledgement and remorse in light of more recent Facebook entries posted by the father. Those Facebook entries are attached to the mother’s affidavit sworn on 9 September 2015. In particular:
·in January 2015 the father posted a Facebook entry which, agreed with the Facebook entry of his current partner which accused the mother of “stupidity and cruelty” ;
·in April 2015 the father promoted a website titled “Stop False Allegations of Domestic Violence”;
·in December 2014 the father posted a Facebook entry which while not mentioning the mother referred to “Catholics who fake domestic violence to cover up an extra-marital affair with a work colleague”; and
·on 26 January 2015 the father posted a further entry referring to “all those that fake domestic violence for their own selfish and sinister motive” and that such people constituted “a few horrible individuals”.
106.The question of acknowledgement and remorse on the part of the father is of particular relevance because, at the final hearing of this matter, the Court will be required to give consideration to those matters which are set out in paragraph 31 of the decision of the Full Court in Blinko. That is, in assessing the question of risk the Court is required to consider any possible steps to mitigate against that risk including, for instance:
·Introducing, on an interim basis, some closely supervised time between the children and the father with adequate counselling supports, and after some period of time reviewing the efficacy of such arrangements; and
·Requiring the mother and [children] to engage with appropriate therapists with a view to preparing the children for re-unification counselling with the father.
107.From the mother’s point of view, it is necessary for the mother and her legal advisors to appreciate that the Act refers to the “right” of a child to be “spend time on a regular basis” with both parents (section 60B(2)(b)). As noted, that right clearly must be seen in the context of the overriding obligation to protect the child from physical or psychological harm.
108.Nevertheless, clear and cogent evidence is required for the Court to make appropriate orders, applying for an indefinite period, which deprive a child of the right to spend time with both parents. As noted by the Full Court in Blinko, that evidence should address issues of possible amelioration of risk.
109.Helpfully, at the interim hearing, the parties took a responsible position in respect to the issues to be submitted to Dr Q in the context of her preparing an updated Single Expert Report. Those issues will include possible measures that may ameliorate the risk to the children. Such measures may, include, for instance, the possibility of the father and/or the mother undergoing appropriate counselling or therapy in respect to the father’s conduct on the one hand and the mother’s anxiety on the other.
110.Until such time as the updated Single Expert Report concerning those matters is before the Court, it is not possible to adequately address those broader issues of possible amelioration of risk through professional supervision and/or therapeutic intervention.
111.Accordingly, in these interim proceedings the Court will not disturb the parenting arrangements that are currently in place between the parties save insofar as Orders will be made to address issues of telephone etiquette and the provision of presents, as recommended by the ICL, and also include a prohibition on the parties discussing this litigation with the children, as proposed by the father.
112.For all of these reasons the Court makes the Orders as set out above.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 3 November 2015.
Associate:
Date: 3.11.2015
4
1