Jephson and Tomcic
[2019] FamCA 186
•29 March 2019
FAMILY COURT OF AUSTRALIA
| JEPHSON & TOMCIC | [2019] FamCA 186 |
| FAMILY LAW – CHILDREN – Parenting – where the children, presently aged eight and nine, live with the mother – where it is accepted that it is in the children’s best interests the mother continue to have sole parental responsibility for them and that they continue to live with her – whether the children spend time with, or have any communication with the father – where the children have had no contact with the father since January 2012 – where the father’s past violent behaviours, history of drug use and mental health instability are such that time with him would place the children at significant risk of harm – where it is ordered that the father spend no time with the children and have no communication with them. |
| Family Law Act 1975 (Cth) |
| Banks v Banks (2015) FLC 93-637 Cox v Pedrana (2013) FLC 93-537 McCall v Clark (2009) FLC 93-405 Vigano v Desmond (2012) FLC 93-509 |
| APPLICANT: | Ms Jephson |
| RESPONDENT: | Mr Tomcic |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
| FILE NUMBER: | BRC | 1892 | of | 2016 |
| DATE DELIVERED: | 29 March 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 4 and 5 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Green |
| SOLICITOR FOR THE APPLICANT: | BGM Family Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Downes |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
All previous parenting orders are discharged.
The children X Tomcic, born in 2009 and Y Tomcic, born in 2011, live with the mother.
The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the children.
The father spend no time with the children and have no communication with them.
The father is hereby restrained and an injunction issue restraining him from communicating or attempting to communicate with the mother or the children and approaching within or remaining in an area within 200 metres of:
(a) the mother or the children; and
(b) the residence of the mother or children; and
(c) the place of employment of the mother; and
(d) the place of education of the children.
The father is hereby restrained and an injunction issue restraining him from removing the children X Tomcic (a male), born in 2009 and Y Tomcic (a male), born in 2011, from the Commonwealth of Australia.
Until the Registrar of the New South Wales Registry of Births, Deaths and Marriages gives effect to any request by the mother to change the children’s names, the names of the children X Tomcic (a male), born in 2009 and Y Tomcic (a male), born in 2011, be placed on the Family Law Watch List until the Court orders the removal of the same.
The Court approves, pursuant to s 28(3)(c) of the Births, Deaths and Marriages Registration Act 1995 (NSW), that X Tomcic’s name (born in 2009) be changed to X Jephson.
The Court approves, pursuant to s 28(3)(c) of the Births, Deaths and Marriages Registration Act 1995 (NSW), that Y Tomcic’s name (born in 2011) be changed to Y Jephson.
To the extent that it might be necessary, the mother has liberty to make sole application to the Registrar of the New South Wales Registry of Births, Deaths and Marriages under s 28(3)(c) of the Births, Deaths and Marriages Registration Act 1995 (NSW), to have the Registrar note the changes to the formal record of X Tomcic’s birth in terms of the declaration in Clause (8).
To the extent that it might be necessary, the mother has liberty to make sole application to the Registrar of the New South Wales Registry of Births, Deaths and Marriages under Section 28(3)(c) of the Births, Deaths and Marriages Registration Act 1995 (NSW), to have the Registrar note the changes to the formal record of Y Tomcic’s birth in terms of the declaration in Clause (9).
X Tomcic (born in 2009) shall be known for all purposes as “X Jephson” and the parents are restrained from using or being party to or compliant in the use of any other surname for the said child.
Y Tomcic (born in 2011) shall be known for all purposes as “Y Jephson” and the parents are restrained from using or being party to or compliant in the use of any other surname for the said child.
In the event that the Registrar of the New South Wales Registry of Births, Deaths and Marriages gives effect to any request by the mother to change the children’s names in the formal record maintained pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW), the names of the children X Jephson (a male), born in 2009 and Y Jephson (a male), born in 2011, be placed on the Family Law Watch List until the Court orders the removal of the same.
The Independent Children’s Lawyer make all arrangements necessary to have Ms D meet with the children as soon as reasonably practicable in order to explain this Order to them.
In order to facilitate the children meeting with Ms D as ordered in Clause (15) of this Order, the mother ensure that the children attend on Ms D at the time and place advised in writing by the Independent Children’s Lawyer.
The Independent Children’s Lawyer has leave to provide a copy of the Reasons for Judgment delivered 29 March 2019 to Ms D.
The mother has liberty to provide a copy of the Order made 29 March 2019 and the Reasons for Judgment delivered 29 March 2019 to the school at which the children attend and also to any therapist upon whom she and/or the children attend for the purpose of family therapy or other supportive therapy.
In the event that there is a requirement that the father sign any document or instrument so as to give effect to the terms of this Order, a Registrar of the Court may, pursuant to s 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document or instrument so as to effect compliance with this Order.
The Independent Children’s Lawyer is discharged after complying with Clause (15).
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
AND IT IS FURTHER ORDERED THAT
All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
AND IT IS FURTHER ORDERED THAT
In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jephson & Tomcic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1892 of 2016
| Ms Jephson |
Applicant
And
| Mr Tomcic |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On an evening in January 2012, the Respondent father assaulted the Applicant mother: I accept that, having attended uninvited at her home at night with a request that she give him money, he pulled her up from a seated position by her hair, slapped her about six times across the face and repeatedly punched her to the head. I accept that the mother’s nose was broken, that she suffered bruising to both of her eyes and along one side of her jaw and that his attack resulted in a large lump forming on the right side of her forehead. I accept that his attack caused her to bleed to such an extent that video footage[1] taken by police after their attendance at her home that evening[2] captured blood staining on the couch on which she was sitting when he attacked her.
[1] Videos recorded at 12.14 am and 12.19 am on the morning after the assault in January 2012.
[2] Exhibit 1.
I am not persuaded that the mother struck the father with her handbag at any time on this evening. Even if I am wrong in arriving at this conclusion and she in fact struck him with her handbag before he assaulted her in the manner just described, the severity of his response is obviously completely disproportionate to being hit by a handbag.
I adopt his terminology and accept that he “lost it”.
I am also persuaded that X (the parents’ then nearly two and one-half year old son) was sitting on his mother’s lap at the time of the father’s unprovoked assault and that he was injured as a consequence of his father’s actions: I accept that he suffered a small haematoma to the back of his head. I accept that Y (the parents’ then ten month old son) was not physically injured by the father during this attack.
I accept that, during this assault, the mother thought that the father was going to kill her and X. I also accept that, from his presentation that night (which I accept included pacing and yelling and frothing at the mouth and bouncing about), the mother thought that the father had been using a significant amount of drugs before he arrived at her home. Given his admitted history of using illicit substances, such conclusion is certainly not an unreasonable one. I accept the father’s evidence during cross-examination to the effect that he was significantly under the influence of alcohol when he decided to drive his mother’s car to the mother’s home that night.
I accept that, after he assaulted the mother in January 2012, the father went ‘on the run’ for about a week before handing himself in to the police. I accept that, during this time, both the mother and the maternal grandmother were very worried that he might seek the maternal grandmother out and harm her; I accept that the maternal grandmother was very worried that the father might “come for me”.
I accept that, after she was assaulted by the father in January 2012, the mother and the maternal grandmother were told by a police officer that if they did not get the mother away from the area in which she and the father were then living, police would be going to a homicide “the next time”. I think it much more likely than not that hearing this from a police officer is something the mother and the maternal grandmother are unlikely to forget.
I accept that, after the January 2012 assault, the mother and children first lived in a refuge; I also accept that, after about six months, the mother relocated with the children to live in Queensland at an address that was not disclosed to the father. I accept that the mother changed her telephone number and later ensured that the children were known at educational facilities they attended by her surname, rather than the father’s surname which appears on their Birth Certificates.
I accept that the January 2012 assault was not the first occasion on which the father had behaved aggressively toward the mother and/or members of her extended family and friends during their approximately four year cohabitation (which I accept began in about April 2007 and ended finally in about November 2011). I accept that his aggressive behaviour included him engaging in physical, emotional and verbal abuse of the mother and that, on occasion, she sustained physical injury as a result. I also accept that the father’s violence toward the mother included him making threats to harm members of her family and that the making of such threats caused the mother to be fearful of him and to feel that she had to comply with his demands of her. I accept that, on occasion, the father broke lamps in the home and punched holes in the walls; I also accept that, on occasion, he spat in the mother’s face. I accept the mother’s evidence to the effect that the father’s violent and aggressive behaviours toward her, and in the home generally, were more intense when he was under the influence of illicit drugs and alcohol.
I accept her evidence to the effect that his use of illicit drugs and, on occasions, excessive use of alcohol were regular recurrences during the parental cohabitation.
I also accept that, after a “no contact” domestic violence order was made after Y’s birth, the mother participated in some counselling with the C Group but, following the father’s entreaties that he had nowhere else to live and his promises that things would change for the better, she applied to vary the Order to remove the prohibition against contact.
I do not join in the father’s interpretation of the behaviour to which he was subjected after he returned to live with the mother in her home: that is, I do not regard the efforts by the maternal grandmother to alert authorities in an attempt to act protectively toward the mother constituted her “interfering” in the parents’ relationship; further, I consider it much more likely than not that any “threats” made to the father that he would be arrested and sent to prison arose as a consequence of his violent, aggressive and controlling behaviours toward the mother.
I accept the father’s admission to Ms D (who authored two Family Reports to assist the Court in this matter) that he had threatened the mother’s friend and asked her to leave them alone and that he had been charged with making a threat to the maternal grandmother over a telecommunications line.
Whilst I think it more likely than not that, on occasions, both parents yelled at each other, I am not persuaded that the mother engaged in violent behaviour toward the father as alleged in his case.
I accept that the father’s behaviours before the January 2012 assault included the following:
a)on 8 September 2008: after a disagreement about the mother borrowing money from her parents, he lost his temper and screamed that her family were “useless” and “money hungry cunts”; he spat in the mother’s face twice before he smashed a lamp and punched a hole in the lounge room wall; he said he would kill himself and hit himself in the face approximately ten times: after the police attended, they applied for and obtained an Apprehended Violence Order on which the mother was named as the aggrieved spouse; and
b)telling the mother, after the incident on 8 September 2008, that she had to go to the police and arrange for the AVO to be discharged and that, if she did not do so, he would arrange for her parents to be beaten up by one of his associates and for their property to be damaged by pouring concrete down the drains: I accept that the mother believed the father’s threats and agreed to his demand; and
c)on 17 October 2010: when at the mother’s home and having been asked by her to pay some of the bills, he approached the mother, put his face close to hers, ground his teeth and said “that would be right you fucking cunt of a thing. I’m not paying a fucking cent you putrid cunt”; after making this statement, he punched two large holes in the gyprock wall: I accept as more likely than not that X was standing next to the father when he punched his hand through the wall; I also accept that, when the mother picked an upset X up, the father approached her and spat in her face and X’s face and told her that “If anything happens to our son, I will put a bullet in your head”; and
d)in early 2011: when the maternal grandmother visited the mother’s home, he shouted to the mother to “get rid of her” (referring to the maternal grandmother) and told the maternal grandmother to get away and that she would never see her daughter (the mother) and her grandchildren (the children) again; I accept the maternal grandmother’s description that the father was angry and spoke in an aggressive tone and that his behaviour toward her (the maternal grandmother) left her terrified, shaking and crying; and
e)during the later stages of the parental cohabitation: he called the maternal grandmother late at night on her landline and said words to the effect “You fucking cunt, leave my family alone” and then called again on her mobile and left a message in words to the following effect: “You stay the fuck away from me and [Ms Jephson], you fucking cunt, I’ll put you in your grave you fucking cunt.” I accept that it is more likely than not that he repeated these assertions to the maternal grandmother a few times during the second call; and
f)on about 23 January 2011: he told the mother that he would go to the home of her sister and her husband, tie them up and rape her nieces in front of them (her sister and her husband); he told the mother “I’ll watch them beg for their girls. That way they’ll know how desperate I felt not seeing X for three months”; and
g)on about 23 January 2011: he called the mother’s friend, Ms B, and said words to the effect of “I will kill you”; he called again and left a message with words to the effect: “You’re finished. You dead cunt. Answer your fucking phone and talk to me before I shoot you in the fucking face.” I also accept that he then called the maternal grandmother and said words to the effect of “I’m going to put you in your grave, you old cunt”.
I accept that, as a result of his January 2012 assault of the mother, the father was subsequently sentenced to a term of 12 months’ imprisonment, with a non-parole period of six months.[3] I accept that, after he was released from prison on parole in about July 2012, he was required to attend a 10 week (20 sessions) domestic violence course as a condition of his parole; I also accept that he completed a course intended to address his drug use and rehabilitation. The benefit to him of participation in the 10 week (20 sessions) week domestic violence course will be the subject of later comment.
[3] The offences for which he was sentenced were assault occasioning bodily harm and destroying or damaging property.
I accept that, on 24 May 2016, a Protection Order made at Suburb E Magistrates Court named the mother as the aggrieved and father as the respondent. The maternal grandparents and both children were also named on this Order as persons protected by its terms. I also note that the mother obtained a Temporary Protection Order against the father on 30 November 2018 (and that this Order continues in force until a further order is made) on the same terms as the previous Order and that the contested hearing of the application was to occur sometime in March 2019.
I accept that, save for appearances associated with legal proceedings between them, the mother has not seen the father, spent any time with him or otherwise communicated with him since the January 2012 assault.
What needs to be determined?
It is accepted that nine year old X[4] and eight year old Y[5] – neither of whom have seen their father since his January 2012 assault of their mother – will continue to live with their mother in Queensland at an address that has not been disclosed to the father. It is accepted that it is in their best interests that their mother continue to have sole parental responsibility for them.
[4] Born in 2009.
[5] Born in 2011.
Given the absence of time between the children and their father since 2012 and the fact that the mother has, since then, made all parenting decisions relating to them (including those which fall within the definition of “major long-term issues” provided in s 4 of the Family Law Act 1975 (Cth)), the agreement about the parent with whom the children will live and in whom parental responsibility will repose does nothing more than appropriately reflect the reality of the children’s lives.
Even if this had not been agreed, I consider according the mother sole parental responsibility for the children to be an order obviously in their best interests.
Whilst X may retain some memories of his father, it is clear that Y does not have any memory of him at all; in fact, it seems that, from Y’s perspective, the mother’s partner, Mr F, is his father. I accept that this situation has arisen despite Mr F and the mother both encouraging both children to refer to Mr F by his first name and despite both children knowing that Mr F is not their biological father. Given Y’s age when his parents separated and the duration of time over which Mr F has been present in his life, his view of Mr F as his “dad” is completely understandable.
What remains in dispute is whether it is in the children’s best interests for them to spend any time, or have any communication, with their father at this stage of their lives.
The mother’s proposal
The mother contends that it is not in either of the children’s best interests for either of them to spend any time or have any communication with their father; she seeks orders to ensure that the children not spend any time with their father and have no communication with him and that he be restrained from approaching her, her place of employment, the children, their residence and their schools. She also seeks that her address, contact details and other particulars be suppressed.
She proposes that it is declared that it is in the children’s best interests that, in the future, they are known by the surname “Jephson” (rather than “Tomcic”) and that she be at liberty to make sole application to the Registrar of the New South Wales Registry of Births, Deaths and Marriages to have the Registrar note this change to the formal record of the children’s births. She asserts that such orders are in the children’s best interests because the children have used, and been known by, the surname “Jephson” since the parental separation; I accept that, after separation, the mother enrolled both children in school and day-care using the surname “Jephson”, that both are known by that surname and that they both know and write their surnames as “Jephson”; it is advanced that to require them to use the father’s surname, which appears on their Birth Certificates, would, in essence, require them to adapt to using a name other than that by which they now recognise themselves and by which they are known in their interactions with the world at large.
The mother also seeks that the father is restrained from removing the children from the Commonwealth of Australia and that the children’s names are placed on the Family Law Watch List to facilitate the implementation of this injunction.
The father’s proposal
I accept that, when he spoke with Ms D on 11 January 2019, the father told her that he did not want to upset the children or their routine and wanted them to be comfortable about meeting him.
At the hearing, the father explained that he proposed that the children initially spend supervised time with him – at a frequency of one visit per month, which would involve him travelling from his home in the City G environs to Brisbane. Thereafter, he proposed they spend time with him during the school holiday periods. His proposal was no more particular than this; I think his position can fairly be summarised to be that, whilst he seeks the opportunity to get to know the children under supervised conditions for a period of time, he ultimately wants them to spend unsupervised, consecutive-nights time with him at his home in the City G environs.
Whilst the father initially opposed the mother’s proposal to change the children’s surnames from “Tomcic” to “Jephson”, he did not really maintain this position during his cross-examination: his focus was very much on advancing that he simply wants the opportunity to see his sons and to get to know them.
Whilst not explicitly expressed by the father, it was clear to me that an important aspect of his case is that he is currently responsible for the day-to-day care of Z, his almost four year old daughter with a former partner (Ms H). Whilst an interim order made on 30 May 2018 provided that Z live with her mother and spend time with her father (supervised by the paternal grandparents), the current operative interim parenting order for Z is that she live with her father. This significant reversal in Z’s parenting arrangements occurred after she was admitted to hospital with severe burns, suffered whilst in her mother’s care.
It is relevant to record that the May 2018 interim order contains notations in the following terms:
“The Independent Children’s Lawyer does not consider that he is in a position to support the court making the above Orders 1-6 because of ongoing concerns in relation to the father’s capacity to care for the child. The parents have both asked the court to make the orders and the court in the making of the orders because the matter cannot remain in the court system indefinitely if the parents are not in dispute and it is better for the child if there are some orders in place rather than none because if there is not one parent could unilaterally locate the child’s place of residence among other things which would be worse for the child. If the parties or the child come to the attention of the Department of Family and Community Services in the future then they should not assume the court made these order because it has made findings about the level of risk to which the child might be exposed in the father’s care.”
As a consequence of an interim order made by consent between the parents on 4 December 2018, Z currently lives with her father and paternal grandparents in their home; she attends day-care between 7.00 am and about 4.00 pm (according to the father’s evidence when cross-examined) Monday to Friday and is cared for by the father and her paternal grandparents at other times. The father has an order for sole parental responsibility for Z.
Any thought that the Orders made in relation to Z automatically means that any concerns about the father’s parenting capacity, his attitude to parenting, his previous use of illicit substances and his anger and aggression are ameliorated fails to accept the reality that, in Z’s case, the choice the Court there faced appears to have been between continuing to permit her to be cared for by the parent in whose care she suffered serious physical injury or accepting that – at least on an interim basis – she live with the father and her paternal grandparents.
The circumstances for the children the subject of these proceedings are markedly different.
Any thought that the father’s evidence should generally be preferred to that given by any other witness is extinguished by the fact that, for example, despite the contents of the hospital records of X’s attendance there early on 14 January 2012 referring to him presenting with a small haematoma to the back of his head, the father has consistently maintained, including to Ms D, that X was not in the room when he assaulted the mother. In fact, it was only during his cross-examination that he accepted that, as he could not remember much of what happened on the evening of the January 2012 assault, it was possible that he had injured X.
In addition, as the father in effect accepted during the course of his cross-examination, the father’s drug use was such at various times during his cohabitation with the mother that he simply does not recall periods of time or events. Given this and the example referred to immediately above, where there is conflict between the account given by the father of an event and that given by another witness, I prefer the account given by persons other than the father.
The mother’s functioning
It is accepted that the children will continue to live with their mother. It is accepted she was assaulted by the father as outlined above. There was no challenge to the assertion that she has suffered psychological injury as a consequence of that assault. Given these matters, it is, I think, appropriate that I first express my conclusions about the evidence relevant to the mother’s current functioning and the likely impact on her – the children’s unchallenged primary care provider – should it otherwise be thought to be in their best interests to spend time and communicate with their father.
That this issue is the first subject of discussion does not, obviously, elevate it to the same status as the primary considerations of the benefit to the children of having a meaningful relationship with both of their parents[6] and the imperative of ensuring that the children are protected from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence;[7] what it does do, though, is establish the accepted context within which I must consider those considerations mandated by s 60CC of the Act.
[6]Family Law Act 1975 (Cth), s 60CC(2)(a).
[7]Family Law Act 1975 (Cth), ss 60CC(2)(b), 60CC(2A).
I accept the evidence given by Mr F about his relationship with the mother and the children and his support of her. I accept his evidence of his observations of the mother’s demeanour and reactions when the prospect of coming into contact with the father has arisen. I accept that, when he told Ms D in January 2019 about the impact of these proceedings on the mother, Mr F was telling the truth. I accept his account that these proceedings have had a significant impact on the mother in that she has been stressed and has difficulty sleeping when she thinks about the father spending time with the children. I also accept that, from his observations of and interactions with the mother, she lives like the violence the father perpetrated against her happened “just yesterday”.
Attendance on Mr J for counselling: 2016[8]
[8] Affidavit of Mr J filed 31 January 2019.
I accept that the mother and Mr F participated in about five hours of counselling (conducted separately and jointly in person, by phone and via email exchanges) with Mr J in mid and late 2016. I also accept that, in January 2019, the mother attended on Mr J for a further four hours of counselling and that her engagement with him then was an adjunct to the sustained counselling process she has been undertaking with Ms K, a psychologist.
I accept that, when she attended on Mr J in mid-2016, the mother was profoundly anxious about the pending Court hearings and associated processes (such as the Family Report) and the possible outcomes about the children’s care and contact that might result from the involvement of others as decision makers. I accept that she presented as revisiting trauma from her relationship and post-separation matters with the father and as experiencing what Mr J described as “anticipator anxiety and/or trauma” from being required to deal with him as part of the Court process.
I accept that part of the counselling undertaken by Mr J was to inform the mother about the Court and its processes, to demystify reports and to attempt to reduce her anxieties, on behalf of herself and the children, in dealing with the father.
I accept that, during her interactions with Mr J in 2016, the mother expressed what he described as “a robust reluctance or resistance to being compelled to co-parent” with the father; she was also resistant to the father having contact with the children as she did not believe that he had developed insight into his “global dysfunctions” (to quote Mr J) or that he had taken responsibility for past events and his impactful behaviours. I consider it highly unlikely that the father’s evidence during this proceeding, and/or the other evidence about his behaviours since his release from prison in mid-2012, has done anything of significance to change the mother’s views about the father’s lack of insight into his past behaviours – or to persuade her that he has fully accepted responsibility for his abusive behaviour toward her or that he has truly changed in that respect.
I also accept that, during her 2016 interactions with Mr J, the mother described experiencing profound levels of anxiety on the basis of her fear that, through the Court proceedings and/or ordered contact with the children, she would be brought into contact with the father or the children would spend time with him, which, in her view, would place them and/or her at avoidable, unreasonable risk.
I accept Mr J’s unchallenged assessment that, as at 2016, the mother experienced participating in the Court process and/or being asked to consider the children spending time (irrespective of possible attached conditions and supervision) as eroding or compromising her personal sense of security and safety and as disempowering her ability to act protectively of the children.
Attendance on Ms D: the first Family Report interviews in September 2016
I accept that, when Ms D first interviewed her in September 2016, the mother said that whilst, ideally, she would like the children to have a relationship with their father, she did not believe this to be possible because of his history of drug use and the impact this had already had on the children.[9]
[9] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [3.36].
I accept she told Ms D that she believed it would be detrimental for the children to start to have a relationship with a man whom had caused them so much fear. I also accept that she explained that she had worked hard to ensure the children were protected and that she believed that, if an order was made for them to spend time with their father, this would cause them instability.[10]
[10] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [3.38].
I accept that the mother told Ms D that she remained concerned about having to have any future relationship with the father if orders were made to require the children to spend time with him; I also accept that she said she then felt that she had been able to get her life back on track: she had had stable accommodation for the past four years and felt that she was then able to walk the children to school. I consider the latter comment to provide a telling insight into the impact of the father’s behaviours and the January 2012 assault on the mother, even more than four and half years later.
3 April 2017: Dr M assesses the mother
I accept that Dr M, a psychiatrist, interviewed the mother and conducted a mental state examination on 3 April 2017. I accept that she told him that she had experienced anxiety, for which she accessed counselling for about six months between mid-2016 and March 2017.
I accept Dr M’s unchallenged evidence to the effect that, when she presented to him, the mother continued to present with a syndrome of chronic anxiety. I also accept his unchallenged diagnosis that the mother suffers with a chronic syndrome of a form of Post-Traumatic Stress Disorder, which resulted directly from the stressors she experienced during her relationship with the father and, specifically, following the January 2012 assault.
I accept Dr M’s unchallenged evidence to the effect that, whilst the mother’s condition had been treated and was in near total remission, it will “flare up” and she will experience anxiety symptoms if exposed to the “cues, symbols and reminders” of the sorts of life experiences (such as the January 2012 assault) which triggered her to be anxious in the past. I accept his assessment that the mother’s fear of the father amounts to an entrenched pattern of fear and apprehension.
Dr M concluded that the mother did not then need psychology or psychiatry input; he suggested she see her general practitioner once a month to monitor her mental health and response to stressors linked to the legal process.
Attendance on Ms K, psychologist[11]
[11] Affidavit of Ms K filed 6 February 2019.
I accept that the mother has attended on Ms K, a psychologist, after a referral from her general practitioner and pursuant to a Mental Health Care Plan. I accept that she first saw Ms K for an initial consultation on 22 November 2017 and, subsequently, has seen her for psychological counselling on 29 November 2017, 13 December 2017, 28 December 2017, 23 January 2018, 14 February 2018, 11 December 2018, 10 January 2019, 29 January 2019, 5 February 2019 and 28 February 2019.
In her Treatment Summary Report, dated 29 January 2019, Ms K outlined that, when she first met with her on 22 November 2017, the mother presented with symptoms consistent with moderate depression, severe anxiety and severe stress (as assessed by the Depression, Anxiety and Stress Scale: DASS). I accept the mother also reported sleep impairment marked by nocturnal waking, low mood, anxiety and panic symptoms, tearfulness, difficulties regulating her mood, increased arousal and reactivity, persistent feelings of shock and disbelief, intense and disruptive sadness, fear, shame, guilt and a sense of powerless and vulnerability. I also accept that Ms K summarised the information provided by the mother as including that she re-experienced trauma through visual images and nightmares and wondered if she would ever re-establish her psychologic equilibrium and return to her pre-morbid functioning.
Ms K noted that the mother described feeling “panicked” and “frightened” for the children’s safety and wellbeing; further, she was “terrified” the father would harm the children or herself in retaliation and she believed he would use any access to the children or herself to harm the children or herself and try to control her by mistreating and manipulating the children.
I accept that the mother attributed her psychological distress to her fear that she would be unable to ensure the children’s safety and would be unable to protect them from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence perpetrated by the father. Given her experiences of him during their relationship, I consider that her fears are reasonable; I also accept that she holds them genuinely. I have no doubt that those fears cause the mother psychological distress and that they impact negatively on her functioning.
I consider the mother’s wish to protect the children from exposure to the father’s aggressive, unpredictable and manipulative behaviours to be a manifestation of her desire to ensure that they continue to enjoy a sense of stability and calm in their lives and are protected from both physical and psychological harm.
I accept Ms K’ opinion that the mother demonstrated symptoms and behaviours consistent with the DSM-5 symptom criteria for Post-Traumatic Stress Disorder, Major Depressive Disorder with anxious distress (moderate-severe) and Generalised Anxiety Disorder. I accept that it is more likely than not that the January 2012 assault was at least a cause – if not the cause – of the symptoms and behaviours Ms K observed.
I also accept that, despite engaging extremely well in therapy, being diligent in her session attendance and working hard to understand and make changes within her control, the mother has continued to struggle with intrusive thoughts, heightened arousal and symptoms of avoidance. I accept that it is more likely than not that these are the effect of being required to contemplate that the children might be required to spend time and communicate with the father and that, consequently, she will be required, in whatever way, to resume a relationship with him, albeit one of co-parenting.
I also accept that the requirement to attend Court has likely contributed significantly to the mother experiencing what Ms K described as a “high state of emotional arousal”.
I accept that the mother intends to continue to see Ms K and that her current plan is to meet with her every two to three weeks until June 2019, at which time she will be assessed again. It will be then that a decision will be made about the necessity for her to continue to participate in treatment with Ms K.
I accept Ms K’ unchallenged opinion to the effect that the impact of any communication with the father will cause the mother significant psychological distress and will be highly likely to have a serious and damaging negative effect upon her emotional and psychological health. I also accept Ms K’ unchallenged opinion that this significant psychological distress will impact adversely upon the mother’s capacity to provide ongoing emotional and psychological care for the children.
I accept Ms K’ unchallenged opinion to the effect that any Orders which enable the children to be solely in their mother’s care will increase her capacity to continue to provide for the children’s psychological and emotional development without interference from their father.
I accept Ms K’ unchallenged opinion to the effect that, if it is concluded that it is the children’s best interests to communicate with their father, such communication should be closely supervised, occur via a third party and that the father should not have any direct communication with the mother.
Attendance on Mr J for counselling: 2019[12]
[12] Affidavit of Mr J filed 31 January 2019.
I accept that the mother was truthful when she recounted her experience of dealing with the father at the 18 January 2019 Suburb N Magistrates Court protection order hearing to Mr J. I accept her evidence that seeing the father on that occasion resulted in her having an anxiety attack, which was manifested by her shaking, having difficulty speaking, having a dry mouth, feeling like her thoughts were scrambled, that she could not think and then feeling numb. I accept as more likely than not that, after attending at the Court that day, she felt physically and emotionally drained and exhausted.
I accept Mr J’s unchallenged opinion to the effect that the mother has been left with residual trauma and anxieties as a consequence of the January 2012 assault by the father[13] and also consequent upon the episodic coercive and other forms of domestic violence and abuse I accept he (the father) perpetrated against her during their relationship.
[13] Whilst Mr J understandably referred to this as a “contended physical assault by (the father)”, it is accepted that it occurred.
I accept Mr J’s unchallenged opinion to the effect that it is reasonable to suggest that any contact between the father and the children and any associated requirement that the mother have contact or communicate with the father will likely challenge her global, personal, relationship and parenting functioning.
I also accept that any contact between the father and the children and any associated requirement that she have contact or communicate with the father will, more likely than not, compromise the mother’s capacity to provide optimal parenting care for X and Y.
I also accept Mr J’s unchallenged opinion to the effect that any attempt to compel the mother to co-parent the children with the father and/or to facilitate them spending time with him is attended by “profound uncertainties and/or risks” about, and to, her capacity to deal with the adjustment challenges associated with such an outcome. I accept that he formed this opinion despite the mother having counselling and other supports in place and despite the fact that she has been actively managing her mental health and functioning, including her residual trauma and anxiety.
I accept that the mother is not currently taking anti-anxiety and/or anti-depressant medications and that she has been using natural and therapeutic substances or aids to assist her in her attempts to maintain her emotional and psychological equilibrium. There is nothing in the evidence to suggest that the mother has failed to approach her management of her mental health in the circumstances surrounding this litigation in anything other than an appropriate way.
What parenting orders are in these children’s best interests?
I may, subject to s 61DA[14] and s 65DAB[15] and Division 6 of Part VII of the Family Law Act1975 (Cth) (“the Act”), make such parenting order as I think proper.[16] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[17]
[14] Presumption of equal shared parental responsibility.
[15] Parenting plans.
[16] s 65D of the Act.
[17] s 60B of the Act.
Given the father’s assault of the mother in January 2012, the presumption that it is in X and Y’s best interests for their parents to have equal shared parental responsibility does not apply. Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the children’s best interests being the paramount consideration).[18]
[18]Cox v Pedrana (2013) FLC 93-537 at [19]; See s 60CA and s 65AA of the Family Law Act 1975 (Cth).
In deciding whether to make a parenting order, I must regard X and Y’s best interests as the paramount consideration.[19] The considerations to which regard must be had in determining those parenting orders which are in the children’s best interests are prescribed by s 60CC of the Act. The requirement to “consider” each of these matters involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[20] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X and Y’s best interests; I have given heed to, and reflected on, all of the relevant considerations in arriving at my conclusions about those orders which are in their best interests.
The benefit to the children of a meaningful relationship with both parents[21]
[19] s 60CA and s 65AA of the Act.
[20] Banks v Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.
[21] ss 60CC(2)(a) of the Act.
The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how children’s parents have, or should have, a meaningful involvement in their lives.
In McCall v Clark[22], the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents. Thus, the Court must consider and determine whether there is a benefit to each of the children in having a meaningful relationship with each of their parents: this finding is not dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with the parents. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the imperative of protecting X and Y from physical or psychological harm.[23]
[22] (2009) FLC 93-405
[23]Vigano v Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Given the father’s drug and alcohol abuse, his attitude to the mother as demonstrated by his behaviours toward her during their relationship, his underlying attitude toward women as demonstrated by his comments to the mother, the maternal grandmother and Z’s mother, his propensity to react aggressively when challenged or when he feels that his needs are not being met as he thinks they should be (as demonstrated by his communications to the mother and the maternal grandmother and Z’s mother) and that he most recently sought out an illicit substance in October 2018, I am not persuaded that either X or Y will benefit from the opportunity to interact with him or form a relationship with him.
In my view, any benefits which the children might theoretically gain from the opportunity to spend time with their father are outweighed by the likely disruption to them and their functioning. I consider that exposing the children to their father and his lifestyle and his views about women and the way in which it is appropriate to interact with the world generally would most likely simply expose them to the upheaval, violence, arguments and drug use which have been regular and frequent features of his life to date; it would also mean that these children – whom, as a consequence of their mother’s actions after she was assaulted in January 2012, have to date been shielded from exposure to the same – would be exposed to the reality of their father’s behaviours and attitudes. I am not remotely persuaded that they would benefit from such exposure.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[24]
[24] ss 60CC(2)(b); 60CC(2A); 60CC(3)(j) of the Act.
Given the father’s evidence about what he learned from the course he attended whilst on parole, his evidence that he sought out illegal drugs as recently as October 2018, that he has not attended to the recommendations made by Dr M in May 2017 (being that he see his GP once a month to monitor his mental health and response to stressors linked to the legal process, career transition, and to manage his physical medical issues; never use illicit drugs again; attend at a clinic that specialises in the management of Substance Use Disorders and implement a ten year management plan of abstaining from illicit drug use),[25] I am not persuaded that the children would not be at an unacceptable risk of suffering harm through exposure to him under the influence of illicit substances if they were to spend unsupervised time with him – a prospect that he advances as the natural consequence of starting the process of forming a relationship with him.
[25] I note that Dr M’s opinion was that, as the father had a ten year history of illicit substance abuse, his plan for abstinence needed to encompass the same duration.
Further, I consider that there remains a risk that, if afforded the opportunity to learn of the mother’s whereabouts and a method by which she may be contacted, the father may well engage in the type of vitriolic threatening, demeaning and aggressive communication toward her that he has relatively recently continued to express toward Ms H and which he has historically conveyed to both the mother and the maternal grandmother. Given the evidence of Ms K, Mr J and Dr M, I consider there is a significant risk that re-exposure to the father’s style of communication would deleteriously impact on the mother’s capacity to meet the children’s emotional and psychological needs.
X: his views and his relationships with each of his parents[26]
[26] ss 60CC(3)(a) of the Act.
When first interviewed by Ms D on 14 September 2016, the mother described X as a “reserved” child who liked to know his mother was okay; he was at school and doing reasonably well but had some behavioural issues (an example of which was that he exposed himself) in his Prep year. The mother said that she had linked X to a psychologist to address the behavioural concerns.[27] I also note that she and Ms D discussed whether his behaviours were, possibly, age-appropriate.
[27] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [3.25].
I accept that the mother told Ms D that X still complained of suffering nightmares; he knew his father went to prison; he remembered part of the assault but never spoke about his father and never asked to see him or for her to tell him things about his father; she said she had told X who his father was, but they had no photographs of him in their home.
When Ms D first interviewed X on 14 September 2016, he was about seven years old. She considered that, whilst he seemed interested in knowing his father, he appeared ambivalent about his family dynamics and who his father actually was.[28] When Ms D asked X if he had any other family that he was close to, he said “We don’t have a dad anymore.” When asked if he knew any information about his father that he would like to tell her he said “He did something bad to mum.”
[28] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [2.4].
Ms D said she tried gently to encourage X to talk to her so she could assess what he remembered about his father; she asked X if he knew what the bad thing was and he said “He punched mum in the face.” When Ms D asked X if he saw this himself or if he was told this by someone, he told her he thought he could remember something about it, but his mother had also told him this when he asked her once.[29]
[29] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [5.7].
X also told Ms D that he would like to see his father one day but said “You might not be able to find him as mum doesn’t have his phone number.” She thought he appeared interested in seeing his father but, as she spoke with him more about the father, his body language indicated some anxiety and uncertainty.
Ms D considered that X may be interested in seeing his father so he could see who he was and fill in the gap in his mind about what his father looked like and who he was; however, given the anxiety he appeared to display, she asked him if he thought it would be a good idea to try and get some photographs of his father so he knew what he looked like. She said X thought this was a good idea and said he would like this to occur.[30]
[30] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [5.8].
When interviewed again by Ms D on 8 January 2019, the mother advised that X had been having difficulty regulating his emotions; despite this, she did not have any concerns about his social development and said that he did not display any major behavioural concerns; she said that both children had seen a psychologist through the school and that she periodically checked in with the school guidance officer, with whom both children had developed good rapport. The mother told Ms D that, after the first Family Report interviews, X had asked her where his father was; she told him that he was 10 hours’ drive south of City O; when he asked her if his father had hurt her, she told him that he had.
When Ms D spoke with nine and a half year old X, he said he loved his mother very much and got on well with Mr F; he said he could not remember what his father looked like and could not remember when he last saw him. He told Ms D that he knew that his father badly hurt his mother, but then added “I think it was an accident.” When Ms D asked him why he thought that, he said he just thought it might have been. She said that it appeared to her that he did not want to think that his father could do something so hurtful on purpose.
X told Ms D that he would like to visit his father and perhaps go to his house on a week about arrangement; when she spoke further with him, it appeared that he might have heard this from other children at his school whom lived with their parents on a week-about arrangement; after discussion about the practicalities of this, given that the father lives a long way away from City O and that he does not know him, X told Ms D that he had been wanting to see his father since he was six years old and thought it should happen.
Given that I accept that X loves his mother very much, I think it more likely than not that he would not want anything to happen to cause her upset, stress or anxiety; I think it more likely than not that, if he appreciated the almost inevitable impact on her functioning of any requirement that he and Y spend time with their father, he may have been more tempered in expressing his wish to see his father.
In any event, given the context of X’s most recent comments to Ms D, I am not persuaded to attribute much weight at all to his comments to her. Whilst I accept that he has expressed a wish to see his father, it is likely that this wish has arisen in the context of exposure to peer comments; I also consider that his wish to see his father has germinated in the absence of full appreciation of the violent assault perpetrated by him on his mother and in the absence of any real appreciation of the impact on her of that assault. The reality for X is that neither he nor Y have any actual appreciation of their father’s past or current behaviours or of his unpredictable, angry, abusive and, on occasions, threatening behaviours toward other adults; they have no experience of seeing him under the influence of illicit substances or excessive alcohol or of hearing him make derogatory and abusive comments to their mother.
Y: his views and his relationships with each of his parents[31]
[31] ss 60CC(3)(a) of the Act.
When first interviewed by Ms D on 14 September 2016, the mother described Y as a bright boy who was always happy; he had a “large” personality and, despite initially adjusting slowly to Prep in 2016, ultimately adjusted well to the same:[32] he had met all of his developmental milestones and was a healthy child who ate and slept well.[33]
[32] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [3.27].
[33] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [3.28].
When he was interviewed by Ms D on 14 September 2016, Y (then about 5½ years of age) told her “I don’t have a dad”; he added that his mother had a boyfriend called Mr F but “Mr F isn’t my real daddy”. When asked by Ms D if he wanted to tell her anything more about this and other family, he said “No thank you”.
Ms D concluded that, not unusual given his age when his parents separated, Y appeared to have little knowledge of who his biological father was.[34] I accept her assessment.
[34] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [5.4].
Ms D noted that Y appeared to be a happy little boy who, once he started speaking, quickly settled and appeared less anxious; he knew she was a safe person for him to speak to; he told her there was nothing he felt unsafe about and nothing he wished to change about where he lived. He told her how much he loved his mother and X.[35]
[35] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [5.5].
When Ms D spoke with him for the second Family Report, almost eight year old Y told her that he liked school, had lots of friends and liked the teacher he would have this year; he said he lived with his mum (whose name is Ms Jephson) and his father (whose name is Mr F); he told her that he knew he had another father but did not remember him; he said he did not know anything about his biological father and did not think that his mother and his biological father were good friends.
When Ms D asked him if he thought it might be good to know more about his biological father, he shrugged and said “maybe”; he also said that this might make his mother a bit nervous; when asked why he thought she would be nervous, he said he thought she might get worried. He also said that he had a very close relationship with Mr F, liked doing things with him and they had fun together.
I accept Ms D’ assessment that Y did not appear to be as inquisitive about his father as X and that this was likely due to Mr F having had a major role in his life from a very young age and Y having no recollection of his father at all. I accept she thought Y appeared much more content to leave things the way they are; he referred to Mr F as “dad” but did not appear to be opposed to meeting the father if the Court ordered this to occur.
I accept that, during her sessions with Mr J in 2019, the mother told him that both children had engaged in counselling. I accept her evidence that this was as a result of their school’s recommendation and that the person she engaged to provide counselling to them was the person recommended by their school. I accept the mother’s account that, in X’s case, the recommendation that he attend counselling arose because he was acting out aggressively at school, was presenting as unable to deal with emotions, getting upset with other children and seemingly internalising sadness and externalising anger. I accept her account that the counselling in which she engaged X has assisted him to function as a happier, healthier boy. I also accept that, after changes were made to Y’s class, his embryonic issues with anger management, frustration tolerance and testing behaviour improved and he is now settled in his educational environment.
The father: the relevant s 60CC considerations[36]
[36] ss 60CC(3)(b), (c), (ca),(f), (i) of the Act.
I am not remotely persuaded that his participation in the domestic violence course which was a condition of his parole resulted in the father eschewing the use of violence in his domestic relationship after he was released from prison.
I accept Ms D’ evidence to the effect that the relationship between the father and Ms H (Z’s mother), which began after he was released from prison in mid-2012, has been documented as being characterised by significant violence and drug use. For example, the contents of various records created by those engaged in receiving information under the auspices of various “helplines’ include the allegations that the father had assaulted Ms H and threatened to kill her, Z and the mother; that he had made verbal threats and had behaved erratically.
Whilst Ms H was not a witness in the trial before me, the allegations of verbal abuse and threats to harm are eerily similar to those made by the mother and the maternal grandmother.
That the father’s behaviour toward a domestic partner has not changed significantly for the better after his completion of the course he was required to attend as a condition of his parole may be explained by his evidence about what he learned from participating in the same.
I accept his evidence to the effect that participating in the 10 week (20 sessions) course taught him that he was not as domestically violent as he initially thought he was (that is: he thought he was more domestically violent before he did the course than he concluded he had been after he completed the course) and that domestic violence is not limited to actions of physical and verbal abuse, but encompasses financial, psychological and emotional control.
I also accept that, as a result of attending this course, the father formed the view that, having regard to the broader meaning accorded to “domestic violence”, the mother had been domestically violent toward him during their relationship and cohabitation. His view of himself as a victim of domestic violence and as someone who was not really to blame for his violent actions was certainly consistently conveyed to those who assessed or interviewed him in the course of this litigation.
I think it highly unlikely that those who engaged with the father during his attendance at the 10 week domestic violence course he was required to attend – as a condition of his parole following his sentencing for assaulting a former domestic partner – would regard his expressed learnings as constituting a successful completion of their course.
Given that she heard the father’s evidence about what he learned from his participation in this course, I also consider it highly unlikely that the mother would have gained any reassurance at all from the fact that the father had completed the course he was required to complete as a condition of his parole.
Any residual hope that the father really learned much from the course (as opposed to completing it) is quashed when the following is taken into account:
a)the father continued to tell Ms D and others that he was in fact the victim of domestic violence; and
b)when he was interviewed by Dr M in April 2017, the father told him that he had gone to prison for assaulting the mother back one night after she assaulted him – a description Dr M assessed as being the father blaming the mother by saying that she started it and assaulted him first (my emphasis).
I am not persuaded that the father’s participation in a course no doubt intended to teach him to abstain from behaving in an abusive and threatening way toward a domestic partner has had that effect. So much is easily established when regard is had to the contents of his text communications directed to Ms H as recently as mid-2018. By way of example only, I accept that the father sent a text message to Ms H in the following terms:
a)on 15 July 2016: “You wanna start cunt yeah we texted fuckwit it was about [L] and I got all these texes to prove it come round here cunt I’ll smash you’re fucking face in you wanna play games with my kids and family and talk shit come cunt come ovef I fucking dare u put me on the dog” ; and
b)on 3 June 2018: “I know someone else who used to think they were funny playing with her kids so let me just remind you of who I am I backed my word with everything since you met me til recently I looked after you your kid [W] and everything I don’t fuck around especially when it comes to the kids and if I haven’t proven that already ontop of the last 3 weeks then your even more stupid then I thought you got no idea what lies ahead and I haven’t failed in anything I said I was going to do yet and I don’t talk shit when it comes to real things so what makes you think I still am I wonder and you might wanna seriously consider thinking long an hard about it and wait it out and witness the end result of were a certain other matters heading as we speak before you start trying to play the same games coz your friendly neighborhood watch is always just out your window”;
c)on 29 September 2018:
i)at 10:24am: “So are you working today or what coz I’d like to have the car so I can get out and do something with Z; and
ii)at 10:27 am: “This is exactly why I’m over fucking helping you everytime I do I shoot myself and Z in the foot and put me and her out leaving us stuck at home without anyway of getting anywhere while your probably just sleeping all day and the car sitting out the front I’m fucking done seriously”; and
iii)at 10:37 am: “Fucking answer me or I’ll take MY fucking car back off you for fucking good this time you wanna be a cunt all your life that’s fine but stop letting it affect me and Z”.
I think it much more likely than not that learning of the father’s ongoing threatening and abusive communications to Ms H will only have contributed to the mother’s anxiety; the content of those messages clearly establishes that the father’s behaviour toward his domestic partner has not undergone any significant change in the seven years which have passed since his final assault of her and her separation from him.
In addition to demonstrating aggressive and threating behaviours toward the mothers of his children over a relatively lengthy period of time, the father has also struggled with substances abuse and mental health issues; he has a long history of drug abuse and misuse and has previously threatened to kill himself on a number of occasions. Despite these difficulties, there is nothing in the evidence to suggest that he has formed a therapeutic relationship with a counsellor, psychologist or psychiatrist to assist him to manage his behaviours.
A broad understanding to the extent of the father’s longstanding issues with drug abuse can be gained by reference to the information he provided to Ms D. This included that he started using drugs in his teenage years: initially it was “just” cannabis, but this escalated to using cocaine and injecting speed; he said that, for a few months he injected speed on a daily basis. He also told her that he had a major relapse in 2010, at which time he drank excessive amounts of alcohol (for example, three “long neck” bottles of beer and one bottle of Jack Daniel’s whiskey a night).
When he spoke with Ms D in September 2016, the father told her that he had last used drugs in March 2016; he relapsed and smoked Ice; he also told her that, since being released from prison, he had relapsed a couple of times and used drugs.[37] This information was completely unknown to his mother, whose evidence was to the effect that he had not used any illicit substances since his release from prison in about mid-2012. She also said that his drug use was limited to cannabis when the evidence clearly establishes that is not the case at all; in fact, the father said that his drug of choice is speed.
[37] Affidavit of Ms D filed 9 February 2017, Annexure 1 at [7.17].
I accept Ms D’s opinion to the effect that it is evident that the father has a significant history of drug use, mental health instability and violence. The longstanding nature of the father’s mental health issues can be appreciated when regard is had to the following evidence relevant to that issue.
I accept that the father was taken to hospital[38] on about 8 September 2008 following the incident of domestic violence outlined in paragraph 15(a). I accept that, on presentation, he displayed paranoid ideation and admitted to smoking between 20 and 40 cones of cannabis a day (at a cost of about $250.00/week); he was hyper-vigilant, guarded, described experiencing a pattern of mood swings and had an elevated mood[39] – having reviewed relevant medical records, Dr M summarised that the father had been admitted to hospital on this occasion in the context of substance use, interpersonal relationship problems and threats of self-harm.
[38] Suburb P Hospital.
[39] As noted by Ms D following her review of documents from T organisation, U Town.
I accept that, during an attendance on Dr Q (an adult and forensic psychiatrist) on 24 July 2012, the father reported his mood as being somewhat “up and down”; he said he felt calmer on his medication but also that he feels “a bit too calm”: he told Dr Q he had had anger issues for as long as he could remember and that, when he was angry, he would head butt a wall or have a fight at the pub; he told Dr Q that issues to do with his family “wind him up” and that people had previously called him “a psycho and a loose cannon”. I note that Dr Q said he had seen a psychiatric report by Dr R (dated 10 July 2012) which suggested that the father had bipolar disorder or schizoaffective disorder.
I accept that the father told Dr Q he had seen three psychiatrists while in prison and that he had been diagnosed with bipolar disorder. Whilst the father admitted to some mild paranoia, Dr Q thought there was little in the way of any frank psychotic symptoms; he noted the father had been treated with 750mg bd valproate and mirtazapine 45mg nocte since the start of 2012 and said his medications were working to some extent, but he was not particularly sure that he liked the feeling the medication gave him. It seems that the father also told Dr Q that he had been seeing a psychologist (Mr S) and was seeking drug and alcohol counselling through the public system.
As at 24 July 2012, Dr Q[40] opined that there was something of a “diagnostic dilemma” in that, whilst the father had apparently been diagnosed with bipolar disorder, he thought it possible that he might have adult ADHD given the longitudinal history of his problems, with little in the way of remission in-between.
[40] Correspondence dated 24 July 2012, exhibited to the report prepared by Dr M; Affidavit of Dr M filed 13 June 2017.
I accept that after Ms H and the paternal grandfather contacted police on 3 March 2016 to report their concerns that the father was going to kill himself, he was located in bushland after a four hour search: he had been sleeping and living there and told police that, at about 7.00 pm on 2 March 2016, he took Avanza, Valium and “mercendale” followed by two longneck beers, after which he became lightheaded, could not balance and passed out. I accept that, when police asked him why he had taken the drugs, he said: “I wanted to kill myself”.
I accept the contents of the hospital documents associated with the father’s admission to hospital on this occasion; I accept the father overdosed by taking 20 mirtazapine tablets, 10-20 diazepam tablets, paracetamol and alcohol. I accept the father was homeless at this time and dishevelled when admitted. I accept he disclosed a long history of drug abuse which began when he was 16 years of age; I accept he told hospital staff that he had had multiple appointments with drug services for detoxification. I accept he reported using speed, Ice and cannabis. I also accept that he admitted to multiple relapses of drug use since his release from prison. Whilst he denied to those who first attended to him in the Emergency Department of the hospital that he had taken illicit drugs to precipitate his attendance there on that occasion, I accept that he told hospital staff that he had last used Ice four days before he was admitted to hospital.
I note that, when interviewed by Dr M on 4 April 2017, the father told him that his preferred substance was speed (amphetamines), which he had previously used intravenously; he also said he had used marijuana, ecstasy and cocaine and he admitted using amphetamine in March 2016. At the time of interview, Dr M considered that the father’s self-report of his use of alcohol did not raise a clinical concern.
I accept Dr M’s assessment that, in his presentation to him, the father showed no remorse for his assault on the mother; I also accept his assessment of the father as failing to demonstrate the capacity to take any personal responsibility for any trouble or conflict during his personal relationship with the mother. I accept Dr M’s evidence to the effect that the father’s responses to the Psychopathy Checklist (which he explained is a psycho-diagnostic actuarial tool commonly used to assess the risk of antisocial violent behaviour and/or offending) supported a conclusion about the presence of psychopathic features; I also accept that the father’s responses constituted a negative prognostic sign in terms of there being a risk in the future of a recurrence of unlawful behaviour, which could lead to charges or issues of forensic concerns.
I accept Dr M’s evidence to the effect that the father’s responses to the tests he administered suggest that there are permanent immutable aspects of his personality structure that have led to recurrent behaviour, marked by an inability to learn from experience and a failure to take responsibility for his actions.
I accept that, as at April 2017, Dr M considered that, in so far as the father is concerned, the risk of a recurrence of severe behavioural disturbance, forensic issues and domestic violence was high. I accept that he arrived at this conclusion because, at that time, there had not been the passage of sufficient time without the father using “Ice-Speed-Amphetamines.”
Given the father’s admission to last using illicit substances in 2017 and that he actively sought out illicit substances in October 2018, I consider that the risks identified by Dr M remain high: that is, I consider it more likely than not that there is a high risk that the father will again demonstrate severe behavioural disturbances, again engage in and perpetrate acts of domestic violence and resume his consumption of illicit substances.
In particular, I note that, on 28 October 2018, he sent Ms H the following text messages:
a)at 5.10 pm: “Hey don’t suppose you feel like dropping me a little nug”; and
b)at 5:34 pm: “Please do something nice for me for once lol”; and
c)at 6.13 pm “Go fuck yourself mate seriously I’ll fucking remember that fucking dog”; and
d)at 6.15 pm “You’re a fucking piece of shit you’ll do anything for any cunt except me and I’m the cunt who does everything for you well not anymore you want me to turn cunt again you got it”; and
e)at 6.17 pm “Hurry the fuck up and get a new car fucking cunt”.
The father accepted during his cross-examination that a “nug” was a reference to illegal drugs.
I also accept that, as at April 2017, Dr M considered that the father had not demonstrated any capacity for change which would, in essence, make it more likely than not that he would establish any new non-violent, non-threatening and stable patterns of behaviour. There is nothing in the evidence to establish that, in the time that has passed since Dr M formed his opinion, the father has done anything to make it more likely than not that he is capable of engaging in non-violent, non-threatening and stable patterns of behaviour. Rather, the content of his communications to Ms H seem to me to make it much more likely than not that he has simply continued to behave more recently as he has in the past and as he did during his relationship with the mother.
I accept Dr M’s unchallenged assessment that the father has severe and long-term impairments in his capacity to parent the children and that these are the result of his 10 to 13 year history of recurrent amphetamine use interspersed with threats of self-harm and forensic issues. I accept his opinion that the father has a severe Substance Use Disorder, which has had a profound effect on his personal, occupational and social life. I note Dr M considered that the father’s use of illicit substances is inextricably linked to the basic nature of his personality and that any ongoing illicit drug use by the father will severely and unpredictably impair his parenting functions.
On the evidence before me, I also think it much more likely than not that, should the father enter into a new domestic relationship, he will repeat the patterns of behaviour he has previously demonstrated; at present, I assess the risk of a recurrence of domestic violence during any future intimate relationship into which the father may enter as being high.
It is clear on the evidence before me that the father has consistently shown that he has significant difficulty controlling his emotions and behaviours when he feels frustrated; I also consider that it is clear he has a significant history of using illicit substances and that he has previously manifested impulsive, high-risk behaviours in threatening to take his own like and acting on such threats. I accept that, whilst his incarceration in 2012 temporarily resulted in him abstaining from the use of illicit substances, he subsequently returned to using illegal drugs after he was released from jail.
I accept Ms D’s opinion to the effect that, despite having completed the courses about domestic violence and drug use to which reference has already been made, the father has continued to be involved with drugs and has continued to engage in relationships that are characterised by family violence.
The likely effect on the children of changes in their circumstances[41]
[41] ss 60CC(3)(d) of the Act.
I accept Ms D’s September 2016 assessment of the children as polite and well behaved; I accept they were well mannered in their engagement with her and their mother; I accept they were well-groomed and dressed and that neither displayed any developmental concerns
Given that the children have not seen their father for seven years, I accept that neither really knows who their father is as a person. I have accepted that X was exposed to his father’s assault of his mother; I also accept that, when first interviewed by Ms D, he presented as having some understanding of this assault. Whilst X told Ms D in the first interview that his father “did a bad thing” to his mother, his representation of this assault in the second interview was significantly different, in that he then advanced that he thought that what his father had done was an accident. The father’s assault of the mother in January 2012 was anything but accidental.
I consider that there is a real risk that, if X spends time with his father, his view that his father’s actions in doing “a bad thing” to his mother were simply accidental might find reinforcement. I consider that spending time with the father may very well expose X to the idea that his father’s assault of his mother was somehow justified or understandable – these being underlying views which I assess the father to hold. I consider it highly likely that X would experience significant confusion if exposed to such views at this time in his life.
I consider that introducing the father to the children now is attended by the very significant risk that their current stable environment and relatively stable functioning will be deleteriously effected.
Whilst time with the father would enable what Ms D assessed in her first Family Report as X’s need to have information about who his father is and what he looks like (rather than a need to maintain contact with him) to be met, I consider that the risk to the children’s stability and functioning of such exposure outweighs any benefit they might obtain from spending time with their father now.
I consider that any orders for the children to spend time with their father – including supervised time – to be attended by the significant risk that they will experience instability in their primary parenting relationship with their mother as she would thereby be required to enter into a co-parenting relationship (even if very limited) with the person who seriously assaulted her in January 2012 and whose actions toward her caused her to suffer with a chronic syndrome of a form of Post-Traumatic Stress Disorder, as alluded to by Dr M.
Further, given the father’s previous substance abuse, mental health issues and domestically violent behaviours and my conclusions about the magnitude of the risk of recurrence of the same, I consider that spending any time and having any interaction or communication with him would, in essence, expose the children to adverse and harmful behaviours from which they have, to date, been protected.
Other relevant aspects of Ms D’s evidence and further discussion about whether it is in the children’s best interests to spend time and/or communicate with their father
I accept Ms D’s conclusions in September 2016 that there were then significant ongoing risks regarding the father having any form of contact with X and Y. I accept her assessment of a significant history of significant paternal drug use, mental health instability and violence. I note Ms D said that, if the allegations about the father’s past violent behaviours, history of drug use and mental health instability are true, time with him would place X and Y at significant risk of harm. As outlined, I accept that these allegations are true.
I accept Ms D’s evidence to the effect that, given the high conflict, domestic violence, substance use and possible mental health issues and that the children are safe and stable with their mother and do not have a relationship with their father, she was concerned about them spending any time with him, even on a supervised basis.
I accept the emphasis Ms D placed on the children’s needs for consistency, stability and protection from harm and undue stress whilst they develop. I accept her assessment in September 2016 that starting interactions between the children and their father would place the children at risk of instability, because it would force the mother to commence some sort of co-parenting relationship with the father into the future. Nothing in the evidence persuades me that this risk has been ameliorated.
I accept Ms D’s evidence that time between the children and the father would more meet his needs than theirs. I accept that, at their ages, the children’s need for stability and safety is more important to, and for, them than having a relationship with their father. Whilst X’s more recent comments to Ms D suggest he may be starting to place greater emphasis on having a relationship with his biological father, I consider the need to ensure the children are safe and afforded stability as they approach puberty to be greater than any current need to commence a relationship with their father.
I accept that the father’s mental health instability, his history of drug use and history of family violence are too significant to ignore. I note that, in September 2016, Ms D could not support the father having any contact with the children.
I accept Ms D’s more recent assessment that, if it was considered to be in the children’s best interests that they start to build a relationship with their father, the mother would need to be therapeutically supported whilst any relationship between the children and the father occurred. I accept she also thought that before any contact with their father started, the children should attend on a psychologist familiar with Family Court issues (such as Ms V), rather than the school counsellor, to ensure that the process involved in building a relationship with their father occur away from home and school. She also recommended that time would need to be supervised to ensure that the father’s interactions with the children are appropriate and to ensure that the children are coping with what would be involved in them building a relationship with their father.
That all of these actions need to be taken in order to support the children to commence a relationship with their father reinforces the need to focus on whether any anticipated benefit to them of commencing this likely lengthy process outweighs the highly likely costs in terms of disruption, instability and the inevitable direct negative impact on their mother and her functioning and, therefore, indirectly on them. As already stated, I have concluded that any potential benefits do not outweigh these almost inevitable significant imposts.
I am persuaded that it is much more likely than not that any interaction with their father at this point in time is likely to destabilise the children and to disrupt their functioning; if I was persuaded that the benefits to them of undergoing this disruption outweighed the likely deleterious impacts on them of this, then I may have concluded that it is in their best interests to begin the process of forming a relationship with their father – but I am not persuaded that this is the case.
If I am wrong in my conclusions about the absence of benefit to the children in commencing a relationship with their father, I consider that the likely upheaval to their current stable lives outweighs any benefits that they might obtain from a relationship with him. I also consider that any benefits they might obtain from spending time with their father would be significantly outweighed by what I regard as the inevitable deleterious impact on their mother’s functioning and associated capacity to be the best parent for them that she can be; given that it is accepted that she will continue to be their primary parent, this is clearly something that is not in their best interests.
I am not persuaded it is in the children’s best interests to commence the process of establishing a relationship with their father until he can establish, through cogent evidence, that he has changed his previous patterns of behaviour and appreciates the impact of violence and abusive and threatening behaviours on the recipients of the same and that he has abstained completely from illicit drug use for a substantial period of time and that he has actively and consistently addressed his mental health issues via consistent engagement with an appropriately qualified therapist or medical professional.
Is it in the children’s best interests that their surnames be formally changed to accord with the surname they have used since about January 2012?
In her most recent report, Ms D said that she did not support the children’s surname being changed because she considered that such a change would be more appropriate when the children are older and of an age where they can understand the decision and their wishes and views about it can be taken into account.
When cross-examined she confirmed that, if the Court made an order that the children not spend any time and not communicate with their father, they should continue to use the surname “Jephson” as it is under, and by, that surname that they are known at school. I note her evidence to the effect that, if in the years to come the children wish to change their surname – and revert to their father’s surname – it will then be a matter for them.
I consider that it is in the children’s best interests that they continue to be known by the surname which they have used since the parental separation and by which I accept they know themselves. I consider therefore that the mother should be empowered to have the official records reflect the reality of the children’s lives.
Is it in the children’s best interests that they meet with Ms D so she can explain past events, the Orders and the reasoning underpinning them
Given X’s comments to Ms D that he thought that the incident when his father assaulted his mother was an accident and that he wanted to see his father, I hold some concerns that it is possible he may be starting to develop an idolised picture of his father.
Consequently, I have concluded that both children’s best interests will be met if they are each told, in an age-appropriate manner by Ms D, the truth about their father’s actions toward their mother and X in January 2012. Whilst I leave the extent of such explanation entirely to the professional discretion of Ms D, it seems to me that such explanation may potentially include that this is why their mother does not have any photographs of their father in their home and why she does not want them to meet their father or see him or spend time with him. Absent an appropriately framed explanation, it seems to me that there is a risk that X, in particular, may begin to invent his own “back-story” to explain the absence of his biological father from his life.
Whilst I accept, as indicated earlier, that Y does not have any recollection of his father, I consider that it is better that he receive an explanation of events from Ms D in an age-appropriate manner, rather than run what I consider to be the very real possibility that he hears X’s recounting of what he understands was explained to him by Ms D. It is for this reason that I have concluded that it is in Y’s best interests that he should also meet with Ms D for the purpose just expressed.
A further purpose supporting my conclusion that the children should, in an age-appropriate way, be told about what happened in January 2012 is to minimise the risk that, as he grows older, X might see his mother as responsible for keeping him from his father, seek him out and then hear his father’s version of events (which I consider highly likely to minimise his behaviours toward the mother, to include that she was, in some way, responsible for the assault that evening, that he was not as violent as she may have portrayed him to have been and that she was also the perpetrator of domestic violence toward him during their relationship) and then blame his mother.
I note that Ms D initially considered it would be helpful for the children to see and/or have a photograph of their father so that they could put a face to his name; however I also note that, during her cross-examination, Ms D appeared to me to equivocate about the benefit to the children of this if it was concluded that it was in their best interests not to spend time or communicate with their father.
Given the evidence of Ms K and Mr J – and, to a lesser extent on this issue, Dr M – about the impact on the mother’s functioning of any requirement that she have any form of interaction with the father, I intend to leave the decision about whether the children should be shown a photograph of their father (and/or retain one) to be made by the mother in the exercise of her sole parental responsibility.
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in the children’s best interests or appropriate for their welfare.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 March 2019.
Associate:
Date: 29 March 2019
Key Legal Topics
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Family Law
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Statutory Interpretation
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Injunction
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Procedural Fairness
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