Jerrim & Palmar
[2021] FCCA 1561
•9 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Jerrim & Palmar [2021] FCCA 1561
File number(s): BRC 11114 of 2018 Judgment of: JUDGE MIDDLETON Date of judgment: 9 July 2021 Catchwords: FAMILY LAW – parenting – where there are five children of the relationship – whether the mother should have sole parental responsibility – whether the father poses an unacceptable risk to the children – the amount of time the children spend with the father Legislation: Family Law Act 1975 (Cth) pt VII, ss 60B, 60CC, 60CG, 61DA
Evidence Act 1995 (Cth) ss 140
Cases cited: Harridge & Harridge [2010] FamCA 445
Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCAFC 92
T & N (2003) FLC 93-172
Number of paragraphs: 163 Date of last submission/s: 17 June 2021 Date of hearing: 16 & 17 June 2021 Place: Brisbane Counsel for the Applicant: Mr Amerena Solicitor for the Applicant: Shanahan Family Law Counsel for the Respondent: Mr McGregor Solicitor for the Respondent: Life Law Solutions Counsel for the Independent Children's Lawyer: Ms Christie Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 11114 of 2018 BETWEEN: MR JERRIM
Applicant
AND: MS PALMAR
Respondent
ORDER MADE BY:
JUDGE MIDDLETON
DATE OF ORDER:
9 JULY 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That the mother have sole parental responsibility for the children namely V, born in 2013, W, born in 2014, X, born in 2015, Y, born in 2015 and Z, born in 2016 (“the children”).
2.Notwithstanding the provisions of Order 1 above;
(a)The Mother shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with her;
(b)The Father shall be responsible for the day to day care, welfare and development of the child at all times when the child is living or spending time with him.
3.That the children live with the Mother.
4.That the children spend time with the Father in accordance with the below:
(a)The first Saturday in each month of January, March, May, July, September and November each year for a period of (2) hours at such times as can be arranged and supervised at the Region B Family Contact Centre .
5.The children communicate via telephone or video call with the Father each week on Saturday at 9.00am or any other time they express a wish to do so.
6.The Mother is to ensure the children are available to answer the telephone call from the father.
7.The father be a liberty to send cards and gifts to the children on their birthdays and on special occasions during Christmas and Easter.
8.The Mother and Father shall communicate by email in relation to parenting arrangements for the children, unless in the event of an emergency.
(a)Emergency for the purposes of this order is considered to be an event where one or more of the children require urgent medical attention.
9.The Mother and the Father are to do all acts necessary and sign all documentation to enrol the children in the Region B Family Contact Centre as soon as possible.
10.The Mother and Father will share equally in the fees associated with attending at Region B Family Contact Centre.
11.The Mother and Father shall not denigrate each other to or in the presence of the children.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Jerrim & Palmar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
BACKGROUND
This parenting matter involves five children; V born in 2013, aged eight (8), W born in 2014, aged seven (7), X born in 2015, aged six (6), Y born in 2015, aged six (6) and Z born in 2016, aged four (4) (the children).
The applicant father, aged 61 (the father) and respondent mother, aged 38 (the mother) commenced the relationship at the beginning of 2010 and ended their relationship on 8 May 2018 after spending a short period of time towards the end of the relationship living separated under the same roof.
The parents met online and at the time the mother was living in the Country C and the father in Australia. The father visited the mother a number of times before the mother began residing in Australia on a tourist visa which required her to return to the Country C every three months for a short period of time. This requirement ended in 2015 when the father sponsored the mother’s permanent residency status in Australia.
There is a final domestic violence order in place, naming all of the children as being persons in need of protection that expires on or about 20 November 2024. At the time of hearing this trial there was an application before the Magistrates Court, made by the father seeking to vary the orders so that the children were not named in the order.
The children have not spent any overnight time with the father since 8 May 2018 and all of the children’s time has been in accordance with court orders requiring that their time with the father be supervised. The supervised time has been inconsistent and difficult to manage.
It is the mother’s case that the father poses an unacceptable risk and in those circumstances should be limited to supervised time between the children and he. The father seeks orders to spend time with the children every weekend for three nights and the Independent Children’s Lawyer sets out orders for alternative Saturday time between the children and the father with the children’s time being limited to 2 hours and into groups or in the alternative, should there be a finding of unacceptable risk, that the children’s time with the father occur on the first Saturday of each calendar month, again limited to 2 hours and again in two groups and that that time be supervised by a person agreed between the parties.
THE ISSUES
There three issues that require determination:
(a)parental responsibility;
(b)whether the father poses an unacceptable risk to the children, and
(c)the amount of time the children spend with their father.
THE MATERIAL
The father relied upon the following material:
(a)Amended Initiating Application filed 8 November 2018;
(b)his affidavit filed on 14 May 2021; and
(c)his case outline filed on 15 February 2021.
The mother relied upon the following material:
(a)her affidavit filed 14 May 2021;
(b)the affidavit of Ms D filed 14 May 2021; and
(c)her case outline filed on 9 June 2021.
The Independent Children’s Lawyer relied upon the following material:
(a)the interim order of Judge Turner dated 4 December 2018;
(b)affidavit of Ms E 15 February 2021;
(c)case outline filed on 9 June 2021;
(d)written submissions handed to the court on 16 June 2021.
THE ORDERS SOUGHT
The father seeks the orders as outlined in his case outline filed 7 June 2021.
The mother seeks the orders as outlined in her two-page document handed to the court on 16 June 2021.
The Independent Children’s Lawyer seeks alternate orders as set out in the seven-page document handed to the court on 16 June 2021.
THE LAW
As this is a matter involving orders relating to children Part VII of the Family Law Act 1975 (Cth) (the Act) applies. Guided by the objects and principles as set out in section 60B of the Act I must make orders that are in the best interests of the children.
In determining what orders in the best interests of children I must consider those matters set out in section 60CC of the Act.
As parental responsibility is in issue between the parties I must consider the provisions of section 61DA and make a determination as to whether the presumption applies and if it does not whether it would otherwise be in the best interests of these children for their parents to have an order for equal shared parental responsibility.
THE EVIDENCE
The Father
It is the father’s case that the mother is unable to effectively facilitate a relationship between the children and him. He says that this has caused him a great deal of heartache. His evidence is that he was often the primary carer for the children prior to separation.
He says that following separation he found it difficult to engage with the children and believes this is as a result of the mother’s refusal to facilitate a relationship between the children and him. He says the mother makes it difficult to arrange supervisors and he believes the mother has continued to denigrate him to the children.
The father’s evidence is that the mother came to Australia in early 2014 on a temporary Visa and that as a result there was a requirement for her to return of the Country C for periods of time. His evidence is that she would go to the Country C for several months at a time. (Paragraph 19 of the father’s trial affidavit).
The father also provides evidence that he believed the mother was engaging in prostitution when she returned to the Country C. The father believes that the mother used him simply as a “sperm donor” and that she further used him in order to obtain permanent residency in Australia.
The father gives evidence that the mother obtained permanent residency in 2015 and that from that time she was no longer required to return to the Country C every three months. He says that the intimate relationship ceased in 2016 shortly after the mother became pregnant with Z (the youngest child).
The father alleges that the mother was aggressive and threatening towards him and that she deliberately started engaging with neighbours in an attempt to “engage them as witnesses to leave me in a premeditated manner.”
A parenting plan was entered into on 7 August 2018 and eventually a person by the name of Mr F became the agreed supervisor for all visits between the father and the children. Unfortunately Mr F passed away and was no longer available for supervision.
The father says that thereafter his supervised visits became difficult as the mother would often refuse to accept an alternative supervisor. The father has completed a triple P parenting course. (Paragraph 42 of the father’s trial affidavit). The father attempted to enrolment in choosing change program however the program did not accept him.
The father says that he generally spends time with the children at the G Park and on occasions attends the H Park with them. His evidence is that his time with the children is fantastic and that there are very little issues.
The father acknowledges that on occasions the children can be standoffish but it is his view that this is due to the mother continuing to denigrate him in the presence of the children.
The father was cross-examined and he agreed that at the time of separation the youngest child was 18 months and the twins were approximately three years old. He gave evidence that he has never had the children spend overnight time with him since separation. He also agreed that he has never made an application for the children to live with him.
The father thought it was a realistic proposal that the children immediately spend every weekend with him from after school Friday until before school Monday and half of all school holiday periods notwithstanding that he had been spending only supervised time with the children and they have never spent overnight time with him since separation.
The father gave evidence that he believed there was not much difference between children aged 2 to 3 or 6 and that they would all cope spending overnight time with him three nights each week.
The father acknowledged that there was a “big rift “between the children and him and he believed that they were being influenced by a “religious cult”, the Religion J. He stated that the children say strange things to him about what they learn in that type of organisation.
It was put to the father that he had minimal interaction or conversation with the children during the observation arranged by the report writer Ms E. The father agreed that was so but gave evidence that he was being very careful not to do anything for fear that he might be breached in relation to the domestic violence order. It was his evidence that he has to be very careful and he believed that he was being videoed and was therefore under extreme pressure.
The father acknowledged that after Mr F died he attempted to organise an alternative supervisor and in doing so on at least one occasion approached a random stranger to ask if he would supervise. (This incident occurred on 20 October 2018). The father acknowledged that he knew nothing about the person but believed he was suitable because he noted that this person had a family and some kids. The father acknowledged that the mother now organises the supervisors.
The father acknowledged that on 17 October 2021 one of the twins had a bloodied nose and he did not tell the mother and furthermore it was the case that when he returned the children the twins were wet and naked.
The father acknowledged that he and the mother do not communicate at all and that the last time they communicated in a meaningful way was prior to May 2018. He said that it was very hard to communicate with the mother and that there was a lot of conflict between him and the mother.
The father acknowledged that he appealed a domestic violence order where the court had found that one was necessary. He acknowledged that he thereafter filed for a domestic violence order and that his application was dismissed. He further acknowledged that his appeal was dismissed on 16 July 2020 and thereafter he applied for a further domestic violence order on 17 July 2020. He acknowledged that he withdrew that application on 24 August 2020 and that he then filed another application to vary the domestic violence order on 18 December 2020 and that there was a review hearing to be heard on 7 July 2021.
The father was questioned about whether he wanted the children to watch him due to dementia and he said “children look after old parents”. He was then asked whether that was the reason why wanted to see his children and he said “yes”.
The father denied that he financially controlled the mother and also that he did not keep enough food in the house and that he locked the cupboard which held the food.
The father acknowledged that he had never paid child support and that he only pays some cash for the things when the children are with him.
The father accepted his criminal history (page 270 of the tender bundle (exhibit one)). The criminal history dates back to 1990 and relevantly includes two contraventions of domestic violence order, the first on 6 March 2019 and the second on 18 August 2020.
The father denied an incident of domestic violence that was alleged to have occurred on 11 November 2015. No action was taken in relation to the alleged domestic violence as the mother stated she was safe and well and did not wish or require any protection. The incident is alleged to have been witnessed by an independent male who says that he observed the father back handing the mother and that thereafter he approached the father and said “you scum, hitting a woman.” The witness advised police that the mother already got in the car and the father then got in the car and the vehicle drove away. When the mother was interviewed she denied that the father had struck her. (Page 7 of the tender bundle)
The father denies any domestic violence associated with the breaches for which he was convicted. He also denies that he prevented the mother from taking contraception and that he threatened the mother that if she contacted the police he would have her Visa cancelled.
It was put to the father that he was not particularly worried about the oldest child’s speech difficulties and he denied that. Page 8 of the tender bundle is a note from the speech pathologist dated 27 April 2016 wherein under the heading parental concerns there is a note that reads, “Mr Jerrim is not particularly concerned that V is not talking. He knows of people that have started talking when they are five years old. Mild level of parental concern reported (2/10).”
When the father was shown this note his evidence was that the therapist told him that he should not be concerned and that she had advised him that her children were the same and that they will talk later.
The father denied that the speech pathologist had informed him that the oldest child had a significant delay however once again the note contained on page 8 of the tender bundle reveals that that was the opinion of the speech pathologist.
The father accepted that on 20 November 2019 whilst appearing in the Town G Magistrates Court he told the magistrate that “when you have five children all around you, you can’t keep an eye on all of them.”
The father acknowledged on 27 April 2018 the youngest child who was at that time not yet two was found outside. He said at the time he had a broken leg and he could not get up to help the child.
The father also acknowledged that on 4 May 2018 the youngest child was found in a bath outside and once again he said he could not care for the children at that time. The bath had water in it at the time.
It was put to the father that he could not appropriately supervise the youngest child and the father said “kids will crawl all over the place.” When it was put to him that it was difficult to watch all of the children he agreed and said that he was not only watching the children but he was also in a lot of pain.
The father acknowledged that he received an infringement notice for leaving children in the car. He acknowledged that on 13 April 2021 he did not bring any food for the children when they were spending time with him. He also acknowledged sending the mother an email asking her to take the children out of school so that they might be able to see him on 22 January 2021.
The Father acknowledged that on 6 July 2020 he attended the H Park with the children and a supervisor. He says that he had a column and the children were all walking along the track together and then one of the children had a tantrum and the other children continued. His evidence continued that “he noticed that the children were gone and he ran to find the children.” He said he found some of the children along the way and then saw the second oldest child in the carpark. The father blamed the supervisor for this.
The father was questioned as to why he would blame the supervisor and he said in response “how can I look after all of the kids?” He was reminded that he wanted all of the children to spend three nights with him each week unsupervised and was asked how that might occur.
The father’s answer to that question was somewhat illuminating because he said “yes how does the mother do it now, the children are safer in my bush retreat.”
When questioned by the Independent Children’s Lawyer about supervised time he said that he believed spending time at a supervised contact centre was a violation of both his and the children’s human rights. He agreed that the supervised time which was currently occurring was not working consistently. His evidence was that he did not wish to attend the Contact Centre to see the children as he had been suffering for three years and did not believe he should suffer any more. He said that if the court decided that the children should spend supervised time with him at the Contact Centre he would appeal.
The Father was cross-examined about observations during a previous family report where it was suggested he did not respond initially to the youngest child who was crying and he gave evidence that he did eventually respond to the child. The father denied not disciplining W when V was crying during observations and questioned whether he was supposed to do any discipline during the observations. The father said he was worried about doing something wrong during the initial report.
The father said that if he has the children by himself without supervision he would do things differently not what the supervisor failed to do. He acknowledged that during one supervised visit W was able to walk away from him and that he was by himself.
The father acknowledged that he finds it very difficult to supervise all five children and that it would be easier to manage the children if he saw them all at different times.
The father denied telling anyone at K Contact Centre that he suffered dementia however he did acknowledge that he told the people at K Contact Centre about Alzheimer’s. He acknowledged however that he has a report from Dr L that reveals he has no cognitive impairment. (Page 268 of the tender bundle).
The father did acknowledge that he had emailed the mother solicitor saying that his health was deteriorating.
After hearing from the father. I held concerns regarding his insight into the needs of children and his capacity to meet those needs. There were a number of incidents whilst the children were in his care both prior to the separation and under supervision that left me wondering whether the father understood how important his supervision of the children was.
Furthermore, overall I formed the view that the father was an unsatisfactory witness. I find that he fabricated evidence at times in order to paint the mother in a poor light. He was a poor historian and I found he was not a witness of credit.
The Mother
The mother’s evidence is that the father has always presented with health issues and she annexes to her affidavit a letter from M Centre dated 8 June 2007 (M OP-01). That letter is addressed to the father’s general practitioner and sets out a history of significant back pain, ongoing depressed state, an extremely poor social situation, poverty being a very real issue for him, his organisational skills being very poor in that he is easily confused and he regularly misses the subtlety of meanings and social nuances, his social skills and personal presentation being quite poor and ultimately that he was really struggling with all aspects of managing his disability and his life.
It is the mother’s evidence that the father presented as suffering from those same afflictions and difficulties when she moved to live with him in approximately July 2018.
It is the mother’s evidence that she has always been the primary caregiver for the children and that she was concerned to leave the children with the father when she was required to return to the Country C prior to 2015. Page 1 of the tender bundle is a letter written to the then Immigration Minister, Minister Dutton wherein the mother sets out that it is difficult for one person to care for the two young children.
The mother gives evidence that the relationship was characterised by domestic violence and neglect on behalf of the father. Her evidence is that when she left the relationship she stayed in a domestic violence refuge for approximately four months before moving to transitional housing for approximately eight months and that she now has remained in the current accommodation since 14 June 2019.
The mother says that the father has proposed a number of different strangers to be supervisors for the children’s time. Quite simply the mother did not believe that the people being nominated by the father knew him or the children.
The mother says that she has always facilitated time and encouraged the children to spend time and have a relationship with their father. She says that at times the father did not put in any effort to spend time with the children and as a result she was required to take additional steps including paying for supervisors.
The mother says that on 17 October 2020 when the children returned to her one of the children had a bloodied nose, two of the children were wet and naked and the other three children were half naked and also wearing wet pants. The mother says she had brought spare dry clothing for the children and the father had not.
The mother sets out at paragraph 44 of her affidavit the allegations relating to domestic violence. Those allegations relate to derogatory remarks, threats and intimidation coercive and controlling behaviour, isolation, abandonment, refusal to allow the mother to speak with her relatives in the Country C, and financial control.
The mother’s evidence is that the acts of domestic violence occurred both in private and in the presence and hearing of the children and that on at least two occasions the father excessively physically disciplined the second oldest child.
It is the mothers evidence that the father is also using the courts, particularly the Magistrates Courts to perpetrate domestic violence against her by making numerous applications for protection orders against her or attempting to have protection orders made against him either revoked or varied.
The mother says that the children’s relationship with the father was disconnected. Her evidence is that the father will bring toys to the supervised visits and not allow the children to play with them or alternatively wait until it is time to leave and then produce a toy that the children want to play with making it difficult for the mother to leave with the children. Her evidence is that the father often promises to bring exciting toys but then fails to bring them which leads to the children to being upset.
It is the mother’s evidence that the two older children are scared of the father particularly W who she says was disciplined more severely than the other children by the father.
The mother says that she has had to be responsible for making decisions for the children because the father has not sought to be involved in making decisions. Her evidence is that the father refused to enrol V in school complaining that having to drive the child into town twice each day was too much. Her evidence continues that the father complained about having to pay for a bus fare in order for the child to go to school. Similarly her evidence is that the father refused to organise or attend speech pathology for V as recommended by his day-care.
The mother gives examples of the father not taking every opportunity afforded to him to spend time with the children at paragraph 74 to 81 of her affidavit. Furthermore the mother gives evidence that she has provided for all of the children’s material needs and that the father has never paid child support or given her any financial assistance to help with raising the children. When she applied for a child support assessment she was informed by the child support agency that they would have to contact the father and after having the process explained to her she elected not to proceed with her application.
The mother sets out incidences involving the father and the children wherein she says he has a poor attitude towards the responsibilities of parenthood and that he cannot meet their needs. These matters are set out in paragraphs 94 through to 111 of the mother’s trial affidavit.
The matters outlined in the above referred to paragraphs include limiting a child’s milk intake, refusing to collect the child from the bus station requiring a neighbour to do so, leaving the youngest child crying outside in the dark, leaving the youngest child in the bath tub alone approximately one quarter full of water, leaving two of the children in a motor vehicle alone, refusing to change a child’s dirty nappy, locking the children in the bird aviary, leaving the children naked rather than providing them with nappies, using foul language in the presence and hearing of the children, failing to provide spare clothing for the children when he spends time with them, failing to provide food for the children when he spends time with them and failing to bring equipment and water.
The mother provides evidence of what occurred on 6 July 2020 when the children spent time with their father at the H Park. Her evidence is that she found W walking alone approximately 200 metres from the car park and then approximately 1 and a half kilometres further down the path she found V was also alone and after walking a further 200 metres saw the father and the two girls but noticed that the youngest child was not with the father. It is the mother’s evidence that the father asked her where the youngest child was.
The mother’s evidence is that the supervisor on that occasion decided not to supervise anymore because the father blamed her for the children being separated.
The mother provides communications to support her evidence that the father has informed her through a solicitor on two occasions in 2020 that he had failing health.
Whilst being cross-examined the mother confirmed that the father was completely disinterested with the children in her opinion. The mother conceded that the children had never been malnourished but said that the father at times provided the children with insufficient food for the day.
It was put to the mother that as she was a permanent resident now she did not need anything more of the father and that was why she no longer wanted the children to spend time with him. The mother denied this. The mother was cross-examined about the father paying for her to return to the Country C and she answered by saying yes he did so because that is what he wanted, “he did not want me to apply for a permanent visa because then I would be eligible for some of his property.”
The mother made an appropriate concession against interest wherein she agreed that she had injured her leg and chin after falling from the water tank rather than as was put to the father the father assaulting her.
The mother was cross-examined about calling the father a sperm donor and she said she did not and the word “N” which appears in the father’s affidavit is a term of endearment for a little boy.
It was suggested to the mother that the father helped with the children when they all lived together and she said no he would stay in the car rather than be in the home because he did not want to assist stating further “I’m just stating a fact is not an allegation at all.”
There were no questions asked of the mother in relation to parental responsibility or the amount of time the children should spend with their father by the father’s Council.
When cross-examined by the Independent Children’s Lawyer the mother stated that she was hoping that there would be a no time order but that she would accept time occurring through a Contact Centre.
The mother confirmed that she had concerns about the children being harmed due to domestic violence and or neglect and acknowledged that the children are quite young and they require substantial supervision. She said she was worried that the children might get hurt if they spent unsupervised time with their father.
The mother acknowledged that the children enjoy spending time with their father sometimes and that they love their father. She also acknowledged that it would be of benefit to the children to have a relationship with the father and said hopefully the father will show some effort.
The mother gave evidence that she believed the father needed to undertake some courses in order to understand how to properly engage with the children.
When cross-examined about parental responsibility the mother gave evidence that the father would oppose anything she suggested and that communication was difficult. The mother acknowledged that the father had not tried to interfere with any medical treatment or a child’s education and that there were no incidents of domestic violence at changeover.
I formed the view that the mother was an honest witness and that she had real concerns for the children’s safety and well-being if they spent time with the father unsupervised. Furthermore after hearing her evidence about the father’s lack of involvement I was concerned that he did not understand what was required of him as a parent.
Ms D
Ms D gave evidence about four incidents that occurred in 2017 and 2018 wherein the youngest child was left unattended and screaming in an empty bath tub which was separate to the main house whilst in the father’s care on two occasions. Furthermore where the youngest child was left outside and screaming on a very cold night with a soiled nappy whilst in the father’s care and on one occasion where W appeared to have been missing for quite some time whilst in the care of his father.
Ms D was not challenged on any of that evidence.
Ms E
Ms E prepared a report on 4 February 2021 which was annexed to her affidavit filed on 15 February 2021. At paragraph 76 of the report she opines that;
“the parties do not have any positive co-parenting relationship and communication between them is difficult and limited due to mistrust between them owing to their experience of each other and the allegations made against each other during these proceedings”.
At paragraph 101 of the report Ms E says:
“For the most part, all of the children did their own thing and engaged in their own play while Mr Jerrim sat and watched them. I noted very minimal interaction or conversation from him with the children other than responding to when the children sought out to play with him, for example, when X asked her father to help her put clothes on a doll”.
Paragraphs 102 to 104 Ms E gives the following evidence:
[102] I observed V to try make conversation with his father by telling him that there had been a traffic jam on their way into the office, but Mr Jerrim did not reply to V. Mr Jerrim did engage somewhat with X and Y in writing in a book with them and he tried to make conversation with W near the end of the observation.”
[103] At one point during the observation, W hit Z in the face hard with a toy, causing Z to scream, with the force used being significant and leaving a mark/cut on Z’s eye. Mr Jerrim slowly made his way to talk to W, sat down and told W that he can’t do that in a calm voice. W presented as remorseful. Eventually, Mr Jerrim then went to console Z who had largely stopped crying by that point.”
[104] the children happily went with their father to spend time with him along with supervisor, Ms O (aged 39), a friend of Ms Palmar’s. I noted that Mr Jerrim did not engage in organising the children or supporting them to get their bags or jackets and largely left Ms O to organise this, standing back and observing rather than being proactive.
Ms E was of the view that the father loved his children and that it had impacted on him significantly from an emotional perspective that he did not have regular contact with them. Furthermore she observed the children to have a connection with their father and that this connection brought the father joy.
In terms of the father’s capacity Ms E said:
[122] Mr Jerrim’s social isolation, having English as a second language, his health issues (including reported memory and physical issues) and lack of networks all make him vulnerable to mental health issues and other factors that may impact on his parental capacity. It is perhaps that his own personality vulnerabilities, difficulties with emotional regulation and his personal history/experiences as a child also creates risk factors that make it difficult for him to engage with the children and meet their needs. My view is that such factors are at a level that I do not consider at this stage that it would be appropriate for the children to spend time with their father in an unsupervised capacity, particularly given the needs of all five children together.
Ms E sets out her recommendations at paragraph 128 of the report. Those recommendations envisage the children and the father spending time at a Contact Centre; that the Contact Centre notes be made available to the Court and to Ms E so that an updated family report be prepared prior to the final hearing. Unfortunately the father did not take up the opportunity to spend time with the children at the Contact Centre and as a result no additional information was forthcoming and no updated family report was available.
When being cross-examined, and after being appraised of the evidence that had been presented in the trial, Ms E gave a recommendation that the children spend supervised time with their father 4 to 6 times a year with an agreed supervisor. Furthermore that the father be permitted to send cards and presents and that there be telephone time between him and the children.
When questioned as to why that was her recommendation she gave evidence that long-term it was not feasible, appropriate or positive for supervised time to be on a continuing basis.
Ms E acknowledged that her recommendations would limit the children’s ability to develop a meaningful relationship with the father but acknowledged that his parenting capacity poses significant limits and that the time proposed by her is about touching base with the father so that the children’s connection to him is not lost.
Ms E gave an alternative view that, in the event a finding was not made the father poses an unacceptable risk to the children, that it would be ideal to split the sibling group such that the three younger children saw the father in the morning and the two older children spend time with the father in the afternoon on an unsupervised basis one day each alternate week.
When cross-examined by the father’s Counsel Ms E confirmed that it was the father’s inability to be proactive that led to the children not responding to him and that it was about his personality or parenting style and a lack of awareness as to what was happening with the children.
Ms E was of the opinion that as the father had not engaged in supervised time at a Contact Centre as recommended that this was concerning and showed a lack of insight.
She was asked if there could not be overnight unsupervised time now when might that occur and Ms E responded that if the father was not found to be an unacceptable risk to the children and his time progresses well and that there were no issues about his parenting capacity then it could extend to overnight time.
Ms E reiterated that long-term time at a Contact Centre on a frequent basis is damaging to the children and not a solution.
Ms E acknowledged that if an order was made for no contact that this would be a risk to the children as he is their father and knowing who he is and that he is okay is important. She said having no contact takes away the ability for the children to identify with that part of their identity and for that reason she recommends shorter blocks of supervised time perhaps 4 to 6 times a year which will assist in the children developing.
When cross-examined by the mother’s counsel it was put to Ms E that her observations were similar to the observations made in a previous report and it was suggested that there may be a pattern. Ms E agreed that that might lead to an understanding of a pattern but said it is more to do with his personality, parenting and engagement style.
Ms E confirmed that there was a great deal of conflict in the relationship between the parents. She said the father should have absolutely not tried to engage random strangers to supervise time between him and the children.
Ms E said that she was of the view that the father believed he had a right to spend time with the children and that they had a right to spend time with him and that this belief superseded his understanding of what might be an appropriate order for the children to spend time with him.
Ms E concluded her evidence by confirming that there was a great difficulty for the parents to engage in an effective co-parenting relationship and that it was her view that the father just is not able to parent the children at the moment.
Additional information
Of the 271 pages of exhibit one there are some relevant pieces of information as outlined below.
On or about 17 March 2018 the father acknowledged that he was not coping with the demands of caring for five children who are five and under due to his age of 58 and disabilities which stop him from working. (Page 10 of the tender bundle)
On page 50 of the tender bundle is the police report relating to a breach of the domestic violence order on 26 June 2018. The information contained therein shows that the father not only was within a prohibited distance from the mother but that he communicated with her and followed her which was also not permitted pursuant to the domestic violence order.
On page 95 of the tender bundle there is a note written for the father by a Ms P on 6 February 2019. That note reveals that the father had informed Ms P that “he had also just been told he has cancer.”
On page 164 of the tender bundle there is a note wherein the father is alleged to have told the caseworker from K Contact Centre that he may have dementia which is under investigation. The father denied that he told the caseworker that information. On page 166 of the tender bundle there is a report that he told a case worker from K Contact Centre on 11 May 2020 that he is being tested for Alzheimer’s as he has memory loss. The father conceded that he did tell a person from K Contact Centre that he was being tested for Alzheimer’s.
On page 172 of the tender bundle there is a note made on 11 May 2020 where it is stated that the father said that “he would like contact with his children so that they may keep an eye on him if/when his dementia deteriorates.”
On page 183 of the tender bundle it is noted that the father stated that he had slapped his son for damaging property and that he also stated that he prevented his former partner from contacting her family in the Country C.
On page 193 of the tender bundle is a note made on 19 May 2020 confirming that a case review panel considered the father unsuitable for the Men Choosing Change program due to him not considering he has any behaviours that warrant changing.
On page 212 of the tender bundle the District Court Judge hearing the appeal in relation to the domestic violence order on 22 June 2020 sets out the findings that the Magistrate made when making the protection order. The District Court Judge at paragraph 81 of his decision says that those findings were reasonably open to the Magistrate to make a protection order in the terms she did. Those findings were:
(a)physical violence was inflicted by the appellant on the respondent and, tellingly, one of the children; and
(b)that the children are exposed to associated domestic violence; and
(c)that the financial control undertaken by the appellant directly impacted not only the respondent but also all of the children; and
(d)that there were threats to have the respondent’s Visa cancelled, thereby indirectly impacting on the welfare of the children;
(e)the respondent was effectively in a vulnerable position; and
(f)that the appellant has once previously breached the terms of the protection order.
This evidence is relevant and important in my view because it independently supports aspects of the mothers case in particular the allegation that the father is in poor health and that there were acts of family violence.
Counsel for the father made no submissions in relation to those findings or as to whether those findings are open to me.
ASSESSMENT OF THE EVIDENCE
The primary considerations are set out in section 60CC(2) of the Act. It is well accepted the children will benefit from having a meaningful relationship with each of their parents. Justice Brown in the decision of Mazorski v Albright [2007] FamCA 520 said the following in relation to the definition of meaningful at paragraph [26]:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant “which, in turn, is generally used as a synonym for “important “or “of consequence”. I proceed on the basis that when considering the primary considerations in the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child…..”
The evidence establishes that the father has an estranged relationship with the children. He concedes that the children are distant from him and it was noted by the family report writer’s that he was not proactive in engaging with the children which led the children to effectively occupy themselves whilst with him.
The father himself reported minimal reading and play with the children and an assessor for V noted that he sought out solitary play. The father also stated that V does not know what to say to him when they spend time together. (See paragraphs 82 and 83 of the family report.) In relation to W the father told Ms E that it was hard to know what to do. (Paragraph 87 of the family report).
I accept the evidence of the mother and Ms D and find that the father fails to supervise the children appropriately and or leaves them to occupy themselves which has at times meant that they have been placed in danger.
Overall Ms E was not able to gain any significant information from any of the children in respect of their personal and family relationships. Her evidence in relation to the observations of the interactions led me to form a view that these children do not have a meaningful relationship with their father at this time. If I am satisfied that they should have a meaningful relationship with their father then I must frame orders to ensure that the children are able to have a meaningful relationship with him. (McCall v Clark [2009] FamCAFC 92).
I am satisfied on the evidence that the father has perpetrated family violence on the mother and at least one of the children. I am further satisfied that the children have been exposed to family violence in the presence of the father. I find the father has engaged in physical violence towards the mother and one of the children and that he exerted financial and social control over the mother and children. I also find the father threatened the mother with visa cancellations and that the mother was in a vulnerable position whilst living with him. I further note that the father has been convicted of two breaches of the domestic violence orders.
I am also satisfied on the evidence that the father lacks insight and understanding as to his role as a parent. Furthermore I am satisfied that the father is impacted upon by his disabilities, for which he receives a disability pension, and his lack of desire to properly engage with the children so that their needs are met.
I am satisfied the father has at times neglected the children and placed them in danger and that he does not understand or in the alternative is not interested in the need to adequately supervise, protect and provide for these children.
I am asked to make a finding that the father poses an unacceptable risk and in doing so I note the provisions of section 140 of the evidence act 1995 (Cth). Justice Murphy in Harridge & Harridge [2010] FamCA 445 after referring to the High Court test, case law and secondary sources listed a number of questions that may assist in assessing risk as follows:
(a)what harmful outcome is potentially present in this situation;
(b)what is the probability of this outcome coming about;
(c)what risks are probable in this situation the short, medium and long-term;
(d)what are the factors that could increase or decrease the risk that is probable;
(e)what measures are available whose deployment could mitigate the risks that are probable.
I adopt that list and find it useful in considering the factors in this case. In T & N (2003) FLC 93-172 Justice Moore adequately set out the dangers relating to family violence when he said:
“It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the well-being of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation. They are terrified and simultaneously come to accept it is an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence……. One could go on to the impact upon their ability to form attachments, and so on.”
In this matter the evidence establishes that W is an aggressive young boy who has been seen by many different people to lash out at his siblings causing them harm. He is said to be an anxious child and one who is easily frustrated. He has at times been seen to exert control over his siblings through the use of violence.
It is the mother’s evidence that W suffered the worst “discipline” at the hands of the father than any of the other children. I have made a finding that the children have been exposed to the father’s acts of family violence. It may be that W is acting the way he is due to his exposure to acts of family violence perpetrated upon himself and upon his mother. His behaviour is consistent with the types of dangers expressed by Moore J.
I am satisfied on the uncontested evidence of Ms D that the father has left the children unsupervised, exposed to the elements and in danger on more than one occasion. Furthermore the evidence of the mother is accepted wherein she states that the father returned the children to her cold, wet and naked on at least one occasion and had allowed the children to split up and wander through a national park alone.
The risk to the children in those circumstances range from being scared, confused and anxious all the way through to a risk of death, particularly in relation to the youngest child being left in a bath tub outside of the main residence that had several inches of water in it.
The evidence supports a finding that the father lacks significant insight and/or the motivation to ensure that the children are properly supervised in his remote bush setting where he lives and in those circumstances the risks referred to above are probable. Furthermore Ms E is of the opinion that the father resents the mother and that his emotional well-being is impaired as a result. I have a real concern that the father will continue to denigrate the mother in the presence and hearing of the children leading to a finding that it is probable that the father will commit further acts of family violence in those terms at least. I also have a real concern that the father will not be able to manage the behaviour of W and that this may lead to him once again inappropriately physically disciplining child.
Unsupervised time with the father will in my view increase the probability of those risks occurring. In the event the children’s time with the father is supervised by an appropriate Contact Centre this will diminish those risks.
In my view the measures that are available to mitigate against those risks include the father gaining appropriate education around the needs of children and his role as a parent. Furthermore infrequent exposure to the father will mitigate against the risk of the children being exposed to family violence on a regular basis.
Ms E was unable to obtain any relevant view from any of the children. I am satisfied that the children are primarily attached to their mother and that they have a loving secure relationship with her. I am satisfied that the children have a relationship with their father but that it is a strained relationship that has been created since they were born and now impacted upon by the current, in my view, necessary arrangements.
I am satisfied that the mother has been fully engaged with these children taking every opportunity available to her to participate in making decisions about them, spending time with them and communicating with them. I am not satisfied that the father has taken every opportunity available to him in this regard and indeed has for reasons best known to himself failed to take opportunities made available to him.
The father has failed to meet his obligations to maintain the children and has left it largely to the mother to provide for all of their needs.
When one considers the proposal of the mother there would not be any real change to the children circumstances save for the fact that they would see their father less frequently and they would be safer in his care. The father’s proposal is not reasonably open on the evidence. The children have never spent overnight time with him and they do not have a significantly strong relationship with him in order to cope with such an arrangement.
The father does live in a remote location and has limited financial capacity however these factors will not substantially affect the children trying to maintain personal relations and direct contact with both parents.
I am satisfied on the evidence that the mother has the capacity to provide for the needs of the children including their emotional and intellectual needs. I am not satisfied that the father has that capacity. There is ample evidence to show that the father fails to meet their physical and emotional needs.
It is a relevant factor to take into account that the father lives in an isolated remote location in a small dwelling and bushland setting. Where I find the father fails to properly supervise the children this has the potential to place the children at further risk.
I have found that the mother has a good attitude to all of the children and to her responsibilities as a parent and that she has demonstrated this on a regular and consistent basis.
The father has a poor attitude towards the children and to his responsibilities of parenthood. I accept the evidence of Ms E where she says it seems the father believes he has a right to spend time with the children and the children have a right to spend time with him without any real regard as to what his responsibilities are in relation to this. It is difficult to ascertain whether the father simply does not understand his responsibilities or whether he could not be bothered to accept those responsibilities either way it reflects poorly on him and places the children at risk.
I have already discussed family violence and the fact that there is a family violence order in place naming the children as protected persons which expires in November 2024. Section 60CG requires me to ensure that any order I make in keeping with the children’s best interests is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. The orders I have made comply with the obligations pursuant to this section.
It is preferable to make orders that would least likely lead to the institution of further proceedings in relation to the children and coming to the decision that I have made I am satisfied that at this time the father simply does not have the capacity to care for the children. The father has shown that he does not acknowledge family violence he has perpetrated and as a result he was deemed unsuitable for a Men’s Choosing Change Program. The orders I have made are least likely to lead to further proceedings being instituted.
Having considered all of those matters I am satisfied that there is a need to protect these children from a risk of harm in the father’s care. I am satisfied the father poses an unacceptable risk to the children in those circumstances supervised time is necessary.
I am of the view that regular ongoing supervised time at a Contact Centre is not in the best interests of these children. There is currently no meaningful relationship with the children and the father however the children need to have some connection with him provided it is safe to do so.
I consider it to be in the best interests of the children for the children to spend time with their father at a supervised Contact Centre six times each year, for the father to telephone them once each week, that the children be at liberty to telephone their father should they wish to do so and that the father be at liberty to send gifts to the children from time to time.
I am satisfied this arrangement will provide the children with sufficient understanding and recognition as to who their father is and that this will assist them in developing emotionally in the future. I note that two of the children are currently seeing a therapist and this should continue and I am satisfied on the evidence that in the event the other children present with emotional difficulty the mother will take all reasonable steps to ensure by gain sufficient assistance.
After hearing all of the evidence and prior to receiving submissions I made a suggestion to the parties to consider whether an order that the children spend unsupervised time with their father every three months on the first weekend of that month and with the children’s time split so that the two older children spend time with the father and then three youngest children should be made. The parties considered that order and each of them through their representatives indicated that they did not see that order as being in the best interests of the children.
Upon reflection and now having had the opportunity to fully consider all of the evidence I am satisfied that the suggestion I made was counterintuitive to the evidence that fell from the parties and it is for this reason that I have not made that order as proposed by me at that time.
PARENTAL RESPONSIBILITY
There is a presumption that parents have equal shared parental responsibility contained within the Act (section 61DA(1)). That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of a child or family violence.
I have found that the father has engaged in family violence. I am satisfied that he has used physical discipline in an inappropriate fashion and that this has amounted to an assault on the child. I am further satisfied that W has suffered psychological harm from being subject to or exposed to family violence and that the father has seriously neglected the children at times.
In those circumstances the presumption does not apply.
The evidence supports a finding these parents do not have a cooperative co-parenting relationship and that there is no effective communication between them. I accept that the mother has been able to facilitate a relationship between the children and their father by making arrangements with supervisors however this level of communication is insufficient for the children to benefit from the parents having a shared parental responsibility role. I accept the mother’s evidence that the father would simply oppose anything she suggests and that this would lead the children into exposure to further conflict.
In those circumstances an order for equal shared parental responsibility is not in the best interests of these children and accordingly I have not made that order.
For these reasons I am satisfied that the orders I have made are all orders that are in the best interests of these children.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Middleton. Associate:
Dated: 9 July 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Jurisdiction
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