Johns and Greenwood and Ors

[2018] FCCA 215

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHNS & GREENWOOD & ORS [2018] FCCA 215

Catchwords:

FAMILY LAW – Parenting – family violence – where the contact centre withdrew services following the initial visit because of the father’s poor behaviour – where the mother proposes that the children spend no time with and have no communication with the father – where the father seeks resumption of supervised time at another Contact Centre – where the paternal grandparents seek time with the children – ordered no time between the children and father.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Amador v Amador (2009) 43 Fam LR 268 at [95]
Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall v Clarke [2009] FamCAFC 92
In the marriage of Rice & Asplund (1979) FLC 90-725

Applicant: MS JOHNS

First Respondent: MR GREENWOOD

Second Respondent: MS A GREENWOOD

Third Respondent: MR A GREENWOOD

File Number: NCC 666 of 2016

Judgment of: Judge Costigan

Hearing date: 13 November 2017

Date of Last Submission: 14 November 2017

Delivered at: Newcastle

Delivered on: 1 February 2018

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the First Respondent: Self represented

Solicitor for the Second and Third Respondent: Self represented

Counsel for the Independent Children's Lawyer: Mr Williams

Solicitors for the Independent Children's Lawyer: Foat Roberts Lawyers

ORDERS

1. The mother has sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2011 (‘the children’).

2. The children live with the mother.

3. The children spend no time with the father.

4. The children have no communication with the father save as provided by these Orders, namely:

   (a)The father shall be and is hereby permitted to forward letters, cards and gifts to the children at Christmas, Easter, Father’s Day and the birthday of each of the children and with respect to same:

   (i)Such items shall be forwarded to the mother at such postal address as she may advise;

   (ii)The mother shall be at liberty to provide any gifts to the children and to provide to the children or read to them any letters or cards provided that such provision shall be at the mother’s discretion.

5. The children shall spend time and communicate with the second respondent paternal grandmother and the third respondent paternal grandfather collectively referred to as the ‘paternal grandparents’) as agreed and in default of agreement:

   (a)During school term:

   (i)every third weekend on either a Saturday or Sunday as nominated by the mother for a period of seven (7) hours as agreed and in default of agreement between the hours of 10am and 5pm; and

   (ii)on one (1) occasion each school term from 10am Saturday until 5pm Sunday.

   (b)During each of the April, June, October and Christmas school holiday periods for two (2) nights as agreed and in default of agreement from 10am on the first Saturday following the cessation of school until 5pm on the Monday.

   (c)Telephone communication each Tuesday and Thursday between 6pm and 6.30pm with the paternal grandparents to initiate the telephone call by contacting the mother’s mobile telephone.

6. Unless otherwise agreed between the mother and paternal grandparents changeovers will occur at the McDonalds Family Restaurant at the roadstop otherwise known as ‘(omitted) at the turn off to (omitted) from the (omitted).

7. The paternal grandparents and each of them is hereby restrained from allowing the children to come into contact with or communicate with the father.

8. The mother is at liberty to provide a copy of these Orders to any school the children attend.

9. Pursuant to section 65DA(2) and section 62B, 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 adjust to and comply with and Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Johns & Greenwood & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 666 of 2016

MS JOHNS

Applicant

And

MR GREENWOOD

First Respondent

MS A GREENWOOD

Second Respondent

MR A GREENWOOD
Third Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings concerning the parenting arrangements for the children X born (omitted) 2007 and Y born (omitted) 2011 (‘the children’) and more specifically the time the children should spend with the father and/or the paternal grandparents.

2. The matter was fixed for final hearing for two (2) days commencing 13 November 2017 at 10am.

3. On the morning of the trial it was apparent that the father had not filed a trial affidavit or Case Outline in accordance with the trial directions made by Judge Middleton on 14 July 2017.

4. The Independent Children’s Lawyer quite fairly invited the Court to stand the matter in the list while the father sought advice and assistance from the Duty Solicitor. The Court pointed out that another option open to it, was to strike out the father’s response and for the matter to proceed on an undefended basis.

5. The father became quite agitated and despite the best efforts of the paternal grandparents to calm him, the father’s anger escalated very quickly and he threatened to walk out.

6. I stood the matter in the list for the father to obtain assistance from the Duty Solicitor to prepare a trial affidavit. 

7. The matter was recalled at 12 noon and leave was granted to the father to file his trial affidavit in Court. Copies were provided to all parties and the final hearing proceeded.

Background

1. The third respondent paternal grandfather was born on (omitted) 1953 and is 64 years old.

2. The second respondent paternal grandmother was born on (omitted) 1954 and is 63 years old.

3. The first respondent father was born on (omitted) 1983 and is 34 years old.

4. The applicant mother was born on (omitted) 1988 and is 29 years old.

5. The parents’ relationship commenced in (omitted) 2006 when the father was 23 and the mother was 18 and they commenced living together the following month and moved to Sydney. The mother was working as an (occupation omitted) at the (employer omitted) and the father was unemployed.

6. In early 2007 the mother says she was concerned by the father’s cannabis use which was the subject of many fights between them, often physical fights,[1] so she ended the relationship and went to live with the maternal grandmother in (omitted).  The father returned to live with his parents in (omitted).

   [1] Mother’s Affidavit, paragraph 30

7. On (omitted) 2007 when the mother was 18 weeks pregnant there was an incident at the maternal grandmother’s residence. The father refused to leave when requested by the maternal grandmother. The police were called and they applied for the first of three AVOs for the protection of the mother with the father being the defendant.  An order was made at Taree Local Court on 7 May 2007 for a period of 12 months in terms of the mandatory orders and additional orders 10 and 11.

8. In (omitted) 2007 the parents resumed their relationship and the mother returned to live with the father at the home of the paternal grandparents.

9. X was born on (omitted) 2007.

10. In 2008 the mother says that the paternal grandmother drove the mother and X to the home of a girlfriend where the mother and X stayed for three (3) weeks before being found by the father. The mother says she was subjected to a constant stream of text messages from the father seeking reconciliation.

11. In (omitted) 2008 the mother rented accommodation in (omitted). She says the father was living nearby with friends and that he would turn up unannounced at her home ostensibly to spend time with X but she felt sufficiently intimidated to contact police in (omitted) 2009 to apply for the second AVO which was granted on 20 April 2009 by Taree Local Court in terms of the mandatory orders and additional orders 4, 6, 11 & 13 for a period of 12 months.

12. By late 2010 the parents had once again resumed their relationship but did not live together. The mother fell pregnant and Y was born on (omitted) 2011.

13. The mother says she moved to (omitted) with the children in late 2011 in a further attempt to end the relationship.

14. From late 2011 until mid-2014 the father spent time with the children approximately three (3) days per week in the presence of the mother.  There is no evidence as to the duration of these visits or whether the time included overnights but the mother says that the father would generally attend her house without prior notice. 

15. In May 2014 the mother says that she was assaulted by the father in the presence of the children at her (omitted) home. She alleges that the father punched her in the sternum, that she was winded and found it difficult to breathe. She sought medical treatment at the (omitted) Medical Centre the following morning and was diagnosed with a hairline fracture.  She told the treating general practitioner that she had been hit by a ball. She did not report the incident to police.

16. In June 2014 the mother says that the father pushed her causing her to fall over. Y who was three (3) years old at the time was present. The mother reported the incident to police who applied for an AVO on her behalf.  A final order was made at Port Macquarie Local Court on 16 July 2014 against the father and for the protection of the mother in terms of the mandatory orders and additional order 11 for a period of 12 months. The children were listed on the apprehended violence order as protected persons.

17. In December 2014 X was seen by paediatrician Dr J and commenced treatment with psychologist Mr D in January 2015. At this time, X’s school was reporting numerous concerns in relation to his behaviour.

18. In Mid 2015 the mother commenced her relationship with her current partner Mr S.

19. In June 2015 the father was arrested and charged by police for sending harassing text messages to and telephoning the mother in breach of the apprehended violence order.

20. On 15 July 2015 the father was convicted of the breach AVO and fined $1,200. The AVO was extended for a further 2 years until 15 July 2017 with the additional conditions 3 & 9.[2]  

    [2] ICL Exhibit 17

21. On 21 August 2015 the parents attended a Family Dispute Resolution Conference. No agreement was reached and a section 60I Certificate issued.

22. On 21 to 24 December 2015 the children spent time with the paternal grandparents for Christmas.  When the children returned home they reported to the mother, that the father had been there and that there had been an argument culminating in the paternal grandfather asking the father to leave. The mother says she stopped the children’s time with the father and the paternal family.

23. On 27 December 2015 the father was charged with driving a vehicle with illicit drug (Cannabis) present in his blood.  He was convicted at Lismore Local Court on 24 May 2016 and received a section 10 bond for two (2) years.

24. In 2016 X’s psychologist advised he was unable to continue treatment and X was referred to Ms T school counsellor at (omitted).

25. On 17 March 2016 the mother commenced these proceedings seeking orders for sole parental responsibility, the children to live with her and spend time with the father as agreed but supervised time on an interim basis.

26. The father filed an initiating application which was deemed a response on 18 April 2016 seeking orders for equal shared parental responsibility, the children to live with the mother and spend time with him each third weekend and half school holidays.

27. On 16 April 2016 there was altercation between the father and Mr W and on 24 August 2016 the father was charged with stalk/intimidate and breach of an apprehended violence order on the basis that Mr W was in a domestic relationship with the mother who had the benefit of an apprehended violence order. The matter apparently came before Port Macquarie Local Court on 30 May 2017 but there was no available evidence as to the outcome of the court event. There was also an interim AVO taken out for the protection of Mr W with the father as the defendant, which appears to have expired on 30 May 2017.

28. On 21 April 2016 the matter came before Judge Myers in his duty list at Wauchope. By consent orders were made for the children to live with the mother; the father to undertake an anger management course; both parents to undertake a parenting after separation course and the father to have supervised time with the children at Interrelate.

29. On 14 May 2016 the children attended Interrelate at (omitted) for their first supervised contact visit with the father. It is unclear from the evidence how long the visit lasted but at some point the contact workers decided to stop the session as a consequence of the father questioning the children about their living arrangements; the father pacing, shaking his head, raising his voice and yelling at the contact workers; the father’s reported suicidal thoughts and railings against the Court system; and the children appearing distressed, scared and fearful of the father when he yelled at them during the session.[3]

    [3] Family Report, paragraphs 39-59

30. On 20 May 2016 A was born.

31. In August 2016 X was reviewed by Dr J who confirmed that X met the criteria for Attention Deficit Hyperactivity Disorder. X commenced a trial of simulant medication (Vyvanse). He was reviewed in November 2016 and his medication reduced to address the issue of appetite loss.  X was also linked in with a dietician.

32. On 20 September 2016 the matter was listed before Judge Myers for mention at Wauchope. Leave was granted for the paternal grandparents to be joined as parties and interim orders made for the paternal grandparents to have telephone communication with the children twice a week.

33. On 7 October 2016 the parties and the children attended a Child Inclusive Conference with family consultant Dr S. The father appeared via telephone.

34. On 14 October 2016 the matter was before Judge Myers for mention at Newcastle. There was no appearance by the father.  Interim orders were made for the children to spend time with the paternal grandparents one (1) weekend day every three (3) weeks between 10am and 5pm; an injunction was granted restraining the paternal grandparents from allowing contact with the father; an Independent Children’s Lawyer was appointed; a family report ordered; both parents were ordered to undertake urinalysis testing and the Secretary of the Department of Community Services was invited to intervene in the proceedings.

35. On 26 October 2016 the paternal grandparents filed a response seeking one phone call a week; one (1) day time visit every 3^rd weekend and one (1) overnight visit every three (3) months with the children.

36. On 10 January 2017 the Department of Family and Community Services wrote to the Court advising that there were no current child protection issues and they would not be intervening in the proceedings.

37. On 23 February 2017 the matter came before Judge Myers at Newcastle. There was no appearance by the father and the matter was adjourned to a further date.

38. On 3 April 2016 the parties and children attended the family report interviews with family consultant Dr S. The father again attended the interviews via telephone.

39. On 12 April 2016 orders were made in chambers for the release of the family report.

40. On 14 July 2017 the matter came before Judge Middleton at Newcastle.  It was listed for final hearing for two (2) days commencing 13 November 2017 and directions made for the filing of affidavits by 6 October 2017 and Case Outlines by 7 November 2017.

41. The paternal grandfather filed his trial affidavit on 12 September 2017.

42. The mother filed her trial affidavits on 20 and 22 September 2017.

43. The mother filed her Case Outline on 18 October 2017.

44. The Independent Children’s Lawyer filed her Case Outline on 13 November 2017.

45. The final hearing proceeded on the 13 November 2017, continued into the second day and at its conclusion judgment was reserved.

Competing Applications

1. All of the parties were self-represented at the final hearing. The mother sought orders in her Case Outline filed 18 October 2017 as follows:

   1.The mother have sole parental responsibility for the children X, born (omitted) 2007, and Y, born (omitted) 2017.

   2.The children live with the mother.

   3.The children spend no time and have no communication with the father.

   4.The children spend time and communicate with the paternal grandparents as follows:

   a)The paternal grandparents have telephone communication with the children, with the paternal grandparents initiating the phone call by calling the mother’s mobile phone each Tuesday between 5.30pm – 6.00pm

   b) The paternal grandparents spend time with the children, every 3^rd Saturday or Sunday as nominated by the mother for a period of 7 hours as agreed between the parties and failing agreement between the hours of 10am- 5pm. Commencing Saturday 18 November 2017.

   c) The paternal grandparents spend time with the children, during school holidays for one weekend as nominated by the mother from 3pm Saturday until 3pm Sunday.

   5.For the purposes of changeover the parties are to meet at a place as agreed but failing agreement at the McDonalds Family Restaurant at the roadside stop otherwise known as ‘(omitted)” at the turn off to (omitted) from the (omitted).

   6.For the purposes of the paternal grandparents spending time and communicating with the children, the paternal grandparents shall be prevented by injunction to allow the children to come into contact or have any communication with the father when the children are in their care.

   7.The father is restrained from attending any school, sporting event or extracurricular activity that the children may participate in.

   8.In the event that the paternal grandparents fail to comply with order 6 above, the paternal grandparents’ time with the children in accordance with orders 4(a),(b),(c) above is suspended.

   9.All previous orders are discharged.

2. At paragraph 2 of his affidavit filed in Court on 13 November 2017, the father sought the following orders:

   a.That I be allowed to send the children gifts;

   b.That I be allowed to speak to the children on the telephone including for special occasions such as birthdays, Easter and Christmas;

   c.That I spend time with the children in a different supervised contact centre.

3. At paragraph 3 of his trial affidavit he also said:

   ‘I would eventually like to work up to having the children more, I would like to spend unsupervised time with them. However, if the Court will not allow that, I would still like to see my children in a supervised contact centre with my parent able to attend.’

4. At paragraph 23 of his affidavit filed 12 September 2017 the paternal grandfather stated:

   ‘I would like the opportunity to have my grandchildren stay with my wife and I as per recommendations 7 & 8 of the Family Report.’

5. Recommendations 7 & 8 of the family report prepared by Dr S reads:

   ‘7. It is recommended the children spend two weekends (one night) per school term with the paternal grandparents.

   8. It is recommended the children spend one weekend (two or three nights each school holidays with the paternal grandparents.’

6. The Independent Children’s Lawyer at pages 2-3 of her Case Outline sets out her preliminary view from which she deviated little in final submissions.  The orders sought on a final basis by the Independent Children’s Lawyer therefore were:

   a.The mother to exercise sole parental responsibility;

   b.The children to live with the mother;

   c.The children to spend no time with, and have no phone contact with the father;

   d.The children to have regular phone contact with the paternal grandparents;

   e.The children to spend time with the paternal grandparents for approximately:

   i.Day time every three weeks

   ii.One overnight on a weekend once a term

   iii.A double overnight once in each school holidays

   f.The father be restrained from attending the children’s school(s), together with any extra-curricular events.

   g.The paternal grandparents be restrained from bringing the children into contact with the father.

Issues:

1. The parties were broadly in agreement that the children should live with the mother, that the mother should have sole parental responsibility and the children should spend time, albeit ill-defined, with the paternal grandparents.

2. The issues which remain for determination therefore were:

   a.Whether there is any benefit to the children in resuming their relationship with the father;

   b.As raised by the father, the alleged risk to the children posed by the mother’s partner Mr S; and

   c.The time the child should spend with the paternal grandparents.

Evidence:

1. The mother relied on the following documents at the final hearing:

   ·    Her affidavit filed 22 September 2017; and

   ·    Affidavit of Mr S filed 22 September 2017.

2. The mother also tendered the following documents:

   ·    Case Outline (Exhibit 2); and

   ·    Witness Statement of Mr S dated 24 August 2016 in support of breach of apprehended violence order proceedings (Exhibit 5).

3. The mother gave oral testimony. She had clearly prepared well for the final hearing having inspected the subpoena material and prepared and filed a detailed affidavit and Case Outline in accordance with the trial directions.

4. Given the number of self-represented parties the Court suggested and the parties agreed, that Counsel for the Independent Children’s Lawyer would cross-examination the mother first, followed by the father and the paternal grandfather.

5. The mother gave her evidence in an open and forth-right manner. When Counsel for the Independent Children’s Lawyer asked the mother a number of questions about the current state of her relationship with paternal grandparents, I sensed some underlying animosity for which she saw as their uncritical support of their son. However, she maintained her composure, made appropriate concessions and acknowledged that she also had a role in improving communications with the paternal grandparents.

6. The father sought and was granted leave to rely on his affidavit filed in Court on 13 November 2017.

7. The father gave oral testimony. He was ill-prepared to conduct the hearing.  He had not complied with the trial directions and his affidavit filed on the first day of the hearing was brief and lacking in detail.  The father’s presentation over the two (2) days was concerning.  There were times when the father appeared focused and in control of his emotions and others when he was distracted, agitated and combative.  He often spoke over participants and generally impressed as immature, self-absorbed and self-justifying.

8. Counsel for the Independent Children’s Lawyer submitted that the father was honest in his evidence, did his best to answer the questions put to him and was a credible if not a reliable witness.  

9. I cannot entirely agree with Counsel. There were certainly occasions when the father was open and honest in his responses for example when he was questioned about his historical cannabis consumption. However, there were also occasions when the father did not like the question posed or did not wish to answer it and his clear strategy was to reframe the question to give himself a platform to makes speeches about the failings of the mother or her partner. This is demonstrated by the following exchange in relation to the supervised contact visit with the children at Interrelate on 14 May 2016:

   ICL:..I want a direct answer…..do you think that put him [X] into a position of conflict between you and his mother?

   Father:     Whose eyes do you see it in? I don’t see it would.

   ICL:          In X’s eyes?

   Father:It would be…like…..no other thing…when I was growing up.  How would it be any different to my mother and father asking me a question…my son, the same thing his mother or father asking him?

   ICL:Well aren’t you asking him to justify why he’s not going to (hobby omitted) lessons?

   Father:Yeah. Like why are you not going to (hobby omitted) lessons? Simple. Why you not going anymore? What’s wrong with answering that, let’s be honest…why…its…and that’s what I mean the mother can take him on this and that, take him here and there, visit family, stop all my family from seeing the kids and yet I can’t ask him a question and that was part of the reason why I got so upset that day. I wasn’t able to ask him why aren’t you going to this school X like, cause like my mum and dad were paying for it, like….um…you know… it cost her nothing to send them to a good school. So am I upset? Of course. Do I think its wrong? No.

10. During final submissions, the father became tearful and interjected loudly with comments such as ‘How dare you?’ and ‘I leave with nothing again’ and ‘I’m a psycho because I miss my kids.’ The paternal grandfather repeatedly asked the father to ‘keep quiet’ but the father ignored him.

11. The paternal grandfather relied on his affidavit filed 12 September 2017 and the paternal grandmother indicated that she adopted and relied upon the evidence of the paternal grandfather contained in that affidavit.

12. The paternal grandfather and the maternal grandmother both gave oral testimony. In the course of the hearing the paternal grandmother informed the Court that she suffered from some hearing impairment.  She declined the offer of a hearing loop and said she had been able to follow the proceedings to date.

13. I agree with the submission of the Independent Children’s Lawyer that the paternal grandparents were impressive in their honesty and the manner of their evidence.

14. The Independent Children’s Lawyer relied on her Case Outline (Exhibit 1) and also tendered the following documents:

    ·    Letter dated 24 November 2014 from Dr J to Dr K in relation to X (Exhibit 3);

    ·    (omitted) Hospital, Substance Use Assessment in relation Mr S dated 17 July 2013 (Exhibit 4);

    ·     Apprehended Violence Order dated 15 July 2015 (Exhibit 6)

    ·    Interim Apprehended Violence Order dated 20 October 2015 (Exhibit 7)

    ·    Material produced by NSW Police – green tag 28 – 2 pages (Exhibit 8)

    ·    Material produced by Interrelate – yellow tag 3 (Exhibit 9)

    ·    Material produced by Mr D – tags 1, 2, 3 & 4  (Exhibits 10, 11,  12 & 13)

    ·    Material produced by NSW Police – blue tag 3 -5 pages (Exhibit  14)

    ·    Application to Vary AVO dated 22 June 2015 – blue tag 5 (Exhibit 15)

    ·    Bench Sheet Port Macquarie Local Court dated 15 July 2015 – blue tag 4 (Exhibit 16)

    ·    Material produced by NSW Police in relation to Mr S – blue tag 42 – 5 pages (Exhibit 18)

    ·    Material produced by Dr K – blue tag 1 (Exhibit 19)

    ·    Letter dated 11 April 2017 from Independent Children’s Lawyer to mother and urinalysis report dated 13 April 2017; letter dated 25 May 2017 from Independent Children’s Lawyer to mother and urinalysis report dated 26 May 2017 (Exhibit 20);

Family Consultant

1. The family consultant Dr S prepared the Child Inclusive Conference Memorandum to Court (CIC) and the Family Report in relation to these parties on 7 October 2016 (Exhibit 22) and 7 April 2017 (Exhibit 21) respectively.

2. In relation to the CIC, Dr S interviewed the parties on 7 October 2016. The father attended by telephone.  Dr S identified the following risk issues:

   ·    Family violence

   ·    Drugs and alcohol

   ·    Mental health

   ·    Criminal history

3. Under the heading ‘Children’ she writes:

   ·    X aged 9 and Y, aged 5 were seen together at their request.

   ·    Y, attends preschool two days per week and will be attending school in 2017. She presented with very poor speech and was extremely difficult to understand. Her older brother X interpreted her statements to the family consultant. The mother reported that Y is currently receiving speech pathology from a local health service.

   ·    Y presented as a happy and cheerful young child was very busy in the family consultant's room.

   ·    Both children reported that they had been hit by the father with a spoon, a belt and a whip. The mother stated that she had only recently become aware of this. The paternal grandparents denied that this had occurred. The father was not asked about this directly due to the limited nature of the late phone interview.

   ·    Both children reported being exposed to family violence. X reported that the father had hit the mother in the stomach. The paternal grandparents appeared to be dismissive regarding this. Both children recalled a time when the mother and they were locked in the bathroom while the father hit tiles with a baseball bat. Both children reported feeling sad and upset whilst this was occurring.

   ·    X is struggling at school according to the mother. He has a history of seeing psychologists (at the school's request) and is currently seeing a paediatrician. He is currently on medication. There is a hypothesis that X has attention deficit disorder.

   ·    X presented as a literal, perseverative, inquisitive and ordered child. He appeared to present more along the lines of autism spectrum disorder, rather than ADHD. School records, psychological records and paediatric records would be useful to the court.

4. Later under that same heading the family consultant writes:

   ·    X spoke about the one visit at Interrelate and how the father had asked lots of questions, until the person who worked there told Dad to stop asking questions. X reported that the father then used rude words at the lady who worked there and then left. The father supported that he had asked a lot of questions and then left but denied yelling at people who worked there.

   ·    X reported that the father had yelled at him earlier this year on a phone call and told him and Y to ‘F off’. X appeared very sad about this. The father admitted that he had got angry at the children for not ringing him regularly and admitted that he yelled at them when they rang. The father again blamed the mother for this and took no responsibility for managing his behaviour and emotions around the children.

   ·    Both children did not wish to see the father or the paternal grandparents in the future.

   ·    X had a perception that he was able to make decisions about whether or not to see the paternal grandparents or the father in the future. X was made aware that the Judge makes these decisions, not X. This may be indicative of the mother informing X that he has the ability to make these decisions.’

5. Under the heading ‘Future Directions' Dr S then wrote:

   ·    Based upon the identified risk factors it is not recommended that the father spend time with the children until the risk factors can be investigated by way of subpoena.

   ·    Based upon the level of distress that a phone call with the father had upon the children, particularly X, it is not recommended that the father have any phone contact with the children until he can control his emotions. There are allegations of mental health issues which may be valid.

   ·    The father is unwilling to be involved with any further supervised time in the future, so unless risk factors are highly exaggerated, no time with the father in the future is a strong possibility.

   ·    The paternal grandparents do not recognise that their son is a potential risk to the subject children. However, they are willing to agree to an order that the father not be present if they were to spend time with the children. Apart from this issue, there appears to be minimal risk issues with respect to the paternal grandparents.

6. Dr S then interviewed the parties on 3 April 2017 for the purposes of the family report. The father contacted the Child Disputes Service prior to the interviews to advise that his current bail conditions required him to report daily to (omitted) or (omitted) Police Stations.  He requested to attend the interviews by telephone.  This requested was granted but precluded any opportunity for the family consultant to observe the father with the children.

7. In her report Dr S outlined the background to the dispute, current parenting arrangements, applications and proposals of the parties, and issues in dispute in paragraphs 34 to 38 of the Family Report. She then went on to outline her interviews with the parties and Mr W and her observations of the children interacting with the mother and the paternal grandparents.

8. Dr S sets out her evaluation in paragraphs 216 to 235 and her recommendations at pages 36 and 37 of the Family Report. In addressing the issues previously identified, Dr S writes:

   ‘217.         With respect to the mother, the children have a primary attachment to her and there are no current issues with respect to the children living primarily with the mother. The mother has completed all drug screens required of her, Y is continuing to access speech pathology and X has regular appointments with a paediatrician. It is strongly recommended the children continue to reside with the mother as they have been since separation.’

   218.  With respect to the mother’s partner, Mr W it is agreed he has a history of short-term methamphetamine use which resulted in a drug-induced psychosis in 2013. During the time Mr W was psychotic, he was charged with criminal offences. Mr W appeared open and honest about his psychiatric and police history. It is a positive that Mr W has no recorded interactions with Police or Mental Health services since 2013. Mr W has completed his requested drug screens, with negative results. The subject children appear to have a warm and strong relationship with Mr W. The paternal grandparents expressed no concerns about Mr W once they became aware of the subpoenaed material. The father continues to express concerns about Mr W, despite being provided with a summary of the subpoenaed material. In the opinion of the Family Consultant, while Mr W is not to using drugs, he has a low risk of relapse for psychosis. If he uses drug (either cannabis or methamphetamine) in the future, he will be at significant risk of psychosis. Mr W appears cognisant of these risk factors and his drug screens support his intent to remain drug-free. Therefore, there seems to be no current risk of harm issues with the subject children residing with Mr W.

   219.  It is agreed the subject children love spending time with the paternal grandparents and the observation confirmed a warm relationship between the paternal grandparents and the subject children. It is highly likely the mother and the paternal grandparents will come to agreement regarding the time between paternal grandparents are the subject children.’

   222. If the mother and paternal grandparents to come to an agreement, it is suggested that the orders continue to reflect day-time with the subject children spending time with the paternal grandparents every three weeks as well as two weekend visit school term. It is suggested that further overnight time (two to three nights) is a one-off in school holidays.

   224. If a positive relationship exists between the mother and the paternal grandmother and grandfather the relationship with the subject children will be flexible, extensive and will probably increase in time over time. It is suggested the paternal grandmother seek out counselling to assist her in resolution of her feelings, and focus upon rebuilding a positive and polite communication with the mother.

9. In relation to the issue of the father’s time with the children Dr S opined:

   234. Given the father's lack of involvement in the court process, his refusal to provide to screens, his possible mental health issues, his current and historical criminal charges, the reported and documented history of family violence, the father's attempt to contact X at school and X's wishes, it is strongly recommended the father spend no time with the children.

   235.  It is acknowledge the father had a relationship with the subject children post separation and if the father is able to follow the request of the court and provide a two year history of clear drug screens, a recent psychiatric or psychological assessment, confirmed history of attendance at a family violence and a anger management program and no criminal charges the two year period of time, it is suggested the father re-apply to the court for time with the subject children.’

10. Dr S also gave oral testimony on the final day of the hearing. At the commencement of her cross-examination, Counsel for the Independent Children’s Lawyer provided the family consultant with the following summary of the father’s oral testimony:

    ‘The father presently remains resident in (omitted) in Queensland. His proposal is that he be allowed to send the children gifts, that he be able to speak with them on the telephone effectively as often as possible and that he spend time with the children in a different supervised contact centre with a view to building toward a unsupervised time and a shared care arrangement.  He tells the Court that approximately 2 weeks ago he ceased using marijuana, that prior to that he had been using on an almost daily basis at a volume of approximately 20 cones per day. He has undergone an anger management course since the last …..in October 2017 and he tells the court that he has also completed what he describes as personal growth material  through the internet programs and primarily You Tube.

    In terms of the mother’s position the children remain with her. X continues to progress well at school on the evidence and continues to remain under the care of a paediatrician and received some psychological counselling as well. Y has ceased to undergo speech pathology having determined that she has reached a level of parity with her peers.

    The mother and paternal grandparents seem substantially agreed as between them as to the time which the children should spend with the paternal grandparents and they are broadly consistent with your recommendations as set out in your report. In their evidence the paternal grandparents express a continuing desire to be a positive influence in the children’s lives. They also have both recognised the need to improve communications with the mother and the mother has indicated her belief that she needs to take steps as well to improve communications with them.

    To that end they have both assured the Court that they are not talking the children about seeing their father soon or those kinds of possibilities and that they are well aware of the need to comply with any restraints the Court may impose. At this time neither of the paternal grandparents has seen the children’s paediatrician and the paternal grandmother has not yet undergone the counselling that you recommended. However, they have both expressed a compelling willingness to undergo that in the future.

    That the father under cross-examination has effectively concede that the relationship was a toxic one in the sense of there being a level of verbal abuse which he describes as being mutual.  He denies any physical violence perpetrated by him, save and except to the extent that he may have done so from time to time in self-defence.’

11. Having taken into account this additional information, the main points canvassed by Dr S in her oral testimony were:

    ·    The father’s two (2) week abstinence from illicit substance is insufficient to determine whether he can remain drug-free.  A two (2) year abstinence would be a far better indicator when he will be also subject to the normal stressors of life;

    ·    During the family report interviews the father rambled, expressed some unusual ideas and did not make sense. His thinking was often tangential and circular.  Those behaviours were consistent with the notes of the father’s behaviour at Interrelate and in her view may be indicative of an undiagnosed mental illness, drug and alcohol abuse or a combination of both;

    ·    Before the father recommences time with the children he should undergo a psychological assessment for any underlying mental health issue or substance abuse disorder, engage in any course of treatment recommended following that assessment together with regular drug screening;

    ·    The father does not see himself as a perpetrator of family violence which is inconsistent with the material produced under subpoena by NSW Police and would benefit from a family violence course if there was a willingness to change his behaviour in the future.

    ·    There is a risk of harm to the children if the father’s time is re-introduced without those identified risk issues being addressed.

The Law

1. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975.

2. The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[4]

   [4] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]

3. Section 61DA of the Family Law Act 1975 provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

4. In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA of the Family Law Act 1975 which provide for a consideration of the child spending equal time with the parents.  If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.

5. Section 60CA of the Family Law Act 1975 provides as follows:

   In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

Parental Responsibility

1. The mother seeks sole parental responsibility for X and Y, a position which appears to be unopposed by the paternal grandparents and father and supported by the Independent Children’s Lawyer.

2. The presumption of equal shared parental responsibility in section 61DA of the Family Law Act 1975 does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or another child or family violence.

3. Family Violence is defined in section 4AB of the Family Law Act 1975.

4. On the available evidence, I am satisfied that the presumption cannot not apply, that the children have been exposed to family violence and that they have, through that exposure, been psychologically harmed.

5. If I am wrong in that regard, I am satisfied that the presumption would otherwise be rebutted. The parties do not and cannot communicate. It would be an inappropriate and onerous burden upon the mother if she was required to deal with, negotiate with, and make a genuine effort to reach agreement regarding major issues concerning the children, with the father.

6. As the presumption of equal shared parental responsibility is rebutted, the Court need not consider equal or substantial and significant time before moving on to the consideration of the other spend time with arrangements.

7. I now wish to consider the primary and additional considerations under section 60CC (2) and 60CC(3) of the Family Law Act 1975.

Primary Considerations: Section 60CC(2)

Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both of the child’s parents.

1. In McCall v Clarke[5] the Full Court stated that the proper approach when considering the issue of meaningful relationship is the ‘prospective approach’ that is, I should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child's best interests, orders can be framed to ensure that the child has a meaningful relationship with both parents.

   [5] [2009] FamCAFC 92

2. In Mazorski & Albright[6] held that a meaningful relationship “is one which is important, significant and valuable to the child.”[7] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[8]

   [6] [2007] FamCA 520

   [7] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [8] Ibid at [122]

3. The report of the Family Consultant is of assistance on this point.

4. I am satisfied that X and Y have a close and loving relationship with their mother. She has proved to be a capable parent ensuring that X is appropriately engaged with medical practitioners following his diagnosis of ADHD and that Y’s speech difficulties have now been addressed following therapy.

5. I am satisfied that the children have a warm relationship with their paternal grandparents and enjoy spending time with them.[9]

   [9] Family Report, paragraph 219

6. The children have not seen their father since May 2016. The family consultant reports that X has a very negative view of the father ‘…based upon the violence he has witnessed the father perpetuate on the mother and the father’s anger. He does not wish to speak to the father on the phone because he is worried that father will swear at him again. X does not wish to spend time with the father in the future.’[10]

   [10] Family Report, paragraph 201

7. While the father has had a relationship with the children post-separation, it is not a close relationship.  This may well be as a consequence of the father’s absence from their lives since 2015 but it is also likely to be as a consequence, at least on the part of X of his lived experience.

8. The notes of Interrelate (omitted) from the supervised visit on 14 May 2014  make for disturbing reading:

   Upon entering the back playroom, both children just looked at STP but did not approach or speak to him. STP said: ‘Hi guys don't I get a hug?’ Both children slowly walked over to STP and cuddled him. STP then began asking the children question after question which included things like, ‘Are you doing (hobby omitted) lessons?’ When X replied, ‘No we are not going to (hobby omitted) lessons any more’, STP in a loud tone said, ‘Why the hell are you not going to (hobby omitted) lessons.’ X replied,’ I don't know but …….. has been teaching us to (hobby omitted) at home.’ STP mimicked X and said, ‘Because ………… is teaching us hey.’ STP's arms were crossed and he shook his head from side to side. Worker looked at STP and signalled to him to stop speaking about (hobby omitted) lessons. STP asked the children if they receive the DVDs and money that he gave them recently. When X couldn't remember the DVDs name, STP in a sharp tone said, ’So you can't even tell me the name of the DVD X. X looked to the floor and said,’ I do, I just can't remember now’. STP then asked Y if she had watched her DVD. Y said she wasn't sure. Again in a sharp tone, STP said, ’So you haven't even watched the DVD.’ X then said, ‘She has, she just can't remember.’ STP in a raised voice said, ‘Don't lie for her X, Jesus.’ STP then began asking both children if they loved him or missed him. STP said this at least three or four times. STP looked at X and Y and said, ‘Do you guys even want to be here?’ Worker intervened and said, ‘Dad, they are happily playing here so I’m sure they want to spend time with you, you should join in and play with them.’ STP continued saying, ‘Well if you don't want to be here or see me, you don't have to’. Worker again intervened and nodded their head to stop the conversation. STP crossed his arms and just looked the other way.

   And then later in the notes:

   STP's voice became raised and concerned and he said, ‘What’s this about Y taking too many vitamins, what the hell were the vitamins around her anyway, how could this happen. Worker nodded to STP gestured to stop the conversation. STP continued saying, ‘Why did it happen, X.’ X looked to the floor and in a quiet whispering tone said, ‘It was just an accident, it's ok.’ STP raised his voice again and said, ‘You shouldn't have let it happen X, what the hell is going on in that household.’ Worker then stopped the conversation. Outside whilst Y was painting. STP again looked at worker and said, ‘No point being here, this is crap, you might as well ring their mother.’ X then asked STP a question and STP walked over to X and did not say any more worker. STP did not join in any of children's games or activities and instead just shook his head continuously. Whilst the children were playing outside, STP told X that Y is going to school next year and she would be going to X's school. At this stage X said that he was probably going to change schools as the one he was at was too expensive. STP replied in a loud tone saying, ‘I don't know why this is happening as I pay for the bloody fees so you should still be going to the same school’.

   And later:

   The children then asked to come inside. Y was sitting at the table playing with play dough and X was playing the Wii. Y looked at STP and said, ‘I have a mozzie bite on my arm.’ X then said, ‘You have had that bite since Christmas time.’ STP's eyes became enlarged when he said, ‘So your telling me, you have had that bite since Christmas and your mother hasn't even taken you to the doctor.’ Both children did not reply and worker intervened and explained STP that he could possibly write a communication sheet regarding the bite and ask LWP more about it and that worker will help him write the sheet. STP shrugged his shoulders and said, ‘This is unbelievable, now being told how and what to write when it's about my children's health, this is crap.’ Worker told STP that they would speak to him about it towards the end of the contact and not now. STP said, ‘No, I want write it now. Worker again explained he couldn't just right to LWP telling her to take Y to the doctors but instead ask if Y had been to the doctors or if she was receiving any creams for the bite, otherwise we could not pass the sheet over to LWP. STP began to raise his voice and yelled, ‘Whatever, go and ring her and tell her to pick the kids up, this is crap.’ Worker stood up and told STP to lower his voice in front of the children. STP yelled, ‘Don't tell me what to do.’  Worker then told STP she was going to end contact and call LWP. STP stood up and pointed his fingers at work and in a raised voice said. ‘No ring her at 5 PM, not now.’ Worker explained to STP they were ringing LWP now and then worker 2 entered the room. Worker 2 took the children to the stairs and out of the room immediately. STP continued yelling and paced back and forth through the back door, Worker asked STP to lower his voice and to sit and talk to worker. Worker told STP that the children did not need to see or hear him yelling and that he is becoming aggressive towards worker. It took worker about 10 minutes of calmly speaking with STP until he was able to sit down on a chair. STP yelled, ‘You have no idea what I'm going through, this is unbelievable, what's the point of going on, I have nothing to live for’.[11]

   [11] Exhibit 9

9. This was clearly a distressing episode for these children.  The father appears to have been intent from the outset to exercise his authority and control both in relation to the children and the contact workers.  He put a critical perspective on most of the information that the children innocently volunteered making it clear to the children that either they or their mother was at fault in some way.

10. When the father was challenged by the contact worker about his interrogation of the children he deflected by changing the subject, becoming defensive or verbally attacking the contact worker or ignoring what the contact worker said.  The father behaved similarly in the course of this hearing.

11. X had already expressed some reservations to the contact worker about seeing the father and was seeking some reassurance from the father that he was loved and that everything would be fine. X was clearly gauging the situation and the father’s changing moods throughout the visits, like a little barometer. Unfortunately, the father was unable to provide X with that reassurance and seems to have spent more energy in conflict than playing and spending time with his children.

12. After the contact worker ended the visit, the children were taken upstairs to await the arrival of their mother.  X apparently initiated a conversation with the contact worker as follows:

    “He said that he was scared when his father yelled loudly and was not sure what to do when he did this. He stated that STP used to do this a lot of the time when they were living together, Y said that she was scared as well.’

13. Sadly, the children do not currently have a meaningful relationship with the father and are unlikely to develop a relationship with the father from which they may derive benefits in view of the father’s behaviours which present an emotional and/or psychological risk to them.

Section 60CC(2)(b) - the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

1. Pursuant to section 60CC(2A), I must give greater weight to section 60CC(2)(b) as against section 60CC(2)(a).

2. The mother does not pose any risk to the children. She describes herself as ‘currently on home duties’ being the primary carer of X and Y and of 18 month old A, the child of her current relationship with Mr W. She has completed all drug screens requested of her by the Independent Children’s Lawyer and they have been clear. She has no criminal history.  She deposes in her trial affidavit to having sought psychological assistance in May 2014 for anxiety and panic attacks arising out of the breakdown of her relationship with the father but otherwise has no mental health issues.[12]

   [12] Mother’s affidavit, paragraph 68

3. The mother has been in a relationship with Mr S since May 2015 though they knew each other since school.

4. In 2013 prior to the commencement of their relationship, Mr W acknowledges that he started using methamphetamine resulting in a drug-induced psychosis.  He was charged with a number of offences including resist officer in execution of duty and behave in offensive manner in/near public place for which he received a 12 month, section 10 a condition of which was that he adhere to the community treatment order.[13]

   [13] Exhibit 18

5. Mr W has been frank and open about his mental health and criminal history and it is noteworthy that his criminal antecedents disclose no further matters since 2013. Mr W has also voluntarily completed drug screens at the request of the Independent Children’s Lawyer which have produced negative results. 

6. These issues were considered by the Family Consultant who wrote:

   ‘In the opinion of the Family Consultant, while Mr W is not using drugs, he has a low risk of relapse for psychosis. If he uses drugs (either cannabis or methamphetamine) in the future, he will be at significant risk of psychosis. Mr W appears cognisant of these risk factors and his drug screens support his intent to remain drug-free. Therefore, there seems to be no current risk of harm issues for the subject children residing with Mr W.’[14]

   [14] Family Report, paragraph 218

7. I accept the opinion of the Family Report writer in this regard and in light of the evidence have greater concerns about the father’s current drug use, his state of mental health and the risks associated with the children being exposed to his erratic behaviours.

8. The father’s case at hearing was in essence that he stopped using cannabis two (2) weeks prior to the hearing, he had completed an anger management and conflict resolution program and studied substantial personal growth material on the internet. [15] He asserted that he does not present any risk to the children. Nonetheless, he was prepared to accede to orders which provided for supervised time (other than at Interrelate (omitted)), telephone communication and liberty to send the children gifts and cards.

   [15] Father’s Affidavit, paragraph 7 & 8

9. Counsel for the Independent Children’s Lawyer submitted that a review of the evidence would lead the Court to conclude that there are three (3) primary reasons why the children continue to need to be protected from their father.

10. The first reason was based on the father’s drug use. Counsel for the Independent Children’s Lawyer submitted that the Court could not be confident that after two (2) weeks cessation of marijuana use the father could give up a habit of many years or, as the father maintains, that it has no effect on his behaviour when it quite clearly has effected the father’s anger, moods and interactions with the children and the adults involved in these proceedings.

11. I accept that the father’s history of drug use is a significant risk factor for the children.

12. The second reason was based on the father’s communications with the children.  Counsel referred to the contact visit at Interrelate and the father’s evidence that he saw no real issue in communicating with the children in this fashion.

13. Counsel also referred to the evidence contained in the CIC memorandum that the father had verbally abused the children during telephone contact causing them to emotional distress.  

14. It is clear from the evidence that the children’s current view of their father is characterised by fear and I find that that fear is genuine.

15. Counsel’s third reason was based on the history of family violence and the potential for the children to be exposed to family violence.  Counsel for the Independent Children’s Lawyer said there was a ‘body of evidence to suggest that the father was violent both during and after the relationship……… that the children had witnessed that violence, and in particular X has been adversely affected by it.’[16]

    [16] ICL Case Outline , paragraph  6a

16. I will deal with the issue of family violence in greater detail under additional considerations sections 60CC(3)(j) & (k).

17. A fourth concern for the Court that was referenced by Counsel for the Independent Children’s Lawyer is the father’s mental health. 

18. The assessment of the risk posed by the father’s mental health is rendered much more difficult by the fact that the father has not consulted any doctors or medical professionals since 2014. It is Dr S’s assessment of the father, and this Court’s observations of him in the course of this hearing, that he is a person with significant emotional dysregulation. 

19. The father tendered no evidence and there was no subpoenaed material regarding any mental health issues of the father. Dr S’s observations and evaluation is the only reliable evidence before the Court.  She says:

    ‘Mr Greenwood presented as rambling at times throughout the phone interview and appeared somewhat quick in his speech. He presented with tangential thoughts at times and appeared circular in his reasoning. However, he was polite and reasonably calm during the interview. He denied using drugs on the day of the interview but admitted to smoking cannabis on a fairly regular basis.’[17]

    [17] Family Report, paragraph 168

20. And later in the report: ‘In summary, the father appeared either drug affected and/or experiencing symptoms of mental illness during the phone interview.  The Family Consultant has not had face to face contact with the father during this matter so there has not been a thorough assessment of the father’s mental health presentation.’[18]

    [18] Family Report, paragraph 184

21. I am satisfied that there is a continued need to protect the children from the risk of harm that is directly attributable to the father’s mental health and its largely unknown status.

22. I am satisfied that there is no benefit in requiring X and Y to spend time with the father, even supervised time, given the risks the father presents to them even in a controlled environment such as a Contact Centre.

23. The father recognised that the supervised visit was not a success but took no responsibility for the outcome, rather he blamed the mother. He sought to revise history by insisting that he had decided not to attend further visits rather than Interrelate withdrawing its services.

24. It is noteworthy that Interrelate were to prepare to facilitate a further visit until the father’s disclosure that he had audio-taped the session in contravention of their service agreement.

25. On the evidence available to the Court, there seems to be no available options to adequately respond to the unacceptable risks posed by the father and enabling the children to have some relationship with him whilst protecting them from those risks.

1. In relation to the paternal grandparents, the risk alleged by the mother identified is that they are not a protective factor for the children. She says that they have continued to deny the father poses any risk to the children and/or made excuses for his poor behaviours in the face of considerable evidence to the contrary.  However, the family consultant was of the view that the paternal grandparents appear to be very child-focused and would comply with any restraints imposed by the Court upon the children having any form of contact with the father.

2. I now turn to the additional considerations. 

Additional Considerations:  Section 60CC(3)

Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

1. X is 9 years old.  The family consultant described him as ‘a reserved child who is anxious about the Court proceedings.’[19]X was seen in August 2016 by paediatrician Dr J who formed the view that X met the criteria for Attention Deficit Hyperactivity Disorder and prescribed the stimulant medication Vyvanse.

   [19] Family Report, paragraph 197

2. The family consultant reports that X is ’a very literal child and lives in a world that is Black or White. He cannot understand the middle ground, the world of Greys.’

3. Y is 5 years old. She was described by the family consultant as ‘a happy child who continues to have issues with her speech.’[20]

   [20] Family Report, paragraph 196

4. The family consultant says that of the two children X appears the one most affected by the Court process.

5. The mother says that Y does not have a meaningful relationship with the father. She has never lived with the father and was around three (3) or four (4) years old when she ceased spending time with the father. 

6. Both children appear to have a loving relationship with the paternal grandparents and both children expressed a desire to spend time with their grandparents though X was of the view it should not occur every weekend.

7. X and Y are very young children. I accept that X is fearful of his father given his exposure to family violence and his lived experience of the father’s behaviours and communications with him. I give some weight to X’s view that he does not wish to see his father but those wishes are not determinative of the issue.

Section 60CC(3)(b), the nature of the relationship of the child with: 

(i)  each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child).

1. The children’s primary attachment is to their mother[21]. They appear to have a ‘very close and warm relationship’ with their mother, Mr W, their sibling A and each other.[22]

   [21] Family Report, paragraph  217

   [22] Family Report, paragraph 215

2. The children appear to have a ‘warm relationship’[23] with the paternal grandparents and enjoy spending time with them.  The family report observations appear to have gone particularly well.  Y was described as a ‘enthusiastic participator’ who had a lovely time playing dolls with the paternal grandmother.  X ‘engaged in talk and discussions…..interacting willingly and happily with the paternal grandfather.’

Section 60CC(3)(c) - the extent to which each of the child’s parent has taken , or failed to take, the opportunity:

[23] Family Report, paragraph 219

(i)     To participate in making decisions about major long- term issues in relation to the child; and

(ii)   To spend time with the child; and

(iii)    To communicate with the child.

1. The mother was the children’s primary carer during the course of the parents’ relationship and since separation the responsibility has fallen solely to her.

2. The father has not sought to participate in the children’s lives to the extent that he might.  At the commencement of these proceedings the father was living in (omitted), approximately 30 minutes south of (omitted).  By the time of the CIC interviews in October 2016, the father was living in (omitted).  He says that he moved to Queensland because ‘I wasn’t able to see my children and it was very upsetting.’[24]  It seems illogical that the father should declare that he was missing the children and then move 480 kilometres away from the children and his parents who were his primary source of support.

   [24] Father’s Affidavit, paragraph 4

3. It is nonsensical for the father to propose to the family consultant a shared care arrangement for the children when he lives in Queensland and the children in New South Wales. [25]

   [25] Family Report, paragraph 33

4. The father failed to attend in person the CIC on 7 October 2016 and the Family Report interviews on 3 April 2017. He failed to comply with the Independent Children’s Lawyer’s requests for drug screening, failed to complete the recommended parenting after separation course and belatedly completed the anger management course.  He failed to comply with the trial directions and when I challenged him about this on the morning of the hearing, becoming loud and combative.

5. More importantly, however, he has failed to take up the opportunity to spend supervised time at the Contact Centre. Only one session occurred during which the children became distressed as a result of his behaviour. The mother reported to contact workers that the children were unsettled following the session and that Y had nightmares. By focusing on his own needs and the parental conflict, the father had ensured that the children’s most recent experience with him had been an unpleasant one.

6. With respect to the paternal grandparents, they have taken every opportunity to see and spend time with the children.    

Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. Following separation the mother has been responsible for the maintenance of the children.  Since 2015, she has been assisted by her partner Mr S.

2. Throughout the proceedings the father made numerous references to his paying the school fees but that was clearly untrue – the paternal grandparents appear to have been the ones who paid or contributed to the private schools fees when the children were attending the (omitted) Primary School.  Since 2017 the children have been attending (omitted) Primary School.

Section 60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. The orders will not involve a change that will require any significant adjustment on the part of the children. They will continue to live with their mother and spend a little more time than they currently do, with the paternal grandparents.

2. The children have not spent time with the father since May 2016. It would be a significant change in their circumstances if time with the father was re-commenced. Given X’s strongly expressed views about the father it is reasonable to assume that the father’s reintroduction would come at some psychological cost to X.

Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. There are no practical difficulties associated with the children spending time with the paternal grandparents. The mother lives in (omitted) and the paternal grandparents live in (omitted), approximately a 30 minute drive away.

2. The children both attend the local public school.  In 2018 X will be in Year 4 and Y in Year 1.

3. There would be significant practical difficulties in the father spending time with the children given he now resides in Queensland.  He seeks at least initially supervised time at a Contact Centre other than Interrelate.  No evidence was led by the father in relation to alternate venues or service providers. 

4. The evidence suggests that the father’s time should only be professionally supervised. The family consultant says:

   ‘Given the significant risk of harm issues raised by this report it is not considered appropriate for the father to have unsupervised time with the subject children in the future……..the paternal grandparents are not appropriate supervisors, now or in the future, as they have a tendency to believe and support the father.  Given the material provided by Interrelate, it would not be appropriate from a child-focused perspective to place the children back into such an environment.’[26]

   [26] Family Report, paragraph 233

5. The cost of professional supervision would be a significant cost imposition for the father who is currently unemployed.

6. It would be impractical for the supervised time to occur anywhere other than near the children’s residence in (omitted) but the father has rejected Interrelate as service provider.

Section 60CC(3)(f) - the capacity of:

(i)     each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. The mother has the capacity to provide for the children’s physical, emotional and intellectual needs.

2. The father has no proven capacity to meet the needs of the children.  The mother was their primary carer during the relationship and post separation the father spent time with the children at the mother’s residence or at the residence of the paternal grandparents.

3. The father’s capacity to meet the children’s needs is impaired by reason of him being a perpetrator of family violence. It is well recognised by the Courts that family violence has a deleterious effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family and social relationships.[27]

   [27]Amador v Amador (2009) 43 Fam LR 268 at [95].

4. It is noteworthy that material produced under subpoena by X’s psychologist Mr D suggests that X had started to model those anti-social behaviours:

   ‘Supported Ms Johns to continue to provide positive messages regarding prosocial behaviour and alternatives to aggression. School continues to report X is confused regarding Mr Greenwood’s messages around ‘hitting others if they pick on you’. X miss cues social messages from peers and at times and responds with aggression.’[28]

   [28] Exhibit 12

5. The father’s use of illicit drugs remains a concern, even though the father says that he had stopped using cannabis two (2) weeks prior to the hearing. In the absence of any corroborative evidence by way of drug screen results or his engagement in appropriate support services such as relapse prevention, I am not satisfied that the father’s drug use is no longer a material issue.

6. An intoxicated parent poses a clear risk to children both from the perspective of capacity to care but also as an appropriate role-model.  That argument is also valid in relation to the concerns for the father’s mental health.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

1. The evidence relevant to this factor has been referred to earlier.

Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:

1. This was not a relevant factor.

Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The evidence relevant to this factor has been referred to earlier.

Section 60CC(3)(j) & (k) -any family violence involving the child or a member of the child’s family.

1. The mother has alleged that there has been family violence during the relationship and post-separation. She made the allegation to the Family Consultant and deposed to the details in her affidavit. There have been three (3) apprehended violence orders against the father and he has been twice convicted of contravene apprehended violence orders.  There were allegations about physical violence and controlling and manipulative behaviour on the part of the father. 

2. The father conceded that there had been verbal abuse which he described as mutual.  He denied any physical violence save to the extent that it was necessary for reasons of self-defence.  In cross-examination with Counsel for the Independent Children’s Lawyer with regard to the May 2014 incident when the mother alleged she was punch in the sternum, the father denied the allegation and said that it was not he but the mother who had been the aggressor, that she had ‘bashed me for fifteen (15) minutes’ and threatened him with a knife. Counsel for the Independent Children’s Lawyer asked the father why he was only raising this allegation now and had said nothing at all about it in the 18 months that these proceedings had been running.  The father replied that he had not wanted to say anything bad about the mother who was otherwise a very good parent to their children.  I found the father’s evidence on this point implausible and find on the balance of possibilities that the father did assault the mother by punching her in the chest and for which she sought medical assistance.

3. The father told the family consultant that he did not accept any responsibility for being a perpetrator of family violence and ‘views the mother as the primary instigator of family violence in the relationship.  He did not believe the information provided to NSW Police which consistently reported the mother as the victim of family violence.  Mr Greenwood informed the Family Consultant that because he was not spending time with the children and because there was no good reason for this, he is the victim of Family Violence.’[29]

   [29] Family Report, paragraph 171

4. I do not accept the father’s denial of family violence. He has two (2) convictions for contravene apprehended violence orders, therefore a Local Court Magistrate on those occasions must have been satisfied beyond reasonable doubt that the father had committed the offences alleged.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is preferable to make the orders proposed by the Independent Children’s Lawyer, as they would lead to stability in the lives of the children and preserve and promote the children’s relationship with the paternal grandparents.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. In the course of final submissions the Independent Children’s Lawyer invited the Court to consider making an order which would address any potential Rice & Asplund issue and take into account the following recommendation of the family consultant:

   ‘It is acknowledged the father had a relationship with the subject children post separation and if the father is able to follow the requests of the Court and provide a two year history of clear drug screens, a recent psychiatric or psychological assessment, confirmed history of attendance at a family violence and a anger management program and no criminal charges in the two year period of time, it is suggested the father re-apply to the Court for time with the subject children.’[30]

   [30] Family Report, paragraph 235

2. I am not inclined to make the order proposed by the Independent Children’s Lawyer.  The father clearly sees himself as a victim of family violence and of a court system that would suggest that he posed any form of risk to his children.  I have some difficulty in the timing of the father’s decision to cease his use of cannabis. It appears to have been engineered solely for the presentation of his case rather than from a genuine desire and willingness to change.

3. The father does not believe he presents any risk to the children. He says his anger issues were solely in relation to his not seeing the children.

4. He says that he learnt a lot from the anger management course he undertook in October 2017 but this seems at odds with his demeanour and presentation during the hearing.

5. The family consultant has set out a clear pathway for the father if he chooses to take up that advice.  If he does, he may re-apply to the Court to spend time with the children at some future date.

6. I have not made any orders directing the paternal grandparents to meet with X’s paediatrician or the paternal grandmother to seek out counselling to ‘assist her in resolution of her feelings, and focus upon building a positive and polite communication with the mother.’[31]

   [31] Family Report, paragraph 224

7. Both the mother and the paternal grandparents have asked that the spend time orders be couched in terms that allow the arrangements to be flexible.

8. If communication between the mother and the paternal grandmother improves and their relationship is polite, positive and inspires a sense of trust in the mother, then those flexible arrangements may result in the paternal grandparents spending more time with the children.  If the paternal grandparents continue to harbour resentment against the mother then it is likely that the paternal grandmother will have the minimal time provided for under these orders.  The ball, as they say, is very much in the paternal grandmother’s court.

Conclusion

1. Having regard to the respective applications and submissions and in light of the available evidence and relevant statutory provisions, I am satisfied that the orders are ones that are appropriate and in the children’s best interests.

I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of Judge Costigan

Date:  1 February 2018