Jones and Fulton

FAMILY COURT OF AUSTRALIA

JONES & FULTON

[2007] FamCA 712

FAMILY LAW – CHILDREN – With whom a child spends time - Time with father – Domestic violence – Positive finding risks of time spent against benefits of time spent – Terms and conditions

APPLICANT:

MR JONES

RESPONDENT:

MS FULTON

FILE NUMBER:

BRF

4613

2002

DATE DELIVERED:

1 June 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

The Honourable Justice Jordan

HEARING DATES:

3 August 2006, 28 September 2006, 31 October 2006,
7 December 2006, 1 March 2007, 28. 29, 30 & 31 May 2007 and 1 June 2007

REPRESENTATION

THE APPLICANT FATHER:

Appeared in person

THE RESPONDENT MOTHER:

Mr Hodges of Counsel, instructed by Haney Lawyers

THE INDEPENDENT CHILDREN'S LAWYER

Mr McGregor of Counsel, instructed by Dooley Solicitors

Orders

IT IS ORDERED THAT

The child, T, born in January 2001, live with the Mother.

The Mother have sole parental responsibility for the said Child.

The party in whose care the said Child may be from time to time shall be responsible for all non-major long term issues in relation to the said Child.

(a) Until the said Child commences school in 2008 and until the Father completes the therapy referred to herein, the said Child shall spend time with and communicate with the Father at all reasonable times as shall be agreed to between the parties and in default of agreement as follows:-

(i) each alternate weekend commencing 9.00 am Saturday and concluding at 4.00 pm Sunday;

(ii) Christmas Day from 9.00 am to 1.00 pm;

(iii) Father’s Day and the Father’s birthday from 9.00 am to 4.00 pm.

(b)From the commencement of the school year 2008 or upon completion of the therapy referred to herein, whichever event shall occur last in time, the said Child shall spend time with and communicate with the Father at all reasonable times as shall be agreed to between the parties and in default of agreement as follows:-
(i)     each alternate weekend from after school Friday, or after school Thursday if Friday is a Public Holiday or a pupil-free day, with the Father to collect the said Child from the school, until 5.00 pm Sunday, or 5.00 pm Monday if Monday is a Public Holiday or a pupil-free day, with the Mother to collect the said Child from the Father’s home;
(ii)    from after school on each alternate Monday, being the non-contact Monday, with the Father to collect the said Child from school and return the said Child to the Mother at 6.30 pm on that Monday;
(iii)   for the first-half of the school holiday period applicable to the said Child’s school which commences in odd-numbered years and the second-half of such holidays which commence in even-numbered years;
(iv)    Father’s Day and the Father’s birthday from 9.00 am to 4.00 pm;
(v)     the time in orders 4(a)(i) and 4(b)(i) shall be suspended during the school holidays applicable to the said Child’s school and shall recommence on the first weekend after school resumes when the said Child spends time with the Father for the first-half of the holidays and the second weekend after school resumes when the said Child spends time with the Father for the second-half of the holidays;

The Father’s time with the said Child be suspended on the following occasions:-

(a)from 9.00 am on Mother’s Day;
(b)from 9.00 am to 4.00 pm on the Mother’s birthday.

(a) The Father communicate with the said Child by telephone each Tuesday and Thursday between 6.30 pm and 7.00 pm.

(b)When the said Child is with the Father, the Mother communicate with the said Child by telephone each Tuesday and Thursday between 6.30 pm and 7.00 pm.

The Australian Federal Police remove the name of the child, T, born in January 2001, a male, from the PACE Alert System/Airport Watch List.

The Mother be at liberty to take the said Child on holidays outside the jurisdiction of the Commonwealth of Australia provided:-

(a) the trip falls within the Mother’s designated school holiday period;
(b) the Mother shall give not less than two months notice in writing of the intention to take the proposed trip, including:-
(i)the dates of departure and return;
(ii)the country or countries it is proposed to visit;
(iii)the addresses (including telephone numbers) of the places at which the said Child will be staying and a full itinerary;

(c) not less than one month prior to departure, the Mother shall provide to the Father a copy of the said Child’s and the Mother’s return ticket.

(a) The parties utilise a communication book in relation to the said Child and such book to travel with the said Child at changeovers.

(b)The parties be at liberty to otherwise communicate by email or text message.

Neither party denigrate the other party in the presence of, or in the hearing of, the said Child.

Each party inform the other as to their respective addresses and telephone numbers within seven (7) days of change.

The said Child be known by the names THJ and the Mother and the Father ensure that the said Child is known by those names on all documents and registers.

Each party notify the other of any accident or medical emergency involving the said Child whilst the said Child is in that party’s care under these Orders as soon as reasonably practicable.

(a) The Father attend the following counselling:

(i) six individual face to face counselling sessions at Lifeline B addressing the issues of Anger Management and Family Violence in preparation for the course set out in paragraph 14(a)(ii) hereof;
(ii) “Exploring Anger for Men” Group therapy course for a period of 8 weeks at Lifeline B.

(b)The Father provide the Independent Children’s Lawyer a letter from Lifeline B confirming completion of the six individual counselling sessions as set out in paragraph 14(a)(i) hereof and a certificate of completion of the course as set out in paragraph 14(a)(ii) hereof.
(c)The Father meet the costs of any such therapy.

The parties and the Independent Children’s Lawyer be at liberty to apply in relation to these Orders on the giving of fourteen (14) days notice.

(a) The appointment of the Independent Children’s Lawyer be extended to 1st June 2008.

(b)Subject to further Order, the Independent Children’s Lawyer be discharged on 1st June 2008.

That pursuant to s65DA(2) and s62B, 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 an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Exhibits 3 and 4 be returned to the Father immediately upon the expiration of the appeal period.

IT IS NOTED THAT

The liberty to apply order is intended primarily to enable the Independent Children’s Lawyer and the parties to have the Court address any relevant issues relating to the Father’s undertaking and completion of the prescribed therapy.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Jones & Fulton

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF4613/2002

MR JONES

Applicant

And

MS FULTON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Sorry for the number of false starts, ladies and gentlemen, this matter has continued to present its challenges right through the process, including the judgment-writing process.

Issues

This is a case relating to the parenting orders and future welfare of T, the 6 year old son of the applicant father and respondent mother. He was born in January 2001.
The parties commenced cohabitation on 15 September 1998 and separated in April of 2002, when T was 15 months old.
The parameters and key issues of this case became quite narrow and, as a consequence, avoid the necessity of a detailed analysis of questions of fact and principle.
The mother's continuing primary care of T is not in question, it being agreed that T should continue to primarily live with his mother in Brisbane. Issues of shared parenting were touched upon, but the father in the end has not pressed for equal time. He resides on the Gold Coast and acknowledges the realities of the parties' longstanding inability to communicate.
He seeks orders enabling him to have more time and a more significant relationship with his son and, in particular, he seeks time with him on alternate weekends from Friday afternoon to Sunday afternoon, alternate Mondays after school to 6.30 pm, and half all school holidays. He seeks other incidental orders relating to specific days, telephone contact and ancillary orders.
The mother says she acknowledges the mutual love and affection shared between the father and son, and says that she is fully supportive of the principles of the value of enabling a child to have significant time and a meaningful relationship with each of his parents, but contends that, in this case, the risks associated with such contact between father and son are such that T would be exposed to harm if orders were made in terms of the father's proposed orders. She contends that the only appropriate contact between T and his father would be some form of a limited, supervised contact regime.
The central factual issue requiring determination is the allegation of the mother that she was the victim of family violence, as were her children, during the relationship between the parties, and that the father's current partner and her son are ongoing victims of family violence, and that the presence of T in the father's household exposes him to an unacceptable risk of abuse, or to the harm associated with his exposure to the father's abusive conduct.
Although there is no such thing as a single issue case, having regard to the scope of matters necessarily taken into account under the provisions of the Family Law Act, on the particular facts of this case, the matter has been largely conducted by each of the parties and the Independent Children's Lawyer on the basis that the Court needs to determine these questions of family violence as a central issue, and much will flow from the Court's determinations in that regard.
Essentially, if the Court determines that there has not been any history of family violence, then all other factors would appear to indicate that T should have the opportunity to enjoy the time with the applicant father as sought by him. If the Court determines that there has been a history of family violence, then supplementary questions emerge requiring the Court to examine a number of issues, including the nature and extent of such family violence, the risks of future family violence, and the prospects of harm to T if he is exposed to such family violence, and issues relating to that need to protect T from such harm.
As part of that process, the Court will then need to measure those risks against the potential benefits of T’s ongoing meaningful contact with his father and the potential harm to him of further limiting his relationship with his father.

Background

It is necessary to identify that, when the parties entered into their relationship, the mother had the full-time care of two children from a previous relationship, J, who was born in December 1982 and was, therefore, 15 at the date of this relationship, and M, who was born in October 1985, and was therefore 12 at the time of this relationship.
The father acknowledges that there were difficulties in his relationship with those children. J and M assert that they were, in fact, abused by the father and I will return to their allegations later.
The father has repartnered. He has been in a relationship with Ms P since early 2004, and they have been cohabiting on the Gold Coast since June of that year.
Ms P has the full-time care of her 13 year old son, C. The applicant father and Ms P live on the Gold Coast. The respondent mother resides with M and T in Brisbane.
T commenced primary school this year at SP School, where he is apparently doing well.

The Allegations of Family Violence

Although the issue of family violence is central to all of the mother's concerns and fundamental to her case, there is surprisingly little detail about such matters in her affidavit of evidence-in-chief filed on 2 May 2007. In pars 117 and 118 of that affidavit, the mother asserts that the applicant was violent towards the children and herself throughout their marriage, and that such violence was not only physical but also psychological through denigration, mental manipulation and ridicule. In par 127 of that affidavit, she asserts a belief that the applicant's violent behaviour is continuing.
In their affidavits of evidence-in-chief, the mother's adult children support the mother's claims, but only in the same broad terms. J has asserted in par 21 of her affidavit that their life with the applicant had been characterised by violence, intimidation and denigration. She said she had been threatened in the past with physical violence, and was habitually referred to as a "bitch" or "slut". In par 25, she says: "There were other violence issues between my mother and the applicant", but failed to provide any detail of such matters, saying that they would be outlined by her mother. J then makes the bald assertion that she believes that the applicant's violence and intimidating behaviour is continuing.
It is necessary to note that J has been living in Singapore since November of 2004, not long after the father and Ms P commenced cohabitation, although she has returned to Australia for visits on three occasions in 2005, twice in 2006, and once in 2007.
Similarly, in his affidavit, M makes the brief and broad assertion that he was subjected to the applicant's violence during the time he lived with him, although, as I say, he is similarly abrupt in his detail. He says that the violence was both physical and verbal, and gives a two-line description of an incident when he says the applicant pulled his shirt up against his throat and thumped him against a wall repeatedly.
That represents the totality of the evidence on these matters set out in the affidavits of evidence-in-chief of the three deponents I have referred to.
The mother did not give any further detail of the case of family violence during her relationship in the course of her oral testimony, and her children were not called to give evidence as they were not required by the Independent Children's Lawyer or the applicant father.
Of course, there is a vital second limb to the mother's case in the form of her assertion that there are serious issues of family violence in the applicant father's current household, and in some ways it could be argued that this is the more relevant inquiry, because it would be the only violent relationship which now exposes T to any risk of ongoing harm.
Further, the mother was to assert before me that the very thing she says Ms P has complained about defined the type of treatment she experienced during her relationship with the father.
However, a difficulty for the Court now is that, in order to determine the nature and extent of family violence and the risks for the future, one necessarily should have regard to the nature and extent of any past abuse. The lack of particularity in the affidavit and oral testimony of the mother and the affidavits of her children makes that task all the more difficult.
For reasons I will later explain, I have no doubt that the mother perceives herself as the victim of domestic violence and that there is some justification for that perception. Similarly, I have no doubt that the mother has genuine concerns that all of her children have been victims and that T remains at risk.
I am much less able to judge what was the real extent of the father's inappropriate conduct during his relationship with the mother and her children, and I will return to that matter later.
What I have identified as the second limb of the mother's case does not suffer from the same deficits. There is great detail in the mother's case about the nature and extent of the alleged family violence in the father's current household, and a great deal of evidence is produced to support those claims.
The mother asserts that the father continues to conduct himself in a violent and abusive way in his relationship with Ms P. The many sources of information include her own observations, those of her adult children, statements made by C and T and, most importantly, information provided to the wife and to another Court by Ms P herself.
The mother says that she was speaking to Ms P from time to time throughout 2006, largely at the behest of Ms P herself, and that in the course of those discussions Ms P made a number of damning complaints and admissions about the treatment of herself and C at the hands of the applicant father. The mother has set those matters out in great detail in pars 127 to 184 of her affidavit of evidence-in-chief.
I do not intend to repeat the details set out in those paragraphs, but I acknowledge they represent essential reading in this case. What they do disclose at face value is a relationship riddled with conflict and characterised by the father's aggressive, controlling and abusive treatment of Ms P and her son, C.
In the material I have referred to, the mother highlights two episodes in particular involving a series of telephone conversations which have become critical in this case. The first was made at the end of July 2006, and the second episode was on 7 and 8 September 2006.
In her affidavit, the mother describes that, in the former set of telephone conversations, Ms P rang distressed and crying. She said she was informed by Ms P that the applicant father had left the relationship; that his abusive behaviour was continuing; that he flew into a rage and stormed out of the house, and that she was fearful of the prospect of his return to the house.
I should record that this matter has been before the Court for many years. Throughout the proceedings before the Court, the mother has consistently maintained that there was domestic violence in her relationship, and from the commencement of the proceedings before me in August of last year the mother clearly asserted her concerns about violence in the father's current relationship.
The father was, when the matter was before me, fully aware of the nature and extent of the mother's allegations, both in terms of his relationship with her and in terms of difficulties in his relationship with Ms P. On a number of occasions, he vehemently denied all such allegations.
In that context, the next incident referred to in the mother's material was - to use the colloquialism - an absolute bombshell for all concerned. Late on the evening of 7 September, the mother received a phone call from Ms P. She described how Ms P was distressed, crying and hysterical. In that conversation, Ms P described how there had been an altercation between herself and the father and that she was fearful of him. She informed the mother that she was, in particular, terrified that the father had guns and that he might use them on her and C. During the course of that and subsequent telephone calls, Ms P advised the mother that the police attended at her home on two occasions and that, on the second time, they located the guns, or were provided with the located guns.
Further, in the course of those conversations, Ms P was to inform the mother that the father had been abusive in the past; that he had thrown her across the room, and that he had hit C across the face. She was to say that both herself and C were in constant fear of the father, and that she intended to obtain a protection order.
Ms P rang the mother again on 8 September and confirmed that she had received that order, reiterated that she remained fearful, and that she was moving into a safe house over the course of the weekend.

In addition, Ms P begged the mother not to send T to contact out of a stated concern that, if she did so, she may never see him again. Needless to say, the mother was alarmed by this information, sought legal advice, immediately took steps to suspend contact and urgently brought the matter back before this Court.
When the matter was before me pursuant to that interlocutory application, Ms P filed two affidavits admitting the altercation, the phone calls and the domestic violence application. In that material and her oral evidence given last year, she asserted that the domestic violence application, or most of the contents, were fabricated by her, were subsequently withdrawn by her, and that the parties had reconciled. She asserted in her material that neither she, nor C, nor T, was at any risk from the father.
It is unnecessary to review the determination made by the Court on that occasion, save to observe that the actual domestic violence application of Ms P was not before the Court on that occasion.
Understandably, the mother asserts that the events of 7 September serve to confirm her worst nightmare, and she would assert that they should be more than enough to now convince this Court about the veracity of her claims and the fact that the father's household does not represent a safe environment for T.
In terms of my task, for reasons related to the logic of the greater emphasis necessarily being upon current and future risks and those related to the shortcomings in the evidence of family violence in the earlier relationship, I must primarily focus upon the more recent history and the cases of the parties in relation thereto.
The father continues to deny all but one of the allegations of physical abuse. He acknowledges conflicts in his relationships with each of his partners, and the now adult children of the respondent mother. He says he acknowledges his contribution to such conflict. He acknowledges that there was a serious disagreement between himself and Ms P on 7 September. He asserts, however, that an understanding of the circumstances and events of that night should be sufficient to reassure the Court that T would not be at risk in his father’s home. He said that there were discussions about marriage during the evening and he says that, when those discussions became heated, he ultimately dealt with such conflict by literally walking away from it and staying away from the home overnight. He said that this is a common approach used by him when dealing with escalating conflict.
In relation to his current circumstances, he says that, although he and Ms P have had their differences, they have largely revolved around his present inability to commit to the type of relationship being sought by Ms P in the context of his current preoccupation with the pursuit of his relationship with his son, T. He says that the strains of five years of litigation have taken their toll on everyone. He says that, notwithstanding all of those matters, he loves Ms P, they have remained together, and it is his hope that, once these matters are satisfactorily resolved, they can move forward to enjoy a life together.
The father continues to vehemently deny any physical abuse of the mother, Ms P, T or C. There was one incident where he acknowledges that his response to some defiant behaviour by M was entirely inappropriate, when he did lift the child up by his shirt around his neck region and thrust him against the wall, largely as asserted by M in his affidavit. However, the father says that this was an entirely isolated incident which he now deeply regrets.

Evaluation

I turn to the issues of fact. The lines between the parties have long been drawn. Five years of never-ending allegations of serious abuse on the one hand, met by five years of blanket denials on the other.
In that context, the evidence of Ms P was necessarily going to be of critical importance to each of the parties. She provided affidavit evidence. She gave evidence before me in the proceedings in October 2006. As was to be expected at trial, she was subjected to extensive and searching cross-examination. She was always likely to be in a difficult position. She acknowledged having discussions with the mother and of making phone calls to the mother. She acknowledged providing the mother with much of the information that is set out in the respondent's affidavit. She confirmed the context of the telephone conversations in September, and that she made the DVO application that weekend.
She asserted before me that the information provided to the mother in the earlier conversations during 2006 arose in the context of her seeking out the mother to discuss T, with a view of developing some reasonable rapport. She said that much of the information provided was largely responsive to the mother's persistent suggestions about the father's behaviour.
As to 7 September, Ms P explains what happened by saying that, at that time, she was hurt, angry and irrational after the father's rebuttal of her overtures in terms of marriage, and as a consequence of her subsequent discovery of naked women on his computer. She says she was motivated by spite, and was intent on hurting the mother and, in particular, the father. She says she struck out in ways she knew would most cause him harm in terms of his relationship with T.
At the commencement of these proceedings, Ms P’s written application in the domestic violence proceedings was produced and tendered and has now become Exhibit 2 in these proceedings. That document has had the effect of greatly adding to Ms P’s difficulty in having the Court accept her post-September 8 account of matters.
Ms P and, more relevantly, the father, are met with the task of persuading the Court to accept that, although she lied to the mother consistently throughout 2006 in relation to serious, false allegations against the man she was continuing to live with, and although she lied to the mother in the most serious and alarming ways on the weekend of 7 and 8 September, and although she lied to the police, and although she lied in her application for domestic violence sworn in a document before a Commissioner of Affidavits, I should believe what Ms P now says is the truth, I should believe that she is telling the truth when she said she was behaving as a serial liar throughout 2006.
I am afraid that that most difficult task has proved to be well beyond the father and Ms P. A person who appears before my Court and any Court with the baggage of being required to admit, as a starting point, that she has lied on oath, is always going to be starting from a long way behind in the credibility stakes. However, even before one gets to that stage, there are inherent problems in the propositions she would ask the Court to accept.
I pose the obvious questions. What are the probabilities about any intelligent person choosing to falsify any serious allegations against their current partner for no apparent gain or reason? If that is a difficult concept to accept, the degree of difficulty is magnified many times over if one factors in the particular givens in this case.
Firstly, the person embarking upon such an unlikely, foolish exercise had the awareness that her partner's son was his world. Secondly, she knew that he was embroiled in all-consuming litigation about his future relationship with his son. Thirdly, she was acutely aware that his former partner was basing her entire case against him on the grounds of the allegation that he is capable of domestic violence, and that such conduct should disqualify him from future contact. If one was, for no apparent reason, going to invent false stories of abuse against one's current partner, one would think that the very last person you would share such senseless fabrications with and share such a senseless frolic with would be, to adopt the term used by counsel in this matter, the enemy.
I accept the evidence of the mother. I accept that Ms P told the mother the things set out by the mother in her affidavit of evidence-in-chief. I do not accept that Ms P invented those stories. I do not accept that she was overborne by the mother to engage in some creative exercise.
I find that the information provided by Ms P to the mother was a true reflection of the experiences of the mother in her relationship with the father.
I then turn to Exhibit 2, which is a document which potentially adds some very significant layers to the allegations against the father. Needless to say, I reject Ms P’s assertion that the allegations contained therein are a complete fabrication. Many of the matters set out in that document are largely identical to the earlier complaints made by Ms P to the mother from time to time.
At the same time, that written complaint does flesh out some further detail and, in particular, provides information on what must now be seen to be two most serious episodes of family violence. What Ms P described in Exhibit 2 about the incident on 27 July is most serious indeed. In that document, Ms P describes how the applicant father went into a rage during an argument, pulled her around a room by the hair, threw her to the ground, choked her around the throat and said at the same time that she made him so mad, that he could kill her.
In that document, Ms P also described a very serious incident on Father’s Day, 3 September. It is clear that C was behaving badly, but the father entirely inappropriately struck C on the face, leaving hand marks that lasted approximately 20 minutes. The balance of Ms P’s written statement largely affirms what she had previously told the mother about the father's propensity to be verbally threatening, abusive, aggressive, denigrating, and otherwise behave in a controlling manner.
On the totality of the evidence, I am bound to find that the father and Ms P have experienced a troubled relationship and that the father has, indeed, conducted himself in the ways suggested by Ms P in her discussions with the mother and in her sworn written complaint.

Consequences of Such Findings

As I have said on, I believe, more than one occasion during the course of the trial, as serious as those matters are and as important as they are to this exercise, one needs to remind one's self that this is not a criminal trial designed to establish the guilt or innocence of the father and to inflict punishment, particularly to contemplate any punishment in terms of requiring T to forfeit his right to have a relationship with his father.
This case is, indeed, about T’s future, not about the father's past, save as to the extent that the father's past is relevant to T’s future, and that is clearly a central matter in this case.
As a child, T has two parents, and he has a right to have a relationship with two parents and he has a right to spend meaningful time with each of his parents. That right, however, is subject to his right to be protected from harm, including physical or emotional harm associated with abuse or from exposure to family violence.
Life is not black and white. These matters are not black and white. Notwithstanding the allegations of domestic violence, and notwithstanding the prospect that the Court may, indeed, find that the domestic violence alleged by the mother has been made out, it is important to record, at this stage, that the Family Consultant who has had longstanding involvement with this family, and the Independent Children's Lawyer who has responsibility for the conduct of this matter, have each recommended to the Court that there should be some ongoing contact between T and his father, even in the event that the Court makes the findings of fact sought by the mother.
What is even more pertinent to observe is that, even the mother herself acknowledges that there should be some ongoing relationship between T and his father, and that he should have the opportunity to spend some time with his father.
Her significant qualification is that such contact must be safe and, in her case, she would contend that the only viable safe option is for some limited supervised contact, probably at a contact centre.
In the course of the considerable assistance I have received from the Family Consultant and counsel for the mother and the Independent Children's Lawyer, it has been acknowledged that this is a balancing exercise where there is a sliding scale, as it were, which requires this Court to assess any positives for T in his relationship with his father and any potential negatives in the diminution of that relationship, which are to be measured against the risks associated with the relationship and the time spent with his father. It requires the Court to explore those risks and any avenues for safeguards, including those suggested by the mother and any others, and finding a balance that best meets T’s needs and promotes his welfare.
On the first part of that inquiry, the evidence is overwhelming about the many positive aspects of the relationship between T and his father. Report after report, and report-writer after report-writer, refer to the clearly apparent warmth and affection between father and son. Uniformly, it has been observed that the father has, at all times, conducted himself appropriately in his dealings with his son. T invariably appears entirely relaxed and comfortable in his father's presence. He shows no signs of fear, he is more than able to assert himself comfortably with his father, and he has not exhibited any of the signs of being either a victim of, or exposed to, family violence.
The Court has also had the benefit of viewing two videos of time spent by T with his father. Even making proper allowance for the self-serving nature of such evidence, some things cannot be manipulated. T’s unrehearsed joy, excitement and affection were palpable, as, might I say, were the unbridled pride and affection of the father when he was with T.
Those assessments of a wide range of experts and my own observations represent, as I say, a substantial body of evidence supporting the positive nature of the relationship between father and son.
The mother does bring to this part of the exercise one potential reservation, and that is, that she does raise relevant concerns about T’s presentation after contact. I accept her evidence that T, on occasions, returns from contact unsettled, disturbed, and he presents with a wide range of symptoms from time to time which are consistent with him being unsettled. She described in her evidence how not all of those symptoms are present at once, and that sometimes they last but a short time, sometimes they can last overnight.
The difficulty is that, in the absence of observations of these matters by others and some proper assessment of them, it is somewhere between difficult and impossible to determine the cause or causes of such presentation. However, one's experience in such matters enables me to conclude that it is all but inevitable that T would be experiencing a significant degree of difficulty coping with the prospect that he loves each of his parents, and he can never see more than one of them at any one time. He is, necessarily, permanently separated from one of the parents he loves and needs. He could also not be unaware of the tensions and the consequences of the ordeal that each of his parents has endured over the last five years.
To return to the fundamentals about the quality of the relationship between T and his father, I do also need to observe - again, to the mother's credit - that she does, in fact, readily acknowledge the mutual love and affection between father and son. I have come to the view that, subject to the important qualifications identified by the mother, this remains a relationship which, at least potentially, has much to offer T.
This, and other evidence, to my mind, serves to highlight a very important aspect of this case and so many like it. So much of this case has necessarily focussed upon the allegations of family violence against the father. That focus has served to prove those matters asserted against him. It is entirely understandable that the mother's legitimate concerns in that regard are, for her, almost all-consuming and overwhelming, but as I say, little about life is black and white.
As an absolute aside on these points, during the course of contemplating these matters, one often digresses, as I did, to contemplate what is often the reality in this world. Some of those realities that occurred to me include observing that David Hicks abandoned his children when they were 2 and 3 without explanation. He now stands as one of the most despised and vilified men in Australia. We hear that his children still want to see him and come to know him. They tell us that they do not believe their father is all bad. History itself is riddled with stories of revered world leaders who were despised by their children with justification, and of the idyllic family life of a number of our most despised tyrants.
The father is not, in my view, entirely defined by his failures, albeit in his case some of his failings are very serious indeed, in particular, in terms of his dealing with his difficulties in his relationships with his partners. He is more than that. Amongst other things, he is also a loving, devoted father who is committed to pursue his relationship with his son in the face of very significant challenges, admittedly partly to meet his own needs associated with the pleasure he derives from his time with his son, which is entirely understandable, but also, I accept, born of a conviction that T wants him in his life, T needs him in his life and T would benefit from him in his life.
The objective evidence in the reports, and Exhibits 3 and 4, serve to entirely validate that point of view. In my view, the father is more than the person depicted in the domestic violence material. Whatever be Ms P’s failings, bearing in mind that many of the difficulties she created for herself were, in part, as a result of her being compromised as a victim of the father's treatment, I have otherwise observed that she is an intelligent, capable, independent-thinking person who also convinces me that she, too, is a dedicated mother and is protective of C. What happened to C on Father’s Day is entirely unacceptable.
I credit Ms P with the intelligence and protective instincts sufficient to determine that, if she perceived that there were no redeeming features in the father, that he did not have something to offer both herself and her son, C, she would not persist with the relationship. I accept that, as in life generally, the father presents as a person with qualities as well as deficits.
Consistent with the wishes of the mother and the recommendations of the Independent Children's Lawyer, I, too, am of the view that there should be some ongoing relationship between T and his father. The difficult question is how does one find the appropriate balance in this case.
Of course, the mother's option is the safest. One could be guaranteed that T would not come to any physical harm and could not be exposed to family violence if his contact was limited to supervised contact in a contact centre. However, on the negative side, I am of the view that such a contact regime would severely stifle, if not potentially extinguish, the relationship between T and his father. Experience suggests that long-term supervised contact in the form of limited grabs becomes increasingly problematic as children grow older. Often it becomes counterproductive and, eventually, terminal.
I acknowledge, in the face of the evidence in this matter and the findings I have made, that the prospect of unsupervised contact does carry with it some risks. If there have been episodes of abuse in the past, including some serious episodes, one cannot rule out the prospect that T would be exposed to such events in the future. The episodes in July and on Fathers' Day are indicative of a lack of proper impulse control, and one cannot predict when such events will occur again.

However, given the lack of particularity of episodes of physical violence in the mother's relationship and the limited nature in terms of frequency of the three episodes of physical violence identified in the material, being episodes involving M, C, and the July incident - whilst at no stage, at this point, referring to the seriousness of those incidents - it draws me to the conclusion that the physical component of such behaviour is not a regular feature of this aspect of the case.
As I say, I must take into account, of course, however, not only the frequency of such matters, but the severity, and of course I do, and one cannot put any favourable gloss on the July 2006 incident. It was extremely serious, at the very serious end of the scale of physical abuse, and certainly over a seven-year period that particular episode stands out. If a person is capable of doing that in the past, one cannot rule out the prospect that it might happen in the future, and as Mr Hodges for the mother said, one cannot guarantee that the next time, if there is a next time, T might be there, and that such a prospect would be terrifying for T and extremely damaging.
Equally, it is clear that, unlike the more isolated incidents of physical abuse, there has been established to my satisfaction a propensity on the part of the father to resort to denigration, verbal abuse and verbal aggression when confronted with conflict. The evidence has established that the father has serious deficits in the way in which he manages conflict with others.
It needs to be acknowledged that conflict is a fact of life and that it does bring out the worst in people, but at the same time, the type of behaviour described by the mother and her children, and particularly by Ms P, is beyond such explanation and would be experienced as intimidating, abusive and personally damaging. From T’s point of view, exposure to such behaviour is certainly not good role-modelling and it is essential that T’s exposure to such conduct should be limited for his well-being.
Having identified those risks, I then need to turn to see whether there are some aspects of those matters which might give me some confidence that the risk of exposure is, in this case, not such as to outweigh the benefits of an ongoing meaningful relationship.
That risk identified as to the future has clearly been existent throughout the period since separation and, in particular, in the period whilst the father has been in a relationship with Ms P. There are a number of factors which give me some comfort that T’s past exposure to any such behaviour would appear to have been limited. There are other aspects of the matter which give me cause to have some comfort that the prospects of exposure in the future are even less likely.
Firstly, apart from reporting to his mother the serious incident on Father’s Day, it does not appear that T has otherwise reported to his mother that he has observed any domestic violence or conflict of significance, as one can quite properly be certain that, if T had made such reports, the Court would have read about it. Secondly, T himself has not presented to the Family Consultants and Ms R, in particular, with any of the characteristics of a child being fearful or apprehensive, or with any other features which one might expect if he had been regularly exposed to domestic violence or inappropriate conflict. Finally, if that does represent a fair overview of T’s experience in his time with his father in the past, then there is a good reason to have some confidence for the future.
As has been observed, the father presents as a person who falls somewhere between being committed to, and obsessed with, his relationship with his son, and of intending to persevere for his son's sake. Having observed the father, having read the evidence contained in the welfare reports, and having observed Exhibits 3 and 4, I have concluded that a very large focus in the father's life is his life with T, and that focus exists whether T is with him and even when they are separated.
When he is not with him, and when he is dealing with the litigation and his life being on hold, I am of the view that this inevitably adds to the strains and tensions in the father's household, and increases the prospects of conflict. What I also draw from my observations of the father and Exhibits 3 and 4 is the fact that, when the father is with T, his world literally lights up, and I suspect that the father himself lightens up. You can see it at the handovers, and you can see it in the father's face in his interactions with his son. I appreciate it might, again, be potentially dangerous to rely upon video evidence produced by the father, but it is consistent with the observations of others over a long period of time. The moments I observed which displayed that type of interaction between father and son, had to be spontaneous and add substance to the proposition that a picture tells a thousand stories.
I use that as some comfort in terms of concluding that, when T is present, the father's focus is much more likely to be a positive one and a focus upon enjoying his time with his son and using it positively. Of course, history itself suggests that this is not a foolproof exercise because of the incident on Father’s Day, when T was, in fact, with his father. However, in assessing the extent of the risks, I remain comfortable on this sliding scale exercise, that the prospect that there would be such conflict and such inappropriate behaviour is vastly reduced during those periods when the father has T with him, and is likely to both be preoccupied and overjoyed with his son's presence.
Further, in terms of the father's relationship with Ms P and its apparent difficulties, it is relevant to note that that relationship has survived not only the ordeal of the last three years, and not only the ordeal of the father's episodic bad behaviour, but incredibly, it has survived the events of 7 and 8 September. It is, in my view, safe to assume that, with the end of this litigation, the prospects for the future for Ms P and the father must necessarily be better than they have been in the past. The end to the litigation will at least remove one significant element of stress and at least, theoretically, give rise to the prospect that Ms P and the father might be able to find themselves on the same page for the future.
Further, the Court is able to know as a fact that, whatever have been the father's failings and past problems, the current arrangements, which have included periods of unsupervised contact, have worked well for T. With the exception of the evidence from the mother about T’s unsettled presentation after contact, which, as I say, seems to be largely inherent and unavoidable in such circumstances, particularly when dealing with young children who love both parents and struggle with dealing with the separation, in other respects contact seems to be working well. Notwithstanding what has surrounded him, happily the Court is dealing with a young boy who is thriving during his time with his father and, in other respects, no doubt in no small measure due to the parenting skills of the mother, he is doing very well, so that he is presenting as a delightful, happy and assertive young boy. So, in that sense, one would not be experimenting and taking entirely uncertain risks with T.
My view is that, in many respects, the greater risks are those which have existed to this time, and the parties, the mother and the father, appear to have managed a contact regime which has included unsupervised contact in a safe and beneficial way. They have been observed at the handover and, despite the incredible strains between them and the very substantial and legitimate apprehensions and concerns of the mother, I was able to observe T moving comfortably between households and comfortably between his parents. The exercise to date appears to have served him well. In other respects, T presents as needing and benefiting from his time with his father.
The findings I have made serve, as I say, to identify that there are risks and to identify the mother's concerns as real and justified. It is, of course, one thing to say that an unsupervised regime appears to have worked well; it is another legitimate thing for the mother and her counsel to ask, to what extent is that by good fortune, or to what extent is it by the good management of the mother and the father, in terms of management of his behaviours at least whilst T is around.
The supplementary question is: is there any way that we can improve upon that system which is not, admittedly, foolproof? Of course, nothing short of either cessation of contact or the limited contact proposed by the mother is foolproof, and those two options carry their own adverse consequences for T. I believe that we can improve the lot for T in terms of the future and we can at least begin to address some small element of the mother's concerns.
In this matter, the father has been assessed as being in need of therapy to deal with his management of conflict and relationship difficulties. One of the legitimate concerns for the mother is that the father has never recognised those deficits and that he has never properly sought appropriate help, if he has sought any at all. Before me, the father declares that he would be only too willing to undertake any therapy thought necessary by the Court.
My findings reinforce the validity of the mother's concerns and the reality of the father's needs in this regard and, therefore, the benefits which would flow to him and, more importantly, to T, if the father could gain an improved insight into his problems and an improved approach to conflict. Of course, one is left to query whether the father, at this time, actually acknowledges the need for such therapy, or whether he is submitting to the process merely for effect and to enhance his prospects of spending time with his son. Hopefully, the father will appreciate that the time has come now for him to acknowledge that need, because later may be too late altogether. There have now been very similar assessments by no less than three family consultants, two therapists, who were, in fact, engaged by the father himself, and now two Family Court Judges who have concluded that he needs to develop insight, he needs to address aspects of his behaviour and personality, and that he will only be able to properly address such matters with appropriate, therapeutic assistance.
I am going to make any extensions to his current contact regime conditional upon the father being true to his word and undertaking such therapy and, hopefully, he will not only undertake it, he will embrace it. I am absolutely convinced about his affection for his son and his determination to do what he perceives is necessary to enhance that relationship. Hopefully, he will embrace that process for his son's sake. As an aside, perhaps he might be well-advised to do so for the longevity of his relationship with Ms P.
Evidence indicates, in terms of reassurance to the mother, as I understand it, that there appears to be little difference in outcomes in circumstances where people voluntarily embark upon such programs and those who have such programs imposed upon them.
I am satisfied that, with the evidence of the largely positive outcome of the current contact regime and with the diminishing circumstances of aggravation attached to the five-year ordeal of this litigation, the current contact regime finds an appropriate balance between meeting T’s needs for a relationship with, and meaningful times with, his father, as measured against the legitimate prospects of risk and legitimate concerns raised by the mother. I am also of the view that it would be in T’s best interests if he had the opportunity to spend even more time with his father, including holiday time in the future. However, it needs to be acknowledged that, with the history of the matter, the risks identified legitimising the mother's concerns and the proposition that, as matters currently stand, logically the longer T spends with his father on an unsupervised basis, the greater the risk, there is the need to improve that context. In those circumstances, it is appropriate that this Court should explore additional safeguards.
As part of that process, I intend to ask the Independent Children's Lawyer to remain in the matter for a further 12 months, over which period the orders will move towards the types of orders proposed by the father himself. The move to more extended periods will be and remain conditional upon the father completing such therapy as is recommended by the Independent Children's Lawyer.
Before turning to the orders, I need to deal with one or two individual issues. One matter raised on behalf of the mother was the so-called Russell v Close consideration relating to the ability of the mother to cope with unsupervised contact and the risk that any attendant anxiety may impose upon her in terms of undermining her capacity to function as a person and a parent.
In my view, without in any way being dismissive of the mother's very real concerns in this case, I am of the view that such a proposition is not made out. I am satisfied that the mother has, at all times, conducted herself in an entirely protective way, and that she has done so in the best interests of her son. Equally, I have no doubt that she will remain anxious and very concerned about the prospect of T coming to some form of harm in the father's household.
However, I do not accept that that level of anxiety or concern is to such a degree as to suggest that she would not, at the same time, be able to cope with life and to cope with parenting. The reality for the mother is that she has, at all times, been fearful that her son will come to harm. She has always resisted unsupervised contact. She has dealt with those realities even, in a sense, when T was perhaps younger and even more vulnerable. At the same time, however, she presents as a person who is compliant with the law and capable of accepting decisions of Courts. In the past, she has coped with orders that she found very difficult to support, in the sense that they were inconsistent with her own concerns and beliefs. She has been able to continue to parent T to a very high standard. T has coped to date and, according to the objective evidence, is not exhibiting any signs of harm.
On this particular view, I accept that the mother will find the prospect of lack of supervision very difficult, and that it will be a struggle for her, but where I am otherwise satisfied that unsupervised contact is in T’s best interests, I am not satisfied that the mother's legitimate apprehensions would justify depriving T of the relationship I otherwise think he should have the opportunity to enjoy.
On the issue of overseas travel, I am satisfied that the mother has made out a case to be permitted to travel overseas, and the father has not made out a case justifying restraining the mother from doing so. The mother resides in Queensland, almost all of her connection is with Queensland, she is in part-time employment in Queensland, she is pursuing studies and wishes to pursue a career in Queensland. She has a home and a son in Queensland, and is embarking upon a new relationship which has its base in Queensland. She has been overseas before and she has returned. As I have said earlier, she has demonstrated at all times a capacity to comply with orders, and I cannot be satisfied that she would breach any order which would require her to return.
In all the circumstances, I am not satisfied that it is necessary to impose upon her the imposition of a bond which would cause her some difficulties. I am, however, otherwise satisfied that the additional terms and conditions suggested by the Independent Children's Lawyer represent other further safeguards. As to the father, he did not bring an application for permission to travel overseas and he did not make out a case in his material for that right.
I must now acknowledge that, amongst the matters referred to by Ms P in her discussions and written statement, was a threat that could cause the mother some concerns in terms of flight. In any event, the orders I am making in relation to limitations on contact and the need for therapy prior to any extended periods of contact run counter to the prospect of overseas travel with the father at this time. When and if the father gets to that stage, it will be necessary for him to first make a request of the mother, and if she does not comply with that request, then the father will have to, like the mother did on this occasion, file an application and an appropriate affidavit in support setting out his proposals.
On the issue of shared parenting, regrettably, it is not viable in this case. The family consultant does not recommend such an arrangement and the indications are clearly against it. The parties have been unable to communicate for some five years. The father says that he is willing and queries whether the mother, in a sense, can have her own way by simply declining to communicate. However, my findings require me to conclude that the mother has, herself, been the victim of family violence in the past, and I must accept that she is capable of being left afraid and intimidated by the father and, therefore, unable to engage in any meaningful dialogue with him about matters relating to their son's welfare.
In addition to that, there are the obvious geographical difficulties in this case. I am of the view that, to impose such a regime upon the parties, would be problematic and not likely to be in the child's best interests.
In relation to the orders I propose to make, I indicate that I will be drawing upon the draft orders submitted by the Independent Children's Lawyer and the orders sought by the mother as set out in par 201 of her affidavit. Before I recite those orders, the thrust of them will be that, until the father completes his therapy, or the commencement of the school year in 2008, whichever occurs last, the current regime will prevail. When and if the father completes the program to the satisfaction of the Independent Children's Lawyer and/or the Court, then the father shall have contact in terms of the proposals by the Independent Children's Lawyer, which will be from after school on Friday until Monday or Tuesday, and for half all school holidays.

RECORDED : NOT TRANSCRIBED

Sorry, Sunday, or Monday, if it is a - yes, if Monday is a holiday, yes, and the alternate Monday, yes. So that the orders will be:

ORDERS DELIVERED

And I want to add a notation, because the last thing I want the parties to think is that they are being encouraged to come back to Court ever again if possible - but I want to add a notation: the liberty to apply clause is intended primarily to enable the Independent Children's Lawyer and the parties to have the Court address any relevant issues relating to the father's undertaking and completion of the prescribed therapy. That is really the focus of the liberty to apply; that it is just in terms of whether that is being properly managed.
I do not want to, as it were, usurp the Court's authority and vest responsibility in the Independent Children's Lawyer. It still should be a matter that the Court has to take responsibility for, so, for example, if the father thinks he has met his obligations and there is some disagreement, then the father should be able to come to the Court or, alternatively, if the Independent Children's Lawyer or the mother wishes to be heard about that proposition before we move on to the next phase, as it were, the parties can come back. I am obviously not encouraging or, in that sense, allowing any revisiting of the issues or determinations that I have made in respect of other matters, save to make the usual observation that the door of the Court is never closed in relation to children's matters.

RECORDED : NOT TRANSCRIBED

As to the Monday night, I understand the mother's reservations. They, no doubt, include, in large part, the reservations in relation to unsupervised contact, but I accept that they do, in addition, carry other considerations relating to disruption of routine and the like, and I take account of the mother's concerns. I take account of the father's aspirations but, again focussing on T, I think, on balance, he would be likely to thoroughly enjoy and look forward to the prospect of having the opportunity to spend every second Monday night with his father, and I should indicate in that regard that, had it not been for the geographical difficulties which are, in part, created by the mother's move - and that is not a criticism, but that is a fact - it is likely that I would have moved to more extensive contact in terms of extending the weekends so that T and the father had the opportunity to have the father deliver him to school on the Monday morning or the Tuesday morning. That is not really viable, having regard to the distance and his age. However, if the father is willing to travel to Brisbane for the purposes of that Monday contact, the disruption to T is quite limited and the benefits for T are likely to be quite substantial. I will also make an order that, once we have reached that second stage, as it were, the father have contact on each alternate Monday after school, being the non-contact Monday, from after school on Monday, with the father to collect T from school and return the child to the mother at 6.30 pm on that Monday.

RECORDED : NOT TRANSCRIBED

What I was inclined to say was that, upon appropriate notice, there be a suspension, but if there is a suspension of contact so that the mother can take T away on a holiday, there should be a make-up weekend, so that T does not lose his time with the father and the mother does not lose the opportunity to go on holidays.

RECORDED : NOT TRANSCRIBED

So that, in the first stage, I should order that, provided the mother gives the father 14 days' notice in writing of a wish to have weekend contact suspended during school holidays for the purposes of enabling her to travel with T during that holiday, and provided further that the father have make-up contact on the first available weekend after the resumption of the school term, the weekend contact - I might have a look at that. I think we all know what we are talking about. And then the other one will be in terms of 4.3.
Yes. I will await your advices through my Court Officer, ladies and gentlemen. I hope you can sort something out that does not necessitate coming back. Thank you.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date:

[2007] FamCA 712

1 June 2007

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