FEDERAL CIRCUIT COURT OF AUSTRALIA
Judds & Gatwood [2021] FCCA 1911
File number(s): MLC 7991 of 2016 Judgment of: JUDGE HARLAND Date of judgment: 18 August 2021 Catchwords: FAMILY LAW – family violence – unacceptable risk – whether or not the father should have supervised time – whether or not there should be family therapy between father and daughter and if so the purpose of such therapy Legislation: Family Law Act 1975 (Cth), pt VII, ss 4, 60B(1), 60B(2), 60CA, 60CC(2)(a)(b), 60CC(2A), 60CC(3), 62B, 64, 65DA(2), 68B, 68Q, 69ZW Cases cited: Johnson & Page (2007) FLC 93-344
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
N & S and the Separate Representative (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
Sigley & Evor [2011] FamCAFC 22
Stott & Holgar [2017] FamCAFC 152
Waterford & Waterford [2013] FamCA 33
Other: Family Court of Australia, Family Violence Best Practice Principles, 4th edition, December 2016
School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <
Number of paragraphs: 281 Date of last submission/s: by way of written submissions on 11 June 2021 Date of hearing: 5-7 and 19 May 2021 Place: Melbourne Counsel for the Applicant: Ms Johnson Solicitor for the Applicant: Elsum Family Law Counsel for the Respondent: Mr Glezakos Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Ms Mallett Solicitor for the Independent Children's Lawyer: Leslie Family Law ORDERS
MLC 7991 of 2016 BETWEEN: MR JUDDS
Applicant
AND: MS GATWOOD
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2010 (“X”).
3.X live with the Mother.
4.The Father be permitted to send letters, cards and brief video messages and photographs to X via a designated PO Box and email address established for this purpose and at a frequency of no more than once per month and on special occasions (when he may also include an appropriate gift).
5.The Mother is to continue X’s engagement with B Counselling (or such other similar service as is available in the event of a need to change provider) and to facilitate X receiving the material described in Order 4 herein within this setting.
6.In the event that X wishes to send any reply or return information to the Father, the Mother is to facilitate this via the same designated PO Box and email address as appropriate.
7.Time between X and the Father otherwise occur on four occasions per year (one to occur during each school holiday period) under the therapeutic supervision of C Psychology Service, Ms D or such other equivalent provider as agreed between the parties or in default of agreement recommended by the Independent Children’s Lawyer, with the costs of such supervised time to be met by the Father.
8.The Father has…
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CaseChat Overview and Summary
The court was tasked with determining the best interests of the child, X, in light of allegations of family violence and the father's behaviour. Specifically, the court had to assess the risk of emotional and psychological harm to X if she were to resume spending time with her father. The court also considered the appropriateness and purpose of family therapy between the father and daughter, and the extent to which the father should be permitted contact with X.
Judge Harland found that X would be at an unacceptable risk of emotional and psychological harm if she resumed spending time with her father, noting his blame towards the mother and sons and his failure to acknowledge the impact of his own behaviour and violence. The court accepted that the father’s behaviour had a lasting impact on the family. Despite concerns about X's school attendance and the mother's engagement with counselling, these were viewed in the context of the family's trauma. Considering X's evolving views, her age, and the likely influence of her mother and brothers' experiences, the court determined it was in X's best interests to engage in supervised family therapy with her father to allow for safe interaction.
The court ordered that the mother have sole parental responsibility for X, with X living with the mother. The father was permitted limited contact through letters, cards, and video messages via a designated PO Box and email, no more than once per month and on special occasions. Supervised time between X and the father was to occur four times per year under therapeutic supervision, with the father to bear the costs. The father was restrained from attending places where X or her mother live, work, or attend school, and from using threatening behaviour or contacting X or the mother otherwise than as permitted by the orders.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. All previous parenting Orders be discharged.
2. The Mother have sole parental responsibility for the child X born in 2010 (“X”).
3. X live with the Mother.
4. The Father be permitted to send letters, cards and brief video messages and photographs to X via a designated PO Box and email address established for this purpose and at a frequency of no more than once per month and on special occasions (when he may also include an appropriate gift).
5. The Mother is to continue X’s engagement with B Counselling (or such other similar service as is available in the event of a need to change provider) and to facilitate X receiving the material described in Order 4 herein within this setting.
6. In the event that X wishes to send any reply or return information to the Father, the Mother is to facilitate this via the same designated PO Box and email address as appropriate.
7. Time between X and the Father otherwise occur on four occasions per year (one to occur during each school holiday period) under the therapeutic supervision of C Psychology Service, Ms D or such other equivalent provider as agreed between the parties or in default of agreement recommended by the Independent Children’s Lawyer, with the costs of such supervised time to be met by the Father.
8. The Father has liberty to provide a copy of:
(a) Dr E’s Report;
(b) Mr F’s Report;
(c) The Family Report of Ms G; and
(d) The Reasons for Judgment of Her Honour Judge Harland dated 18 August 2021.
to any treating psychologist or family therapist that he may attend or that may supervise his time with X, save and except that he may NOT provide the same or any other Court document to Mr H.
9. Pursuant to s 68B of the Family Law Act 1975 (Cth) other than as provided for in these orders, the Father be and is restrained from:
(a) Attending or approaching any place where the Mother and or X, lives, works or attends school save with the prior written consent of the Mother;
(b) Using aggressive, threatening or abusive words or behaviour towards or in the presence of X or her mother;
(c) Contacting X otherwise than in accordance with these orders or, as otherwise agreed in writing between himself and the Mother, including via SMS;
(d) Contacting the Mother, save via email or SMS for the purposes of negotiating, requesting or altering arrangements for time or communication with X, or in the case of emergency.
10. The appointment of the Independent Children’s Lawyer be discharged 12 months from the date of these Orders.
11. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N & S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier & Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter & Potter (2007) FLC 93-326 at [124] and [125]; Johnson & Page (2007) FLC 93-344 at [66] and [67]).I find that X would be at an unacceptable risk of emotional and psychological harm if she were to resume spending time with the father. The father’s evidence was stark and whilst when questioned, he was careful to not directly criticise the mother and his sons at various points he made it clear that he blames them. It is also clear that he blames the mother for J’s drug use and issues post-separation and is also critical of the mother’s handling of X’s education. He does not acknowledge at all the damaging impact of his behaviour and violence. I am satisfied that the behaviour has had a long lasting impact on the family which is likely to continue and contributes to difficulties they continue to face. Certainly, X’s attendance at school and the mother’s lack of engagement at times and delay in arranging counselling for X is of concern, however this needs to be seen in the context of the family’s trauma as well as particularly in 2017 when dealing with the mother’s cancer diagnosis. The father concedes that the mother should continue to exercise sole parental responsibility. Section 60CC(3) additional considerations Section 60CC(3) sets out 13 additional considerations I must consider when determining the children’s best interests. Not all of them are relevant to this case. I will discuss the relevant additional considerations in turn. X’s views with respect to her father have changed over time and no doubt due to a number of complex factors. She is significantly older and has a greater understanding of the dynamics in her family. It is also unrealistic to expect that X would not be influenced by the experiences and views of her mother and brothers. This is not because of any direct attempts to influence her and involve her in disputes, but rather it cannot be presumed that X would not be aware of her brother’s views and experiences living in the same household as them for a number of years. The stress and pressure the mother and the boys feel would be compounded by court proceedings being on foot. X would pick up on this. It is also clear that X seeks to have her own experiences with her father and is curious about him. For these reasons I am satisfied that it is in X’s best interests for X and the father to engage in the form of family therapy proposed by the ICL, which will enable X to experience her father in a safe environment. It would also provide for the opportunity for X to see the father in such therapeutic context a few times each year.