Kaufman & Cain
[2022] FedCFamC2F 1699
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaufman & Cain [2022] FedCFamC2F 1699
File number(s): ADC 4362 of 2015 Judgment of: JUDGE JENKINS Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – parenting – previous final consent orders – significant allegations of family violence – substantial DCP involvement – where party refuses to apply for section 102NA funding – procedural fairness – prohibition on cross-examination – concerns in relation to child’s step and half siblings – child with behavioural issues and Auditory Processing Disorder – child awaiting Autism Spectrum Disorder diagnosis – presumption of equal shared parental responsibility is rebutted – need for supervision – limited time spending to occur in a public place Legislation: Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 60CG, 65DAA, 65D, 69ZW, 102NA
Mental Health Act 2009 (SA)
United Nations Convention on the Rights of the Child
Cases cited: Godfrey & Sanders [2007] FamCA 102
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC92
Division: Division 2 Family Law Number of paragraphs: 115 Date of last submission/s: 5 October 2022 Date of hearing: 4-5 October 2022 Place: Adelaide Counsel for the Applicant: Mr Frazer Solicitor for the Applicant: Legal Services Commission of South Australia Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Mr Childs Solicitor for the Independent Children's Lawyer: Nicholas Eid Lawyer ORDERS
ADC 4362 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAIN
Applicant
AND: MR KAUFMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child X born in 2014 (“the child”).
(a)The mother is to inform the father in writing of any significant decisions with respect to the child’s health, welfare and development, and seek the father’s input, prior to the mother making such decisions for the child;
(b)That the mother is to keep the father updated as to significant events pertaining to the health, welfare, education and development of the child, including progress at school and any medical and allied health appointments.
3.The child live with the mother.
4.The child to spend time with the father as follows:
(a)For four (4) hours each alternate Sunday, at such times as agreed, and failing agreement between 12.00pm and 4.00pm;
(b)On Father’s Day each year from 12.00pm to 4.00pm PROVIDED THAT the father’s time be suspended on Mother’s Day each year;
(c)On Christmas Day each year from 12.00pm to 4.00pm;
(d)On Easter Sunday each year from 12.00pm to 4.00pm;
(e)On the child’s birthday, if on a weekend, from 12.00pm to 4.00pm;
(f)At other such and further times as agreed between the parties in writing.
5.That all periods of time in order four (4) herein are to take place in a public place with CCTV cameras and SUBJECT TO the father giving the mother prior written notice of where time spending will occur.
6.Handover to occur inside the Suburb B Centre or if the centre is closed, inside the Hungry Jacks Restaurant on C Street.
7.That the parties communicate via the AppClose app and a communication book, or by such other methods as may be agreed between them in writing.
8.That the parties shall behave in a polite and respectful manner in all communications between them.
9.The father be restrained and an injunction be granted restraining him from:
(a)Bringing the child into contact with D;
(b)Attending at the mother’s home or any place she may work.
10.That both parties be restrained and an injunction be granted restraining them from:
(a)Denigrating the other party, the other party’s partner or the other party’s family in the presence or hearing of the child or allowing anyone else to do so;
(b)Discussing these proceedings in the presence or hearing of the child or allowing anyone else to do so;
(c)Posting about these proceedings or the other party on any social media platform whatsoever;
(d)Physically disciplining the child or from allowing anyone else to do so;
(e)Exposing the child to family violence;
(f)Consuming alcohol to excess while the child is in their care or for a period of 24 hours prior to the child coming into their care;
(g)Approaching the other party outside of any handovers as provided for in these orders;
(h)Leaving the child unsupervised without the presence of another responsible adult person.
11.The father be at liberty to attend the child’s schooling and extra-curricular activities with the mother to provide advance written notice of same PROVIDED THAT the father provide the mother with at least 48 hours’ notice of his intention to attend any such event.
12.The father be at liberty to book an appointment with the child’s teachers or allied health professionals to discuss his progress PROVIDED THAT the mother is not present for same.
13.That each party is hereby authorised to obtain from the child’s school at their own cost copies of all school reports, newsletters, photographs and other information to which parents are usually entitled.
14.That in the event of a medical emergency involving the child, the parent who has the care of the said child shall notify the other parent as soon as reasonably practicable.
15.That the mother is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for the child X born in 2014 and she shall exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 (Cth) and the requirements of the Commonwealth Department for Foreign Affairs and Trade.
16.That a copy of these Orders be provided to the Australian Passports Office and Foreign Affairs and Travel.
17.That in the event the mother wishes to take the child out of the State of South Australia that she provide the father with prior notice as follows:
(a)In the case of interstate travel notice prior to such travel; and
(b)In the case of overseas travel at least 30 days prior notice.
18.The appointment of the Independent Children’s lawyer be discharged.
19.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kaufman & Cain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting matter concerning X, born in 2014 aged 8 years (“X”).
BACKGROUND
The parents were in a relationship between about 2012 and March 2015.
The applicant mother, Ms Cain (“the mother”) is aged 42. She lives in Suburb E, South Australia and is an allied health worker with Employer F. She has not re-partnered.
The respondent father, Mr Kaufman (“the father”) is aged 47. He lives In Suburb G and is a tradesman.
The father has re-partnered with Ms H (“Ms H”). They have been in a relationship for about seven years and have one child together, J aged five years. The father also has two children from a former relationship, Ms K aged 18 years and D aged 16 years. Ms H has two other children, M aged approximately 13 years and N aged approximately nine years.
Ms K has also been diagnosed with Autism Spectrum Disorder (“ASD”) and Borderline Personality Disorder (“BPD”). At the time of Trial she was living out of the home in supported accommodation.
D has Attention Deficit Hyperactivity Disorder (“ADHD”) and at the time of Trial was living with his grandparents.
X has been diagnosed with an Auditory Processing Disorder (“APD”) and is awaiting an ASD assessment. His behaviour can quickly become dysregulated and sometimes violent. At times his outbursts have led to internal school evacuations. He needs sensory support in class and a behaviour coach at lunch and recess.
Final parenting orders were made on 21 September 2017 by her Honour Judge Mead (as she then was) which provided for X to live with the mother and spend time with the father on a gradually increasing basis such that he was to spend four nights per fortnight with him by Term 1 in 2019 (“the final orders”). These orders were made by consent save for the order for equal shared parental responsibility which was made by the Court following oral submissions.
In or about September 2018 the mother ceased bringing X to handover upon finding out the father was charged with assaulting Ms K. However, from February 2019 handover was to occur at the school and therefore, despite not having seen X since September, the father attended the school and collected him. Thereafter the father continued to have time with X whenever handover was at school. The mother felt powerless to prevent this from happening.
As a result of an accumulation of incidents over the next two years, the mother commenced these proceedings on 16 April 2021. In that application she sought orders for the father to have supervised time.
Orders were made by Senior Judicial Registrar Heuer on 13 September 2021 suspending the father’s time pursuant to the final orders and providing for the father to spend time with X each Saturday from 10.00 am until 1.00 pm at O Play Centre, Suburb E.
The parties subsequently agreed to vary this arrangement so that the father could spend time with X at the P Street Reserve, Suburb Q.
On 1 June 2022 I made orders providing that the father could spend time with X at the Suburb B Library or the P Street Playground (or surrounds) or at such other location as agreed (“the interim orders”). In addition, there was a provision for the father to be able to spend time at his home provided he was supervised by either of the paternal grandparents. However, at the time of the Trial the father had not exercised any time at his home as he was not prepared to ask his parents to supervise.
ORDERS MADE PURSUANT TO SECTION 102na
Section 102NA of the of the Family Law Act 1975 (Cth) (“the Act”) states as follows:
Mandatory protections for parties in certain cases
(1) If, in proceedings under this Act:
(a)a party (the examining party ) intends to cross-examine another party (the witness party ); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross-examination;
then the requirements of subsection (2) apply to the cross-examination.
(2) Both of the following requirements apply to the cross-examination:
(a)the examining party must not cross-examine the witness party personally;
(b)the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
On 25 March 2022 I determined, as a result of the family violence allegations in this matter that the provisions of s 102NA of the Act applied. Consequently the parties were not permitted to personally cross-examine each other. The father, who was unrepresented, was told that he could make an application for legal representation through the Legal Services Commission pursuant to s 102NA under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the s102NA scheme”). A notation to this effect was also contained in the orders made that day. In addition, the father was given the phone number for the Family Advocacy and Support Service (“FASS”) and advised they would assist him in completing the application.
On 27 May 2022 the father told the Court that he was told he was not eligible under the s 102NA scheme for funding, because he must first submit an application in the usual way for Legal Aid funding with the Legal Services Commission. He said that he was not prepared to apply for Legal Aid funding because he would likely be eligible and they would place a charge over his house whereas he understood this was not the case under s 102NA.
I again explained to the father the consequences of not being represented however he was adamant he would not apply.
This matter was originally listed for trial on 1 June 2022 however it could not proceed because the father was suffering from COVID 19. The matter was relisted to 19 September 2022 and the father was again advised to apply for Legal Aid funding. This was again noted in the orders made that day.
On 19 September 2022 the father attended Court unrepresented. He had not applied for Legal Aid funding however the Trial was not reached on that day and the matter adjourned to 4 October 2022.
On 4 October 2022 the father was again unrepresented. I determined that the father had been given every opportunity to obtain representation and that the matter would proceed, despite the limitation on cross-examination. The father had also not filed any Trial material but was granted leave to rely on any documents he had previously filed in the matter. I explained the process to the father. I made arrangements for him to be provided with a copy of s 60CC of the Act.
DOCUMENTS RELIED UPON
The mother relied upon:
(a)Her Amended Initiating Application filed 4 May 2022;
(b)Her Trial Affidavit filed 4 May 2022;
(c)The Family Assessment Report prepared by Ms R (“Ms R”), dated 1 February 2022 (“the family report”).
The father relied upon:
(a)His Response to the Initiating Application filed 2 June 2021;
(b)His Affidavit filed 6 June 2021.
The Independent Children’s Lawyer (“the ICL”) relied upon:
(a)The family report;
(b)The Child Inclusive Memorandum of Family Consultant Ms S filed 9 June 2021 (“the CIC”).
The Court has also had the benefit of material produced pursuant to s 69ZW of the Act from the Department for Child Protection (“the DCP”) and from the South Australia Police Department (“SAPOL”).
THE EVIDENCE
The Trial proceeded in person.
The only witnesses called in the matter were the parties themselves and Ms R.
As already discussed, the father was not able to cross-examine the mother, but the ICL cross-examined her extensively. Whilst prohibited from cross-examining on behalf of the father, I found the ICL’s questioning to be of great assistance.
The father was able to cross-examine Ms R and to make submissions.
The parties
I found the mother to be a forthright and honest witness. She answered questions in a straight forward manner without exaggeration.
The father gave evidence in an aggressive manner and often in a heightened state. He frequently resorted to sarcasm which caused me to remind him that the transcript would not reflect that he did not mean what he was saying. At times I had to warn him for swearing and raising his voice. Furthermore, the father frequently stated that he did not recall matters, attributing his lack of memory to “brain fog”. Nonetheless at times he had very specific memories which appeared inconsistent with this assertion.
The Family Consultant, Ms R, observed the father in the family report as follows:
The father was a poor historian and appeared easily irritated by the Consultant's questions and the Consultant, at times, experienced the father as belligerent. Most of the father's answers were monosyllabic. He explained that he has "brain fog" because of his medical condition and subsequent medication he was required to take.
These comments were consistent with my observations of the father throughout the hearing.
It was said by the plurality in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 at par 62 that:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call)…
The father’s evidence often fell short of this standard.
Accordingly, wherever there is a conflict between the parties’ evidence I have preferred the evidence of the mother.
Ms R
Ms R gave evidence in a clear and concise manner. She supported her assertions based on observations and material provided to her and made concessions where appropriate.
the law
Section 65D of the Act compels the Court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA.
A 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 of the Act.
The objects of the Act as set out in s 60B are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”). Article 19 of the Convention on the Rights of the Child requires parties to the Convention to take steps, including through “judicial involvement”, to:
…protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
equal shared parental responsibility
The presumption of equal shared parental responsibility pursuant to s 61DA of the Act is rebutted by the findings of family violence that I have reached in this matter. I am otherwise satisfied that it would not be in the best interests of X, given all of the circumstances of this case, to make such an order. Accordingly I am not obligated to consider whether the parents should have equal time or substantial and significant time pursuant to s 65DAA but am at large to consider what is in the best interests of X.
the primary considerations
The primary considerations as set out in s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
On balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence. Having regard to the serious nature of the allegations in this matter, the need to protect X from harm features heavily in my decision making.
Meaningful relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518.
The Full Court in McCall & Clark [2009] FamCAFC92 (“McCall & Clark”) at par 118 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
In the case of Godfrey & Sanders [2007] FamCA 102 at par 36, Kay J noted that:-
…what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
That was subsequently endorsed by the Full Court in McCall & Clark.
Protection from harm
In the previous proceedings the mother alleged the father committed serious acts of family violence against herself and X.
Nonetheless, the mother consented to the final orders which provided for substantial and significant time with the father. She gave evidence that she only did so because she was told under legal advice that she had no choice, although there is no evidence to corroborate this.
In any event, the mother’s evidence is that since the making of the final orders, there have been ongoing incidents of concern with respect to X. She sets these out with particularity in her Trial affidavit. In addition, the father was charged with assaulting Ms K, and J was taken to hospital with a fracture to his skull after falling from a bunk bed.
The DCP were also involved in relation to the father’s son D who was alleged to have caused injury to X and the father’s partner Ms H. Ms H obtained an Intervention Order (“IVO”) against D and as a result he was required to leave the home and live with the paternal grandparents.
Case notes produced from the DCP with respect to the father’s home detail the following:
12 April 2018:
·Ms K disclosed that when her dad is angry he will chase her and grab her by the neck and sit on her to keep her down. He told her that if she tells the police he will hurt her.
21 June 2018:
·The family has a significant history of physical violence in the home perpetrated by both parents, and a repetitive lack of sound judgement which represents a risk to the children.
22 June 2018:
·D pulls X’s hair, whacks him, and pulls his legs from under him. D covers X's face in clothes and he could not breathe.
·In relation to the dog, D picks her up from the back of the legs and stomach and squeezes the dog's ear. He sticks things into her throat, pushes and hits her and pulls her tail.
·D verbally abuses Ms H and throws things around the house.
·Ms K had been cutting herself and said she wanted to end her life.
·D had been prescribed medication for his ADHD however the father did not provide him with his medication. D had been seen by CAMHS and whilst the father is fine for Ms K and D to attend CAMHS he has indicated that he [the father] does not want to. The father does not see that D has a problem.
6 August 2018:
·The father has reportedly wilfully inflicted an injury to X’s face by placing his thumb in X's mouth.
17 August 2018:
·Ms K stated that Ms H had struck her across the face with an open hand causing her lip to bleed. Ms K had a tear on her inner lip that looked like a tooth had gone through.
·The family home is very chaotic. Ms H struggles with managing all the children at different developmental stages and needs and has adopted a poor parenting practice using excessive physical discipline to manage the children's behaviour.
23 August 2018:
·Ms H had 3 [three] large bruises and a bite mark on her arm. Ms K said she was punched by Ms H and the injury to Ms H’s wrist occurred when she had her fist in Ms K's mouth. Ms H had asked Ms K to clean her room and when Ms K did not Ms H went to turn off the Wi-Fi and Ms K smashed her chrome book on the ground.
28 August 2018:
·Ms K attended T Medical Centre with bruising and swelling to her eye and cheek. Ms K disclosed that the injury has been caused by her father "punching her to the face." Ms K said she didn't know [why], there was no trigger, that the father isn't drinking at the moment, and that she was just playing with her brother on the floor.
21 March 2019:
·D punched Ms H in the face because she had hit him first.
15 April 2019:
·D punched Ms H in the head three times. She required stitches and had concussion as well as a lesion on her brain.
1 May 2019:
·D said the father threatened D with physical harm. Before D called his grandparents, he got a pair of scissors and stabbed himself in the leg.
28 May 2019:
·Ms K threatening to kill herself by throwing herself into the roadway, to be hit by a car.
·D alleged that Ms H pushed Ms K up against the wall and restrained her trying to prevent her from leaving. D reported he is worried that his sister doesn't feel safe when at her father's house.
·D described his stepmother as being “angry and emotional” and reported that his father did not get angry often however when he did become angry he would “explode” and “the punches would start flying”.
·D reported in 2018 he witnessed his father “kneeling over Ms K with his hands around her throat and strangling her”, he further described “she turned purple, I saw her turn purple." D indicates that this conflict is created by the father's anger, which has resulted in Ms K attempting suicide and D living out of the family home.
27 March 2020:
·Ms K was washing the dishes and said "I want to kill myself." Ms H handed Ms K a knife and said "do it then." Ms K then started cutting her arm and upper legs. Ms K has some bruising and scratches on her wrist and about 5-6 straight scratches about 15 to 20 cms long on her upper thighs. The father found out and shouted at her further.
·Ms K said once, recently her father hit her over the head so hard she fell to the ground.
7 May 2020:
·Ms K divulged that her father had chased her down a street after an argument. He had proceeded to throw her to the ground and choked her. The father had then placed her in a headlock and dragged her into the car.
28 April 2021:
·X has returned from the father's care with unexplained bruising and scratches.
5 May 2021:
·Ms H was taken by ambulance to T Medical Emergency Department as she was hit across the face and strangled by D.
Despite this extensive DCP history, in the CIC the father denied committing family violence, saying allegations by the mother were “all in her imagination” and in regard to violence between D and Ms H he said she also “dramatizes” things like the mother. Furthermore he was reported as follows:
[Mr Kaufman] disputed concerns regarding [D], indicating that [D] and [X]’s interactions are “pretty normal sibling stuff” and mutual “horse play”. He laughed in relation to [Ms Cain]’s reports of [X] being fearful of [D] telling him to lie under the car.
This is consistent with the father’s evidence under cross-examination in which he stated, he believed D’s manhandling of X was “horse play”.
In the CIC it was also observed in relation to the father:
He attribute the dispute to “the mother”, indicating that she has failed to follow court Orders regarding time-spending. He seemed to feel that the court should “deal with” [Ms Cain] “in an appropriate manner”, in relation to contravening court Orders, seeming to believe the court should be aware of this occurring, without him filing a contravention application. He also presented as dismissive of concerns reported by [Ms Cain], and with a negative view of DCP and SAPOL.
(as per the original)
Consistent with this, in the Family Report, Ms R notes as follows:
The father says that there is no basis to her [the mother’s] allegations that the child is at risk of harm in his care. He said that the only risk to the child is of him "having a good time". In regard to the allegations about [D] being a risk to the child, the father was of the view that [D] poses a minimal risk to the child. He said that [D] would not intentionally hurt the child and that incidents occur when the children's play escalates.
In the family report, Ms R recommended the father attend anger management. The father has not done so. It was apparent on his evidence this was because:
(a)He is very busy;
(b)He does not think his anger is a problem;
(c)He believes the only reason his time is not occurring is due to the mother not following the orders; and
(d)He believes the mother has blocked him from time out of spite and has embellished the family violence.
Whilst the father says he has attended upon a counsellor, Mr U, and has attended a parenting course (and told the Court he has reviewed his notes), when questioned he could not recall anything of assistance.
In any event, given the evidence, it would not appear the father has gained much from either counselling or the parenting course. The ICL pointed to a myriad of reports over time that showed the father’s ongoing dysregulated behaviour. Further to this, it was apparent having observed him in the witness box that the father did not recognise when he himself was becoming heightened and yelling. He acknowledged as much to the ICL, saying he was unaware of this happening in the witness box.
Furthermore, the father’s evidence was that D has been visiting his home and he has visited D at the grandparent’s home. It is unclear whether the IVO still exits. The father did not know and said this was of no interest to him.
Likewise, Ms H told Ms R that she had no concern about the children’s safety in the father’s care. Nor did she have concerns about D’s behaviour towards X stating “they behave like brothers most of the time, and that sometimes things could get out of hand”. She said D has since been diagnosed with ADHD and was now medicated. (Although the DCP records report the father was not giving him his medication). She also attributed a number of the notifications to the DCP to Ms K and her ASD and BPD.
Of concern is that in the family report Ms K was also reported to blame herself for the reason she was not living with the father. Furthermore the paternal grandparents also appear to blame Ms K who “is a very troubled child.” Although the paternal grandparents also blame D (who did not get along with Ms H and was not medicated) as well as Ms H who “constantly goads D until he retaliates”. Their view was their son allowed “the women in his life to run the show”.
I note that Ms K and the paternal grandparents alleged that the mother abused both D and Ms K and otherwise treated them cruelly. I am not aware of the DCP having substantiated any of these concerns.
Nonetheless, in the CIC the mother was assessed as follows:
[Ms Cain] presented as cooperative, child-focussed and protective of [X]. Her presentation and affect was consistent with her affidavit material, and she presented with what appeared to be genuine concern for [X]’s wellbeing whilst in [Mr Kaufman]’s care. She attributed the dispute to [X] “getting hurt” when he spends time at [Mr Kaufman]’s [Mr Kaufman]’s home, and indicated that the concerns are primarily in relation to [D].
the additional considerations
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
In the family report X is reported to have said he would like equal time but quickly changed this to more time with the mother.
Ms R acknowledged that children of X’s age have a sense of fairness and it is not uncommon for them to say they want equal time at this developmental stage.
However, X is only eight years old and given the potential risks in this case, his views will have little weight.
The nature of the child’s relationship with each of their parents and other significant persons in their lives
In the family report, Ms R observed X with the mother and reported:
It was clear that the child delighted in his interactions with the mother. He was loving and affectionate with his mother, picking her hand up to pat him and cuddling into her.
In the observations of X and the father, Ms H was present and took the lead. When she left, X and the father continued to play a game and X appeared relaxed. Although X ended the session early there did not appear to be any concerns arising from the session or any other obvious issues in the relationship.
Nonetheless, Ms R spoke to Ms V, X’s teacher, who noted a clear pattern of dysregulated behaviour in X prior to and following time with the father which raised concerns about X’s experience in the father’s household. This is not surprising given the matters reported to the DCP to which I have already referred.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time and to communicate with the child
Whilst the father has only had limited time, he was given the opportunity to spend time with X at his home, provided his parents supervised. He was not however willing to ask his parents to do this, which indicates he was not prepared to do everything he could to spend time with X.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This was also not a live issue in this case.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from a parent or other significant persons in their lives
X has been seeing his father on a regular basis each week. He seems to love his father and appears to accept him with all of his faults and deficiencies. It is likely that he would be significantly affected if he did not see or spend time with the father at all.
If X did not spend time with the father, he would also be deprived of his relationship with his half-sibling J, who also frequently attends the time, as well as his paternal grandparents.
The practical difficulty and expense associated with the 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
This was also not a live issue in this case.
The capacity of each of the child’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
In the family report, Ms R observed:
The father was not able to articulate the child's developmental needs and his unique needs. There was limited insight demonstrated in the father's answers. He minimised the child's experience of his older half-brother, [D], and he minimised the conflict between his partner and [D] (insinuating that his partner had made the incident seem worse than it was).
Conversely with respect to the mother Ms R reported:
The mother presented appropriately. She engaged with the Consultant in a detached, clinical manner. The content of her conversation indicated a sophisticated knowledge about parenting children, strategies for managing children who struggle with learning needs, and children who have difficulty emotionally regulating.
The mother describes the child with a richness which indicates that she has an in-depth knowledge of the child and his developmental history. She says that the child behaves differently at home and does not have the same behaviour which he exhibits at the school. It appears that the mother attributes this to the strategies which she employs with the child.
Moreover, despite the evidence showing that both Ms K and D have been involuntarily detained under the Mental Health Act 2009 (SA), under cross-examination the father appeared to have little knowledge about those admissions, including Ms K’s most recent admission to hospital following suicidal thoughts. The DCP records also indicate he did not seem to think D needed any help from CAMHS. The father appeared to have little insight into these issues and/or their impact on X.
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
This is not a relevant consideration in this matter.
If the child is an Aboriginal child or a Torres Strait Islander child
This is not a relevant consideration in this matter.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
Part of the responsibilities of parenthood is keeping a child safe from harm. The father has failed in my view to ensure that X is so protected.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
This has already been covered at length in these reasons.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
Both parties seek final orders. It is not controversial that it is in the child’s best interests for there to be no further proceedings.
diScussion
I find on the balance of probabilities that X has been exposed to significant family violence in the father’s home.
Based on my finding of family violence, I find that X would be at an unacceptable risk of harm if he were to spend unfettered time with the father.
However in light of the need to consider a meaningful relationship between the father and X, as well as the additional considerations to which I have referred, I need to consider whether orders can be made to satisfactorily ameliorate this risk.
Ms R concluded the following:
The father's apparent compromised parenting template combined with the child's hair trigger propensity to become emotionally dysregulated, the father minimising the child protection concerns results in the Consultant's opinion that there is unacceptable risk for the child to spend unsupervised time in the father's care.
Ultimately the mother sought that if time were to occur it should occur in a contained public location where there are security cameras and that the time be supervised by the paternal grandparents. She says this location should be limited to the Suburb B Centre.
Ms R’s view was that a more limited time spending arrangement:
…would minimise the potential risk to the child. The longer a child spends in the care of a parent who has a compromised parenting template, the greater the risk of the child being harmed. Furthermore, given the father's lack of energy, short blocks of time spending between the father and the child has the potential to positively promote a relationship, particularly as the father has a history of struggling to manage his own emotional regulation in the context of stress.
Further to this Ms R observed:
Because the child has been noted to have difficulty with his emotional regulation, and struggles with lack of routine and structure, combined with his APD means that the child needs a parent who is emotionally available, has the energy to be mindful, the ability to predict cues, can create a predictable environment, is able to provide a high level of supervision, and is able to manage the child's behaviour with patience, particularly when the child becomes dysregulated.
However, the father describes struggling with his energy levels and time, which is not conducive to the type of parenting and supervision that the child requires at this time. Furthermore, irrespective of the child protections concerns, the description of the family dynamic at the father's home is one of instability. There have been frequent changes to the members of the household, with the child's half sibling returning six months ago. Furthermore, maintaining consistency and predictability in a household where there is more than one child with special needs is very difficult.
Having had the benefit of the whole of the evidence I agree with these observations. In my view the father has a limited ability to manage his own behaviour and does not have the requisite insight into X’s needs to be able to spend significant periods of time with him. Adding to this, his household remains highly unpredictable and chaotic.
Ms R proposed time for up to four hours on a Saturday and a Sunday. Having heard all of the evidence it would appear that X would not be at an unacceptable risk of harm for such short periods. However I am of the view this time should only occur on one of the weekend days, and that this ought to be a Sunday so that X can play sports on Saturday. X spending both days with the father would result in multiple handovers and transitions between households, which would not be in his best interests. I have also formed the view, based on the father’s own evidence, that this was likely to be more sustainable by him. He was at pains to stress the busy nature of his life and his need to give time to all five of his children (including his partner’s two children).
The parties varied the interim orders such that the father was spending time from 1.00 pm until 4.00 pm. As this appeared suitable to the parties, I will order a similar period but will extend the time by commencing it one hour earlier, at 12.00 pm. They can of course always vary this by agreement.
I accept, given the father’s history of dysregulation and potential for anger and the history of events in his home, that this time should occur in a public place.
Ms R noted that some of the historical concerns may have been reduced however she was still of the view that risk of harm remains, noting:
The father has reportedly reduced his alcohol intake, which the father, and his parents, have identified as historically being strongly correlated to the child protection notifications and police involvement. Further to this, the child's older half sibling, [D], who was identified as being violent towards other family members and a significant stressor to the father and his partner, is no longer residing with the father. Whilst this may have reduced the risk to the child, the Consultant is concerned that the risk of harm to the child remains. Particularly as the father and the family has not engaged in therapeutic intervention to address the high level of conflict.
I note also that the incident with Ms K, for which he was charged, did not involve any alcohol.
Ms R recommended that the father’s time be supervised. This was particularly in light of an incident which occurred on the Sunday before Trial. On that Sunday, the father attended his visit with X at the Suburb B Library but wanted to take him to the park. X refused to go. When the father did not get his way, he chose to leave X at the library and cease the visit. X was left with a total stranger at the library. The father says he saw the mother in the carpark outside and notified her via their communication app that she should collect X. The mother did not in fact read this message but seeing the father leave the location assumed he had removed X and contacted the police. The police attended the father’s home to discover X was not there but rather at the library. The mother then returned to the library to collect him.
Whilst leaving X in the library with a stranger was highly irresponsible, I accept the father believed the mother was still in the carpark and that she had read his message. The mother says the father could not have known she was in the carpark because she was in a friend’s car, however I am prepared to give him the benefit of the doubt on that issue. Furthermore, whilst the father appears to have acted hastily on not getting his way on this occasion, and X reports that he yelled at him, the father has seemingly spent time with X prior to this incident, and since the interim orders were made, without any significant concerns.
In addition, the recent Sunday incident occurred in a contained environment where there were security cameras. I have no evidence that the presence of the paternal grandparents, even if they were willing to be present, would make any difference.
I also accept that it is likely the father did yell at X on this occasion. This would be entirely consistent with the evidence before the Court and my observations of him giving evidence. However on balance it is still in X’s best interests to spend these short periods with him, for the reasons I have already gone into.
Having heard all of the evidence, I do not believe that the father constitutes an unacceptable risk of harm to X if the time is limited and it occurs in a public place where there is CCTV. Furthermore, subject to these safeguards, the time should not be limited to one particular location. These are final orders and X would no doubt quickly get bored with the same location. However as the parties are likely to struggle to reach agreement, the father should be able to determine the location provided he gives the mother prior notice. I note that in any event, the mother’s chosen location did nothing to prevent the Sunday incident.
Although not specifically raised, it is usually in a child’s best interest to spend special occasions with each parent, including Father’s Day/Mother’s Day, Easter, Christmas and their birthdays. On the evidence, there is no reason that X should not spend four hours with the father on each of those days, provided the same conditions are in place. The one exception would be if X’s birthday falls on a school day. In my view dividing the short afterschool period between the parents is not in X’s best interest and would unnecessarily expose him to multiple handovers and the possibility of conflict on his birthday.
Handover should occur in one location – the Suburb B Centre seems appropriate. It has cameras and this is important for the handover where tensions are likely to be heightened and where the child is most likely to be exposed to conflict. If the centre is not open, then changeover should occur inside the Hungry Jacks on C Street as agreed in the previous final orders.
The father will be restrained from bringing X into contact with D. X has been a repeated victim of D’s violence. Although it is asserted that D is now medicated, there is no evidence to corroborate this. Furthermore, as noted by Ms R:
It is clear that the child has identified his half sibling, [D], as a source of anxiety. To reintroduce [D] to the child without it being therapeutically recommended would be potentially detrimental to the child.
Whilst Ms R recommends time may occur after X has attended therapy this would do nothing to change D’s behaviour and thus X would remain at risk.
There is however no restraint on the father bringing J to the time, and the father should be encouraged to do so given the relationship between X and his half-sibling.
There will be no order for FaceTime. The father was clear, he is not interested in Face-Timing X or any other person for that matter.
The father ought to be able to continue to attend school and extracurricular activities. The evidence shows he has previously attended sports without incident.
Finally, I am going to make an order that the mother have sole parental responsibility. I have already determined that due to family violence the presumption of equal shared parental responsibility is rebutted. The parties communicate through an app, which the mother says the father only uses infrequently and with limited success. Furthermore, the mother’s evidence, which was unchallenged, was that she had to wait for eight weeks for the father to respond to her about X attending upon a child psychologist after the school recommended it due to behavioural issues. This is clearly unacceptable.
The mother should however inform the father in writing of any significant decisions she is making for X and prior to these being made. She should also keep him informed about school progress and specialist and medical appointments. The father is then at liberty to make a separate appointment either with school teachers or the child’s allied health professionals to discuss his progress.
I have otherwise made orders pursuant to the mother and ICL’s proposed minute of orders where they were not opposed by the father. I have varied the wording of certain orders where they do not appear to be controversial. I have also included orders for travel that were agreed to in the previous final orders, which the father wanted reinstated, save that they shall only apply to the mother. Furthermore, to facilitate this travel, I will make the order as proposed by the mother that she be able to obtain a passport for X without a signature from the father, which is consistent with the mother having sole parental responsibility.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 14 December 2022
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