Keast & Tremain
[2022] FedCFamC2F 80
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keast & Tremain [2022] FedCFamC2F 80
File number(s): SYC 5595 of 2018 Judgment of: JUDGE BECKHOUSE Date of judgment: 1 February 2022 Catchwords: FAMILY LAW – PARENTING – Spend time with orders – family violence – where children are exposed to unacceptable risk in the care of the father – where children have a loving and meaningful relationship with the father – where the risk posed by the father can only be mitigated by final orders for indefinite supervised time at a contact centre and s 68B injunctions – need to prevent future litigation. Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65D(2), 68B Cases cited: Blinko & Blinko [2015] FamCAFC 146
Champness & Hansen (2009) FLC 93-407
M v M (1988) 166 CLR 69
Moose & Moose (2008) FLC 93-375
R & C [1993] FamCA 62
Rice & Asplund (1979) FLC 90-725
Slater & Light (2013) 48 Fam LR 573
U v U (2002) 211 CLR 238Division: Division 2 Family Law Number of paragraphs: 138 Date of hearing: 6-8 September 2021 Place: Sydney Counsel for the Applicant: Ms Treherne Solicitor for the Applicant: Shoalhaven Lawyers Solicitor for the Respondent: Mr Davidson of Paladin Law Counsel for the Independent Children's Lawyer: Mr Grew Solicitor for the Independent Children's Lawyer: Johnson Horsley Lawyers ORDERS
SYC 5595 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEAST
Applicant
AND: MR TREMAIN
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
1 FEBRUARY 2022
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.The mother shall have sole parental responsibility for the children of the relationship, namely X born in 2015 and Y born in 2017 (“the children”).
3.The children shall live with the mother.
4.The children shall spend time with the father for a period of not less than two (2) hours on one occasion in February, May, July and November each year, supervised by B Contact Centre Town D or C Contact Centre at such dates and times as nominated by B Contact Centre Town D or C Contact Centre but where possible on the first Sunday in each nominated month, with the costs of such supervision to be met by the father.
5.Each party shall do all things and sign all necessary documents to ensure that the family is able to participate in supervised contact with B Contact Centre Town D or C Contact Centre as referred to in Order 4 above.
6.The father shall be permitted to send cards and gifts to the children via the maternal grandmother’s address for each child’s birthday and Christmas, and the mother shall be permitted to inspect those cards and gifts before passing them onto the children, and the mother shall not unreasonably withhold the cards and gifts from the children.
7.The father be hereby restrained by injunction from consuming alcohol during, and in the twenty-four (24) hours before, the children are in his care.
8.The father be hereby restrained by injunction from consuming illicit substances during, and in the twenty-four (24) hours before, the children are in his care.
9.Each of the parties be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party (including on any social media platform); and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
10.Pursuant to section 65Y of the Family Law Act 1975 (Cth) (“the Act”), the mother shall be permitted to travel outside the Commonwealth of Australia with the children X born in 2015 and Y born in 2017 from time to time.
11.Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the mother shall be at liberty to apply for a passport and/or renewal of passport for X born in 2015 and Y born in 2017 without the consent of the father being obtained.
12.These Orders provide an authority for any school/s the children attend to provide the father with copies of school reports and school photos at the father’s cost and request.
13.Pursuant to section 68B of the Act, the father shall be restrained by injunction from:
(a)Attempting to contact or approach the mother or the children by any means whatsoever, including through a third party, except expressly in accordance with these Orders;
(b)Approaching or coming within 100 metres of any known place where the children might from time to time reside or where the children are engaged in any sporting or extracurricular activity;
(c)Approaching or coming within 100 metres of any known day care centre or school which the children might attend or are enrolled.
14.The Independent Children’s Lawyer is discharged.
THE COURT NOTES THAT:
A.Order 13 are injunctions in force against the father under section 68B of the Act for the personal protection of the mother and each of the children.
B.Pursuant to section 68C of the Act, if a police officer believes on reasonable grounds that the father has breached any of the injunctions in Order 13, the police officer may arrest the father without warrant, and the father may be brought before the registry of the Court or any other court exercising jurisdiction under the Act.
C.Pursuant to section 122AA of the Act a person who is authorised or directed by a provision of the Act or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.
D.Orders 1 - 3 and 6 – 12 are made by consent.
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 Keast & Tremain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This case is about the parenting arrangements for X, who was born in 2015 and Y, who was born in 2017.
AGREED ORDERS
The case proceeded over three days and initially both property and parenting matters were in dispute. To the parties credit they reached agreement in relation to a property settlement on the first day of the hearing and final property orders were made by consent.
On the final day of the hearing the Independent Children’s Lawyer (“ICL”) tendered a proposed Minute of Final Orders. By closing submissions, the parties were in agreement with me making all the orders in the Minute of Order with the exception of orders on the following matters:
(a)Spend time with arrangements; and
(b)Restraints against the father under s 68B of the Family Law Act 1975 (Cth) (“Act”).
ISSUES IN DISPUTE
This is a sad case about a father who loves both of his children very deeply. The children love their father as well. However, a range of risks of harm have been alleged. These include that the father:
(a)Has perpetrated family violence against the mother and in the presence of the children;
(b)Has a long term addiction to cannabis;
(c)Has unmanaged mental health issues; and
(d)Lacks insight into his behaviour which impacts his parenting capacity.
The Court is asked to determine:
(a)Whether the father poses a risk of harm to the children; and
(b)If the children are to spend time with their father, whether it should take place under supervision.
EVIDENCE
Each of the parties provided Case Outline documents setting out the material relied upon.
The mother relied upon:
(a)Initiating Application filed 31 August 2018;
(b)Affidavit of Ms Keast filed 10 August 2021;
(c)Notice of Risk filed 31 August 2018; and
(d)Single Expert Report of Ms F dated 12 August 2020.
The father relied upon:
(a)Response to Initiating Application filed 26 October 2018;
(b)Notice of Risk filed 26 October 2018; and
(c)Affidavit of Mr Tremain filed 24 August 2021.
The ICL relied upon:
(a)Child Dispute Conference Memorandum of Family Consultant Ms G dated 19 December 2018; and
(b)Single Expert Report of Clinical Psychologist Ms F dated 12 August 2020.
I have also had regard to the material marked and tendered as exhibits.
The mother and father are legally represented.
The Court was assisted by an ICL.
The parties were each cross-examined.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
RELEVANT FACTS
Before considering the proposals and the law it is useful to capture the relevant facts.
The mother Ms Keast was born in 1987 and is 34 years old.
The father Mr Tremain was born in 1987 and is 34 years old.
The parties commenced a relationship in 2008 and cohabitation commenced in 2009.
In 2015 X was born.
In August 2017 the parties separated.
Y was born approximately one month after the parties’ separation.
On 26 April 2018 a final Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of the mother and children from the father.
On 31 August 2018 the mother commenced these proceedings.
In the accompanying Notice of Risk the mother alleged that there was verbal conflict between the parties in the periods surrounding separation which were reported to the Police and the Child Welfare Authority.
The father filed his Response to an Application for Final Orders on 26 October 2018.
On 31 January 2019 Interim Consent Orders were made which provided for the father to spend supervised time with the children each fortnight.
On 12 August 2020 the Single Expert Report of Ms F, clinical psychologist was released which recommended that supervision in relation to the father’s time with the children be lifted only when the father:
(a)Reliably attends supervised contact visits;
(b)Demonstrates sound parenting during those visits;
(c)Respects the mother’s boundaries during that time;
(d)Submits to drug (ideally HFT every second month but otherwise random and regular urinalysis) and CDT tests over the next months;
(e)Tests negative for stimulants for a 12 month duration;
(f)Attends upon a cannabis clinic with a view to reduced use, control or abstinence;
(g)Engages in a family violence program such as Taking Responsibility or Facing Up;
(h)Engages in psychological treatment with regard to his childhood trauma, problems in relationships with others, low frustration tolerance, sexual issues, and capacity to communicate effectively;
(i)Demonstrates that he has completed the parenting after separation program; and
(j)Ideally completes a Circle of Security course (though this may take longer than 12 months as the above courses/therapy should be prioritised).
The matter proceeded to a final hearing from 6 -8 September 2021.
As at the date of the final hearing:
(a)The mother lived with the children in rental accommodation in Town H.
(b)Was working as a casual cleaner whilst undertaking a Bachelor degree and in a relationship but not cohabiting with her partner.
(c)The father was living at Town E in rental accommodation and working as a self-employed construction worker.
(d)The father has not re-partnered.
The children spend time with the father each alternate weekend for two hours supervised by J Contact Centre at Town K, pursuant to the Interim Consent Orders made on 31 January 2019. At the time of the hearing the children had spent no time with the father since June 2021 due to COVID-19.
PROPOSALS
I will now consider the parties’ proposals.
The mother proposed that:
(a)She have sole parental responsibility for the children;
(b)The children live with her;
(c)The children spend time with the father for two hours each fortnight supervised by a supervised agency, with the father to cover the costs of the supervised service;
(d)Restraints prohibiting the father from consuming alcohol and illicit substances during and within the 24 hours before the children are in his care be ordered; and
(e)Non denigration injunctions be ordered.
The father proposed that:
(a)The parties have equal shared parental responsibility for the children;
(b)The children live with the mother;
(c)The children spend time with the father each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday and every Wednesday from 3.00 pm - 6.00 pm, with such time within the first six months of the Orders being contingent on the father providing negative drug test results each month, and during school holidays;
(d)Communication orders;
(e)Non-denigration orders; and
(f)Information orders.
On the final day of the hearing the ICL proposed final orders. These can be summarised as follows:
(a)That the mother have sole parental responsibility for the children;
(b)That the children live with the mother;
(c)That the children spend supervised time with the father for a period of not less than two hours on one occasion every two months;
(d)Orders permitting the father to send cards and gifts to the children;
(e)Restraints prohibiting the father from consuming alcohol and illicit substances during and within the 24 hours before the children are in his care;
(f)Non-denigration orders;
(g)Travel orders;
(h)Information orders in relation to schooling; and
(i)Section 68B Injunctions.
THE CHILDREN (X AND Y)
Information as to X and Y who are the children in these proceedings should be captured.
The mother described X aged six and Y aged four as “very social” children who “enjoy spending time with my family and friends”. The mother said that the children love being outside, and enjoy playing together on afternoons and weekends, reading, drawing and playing dress-ups.
The mother described X to Ms F (“the Single Expert”) as a “very happy, smart confident” child who is affectionate and enjoys drawing and dancing. X has enjoyed participating in a range of extracurricular activities including dance lessons, gymnastics lessons, and a sports camp.
The Single Expert recorded that X has reached all developmental milestones at age appropriate limits, and adjusted easily to preschool at the age of three. The Single Expert recorded that:
Ms Keast expressed some concern about X’s emotional regulation as she has engaged in banging her head, biting and scratching. The school reported that X is somewhat hyperactive but on paediatric review, it was opined that her development is normal but may have experienced in utero trauma. Ms Keast also took X to L Service (a not-for profit organisation that provide support for parents and children) who suggest her behaviour may stem from anxiety. Ms Keast noted that X’s behaviour over the past six months has settled.[1]
[1] Single Expert Report dated 12 August 2020, paragraph 47 (‘Single Expert Report’).
After speaking to a doctor at the L Service the mother researched and acquired a range of sensory and occupational therapy tools that she believed may assist X including a weighted blanket, compression sheets, headphones, play dough and drawing books.
The Single Expert described X as “a chatty young girl with a very sweet demeanour.”[2] She observed X to have “excellent social and verbal skills” and that “there was no obvious signs of attention-deficit, impulsivity or behaviour problems”.[3]
[2] Ibid, paragraph 102.
[3] Ibid.
The mother said “Y is a very social child who enjoys attending day-care and spending time with her friends.” To the Single Expert the mother described Y as a “delicious and cheeky girl” who is very attached to X and herself.[4] The mother reported to the Single Expert that Y had been pigeon toeing, and this was observed to be significant in the Single Expert’s assessment of Y. The mother reported to the Single Expert that she has consulted a physiotherapist on the pigeon toeing, who advised Y will likely outgrow this. The Single Expert observed that “[t]here were no obvious problems with her gross or fine motor skills, or her speech” and that “[s]he was not distressed at any stage and happily separated briefly from her mother and returned to her mother’s care.”[5]
[4] Ibid, paragraph 48.
[5] Ibid, paragraph 107.
The mother gave evidence that both children have suffered from gastrointestinal issues which subsided following the elimination of dairy and gluten from their diets as recommended to the mother by a Bowen Therapist and a paediatrician.
THE LAW
The principles governing the Court’s determination on competing parenting applications are set out in Part VII of the Act.
The Court must consider what is in the best interests of the child when making a parenting order.[6] In deciding whether to make a particular parenting order I must consider the matters set out in s 60CC(2), being the primary considerations, and s 60CC(3), being the additional considerations.
[6] Family Law Act 1975 (Cth) s 60CA (‘the Act’).
There are two primary considerations. The Court must balance the benefit to the children of having a meaningful relationship with each parent with the primary consideration of protecting them from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
There are 13 additional considerations which are set out in s 60CC(3). I will address those which are applicable to the relevant considerations.
Primary considerations
Section 60CC(2)(a) of the Act requires me to consider the importance of the children having a meaningful relationship with each of the parents. I must also consider the issue of the risk associated with them being exposed to harm or abuse in the care of either of their parents.
Both parties accepted that the children do have a meaningful relationship with the father. The children enjoy the time they spend with their father and are affectionate towards him. During the observations made by the Single Expert she observed “Beautiful eye contact” between X and the father. She reported that he “smiled and provided a lovely warm environment for the children.”[7]
[7] Single Expert Report, paragraph 113.
The reports prepared by the supervised contact services also reflect the existence of both a fondness and close bond between the children and their father.
The challenge in this case is how a meaningful relationship can be achieved in a manner that is in the children’s best interests and without risk.
It is necessary to identify the existence of risk and to then assess whether that risk “is able to be sufficiently managed or ameliorated”.[8]
DISCUSSION OF RISK
[8] Blinko & Blinko [2015] FamCAFC 146 at [83].
Risks posed by the mother
There were some risks identified by the father concerning the mother’s capacity to care for the children. They are that:
(a)The mother has a history of mental health issues. He used the term “bi-polar” but there is evidence that she had experienced anxiety and depression leading to self-harm and eating disorders in her younger years.
(b)During the relationship, the mother consumed excessive levels of alcohol and habitually used marijuana.
The mother gave frank evidence about these issues both to the Court and to the Single Expert.
On the issue of her mental health the Single Expert concluded that:
…she has not had bipolar disorder or postnatal depression but that she has been vulnerable to symptoms of anxiety and depression in the context of psycho-social stressors. To her credit, she is engaged in therapy and has reported improved coping and sense of self. She appears to be functioning well currently.[9]
[9] Single Expert Report, p.35.
There was no evidence before the Court to suggest otherwise.
In relation to the mother’s drug and alcohol consumption the mother had variously during the proceedings provided clear screening results. The Single Expert said that the mother:
…expressed regret, remorse and shame about this period of her life. Further, she reported controlled drinking and abstinence from cannabis for over five years.… As such, she is considered at low risk of relapse.[10]
[10] Ibid, p.36.
The Court concludes that the mother does not currently pose a risk to the children nor that her ability to care for or parent the children is impaired.
Risks posed by the father
The risks to the children that have been identified can be grouped into three categories:
(1)Exposure to family violence by the father;
(2)The father’s addiction to cannabis; and
(3)The father’s unmanaged mental health condition.
Family violence
The mother made the following allegations as to family violence:
(a)The father was physically violent towards her during the relationship. For example, she alleges that in December 2015 he punched a rear vision mirror and smashed the windscreen of a vehicle being driven by the mother (in X’s presence). She also alleges that in March 2017 the father pushed her in front of X while she was pregnant with Y.
(b)The father lost his temper and broke household items such as TV remote controls when in a rage.
(c)The father has made threats to damage property and kill himself. For example, in August 2017 he called the mother on multiple occasions threatening to “firebomb a car” and kill her boss. In March and April 2018 he sent text messages to the mother where he threatened to end his life.
(d)The father was verbally abusive towards her and constantly taunted her in a derogatory manner calling her such things as “crazy bitch”, “evil cunt” and “bi-polar”.
(e)The father pressured her to engage in sexual practices that she found uncomfortable, embarrassing and sexually abusive. She alleges that he asked her to perform a range of sexual acts and procure sexual services for him when she was not a willing participant. She alleged that he masturbated several times each week and forced her to be present to help him achieve climax, sometimes for sessions of up to six hours in duration.
(f)The father exhibited controlling behaviours such as removing her car keys or preventing her from accessing the family motor vehicle.
(g)She was stalked, monitored and harassed by the father and that his observation of her has continued beyond separation. For example, he attempted to follow her social media accounts in January 2020, emailed her in June and July 2020 despite his undertakings not to and filmed her and the children at a beach in Town M in February 2021.
The Single Expert made the following observations about the family violence allegations:
(a)That:
At best it was conflictual and unhealthy with high levels of suspicion, anger and hostility. At worst it entailed chronic verbal and sexual abuse, controlling behaviour and physical violence in the form of throwing items, smashing items, and threatening Ms Keast’s safety. Either way, this would have had a detrimental impact on the children’s development, their sense of safety, and left them vulnerable to psychosocial problems later in life.[11]
(b)That the mother:
…provided detailed and cogent accounts of chronic family violence, including verbal, physical and sexual violence, controlling behaviour, threats, stalking and harassment. Of note is that her account has been consistent over time and to various agencies. She described being fearful of Mr Tremain and his temper, and delayed leaving the relationship for fear of the ramifications. Her account is consistent with a controlling and coercive form of family violence.[12]
(c)Further, the Single Expert observed that:
…there is no indication that the children were subjected to physical or sexual abuse or neglected. However, the children were likely exposed to high levels of conflict in family violence in utero and throughout their infancy, which is a form of psychological abuse.[13]
[11] Ibid, p.38.
[12] Ibid, p.34.
[13] Ibid, p.30.
The Single Expert outlined that the father continues to “blame others, including Ms Keast and his family for the situation he finds himself in.”[14]
[14] Ibid, p.36.
The tendered material provided further corroboration of the allegations about family violence made by the mother. This included:
(a)Notes taken by a social worker from the Region N Local Health District dated 11 December 2015 which corroborated the mother’s account of the father damaging the windscreen of their motor vehicle;[15]
(b)Case notes taken by the Region O family support service where the mother had been a client since 21 August 2017;[16]
(c)Police Incident Reports;[17]
(d)The ADVO sought by the Police for the protection of the mother and children on 11 April 2018 (made final on 26 July 2018);
(e)The mother seeking an Apprehended Personal Violence Order following the event in Town M on 19 February 2021, and the undertakings given by the father on a without admission basis on 15 April 2021;
(f)Text messages sent to the mother by the father;
(g)Medical records of the father including from 2017 when he complained of impotence issues and tennis elbow supportive of long periods of masturbation; and
(h)Notes from the J Contact Centre supervised contact service.
[15] Exhibit 1, p.279.
[16] Exhibit 1, p.190 – 226.
[17] Consolidated Tender Bundle, p.378 – 379.
The Single Expert made a range of recommendations that, if implemented, would lead her to support the supervision requirements that were in place at the time being lifted. In respect to family violence this included that he:
(a)Respects Ms Keast’s boundaries;
(b)Engages in a family violence program, such as taking responsibility or facing up;
(c)Engages in psychological treatment; and
(d)Demonstrates that he has completed other parenting programs.
The father when he gave evidence conceded some of the allegations of family violence perpetrated by him.
He denied ever “physically assaulting” the mother or “being violent towards her”.
He conceded in cross-examination that he called the mother names such as “slut” and “evil cunt”.
By the time of the hearing the father had not engaged in a family violence program nor in psychological treatment.
When the Single Expert gave evidence she observed that:
(a)The father had not addressed his capacity to respect boundaries. She was alarmed that he had questioned whether J Contact Centre were monitoring who comes in the car with Ms Keast, and his suggestion that he would engage a private investigator.
(b)She observed that his behaviour shows “either a level of disinhibition or an inability to manage his behaviour, or a disregard for rules”.[18]
(c)She said his “ongoing stalking behaviour is concerning from a psychological perspective because it means, again, that Ms Keast and the children may not be safe. There are safety risk factors. I find that concerning.”[19]
[18] Transcript 8 September 2021, p.43 line 40.
[19] Transcript 8 September 2021, p.16 line 35.
Conclusions on family violence
Having regard to the evidence, I make the following findings:
(a)The father has been a persistent perpetrator of verbal, physical and sexual violence against the mother since at least 2015.
(b)The children have been present and exposed to family violence.
(c)The father has minimised his family violence towards the mother.
(d)The father has taken no steps to address his past behaviour nor address how he might change his behaviour in the future.
(e)The father’s propensity to commit family violence poses a risk to the children.
The father’s substance abuse
The father admitted using alcohol, cannabis and other recreational drugs since he was young. Of his cannabis use he said: “I habitually use marijuana and have done so since I was a teenager.”
He claims to have consulted with his doctor on a number of occasions concerning his use of marijuana and has been successful in reducing his consumption of it.
The father has submitted to a number of drug tests since 2019 and all recorded a positive test for cannabis. The levels recorded did not support the father’s assertion that he had reduced his consumption of marijuana.
The father tendered to the Court reports written by his General Practitioner Dr P dated 17 January 2019 and 20 May 2019. Dr P referred him to a psychologist to assist him with his marijuana addiction. The father did not attend upon the psychologist.
When he met with the Single Expert on 6 July 2020 the father claimed to have not abused stimulants for one year. However, on 30 September 2020 the father tested positive to amphetamine and methamphetamines.
The father gave evidence that he has continued to use marijuana and maintain full-time employment and care for his children. He said “smoking marijuana has not prevented me from progressing in life, working and obtaining further skills.”
As to his use of alcohol, amphetamine and methamphetamines his evidence to the Court was that he only used them socially.
In February 2019 the father was charged with driving under the influence of alcohol and his licensed was subsequently suspended.
The Single Expert made the following observations about the father’s drug use:
(a)The account he gave of his drug use was “inconsistent and unreliable”.[20]
(b)He “blames Ms Keast for his use of amphetamines and his inability to abstain from cannabis. His failure to take responsibility and make changes in his lifestyle is concerning, particularly in light of the ramifications this has for the parenting arrangements.”[21]
(c)That “[i]t is imperative, therefore, that Mr Tremain demonstrates that he has been able to abstain from stimulants for at least one year, and that he is able to exercise controlled use of cannabis, such that he can refrain from using whilst the children are in his care.”[22]
[20] Single Expert Report, p.36.
[21] Ibid.
[22] Ibid, p.37.
The Single Expert made a range of recommendations in relation to the father’s drug use that, if implemented, would lead her to support the supervision requirements that were in place at the time being lifted. These included that:
(a)The father submitted to drug and CGT tests over the next 12 months.
(b)He test negative for stimulants of 12 months duration.
(c)He attends upon a cannabis clinic with a view to reduce, use, control and abstinence.
By the time of the hearing the following observations can be made about the father’s implementation of the Single Expert’s recommendations:
(a)The father continued to submit to drug and CGT tests over the 12 month period but returned positive test results on each occasion.
(b)The father has taken no steps to attend upon a cannabis clinic.
When the Single Expert gave evidence she observed that the father’s drug use is tied to his mental health and both are concerning risk factors for the children.
Conclusions on the father’s substance abuse
I make the following findings based on the evidence:
(a)The father has an addiction to cannabis.
(b)The father continues to abuse alcohol and other stimulants such as amphetamine and methamphetamines, although his use is not habitual and is controlled.
(c)The father has taken no steps to address his cannabis dependence.
(d)The father’s drug use impacts on his mental health.
(e)The father does not accept that his use of cannabis has the potential to impact negatively on his capacity to parent the children.
The father’s mental health
The mother raised concerns about the father’s mental health which included:
(a)Several incidents of suicidal ideation.
(b)Obsessional thoughts about her including his pre-occupation with the notion that she had engaged in an extra-marital affair “leading” to his erectile dysfunction.
(c)Anger management problems.
The Single Expert made the following observations about the father’s mental health:
(a)While he presented with entrenched “obsessional thinking” about the mother and her alleged infidelity, he did not exhibit any psychotic phenomena.[23]
(b)He continued to blame the mother for their conflict and was paranoid about infidelities. His jealousness in a more recent relationship suggested it might be an enduring issue for him.[24]
(c)He had limited capacity to self-reflect making his motivation and engagement in therapy doubtful.[25]
(d)Formal testing supported the presence of enduring dysfunctional personality traits, including grandiosity, paranoia and antisocial behaviour. While she thought he would benefit from psychotherapy she was sceptical about his capacity to engage.[26]
(e)He has difficulties managing his anger and has a low frustration threshold.[27]
(f)He had an inability to stabilise himself in periods of high distress and the potential for suicidal ideation continued. Without therapy to improve his coping, he may again be at risk of destabilising when stressed.[28]
[23] Ibid, paragraph 55.
[24] Ibid, paragraph 91.
[25] Ibid, paragraph 81.
[26] Ibid, p.36.
[27] Ibid, p.33.
[28] Ibid.
The tendered material provided further corroboration of some mental health difficulties experienced by the father. This included:
(a)Police records indicating that in 2018 the father’s brother contacted the police expressing concern about the father’s mental health, including his frequent threats to self-harm.
(b)Police records corroborating the mother’s complaints about the father’s obsessive behaviour in January and April 2018.
(c)Medical reports produced by Dr P which included a referral to a psychologist in 2019. While Dr P indicated that he had “not seen evidence of a severe mental illness”, he described the father’s presentation as “distressed and agitated” as a result of the relationship breakdown. He was prescribed medication for anxiety and depression in 2017.
(d)Records from J Contact Centre.
On addressing his mental health and anger issues the Single Expert made a range of recommendations that, if implemented, would lead her to support the supervision requirements that were in place at the time being lifted. These included that the father engage in psychological treatment with regard to his childhood trauma, problems in relationships with others, low frustration tolerance, sexual issues, and capacity to communicate effectively
At the time of the hearing the father had not taken steps to engage in the psychological treatment recommended by the Single Expert.
The father conceded that he “could have handled certain situations better”.[29] However, at the hearing the father was observed to continue to have obsessive thoughts about the mother and her past infidelity. For example, during cross-examination he agreed that he told the Single Expert that the children “need to know it is not okay to have an affair” and that he suggested to the Single Expert that he will tell the children when they are older, possibly when they reach the age of 16.[30]
[29] Affidavit of Mr Tremain filed 24 August 2021, paragraph 24.
[30] Transcript 8 September 2021, p.4 line 5-30.
When the Single Expert gave evidence she expressed concern that the father’s presentation had not improved, especially in the formal setting of a supervised contact centre. This led her to raise the risk of him “harming, abducting or even potentially killing Ms Keast or the children”.[31]
[31] Transcript 8 September 2021, p.18 line 30.
Conclusions on the father’s mental health
Having regard to the evidence, I make the following findings:
(a)The father continues to experience some mental health difficulties.
(b)The father has difficulties managing his frustrations leading to him behaving in an angry and volatile manner at times.
(c)He would benefit from some psychological treatment to address these difficulties.
(d)The father has taken no steps to engage with psychological or psycho-educational treatment.
Does the father pose a risk to the children?
I find based on the evidence and the findings made that the father poses a risk of exposing the children to physical and psychological harm and/or neglect based on the following:
(a)He has subjected the mother to verbal, physical and sexual violence, sometimes in the presence of the children.
(b)He has minimised his family violence towards the mother.
(c)His drug use and long association with “drug culture”.
(d)He has unaddressed anger management and mental health issues.
(e)His ongoing obsession with the mother and a need to blame her for his conduct.
(f)He has taken no steps to engage with psychological or psycho-educational treatment to address any of these issues.
(g)He has not been proactive in addressing any of the issues.
The Court needs to decide whether these risks that have been identified are unacceptable risks, or whether they can be managed by making orders that sufficiently mitigate against the risk. These important matters will be considered later in these reasons for judgment. Before doing so, it is necessary to consider some additional considerations contained in s 60CC(3) of the Act so far as they are relevant.
ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a) the views of the children
While there can be limited weight placed on the views of the children who are aged only six and four, it must be noted that the children enjoy the time they spend with their father and their views do not appear to have been influenced by their mother.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The mother is the children’s primary attachment figure and they have a warm and stable relationship with her. The Single Expert was of the opinion the children would not have any basis to have established an attachment to the father.
Despite the limited time spent between the children and their father they enjoy a warm relationship. During the observations made by the Single Expert she observed “beautiful eye contact” between X and the father. She reported that he “smiled and provided a lovely warm environment for the children.”[32] The reports prepared by the supervised contact services suggest both a fondness and close bond between the children and their father.
Section 60CC(c) 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; and to spend time with the child; and to communicate with the child
[32] Ibid, paragraph 113.
The mother has demonstrated a capacity to make decisions in the children’s best interests.
In 2019 there was an interruption to the father spending time with the children when he could not afford to pay the costs associated with supervision. The Single Expert was concerned that the father continued to use drugs and alcohol during this period. She was also concerned that it reflected a failure on his part to understand the children’s attachment needs.[33] This behaviour tends to suggest that the father prioritised his own needs over the children’s needs.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
[33] Ibid, p.31.
The mother has received sporadic child support payments from the father since separation. While she received only $260 in 2020, since February 2021 the father has made consistent child support payments. At the time of the hearing the father was approximately $6,000 in arrears of his child support payments.
The mother continues to work part-time to support the children and their needs.
This is another example of where the father has prioritised his own needs over those of the children.
Section 60CC(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Single Expert opined that the children would be highly distressed if separated from the mother. She was less confident about the children’s distress in the event that they did not spend time with their father. Any significant change to the children’s current circumstances would need to be managed carefully and thoughtfully.
Section 60CC(3)(f) the capacity of each of the child’s parents and any other person to provide for the needs of the children
The mother has shown a sound capacity to provide for the needs of the children. For example, she responded appropriately when addressing X’s behavioural problems. Whilst the mother has experienced some challenges to her parental capacity, she has addressed these issues appropriately and responsibly and continues to do so.
Much has already been written about the father’s parenting capacity. To be fair it remains untested because most of the time he has spent with his children has been under supervision and for short periods of time.
However, of great concern is that the Single Expert provided a very comprehensive list of all recommendations that, if implemented, would allow the father to move towards unsupervised time with the children. His inability or unwillingness to undertake any of the recommended steps by the Single Expert demonstrates both a lack of parental insight and capacity.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has demonstrated a positive attitude towards parenthood and the responsibilities to the children. Since the time when a caseworker from Family and Community Services began meeting with her in 2017, she has taken proactive steps to be a good, protective parent to X and Y.
The father has not displayed an appropriate attitude towards the responsibilities of parenthood. Whilst there is no doubt that he loves his children he has taken no steps to meaningfully address any of the shortcomings identified with his attitude and capacity to parent Y and X.
The Court heard evidence of the special dietary requirements of the children due to their allergies. The father was recorded in supervised contact as saying he would not be dictated to by the mother about what the children will eat and he would both require medical evidence and seek out his own advice on the matter.
Another concern is the father’s intention to involve the children in discussions about the parental conflict in the future because he felt they needed to “learn not to have affairs”.[34]
[34] Ibid, paragraph 97.
The father displayed limited insight into the needs of the children and how he would appropriately meet them. Ultimately the Single Expert concluded that “the onus should be on him to demonstrate a mature and child focused attitude towards the children and parenting. Supervision should not be lifted until he can demonstrate significant changes in his attitude and behaviour”.[35]
[35] Ibid, p.34.
Section 60CC(3)(j) any family violence involving the child or a member of the child's family
I have already made findings about the family violence perpetrated by the father in the presence of the children.
While there is no current family violence order in place, there are undertakings given by the father on a without admissions basis on 15 April 2021 for a period of 12 months. The mother asks that injunctions be made to restrain the father from contacting or approaching the mother and the children except in accordance with these Orders.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The father says he wants to address some issues such as cannabis consumption but can only do so after the hearing has concluded. The orders that he seeks are therefore contingent on his complying with a drug testing regime. However, he makes no proposal for what would happen if he did not comply, or in the event that he returned positive readings. This would surely lead to the institution of further proceedings.
The mother and ICL seek an order for the father’s time to be supervised. There is some caution when making a long term order for supervision. The avoidance of further litigation also motivated the mother to seek orders with respect to obtaining a passport for the children and undertaking travel outside the Commonwealth of Australia.
CONCLUSION AS TO ORDERS
Parental responsibility
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Act that it is in the best interests of the children that the parents have equal shared parental responsibility has been rebutted on the basis that:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence (s 61DA(2)) of the Act); or
(b)the proceedings are interim and the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)) of the Act.
As I have found that there are reasonable grounds to believe that the father has engaged in family violence, the presumption in s 61DA(1) is rebutted.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child.
The Single Expert observed that:
The parties have had no communication for several years. Prior to that, however, the communication and relationship appears to have been unhealthy, with Mr Tremain seemingly being controlling and hostile and Ms Keast being frightened and submissive. Despite Ms Keast’s claims that she is now strong enough to manage communication with Mr Tremain, I have concerns about the level of trauma symptoms, the capacity to manage the stress of dealing with Mr Tremain, and Mr Tremain’s ability to communicate with her in a healthy manner. If he undermines her parenting, harasses her, or is hostile towards her, Ms Keast may experience anxiety and stress again that may affect her parenting.[36]
[36] Ibid, p.37.
I am satisfied that requiring the mother to communicate with the father in order to give effect to an order for the parents to have equal shared parental responsibility would not be in the children’s best interests because it would cause the mother ongoing anxiety and may adversely impact upon her parenting capacity. It is also not practical to require the mother to arrive at decisions jointly with the father into the future.
On that basis an order will be made for the mother to exercise sole parental responsibility for the children.
The mother also seeks a specific order that she be able to obtain the children’s passports, and travel overseas, without requiring the father’s consent. There is no issue that she would not return to Australia. In the circumstances of this matter I propose making the orders sought by the mother and it would appear that I make this order with the consent of the parties.
What time should the father spend with the children?
The most contentious decision for this Court is what time the father should spend with his daughters and if so, how often and on what terms.
I note that in M v M (1988) 166 CLR 69 the High Court at [20] observed that parenting proceedings are not to be viewed as adversarial proceedings in the ordinary sense, but as an investigation as to what order will best promote the welfare of the child. A court exercising jurisdiction under Part VII of the Act is not bound by the proposed orders of any party or limited to making orders in the terms sought by a party.[37]
[37] U v U (2002) 211 CLR 238.
Having considered the evidence and made findings about risk I have to consider if any safeguards can be put in place to protect the children from risk from the father. I am not satisfied that orders for unsupervised time between the father and the children would be appropriate. The father currently presents an unacceptable risk to the children that cannot not be mitigated against in any appropriate manner.
A court generally exercises great caution when imposing the indefinite supervision of time between a child and a parent.[38] In these circumstances the only available options are to either impose permanent supervision on the children’s time with their father or to sever their relationship.
[38]See for example Slater & Light (2013) 48 Fam LR 573 at 583-584, 591; Champness & Hansen (2009) FLC 93-407 at [209]-[215], [219]-[225]; Moose v Moose (2008) FLC 93-375 at [119].
The father has a positive relationship with his daughters. While there are many concerns about the father and his conduct, very few complaints have ever been levelled at his interactions with his children. Their engagement has been warm, positive and affectionate. Given this, the ICL submitted that this is an appropriate case for orders to be made for indefinite supervision but only for the purpose of allowing the children and the father to maintain their relationship.
Permanent supervision needs to be provided by a professional supervisor. While the father offered up the paternal grandfather as a suitable candidate, there was no evidence that he was either appropriate or willing to discharge such duties. Because no other suitable candidate was revealed by the evidence, that solution presents several difficulties for orders requiring permanent supervised time.
In addition to determining the risk to the children, the Court must also consider the impact on the parent who has the primary care of the children.
As stated by Full Court in R & C [1993] FamCA 62 at [32] “in upholding children’s rights to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary care giver concerning the child’s exposure to potential harm where such anxiety is likely to impact on that parent’s caregiving ability.”
The Single Expert was of the view that the mother is already psychologically vulnerable and contact with the father may trigger past trauma. This was also observed by the frailty of the mother during the hearing. She said:
… the prospect of having to have contact with Mr Tremain directly could trigger that anxiety response for her and could be quite distressing for her, and the children would then be witnessing that, it would be potentially exposing them to her emotional state or to the parents having conflict…I would be opposed to that happening in this situation. I’m not sure that it would be beneficial, and I think that the risk to the children would outweigh any benefit.[39]
[39] Transcript 8 September 2021, p.21 line 35.
The mother’s parenting capacity has to be prioritised over the father’s need to see the children so she can be as stable as possible for their care. There are too many risks to allow an order for telephone or other video communication between the children and their father.
The mother and the ICL propose that I make orders for the father to spend supervised time with the children on six occasions each year at his own expense. That position was consistent with the view of the Single Expert who recommended between four to six occasions of supervised contact expressly for the purpose of maintaining the relationship that the children have with their father.
Weighing up all of these issues, it will be in the children’s best interests to see their father on four occasions each year for a period of up to two hours at a supervised contact service. The father will cover the cost of this supervision. He will be responsible for organising the sessions in accordance with the Orders.
In arriving at this decision I have been influenced by the vulnerability of the mother and the need for her to focus on her own recovery. Supervised contact services provide an important service both to the community and the family law system. Often there are wait lists and I am reluctant to see the father’s time prioritised over other families when he has failed to take any steps to address the reasons why the supervised contact service is necessary.
Injunctions
Section 68B of the Act provides the power to grant injunctions for the welfare of children.
The father’s behaviour was observed by the Single Expert to have “escalated” or “worsened” since she prepared her report. She identified some potentially grave consequences of this.
I am satisfied that it is appropriate to make the restraints sought by the mother by injunction pursuant to s 68B of the Act. This will place a restriction on the father contacting, communicating and approaching the mother and the children at home, school and work other than in accordance with these orders.
CONCLUSION
For now the orders provide the mother with space from litigation and conflict to allow herself to recover. The Orders allow the father and children to continue a relationship although a limited one.
While these Orders finally end the litigation, they are capable of being reviewed in the future if circumstances change. For example, if the father is able to demonstrate a sufficient change in his circumstances to warrant their review and variation.[40] It is hoped that the father will follow the recommendations made by the Single Expert so that in future he can demonstrate to the mother (and if necessary the court) that he has been able to address the risks that have been identified. The onus rests on him.
[40]Section 65D(2) of the Act; Rice v Asplund (1979) FLC 90-725.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 1 February 2022
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