Keaton & Dallas
[2023] FedCFamC1F 558
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keaton & Dallas [2023] FedCFamC1F 558
File number(s): SYC 5449 of 2021 Judgment of: BERMAN J Date of judgment: 7 July 2023 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – Where the mother seeks an on order for sole parental responsibility – Where the presumption is rebutted given the evidence of family violence – Where the father does not seek a shared care arrangement or significant and substantial time – Orders.
FAMILY LAW – CHILDREN – Family violence – Risk – Meaningful relationship – Where the Court finds that father engaged in family violence including threats of suicide – Where the children have not spent time with the father since separation – Where the father is effectively a stranger to the younger child – Where the older child is adversely impacted by the father’s family violence – Consideration of whether a meaningful relationship is possible – Where the single expert opines it would be possible subject to providing it is safe and practically possible – Where the Court makes orders for the father to spend limited, supervised time with the children.
Legislation: Evidence Act 1995 (Cth) S 135.
Family Law Act 1975 (Cth) Div 12A, s 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(2A), 61DA, 61DA(2), 61DA(4) 69ZT, 69ZN
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.18.
B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Cases cited: Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] 55 Fam LR 310
Blanding & Blanding [2016] 55 Fam LR 218
Chapman & Palmer (1978) FLC 90-510
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
M v M (1988) 166 CLR 69 (“M v M”)
Vasser & Taylor-Black (2007) FLC 93-329
N & S & The Separate Representative (1996) FLC 92-655
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Sigley & Evor [2011] 44 Fam LR 439
Division: Division 1 First Instance Number of paragraphs: 259 Date of hearing: 20, 21, 22 and 23 March 2023 Place: Adelaide – by MS Teams Counsel for the Applicant: Mr Walkom Solicitor for the Applicant: Walkom Lawyers Counsel for the Respondent: Mr Stapleton Solicitor for the Respondent: Longton Legal Counsel for the Independent Children's Lawyer: Ms Snelling Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
SYC 5449 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEATON
Applicant
AND: MS DALLAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.Ms Dallas (“the mother”) have sole parental responsibility for X born 2015 and Y born 2019 (collectively “the children”).
2.The children live with the mother.
3.The children spend supervised time with Mr Keaton (“the father”) as follows:
(a)For a period of not more than 2 hours on not more than 4 occasions per year as agreed between the parties, but failing agreement, on the first Sunday in March, June, September and December in each year from 9.00 am until 11.00 am;
(b)To be supervised at a Contact Centre of the mother’s choosing at City B;
(c)The cost of supervision shall be borne equally by the parties;
(d)That in the event that the father fails to make appropriate arrangements including, the payment of his share or proportion of the supervision service not less than 7 days prior to the scheduled visit, the visit shall be cancelled and not rescheduled until the next diarised supervised contact occasion.
4.The mother provide the father with redacted copies of the children’s school reports within 7 days of receipt of same.
5.The mother will immediately notify the father in writing of any serious health or medical events impacting upon the children.
6.The mother shall provide the father with an email address to enable communication to occur providing such communication is restricted to matters relating to the children only.
7.The children spend such other times with the father as may be agreed between the parties.
8.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father be restrained from the following:
(a)Physically disciplining the children;
(b)Denigrating the other or members of the mother’s family in the presence or hearing of the children;
(c)Conveying messages through the children and/or using the children as a go between to convey messages to the mother;
(d)Discussing the proceedings or any issue arising out of the proceedings with the children;
(e)Making critical or derogatory remarks on social media in relation to the mother or referring in any way to the proceedings; and
(f)Attending within 500 metres of the mother’s place of residence or her work place or any school or preschool in which the children are enrolled and attend.
9.That for the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take or send the children from the Commonwealth of Australia.
10.That for the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children are permitted to have an Australian passport.
11.The mother is permitted to apply for an Australian passport for each of the children and the father’s consent to each of the children having a passport is not required.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Keaton (“the father”) and Ms Dallas (“the mother”) are the parents of X born 2015 and Y born 2019 (collectively “the children”).
The father concedes the mother have sole parental responsibility for the children and that the children live with her. The issue of contention is what time, if any, the children should spend with the father and whether supervision is required and if so, the duration, the nomination of a supervisor and the location of the supervised time spending.
By Amended Initiating Application filed 22 December 2022, the father seeks orders for the children to spend time with him on a graduated basis such that after a period of 27 months, the children spend unsupervised time each alternate weekend from 10.00 am Saturday until 10.00 am Sunday. The orders sought by the father set out that for the first nine months, his time with the children be supervised, initially, by a professional supervisor at the father’s sole expense and after a period of three months, with either a professional supervisor or a nominated friend/ family member to be chosen by the mother.
By Amended Response to Initiating Application filed 1 March 2023, the mother seeks for the Court to make an order that the children spend no time with the father. In the event that the Court declines to make an order for no time, as an alternative position, she seeks that the time the father spend with the children be supervised at a contact centre for a period of not more than two hours for no more than four occasions per year.
The mother deposes to a significant history of family violence perpetrated by the father. The mother contends that the father had a significant gambling problem and associated with unsavoury characters and “loan sharks” and as a result, the parties were required to move houses over 10 times in under five years. The mother asserts that because of the father’s gambling, the parties often did not have sufficient funds to pay for groceries and basic necessities such as nappies, medication, clothing and that the gas and electricity were often disconnected as a result of the bills not being paid. Whilst the father denies that he has a gambling addiction, the father spent $3,000 on online gambling as recently as the Friday prior to the commencement of the final hearing.
The parties first separated in late 2016 and an interim Apprehended Domestic Violence Order (“ADVO”) was made listing the father as the defendant. The parties reconciled in late 2017 and separated on a final basis in April 2021.
Between the parties reconciling and the final separation, the mother alleges that the father’s behaviour becoming increasingly violent and his parental capacity was impacted as a result of the decline in his mental health. She highlights incidents where the father was physically violent towards X.
Between the end of April and the start of May 2021, the father telephoned and texted the mother constantly. She asserts that in May 2021, the father telephoned her to speak with the children however, he stated questioning the mother as to her location. When the mother declined to tell the father her whereabouts, she states that the father said “if I get my hands on the kids, I will take them and jump and you will never see them again”. The mother contacted the police who issued an ADVO in mid-2021 listing the mother and the children as protected persons and the father as the defendant.
Two days later a property recovery order was issued and the following day, the father attended at the former matrimonial home with several police officers to collect his personal belongings and swap motor vehicles. In early 2022, the ADVO was made final with the expiry date being early 2024.
The mother considers that the children are at risk of psychological and physical harm in the father’s unsupervised care and that she is at risk of harm and her safety would be compromised if the father were to know where she is living.
The father says that since separation, he has engaged in therapy and various post-separation parenting programs and that as a result of completing the same, he now recognises that his behaviour was inappropriate. He argues that he is not a risk to the children and that the children’s views of him have been negatively influenced by the mother’s attitude.
The father has not spent any time with the children since April 2021 and the father is unaware as to the mother and children’s location.
BACKGROUND
The father was born in 1989 and is 34 years of age. The father is employed fulltime in security.
The mother was born in 1989 and is 33 years of age. The mother did not wish to provide any details which may make her location identifiable.
The parties met in 2012 and commenced cohabitation in 2013. They separated for a period of approximately 12 months in 2016 and on a final basis in April 2021.
The father commenced proceedings on 28 July 2021 in relation to parenting matters. The mother’s Response sought orders pertaining to both parenting and property matters. The parties resolved property matters by consent with Orders being made on 5 November 2021.
The parties are entrenched in their dispute as to whether the children are at risk in the father’s care and whether the children should spend any time with the father.
The mother sets out in her trial affidavit that the relationship first broke down in 2016 when the father threatened her with a weapon following an argument. She attended upon the Suburb C Police Station where she was provided with an ADVO listing the father as the defendant. The Police arranged for a safe house to be made available to the mother and X. The mother, X and the maternal grandmother stayed in the safe house for approximately three to four weeks and thereafter, the mother and X resided with the maternal grandmother.
Notwithstanding the ADVO, the mother alleges that the father continued to engage in stalking and harassing behaviour. She says that the father would follow her to workplace events, watch her in her office from the street and harass her on the train ride to and from work.
The mother did however, agree for the father to spend time with X for one hour each Saturday, supervised by the maternal grandmother. The mother alleges that the time spending was arranged between the father and the maternal grandmother however the father asserts that notwithstanding the provisions of the ADVO, the mother messaged him directly. The mother contends that there were only three occasions that the father spent time with X and on one occasion, the father only stayed for 10 minutes. In late 2016, the mother agreed to be the supervisor during the limited time the father spent with X.
In late 2016, the parties reconciled and in mid or late 2017, they recommenced cohabitation. Between the first separation and the final separation, the mother says that the father’s behaviour became increasingly violent and threatening and she sets out in detail in her trial affidavit at paragraphs 114 to 137, multiple incidents of family violence perpetrated by the father.
The mother makes allegations that the father set up video cameras in the family home, verbally abused her, physically disciplined X, financially deprived her by not providing her with sufficient money or access to the parties’ accounts and caused her to become fearful of the father as a result of his threats of harm to himself, the mother and the children.
The mother alleges that the father would threaten her by saying words to the effect of “you know who I know” and “you know where I work and the resources I have”. On occasions the father also threatened to kill himself which caused the mother significant distress. She deposes to an incident on 8 September 2020 where the father sent the mother a text message of a picture of himself at a cliff in Suburb D saying “I will jump” and “I love you [X] and [Y]. Please don’t forget me”. The mother asserts that the father called X and said “I am going to kill myself and if you ever need guidance to call on [Mr E]…”.[1]
[1] Mother’s affidavit filed 1 March 2023, p 89.
A significant incident occurred in mid-2021. The mother alleges that X told her that the father had said the mother hated him and the only way to stop the mother from hating him was to “hit [her] over the head with wood or put a plastic bag over [her] head so [she] couldn’t get oxygen”.[2]
[2] Mother’s affidavit filed 1 March 2023, p 109.
The mother also deposes to the father being financially controlling during and after the relationship. She alleges that the father has a significant gambling problem which caused financial stress on the parties. Further, that the father borrowed money off people who made serious threats of harm to the father if, and when, the father did not repay the money. The mother annexes to her trial affidavit messages from people unknown to her, asking her to make sure that the father respond to them as they are owed money by him.
The mother makes reference to an occasion where she received a telephone call from the father’s colleague who informed her that the father was collecting money from his colleagues and staff member because he had told them “[the mother] and [X] had been in a horrific car accident” and that “[the mother] will pull through but [X] is touch and go”. [3] The mother and X had never been in a car accident.
[3] The mother’s trial affidavit filed 1 March 2023, p 121.
The father concedes that whilst he considered he had a gambling addiction in 2007, at present he would describe it as a ‘hobby’. He denies that he has an addiction, that he took money from unsavoury characters or that he had a connection to gang members. The father concedes that he did physically discipline the child, albeit not to the extent that the mother describes, but he now realises it is not acceptable. The father denies that he financially controlled the mother and he asserts that the mother is not a reliable witness and has exacerbated the extent of the family violence in an effort to isolate the children from spending time with the father.
Further, it is the father’s position that he has made a genuine effort and attempt to mitigate the mother’s concerns of risk by engaging in post parenting separation programs including, the “Respectful Man”, “Tuning into Kids”, and the “Triple P” as well as attending counselling.
The parties have no co-parenting relationship and are not able to communicate in accordance with the provisions in the ADVO. The ADVO will remain in place until early 2024.
At separation, the children remained living with the mother. The children have not spent any time with the father since April 2021.
DOCUMENTS RELIED UPON BY THE PARTIES
The father relies upon the following documents:-
(1)Amended Initiating Application filed 22 December 2022;
(2)Affidavit of the father filed 22 December 2022 (“the father’s trial affidavit”);
(3)Affidavit of Mr F filed 16 March 2023; and
(4)Case Outline dated 16 March 2023.
The mother replies upon the following documents:-
(1)Amended Response to Initiating Application filed 1 March 2023;
(2)Affidavit of the mother filed 1 March 2023 (“the mother’s trial affidavit”);
(3)Affidavit of Ms G filed 1 March 2023;
(4)Case Outline dated 15 March 2023; and
(5)Summary of Argument dated 21 March 2023.
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:-
(1)ICL’s proposed Minute of Order dated 23 March 2023;
(2)Family Assessment Report of Ms H dated 14 February 2022;
(3)Child Dispute Conference Memorandum of Ms H dated 20 August 2021; and
(4)Outline of Case filed 17 March 2023.
TREATMENT OF EVIDENCE
At the commencement of the trial, I highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party, nor the ICL, spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles of s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion of s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly, if it is contentious.
Consideration was given to objections to affidavits of evidence of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) but in particular, pursuant to r 8.18 of the Rules and s 135 of the Evidence Act.
THE EVIDENCE
The father
The father supplemented his evidence, as set out in his trial affidavit, by providing a comprehensive response to the allegations made by the mother that his gambling had placed the family in a position of financial impecuniosity, that he was threatening towards the mother and the children and that he had subjected the mother to coercive and controlling behaviour both financially and physically.
The father did not concede that his conduct could or should constitute a basis for the mother’s overarching fear of him and her further concern that the children would be at risk in his care unless it was the subject of strict supervision.
The father conceded that following the parties’ first separation in late 2016, the mother obtained an Apprehended Domestic Violence Order (“ADVO”) for one year from late 2016.
The parties reconciled in late 2017 but commenced to communicate to each other in or about the month after the AVO was obtained in which the father recognised was a breach of the AVO.
The parties commenced cohabitation again in mid-2017 and thereafter the parties lived in a number of rental accommodation houses of short to medium duration.
The father denied that the parties’ final separation in or about April 2021 was occasioned by his inability to provide financially for the family.
The mother’s contention on this point is that throughout the parties’ relationship, they had moved over ten times with a reoccurring theme of returning to the maternal grandmother’s home when the parties were not able to secure other accommodation.
Whilst not agreeing to the proposition that the frequent requirement to move into different accommodation was as a result of financial mismanagement, the father did concede that he had a gambling habit that either was or became problematic at the time.
The father conceded that one week prior to the hearing he gambled $3,000 in one night.
The father’s denial of the extent to which his gambling adversely impacted upon the family was unconvincing. It is likely that the father’s gambling was but one of a number of difficulties that confronted the parties and ultimately made their relationship untenable.
Following final separation in April 2021, the mother says that she received disconnection notices for unpaid electricity accounts.
The father’s evidence is that as soon as he became aware of the disconnection notices, they were paid by him. The father later acknowledged that he may not have paid the bills if the mother’s evidence was that the liability was still outstanding.
The father denied that after separation he had made a representation to Centrelink that he had 100 per cent care of the children and refused to accept that Centrelink were seeking repayment of benefits to which he was not entitled.
Since separation, the children have been in the sole care of the mother and the father has not seen the children since April 2021. The father agreed that he had made a Centrelink claim for Family Tax Benefits in mid-2020 on the basis that the mother was on maternity leave and as such, the father considered that they were entitled to a Centrelink benefit. The Centrelink claim was for reimbursement in the sum of $4,616 however, the father contends that he was not notified of the overpayment. It may be a relevant consideration that the notice was sent to the father at an address that he last occupied in March 2020.
In the father’s trial affidavit, he conceded that when he was 18 years of age, he developed a gambling addiction and would often gamble his entire earnings. In 2016 the father says that he attended a rehabilitation clinic, counselling and other anti-addiction focussed therapies.
The mother’s contention is that the father has not undergone successful rehabilitation and that his gambling was a significant feature of their relationship and of more immediate relevance, continues to the present date. The father admits that various transactions as recently as March 2023 relate to gambling transactions via an online betting organisation.
The father’s evidence was that whilst he continues to gamble, it is under control and it no longer represents a significant preoccupation of his. The father’s evidence was unconvincing. Whilst the father’s gambling was likely one of the insurmountable factors that lead to the breakdown of the relationship, is not necessarily a significant consideration as to the extent to which, if at all, the children should spend time with the father.
At paragraph 40 of the mother’s trial affidavit she says that in late 2016, following the parties’ first separation, the father threatened her with a weapon and said “you know the things I have access to”.
The father did not seek to challenge the mother’s assertion that he had threatened her with a weapon.
The mother further contends that following separation the father stalked her, sent pictures to her of her whereabouts and attended the mother’s work functions without warning.
At times, the mother observed the father to behave in an agitated and hyperactive manner imploring her to consider reconciliation.
Whilst the father denied that he threatened to commit suicide in order to persuade the mother to reconcile, he did not deny the mother’s allegation that he stalked her both in terms of her private life and also at her places of employment.
The father admitted to sending a photograph of a cliff landmark to the mother on 8 September 2020. The clear message that the father sought to convey was that he was considering committing suicide by jumping off the cliff.
The mother had made detailed diary notes of the father’s behaviour, his threats to commit suicide and abuse of the mother from September 2020.
The father did not specifically deny the mother’s separate allegations and agreed that at the time, he had experienced suicidal ideation.
Annexure “E” to the mother’s trial affidavit are copies of the following text message exchange with the father on 8 September 2020:
[Father]:Good luck with everything. I hope [X] turns out to be a great man. Hope [Y] grows to be a respectful young lady. I’m over everything and can’t handle it, I’m over the bullshit. You can do it and raise those kids X.
[Mother]:It’s really sad [t]hat you want to walk away from a girlfriend that loves you and that has been in your corner for everything and two amazing kids. There’s obviously someone offering you a lot better than us. Always love you [Mr Keaton] x.
The further responses from the father confirm the mother’s evidence that the father threatened to commit suicide and considered that the children needed a better role model.
The tenor of the messages leave little doubt that the father’s intention was either to seriously consider committing suicide or to cast the responsibility for the father’s distress and anxiety on the mother.
Whilst the father denied any conduct which was designed to upset the mother or induce fear, I find that the father used his threats of suicide as a method by which he could control the mother.
In mid-2021, the father received a handwritten document at the ADVO hearing which alleged that X had said the following:-
“Do you remember when daddy took me to the petrol station. He said that you hate me and the only way I can stop you from hating me is to put a plastic bag over your head when your (sic) asleep and sticky tape your mouth so you don’t get oxygen”.[4]
[4] Father’s affidavit filed 22 December 2022, page 49.
The alleged incident is significant and was repeated by X as part of the family assessment.
The father denied that he had ever said to X that he should place a plastic bag over the mother’s head.
Paragraph 94 of the father’s trial affidavit refers to the various parenting courses and personal improvement programs that he had engaged in from February 2022. The father agreed that the focus of at least one of the programs was directed to assisting a person who had engaged in family violence or aggressive and demeaning conduct, to gain insight as to the damaging consequences that flow from such conduct.
The father accepted that the course had a family violence focus but he was not prepared to accept that he had ever engaged in conduct consistent with family violence.
The father conceded that in the interview with the Court Child Expert, he advised that he no longer gambled knowing that it was not an accurate statement.
The father was asked to consider how he would manage the transition of the children into his care given he has not seen the children since April 2021.
The father considered that the process of reintroduction would be gradual and extend over a period of about two years before the children would then spend each alternate weekend from 10.00 am Saturday to 3.00 pm Sunday in the father’s care.
In addition, the father considered that the first tranche of time namely, for a period of six months for two hours each alternate Saturday from 10.00 am to 12 noon, would be the subject of supervision.
The father acknowledged that he lives with his partner and considers the relationship to be stable. His partner would be a significant adult in the lives of the children if orders are made that restore the father’s time.
Mr F
Mr F is the partner of the father’s mother.
He does not reside with the maternal grandmother but they have been in a relationship for about 15 years.
Mr F did not ever reside in the same home as the father but he has had contact with him of recent years.
Mr F considers that he has known the children since their birth, that prior to separation of the parties X would refer to him as “Poppy […]” and that he would be prepared to supervise the father’s time with the children and provide an appropriate undertaking in relation to his role as a proposed supervisor.
Mr F was aware of the AVO that listed the mother and the children as protected persons.
Mr F did not know of the father’s purported suicide threat in September 2020 nor that in 2016 the father wanted to throw himself in front of a train.
Mr F was not aware of the aspects of the father’s behaviour and presentation that might impact upon the ability of a supervisor necessary to protect the children.
I accept that Mr F presented as a reliable witness but his evidence is of limited assistance in circumstances where the father had not made him aware of the more worrying aspects of the his presentation.
The mother
The mother’s evidence was commenced by the introduction of two audio recordings comprising an interview with the mother on 2 May 2021 (“Exhibit 8”) and with X on 19 May 2021 (“Exhibit 9”).
The mother was challenged as to the accuracy of her evidence that the father was responsible for the non-payment of bills received for electricity use which resulted in the issue of disconnection notices.
It is likely that whilst there was limited financial assistance provided by the father, the disconnection notices received by the mother were indicative of an intent to disconnect rather than the service actually being terminated.
There is some uncertainty as to the billing cycle and the mother’s evidence does not reach a level which would support a finding that the father intended to cause the electricity service to the mother’s home to be disconnected.
A similar consideration exists concerning the Centrelink application filed by the father and benefits that were obtained in early 2021. The mother’s assertion is that the father did not disclose his correct address. The evidence however, supports a finding that both parties gave the maternal grandmother’s address as their postal address. The parties regularly moved to a different address but with a common theme of returning to the maternal grandmother’s home when accommodation became difficult.
The mother annexed an NAB joint account as annexure “O” to her trial affidavit. Her evidence was that whilst she was present when the account was opened, she did not have a key to the letter box and could not look at bank statements as they were periodically posted and whilst she had access to internet banking, her evidence was that the father from time to time would delete the app. The mother did not hold a pin number and could not access the account without the father’s knowledge and consent.
On closer consideration of the bank statements, the extent of withdrawals by the father lends some support to the mother’s assertion that she had little control over the family finances.
The mother’s evidence is that the father would stalk her and then send pictures of himself to indicate where he was. Annexure “H” to the mother’s trial affidavit is evidence of a text exchange between the parties in April 2021 which includes a picture apparently taken by the father from his motor vehicle of the premises in which the mother and children where residing.
The mother was challenged to produce other evidence of the father’s stalking. Apparently the phone held by the mother in April 2021 may not have been destroyed but it was not able to be produced.
The mother did block the father from accessing her Facebook page on 3 May 2021.
The mother took steps to limit the father’s ability to track her by turning off the location settings on her phone.
The mother provided a history dating back to early 2017 when the mother sought information as to the consequences of the AVO being withdrawn.
The mother’s evidence is that she went to a safe house for a few weeks but shortly thereafter was again in contact with the father but did not alert the police to the resumption of communications with him. The mother agreed that she should not have been in contact with the father and gave as an explanation that she was naïve.
The mother was unconvincing in her evidence that the father would not allow her to attend medical appointments without him. When pressed, the mother agreed that there were occasions when she had attended to the children’s medical needs without the father and that this was contrary to her previous evidence that the father would not let her out of his sight.
Following separation, the mother alleges that she was fearful of the father and had taken steps to barricade her door for fear that the father would force entry. The mother annexes photographs of the barricaded premises at annexure “G” of her trial affidavit however, I find that the photos were taken on or about 15 December 2020 and as such they were not indicative of the precautions taken post separation.
The mother also gave evidence that the father would call her sometimes over 100 times per hour however she was not able to substantiate the assertion.
That does not mean that the nature and tenor of the text messages that are annexed to the mother’s trial affidavit are not indicative of concerning behaviour but it does not appear to be at the level sought to be relied upon by her.
The emotional lability of the father is exemplified in a comparison of the following text message exchanges between the parties on 8 September 2020:
[Father]Good luck with everything. I hope [X] turns out to be a great man. Hope [Y] grows to be a respectful young lady. I’m over everything and can’t handle it, I’m over the bullshit. You can do it and raise those kids. X
[Mother]It’s really sad [t]hat you want to walk away from a girlfriend that loves you and that has been in your corner for everything and two amazing kids. There’s obviously someone offering you a lot better than us. Always love you [Mr Keaton] x
[Father] [Audio call – 2 mins]
[Mother][Mr Keaton] please don’t threaten me with that!! Why don’t you love me anymore? I try so hard to give you everything. I can’t support you more than what I do, I’m sorry it’s not good enough.
[Father][Photograph of father’s face] I love you [X] and [Y] please don’t forget me.
[Mother][Mr Keaton] we want you! This is you walking away from us. Please answer me.
…
[Father] I’m leaving this world.
[Mother] Stop!!! Come home. Please. Stop don’t do this to us.
[Father] I don’t belong here.
[Mother]We love you so much! You belong with us. We need you. Please come home. Please [Mr Keaton] please. You have a family.
[Father] [X] needs a better role model.
…
[Mother] I’ll do better. I’ll do anything. I’m sorry.
[Father]It’s too late. Fuck off and live with your mum and Nan and grow old to be a man hater like them.
The father annexes to his trial affidavit an extensive text message exchange between the parties for the period 10 to 21 April 2021.
Whilst there is some contention between the parties, the tenor of the exchange is polite, courteous and civil. The conversations between the parties confirm that they were able to attend outings together and agreement was reached for the father to spend time with the mother and the children at the home.
The parties attended couples counselling with Mr J. The mother contends that the focus of the counselling was not to explore reconciliation but rather to reinforce the mother’s position that the relationship with the father was now over.
The mother was not challenged as to her contention that whilst the father did spend the evening on 20 April 2021 with the family, he would not then leave until the mother threatened to call the police.
The proceedings were commenced by the father on 29 July 2021. The mother’s evidence was that by that time, she had already moved to Region K south of City B. Whilst there is some uncertainty, it appears that the distance now between the parties is about 90 kilometres or the equivalent of an hour and fifteen minutes driving time.
The mother relies upon a video record of interview with the police in support of an AVO application. Whilst she expresses concern that the father may take the children, a position consistent with some of the father’s text communication with her, she does not express concern that he may cause harm to the children.
There is an ongoing theme with the father’s presentation to the mother following separation that unless she considered reconciliation he might take his own life.
Whilst the father denies that the threat of suicide was empty, the nature of the communication and the pictures depicting a suicide location are either an indication of genuine distress by the father and redolent with a serious risk of suicide or they were intended to pray upon the mother’s compassion in the hope that she would change her attitude towards him.
The mother was asked why during the period between April 2021 and May 2021 the father did not spend more time with the children. The mother’s response was that the father was not interested to do so and she considered that he was regularly intoxicated.
The mother did concede that there were periods when the children were unwell and could not see the father.
The mother agrees that X was upset following separation but even though she accepts that it was difficult for the children, her position is still that there should be no relationship between the father and the children. The mother gave evidence as to the significant disruption following separation and the arrangements for accommodation. The mother’s antithesis towards the father solidified following the purported report by X that when he accompanied the father to the petrol station, the father proposed that he place a plastic bag over the mother’s head.
The mother reflected on the children’s current circumstances and whilst she conceded that there was a level of isolation for the family, the children were happy and settled and she was fearful of the consequences to their wellbeing of reintroducing the father into their lives.
The mother agreed that she was not providing the father with any information at all both as to the children’s school, health or other activity. She was uncertain how that could be done for fear that it would reveal her whereabouts.
The mother is not in a current relationship and does not have a partner but she maintains a family connection with her uncle and aunt.
The mother’s preferred position is that there be no time and no communication between the children and their father however she was prepared to concede that the children could spend time with the father for two hours, four times per year, at a contact centre. The need for supervision is not necessarily because the father would present as an overt risk to the children but rather that he may seek to discover the mother’s whereabouts.
In January 2022, the mother sought orders that the children live with her and spend supervised time with the father every second Sunday. The mother agreed that the orders sought were inconsistent with her current position but she thought that it was unlikely the Court would make an order that the children spend no time with the father.
The mother’s evidence highlighted significant uncertainty as to the future, recognising that as the children got older it would become increasingly more difficult to maintain the father’s complete exclusion from their lives.
The mother was asked to reflect upon the various threats made by the father to commit suicide. Her evidence was that it was a constant refrain from the father whenever the parties argued and there were occasions when she held a genuine fear that he would carry through with a suicide threat.
The mother conceded that for a long time after separation she was scared but that she is now more settled.
The history of the relationship between the parties is marred by ADVO orders taken out in 2016 and 2022 with the current order to expire in 2024.
The mother’s evidence was broadly in keeping with her trial affidavit material. There was a consistent theme of the mother attempting to accommodate the needs of the father both in terms of his gambling, excess use of alcohol and threats towards the mother or the father’s threat of suicide.
There was a sense of the mother hardening her position towards the father and her preparedness to accommodate a relationship between the father and the children has now dissipated.
There is no challenge to the mother’s capacity to parent the children and a convenient summary of her evidence is that the children are now well settled and she is no longer fearful of the father but that she remains unsure as to the future arrangements not the least of which is the significant geographical distance between the parties.
The mother impressed as a reliable witness even though she was not prepared to readily admit that the communication between the parties following separation was civil and an indication that if the father had shown more insight into his behaviour, she would have been prepared to facilitate and support a relationship with the children.
Ms G
Ms G is the maternal grandmother of the children.
I accept the evidence of the history of the relationship and consider that Ms G provides significant corroboration of the level of dysfunction in the parties’ household arising out of the father’s inability to control money and his propensity for unrestrained gambling.
Ms G provided significant financial support to the parties but also allowed them to use her home as a safety net if and when accommodation became difficult. I accept her evidence of threats by the father and the level of offensive language and disrespectful communication directed to the mother.
Of significance to the proceedings is her observations of X’s distress following him spending time with the father in May 2021. Ms G overheard X say to the mother “Daddy told me to put a plastic bag over your head and sticky tape over mouth so it will starve you of oxygen”.
The observations of Ms G as to the father’s controlling conduct towards the mother both financially and emotionally provide corroboration to the mother’s evidence.
I accept that Ms G utilised significant savings in order to resettle the mother and the children.
I consider Ms G to be a reliable witness.
Court Child Expert
Ms H (‘the Child Court Expert”) holds a tertiary qualification and a history of a Social Worker with experience in the area of Communities and Justice and as a Family Consultant practicing in this Court. By Order of 13 September 2021, the Child Court Expert prepared a Family Assessment Report dated 14 February 2022 (“the report”).
In the report, the Court Child Expert recommended that the mother have sole parental responsibility, that the children live with her and spend no time with the father at this stage.
It was further considered and recommended that if there was to be time between the children and the father, it should be conditional upon him attending various child focussed parenting courses and a genuine involvement in a men’s behaviour change program.
The Court Child Expert considered that the content of her report may be confronting to the father and that care should be taken to limit the potential emotional distress. Whilst the caution of the Court Child Expert is understandable, it should be noted that the father received the report without incident.
The Court Child Expert appropriately identified the issues in dispute being parental responsibility and the extent of time the children should spend with the father and if so, whether there should be a condition of supervision.
The issues identified by the Court Child Expert in the report at paragraph 18 are summarised as follows:
·The father’s lack of awareness into how him disciplining X was inappropriate;
·The mother’s lack of awareness of how much an impact her feelings and emotions are having on the children and their relationship with the father;
·Ineffective communication and cooperation between the parties;
·The father’s lack of insight as to why it is inappropriate to seek to gain information as to the mother and her whereabouts; and
·The extent to which the father is prepared to respect the mother and her desire to have nothing to do with the father at this stage.
Whilst the father lamented his lack of relationship with the children, the Court Child Expert recorded that the father considered he was now doing well, had received a job promotion and was in a new and respectful relationship.
The father’s presentation to the Court Child Expert was consistent with his evidence that he would be prepared to see the children under any circumstances in order to re-establish and rebuild their relationship.
The father acknowledged the quality of parenting care demonstrated by the mother. Whilst he attempted to minimise the basis upon which various protection orders were put in place, he reinforced his position that he does not intend to do anything that may breach the current ADVO.
The Court Child Expert recorded the father’s attitude and perception to the reported family violence and his denial that there had been a physical assault or that he had attempted to control her financially or physically.
The father’s capacity to understand that family violence is not acceptable is summarised in the report as follows:-
26.In relation to their arguments and how their relationship was in general [the father] said that they mostly argued about money and the house not being tidy. [The father] said that he is aware he could have spoken differently to [the mother] and not tell her to “fuck off” or lose his temper. [The father] referred to himself as someone that walks away from arguments and clams up. This would cause [the mother] to continue asking him if he was okay and if something was wrong, [the father] said that eventually he would then lose his temper because he got frustrated with her “nagging” him. [The father] saw this behaviour from [the mother] to be “pushing my buttons” as she knew she was “poking the bear”. [The father] was asked in relation to the Men’s Behaviour Change course, and he said that personally he does not feel he needs to take the course but is doing so to comply with the court process. …
The father considered that he no longer had a gambling addiction nor did he use illicit substances or alcohol. The Court Child Expert recorded that the father considered his mental health status to be stable.
A focus of the assessment by the Court Child Expert was to explore family violence but in particular, the allegation that the father had been excessive in his discipline of X. The following extract in the report summarised the father’s attitude to physical discipline:-
31.[The father] initially struggled with showing any understanding of the fact that physical discipline was not in his children’s best interest and as such he will need to find other strategies. He referred to being smacked himself as a child and therefore not finding it harmful but also employing it as a last option. [The father] alleged that he never left any marks and it would “shock” [X] and ensure that he did not do it again. [The father] said that he would speak to [X] and tell him that he had done something wrong and explain to him that [X] needed to apologise. [The father] said that he believes that, as a 5 year old, [X] understood consequences and would therefore often get a time out. [The father] said that [Y] was a very persistent child and would often want to touch cords, he would hold her hand with two fingers and give her a smack on the hand to deter her from going back to the cords. [The father] did not believe that physical discipline would make [X] scared of him and said he never left marks, bruises and would only smack him on his bum, thighs or legs….
In interview, the mother considered that X remained fearful of the father and that she would be reluctant to force X to engage with the father given that he shows considerable reluctance to any proposal he should either communicate and/or engage with the father.
The mother conceded to the Court Child Expert that the father did not assault her and that when he would hold her around the head, throat and shoulders it was because he was frustrated and wanted to hold her still. At the time, she did not consider that his behaviour constituted family violence and often, when frustrated with the course of the argument, the father would walk away.
The mother expressed ongoing fear of the father should he ascertain her whereabouts and believed that it was only because the father did not know where she and the children lived that his stalking and harassing behaviour had ceased.
In interview, the Court Child Expert was satisfied that X had sufficient maturity to engage in the assessment process.
The Court Child Expert recorded X’s memories of spending time with the father and he repeated his concern that the father had told him to place a plastic bag over the mother’s head with a view to her being suffocated.
X presented as having a level of hypervigilance as to whether the father was following the mother and the children. He remembered that the father would smack him and was frightened for his mother when he observed his parents arguing.
The Court Child Expert recorded that X considered his father was a bad person, would yell at everyone and that he had no memory of the father ever having been nice or pleasant.
X summarised his attitude towards the father by saying that “dad is nice and caring and he never cared for me”. The Court Child Expert evaluated the allegation that the father engaged in inappropriate and harsh discipline of X and considered that the child’s presentation was consistent with him having been the victim of overly harsh discipline and having observed aggression in the interaction between the parties.
An important consideration was the advantage and disadvantage of the children maintaining a relationship with the father. The Court Child Expert considered that X was capable of holding a memory of his father and that he was able to express his grief, upset and distress at the breakdown of the family and also noted that the child maintained a negative attitude towards his father.
The Court Child Expert opined that it was likely X would adjust reasonably well should there be no ongoing relationship with the father. The Court Child Expert considered that the mother had provided an appropriate environment for the care, welfare and development of the children.
The extent to which the children would or would not benefit from a relationship with the father is set in the report out as follows:-
82.The risk concerns for [the children] in [the father]’s care include possible ongoing physical discipline, emotional abuse and potential risks in form of family violence and limited parental capacity due to impacted mental health. Given these apparent risk factors associated with [the father] it is unlikely to be in [the children’s] best interest to commence spending any time with him. [Y] is still of an age where she is unable to care for herself and requires all her needs to be met by a caregiver. [X] is able to communicate his needs but will still require assistance with having those needs met. This is by no means ideal for either [Y] or [X] as they could benefit from the involvement of a father figure if he were safe and child-focused. However given [the father]’s presentation during this assessment and the apparent risk factors, the Court Child Expert does not consider that they would be safe if they were to spend time with their father at this point in time.
The Court Child Expert considered that whilst the father had undertaken recognised parenting courses including, a Men’s Behaviour program and a Child Parenting course, the issue was not the attendance and completion of the program but rather the extent to which the father gained insight into his behaviour and whether he was able to demonstrate sufficient understanding to underpin a real change.
The Court Child Expert considered that the children would be appropriate candidates for family therapy directed to rebuilding a relationship with the father however, the process would be slow and likely to progress in a cautious but graduated approach. The first step would be for the mother to speak of the father in her household, letters could then be forwarded by the father together with a photo and eventually leading to the children hearing his voice. A face-to-face meeting could then occur.
The significant hurdle is that X is older and adversely affected by his recollection of the conflict. Y may be amenable to the process whereas X was likely to be resistant.
The Court Child Expert was troubled by X’s presentation in that he was adversely affected even at the mention of his father. The child was observed to hyperventilate and his presentation was consistent with him having experienced trauma and observed aggressive conduct by the father.
X was unlikely to be able to progress to a reintroduction with the father until he had undergone significant therapeutic assistance. The Court Child Expert emphasised that X remained scared of the father whereas to Y, the father was a stranger.
As discussed, an important consideration was whether there was likely to be any adverse or ongoing impact on the child of being completely alienated from a parent. The Court Child Expert considered that in this case, there was no issue if the parent presented or was perceived by the child to be dangerous.
When pressed, the Court Child Expert considered that if it was safe to do so, it would be preferable for the children to re-engage with the father however, given his conduct towards the mother, it would very much depend upon whether she was capable of supporting a resumption of a relationship.
The Court Child Expert was firm in her view that initially, if the children were to re-engage with the father, it would need to be under supervision. Given that it was unlikely a suitable supervisor would be the subject of agreement between the parties, a consideration of professional supervision and in particular, L Contact Centre, would need to be explored. The difficulty as considered by the Court Child Expert was that the issues between the children and the father were complex. She did not consider that the skill set of L Contact Centre was such that they could manage X’s ongoing fear of the father or that he is a complete stranger to Y.
The Court Child Expert gave appropriate consideration to the separate proposals of the parties and in particular, highlighted the advantages and disadvantages of the children resuming a relationship with the father.
It was not suggested in the assessment, evaluation and recommendations that the mother presented as being cavalier in her attitude to the father nor that she had embarked upon a strategy to alienate the children from the father.
Significant weight should be given to the opinion of the Court Child Expert.
PRINCIPLES RELEVANT TO PARENTING ORDERS
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child, (who at the time was a member of the parents’ family), (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard as to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect, the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who at the time was a member of the parent's family (or that other person's family); or
(b) family violence.
The presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
The father seeks an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility. The father does not seek an order for equal time and concedes that given his lack of relationship with the children for at least two years, and that as far as Y is concerned he would be a stranger, he accepts that his time with the children would, of necessity, be limited at least initially and then increase as his relationship with the children develops.
The presumption is rebutted given the evidence of family violence but in any event, a shared care arrangement or even significant and substantial time is not promoted by the mother and not sought by the father given his concessions.
I note the directions contained in s 60CC(2A) of the Act. I have regards to the allegations of the mother that the father has engaged in family violence comprising of physical violence, stalking behaviour following separation and controlling and coercive conduct. The ICL broadly supports the mother’s case however, considers that it would be in the children’s best interests that there be some relationship maintained between the father and the children. The ICL considered that there was insufficient evidence to support any other orders than as set out in the Minute of Order which provides for limited time, initially supervised, and then after a period of approximately ten months, supervision could cease.
The ICL conceded that an initial problem was to identify an appropriate supervisor given that there could well be trauma for the children merely by reason of the therapy that would need to occur.
PARENTING CONSIDERATIONS
Meaningful relationship
Following the remarks of Finn J in Blanding & Blanding [2016] 55 Fam LR 218, where her Honour considered the Full Court decision in Beckham & Desprez [2015] 55 Fam LR 310, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Sigley & Evor [2011] 44 Fam LR 439 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
It is a serious matter to order that a child neither spend time, with nor communicate with, a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said as follows:-
39.Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
The mother’s evidence focuses upon her contrast of the high level of dysfunction in the household leading up to separation and shortly thereafter compared to her evidence that currently the children are settled and are at best, ambivalent about seeing the father and at worst, that X is highly resistant to doing so.
The father impressed as being prepared to engage in any process that would see his relationship with the children re-established.
The age of each of the children is a significant factor. X had a relationship with the father and purportedly has a memory of the father’s aggressive interaction both with the mother and personally. He has been the subject of police interview concerning his allegation that at a petrol station, the father suggested to him that he should place a plastic bag over the mother’s head.
Y has little recollection of the father and it is broadly conceded that the father would be a stranger to her and as such, a more complex and difficult pathway back to a relationship would need to be undertaken.
The Court Child Expert remains concerned that whilst a child’s interests will be better served by maintaining a meaningful relationship with both parents, the unusual factors in this case may make it practically difficult to do so.
The ICL considers that orders should be made that the father’s time with the children be reinstated albeit, limited to two hours and supervised by N Contact Centre in City M or City B, for approximately twelve visits and thereafter, each alternate Saturday by Mr F for a further period of four months before the need for supervision should cease.
I draw a distinction between the likely benefit to the children of resuming a relationship with the father and the practical difficulties in implementing a resumption of time.
Whilst it could be said that Y does not presently have a relationship with the father, that does not mean that there is no advantage to Y in learning of her father and gaining an understanding of who he is. It is therefore conceptually easier to consider the positive benefits that would be experienced by Y were she to have a meaningful relationship with the father.
X is by far the more complex consideration. I accept the opinion of the Court Child Expert that X is highly resistant to resuming a relationship with the father and that whilst there may be significant disagreement between the parties as to the reason why X is steadfast in his refusal to engage, it is likely that X witnessed a high level of aggression and conflict within the family and perceives that the father may well have been the perpetrator of aggressive conduct towards the mother and overt physical discipline directed to the child.
The Court Child Expert does not recommend that there be no time between the children and the father on a final basis but rather more would need to be done before it could occur. The children may need specific and child focussed professional assistance to explain the role that the father has played in their lives and the father would need to establish not just that he attended various parenting courses and a “Men’s Behaviour Change” program but that he has gained insight into his conduct and the damaging impact upon the mother, her fear of the father and the resistance now expressed by X to resuming a relationship with him.
I consider that a chance of a meaningful relationship may well benefit the children, providing it is safe for it to occur and it is practically possible.
I do not ignore that the mother does not wish for the children to resume a relationship with the father because she fears that to do so would disrupt the stability that she has now managed to bring to bear. The mother has the fulsome support of the maternal grandmother who has provided significant financial support to enable the mother to obtain security of accommodation.
Are the children at risk
In M v M (1988) 166 CLR 69 (“M v M”), the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19] treating an allegation of sexual abuse as the paramount consideration was an error identifying that in all proceedings under pt VII of the Act the “court is enjoined to “regard the welfare of the child as the paramount consideration” (s.60D).”
In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch stone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
The decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655 (“N & S & The Separate Representative”), assists at 82,713-4, where Fogarty J said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?[5]
[5] B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
The mother has alleged a history of family violence and coercive and controlling behaviour perpetrated by the father.
The mother’s evidence is corroborated by the observations of the Court Child Expert and her interaction with the parties and in particular, information received from X.
I find that the father engaged in aggressive and controlling behaviour during the course of the relationship. The father concedes that he had a gambling problem which was likely to adversely impact upon the manner in which the mother was able to manage the family budget. It is not denied that the parties moved accommodation on a number of occasions but were fortunate to be able to reside from time to time in the home of the maternal grandmother. I also accept the evidence of the maternal grandmother as to her observations of the manner in which the father acted aggressively and in anger towards the mother.
The father has fairly conceded that the mother was exemplary in her parenting other than his contention that she has taken a set against him which is now reflected in X’s resistance to spending time with the father.
The evidence does not support the father’s contention. There is ample evidence arising from the father’s conduct, the text messages which display the mother demonstrating a desire for consultation and conciliation whereas the father sought to intimidate and coercively control the mother by his repeated threats to commit suicide.
The father’s proposal for a resumption of time with the children is not based upon his version of the relationship prior to separation but rather, whilst not admitting the full suite of allegations made by the mother, his contention that he is now in a much better place having undergone various courses, obtained a promotion in his employment and is in a stable relationship.
For her part, the mother has transitioned from a position whereby she considered the father should have an opportunity to parent the children to the point now where she remains fearful of the father and has taken significant steps to distance herself and the children from him. She is reluctant to disclose any information to the father that may allow him to know where she lives other than in Region K.
Family violence must not be ignored. In Pascoe & O’Keefe and Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight:-
46.… In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
Family violence must be given strong weight but it is not determinative and must be considered as one of the factors which needs to be brought to account in determining what is in the children’s best interests. Without seeking to minimise the considerable adverse impact sustained by the mother as a direct result of the father’s conduct, it is but one factor, albeit significant and requiring careful consideration, which needs to be brought to account in determining what is in the children’s best interests.
The mother puts forward an alternate proposal which is that the children spend some time with the father on four occasions each year. The time is to be supervised at a contact centre in City B. The concern is that whilst the mother impresses as a person who would comply with a court order, a reintroduction of a physical relationship with the father may well be a bridge too far for her at this stage.
Wishes of the child
There is little uncertainty as to X’s presentation being one of high resistance to spending time with the father.
The Court Child Expert gave significant weight to X’s wishes in her recommendation and evaluation that it would be difficult for X to be persuaded to see the father given his current attitude.
There is nothing to suggest that X’s position towards his father has softened and it may be, even if the mother used her best endeavours, X not having seen the father now for two years might consider it to be too hard or too difficult.
Again, I was impressed by the mother’s preparedness to support the children and I find that if an order was made that they spend time with the father, she would facilitate the arrangements and promote the advantages to the children of a relationship with the father to the best of her ability.
The mother’s support for the children renewing a relationship with the father is likely to be more effective with Y than with X.
The nature of the relationship with the parties and others
The children’s primary attachment is with the mother. The reality is that the children have not spent any time with the father over the last two years and for Y, the father is a stranger.
X does not seek a relationship with the father and there is uncertainty as to whether he could be persuaded to do so. The extent to which X would be prepared to see the father is still uncertain and there would be no circumstance where the mother should be required to force X to see the father. She is required to promote and facilitate X’s relationship with the father.
The likely effect of any change in the children’s circumstances
Given the revised position of the father, there will be no change to the children’s current circumstances. The children will remain in the primary care of the mother and the extent of time that they would spend with the father, on either the more generous approach of the ICL or the more restricted alternative approach of the mother, is unlikely to significantly alter the current arrangements.
Family violence
I have found that the father has perpetrated family violence in the manner as discussed.
Whilst the father’s conduct at times was overt, physical and aggressive, at other times it was more subtle in that the father sought to coercively control the mother by his stalking conduct and the threat of suicide.
The father’s language towards the mother was intended by him to be threatening and offensive.
There is currently an ADVO which will extend until 2024.
Whether it be that the mother has now relocated the children to an address not known to the father or it may be that the father has gained some insight into the deleterious consequences of his conduct towards the mother, it is not known, but there does not appear to have been any significant adverse conduct on the part of the father or a breach of the current ADVO.
The advantages and disadvantages of the separate proposals of the parties
The father seeks orders that would see a substantial and immediate resumption of time with the children. During the course of the proceedings, the father’s attitude changed and he appeared to recognise that given he has not spent time with the children for two years and that he is an effective stranger as far as Y is concerned, his relationship would need to be rebuilt.
The orders sought by the father are predicated on the basis that a resumption of time, even if significantly less than he seeks in his orders sought, would be in the best interests to the children.
The mother does not consider that the children’s time with the father should be re-instated. Whilst there may be some benefit of the children having a relationship with the father, the disadvantages are that X is unlikely to be easily supported to resume a relationship with him and there is the overarching risk that if the children spend time with the father he will learn of the mother’s whereabouts and the stability that she has now put in place for the children would be placed at risk.
The Court Child Expert did not consider that it would be in the children’s best interests to resume a relationship with the father at this time but conceded that if the father underwent a process by which he genuinely gained insight into his conduct then a resumption of time in the future may well be possible.
Are the orders sought by each of the parties practical
The mother lives approximately one and a half hours from the father’s residence. She does not wish her address to be disclosed to the father and it is acknowledged that X is resistant to seeing the father at this stage.
The orders sought by the father are not underpinned by evidence as to how they would be given effect.
Whilst the father proposes supervision over a period of ten months before unsupervised time with the children could commence, the evidence of the Court Child Expert is that she doubts the supervisor proposed by the father or in terms of a professional supervisor as proposed by the ICL would likely be lacking in an appropriate skill set necessary to facilitate the father’s time with the children.
Expert involvement is required in circumstances where Y does not currently have a relationship with the father and X does not want to maintain a relationship with him.
There can be no guarantee that the mother would either fulsomely support the children resuming a relationship with the father or even if she is prepared to make a genuine effort, in respect of X it may not be possible to effect a reconciliation.
No evidence was presented as to whether if X refused to spend time with the father, Y would be able to do so on her own.
The venue for supervised time, the cost of same and the geographical distance between the parties are also factors that were not the subject of evidence by the father. A more significant issue is a lacuna in the evidence presented by the father that would demonstrate that the level of insight, considered important by the Court Child Expert, has been achieved.
I do not ignore the further risk to the parties but in particular, the children, of the litigation being ongoing.
The tension in the proceedings is between the likely benefit to the children albeit, not necessarily obvious at this moment, of having a resumption of a relationship with the father as opposed to the lack of evidence that would deal with the complex issues that arise from the father’s conduct and his previous behaviour that underpins the mother’s genuine fear.
I am obliged to err on the side of caution and I find that the orders promoted by the ICL are not practical and will only create further difficulties for the children. The father’s position is represented by a concession that he simply wants to resume some form of relationship with the children.
I consider that whilst the balance is finally poised, the alternative orders sought by the mother have merit.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children.
Family violence is a factor that is the very antithesis of shared parental responsibility.
It is not reasonable to expect the mother to be able to enter into a discussion with the father about the needs of the children.
I find that the history of the relationship was such that the mother was integrally involved in the children’s care whereas the father adopted what might be considered as a light touch to parenting.
An order for sole parental responsibility should be made.
CHANGE OF THE CHILDREN’S SURNAME
The mother wants to change the children’s surname from “Keaton” to “Dallas”.
The Full Court gave consideration to the change of a child's surname in Chapman & Palmer (1978) FLC 90-510. At 77,674 the Full Court said:-
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
The Full Court provided further assistance at 77,675 - 77,676 in relation to the factors to which the Court should have regard to in determining whether there should be any change in the surname of a child include the following:
(a) The welfare of the child is the paramount consideration;
(b) The short and long term effects of any change in the child's surname;
(c)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
(d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(e)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage or relationship; and
(f) The effect of frequent or random changes of name.
The mother sets out the basis for her application at paragraphs 157 to 161 of her trial affidavit.
She states that the children, but in particular X, has come to her and has repeated his distress in recollecting that the father allegedly told him to put a plastic bag over her head or to hit her with a piece of wood.
The mother highlights that she now considers X to be a well-adjusted and confident child who is no longer timid and frightened of the father.
He has developed a wide social network and participates in range of curricular and extra‑curricular activities.
Of some significance, is the practice that has developed whereby X now refers to his father only as “Mr Keaton” and not “dad”.
He has said to his mother that he hates the name of Keaton and that he wants that Y and he share the mother’s surname.
I do not consider that the evidence of the mother is sufficient to support a change of name. There was no evidence presented on by the child expert which would support X’s desire to extensively remove his father from his life.
I accept that X is resistant to spending time with the father however, consistent with the mother’s alternative position, there is advantage to the children in maintaining a residual connection with the father.
The orders that are to be made fall significantly short of what would be required to maintain a meaningful relationship however, that arises because of the potential risk to the children and the mother as presented by the father. In circumstances where the father’s time is the subject of supervision, opportunity exists for X and to a lesser extent Y, recognising their father remains in their life.
It is important that the children retain the potential to reflect upon their relationship with the father in circumstances where they may be prepared to resume a relationship with him later in life.
In the absence of evidence as to the short and long term effects of any change in the children’s surname, I am not satisfied that it would be in the children’s best interests to do so.
CONCLUSION
I propose to make orders that would require the children to spend time with the father as proposed by the mother.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and fifty-nine (259) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 7 July 2023
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