Keenan & Keenan

Case [2023] FedCFamC1F 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

FIRST INSTANCE

Keenan & Keenan [2023] FedCFamC1F 186

File number(s): BRC 5147 of 2021
Judgment of: CAREW J
Date of judgment: 31 March 2023
Catchwords: FAMILY LAW – PARENTING – Where the father has an admitted history of perpetrating family violence towards the mother, including use of derogatory language, yelling, screaming, slamming doors, smashing glasses and crockery, and kicking and punching walls – Where the children were exposed to the family violence – Where the father has a history of anxiety, depression, suicidal ideation and self-harm attempts  – Where the father has little insight into the impact his behaviour has had on the mother and the children – Where the father poses an unacceptable risk of harm to the children – Where the father concedes there would need to be reintroduction therapy before he could spend any time with the children – Where making an order for supervised time is not practical – Where the children will live with the mother and spend no time with the father – Where the mother will have sole parental responsibility for the children
Legislation:

Australian Passports Act 2005 (Cth)

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC93–637

Eastley & Eastley [2022] FedCFamC1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Re David (1997) FLC 92-776
Number of paragraphs: 106
Date of hearing: 14, 15, 16 March 2023
Place: Brisbane
Counsel for the Applicant: Mr E Coker
Solicitor for the Applicant: Ferrall & Co Lawyers
Counsel for the Respondent: Mrs R Bassano
Solicitor for the Respondent: DV Lawyers
Counsel for the Independent Children's Lawyer: Ms C Dart
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

BRC 5147 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KEENAN

Applicant
AND:

MS KEENAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

31 march 2023

THE COURT ORDERS BY CONSENT THAT:

1.W born 2013, X born 2016, Y born 2018 and Z born 2019 (“the children”) live with the mother, Ms Keenan born 1988 (“the mother”).

IT IS FURTHER ORDERED THAT:

2.The mother have sole parental responsibility for the children.

3.The father, Mr Keenan born 1988 (“the father”), spend no time with the children.

4.Except as provided for in this Order, the father not communicate with the children.

5.The father be at liberty to send letters, cards, photographs, and/or gifts to the children on special occasions such as Christmas, Easter and their birthdays.

6.Upon receipt of the letters, cards, photographs, and/or gifts as referred to in paragraph 5 of this Order, the mother be at liberty to open and view the letters, cards, photographs, and/or gifts before providing them to the children so as to ensure that they are appropriate…

Continue reading Keenan & Keenan

Sign in free to access the full text

Details
AGLC
Keenan & Keenan [2023] FedCFamC1F 186
Case
[2023] FedCFamC1F 186
Decision Date

CaseChat Overview and Summary

In Keenan & Keenan, the Federal Circuit and Family Court of Australia dealt with a dispute between the parents of four children regarding the appropriate parenting arrangements following the parents' separation. The father was seeking unsupervised access to the children, while the mother opposed unsupervised access, citing concerns about the children's exposure to family violence and their reactions to the father. The court was required to decide whether the father posed an unacceptable risk of harm to the children and, if so, whether any risk could be ameliorated by supervision.

The court found that the father's behaviour towards the mother and children constituted family violence, as defined by the Family Law Act. The father had a history of violent and threatening behaviour, including verbal abuse, property damage, and threats of self-harm. The children, particularly the older two, exhibited extreme reactions to the father, indicating a significant adverse impact on their well-being. The court also noted the mother's testimony that living with the father was like "walking on eggshells" due to his volatile behaviour. The court concluded that the father posed an unacceptable risk of harm to the children, primarily due to his history of family violence and the children's adverse reactions to him. The court further found that the risk could not be ameliorated by supervision, as the mother was unlikely to support any arrangement that would involve the children spending time with the father, and the children's reactions made it impractical to arrange such time without causing significant distress. The court also dismissed the father's proposal for reunification counselling, finding insufficient evidence to support its effectiveness or feasibility in this case.

In light of these findings, the court ordered that the father not have unsupervised access to the children. The court emphasised the need for any future arrangements to prioritise the children's safety and well-being, taking into account their reactions to the father and the mother's inability to support unsupervised access. The court did not make any specific orders for supervised access, as it found that such access was not practically feasible given the circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow, and having regard to the admitted history of family violence, I find that there is no practical means by which the father can spend time with the children given the extreme reactions of the older two children to the father and the understandable inability of the mother to support such an order. BACKGROUND The parents met when they were both 17 years of age. They commenced a relationship in 2006 and married in 2008. They separated on a final basis on 10 September 2020 after what the mother contends was a serious family violence incident involving the father who had a weapon at the time. The father concedes there was an incident involving him pressing a weapon towards himself but downplays the significance of the incident by describing it as “a self-harm attempt”. The father does not recall what he said at the time but concedes he was “very upset”. The father denies pointing the weapon towards the mother or threatening her with the weapon. The parents’ four children are W, born 2013, X, born 2016, Y, born 2018 and Z born 2019. W has been diagnosed with autism spectrum disorder (“ASD”). The three younger children have been diagnosed with a developmental condition. All four children are supported with National Disability Insurance Scheme (“NDIS”) packages, which provide support by way of occupational therapy and counselling for W and X and occupational therapy for Y and Z. The package includes services for the mother and assistance from a ‘plan manager’ who receives and pays the invoices. The total package for all four children is in the vicinity of $200,000 per annum. The father is 35 years of age. Notwithstanding a number of medical issues, the father is employed, although currently he is working for only four hours per day on three days a week. The father was born with a neurological disorder and required surgeries in his early childhood. In 2010, the father was diagnosed with a disease that causes symptoms of vertigo and can lead to a balance disorder, compromised hearing loss, and potentially deafness. The father contends that his symptoms are currently mild. The father was diagnosed with another disorder in early 2020. The father also suffers from anxiety and depression and has a history of self-harming (the father referred to them during the trial as “self-harm attempts”). Due to the impact of his disorder, the father currently lives with his parents as he requires assistance. In mid-2020, Dr C, neurologist, opined that the father’s disorder was unpredictable and further relapses were probable. During relapses it was noted that the father “experiences weakness and incoordination which impacts his ability to mobilise independently”. During such periods there is an “increased risk of falls” and “upper limb weakness and incoordination also impairs his ability to perform functional tasks such as opening jars and other fine motor movements”. Anxiety was identified as a “significant trigger”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Similarly to her sister, in her sessions with Ms J, X recounted the following: (a)She described her father as “a snake who makes her feel scared, but also angry and sad, because he hits and screams;(b)She told the therapist “I don’t have a “daddy”, only a “rude dad” who punched me, hit me and punched mum...” Conclusion – family violence The father’s admissions about his behaviour fall within the definition of family violence, in that his behaviour was violent and threatening and, combined with the repeated derogatory taunts, it is reasonable to conclude it had the effect of coercing or controlling the mother and causing her and the children to be fearful. The father was prone to frequent bouts of anger over the smallest of things. In that state, he verbally abused the mother in the foulest of terms and threw whatever was at hand in the expression of his anger. He repeatedly damaged property in the house whether by smashing crockery or glassware, or punching or kicking walls. The children were exposed to the family violence and on occasion the father’s verbal abuse was directed at them. The impact on the mother of witnessing the father’s fits of rage coupled with his threats of self-harm must have made the mother’s life unbearable at times. Not only was the mother primarily caring for four young children, she was, in the latter years of the marriage, providing significant physical care for the father. The personal abuse endured by the mother cannot be excused by the father’s ailments, serious though they were. Such abuse is likely to have had a significant impact on her self-confidence and self-worth and to have made her fearful of the father. I accept the mother’s evidence that living with the father was like “walking on egg shells”. Impact on mother and children The father concedes that at the family report interviews, W froze when he walked into the room and that she hid behind a couch. According to the father, W and X were physically shaking and crying, and ran out of the room. The family report writer describes the encounter as follows:112. After [the mother] left, I brought [the father] into the room and he sat down. At that time the children were all involved in play, and [W] had her back to him. [X] was playing a noisy game, with some toys.113. [The father] greeted the children, and [W] turned to see him. She froze for a few seconds and then began screaming loudly. [X] - who had not reacted initially in the same fashion - then also began screaming, which naturally alarmed the other children.114. [W] and [X] then ran from the room screaming. Their behaviour was on the hysterical end of the spectrum. The younger children were upset, however it happened quickly.115. [W] and [X] went immediately into the adjoining room with their mother, however [W] almost immediately returned and picked up [Z] and ran from the room with her in her arms. It seems that it is not unusual for W to scream when she is stressed. The reaction may in part relate to her ASD. However, the family report writer opined, and I accept, that W’s and X’s exposure to family violence would engender fear for the mother and themselves and their younger siblings. From the information provided by both parents to the family report writer, he formed the view that there were “frequent incidents over time, too many for the parents to tell me about” to which the children were exposed and as a consequence “the children had a prolonged insecurity and [W] of course was the one exposed more by her age”. The report writer describes W as a “traumatised child”.

Ratio Decidendi

Legal Principle Established

While this issue really does not arise given my earlier findings, the grandparents would not be appropriate supervisors. Firstly, there was no evidence from the paternal grandmother and no explanation for her absence. Secondly, while the paternal grandfather presented as a caring and well-meaning man, he would not be a suitable supervisor as he cannot see any need for supervision. As he candidly admitted during his evidence, he probably just became used to the outbursts of both the paternal grandmother and the father. IF THE RISK TO THE CHILDREN DOES NOT POSE AN UNACCEPTABLE RISK OF HARM, TO WHAT EXTENT DOES THE FATHER’S TIME WITH THE CHILDREN NEED TO BE SUPERVISED IN ANY EVENT, AND FOR WHAT DURATION? I have found that the father does pose an unacceptable risk of harm but, in any event, given the father’s admitted physical challenges, he would need to have others present during any time he spent with the children. HAS THE MOTHER HAD INAPPROPRIATE CONVERSATIONS WITH THE CHILDREN TO ALIENATE THEM FROM THE FATHER? One matter that caused me concern during the mother’s evidence was her statement that if W hears certain sounds she covers her ears and the mother says to her, “it’s okay it’s not daddy”. Such a statement seemed to me to be reinforcing a need for the child to be fearful of the father. However, having heard the opinion of W’s therapist, who said that W did associate these sounds with her father, and the family report writer’s view that it was reasonable to say what the mother said if the child had identified the source of her fear, I accept that such a response by the mother was reasonable in the circumstances. There is no evidence to support a finding that the mother has engaged in conversations with the children to alienate them from the father. The fact that the father persisted with this as an issue is yet another indication, in my view, of his failure to accept responsibility for the impact of his behaviour on the children. WHAT PARENTING ORDER IS PROPER? I have found that the father poses an unacceptable risk of harm to the children of exposure to family violence, in particular, by yelling, swearing, throwing objects and threatening self-harm. I have also found that there is an unacceptable risk to W and X of an adverse reaction to spending time with the father and to all children given the mother’s likely reaction to the father spending time with the children. I have also found that the risk cannot be ameliorated by supervision. If I am wrong in that conclusion, I would nevertheless refuse to make an order for the children to spend time with the father given the absence of any practical means by which such time could realistically occur, having regard to the extreme reaction of W and X when they last saw the father. The younger children are unlikely to have any memory of the father. The father proposes that he and the children undertake reunification counselling but there is no evidence from any therapist willing to undertake such counselling, or evidence about whether such counselling would be suitable in this case, over what period such counselling would have to be undertaken, the cost of such counselling, or how such counselling could be paid for given the financial position of each party.