KEITH & KEITH
[2015] FamCA 996
•12 November 2015
FAMILY COURT OF AUSTRALIA
| KEITH & KEITH | [2015] FamCA 996 |
| FAMILY LAW – CHILDREN – sole parental responsibility – where the father is restrained from communication with the children save for where it is ordered – where the children express a desire to spend time the mother is to facilitate – orders to be explained to the children by the Independent Children’s Lawyer – where the father perpetrated domestic violence upon the children – where the children have no form of relationship with the father – where supervised time at a Contact Centre is unlikely to establish a meaningful relationship of any kind – where the father is a risk to the children. |
| Family Law Act 1975 (Cth) s 4 s 4AB s 60B s 60CA s 60CC s 61DA s 62B s 65DA s 65DAA s 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Keith |
| RESPONDENT: | Ms Keith |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lehmann |
| FILE NUMBER: | CSC | 83 | of | 2014 |
| DATE DELIVERED: | 12 November 2015 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 28 and 29 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lawrence |
| SOLICITORS FOR THE APPLICANT: | Sandra Sinclair Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Bs |
| SOLICITORS FOR THE RESPONDENT: | Cuthbertson & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Trevino Lehmann Feathersone |
Orders
All previous parenting orders are forthwith discharged.
Ms Keith (“the mother”) is to have sole parental responsibility for the children B born … 1998; C born … 1998; D born … 1999; E born … 1999; F born … 1999; G born … 2001; H born … 2005 and J born … 2007 (individually “child” and collectively “the children”).
The children live with the mother.
Mr Keith (“the father”) is restrained from seeking to spend time or communicate with the children and save as is provided for in these orders, from spending time with the children.
If one or more of the children express a desire to do so, then the mother is to permit that child or those children to spend time with the father save that:
(a)any such time is to be spent at the I Contact Centre;
(b)the occasions, frequency and duration of the time is to be determined by the mother in the exercise of her sole parental responsibility, save that in so determining, she must give genuine consideration to:
(i) the wishes of any child or the children;
(ii) the maximum amount of supervised time available at the I Contact Centre;
(iii) the emotional welfare of any child or children who wish to spend time with the father;
and to enable such time:
(c)the mother is to advise the father in writing of the child’s wish or children’s wishes;
(d)the mother and father must do all things reasonably required of them to permit such time to be spent at the I Contact Centre; and
(e)the father is to be responsible for all costs incurred associated with the use of the I Contact Centre.
On any occasions he may spend time or communicate with any of the children, the father is restrained from discussing any allegations of domestic violence, or physical discipline by him or the mother on any of the children.
The mother and father each be restrained from denigrating the other in the presence or hearing of the children.
These orders are to be explained to the children by the Independent Children's Lawyer.
To facilitate communication between the mother and father under these orders, each of them is to keep the other advised of their current postal address.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
Pursuant to s 65DA and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keith & Keith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC83/2014
| Mr Keith |
Applicant
And
| Ms Keith |
Respondent
REASONS FOR JUDGMENT
introduction
By his Amended Application filed 10 August 2015, Mr Keith (“the father”) sought orders that all of the parties’ eight children (“the children”) should live with Ms Keith (“the mother”), who would also have sole parental responsibility for them. Whilst he did not seek any orders in relation to spending time or communicating with the five older children (“the older children”) he did seek orders that the three younger children (“the younger children”) spend time with him at the I Contact Centre for two hours each fortnight. By her Response filed by leave on or about 11 November 2014, the mother sought orders that all of the children live with her, that she have sole parental responsibility for them, and that the father be restrained from spending any time with the children or from communicating with them directly or indirectly. She justified those orders on the basis that the risk of harm which the father posed to the children outweighed such benefits as the younger children might derive from spending any time with the father.
The Independent Children's Lawyer supported the orders contended for by the mother.
The trial of the proceedings commenced before me on 28 October 2015. When the matter was due to resume before me on the following day, the parties sought, and I allowed, some time for them to engage in negotiations to see whether the matter might be capable of resolution. That did not prove possible however at the conclusion of those failed negotiations, and before the court commenced to sit for that day, the father thanked his legal practitioners for their assistance, and departed the court. Correctly in my view, his solicitors and counsel regarded his conduct as practically terminating their retainer, and sought leave to withdraw. That leave was not opposed and I granted it. The matter then proceeded in the absence of the father.
At the conclusion of the hearing I pronounced orders as set out at the commencement of these reasons, but reserved my reasons for making them to a later date. I did so because I accepted that it was in the children’s best interests that the orders be immediately pronounced so as they could be advised of the outcome of the litigation. That was because for the older children, this litigation presented a considerable stress for them at a time when they could least afford such a distraction, in that the two oldest children were sitting their year 12 exams, and the next three oldest children were sitting their year 11 exams. It will be appreciated from that fact that the two oldest children are twins, and the next three children are triplets. I will detail more about the children and their relationships later in these reasons.
These are the reasons why I pronounced the orders which I did on 29 October 2015.
BACKGROUND FACTS
The father
The father was born in 1962, and hence is presently 53 years of age. His father died when he was 14 years of age, and his mother died soon after. At about that time he ceased formal education and commenced work. At some point he qualified as a tradesman, but it appears as though his employment in that role was spasmodic.
On 22 April 1983, when he was 20 years of age, the father assaulted another person occasioning bodily harm. He was convicted and fined in relation to that offence. On 15 January 1997, when he was 34 years of age, the father had an altercation with another man which led to him being charged and pleading guilty to assault occasioning bodily harm whilst armed with a dangerous instrument. In evidence before me, the father explained that the circumstances of that were that he was driving in the I Town area when he noticed a man who owed him money driving behind him. The father pulled over and the man pulled in behind him. The father says that he then armed himself with a shovel from the rear of the vehicle he was driving, and during the course of the altercation which ensued, swung the shovel, but it hit the door of a motor vehicle. On the father’s version of events, it is difficult to see how an assault occasioning bodily harm was thereby admitted which gives me some doubt as to his version of events.
For most of his life the father has lived in I Town, and was doing so when he met the mother and commenced a relationship with her and married her in 1997, when he was 35 years of age. The parties had not co-habited prior to marriage.
The mother
The mother was born in 1970 and hence is presently 44 years of age. At a time which the evidence does not permit me to determine, she commenced a relationship with one Mr K, which relationship bore two children, Mr L, born in 1990 and Ms M, born in 1994. That relationship later terminated, and the separation was acrimonious. Both Mr L and Ms M remained living with the mother and it appears they did not spend any time with their father for some years.
The mother was 26 years of age when the parties married in 1997, and Mr L and Ms M were aged 5 and 3 years respectively.
The relationship
The mother asserts that from about November 1997 and on occasions thereafter, the father was violent towards her. The father appears to deny each and every instance of alleged violence by him. However as shall be seen, ultimately the father does concede other family violence directed towards the two older children. Further, it appears from what most, if not all, of the children told Mr N, the Family Report writer, there has been a long history of family violence perpetrated by the father on the children, both comprising physical violence and controlling behaviours. That makes it unnecessary for me to determine the veracity of the mother’s complaints, and the father’s denials, of family violence between themselves, although that said, I should make it plain that I generally prefer the mother’s version.
The two oldest children, B and C, were born in 1998, and hence are both presently 17 years of age. As will be apparent from their names, they are non-identical twins. Then in 1999, the parties had three further children, D, E and F. E and F are identical twins, whereas D was a fraternal triplet.
By now the parties were living in a household where there were seven children, five of whom were very young. Needless to say, this imposed considerable strains upon the family.
It appears as though the father’s relationship with Mr L deteriorated after the birth of his own children. In about 2000 or 2001, there was an incident (denied by the father) in which the father struck Mr L in the face causing a black eye. The incident was reported to the Department of Child Safety (“DoCS”) by a neighbour, but the mother lied to DoCS and advised them that the injury had occurred as a result of a scuffle between the father and herself. She did that because she was frightened that the children would be taken from her care if DoCS believed that the father had caused the injury to Mr L.
The parties’ sixth child, G, was born in 2001. He is therefore currently 14 years of age.
Throughout all of the relationship, the father drank, on occasions heavily. In about 2002, the mother attempted to leave the father. She waited for him to pass out one evening from drinking, and then packed all of the children into her car and left him. She stayed with a friend. The father telephoned her and said that he wanted to see the children. She met him but without the children. The mother says that the father said to her during that conversation “the next time the police see you, you will be floating down the [O River].” Her evidence is that she was terrified and in consequence moved back in with the father shortly thereafter. The father denies that conversation, but I accept the mother’s evidence in that respect.
When G was young, at about Christmas 2001, there was an occasion when the family went to a hotel on the outskirts of the I Town region. The mother says that the father, in view of the children and other patrons of the hotel, slapped her hand to remove a cigarette from it, and abused the mother saying that she was a “bad mother” smoking in front of the children. The father denies this episode but I am satisfied that it occurred.
The mother says that in 2002, the father stopped drinking for an eight month period, but became obsessive and “forced the children to wear identical singlets, line up behind each other and run around the block with the last one passing to the front.” The mother says that this caused the children to be humiliated in front of other children in the neighbourhood. The father denies that event. Ultimately the mother was not cross-examined on it, because the father had abandoned involvement in the proceedings and the Independent Children's Lawyer did not wish to cross-examine the mother. I must say I have some doubt about it, given the twins were then aged at most 4 years old, and the triplets 2 or 3 years old. In any event the matter is of little consequence.
The parties’ seventh child, H, was born in 2005, and hence is presently 10 years of age. The parties’ eighth and final child, J, was born in 2007, and hence is presently 8 years old.
The mother gave evidence of a number of occasions of excessive discipline by the father towards one or more children. She says that the father regularly smacked the children with his hands across their bottom, back, shoulder and side of their heads. She says that the father also smacked them with a thong, a whip and a piece of hose.
The father appears to accept that he did use his hands in physical discipline of the children, and says that on one occasion he did strike one of the children with a thong. The mother’s evidence also is that when D was approximately two years of age the father smacked him so hard that he fell to the ground, and she gave other instances of D being disciplined by the father in 2010, for instance when the father smashed his hand into the centre of a plate of food that D was toying with, causing the food to fly off the plate and embarrassing D who began to cry. The father appears to accept that there was some sort of incident on the occasion, but denies that he acted as the mother so alleges. He said that at the time D was going through a “phase.”
An unusual feature of the father’s relationship with the children was that although he would generally refer to them not by their names, but by nicknames, he insisted upon the children referring to him as “father” and would sternly rebuke them if they called him anything more familiar. In cross-examination the father accepted that this was indeed the case (although he sought to downplay the nickname issue) but said that he required to be called “father” because his father had required it of him, and his grandfather had required it of his father. He seemed to think that the appellation of “father” was a more respectful title.
Towards the end of the relationship, highly concerning behaviour of the father began to be displayed. On the day before C’s twelfth birthday, there was an incident when the father said something to C about her weight. C began to argue back. The mother intervened, but in the context of the ensuing conversation, C said something to the father to the effect of “don’t worry you will be dead before your next birthday.”
Five days later there was an incident which in the cross-examination of the father was carefully explored. It is uncontroversial that on that day the father was preparing some chicken stock in the kitchen, and C was performing washing up duties. She was proceeding slowly. She was using both sinks. The father needed to wash his hands.
In an affidavit sworn by the father on 24 May 2010 in subsequent domestic violence proceedings, he explained the ensuing incident as follows:
I could not wash my hands … as both sinks were full of washing up. Because [C] never wants to do her share, she was deliberately going slow, to try to annoy me. Her mother and her often play that game with me. Once the frames were in the pan, I washed my hands to start preparing vegetables. Because I had let the sink out to wash my hands, C was going even slower. To get her attention I gently poked her with a tip of small paring knife I was using. (I didn’t, and would never hold a knife to my daughter’s throat, as my wife alleges in the police application – twice). C was then hysterical about “being stabbed” and I corrected her and continued preparing vegetables. She continued her insolence and I put my finger to her nose and asked her to have some manners. My wife was in the kitchen, smirking because she so enjoys the games they play with me…
In cross-examination the father conceded that he did indeed poke C in the thigh or buttock with the tip of the knife, and further, that when he was putting his finger to her nose, (he motioned in a pointing and aggressive fashion) that paring knife was still in his hand so that the blade was parallel to the knuckles of his three curled fingers.
In cross-examination by counsel for the Independent Children's Lawyer, the father said that he prodded C with the knife and pointed his finger at whilst holding the knife “to get her mind back on what [she] was doing.” A little later he said that he did so because she “wasn’t paying attention to what I was saying to her.” He denied that his conduct caused C to become very frightened, and described the episode as “a storm in a teacup”. He said it was “a minor incident now all blown out of proportion.”
Then a little over a week later on 14 February 2010 there was an incident between the father and B. The genesis of the incident was relatively benign: B, then aged 12, had cooked some chicken legs on the barbeque, and one of the other children had cut into the meat, when the father noticed that it was still raw on the inside. A conversation ensued between the father and the children generally, in which the father says that he told the children not to eat the chicken and of the potential risks of eating such meat. On the father’s version B then said to him words to the effect that “all you do is go to the gym and the pub” which the father says made him angry. He said what irritated him particularly was that he realised that B was simply parroting his mother’s words. He says that he then struck B around the head with an open hand on a number of occasions. His evidence was that it was more than once but less than six. In cross-examination he said that “on that occasion I stopped because I realised I was close to going too far.” He was not sure if it happened in the presence of the other children. However he did recollect that someone during the course of it said “no father no father,” but couldn’t recall whether it was C or B.
The mother’s evidence is that the assault on B was by the father’s fist rather than open hand, and was to the back of his head. She believes that B may have been knocked unconscious for a short period of time.
B was asked something in relation to the incident in the course of the Family Report interviews with Mr N. At [79] of the Family Report there appears:
[B] continued “the bad incident the end, happened when I was in grade 7, and it was on Valentines Day (pause) which was six years ago on the Saturday just gone I think” and added “so it was a long time ago now; and I have really worked on getting that all behind me.”
The mother’s evidence was that this episode was the breaking point for her, and she told the father that he would need to move out. The father refused and became aggressive towards her. The mother said that she was going to call the police. The father said that he wasn’t going to sit around and wait for the police, but was going to go to the gym.
At paragraph 66 of her affidavit filed 11June 2015 the mother said:
The father then walked outside and spoke to B. He told B to apologise to him for being disrespectful and for forcing him to hit him. I said to B “you do not have to apologise. You did not do anything wrong.”
True to his word, the father did indeed go to the gym and later returned to the house. He was then arrested and charged with torture of the child.
As it transpired, that was the last occasion that the father has spent any time with any of the children. For some years thereafter, he was precluded from having any contact with the children either in consequence of his bail conditions, or the terms of domestic violence protection orders.
On 17 May 2013 the father pleaded guilty in the I Town Magistrates Court to two counts of common assault relating to firstly the episode in which he assaulted C with the paring knife, and secondly the occasion when he struck B. The sentencing comments the Magistrate were tendered into evidence before me. It does not appear as though the Magistrate thought that the issue was serious. His Honour said “much has been said by a lot of people and written about the issues of discipline of children. It’s a very delicate balance to strike what is appropriate in all the circumstances. People have different views about that.” The court ordered that there be no conviction recorded and placed the father on six months probation.
The father says that he only pleaded guilty to those offences (together with a breach of restraint order) because Legal Aid was refused for anything other than a plea of guilty. I wholly reject that evidence. On any view the father assaulted both C and B, and that is plain from his evidence under cross-examination before me. I am amply satisfied that not only has the father been convicted for both assaults, but that they were in fact assaults contrary to the criminal code.
Post-separation
Since separation the father has had serious mental health issues, which have seen him twice involuntarily hospitalised for lengthy periods of time, and receive ECT treatment apparently on six occasions. He has also, in addition to his continuing mental health issues, some physical health issues. Dr P, a psychiatrist who examined him on 21 April 2015, described him as “obviously living a blighted and restricted life.” He was of the view that he is “quite significantly psychiatrically impaired with chronic depression.” He said the father “looks physically unwell.” He concluded that he was “physically unwell and psychiatrically very unwell.”
The father has not re-partnered, says that he has no friends and leads a very restricted and sedentary life. In evidence before me he did indeed appear markedly depressed.
Unlike the father, it appears as though the mother has to a degree flourished post-separation. However that took some time. At paragraph 78 of her affidavit she said:
When I finally separated from the father, I did not know what to do. The children and I had been told for so long what to wear, what to eat, when we could sleep, what exercise to do, how long the children should study, when to talk and when to pray, neither the children nor I, had any idea who we were.
She said that “slowly the children and I began to develop a new routine and life became calmer.”
The mother has not formed a new relationship in which she cohabits with anyone else, but she has had romantic relationships post-separation. She has not been in employment, but receives Centrelink payments, although she has a small business from which she derives a slight income. The father has never paid any child support. The mother’s life is essentially devoted to raising the children.
With one exception, the children have apparently travelled reasonably well post-separation. All of them are musically inclined. Some of them play several instruments or sing. For instance E, G and F each year sing in a national choir in Sydney. G was chosen to perform with a children’s orchestra. Various combinations of the children regularly busk around I Town on weekends and obtain a good income from doing so.
There is another passion which unites the children and that is Rugby League. All children, including the girls, play that sport. The older children also assist in coaching younger children.
The exception to this otherwise generally happy picture is C. From about 2012 she commenced to self-harm by cutting herself. She had been doing so for some time before it was first noticed by her mother. When the mother realised C was doing that, she asked where else she had cut herself. The mother says “I was speechless when she lifted her shirt and saw that she had cut names of abuse on her legs and stomach.” The other children became very concerned for her. On two occasions it appears as though C has attempted to take her own life. She has been very depressed. She has used drugs. At some point she moved out of the family home and went to live with her brother Mr L. She is presently living with him and completing year 12 at a State high school, which is of some note given that the other children all attend religious schools. The mother says at paragraph 106 of her affidavit “[C] asked to move out of the house after she found out that the father had commenced court proceedings and was attempting to see her again. [C] believes there are too many bad memories at the house and said that she wanted a fresh start.”
At paragraph 85 the mother says “[C] has told me that she cut herself because she felt like she was useless. [C] blames the father for her low self-esteem as he constantly degraded and humiliated her most of her childhood.” Fortunately it appears as though it has been now some 12 months since C last self-harmed.
THE ISSUES
The following are the issues, the determination of which are likely to substantially affect the outcome of these proceedings:
1.What is the nature of the relationship between the younger children and the father;
2.Would the younger children benefit from a meaningful relationship with the father;
3.What risk does the father pose to the younger children;
4.What would be the effect on the mother and older children if the younger children were spending time with the father.
I will discuss those issues once I have addressed the relevant statutory provisions and legal principles, but in advance of a traverse of the s 60CC considerations, and determination of the appropriate parenting arrangements for these children.
LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that 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 either 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 family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, 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, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(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?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
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.
Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
NATURE OF RELATIONSHIP BETWEEN YOUNGER CHILDREN AND FATHER
The younger children have no relationship with their father. They have not seen him now since 14 February 2010. At that time, G was 8 years of age, H 4, and J 2 years.
As regards the two younger girls, in fact the father approached the mother and them when they were shopping at a supermarket. The father said to the mother and children “hello little girls,” but neither child recognised the father, and after they had left the supermarket, inquired of the mother who he was.
H told the Family Report writer that “.. even though I was really little when [the father] left I didn’t really know him; I do remember that he was mean.” She said “I remember him hitting [B] just before he left; because we were all sitting around the table when it happened. I was a bit scared. So I don’t really want to see him.”
J said in relation to the father “I don’t really want to see him, because I only sort of remember him. And I think he was pretty mean. He used to hurt my brothers and sisters. I didn’t see it, but [C] told me about what happened.”
G is, of course, somewhat older than his two sisters. He told the Family Report writer in relation to the father “I don’t want to see him; but maybe it would be OK when I am older. I don’t think I am ready right now; and in a way I would be worried about seeing him.” Later he said “[the father] used to hit me up the side of my head a fair bit; and he would often hit me for lots of little things. He was a mean sort of person and not nice. Things would pretty much happen every day; but especially to the older kids. The older kids got it worse; and he would pick on them a lot.”
He did however have some positive memories of his father. He said “I remember he took me once to a ukulele class and taught me some stuff.” But later said “at the moment, things are a bit too hard with seeing my father. I remember he wouldn’t let us call him dad; we had to call him father. I was scared of him; I guess I still am a bit. I’m mostly a happy sort of person and I only get sad if I think about not having a good father figure really.”
I am satisfied that none of the younger children presently have any form of relationship with the father, and to the extent that they have any recollection of him, it is generally a negative one associated with his violence towards the children generally.
BENEFIT OF YOUNGER CHILDREN HAVING RELATIONSHIP WITH FATHER
Ordinarily one might conjecture that children would obtain a benefit from some knowledge of their biological parents to assist them in the formulation of their adolescent and adult identity. However this father is not the notional generic father.
Significantly, the father has either never accepted responsibility for his ongoing abuse of the children during the relationship, or its impacts upon them, or has sought to significantly downplay his behaviour and its effects. He may genuinely be described as insightless in that respect.
Particularly when giving his evidence under cross-examination, it appeared as though he did not have any real remorse for the circumstances which led to the separation, and his not having spent any time with the children for five years, and appeared to make no acknowledgment as to the likely impact on the children of his abuse. When asked why the children told Mr N such negative things about the father, he constantly said that he could not explain why other people say things. In the context of that cross-examination, he said two relatively alarming things. The first was that he thought that C’s problems might stem from the fact that she was blaming herself for the breakdown of the relationship. However C has never said anything to anyone which would suggest that, at least on the evidence before me. Moreover she has, at least in the material before me, only ever identified her abuse by the father as being the source of her depression and problems. However the father appears to wholly discount her attribution of cause, for one which would substantially absolve him from any responsibility for her problems.
The second alarming matter was that the father made it quite plain that part of the reason why he wanted to spend face to face time with the children was so that he could explain “his side” of the story to them. Indeed it became plain that this was one of the things which he intended to discuss with the children at the first opportunity that it arose during any time that he spent with them at the Contact Centre. In reality what he wanted to do was to try and minimise any adverse perception they had of him arising from those events, and perhaps challenge their recollections.
Moreover it does not appear as though the father has taken any steps to address the underlying issues which led to his abuse of the children. Central to those is an underlying sense of entitlement in relation to the children. Mr N was particularly concerned about the father in this respect, and pointed to the fact that the father commenced his interview with him highly critical of the legal process saying “but now I have to fight to rent my kids for a time.” Mr N in his oral evidence said that the use of the word “rent” suggested ownership, at some level, of the children.
As to whether the father might be able to change those underlying problems, he said that there was not much hope of that as he showed no sign of insight. Particularly Mr N said that unless the father accepted responsibility for his past actions, they would continue to be problematic. He said the father needed psychiatric assistance, but that would not happen by accident. He said that he had seen people not dissimilar from the father assisted by professional help, although it was always very difficult to achieve. He said the first thing that needed to happen would be for the father to take responsibility for his past conduct and arrive at a point where he could move forward from it. But he said that not only does the father apparently not want to engage in it, but there was no guarantee that it would succeed.
Whilst he conceded that the younger children would not be at physical risk of harm from the father during any supervised time, he said that over time the father’s personality would again emerge in any engagement with those children.
Put simply, I am satisfied that the father remains an angry, controlling man who regards his children as having to respect him and needing to be subject to a degree of control by him. He still has no insight in relation to the effects of his abuse on the children during the relationship, and accepts, it seems, little if any responsibility for either that abuse, or the consequences which it wrought in varying degrees in the children.
Mr N was asked in cross-examination whether there was any benefit to recognition contact between the father and the children. He said that that was not a clinical term that he was familiar with, and said that the ability to recognise a parent could be equally achieved by photographs or the like and one did not need face to face time to have recognition of a parent. He said that there would not need to be any limits on the father being able to send photos or letters to the children, so long as the mother was able to gatekeep that. However, significantly he said that he was unaware that the father had ever attempted communication since 2013 (when any prohibition on him doing so ceased). More concerningly, when the father was asked in evidence whether he wished to have any communication regime with the children, he expressly disavowed it. He only wanted face to face time.
Unfortunately, I am quite satisfied that there would be little, if any, benefit to the younger children of having a relationship with the father. Initially the younger two would not even recognise him, although G might. They have no relationship with him, and supervised time at a Contact Centre is unlikely to establish a meaningful relationship of any kind in any event.
RISKS POSED BY FATHER TO YOUNGER CHILDREN
The father only sought supervised time with the children of very limited duration every fortnight. Plainly in those circumstances the father could not be said to pose a risk of physical harm to the children, although I am satisfied that he would, if unsupervised time were to be permitted, likely revert to physical discipline. He certainly showed no sign of a disinclination towards such behaviour before me; to the contrary, he appeared to think that his behaviour in striking B six times to the head had not gone “too far.”
However the risk which the father does pose to the younger children arises from his lack of acknowledgment of his past behaviour and the gravity of it, and the consequences that it has wrought upon the older children, coupled with the fact that his expressed desire for spending face to face time with the children is to be able to explain to them his side of events. Indeed the father was asked by me as to how he thought the initial conversation with the children would go. He plainly had not really contemplated it. However when he was pressed to do so, he again identified that one of the priorities in communication with the children would be to tell them his side of events. When challenged with the prospect that that may not be conducive to their emotional health, his answer was to the effect that, “it was not just the children’s emotional health that was in issue.” That raises the real prospect that the purpose of the father spending time with the younger children is as much about his emotional health as theirs. This was adverted to by Dr P at paragraph 72 of his report when he said “Indeed, I should make the point that contact with his children might create considerable improvement in [the father’s] psychiatric state – although I am acutely aware of the fact that it is not the aim of the exercise here – the aim of the exercise is the welfare of the children.”
However that raises the concern that the father’s true motivation for engagement with the children would be to effect some improvement in his own psychological functioning, rather than conferring the usual benefits of a fatherly relationship to the children.
Ultimately however I am not persuaded that the father poses any form of unacceptable risk to the children of an emotional kind.
EFFECT ON MOTHER AND OLDER CHILDREN
Mr N said in oral evidence that the impact on the mother of the father even having supervised time with the younger children, would be distressing for her, although he could not predict the degree of that distress. He said the mother would be very stoic, but nonetheless said she would likely need some counselling to help her cope. He also though that the prospect of the younger children spending time with the father would be distressing for the older children. That was particularly borne out in relation to C. She told Mr N “I don’t want my father to ever have any contact with any of the kids; and especially with my two younger sisters.” She went on to say “he will do what he did to me; and that can’t happen. He criticised me, over and over to the point where I thought I wasn’t worth anything. I have had two serious suicide attempts. Whilst I have been on a two and a half year self-harming journey where I cut myself, and also burn myself with cigarettes. I got into drugs for a while because it numbed me.”
Later in the interview she said “As much as I hate him, if it turns out that the girls have to meet with him, then I will go to protect them. They did not know him; and they do not know what he is capable of. And I will never let them go through what I have been through.” In the light of that evidence – which I readily accept – I enquired of the father how he thought that the first time that he spent any time with the younger children – no doubt accompanied by C – would go. He plainly had not thought that through. I enquired of him whether in those circumstances he thought that C should be prevented from attending. He was ambivalent.
I am satisfied that if the younger children were required to spend even supervised time with the father, it would have a substantially negative effect upon the mother and the older children. The concern that I have is that the older children would likely resent any adverse effect on the mother, and the mother would likely resent any adverse effect on the older children. Their respective resentment at the father spending time with the younger children would therefore likely feed off each other.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already addressed many of the s 60CC considerations in discussing the issues. However I make the following additional points by reference to those considerations.
The father has made no attempt to communicate with the children since he became entitled to do so upon his conviction in 2013.
The father has never contributed to the maintenance of the children since separation.
The father has an appalling attitude to the children, in that he apparently regards them as owing respect to him and believes that he has rights to control them.
Plainly the prospect of improvement in the father’s mental health is another fact or circumstance that is relevant in this case, and I do indeed accept that the father’s mental functioning may improve, even substantially, if he were able to re-establish a relationship of some kind – but no doubt on his terms – with the younger children. However benefits to the father weigh little in assessing the children’s best interests.
PRENTAL RESPONSIBILITY
It was conceded that parental responsibility should lie with the mother. I accept that is the only outcome that could possibly be in the best interests of the children.
LIVING ARRANGEMENTS
Again it was agreed that the children should live with the mother. That is plainly the only outcome that would be in their best interests.
TIME AND COMMUNICATION WITH FATHER
The father expressly did not seek, and when given the opportunity, disavowed any desire for, any opportunity to communicate with the children other than face to face. The only issue then is whether the younger children should be required to spend some supervised time with the father.
The following considerations weigh against that:
·They presently have no relationship with the father, and in the case of the two youngest girls, little if any actual recollection of him. In the case of G, he only has a negative recollection of his father;
·There would be little, if any, benefit to the younger children in having a relationship with the father;
·The father does pose some emotional risk to the younger children, but in a supervised setting, that would be minimal;
·There would be an adverse effect on the mother and older children if the younger children were to spend time with the father;
·The father’s motivation in seeking to spend time with the children appears to be largely related to his own therapeutic needs, rather then conferring any benefit to the children.
The following points weigh in father being able to spend supervised time with the younger children:
·It would likely improve his own psychological functioning;
·It may assist the younger children in developing their adolescent identity by having some concept of their father.
Weighing those matters in the balance I am strongly of the view that the younger children should not be required to spend time with the father.
That then raises the question of whether the children should be given the option, should they so wish, of spending time with the father supervised at the I Contact Centre. This was a matter which I raised with counsel for the mother after the father had abandoned involvement in the proceedings. Ultimately the mother sought orders as were made, which do give all children the opportunity, should they so wish, to spend time with the father at the I Contact Centre.
Mr N, in principle, supported such an order. He said that giving the children a choice to see their father in a safe environment can be a positive thing. He said that can remove them from the bind that they are otherwise in, in that they can re-enter the relationship without any burden of obligation on their shoulders.
In this regard I am particularly mindful that some of the children have expressed a degree of curiosity in relation to their father to the Family Report writer. B acknowledged that in the future he may wish to see his father “but definitely on my terms”. E said that he had in fact seen his father around town a couple of times, and had “actually checked a couple of times on Facebook to see if he was there.” G said “I don’t think I am ready right now” to see the father, but “may it would be ok when I am older.”
I am satisfied that the opportunity should be conferred to all children to experience their father in a safe environment should they wish. Moreover, I am satisfied that in the event the children initiate communication with the father, he should not be precluded from responding or engaging in that communication. However he should not be permitted to initiate it.
I am therefore satisfied that there should be orders which permit the children to express a wish to see their father at the Contact Centre, and for that wish to be communicated by the mother to the father. Ultimately however the mother must be given the ability to determine whether or not the children spend time with the father, as plainly they should not be permitted to do so if there are reasonable grounds to conclude that it may emotionally damage them. That would no doubt depend upon the individual child and their individual circumstances at the time when they expressed any wish to spend time with the father.
CONCLUSION
For those reasons I made the orders which I did on 29 October 2015.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 November 2015.
Associate:
Date: 12 November 2015
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Injunction
-
Procedural Fairness
0
7
2