Kelleher and Crothers

[2013] FamCA 1034

FAMILY COURT OF AUSTRALIA

KELLEHER & CROTHERS [2013] FamCA 1034

FAMILY LAW – CHILDREN – With whom children live – With whom children spend time – Where the Father has not availed himself of the opportunity to have time or communication with the children in a contact centre – Where the Father has used excessive physical discipline on the children – Where the Father has refused to undertake an anger management program – Whether the children are at an unacceptable risk of harm.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Kelleher

RESPONDENT: Mr Crothers

INDEPENDENT CHILDREN’S LAWYER: Susi O'Reilly

FILE NUMBER: BRC 10955 of 2008

DATE DELIVERED: 24 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23, 24 and 26 April 2013

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MTM Lawyers

Orders

It is ordered that

1. All previous parenting Orders be discharged.

2. The children H born … 1999, L born … 2001 and N born … 2004 live with the Mother.

3. The Mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”) (as amended)) in respect of the children H born … 1999, L born … 2001 and N born … 2004.

4. The Mother shall inform the Father by text message as soon as practicable of any relevant significant event affecting any of the children, including medical issues.

5. The children shall be at liberty to telephone the Father at all reasonable times and also text message him to ask him to telephone them and that all such calls be made to and from their respective mobile telephones provided specifically for this purpose.

6. The Father shall be at liberty to telephone the children:

   (a)Every Monday between 7.00 pm and 8.00 pm; and

   (b)Every Thursday between 5.00 pm and 6.00 pm.

7. The parties shall attend upon the G Contact Centre and do all things necessary to fully complete the G Contact Centre intake process.

8. The Father shall notify the Mother in writing upon his full completion of the intake process at the G Contact Centre.

9. Subject to the Father completing the intake process at the G Contact Centre and pursuant to s 65L of the Act, a family consultant (not a family consultant who has prepared a report or assessment) is appointed to supervise and/or assist with compliance with these Orders, including:

   (a)Assisting and supervising an initial visit between the Father and the children at the Child Dispute Services Section of the Commonwealth Law Courts at Brisbane;

   (b)Providing the parties and children such assistance as is reasonably requested by such party in relation to the initial visit between the Father and the children, as far as practicable;

   (c)Assisting and explaining the further operation of these Orders as they relate to the Father spending supervised time with the children at the G Contact Centre;

   (d)Providing the parties and children such assistance as is reasonably requested by such party in relation to compliance with, and the carrying out of, these Orders.

10. The Father shall spend time with the children, L and N as follows:

    (a)An initial visit supervised by the s 65L consultant referred to in Order (9) above;

    (b)After the initial visit referred to above and thereafter, on alternate weekends, supervised at the G Contact Centre for up to two (2) hours on each occasion.

11. The Mother shall facilitate any time between the Father and the child H consistent with Order (10) above, upon the request of H to spend such time with her Father.

12. If H requests to be present at the initial supervised visit (by the s 65L consultant) the Mother shall ensure that H’s wishes are respected.

13. The parties shall attend a post separation parenting program as directed by the Independent Children’s Lawyer.

14. Pursuant to Order (13), upon completion of the post separation parenting program the parties shall furnish a certificate of completion to the Independent Children’s Lawyer.

15. The Father shall attend and complete an Anger Management program as directed by the Independent Children’s Lawyer.

16. Pursuant to Order (15), upon completion of the Anger Management program the Father shall furnish a certificate of completion to the Independent Children’s Lawyer.

17. The parties shall attend upon a family consultant (not the s 65L family consultant) for the purposes of an Updated Family Report if directed to do so by the Independent Children’s Lawyer.

18. Neither parent shall question the children about the other parent nor denigrate the other parent to, or in the presence of, the children.

19. Both parties are restrained from using any physical discipline whatsoever upon any of the children.

20. Provided the Father complies in every respect with the provisions in these Orders contained in each of paragraphs (7), (8), (10), (13), (14), (15), (16) and (17) each party have liberty to apply as to the condition of the Father’s time being supervised being reviewed.

21. Pursuant to s 65DA(2) and s 62B of the Act, 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 Kelleher & Crothers 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 BRISBANE

FILE NUMBER: BRC 10955 of 2008

Ms Kelleher

Applicant

And

Mr Crothers

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children H born in 1999, now aged 14 years, L born in 2001, now aged 12 years, and N born in 2004 now, aged nine years.

2. The Applicant mother, Ms Kelleher (“the Mother”), the Respondent father, Mr Crothers (“the Father”), and Susi O’Reilly, the lawyer appointed pursuant to s 68L of the Act to independently represent the children’s interests in the proceedings (“the ICL”), each have competing proposals as to the parenting orders now to be made in the best interests of the children.

3. Proceedings between the Mother and Father have been before this Court and the Federal Circuit Court (as the Federal Magistrates Court is now known) in various forms since late 2008.

4. On 2 December 2008 the Mother commenced property proceedings by way of her Initiating Application filed in the Federal Magistrates Court. Those proceedings were settled by consent on 11 May 2009.

5. On 20 June 2011 the Mother commenced parenting proceedings by way of her Initiating Application filed in the Federal Magistrates Court which application was subsequently amended and re-filed on 31 July 2012.

6. On 23 June 2011 Federal Magistrate Howard (as his Honour then was) transferred the proceedings to this Court. On that date Orders were made which provided for the children to live with the Mother and have supervised time with the Father at a contact centre. Since the orders of 23 June 2011 were made the Father has not availed himself of the provision for supervised contact with the children at the contact centre.

7. On 19 August 2011 the Father filed a Response to Initiating Application which response was subsequently amended and re-filed on 10 August 2012. 

8. The trial of these proceedings was held on 23, 24 and 26 April 2013. At the trial it became apparent that the main issue was the Father’s disciplining of the children, in particular, an incident which occurred in May 2011 which resulted in the Mother instigating these proceedings on 20 June 2011.

9. In summary, the Mother seeks orders that she have sole parental responsibility for the children and that the children live with her and have contact with the Father once appropriate behavioural intervention has occurred. In contrast, the Father seeks orders that the parties have equal shared parental responsibility for the children and that the children live with the Mother and spend time with the Father on each alternate weekend and for the entirety of each school holiday period.

10. At the start of the second day of trial, in an attempt to narrow issues and shorten the proceedings, I asked the Father whether he would be willing to comply with orders that he attend an anger management course and a post separation parenting course. On the basis of “principle”, the Father responded that he would not comply with such orders. The reason for this being identified by the Father to the effect that he was of the view that the children’s fears of him would be “overcome by spending time with their Father” and that there was no need for such courses.

Relevant Background

1. The Father is 38 years of age having been born in 1975. The Mother is 36 years of age having been born in 1977. At the time of the trial, the Mother was a school teacher and the Father was working in emergency services on a very casual basis given the very few hours he was actually working in that capacity. The parties married on in 1998 and separated in July 2007 amid allegations by the Mother of domestic violence. The parties reconciled for a period of six months before separating on a final basis in September 2008. Final separation was instigated by the Mother who left with the parties’ three children she alleges as a result of further domestic violence and abuse. The parties divorced on 16 January 2010.

2. As already noted, there are three children of the relationship: H aged 14 years; L aged 12 years; and N aged nine years. The children have lived in the primary care of the Mother since separation.

3. The Father has re-partnered with Ms S with whom he has been engaged since September 2011. They live together at Ms S’s property in Town U, Queensland with Ms S’s three children, aged 11, nine and six.

4. On 19 December 2008, final orders were made by consent in respect of the care arrangements for the children. Those orders provided that the parties were to have equal shared parental responsibility for the major long term issues relating to the children as well as each being responsible to make decisions about the day to day care of the children while the children were in their care. The children were to live with the Mother and spend time with the Father on alternate weekends from after school Friday until Sunday evening, overnight each Tuesday, and for half of all school holidays.

5. Although dispute resolution processes were incorporated into the consent orders, the parties were unsuccessful in using these as a means of resolving disagreements and subsequently returned to court to resolve their issues. 

6. The Mother commenced contravention proceedings in May 2009 in respect of the Father having failed to deliver and collect the children pursuant to the orders; the Father having entered the Mother’s property without consent; the Father denigrating the Mother in front of the children; and the Father not facilitating the child H’s attendance at a school musical rehearsal.[1]

   [1] Family Report of Ms B dated 8 May 2012 p 1.

7. In late 2009, the Mother initiated proceedings as a result of a dispute over the child N’s schooling. Consequently, Federal Magistrate Slack issued an injunction restraining the parents from removing any of the children from X School where they were enrolled.

8. On 26 May 2011 a Child Protection Notification was recorded by the Department of Communities (Child Safety) (“the Department”) in relation to an event that took place on 24 May 2011 during which the Father, as punishment for H stealing money from his wallet (and L accepting some of that money), “belted” both girls across the legs and smashed H’s mobile telephone. The incident (for convenience referred to as “the May incident”) is described in detail below; the Father’s actions in “belting” the girls are not contested by him. Following the incident, the Father spent time with H during which, on a trip to Mount Cootha, he attempted to reconcile with her.

9. On 20 June 2011, the Mother filed a Notice of Child Abuse or Family Violence as a result of the May incident and on 27 July 2011, a Protection Order was issued in respect of the Mother and children.[2] This order was due to expire on 26 July 2013.

   [2] See exhibit 1 – Protection order dated 27 July 2011.

10. As earlier noted, on 23 June 2011 Federal Magistrate Howard ordered, inter alia, that the proceedings be transferred to this Court; that the previous parenting orders of 19 December 2008 be suspended; and that the children live with the Mother and spend supervised time with the Father once each weekend for a period of one hour at a contact centre.

11. At the time of the trial, the Father had spent no time with the children since June 2011 except for one occasion when he attended a school swimming carnival in which L participated and another occasion when he turned up unannounced at the Mother’s home. As set out at page 3 of the family report prepared by Ms B dated 8 May 2012, the Father maintained weekly telephone contact with the children until December 2011 when the Mother stopped allowing the calls. At trial, the Mother gave evidence that she decided to cease telephone contact between the children and the Father because, in addition to the Father often trying to find out where the children were living and denigrating the Mother during the calls, N and L had expressed wishes to not speak with the Father.

12. Essentially, however, the Father’s lack of contact with the children was owing to his unwillingness to see the children at a contact centre. Due to the Mother’s concerns for the physical and emotional safety of the children following the incident of May 2011, she insisted that the Father be re-introduced to the children in a contact centre. She also insisted that the Father undertake a parenting course or an anger management course prior to the commencement of contact however the Father refused to do either of these things in order to see the children. This was confirmed by him during the trial, where he cited that he would not undertake the courses on the basis of “principle”.

13. As explained by the Father during cross-examination by the ICL at trial, the Father believes that a contact centre is “not a normal place for normal people to spend normal time with their children”. Having spoken with an employee of the suggested contact centre by telephone, the Father gave evidence to the effect that he had the impression that only “sex offenders, drug addicts and unsavoury people” see their children at contact centres. For that reason, the Father gave evidence that, “having weighed up the pros and cons” he made the decision that he would not see his children in that context, even if that meant not seeing them at all.

14. When asked by counsel for the ICL whether he had considered the children’s views in wanting to see him, the Father was again more concerned about what his children would think of him when he had to see them in a contact centre, emphasising that it was important to him to display to his children “integrity and character”. When it was put to him by counsel for the ICL that the child, L, is of the view that the Father is being “baby-ish” about the whole situation, the Father expressed his confidence that everything would be resolved once he and the children “speak in a natural environment”.

15. In accordance with the “principles” which the Father cites as being the reason for having not seen his children, he accepted that he has not apologised to them for hitting them. Though he has had the opportunity to do so by way of letter, text message or telephone call, the Father stated in his oral evidence that he believes the most meaningful way to apologise to them would be “face to face in a normal setting”. 

Proceedings and Proposals 

The Mother

1. The Mother seeks the orders set out in her Amended Initiating Application filed 31 July 2012 which provide for the Mother to have sole parental responsibility for the children; for the children to live with the Mother and only spend time with the Father “once an independent psychological assessment of [the Father] has taken place and appropriate behavioural intervention has commenced”.

2. With respect to time and communication with the Father, as will be discussed further below, during final submissions the Mother indicated a preference for the Court to make orders in terms proposed by the ICL, namely for the children to have supervised time with the Father at a contact centre until the Father completes the appropriate behavioural intervention as suggested by the ICL.

The Father

1. Pursuant to his Amended Response filed 10 August 2012 the Father seeks, in essence, final orders in conformity with the final consent orders that were made on 19 December 2008 referred to. In summary, the Father seeks an order that the parties have equal shared parental responsibility for the children and an order for the children to live with the Mother. As to time and communication with the Father, the Father seeks orders that the children spend time with the Father on alternate weekends from 5.00 pm Friday to 4.00 pm Sunday; plus the children to live with the Father for the entirety of each school holiday period until 5.00 pm on the Friday before the beginning of the next school term.

2. Further, in outlining his proposed orders the Father states at paragraph two of his Amended Response filed 10 August 2012, “Order me to give an undertaking that something of this nature won’t occur.” Upon further clarification at trial it became apparent that the Father sought an order that he be restrained from physically disciplining the children with implements, however, he sought to reserve his right to physically discipline the children by way of smacking with his hand.

The Independent Children’s Lawyer

1. At the outset of final submissions counsel for the ICL handed up proposed interim orders which provide for the Mother to have sole parental responsibility for the children and for the children to live with the Mother and spend time with the Father. The orders sought by the ICL would see the children L and N spending supervised time with the Father for a period of two hours each alternate weekend at a contact centre with provision for the child H to spend the same periods of time with the Father should she express her desire to do so to the Mother.

2. The ICL also sought orders that provided for, inter alia, the parents to undertake a post separation parenting program; for the Father to complete an anger management program; for the parties to attend upon a family consultant to prepare an updated family report; and for both parties to be restrained from using any physical discipline upon any of the children.

3. In the course of final submissions both the Mother and counsel for the ICL expressed the desire that orders be made in interim rather than final terms, as set out in the ICL’s minute of order, to allow the children to spend supervised time with the Father in a contact centre and obtain an updated family report. The basis for this submission, as contended by the Mother and the ICL, was that interim orders for supervised time would allow the Father the opportunity to correct his behaviour and re-establish a relationship with the children in an environment where the children feel safe and are protected from harm.

4. During final submissions both the Mother and the ICL conceded to the making of final orders such that the Father would spend time with the children on a graduated basis, with time being initially supervised for a period of two hours each fortnight and increasing once the Father has complied with certain conditions, in particular, completion of a parenting course with an educational component on methods of disciplining children.

Family violence

1. The Department conducted an investigation in mid 2011 in relation to the May incident. The Case Note Summary of this investigation and other associated case notes were admitted and marked as exhibit 2 in these proceedings. The Department made findings that all three children suffered emotional harm as a result of the Father’s conduct during the May incident. The Department also made findings that L and H suffered physical harm. The Department ultimately concluded that the children were not in need of protection as the Mother was assessed as willing and able to protect them.

The incident of May 2011

1. On Sunday 22 May 2011, the Mother discovered $120 in the child L’s wallet which, upon having spoken to the child, she learnt had been taken from the Father. L had also given a further $20, also taken from the Father’s wallet, to H who was unaware of the origin of the money. The Mother telephoned the Father to inform him that the money had been stolen and the two discussed their concerns about L’s behaviour and, on the Mother’s account which I accept, no decision was reached as to how the child’s punishment would be administered. As noted by the Father, there had been issues the previous year about the two girls taking money from the Father.

2. In the afternoon of Tuesday 24 May 2011 the Father collected the children from school in accordance with the parenting plan. On the drive home, during discussions about what the girls had done, the Father stated words to the effect of “in other countries people have their hands chopped off for stealing”.[3] Upon arriving at the Father’s home, the Father laid out a number of $100 notes on a countertop and directed the children L and H to look at the money while he assaulted them by strapping them with a belt. The child N was nearby in the lounge room when this occurred and later stated in his interview with a child safety officer that he “cried for [the Father] to stop”. The Father then asked H for her telephone and took it downstairs and smashed it with a hammer.

   [3] See exhibit 2 – Department of Communities (Child Safety) Assessment and Outcome Summary dated 23 June 2011.

3. The Mother was alerted to what had occurred the following day when she collected the children from school. When the Mother arrived, H informed her that the Father had smashed her mobile telephone and had hit her with a belt, causing a bruise to appear on her thigh. H also had a mark on her right wrist. H told the Mother that she had spoken to her teacher about the incident and had shown the teacher her smashed telephone and her bruise, which the school counsellor, having also seen the mark, described as a “very obvious nasty belt mark”.

The Father’s approach to disciplining his children

1. A central matter in these proceedings has been the Father’s approach to disciplining his children.  Throughout his oral evidence, the Father maintained the view that “appropriate and controlled spanking is … an appropriate tool in a range of different ways to discipline and raise children effectively and… teach them about consequences, but to be mainly used in extreme circumstances … not as common practice.” It is this belief that forms the basis for the “principle” he speaks of when justifying his decision to not attend post separation parenting courses, anger management courses, or be re-introduced to his children in a contact centre as a result of his past actions.

2. At trial, it was evident that the Father was struggling between maintaining his views that the disciplinary action which he took during the incident of May 2011 was appropriate, and minimising the incident itself. While the Father ultimately maintained the view that smacking can be appropriate, he did concede in his oral evidence that his conduct in whipping the girls with a belt was too harsh. It was troubling that when asked to identify the point at which he formed the view that the punishment was excessive, the Father, instead of attributing the formation of that view primarily to the views of his children in light of the family report, stated that he “respects my authority”. 

3. When asked in cross-examination whether he would consider hitting his children again, the Father gave evidence that he would only do so if required and that this would only be in respect of N as the two older girls had passed the age for such action to be an effective method of discipline.

4. Towards the end of the ICL’s cross-examination of the Father, the Father gave evidence that although it had occurred “only once or twice in two years” being the duration of his relationship with Ms S, he had physically disciplined Ms S’s children. Further, although the Father was able to give examples of the type of “extreme misbehaviour” that would warrant physical discipline, being either “wilful or angry defiance” or “physical confrontation with their siblings”, he could not specifically recall the circumstances in which he had twice physically disciplined Ms S’s children.

5. It is troubling to note that when Ms S was cross-examined by the ICL about the Father’s physical discipline of her children it became apparent that Ms S had no knowledge of this ever having occurred. It was equally obvious that Ms S was not at all pleased to have learned of this whilst a witness.

6. The Father gave evidence during cross-examination by the ICL that he would not undertake a parenting or anger management course if ordered despite the ramifications of non-compliance. For him, it was a matter of “principle, not pride”. He maintained that stance even in the face of suggestions to the effect that it might carry a lot of weight with his children, in terms of them altering their view, if the Father was seen as acknowledging some responsibility for his conduct in the May incident.

Expert Evidence

Psychological Treatment Report, Mr Y

1. The children attended upon Mr Y, Psychologist, for a course of psychological therapy of either six or seven sessions. A “Brief Psychological Treatment Report” dated 21 August 2012 was prepared by Mr Y and was attached to his affidavit filed by the Mother on 28 August 2012.

2. Each child dealt with individual issues in the consultations and the therapy focussed upon coping mechanisms. The child H commenced the treatment in July 2011. H had been referred for the treatment by her General Practitioner due to the fear and phobia she had been suffering in relation to the Father. Though, at the time of the first consultation, she had not seen her Father in a number of weeks, her symptoms of anxiety and agitation were ongoing. The children L and N both commenced treatment in January 2012 following referrals from their General Practitioner. L’s referral was a result of the agitation and anger issues which were thought to have been related to the parties’ separation. N was referred to obtain support for his ADHD as well as stress, possibly related to the separation.

3. In the “Future Management Considerations” section of his report, Mr Y stated that each child was displaying mild stress with issues concerning their Father. He recommended that in light of the concerns expressed by H and L regarding the Father’s capacity to look after them, it would increase the children’s sense of stability for the Mother to have sole parental responsibility. In turn, it was Mr Y’s view that “[c]ontinued parenting stability would then ensure moves to the children having contact with their father occurred with minimal distress.”

Psychiatric Report, Dr R

1. Dr R, psychiatrist, undertook interviews of the parents on 14 and 16 November 2011 for the purpose of compiling his psychiatric report dated 9 December 2011 attached to his affidavit filed 30 January 2012. Dr R reported both parties as having normal states of mental health. He noted specifically that while the Mother appeared to have developed some insight into the issues before the Court, the Father had gained little insight,

2. With respect to the Father, Dr R noted specifically at pages 5-6 of his report that while the Father was not suffering from any psychiatric or mental health problems that would impede upon his ability to parent or act in the role of a father to his children, there are “…personality, developmental and attitudinal issues which have impacted negatively on [the Father’s] ability, at times, to parent or act in the role of father to his children.” In support of this statement, Dr R referenced the events of May 2011 as being the most important example.

3. Dr R recommended that following his completion of a Triple P Parenting Course, a review of the Father’s account of the events of May 2011 should be undertaken in light of what he will have learned from the Course. If the Father’s view (that the children made “poor choices” resulting in the incident of May 2011) remains unchanged, then Dr R recommended that further, more intensive counselling be undertaken by the Father.  Dr R states three reasons in support of such recommendations. These are:

   …[1] it is not true to state that children of this age would behave in the manner described simply because they made poor choices, [2] the behaviour of the father in this case has led to psychological difficulties for the children (anxiety assessed by a mental health professional, and [3] [the Father] has yet to show any remorse or accept responsibility for his actions in this matter (he is after all the adult in this scenario).[4]

   (Original emphasis)

   [4] Psychiatric Report of Dr R filed 30 January 2012 p 6. 

4. With regard to the Mother, Dr R stated at page 6 of his report that while the Mother does not need psychiatric treatment, she could benefit from supportive counselling. Such counselling would be to assist her in both “…coping with the stressors associated with the issues before the Court…” and also to assist her to understand “…the importance of assertiveness in terms of self-care…”.

5. Specifically, in relation to the second benefit which the Mother could derive from supportive counselling, Dr R noted that this was with particular regard to her “behaviour in the marital relationship, which at times was marked by an extra-ordinary degree of passivity and tolerance for certain aspects of her husband’s behaviour.” Dr R’s view on this point was formed as a result of the Mother’s descriptions of the Father’s domineering attitude to the Mother during the relationship. At page 26 of the report, the Mother, in describing the Father’s attitudes towards her in 2002/2003 stated:

   … I just wanted some grilles [for the new house which the parties had just built] because we had just fly screens and we ended up in an argument about it because he said no, we’re not doing that, we’re not putting screens up. He just said to me ‘Shut-up and submit, that’s your job’ so that became the way he treated me although he didn’t always say that. He said it that one time but that became the way. His motto was ‘I’m the man of the house and you must submit’. He said to me once ‘Your job is to win me over with your good behaviour’ and I wasn’t allowed to have an opinion. He said ‘Sometimes I’ll ask you for your opinion and then I might weigh it up and decide what I do but it’s always my choice what we do’. It was never a partnership, it was always a hierarchy. That was sort of the source of a lot of difficulty in the relationship which was there from the start but it wasn’t as overt from the start. I guess once I stopped working and was more at home I succumbed to it, I just wanted to please him and not get him angry. I was walking on eggshells trying not to.

Family Report of Ms B

1. A family report dated 8 May 2012 was prepared by Ms B, family consultant. Though the Father attended the family report interviews, as noted at page 7 of the family report, on the day of the interviews he “insisted that he would not participate in any observations with the children, asserting that this was ‘unnatural’ and would not give a true reflection of his relationships with them.”

2. In her evaluation, as regards the Father’s decision to not see his children in a contact centre, Ms B formed the view that, by allowing his pride to take precedence, the Father’s decision was not child-focused and had in no way assisted the Father to repair his damaged relationship with his children.

3. At paragraph 72 of her report, Ms B observed that during his interview “the Father continued to justify his actions during the incident of May 2011 as stemming from his best intentions for the greater good of his children’s characters” and noted that she had formed a view similar to that of Dr R and the child safety workers that the Father “had a very limited understanding of the impact, particularly the emotional effect, of his actions upon his children.”

4. Ms B expressed the following as part of her conclusions in her report:

   In my opinion, until [the Father] has a significant shift in attitude and is able to recognise that his former harsh disciplinary practices are not appropriate or acceptable, his time with the children should continue to be supervised. However [the Father] appears determined not to use a contact centre and the supervision need not occur in a contact centre if there is another option for supervision. In my opinion Ms [S] presents as a mature and sensible woman who impresses with the capacity to safeguard [the children] from potential harm. The children have indicated that they like her and feel comfortable with her, and [L] has clearly stated that she would feel safe with Ms [S] and views her as ‘a strong person.’[5]

   [5] Family Report of Ms B dated 8 May 2012, paragraph 77.

5. Based on these conclusions Ms B recommended: that the children live with the Mother; that the Father “attend a parenting program with a strong educative focus on socially acceptable and appropriate discipline techniques, in addition to an anger management course or counselling”; that until the Father completes such a program and counselling, his time with the children be supervised by Ms S; and that an updated family report be prepared for the final hearing once “other assessments have been completed”.

Statutory Framework

1. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. By reason of the date of institution of these proceedings, the amendments to Part VII which came into effect in June 2012 do not apply.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (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.

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4)).

6. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents (s 65DAA).

Section 60CC Considerations

1. Much of the preceding discussion already resonates with one or more of the s 60CC considerations but particularly the primary consideration of the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

2. I find that the Father’s actions in physically disciplining L and H in May 2011 were premeditated and caused pain to the girls. They also had a significant effect on N who witnessed the event.

3. As was submitted by counsel for the ICL, I find the account of the May 2011 incident given by the children contained in exhibit 2 should be preferred over the Father’s account. I find the Father’s evidence at trial was inconsistent and lacked credibility.

4. For example, while the Father was being cross-examined about the incident of May 2011, I asked the Father whether or not he was crying during the incident of May 2011. In response, the Father stated he was not. However, in the Father’s affidavit filed 10 August 2012 he deposes (at paragraphs 13 and 18) that he was crying during the punishment itself.

5. A further issue surrounding the Father’s credibility related to an ongoing matter of dispute between the parties in relation to the outstanding child support debt of approximately $58,000 which the Father owes to the Mother. When questioned about this at trial by Counsel for the ICL, the Father’s evidence was that the debt exists because the Child Support Agency had incorrectly assessed his income.

6. During the Mother’s cross-examination of the Father, she raised the decision of the Social Security Appeals Tribunal which was made in respect of the Father’s child support debts, in which the tribunal made findings that the Father had been reducing his income to avoid his child support obligations. The Tribunal’s decision also considered the Father’s transfer of a company which he owned to his mother for $12 to be a sham transaction.

7. The Father demonstrated in his oral evidence little capacity to provide balance or make concessions where they could fairly be made.

8. Exhibit 2 contains documents obtained by subpoena from the Department. It includes an Assessment of harm and risk of harm dated 23 June 2011. In summary, the Department found that each of the children had been “harmed” by the incident, with N suffering emotional harm and L and H suffering physical and emotional harm. The assessment found that there was not an unacceptable risk of future harm with the Mother being assessed as a parent willing and able to protect the children from harm.  The Assessment records:

   …

   Interviews were conducted separately with [the children]. In summary [L] and [H] made consistent and detailed disclosures that [the Father] collected the children from school, in the car on the way home he had stated words to the effect of ‘in other country’s people have their hand chopped off for stealing’ and made reference that he would do something to make them remember. Upon arrival at their father’s residence the children disclosed that [L] had put on jeans under her skirt predicting she may get hit with the belt whilst [H] had taken some food predicting she might have to go without dinner. Then [the Father] has broke (sic) [L] and [H’s] money box stating words to the effect of ‘not having any more pocket money’ and there will be no more television or music until the end of June (2011). In a separate room [the Father] then hit [L] and [H] across their hands with the use of a belt and then [the Father] placed a wad of money on the table, [L] and [H] stood at the table with their hands placed on the table bent slightly over and looked at the money whilst each were hit across their bottoms with a belt by [the Father]. As a result these actions caused bruising to behind [H’s] upper thigh and hand/wrist and redness to [L]. At this time it appears [N] was in the lounge room, [N] and the children disclosed he had been crying and told [the Father] to stop in which [the Father] denies. [H] disclosed that [the Father] then took her downstairs outside and smashed her mobile phone using a hammer and [L] disclosed she heard noises of something being hit but did not witness the incident. [N] disclosed he was aware of [H’s] mobile phone being hit as [H] had told him.

1. As reported by the children, a second incident occurred when the Father, having lost his temper, threw a mobile telephone at the wall causing there to be a hole/dent in the wall. This occurred while the children were present.[6]

   [6] See exhibit 2 – Department of Communities (Child Safety) Additional Notified Concerns Summary dated 24 June 2011.

2. I find that “family violence” within the meaning of the Act has occurred (s 60CC(3)(j)).

3. The following recommendations have been made regarding the Father following the May 2011 incident:

   a)The Department recorded in the assessment dated 23 June 2011:

   … As a result of the current investigation and assessment it is unlikely that [the Father] will use an implement or physical discipline towards the children due to the involvement of statutory authorities, however, he appears to have impaired insight, he appears to not view his behaviour as abusive and appears to have a limited understanding to the emotional impact his actions have had upon the children.

   It is highly recommended that [the Father] engages with support services to address issues of anger management, parenting (in particular in regards to use of appropriate discipline techniques) and education to conceptualise childhood harm/trauma and its impact on children’s development and attachment.

   b)Dr R recommended in his psychiatric report dated 9 December 2011 that the Father engage in a Triple P Parenting Course following which a review be undertaken of the Father’s accounts of the events of May 2011 and if the Father’s view remains unchanged, the Father undertake intensive counselling; and

   c)Ms B recommended in the family report dated 8 May 2012 that the Father attend “a parenting program with a strong educative focus on socially acceptable and appropriate discipline techniques, in addition to an anger management course or counselling.

4. The fact that the Father has failed to accept these opinions of independent experts and undertake any of the recommended courses and treatment outlined above speaks volumes about his attitude to the children and the responsibilities of parenthood (s 60CC(3)(i)).

5. I accept Ms B’s opinion that until the Father “has a significant shift in attitude and is able to recognise that his former harsh disciplinary practices are not appropriate or acceptable, his time with the children should continue to be supervised.” Ms B recorded in her report:

   [72] In [the Father’s] interview with me he continued [to] downplay the seriousness of his own actions and to justify them as stemming from his best of intentions for the greater good of his children’s characters. He continued to refer to the actions that resulted in the child protection notification as a measured response, a “disciplinary spanking” of [H] and [L] in response to what he perceived as extraordinary behavioural aberrations. I gained a similar impression to that of Dr [R] and the child safety workers, that [the Father] had a very limited understanding of the impact, particularly the emotional effect, of his actions upon the children.

   [73] Whilst displaying some regret about the incident, [the Father] appeared more concerned about the involvement of others than the implications of his own actions such as the anxiety expressed by his children, particularly [H], who has displayed physical symptoms such as sleep problems and stomach upsets. Whilst [L] appears to have displayed less outward signs of anxiety than her sister, she may have become more clingy to her sister and less sure of herself. In my opinion, [L] is likely to be carrying a strong sense of guilt and self blame for having been the instigator of the stealing which had resulted in her sister carrying more of the punishment. This may be why [the Father] has gained a perception that [L] is “closer to the mark in her understanding that she did wrong.”

   [74] I am concerned that [the Father] has made the assumption that the children will not behave badly in the future, rather than properly address how he may manage such behaviour differently in no [sic] violent ways. However he has made some concessions in that he is prepared to sign [an] undertaking that this harsh disciplining will not happen again.

6. Given the expert opinions, and the Father’s failure to take such recommendations on board along with his evidence at trial, particularly his steadfast refusal to undertake a parenting or anger management course if ordered, I do not propose to make orders for the Father to spend unsupervised time with the children.

7. I find that there is a risk that the Father will physically discipline one or more of the children if they were to spend time with him on an unsupervised basis (s 60CC(2)(b)) given the Father’s steadfast position that he would not use “implements” in disciplining them but that he reserved the right to use his hand if the child’s actions warranted such discipline.

8. Although the Father appeared at trial to have withdrawn from his previous view that his actions in May 2011 were not excessive, it remains of great concern that he believes that physical discipline can be an appropriate and effective tool to discipline children, provided that the discipline is not administered with implements such as belts. It is also of great concern that the Father has on later occasions physically disciplined the children of his current partner without her knowledge.

9. At the end of the trial, counsel for the ICL submitted that little weight should be attached to the Father’s remorse and acceptance that his actions during the incident of May 2011 were excessive. In support of this, the ICL drew upon the Father’s present views that provided implements are not used, children should be physically disciplined. The ICL also supported the above submission with reference to the Father’s stated refusals to attend anger management courses and concluded that the Father’s stated remorse and view that his actions were excessive was simply a product of him realising that the consequences of him not expressing such a view would be that he would not see his children.

10. Both H and L expressed their views in the family report interviews that they would prefer if time spent with their Father was supervised (s 60CC(3)(a)).  At the time of the interviews, H was 12 and a half years of age and L was almost 10 years of age. Their ages and levels of maturity are such that significant weight should be attached to their views.

11. As detailed in the family report, H experienced disturbed sleep, stomach pains and anxiety following the incident of May 2011. These issues had been largely resolved following H’s attendance upon psychologist after she stopped seeing the Father. In terms of H’s stated views, Ms B detailed at paragraph 56 of the report that: “[H] said that instead of spending overnight time with her father she would rather just visit him during the day; if she stayed longer, she would feel ‘unsafe and uncomfortable’.” In that same paragraph, Ms B also notes that, according to H, L had expressed her wishes that she only spend time with the Father provided that H was also present.

12. In terms of L’s views, as is detailed at paragraph 63 of the family report, L “…wants to live with her mother and only see her father in the daytime for a couple of hours, not overnight.”

13. N, who was almost seven years of age at the time of the interviews understood that his Father had done something which was “not nice” though he could not articulate the precise details. As set out at paragraph 65 of the family report, when asked whether he would like to see his Father, N replied “yep” and stated that he would be open to attending the Father’s house “…maybe … if he’s nice”.

14. Since June 2011, the children have resided with the Mother. As evidenced by the family report, all three children share a strong relationship with the Mother (s 60CC(3)(b)).

15. In light of the limited contact that the Father has had with the children since June 2011, and in light of his attitude in respect of his past actions, the children do not presently have a relationship with the Father at all. In particular, the relationship between the two girls and the Father was deeply fractured in light of the incident of May 2011 and the Father has continued to minimise the seriousness of his actions, and despite having the opportunity by way of telephone calls, emails or letters, has not apologised to the girls. This has caused the girls to view the Father as “childlike” and “baby-ish”. On this point, Ms B opined at paragraph 69 of the family report that: 

    …[the Father] has allowed his pride to take precedence, and has not made a child focused decision, which has not assisted [the Father] to repair his currently damaged relationship with his children. Rather [than] giving the children the opportunity to enjoy spending time with their father engaging in activities in a safe neutral setting to build up a bank of positive experiences with him to balance the negative and thus rebuild their trust in him, [the Father] has chosen not to interact with his children at all apart from telephone calls, which creates more distance…

16. I consider the Father has a limited capacity to provide for the emotional needs of the children (s 60CC(3)(f)).

17. The orders proposed by the ICL would see the current arrangement continuing for N and L in that they would remain living with the Mother and have the opportunity to see the Father at supervised visits, if the Father availed himself of such. For H, she would have the choice to also see her Father at supervised visits.

18. I find it is appropriate for H to be allowed to make her own choice regarding seeing the Father given her views, age and maturity. Ms B assessed H to be “a well mannered, mature and articulate young lady who seemed comfortable discussing her schooling and family issues”.

19. Whilst it would be in the children’s best interests to have a meaningful relationship with the Father, I find that a meaningful relationship can only occur once the Father has made positive steps to change his views and has re-established a relationship with the children in a safe environment, namely a contact centre.

20. The ICL had originally sought interim orders but during the course of submissions, counsel for the ICL agreed that it was best for final orders to be made as it was preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the children (s 60CC(3)(l)).

21. I have not specifically addressed some particular subparagraphs of s 60CC(3) of the Act on the basis that those have no particular relevance to this case further than that which has already been addressed.

22. The evidence as a whole including the Father’s evidence and his approach throughout the trial, in circumstances where he represented himself, leads me to the following further findings and conclusions, in summary:

    a)The Father’s conduct in the May incident was driven in substantial part by the Father’s inability to control his own anger and the children were aware of that;

    b)The Father’s conduct was without reference to the Mother in terms of any joint approach in the exercise of parental responsibility;

    c)The Father’s conduct in the form of a physical assault upon H and L more likely than not involved excessive force and certainly those children harboured such a view;

    d)The Father’s refusal to accept the role of his anger and use of excessive force in the subject conduct rests upon his unreasonably rationalising his behaviour as “appropriate discipline”;

    e)The Father has steadfastly refused to accept any responsibility for the feature that his conduct and its consequences has caused a fundamental fracture in his relationships with the children and that fracture has been allowed to widen and increase by reason of his steadfast refusal to acknowledge any fault or responsibility or to take any steps to arrest that development;

    f)Consequently, the children’s perception of the Father’s lack of any acknowledgement feeds their views of him;

    g)The children were physically (in the cases of H and L) and emotionally adversely affected. Those adverse effects have had greater significance than they might otherwise have had because of the Father’s continuing refusal to signify some acceptance or responsibility on his part;

    h)The Father remains of the view or subscribes to the stance that physical discipline has its place, despite what it has meant for his relationships with the children. That does not bode well for his future relationship with them;

    i)By undertaking the interventions that have been recommended by the experts and affording the children the experience of the security of supervised time, the Father could have readily retrieved the position historically and could probably do so still but the Father expresses a steadfast adherence to the view that his professed principles come before efforts to repair his relationships with his children in the manners recommended by the experts;

    j)There are issues of personality and parenting as identified by the experts that the Father needs to address if he is to repair his now fundamentally fractured relationships with the children.

23. On balance of all relevant considerations, I am satisfied that orders along the lines proposed by ICL, in the terms conceded to during final submissions, and agreed to by the Mother, best meet the best interests of the children, that is, they be final orders such that the Father would spend time with the children on a graduated basis, with time being initially supervised for a period of two hours each fortnight and increasing once the Father has complied with certain conditions, in particular, completion of a parenting course with an educational component on methods of disciplining children.

24. The onus will therefore be upon the Father as to whether he acts to restore his relationships with the children. It would clearly in their best interests that he so do. It seems to me that short of the Father undertaking these steps there is no realistic prospect of the children seeking any relationship with him and in any event it is in their best interests that the Father take these steps.

Parental Responsibility

1. Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility in terms of decision making about major long-term issues.

2. Subsection (3) of that section provides:

   The order is taken to require each of those persons:

   (a) to consult the other person in relation to the decision to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

3. Notably, the section does not provide any mechanism for resolving any deadlocks. That is, if the parties are unable to come to a joint decision about an issue, being a major long-term issue as defined in the Act, then resort must be had, ultimately, to the Court to resolve the issue.

4. Given my findings concerning family violence, the presumption in s 61DA of the Act does not apply. I do not propose to make an order for the parents to have equal shared parental responsibility. I am satisfied that an order ought be made for the Mother to have sole parental responsibility.

5. It is abundantly clear in this case that the parents are not only hostile to each other and have no capacity to effectively communicate or discuss or resolve issues the position has been reached where their relationship can only be described as toxic. I find that there is no prospect that an order for equal shared parental responsibility would be workable and I find that, in any event, given the findings I have made above the presumption if it applied, would be rebutted in the best interest of the children.

6. For these reasons I make the Orders set out at the commencement of them.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 December 2013.

Associate:

Date: 24 December 2013