KELSEY & YORK

[2017] FCCA 571

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELSEY & YORK [2017] FCCA 571

Catchwords:
FAMILY LAW – Applicant seeks children spend time with after three year absence – Applicant has history of drug abuse, family violence, poor self-control –recent assault on primary carer’s partner – meaningful relationship not possible on balance of probabilities – Not in children’s best interest to spend time with Father.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001

Cases cited:

Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405

Applicant: MR KELSEY

Respondent: MS YORK

File Number: MLC 6586 of 2014

Judgment of: Judge Curtain

Hearing dates: 14, 15, 16 and 17 November 2016

Date of Last Submission: 23 December 2016

Delivered at: Melbourne

Delivered on: 24 March 2017

REPRESENTATION

Counsel for the Applicant: NR

Solicitors for the Applicant: Ms Rothschild

Counsel for the Respondent: Ms Sevdalis

Solicitors for the Respondent: Victoria Legal Aid, Geelong

Counsel for the Independent Children’s Lawyer:   Ms Dowler

Independent Children’s Lawyer:   Ms O’Loughlin of Coulter Roache Lawyers

IT IS ORDERED THAT:

1. All prior parenting orders be discharged.

2. The children X born (omitted) 2007, Y born (omitted) 2009 and Z born (omitted) 2011 (“the children”) live with the mother and she has sole parental responsibility for all of them.

3. The children shall not spend time with or communicate with the father.

4. The mother, her servants and agents be and are hereby restrained from imposing any physical punishment on the children or any one of them.

5. All applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kelsey & York is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6586 of 2014

MR KELSEY

Applicant

And

MS YORK

Respondent

REASONS FOR JUDGMENT

“…concerns for welfare of children, all parties at house aggressive and unfit role models/carers. DHS Notification to be made…”

Victoria Police Leap Report, dated 17 December, 2011.

Introduction

1. This is an unusual case where the parents had three children, but they never cohabited. They had a relationship from 2006 to 2013 with the children being born in 2007, 2009 and 2011. The Respondent mother is the unchallenged primary carer of the children and the Applicant father seeks an order for them to spend time with him, on any reasonable conditions. There are a significant number of difficulties with his case:

   a)The children, (2 of whom two suffer from ADHD), have not spent any time with him for three years;

   b)He has an anger management problem, acknowledging that he quickly loses his temper;

   c)He has a recent past history of use of Ice and earlier Marijuana use and may relapse;

   d)He has an extensive criminal record, including crimes of violence;

   e)The mother is very fearful of him and alleges very serious family violence;

   f)He has mood swings and has been medicated for this condition for 4 years but Dr P says this medication is of little value;

   g)It is common ground that on 2^nd December 2014 when the parents were at this court he assaulted Mr R, the Applicant mother’s partner in her presence, in the foyer of the court building. The father says at paragraph 25 page 11 of the Family Report “…I did assault him. I lost it. I seriously injured him. Then at the Magistrate’s Court, the Judge (sic) thought I was a risk to the community…”;

   h)He is illiterate, poorly educated and poorly socialised; and

   i)He has had three admissions to a psychiatric hospitals and is on a waiting list at the (omitted) Hospital to see a psychiatrist following his outburst in April, 2016 at a Melbourne hospital when he was upset and punched a wall.

2. The Applicant father underwent a psychiatric assessment. The author, Dr P says the following at page 9 of his report:

   “88. The father has however, very significant problems in his personality and his psychological makeup. They present themselves in the father’s difficulties in interpersonal relationships and in his relationship with society. The father is poorly socialised, and he has significant difficulties and impairments in judgement, planning, and thinking through the consequences of his actions. His strategies in dealing with anger, stress, conflict and problem solving are poorly developed. There are matters to do with his intellectual functioning and his social competencies. In my opinion, there is a disorder of personality, which is evident by the history of criminality, violence, interpersonal difficulties and a pattern of interpersonal behaviour that is enduring and not amended from learning through experience.”

Background

1. The Applicant father Mr Kelsey was born on (omitted) 1988 and lives at (omitted), a rural town near the South Australian border, some four and a half hours’ drive from Melbourne. He is aged 28 years and has intermittent employment as a (occupation omitted). The Respondent, Ms York lives near Melbourne but did not disclose her address on the basis of being fearful of the Applicant and did not want to be located. She was born on (omitted) 1989, and is also aged 28 years. As I indicated earlier, the parties never lived together but had a relationship from 2006 until 15 November 2013.

2. They have three children from their relationship, X born (omitted) 2007, Y born (omitted) 2009 and Z born (omitted) 2011. Since separation the mother has had a young child A who is currently aged two years with her partner, Mr R. They do not live together but the mother alleges that they are in a “…supportive relationship.”

The evidence

1. The parties relied on the following documents:

A. Applicant father’s material:

a)Initiating Application filed on 28 July 2014;

b)Affidavit of the father sworn on 23 July 2014 and filed on 28 July 2014;

c)Affidavit of the father sworn on 9 November 2016 and filed on 10 November 2016;

d)Letter from LifeWorks dated 1 June 2015;

e)Parenting After Separation Certificated filed on 27 October 2016;

f)Men’s Behavioural Change Program Attendance Letter filed on 8 November 2016;

g)Affidavit of Ms J sworn on 9 November 2016 and filed on 10 November 2016;

h)Affidavit of Ms D sworn on 9 November 2016 and filed on 10 November 2016.

B. Respondent mother’s material:

a)Response to Initiating Application filed on 26 November 2014;

b)Trial affidavit of the mother affirmed and filed on 3 November 2016;

c)Affidavit of Mr R affirmed and filed on 7 November 2016;

d)Affidavit of Ms R sworn on 8 November 2016 and filed on 9 November 2016.

C. Independent Children’s Lawyer’s material:

a)Family Report prepared by Mr G dated 14 October 2016;

b)Psychiatric Assessment and Report of the father prepared by Dr P dated 10 September 2016;

c)Subpoena to Victoria Police;

d)Subpoena to (omitted) College;

e)Subpoena to Dr J;

f)Subpoena to Department of Health & Human Services;

g)Subpoena to (omitted) Medical Clinic; and

h)Subpoena to (omitted) Centre Against Sexual Assault.

The Applicant’s evidence

1. The Applicant father presented with a large number of parenting handicaps. The most obvious is that he is illiterate and he appears to carry this as a very heavy emotional burden. I also gained the impression there is significant guilt about this and I attempted to explain to him he should not feel that guilt; he is not responsible for the failure of others and the education system when he was a child. He presented as being very unsophisticated, with limited social skills. He was overdefensive in the witness box and occasionally responded with anger. He exhibited to the court more than once what he calls his “…short fuse”.

2. The tendered criminal record shows him repeating the same criminal offence on a number of occasions over time. The father was convicted of a charge titled… “possess controlled item without excuse”… on 4^th August 2006, 2^nd October 2008, and 25^th June 2012. He said that he was then employed in a (occupation omitted) where they provided him with a “box cutter” to use at work. He said he carried it on his person, outside working hours, forgetting that he had it in his possession. His explanation shows at best that he is a person that does not learn from his mistakes, which is very troubling. He has limited self-control and I would be very concerned about his behaviour with these children even if there was some adult present to supervise, assist and direct him in communicating with and being involved with the children.

3. He gave evidence that as a young child he suffered a trampoline accident and said that he had a head injury. He raised this to explain his extremely poor memory. In fact, his memory on many issues was almost non-existent, save for family violence which he says he never inflicted upon the mother and children. His denials were unbelievable and unacceptable. He looked for simple explanations for complex issues, for example, when it was put to him that his oldest child, X, had negative memories of him, he sought to explain her behaviour as being “…brainwashed…” by the mother, without apparently considering other possible options.

The Applicant’s witnesses

Ms J

1. This lady is the father’s partner and presented as a pleasant, caring person. I accept that in the last fourteen months or so that she has lived with the father in (omitted) he has not behaved in an anti-social way in her presence.

2. But that is a relatively short period. I note that the father is now aged twenty eight (28) years and has a history of anti-social behaviour starting from his youth.

3. It is clear from the evidence that she does not have a detailed and full knowledge of his past offending and violence. I suggested she should read the psychiatric report in relation to the father to gain some insight. I also accept that she cannot be a supervisor for any time with the children given she is too emotionally close to the father and will not be capable of objectively anticipating any potential problems that could arise.

4. Another difficulty is that she has never met the children nor was there any evidence led that she knew how to properly supervise any child that had been diagnosed with ADHD.

Ms D

1. This is the mother of Ms J, and she too has not been fully informed of the father’s troubled past. Further, she also has only been involved with him for a relatively short period. She could not be a potential supervisor because of her lack of knowledge about his past, for example, she has not read the psychiatric or Family Reports. She also lacked objectivity which was apparent in the way she gave her evidence at trial.

Ms K

1. The father’s mother, (paternal grandmother), was a frank and open witness. She detailed how she was a victim of an abusive relationship at the hands of the paternal grandfather when the Applicant was a young boy. The paternal grandfather’s anti-social behaviour in the household clearly painted him as a poor role model and the paternal grandmother said that her son, the father in this case, would probably have seen or heard this behaviour. She clearly could not control her son when a child, and I doubt she could supervise him properly now.

2. She said she had witnessed her son calling the mother “a dog, a slut” and an “asshole”. She conceded that he does have… “a bit of a temper.”

Ms M

1. This young lady is the paternal aunt of the children and was very defensive when giving her evidence. She told the court that she had seen both parents yell and hit the children.

2. I do not believe she would be an effective supervisor as the father had assaulted her when she was aged 15, by pushing her into a wall. Moreover, she was shown an exhibit which evidenced text messages between the witness and the mother in this case, where the mother complained of violence from the father. This witness conceded that the mother had complained to her about his violence during the parties’ relationship. She said she had spoken to her brother about the violence, which apparently had little effect, given his assault on 2^nd December, 2014 on the mother’s partner.

Ms T

1. This lady detailed three alleged events of violence by the mother’s current partner, Mr R against the children. She appeared very eager to give this evidence and did so in a subjective, broad brush style which required me to ask her to be far more specific, if she could.

2. Interestingly she was once a close friend of the mother and they had a very serious falling out where ultimately each sought restraining orders against the other.

3. The mother and Mr R both strongly rejected the allegations and I find that the evidence of Ms T was tainted by her negative attitude to those parties and is unreliable, subjective and inaccurate. Her negative view of the mother disqualifies her as a potential supervisor.

The Respondent’s evidence

1. The mother, given her anxiety about the father, gave her evidence via videolink from another courtroom. She presented as being somewhat blunted by life experiences and emotionally tired. She gave evidence in a clear and detailed way that I found believable and acceptable. I also accept her fear and anxiety about the father is both real and troubling. Where the mother’s evidence conflicts with the father’s evidence, I prefer the evidence of the mother.

Mr R

1. He is the current partner of the mother. He swore a brief affidavit and generally presented as being truthful and I find his evidence reliable. I also find that he did not assault or injure the children, save for subjecting them to corporal punishment, which I will be making an order about to avoid it being repeated in the future.

The Family Report

1. The court was assisted by a Family Report undertaken by Mr G which was dated 14^th October, 2016. The author has extensive experience as a Family Consultant, having initially graduated in 1973 working with the family court from 1977 to 2008 and lately being in private practice. His qualifications and experience as an expert were not questioned and I found his report and evidence at court very helpful. I will comment on it further in this judgment.

Psychiatric Report

1. This was undertaken by Dr P, a consultant psychiatrist who interviewed the father in his consulting suites on 27^th July 2016, and produced a written report dated 10^th September, 2016.

2. At page nine of the report under the heading “Parental Capacity and Mental Health Assessment” he said the following:

   “85. I did not comprehensively assess the father’s parental capacity. Such an assessment requires more than a one, one-hour session with the father. A parent’s parental ability is contextual and is subject to change. In my view, parenting capacity reflects a long-term view of the parent’s ability to sustain appropriate parenting. My assessment focused on the father’s psychiatric and emotional functioning. In doing so it reflects more on the father’s parenting ability in the here and now.

   86. There is no evidence on the history obtained, findings on mental state examination, and review of the supplied documents, to suggest that the father has evidence of the presence of a major psychiatric condition. That is, the father does not have schizophrenia, although he stated that he had been diagnosed with that in an Affidavit. The father as well, does not have a bipolar affective disorder and has never been manic.

   87. The father has previously been diagnosed with ADD or ADHD during his childhood. There is a history of concentration, comprehension, conduct and behavioural problems during his childhood and during his schooling. He took a psycho-stimulant medication for some years. That medication ceased during his secondary schooling. In my opinion, there is no current diagnosis for a psychiatric condition titled adult ADHD or adult ADD.

   88. The father has however, very significant problems in his personality and his psychological makeup. They present themselves in the father’s difficulties in interpersonal relationships and in his relationships with society. The father is poorly socialised, and he has significant difficulties and impairments in judgement, planning and thinking through the consequences of his actions. His strategies in dealing with anger, stress, conflict and problem solving are poorly developed. There are matters to do with his intellectual functioning and his social competencies. In my opinion, there is a disorder of personality, which is evident by the history of criminality, violence, interpersonal difficulties and a pattern of interpersonal behaviour that is enduring and not amended from learning through experience. (My emphasis)

   89. The father has a history of substance use, and the use of such substances would cause him to become aggressive, more impulsive and less concerned about the consequences of his actions. He denies any current illicit substance use. In my opinion, urine drug screens undertaken on a random basis will assist in monitoring any return to illegal drug use.

   90. The father has a history of mood instability, with moments of suicidal thinking, and possibly suicidal behaviour. The father has been placed on a medication, with the hope that it would reduce impulsivity and stabilise mood, however in my opinion, it is highly unlikely to do that. The father’s difficulties in such matters will fade over time and should the father improve his techniques to manage stress, problem solving and conflict through behavioural change programs, the maturity of his personality will progress quicker.

   91. In my opinion, there is no medication that is necessary, appropriate and reasonable that may assist the father in the management of his psychological and personality issues.

   92. In my opinion, psychological treatment will not have a positive outcome should it be imposed on the father.

   93. In my opinion, after giving consideration to all the matters identified on the history obtained, the findings on mental state examination, and review of the supplied documents, there are significant personality difficulties or vulnerabilities in the father that have the potential to significantly disrupt the father’s parental ability. (My emphasis)

   94. In my opinion, based on the history obtained, the findings at mental state examination and a review of the supplied documents, there is a condition of a personality disorder that interferes with the father’s parental ability and long-term parental capacity. (My emphasis)

   95. Based on the history obtained, the findings on mental state examination of the father and review of the supplied documents, although there is no imminent or foreseeable risk of violence to the children or the mother in this Family Law matter, the history of violence, the breaching of the Intervention Order and criminality suggests that a strong framework and structure around parental communication and access issues will need to be put in place should the father gain supervised access to the children.”

3. I found this expert’s comments often to be helpful and I will refer to them further.

Relevant Legal Principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children are met by:

   a)ensuring that children have the benefit of both their parents having a meaningful involvement in their life, 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 receives 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.

1. Section 60B(2) of the Act sets out the principles underlying those objects They 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;

   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);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)parents should agree about the future parenting of their child; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They are:

(a) the benefit to the child of having a meaningful relationship with both of   the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. I will consider these issues after I have dealt with s60CC(3) below (see Collu & Rinaldo [2010] FamCAFC 53).

Additional considerations are:

1. As to sub-section 60CC(3) of the Act:

(a)  any views expressed by the child and any factors (such as the                   child's maturity or level of understanding) that the court thinks are       relevant to the weight it should give to the child's views;

1. The oldest child, X who is nine was interviewed by the Family Consultant and at paragraph 59 of the Family Report she said the following when talking of her father: “…he (Mr. Mr R) is not like our other father who was a bit mean. He would hurt and punch us. He punched mum. I felt upset and scared. I used to feel unsafe with Dad because he hurt Mum.”

2. She went on to say in paragraph 60 when the possibility of her meeting her father was raised: “Mum has not talked about seeing Dad… I can’t remember anything nice about him… I can’t remember doing nice things with him. I don’t know what it would be like seeing him again. I can’t remember what he looks like.”

3. Y who is seven and his brother Z who is five were interviewed together and the report writer says at paragraph 61 that the boys reported “…he mean. Our real dad, Mr Kelsey, he’s the mean one. He kicked and punched us… Mum and my sister too. It would be bad to see Mr Kelsey dad.”

4. The Report Writer goes on to say “…as with the case with X (sic) the boys could not recall any attractive memories about their father…”. He also quoted the boys as saying the following: “he wasn’t nice to us… I’d be nervous to see him.”

5. The boys are very young which makes it difficult to put much weight on their expressed views, however they will not be ignored. In relation to X, I note she talks of previously being scared and unsafe in relation to her father. This is significant and will attract appropriate weight.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

1. In relation to the mother, the evidence is clear that the children have a close and loving relationship with her.

2. In relation to the father the relationship is nearly non-existent, strained and problematic. They have not seen their father for around 3 years and any recollection of him appears to be very negative.

   (ii)  other persons (including any grandparent or other relative of the child);

3. The children appear to have a positive and satisfying relationship with the mother’s partner Mr R notwithstanding they live in separate homes. I cannot comment on any other persons given the lack of evidence on this topic.

(c)  the extent to which each of the child's parents has taken, or failed             to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

  (iii)  to communicate with the child;

1. In relation to the mother the evidence is clear that she has often had to make decisions about the children and major long term issues. She clearly is their primary carer and spends significant time with them and communicates with them on a daily basis. The question of her role under this subheading is not an issue; it really is the question of the father’s role.

2. In relation to that, what was unusual about this case was that the parties never effectively lived together although they had three children. At paragraph 41 page 17 of the Family Report, Mr Kelsey claims he was present at the births, helped with the care of the children when he finished work and took X to school. The writer then says the following: “…Mr Kelsey explained that as he and Ms York had not lived together, this restricted his availability to her and to the children.” This should be noted as an important outcome of this uncommon relationship, and must have limited the children’s relationship with their father.

3. When this topic was raised with the mother, she is noted as saying in the same Report at paragraph 42 the following: “…he didn’t want anything to do with them when we were together. If we were going to the park he wouldn’t come. When I worked, he wouldn’t help out or he would come over and he would sleep all day. Or if he was there, he watched TV and didn’t help, even if I asked him. As a parent he was very limited.”

(ca)  the extent to which each of the child's parents has fulfilled, or                  failed to fulfil, the parent's obligations to maintain the child;

1. The mother has been the primary carer and primary financial supporter of these children, through her own effort and the benefits provided to her by the taxpayers of Australia. I note at paragraph 48 page 19 of the Family Report that this was raised with the father: “…Mr Kelsey explained that he had endeavoured to meet his financial responsibilities towards the children by way of Child Support but this appears to have been sporadic, infrequent and dependant on whether he was in employment.”

2. His evidence in chief detailed that he had employment from September to December earning $700 per week, otherwise he received government benefits of $200 per week.

(d)  the likely effect of any changes in the child's circumstances,   including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

1. In my view it would be emotionally damaging for these children to be separated from their mother for any length of time. She has raised them with little assistance from any third parties and that apparently includes the father.

2. In relation to their separation from the father, this historically does not appear to have caused them any distress and in fact, when they saw the report writer they were very critical of him and negative in their comments about him.

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

3. I cannot comment on this subparagraph given there was little or no evidence on this topic.

(e)  the practical difficulty and expense of a child spending time with           and communicating with a parent and whether that difficulty or             expense will substantially affect the child's right to maintain   personal relations and direct contact with both parents on a   regular basis;

1. The parties live some 4½ hours travelling time apart but it does not in itself create any significant difficulties that cannot be overcome.

(f)  the capacity of:

(i)  each of the child's parents to provide for the needs of the children including emotional and intellectual needs

1. Under this topic it is reasonable to say that the mother has done the best she can to provide for these needs although clearly it has on occasions been very difficult for her. In relation to the father, his capacity or lack of it, is the touchstone of this case.

2. The personal weaknesses in the father’s character and parenting skills were traversed in the Family Report at pages 13 and 14 which detail the following:

   “31. Mr Kelsey admitted to having a police record and that amongst others, the charges included: assaulting police, threatening to kill, being drunk at a brawl, being in possession of stolen vehicle etc. He explained that he was placed on a 12 month good behaviour bond following these charges and that, as a result of others, he received a 15 month community based corrections order. He was given a four month jail sentence as a result of breaching an Intervention Order either but was somewhat vague as to the details and unable to provide precise dates when this had occurred

   32. Mr Kelsey conceded to having used a variety of drugs in the past, including ICE and marijuana. He stated “I have not done any drugs since moving to (omitted). I stopped using grass when my Nan passed away. It was her last wish that I give it up”. He maintains he has undergone a number of random drug screens and that all have returned negative.  Mr Kelsey claims “I’m calmer now…I’ve moved away from the bad influences in the (omitted) area and enjoy country life. I am only a moderate drinker”.  (The ICL informed this Counsellor that a total of eight drug screens had been requested but that Mr Kelsey had only undertaken two screens and both had returned negative.)

   33. Asked about his aggression, Mr Kelsey conceded “I do have anger problems. I snap a little bit. I’m about to see a specialist in (omitted) and be put on medication to control my anger. The loss of a baby made me think about my angry behaviour. (Mr Kelsey was unable to recall this doctor’s name or provide further information about the treatment that was envisaged. He explained that his partner, Ms J, could provide this Counsellor with further details but this was not done in time for the completion of this report.) Mr Kelsey further explained that he takes Epilin and that has been on this medication for four years. He had been prescribed this so as to deal with his mood swings as a psychiatrist he had consulted in (omitted) thought there was a possibility that he was suffering from bipolar disorder.

   34. As a result of complications associated with the pregnancy, Mr Kelsey’s partner, Ms J, had to be transferred from (omitted) to the (omitted) Hospital, Melbourne, in April 2016. Mr Kelsey reports that on this instance, he was advised (or told?) to meet with members of the CAT Team at the nearby (omitted) Hospital as he had become agitated and “had punched a wall”. He was once again vague as to precisely what had transpired on this occasion but felt this was somehow linked with the medication he had been prescribed.”

3. I have serious concerns about the father’s capacity to promote and develop the children’s welfare and best interests in this most unusual case.

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

4. There was so little evidence that on this topic I could not comment on it.

(g)  the maturity, sex, lifestyle and background (including lifestyle,                   culture and traditions) of the child and of either of the child's               parents, and any other characteristics of the child that the court           thinks are relevant;

1. I refer to the comments in paragraphs 51 and 52 above in relation to the father. At page 15 of the Family Report this subject was raised by the expert with the mother, and it is reported as follows:

   “37. Asked about the above (the children becoming frightened by loud noises), Ms York indicated that the children had indeed become frightened once as a result of loud hammering when her father was building some furniture. She was adamant that in no way does he threaten, intimidate or discipline the children with a hammer. She explained that now Z’s and previously Y’s fears about going into the school playground were associated with exposure to family violence and loud and frightening arguments while she and Mr Kelsey were together. She explained Z remains fearful of loud noises, associates this with family violence and is perpetually vigilant and on the lookout for further arguments and the next threat. “If he hears raised voices at the shops, he gets jumpy or if people are aggro or violent on the TV, it’s the same. The kids saw him put a knife to my throat.  Hence staff at the school had decided to keep him indoors so as to protect him from playground noises”.

   38. Ms York further reported that both boys have experienced difficulties with remaining at school for a full day. Y is now more settled and attends for the duration but last year struggled with remaining at school for the entire day as expected. Z, the youngest child, has struggled with attending school five days a week since beginning at the school this year. However, Ms York reports that, since returning to school at the commencement of this term, Z has remained at school for five entire days without the need for her to be called in to take him home. She was unable to explain this development. (Staff at the school confirmed that the boys had made considerable progress.) Her youngest child, A, has been in three days per week of childcare since the commencement of the year.

   39. The two boys have been diagnosed with ADHD by their paediatrician, Dr W.  She regularly monitors and reviews their progress .Dr W also organised for Ms York to receive assistance from “Child First”. Ms York was waiting to hear from them. (She was perplexed as to why this organisation had not been suggested to her by the protective workers from DHS.) All three children receive counselling support from (omitted), Victoria with their workers attending Ms York’s home.  Ms York has engaged with a CASA and has regular counselling with this organisation so as to address the sequelae of the family violence experienced.’

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. This is not relevant.

(i)  the attitude to the child, and to the responsibilities of parenthood,              demonstrated by each of the child's parents;

1. In relation to the mother, she displayed in her evidence a responsible attitude towards parenthood and to promoting the welfare of these children. The father however seemed to be less child focused and does not have a positive attitude or is responsible, as detailed earlier in paragraphs 51 and 52 above.

(j)  any family violence involving the child or a member of the child's          family;

1. I am satisfied on the evidence that there has been family violence between the parents in this matter, as defined by s.4AB of the Family Law Act 1975 (Cth). I am further satisfied that on the balance of probabilities the father more often than not has initiated that violence, which included but was not limited to name calling, pushing and shoving, threatening and/or aggressive behaviour including verbal abuse. It must have created fear and anxiety in the mother.

2. A troubling example of the anti-social behaviour of the father occurred on 2 December 2014 when he assaulted the mother’s partner. He was cross-examined on this topic as follows:

   “MS SEVDALIS:

   And then that was – that was 1 June and then 2 December was when we came to court and you assaulted Ms York’s partner, Mr R?‑‑‑Yes.

   That’s correct?‑‑‑Yes.

   …You said to Dr P and to Mr G that you snapped?‑‑‑Yes.

   That’s right?‑‑‑Yes.

   Do you remember that Ms York was there as well, wasn’t she?‑‑‑Yes.

   And she had a young baby with her, a baby in the pram.  Do you remember that?‑‑‑No.

   So if I said to you that your ex-partner and her current partner – so Ms York and Mr R;  I will use their first names – were waiting at the lifts, waiting to go up the lift in court with their baby in a pram when you punched Mr R out, you can’t remember that?‑‑‑I blacked out.

   HIS HONOUR:   What do you mean you blacked out?‑‑‑When I hit him, I just blacked out.  I just went ‑ ‑ ‑

   What; you have no recollection of it?‑‑‑No.

   So you don’t know what you did?‑‑‑No.

   And have you blacked out before?‑‑‑When I get into fights, yes.

   When you get in fights you black out?‑‑‑Yes.

   And have you had treatment for this blacking out?‑‑‑That’s why I’m on medication now.

   And what medication are you on?‑‑‑Epilim.

   Sorry?‑‑‑Epilim.

   And you’ve been on that for how long?‑‑‑Three years.

   So you can’t remember anything leading up to this?‑‑‑No.

   What’s your memory of going to court that day?‑‑‑Just rocking up in the morning, seeing him.

   Yes.  You remember seeing him?‑‑‑And that’s it.

   And where was he standing?‑‑‑Pardon?

   Where was he standing?  Or was he sitting?  When did you first see him;  where was he?‑‑‑Walking through.

   Walking through what?‑‑‑The metal detectors.

   Right.  And what happened then?‑‑‑I walked over and that’s – that’s it.

   Did you follow him once he went through the metal detectors?  Was he in front of you?‑‑‑Yes.

   And you followed him?‑‑‑Yes.

   And what was the intent in following him?‑‑‑Just to talk to him.

   But you hit him?‑‑‑Yes.

   You didn’t talk to him?‑‑‑No.

   And you don’t recall whether the mother had her child there?‑‑‑No.

   But she could have?‑‑‑Yes.

   And you could have done this in front of a young child?‑‑‑Yes.

   Counsel?

   MS SEVDALIS:   Thank you.  So not only could you have done it in front of the young child, that baby could have been hurt?  Do you accept that as a possibility?‑‑‑Yes.”

   _______________________________________________________

   “HIS HONOUR:

   So tell me, sir, justify to me why you hit him?‑‑‑Just to get access to my kids and seeing them.

   All right.  I just wanted to hear your answer.  You hit him to get access to your kids.  That’s what you just said.  Yes?‑‑‑No, not that.

   That’s what you just said?‑‑‑Because I got told he was hitting me kids.

   You were told he was hitting your kids, yes.  And so you decided to hit him?‑‑‑Yes.

   And violence creating more violence;  is that the answer in life, is it?‑‑‑No.”

(k)  if a family violence order applies, or has applied, to the child or a             member of the child's family--any relevant inferences that can be           drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. This is addressed at paragraph 43 of the Family Report at page 17 which says as follows:

   “43. Ms York believed that there had been at least five Intervention Orders made and at the first one had been obtained by the police in 2013 after Mr Kelsey had threatened her with a knife. She explained that most recent Intervention Order expires in December 2016.”

   I noted that the father denied the knife allegation.

2. The father informed the court during his cross-examination that the mother obtained an interim Intervention Order on 15 November 2013 and a final order on 21 November 2013 against him. He said that he breached it on 3 occasions because “…he was an idiot”.

(l)  whether it would be preferable to make the order that would be             least likely to lead to the institution of further proceedings in   relation to the child;

1. This is clearly preferable. However, my judgment is based on the current circumstances and should the father’s position change in the future and he be able to offer the children happiness that they cannot currently enjoy with him, and a risk free environment, then perhaps in those circumstances the situation could be reviewed.

(m) any other fact or circumstance that the court thinks is relevant.

1. An issue that loomed large in this case was the mother’s clear anxiety about and fear of, the father.

2. This is raised at page 10 paragraph 21 and 22 of the Family Report where the mother says the following :

   “21. Ms York spoke about feeling fearful and anxious as a result of the violence experienced. She remains fearful and apprehensive about coming into contact with him. When interviewed, although Ms York alluded to Mr Kelsey’s violence, she did not dwell on this at length but was clearly still very fearful of Mr Kelsey and as to the possibility of coming face-to-face with him. She has Intervention Orders in place and hopes to be able to renew/extend these. Ms York continues to have ongoing counselling at a local CASA for help with anxiety. Her focus was more on the children and their present needs and circumstances. She is not on any medication.

   22. Ms York has moved with the children out of the (omitted) area where she had been living since the relationship ended.  She explained she lived in (omitted) after leaving the (omitted) area but has subsequently moved once again. Ms York is considering moving yet again as she believes members of Mr Kelsey’s family know where she lives and are likely to inform him of her whereabouts. (See her recent affidavit dated 20^th September 2016). If she does move, the children will remain at their current school.”

3. On 2 December 2014 the mother’s partner was assaulted in the Court lift area by the father. The mother was present and witnessed this outrageous act and in turn is a victim of this anti-social behaviour along with Mr R.

4. Sadly, the father has an extensive criminal record. The following are examples of his cross-examination that make me seriously doubt whether he is reformed, as he suggests.

5. He was cross-examined by Counsel for the mother regarding an event in September 2008, as follows:

   “MS SEVDALIS:

   Yes.  On the – that same year, September 2008, in addition to a – you were charged with a number of other charges and you went before the Sunshine Magistrates’ Court for intentionally damaging property.  Do you remember that?‑‑‑Yes.

   Throwing missile.  Throwing missile, injure, danger or damage property.

   ……

   HIS HONOUR:   What’s with throwing a missile?

   MS SEVDALIS:   Throwing a missile?‑‑‑Throwing paintballs.

   HIS HONOUR:   At what?‑‑‑Off the bridge.

   Onto what?‑‑‑Cars.  I was young.”

   ……

MS SEVDALIS:   No, in 2008 you would have been 20.  That’s right?‑‑‑Yes.

HIS HONOUR:   That’s not a child.  Why are you throwing paintballs on cars?‑‑‑I was drunk.

You could cause a serious accident?‑‑‑Yes, I was drunk.

And hit their windscreen.  A 20 year old;  that’s your form of amusement, is it?… Not really.

1. He was also cross-examined about the charges arising from the assault of Mr R as follows:

   “MS SEVDALIS: 

   Mr Kelsey, this criminal history provided by Victoria Police details that on 6 March 2015 at Sunshine Magistrates’ Court, you were – you were convicted and, in fact, earlier in the provision it says you pleaded guilty to – in addition to the charges that I read out before, two charge of contravene a family violence intervention order with the intent to cause harm or fear.  Do you agree with that or not?  That was what you pleaded guilty to?‑‑‑I plead guilty, it’s true.

   All right.  And two charges of persistently contravening a family violence order?‑‑‑Yes.

   And there was – you were also on bail at the time when you committed at least some of these offences, so you also were charged with contravening a conduct condition of your bail?‑‑‑Yes.

   You remember that and you pleaded guilty to that?‑‑‑Yes.

   There was a further charge of recklessly cause injury?‑‑‑That I can’t remember.

   I beg your pardon.  Sorry, I missed that?‑‑‑I can’t remember.

   You can’t remember that?  And you ‑ ‑ ‑

   HIS HONOUR:   So when you say you can’t remember, could that be right?‑‑‑Yes.  Some of them, I can’t remember.

   MS SEVDALIS:   And there was – lastly, there was another charge of committing an indictable offence whilst on bail?‑‑‑Yes.”

2. I indicated earlier in my judgment that I was concerned about the father’s anger problem. At one stage during the trial I asked him some questions about a head injury as follows:

   “HIS HONOUR:  

   Why is your memory so poor?‑‑‑I had a head injury.

   And acquired a brain injury?  Is it an acquired brain injury?‑‑‑No.

   What was the head injury?‑‑‑Don’t worry about it.

   I beg your pardon?  What did you say to me?‑‑‑I said don’t worry about it.

   Don’t you speak to me like that.  Shoosh.  Sit down (A direction to his solicitor).  What head injury did you have?‑‑‑When I was little.

   What happened?‑‑‑When a trampoline hit on me head.

   Right.  How old were you?‑‑‑Five, six.

   And what happened?  Did you go to hospital?‑‑‑Yes.

   How long were you in hospital?‑‑‑That I don’t know.

   All right.  And tell me did the doctors tell you the nature of the injury?‑‑‑No.

   Did your brain in any way get injured?  It’s an easy enough question?‑‑‑I don’t know.

   Don’t yell at me?‑‑‑Sorry.

   All right?‑‑‑I’m getting angry.  Like ‑ ‑ ‑

   Why are you getting angry?‑‑‑All the questions and that.

   Well, of course you’re going to get questions.  Didn’t you – sit down (A direction to his solicitor).
    Didn’t you expect questions in here?‑‑‑Yes.

   Given your past behaviour?‑‑‑Yes.

   What did you think;  it would be a dream run?‑‑‑No.

   Well, don’t get angry with me, sir, because it will just – I will take notice of that?‑‑‑Yes.

   If you’re getting angry in court, imagine how you’re going to be with children if they play up.  They could provoke you into anger, couldn’t they?‑‑‑Yes.

   Yes was the answer to that question.  Now, with the head injury you don’t know how long you were in hospital?‑‑‑No.

   You don’t know whether you had brain damage, but that affects you?‑‑‑Yes.”

Section 60CC(2) Factors

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.

2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”

3. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage of a child [sic].”

4. It then went on to say that there are three possible interpretations of section 60C(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

5. The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).

6. The prospective approach, which I prefer, was set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)

7. Currently, the children do not have a meaningful relationship with their father. They have not had one for around three years.

8. Given his many problems and that notwithstanding his attempts to correct them, they still are a significant handicap to his parenting. I accept the evidence of Dr P that over time his many problems could fade and in my judgment, it is not possible for there to be a meaningful relationship with the father at this stage given the risk to the welfare of these children.

9. Moreover, I am mindful of sub-section 2A referred to below which requires me to give greater weight to the need to protect children from family violence and abuse which may cause them physical or psychological harm.

10. In my overall assessment of the evidence I am satisfied the father cannot, from time to time, control himself. An example is the assault at court on 2^nd December 2014, and more recently punching the wall in April, 2016. He has a number of serious shortcomings which could give rise to the children being psychologically abused by his behaviour or comments when he is uncontained. I do not believe even supervision could currently prevent that.

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. There is a definition of family violence in section 4AB of the Family Law Act, 1975. When one applies that to these facts it is clear that violence has occurred from time to time between the parties and on the balance of probabilities, at the hands of the father. I also accept the children and their primary carer, the mother, are anxious about seeing the father. Given my comments above, it is clear there are too many risks in ordering any time with the children at this stage.

Parental Responsibility

1. During the running of the trial the father conceded that the mother should have sole parental responsibility.

2. In any event, s61DA(2) of the Family Law Act 1975 is clear. Equal shared parental responsibility on the evidence of this case was not a realistic option.

Conclusion

1. In his report, dated the 10^th of September 2016, Dr P said in his final paragraph… “based on the history obtained, the findings on mental state examination of the father and review of the supplied documents, although there is no imminent or foreseeable risk of violence to the children or the mother in this family law matter, the history of violence, the breaching of the intervention order and criminality suggests that a strong framework and structure around parental communication and access issues would need to be put in place should the father gain supervised access to the children.”

2. The author was cross-examined on day 4 of the trial about his report and the evidence discloses that the father did not provide a complete and accurate history for Dr P, for example he did not tell him that in his anger he punched the hospital wall in April, 2016. Moreover the report’s recommendations detailed in paragraph 82 above have to be read in the light of the expert not interviewing the mother and not seeing the children. In an answer to one of my questions he acknowledged that when he referred to the expression “children” he was not talking specifically about the two children in this case who suffer from ADHD. Further, at paragraph 85 the author says he… “did not comprehensively assess the father’s parenting capacity”.

3. A major issue in this trial, which was not contained in the Associate Professor’s report, was the clear fear and anxiety of the mother and the children’s negative attitude to their father. In my view, time with the children is not an option in this case given the well-detailed fear and anxiety that the mother suffers, amongst other matters. I accept that any time with the children would probably make her anxiety and emotional state worse and have an adverse effect on her role as the primary parent and carer. I am further concerned about the probable effect on the children and in particular the eldest child, X, who said… “I used to feel unsafe with Dad…I felt upset and scared.”

4. Further, I do not believe that even supervised time with the children is an option because of the father’s anger, and his lack of self-control. I am not satisfied he would always act in a caring and loving way in the presence or hearing of these children and I seriously doubt his potential supervisors could even contain him.

5. On the 9^th of November 2016 the father swore an affidavit where he said at paragraph 13:… “I have more recently been to see a specialist in (omitted) to help me with my anger issues, following my partner’s loss of her unborn son in April 2016.” When he was cross-examined about that he in fact said that he was still on the waiting list and has yet to see this specialist to help him with his anger issues.

6. He gave evidence that he has been prescribed medication to control his anger but that on two occasions he did not take his medication being in December 2014 when he assaulted the mother’s boyfriend and in April, 2016 when he punched the wall in the hospital.

7. At one stage during the trial he was cross-examined by Counsel for the Independent Children’s Lawyer about the punching-the-wall incident, when I asked the following questions:

   “HIS HONOUR:   Why did you turn angry?  Why wouldn’t you be sad, upset, distressed, melancholy, all of those other emotions?  Why have you got to turn to anger?‑‑‑Don’t know.

   Because that’s you?‑‑‑Yes.  Just got ‑ ‑ ‑

   And it’s likely ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ a problem. 

   ‑ ‑ ‑ to happen again, isn’t it?  It’s likely to happen again?‑‑‑No.

   If you’re frustrated or angry you become violent.  That’s your history, isn’t it?‑‑‑I’ve got a history, yes.

   Well, the best predicator for the future, sir, is your history.  What do you say about that?‑‑‑Yes.  I’ve got a anger history. 

   And on two occasions your best argument you’ve got is, “I forgot to take the medication.”  You lapsed twice.  On two occasions.  According to your evidence, you lapsed twice;  on two occasions you lashed out.  So if you see these little kiddies will you forget to take your medication?‑‑‑No. 

   Well, how do I know that?‑‑‑You don’t.

   Exactly.  Counsel.

   MS O:   You know that what his Honour is saying is that your own evidence is that if you do forget to take medication you behave in a violent and aggressive manner.  That’s your evidence, isn’t it?‑‑‑When I don’t have me medication, yes.”

8. Dr P said that the medication the father has been prescribed, Epilim, the chemical name of which is sodium valproate, is an anti-epileptic medication which is used to treat mania. The father does not have mania and in his view this medication would do him very little good as his psychiatric condition is not amenable to treatment with that medication. It was put to the expert that the father blames the assault on the mother’s partner and hitting the hospital wall because he had not taken his medication on those days, and was asked whether the father may be shifting blame. On this point, he said that while sodium valproate might mildly sedate him, it would not treat any psychiatric condition, and that the father may in fact be shifting the blame.

9. There are further problems with the father’s proposal:

   a)he swore an affidavit on the 23^rd of July 2014, (over two years before this trial started), indicating that he was on a waiting list to undertake a Men’s Behaviour Change Program. He produced a letter from the (omitted) Community Health Centre detailing he was a participant in a 12 session program but he has only attended 5 of these sessions, the last one being in April 2016. He explained he has not completed it because he “was working…” His improvement in this area is incomplete;

   b)he also said he had completed a Drug and Alcohol Program with a Mr D but produced no documentary evidence nor did he call anyone from that program to satisfy to me that he is unlikely to relapse into drug re-use;

   c)it appears that the Independent Children’s Lawyer made 8 separate requests for the father to undertake drug screens. He said he did not get all the requests but provided 4 screen results. He was requested to do these tests within 24 hours but three were late by 5 days, 12 days and 20 days respectively which gives rise to a real doubt whether these tests are an accurate reflection of his alleged non-use of drugs;

   d)I note that he gave evidence that he used marijuana from the ages of 14 to 18 and that he started using Ice when he was aged 17 years and had become addicted. He also admitted that he has only recently ceased using drugs and he has been drug free since he moved to (omitted) some 18 months ago;

   e)when he was cross-examined by Counsel for the Independent Children’s Lawyer he said that he had undertaken a drug counselling course when he was in gaol but he could not remember what he learned from it. He also said he did a 6-hour parenting program on the 27^th October 2016 (about 3 weeks before the trial), and he was asked what he learned from this and he again said he could not remember; and

   f)Overall, I am not satisfied that we had before the Court a totally rehabilitated former drug user. I am not convinced that he will never return to the use of illegal drugs again. There is a serious lingering risk.

10. The Associate Professor giving evidence said… “his basic problems are his socialisation and his upbringing, and his models of appropriate behaviour. That is the core issue for him and leads to him having a personality disorder, which is a psychiatric condition.” He said that his judgment is impaired but over the passage of time, some 5 to 10 years, life experience and socialisation will cause his problems to remit and fade.

11. I previously referred to the Family Report prepared by Mr G dated the 14^th of October, 2016 and it is my view that his comments in paragraph 90 at page 32 are very accurate and I adopt them. He said as follows:

    “90. One is mindful of the need for children to have a relationship with both parents following the end of a relationship. In cases where there is an element of risk, it is not uncommon for parents to be required to participate in psychiatric assessments, education courses and to undergo random drug screens as is the case here, to reduce such risk. However, if viewed as a whole, there are numerous concerning factors present. If anything, there just seem to be too many contra indicators to Mr Kelsey’s relationship with the children being restored. Furthermore, the measures implemented to safeguard the wellbeing of the children and reduce the level of risk seem of questionable efficacy. In view of the above considerations, this Counsellor favours no orders being made for Mr Kelsey to spend time with the children. However, and once again, this is a matter for the Court.”

12. Overall, in considering all the facts peculiar to this case and the law, it is my judgment that the potential risk to the physical and emotional well-being and happiness of these children outweighs the potential benefit of the children knowing or undertaking a relationship with their father at this stage. If over time, like the 5 to 10 years as advised by Dr P, his many personal handicaps have faded then perhaps the matter could be revisited, but currently it is in the best interests of the children that they do not have a relationship with their father.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 21 March 2017