Lavelle and Hapala

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAVELLE & HAPALA

[2019] FCCA 3572

Catchwords:
FAMILY LAW – PARENTING – Dispute about the father’s time with children aged 14 and 9 – where the mother seeks an order for no time and for communication at her discretion - where the father loudly complains that he is being discriminated against because he is a man and seeks an order for regular unsupervised time - where the father uses methamphetamine, has mental health issues and has been violent – where the children would be at unacceptable risk of harm in his unsupervised care – where an order for indefinite supervised time is not feasible – order for no time supported by the Independent Children’s Lawyer - order made.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 61DA, 65DAC

Applicant:

MS LAVELLE

Respondent:

MR HAPALA

File Number:

NCC 322 of 2018

Judgment of:

Judge Terry

Hearing dates:

5 & 6 November 2019

Date of Last Submission:

6 November 2019

Delivered at:

Newcastle

Delivered on:

6 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

O’Hearn Lawyers

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:	Mrs Kearney
Solicitors for the Independent Children’s Lawyer:	Harpers Legal

ORDERS

The mother shall have sole parental responsibility for X born … 2005 and Y born … 2010 (“the children”).
The children shall live with the mother.
The children shall spend no time with the father.
The children shall have telephone or other electronic communication with the father at the mother’s discretion and the mother is permitted to monitor such communication.
For the protection of the children the father is restrained and an injunction is granted restraining him from:
a)Attending either of the children’s schools;
b)Loitering within 100m of either of the children’s schools within 30 minutes of school commencing and 30 minutes of school concluding;
c)Removing the children from any school, extra-curricular activity or any person in whose care the mother has placed the children.
Each parent shall inform the other parent as soon as practicable of any change to that parent’s residential address and/or contact telephone number.
Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any member of that parent’s family to or in the presence or hearing of the children, or from permitting the children or either of them to remain in the presence or hearing of any other person so doing.
Each parent is restrained from discussing these Court proceedings with the children and from allowing the children to have access to any Court documents relating to these proceedings.
Pursuant to Section 11 of the Australian Passports Act 2005, the mother is permitted to do all acts and things necessary to apply for, renew and maintain Australian passports for the children or either of them without the consent of the Father.
Pursuant to Section 65Y (1) c) of the Family Law Act 1975, the children or either of them are permitted to travel to a place outside Australia, provided that the mother gives the father no less than 28 days’ notice in writing prior to the proposed departure date, with the dates of departure and return, and the destination or destinations which will be visited.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 322 of 2018

MS LAVELLE

Applicant

And

MR HAPALA

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves X, 14 and Y, 9. The mother is the applicant and she seeks orders that the children live with her, that she have sole parental responsibility for them and that they spend no time with the father and have telephone communication with him at the mother’s discretion with the mother permitted to monitor the calls.
She also seeks an s. 68B restraint for the protection of the children and an order allowing overseas travel.
In his response filed in 2018 the father did not seek to disturb the children’s residence but sought an order that they spend time with him. He proposed that it be each alternate weekend from Friday to Sunday and overnight from Wednesday to Thursday in one week each fortnight and an overnight from Monday to Tuesday in the other week.
He also sought an order that school holidays be shared and for time on special days and he sought an order for equal shared parental responsibility.
During submissions this morning the father said that he just wanted to see his kids.
Counsel for the Independent Children’s Lawyer tendered a minute of order at the end of the hearing proposing something very similar to what the mother proposed, that is, no time, communication at the mother’s discretion, an order pursuant to s. 68B and an order permitting overseas travel.

The evidence

The mother relied on her trial affidavit and the affidavit of her partner Ms A.
The father did not comply with the trial directions and file a trial affidavit. However he attended court yesterday.
Technically I could have dismissed his response because he had not filed his trial affidavit and proceeded with an undefended hearing but I am often loathe to do that if a party turns up. If a matter is not properly heard and is swept away with an undefended hearing it often means that it simply comes back another day. When time has been set aside to hear a matter my preference is usually to just do the best I can with what I have got.
In this case I had an affidavit the father had filed in 2018 and he was permitted to rely on that and we got on with the trial. Counsel for the mother and Counsel for the Independent Children’s Lawyer’s counsel were content for that to happen.
A Family Report was prepared by Dr B, a Regulation 7 family consultant.
The mother, the father and Dr B were cross-examined. Ms A was called into the witness box but neither the father nor Counsel for the Independent Children’s Lawyer wished to ask her any questions.
The father’s behaviour in the witness box was gravely concerning. He was physically restless and alternately threw his arms out across the witness box or hunched forward. He was extremely rude to the mother’s counsel, telling him to “Wake up to yourself, mate,” and calling him a clown. He frequently muttered things under his breath such as “Fuck you” and “This is all rubbish.”
I remonstrated with the father several times about his behaviour and warned him that it wasn’t helping his case but this had no effect and I eventually asked the mother’s Counsel to cease cross-examining him because his offensive, confrontational behaviour could not be curbed and there is a limit to what the court and all the other people in the courtroom should have to put up with.
The father has a history of methamphetamine use and he tested positive for methamphetamine in a hair test done on 4 October 2019. His presentation and demeanour yesterday was such that he was asked several times whether he had taken anything. He repeatedly denied that he had.
The mother, who was the other main witness in the case, was a calm and responsive witness and perhaps most tellingly notwithstanding what has happened over the years she displayed no antipathy toward the father.

Background

The parties are 40 and 38. They have two children, X born on … 2005 and Y born on … 2010.
The parties separated in November 2014 when the children were nine and four. The children remained with the mother and they spent time with the father and it is to the mother’s great credit that they did so.
The mother re-partnered shortly after separation. She formed a same-sex relationship and the father showed no restraint in showering her with repeated offensive comments about this. He also engaged in other behaviour toward her such as harassing her with repeated text messages in which he called her a variety of names which at one stage resulted in a provisional ADVO being issued for her protection.
This behaviour continued for years. There are examples of it in 2016 and 2017. The nicest of the comments the father made was that the mother was one of many vindictive mothers but he also called her a man-hating lesbian, a fat cunt and the dumbest thing on Earth among other things.
The mother said that the father was at times polite and calm and easier to deal with but at other times the abusive name-calling continued. She did not however seek to stop him spending time with the children.
She did stop making the children available after an incident on 14 January 2018. She received a call from the father asking her to pick the children up because there had been an incident in the home with his partner Ms F and the police were there. She arrived at the home to find the police were indeed there, Ms F was sobbing in the bedroom, the father was distressed and the children were very distressed and she took the children away.
Toward the end of January 2018 the father spent about a week in a mental health unit because there were serious concerns about his mental health and whether he might harm himself.
Up to that point the parents had remained out of the court system but on 6 February 2018 the mother filed an application seeking parenting orders. The orders she sought were that she have sole parental responsibility, that the children live with her and that the father spend time with the children each alternate weekend from Friday to Monday upon the production of clean urinalysis screens.
Later in February 2018 the father was charged with a number of offences arising out of the incident on 14 January 2018.
On 18 March 2018 interim orders were made for the father to spend time with the children each Sunday from 10.00am to 1.00pm supervised by the paternal grandfather Mr C. The father, the mother and Ms A were ordered to do a drug test and a child-inclusive child dispute conference was also ordered.
The father’s response to those orders being made was to post an offensive derogatory post on Facebook. It said as follows (spelling as in the original):
21Fathers
I used to read stories about times have changed in family court. But how fukin wrong was I. If u r a father going to court over your kids, be prepared for the greatest injustice ever known to life. Fukin perfetic bias disrespectful piece of shit judges don’t care about anything a man says. Couldn’t care 1 bit. I used to love this country but now I think it has become the lowest country on earth. Fuck I hate being alive in this fukin putrid legalistic nation. Family[1]
[1] Mother’s trial affidavit annexure H
No consequences flowed from that. The mother complied with the order about the children spending time with the father supervised by the paternal grandfather. She said that some visits were missed due to the father’s unavailability. The father disagreed that visits had been missed. I am not going to attempt to determine where the truth lies about that because it really does not matter in terms of the overall outcome.
In any event the father had some visits pursuant to the order but he failed to attend the Child-inclusive Child Dispute Conference on 11 May 2018 and only the mother and children were interviewed.
Not only did the father fail to attend that child dispute conference, he also failed to attend court on the next mention date and as a result the orders for him to spend time with the children were suspended.
Subsequently the father did attend court and on 28 June 2018 orders were made for him to spend time with the children at D Children's Contact Centre. He was also ordered to do some drug tests and a family report was ordered.
The time at D Contact subsequently commenced.
Following the release of the Family Report orders were made by consent for the father to enrol in a Circle of Security course and either a Facing Up or Taking Responsibility course and the matter was listed for trial in November 2019.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
There are quite a few additional considerations and as I often do in these judgments I am going to start with those because the findings I make about them will inform my findings about the primary considerations.
However while I am going to start with the additional considerations I am not going to deal with them all sequentially because a number of them do not assist me to determine this matter.
I am not going to deal with the issue of financial support of the children. There are arrears of child support according to the mother but that issue was not explored at trial and it was not relied on in anybody’s submissions as a reason why the court should make any particular order.
I am not going to consider the extent to which each parent has taken or failed to take the opportunity to spend time with the children, communicate with them or make decisions about them. That is not going to help me.
I am not going to consider practical difficulty and expense because it is not an issue in this case.
I am not going to consider the children’s maturity, sex and background.
The parents’ attitude to the children and the responsibilities of parenthood will emerge from other findings I make and looking at that as a separate consideration will not help me.
I must consider whether there are any family violence orders and the inferences that can be drawn from the orders. A provisional ADVO was made for the mother’s protection some time ago. She did not pursue it and it didn’t go anywhere.
I assume that a family violence order would be in place for the protection of Ms F, the father’s former partner, due to his convictions. However the most important thing in relation to either of those orders is what happened to cause them to be made.
I will consider the likely effect of any change in the children’s circumstances as part of the conclusion to the judgment.
The other thing that I am not going to do is make specific findings about the mother when dealing with the remaining considerations.
On any view the children have a close and secure relationship with her. She has very properly attended to their medical needs in the past, including X’s sensory processing issue and Y’s wetting issue.
The children are happy and content living with her and her partner. She is providing them with excellent day-to-day parenting. She has no parenting capacity issues. She has no mental health issues. She used drugs with the father but that was something like 14 years ago and there are no current drug use issues for the mother so considering the remaining relevant issues in relation to the mother will not help me.
The issue in the case is the father’s time with the children and the findings I will make about the remaining additional considerations are going to be relevant to that issue and are going to relate to the father.
The first additional consideration that is relevant is the views of the children and the weight to be given to their views.
There is abundant evidence about the children’s views.
They were interviewed by a family consultant at the Child Inclusive Child Dispute Conference in May 2018 and family consultant included some information about what they said in the Memorandum she produced. She was not the subject of cross-examination but the father could not have challenged what is in the Child Inclusive Memorandum anyway because he did not attend and the mother obviously did not have an issue with what was reported.
The family consultant summarised the children’s concerns rather than setting them out separately and verbatim but I am satisfied that it is an accurate summary given the other evidence in the case.
The family consultant said that it was clear that the children were each experiencing a degree of concern about the father’s welfare and their own welfare with the father. They were somewhat hesitant to speak to the family consultant. One of the children said that the father had told them that he would kill himself if he did not see them and they were both concerned that the father would be sad or angry if they spoke about certain issues.
Neither of the children indicated that they did not want to see the father and ultimately orders were made for them to spend supervised time with him at D Contact.
The next information we have about the children’s views is the family report. The family report writer said this:
X reported that he likes the current arrangement where he lives with his mother and has supervised time with his father and he would not like this to change. He stated that if the judge decides that they are to have time with their father unsupervised, then X will go so that he can protect Y. X stated in a serious manner that he is very protective of Y.[2]
[2] Family Report paragraph 75
There is a bit of an age difference between the brothers although they are obviously close brothers and Y’s views were a bit different. He said that he enjoyed spending time with the father at the supervision centre. He also said that he would like to go back to having time with his father at the father’s home because it would be more fun. He said that he could remember having fun with the father at his home and he talked about the father owning lizards and a dog and his enjoyment with this.
The views of the children were different and there was no sign that they had been influenced by their mother.
That report was prepared earlier this year and the Independent Children’s Lawyer saw the children prior to trial and I had tendered to me a document headed “Position Statement” which was drafted as an aide memoire.
It is permissible for the Independent Children’s Lawyer to put forward information about children’s views at a trial and I received this document.
The Independent Children's Lawyer obviously spoke to the children at some length and at paragraph 13 of that document she said this:
When I posed the possibility of the father spending time with them without a supervisor they were both animated and stated they wouldn’t want that. They stated “We don’t feel safe.” When I asked why they referred to drugs and stuff.
She reported that X was stricter in his general view. He said that he:
Would not want to spend time alone with Dad unless Dad had been off drugs for, say, a year or so.
She also said at paragraph 17:
They repeated that as long as someone is there to make sure we’re safe, then contact would be okay.
The Independent Children’s Lawyer also noted that a review of the supervised contact notes indicated the children had got on well with the father at the visits and that there had been positive interaction so their response is understandable.
Interestingly when the father was asked about the children during cross-examination he made some comments that ran a little bit counter to that but I will discuss that in the next section of the judgment.
The next matter I have to consider is the nature of the relationship between the children and each of their parents.
The D Contact records indicate that in a supervised setting the children relate well to the father.
At the observation session at the family report interviews, which was also in effect supervised, the children related reasonably well to the father. The report writer said as follows:
The children were observed interacting with the mother and the father. It is noted that these observations occurred individually however were very similar. The father entered the room where the children were already waiting and he greeted them warmly and they all participated in cuddles and kisses. It is noted that despite X indicating his reluctance to engage with the father, during the observation he sat close to the father on the lounge and chatted with him spontaneously and consistently. There was a lot of laughter and the interaction appeared very natural and spontaneous. Y sat on the floor and played while X sat on the lounge next to the father. The interaction was age appropriate and child focussed and the father was able to appropriately divide his attention between the two boys, he maintained their interest and responded to their attempts to communicate. There was nothing of concern noted and it appeared to reflect a loving and well-developed relationship.[3]
[3] Family Report paragraph 103

However the children’s relationship the father is complex.
There is absolutely no doubt, and it emerges in the family report and in the Child Inclusive Memorandum, that the children have felt pressured in the past because the father has made them aware that his health and safety depends on them. They told the family consultant that the father had threatened to kill himself if he did not see them. The father admitted in the witness box that he had told the children that the only reason he was still around was because of them.
From some of the father’s answers during cross-examination he perceives some issues with the relationships.
In relation to X he said this:
Deep down, I know he won’t see me at all. He’ll be so fake about it. Y would want to see me but would follow X.
He then said:
X started hating me because I made him play Aussie Rules, a team sport.
It might be that if I ordered supervised time the children would go at the moment but whether they would continue to go for a long time into the future is something I cannot be sure of. X is getting older. The mother’s evidence, which she was not challenged about, was that X had said to her that if he did not see the father that would be okay with him.
The next relevant issue is parenting capacity.
The father’s parenting capacity is impacted on by his behaviour and whether that behaviour arises out of drug use, mental health or personality issues I cannot say and I am going to have to examine each of those issues in turn.
To use a phrase that report writers sometimes like to use the father has a history of polysubstance abuse dating back to a very long time.
He and the mother used drugs together at an early stage in their relationship. Of greater concern in relation to the father is that he has been using methamphetamine for several years.
He was successful in hiding this from others for a long time. He hid it from the mother. He hid it from Ms F and the subpoena material in relation to his admission to a mental health unit in January 2018 indicates that he became extremely upset when he felt that the hospital might tell Ms F that he had been using methamphetamine. He was worried that if she heard that it would be the end of any chance of a relationship with her.
He successfully hid his methamphetamine use from everyone but he admitted to the hospital in January 2018 that he had been using ice for several years. He said that his last use was on 21 January 2018 and that he had used ice 3-4 times a week for the last three years.[4]
[4] Tender Bundle pages 50, 52
The father made admissions about his drug use to the family report writer in February 2019. She said as follows:
The father reported that after the parents separated, he commenced using ice, and that goes back to 2014. He stated that he was having trouble waking up in the morning and ice assisted him to manage this. He stated that he initially used the drug daily for six months. He said that he then ceased using it for about a year and then relapsed. He stated that he once more commenced using it daily, and this continued until December 2017. The father noted that he had never consumed the drug in front of the children. However, he conceded that he was always under the influence of the drug when they were in his care.
The father denied that his drug use had a negative impact on his parenting, in fact he said he thought it was helpful because it kept him active and alert. His drug use was not detected by anyone; not by the mother and nor apparently by Ms F. However people detected issues with his mood and aggression; it is just that nobody joined the dots.
The father denied in cross-examination that when he was using methamphetamine he became aggressive. When the mother’s counsel put that to him he said that in fact it calmed him down. However he agreed that it led to him having difficulty regulating his emotions and that feeds into something X said to the family report writer.
The family report writer said as follows:
X reflected on his relationship with his father and he indicated that this was a difficult relationship. He noted that he does love his father however does not feel confident that his father can look after him and his brother. He stated that sometimes his father will yell and swear at Y and X tries to protect Y from this. X stated that he would prefer not to have ongoing time with his father. He stated that his father is too unpredictable noting that sometimes he is nice and friendly and other times very aggressive. X noted that he does not always feel safe. X reflected on the incident that occurred in January 2018 and noted that it was very scary and not at all fun.[5]
[5] Family Report paragraph 94
Others had clearly noticed issues over the years with the father’s behaviour. The mother said in her affidavit that there were times when the father was extremely verbally abusive in texts and other times when he was calm and easy to deal with. The father’s behaviour was probably affected by his drug use but nobody drew the conclusion that he was using ice.
The father told the family report writer that he had not used ice since December 2017 and he did a number of screens during 2018 which were negative for illicit drug use.
No drug tests were done in early 2019 but he was asked to do one not long before the trial and on 4 October 2019 he did a hair test and it was positive for methamphetamine.
When he was asked about this in the witness box the father said that he took methamphetamine on a one-off occasion due to being depressed on Father’s Day. That does not wash with me because the father was using ice regularly when he was seeing the children. However he said he only took it once. I cannot place any weight on that either.
There is evidence in the subpoena material about the father admitting in July 2019 that he had an ongoing craving for ice. He obviously gave into that craving at some point prior to 4 October 2019 and tested positive for ice in the hair test.
There is a considerable risk that the father will use ice again in the future. Given his history it is impossible to say that drug use is behind him.
The family report writer set out in considerable detail in her report her opinion about the effect on the father’s parenting capacity of him using drugs. She has prepared many reports for this court. She indicated in cross-examination that she had done some drug and alcohol counselling and I place weight on her opinion. She said as follows:
Parental substance misuse has substantial and significant impact on children’s wellbeing and development. While there are specific risks to children when their parents are engaging in substance use, such as potential physical harm due to lack of supervision, and exposure to illicit substances and related implement, the more pervasive impact on children’s development is the emotional and physical neglect they are likely to experience due to their caregivers lack of focus on meeting their basic developmental needs.
Specifically, the pattern of substance misuse will have compromised the father’s ability to be emotionally and physically available due to the effect of the various substances and any withdrawal from such substances. In particular, the cycle involved with chronic substance misuse creates uncertainty and anxiety in children as to whether, and how, their emotional needs will be met. For example, the father may be loving and affectionate at one time and hostile, rejecting and angry the next. Children living with parents who are experiencing substance misuse problems experience inconsistent, unpredictable and chaotic care.
X clearly articulated his experiences of this when reflecting on his relationship with his father. He stated that it was a difficult relationship, noting that he does love his father however does not feel confident that his father can look after him and his brother. He stated that his father is too unpredictable, noting that sometimes he is nice and friendly and other times very aggressive. X noted that he does not always feel safe.[6]
[6] Family Report paragraphs 121 to 123
The family report writer noted that the father was very proud of the fact that he had been drug free since December 2017[7] and told her he had no intention of returning to drug use. She said this though:
The family consultant is hopeful that this is accurate, however, the father has a long history of use and he is particularly skilled at hiding it from those around him. And so it is unclear how successful the father will be in his long term abstinence. It is also unclear how to protect the children from any relapse given that it is unlikely the mother will be able to accurately identify this.
[7] The reference to December 2018 must be a typo given other information in the report
The father was proud of his abstinence and the family report writer was hopeful but not necessarily optimistic. Sadly the father has now tested positive for methamphetamine again and I cannot place weight on his assertion that it was a one-off use. He is not undergoing any drug and alcohol counselling and there is an unacceptable risk that he will use methamphetamine again in the future.
The family report writer reiterated in cross-examination this morning how difficult it would be for the mother, and indeed the children to be aware of whether the father had resumed using drugs.
Whether all of the issues with father’s behaviour and the problems in his life are due to the use of methamphetamine I cannot determine because the father also has long term mental health issues.
He said that he had depression. The documents in the subpoena bundle suggest there was some quite serious concerns about him in March 2014 and also later in that year. He was expressing suicide ideation. He accepted treatment and some time passed when there were no overt problems but after the incident with his girlfriend in January 2018 he was admitted to a mental health unit for a week again expressing suicide ideation.
The notes in the tender bundle suggest that problems with his mental health continued into 2019. There is a note in the Corrective Services records from 9 January 2019 to the effect that offender stated that he had a terrible Christmas due to estrangement from his parents (he had a falling out with his parents over the fact that they have chosen to see the children when he has not been able to) and due to having only two hours per fortnight supervised contact with his children.
It was noted that he had stated that recently he was driving to work and he wanted to drive off a cliff. Instead he rang his GP and his Effexor medication was increased and he was referred to a psychologist.
A letter dated 6 March 2019 from the father’s his GP indicates that he was currently engaged in focused psychotherapy with his clinical psychologist Ms E, so he did seek some help after the incident in January 2019. There is also a letter from the psychologist from January 2019 indicating that she was seeing him.
The father recognises that he has mental health issues and he does seem to seek assistance when he is feeling like killing himself. He did that in 2014. In 2018 he was taken to hospital by a friend but in 2019 he recognised the problem and went in himself. However whether the father is going to be able to effectively deal with his mental health issues if he is continuing to take drugs has to be seriously open to question.
The father’s mental health issues have an implication for the children as well because he has told the children that they are the only reason he is still here.
Whether the father is currently in a good state of mental health I do not know. I am concerned about his behaviour in court and about some threats that he made shortly before the hearing was due to commence.
He was asked about those threats during cross-examination. They are contained in notes in the D Contact Centre records dated 14 September 2019. While laughing the father admitted that the following had occurred:
While in the last stage of the parenting group spend time with father made reference to his upcoming court date and said if he did not get what he wanted then he was going to jump the desk and get the judge. Spend time with parent made reference that the jug of water would go first and then himself. Spend time with parent stated that he could not go out the window has had already checked that out and it was not an option. Spend time with parent informed the group that he had already informed his parole officer and they stated, “I will just pretend I did not hear that and all the best with your court case.”
The father’s behaviour in court and in the witness box was entirely counterproductive to him succeeding with his case. In September 2019 he made threats about what he was going to do if he was unsuccessful. He made an oblique threat to the court yesterday when he mentioned the organisation #21fathers. The 21 comes from the suggestion that 21 fathers commit suicide every week because of not being able to see their children.
I am concerned that the father may as we sit here have some serious mental health issues, because one has to ask why anyone would behave in such a counterproductive way if they wanted to see their children.
Whether the father’s behaviour is due to mental health issues or drug use or a combination of both I cannot say but wherever it is coming from it is exceptionally concerning.
The next issue with the father is violence.
On 1 February 2014 the father had an altercation with police at a concert and he was charged with intimidating a police officer in the execution of his duty, using offensive language, assault police (several counts) and assault police to resist/prevent apprehension.
The father pleaded guilty and the Facts Sheet states that the police were patrolling at a rock concert when the father ran toward one of the police officers. When asked what he was doing he yelled out variations of “You fucken psycho bitch” and other things.
Police took hold of him to escort him away from the crowd and he began thrashing around and punched one of the officers in the face causing her glasses to fly off and causing her right cheek to become red and swollen. Police struggled to restrain and handcuff him. He was transported to the police station where the police were unable to speak to him because of his level of intoxication. When in custody he started to bash his head on the Perspex glass and was verbally abusive.[8]
[8] Exhibit C Tender bundle paragraph 81-83
In the witness box the father maintained that all he did was accidently flick a police officer leading to a group of police officers converging on him and him then resisting. This is completely inconsistent with the facts to which he pleaded guilty and during cross-examination he conceded that he probably yelled such things to the police as “fuck off you bitch, you psycho bitch.”
On 14 January 2018 there was the incident with Ms F. The father’s evidence was that all he did was mutter under his breath that he would kill her. I do not accept that.
The police report states that after waking up angry at about 11.00am the father complained that there was no milk and began throwing objects, slamming kitchen cupboard doors and punching the bench top. He called Ms F a cunt, slut, fucking bitch and dog and kept up the abuse for three hours.
At about 2.00pm he began to make a motion as if to punch Ms F and said that he had never wanted to hit a woman as much as he wanted to hit her. Ms F got into the car and the father got into the car as well and began demanding money. Ms F drove to an ATM and withdrew some. He verbally abused her on the way home and continued to do so when they got into the house and Ms F barricaded herself in a bedroom and the father attempted to force his way into the bedroom while yelling “I am going to kill you.”
Ms F texted her sister who called the police. Police entered the house and could hear Ms F crying hysterically in the bedroom.
There are little windows in to suggest that the description in the police report is accurate. There is the mother’s evidence about what she observed when she got there. There is what X has said about what happened and about people yelling and about the fact that people had been yelling all day, which is consistent with what is in the police report.
The father was convicted after a trial of a number of offences arising out of that incident and I do not accept his denials, insofar as they were denials because that is not clear from the cross-examination either, that what occurred is not what was described in the police report.
I am satisfied that it was a much more serious incident which involved doors being slammed, the father yelling and making threats over a very extended period of time, Ms F becoming extremely frightened, the police being called and the police arriving and finding Ms F barricaded in her bedroom crying hysterically.
On the day of the incident the police took out a provisional ADVO for Ms F’s protection.[9] She did not initially wish to provide information to allow the police to charge the father but after 14 January 2018 he relentlessly attempted to contact her and on 15 February 2018 she made a statement and the father was charged with using a carriage service to menace and harass, common assault (dv), contravene an AVO (Domestic) and Stalk Intimidate.
[9] Tender Bundle page 69
The charges went to hearing and he was convicted after evidence was taken.
The children were present during the incident. In the witness box the father initially refused to concede that but the police report clearly states that they were, they have said that they were and the mother found them at the house when she went around.
It was extremely upsetting for the children to be exposed to that and it has no doubt led to a situation where they are saying they do not feel safe with the father.
The risk of the father behaving in that way again in the future cannot be discounted given that he is continuing to use methamphetamine and is continuing to struggle with his mental health.
The father lacks the capacity to keep the children safe and he also lacks the capacity to provide for their emotional needs; arising out of his mental health issues they have been made aware that he depends on them to keep him alive.
The father’s behaviour to the police and to Ms F are not the only examples of him behaving aggressively. His behaviour in calling the mother abusive names and subjecting her to repeated derogatory taunts was also family violence. The mother said in her affidavit that the father had messaged her relentlessly and at one time a provisional ADVO was made for her protection.
I have now covered the issue not only of parenting capacity, because being able to keep children safe is an aspect of parenting capacity, but also family violence.
It is clear from the father’s comment just now that “This is bullshit” that the father does not accept the reality of his behaviour.
The next relevant additional consideration is whether it is preferable to make the order least likely to lead to further proceedings.
An order for no time is that order. I cannot be satisfied that the father has ceased drug use or that his mental health is under control and I cannot be satisfied that the children will not be at risk of harm at his care. I could not do anything other than make an order for supervised time and as the Family Report writer pointed out an order for indefinite supervised time is very problematic.
Often people cannot afford the service for any length of time; subsidised services become unavailable; children can get sick of it, and in particular X may given some of the things he has said. A breakdown in a supervised time order is something which over the years has resulted in matters coming back before me.
An order for no time is the order least likely to lead to further proceedings and I will have to consider whether it is preferable to make that order.
The primary considerations are the importance to children of having a meaningful relationship with both of their parents and the need to protect the children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.

Children benefit from having a meaningful relationship with both of their parents. I have said this over and over again. Parents are different. Children inherit things from both of their parents. They inherit things that they like to do, they inherit aptitudes, they inherit eye colour and sometimes they inherit the way they walk. Parents have different views and life experiences and children benefit from exposure to those views and experiences. It is always unfortunate if the Court faces the prospect of not being able to make an order for children to spend time with both of their parents.
However pursuant to s. 60CC (2A) I must treat the need to protect the children from harm as more important than the need for the children to have a meaningful relationship with both of their parents.
Counsel for the Independent Children's Lawyer submitted that the children would be at unacceptable risk of harm in the father’s unsupervised care and I agree with that submission.
There are times when the father gets on well with the children and that makes it all the more sad that there are times when he exposes them to harm.
They were exposed to the incident with Ms F. The father has had a subsequent relationship with a lady called Ms G. He mentioned that in the witness box and it is also apparent from the subpoena material and there is always a risk if someone has behaved like that in one relationship, and in fact the father has behaved like it with two prior partners in different ways, they are going to do that again and then children are likely to be exposed to family violence.
There is a risk of them suffering psychological harm as a result because it is extremely distressing for children to be exposed to family violence. They can also inadvertently suffer physical harm.
I am satisfied that the children would be at unacceptable risk of harm if they spent unsupervised time with the father due to his drug use and mental health issues. His recent drug test result and his presentation at trial means that I cannot exclude the possibility that he is still using drugs and is suffering from some serious mental health issues.
Sometimes people have drug problems and psychiatric problems but they deal with them and they are able to move past them and the Court can come to a conclusion that children will be safe in their care. However the father has not been able to deal with those problems in the last few years and I cannot comfortably find that there is any sign that he is going to be able to deal with them in the future.
The father makes minimal admissions about any wrongdoing which is never a good sign. It is never a good starting point to make change if you do not accept that you have done anything wrong.
The other problem is that he has been given opportunities in the last couple of years to attend courses and obtain assistance in relation to his behaviour and for the most part he has not been able to properly engage in programs.
After the convictions in relation to Ms F, the father was placed on a supervisory program with Community Corrections and asked to do an EQUIPS Domestic Abuse Program (DAP) to assist him to accept the fact that he committed acts of family violence, reflect on the impact on others of his behaviour and learn how to avoid getting himself into those situations in the future.
The father did eventually complete that program but Community Corrections struggled for some time to get him to productively engage in it and at one point they breached him because he wasn’t properly engaging in the course. On 12 March 2019 the following appears in the Community Corrections records:
Mr Hapala was formally directed in writing to undertake and complete the EQUIPS domestic abuse program on 9 January 2019. While Mr Hapala commenced the program on 3 February, his behaviour during a subsequent session on 3 February resulted in the need to withdraw the offender from the program. Program facilitators noted Mr Hapala exhibited aggressive attitudes, attempted to derail the group, contributed with derogatory and sexually inappropriate comments and his verbally abusive manner resulted in the program management seeking advice from New South Wales in order to manage the incident.
At a later time the father did complete the course and there are some positive comments about him later on in the Community Corrections records. There is a note on 18 June 2019 for example about how he discussed the DAP program and said he had learnt a lot about himself and how to manage situations in the future. This is the interview when he describes struggling with a craving for ice and the note says that during the interview the father switched from being tense and argumentative to being calm and cooperative.
There is also a note made on 18 July 2019 which indicates that the father on some occasions showed some ability to engage with the program.
Regrettably his willingness to cooperate with programs seeking to make changes in his behaviour seems to have faded away and disappeared. Earlier this year an order was made by consent that the father enrol in a Circle of Security course. He has done one session of that course and when he was asked in the witness box what he had learnt from it he said he had learned that:
Men are shit and that they’re all wife bashers.
The father has not enrolled in the Taking Responsibility course or alternatively the Facing Up course which he also agreed by consent to enrol in and in September 2019 he made threats about what he was going to do if he did not get the orders he was seeking.
I cannot have the smallest faith that the father is able to reflect on his behaviour and the impact of others of his behaviour and that therefore the risk of these children being exposed to family violence has passed.
Because of the father’s drug use there is also the risk of the children being subjected to exactly the same up and down behaviour they have been subjected to in the past and that X has complained about.
There is ample foundation for the submission by the Independent Children's Lawyer’s Counsel that the children would be at unacceptable risk of harm if they spent unsupervised time with the father.

Parental Responsibility

Pursuant to s. 61DA of the Family Law Act there is a presumption that the parents should have equal shared parental responsibility absent a finding that one of them has engaged in family violence (that is to each other) or abuse of the children.
The father perpetrated family violence by subjecting the mother to repeated derogatory taunts which is evident in the emails and which is one example of family violence in s. 4AB of the Family Law Act and the presumption is rebutted.
Even if it wasn’t given the father’s behaviour in Court and his behaviour to the mother on and off over the years I could not expect the mother to contact him and attempt to have a discussion with him and try to come to a joint decision with him about a major long-term issue concerning the children.
That is what she would be required to do by s. 65DAC of the Family Law Act if I made the order. There is a considerable risk that this would lead to her being subjected to more abuse and considerable risk that the parties would not be able to reach agreement.
It might be that not too many major long-term issues will arise in the future. The children’s schools are chosen and X’s medical issues seem to be under control. However something may have to be decided Y’s wetting issue and there could be other issues I cannot even foresee. Decisions may well have to be made about the children in the future.
An order for equal shared parental responsibility cannot be made and I intend to make an order that the mother have sole parental responsibility for the children.
I also note that the family report writer said this
The father lacks empathy for the mother and children in many ways and appears to be quite emotionally vulnerable. He has demonstrated that many of his decisions are made in response to his own emotional needs rather than those of the children. He has also demonstrated poor ability to communicate effectively, and a tendency to become abusive, aggressive, and manipulative and controlling when experiencing conflict. The father is currently unable to accept this and so it is unlikely that he will develop the skills to alter this communication style. It is therefore unlikely that the parents will be able to effectively co-parent and negotiate their differences in the future. It is therefore considered in the children’s best interest if they live with the mother and the mother retains sole parental responsibility. [10]
[10] Family Report paragraph 132
The reasons the family report writer gives for recommending that the mother have sole parental responsibility are amply underpinned by the evidence before me.

Conclusion

I could not possibly make an order for unsupervised time at present.
The Family Report Writer envisaged the possibility of that and said as follows:
If the court is satisfied that the father is drug-free, that he has the capacity to maintain this and that he is appropriately managing his mental health, then it is suggested that the children have time with the father, however, that that time is limited to adequately protect the children from the father’s limited parenting capacity. It is suggested that the court consider a Saturday on alternate weekends and an afternoon during the other week. It is suggested that this time may be increased at the mother’s discretion, if and when she forms the view that the children are adequately protected while in his care.[11]
[11] Family Report paragraph 135
The reason the family report writer came to that conclusion was because a couple of paragraphs earlier she noted that:
…it was likely the children would be disappointed in they were to have no time with the father, and also because despite his limitations, in a conflict-free environment he was able to remain child focussed, warm and caring with the children during his time with them.[12]
[12] Family Report paragraph 133
However the recommendation about unsupervised time was conditioned on the father being drug-free and on his mental health being properly managed and shortly before the trial the father tested positive test for methamphetamine. He is not drug free and given his history of methamphetamine use I could not possibly be satisfied that there is some point in the future where that was likely to happen. Perhaps it will but I cannot see it at the moment.
The conditions under which the family report writer felt that it might be appropriate to make an order for unsupervised time do not exist and I could not make that order. I could only consider making an order for a professionally supervised time but as the family report writer pointed out there are practical issues with that.
This is not the case where I could make an order for time to be supervised by family members even if there was someone available but there isn’t; the father has had a falling out with his parents.
A long-term order for supervised time is often unsatisfactory. It is costly to pay for. It can fall away because the service closes and I have had that happen. It can fall away because children get sick of it and refuse to go. It can become very burdensome for children because there is a limit to what they can do in the supervised setting.
The other issue is that the father’s views about X’s attitude to it may actually be insightful although he has not demonstrated much insight anywhere else and X is now 14.
Supervised time is not usually ordered in the long term unless there is a real possibility that time might eventually become unsupervised and I cannot say that is likely to happen in this case.
It is sad for the children if they cannot have a relationship with the father but the only appropriate order in this case is the order that the Independent Children’s Lawyer has proposed.
I want however to stress something to the father although it is probably going to go in one ear and out the other.
This is not about the father being a man and the mother being a woman. The father needs to disabuse himself of that idea.
The mother cooperated in the children spending time with him for nearly four years after separation despite his intermittent abuse of her. She took action only after the incident with Ms F and even then she did not propose no time. Unfortunately since the mother started these proceedings it has all been downhill for the father and the mother has finally reached the point where she is proposing no time because the children’s health and safety have to be prioritised over any other consideration.
I asked the father when he was in the witness box if what he wanted for his sons, the sons who I am sure he does love, was for them to be methamphetamine users, to be charged with assaulting their girlfriends, to be admitted to a mental health unit and to be sitting in court risking losing time with their children because they were mouthing off in court. He didn’t answer me but that is what he needs to reflect on because at present that is the person he is modelling for his sons.
The father can threaten violence to me and to others and he can blame everyone but himself for what is happening but he is the only person to blame for the current situation and he should reflect on that.
He should also reflect on this: given the history of what the mother has done to ensure that he spent time with his sons, if he can ever dig himself out of the hole he is in, in my view the mother would facilitate him spending time with these boys. But I cannot make an order for it.

I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 9 December 2019

[2019] FCCA 3572

6 November 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies

Standing

Judicial Review