Lawrence and Abel
[2013] FMCAfam 73
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRENCE & ABEL | [2013] FMCAfam 73 |
| FAMILY LAW – Children – family violence – breaches of Intervention Orders – imprisonment of father – whether it is in children’s best interests to spend time with father – parental responsibility. |
| Evidence Act 1995 (Cth) s.128 Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Sch.1, Pt 2 Federal Magistrates Act 1999 (Cth) Pt 6, Div 5 Sentencing Act 1991 (Vic) s.27 |
| Aldridge & Keaton (2009) FLC 93-421 Blanch v Blanch and Crawford (1999) FLC 92-837 KB & TC (2005) FLC 93-224 Carpenter and Lunn (2008) FLC 93-382 Champness & Hanson (2009) FLC 93-407 Chappell and Chappell (2008) FLC 93-377 Godfrey & Sanders [2007] FamCA 102 Mazorski and Albright (2007) 37 Fam LR 518 Mills & Watson [2008] FMCAfam 2 Mulvaney & Lane (2009) FLC 93-404 Patsalou and Patsalou (1995) FLC 92-580 |
| Applicant: | MR LAWRENCE |
| Respondent: | MS ABEL |
| File Number: | MLC 9595 of 2010 |
| Judgment of: | Roberts FM |
| Hearing dates: | 6, 7 & 8 June and 27 & 28 August 2012 |
| Date of Last Submission: | 28 August 2012 |
| Delivered at: | Launceston |
| Delivered on: | 1 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Kennedy Guy |
| Counsel for the Respondent: | Ms Dunlop |
| Solicitors for the Respondent: | Trapski Family Law |
| Counsel for the Independent Child’s Lawyer: | Ms Glaister |
| Solicitors for the Independent Child’s Lawyer: | Septimus Jones & Lee |
ORDERS
That all previous parenting orders in relation to [X] born [in] 2004 and [Y] born [in] 2007 (“the children”) are discharged.
That MS ABEL (“the mother”) have sole parental responsibility for the children.
That MR LAWRENCE (“the father”) is hereby restrained from:
(a)spending any time or having any communication with the children;
(b)contacting the mother or the children by any means whatsoever; or
(c)attempting to locate any of them.
IT IS NOTED that publication of this judgment under the pseudonym Lawrence & Abel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
MLC 9595 of 2010
| MR LAWRENCE |
Applicant
And
| MS ABEL |
Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is MR LAWRENCE (“the father”) and the respondent is MS ABEL (“the mother”). The dispute between them is essentially about whether the father should be permitted to spend time with the parties’ children, [X] born [in] 2004 and [Y] born [in] 2007 (“the children”) and, if so, on what terms.
The proceedings were started in October 2010 when the father filed an Initiating Application seeking final orders:
·That the parties have equal shared parental responsibility for the children;
·That the children live with the mother; and
·That he spend time with the children “at such times as the Court deems appropriate”.
The mother filed a Response in November 2010 seeking orders;
·That she have sole parental responsibility for the children;
·That the children live her; and
·That the father’s time with the children be reserved.
At the hearing the father was seeking orders for his time to be supervised and the mother was still opposed to him having any time with the children.
Terminology
In a 2008 decision,[1] FM Walters (as he then was) said:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] Mills & Watson [2008] FMCAfam 2
In both Carpenter and Lunn [2] and Chappell and Chappell [3] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[2] Carpenter and Lunn (2008) FLC 93-382 (Finn, Boland & Thackray JJ -19 August 2008)
[3] Chappell and Chappell (2008) FLC 93-377 (Warnick, Boland and Thackray JJ -15 September 2008)
In my view, those comments make grammatical and legal common sense, so from time to time in these Reasons I too will use the word “contact” interchangeably with terms such as “spend time with”.
The evidence
The father relied upon three affidavits filed 13 October 2010, 25 January 2012 and 4 June 2012. I will refer to them simply as his first, second and third affidavits. The father was extensively cross-examined.
The mother relied upon two affidavits filed 1 December 2010 and 6 February 2012. I will refer to them as her first and second affidavits. The mother was also cross-examined at length.
The Independent Children’s Lawyer relied upon:
·a Family Report by Dr M (“the Family Report’);
·an affidavit from Dr K, a psychiatrist; and
·an affidavit from Ms C, the manager of [C] contact centre (“the Contact Centre”).
Dr K and Ms C were not cross-examined. Dr M was cross-examined.
Background
Unless a contrary intention is clear from the context, where I refer to facts in these Reasons, they should be regarded as findings of fact, especially where there is a dispute between the parties in relation to those facts.
The father is aged 33 years and the mother is aged 34 years.
They commenced cohabitation in 2003 and over the period between then and March 2011 their relationship has included numerous separations and reconciliations. One of their separations was in 2009.
It is very clear that the parties’ relationship involved significant family violence and I shall refer to that in greater detail below.
The parties’ children [X] and [Y] were born in 2004 and 2007 as mentioned in paragraph 1 above.
The father filed his Application and affidavit in October 2010, and the mother filed a Response and affidavit the following month. On 1 December 2010 Federal Magistrate Hartnett made interim and procedural Orders as follows:
·That the children live with the mother.
·That the father attend upon an agreed psychiatrist for the purposes of obtaining a report in relation to any risk associated with him spending time with the children and any counselling or treatment that he should undertake.
·That the parties enrol at a contact centre to enable the father to spend time with the children “only if the psychiatric assessment states that there is no risk to the children to do so”.
·That an Independent Children’s Lawyer (“ICL”) be appointed.
·That the matter be adjourned to a date in March 2011.
I shall refer to the evidence further below, but is clear that the father was correct when he said in his second affidavit that he and the mother “resumed a relationship or sorts” subsequent to the Orders of 1 December 2010.[4] However it is clear that whatever sort of relationship it was, it ended in late February or early March 2011.
[4] At paragraph 18
In mid-March 2011 the mother’s solicitors withdrew from the proceedings. Consequently, when the matter came before the Court on 29 March 2011, all Applications were adjourned to 9 May 2011 and the ICL was required to advise the mother of that adjournment.
In May 2011 the matter was further adjourned to 22 June 2011 to enable the preparation of a report by a psychiatrist, Dr K.
On 22 June 2011 the matter was adjourned to 6 February 2012 for a final hearing with an estimated time of 3 days. A Family Report was ordered and Consent Orders were made which provided for the following:
·The mother to facilitate the children telephoning the father each Sunday and Wednesday.
·The father to spend time with the children supervised by a worker from [A] Contact Service each alternate Sunday between 2.00 p.m. and 4.00 p.m. and at other times as may be nominated by that contact service, with the father to pay all costs of that contact service.
·If the father was not able to fund the costs of the contact service fortnightly then the visits would occur every 4th weekend.
·The parties were also required to forthwith meet all requirements of [C] Contact Service to enable the father to commence supervised visits there as soon as possible.
·The contact supervised by the [A] supervisor was to cease as soon as the father’s contact at [C] commenced.
The father had some supervised contact with the children between July 2011 and January 2012 in accordance with the orders made by FM Hartnett. That is summarised in a report provided by the Contact Centre as follows (which appeared to be accepted by all counsel as being accurate):
Twelve visits were scheduled for the family at the Children’s Contact Service between 30th July 2011 and 21st January 2012. [The father] attended the Children’s Contact Service for ten scheduled supervised visits with his children, [X] and [Y]. [The father] cancelled two scheduled supervised visits at the centre. He cited illness as the reason for his non-attendance at one of the visits and provided no reason for cancelling another visit. No medical certificate was provided by [the father] to verify his illness. [The mother] cancelled three supervised visits. She cited child illness as the reason tor two of the cancelled visits and informed the centre that the children had a party to attend and cited this as the reason for cancelling a third visit. [The mother] did not attend the centre at all for two scheduled visits and provided no notice to the centre to as to the reason for her absence. It is also of note that no medical certificates or documentation was provided to the centre by [the mother] to verify the children’s illnesses. [The father] attended the final visit at the centre for approximately fifteen minutes and left the visit early to attend a wedding.
[X] attended five supervised visits with his father. [X] remained in the first two visits for the entire duration. However, after a protracted period of approximately seven weeks without any contact with his father, he remained in the last two supervised visits with his father for a much shorter duration. It was the worker’s observations that whilst [X] initially expressed fear and demonstrated reluctance to see his father, this abated once he devised a “safety signal” with centre staff and became engaged in play with [the father]. [X] mostly demonstrated no reluctance to physical closeness or physical contact with his father in visits and was observed to remain in close physical proximity to [the father] during their contact together.
[Y] continued in her refusal to progress through and exercise contact with her father, despite ongoing encouragement from her mother and centre staff. She attended only one of the visits with [the father] for a brief period. During her time with [the father], [Y] was observed to mostly demonstrate reluctance to physical closeness and contact with her father and refused her father’s invitations to engage in conversation.
[The father] presented as a cooperative participant of the service. [The father] made active attempts throughout the visits to engage [X] in play activities and worked at trying to establish a bond through this modality. [The father] expressed disappointment in relation to [Y]’s persistent refusal to join him in visits and at times queried centre staff and [the mother]’s role in supporting this relationship.
Whilst in attendance at the centre, [the mother] presented as encouraging of her children’s participation in visits with their father and actively supported them in progressing through to [the father] for contact.
When the matter came before Federal Magistrate Hartnett on 6 February 2012 all Applications were adjourned for mention only on 6 March 2012 and on an interim basis all Orders for the father to spend time with the children were suspended.
In March 2012 the matter was adjourned for final hearing before me commencing 6 June 2012.
The hearing took place over 3 days in June 2012 and 2 days in August 2012 as set out on the cover sheet to these Reasons. I will simply refer to those particular dates as Day 1 through to Day 5.
Relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[5]
[5] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [6]
[6] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[7]
[7] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the Amending Act”). However, Item 45 of Schedule 1, Part 2 to the Amending Act provides that the amendments to section 60CC do not apply to proceedings instituted before 7 June 2012. These proceedings were commenced prior to that date, so it follows that I must apply section 60CC as it applied prior to the amendments enacted by the Amending Act.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[8]
[8] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[9]
[9] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[10] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[11]
[10] Section 61DA
[11] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[12]
[12] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[13]
[13] See subsections 65DAA(2) and (3)
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[14]
[14] See KB & TC (2005) FLC 93-224
Credit
Before considering the evidence in the light of section 60CC of the Act, I wish to make some comments upon the credibility of the parties.
It is clear that Dr M gained the impression that the father was not being entirely forthcoming with the truth in his interview for the Family Report. For example, she said these things in that Report:
He denied being violent toward the Mother but did state that the Mother would start arguments and would hit him and he would retaliate, but claimed he never initiated the violence. He did state that the Department of Human Services had been notified some years ago due to his breach of the Intervention Order, but denied the Mother's allegations that he abused drugs. He did deflect such allegations toward the Mother, claiming she was currently using drugs.[15]
[The father] stated that he had been on remand on five separate occasions for breaching Intervention Orders although he appeared to downplay their seriousness claiming they were "technical breaches". He said that he had been an "idiot" in breaching these orders and had learned from his mistakes but failed to disclose that he was awaiting a court hearing for a further breach…… He denied that he was violent towards the Mother after their separation, and blamed the Mother for making false reports of violence to the police. This information is inconsistent with his criminal records which indicate that in addition to convictions for breaching the Intervention Orders, he has been convicted on several occasions for recklessly causing injury, assault with a weapon, intentionally destroying property and making threat to kill.
[15] At paragraph 19
Dr M concluded that:
[The father]’s presentation during the session was characterised by minimisation of the allegations regarding his abusive behaviour, his history of drug abuse, his lack of responsibility for his breaches of the Intervention Orders, deflection of blame on to the Mother, and a lack of insight into the impact of his behaviour on his children.[17]
[17] At paragraph 28
The father’s version of his involvement in incidents of violence as given to Dr K appeared to differ from that given to Dr M.
Dr K reported: [18]
I asked him whether there had been physical violence. He said there had been. He acknowledged that he’d been physically violent toward her. But he insisted that she was at least as physically violent toward him and they have “full on fights”.
[18] At paragraph 21 of his report
Dr M reported:[19]
He denied being violent toward the Mother but did state that the Mother would start arguments and would hit him and he would retaliate, but claimed he never initiated the violence.
[19] At paragraph 19 of the Family Report
Early in his cross examination, the father was being asked about an incident in 2003 when it was alleged that he had forcibly entered the maternal grandfather’s home and thrown the mother to the floor, while being in possession of a samurai sword. He completely denied being present at the time and suggested that the alleged offender must have been one of the mother’s other Asian friends. I assume that he wished to convey the impression that the mother would have had difficulty distinguishing him from other Asian males.[20] I considered that to be quite astounding, given that the mother had been in a relationship with him for some months at the time of the incident and, arising out of that incident, an Intervention Order was made against him with his consent.
[20] See Transcripts: Day 1 at pages 16 and 17, Day 2 at pages 3, 4 and 5
Under the heading “Police charges” in his third affidavit, the father said this in relation to an incident that occurred on 1 April 2012:
10. On Sunday 1 April 2012 I was in the car with my housemate Mr G. We had been to my parents home to pick up my tools. Mr G was driving. Whilst driving, Mr G was on the telephone. He was arguing. I did not know with whom. The next thing Mr G pulled up at a house in [omitted] (not far from where I live with Mr G). He got out of the car. Mr G threw rocks at the house. I said to stop it and to go. A man from the house came out. He was carrying a baseball bat and he smashed the front windscreen.
11. The other man then run back to his house and picked up a large steel pole. He then went at Mr G with the pole. I got out of the car to try to stop the fight. Mr G blocked the pole. I grabbed the pole from the man and removed the pole from the fight. The fight continued and I tried to stop it. I pulled at Mr G and I yelled at him to stop.
12. I was interviewed by the Police about 2 weeks later. I was told I would charged (sic) because I was present at the scene. I was charged. I will be pleading not guilty to the charges. I did not know Mr G’s intentions to attend at another person’s home. I did not know Mr G was planning to assault another. I did all I could to stop the fight.
The relevant police report of that incident is somewhat different. It reads as follows:
On Sunday the 1st of April 2012 at approximately 8:40pm the accused attended (an address supplied) with [Mr G].
[Mr G] has confronted the victim in the driveway of his home. The accused who was also present has then picked up a rock and has approached the victim from behind and has struck him on the back of the head causing the victim to fall to the ground. This has caused a cut to the victims head. The accused and [Mr G] have then punched and kicked the victim whilst he was on the ground.
The accused then picked up a large metal pole and has swung it at the victim narrowly missing his head. CCTV captured the whole incident. The accused then left the scene with [Mr G].
A short lime later the Police arrived and spoke to the victim. Metropolitan Ambulance Service attended and cleared the victim of any serious injury.
On Friday the 4th of May 2012 the accused attended the (named) Police Station. He was arrested and interviewed.
The father was offered a certificate under section 128 of the Evidence Act 1995 in relation to that incident and was granted an adjournment of his cross-examination to take advice about that from his counsel. Notwithstanding that he had referred to the incident in his third affidavit as set out above, he decided to exercise his right not to answer any cross-examination questions about the incident.
I have viewed the relevant CCTV record.[21] It is abundantly clear that the father’s version bears very little relationship to the truth, and that the version in the police report is considerably more accurate. The father was clearly an active participant with his friend Mr G in the vicious kicking and punching attack on the person described by the police as the victim. He certainly was not trying to stop a fight between Mr G and the victim. Indeed, the victim is extremely lucky that the metal pole swung by the father missed its intended mark, because it is very clear from the CCTV record that the father intended to hit the victim extremely hard with that metal pole.
[21] A DVD containing the CCTV record is part of Exhibit “M1”
While it may not be a particularly important detail in relation to that whole incident, I note the father claims in his affidavit account that
Mr G was driving the car, pulled up outside the house and threw rocks. In fact, the CCTV record shows that it was the passenger who got out of the car and threw the rocks. The car kept moving along the street with the passenger door open while the rocks were being thrown.
It is therefore very clear to me that the father’s affidavit version of that particular incident is riddled with fabrication.
There are other examples of dishonesty in the father’s evidence, but it is sufficient to say here that the father was prepared to twist the truth, omit to mention important details or even tell blatant falsehoods in order to deflect blame away from himself. That applied particularly in relation to his involvement in violent or other anti-social activities.
On the other hand, I found the mother’s evidence to be more believable. At times, she was prepared to make concessions that were not in her interests. For example, she conceded that she may have slapped and pushed the father on occasions.[22] However, I conclude that in general, any injuries that she may have caused to the father were when she was defending herself from his violence.
[22] Transcript: Day 4 at page 163
Overall, I accept the mother’s versions of events to be generally truthful. However, I also accept that there have been times in the past when she had denied incidents of family violence to police and doctors because she was scared of the father’s potential reactions.
In general, when their versions of events differ, I prefer the evidence of the mother to that of the father.
Primary considerations
The benefit to the child of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered by Australian courts in a number of cases. For example, in Mazorski and Albright,[23] Brown J said this at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. 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 quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[23] Mazorski and Albright (2007) 37 Fam LR 518
The Oxford Dictionary of English[24] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[24] 2nd Edition revised
I need to consider whether the children are ever likely to have meaningful or worthwhile relationships with their father and, significantly, whether those relationships will be of benefit to the children. I shall refer to this further below.
The need to protect the child from harm from abuse, neglect or family violence
In her first affidavit, the mother said that her relationship with the father had been “characterised by extensive family violence”. It is therefore not surprising that much of the hearing was devoted to the issue of family violence.
The police reports show that family violence has been reported to them on numerous occasions.[25] While I appreciate that they are only reports to the police (and are not tested evidence), they do show a consistent pattern. I summarise some of those reports as follows:
[25] See Exhibit “M5”
a)16 July 2003 - The father forcibly entered the home of the maternal grandfather (where the mother was then living) and threw the mother to the floor while in possession of a samurai sword. I have referred to the father’s evidence about that above.
b)31 January 2006 - The father wanted money for gambling, which the mother refused to provide. He threatened to kill her and punched her to the head twice. The maternal grandfather intervened and he was struck by the father to the head with a saucepan. The father then threw a telephone at the mother and threatened the maternal grandfather with knives. He punched the mother a further four or five times to the head. The child [X] witnessed the entire incident and was knocked over in the struggle. The father was taken to the police station, bailed to appear at court on 6 February 2006 and released. He then went immediately to the maternal grandfather’s house and attempted to force his way in through a window.
c)4 March 2006 - The father was tailgating the mother’s car.
d)5 March 2006 – The father was again reported for a further incident of tailgating. He also attended at the mother’s home uninvited at approximately midnight.
e)6 April 2006 - The father pulled the mother out of her house and kicked her.
f)11 April 2006 - The father threatened to put a bullet in the mother’s head and later said to her: “Just wait, you are going to die”.
g)10 August 2006 - The father attended uninvited at the mother’s home. He punched her to the head two or three times. The mother attempted to leave and the father punched her to the face. After leaving the mother’s home, the father forced his way back in, punched her again and threatened to kill her.
h)3 October 2008 - The father wanted money for gambling and the mother refused to give it to him. He punched her to the face and kicked her in the back.
i)29 October 2008 - The father threw the children’s toys around in the presence of both children. He pushed the mother against the wall and hit her to the face and head causing bruising.
j)Early February 2010 - The father went to the mother’s home for money but was not given any. He punched her twice to the head. The mother asked the child [X] to call “000”. The father then begged the mother not to call the police because he did not want to go to jail. He told her that if he did go to jail, his friend “Wombat” knew where she lived and would deal with her. (The police had attended at her home on that day, but because of that threat, the mother had been too scared to say anything and had not reported the full details of the incident.)
It is important to note that the consideration in subsection 60CC(2)(b) is not restricted to abuse, neglect or family violence to which the child is directly subjected. It also includes the child’s exposure to such behaviour when it is directed towards others. Most typically, of course, that includes such behaviour being directed towards one or both of the child’s parents. This is just such a case.
The harmful effects of family violence are well known. In Patsalou and Patsalou,[26] the Full Court of the Family Court of Australia found that it is acceptable for courts to refer to literature about the effects of family violence on children. In the report of that decision, there is an extensive list of literature that was then available. The list of such authoritative literature has grown since then and the relevant parts of section 60CC were enacted to take account of that growth in our society’s awareness of the harmful effects of family violence upon children. However, even before the enactment of the section, Mullane J had succinctly summarised the harm that children can suffer in Blanch v Blanch and Crawford[27] when he said:
His Honour’s discussion of the violence allegations appears to have largely overlooked the wide and more serious dangers that an abusive parent presents to children than the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper vigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development. Probably the worst danger to children is the role model that a violent parent provides…..[28]
[26] Patsalou and Patsalou (1995) FLC 92-580
[27] Blanch v Blanch and Crawford (1999) FLC 92-837
[28] At page 85,748
There is no doubt in my mind that the two children in this matter, particularly [X], have been significantly affected by family violence.
The harmful effect upon [X] was well illustrated in Paragraph 24 of the Family Report, where Dr M said:
[X] drew a picture of his family which included himself, his Mother and his sister. When asked whether his Father was part of his family [X] said that he was not “because mummy broke up with him”. He added that “daddy was hurting mummy and he threw our dinner over the floor and he pushed her and kicked my mummy. That happened a lot”. [X] was asked what he did when his Father was hurting his Mother. He stated that his Mother would tell him to call 000 but “then daddy was already gone”. [X] stated that his Father did not hurt him or his sister. When asked how he felt when his Father was doing this to his Mother, he stated “I used to cry when he hit mummy. It made me feel sad”. When asked if he saw his Mother hurt his Father he stated “she only did it a little bit. She sometimes hit him before (he hit her) and sometimes after”.
Dr M went on to say in the next paragraph that [X] said that he “felt scared to see his daddy now”.
As detailed above, [X] stated to Dr M that “daddy was hurting mummy and he threw our dinner over the floor and he pushed her and kicked my mummy”. I note the correlation between that and the mother’s version of an incident in March 2011. She said inter alia:
15. In a further incident that occurred earlier last year, around March 2011 the Father was delivering [X] to me after spending time with him for an hour. I opened the door to let [X] in, and the Father followed him in. I said to him “no!” and started to close the wire door. The Father forced his way through and followed me in. I told him he had to leave and he said he just wanted to chat to me for a minute. He said to me “can you at least give me the $50.00 that I spent on [X] today” or words to that effect. He said he had spent all his money on him that I needed to give the money back. He became even more abusive and I told him that I would call the Police. He became quite agitated at that and told me that if I did they had better lock him up for good. I went into the kitchen to grab my phone, and the Father came towards me trying to grab my phone off me. He took it from me and threw it. I kept asking him to leave throughout but he would not go. He picked up the pot that was on the stove that had pasta sauce in it, and threw it all over the kitchen. Whilst this was happening, the children were behind the couch screaming.
16. The Father said to me “I’m going to kill you if you call the Police”. At one point the Father tackled me and sprained by wrist…. I then managed to grab my mobile and call the Police. The Father then walked out of the house.
I accept the mother’s version of that incident to be substantially accurate and it is hardly surprising that [X] now says that he is scared of his father and that [Y] would not go to him at the Contact Centre.
In relation to the likely effect upon the children of continued contact, this exchange took place between counsel for the ICL and Dr M:
Ms Glaister: And what would be the psychological damage to the children if they remain in the situation that has been the characteristic of their life so far with huge disruptions, Dad going off to jail, Mum and Dad fighting? If that were to continue, what’s the likely long-term outcome for their psychological wellbeing?
Dr M: The prognosis would be poor.
Ms Glaister: And can you elaborate on that?
Dr M: Yes. I would suggest, given my encounter, particularly with [X], that he has already undergone a number of behavioural issues, such as nightmares, such as being hyper-vigilant, and children who experience behaviours like that can’t, in layman’s terms, live a normal child’s life because they are so preoccupied with those traumas that they’ve experienced. So it may well affect his performance with friends, with school, with other such behaviours that kids normally would adapt to very well. Those may be well interrupted, and, as he progresses into adolescence, the harm is going to be probably more concerning.
In my view, that exchange illustrated the serious need to protect these children from the harmful effects of family violence. However, the father’s own evidence does not persuade me that he has the necessary insight to appreciate that there is a need for his children to be protected.
The father does not concede that he has an anger management problem. When he was cross-examined by counsel for the ICL, he said that he did not believe that he had an anger management problem, either currently or back in 2006 when an anger management course had been suggested in a Department of Human Services (“DHS”) report.[29]
[29] Transcript: Day 3 at page 113
The previous day he had said in answer to questions by the mother’s counsel that he had learnt a lot from an anger management course that he had been required to complete in 2009 as part of his parole conditions on release from prison. His words were:
I did complete it as a part of my parole and I do remember very clearly because the first couple of weeks I didn’t think much of it, but as it grew on it started growing on me and I really started to take in what was being said.
You might not think so, but I personally think it’s really – it has helped me in an enormous way.
and
I learnt that my emotions and my thoughts control sort of my actions when I let it get to me and I’ve learnt that the longer I try and ignore something, the more it builds up. I also learnt to take a step back and sort of not just react.[30]
[30] Transcript: Day 2 at page 43
A viewing of the CCTV footage referred to earlier in these Reasons shows very clearly that if he learnt any good lessons from that course in 2009, they had all been forgotten by 1 April 2012. There is absolutely no doubt in my mind that the father has a significant problem with anger management and his lack of impulse control.
Relevant additional considerations
The child’s views
Dr M said this in paragraph 25 of the Family Report:
[X] talked about spending time with his Father. He stated that when they did have contact “it was like he loved us”. However he stated he “felt scared to see his daddy now”. He stated he doesn't want to see his daddy “because he’s scary”. He said that he doesn’t like seeing him because “it makes you think about what he did to my mummy”. He added “most of my body doesn’t want to see him”.
When she was cross-examined, Dr M was asked about his use of the words “it was like he loved us” and she said:
It would suggest that he was very confused, possibly torn in his allegiances and not sure how to understand and interpret affection because of the association that he had with the father and the fear. So he would have been on heightened alert and not necessarily have been able to interpret love as true love or affection as true affection because of his fears. [31]
[31] Transcript: day 5 at page 228
In paragraph 26 of the family Report, Dr M went on to say that [X] had said: “I don't want to speak to him on the phone because he’s scary”.
She noted in paragraph 30:
[X] presented as an articulate and insightful child and although he is young, consideration needs to be given to the concerns he raised during the session. [X]’s bond with his Father appears to be quite tenuous. This was indicated in his family drawing, where he excluded his Father from the drawing. A repetitive theme during the session was his fear of his Father and his hesitation in seeking to spend time with him.
Clearly, [Y] is too young to have a particularly relevant view about the question of contact with her father. However, I note that she was not willing to disengage from her mother at the Contact Centre, notwithstanding that the mother presented to the staff of that Centre as “encouraging of her children’s participation in visits with their father and actively supported them in progressing through to [the father] for contact”. I also note that Dr M observed that “[Y]’s refusal to spend time with her Father at the contact centre suggests that she also experiences emotional distress in spending time with her Father”.[32]
[32] At paragraph 29 of the Family Report
The child’s relationships with the parents and other people
It is clear from the above that [X]’s relationship with his father was tenuous at the time of the interviews for the Family Report. It is also clear that [Y]’s relationship was even more tenuous.
The father produced a number of photographs and short video clips on a USB memory stick.[33] They show happy children and, because the father appears in some of them, I assume that the father hopes that I will infer that the children have a good relationship with him. In my view, it is not possible to make that inference, because:
·The fact that children appear happy in photographs or short video clips is not necessarily indicative that the are generally happy and have a good relationship with others who appear; and
·More importantly, the latest of those photographs and video clips were agreed to have been taken on 15 January 2011,[34] which is before the incident described by the mother and repeated at paragraph 63 above in which “the children were behind the couch screaming”.
[33] Exhibit “F2”
[34] Transcript: Day 5 at page 259
As I understand the evidence, when this matter came on for hearing in June 2012, the children had not had any contact with their father for approximately five months, so it is now very likely that their relationship with him is considerably more tenuous than when Dr M provided the Family Report.
The willingness and ability of the parents to facilitate and encourage the child’s relationship with the other parent
Given the circumstances, it is hardly surprising that the mother does not want to promote the children’s relationships with their father.
The capacity of the parents to provide for the child’s needs
I have no concerns about the mother’s ability to provide for the children’s needs. She has been doing that with little positive input from the father for a long time.
However, the father’s general behaviour shows clearly that he puts his own needs and wants before the needs of the children. The report of the last occasion that he saw [X] at the Contact Centre on 14 January 2012 is illustrative of that.
The report noted that the father said to [X] that he had a Christmas gift to give him “when [X] came to his house”. That shows clearly to me that he was using the promise of a gift in order to satisfy his own desire to have [X] come to his house.
The report also noted:
[The father] engaged [X] in topics of an inappropriate nature. For instance, [he] told [X] today was the last visit at the centre before court, and that hopefully [X] would be able to come to his house for future contact. During this discussion [the father] told his son, “When they ask you about seeing Dad, just tell the truth and think of the fun times we had”.
The report of that day also includes this:
After approximately fifteen minutes of conversing with [X], [the father] explained to his son that he had to leave the centre due to having a wedding to attend. [The father] requested, “Give Dad a hug and kiss” and the pair shared a hug and kiss. [The father] told [X], “Next time I see you might be at my place” and added “Maybe we can go fishing”. [X] verbally farewelled his father "goodbye" and returned to his mother.
The Contact Centre report of 14 January 2012 shows me a number of things that suggest that he was putting his own needs and wants above the needs of [X]. They include the following:
·The father seemed to be unaware of the inappropriateness of involving [X] in his parents’ court dispute.
·He was clearly trying to influence [X] in what he ([X]) might say to others about that dispute.
·The father seemed to put his own desire to attend a wedding above spending time with his son.
I also have some concerns that the father’s days in prison are not yet over, and he might not be available to provide for the children’s needs, even if he was capable of doing so. In this regard, I note that arising out of that incident caught by CCTV on 1 April 2012, the father was charged with:
·unlawful assault;
·assault with weapon;
·assault with instrument;
·assault in company;
·recklessly cause injury; and
·intentionally cause injury.
If he is convicted, it seems inevitable that he will serve a period of at least 34 days in prison. That is because 34 days of a previous prison sentence was suspended for 18 months under section 27 of the Sentencing Act 1991 (Vic) on 29 October 2010, and that 18 month period had not elapsed by 1 April 2012.[35]
[35] See Exhibit “M2”
I point out that the father is also lucky that the metal pole did not hit the victim as he had clearly intended. Had it done so, he would most probably be facing much more serious charges than those listed above.
The attitudes of the parents to the child and parental responsibilities
In some respects there is some overlapping between this consideration and the consideration referred to immediately above. Certainly, the paragraphs above do not show the father to be particularly aware of his responsibilities as a parent.
The father’s violent and otherwise generally anti-social behaviour does not reflect well upon him, and he clearly does not appreciate that one of the basic responsibilities of a parent is to be a good role model. I simply repeat and adopt the statement of Mullane J referred to in Blanch v Blanch and Crawford:
Probably the worst danger to children is the role model that a violent parent provides …
It could be said that the mother should shoulder some of the responsibility for continuing in the “on again/off again” violent relationship for as long as she did. However, I take judicial notice of the sad fact that it is not at all uncommon for that to occur.
This is probably an appropriate point to note that the mother did not provide an affidavit from her current partner, so I am unable to be certain that he is more responsible in his attitudes than the father. However, the mother says he is “completely different” and “pays attention to [X] and shows [him] different things” so, in the absence of any other evidence to the contrary, the court will have to rely upon her assessment of his qualities.
Any family violence and family violence orders
Early in his first affidavit the father said:
There has been a history of Intervention Orders and breach of Intervention Orders and I have been to gaol on 3 or 4 occasions in relation to a breach of the Orders. The current Intervention Order was made by the [named] Court on 20 November 2008. It is an Order that is current until midnight on 20 November 2013. The two children are named on the Intervention Order.
The “current Intervention Order” to which he referred is clearly still in force.
The father has a dismal history of blatantly disregarding Intervention Orders, and spending time in prison as a result. Indeed, his suspended jail sentence that I have referred to above in these Reasons was one imposed for contravening the current Intervention Order.
My perusal of the father’s criminal record shows seven convictions in the Victorian Magistrates Court for breaches of Intervention Orders between 17 March 2006 and 24 June 2010. That is an average of more than one conviction every 8 months. It is therefore hardly surprising that some significant jail sentences have been imposed upon him.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the children
Counsel for both the mother and the ICL submitted that I should make final orders that the father have no contact with the children.
Counsel for the father argued that there should be orders for supervised contact, but in her closing submissions she said:
And it’s a difficult proposal, your Honour, because he’s not proposing that it be supervised forever. It would need to have an end point. His proposal is that it would be supervised until he obtains the appropriate counselling. … This may just be one of those cases that can’t be finalised on that basis, that it needs to be reviewed at a point in time, whether that’s in six months or 12 months.
I then queried whether she was saying that only interim orders were needed at this stage. She responded that I needed to consider that if it was an appropriate option.
I have given that thought, but have come to a view that it is in the children’s best interests to make final orders. In coming to that view, I took into account the fact that I have no confidence at all that the father has either the willingness or the ability to take control of his anger and lack of impulse control.
Discussion
Very often there is a tension between the two primary considerations under section 60CC. The Parliament sought to resolve that tension by enacting the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which inserted subsection (2A). Courts are now required to give greater weight to the need to protect the child from harm from abuse, neglect or family violence than to the benefit to the child of having meaningful relationships with both parents. However, that subsection only applies to proceedings commenced after 7 June 2012, so it is not mandated in this matter.
It is my view that each consideration should be given the weight it deserves in the light of the facts, and I am fortified in that view by the judgment of May and Thackray JJ in Mulvaney & Lane,[36] in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case….
[36] Mulvaney & Lane (2009) FLC 93-404. Also see Aldridge & Keaton (2009) FLC 93-421 and Champness & Hanson (2009) FLC 93-407
In Godfrey & Sanders,[37] Kay J was sitting as the Full Court in an appeal that was decided prior to the enactment of subsection (2A) of section 60CC. He said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case
[37] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
As I have said, each consideration should be given the weight it deserves in the light of the particular facts of the case.
In cases that are finely balanced, it may be just one criterion that becomes decisive in determining the outcome. For example, in Taylor & Barker [38] the decisive criterion was the happiness and contentment of the child’s primary carer. However, in some cases that are not finely balanced, one of the section 60CC considerations may be so strongly determinative of a particular result that all others are overwhelmed by it.
[38] Taylor & Barker (2007) FLC 93-345
This is one of those cases because it is my view that the need to protect [X] and [Y] from physical or psychological harm from being subjected to, or exposed to family violence outweighs all other considerations under section 60CC. This was clearly what counsel for the ICL had in mind when she made this submission:
…the evidence of the family report writer was pretty compelling with respect to the effect that the parental behaviour has had on [the children]. There’s no doubt … that this father loves his children. The question for your Honour is that, given the history of these parties, given their combination together, as to whether or not the potential damage to the children by contact with the father is outweighed by what I say would be a loss to them if they have no relationship. I say … that, on balance, the children need to be protected from the risk of harm that the father represents and that this does outweigh benefits of a relationship with him.[39]
[39] Transcript: Day 5 at page 264
Earlier in her closing submissions counsel for the ICL had made this insightful statement:
Your Honour, I would suggest to you that way back in 2006, the Department of Human Services got it right. It’s not good for these children to be exposed to the ongoing relationship between the mother and the father. That’s something they identified then. The problems that existed at that time pretty much have continued unabated. At that time, the father was not acknowledging of the violence or the impact that that was having on the children and was argumentative with the department in terms of their proposals for remedying the situation and the mother, I suggest, was keen to play down the violence that she was experiencing to the Department because she was keen at that time on reconciliation.[40]
[40] Transcript: Day 5 at page 263
In saying that she was clearly referring to the DHS reports which are Exhibit “ICL1”, in which a Protective Worker had said this on 13 October 2006:
Concerns raised in relation to the likelihood of 2 year old child’s exposure to significant domestic violence between the parents. Given the significant history of domestic violence between the parents, the child is at risk of significant emotional and physical harm.
Mother appeared to minimise the domestic violence, while father was in denial regarding the assault (father is pleading not guilty at his trial in October 2006). Both parents appeared to lack insight into the psychological/emotional impact of [domestic violence] on a child. Parents also did not seem to appreciate the possibility that [X] may be unwittingly physically harmed in a dispute between his mother and father.
Given that the mother appears to have made attempts to reunite with father immediately following his release from prison and has not waited until father has demonstrated change, it appears mother may be prioritising her own needs for companionship, which may potentially impact on [X]’s safety and well being.
It saddens me that what was said in 2006 is as applicable today as it was then. Indeed, it is even more applicable now, because:
·two children are now involved;
·the father’s violent outbursts have continued in the presence of those children;
·the distressing effects upon the children are clearly evident;
·the father has shown no ability to control his anger and/or impulses; and
·the father does not consider that he has an anger management problem.
Conclusions
I cannot help but conclude that these children need to be protected from the risk of witnessing, or being physically hurt by further violent outbursts by the father. That protection cannot be effectively achieved long term by him always spending time with them under supervision at a contact centre or in the presence of a paid supervisor away from such a centre.
In my view, the only option is to make orders that prevent the father from coming into contact with the children or their mother in any way. That means that the father should be restrained from attempting to locate them.
It follows that there must be orders that the mother is to have sole parental responsibility for the children and that they are to live with her.
Procedure
I heard this matter in Melbourne, but I will be delivering this decision in Tasmania because I am not scheduled to sit in Melbourne until March 2013. My Associate will arrange to provide copies of these Reasons and the Orders to the solicitors by electronic means.
If any application is to be made as a result of the decision that I have made today, my Associate should be contacted to arrange for a listing of the matter by telephone or video link in accordance with Division 5 of Part 6 of the Federal Magistrates Act 1999 (soon to be known as the Federal Circuit Court of Australia Act 1999) or when I am scheduled to be in Melbourne.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 1 February 2013
[16] At paragraph 20
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