Lomax and Hodge
[2017] FCCA 1209
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOMAX & HODGE | [2017] FCCA 1209 |
| Catchwords: FAMILY LAW – Parenting – two children aged 17 and 6 years – family violence – no acknowledgment of violence – views of the children – options for terms and conditions on time-with considered – interim orders considered – order for no-time between children and father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (a),(b), 60CC(3), 61DA, 65DAA(3) Evidence Act 1995 (Cth), s.140 |
| Cases cited: Re: F – Litigants in Person Guidelines (2001) FLC 93-072 Champness & Hansen (2009) FLC 93-407 |
| Applicant: | MS LOMAX |
| Respondent: | MR HODGE |
| File Number: | LNC 4 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 24, 25, 29 & 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Launceston |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Hunt |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| The Respondent: | Appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms T Eaton |
| Solicitors for the Independent Children's Lawyer: | Philip Welch |
ORDERS
That the mother have sole parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2010 (“Y”).
That X and Y live with the mother.
That the father communicate with X and Y by card or letter at Christmas and at the time of each boy’s birthday and that the mother ensure that each child receive such communication and that she encourage the children to respond to each communication provided that should the mother be of the view that the content of such communications from the father be inappropriate then she be entitled to keep such letter or card from the children or either of them.
That the father be and is hereby restrained from otherwise contacting the children or either of them save and except:
(a)At the instigation of the mother and then as determined by the mother; and
(b)That these Orders apply in respect of X only until 25 January 2018.
That the father have liberty to apply in respect of time with the children upon the filing of an affidavit from a qualified psychologist deposing to the following:
(a)That he/she has been provided with:
(i)A copy of these Orders and Reasons;
(ii)A copy of the Family Report of Mr J dated 24 October 2016;
(iii)A copy of the report and assessment of Dr E dated 22 December 2016;
(b)That he/she believes that Mr Hodge has made appropriate acknowledgments and gained appropriate insight into his behaviour towards the mother and the children as found in these Reasons and in the reports of Mr J and Dr E.
IT IS NOTED that publication of this judgment under the pseudonym Lomax & Hodge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 4 of 2016
| MS LOMAX |
Applicant
And
| MR HODGE |
Respondent
REASONS FOR JUDGMENT
Applications
These are parenting proceedings in respect of the parties’ two children being X born (omitted) 2000 (aged 17 years) and Y born (omitted) 2010 (aged 6 years).
The mother wants orders whereby she have sole parental responsibility for both X and Y and that both boys live with her but spend no time with the father.
Mr Hodge proposes orders for equal shared parental responsibility and an order that both boys live in a week-about arrangement between he and the mother.
The Court has had the assistance of an Independent Children's Lawyer (‘ICL’) who proposes orders inter-alia as follows: -
i)That the mother have sole parental responsibility for both X and Y;
ii)That X and Y live with the mother;
iii)That Y have fully supervised time with the father at the (omitted) Children's Contact Service for the purposes of 'maintenance visits' on five occasions per year with the dates and times to be directed by the staff of the contact service.
iv)That there be no time-with orders for X given his age.
The Issues
The applicant mother argues that both she and the children have been the victims of family violence during the marriage and also following separation with particular reference to X whom the mother says has been subjected to emotional harassment and threats from the father.
The father effectively denies the allegations of violence. He says that that if he was involved in episodes of violence then he was initially the passive party and responded only by reason of provocation and/or self –defence.
The father argues that the mother has entered into a deliberate and malicious course of alienating the children from him and thereby denying him a relationship with the children. The implication of his argument is that it is the mother who is abusive of the children.
The issues for the Court, therefore, are very much those of credit between these opposing allegations of abuse which are mutually denied. Each of the parents is therefore arguing that the other presents as an unacceptable risk of abuse to the children and that the Court should formulate orders which address the abuse.
Should the Court make findings of fact and credit in respect of the allegations of either party then the issue for the Court is as to what parenting and living orders should be made for the two children on a balancing of the considerations of making orders which benefit children having meaningful relationships with both parents[1] and making orders which protect the children from violence or abuse.[2]
[1] s.60CC(2)(a) Family Law Act 1975 (“the Act”)
[2] S.60CC(2)(b) of the Act
Background
Both parties are 38 years of age. They commenced a defacto relationship in 1997 and separated on 25 July 2015.
The father is a self-employed (occupation omitted). The mother is a (occupation omitted).
There is no evidence before me that either party has re-partnered.
On 15 August 2015 the mother obtained a Police Family Violence Order against the father. I understand that order has or is to be renewed by application to the State Magistrates’ Court.
The children have spent no time with their father since about August 2015 save and except interviews for the purposes of the Family Report conducted in October 2016.
In March 2016 the father was found guilty of assault on the mother and breaches of the family violence order.
The mother commenced these proceedings by application filed
7 January 2016.An order was made for the appointment of an Independent Children's Lawyer on 26 April 2016. The Family Report was released on
24 October 2016.On 6 December 2016 orders were made for the appointment of Dr E, psychiatrist, to conduct a psychiatric assessment on the father. Dr E’s report is dated 22 December 2016.
The mother was represented by solicitors and by Counsel at the hearing. The Independent Children’s Lawyer was represented by Counsel. The father, however, conducted the hearing without the benefit of solicitors or Counsel. The Court file shows that he previously had solicitors on the record. Mr Hodge was advised at length of the procedure in Court pursuant to the Guidelines in Re-F: Litigants in Person Guidelines.[3] Mr Hodge was provided with a copy of ss.60CC (2) and (3) of the Family Law Act 1975 (“the Act”). He was invited to seek assistance from the bench at any time should he have any questions as to procedure.
[3] (2001) FLC 93-072
Mr Hodge generally conducted himself with proper courtesy to his wife in cross-examination, to Counsel, and to the Court. My observations, however, were of a man still suffering the emotional residue of his relationship breakdown and loss of relationships with his sons. Without pretence to any expert qualifications, my observations were that Mr Hodge found the conduct of these proceedings without legal assistance, to be extremely difficult and a distressful exercise for him. Understandably, he at times showed difficulty in grasping the issues relevant to the Court’s determination and made numerous emotional revelations to the Court. I expect that he is emotional by nature but I remain of the view that he was adequately able to understand and conduct the proceedings whilst obviously being affected by his perceived grievances against the mother and the family law system generally.
The Evidence
The mother relied on her affidavit affirmed 11 January 2017. She gave evidence and was cross-examined extensively by the father and Counsel for the Independent Children's Lawyer. My observations of the mother were generally of an honest and forthright witness. She too was at times emotional in the witness box but did not overtly demonstrate any agenda against the father other than the protection of her children. Her evidence was, in the main, even-handed, factual and child focused. Her evidence in Court was consistent with her affidavit evidence and with her interview with the family reporter. I found the mother to be an objective, honest and credible witness.
The father relied on his affidavit are sworn 1 May 2017. That document shows that it was prepared with the assistance of a solicitor. The affidavit adequately sets out the father’s case and response to the mother’s allegations of family violence.
The father was a temperamental witness. He was keen to put and emphasise his case and at times did so rather than responding to questions in cross-examination. He was vehement and vigorous in his denials of family violence although at times his evidence wavered in this regard to the stage of making some concessions albeit on every occasion with blame being attributed to the mother. Whilst understanding the father to be unrepresented and emotional by temperament, I still observed his evidence at times to be selective and evasive. He answered many questions with the response 'yes but that is taken out of context'. If forced to make a concession or admission during cross-examination then he inevitably deflected blame to the mother. His theme was that he is passive by demeanour and that any physical act of violence on his part was because of provocation or aggravation by the mother. He responded to many questions evasively by simply stating that he was 'set up' or that the mother 'had an agenda'. Mr Hodge was at times aggressive in his responses when challenged and, from my observations, showed a tendency towards irritability or anger in some responses. He was consistently critical of the mother and/or 'the system' and, despite express invitation from of the Court, refused to accept any unconditional blame for the breakdown of the relationship and the fact that he does not see his children.
Mr C
Mr C gave evidence by way of a 'personal reference' annexed to an affidavit of Mr Hodge affirmed 19 May 2017. I allowed the reference into evidence and Mr C was briefly cross-examined. Not surprisingly, his evidence is positive as to the character of Mr Hodge. Where he attempts to give objective factual evidence, then such evidence was not of great assistance. His involvement with the family as distinct from with Mr Hodge was not extensive. His evidence was well-intentioned but partisan and of little probity.
Family Report – Mr J
Mr J's report is dated 24 October 2016. He interviewed the parties and had the benefit of seeing X and Y with their father.
Mr Hodge was critical of Mr J’s report as being 'biased'. I find some merit in this criticism and I felt it necessary to raise with Mr J the fact that the written report does not set out and critically analyse Mr Hodge’s case being that the mother has deliberately, maliciously and selfishly alienated the children from him. Mr J immediately conceded that this was a flaw in his report but maintained that he had put his mind to the father’s allegations.
Mr J agreed with both parents that X and Y are extremely close to each other despite their age differences and it appears that there is a mutually protective and dependent relationship between the two boys.
Contrary to the tenor of his evidence in Court, Mr Hodge was apparently able to be complimentary of the mother during his interview with Mr J. At [38] appears the following:
Asked to comment on the mother’s parenting strengths, Mr Hodge said that Ms Lomax is 'a beautiful mother,' and then talked about how he supported her to realise her study ambitions and other passions. He said she is 'a beautiful person' saying, 'she does not have a bad bone in her body'. He said the mother was always there for the children and put him and the children first.
Otherwise, however, Mr Hodge maintained his theme that the children had been influenced against him by the mother. He also repeated to Mr J that any incidents of violence attributed to him were only as a result of provocation or aggravation by the mother.
Significantly, in my view, where Mr Hodge maintains to this Court that X at 17 years of age is being manipulated and influenced by his mother, he describes X at [47] thus:
Asked to describe each of the boys, Mr Hodge said that X is a strong individual, a leader, a great kid who is fit and strong. He saw X as a dominant personality and indicated he respected X's integrity and strength.
Y was interviewed by Mr J who reports at [56] as follows:
Asked if he had any memory of living with Dad, Y indicated he did saying 'it was not good'. Asked what he meant, Y said 'he kept scaring me. He punched mum and she kept bleeding.' When asked where his mum was bleeding, Y indicated her nose. Y indicated that he did not know why his mum and dad argued. He said 'they talk about something, dad gets angry if they say the wrong thing'. Asked if he personally heard his mum and dad arguing, Y indicated that he witnessed their arguments sometimes and that he felt scared at such times. Asked if his mum ever got angry, Y said yes and indicated she got angry when his dad argued. He subsequently said that his dad gets angrier than mum. Asked what his dad was like when he is angry, Y said 'really angry. He punches. I hide near the curtains, and I am allergic to dust, it was the only hiding spot I had in my bedroom, I hide under the curtain behind the bed. But dad knows that spot.'
Mr J's observations of the meeting between Y and his father are variously described as 'awkward', 'apprehensive', and 'uncomfortable' although Y appeared compliant with his father's requests to interact.
Mr J also interviewed X. He was 16 years old at the time of the interviews. At [59] Mr J reports:
| Asked to describe his memories of family life before Mum and Dad separated, X said they argued all the time, almost every day if not every other day. He went on to say that he would wait until the argument got to a certain point before he intervened to help his mother. He said he learnt that, when things got to the physical stage and his father started to hit his mother, that he needed to intervene. He said he was about 12 or 13 when he first started intervening in the arguments between his mother and father. He said he always intervened to help his mother, saying his father was ‘way more aggressive’ than his mother. X said that arguments would become physical on almost every occasion. X said his father’s mood determined how bad things got. X felt that his intervention helped to reduce the conflict, saying his father would either start yelling at him instead of his mother or he would start hitting him instead of his mother. He saw this as a better outcome than his mother being beaten. He said his father would try and push him away, or start hitting his legs. X said that the level of conflict between his mother and father became worse over time. He said that he grew up with it and saw it as normal. He explained that he never contemplated the possibility of his mother and father separating until it happened. |
X described to Mr J the incident which precipitated separation. X described his father hitting his mother with a closed fist of his right hand to the face and his mother falling to the ground. X gave evidence in respect of this incident at the Magistrates Court hearing on the charge of assault against his father for which he was convicted.
X also informed Mr J of being inundated with Facebook or PlayStation messages from his father. At [65] Mr J reports:
X said that after separation occurred, his father sent him numerous messages every day. When he blocked his father on Facebook, his father started messaging him on the PlayStation, saying sometimes there would be 50 messages when he turned on the PlayStation. He said the messages were like his father was ‘visually yelling’ abuse at him. He said his father would be nice one moment, then nasty, then nice again. X said he blocked his father on PlayStation as well. X indicated he is aware that his father is still posting things on Facebook in which he criticises the Court system and makes threats without naming anybody. X indicated his mother had told him this.
X was asked about the possibility of spending time and communicating with his father. At [66] he says:
I do miss some of the times we had together, but he’s so dangerous. Y can’t be alone with him.’ X indicated that he really wanted his father to get some ‘serious help’. X indicated that he would love to have a positive relationship with his father, saying the best outcome would be for him to be ‘a normal Dad’. X made it clear that he did not want to be tied to a structured arrangement to spend time with his father, rather he wanted to go when he was ready and it suited him. He emphasised again that Y should not spend time alone with his father, saying he would choose to accompany Y, at least in the short term. X went on to say that he would spend time with his father to help him, not because he wanted to see him. He indicated that, if he was thinking only of his own needs, he would choose not to see his father at all.
X was seen a second time by Mr J after the observations with his father. He said that the visit had 'gone better-than-expected'.
Mr J interviewed the parents again after his interviews with the boys and his observations of them with the father. At [78] Mr J reports an interaction with Mr Hodge which is consistent with my observations and interactions with Mr Hodge in the witness box thus:
When asked what his parenting proposal was at this point, the father wanted instead to explore why the mother is denying him time with the children. He became angry and animated and pressured in speech as he talked about the ‘abuse’ the mother has perpetrated in destroying his relationship with the children. He believed the family law system was heavily biased in favour of the mother. When pressed to return to the issue of his parenting proposal, Mr Hodge said that he needed time with the boys and they should be able to catch the bus after school as they did before. He believed it should be possible to ‘amicably share care of the children’ without any formal Court orders.
At [99] Mr J opines that X's view that he might spend time with his father 'so as to help him' is:
… consistent with his exposure to severe family violence over a long period of time. He is considerate and caring of others to the extent he is self-sacrificing. He would spend time with his father to benefit him in the hope that his father may one day be a ‘normal’ parent. To some extent X still seems to be taking care of his father and trying to prevent further problems by adopting an appeasement approach. For that reason the views X has expressed are not necessarily consistent with his best interests.
In the witness box, Mr J tended towards accepting the allegations made by the mother of family violence at the hands of the father and towards both herself and the children. At [104] Mr J indicates that, should the Court find that significant family violence has occurred, then the father’s disavowal of that family violence might be a deliberate false denial or, alternatively, a 'defensive response to protecting him from the unacceptable reality of his past behaviour…’ A third possibility is that 'he genuinely does not have awareness and/or comprehension of the inappropriateness of his past behaviour.' Mr J repeats the possibility raised by the father's own general practitioner that he sits on the autism disorder spectrum. Finally, Mr J postulates whether the father has 'an encapsulated belief’ in which he genuinely sees himself as the victim and his actions reasonable and justified.
Mr J says at [105] that further psychological treatment for Mr Hodge is of no utility until and unless he accepts and acknowledges the need for change. He continues that:
Until such time that the father makes these changes, there is little benefit to the children of spending time with him and a significant risk remains that the father will subject them to emotional pressure and indirect threats. In the circumstances, the only safe and reasonable level of contact would be a brief visit of no more than one hour once a month with close supervision provided by an independent organisation such as the Children’s Contact Service.
In his evidence in Court, Mr J suggested that these 'maintenance visits' might be the only viable option. These are apparently visits of limited time and frequency being four or five times a year with the only objective being to maintain a sense of identity and recognition for the child with a parent. There appears to be no therapeutic element to such visits. There seems to be no aim of resurrecting a relationship. I am mindful, of course, that Y is just six years of age and the evidence of Mr J suggests no sunset clause in relation to such visits and I assume therefore that he would propose them to be ongoing and indeed until the child might reach 18 years of age?
Dr E
Dr E interviewed Mr Hodge in December 2016. He had the benefit of all of the Court file as of that time. At page 5 in respect of the allegations of family violence, Mr Hodge is reported as follows:
yes I was a little bit abusive, a bit hard on her at times, she wanted me to step out of line [‘to provoking’] a whole of that last year, I struck her only in defence.' ‘she claims a black eye, she went to school the next day.' ‘a couple of times in the relationship scuffles, I've never actually hit her like the boys seen.'
In the his final paragraph Dr E says:
I do not consider that the safety of the children is seriously at risk if they are in the care of the father, following an appropriate period of reintroduction after such a long separations.
And at [1.3.1] Dr E opines:
In my opinion the condition does not affect the capacity of the father to provide for the physical needs of the children, but it does have some effect on his capacity to meet their emotional and psychological needs. They are likely to experience him as a disciplinarian and, in valuable activities with the children, as one who demands competence and ability on their part. The father strongly concerns the welfare of the children, but it remains to be seen whether his courses of counselling have assisted his understanding of their psychological or emotional needs.
Nevertheless, when confronted in the witness box with the conviction in the Magistrates Court of assault and the possibility I would make findings consistent with the mother’s allegations of physical violence considered together with Dr E’s own opinions as to the father's personality traits then he considered that there may be a risk of physical and emotional violence/abuse to be perpetrated on the boys by the father.
Whilst not diagnosing the father as suffering from mental illness, Dr E does recognise the following which I consider significant in my determination:
In my opinion the father does show evidence of a lasting disorder of personality, characterised by a strong sense of entitlement, a tendency to attribute blame to others for his disapproved behaviour and the adversity he has experience, egocentricity and the lack of comprehension of the feelings of others. Personality traits that were manifested at interview can be reasonably inferred from documentary sources duly weighed include features commonly listed as 'paranoid', 'obsessive-compulsive', and 'narcissistic' with the last pre-dominating, but they do not meet a sufficiency of diagnostic criteria to apply a diagnosis such as those listed in the (DSM).
These observations of Dr E accord with my own of Mr Hodge in the witness box where he presented as entitled and empowered with a strong tendency to deflect blame. In this sense, there is a further observation of Dr E which must be of concern and again one apparent to me from Mr Hodge’s responses and demeanour in the witness box. Dr E reports at 1.3.2:
The father has duly completed full courses of counselling by a Mental Health Accredited Social Worker and a Challenging Abusive Behaviours Programme, but he appears to have regarded these as necessary to enable him to press his claim for renewed contact with his sons rather than necessary to assist his personal development.
Relevant Law
Pursuant to s.60CA of the Act, my determination must have the best interests of X and Y as my paramount consideration.
I determine the children's best interests with reference to the objects and principles of Part VII of the Act set out at s.60B and then by a more pragmatic reference of the probative evidence and the parties’ proposals to the mandatory consideration set out in ss.60CC(2) and (3) of the Act.
Section 60B sets out the objects and principles as follows:
1)The objects of this Part are to ensure that the best interests of children are met by:
(a)that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2)The principles underlying these objects are that (except when it would be contrary to a child's best interest):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly shared duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The mother seeks an order that she have sole parental responsibility for a Y and X. The father proposes an order for equal shared parental responsibility. That responsibility is generally seen as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, it usually refers to the making of long-term or important decisions for children as opposed to the more mundane day-to-day decisions that parents make. Matters such as education, religion and medical procedure are often cited as examples.
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children. Significantly, however, that presumption does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the children's best interests for the parents to exercise equal shared parental responsibility.
The significance of the presumption applying or the Court making an order for equal shared parental responsibility is that the Court is then required to enter into a statutory pathway of consideration being, firstly, as to whether the children spending equal time between their parents is both in the children's best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court moves to consider whether the children spending 'substantial and significant time' between the parents is both in the children's best interests and reasonably practicable. 'Substantial and significant time’ is defined in s.65DAA(3) of the Act and includes time with children on both weekends and weekdays and allows parents and children to be mutually involved in each other's activities. The relevance here is that Mr Hodge proposes an order that the children live in a 'week-about' or equal shared regime.
The relevant considerations under s60CC of the Act are divided into 'primary' and 'additional' considerations. The two primary considerations at subsection (2) are pivotal in the dispute now before me. They are:
s60CC(2)(a) - the benefits to the children having a meaningful relationship with both of the child's parents; and
(b) - the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A recent amendment at subsection (2A) obliges the Court to give greater weight to the consideration in subparagraph (b).
The 'additional considerations' at subsection (3) are numerous. They include more pragmatic references such as the views of the children as to their living and parenting arrangements and the capacity of the parents to attend the children's physical, intellectual, emotional needs.
Importantly, no one factor would usually be determinative of the ultimate decision as to children's best interests in their parenting and living arrangements[4] but it is for the Court to attribute weight to each of the considerations on a case-by-case basis.
[4] Champness & Hansen (2009) FLC 93-407
Legal Principles – unacceptable risk
The focus of the mother’s case is that time for X and Y with their father presents as an unacceptable risk to the children physically and emotionally.
The notion of ‘risk' is, in my view, a prospective one. Theoretically, there will always be some form of ‘risk' to interactions between a child and parent. Relevantly, therefore, is the adjective 'unacceptable'. That is, the 'risk' must be assessed by the Court as 'unacceptable' if a Court is to accede to orders of the type argued for by the mother. Indeed, both superior and trial Courts have often emphasised the prima face importance of relationships between children and parents (as enshrined in section 60CC(2)(a) of the Act) in observing that a complete cessation of time between child and parent should be a course of only last resort. In that sense, the balancing of the considerations in ss.60CC(2)(a) and ss.60CC(2)(b) can often be attended by the provision of further conditions, constraints or terms on orders for time between parents. The obvious and common example is to make a condition of supervision for such time.
In PST & CPR[5], Federal Magistrate Walters (as His Honour then was) insightfully observed:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make an order to protect the child.
[5] PST & CPR [2006] FMCAfam 36 at [71]
It must be understood that Family Courts dealing with the best interests of children are not to be confused with the criminal Courts where findings of fact can result in convictions and then penalty. It is not for Family Courts to impose penalty. Rather, the focus of these Courts is on the ultimate best interests of children and the adjective 'unacceptable' in respect of risk is not to be observed in any punitive way. That is, rather, theoretically, and often in practice, a Court might make findings of violence and abuse against a parent but still make orders for time between that parent and a child on the basis that conditions can be placed on the orders so as to make the risk no longer unacceptable. In this respect, I have observed a tendency, probably based on recent public and media exposure, for Counsel to argue that a Court should make findings of 'family violence' and then argue ipso facto for a cessation of all time between the ‘perpetrator’ and the child. Such an approach, in my view, is misguided, simplistic, and certainly contrary to the philosophy of the Act and the force of superior Court authority.
Principles for Courts dealing with issues of 'unacceptable risk' have been developed over many years and often involving allegations of serious sexual abuse. Nevertheless, I am comfortable that those general principles are as applicable to allegations of physical, emotional or psychological abuse. In 1998, the High Court in M & M[6] stated:
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations… this imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from… abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of… abuse.
[6] M & M (1998) FLC 91-979 at p.77,081
A previous Full Court in B & B[7] observed:
… A finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of (physical) abuse occurring. Referring to supervised access, the Court stated: 'even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with the parent who has (physically) abused her or whom the child believes to have (physically abused her)…
[7] B & B (1993) FLC 92-357
In A & A[8] a different Full Court (after considering M & M and B & B), said at page 84,959:
… the primary question which the Court should have addressed was, looking at the whole of the evidence, whether contact (or contact, which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children circumstances of potential jeopardy in the future in their father's care.
[8] A & A (1998) FLC 92-800
The task for the Court was succinctly put by Dame Elizabeth Butler-Schloss in the English decision of Re L (Contact: – Domestic Violence)[9] where her Honour observed:
In cases of proved domestic violence, and in cases of other proved harm or risk of harm to the child, the Court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parents found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
[9] (2002) FLR 334 at 338
In a realistic sense, the notion of 'unacceptable risk' is perhaps best understood by reference to the Full Court in Napier & Hepburn[10] making it clear that the task for the Court is not to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not been permitted to prosper. In this sense, the Court must be alert to and balance all potential risks for the child. That is, it may be that the cessation and complete denial of a relationship between a child and parent (even if he or she be the perpetrator of the abuse) will of itself be as serious a risk as the harm inflicted.[11]
[10] Napier & Hepburn (2006) FLC 93-303
[11] U & U (2002) CLR 238 at 285
The task for the Court, therefore, is to make findings of fact and credit on the balance of probabilities.[12] Whilst no direct onus might rest on a party where the Courts determination is one of balancing considerations towards a determination of best interests, it remains an evidentiary truism that a party asserting a fact carries an onus to prove such a fact 'on the balance of probabilities' noting a level of confidence to the point that a Court might be reasonably satisfied as to the alleged fact. In doing so the Court must take into account the nature of the cause or action or defence together with the nature of the subject matter of the proceedings and the gravity of the matters alleged.
[12] Section 140 of the Evidence Act 1995 (Cth)
Section 60CC factors
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents.
Both X and Y are estranged from their father. They have had virtually no direct contact since late 2015. The children are resistant of any contact with their father. They both claim to be fearful of him because of his previous violent behaviour.
Mr Hodge claims that the mother has deliberately, consistently and actively alienated the children from him. The evidence, however, suggests otherwise. Notably, X is reported by Mr J as being amenable to some direct contact with his father if only to ‘assist’ his father to overcome his problems. X told Mr J that he would spend time with his father in the hope that he would one day be a ‘normal parent’. Similarly Y was able to spend time with his father during the interview with Mr J. Whilst the meeting was awkward, there was no overt resistance from Y. Further, there are no comments reported from the boys consistent with echoing any agenda from their mother.
Although there is no evidence of alienation, it is clear that both boys are aligned with and sympathetic to their mother’s position. Given that they both claim to have witnessed family violence perpetrated by their father on her, such a position is entirely understandable.
The task for the Court is to consider whether it can be structure orders which serve to resurrect a workable, trusting and comfortable relationship between these two boys of different ages and their father whilst also keeping them safe and, of course, only if such orders are ultimately of benefit to the children.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The crux of the mother’s case is that she and the boys have been subjected to physical, emotional and coercive violence at the hands of the father.
Mr Hodge in his affidavit material, to the experts and in Court was consistent in his denials of family violence. Where he was obliged to make any concessions, it was my observation that he did so only reluctantly and always accompanied by a deflection of blame to the mother in claiming either ‘provocation’ or ‘aggravation’. Similarly it was my observation that when confronted with weighty evidence of his violence, he tended to minimalise the allegations. For example, Mr Hodge was convicted in the Magistrates Court of an assault of the wife by punching her to the face with his fist. His son X gave evidence in these terms in support of the mother’s evidence. Conceding a ‘scuffle’, Mr Hodge claimed that he was provoked by the mother and, in any event, struck her only with an open hand and in self-defence. The conviction after a testing of the evidence in the Magistrate’s Court suggests that Mr Hodge’s version is an exercise in minimising his responsibility. Similarly, X alleges to Mr J that he was chased from the home by Mr Hodge and ‘spear tackled’ to the ground. Mr Hodge’s version is much sanitised and offers an attempt at justification. These were the common traits of much of his evidence during cross examination.
The mother’s affidavit material is heavily particularised as to a number of allegations of violence at the hands of Mr Hodge. The particularised events cover the duration of the relationship. She offers plausible reasons why she did not earlier leave the relationship. Similarly, she gives a plausible explanation as to why she was civil and accommodating of Mr Hodge’s approaches to her in the weeks following separation and prior to her obtaining a police family violence order.
Given that Mr Hodge represented himself, the Independent Children’s Lawyer, properly in my view, forcefully put the husband’s case to Ms Lomax in cross examination. Mr Hodge himself was vigorous and often intrusive and detailed in his cross examination of the mother as to her allegations of violence. Where necessary, I also thought it proper that I put elements of the father’s case to the mother in cross examination so as to test the veracity of her denials of alienation and her allegations of family violence. In all of those circumstances, the mother was consistent in her assertions. Indeed, there was a poignant moment in Court when I directly put to the mother that Mr Hodge asserted that she was lying under oath and that she had fabricated the allegations of family violence. She diverted her gaze to look directly at Mr Hodge and strongly but calmly repeated that she was telling the truth in respect of each of the allegations in her affidavit. When confronted with Ms Lomax’s direct gaze, I observed Mr Hodge to immediately avert his gaze from her and drop his head. I observed him then to take some moment to gather himself to further cross examine.
Ms Lomax was an impressive witness. She at times became emotional both in the witness box and in the back of the Court. I was of the view that such emotion was genuine and appropriate to the particular part of the evidence.
In a response in cross-examination, Ms Lomax volunteered that “I would love nothing more than for my boys to have a proper relationship with their dad.” Again, my observation was of her being genuine and appropriate in this revelation.
Mr Hodge was a much less impressive witness. His evidence was generally equivocal, selective and evasive. When confronted with specific allegations of family violence perpetrated by him, again, his tendency was to deflect the blame when he was ‘cornered’ in cross examination. He was ready at all times to be critical of and to blame the mother. He asserted that she had an ‘agenda’ and had deliberately alienated the children from him. When confronted with Mr J’s written and oral evidence as to the demeanour of the boys at the family report interviews, the father again blamed the mother. He accused Mr J of bias. His material references biases against men generally in the family law system.
Mr Hodge was consistent in his denials of family violence or at least of any unprovoked action on his part other than in self-defence. He did not acknowledge any anger management problems. Indeed, at one stage he gave the incredible response that the only benefit he took from the anger management course completed by him was to have a greater understanding of the problems suffered by the mother in making false allegations against him. He denied in Court and to Dr E any need for him to have endured the anger management course claiming that he is of a controlled and passive nature and does not suffer spontaneous anger.
I am sympathetic to the fact that Mr Hodge did not have the benefit of Counsel to assist him in Court. Nevertheless, at times his evidence was rambling, self-serving, self-justifying and always defensive. To the contrary, the mother’s allegations are generally corroborated by X and Y to the family reporter. Further, Mr Hodge appeared at times and when confronted in the witness box, to be on the verge of acknowledgements and even went so far as to offer an apology to the mother whilst still denying any culpability.
I take into account that Mr Hodge was convicted in the Magistrates Court of one count of assaulting the mother.
The mother alleges that the father’s abusive and coercive behaviour has continued post separation and relevantly by facebook and other messages to X. When confronted in the witness box with particular messages which, to my mind are unambiguously harassing or coercive, the father, as was his want, claimed the messages to be “out of context.” It eventuated that what I assume to be the totality of messages were put before me as an exhibit. My reading of those documents serves only to show a tendency by the father to confront his son with a litany of messages and often many so in the one day, which even read together are in my view generally abusive as an attempt to control his sons psyche and loyalty. Given that it was Mr Hodge himself who insisted on the totality of these messages becoming exhibits, I can only share Mr J’s suggestion that Mr Hodge does not perhaps possess the insight to understand the impact of his behaviour on his son.
Mr Hodge conceded albeit reluctantly that he was a regular user of cannabis during the relationship with the mother. He says that he stopped using cannabis at around the time of separation. On the evidence before me, I am unable to make any causal connection between Mr Hodge in cannabis use and what are clearly, in my view, issues with anger management.
My observations of Mr Hodge in the witness box echo those of Mr J put more eloquently than me at [94] – [96] of his report:
The example of the final assault that precipitated separation enables unusual insight into the dynamics between the mother and father for a number of reasons. Firstly, the complaint was proven in Court. Secondly, X was a competent witness to that witness. The mother characterised that assault as relatively minor in comparison to other assaults. Objectively, it was a serious act of physical violence causing physical injury and psychological distress. In this assessment the father was evasive and inconstant in describing his behaviour in that incident, on the one hand conceded he hit the mother with a closed fist and on the other describing it as a self-protective shove. The father’s claim that, that altercation was deliberately set up by the mother that X witnessed it to subsequently enable her to separate from him and obstruct the children’s time with him is frankly implausible and calls into question his judgment and/or honesty.
The father’s mental state in this assessment made reasonable discussion very difficult. It is already noted, he was pressured in his speech, difficult to interrupt, self-centred in his focus rather than being child focused. This was consistent with the mother’s portrayal of him as disavowing any personal shortcomings and externalising blame.
Although the father has completed a 15 week curbing aggressive behaviours program with Catholic Care this assessment found no indication that he had benefited meaningfully from that program. The father disputed the need for him to attend. The father’s counsellor X whilst stating that he attended 12 sessions also noted that the father identified no mental health problem and no need for cognitive behaviour therapy. The implication was that, whilst the father sees no need for treatment he is probably not a good candidate for any similar focused psychological treatment of counselling. His general practitioner, Dr Y also noted a long-standing pattern of anxiety and pressured speech and tangential thinking; features that were apparent in this assessment. The likelihood that the father’s clinical presentation is not simply a product from being separated from the children and the mother but rather a long standing pattern functioning.
Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children's views
Y is just 6 years of age and ordinarily might not be expected to have sufficient maturity to be able to rationalise views and preferences towards his best interests. Nevertheless, Mr J reports at [98] that Y made it clear his desire is not to spend time or communicate with his father.
At [97] Mr J reports Y as:
Y indicated an awareness that his father wants to spend time with him. I asked what it was like having sleep overs at dads place Y said ‘ok’ I just play my tablet’. Asked if he would like to have sleep overs at his dads place again Y said ‘no’. Asked why that was, Y said “because he gets angry’. Asked if he would like to talk to his dad sometimes on phone sometimes to say hello Y said ‘no’. He followed this by saying ‘I told him no on the phone and he got really mad’.
Y indicated to Mr J that he had witnessed family violence between his parents and had seen his mother bleeding from an assault.
Both the mother and Mr J observed an extremely and perhaps extraordinary close and dependant relationship between Y and X who are, of course, some 11 years apart in age.
X said to Mr J that he misses some of the good times that he had with his father but equally understood his father to be “dangerous”. Significantly, at [66] X told Mr J that “Y can’t be alone with him.”
X indicated to the family reporter that he would like a relationship with his father but only a positive one and one where his father was “a normal dad”. X, understandably at 17 years of age, did not want any Court ordered structure to his relationship with his father. He did however suggest that he would accompany Y for any Court ordered visits with the father.
Again, I am content after reading this evidence and hearing Mr J cross examined that both these boys have been able to give voluntary indications of their views and preferences. The nature of their responses is certainly contrary to any suggestion of them being alienated from the father by the mother. Indeed, I find the comments of X to be extremely perceptive and insightful for a 17 year old boy and one where he is able to objectively consider and understand the positions of his parents and also of he and his young brother within the family dynamic.
Section 60CC(3)(b) - the nature of the relationship of the children with each of the children's parents; and other persons
Both boys are undoubtedly aligned with their mother but are only in an informed and objective sense. Both have witnessed family violence perpetrated by their father. Their protective loyalty of their mother is appropriate and natural. I therefore reject the assertion of alienation made by Mr Hodge.
Given that both boys have witnessed or been the victims of violence themselves, their reluctance to spend time with their father is understandable. The surprising aspect is that X seems to leave open the possibility of resurrecting a relationship with his father for both himself and his brother if they be properly protected and with the implication that they would only do so if their father was able to acknowledge and then address his difficulties with anger management and violence. The pity is that Mr Hodge seems either unable or unwilling to understand this “olive branch” held out by his son, X.
Section 60CC(3)(c) - the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time with the children and to communicate with the children.
The father argues that the mother has deliberately withheld the children from him and thwarted their relationship with him. The mother says she has acted to protect the children from the father’s spontaneous anger and violence.
The father seems to have been consistent in his quest to resurrect his relationship with his children.
Section 60CC(3)(d) - the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from each of their parents or any other person or relative.
The father proposes a regime of equal time for the children between he and the mother although in his final submissions he conceded that a lead-in period before such orders might be appropriate. He suggested that initially the children might spend long weekends with him from the Thursday but only to allow them comfort towards the week-about arrangement he proposes. He appeared to see no other or inherent difficulties for these boys in living with him on a week-about basis.
Orders in the terms of the father’s proposal would constitute a significant change for these two boys. The parties separated almost 2 years ago and Y is now just 6 years of age. He has had virtually no relationship with his father for a third of his life. X is 17 years old and is expected to have memories of the breakdown of his parent’s relationship. He too has had virtually no relationship with his father for almost 2 years.
Mr Hodge is relentless in his criticism of the mother for the breakdown of the relationship and in his blame of her for the loss of his relationship with his sons. The messages that Mr Hodge himself caused to be tendered to the Court indicate a gross lack of insight in him as to the impact of his communications with his son where he blames and criticises the mother. My observations of Mr Hodge in the witness box suggest that he is entirely unable to desist from his feelings of victimisation and there is, in my view, a strong likelihood that he would attempt to imbue those feelings of bitterness on his children. The implication of Mr Hodge’s evidence is that he does not acknowledge a natural attached relationship between children and mother but rather attributes their loyalty to the mother to her manipulation and alienation of them from him. As such, to impose a week-about arrangement for these boys between their parents would be to impose on them nothing less than the continuing manifestations of their parents’ entrenched dispute and their father’s almost obsessive criticism of their mother.
There are, of course, possibilities for more subtle changes for these children in an attempt for them to enjoy a relatively normal relationship with each of their parents. This would, however, in my view, only occur if the father was willing and able to acknowledge some responsibility himself.
Any such acknowledgements that have so far been forthcoming have been equivocal and conditional and with a diverting of primary blame on the mother.
X, of course, will reach 18 years of age in (omitted) of next year. As an adult he will then be able to institute a relationship with his father on an adult/adult basis and on his own terms. Fortunately for Mr Hodge, although he does not realise it, the indications from X are that he would peruse such a relationship but again only upon the basis of some acknowledgement from his father.
Section 60CC(3)(e) - the practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
Section 60CC(3)(f) - the capacity of each of the children's parents; and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
In her final submissions, Counsel for the mother urges the Court to find that the mother would suffer anxiety and fear should the Court permit any contact between the children and their father. Whilst such anxiety might be natural given the mother’s allegations of violence against the father to both herself and the children, the relevance for the Court is more any negative impact on the mother’s parenting capacity should such time be ordered.
The mother herself gave evidence that she would be “worried and anxious” if the children were to spend time with their father. This however, is not any evidence of any impact on her parenting. No evidence in proper form from any psychologist or medical practitioner was adduced in respect of the claims. Indeed, my observations of the mother were of a strong and stoic personality. Contrary to the assertions of the father, I found the mother to be completely objective and altruistic as to the needs of her children including of a relationship with their father for her is that her fears of his volatile and violent behaviour outweigh her general desire for her boys to enjoy a relationship with each of their parents.
In all respects other than the father’s allegation of alienation, the mother’s capacity as a parent is not impeached.
Put simply, the father’s capacity to parent his children is compromised by his lack of acknowledgement of any violent or angry disposition whatsoever. Yet again, even his concessions were accompanied by deviating the blame. As such, the question for the Court is whether he is simply not capable of parenting his children without imbuing them with his own bitterness.
It is unfortunate that the father seems to have approached the anger management course without any acknowledgement of need for him to undertake the course. Certainly, there is no evidence that he benefited at all from that course which extended over some months. Again, his capacity to parent his children is consequently compromised.
I am not persuaded, therefore, that Mr Hodge can currently contribute positively to his children’s physical, intellectual or emotional needs without exposing his own residual acerbity. He continues to deny physical, emotional or coercive violence of his wife and children. He is ready to blame the mother. He has made his views clear to X in the post-separation communications.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the Court thinks are relevant
It is unusual for this Court to be asked to make orders in respect of a child who is 17 and a half years old as is X. Mr Hodge, however, does ask the Court to make orders in respect of X in both parental responsibility and that X be ordered to live with him on a week-about basis. It is trite to observe that the Court would ordinarily give considerable weight to the views and preferences of a 17 year old, although, of course, the Courts jurisdiction is unambiguous in respect of any child under the age of 18 years. Y is just 6 years of age.
The orders that the mother seeks would have Y, therefore, having no relationship with his father from about 4 years of age or for 14 years of his minority. It is highly likely that Y’s memories of his father are dominated by that period around separation and are unhappy ones. There are good reasons why a cessation of a relationship between child and parent is often considered to be a course of last resort for a child. Ideally, the Court should look to constraints and conditions that might serve to both protect a young child and allow them some continuity of a relationship with both of their parents although, of course, each case is to be considered on its own facts and orders for “no time” remain available within the discretion of the Court.
Section 60CC(3)(h) - if the children are an Aboriginal child or a Torres Strait Islander
Not relevant.
Section 60CC(3)(j) & (k) - any family violence involving the child or a member of the child's family and if a family violence applies or has applied to the child or a member of the child’s family – any relevant issues that could be drawn from the order, taking into account the following:
i. the nature of the orders;
ii. the circumstances in which the order has been made;
iii. any evidence admitted in proceedings for the orders;
iv. any finding made by the Court or in proceedings, for the orders;
v. any other relevant matters.
Whilst not strictly a family violence order, the Court is cognisant of the fact that a State Court has found Mr Hodge guilty of assaulting the mother at around the time of separation, particularised by a fist to her face. X gave evidence consistent with this version of events. My understanding is that the charge was contested but found proven to the requisite standard of proof in criminal Courts.
The mother has obtained family violence orders against the father including for the allegations that he has harassed X with numerous, consistent and inappropriate Facebook and Play Station messages. It is my understanding, however and although the boys are named on the family violence orders, that exceptions remain to allow for any time/with or communication ordered by this Court.
I am generally satisfied that the allegations made by the mother in grounding her charge of assault and family violence orders are consistent with the allegations of family violence that she brings to this Court.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
Whilst I am asked to make “final” orders in this matter it is proper to observe that any children’s orders can only be final in so far there are no significant, substantial or material changes in the circumstances of either parent or the children.[13] In this sense, should a Court make findings of family violence together with a lack of acknowledgement/insight by the perpetrator then such a situation might be addressed in the future with the assistance of qualified and discrete psychological counselling. It might be, therefore, that interim orders protecting a child can be placed if the Court anticipates such a change. Alternatively, a Court may flag that such psychological assistance leading to important acknowledgements and insight would allow a parent back to Court for further considerations of a relationship between child and parent. Similarly, conditions such as supervision can be placed against orders until such time as the child might be more able to self-protect. On a practical level, orders for supervision should, in my view, preferably be only short-term and only towards a desired result. In any event, it is generally accepted that the communities are only able to offer supervision on a short term basis. Long term or open ended supervision might be an available option but brings with it its own considerations as to children’s best interests.
[13] Rice v Asplund (1979) FLC 90-725
Findings and conclusions
I am able to make the following findings of fact on the balance of probabilities:
i)that the father perpetrated physical violence during the relationship on the mother and the children as asserted by the mother and X to the family reporter and in the particulars set out in the mother’s affidavit. In making this finding I prefer the evidence of the mother because of its consistency and corroboration;
ii)that the father continued to harass X since separation by Facebook and Play Station messages;
iii)I reject the father’s denials of physical violence and therefore find his evidence to the Court in this regard to be dishonest;
iv)I reject the father’s assertions that the mother has lied, manipulated the children and attempted to alienate the children from him. The evidence of the boys themselves to Mr J persuades me that they have not been and are not being alienated by the mother;
v)the father lacks insight into his actions, his denials, and their effect on the mother and the children. I am unable to find whether his denials are simple untruths or whether they constitute some psychological delusion;
vi)the father was coercive and controlling during the relationship thereby inflicting emotional distress on the mother and the children and such continued post-separation;
vii)I find no mala fides in the mother’s denial of contact between the children and the father and accept that she has reasonable fears for the physical and emotional welfare of herself and the children;
viii)I am satisfied that neither X nor Y positively seek a relationship with their father. I find that this is primarily because Mr Hodge has not acknowledged his previous behaviour and expect that should there be such acknowledgement then X is likely to pursue some form of relationship with the father;
ix)that despite their age difference, X and Y are extremely close and mutually dependant. As such, I expect that X would be protective of and attend with Y if I was to order some form of contact between Y and the father; and
x)I am satisfied that the father has attempted to imbue X with his denials of violence and his blaming of the mother. The father’s lack of honesty and acknowledgment in Court, to Dr E, and to Mr J satisfies me that he would be inclined to continue such behaviour if the boys are to spend time with him.
In making findings that the father has perpetrated family violence and that the in the fact of his denials and lack of acknowledgement, I am easily persuaded that any unconditional time for the father with Y would present an unacceptable risk to the child’s physical and emotional welfare. Mr Hodge’s evidence as to his participation in an anger management course satisfies me that his own issues with anger management remain unacknowledged and unaddressed.
The Independent Children's Lawyer urges me to make an order for ‘maintenance visits' for Y with the father and as suggested by Mr J, the family reporter. I understand that this would constitute visits on perhaps three or four occasions per year being visits of short duration and strictly supervised at a Contact Centre. Mr J says that the benefit would be to allow Y to maintain some form of identity with his father. He was unable to articulate any further benefits for Y. Mr J agreed with me that there are a number of likely detriments of such an order including it apparently being open-ended and, in this case, potentially for 12 years. Y would grow up understanding his father only as a person who requires strict supervision and it is likely that Y’s fear of his father would be perpetuated. There is no intended therapeutic benefit from such an order and that it is likely, in my view, that Mr Hodge’s grievances and bitterness towards the mother would be both increased and entrenched by such a regime. On balance, I am not persuaded that such 'maintenance visits' are an appropriate option for the Court in this matter.
The mother proposes simply that there be no order for time between the children and their father. Y is just six years of age and his childhood will endure for a further 12 years. The mother might argue, of course, that my findings above place an onus on the father to acknowledge his previous behaviour and gain insight into its impact on she and the children and then to seek proper professional assistance to address those problems. She argues that it would then be open for the father to return to Court with the appropriate professional evidence showing such insight and then to convince the Court (and the mother) that there should be a relationship between he and Y. There is some attraction to this option where this father has been given every opportunity in these proceedings to accept and acknowledge his past behaviour but steadfastly refuses to do so. From my taking of evidence in this matter and seen together with the particular personality traits of Mr Hodge, such an option has some merit. Nevertheless, I consider this Court to be a benevolent one which can structure orders with terms and conditions that might still allow a child and the parent to have a relationship whilst attending to any safety concerns and it is proper that I consider all such options. I repeat that this is not a punitive jurisdiction where it is simply a case of 'convicting' a person for past ‘crimes’. If the Court is reasonably able to place terms and conditions on that contact to attend to safety concerns then logically there is no reason why the relationship should not continue. I am mindful, however, that the father’s continual denials, lack of acknowledgement, and lack of insight may well negatively impact on Y’s emotional welfare even with supervised to time.
A third option is to make an interim order for supervised time for Y and the father accompanied by an order that the father contemporaneously obtain proper and informed psychological assistance to give him the required insight into the impact of his behaviour. If I was to make such an order in respect of Y then I expect that X would accompany Y to such visits. Nevertheless, if such an interim period of supervised time and therapeutic assistance for the father did not bring about an appropriate acknowledgement and insight then almost inevitably Y's best interests would dictate that the time-with regime cease altogether. There are, of course, other detriments to this option and notably being that the mother’s anxiety and fears in respect of her children's safety would continue whilst the father continues to deny violence and to be ready to blame her. Further, the initial visits, at least, would be problematic as the therapeutic assistance for the husband would be unlikely to have any immediate success and the dangers of him in pervading Y with his own grievances would be highly probable. However, a positive of such a regime would be to give the prospects of an ongoing successful relationship some 'light at the end of the tunnel' whilst having the benefit suggested by Mr J of ‘maintenance visits'. In a practical sense, the proposal for 'maintenance visits' would take place every 12 or 15 weeks whilst I envisage that the option for conditional interim orders must have more frequency and perhaps initially on a monthly basis.
Conclusion
I found that Mr Hodge has inflicted violence, both physically and emotionally, on his family. I have found that his denials demonstrate a lack of insight into his behaviour. I am comfortably satisfied that he would be unable to refrain from imbuing these boys with his resentment of their mother. I am satisfied that neither boy wants a direct relationship with their father until and unless he makes the appropriate acknowledgments. I am not persuaded, however, that both boys have 'closed the door' on any relationship whatsoever and best shown by X's comments to the family reporter. Experience suggests that properly informed psychological assistance for Mr Hodge gives some possibility for there being a productive and safe relationship between Y and his father. Prima face, children benefit by having relationships with both their parents and, as such, I am persuaded that Y’s ultimate best interest deserve that this possibility be explored. The most striking evidence is that of X to Mr J that his father’s acknowledgment is a necessary prerequisite to a relationship. I agree.
The question for the Court, therefore, is whether I order no-time and place the onus on Mr Hodge to obtain the available professional help and then satisfy the children, the mother and the Court that he has gained the requisite insight into his behaviour or, alternatively, I accompany an order for supervised time with Court ordered counselling thereby making the order an interim one.
On reflection I favour the first option. These boys want an acknowledgment before they will feel safe with their father. I am concerned that emotional harm might come to them even if time-with is physically supervised unless and until the father gains the necessary insight. In any event, the father’s lack of acknowledgment thus far and his entitled attitude to the anger-management course give me reason to doubt whether his priority is indeed relationships with his children or, at least, those relationships remain confused with his quest for self-justification.
I am therefore persuaded that the best interests of X and Y are currently served by there being no orders for time-with. The onus is therefore squarely on Mr Hodge to take on board the comments of his own children, to assimilate the reports of Mr J and Dr E, and to consider these reasons so as to obtain the assistance that he needs before he can enjoy a relationship with his sons. I will order that there be communications by letter and/or card at Christmas and on the children’s birthdays but given the evidence, the father will be restrained by injunctions from other communications except as voluntarily initiated by the children. I should make it clear, however, that prima facie the mother and the boys have indicated a desire that there be a relationship between the father and his sons. The onus now rests upon Mr Hodge to address this situation and, if so, I expect such to be a change of material circumstance.
For all of the reasons where the presumption of equal shared parental responsibility does not apply and, in any event, is rebutted as not being in the children’s best interests. The children’s best interests are well served by their mother having sole parental responsibility.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 29 June 2017
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