LOWRY & CLEMENS

FAMILY COURT OF AUSTRALIA

LOWRY & CLEMENS

[2015] FamCA 557

FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Final orders made by consent in Federal Magistrates’ Court in December 2011 – where DHS issued a Protection Application for three children of the marriage – where the Protection Application was withdrawn on the basis that the mother institute proceedings in this court – where the father has a history of engaging in family violence– where there are allegations that the father displays sexualised behaviour and language in the presence of the children – where the father has significant mental health issues – where the mother has provided counselling for the children – where the mother has had counselling– where the evidence is untested – ordered that the children spend no time with the father – ordered that the children communicate with the father by telephone by agreement of the parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent has failed to comply with court orders – where the respondent did not appear at the hearing – where the respondent withdrew instructions from his solicitors the business day prior – where procedural fairness provided to the respondent – leave granted to conduct hearing on undefended basis.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 4, 4AB, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61B, 61DA and 69ZW

Rice & Asplund [1978] FamCA, [1979] FLC 90-725

APPLICANT:

Ms Lowry

RESPONDENT:

Mr Clemens

INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

FILE NUMBER:

MLC

6277

2011

DATE DELIVERED:

17 July 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

28 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Jenkinson

SOLICITOR FOR THE APPLICANT:

Altavilla Vessali

THE RESPONDENT:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Lovering

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

That the mother have sole parental responsibility for the children B born … 2000, C born … 2003 and D born … 2007 (“the children”).
That the children live with the mother.
That the father spend no time with the children.
That the father communicate with the children as follows:
(a)By telephone as agreed between the parties with such telephone time to be conducted by way of speaker phone in the presence or hearing of the mother;
(b)By way of letters, cards and gifts at all reasonable times.
That the father be restrained by injunction from communicating with the children or any of them by way of any social media format or allowing any other person to do so on his behalf.
That a copy of these reasons and the orders be served at the father’s last known address according to the Notice of Ceasing to Act filed on his behalf on 2 June 2015.

NOTATION

The Independent Children’s Lawyer consents to these orders on the basis that the father has not been properly assessed as to his risk, he has not had any supervised time, there has been no family report and that the father has not filed any updated material as required by the orders made 22 April 2015, and also that the father has failed to attend the final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowry & Clemens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6277 of 2011

Ms Lowry

Applicant

And

Mr Clemens

Respondent

REASONS FOR JUDGMENT

Introduction

The mother brings an application for parenting orders regarding three children of the marriage who have previously been the subject of final orders made in the Federal Magistrates’ Court (as it then was) on 2 December 2011. She seeks to proceed on an undefended basis in the absence of the father.
The children are B aged 14, C aged 12 and D aged 7. B has been diagnosed with attention deficit hyperactivity disorder and C has behavioural problems.
The children live with the mother and were the subject of a protection application in the state Children’s Court which was brought by the Department of Human Services (“DHS”) on 27 December 2012.
On 14 March 2014, the mother commenced proceedings in this Court on the advice of DHS who then withdrew the Protection Application in the Children’s Court.
Under orders made by Senior Registrar FitzGibbon on 3 July 2014 the father was to spend supervised time with the children at a supervised contact centre, but this has not occurred as the parents remain on a waiting list.
Counsel for the father appeared on the first day of final hearing before me on 28 May 2015, to notify the Court that he had no further instructions and proposed to file a Notice of Ceasing to Act. The father was called outside the court and telephoned by the Independent Children’s Lawyer but no response was received.
The mother seeks to proceed with her application on an undefended basis pursuant to a notation made in procedural orders on 22 April 2015 whereby the parties were put on notice that failure to comply with procedural orders would entitle the complying party to make an application to proceed on an undefended basis on the first day of hearing. There has been no communication from the father with the Court since procedural orders were made, and the mother’s application to proceed on an undefended basis was supported by counsel for the Independent Children’s Lawyer.
In circumstances where the DHS instituted a Protection Application and then conditioned its withdrawal upon the mother instituting proceedings in this Court, I am satisfied that there has been a significant change in circumstances to warrant reconsideration of the parenting orders, pursuant to the rule in Rice & Asplund [1978] FamCA, [1979] FLC 90-725.

Procedural fairness

I am satisfied that it is appropriate to proceed on an undefended basis because the father has been accorded procedural fairness. He has been made aware of the first hearing date and been put on notice about the application to proceed undefended on that date if he failed to comply with procedural orders. The father has had an opportunity to attend court but has chosen not to participate in the proceedings.
I am satisfied of those matters on the basis of the following:
·The father has been represented by lawyers who attended at court on the first hearing date to advise the court that they proposed to file a Notice of Ceasing to Act and had no instructions. At the hearing the solicitor formerly on record said that the father had last instructed that he “didn’t wish me to appear on his behalf anymore” and that he intended to attend today’s hearing “to plead no contest.” Accordingly the father’s former solicitor had no further instructions.
·On the day of the hearing, the mother’s solicitor filed an affidavit deposing that she served the mother’s Amended Application on the father’s then solicitors via facsimile on 14 May 2015.
·The father has failed to comply with procedural orders made by this Court on 22 April 2015. He failed to file and serve an amended Response setting out with precision the orders to be sought at trial by 22 May 2015 and failed to file and serve a brief summary of issues in dispute by 25 May 2015.
·The father has been telephoned today by the Independent Children’s Lawyer and there was no response.
·The father was called outside court and the matter stood down until the afternoon at 2:15 pm and he did not attend at court.

Background

The parents were married in 1993 and separated in October 2009. They divorced on 9 February 2013. There are five children of the marriage and it is only the three youngest children who are the subject of these proceedings, as their two older siblings are now adults. The mother is aged 45 and the father is aged 50.
The final orders made in the Federal Magistrates’ Court on 2 December 2011 provided for the parents to have equal shared parental responsibility and for the three children to live with the mother. The orders provided for unsupervised time to be spent by the father with the three children on alternate weekends and for half of each school holiday.
The Department of Human Services issued a protection application in relation to the children on 27 December 2012 which was subsequently withdrawn when the mother issued proceedings in this Court.
The mother’s Initiating Application was filed 14 March 2014 and was subsequently amended by an Amended Initiating Application filed and served on 14 May 2015.
On 3 July 2014 interim orders were made by Senior Registrar FitzGibbon requesting information from the Department of Human Services by 16 September 2014, that the father’s time with the children be suspended and in lieu the father spend time with the children at a contact centre at times nominated by the Director and that the father communicate with the children by telephone. The father was ordered to attend upon a psychologist or psychiatrist nominated by the Independent Children’s Lawyer for a risk assessment. Ms E prepared a psychosexual assessment of the father but this was not relied upon by the mother or the Independent Children’s Lawyer because the assessment was undertaken without the information provided by DHS. I have therefore no evidence as to any risk assessment of the father.

The Evidence

The mother relied upon the following evidence in support of her application:
·Affidavit of the mother filed 14 March 2014
·Exhibit A- copy of the father’s criminal record – LEAP – Victoria Police
·Report prepared by DHS in response to the request under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) made by Senior Registrar Fitzgibbon on 3 July 2014.
The Independent Children’s Lawyer sought to rely only upon the s 69ZW DHS report.

The Children’s Court Protection Application

The mother relied on a report prepared by DHS in response to the request under s 69ZW order of the Act made by Senior Registrar FitzGibbon on 3 July 2014.
There were four Intake procedures between 2008 and 2012, where the Department closed the file after initial investigations.
Between October and November 2008, a report was made to Child Protection regarding a physical altercation between the oldest daughter and the father. The report also describes the father pushing the oldest son into a wall and holding him up against it with his arm over his chest, as well as an incident where the mother tried to leave the father and the oldest daughter was dragged out of the car during the confrontation. The report was closed at Intake because of protective action by the mother.
In July 2011, a report was made regarding concerns about heated verbal arguments between the mother and father when an Intervention Order against the father was already in place. That report was closed at Intake because the mother was acting protectively, although concerns were raised about the father’s mental health and his previous physical abuse of the older children.
Between October and November 2011, a report was received in relation to the mother’s physical discipline of C involving a wooden spoon and a strap which amounted to unlawful chastisement. The father was advised that no further action would be taken.
In September 2012, a report was made raising concerns about the mother and the oldest daughter being abusive to C, and about the maternal grandmother threatening the children with a strap if they are naughty. Concerns were also raised about the maternal grandmother’s threat to kill the father while holding a knife in her hand, to which the children were witness. No further action was taken because the reports were unable to be verified, there were at that time a number of professionals involved who could monitor the well-being of the children, and because this Court was considered capable of dealing with the concerns raised.
The December 2012 Protection Application initiated in the Children’s Court was sought on the basis of reports of the following:
·The father had asked B’s friend (who was visiting B at his home) for a hug while wearing only his underwear, then exposed himself to her;
·The father had “tongue kissed” and licked the neck of the adult female sibling who is currently aged 21 when she was approximately 12 years of age. This was reportedly done in the presence of other family members;
·The father is sexually explicit in his speech, and wears only his underwear around the house;
·The mother makes allegations of family violence against the father.
The father denied all of these allegations made against him and the Department of Human Services asserted that during the Children’s Court involvement, the father adopted a defensive and aggressive response to the allegations and declined to participate in their investigations. No thorough investigation or assessment of risk was possible and the father had only supervised time with the children. The children also had counselling about protective behaviours.
The assessment by the Department of Human Services in September 2014 was that the father “continues to pose a sexual and physical risk of harm to his children in the absence of him not acknowledging the protective concerns, and not taking any responsibility for the risk he poses by not engaging in service provision that would provide further assessment on most appropriate intervention to reduce further risk of harm”.
The report from the Department of Human Services noted that the mother does not pose a significant risk of harm to her children on the basis that she has acknowledged the protective concerns and supported the intervention of service providers to assist her and her children in ensuring the ongoing protection of the children. In July 2014, the Department withdrew their involvement with the children as the mother had obtained Interim orders in this court which would address the safety concerns. Child Protection closed the case.
The Department recommended that contact with the father should be supervised by a professional with no personal connection to the family given the father’s ability to be convincing that he poses no risk to the children.
I accept the evidence in the report from DHS that the father was not particularly co-operative in being assessed at that time and that it was the opinion of the professionals that he continued to pose a sexual and physical risk of harm to the children in the absence of acknowledging the protective concerns. This opinion was not tested on any evidence and remains an assessment based on the investigation which was discontinued.

Standard of Proof

The relevant standard of proof is the balance of probabilities. I have applied s 140 of the Evidence Act 1995 (Cth) which provides that without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)The nature of the cause of action or defence;
(b)The nature of the subject matter of the proceedings; and
(c)The gravity of the matters alleged.
I am satisfied that the mother has provided evidence to prove her case on the balance of probabilities. The father has not elected to pursue his case, to challenge the mother’s evidence or adduce other credible evidence. Counsel for the Independent Children’s Lawyer did not take issue with the evidence of the mother and did not require any witnesses to be cross-examined. As such, the parties proceeded on the basis of submissions only and the evidence remains untested.

Evidence of the mother

I accept the unchallenged evidence of the mother.
The mother’s evidence in her affidavit of 14 March 2014 sets out the background of the parents’ relationship. She deposes that the father has a history of depressive behaviour and has repeatedly threatened to kill himself. She deposes that these threats have often occurred in the presence of the children. The mother provides examples of incidents where the father has contacted her threatening to kill himself shortly after their separation in October 2009. This threat was conveyed to the children’s older brother Mr F and the police found the father with a rope in the G Town, which the mother deposes is a place of significance to the family. The mother’s evidence is that she believes the father was admitted to the H Hospital under observation for a period of three days.
The mother deposes to at least two other occasions in 2010 where she received phone calls from the father threatening suicide. She deposes that the father abuses alcohol and that his drinking exacerbates his mood swings and unpredictable behaviour.
In January 2011, the mother applied for a family violence Intervention Order in favour of the children’s older sister and herself, which was granted on 10 February 2011 for a period of two years. The order[1] discloses that the father did not agree to the order being made and did not attend the hearing.
[1] Annexure CLL-2 of the mother's affidavit filed 14 March 2014
The mother deposes that the father’s controlling and abusive behaviour continued, and that he frequently made negative comments about her and to her. On 7 July 2011 she made a Statement to police at Suburb I Police Station about the father’s breaches of the Intervention Order. She deposes that she believes he was subsequently charged with six breaches of the Intervention Order and attended Court but she is unaware of the outcome of those proceedings.
The mother deposes that on 14 July 2011, she made an application to the Federal Magistrates’ Court for a recovery order when the father refused to return the children to her care. She deposes that the father’s mental health was then, and still remains, unstable and unpredictable, and that she then believed he was capable of harming the children, or of self-harming in the presence of the children.
The mother deposes that parenting orders were made in the Federal Magistrates’ Court on 2 December 2011. The three youngest children, the subject of these proceedings, were to live with the father each alternate weekend and for half of the school holiday periods. The mother states that the father often breached the orders according to his wishes and that she was too intimidated by the father to resist.
The mother deposes that between August 2011 and December 2012, B was reluctant to spend time with the father and would often call the mother from the father’s house crying, complaining of stomach pain and saying she wanted to return to the mother. The mother says B told her the father worked night shifts and that she called friends over to stay with her so that she and her younger siblings would not be alone overnight.
The mother deposes that B told her that the father made comments to her about the size of her breasts and buttocks, and that when she spoke to the father about these comments he said that he was only joking and that B “needs to get the f*** over it”. On one occasion, the mother recalls that B returned home crying uncontrollably after the father told her that “you will turn out to be [a] whore just like your sister”.
The mother deposes that D would sometimes say she did not want to spend time with the father, but that she dismissed this because she considered that D was attached to the mother as her primary caregiver.
The mother deposes that she was advised by her solicitor to comply with the parenting orders, because at that time there was not enough evidence to return the matter to court.
The mother deposes that DHS conducted a visit at her home on 21 December 2012, responding to a report about the children being exposed to sexualised behaviour perpetrated by the father. The mother deposes that she is aware that the parents of one of B’s friends, who was then 12 years old, made a report to the Department.

The mother deposes that DHS issued a Protection Application in relation to the children, and that the father has spent supervised time with the younger children for one hour per fortnight since January 2013. The mother further deposes that since around November 2013, the father has often cancelled visits, and that the children report that he says he does not need supervision.
The mother deposes that she was advised by DHS to commence proceedings in this Court in light of the risk that the father will continue to expose the children to sexualised and other inappropriate behaviour, and to allow for supervised time only with the children.
The mother deposes to a history of family violence involving physical, verbal and emotional abuse during and after the relationship. The mother describes an occasion in late 2008 or early 2009 when she attempted to end the relationship with the father and got into the car to leave with the three younger children and the oldest daughter. The father ran outside, dragged the oldest daughter out of the car and attempted to hit her while holding her in a headlock. The mother deposes that the oldest son ran outside and pulled the father off her.
The mother deposes that the father once physically assaulted the oldest son in around mid-2009, and that in April 2012 the father punched the oldest daughter in the stomach when she was 32 weeks pregnant with her first child.
The mother deposes that on 7 February 2013, she obtained an extension of her Intervention Order for a further period of 12 months as a result of the father persistently breaching the order. The order expired on 10 February 2014.
The mother describes another incident on 7 March 2013 where the mother arranged to meet the father at a high school to exchange B’s belongings. D, the youngest child, was in the car with her, and she handed B’s belongings to the father through the car window. When the father became verbally abusive, the mother closed the car window. She reports that the father attempted to punch her but instead punched the window around three times before twisting off her side mirror and throwing it at the car. She states that D became very distressed and was crying and screaming, and that the father yelled at her and said that the mother “deserved it”.
The mother reported the incident to Suburb J Police Station and the father attended court in December 2013, where he was fined $900.00 and was ordered to pay for the damage to the mother’s car, which he has not done.
In or around March 2013, the oldest daughter of the marriage also applied for an Intervention Order against the father after making an allegation of sexual abuse by the father to Victoria Police. The mother reports that the oldest daughter made disclosures to the effect that the father “stuck his tongue down her throat” on at least six occasions and would suck her neck to give her “hickeys”, and one of those occasions was when she was 12.
The mother deposes that she was told by the oldest daughter that the father would become physically abusive towards her if she resisted his sexual advances, by throwing her out of the car, trying to strangle her and pushing her around.
The oldest daughter withdrew the charges of sexual abuse against the father in late 2013.
At the time of affirming her affidavit, the mother deposes that B was in Year 8 and was taking medication to manage her Attention Deficit Hyperactivity Disorder. The mother deposes that B is behind academically in comparison to her peers, but otherwise has no issues with attendance at school.
The mother believes that the father is emotionally abusive toward B and that B has been told by the father to delete text messages between them. The mother describes an incident in October 2013 when B was crying following a telephone conversation with the father which she interpreted to be a farewell call. B was told that the father had said “he was going away and that neither she nor her siblings would ever see him again”, and that he was going to cancel the remainder of his supervised visits. The mother also deposes that B has been crying on a regular basis and telling the mother that everything is her fault because of her friend’s complaint of sexual assault perpetrated by the father.
The mother reports that B is attending upon a psychologist through her school since March 2014.
At the time of making the affidavit, C was in Year 5. The mother deposes that she experiences behavioural problems since late 2009 when the father made his first suicide attempt in G Town. In October 2013, the mother deposes that an incident occurred at home while she was at work, namely that C took a knife from the kitchen to threaten the maternal grandmother and his three sisters. The police were called and C said that he was “sick of the girls targeting him and was sick of being around girls”.
The mother states that C participated in a six week intervention program with L Group in mid-2013, and that he has since been seeing a counsellor with sessions expected to continue for about a year. The mother noted improvement in C’s behaviour which slipped toward February 2014, at around the same time the father provided him with a mobile telephone. The mother says that since this time, C has referred to his sisters as “sluts” and “whores” and has been physically violent towards them, particularly D.
At the time of making the affidavit, D was in Grade 1. In April 2013, she was referred to the K Centre for displaying highly sexualised behaviour, such as making comments about wanting to have sex with the father and with her sister, talking about “blow jobs”, “sluts” and “getting drunk”. The mother deposes that DHS observed D “humping the father on the side of the leg and behind his back, as well as grabbing her sisters’ breasts.” D has told the mother that she sleeps in the father’s bed.
The mother observes a decrease in sexualised behaviours since D has been spending limited supervised time with the father.
The mother commenced counselling at L Group in February 2014.

Exhibit A – father’s criminal record

The LEAP extract of 9 September 2014 subpoenaed from Victoria Police records that on two occasions in January 2012 and 28 November 2013 the father was found guilty of contravening a family violence Intervention Order at Suburb I Magistrates’ Court. On the earlier occasion he was also found guilty of using a carriage service to harass. On 1 August 2014 he was charged with one count of using threatening words in a public place and one count of recklessly making a threat to kill. At the date of the extract, those charges had not yet been finalised.
At the hearing, I was informed by counsel for the mother that despite orders made in July 2014 for the children to spend time with the father at a contact centre, the parties remain on a waiting list. The contact centre requested a copy of any subpoenaed documents produced by Victoria Police to assist the intake process.

The Relevant Law

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court must regard the child’s best interest as the paramount consideration in deciding whether to make a particular parenting order.
In determining what is in the child’s best interests the Court must consider the primary and additional considerations set out in ss 60CC(2) and 60CC(3) of the Act.

The Primary Considerations

The primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or being exposed to, abuse, neglect, or family violence.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[2]
[2] Referring to the Act section 60CC(2A)

Abuse and family violence

The term “abuse” in relation to a child is defined in s 4 of the Act as:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
“Neglect” is not defined in the Act.
“Family violence” is defined as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.[3]
[3] Family Law Act 1975 (Cth) s 4AB(1).
The Act provides that a child is exposed to family violence “if the child sees or hears family violence or otherwise experiences the effects of family violence”.[4] Some examples of situations that may constitute a child being exposed to family violence include:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
[4] Family Law Act 1975 (Cth) s 4AB(3).
In this case the primary considerations loom large. Whilst I am required to consider the benefit to the children of having a meaningful relationship with the father, in a case where there has been family violence perpetrated by the father against the mother and the children, the emphasis must be upon the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse or family violence. I am required to give greater weight to this consideration and the circumstances here demand that the balance shift in favour of those factors.
The children do not have a meaningful relationship with the father and I am satisfied that it is in the best interests of the children that they be protected from the father.
I am satisfied that the three children who are the subject of proceedings have been exposed to emotional, physical and mental abuse and family violence by the father. In particular I am satisfied that the children have been exposed to emotional abuse from the father’s threats of suicide.
This is corroborated by the observations of the workers at DHS, with respect to the three children, citing concerns about the father’s sexually inappropriate behaviour in front of the children, alcohol use, externalising behaviour due to mental illness, and a consistent failure to acknowledge the protective concerns caused by his behaviour.
Following the mother’s consistent engagement with counselling and her support of C and D in relation to the same, DHS has assessed that she does not pose a significant risk of harm to her children. Counsel for the Independent Children’s Lawyer supports the mother’s proposals.
In considering the risk of physical or psychological harm to the children as a result of exposure to the father’s violence, I consider that it remains important to protect them from this conduct. To maintain some form of relationship with the father it is appropriate to allow for limited telephone contact and communication by way of letters, cards and gifts in accordance with the conditions sought by the mother and counsel for the Independent Children’s Lawyer.

Unacceptable risk

As to whether there is a need to protect the children from physical or psychological harm from being subjected or exposed to abuse, or family violence, I am satisfied that there is such a need. This is based on the father’s history of violence towards the mother and the children’s older sister (as described above in this judgment). The father has decided not to participate in proceedings and thus has provided no evidence as to his having made any changes that would diminish my concerns about his behaviour into the future.

The Additional Considerations

The additional considerations are listed in section 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.
The evidence before me is untested and the mother’s affidavit was made 15 months ago. I also have in evidence a report written by DHS nine months ago. With the exception of the Victoria Police LEAP record of the father’s offending history, no further evidence was sought to be filed on behalf of either the mother or the Independent Children’s Lawyer to further advance their joint position. No evidence is before me regarding the success or otherwise of the supervised time the father spent with the children. I therefore take the evidence as it stands.

Section 60CC(3)(a): any views expressed by the children and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views

I accept the mother’s evidence that B was reluctant to spend unsupervised time with the father and has frequently called the mother to terminate time, crying and complaining of stomach pains. D also has been reluctant to spend unsupervised time with the father. These concerns are largely historic as they relate to unsupervised time with the father, which neither the mother nor the Independent Children’s Lawyer now support and which I do not now propose in my orders. The views of the children remain unclear at this time. However the evidence regarding family violence and the breaches of family violence intervention orders remain a more important consideration.

Section 60CC(3)(b): the nature of the relationship of the children with each of the child’s parents and other persons (including any grandparent or other relative of the child)

On the evidence before me, B appears to be deeply conflicted between her father and her mother. On the one hand, she has historically refused to spend unsupervised time with the father and was reluctant to show him physical affection. On the other, she has blamed the mother for her friend’s allegations of sexual assault by the father to the police. She becomes very distressed about both.
C has been reported to say that he was “sick of being around girls” and threatening the maternal grandmother and his sisters with a knife. Without minimising the seriousness of this behaviour, C has been reported to become more respectful of his female family members with therapeutic intervention, with deterioration in behaviour around the same time he was provided with a mobile telephone by the father to communicate with him. The mother has also provided appropriate professional supports of which C has taken advantage since June 2014.
D has been observed to behave sexually inappropriately with the father from a very young age. There is otherwise very limited evidence with regard to her relationship with each of the parents.
The mother has always been the primary caregiver of the children and, despite the tensions of the spend time arrangements, has been assessed by the DHS to have acted protectively during and subsequent to the father’s family violence.
There is no evidence before me of the adult son’s relationship with the three children, but the oldest daughter of the marriage lives with the mother and the three children on a part-time basis.
I am satisfied that the orders I propose will consolidate relationships between the children and the mother and oldest daughter, to the extent that they will remove a significant source of emotional conflict from their lives. I am also satisfied that the mother will continue to support C’s engagement with counselling services which will encourage more respectful and considered behaviour.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

I am satisfied that there is no prospect of cooperation between the parents as to major long-term issues in relation to the children. The father has consistently refused to engage even with DHS in relation to their protective concerns, and I accept the evidence that the mother is undergoing counselling at L Group in relation to the family violence of the father. In circumstances where an Intervention Order against the father was in place for three years and which he breached on two occasions there is no reasonable relationship between the parents where the father has participated in decision-making.
I accept the mother’s evidence that since November 2013, approximately ten months after supervised visits commenced, the father has often cancelled visits and that the children have told her that the father says he does not need supervision.
The father’s communication with the children has been unsatisfactory and marred by family violence. He has failed to take the opportunity to consistently spend time with them since the supervised contact was arranged.
While the father has taken the opportunity to maintain communication with B and C, the evidence before me suggests that he is only willing to do so on his own terms.

Section 60CC(3)(ca): the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the children

There is no evidence as to whether the father has ever financially supported the children. The mother has supported and maintained the children financially.

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 either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

There is no application before the Court that would tangibly change the children’s circumstances as they have not been spending time with the father.
The proposal that the father have no contact with the children other than by way of communication by telephone conducted by way of speaker phone in the presence or hearing of the mother, and by way of letters, cards and gifts, is a change which is supported by counsel for the Independent Children’s Lawyer and is appropriate on all the evidence. There is no evidence from the father to support any other contact and I am satisfied that, having regard to all the evidence of the history of the children’s relationship with the father, this is in their best interests.
Based on the evidence before me, I am satisfied that the children would be at risk of further physical, and emotional abuse and family violence if their circumstances changed in spending time with the father. In circumstances where all five children of the relationship have been victims of, or exposed to, the father’s abusive behaviour, I am satisfied that any contact would have a negative effect upon the three children and potentially undermine the positive effects of the professional supports they have been receiving.
According to the evidence before me, the father commenced showing inappropriate sexual interest in the oldest daughter when she was 12 years of age. B’s friend alleges she was sexually abused by the father at 12 years of age, and B has also shown avoidant behaviours similar to those shown by the oldest daughter when she claims she was being sexually abused by the father. I make no finding in relation to this serious conduct as the evidence remains untested and the eldest daughter’s allegations were subsequently withdrawn.

D was six at the time of the mother’s affidavit and showing sexualised behaviour, such as saying she wanted to have sex with the father and her older sister, and rubbing her groin against the father’s leg and back. I am satisfied that she may be at risk of sexualised behaviour by the father in the absence of any evidence of the father being assessed.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

There is no application by the father to spend time or communicate with the children and no evidence is before me in relation to this consideration.

Section 60CC(3)(f): the capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

Again, the father makes no application and thus it is not necessary to consider his capacity to provide for the children’s needs. If this were necessary, on the evidence before me it would be impossible to make findings favourable to the father, as his actions in the past have, at best, disregarded the needs of the children.
DHS has expressed safety concerns regarding the father’s mental health and alcohol use. On the mother’s evidence, the father has threatened suicide and self-harm on multiple occasions, and he has previously been hospitalised for psychiatric health issues. The father has refused to acknowledge the safety concerns held by DHS in order to address and minimise the risk he poses to the children.
The mother had previously been assessed as being unable to act protectively in relation to the children. Her history of victimisation through family violence was said to be a large contributing factor to this incapacity. I accept her evidence that she commenced counselling with L Group in early 2014. DHS do not consider her a significant risk of harm to the children.
I accept that the mother has demonstrated a capacity to support the children’s engagement with counselling services and has acted protectively in bringing these proceedings in response to the concerns of DHS.
There is no evidence of the children’s relationships with other persons, such as grandparents. Although there is evidence that the oldest daughter lives with the mother on a part-time basis, there is nothing to indicate the quality of the relationship between the oldest daughter and the three children the subject of my decision.

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

B suffers from attention deficit hyperactivity disorder and C has behavioural problems. D has been attending for counselling weekly as a result of her display of highly sexualised behaviour in April 2013. The history of the father’s conduct is that he has not assisted the children with these special needs. The mother has been cooperative with DHS and is doing her best to address these issues through counselling. There is no other evidence before me in relation to this consideration.

Section 60CC(3)(i): the attitude to the children, and to the responsibilities of parenthood, demonstrated by of the children’s parents

The mother has demonstrated a responsible attitude towards parenthood and to the protection of the children, demonstrated by bringing these proceedings on the recommendation of DHS. The father’s conduct in breaching intervention orders, subjecting the children to violence on occasions and making suicide threats within their hearing together with his abuse of alcohol is evidence of the father’s irresponsible attitude towards parenthood. It also demonstrates a lack of regard for the emotional well-being of the children.

Section 60CC(3)(j) and (k): any family violence involving the children or any member of the children’s family and any inferences to be drawn from family violence orders

A family violence Intervention Order in favour of the mother and the children’s older sibling was made against the father on 10 February 2011 for a period of 2 years. The father did not agree to this order being made and did not attend court.[5]
[5] Annexure CLL-2 of the mother's affidavit filed 14 March 2014
The unchallenged evidence which was the basis of that order refers to verbal abuse and threats made by the father against the mother in January 2011 and hundreds of messages and phone calls over the last 14 months all of which contained threats of publicly exposing intimate personal information about the mother. The written complaint of the mother refers to verbal abuse by the father when collecting the children for visits. Although this evidence was untested, I infer from this that the evidence was accepted by the Magistrate for the purposes of making the intervention order.
The father was found guilty of contravening that order at three court hearings in 2012. This is consistent with the mother’s affidavit evidence about the father. An inference can be drawn from the breaches of intervention orders that the father’s conduct indicates a propensity to disregard intervention orders.
A further 12 month intervention order was made in favour of the mother against the father on 7 February 2013 where the father did not agree to the order being made and was not present for the hearing. The evidence before me does not disclose the complaint made which formed the basis for the order.

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 child

In light of the substantial concerns raised by DHS, it is important for the children to have some certainty by way of court orders about the future arrangements for their relationship with the father.

Parental Responsibility

Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61DA of the Act provides that I must apply a presumption that it is in the best interests of the children that the parents have equal shared parental responsibility. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
There is no application by the father for equal shared parental responsibility.
I am satisfied that the presumption of equal shared parental responsibility is rebutted in this case because of the conduct of the father which includes the breaches of family violence intervention orders. There is no prospect of cooperation between the parents in circumstances where the father has been controlling and domineering towards the mother on the evidence of the mother corroborated by DHS. There are reasonable grounds to believe that the father has engaged in family violence.
I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that the children spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the children.

Conclusion

I accept the submissions made on behalf of the Independent Children’s Lawyer and the mother in support of the proposals of the mother and am satisfied that the proposed orders which have been agreed between the mother and the Independent Children’s Lawyer are in the best interests of the three children.
In reaching this conclusion, I am taking into account the fact that the father has determined not to participate any further in the proceedings and has not been assessed in terms of the level of risk to the children.
The evidence remains untested but there are serious issues raised by the assessment of DHS as previously outlined that the father poses a risk to the children. There are also considerations of family violence witnessed by the children which are of significant weight in the assessment of the mother’s proposals.
The father makes no application for orders.
As such, I find it inappropriate to order that the children spend time with the father. As for the mother’s submission that the father communicate with the children by telephone at any time agreed between the parties with that telephone on speaker, I propose to accede to that order given that it is in the best interests of the children to maintain a relationship with the father albeit with strict controls. Having the telephone on speaker would allow the mother to intervene if the conversation becomes inappropriate. It follows that a restraint on any other unsupervised communication should be made, since the mother cannot monitor all communications between the father and the children.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 17 July 2015.

Associate:

Date: 17 July 2015

[2015] FamCA 557

17 July 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Consent

Procedural Fairness