Massey and Montgomery

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASSEY & MONTGOMERY

[2016] FCCA 1890

Catchwords:
FAMILY LAW – Parenting – father did not attend final hearing – mother alleges she and the children were subjected to serious family violence – subpoenaed material shows father’s mental health issues more serious than the father stated – family report writer cross-examined – orders made.

Legislation:

Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 64, 65D

Applicant:

MS MASSEY

Respondent:

MR MONTGOMERY

File Number:

DGC 1328 of 2012

Judgment of:

Judge Harland

Hearing date:

14 July 2016

Date of Last Submission:

14 July 2016

Delivered at:

Melbourne

Delivered on:

14 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms O’Connell

Solicitors for the Applicant:

Fiona R Mcgregor

The Respondent:

No appearance

Counsel for the Independent Children’s Lawyer:	Mr O’Connell
Solicitors for the Independent Children’s Lawyer:	Mccormack & Co

ORDERS

BY CONSENT, IT IS ORDERED:

That all previous parenting Orders in these proceedings be discharged.
That the children of the relationship X born (omitted) 1999 and Y born (omitted) 2002 live with the mother.
That the mother have sole parental responsibility for the children.
That the father spend time with the children as follows:
(a)On the third Saturday of September, December, March and June in each year;
(b)All such time be supervised by a professional supervisor being a member of the Australian Children’s Contact Association;
(c)The father is to engage the professional supervisor and pay the supervisor; and
(d)The professional supervisor notify the mother no later than 14 days prior to the scheduled contact day and arrange a time by agreement with the mother for changeover.
That the Independent Children’s Lawyer explain these Orders to the children.
That the mother and the Independent Children’s Lawyer be at liberty to provide a copy of these Orders, reasons for judgment and the Family Reports from these proceedings to any counsellor for the children and any counsellor for the mother.
That the Independent Children’s Lawyer be discharged in 30 days.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1328 of 2012

MS MASSEY

Applicant

And

MR MONTGOMERY

Respondent

REASONS FOR JUDGMENT

X will be turning 17 in a couple of weeks’ time, on (omitted). He was born in 1991 and his younger brother, Y, was born on (omitted) 2002 and is aged 13. The mother was born on (omitted) 1972 and is aged 43. The father was born on (omitted) 1964 and is aged 51. The parties were in a relationship from the time that the mother was 18, in 1991, until the relationship ended in 2011.
The mother says that the father was physically, emotionally, and psychological violent during their relationship and was a frightening figure to both her and the children. The father makes some admissions about violence but minimises them.
The mother first commenced proceedings in this Court on 7 May 2012. Those proceedings were finalised when orders were made on an undefended basis on 8 May 2013. This was after two family reports had been prepared and the matter was listed on 8 May 2013 for what was to have been an interim hearing. On that occasion, whilst the father had a lawyer attend court, he did not and final orders were made in his absence. The orders provided for the mother to have sole parental responsibility for the boys; for the father to spend time with the boys, supervised by his brother and/or his sister-in-law and the children to live with the mother All communication was to take place via email, and the supervisors were to collect the children and return the children to the mother’s home. There were restraints in place with respect to the father, preventing him from consuming alcohol or illicit drugs 12 hours before or during any time he spent with the children, driving any motor vehicle with the children as passengers in the car and denigrating the mother or discussing the proceedings and allowing anyone else to do so.
The father filed a contravention application on 22 December 2014, which was dismissed on 18 March 2015. The mother then commenced the current set of proceedings on 8 May 2015 and a further family report has been prepared for these proceedings and an independent children’s lawyer was appointed to represent the children’s interests.
The father filed a response, affidavit and notice of risk on 5 August 2015. He has not filed any affidavit material since then. He did participate in the family report interviews and did attend Court on 10 August 2015, which was the first return date of these proceedings. He did not attend Court on the next occasion on 16 September 2015 and the matter was adjourned.
Again, there was no appearance by the father on 23 November 2015, which was after the family report was released. The matter was then listed before me on 17 March 2016. The father did attend on that occasion I listed the matter for hearing today. I listed the matter with a fairly short timeframe for trial, given the release of the family report and given the nature of the issues that were raised and the ages of the children. In my view, it was in the best interests of the children to have this matter determined quickly and given the serious nature of the violence allegations, also in the parties’ interests.
The mother then made an application through correspondence that was copied to the other parties to chambers, to have the mother attend the hearing either with a screen blocking her view of the father and the father’s view of her, or in a separate courtroom. I conducted a telephone mention to discuss that issue. Mr Montgomery attended that mention and I explained to him that, whilst I was minded to accede to the mother’s request, that this in no way meant that any allegations had been determined and that it was a matter of ensuring that both parties were able to participate in the proceedings. The issue was that the mother felt distressed at the idea of being in the same room as the father and if her distress was going to be such that then she would not be able to meaningfully participate in the proceedings, then that is an issue of access to justice for her, as much for him.
The father appeared to understand this and it would also be a protection for him, in that they are not in the same room; there is no then allegations about him conducting himself in any way such as to be intimidating towards the mother. It is certainly the case in matters of family violence that sometimes, particularly when parties know each other very well and given that these parties were in a relationship for 20 years, that one party can make threatening gestures or gestures that are intimidating to a party that seem innocuous to other people who are not in that relationship.
As the matter was listed in Dandenong and Dandenong registry does not have the same facilities as the Melbourne registry, I transferred it to Melbourne and made arrangements for the mother and her counsel and instructing solicitor to appear in a different courtroom on a different floor. As it turns out, the father did not attend the hearing today. He indicated to the Independent Children’s Lawyer a few day ago that he did not intend to participate. He had given every indication when the matter was last mentioned by telephone that he intended to appear and had said he was looking at getting some legal assistance for the hearing.
The mother has found the Court proceedings today very distressing even without the father being here and I certainly accept counsel’s submissions and Ms McGregor’s submissions about the mother’s presentation. I should say it was not necessary to take any oral evidence from her.
The Independent Children’s Lawyer did not require her for cross-examination and the evidence in her affidavit is clear. I did find that it was necessary and it was helpful to hear from the family consultant but given the level of the mother’s distress I excused her from attending the remainder of the proceedings after hearing that evidence and indicated that I would give reasons today so that the mother does not have any ongoing anxiety about what the result of the proceedings would be.
The mother’s position prior to the hearing was that the father should spend no time with the children. Her position certainly is that she has been deeply negatively affected by significant family violence perpetrated by the father. Her position is that the children do not really know who their father is and have an idealised vision of him. She does not think that it is in their interests to have anything to do with him.
She presented with an alternate position at the beginning of the hearing, which was for there to be supervised time supervised by a professional supervisor and she has further refined that position after hearing from the family consultant. This case has presented, I think, a dilemma for the Independent Children’s Lawyer and the Court in terms of what is in the best interests for these boys. If they were much younger, it may well have been a different result.
The challenges here are two boys, one of whom shortly will be a young man, have expressed strong views to the family consultant about wanting to see their father and having some anger towards the mother about not being able to see him. I will come back to this, but it is necessary, I think, to provide some background to this matter. It is agreed, although their reasons differ, that the previous orders did not work. The father was inconsistent in spending time with the children, and the arrangement broke down entirely. X last saw his father on Christmas Day 2013 and Y last saw his father in January 2014.
The father blames the mother for those arrangements breaking down. The mother says that those arrangements were always difficult because of the father being inconsistent and not spending time with the children for some months. She also had real concerns about the supervisors properly supervising in this matter because she had heard from other members of the father’s family that he had had ongoing mental health issues that they had not told her about.
That is what has led to the current round of proceedings. It seems particularly after the contravention application being brought, the mother decided to seek to have the previous orders discharged.
In the affidavit that the father has filed in these proceedings, he paints a picture of being a loving father who has been prevented by the mother from being able to actively parent these children even when the parents were living together.
His affidavit responded to the mother’s initiating affidavit and it is necessary to look at that affidavit to see what he was responding to in particular paragraphs. He complains in that affidavit that the mother “has not given me any relevant reasons for why she wishes to stop me from spending time and communicating with X and Y apart from her own anxieties”. It is somewhat surprising that he characterises in that way, given the content of the mother’s affidavit.
It is quite clear that in the mother’s affidavit she alleges that she was subjected to severe ongoing family violence which the children were also subjected to and exposed to. She talks about the impact that that has had on her on an ongoing basis.
In her affidavit, the mother says that the father has breached the intervention orders on a number of occasions and that in September 2014 he was found guilty and convicted of breaching the intervention order. In December 2014 Victoria Police applied to extend the intervention order for a further five years with the children named on that intervention order as well. It is significant to see an intervention order in place for such a long period of time; it is much more usual to see final intervention orders in place for a year or two years. Significantly, the father agrees with the content of that paragraph of the mother’s affidavit.
He goes on to complain that he believes that the mother has not “informed the children of their entitlement to see me when they wish”. He complains that the children have told him that they want to see him and that the mother has ignored this.
He admits to incidents of family violence but minimises them. He says that any violence by him was in response to the applicant always acting antagonistically towards him. He does not explain what he means by that, and he gives little detail about the incidents. He does admit to there being an incident that led to the separation, though his characterisation of it is different to the mother’s. He says at paragraph 22 of his affidavit that:
Damaging the car was the event that triggered a separation. I had been drinking on that day, and I pushed the steak knife into a chair and into a wooden carving board while the children were present. I also abused the applicant loudly in front of the children. I know that it was unacceptable and regret that the children and the applicant were terrified and traumatised by my actions.
The mother says that the father had a violent outburst where he had a knife that he stabbed into a piece of furniture where one of the children were sitting next to it and says that his outburst was directed at that son. She does not say which son it was. The father says it was not directed at their son and that he rested the knife next to where the son sat rather than stabbing it in the furniture. In my view, the father shows little appreciation of the impact of that kind of conduct on the mother and the children.
The Family Law Act 1975 (Cth) (“Family Law Act”) was amended in 2012 to greatly expand the definition of family violence and abuse. The definition came into effect on 7 June 2012. Section 4AB states:
(1) For the purposes of this Act, family violence means 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.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(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.
[emphasis removed]
The definition gives examples of behaviour that may constitute family violence. It’s not exhaustive but includes behaviour such as derogatory taunts, intentionally damaging or destroying property and stalking. It also importantly refers to children being exposed to family violence as being when a child sees or hears family violence or otherwise experiences the effects of family violence. There is no doubt that the children have been exposed to family violence directly. The father has not taken the opportunity to test the mother’s evidence I accept that this was not a single isolated event.
I’m certainly satisfied that the children have both been exposed to family violence directly but have also been affected by the family violence in that it’s quite clear that the mother continues to be badly affected by it today and that is something that the children have experienced and continue to because the mother is the primary carer.
The mother has filed and relies on an affidavit by Ms F who is the acting team leader at the Family Services and Community Health team who have been assisting the mother.
Ms F states that the mother’s usual family violence support worker is on extended leave and indicates that the mother has used the service regularly and continuously from 3 February 2012 until 19 July 2014, and then again from 14 May 2015 until 2 February 2016 having the same worker throughout that period. Then from 5 February 2016 to the present, Ms F and another family violence support worker has been giving her support. I find the dates to be significant as they indicate that the mother has been engaging with that service before the first Court proceedings began, by some three months and continued to use the service for well over 12 months after the first set of proceedings concluded.
That indicates to me and certainly Ms F refers to it, that the mother has required significant ongoing support for her experience of family violence, and it has not been limited to when the Court proceedings have been on foot. Ms F refers to the mother having post-traumatic stress disorder and refers to the mother discussing in detail with her previous support worker and current support worker the incidence of family violence that she experienced and the impact that that has had on her, including nightmares, flashbacks and ongoing anxiety.
That is consistent with the evidence that she gives in her affidavits and her presentation before the family report writer and also her presentation at Court today. The father responded to the mother’s first affidavit where she talks about suffering from debilitating post-traumatic stress disorder arising out of what she describes as severe and sustained family violence that she experienced throughout the relationship and also describes that any contact with the father and the supervisors from the father’s family causes her significant anxieties.
The father says that he does not believe that her post-traumatic stress disorder is due to family violence and says that she refused to accept that the relationship was over and that she has always suffered from depression, anxiety even before they met and that she has suffered trauma due to experiences with her estranged extended family. The father is not in a position to be able to say what the mother’s post-traumatic stress disorder is due to and it may well be that it is a combination of things.

It may well be that the mother is a vulnerable person. Perhaps the mother has had previous issues, had previous trauma but that does not detract from her being significantly impacted by family violence. Perpetrators of family violence have to take their victims as they find them. I am certainly satisfied that the evidence indicates that there has been severe family violence that has been ongoing. The evidence also is that the father has continued to breach the intervention orders and that has occurred as recently as earlier this year.
Unfortunately, the police have not produced the material in response to a subpoena in time; however, I note that I have the father’s own admission that he did breach the orders and was convicted in 2014 and the mother says in her trial affidavit that the father was most recently convicted for three breaches of the intervention order on 8 May 2016.
The father’s own words show that he does not have any appreciation, of how his violence has impacted on the mother this is despite his statements saying that he suffers from post-traumatic stress due to his own childhood trauma.
In that first affidavit the mother says that the contact with the father triggers symptoms where sounds and smells triggers flashbacks; she has panic attacks and further she says:
It is difficult for me to articulate the effect of the father and his behaviour on me creating fear to the point where I have significant difficulty finding the words. I suffer panic attacks where I struggle to stand, let alone breathe. My sister received a message via Facebook from the father, and just hearing that he had contacted her caused me to suffer a severe anxiety episode where I could barely stand, breathe or speak.
The family report writer made her own observations of the mother, said it was hard to engage the mother, that she appeared to be vulnerable, the mother had great difficulty in engaging in that process. It is all consistent with what the mother says in her unchallenged evidence.
I have the impression that the father, in his material and in his presentation to the family report writer, is able to say the right words so express some contrition for his behaviour while at the same time minimising its effect because he characterises the mother’s conduct as alienating the children from him.
I think that the better view is that the mother has taken a protective stance with respect to the children. She has a real fear and I accept it is a genuine fear that the children will come into harm if they have contact with their father. That does not have to be physical harm; that can be emotional and psychological harm. The mother also feels that the father will not respect any Court order that is made and she says that that’s based on her own experience with him with respect to the intervention orders and it’s understandable why she takes that view.
She also refers to the father having contact with the boys via SMS and Facebook despite the intervention order being in place and the father says that the boys contact him; therefore he is not in breach of any intervention order.
The father also seeks to paint himself as a reformed person. He talks about admitting that he had alcohol problems during the relationship and that he suffered severe depression after the relationship but that the end of the relationship was a wake-up call to him and that he has engaged in counselling and is good Christian person.
One of the people the father engaged with is a social worker by the name Ms D. The mother refers to her in her affidavit. The mother says that the police contacted her in December 2014 with a request that she speak to Ms D and the mother refused. Ms D then spoke to X without the mother’s knowledge or consent.
The father says in his affidavit that he had received an SMS message on 14 December 2014 and at the time he did not know it was from X and thought it was from his daughter. He then says that it was not a breach of the intervention order because X contacted him and that Ms D contacted X to tell him that the father would not be able to return his messages. That evidence does not make any sense because if he thought it was his daughter contacting him, then there would be no issue about needing Ms D to speak to the mother on his behalf because the intervention order protects the two boys and the mother.
I find it extremely concerning that a professional such of Ms D would think it appropriate to contact a child in this manner and to speak to police in that way. This only added to the distress of the mother. It is also significant in the father’s affidavit that he denies that he has ever been suicidal and say that he had a hospital admission on the recommendation of his general practitioner to assist with his depression.
Counsel for the Independent Children’s Lawyer tendered subpoenaed material from (omitted) Area Health with respect to the father and that material was produced on or about 14 June 2016 so it does not cover the most recent month or two. Counsel for the Independent Children’s Lawyer summarised material from the subpoena to the family report writer highlighting the following incidents.
First of all, that there is a long history of the father having mental health episodes where he has been admitted to the service for suicidal ideation.
There were four admissions in 2012 and one in 2013. On 18 March 2014, the health records note that the father had a set against his half-brother and threatened to kill him, that the police attended and the father showed the police that he had five kilograms of potassium nitrate and was going to make a bomb. The father told the police that he was never going to do it. Whilst we do not have the police records, those notes indicated that the father’s brother has an intervention order against him and that the father may have been charged with an offence.
There was another admission on 30 April 2014. The records note the father had been diagnosed with depression, with ethanol dependence which is alcohol dependency, avoidant personality and that as at 2014, he had made five separate suicide attempts. The father admitted to the health workers that he did not attend the Court hearing and had failed to see the children, he justified this as saying that then the mother would have to deal with the consequences of the children acting out because of not having a father in their lives.
Three months before the family report interviews in August 2015, the father was again diagnosed with adjustment disorder which is now a popular phrase for depression and cluster C personality disorder and the earlier diagnoses were also referred to. He was admitted to hospital on 24 August 2015 after he wrote a 50-page suicide note and cut his arms with a Stanley knife before wrapping himself in a sheet and hoping that he would die.
There was another incident where he was admitted overnight on 7 July 2015, five days after the family report was released. There was another incident on 18 November 2015 and again on 10 December 2015 and he was admitted to hospital for a week from 2 January 2016 to 8 January 2016 having telephoned saying he intended to poison himself and hang himself. There was another admission on 15 February 2016 after he had rung to say that he was on the train tracks and the police had had to attend and remove him. He was discharged the following day.
There is a file note on 5 May 2016 where the (omitted) CAT Team called seeking information about the father and that is suggestive of the father having contact with a different mental health service. The father’s medical records show a different and concerning picture than what the father presented where the father denied ever having any suicidal intentions at all, when it is clear from those records that he had and that was before he filed that affidavit and it seems that he has had severe ongoing mental health issues before and after these court proceedings.
The father’s mental health adds another dimension to the issue of risk to the children and the father’s parenting capacity. The father in his affidavit indicated that he was suffering from PTSD and says that:
Considering our past, I can understand that it’s difficult for the applicant to still have me in her life but I believe we should be concerned about the best interests of the children, therefore I deny that I should have no part in the children’s life.
In his affidavit the father talks about turning his life around. He says the mother has no idea of what he is like now and that if he could prove what he was like, she would be surprised. Of course, his opportunity to show the mother his changed circumstances was to attend Court for today’s hearing. It is apparent though from the subpoena material that the father’s circumstances have not changed anything like what he suggests. He may well be in denial about that.
He may not want to admit the extent of the ongoing issues. Given one of his diagnoses is avoidant personality disorder, that it is consistent with the fact he has not attended Court today just as he did not attend court the last round of proceedings because participating in a hearing today would have been confronting for him as well. His evidence would have been tested as would have hers. I am satisfied that the father shows little insight into the extent of his violent conduct and the impact that that has had on the mother and the children. He also is minimising the extent of his mental health issues and may lack insight into this.
The family report refers to the children expressing strong desires to spend time with their father at paragraphs 33, 34, 37 and 38 which state:
[33] X expressed a wish that he wanted to see, speak and spend time with his father. He missed his father’s presence in his life and did not understand why he was not allowed to have a relationship with his father. When asked if he was aware of the mother’s concerns about their father, X responded that he remembered that in the past at times his father was unwell and X shared that ‘does not mean that he is a bad person or does not love us.’ He expressed a strong view that ‘He is my father. I want to have a relationship with him.’
[34] When asked what changes would make his life better, X stated that spending time with his father would make him happy. He did not wish to spend time with his father in a contact centre and he preferred his uncle’s home if it has to be supervised. He remarked that spending time with his father ‘anywhere and on any given date’ would make him happy. He shared that ‘I have no worries about me or my brother’s safety when being with my father. I also know that I am old enough to make my own decisions.’
[37] Responding to a question about if he could change something about his father or mother what he would do, Y responded that ‘I would make mum stronger and dad to be not aggressive.’ He further clarified that he had not seen his father being angry whilst driving, but had not seen him hurting his mother. He shared that Mr Montgomery had never hurt him or his brother.
[38] Y shared that he wanted to spend time with his father at his home. He was not scared of his father and did not believe that Mr Montgomery would hurt him as feared by his mother. He was confident that irrespective of the Court’s outcome, he would spend time with his father and also may live with him in the future. Speaking further Y expressed a wish that he wanted his father to attend his wedding and spend time with his grandchildren when he becomes a father.
The family report writer acknowledged the mother’s anxiety and distress but said that the boys were yearning to spend time with their father and were angry about not being able to do so and that she was of the view that the boys were likely to contact their father directly and make their own arrangements regardless of Court orders and that this was something that the mother was going to need to address. The report writer recommended that supervised contact recommence.
The family report writer also noted the mother’s opposition to the father’s brother and sister-in-law supervising in the future because she felt that they did not understand the severity of the father’s mental health issues and were judgmental of her. She also said that they did not tell her when the father had mental health issues. For whatever reason, including the possibilities that they did not know about his mental health episodes, given the subpoenaed material her concern that they are not able to adequately protect the boys is legitimate. Given that the subpoenaed record seems consistent with the mother’s concerns.
The family report writer recorded that the mother had difficulty speaking about her experience and difficulty reliving the trauma and noted that the mother was not reassured when she spoke to the mother about the possibility of the children seeing their father at a formal supervised contact centre. The father told the family report writer that the mother never let him participate in the children’s upbringing and that he had become depressed as a result. The father says that the mother was subjected to sexual abuse as a child and so she was afraid that the children would be abused if he spent time with them.
I note that the subpoenaed records indicate that the father experienced sexual abuse himself when he was 16. Paragraphs 26 and 27 of the family report states what the father told the family report writer about his mental health:
[26] The father conceded that during the relationship when under the influence, he did break and threw household items around. He admitted that he yelled and shouted and realised that his children would have heard him ‘ranting and raving.’ He drank to excess everyday but he denied mother’s allegations that he abused illicit drugs.
[27] The father stated that as depression took hold of him, it became very hard for him to establish a consistent and meaningful relationship with his children once in a month just for 4 hours. He became highly anxious before the visits and depressed after seeing his children. Mr Montgomery admitted that he was not able to continue spending time with his children on a consistent basis for many months. Soon after that the paternal grandfather had died and Mr Montgomery had a breakdown. He was treated at (omitted) Hospital for 12 days as he felt suicidal at the time. By the time he became well, the mother was reluctant to restart the visits and ever since he was trying to reconnect with his children. The father further shared that in August this year he had 10 days admission to the mental health facility in (omitted) Hospital after he received mother’s affidavit.
It struck me when reading the family report, in particular, that it is significant that the boys were expressing such strong wishes to see their father and that the mother had taken care not to discuss her experiences with the children and denigrate the father.
Some of the comments that the family report writer made in evidence today was enlightening about that issue. Before her evidence my impression was that the boys did not have much memory of what they had experienced. However, it was clear from what the family report writer said in evidence today that the boys do remember the father’s violence. They do remember their father throwing things, shouting and screaming. Y had written a poem about his father driving like a madman and he thought he was going to die.
The family report writer said that their presentation was unusual because they did not seem to have any fear of him despite their experiences and also did not have any empathy towards their mother and saw her as controlling or exaggerating what had happened. She said that it may be that the children have numbed their experiences.
The dilemma here is that boys are at ages where if they feel they are not being listened to, they are going to take their own action. They are talking with the father on social media websites. It is not outside the realms of possibility that they have had some face-to-face contact with their father without the mother knowing. The concern is how to balance the protective concerns whilst also acknowledging their desire to see their father. It is not unusual for teenage boys of that age, particularly where they have had very little recent involvement with their father, to want to know what he is like, as part of their sense of identity.
In some respects it would be better for them to know who their father is with all his failings. However there is firstly a real issue about whether the father will take up the opportunity to spend time with the children and re-engage with them despite the father’s desire to. It is clear that he has had the opportunity in the past and has not done it. So there are concerns there.
Secondly, there are also concerns about the impact on the mother if orders are made that she cannot accept. Certainly as I indicated, the mother has modified her position and now seeks orders that provide for the father to have supervised contact four times a year with a professional supervisor, with the father having to initiate that and the supervisor contacting her to arrange it and with the father paying for that supervision.
In my view, given the evidence before the Court, including the subpoenaed material, I am not satisfied that the father’s family would be in a position to provide that supervision, also if an order was made for the family members to be involved, the mother would not be able to cope with that scenario. The father’s family members are not here and are not aware of what is going on. The mother has not cut the boys off from the father’s family. She has contact with other members of the boys’ extended family. The boys saw their grandfather as he was dying and attended his funeral and they maintain contacts with other members of the father’s family. That is to the mother’s credit.
I am satisfied that the mother’s proposal is in the boys’ best interests. This is a way of making clear to the boys that their mother is not preventing them from seeing their father and that there is a gateway open for the father to see them. I have real concerns that the father will not take up this option. It may well be that the boys continue to see that as the mother’s fault. These are issues that have been discussed with counsel today.
The Independent Children’s Lawyer, Mr McCormick, will see the boys and explain the orders to them. The mother says that the boys had a good rapport with Mr McCormick. I think it will be important for Mr McCormick to explain to the boys that there is that opportunity for their father to spend time with them under certain conditions. I think it is important for the boys to have some knowledge that their father has been very unwell and continues to be unwell. This may well be an explanation as to why the father has sometimes not seen them even when he has had the opportunity to see them.
I have some concerns about the boys’ own mental health and emotional well-being. The family report writer certainly indicated when I asked that it would be a good thing for the boys to get some counselling to understand the impact of family violence. The type of conduct that constitutes family violence and also the mental health issues. The issue will be whether or not the boys are willing to engage in that process and I am not going to make an order for the mother to take them to counselling because that would be counterproductive.
As I indicated during discussions this afternoon, Mr McCormick will need to make some inquiries about services that are available such as Headspace or Relationships Australia, as I think it would be helpful that Mr McCormick tell the boys of what is available if they want to engage in those services. I think it is important that Mr McCormick tells them about that rather than the mother because it’s then coming from somebody independent. And it certainly can be that Mr McCormick says this is something that the judge wanted them to know about.

Legal Principles and their application to children’s issues

The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied that the mother and the children have been subjected to significant family violence. Section s.60CC(2)(b) takes precedence here. The presumption that there should be equal shared responsibility has also been rebutted.
The children have a close relationship with their mother. They do not have a close relationship with their father. As discussed above their father has not taken up the opportunities have had to spend time with the children which have been limited because of the risk issues to the children if the father was to spend time with the children unsupervised.
I have referred to the concerns about the father’s parenting capacity. I do not have concerns about the mother’s parenting capacity. The mother has some vulnerabilities. She has however proactively sought assistance.
I am satisfied that the orders I will make address the need for the children to have a relationship with the father whilst also protecting them from unacceptable risk if the father has unsupervised time. The father needs to be proactive about spending time with the children under the conditions I will impose. There will be some cost to him but the orders do not provide for frequent time so the cost should be manageable. Hopefully the father will choose to exercise time with the children in accordance with these orders.
I also consider that these orders are the least likely to lead to further proceedings. The orders do not close the door on the father having a relationship with the children if he chooses to and are also orders which will not compromise the mother’s capacity to continue to be the boys’ primary carer.
I note that a final order was previously made about giving the mother parental responsibility. I am certainly satisfied, given the family violence, that the mother should have sole parental responsibility. I will discharge all previous orders and make a fresh set, so that there is no confusion about which orders are in force and which are not.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 25 July 2016

[2016] FCCA 1890

14 July 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies