Masters & Herceg (No 3)
[2023] FedCFamC1F 766
•6 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Masters & Herceg (No 3) [2023] FedCFamC1F 766
File number(s): SYC 3858 of 2019 Judgment of: SCHONELL J Date of judgment: 6 September 2023 Catchwords: FAMILY LAW – PARENTING – Unacceptable Risk – Where the mother sought orders for sole parental responsibility and for the younger child to spend time with the father on an identity contact basis – Where the father sought orders for equal shared parental responsibility and for unsupervised time – Where the father has been the perpetrator of family violence – Where the Court finds that the father has not taken responsibility for his conduct – Where the father failed to engage in a men’s behaviour change program despite being recommended to do so and despite opportunities – Where the father has ceased supervised time with the children and could not provide an answer as to whether he would attend supervised visits if ordered – Where the Court is of the view that the father poses an unacceptable risk to the younger child and that time should be supervised – Ordered that the father spend supervised time with the child on an identity contact basis.
FAMILY LAW – INJUNCTIONS – Where the mother sought injunctions for the personal protection of herself and the children pursuant to s 68B of the Family Law Act 1975 (Cth) – Where the Court is satisfied that the restraints sought would assist the mother in her parenting capacity and thus are in the children’s welfare – Injunctions made.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 117 Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Masters & Herceg (No 2) [2002] FedCFamC1F 341
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 172 Date of hearing: 9 – 11 May 2022 and 28 August 2023 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Sydney Law Group Pty Ltd Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
SYC 3858 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MASTERS
Applicant
AND: MS HERCEG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The respondent mother (“the mother”) have sole parental responsibility for the children X born 2007 and Y born 2016 (collectively “the children”).
2.The children shall live with the mother.
3.The mother will use her best endeavours to inform the applicant father (“the father”) in writing of any major decisions she may make in relation to the schools at which the children attend and any serious medical diagnosis involving the children.
4.X will spend time with the father in accordance with his wishes.
5.Subject to Order 5(e), Y shall spend time with the father as follows:
(a)From 10.00 am until 1.00 pm on the first Saturday of each school holiday period.
(b)On Father’s Day each year from 10.00 am to 1.00 pm.
(c)On 24 December of each year from 10.00 am to 1.00 pm.
(d)By Zoom, Facetime or some other appropriate cyber method on Y’s birthday, and on the father’s birthday each year:
(i)If those occasions fall on a weekend, at 10.00 am on that day; and/or
(ii)If those occasions fall on a school day, at 7.00 pm on that day.
(e)Other than when the father is spending time with Y in accordance with Order 5(d), the father’s time with Y is to be supervised at N Contact Service, and in the event that they are unable to provide supervision, then P Contact Service at Suburb Q, and if they are unable to supervise, then R Contact Service, or such other supervision service as may be agreed between the parties in writing.
(i)Both parties shall contact the nominated supervision service within 14 days of these orders and shall complete the intake to allow supervised time to occur, and shall complete the intake of any other supervisor as set out in these orders.
(ii)Both parties shall comply with any requirements and requests of the supervisor and supervising service as engaged from time to time.
(iii)The father shall be solely responsible for the costs of supervised time and shall arrange and pay for the time to occur not less than four weeks prior to the time occurring otherwise the visit is cancelled.
6.Should Y wish to spend additional time with the father, the mother will communicate with the father by text for the purpose of arranging additional time, with such time to be supervised in accordance with Order 5(e).
7.In the event that the father does not spend time with Y on two consecutive occasions, then Orders 5(a) to 5(c) are suspended pending written consent of the mother.
8.The father be restrained from drinking alcohol and using non-prescription medication and/or drugs of abuse in the 12 hours prior to and whilst the children are spending time with him.
9.The mother is permitted to travel with the children for a period of up to 10 weeks each year, whether that time is spent in one block if the mother is travelling with the children outside of New South Wales or Australia, or in blocks of time spread over the various school holiday periods in each year.
10.During the times the mother is travelling with Y:
(a)The father’s time with Y is suspended and any missed time will be made up in the next school holiday period on days nominated by the mother; and
(b)The mother will arrange for Y to speak with the father over Zoom, Facetime or some other cyber method on the date Y was to spend time with the father, but allowing for time differences which may be in place at the time of travel.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth), orders are made for the personal protection of the mother, Ms Herceg, and the children being X and Y, and the father is hereby restrained from:
(a)Entering or remaining in any place at which the mother and children reside;
(b)Entering or remaining in any place that the children attend school; and
(c)Entering or remaining in any place at which the mother attends for her work and employment, including the offices of S Company at Suburb T.
12.The mother shall arrange for the children to meet with the Independent Children’s Lawyer (“the ICL”) within 14 days of these orders so that the ICL can explain the effect of these orders to the children.
13.The ICL’s oral application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters & Herceg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings in relation to two children, namely X born 2007 who is currently 15 years of age and Y born 2016 who is currently 7 years of age.
The applicant father (“the father”) and the respondent mother (“the mother”) separated in May 2019 following an incident of family violence in early 2019. The parties have been in almost continuous conflict since that date about the appropriate living arrangements for their children.
A final hearing commenced on 9 May 2022 and following evidence from the Family Report writer, interim orders were made on a consensual basis that provided for the father to spend time with the children on a supervised basis, various injunctive restraints and orders that provided for the father to undertake a series of courses including a men’s behaviour change Course, engaging with a therapist in relation to alcohol use and engaging with a therapist for the purposes of the father accepting responsibility for his assault on the mother.
The adjournment arose in circumstances where the Family Report writer had made various recommendations. I note that in my ex tempore reasons for judgment (Masters & Herceg (No 2) [2002] FedCFamC1F 341) delivered on 11 May 2022, I recorded the following:
26.The Family [Consultant] was cross-examined today. She was asked about her recommendations that the father needed to undertake various courses. She indicated that completion of the courses was a necessary precursor to a movement to unsupervised time but that the father would need to accept responsibility, recognise the problems, and there would need to be an improvement in communication. It was explored with the Family [Consultant] how the Court would become aware whether the father had gained the necessary insight into the impact of his behaviour. It became apparent that the Family [Consultant] was of the view that that matter could only properly be determined through the prism of further evidence and that by necessity that involved making today interim orders.
27.The Family [Consultant] recommended that the parties engage in a form of therapy albeit that it only need be limited to about six sessions and it was apparent that it did not involve the mother and father necessarily being in the same room. It also became clear that there would need to be some feedback from the facilitators of the courses that the father was to engage in to ensure that there was some oversight of the father’s progress. It was also discussed with the Family [Consultant] about the necessity for an updated Report.
28.Following the expert evidence, the parties have engaged in some discussions and have produced a Minute of Order. I propose to make the orders as sought in that Minute.
29.I note, however, the Family [Consultant] seemed to infer that this was a chance for the father to prove himself. I note with some concern the observations contained in Exhibit 2, which is the Child Responsive Program Memorandum dated 29 November 2019, which records as follows:
•If the Court considers that [the father] has perpetrated family violence, then it may be appropriate for him to successfully complete a men’s behaviour change program.
30.They were prescient words and one wonders if the father had engaged at that stage with that recommendation whether we would be here today.
31.Be that as it may, the father needs to be pro-active. Now is his chance for the benefit of his children to take an opportunity.
The matter was adjourned part heard for further hearing commencing on 16 February 2023.
As it was, the hearing did not proceed on that date and was adjourned to 28 August 2023. On that occasion, the Court heard further evidence and had the benefit of an updated Family Report.
Each party amended the orders they sought from that which had been the position in the hearing in May 2022. The father for his part sought orders that he and the mother have equal shared parental responsibility, that the eldest child X spend time with him on an unsupervised basis in accordance with his wishes, and that he spend unsupervised time with Y each alternate Sunday between 10.00 am and 5.00 pm for a period of six months, with time thereafter increasing to alternate weekends and half school holidays.
The mother for her part sought an order for sole parental responsibility, that X spend time with his father in accordance with his wishes, that Y spend time with the father for one day in each holiday period, on Father’s Day and on Christmas Eve in each year, with such time to be supervised by D Contact Service or another supervision service. The mother also sought orders to travel overseas with the children, as well as restraints on alcohol and drug use by the father and various injunctions pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”).
The Independent Children’s Lawyer (“the ICL”) relied upon a Minute of Order that largely reflected the mother’s position.
The father relied upon the following documents:
(1)Amended Initiating Application filed 4 February 2022;
(2)Affidavit of father filed 25 March 2022 (“trial affidavit”);
(3)Affidavit of father filed 9 August 2023 (“updating affidavit”); and
(4)Case Outline document.
The mother relied upon the following documents:
(1)Further Amended Response to Initiating Application filed 10 May 2023;
(2)Affidavit of mother filed 25 March 2022 (“trial affidavit”);
(3)Affidavit of mother filed 10 August 2023 (“updating affidavit”); and
(4)Case Outline document.
There were two Family Reports prepared by Regulation 7 Family Consultant, Ms C (“the Family Consultant”), with the first Family Report dated 3 February 2022 (Exhibit 1) and the second Family Report dated 17 August 2023 (Exhibit 14). A Child Responsive Program Memorandum dated 29 November 2019 by Family Consultant Ms U was also prepared (Exhibit 2).
I have read all of the evidence relied upon in the proceedings, but do not propose to nor am I required to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62.… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
I have listened very carefully to the evidence and taken note of the answers given in cross‑examination. I have also carefully observed each of the parties give their evidence and the way they answered questions as well as their general demeanour.
My view of how each party gave their evidence and their general reliability remained consistent across both hearings.
I found the mother to be a credible witness. She was measured, careful in giving her answers and genuinely attempted to assist the Court by providing direct answers to the questions. I accept her evidence.
On the other hand, I found the father to be discursive and evasive in providing answers to questions, which I am satisfied he full well knew the answer to but was of the view that a direct answer to the question would not have reflected positively upon his case. At times he was overly detailed in answers to questions that obscured a straightforward answer and at other times he failed to engage directly with the question despite being directed to do so. I found that he consistently sought to minimise his own behaviour or blame others rather than take responsibility for his own actions and behaviours.
My observations of the manner in which the father gave his evidence over the two occasions of having witnessed him cross-examined accords with the observations of the learned magistrate in the criminal proceedings. In the judgment delivered in mid-2020, Magistrate F described him as “regrettably an evasive witness” (Exhibit 18).
The Family Consultant recorded in the second Family Report that:
46. The father maintains a position that he has done nothing which has impacted the children and which that requires apologies, explanations, reassurances, or reparations. He reported that he did not know why the family therapy did not proceed and indicated he held no responsibility for it ending without goals being addressed. His inflexibility around restitution remains a key barrier towards the children spending time with him, however he appears unwilling to accept any responsibility for his actions. His commentary remains strongly self-centred and is not child-focused.
It is clear from the correspondence from the family therapist that the view she held as to why the therapy ended did not accord with the father’s.
I am more than satisfied that the Family Consultant has the experience and expertise to express the opinions that she does. Having read the Family Reports carefully and watched her give evidence, I am satisfied that she has a comprehensive understanding of the issues and a unique insight into the problems facing both of these children. I found her Family Reports and oral evidence considered, insightful and logical. There was no submission made that I should reject her evidence as unsoundly based or without foundation.
I accept the opinions and recommendations as set out in the Family Reports and qualified and/or expanded upon in her oral evidence.
As is apparent from the form of orders that each party seeks, there is no issue that the children will continue to reside primarily with their mother. The parties were at issue about parental responsibility, and about the quantum of time that Y should spend with the father and whether that time should be supervised.
There was no issue that X should spend time with his father in accordance with his wishes. The mother however proposed that if he does, then such time should be supervised. There is an internal inconsistency with this position. Either he is old enough to articulate the terms and basis on which he sees his father or he is not. The mother thinks he is and therefore I am not satisfied that there is a basis on which to give him only partial autonomy as to decision making.
The mother contended that the father posed an unacceptable risk of harm to Y and that the only way to manage that risk was for the time to be supervised and to be limited to what was described by the Family Consultant as identity contact only.
The father for his part contended that he did not pose any risk of harm to the children and that he should spend unsupervised time with Y building up to each alternate weekend and half school holidays.
One of the tragedies of this case is that there is no issue that Y wants to have a relationship with her father and misses spending time with him. In that respect, the mother in her updating affidavit stated the following in relation to Y:
27.[Y] has generally enjoyed her visits with [the father] and has come back quite happy.
…
32. The lack of contact between [the father] and the children has been particularly hard on [Y]. She thinks the world of [the father] but just does not understand why she cannot see him and does not know when she will see him again.
33. I can see how [Y] suffers when she is with her friends, and they talk about their fathers. One evening, when [Y] and I were at one of her friend’s homes, her friend’s father made jokes and created fun games for the children during dinner. I could see how [Y] was missing her father. She spoke about [the father] on the car ride home and said words to the effect “when will I see dad again?”. I replied with words to the effect “I am not sure, but it is normal to miss someone when you love them and do not get to see them. It is okay to feel sad about not seeing Dad. Hopefully you will be able to see him soon”.
34. [Y] becomes quite sad and has said words to the effect I want to see dad “at his house”. She has also said words to the effect “why don’t we see dad anymore?” When [Y] asks questions about [the father] or gets sad about not seeing him, I comfort and support her. I do not lie to her about when she might see [the father] as he stopped seeing the children without any notice and I have no idea if or when he intends to try and spend time with [Y] again.
It reflects positively on the mother’s attitude to parenting that she gave this evidence. Consistent with the orders that she seeks, she could just have easily not included such evidence. The giving of such evidence is inconsistent with the father’s assertion that she has alienated the children from him.
The supervision reports speak positively of the father’s interactions with the children. The Family Consultant in the first Family Report recorded:
87. Collateral information from [M Contact Service] provided eighteen reports in relation to weekly and then fortnightly supervised visits for the children with the father. These reports indicate that the father was observed to be competent, warm, affectionate, and fully engaged with the children during visitation. The children were observed to thoroughly enjoy their time with the father and paternal grandparents. There were no concerns of significance raised by supervisors in the father’s engagement or management of the children. …
…
129. The mother reported that the violent incident that ended her relationship with the father was witnessed by the children, however it is common ground that prior to separation, the father had a close and caring relationship with both children. This was evidenced in collateral material from [M Contact Service] contact reports which raised no concerns regarding the father’s parenting or interaction with the children. The reports indicate he was prepared for visitation and remained focused on the children’s needs, sharing enjoyment and affection with them. It was recorded that the children at times were reluctant and sad to say goodbye to the father at the end of visitation. …
In the second Family Report, the Family Consultant recorded:
66. It is difficult not to concede that the many contact reports provided by both [M Contact Service] and [D Contact Service] indicate the father is warm, attentive, and thoroughly appropriate with the children and they enjoy spending time with him and reciprocate their love and affection toward him. It was noteworthy that any reluctance in [X’s] part soon dispersed, and he engaged happily with the father and paternal grandparents. …
A complicating factor is that the father contended that there is no need for supervision and that he cannot afford the cost of professional supervision. The issue of supervision by his parents had been raised on a number of occasions during the course of these proceedings. The father did not call them as witnesses so that they could be assessed for suitability. The father when asked about them as supervisors tangentially asserted that the wife’s parents were not the subject of any consideration and discursively avoided consideration of the issue, contending it was a matter that involved him and the mother and not his parents. His counsel in addresses raised issues about their age. It was not, however, suggested that age or infirmity would prevent them being supervisors.
A subset of issues is whether or not the father will actually spend time with Y in the event that it is ordered that time take place on a supervised basis. On two occasions, I sought a direct commitment from the father as to whether or not he would spend time if it were supervised. During the course of his cross-examination, when asked that question, he indicated that it would depend upon the reasons and judgment.
During the course of his counsel’s submissions, I directly asked his counsel what the father’s position would be in relation to the ICL’s orders that time be spent at N Contact Service. Counsel for the father was given an opportunity to take instructions. I adjourned and upon return I was advised by counsel that the father did not know what was involved in time with N Contact Service and therefore could not provide an answer to my question.
His failure to provide a positive assurance reflects poorly on his attitude to parenting and his commitment to a relationship with his children, particularly with the knowledge of what the Family Consultant said about the feelings of rejection and loss the children will feel in the event he does not.
I note the Family Consultant’s view in the first Family Report to the following effect:
134.… The father’s resistance to supervised visitation knowing the children want to see him, and miss him, does point to issues raised by the mother around the father’s inflexibility and obtuse stubbornness to concede fault or responsibility. …
I remain unclear as to whether the father will actually exercise supervised time.
BACKGROUND
The father was born in 1975 and is currently 48 years of age. He is of Aboriginal and Torres Strait Islander background.
The mother was born in 1978 in Country L and is currently 45 years of age.
The parties commenced cohabitation in 2003 and separated on a final basis on 23 May 2019.
As stated earlier, there are two children of the relationship, being X and Y.
The mother contended that the father began perpetrating family violence against the mother shortly after the parties’ commenced cohabitation. She said that the relationship has always been marred by family violence save for when the parties were residing with the father’s parents. In her trial affidavit, the mother deposed of several instances of family violence both prior to and after separation, including physical and emotional abuse in the presence of the children as well as stalking and intimidation. She contended that the father shoved her, would verbally abuse her and swear at her regularly including calling her “a fucking loser, a cunt, a whore” (mother’s trial affidavit, paragraph 142), banged her door yelling and shouting at her whilst she was sleeping such that on one occasion when she opened the door he was behaving threateningly and was physically violent.
The mother said the family violence generally occurred following the father’s consumption of alcohol and would usually cease when the father had passed out. For his part, the father denied that he was the perpetrator of family violence, save for the incident in early 2019, and denied that he abused alcohol.
From mid-2008 to mid-2011, the parties resided with the father’s parents. As stated earlier, the mother contended that during this period there was no family violence. She said that the family violence resumed in mid-2011 when the parties moved to alternate accommodation.
In 2013, the father lost his employment and the mother began financially supporting the family entirely. It appears since then that the father has not resumed full time employment, having worked casual jobs until 2015 and studying. In cross-examination, the father said that he had applied for several jobs but had been unable to obtain a job suitable to him. He currently obtains Centrelink benefits.
In early 2019, an incident of family violence occurred in the presence of both children. The parties gave conflicting accounts as to what occurred. The father’s account is inconsistent with the findings of the Local Court.
The mother contended that the father threatened her and was physically abusive including hitting her and putting her in a headlock. The father largely denied the mother’s assertions but conceded that there was a struggle and that he tackled her and put her in a headlock, albeit he said that this occurred due to the parties’ losing their balance. Following this incident, the mother left the house with the children and spent the night at the father’s parents’ home.
Three days later, the mother attended the police station to make a report about the incident but was unable to do so due to X becoming distressed. She deposed that she returned home with the children later that day but subsequently spent the night at a hotel because of the father’s aggressiveness. The following day, the mother and children returned home. Between that time and mid-2019, the mother undertook domestic violence counselling and made calls to a women’s refuge seeking a place to stay with the children.
The parties separated on 23 May 2023 when the mother and children left the former matrimonial home and went to stay at a refuge.
Soon after, the mother reported the family violence incident to the police and made a formal statement.
In mid-2019, the father was charged with multiple offences against the mother. A provisional apprehended domestic violence order (“ADVO”) was issued for the protection of the mother.
About one week later, the father entered a plea of not guilty to the charges and an interim ADVO was issued for the protection of the mother and the children.
On 19 June 2019, the father commenced proceedings in the Family Court of Australia (as it then was) seeking parenting and property orders.
In or around mid-June 2019, the father vacated the former matrimonial home.
Between July and August 2019, the father contended that he attended upon an addiction support organisation three times and that they told him he did not have a problem with alcohol.
In mid-2019, the AVDO was varied such that the exclusion of 100 metres around the mother’s residence was removed. The mother deposed that after the exclusion was removed, she saw the paternal grandfather on several occasions around her home. She also deposed to several instances of seeing the father following her.
On 20 August 2019, orders were made by consent that the children live with the mother and spend supervised time with the father each Sunday for four hours.
In September 2019, the father’s supervised time with the children commenced. The father and children had not seen each other since the parties’ separation on 23 May 2019.
The mother contended that in October 2019, the father drove up behind the mother and Y who were walking on the street, beeped the car horn and stared the mother down as he drove past. She said that she has since stopped taking Y to the local park for fear of running into the father. The mother contended that the next day, the father drove past her home, beeped the car horn and waved to the children. For his part, the father conceded that he has driven past the mother and waved to the children but contended that he did not intend to stalk or intimidate the mother.
On 1 November 2019, the father’s time with the children moved to four hours on a fortnightly basis due to the cost of supervision.
The father contended that he ceased supervised time with M Contact Centre on 1 March 2020 as he believed that the contact centre was not providing complete reports. The father did not see the children again until time recommenced in January 2022.
In early 2020, the mother said she moved her residence and that the next day the father followed her car.
In mid-2020, the father was convicted of the charges from the incident in early 2019, resulting in a community corrections order. A final ADVO was also issued for a period of two years.
On 3 August 2020, final orders were made by consent with respect to the property aspect of the proceedings.
In January 2022, the father’s time with the children recommenced.
The final hearing commenced on 9 May 2022 and concluded part heard on 11 May 2022, following which interim orders were made by consent. Those orders provided for the father to spend supervised time with the children on the third Saturday of each month for four hours.
Since December 2022, the father has not spent any time with the children. He contended that this was because he could not afford the cost of supervision. It appears that the father has had sporadic telephone communication with the children since then. The mother contended that the children were not told that time with the father would cease and that this has been hard on Y.
The mother suggested that despite saying he does not have a job, the father has purchased a new recreational vehicle. In cross-examination, she said she saw a recreational vehicle of the type the father wanted parked in a different street. She then said that she was adamant to see if the vehicle belonged to the father, so she drove past his house one day and saw it parked in his drive way. She said that she only ever saw it parked in his driveway on the one occasion.
In late 2022, the mother travelled to Country L with the children. The mother informed the father of these travels two months earlier, however, did not provide any details about where the children would be staying contrary to the orders of 11 May 2022. In cross-examination, the mother said she forgot to provide those details and did not provide them thereafter because the time had lapsed.
The matter resumed part heard on 28 August 2023. After hearing further evidence from both parties and the Family Consultant, the hearing concluded and judgment was reserved.
RISK OF HARM
The mother contended that she and the children have been victims of family violence. She maintained that she is afraid of the father and that he poses a risk of harm to the children. The Family Consultant in the first report recorded:
55. The mother’s view is that the children need protection from the father’s drinking, aggression, and his demanding personality. She feared that without supervised time the father would manipulate the children and undermine her relationship with them. She said the father has once told [X] that people who go against him get cancer. The father denied ever saying this.
56. The mother believes that her proposal is the best interests of the children because the father denies that his drinking is a problem and she remains adamant that the children will be psychologically and emotionally, if not physically impacted by his behaviour. She expressed concerns that the paternal grandparents were complicit in the father’s behaviour, and she held doubts that they would prioritise the children's needs over the father if he breached orders.
…
98. The mother reported concerns about a pattern of interpersonal conflict the father demonstrates in close family relationships, in workplaces with colleagues, and many other people and agencies he has been involved with that are characterised by fault-finding and constant demands. She indicated this behaviour is entrenched in the father and makes it difficult to negotiate or reach a compromise with him and will make co-parenting virtually impossible.
In the second report, she recorded the following in relation to the mother:
41. … She presented as pleasant and reserved and she indicated the proceedings were extremely emotionally draining. She remained concerned about the children’s capacity to cope with the ongoing uncertainty. She maintains the view that without visitation being professionally supervised, the children will be exposed to emotional manipulation by the father, which will undermine her relationship with them.
The mother’s view, supported by the ICL, about the need for supervised time is informed in part by her experience of the father as a perpetrator of family violence as well as the father’s inconsistent commitment to spending time with the children on a supervised basis, an ongoing concern about alcohol use and his attitude to parenting matters generally.
The father in his affidavit denied each and every assertion of family violence with the exception of the incident for which he was convicted. Even in that respect he sought to present an alternative view of the facts to those found by the Court, having pleaded not guilty to the various charges for which he was ultimately convicted and given a good behaviour bond.
The father denied that the children were at any risk of harm in his care. In the first Family Report, the Family Consultant recorded:
31. The father stated the mother’s pursuit of supervised time for him with the children was causing significant psychological harm to them when he was unable to afford to pay contact centres.
As to the question of risk, the Family Consultant recorded the following in her first Family Report:
130. The mother expressed her concern that the father may turn his aggressive behaviour toward the children if she were not available as the target. The mother is also reported to have told DCJ workers that the father had a good relationship with both children, and he had never been aggressive towards them except on the one occasion in [early] 2019 where he pulled [X] from the car. There were no reports that [X] was injured by the father and the incident demonstrates the mother’s protection and concern for the children when the father was intoxicated. There does not appear to be sufficient evidence to indicate the father would become violent toward the children and there is insufficient justification to stop the children spending time with the father. The benefits to the children spending time with the father, at least supervised, would appear to outweigh the concerns raised by the mother.
…
136. The mother reported the father’s physical assault on her in [early] 2019 was the catalyst to her ending their relationship. The father has been convicted of assault, however there were no reports of him undertaking any programs relating to family violence or Men’s Change. During the family interview the father minimised the assault upon the mother and there appears to have been no action taken by him to address his violence or to demonstrate to the mother and children that he has taken responsibility for his violent behaviour and is willing to try and make amends. Such actions would offer an appropriate model to [X] as a young man entering the stage if life when he begins to explore respectful relationships with peers. There is a space for the father to take the opportunity to re-educate himself about problem solving and managing oneself that does not require violence to be directed at others. It is recommended that he complete a Men’s Change program before any unsupervised time is considered. There is a current family violence order in place.
The Family Consultant recorded the following in the second Family Report:
60.… There appears no evidence to indicate that the father’s drinking is problematic or that it poses an unacceptable risk of harm to the children.
…
63.… The father’s unwillingness to take responsibility and be held accountable for his violence against the children’s mother prevents the children from gaining a full age- appropriate understanding of the events they witnessed, or to be allowed to seek answers from the father regarding any questions they may have which would allow them to feel reassured in his care in the future. This therapeutically supported work would have assisted them to process these memories. Opportunities for therapeutically supported processing of distressful or traumatic memories can help an individual shift the meaning and focus of these memories in their thinking and place them into long term memory allowing them to move forward with more confidence and reassurance.
…
70. The key question in this matter is whether the father poses and unacceptable risk to the children such that finding of no time is appropriate. If this is not the case, then consideration must be given as to whether he is a good enough parent. One who can give love, attention, and adoration to the children in a meaningful way so that they feel loved and valued. There was insufficient evidence to indicate that he poses any physical threat to the children and strong indications in contact reports to suggest he makes the children feel loved, important, clever, and valued. From this viewpoint the Family Consultant is of the opinion that father has something substantial to offer the children and they will benefit significantly from spending time with him. The benefits of which appear to outweigh the risk.
…
72. Whilst the Family Consultant does not support the views the mother holds regarding physical risk it is recognised that an emotional risk exists in relation to the father speaking negatively about the mother and attempting to undermine her relationship with the children must carry some weight. Noting again that the children have a very strong bond with the mother, and that she provides for all their daily needs, offering exceptional high- quality parenting it is viewed by the Family Consultant that the benefit to the children of having some limited and conditional time with the father would outweigh the impact of these concerns.
73. In saying this however, a framework is required to be in place to mitigate against any concern of risk. Some of these protections may include, ensuring unsupervised time occurs in short blocks of time during the day in public areas, for example popular and pre-designated parks, swimming pools, shopping precincts, or sporting venues. It is suggested a list is developed which is approved by both parents and addresses seasonal conditions and the children’s interests. There should be a prohibition on the father consuming alcohol or any non-alcohol/ ‘alcohol-like’ beverages whilst the children are in his care. Spending time arrangements should be supervised by the paternal grandparents at all times. Other paternal family members should be at liberty to attend visitation with the children. Further, there should be a prohibition on the father bringing the children gifts during this time, unless they are Christmas, birthday or easter gifts and except for purchasing activities to engage with the children during the time that he is spending with them.
…
78. The disadvantages of the father’s proposal are that they may be in emotionally unsafe in his care if they were to be exposed to the father or paternal family’s negative appraisal of the mother. If the mother-child relationship is disrupted or undermined, [Y] in particular is likely to experience confusion, stress, anxiety, as well as problems with trust. This may impact on learning, social development, and strength of relationship with both parents.
In her cross-examination at the resumed hearing, the Family Consultant confirmed that there was a risk that the father would attempt to undermine the mother’s parenting. She maintained that she was not confident that the father could restrain himself from being critical of the mother. She said that there is support for the mother’s view that he clashes with people and needs to be right, saying it is a part of his personality and that she has little confidence that he will be able to restrain himself or hold a neutral position. Later in her cross-examination she became more emphatic and positively asserted that the father will undermine the mother’s parenting and that would impact upon Y’s relationship with her mother.
The primary issue that informs what time Y should have with her father and whether or not it should be supervised are these issues of risk.
The High Court reminds in M v M (1988) 166 CLR 69 at 76:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
…
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. …
(Footnote omitted)
Further, the High Court states at 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
In Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), the Full Court constituting Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ had cause to reconsider the issue of unacceptable risk. In the course of their judgment, their Honours observed that earlier decisions of the Court in Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344 no longer accurately reflect the law in so far as they suggested that unacceptable risk needed to be established on the balance of probabilities.
Their Honours observed that when allegations of harm are raised, the relevant historical facts that underpin the allegations need to be established on the balance of probabilities.
However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility of harm in the past, which may not have been established on the balance of probabilities. In undertaking this risk assessment, the Court is assessing both the prediction of future harm and the severity of the impact if it eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
As their Honours observed:
47.… the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
Their Honours also specifically approved of Austin J’s judgment in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”), where his Honour observed as follows:
133. In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134. It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135. The conclusion reached by a court in Pt VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Proprietary Ltd (1990) 169 CLR 638; 92 ALR 545 (Malec)).
136. In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur …
…
… To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation …
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
… The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring …
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson v Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
141. Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in original)
Their Honours in Isles & Nelissen also specifically addressed the use of terms such as “unacceptable risk”. In particular, they recorded the following:
56.It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about “unacceptable risk” were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
57.However, courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 386, 390, 396, 403–407, 434–435 and 439; MRR v GR (2010) 240 CLR 461 at 464–466 and 468).
58.Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase “unacceptable risk” did not then appear within the Act. At that point in time, courts were required by the Act (then s 64) to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation. But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.
59.As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley (2014) FLC 93-581 at [17]–[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO Y?
It is not in issue in these proceedings that Y wishes to see her father and that the father wishes to see her. I have no doubt that the father deeply loves both of his children. I also have no doubt that the father has a lot to offer them in the event that he spent time with them. There is also a risk of harm to the children’s psychological health if they do not have a relationship with him. In that respect, the Family Consultant observed in the second Family Report:
67. Both children have expressed hurt and disappointment that visitation is commenced and then suddenly stopped creating a great deal of confusion for them. [X] who has previously had a strong relationship with the father appears to have lost hope and now expresses dismay and resentment toward him. It is critical for maintaining a strong bond between parent and child that the child believe they are valued and cherished by the parent. Unexplained breaks in the relationship can leave children feeling confused, rejected, and defensive. They may then reject contact as a method of self-defence. This pattern of behaviour is commonly observed with children in Out-Of-Home-Care settings. It is the opinion of the Family Consultant that [X’s] negative attitude toward the father is largely an action of emotional defence. Underneath his bitter resentment are feelings of failed hope, betrayal, and a broken heart. It seems inevitable that without regular contact [Y] will also eventually go the way of her brother and believe she has been abandoned by the father. It would appear that time has nearly run out and [X] is increasingly expressing views that he does not want to spend time with the father. He is also of an age where his views should be listened to. That said, if he is approaching problems with his relationship with the father from a position of hurt and anger, there is a possibility that he will refuse contact to protect himself from further rejection, which regular unsupervised time may remedy.
68. Holding an innate belief that one is loved, revered, and valued by a parent is at the core of healthy and resilient development of any individual. Any perceptions of rejection or abandonment is a corrosive element that undermines self-identity and self-confidence. The greatest risk to the children is the unfortunate likelihood that they will believe they have been rejected by the father and subsequently develop self-concepts, called core beliefs, that the father’s rejection is because they are intrinsically unvalued and unworthy; not being worthy of their father’s love. This is a very serious and detrimental self believe for a child to hold; therefore, it is always beneficial to promote a child’s connection with and knowledge of family unless there are genuine concerns for safety.
However, the benefits of that relationship have to be balanced against the risks a relationship poses to Y’s psychological health, which could also possibly imperil her relationship with her mother.
I am satisfied that the mother and the children have been victims of family violence perpetrated upon them by the father. The incident for which the father was convicted occurred in the presence of both children. It was a vicious and violent assault upon the children’s mother that occurred in the children’s home. The mother was violently assaulted by the children’s father and during the course of this violent assault, he attempted to have their son prevent the mother from calling the police.
I am satisfied that it would have been a very frightening experience for the children to have seen their father violently assault their mother. It is apparent from the judgment of the magistrate that the cross-examination of the mother sought to infer that she was the instigator and perpetrator of an assault upon the father. The magistrate recorded as follows:
In my view, he was regrettably an evasive witness who tried very hard to justify the position that he had taken that he did not in fact assault her. That all the things that he did that night were in response to her grabbing him by the arm. …
(Exhibit 18, page 12)
The magistrate rejected any assertion of self-defence and instead found:
I’m simply not satisfied on the evidence that I have heard that the accused was acting in self-defence when he grabbed and pushed and placed his arm across the chest of [the mother]. indeed, I’m satisfied that she was defending herself and grabbing him by the wrist and arms when he had her prone in that circumstance and placed against the wall. …
(Exhibit 18, page 13)
The father in his oral evidence before me contended that he was remorseful and that he accepted the findings of the magistrate.
I am not satisfied that the father is as remorseful as he would contend nor that he is accepting of the findings. As much is self-evident from his alternate history and denial of some of the findings.
The Child Responsive Program Memorandum recorded the following at page 304:
[The father] denies allegations made by [the mother] that as aggressive, verbally abusive and physically violent towards her throughout their relationship as claimed by [the mother]. He did not wish to discuss the alleged family violence incident [in early] 2019 because this matter remains part heard in [the] Local Court …
The Family Consultant recorded assertions that are inconsistent with the Child Responsive Program Memorandum at paragraph 34 of the second Family Report, which is to the following effect:
34.… He conceded that the children had witnessed his anger on some occasions in the past, but he also said that in other circumstances, he had been able to walk away and take time for himself. When asked by the Family Consultant the impact of his reactivity and anger on the children he stated that the children, “no longer have their family unit around them”. He said because he cannot speak to the children, he cannot fully understand the impact it has had on them. He avoided questions which asked him to imagine/recall past impact of his anger as witnessed by the children.
The Child Responsive Program Memorandum recorded that “[h]e said that he does not become aggressive or abusive towards [the mother] when he drinks alcohol, as she claims” (at page 303). Such assertion is inconsistent with his evidence before the magistrate, which recorded that “[h]e said that he was obviously affected by alcohol but he was uncouth and happy, but not blind drunk” (Exhibit 18, page 10). The magistrate found that he was angry when he assaulted the mother and that he was affected by alcohol.
The Family Consultant in the first Family Report recorded that he “‘tapped,’ the mother on her forehead” at the time of the assault (at paragraph 70). In his cross-examination, he denied that he said to her “if you start anything tonight, I’ll fucking kill you”.
The father’s denials are also inconsistent with the findings of the magistrate.
The magistrate found as follows:
… I find that the accused was angry. I find that the accused was physical towards [the mother]. I am satisfied that he pushed her. That he threatened her […] by saying to her “if you start anything tonight, I’ll fucking kill you” in that angry tone.
I’m satisfied that he did pin her against the kitchen counter. That […] he held her arms with one arm while pressing a finger into her temple with the other one. […]. I find that whilst there was no obvious marks, it hurt her. I’m satisfied that he had her pinned against the counter. She pushed him off and they went tumbling into the open cupboards. I’m satisfied that she was tender to touch for the next few days. … I’m satisfied that he was upset and angry that she was going to call the Police that he moved towards the phone and that he lunged at her and put her in a headlock, not as he said, to put his arms around her to protect her from falling. I’m satisfied she was pushed […] and that he… in doing that, he was attempting to grab her phone to prevent her from calling the Police.
(As per the original)
(Exhibit 18)
I am not satisfied that the father takes responsibility for his conduct when he violently assaulted the mother in the presence of the children.
Nor am I satisfied that the father has genuinely attempted to change his behaviour for the benefit of his children. The issue about the father attending a men’s behavioural change program was raised in the Child Responsive Memorandum in November 2019. He did not take the opportunity then to engage in such a program. It was raised again in the first Family Report in February 2022 and he did not, following the release of that report, engage in any such program.
The hearing in May 2022 was specifically adjourned to enable the father to undertake a men’s behavioural change program and therapy. He has not done the men’s behaviour program that he agreed by consent orders he would attend. He said that he has undertaken another program, however, the two are significantly different. The program that he engaged in was one that involved only online engagement. The program that he was directed by order to attend was one that involved both individual and group sessions.
The father was also directed by the May 2022 orders to engage in family therapy. Four sessions were undertaken with the family therapist, which were then suspended as the family therapist was of the view that the matter was unsuitable for family therapy. In that respect, she said the following as to why therapy did not continue:
I formed this view because of several issues. Firstly, [X] clearly did not want to attend family therapy and I was not able to develop a therapeutic relationship with him. Secondly, while it is the case that you said during your sessions with me that you take responsibility for the family violence for which you were charged, you maintained throughout the sessions there was no other incidences or forms of family violence perpetrated by you and furthermore, maintained that [the mother’s] allegations were exaggerated. If your account has veracity, your position would be reasonable. If the Court finds that [the mother’s] account has veracity this may indicate that you in fact do not take responsibility for the totality of your family violence behaviours and its impact on [the mother] and the children. Thirdly, your account of what occurred and [X’s] perception of what occurred is quite different. These three factors combined led me to believe that a joint session where you are either unable or unwilling (depending on the Courts findings regarding the allegations of family violence) to take responsibility for what [X] perceives as the narrative of what occurred would likely further reinforce in [X] his already negative views of you.
(Exhibit 16)
If the father was truly remorseful and seriously engaged in seeking to change his behaviour, then it is surprising that he has not undertaken or genuinely engaged in the very programs that the Court directed that he attend and which had been the recommendation of the various experts on earlier occasions.
The father’s denial that he has acted aggressively towards the mother is inconsistent with the text messages sent by the father to the mother in Exhibits 20 and 21. Those messages record the father saying to the mother “[w]ell fuck you”, accusing her of having kidnapped the children, and making demands as to when she would return home in the context of the violent assault occasioned by him upon her (Exhibit 20). In a text message to the mother, he said “[y]ou threatening to call the cops is abuse not your first rodeo” and “[y]ou did the first physical act everything from there on was restraint and within reason and reasonable” (Exhibit 21).
I accept the mother’s evidence that the father’s acts of family violence are not isolated to the one occasion for which he was convicted. I accept the mother’s evidence that she was, notwithstanding all his denials, subjected to a pattern of family violence over the course of the relationship as recorded by her in her affidavits.
I reach that conclusion based upon my acceptance of the mother as a credible and truthful witness and on my findings as to the father’s evasiveness when answering questions as well as the inconsistency between the various accounts he has given.
I accept the Family Consultant’s evidence that there is a risk that the father will speak negatively about the mother to or in the presence of the children. In the second Family Report, she recorded as follows:
38. The father was asked what he thought the children might think about the stop and start nature of supervised contact. He was asked if the children might feel that he is rejecting them and he responded saying the mother has denigrated him in front of the children and blamed her, saying that she had, “alienated the children, especially [X].” He continued to talk about himself as the focus of the question and did not return to talking about the children.
39. The father spoke about the mother and her family in a negative light throughout the interview. He claimed the mother’s sister [Ms V] gets drunk in front of the children, and he said he has no doubt the mother has used drugs whilst in [Country L]. He said the mother’s credibility has been brought into dispute because she claims she has no money to buy shoes but then travelled to [Country L] to spend a Christmas holiday with family.
…
47. The father maintains the view that there are no issues of risk and therefore no reason that his proposal is not supported by the Court. He suggested there was communication between the parties, therefore no grounds for the mother to have sole parental responsibility. He said she has always been the difficult one and throughout proceedings he has been the one who has been totally amicable.
I am satisfied based on the evidence of the Family Consultant that if the father were to spend unsupervised time with the children, then there is high likelihood that he would speak negatively about the mother and her family, thus potentially undermining the mother’s parenting.
I also have concerns that there is a risk that the father, because he rejects the need for supervision, will not engage in supervised time or, as has been the pattern since separation, will disengage after a period of time leaving the children in limbo as to whether he wants to have a relationship with them. The effect on the children of this sense of rejection is referred to above.
The father contended that he is unable to afford supervision and that the only way forward is an unsupervised regime of time. I am not satisfied that the father’s cessation of supervised time is entirely a function of limited financial resources. It is clear that the father (assuming for the moment his asserted financial impecuniosity) has been able to borrow money from his family in the past when he needs to. I am satisfied that a factor in the father’s disinclination to engage paid supervision is more likely a function of a strongly held view that he does not need to be supervised and that if it is to be supervised, then the mother should pay for it. In that respect, the Family Consultant recorded in the second Family Report that “[h]e told the Family Consultant ‘if the mother wanted the children to have contact, she should have paid the cost of supervised visitation.’” (at paragraph 37).
As their Honours make clear in Isles & Nelissen, the determination that there exists an unacceptable risk of future harm may be established on a finding of a possibility of historical harm that is not established on the balance of probabilities. The risk assessment process is predictive based on “the foresight of possible harm. … [r]isks of harm must be heeded even if they are improbable eventualities. … [a]t some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable” (Fitzwater at [138] and [139]) (emphasis in original).
I am satisfied for the reasons given above that while there are benefits to Y in spending time with her father, there are also significant risks. Those risks as I have identified individually and collectively carry the potential of causing significant harm to Y. There is an unacceptably high chance of those risks occurring and consequently, those risks are in my view unacceptable. I find that the father poses an unacceptable risk of harm if he were to spend unsupervised time with Y.
The question remains how to manage time that is to occur on a supervised basis.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Act.
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence, or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These 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 exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with their parents.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
I accept the evidence of the Family Consultant that there are benefits to Y of a relationship with her father, and that if she did not have a relationship with him she will feel a sense of loss and could feel that loss quite acutely. That said, the Court’s obligation is to make orders that are in the child’s best interests and the questions of risk and harm are not subordinate to the issue of a meaningful relationship.
The primary focus of these proceedings has been upon the need to protect Y from harm. I am satisfied for the reasons given earlier that the father poses an unacceptable risk of harm to her.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(a) Any views expressed by the child 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 child’s views
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
Y has clearly indicated that she wishes to spend time with her father. However, her views are one matter for consideration and given her age are not determinative of the result.
(b) The nature of the child’s relationship with each of the parents and other persons
I accept that Y has an excellent relationship with her mother and it would appear from the reports of the supervisors that she has a relationship with her father.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
The mother has been the party who has looked after these children and provided for their needs in the period post the parties’ separation. The mother has had the benefit of a sole parental responsibility order since the May 2022 orders and the father has thus had a limited role to play in relation to the children’s long term care.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has been the parent who has supported the children financially in the period post the parties’ separation. The father pays a very modest amount of money by way of child support.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child 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
As recorded earlier in these reasons, it is clear from the Family Consultant’s evidence that for Y not having a relationship with her father has significant consequences for her moving forward.
I accept the opinions of the Family Consultant. That said, however, the father needs to take responsibility for his own conduct in the circumstances. I am not satisfied that the father’s commitment to his children is as strong as he seeks to portray. I am particularly troubled about the fact that he was not prepared to give an affirmative commitment to spending supervised time.
(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
I accept that the father says that cost of supervision is a practical difficulty. However, arrangements as proposed at N Contact Service will reduce significantly that cost.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
This has been addressed earlier in these reasons.
(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;
Not relevant.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
The children are of Aboriginal descent. I accept their right to engage with this significant part of their heritage. The father, therefore, has much to offer to the children in this respect. The orders (subject to the father’s compliance) will enable Y to enjoy this important aspect of her culture, albeit tempered by the need to protect her from the risk of harm identified.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above.
(j) Any family violence involving the child or a member of the child’s family
The mother was the victim of family violence and has had the benefit of an ADVO following a finding by the Local Court.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
Not relevant.
(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
These parties have been in conflict about the children’s living arrangements since their separation in 2019. It is in Y’s best interests for these proceedings to end and for her to have some certainty in her life. I am hopeful that the orders I make are least likely to lead to further proceedings.
I am reasonably confident that if the father’s orders were made there would be further litigation between the parties.
(m)Any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that is relevant that has not otherwise been addressed above.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence, which satisfies the Court that it is not in the best’s interests of the child for the presumption to be applied.
A finding has been made that the father has perpetrated family violence and thus the presumption is rebutted.
I am not satisfied that the sharing of parental responsibility between the parties would be in the best interests of the children. The mother said that the parties have not communicated for many years. The father contended that the parties have been able to communicate. The Family Consultant observed as follows in the second Family Report:
80. The parents do not have a good co-parenting partnership as evidenced in this ongoing family dispute. As indicated previously, the father’s refusal to accept any responsibility for family violence against the mother has extinguished any trust she may have been able to place in communicating with him around parenting issues.
It is the recommendation of the Family Consultant that the parties do not share parental responsibility. I accept the recommendation of the Family Consultant for the reasons that she gave and will make an order for sole parental responsibility in favour of the mother.
WHAT TIME SHOULD Y SPEND WITH HER FATHER?
For the reasons given earlier, I am satisfied that Y’s time with the father should be supervised.
The father did not propose an alternative arrangement for time other than one which would proceed on an unsupervised basis eventually increasing to each alternate weekend and half school holidays. For the reasons that I have given, I am not satisfied that orders of that type would be in Y’s best interests.
The mother sought orders that provided for what was described by the Family Consultant as identity contact only, namely four times a year plus Father’s Day and Christmas Eve. The Family Consultant ultimately came to the conclusion that such a regime may well be consistent with the best interests of Y, particularly in circumstances where the father may not attend and Y’s sense of loss and disappointment may therefore be minimised by such a regime.
I think there is great merit to the conclusion of the Family Consultant. The father was given at least two opportunities to indicate whether or not he was committed to a regime of time that involved supervision. Having been given that opportunity, he declined to accept it nor did his counsel provide any alternative regime of time in the event that the Court determined that there should be supervised time.
I am concerned that if an order is made for the father to spend more time with Y than is provided in the mother’s Response and the ICL’s Minute of Order, then this would potentially carry the risk that he would disengage and that Y would then consequently be left to deal with such loss. I am hopeful that by providing less but more certain time this will be a regime that the father can afford (assuming that to be the impediment) and commit to. In those circumstances, it would be an arrangement that is more beneficial to Y than one involving more frequent time that is not observed. I am satisfied that the orders as proposed by the ICL as to supervision are ones that are in the best interests of Y.
The mother sought orders restraining the father from being affected by alcohol on the occasions of contact which the father did not oppose. The mother also sought orders that would permit her to travel overseas with the children. Counsel for the father indicated that the mother should not be permitted to travel overseas for ten weeks in a year but otherwise an arrangement for four to six weeks would be satisfactory.
In circumstances where there are only limited time arrangements being put in place for the father’s time with the children, then I fail to see why there should be any restriction on the mother’s capacity to take the children overseas for a holiday, particularly in circumstances where her family live in Region Win Country L.
Accordingly, I propose to make the order as sought by the mother in relation to overseas travel.
The mother also sought various restraining orders under s 68B. The father opposed the making of the orders. The orders merely restrain the father from attending at the mother’s home, the children’s school and her place of work.
I observed the mother give her evidence and how she described her quite visceral response to the possibility of engaging with the father. I also take account of the impact of the father’s violent conduct on the mother. The mother in her trial affidavit said the following:
178. Even though there has been an ADVO in place for two years, I do not feel safe. I am constantly expecting to run into [the father] when I am driving around or at the park with the kids. I am angry that he has taken the feeling of safety away from me.
In her updating affidavit, she said the following:
58. I continue to seek [o]rders restraining [the father] from entering any place where the children and I live, where they attend school and where I attend for work. Part of my feeling of security comes from knowing those [o]rders are currently in place, and I wish for the [o]rders to continue. I believe I have been able to parent [Y] and [X] much more appropriately and peacefully knowing we have these protective orders in place and [the father] cannot stalk or intimidate me by driving past my home or going to the children's schools.
She was not challenged on this evidence.
The mother was cross-examined about an occasion when she drove past the father’s home for the purposes of determining whether or not there was a recreational vehicle parked in the father’s driveway. The mother gave an explanation for why she did this. On one view, the mother’s explanation for driving past the father’s driveway is inconsistent with her asserted fear.
That may well be so but I am satisfied that the mother should be supported in her caring arrangements in relation to the children, particularly in circumstances of my findings that the father has not taken responsibility for his conduct. In the course of her cross-examination in May 2022, she said that speaking with him makes her feel sick to the stomach. I am satisfied that the orders as proposed by the mother are not unduly restrictive on the father. There is no reason why he should be attending her home, the children’s school or her work. There is no evidence of her making unsubstantiated complaints against the father that he has breached orders in the past. She is the parent who will assume the responsibility for parenting these children in all senses of the word emotionally, physically and financially. She should be supported by orders that enable her to carry out that role without fear to the extent that is possible. I am satisfied that they are orders that would assist in her parenting of the children and accordingly, are orders that are consistent with their welfare.
The ICL proposed a regime that if the father did not attend two consecutive periods of time, then his time with the children be suspended. I am satisfied given his inability to make a commitment to supervision that that is an appropriate order. It is a matter for the father to ensure that he attends on supervised times as are arranged in circumstances where the times are clearly stipulated in the orders. If he does, then the orders will not be suspended.
I am satisfied that the orders I propose to make are ones that are in the best interests of the children.
COSTS OF THE ICL
At the conclusion of the hearing, the ICL sought an order for costs.
Both parties opposed the order for costs, contending that they did not have the financial capacity to meet such an order.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as ‘an exceptional case’, ‘special circumstances’ or ‘a clear case’ are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
Despite having an opportunity to do so, the ICL did not make any submissions consistent with the provisions of s 117 that would justify departure from the usual rule that each party pay their own costs.
Accordingly, I will dismiss the ICL’s oral application for costs.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 6 September 2023
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