MATHERS and MATTHEWS

[2016] FCWA 5

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: MATHERS and MATTHEWS [2016] FCWA 5

CORAM: CRISFORD J

HEARD: 18, 19 AND 20 AUGUST 2014 AND 27 JANUARY 2016

DELIVERED : 1 FEBRUARY 2016

FILE NO/S: PTW 3756 of 2009

BETWEEN: MR MATHERS

Applicant

AND

MS MATTHEWS
Respondent

Catchwords:

CHILDREN’S ISSUES – Where the children live with the mother – where the father failed to comply with orders for psychological assessment – where the father seeks orders for equal shared parental responsibility for the children and for the children to live, on an equal basis, with each of the parties – where the mother seeks sole parental responsibility for the children; for the children to live with her; and for the children to have telephone communication with the father once a week – where the independent children’s lawyer seeks orders in terms similar to the mother – where the mother told the father, during their relationship, that she and her sister had experienced some inappropriate sexual attention by a family member who has since died – where the father formed a view that it was the mother’s father who had sexually abused the mother – where the father makes allegations that the maternal family are involved in illicit drug dealing; property damage; and violent behaviour, including murder – where the father is unshakeable in his views and confirmed he would be advising the children of his views when they were sixteen or seventeen – where the Court found that there was nothing to suggest the father’s beliefs are based on fact; are misconceived; and are wrongly held – where the father has a compromised ability to cater for the children’s emotional needs – where the father needs assistance to deal with his anger issues – where the Court is not satisfied that even with safeguards, such as supervision, the risks posed by the father will be ameliorated – where the Court made orders for the children to live with the mother; for the mother to have sole parental responsibility; and for the father to have weekly telephone communication.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Ms E Brownlie

Independent Children's Lawyer : Ms A McInnes

Solicitors:

Applicant: Self Represented Litigant

Respondent: Joe Scurria & Associates

Independent Children's Lawyer : Alison McInnes Lawyer

Case(s) referred to in judgment(s):

B and B (1988) FLC 91-957

B and B (1988) FLC 91-978

Johnson and Page (2007) FLC 93-344

Loddington v Derringford (No 2) [2008] FamCA 925

M and M (1988) 166 CLR 69

M and M (1988) FLC 91-958

Mazorski v Albright (2007) 37 Fam LR 518

Sedgley and Sedgley (1995) FLC 92-623

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The Court is asked to make parenting orders in relation to [Child A], aged 12 years, [Child B] almost 11 years, and [Child C], aged 7 years. The proceedings have been protracted and complex.

Brief background history

2The father, [Mr Mathers], was born [in] 1964 and is 51 years old. The mother, [Ms Matthews], was born on [in] 1974 and is 41 years old.

3The parties met in late 2002 and started living together in early 2003. Child A was born [in] 2003, Child B was born [in] 2005 and Child C was born [in] 2008.

4The parties finally separated on 24 December 2008. At that time the children remained living with their mother.

5The husband commenced proceedings on 23 July 2009. After a conciliation conference on 5 August 2010, the parties were able to agree on certain court orders. They were to have equal shared parental responsibility for the children who were to live with the mother and spend time with the father.

6The father filed a further application initiating proceedings on 23 May 2012. These are the current proceedings. On 11 July 2012 the earlier orders for the father to spend time with the children were suspended. In lieu the children were to spend time with him supervised by the Anglicare contact centre in [Town A]. The father had supervised time with the children until late 2012.

7On 1 July 2013 after the release of the single expert witness report, prepared by a psychologist, the husband was ordered to use his best endeavours to attend upon a clinical psychologist as recommended by his general practitioner for assessment and therapy.

8The proceedings wended their way towards a trial with the father failing to comply with trial directions made by the court on 4 November 2013. On 29 April 2014 an order was made that if such documents were not filed the mother would have leave to proceed on an undefended basis. A trial was set to commence on 18 August 2014.

9Despite non-compliance by the father with the earlier orders I granted him leave to engage in the proceedings. The matter was heard in Town A over a three day period before orders were again made by consent, on an interim basis, on 20 August 2014.

10The consent orders made provision for the children to continue to live with their mother and for the father to have supervised time with them on a fortnightly basis. There was also provision for telephone communication on Tuesday of each week and on alternate Sundays when there was no physical contact between the father and the children.

11There was a raft of orders for the mother to make arrangements for the children to engage in supportive therapy and to have them undertake a protective behaviours course. She has complied with all these orders.

12Importantly, the father was to attend upon his general practitioner to obtain a referral to a clinical psychologist and undertake therapy on a regular basis. The father was to provide both his general practitioner and his clinical psychologist with a written authority to ensure release of information to the independent children’s lawyer (“ICL”) and to the single expert witness. This was to ensure that the father’s issues, which had become very apparent during the course of the proceedings, were considered and specifically addressed.

13The matter was adjourned to October 2014 for the court to monitor the progress of the orders made.

14After some delays, the father had supervised time with the children from about November 2014 until April 2015. There were eight periods of contact. The two elder children attended on every occasion and the youngest child attended on two occasions.

15Apart from some telephone contact, the father has not spent time or otherwise communicated with the children since April 2015.

16The father failed to comply with the orders for psychological assessment. I will deal with the reasons for such a failure later in my judgment.

17Given the failure by the father to comply with the August orders and the father’s continuing difficulties surrounding the maternal family, the matter was listed for further hearing in order to complete the trial.

18Throughout the proceedings the father represented himself. During the first part of the trial in Town A, he was assisted by the Court in accordance with the guidelines appropriate to the conduct of cases involving self represented litigants. When the matter resumed on 27 January 2016, in Perth, the father continued to represent himself. His demeanour and attitude was reflective of his belief that the family law system had failed him and that it condoned child sexual abuse. Unfortunately during the course of a short adjournment, prior to closing submissions, the father involved himself in some unseemly behaviour in the court foyer. He was escorted out of the building by court security in order to protect others within the building.

19Given that all the evidence had been taken and the father had made his position very clear, the court proceeded to hear the closing addresses of counsel for the mother and the ICL in his absence. Orders were pronounced on 27 January 2016 and these are the reasons for the making of those orders.

20In dealing with children’s issues the objects of the Family Court Act 1997 (WA) (“the Act”) are:

66.Object of Part and principles underlying it – FLA s. 60B

(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 the 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.

Orders sought

21The father filed a final minute of the orders he was seeking on 10 July 2014. His position now is the same as it was then. He wants to share the parental responsibility of the children equally with the mother and for the children to live, on an equal time basis, with each of their parents.

22The mother filed a minute of the orders she was seeking on 20 January 2016.

23She seeks that she have sole parental responsibility for the children and that they live with her. She proposes telephone communication between the father and the children each Sunday; on each of the children’s birthdays; and on Christmas Day. There are no proposals for the father to see the children.

24The mother seeks that an earlier injunction made by the court on 11 July 2012 restraining the father from entering or remaining within 100 metres of the children’s school be maintained. She also seeks further injunctions to include the non‑denigration of herself and her family and also an injunction preventing the father from approaching within 20 metres of her. The last injunction sought reflects earlier orders made in Town A Magistrate’s Court.

25The ICL filed a minute of proposed orders on 25 January 2015. These orders are much in line with those of the mother, save and except there is a proposal for telephone communication to be twice weekly.

The law

26Section 66A of the Act makes it clear that the best interests of the children is the paramount consideration in my determination. Section 66C sets out the matters I must take into account in determining what is in the best interests of the children. Section 66C(2) details what are described as primary considerations and s 66C(3) details additional considerations to be taken into account.

27In making parenting orders I am required to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that either parent has engaged in abuse of the children or family violence. If there are no reasonable grounds to believe there has been such violence or abuse, the presumption can only be rebutted by evidence to satisfy the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility (s 70A(1)(2) and (4) of the Act).

28Any order for shared parental responsibility imposes on parents an obligation to consult on major long term issues. These long term issues are specifically defined in the Act.

Section 7A:

Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(c) the child’s health; and

(d) the child’s name; and

(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

29The parties must make a genuine effort to come to a joint decision about the issues. The obligation to consult arises from an order for equal shared parental responsibility irrespective of the amount of time that either party spends with the children and irrespective of where each lives.

30The parties here have had an ongoing acrimonious relationship. Their inability to communicate, let alone negotiate and compromise, is patently obvious. The father has a fixed and unshakeable belief that the mother’s family are perpetuators of sexual abuse; physical violence; misuse drugs; and damage property. The mother and her family deny this. The parties are simply not able to discuss matters relating to the children.

31Despite this there is a presumption that it is best for the children that their parents share such responsibilities on an equal basis. In this case I intend to make an order that the mother has sole parental responsibility and the reasons for this will be canvassed in full during the course of my judgment.

32I will now turn to the primary considerations set out in the legislation.

•The benefit to the child of having a meaningful relationship with both of the child’s parents

33Children benefit from having both a mother and a father involved in their lives in a meaningful fashion. Meaningful in this context is synonymous with significant.

34To be meaningful a relationship “must be healthy, worthwhile and advantageous to the child” (Loddington v Derringford(No 2) [2008] FamCA 925). It is one that is “important, significant and valuable to the child” (Mazorski v Albright (2007) 37 Fam LR 518). It is a matter of making a qualitative assessment of the benefit to the child of having such a relationship.

35The opportunity for the three children here to have a meaningful relationship with their father has been limited. There is no doubt whatsoever that the children love their father and want to see him. This feeling is reciprocated by the father.

36There are two matters that militate against the children having a healthy, worthwhile and advantageous relationship with their father. The first matter is the father’s attitude to the maternal family.

37This is the overarching consideration in this matter. Around the birth of the parties’ child, Child B, the mother shared with the father that she and her sister, had experienced some inappropriate sexual attention by a family member who has since died. This was a matter that created considerable ruction in the maternal family. The matter was dealt with within that family.

38At some stage after separation, the father says that he formed the view it was, in fact, the mother’s father, [Mr Mathers], who had sexually abused the mother. The basis for this belief was difficult to ascertain but it quickly became entrenched and unshakeable in the mind of the father.

39Unfortunately the father is not shy in sharing his views with all and sundry including the children. His belief that the mother’s father is a sexual abuser has expanded to include allegations that the maternal family are involved in illicit drug dealing; property damage; and violent behaviour, including murder. His views have impacted on his behaviour towards almost all of the maternal family.

40During the trial the Court had the opportunity of hearing from the mother and her family, in particular Mr Mathers. The father cross-examined all of these witnesses. There was nothing to suggest that the father’s beliefs are based on fact. I find they are misconceived and wrongly held. This finding is consistent with investigations conducted by the both the Police and the Department for Child Protection (“the DCP”).

41As a result of the need to quarantine the children from the strongly held and often wildly articulated negative views the court has, since 11 July 2012, ordered that the children see the father under supervision. The father has been reluctant to engage in this process for any consistent period of time due to his dislike of the Anglicare contact centre. At trial he insinuated that it was run by the Anglican Church which in itself fostered child abuse. He also felt the environment was like a gaol. He had some difficulty paying the costs associated with the supervision.

42This has meant his opportunity to spend time with the children over the past years has been curtailed significantly. This has impacted on him having a healthy, worthwhile and advantageous relationship with them.

•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

43In mid-2012 each party filed a Notice of Child Abuse. The mother filed her Notice on 31 July 2012 alleging family violence on the basis of the father’s proven breaches of a violence restraining order (“VRO”). These breaches resulted in him being sentenced to an intensive supervision order for 12 months with a requirement that he submit to a psychological assessment. He had failed to comply with this requirement. She also alleged that he had thrown household items at her; punched her in the ribs; head-butted her; smashed her property; shaken her; and generally been violent to her and Mr Mathers. She said the children had witnessed some of the violence.

44The father filed a Notice of Child Abuse on 7 August 2012. The father’s concerns were that he had become aware on Christmas Day 2010 that the mother and [her sister] had been “molested by their father [Mr Mathers]”. He said that he had previously believed the maternal grandfather was responsible. He held grave concerns for the three children.

45The DCP undertook investigations and made assessments on both of the notifications.

46The DCP accepted and reported that it was of concern the father was using inappropriate words and statements with the children. It said that there was no evidence to suggest that Mr Mathers had sexually abused the mother or posed any risk of sexual harm to the children. It noted that the father’s preoccupation with Mr Mathers being the perpetrator of sexual abuse upon the mother was overriding his ability to exhibit appropriate behaviour towards the children. The DCP concluded that there was a risk of emotional harm to the children should the father continue to behave in this manner. It recommended that the father attend counselling to explore more appropriate and positive ways of communicating with the children. It remarked that the children appear to be affected by their father’s behaviours towards their mother. It was also noted that the children exhibited strong love for both of their parents and wanted to spend equal time with them both.

47In a further report the DCP noted that the children did not display any behaviour or disclose any information that would suggest they are at risk of sexual abuse from Mr Mathers.

48The father has reported his concerns about the alleged criminal behaviour of the maternal family to the Police, who have not taken any action.

49In a comprehensive report of 18 June 2013, the single expert witness reiterated her own concerns for the father’s strong negative attitude towards the mother and her family. She reported that his personal interpretations may impact on his capacity to provide for the children in an emotional sense.

50[The single expert witness] recommended that the father engage in therapy to assist with management of his emotions and distorted thoughts. To this end she asked he be referred to a local clinical psychologist for further assessment.

51In the trial of August 2014 it was apparent that there had been no shift in the father’s views about the issue of sexual abuse by the mother’s father. His negative views of her family had become more intense. The father had put up signs in public stating that Mr Mathers was a “child molester”. This prompted Mr Mathers to obtain legal advice, after which followed letters threatening legal action against the father in relation to what was described as defamatory statements imputing that Mr Mathers was a child molester and drug dealer. The father paid scant regard to this.

52The father’s conduct in court monitoring hearings to oversee the progress of his psychological engagement after August 2014 evidenced no change whatsoever in his fixed and unshakeable views. As previously noted, during the course of these proceedings it was necessary for the husband to be removed from the court precincts as a result of his behaviour during a short adjournment. The father said he would never change his views and wanted the Mathers family to be prosecuted for their criminal activities. He complained that the police and the DCP would take no action against them.

53I am satisfied that until the father engages, as recommended, variously, by the court; the criminal courts; the ICL; the single expert witness; and the DCP, in some form of therapy and psychological assessment he continues to pose an emotional risk to the children. He is unable to moderate his views or simply keep his views out of the children’s hearing.

54I know turn to the additional considerations. These are not secondary considerations and are to be considered with the matters set out above.

•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

55Although these children are young, it is important to understand what they feel about the situation they find themselves in. It is no secret, and the mother has never attempted to dispute the fact, that the children love their father. Consistently, and especially in the past, they have wanted to see him. They have articulated this.

56Of recent times Child C has not wanted to see her father. She had attended at the Anglicare contact centre regularly in 2012. When this supervised contact was reinstated in November 2014 she was reluctant to attend.

57Whilst the father is adamant she has been brainwashed, I accept the mother’s evidence that it is likely to be due to the long gaps between seeing her father. This is largely because of the father’s failure to attend the Anglicare centre. The parties’ separated when Child C was approximately six months old. She has not seen the father for a considerable period of time and says she does not feel comfortable with him. She says she does not know him. The mother says she is frightened of him. The mother also says that Child C is a child who does not cope well with change. She has encouraged Child C to go with her sisters. I accept she has and this is confirmed by the Anglicare reports.

58Although the two elder children still say to their father they want to see him, the mother says that they have now become frightened to show any reluctance to visit because of a concern about how he will react. I accept the mother’s position that the children have seen the father very angry and abusive in the past. Her evidence is that he can fly off the handle for no reason and given his behaviour in a court room environment I accept that this could very well be the case. He has left angry and abusive phone messages. For young children this would be extremely unnerving.

•the nature of the relationship of the child with –

(i)each of the child’s parents; and

(ii)other persons (including any grandparents or other relative of the child)

59I consider that the children have mostly had a close and loving relationship with both their parents. The two elder children and their father have maintained this close and loving relationship throughout periods of supervised time although with the father continuing to malign the maternal family the good relationship they once had with him is becoming fractured.

60The children have a very close relationship with their mother who has single‑handedly taken responsibility for them in every sense since separation. She has done this in extremely trying circumstances. I also accept that the children have close relationships with their maternal grandparents and their extended family. They also have had historic contact with the father’s mother and they enjoyed this.

•the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

61Until recently the mother has been willing to facilitate the father maintaining a relationship with the children. She has done everything required of her by the court and has taken steps to facilitate the Anglicare contact centre as a means of continuing the relationship between the father and the children. She has facilitated telephone communication. Her only reluctance has been in the face of abuse both verbal and physical.

62I accept the mother has fostered the father’s relationship with the children in circumstances that most parents would find untenable. The father has shown no willingness to facilitate and encourage the children’s relationship with their mother. He has used inappropriate language to describe her and her family within their earshot. This is not on isolated occasions but at almost every opportunity.

63During the course of these proceedings the father made it clear that no matter what the outcome he would never stop his attempts to get the orders he was seeking. He said that he would return to the court again and again until he got his own way.

64The mother recounted a telephone conversation with the father where he had indicated that regardless of the outcome of the court proceedings he would see his children. He said if it was not the subject of an order in his favour “a lot would go down”.

•the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from-

(i)either of his or her parents; or

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

65The children would likely be extremely distressed if they were to live with their father in an equal shared time arrangement given his attitude to the maternal family. This would adversely impact on the children and their present schooling and living arrangements given the distance between the parties. The father lives in Town B and the mother lives in Town A. The father says he has no funds to travel to supervised contact let alone relocate to live in Town A. His proposals in this regard were never set out with any precision. He had no well thought out future plans for practical arrangements.

•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

66The father says that one of the reasons he did not continue to comply with the orders for supervised contact relate to his inability to finance the cost of supervision. I accept that it is difficult for the father to pay the costs of supervision whilst he is on unemployment benefits. In addition he has the fuel costs of travelling from Town B to Town A for this purpose.

67The father says he has some assistance from his mother and has had work from time to time. He does not pay any meaningful child support given his present position.

68Any financial difficulty the father experiences by reason of supervised contact is outweighed by the need to protect the children from his extreme views. Until the father has some psychological intervention unsupervised time with the children is simply not in their best interests.

69The ICL in this case went to considerable trouble to ensure that the father was afforded every opportunity to engage in a psychological assessment without the need to make any payment. There has been some difficulty in general practitioners understanding what is required of the father given the information he provides. Given his reluctance to accept that he may benefit from some psychological assistance he has not been as proactive as he could be to further his position.

•the capacity of –

(i)each of the child’s parents; and

(ii)any other persons (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs

70The mother is capable, to a very high standard, of providing for all the children’s needs. She has virtually done this single-handedly since separation.

71In terms of the mother’s ability to cater for the children’s needs, she deposes in an updating affidavit sworn on 26 November 2015:

15.The girls are all doing really well at school and have lots of friends. [Child A] and [Child B] are still doing dancing and after school sports. [Child A] also plays [musical instruments]. [Child B] hopes to get into the music program next year as she wants to play [another instrument]. I am buying her a [further instrument] for Christmas as she also wants to play the drums.

16.I spoke to the Principal of their school a few weeks ago and he commented on how well the girls were doing at school and how [Child A] especially had really “come out of her shell.” [Child B] and [Child C] will still be attending [School P] next year and will be in Years 6 and 3. [Child A] will be in Year 7 and will be attending [A Senior High School]. She is very excited about going to high school and hopes to join the school band and wants to participate in the school specialist sports program they offer.

72The mother set out the steps she had taken to comply with the August orders, including having the children attend counselling and protective behaviours through Centrecare. The protective behaviours course was ordered, in part, to ameliorate the father’s concerns. In terms of the counselling undertaken by the children, although the counsellor considered the children were doing well individually, the mother was not able to take the matter any further given the father’s refusal to participate. Numerous attempts were made to encourage the father to make contact with Centrecare and engage in joint counselling with the children. He made no such contact.

73The father’s last visit with the children at Anglicare was on 18 April 2015. The mother returned 2 May 2015 which was the next scheduled visit but the father did not attend. He failed to advise Anglicare or the mother that he would not be attending. The father’s explanation for not continuing with Anglicare was relayed by him to the children in a telephone call. He said that one of the support workers had “abused” him.

74Attached to the mother’s affidavit was a transcription of phone voice and text messages from the father to the mother at various times throughout 2015. The father has continually referred to Mr Mathers as a child molester, made statements that he is a paedophile and that her brother is a drug dealer. He alleges the maternal grandmother covers up child sexual abuse and he considers the mother to be a sick, disturbed woman. The content of the text and voice messages is often very disturbing. The children need to be shielded from this.

75Both at trial in Town A and in these more recent proceedings, the father confirmed that he would be advising the children in detail about his views when they were sixteen or seventeen.

76I consider the father has a compromised ability to cater for the children’s emotional needs. I accept he is able to cater for their practical and physical needs.

•the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

77Again I consider the mother to have discharged the responsibilities of parenthood to a very high standard. Despite all that has transpired she remains even and calm in the face of considerable adversity. I do not consider the father is an appropriate role model for the children given his propensity for anger and family violence. His unfixable view about the mother’s family has led him to say and do inappropriate things often in the presence of the children.

•any family violence involving the child or a member of the child’s family; and

•any family violence order that applies to the child or a member of the child’s family, if-

•the order is a final order; or

•the making of the order was contested by a person

78I will deal with these two matters together. The Act defines family violence as:

conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

79The father has a criminal history directly related to the mother. In the Town A Magistrate’s Court on 17 December 2013 he pleaded guilty to pursuing another person, here the mother, in a manner likely to intimidate with circumstances of aggravation. He was fined $1,500.

80The circumstances of this charge are that the mother went to the police because the father was constantly telephoning her and leaving messages at all hours of the day and night. Given the content and quantity of the messages the father was charged. It was a term of his bail conditions that he was to have no contact with the mother or the children including via telephone. The mother deposes that given the content of the father’s voice messages, Child A and Child B had become reluctant to talk to their father on the phone.

81As a result of the father’s threatening and intimidating behaviour towards the mother she has had a series of VROs against him. The first VRO was granted to her on 24 December 2008, the date upon which the parties separated.

82The maternal grandparents and on one occasion separately the mother’s father has obtained VROs against the father.

83On 25 June 2012 there were two separate charges against the father for a breach of a VRO which had been taken out against him by the mother and Mr Mathers. On each charge he was placed on a 12 months’ intensive supervision order to run concurrently.

84The father had initially pleaded not guilty to the breaches and the mother was summoned to give evidence in the Magistrate’s Court in Town A. The father subsequently pleaded guilty to the breaches. In relation to the VRO taken out by Mr Mathers, the father had erected two signs – one at the traffic lights near a golf resort and another in the township of Australind, saying “[Mr Mathers] is a child molester”.

85On 28 March 2011 the father had earlier been charged and convicted of a breach of a VRO. On that occasion he was placed on a community based order of six months duration.

86On 22 September 2010, there was another breach of a VRO whereby he was given a suspended imprisonment order of seven months with the period of suspension being 12 months.

87Earlier on 10 August 2010, he was convicted of assault occasioning bodily harm with circumstances of aggravation. He was fined $5,000. This related to Mr Mathers who sustained physical injuries of some moment.

88On 5 July 2010 the mother was granted an interim VRO which became final on 3 August 2010 for a period of two years. This was extended on 4 December 2012 for a further two year period.

89It goes without saying that the court accepts that the father has engaged in acts of family violence towards the mother, both during and after the relationship including, at times, whilst the children have been present.

90The father continues to send abusive and threatening text messages to her.

•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

91The father has made it clear that unless the orders he seeks are granted he will continue “to fight” until he achieves his aim. If that view is a genuine view this Court is not in a position to make orders that will ameliorate the need to institute further proceedings.

92The Court will make orders that are in the best interests of the children.

•any other fact or circumstance that the court thinks is relevant.

93The father has been both encouraged and ordered to obtain some psychological assistance by way of an assessment and counselling on a number of occasions. The father has avoided, for one reason or another, addressing some issues that have been identified as pivotal to his ongoing psychological wellbeing. This in turn reflects on the health and wellbeing of the children.

94I consider it appropriate here to set out the evidence relating to the father’s attempt to engage with psychologists as ordered in these particular court proceedings.

95Order 5 of the orders made on 1 July 2013 were for the father to use his best endeavours to attend upon a clinical psychologist as recommended by his general practitioner for clinical assessment and ongoing therapy as required.

96The [Town B Medical Group’s] records were before the Court.

97The records reveal that on 29 May 2014 the father attended Dr [N] at the [Town B Medical Centre] to undertake a mental health plan and review. The general practitioner appears to have taken a careful history from the father and noted that he was very fixed in his views that his children’s mother had been sexually abused by a particular person and that the whole maternal family was against him. He was very persistent that his children were at risk of sexual abuse from within the family and he showed extensive dislike for the children’s mother, father and brother. It was noted that he was under tremendous stress and had shown inappropriate behaviour in front of his daughters. He exhibited a poor sense of identity and a poor control over his anger. It is noted that he had unusual ideas or beliefs. As a result of the referral the father attended upon [Town C Psychological Services].

98He had a session with a registered psychologist but expressed that he was not in a financial position to pay for his sessions. The Town C Psychological Services did not provide bulk billing services and the father did not continue with that agency.

99On 20 August 2014 I made orders that the father attend his general practitioner and use his best endeavours to obtain a referral to a clinical psychologist and thereafter attend for the purpose of counselling on a regular basis. This was to be done in conjunction with the ICL in order for her to liaise with the single expert witness to ensure that the father’s treating psychologist understood the nature of the problems.

100On 2 September 2014, the father again attended the Town B Medical Group and saw a general practitioner Dr [K]. The notes reveal a very bare bones mental health care plan and review being prepared and which simply notes “Patient has no known mental health problems, but as per Family Court orders he needs mental health assessment by clinical psychologist”.

101The father was referred to [X Community Service] and an appointment was made for him on 28 May 2015. The father contacted the health service to advise that he would be away for a period of at least two months and would need to reschedule his appointment. The appointment was remade for 18 August 2015. This appointment was cancelled by the father the day before, 17 August 2015. A further appointment was then made for 8 September 2015.

102[Ms P], registered psychologist, was concerned about the terms of the referral which indicated that the father had no known mental health problems but was simply requiring an assessment for the Family Court. Ms P had a session with the father and noted that although he was cooperative his mood was irritable. He spoke in a reactive tone and had inappropriate thought content. She explained her agency was not in a position to assist simply for the provision of a report.

103The father berated various agencies and advised the psychologist that he was trying to protect his children from their grandfather and uncle as the mother had been sexually abused by them. The file was closed.

104The father took no further steps to return to his general practitioner or to contact the ICL despite her overtures for him to do so to obtain a referral to a more suitable service and to address the issues as specifically raised by the court.

105Whilst there is sympathy for the father’s position given his lack of finances I find that he has not taken all the steps he possibly could to ensure all issues are addressed such as to enable him to maintain his relationship with his children.

106It is clear to this Court that until the father undertakes some psychological assessment, to ascertain the true nature of any difficulties the father may have, there is little chance of him being in a position to continue his relationship with his children in a meaningful way. If the father intends to continue with proceedings it is unavoidable, in my view, that he engage in that process.

Conclusion

107Taking into account all the matters that the legislation mandates I must, I am satisfied that the mother should have sole parental responsibility for the children.

108The children have lived with her and it has fallen upon her to make decisions for them since these parties separated. It is appropriate, given the circumstance here, that she continues to do so.

109Not only has the father engaged in family violence but I consider, in any event, that it is in their best interests that the mother makes decisions about their long-term welfare. She is consistent, child focused and responsible. The children have not been as affected as they may otherwise have been as a result of the mother’s sensible and sensitive handling of the situation.

110It is in their best interests they continue to live with her as they have always done.

111I now turn to the issue of whether the father is to spend time with the children and if so in what circumstances. I have previously dealt with the primary consideration of the need to protect the children from harm of all sorts. This mandatory consideration canvasses all aspects of risk to children when considering what is in their best interests. In order to understand the process of assessing risk it is helpful to seek guidance from the High Court and Full Court of the Family Court of Australia. Often the assessment of risk in the cases relates to that of sexual abuse but I find that it has a wider application as well.

112In M and M (1988) 166 CLR 69 the High Court confirmed that consideration of abuse is not confined merely to a determination of the occurrence or risk of occurrence of abuse, but must be within the context of the court’s broader and ultimate determination of what arrangements are in the best interests of the child.

113Their Honours (Mason CJ, Brennan, Dawson, Gaudron and Toohey JJ), in joint reasons for judgment, said (at p 76-77):

Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

…

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.

114In B and B (1988) FLC 91-978, a judgment delivered together with the decision in M and M (supra), the High Court endorsed the statement of the Full Court majority (Baker and Maxwell JJ) in both M and M (1988) FLC 91-958 at p 76,924 and in B and B (1988) FLC 91-957 at p 76,935:

We are of the view as a matter of general principle, that in assessing whether or not there is risk to a child if access were to occur or risk that the welfare of a child could be endangered in the event of access, the ordinary civil standard of proof must be applied. If a trial Judge considers, upon the balance of probabilities, that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur, then a trial Judge may, in our view, suspend access.

115In Johnson and Page (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) conducted a comprehensive review of the application of “unacceptable risk” following the High Court’s decision in M and M (supra), and agreed with an enumeration of factors expressed by a former judge of the Family Court the Hon. John Fogarty A.M writing ex-judicially:

68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:

1The decisive issue is and always remains the best interests of that child. All other issues are subservient.

2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

6The onus of proof in reaching that conclusion is the ordinary civil standard.

7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

…

71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).

116In assessing whether there is an unacceptable risk in this case it is useful to refer to a number of areas that impact on the issues. I have found that the father has engaged in family violence. Whilst the father’s criminal record does not show any recent breaches of the law, I am satisfied that the father’s anger towards the mother’s family and his continuing disenchantment with their behaviour provides the basis for an unacceptable ongoing risk. Some of his threats made during court proceedings provide little confidence he will modify his behaviour.

117I consider the mother to be apprehensive about her own personal wellbeing and safety given the behaviour of the father in the past. Of particular concern is the potential for emotional and psychological damage to the children should the father continue to share his unshakeable beliefs with them.

118The father needs some assistance to deal with his anger and his beliefs which do not appear to be founded on reality. The father has refused to undergo any form of psychological assessment and this places the Court in a difficult position. At the moment there is no positive pathway to follow in order to allow the children to maintain a meaningful relationship with their father given his current attitude. I am not satisfied that even with safeguards, such as supervision, the risks will be ameliorated. In any event the father has not availed himself of this opportunity and will not engage in that process.

119The cessation of a relationship with a parent is an option of last resort for a court, it “is one which ordinarily the court takes only with considerable hesitation” (Sedgley and Sedgley (1995) FLC 92-623). I intend to allow some communication to continue.

120The father can have a weekly telephone call with the children. The mother currently monitors these calls to ensure there is no inappropriate conversation and I accept this is an appropriate way forward. However I will not make orders for the father to spend any time with the children. To do so at this juncture poses an unacceptable risk to the children psychologically and emotionally and potentially physically if they are with their mother or a member of their mother’s family.

121I have made the orders sought by the mother restraining the father from approaching within 20 metres of her. The mother deposes, and I accept, that she has had difficulties in renewing her VRO in the Magistrate’s Court in Town A. The reason given for such reluctance is that whilst the matter is before this Court it is appropriate that this Court makes the relevant orders. I accept the mother needs some assurance that the father will not initiate inappropriate contact with her given their long history of disharmony.

122Historically, during the course of these proceedings, the father has had telephone communication with the children not only on a Sunday but on every Tuesday. The mother deposes that not only is the content of the father’s conversations with the children sometimes upsetting, but that they have little to discuss with him when the communication is twice weekly. I accept that this is a genuine concern she has and will accept her proposal there be one period each week whereby the father and the children can discuss their lives and maintain contact.

123I have previously pronounced orders in this matter. I will set them out again here:

1All previous orders be discharged.

2The Respondent, [MS MATHERS], have sole parental responsibility for the children, [CHILD A], [CHILD B] and [CHILD C] (“the children”).

3The children live with the Respondent.

4The Applicant, [MR MATTHEWS], be at liberty to telephone the children:

(a)each Sunday;

(b)on each of the children’s birthdays;

(c)on Christmas Day,

between 7:00pm and 7:30pm and the Respondent do all things necessary to encourage the children to speak to the Applicant.

5The Applicant be restrained by injunction and an injunction be granted restraining him from entering or remaining within 100 metres of the school or schools attended by the children.

6The Applicant shall be restrained and an injunction be granted restraining him from:

(a)abusing, insulting, belittling, rebuking or otherwise denigrating the Respondent and any member of the Respondent’s family;

(b)speaking to the children about [Mr Mathers], [Mr L Mathers] or about protective behaviours;

(c)discussing these proceedings with or in the presence or hearing of the children and from permitting any other person to do so;

(d)enter upon or loiter near any premises where the Respondent lives or works or be within 100 metres of the nearest external boundary of the premises;

(e)approach within 20 metres of the Respondent.

7The Independent Children’s Lawyer be discharged.

8The proceedings otherwise be and are hereby dismissed.

I certify that the preceding [123] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate