MCALLISTER & NADEN

[2019] FCCA 557

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCALLISTER & NADEN [2019] FCCA 557

Catchwords:
FAMILY LAW – Violent relationship – father abused illegal drugs and alcohol – mother and children victims of his family violence – no reliable evidence that father has changed – no reliable evidence that children are safe in his care or would benefit from a relationship with their father – no time with or communication with the father in their best interest along with a change of surnames and a middle name.

Legislation:

Family Law Act 1975 (Cth), ss.4AB pt.VII, 60CA, 60CC

Cases cited:

Re F. Litigants in Person Guidelines (2001) 161 FLR 189
Collu & Rinaldo [2010] FamCAFC 53
Rice v Asplund (1979) FLC 90-725

Applicant: MR MCALLISTER

Respondent: MS NADEN

File Number: MLC 3238 of 2017

Judgment of: Judge Curtain

Hearing dates: 3 & 4 September 2018

Date of Last Submission: 4 September 2018

Delivered at: Melbourne

Delivered on: 15 March 2019

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Ms Jenkinson of Counsel

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Solicitor for the Independent Children’s Lawyer:

Sarah Lia

Mr Whitchurch of Counsel

Heinz & Partners

ORDERS

1. That all prior parenting orders be discharged.

BY CONSENT

1. That the Mother have sole parental responsibility for the children:

   [X] born … 2007; and

   [Y] born … 2008

   (“the children”).

2. That the children live with the Mother.

BY ORDER OF THE COURT

1. That the Mother be at liberty to obtain passports for the children, without the need for the Father to sign the passport applications.

2. That the Mother be at liberty to change the children’s surnames from McAllister to Naden.

3. That the Mother be at liberty to change the middle name of the child [Y] from [Y] to [Y].

4. That the Order appointing the Independent Children’s Lawyer be discharged.

5. That there be no orders for time with or communication with the children by the Father.

6. That all applications be otherwise dismissed.

7. That the mother have liberty to contact the chambers of Judge Curtain to have the matter mentioned should there be difficulties in obtaining the children’s passports.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3238 of 2017

MR MCALLISTER

Applicant

And

MS NADEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant Father appeared in person in this parenting dispute. Serious allegations were raised at the pre-trial hearing about his consumption of illegal drugs, abuse of alcohol, irrational behaviour, and his use of family violence against the Mother and the children during cohabitation. I made, amongst other orders, an interim order for him to undertake drug tests at the request of the Independent Children’s Lawyer from time to time, and to undergo an assessment by a psychiatrist, who could provide the Court with a written report.

2. Save for one test, the Father did not comply with six subsequent requests made by the Independent Children’s Lawyer (by email and letter), to undertake further testing. Moreover, after the Independent Children’s Lawyer made an appointment for him to attend a psychiatrist, he did not do so.

3. It appears that after separation he at one stage was going to ‘walk away’ from his family and these proceedings. He said in his closing address that he subsequently spoke to a third party who advised him that as a father he had ‘rights’ and he should attend this Court and seek orders for time with his children.

4. Amongst other matters, I carefully explained to the Father that the children have the right to a safe and happy life and that took priority over his alleged ‘rights’ as a Father. At the time of the trial, the children had not spent time with their father for over three years.

5. He said he was a changed man and he was no longer the person the Mother described in her evidence. A significant problem with this argument was that by ignoring my earlier orders about drug testing and a psychiatric report, he had no corroborative material to convince the Court of his allegations.

Background

1. The Applicant Father was born on … 1979, and is therefore aged 39 years. He is currently employed as a tradesman and lives in Suburb A.

2. The Respondent Mother was born on … 1979, and is also aged 39 years. She is a student and lives at an undisclosed address, because she is so fearful of the Father and his past behaviour.

3. They lived in a de facto relationship from 2000 to 13 February 2015, with some separations in between. They have two children, [X] born the … 2007, aged 11 years and [Y] born on the … 2009 who is aged 9 years.

4. In 2014 a member of the Victorian Police Force applied for an Application and Warrant for an Intervention Order against the father with the mother and children named as the affected family members requiring the order. The unchallenged affidavit evidence discloses that an interim Order was made for a three month period, the father completed drug and alcohol and anger management courses and other counselling. They subsequently reconciled and the Intervention Order Application was withdrawn. They separated on a final basis in February, 2015 when the Victoria Police applied for a further intervention Order, and the Court made an interim Order against the father.

5. It is common ground that the Father used the illegal drug methamphetamine (also known as ice) and as he used more of this drug it… “led to an escalation in my poor behaviour”. This admission appears at paragraph 19 of his Affidavit affirmed the 4 April 2017, and filed the 5 April 2017.

6. In the Family Report dated the 22 January, 2018 the Father made the following further admissions:

   (a)He commenced using illegal drugs from the age of sixteen, escalating to ice in his late twenties, (paragraph 9);

   (b)He said that ice caused him to become irrational, (paragraph 9);

   (c)He said that he also engaged in heavy alcohol consumption during the relationship, (paragraph 9);

   (d)He stated that he used ice and abused alcohol which caused him to become a threat to the Mother (at paragraph 14);

   (e)He also stated that they separated after he threatened to kill himself, the Mother and the children. He said that he was on drugs at the time and not thinking straight (at paragraph 14);

   (f)After the parties reconciled following an earlier separation he stated that he again relapsed into ice usage. He went on to say at paragraph 15 of the Report that he did not remember a lot about his behaviour but recalled at times he was irrational and there was a lot of conflict in the relationship. He said that some of the conflict occurred in front of the children;

   (g)He said at paragraph 20 of the same report that he and a subsequent partner lived together for about 20 months from March, 2015 to February, 2016 and they separated due to his ongoing ice usage. He went onto say that at a holiday in Country B he “strangled her because she had grabbed his passport and she was leaving Country B with it”; and

   (h)At paragraph 22 he stated he had been admitted to hospital on two occasions for depression and suicidal ideations. He said he had seen a psychiatrist a couple of times during these admissions but had not engaged with the psychologist on an going basis.

7. During the trial we had the following conversation about the illegal drug “ice” as follows:

   “MR MCALLISTER: Just did give me a – gave me a muddled-up head, like, I didn’t think straight on it. I – I was irrational on it. Yes, just impulsive on it.

   HIS HONOUR: Yes. All right. Let’s follow that: irrational and impulsive.

   MR MCALLISTER: Yes.

   HIS HONOUR: When you say “irrational” and “impulsive”, does it mean sometimes also you were angry?

   MR MCALLISTER: Yes. Yes, your Honour.

   HIS HONOUR: Does it mean - - -

   MR MCALLISTER: I was - - -

   HIS HONOUR: - - - sometimes you were aggressive towards the respondent in this case - - -

   MR MCALLISTER: Yes, your Honour.

   HIS HONOUR: - - - Ms Naden? Yes.

   MR MCALLISTER: Yes, your Honour.

   HIS HONOUR: And sometimes that occurred in the hearing or presence of the children.

   MR MCALLISTER: Yes, your Honour.”

The Documentary Evidence

A)The Applicant Father’s Material:

a.Initiating Application filed on the 5 April, 2017; and

b.Affidavit in support affirmed 4 April, 2017 and filed the 5 April, 2017.

B)The Respondent Mother’s Material:

a.The Response filed 26 May 2017;

b.Affidavit of the Mother sworn and filed 26 May 2017;

c.Notice of Risk filed 26 May, 2017;

d.Affidavit of Mother sworn 17 August, 2018 and filed 20 August, 2018;

e.Family Report of Dr C dated 22 January, 2018;

f.Affidavit of Dr D sworn 25 January, 2018 and filed 31 January, 2018; and

g.Report of Ms E dated 10 August, 2018.

C)The Independent Children’s Lawyer’s Material:

a.A large Outline of Case filed 29 August, 2018;

b.Family Report dated 22 January, 2018; and

c.Affidavit of Ms E sworn 21 August, 2018 and filed 23 August, 2018.

The Applicant Father’s Evidence

1. As I said earlier he told the Court and the report writer he was “a changed man” and no longer used illegal drugs, no longer drinks alcohol to excess and his anger was better managed. There was no corroborating evidence to support these allegation save for some certificates that were annexed to his Affidavit which disclosed:

   (a)he had undertaken a Parental Orders Program in September, 2015;

   (b)he had attended Alcohol and Other Drugs Counselling on 19 January, 2016; and

   (c)he had attended substance treatment and recovery program sessions on 11 occasions in 2016, the last being on 3 August, 2016.

2. But the authors of these documents did not give evidence and therefore little weight could be attached to the certificates given we did not know the counsellors’ assessment of the father, his commitment to undertaking the courses and their prognosis of his future.

3. Further, he did not call any other corroborating witness or expert evidence such as a psychologist, psychiatrist or counsellor to support his allegations of being a changed man.

4. I noted amongst the documents annexed to his affidavit that he relied upon, was ‘M-10’ which was dated the 17 November 2016, from a Dr F, a General Practitioner, which said… “Mr McAllister was diagnosed with clinical depression in 2012. He is currently seeing a psychologist, and is on anti-depressant escitalopram. As a result of the depression, Mr McAllister reports low moods, loss of motivation, loss of enjoyment, feelings of guilt, loss of appetite, poor concentration, feelings of lower energy, difficulties with falling and staying asleep, Mr McAllister also reports fleeting suicidal thoughts”.

5. I also noted that he misled the report writer Dr C when he said at paragraph 23, he has been clean from drugs since Easter, 2016. The evidence in cross-examination disclosed he last used illegal drugs on one occasion in 2017. I could not say he intended to mislead Dr C but rather this appears to be a good example of his minimisation of past events.

6. He had also said to the Family Consultant that he provided drug screens to the Independent Children’s Lawyer whereas the evidence disclosed he undertook only one test in 2017 when no drugs were detected, but subsequently ignored six requests from the Independent Children’s Lawyer for further testing. 

7. I was further concerned that I made an Order on 16 August, 2017 for the parents to be psychiatrically assessed and only the Mother complied with this Order.

8. This non-compliance by the Father was put down by him to “laziness”. The fact of the matter, that without this report I had little confidence in what the Father told the Court about his emotional wellbeing, particularly given his earlier diagnoses of depression. I was also troubled that he told the Court that he was prescribed medication but he unilaterally stopped taking that medication without seeking medical advice to determine whether that was sensible, or appropriate.

9. Overall, the Father on occasions was frank about his abuse of alcohol and drugs but had no reliable evidence that he was “a changed man”. I found the Father’s evidence often sanitised, subjective, and frequently unhelpful save when he provided admissions against his own interest. He appeared in person and I assisted him as best I could pursuant to the Full Court case of Re F. Litigants in Person Guidelines (2001) 161 FLR 189.

The Evidence of the Respondent Wife

1. She was often verbose and understandably, sometimes spoke in a style of anger tinged with bitterness. When she gave direct answers I found her evidence very helpful and I generally preferred her evidence over that of the Father’s.

The Family Report

1. A report was prepared by Family Consultant Dr C dated 22 January, 2018 and she was cross-examined on its contents. The evidence contained in the report and in her cross-examination was very helpful and significant in this case. The father chose not to cross-examine the expert and so her report goes into evidence unchallenged by him.

2. As I read her report, Dr C appeared to presume that the Court was going to adjourn the trial for the father to undergo a psychiatric assessment. I comment on this at s.60CC(3)(m) below.

Relevant Legal Principles

1. S.60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children are is met by:

   (a)ensuring that children have the benefit of both their parents having a meaningful involvement in their life, 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 the children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibility, concerning the care, welfare and development of their children.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They 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).

3. Section 60CA of the Act directs that when deciding to make particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the Primary and Additional considerations for the Court in determining what is in the child’s best interests.

Section 60CC factors

1. The two Primary considerations are set out in s.60CC(2) of the Act. They 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.

1. A recent amendment in s.60CC(2A) provides that a Court is to give greater weight to subsection 2(b). These primary considerations will be considered after the relevant matters in s.60CC(3) are looked at, (see Collu & Rinaldo [2010] FamCAFC 53).

S.60CC(3)

(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;

1. The Family Report writer in the report dated 21 January, 2018 says at paragraph 46 that [X] described her father… “as a bad person”… and she did not want anything to do with him. She went on to say her father was… “really mean to us”… and that he would not get out of bed and do things for them, was yelling at the children for no reason, he was particularly mean to [Y] and remembered him yelling and screaming at [Y].

2. At paragraph 47 of the same report the author says that [X] repeatedly stated that she did not want to have anything to do with her father and she had an overwhelming sense of fear that if he returned he would hurt them. At paragraph 48 when asked about 3 wishes, she repeated she did not want to see her father.

3. At paragraph 49, page 16 of the report it said the following:

   “[X] said that if she was to give her father a message it would be to not come near her. She said there was nothing he could do that would make her want to see him. She said that she did not want to have any communication with him. She did not want him to send birthday cards and said that she would not read them. She indicated that she wanted to totally disconnect from her father.”

4. In relation to her brother [Y], the report says at paragraph 52 that he did not refer to his father by name. He had memories of his father swearing and yelling at him and feeling scared by his father’s behaviour. He then went onto say that his father hit him on more than one occasion and it hurt. At paragraph 54 of the same report, [Y] is reported as saying the following, “I do not want to see him and was would (sic) feel extremely scared if I was made to see him”. It also says that [Y] does not want any communication from his father and there was nothing he wanted to say to his father.

5. At the trial the father often said that the children were brainwashed by the mother and that the Court could not effectively put any weight on their views. When Dr C gave evidence this was raised with her and she said the following …

   “the mother, to me, presented as somebody who had experienced trauma associated with the history of family violence. She was very focused on protecting the children and still hypersensitive, which is totally understandable in the circumstances. So have the children been exposed to– her need to protect them, yes, they probably have. Have they been brainwashed by her, I didn’t have a sense of that. The children, to me, presented as having been exposed themselves and having memories of exposure to family violence. They had – their bond with their dad was very fragile if – probably not – I would describe it as non-existent, so I would suggest that their memories are formed by their own lived experience and part of that is living with a mother who has needed to protect them at all costs and – and so that’s what they would have been exposed to. Certainly not, I don’t hear – see from the children’s presentations that they were brainwashed by her.”

6. The author was also asked about weight that should be given to the children’s views and she said that when she prepared the report that she gave their views… “some weight”.

7. It is my assessment after hearing from the parties and family report writer, that there is no clear evidence that these children have been “brain-washed” by their mother. It is clear they have seen and heard negative events in the relationship and the negative effect on the mother as a victim of violence. Notwithstanding it is possible that these children are sympathetic to and want to be supportive of the mother, there is no clear evidence of any so called brain-washing and I am going to give significant weight to the children’s views as detailed in the Family Report and in evidence given by the expert to this Court. I have noted that the children were aged 10 and 9 when interviewed.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

1. From my assessment of the mother’s evidence and that of Dr C on this topic, she appears to be a caring, attentive and nurturing mother. I note at paragraph 55 of Dr C’s report she said… “the children engaged well with her and were very comfortable in her care” and at paragraph 57 described her as child focused, caring and attentive.

2. In relation to the father, the children have not spent time with him or had communication with him for over three years at the time of hearing. It is clear from the report and the other evidence that the children do not want to have any contact with him. It is also clear that their relationship is badly damaged, and in fact on any assessment, the children both have an extremely negative view of their father.

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

3. No significant evidence was led on this topic to enable the Court to comment with any confidence about this issue.

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

  (iii)  to communicate with the child;

1. In relation to the mother, she has clearly taken every opportunity to make decisions in relation to the children, spend time with them and communicate with them. She is the primary carer. She is the unchallenged primary carer that will continue to promote the welfare of these children.

2. The father on the other hand has had no role in the last few years in making any decision about the major long-term issues for the children, spending time with them or communicating with them. It is a difficult problem because not only do they have a very negative view of him but the fact that he has not seen or communicated with them for approximately three years appears to compound this difficulty.

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. The burden of supporting and financially contributing to the welfare of the children has fallen on the shoulders of the mother since separation. The evidence disclosed that the father has not provided any financial support for these children for over three years.

(d)  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

1. In my view should the children be separated from their mother for any significant period it would have a very negative effect on their welfare. They all have a close and loving relationship.

2. In relation to the father, it appears that the child-parent relationship is so damaged, there would be no adverse effect on the children being further separated from their father.

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

3. There was no significant evidence led on this topic to enable the Court to make any comment with confidence.

(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;

1. Not relevant.

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

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

1. The mother clearly has a significant capacity to provide for the needs of the children both intellectually and emotionally. For example, in the past she has obtained a mental health care plan for them and taken them to counselling with a Ms E.

2. In relation to the father, there is a serious question mark hanging over his capacity to provide for the needs of the children, including their emotional and intellectual needs. It is common ground that he has a history of drug and alcohol abuse and committed serious acts of family violence on the mother and the children. He says he is a changed man and he will not repeat his antisocial behaviour of the past, but does not produce any significant evidence corroborating this reformation. He points to have undertaken some courses in relation to family violence and drug and alcohol abuse but did not call any corroborating evidence which convinced me he has changed his anti-social ways. I was very concerned that notwithstanding the Independent Children’s Lawyer’s regular requests for drug screens, none were provided by him since November, 2017 and he was not assessed by a psychiatrist.

(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;

1. I am very concerned about the maturity, lifestyle and background of the father as detailed in this judgment. He has behaved in such an antisocial and destructive way physically, emotionally and psychologically that I am not satisfied that he has the current capacity to promote the welfare of these children. This is compounded by his lack of insight referred to at paragraph 25 of the Family Report.

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The Family Report writer Dr C was cross-examined about the behaviour of the father and said in answer to a question put by Counsel for the Independent Children’s Lawyer the following…

   “the indicator of future harm is based on past harm and unless those risk factors are addressed, I suspect that those behaviours are likely to continue and even when I interviewed him and tried to explore the option of him attending a psychiatric assessment, he said he couldn’t afford it but went onto talk about the money he had put into repairing cars and whatever other vehicles were in his possession. So to me this suggests a person who’s just not able to prioritise what is required to address any of the risk factors. There are multiple risk factors and I identified those you know, the behaviours were repeated in another relationship. There was not evidence to suggest he has addressed his drug issues and no evidence to suggest he has addressed his behaviour and violence behaviour in the past, so unless those risk factors are addressed, I would have grave concerns about his capacity to have a meaningful relationship with the children in the future and a safe relationship.”

2. The mother has done her best to promote the children’s welfare. She is responsible and has a very caring attitude.

(j)  any family violence involving the child or a member of the child's family;

1. As I have said earlier in this judgment there has been many examples of family violence inflicted upon the mother and/or children in this matter by the father. There is no doubt in my mind that he has undertaken behaviour that constitutes family violence as defined in s.4AB of the Family Law Act 1975.

2. The mother’s affidavit sworn and filed 26 May, 2017 from paragraphs 22 through to 30 detail his destructive behaviour. In summary she details being slammed up against a cupboard in the kitchen by the father, being sexually abused by the father, being verbally abused by the father, being hit on her head by the father and falling to the ground. She goes onto detail about the father losing his temper with [Y]. She also describes assaults in front of the children and how on one occasion she was grabbed by him around the throat, held up against the wall and he waved his fist in her face. She then finally describes a very troubling matter, his threat to kill the children and her. Many of these allegations were admitted by the father and/or never challenged in cross-examination at the trial.

3. In the same affidavit the mother had at annexure ‘A’ a letter from Mr G, a registered psychologist, who attended upon the father on 9 occasions between 24 March, 2012 and 31 July, 2015. In that letter at the second paragraph it reads as follows…

   “In counselling sessions it soon became clear Mr McAllister has chronic ICE dependency resulting in mood swings and severe depression. Despite Ms Naden’s ongoing strong opposition, Mr McAllister was unwilling or unable to address his ongoing drug use.” At paragraph 4 the author says the following… “Mr McAllister attended several mediation sessions in my office with Ms Naden after their separation in 2015 which I “supervised” to ensure her safety. During these sessions he acknowledged that he had made the “murder-suicide” threat against his family.”

4. All of the above was extremely troubling to me and was a factor in coming to the decision that I made in terms of time with and communication with the children.

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. It is common ground that the mother has obtained 4 family violence Intervention Orders against the father commencing in 2014 and then on 27 February 2015, then 22 January, 2016 and finally on 24 March, 2017 an indefinite order was made by the Magistrates’ Court at Suburb H.

2. On 8 September, 2015 the Suburb J Magistrates’ Court dealt with the father in relation to 32 charges of breaching the Intervention Order. They were consolidated and there was a deferral of sentence to 22 November, 2015 when the learned Magistrate fined the father $1,000 without conviction and placed him on a 12 month good behaviour bond.

3. All of the above is very troubling and it appears to me that the father’s behaviour and its ramifications are best summed up at page 4 of a report by a mental health social worker, a Ms E dated 10 August, 2018 annexed to her affidavit sworn on 21 August, 2018, where she says the following…

   “Due to the significance of the alleged past abuse, and the ongoing potential risk of further abuse as identified by both children and their mother; it is the writers professional opinion that disclosure of the family location not be revealed and that these children are not exposed to contact with their biological father in the future without a thorough psychiatric and drug and alcohol evaluation including personality profiling.”

(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;

1. There is no doubt in my mind that the orders I will make should minimise the risk of further ligation. However, the door is not completely shut to the father should he undergo significant drug and alcohol assessment, psychiatric evaluation and treatment (if necessary) to convince this Court in the future that he is not a risk to the welfare of these children in any form. He also has to satisfy the “rule” in Rice v Asplund.

(m) any other fact or circumstance that the court thinks is relevant.

1. At page 20 of the Family Report, Dr C recommended at paragraph 62(e) that the matter is adjourned until the father completes a psychiatric assessment. Having read the material and the family report on day 1 of the trial, I told the parties and counsel for the Independent Children’s Lawyer it was my initial view that there should not be an adjournment of this matter to allow the father to undertake a psychiatric assessment. I note no one sought an adjournment. The evidence was clear that he has had 12 months to attend to a psychiatric assessment and other matters and he has chosen not to, through laziness or otherwise. The mother and the children need to have this matter dealt with. It is not in the children’s best interests to further adjourn the trial in the hope that the father will comply with court orders that were made on 6 August, 2017 and were very clear. Litigation can have a very negative effect on children and their parents. Litigation should be seen as a last resort and should be completed as soon as practicable. In my view to adjourn this matter would only cause ongoing stress and anxiety for both the mother and the children.

S.60CC(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents;

1. Currently the children do not enjoy a meaningful relationship with their father. He told the Court he has not seen them since April, 2015. The children in my assessment are not yet emotionally or psychologically in a fit state to enjoy a meaningful relationship with their father.

2. Nor is the father ready for such a relationship. I referred to earlier a report by Ms E annexed to her affidavit and referred to page 4 with her recommendations about the matters the father has to attend to. Only then can this Court in my view consider any possibility of a meaningful relationship between the father and his children.

S.60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

S.60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)

1. I have discussed on many occasions in this judgment the violence that was significant, substantial and frequent over many years that was inflicted on the mother and/or the children by the father.

2. There is a need to protect them from future potential violence and abuse where the perpetrator does not produce cogent evidence they are no longer a risk to the children or his former partner.

S.61DA Presumption of equal shared parental responsibility when making parenting orders

(1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)  abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b)  family violence.

(3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

1. This is not an issue in this case as the father consents to the mother having sole parental responsibility.

S.65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

1. This section is not relevant given it only applies to equal shared parental responsibility orders.

Conclusion

1. The father was cross-examined by Counsel for the Independent Children’s Lawyer as follows:

   “MR WHITCHURCH: All right. So you – I suppose if we go to paragraph 14 on page 7 (of the Family Report).

   He said that he used ice and abused alcohol which caused him to become a threat to the mother.

   So sitting there speaking with the doctor you agree that your – as a result of you taking ice and alcohol, in mixtures and so on – and I’m assuming that you’re on your – on your medication as well, right, which you shouldn’t mix with alcohol and ice, right?---Yes.

   So you’ve got this cocktail?---Yes.

   And you can see that you were a threat - - -?---Yes.

   - - - to the children’s mum?---Yes. I - - -

   And consequently a threat to her capacity to care for the children?---I will – yes. I will totally wear that. There’s no argument here. I know I was – was unpleasant to live with. I’ve said that all along.

   Okay?---And I totally own the fact that I was - - -

   You own that?--- - - - was unpleasant and all, but – yes. All I can do is just, which I have done, I’ve just learnt. I’ve hit rock bottom, and I’ve worked my way up, and worked on myself, and now I’m, like I said, I’m in a good head space again.

   All right?---But – yes.

   But what’s to say you’re not going to slip again? You see, you’ve relapsed before?---Yes, I know.

   You’ve gone off the ice. You’ve gone back onto it?---Yes, I’ve never - - -

   Haven’t you?---Yes. But I’ve been – like I said, I’ve been off for two years now. I –I’ve used it once - - -

   Well, when did you last use it?---I don’t even – I know I’ve used it once in the two years. I think - - -

   Last year?---When was it? I don’t even know. Yes. I think it was around – I don’t even know. I know I’ve used it.

   So what – how did it happen? Do you – do you just go to the pub and you have a few drinks and someone – you know, you just ask around - - -?---I was just - - -

   - - have a little taste out in the carpark? How does it work?---I think I seen it on TV, or something. Like, “I wouldn’t mind some of that”, and just – so I – I got some and, yes, and hated it. I was hoping that I was scared to pick up, that I was going to pick up and go, “Oh, I’ve missed you so much”, but I picked it up, and I had it, and I hated it. I hated myself for having it.

   Do you have anybody to talk to personally, like a counsellor, or a psychologist, or anyone like that now?---No, I don’t. I’ve got a referral at home to – to start seeing my – my psychologist again. I’ve just - - -

   Again. When – who’s that person?---Mr K.

   All right. So we’ve got - - -?---From Psychology Clinic – yes.

   Yes. Well, there was a – you had quite a long relationship with that person?---Yes.

   Yes.

   And then you stopped?---Yes.

   When did you stop?---Would have been 12 months ago, I guess.

   Well, you see, it’s almost like you’ve – you’ve started these proceedings, and then the response from – from the mother about what she thinks about it all?---Yes.

   And then you – in the context of that, of going to court, say, in the middle of last year, and special orders being made to set this up for a trial – we’re now early September the following year – and what you’ve done in the last year and a bit, or since that – since then you’ve dropped off – you’ve dropped off your counselling with your psychologist, you’ve dropped off your medication without any medical advice, you’ve failed to see a psychiatrist, and you’ve – and you’ve completely ignored requests for drug screens. Right?---Yes.

   All those four things?---Yes.

   And you’re asking the court to say, “Look, I’m okay, I’m in a good head space. I really want to see my children.” Fine. However, if those four things – it’s like you’re at chapter 1. You’ve got to get to the end of the story before you - - -?---Yes.

   - - - actually have a solid base to say - - -?---Yes.

   - - - “I’m fit enough, and the children should be” – and even the mother. You’ve got to – you know, she has got to feel comfortable about it?---Yes.

   So wouldn’t it be better for you to just say, “All right. I will pack my kit bag now and I will go away and I will do all these things.”?---Yes.

   You say you’ve changed, but you’ve got to prove it?---Yes.

   Don’t you?---I know. Totally agree.”

   This is compelling evidence and an appropriate concession by the father.

1. In cross-examination by Counsel for the mother, Ms Jenkinson, Dr C was asked what would be the impact on the children if they were made to spend time with their father and the expert said:

   “I’m just reading my report. Just one minute, please. These children were exposed to significant violence in their relationship. The trauma that they experienced thereafter was quite profound and they’ve made significant progress. Their development was interrupted for a time and – and – and the mother has done her – her best to – to ensure their – their future well-being and they’ve progressed much better since –since moving and relocating and not – not having to focus on these – this relationship. So, within that context, I – I would have grave concerns for the children’s well-being if they were made to have contact with – with a – with a parent who minimised the past behaviours, has no insight into the impact of his behaviours on the children, and – and so what would that – what would that contact look like for the children, I – I would have grave concerns for their well-being.

   Would those concerns include that the progress they’ve made might be undone; that they might regress?---Yes. Yes. I – I – I think it would retrigger the trauma that they experienced and, yes, it’s highly likely to cause them to regress in their behaviours, as I said in my report.”

   and the effect on their mother:

   “I can only imagine this would also trigger extreme distress and anxiety and trauma and not only for herself but he – she is a parent who’s trying to protect her children. It would undermine their relationship because she can’t protect them, so not only for her well-being but for the impact of her relationship with the children. They – they have a – this is their only safe relationship and – and it would significantly, I think, compromise their relationship with her too.”

   I accept this evidence. Section 60CC of the Act looms large in this case.

2. A further matter that requires explanation is the change of the children’s names. The unchallenged evidence of Ms E at page 4 of her report included the following…

   “based on the writers long history in working in child mental health, adult mental health, victims of crime, and trauma therapy, it is my professional opinion that these children and their mother have been exposed to significant trauma effect and present with post-traumatic stress disorder and adjustment disorder.”

3. Whatever assessment one makes of the evidence of this case, one matter is crystal clear. These children need “healing time”. When the parents cohabited, the children were often part of a dysfunctional, frightening, anxiety producing environment. The children are the psychological and emotional victims of their father’s drug induced, alcohol induced helter skelter. They need a break. They need a period of peace, stability, routine, soft words and caring in their lives. This is a major reason why I am making orders in relation to their names and this is also based on the evidence of Dr C detailed below.

4. In cross-examination by Counsel for the mother, Dr C was asked whether she had any comments or recommendations in relation to their proposed change of names and she said the following:

   “Children’s names are part of their identity and to be associated with a parent who has – where there has been a history of family violence and trauma, is – is – compounds the – the ongoing recovery because of their association with that name, so I – I recall a very similar case not so long ago where the – the child was requesting the same change of name because it reminded her, and I didn’t explore that with the children. I – I felt that that could be done at a later stage but have – having spoken to children about this in the past, my – my anecdotal experience is that the name can compound a child’s recovery and so I suspect with these children too that the association with their father, if they’re not having any further contact, needs to be completely changed. And – and this is – also empowering the children to have some control over how they manage this as well is important and so I think that that name change is – is recognising the children’s need to take control over their lives too.”

5. It appears from the evidence of the mother and Dr C that a change of name for the children will promote their welfare. It appears that the father’s surname and his first name with [Y] are a negative for their happiness and anchors them to their past traumatic memories. It is in their best interests that they be at liberty to be known by other names.

6. In conclusion, when one reads the affidavits, transcript of evidence, and notes made at trial and reflects on the evidence and presentation of the parties, while it is challenging to come to this decision, it is clear to me that currently, it is in the best interests of the these two children not to communicate with or spend time with their father.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 15 March 2019