Melzer & Powles
[2024] FedCFamC1F 651
•22 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melzer & Powles [2024] FedCFamC1F 651
File number(s): BRC 3006 of 2016 Judgment of: BAUMANN J Date of judgment: 22 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was listed for Undefended Hearing – Where the Respondent sought to rely upon material filed in the incorrect form on a previous occasion – Respondent granted leave to rely on material and make submissions – Where the hearing proceeded on an undefended basis.
FAMILY LAW – CHILDREN – Where the parties have been litigating for eight years – Where the children have not spent recent time with the Respondent due to incarceration arising from charges involving the perpetration of domestic violence upon another domestic partner – Final Orders made for the Applicant to have sole decision making and the children to live with the Applicant – Interim Orders made for the children to spend supervised time with the Respondent
Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAAA, 68B
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 1.33(2)(c), 10.26
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 22 July 2024 Place: Brisbane Solicitor for the Applicant: Lewis & Mcnamara Solicitors Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Swanwick Murray Roche Lawyers ORDERS
BRC 3006 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MELZER
Applicant
AND: MR POWLES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
22 JULY 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the Final Hearing listed 22 July 2024 shall continue on an undefended basis.
2.That the Applicant mother have sole decision making in respect of all major long-term issues of the children, Y born in 2011 and X born in 2013 (“the children”).
3.That the mother shall provide notice in writing to the Respondent father of any major longer-term decision she has made for the children within fourteen (14) days.
4.That the mother shall provide notice in writing to the father particulars of where the children are residing and attending school within fourteen (14) days.
5.That the mother shall provide notice in writing to the father of any changes to the children’s living and schooling arrangements within seven (7) days of any such change.
Living arrangements
6.That the children shall live with the mother.
Restraints
7.That neither parent shall:
(a)discuss these proceedings or other issues of adult conflict with or in the presence of children; or
(b)denigrate or make hurtful remarks about the other parent, the other parent’s extended family, or the other parent's household to or in the presence of the children.
THE COURT ORDERS UNTIL FURTHER ORDER:
8.That the children shall spend supervised time with the father each fortnight for a period of two (2) hours on either Saturday or Sunday at B Contact Centre in Town C.
9.That the parents shall undertake any intake procedure for B Contact Centre, Town C within fourteen (14) days.
10.That the father shall bear the cost of all supervision until further order.
11.That the children shall communicate with the father by telephone each Thursday at 6.30pm with the father to initiate the telephone call to a mobile number provided to him by the mother’s legal representative.
12.That for the purpose of telephone communication between the children and the father:
(a)the mother shall provide a nominated mobile phone number to the father within forty-eight (48) hours;
(b)all calls between the children and the father are to be in private, unsupervised, and unrecorded; and
(c)the mother shall ensure that the mobile phone being used for the purpose of telephone communication is in a location with mobile reception with a charged battery.
Other orders
13.That these proceedings be adjourned for Case Management Hearing before the Honourable Justice Howard on a date to be advised in approximately nine (9) months.
14.That the Independent Children’s Lawyer be at liberty to apply to have the matter re‑listed.
IT IS NOTED:
A.That the Independent Children’s Lawyer sought a number of injunctions pursuant to s 68B of the Family Law Act 1975 (Cth) and that such orders were not made by the Court in contemplation of a Protection Order that is currently in force between the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melzer & Powles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
The parents of Y, who is now aged almost 13 years, and X, who is now aged 11 years, have been separated since July 2015.
Litigation has been ongoing since 2016.
The issues of family violence arise in this case. Not only do the issues arise because of a further family violence order being made in approximately late 2023 for five years, but also because of the father’s conviction of domestic violence offences against a further domestic partner which, caused him to be in custody but on remand for much of that period, for 12 months until mid-2023.
Orders were made by me on 15 July 2020. Those Orders provided for the father to spend some time with the children, however, the father’s incarceration caused a delay in the proceedings.
As best as can be discerned from the material and the submissions of Mr Lang (solicitor advocate today for the mother) and Ms Kyreakou (the Independent Children’s Lawyer), on 13 October 2022 Justice Howard suspended the time the children spent with the father and further ordered that the children live with the mother and spend no time and have no communication with the father. That is the situation that has continued as a result of those orders since then.
Thereafter, Howard J, having the matter in his docket, has attempted to finalise the matter.
In that regard, the only family report, that being of Ms D, initially prepared in May 2017 and updated in September 2019, has not been further updated. There was a psychiatric report prepared by Dr F, filed over six years ago, in February 2018.
The case management of this matter is difficult to ascertain with certainty, but relying on various Orders made and submissions of the lawyers today on behalf of the mother, Mr Lang, and the Independent Children's Lawyer, it seemed to have progressed somewhat like this:
(a)On 13 October 2022, Howard J suspended earlier Orders for the children to spend time with the father and adjourned the matter until 16 November 2022;
(b)On 20 November 2022, by way of orders being made in chambers, the Case Management Hearing listed on 16 November 2022 was adjourned until 9 December 2022. It is worth noting for context that at this time the father was incarcerated (on remand at least) since mid-2022 and was not released until mid-2023;
(c)Adjournments of the Case Management Hearing, either because of communication issues with the prison or otherwise, continued until 13 October 2023. On that day, the Order suggests that the parties, other than the father, appeared before the Court. The father is shown as being a non-appearance, although the Independent Children’s Lawyer says from her notes that the father had appeared at one part of the proceedings that day but then further attempts to connect with him failed. Importantly, however, on 13 October 2023, the Court noted that
B.That the Respondent failed to comply with the Order made on 17 August 2023. The Respondent has failed to file a Response in the approved form and has failed to file an affidavit in accordance with that Order.
(d)What has become apparent in Court today is that the unrepresented father did send, by way of email to the chambers of Howard J, a document titled Response to Final Orders and a sworn affidavit that were not in the approved form and were not filed through the portal on the Court record. However, I am satisfied by an email provided to the Court today that both the mother’s lawyers and the Independent Children’s Lawyer were aware of that affidavit. It could not be said that they are taken by surprise when the father provided a copy of those documents today, as to their contents.
(e)The Order of Howard J on 13 October 2023 stated:
NOTING THAT THE RESPONDENT HAS FAILED TO FILE A RESPONSE IN THE APPROVED FORM:
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That this matter be listed for an Undefended Hearing at 10.00a.m on 22 January 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane before the Honourable Justice Howard.
2.That the parties and their legal representatives (if any) shall personally attend Court on 22 January 2024.
3.That the Applicant and the Independent Children’s Lawyer shall file and serve no later than 4.00pm on 1 DECEMBER 2023, a Case Outline setting out:
a. a precise minute of the final orders sought; and
b. a relevant chronology.
4.That the Applicant shall file and serve no later than 4.00pm on 1 DECEMBER 2023:
a. one (1) consolidated Affidavit of evidence in chief; and
b. an affidavit of any other witness relied on by the Applicant.
It is apparent from the orders made by his Honour that his view was that the matter should proceed without any further updating evidence from the father.
(f)It is apparent from the Order that his Honour was aware of the attempt by the father to bring to the Court’s attention his views as contained in an affidavit sent by email on 28 September;
(g)The matter did not proceed to an undefended hearing on 22 January 2024. The Order that day suggests that all parties attended in person; Mr J of Counsel appeared for the mother; Ms K appeared as town agent for the Independent Children’s Lawyer, and the father attended as a self-represented litigant. By Order 1 made by Howard J, the matter was further adjourned for an undefended hearing to commence today;
(h)Although the matter was to proceed before Howard J, medical circumstances prevent his Honour from dealing with the matter today and, as a result, I am dealing with the matter as the Case Management Judge for Queensland; and
(i)However, it is clear that his Honour took the view on that day – and perhaps this is the main reason the matter was adjourned as an undefended hearing – that the Court would be assisted by a report from a family consultant dealing with the wishes expressed by the children. The children had an opportunity to express their wishes to a Family Consultant on 5 March 2024, and a report by Court Child Expert Ms E dated 9 April 2024 was before the Court. That report is relied upon by the Independent Children’s Lawyer.
PROCEDURAL MATTERS TODAY
When the matter came before me today, and I started to investigate what the father had done, I became aware of an email he said he sent (and he did send) to the chambers of Howard J on 28 September 2023. I had not had an opportunity to read his affidavit at that time. However, after discussing the matter with the parties, I raised three issues for submissions:
(a)Should the matter proceed undefended today? In that regard, the Independent Children’s Lawyer says the matter should proceed today in view of the history and the need for the matter to reach some finalisation. Initially, Mr Lang, on behalf of the mother, proposed that the matter should proceed undefended, but upon receiving further instructions suggested that the matter perhaps should not proceed undefended;
(b)If the matter proceeds today, should the father be entitled to rely upon the affidavit, although the parties were aware of it, not properly filed on 28 September 2023. The mother says the father should not be entitled to rely upon that affidavit. The Independent Children’s Lawyer says, in the circumstances of an undefended hearing, as she proposes, the father should be able to rely on that affidavit;
(c)The third issue arises from the existence of at least a family violence order made in late 2023 and what appears to have been, if not the subject of a direct Order made by his Honour, on two occasions after that order was made, the application of s 102 NA of the Family Law Act1975 (Cth) (“the Act”). It seems to me that if this matter proceeds undefended, which is effectively on the basis that neither the party would, in my view, fairly be entitled to cross-examine the other party, then s 102NA, which bans cross‑examination by an unrepresented litigant, has no real application. In any event, Mr Lang, on behalf of the mother, who is a legal practitioner, could, if the Court permitted it, cross-examine the father on his affidavit. The Independent Children’s Lawyer – a legal practitioner – also could, if she wished to, cross-examine the father on his affidavit. The father would not be permitted, by reason of the family violence order, to cross-examine the mother.
SHOULD THE MATTER PROCEED UNDEFENDED?
So, the issue is, what should we do? It seems to me there are at least two options:
(a)The Court can proceed today on the basis that the Court allows the father to rely upon the affidavit he attempted to file in September 2023, and allowing him to make submissions on all the material, and for the Court to then make an order; or
(b)Option two is that the matter be adjourned again, during which time the father can seek to obtain legal representation in an endeavour to, at least when he comes before the Court on an adjourned hearing, have representation to make his submissions.
In my view, the matter should proceed today for these reasons:
(a)The Court cannot ignore the consistent failure of the father to comply with directions made by the Court to file, appropriately, his material. It is clear that r 10.26 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”) provides that an Applicant, or in this case a Respondent, is in default if they fail to file a document required under the Rules, or as ordered.
(2)For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a)give an address for service before the time for the respondent to give an address has expired; or
(b)file a response before the time for the respondent to file a response has expired; or
(c) comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e) produce a document as required by Division 6.2.2; or
(f) do any act required to be done by these Rules; or
(g) defend the proceeding with due diligence; or
(h)prosecute with due diligence any application the respondent has made in the proceeding.
As I have indicated, there have been a number of Orders made where the father has simply failed to comply. The mother has, as a result, been dragged through the process, part of it delayed because of the father’s incarceration, but also, it seems to me, part of it resulting from the father’s failure to comply.
(b)Secondly, although I do not believe I am bound by the Order made by another Judge in the case management process to proceed undefended, r 1.33(2)(c) of the Rules makes it clear that if a party to a proceeding does not comply with the Rules, then it is open to the Court to determine the proceedings as if it were undefended;
(c)Thirdly, the nature of a matter proceeding undefended does not mean that the person who is in default (in this case the father) cannot be heard on the orders he proposes. It does not mean that the father cannot make submissions on all the evidence. In fact, recent authorities of the Full Court make it clear that even in an undefended hearing, a person can, in the discretion of the Court, rely upon earlier material and can make submissions.
I think this matter has dragged on for a long time. I intend to allow the father to rely upon the affidavits he sent by way of email to chambers and the Response on 28 September 2023.
The matter will proceed on the basis of submissions from the parties, as no party seeks to cross-examine the other party or the Court Child Expert.
UNDEFENDED HEARING BEFORE JUSTICE BAUMANN
CONTEXTUAL HISTORY
This case involves what orders are in the best interests of two children, Y born in 2011 and X born in 2013 of a relationship between the Applicant mother, Ms Melzer, who is now approaching her 41st birthday, and the Respondent father, Mr Powles, who is now 43 years of age. These parties, it seems, were in a relationship from around about 2006 and separated in or about July 2015. The mother says, and the Court accepts, that at the time of separation, the mother feared for her and the children’s safety, and moved into temporary accommodation. The children were young at the time of their parents’ separation. Y had not yet reached her fourth birthday and X was two years of age.
It has been said during today’s proceedings that there has been a significant litigation history. That is correct. These proceedings commenced on 5 April 2016, over eight years ago, when the mother brought an Application in what was then the Federal Circuit Court of Australia, seeking a recovery order. Not long thereafter, the proceedings were transferred to what was then, the Family Court of Australia, where it was managed by Registrars until the a substantive Order was made by me as a Judge of this Court in September 2019. That consent Order was shaped by a family report (the second such family report) prepared by Ms D. Ms D’s report identified a very difficult history.
SINGLE EXPERT OPINIONS
Can I say, in terms of that history, that the father had been the subject of a psychiatric examination by Dr F with a report being prepared and dated 24 January 2018. It was relied upon today by the mother.
Dr F, in discussing diagnostic issues in respect of the father, identified at page 20 of the 21‑page affidavit, that:
Given the father’s well-documented history of a drug-induced psychosis, I would strongly recommend the father make an undertaking to abstain fully from the use of illicit substances, in particular amphetamines and cannabinoids. Given the apparent uncertainty about the reliability of the father's self-disclosure with respect to substance abuse, I recommend that the father also undertake ongoing random drug testing…
Dr F cautiously recommended that:
If the father was abstaining from illicit substances and was demonstrating an ability to more appropriately control his emotions, in particular anger, and was engaged appropriately in mental health treatment and was demonstrating an ongoing stability in his mental health, and was not engaging in harassing or intimidating behaviour towards the mother, and was able to demonstrate an ability to protect the children from any negative views with respect to the mother that he may hold, I would have no concerns the children would be at risk of significant harm in the care of the father on either a supervised or unsupervised basis…
Such recommendation was a highly conditional opinion that was considered by Ms D in her family report dated 16 September 2019.
What is important for context in respect of that report is that at the time of that updating report, the father was living at Town C with his partner, Ms H. Although the father was then unemployed, he was planning on setting up a company to sell and store technical equipment. It was clear from the report that Ms H was supportive of the father and his relationship with the children. The recommendations made by Ms D on 16 September 2019 were that:
a.The children live with their mother.
b.The children spend alternate weekends with their father from Friday after school until Sunday at 5.00 PM (or thereabouts) until [X] completes grade 2.
c.The children spend half the school holidays with their father with the Christmas holiday to be a week about arrangement.
d.Once [X] has completed grade two the time the children spend with their father should increase to include the Sunday evening with their father delivering them to school on Monday morning.
Consistent with the mother’s support of seeking to facilitate the children having a relationship with their father, Orders were made by consent on 17 September 2019 broadly in accordance with the recommendations of Ms D.
THE FATHER’S INCARCERATION
The father says, and continues to assert persistently, that it was not taken into account by the Court Child Expert when she spoke to the children in March 2024 that he had had previously spent unsupervised time. I think it is clearly by inference something known to the report writer from the history, but nonetheless, what the history does suggest is that the Order of 17 September 2019 continued until a problem arose in the relationship of the father and Ms D. That came to the Court’s attention on or about mid‑2020, some 10 months after the unsupervised time Order was made. At that time, the Court made an Order that the children spend supervised time with the father at B Contact Centre and communicate with him weekly on a Wednesday by telephone.
The relationship with Ms H was clearly difficult, and the father was ultimately charged with offences arising from that relationship. The offences are serious.
According to Exhibit 1 today, in early 2023 in the District Court, on his plea of guilty, the father was convicted of a number of offences relating to Ms H. They included, under s 315A of the Criminal Code1899 (Qld) offences for which he was sentenced to a term of over two years. Further convictions to be served concurrently, for an assault on the same day (namely early 2021) as well as for other offences and domestic violence offences were imposed. All these events are said to have occurred in early 2020.
The Independent Children’s Lawyer, in her submissions today, raises a concern from the content of the father’s self-prepared affidavit dated and sworn on 28 September 2023 (I note that being after he was released from incarceration) where the father says at paragraph 29:
Ultimately, I pleaded guilty to [multiple offences]. I was sentenced to [two] years and released after 12 months. All my criminal proceedings have been finalised.
(As per original)
In fact, that is inaccurate. The father says today that he read some document from the Court wrongly. I cannot test that assertion today, although the Independent Children’s Lawyer was entitled to be suspicious about whether the father was downplaying his offences. If he was trying to downplay his offences, then of course he is silly at least because the Court was always going to find out what the offences were.
Furthermore, although he said at 28 September 2023 “[a]ll my criminal proceedings have been finalised”, that might have been a reference to an appearance before the Magistrates Court in mid-2023 where a number of offences were effectively dealt with that arose from, or prior to, some of the other offences, such that all the charges were dealt with on a basis that no conviction was recorded, and no further punishment was imposed. Exhibit 2 tendered by the Independent Children’s Lawyer in relation to the father’s criminal history does not suggest any other criminal proceedings have occurred since late 2023, although the Court is aware that a domestic violence order between the father and mother in these proceedings was made by a Local Court in or about mid-2023 for a period of five years.
MATERIAL RELIED UPON
Without restating what has already been said about the manner in which this case proceeded before me today, but in circumstances where all parties were given an opportunity to make submissions on the evidence, it is appropriate to identify the material that I have read.
The mother
In respect of the mother’s case, I have read the material set out in her case outline filed 27 November 2023.
Mr Lang, who appears for the mother today by video from Town C, with the mother present in his office, confirmed that the orders sought in the case outline, consistent with an amended Application filed 31 August 2023, were that:
1.That the Mother is to have sole parental responsibility for the major long-term issues of the children [Y] born [in] 2011 and [X] born [in] 2013 (“the children”).
2.That the children live with the Mother.
3.That the children spend no time with the Father.
4.That the children no not communicate with the Father.
5.In the alternative to Order 3 and Order 4, the children spend time with the Father on a supervised basis only, such time to occur for 2 hours every second weekend at [B Contact Centre, Town C] with the father to pay all costs.
In forming orders today, and for the reasons which I will explain shortly, the mother’s alternate proposal has become her primary proposal. The Court does not require any greater example of the mother’s preparedness to support, in her children’s best interests, notwithstanding her concerns and fears about the children’s safety, that she now supports as her primary proposal supervised time.
The father
The father’s proposal is somewhat confusing, but at least I am prepared to accept from what he has said in his response document, which was tendered earlier today, that he says ultimately, he seeks:
1.I request that the interim orders 17/09/2918 Amended 29/01/2020 that were suspended on 11/06/2020 because of criminal charges pending be reinstated as my criminal charges have now been finalised.
2.I request an updated family report.
3.Ultimately a final order of 50/50 is in the children’s best interest to ensure a meaningful relationship with both their Mother and their Father. After the interim orders as resumed and because of the amounts of time between visits I would agree to a gradual increase to 50/50 custody and would be happy to follow any of the courts recommendations around for filing any requirements deemed appropriate to ensure this outcome.
4.I request that something be put in place to prevent the constant lies and deformation perpetuated by the children’s mother against the father and it be strictly ordered that this behaviour must cease immediately and to ensure that the serious neglect of the children in their mothers care be addressed and there ongoing needs be monitored by the appropriate authorities.
5.also I request that the mother’s drug and alcohol consumption be tested by way of fair follicle test and that the mother must not bleach or die or modify her hair in anyway before the test and if it has been found that the hair has been bleached, died or modified in any way that the test be treated as positive. And while the children’ are in their mother’s care that no person is to consume alcohol, drugs or engage in any illegal activity.
6.As [Ms Melzer] works full time and is constantly leaving the children with her chronic alcoholic mother. I would request that in these instances that the father be also granted the ability to care for the children at these times and anytime that [Ms Melzer’s] mother be left alone with the children that her mother must undergo the relevant testing to ensure the safety of the children.
…
(As per original)
Whilst the father made other complaints about the mother's housing, they are not relevant to the current situation.
The Independent Children’s Lawyer
In cases like this, the position of the Independent Children’s Lawyer is always important.
The Court is not bound by the views of an Independent Children’s Lawyer who must in some parenting cases act independently of the children’s expressed wishes, particularly in circumstances where arguments are advanced which are said to promote the best interests of the children contrary to the wishes expressed. The experienced Independent Children’s Lawyer, Ms Kyreakou, identifies that she has (as required by the legislation) spoken to the children. She said that the children’s views as expressed to her were the same, effectively, as those expressed to the recent report writer, Ms E.
It was clear in the submissions I received from the Independent Children’s Lawyer that on balance she was unable to support the commencement of supervised time, although she acknowledged that proposed order 3 in her case outline filed 19 July 2024, namely that “[t]he children spend time and communicate with the father at all such times as may be agreed between the mother and the father in writing” could be construed almost as a no-time order. The Independent Children’s Lawyer said that the order was still the best order for the children because the children had expressed to her a view that if the mother supported them having time with the father, the children felt comfortable that the mother would make it happen. The Independent Children’s Lawyer sought a number of injunctions under s 68B of the Act. I will deal shortly with the Independent Children’s Lawyer’s position about why she cannot support, on balance, any orders in respect of the father and the children spending supervised time together.
With the history of care that has occurred, it is clear that the children’s relationship with the father has been significantly interrupted. I accept that the father’s supervised time with the children ceased in December 2021, and that all communication by electronic means or otherwise ceased approximately 12 months later. I accept that during part of the period the father was in custody. I can only assume that the sentence that was imposed upon him and the time he served took into account the time that he was on remand. He was, he says, incarcerated in mid-2022, and was released in mid-2023.
VIEWS OF THE CHILDREN
It was a very appropriate and important Order made by Howard J that the children have an opportunity to express their views independently. That took place on 5 March 2024 when the children attended at the Registry and spoke with Court Child Expert Ms E.
Ms E is a social worker by profession and has been employed in the Court for some time. The report, relied upon by the Independent Children’s Lawyer, will be marked Exhibit 3 in these proceedings. It speaks for itself. In essence, the report makes the following observations:
(a)Y, who was in grade seven at the time of the interviews, was a shy, softly spoken young girl with a somewhat immature voice. It was suggested that perhaps she may have some intellectual development disorder, although there has been no evidence produced to the Court to establish that is the case. Y spoke about her mother being nice and gentle, and described the home she lived with her mother and brother and her grandmother all in positive terms;
(b)At paragraph 6 of the report, Y indicates that her memories of times spent with the father were that he was fun although at times he yelled, and he lied about the mother and that everything was the mother’s fault. She had clearly witnessed some early family violence between the mother and the father, particularly an occasion where the mother was pushed onto a sofa. But at paragraph 7, and most importantly, she said she was sad to not be having time with her father;
(c)At paragraph 8, Y indicated that the mother wants whatever we want and expressed a wish to recommence time at B Contact Centre. Without any foundation it seems, on the evidence I have, the child felt that the time had ceased because the father may have acted aggressively towards the staff at B Contact Centre. The father says from the bar table that is not correct and that they “love him”. Y was able to contemplate possibly moving from supervised visits, if it went well, to unsupervised time;
(d)X’s interview is set out at paragraphs 9 to 12. He was assessed by the report writer as a child who seemed older than his age, who also described the home of his mother positively, and his mother positively;
(e)At paragraph 11, the child spoke “extensively of his experiences with his father”. It is clear that he had many positive memories of interaction with his father. He does, however, say that he witnessed verbal altercations between the father and Ms H, and that when the father is angry, he can be terrifying. X wants to also spend time with his father, but would like to “start slow”, and see how it goes before increasing it;
(f)In looking at recommendations that could be made, ultimately, at paragraphs 18 and paragraph 20, the report writer, although acknowledging some difficulties in the history, reflected on the children at this age wishing to re-establish their time with the father and suggested supervised time for a period of 12 months be considered by the Court;
(g)The children's memories about the father were not entirely positive. The report writer identified that the children said, in effect, that they saw their father at times as, “unpredictable, emotionally reactive, and unreliable”; and
(h)The father (I think to his discredit) suggests that the children’s views were influenced in some way by the mother. If they were, they are positive of spending time with their father. He needs to be more generous about the mother than he exhibits before the Court today. It presents as a further example, perhaps, of the fact that he has not yet quite got to the stage of having insight into the conduct that he has been charged or convicted of; conduct which seems to be around blaming everybody for his misfortune, particularly women and not giving any credit at all for the fact that these two delightful children present so well as a result, no doubt, of the excellent care and attention given by their mother to their needs almost single-handedly. He would do well to be, as I say, more generous and acknowledging of the mother’s abilities as a parent to meet the needs of these children.
WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN?
So, what do we do? I have carefully considered the proposals of the Independent Children’s Lawyer. After eight years of litigation, many starts and stops, the Court would be attracted to an option of bringing these proceedings to an end. One way of doing so, notwithstanding the codified new provisions in the Act of Rice & Asplund (1979) FLC 90-725 now in section 65DAAA of the Act, is a no time order. On the current evidence, that order would apply perhaps for the rest of the children’s infancy.
The father has not done himself any service by not complying with Orders of the Court. Furthermore, he has done nothing for his benefit by indicating what courses he may have done in prison; what therapy post-prison he has undertaken and how he has in any way been reflective of his behaviour and his attitude to women and his perpetuation (as clearly, he has) of significant and serious family violence against a domestic partner.
Today his younger sister is in Court with him. That might show a sense of support he has. He should accept he will need support and a commitment to change. The Independent Children’s Lawyer’s prime position is that these proceedings need to come to an end. That can only occur by making a final order today, and her proposition is primarily that those final orders should be that there be no defined time between the children and the father.
Ultimately, I have come to a different view than that proposed by the Independent Children’s Lawyer, and I am guided in my view and comforted by, again, the ability of this mother, with legal advice and on reflection, notwithstanding the very difficult history with this man over many years, and her understandable concerns about the father’s behaviour reflected by his conviction of serious criminal charges, that she is able to consider the wishes of the children to have an ongoing relationship with their father. In my view, those wishes are reflective of positive memories they have about their father. Whether in the future he can duplicate those positive memories without denigrating or criticising the mother, only time will tell. If supervised time is ordered, which is my proposal and which is the mother’s now primary proposal, that will, in my view, ameliorate the risk of emotional harm that these children would be exposed to, at this stage on the evidence, potentially, in the unsupervised care of the father.
In my view, the father has shown sufficiently today to demonstrate that he is a man who genuinely wishes to have a relationship with his children. Whether he can take account of his past behaviour in a productive way, I do not know. I propose to give him 12 months to do so.
He should take on board the concerns that the children have expressed about his, “unreliability”. Failure (without proper explanation) to attend fortnightly at B Contact Centre for supervised visits, which are to occur at his cost, would, in my view, in all respects, likely cause the children to lose some enthusiasm for seeing their father.
Further, this is a case where, on all the evidence, the mother’s claim for an order that the children live with her and for her to have sole decision-making is both appropriate and in the best interests of the children.
I am conscious that any order I make must be seen within the context of the Family Violence Order between the parents. However, I believe that this man having fortnightly time with his children must be able to discuss with the children their life. If he travels into areas of criticisms of the mother at a supervised time, then obviously, as I have indicated to him today, the very risk of all time ceasing is increased. I do not propose to make any orders under s 68B of the Act for the protection of the mother, being aware of the existence of the Family Violence Order in force until 2028.
That last order is particularly directed to the apparent concerns the father has, without any evidence whatsoever, that the maternal grandmother is some sort of risk to the children. As soon as B Contact Centre can begin the family’s involvement, which will include, I assume, some form of intake procedure by both the mother and the father, then the Court has two options open to it in terms of supervised time:
(a)If the father on some future date, with or without the benefit of a lawyer, but having taken on board the comments of the Court, is able to put before the Court evidence of his improved attitude to women; any behaviour modification; and the fact that he has therapeutic support through this journey, then at some point in time the Court could consider, and may well be required in the best interests of the children, to consider a move to unsupervised time. How and whether that would progress will very much depend on the evidence available to the Court at the time. It would be open to the Court to make a final order today with an attempted “sunset” clause, so that within, say 12 months, upon production of such evidence, the father can recommence proceedings; and
(b)The second alternative is that the father and mother be bound by interim orders in relation to time and that retaining the Independent Children’s Lawyer in the case with the view to be able to re-list the matter if something goes wrong during that period, for example time ceases or there is an event at supervised time that needs to be brought to the Court’s attention, that the Independent Children’s Lawyer is placed to do that.
Although I have given serious consideration to the Independent Children’s Lawyer’s proposal that final orders be made in respect of all matters today, ultimately, I have decided it is better that an interim order be made as to time with the father. In that way, if the father is able to produce further evidence, then it may be possible to contemplate moving from my supervised time earlier than 12 months, but I could not anticipate that any such application is likely to be favourably considered before six months from this date.
In making these orders, I have taken into consideration the provisions of s 60CC of the Act and the matters which I am required to consider. I have given some weight to the children’s wishes; the fact that they have expressed a desire to spend time with the father (provided it is safe), to both the report writer, the Independent Children’s Lawyer and, I infer, although there is no evidence of this, but from the submissions of Mr Lang on behalf of the mother, also to the mother.
It is in the best interests of the children however to make some final orders because of the current evidence they are really not controversial, and it also gives the mother, and importantly the children, some sense of stability and security.
Therefore, the Orders which appear at the commencement of these Reasons are, at this time, in the best interests of the children.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 24 September 2024
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