Merta & Anworth (No 2)
[2023] FedCFamC1F 303
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Merta & Anworth (No 2) [2023] FedCFamC1F 303
File number(s): BRC 7548 of 2020 Judgment of: HOGAN J Date of judgment: 19 April 2023 Catchwords: FAMILY LAW – CHILDREN – Where the father did not appear at the trial – Where the father was given appropriate notice of the hearing of the matter – Where the trial proceeded in the father’s absence – Where there is a history of family violence – Where orders are made that the children live with the mother and have no time or communication with the father. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Eastley & Eastely (2022) FLC 94-094; [2022] FedCFamC1A 101
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: First Instance Number of paragraphs: 78 Date of hearing: 18 & 19 April 2023 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Jurgensen Horne Lawyers Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: Cornerstone Law Offices Counsel for the Independent Children's Lawyer: Mr Baston Solicitor for the Independent Children's Lawyer: Rhonda Sheehy And Associates ORDERS
BRC 7548 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MERTA
Applicant
AND: MR ANWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
19 APRIL 2023
IT IS ORDERED THAT GIVEN THE RESPONDENT’S FAILURE TO APPEAR:
1.The final hearing of this matter shall proceed in the Respondent’s absence.
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
2.All parenting plans and previous parenting orders are discharged.
3.The children, X, born in 2012 and Y, born in 2015 live with the mother.
4.The mother shall have the sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in her care.
5.The mother shall have sole parental responsibility for the children in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
6.The children shall spend no time and have no communication with the father.
7.The father is restrained and an injunction issue restraining the father from contacting the mother or the children in any way, or by any means, or having any other person contact the mother or the children in any way, or by any means, on his behalf.
8.The mother has leave to provide a copy of the Order made 19 April 2023 and the Family Report authored by Ms E dated 9 October 2021 to the school at which the children attend, to any therapist upon whom she or the children attend for the purpose of therapy, to the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
AND IT IS FURTHER ORDERED THAT
9.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
10.Any printed copy of any document produced in answer to subpoena held by either parent be returned by that parent to their solicitors within seven (7) days.
11.Upon receipt of any document pursuant to Order 10 above, the parents’ respective solicitors destroy that document.
12.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
13.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merta & Anworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are in the best interests of ten-year-old X who was born in 2012 and eight-year-old Y who was born in 2015.
The children have always lived with their mother and it is agreed that they should continue to do so.
It is also agreed that the mother should be accorded sole parental responsibility for the major long-term issues relating to the children.
The children have not spent time with their father since early 2020 at which time their mother sought and obtained a protection order against the father.
Whilst the father has been provided with legal representation, he did not appear in person in Brisbane yesterday when the trial commenced. Such appearance was mandated by order made in September 2022 when this matter was listed for final hearing.
Counsel who appeared for the father advised the Court yesterday that she was instructed that the father remained in D Region. She also applied, as she was instructed to do, for the trial to be adjourned. Such application was opposed by the mother and by the Independent Children's Lawyer. After that application was refused, I determined to stand this matter over until this morning to enable the father to travel to either the City B or City C Registry of this Court and participate in the trial via video link facilities available there. This decision was made in part because I was advised, on instructions by Counsel for the father, that the father's telephone connection or connection via Teams was unreliable and patchy.
Despite the Court having made arrangements for the father to participate in these proceedings via video link from either the City B or City C Registries of the Court, the father did not appear this morning. Instead, having been advised by his solicitors that he could appear from either Brisbane or D Region, the father advised them by email sent at 11.31 pm yesterday evening (Exhibit 3 in the proceedings) that he would not be able to “make it” for the trial tomorrow because he was “literally stuck” in an isolated area in D Region and over three hours to the Court in City C. He advised also that he had no transport and very little reception; that it had been over three years and he simply could not do it any longer due to his own personal health. The email advised also that there was “No possible way I could get to [City C] for trial tomorrow.”
The father's assertions about his difficulties in travelling to either the City B or City C Registries of the Court need, of course, to be seen in the context of this matter being listed for final hearing in September of last year. It would, therefore, be an error to interpret the contents of Exhibit 3 as conveying that the father was not afforded significant notice of the requirement that he appear for the trial, as I said, listed in September of last year.
The father's failure to appear either yesterday or this morning following an order that I made yesterday in the same terms requiring his appearance means that he is in default.[1] A consequence of him being in default is that the Court may give judgment or make any other order against him that the Court thinks just.[2]
[1] See: Rule 10.261A of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
[2] See: Rule 10.272B and Rule 10.273 of the Federal Circuit and Family Court of Australia(Family Law) Rules 2021 (Cth).
Given the evidence before me and the submissions made by Counsel for the mother and the Independent Children's Lawyer, I determined it to be just that I continue to hear and determine this matter today on what is something of a quasi-undefended basis. I use that term because the father has filed material (including a Case Outline filed recently) and has appeared by legal representation. His failure to abide the order to make himself available and to appear at the hearing is the sole cause of this matter proceeding in the manner that it has. It is the sole cause of the default.
I note that the law requires that a court ensure a fair trial. As part of that, a court is required to ensure and afford to parties in proceedings before it procedural fairness. In Kioa v West[3] Mason J, as his Honour then was, said at page 582:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
[3] (1985) 159 CLR 550.
Further, in Allesch v Maunz[4], Kirby J said, in particular at paragraph 35 insofar as the obligation of a court is concerned:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and to make submissions relevant to such a decision before it is made.
[4] (2000) 203 CLR 172.
Such authority and other cases which have subsequently followed it make clear that it is the affording of an opportunity to appear and to participate in a proceeding that is the requirement cast upon any court.
Given the history I have outlined, I am satisfied that the father has been afforded procedural fairness and that he has been accorded every opportunity to participate in the proceedings.
As discussed with Counsel, the father's absence persuades that it would have been unjust to the mother's case to require her to be made available to be cross-examined in circumstances where the father's decision not to appear has meant that he could not similarly be made available for cross-examination. It is a consequence of that that I determine to proceed to receive submissions from Counsel and to otherwise determine the matter on the basis of the documents in evidence, including those which have been tendered.
Before turning to express the reasons I intend to provide in support of the parenting orders I intend to make, it is, I think, appropriate to record my view that the legal representatives who have appeared for the father have discharged their obligations to him and the Court. No criticism can, in my view, be made of their efforts to represent the father in the proceedings. The situation in which the Court finds itself is entirely the result of the father's conduct alone. It is not in any way the result of any conduct by either Counsel who appeared for the father or her instructing solicitors. Both have, in my view, discharged their obligations in an exemplary manner.
I turn now to express the reasons which I intend to deliver in support of the parenting orders to be made.
DISCUSSION
In these proceedings, being proceedings for a parenting order in relation to the children, I may, subject to s 61DA and s 65DAB and Division 6 of Part 7 of the Family Law Act 1975 (Cth) (“the Act”), make such parenting orders as I think proper. I must have regard to the objects of Part VII of the Act and the principles which underpin those objects. In deciding whether to make a parenting order I must regard the children's best interests as the paramount consideration.
The matters to which regard must be had in determining those parenting orders which are in any child's best interests are prescribed by s 60CC of the Act. The requirement to consider each of those matters, though, does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[5]
[5] See: Banks & Banks (2015) FLC 93-637 which albeit an interim decision contains principles which seem to me to apply as much to final proceedings as they do to matters involving the resolution of proceedings on an interim basis.
Any failure, therefore, in these reasons delivered orally today on an ex tempore basis to mention a consideration specifically does not mean that it has been overlooked in my deliberation about those orders which are in these children's best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusions about such orders.
I also note for the record what should be obvious – namely, that prior to commencing the hearing yesterday, I had the opportunity to read the material relied upon by the parties. I have also had the opportunity overnight to revisit that material and to read those documents obtained via the issue of subpoena which have been tendered and which form part of the evidence before me.
Competing proposals
I note that when the mother was interviewed by Ms E (who has authored a Family Report for the assistance of the Court in this proceeding) on 6 September 2021, the mother's proposal was that the children should not spend any time with the father.
When he was interviewed by Ms E on 23 September 2021, the father's proposal was that the children should spend weekend time with him. He said to Ms E that he sought the opportunity to become part of the children's lives again via such contact and that he would never think of taking them away from their mother.
Included in the Case Outline filed on the father's behalf was the assertion the father would, in essence, accept that: any time the children were to spend with him should commence on a supervised basis; and also, in essence, that the matter would return to Court thereafter for the Court to determine whether such time should proceed to unsupervised time and, if so, the manner in which such time and communication should occur.
I turn to a consideration, albeit brief, of some of the relevant section 60CC considerations.
The benefit to the children of a meaningful relationship with both parents[6]
[6] Family Law Act 1975 (Cth) s 60CC(2)(a).
The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child's parents have, or should have, a meaningful involvement in that child's life.
In McCall & Clark[7], the Full Court concluded that the preferred interpretation of “benefit to a child in a meaningful relationship” is the prospective approach. That is, the Court must consider and determine whether there is a benefit to the children in having a meaningful relationship with each of their parents, such finding not being dependent simply on a lack of danger, a physical or psychological harm arising from time and/or communication with each parent.[8] If the Court determines that such benefit exists, then it must consider whether the benefit needs to give way to the requirement to protect the children from physical or psychological harm.
[7] (2009) FLC 93-405.
[8] See: Vigano & Desmond (2012) FLC 93-509 at [128] and [129].
In her report Ms E noted that the question for the Court pertained to the benefit or otherwise of the children spending time with the father.
The father believes, at least as is outlined in his material, that it is in the children's best interests for them to have a meaningful relationship with both of the parents and that there is a benefit to them of spending time with him.
The mother and the Independent Children's Lawyer do not join in this assertion. To the extent that any benefit to the children of having the opportunity to have a meaningful relationship with the father could be identified in the material before the Court, the positions of both the mother and the Independent Children's Lawyer seemed to me to be, in essence, that the likely negative impacts on the children and the mother's parenting capacity of any requirement for the children to spend time with the father are so significant as to outweigh any benefit that the children might be thought to gain from being accorded the opportunity to develop a meaningful relationship with the father.
On the evidence before me and noting the father's decision not to make himself available to be cross-examined in the proceedings, I am not persuaded that there is a benefit to the children of being accorded the opportunity to develop a meaningful relationship with the father.
If I am wrong in this conclusion, then, having regard to the comments which follow about the imperative of protecting the children from harm from being subjected to or exposed to abuse or family violence, I am unpersuaded that it is in the children's best interests to require them to undergo a process of reintroduction to the father and to participate in a period of supervised time with him and to be placed in the position of having their parents continue in a litigation process.
I turn to consider what I regard as the imperative of protecting the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The imperative of protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[9]
[9] Family Law Act 1975 (Cth) ss 60CC(2)(b) and 60CC(2A).
Authority makes it clear that the resolution of allegations of abuse are “subservient and ancillary” to this Court's determination of that parenting order which is in the children's best interests. [10] However, an assessment of some sort at least of such allegations is clearly necessary when, as here, the prescribed statutory framework imposes an imperative of protecting children from harm. Orders which would place children at an unacceptable risk of harm clearly cannot be seen as orders which are in their best interests.
[10]M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
In determining whether the children would be at an unacceptable risk of harm if they were to spend time with the father, the Court undertakes a predictive exercise that requires the determination of whether, based on the evidence before it, it considers there to be a risk to those children in the future. The predictive exercise involves an assessment of the magnitude of the risk and the harm that would be caused to the subject children if the risk was manifest and the consideration of whether matters can be put in place to adequately mitigate that risk becoming manifest. It is unnecessary for a risk to be assessed as being “probable” before it is unacceptable. Depending on the magnitude of the risk and the harm which the subject children would suffer if it eventuated, the possibility of occurrence may suffice for it to be regarded as unacceptable. A conclusion that an unacceptable risk of harm exists may be based on matters such as: plausible but unproven allegations of abuse made by a subject child against a parent alleged to pose the unacceptable risk of harm; evidence of that parent’s abuse of persons other than the children or the parent (in this case, the mother). Whilst conjecture about the future is based on historical facts and circumstances, only relevant historical facts need to be proven on the balance of probabilities; an accumulation or coalescence of factors not individually proven to such extent can still be sufficient to demonstrate the existence of an unacceptable risk of harm to children.[11]
[11] See: Isles & Nelissen (2022) FLC 94-092, Eastley & Eastley (2022) FLC 94-094 and its inferential reference at [31] to Johnson & Paige (2007) FLC 93-344.
Having regard to the contents of Exhibit 2 and the evidence contained within the mother's affidavit filed 3 March 2023 – in particular, at paragraphs 58, 60, 62, 63, 68, 71 and 70 – I am satisfied in this case that the children would be at an unacceptable risk of harm of being exposed or subjected to family violence if they were to spend anything but supervised time with the father.
Given the mother's evidence to which I have just referred and the contents of the report from the children's psychologist annexed to her affidavit, I am persuaded that the children would also be at an unacceptable risk of suffering psychological harm if they were required to spend any time or have any communication with the father at all.
I turn to a brief consideration of matters relevant to the children.
The children: their views and the nature of their relationships with each of their parents[12]
[12] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d), (g) and (m).
I note Ms E's report that, when she spoke with then nine-year-old X in September 2021, she found him extremely shy. He told her he could remember when his parents lived together and said that his memories were “bad.” When asked about these, she said in her report that his response was given in a “mouse-like voice” and was that: “He hit me.” I note and accept Ms E's report that X told her that the father had hit him with his hand, although he could not remember which parts of his body had been hit. I also note that he told her that he had not been scared.
Ms E also reported that X had indicated to her that he thought about his father at times and that he was not sure about whether he wanted to see him.
I accept Ms E's recounting that, having spoken with then six-year-old Y in September 2021, she told Ms E that she had two fathers. The first was Mr Anworth and the second was Mr F. I accept Ms E's recounting that Y said that she did not want to ever see Mr Anworth (the father) and that, when asked about this, she told Ms E that he did not help them. I accept Ms E's recounting that Y then told her that she did not want to talk about the father anymore; when she was told that he would like to see her and that her mother was not sure whether this was a good idea, the child said firmly: “I don't ever want to see him.”
The ages of the children are such, particularly in relation to Y, that their assertions of wish would not, of course, be determinative in this matter. Greater weight though, it seems to me, can sensibly be placed upon the comments made by X to Ms E given his lived experience of his parents' cohabitation.
I turn now to make some short comments in relation to my assessment of the father's general parenting capacity and his behaviour, his attitude to the children and to the mother and to the responsibilities of parenthood.
The father: his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[13]
[13] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
Reference to Exhibit 2, being documents produced by D Region Police in answer to subpoena, contain information that is entirely troubling. Such information seems to me to establish that the father is a person who has a history of significant family violence perpetrated against familial members.
The contents of Exhibit 2 include the following information:
(a)in early 2001: during an argument with his ex-wife, the father pushed her about, slapped her face, punched her arm, struck her with an object. When police attended (according to their records), the father admitted offences; when he was released from their care or custody he was conveyed to the G Hospital clinic regarding mental health issues; and
(b)in mid-2001: the father was accused of committing offences and breach of a restraint order against his former wife (whom I will refer to as Ms H); the particulars in the documents include that he verbally abused her, threw an object at her, charged at her and pushed her into a chair and forced her back against a wall, picked her up and slammed her into the floor and pinned her to the ground and screamed verbal abuse at her. The police record that, when they attended, they found Ms H sobbing in a chair and being comforted by her mother. When police spoke to the father (who was reported to have locked himself in a bedroom) he was said to have admitted to assaulting his former wife and to have admitted that a restraint order was then in place and that he had been served with this order; the documents assert that, after he was arrested and bailed to appear in mid-2001, he rang Ms H and his father-in-law and made threats against Ms H; and
(c)in mid-2001: the father was charged with an offence; and
(d)the following month in 2001: the father was charged with breaching the restraint order and bail requirements; and
(e)a week later: the father was charged with breaching the bail requirements; and
(f)the following month: the father was charged with breaching the bail requirements; and
(g)on two days in mid-2002: a significant event occurred – according to the police records, after asking Ms H to join him in a shed on their property, he smacked her and then punched her; later that day, he threw an object at her when she told him she could not cook him dinner when he wanted her to. He grabbed her with one hand around her mouth and the other around her neck and dragged her across their backyard into a shed. At the time he performed this assault she was holding their three-year-old daughter. According to the police documents, Ms H could not breathe and thought she was going to die. Once inside the shed, the father refused to allow her to leave it. Their daughter was screaming and he raised his fist to her saying, “Shut up you little bitch.” The father struck Ms H twice and punched her again. He picked up a weapon which he held above his shoulder and which went within 30 centimetres of her face on two to three occasions (at which time their three-year-old child was sitting on her mother's lap). The records include that, when Ms H's mother arrived, the father released Ms H from the shed. Police arrived and he was arrested. Whilst he was subsequently interviewed, he refused to answer any questions; and
(h)in early 2003: during a telephone conversation with Ms H, the father threatened to kill her and told her that he had a weapon; he made comments to her such as telling her to: “Watch out”; “Tonight was the night” and that he had a weapon. The records also include the assertion that, when he arrived at her home, he made similar threats – for example, he told her: “Your world is coming to an end” and that he had someone to do it; he verbally abused her and then assaulted her by striking her. The police documents include the assertions that, in the next hour or so, the father again threatened to kill Ms H, her daughter and their unborn child – that is, he told her he was going to punch her in the belly and kill her baby and himself; he told her that it was true that he was going to kill her and that the holes were already dug. The police documents include the information that the three year old child was crying. When Ms H asked the father to leave the house peacefully or she would call the police, he told her: “Bring them on”. When police arrived at the home, Ms H was observed to have an injury where the father had struck her. The father was arrested, and later, held in custody overnight; and
(i)in mid-2003: the father entered a plea of guilty to multiple offences against Ms H; a conviction was recorded in relation to these charges and he was ordered to serve imprisonment, albeit that such imprisonment was wholly suspended for a number of years; and
(j)in late 2003: a complaint was made by Ms H that the father had called her mother’s phone number – she had recently given birth to their second child; the complaint was that the father verbally abused her because she had provided the Office of Births, Deaths and Marriages with his mobile phone number to contact him in relation to the completion of forms relating to the registration of that child’s birth. The police documents include what is clearly an understatement in the description of there being a “long-standing DV situation”; and
(k)the next day: Ms H reported that the father called her wanting details of their marriage to enable him to fill out the Births, Deaths and Marriages documentation and when she did not provide him with the information he sought, he told her: “You wait till this weekend. It will all be over.”; and
(l)in early 2004: the father was found guilty of a charge against Ms H, with the conduct having been committed in early 2003 – a conviction was recorded and he was fined; and
(m)in mid-2004: multiple offences alleged to have been committed by the father against Ms H in early 2021 were dismissed following the prosecution tendering no evidence.
In addition to that significant history of significant and serious family violence, it is accepted that, in about 2014/2015, the father was charged with a number of other offences. As a consequence of him being found guilty following a trial in relation to those offences, he was sentenced to a term of imprisonment; it seems he served a period of imprisonment.
Whilst the father’s evidence before this Court contains assertions that he has completed a number of courses which are, I assume, designed to address abusive behaviour by a perpetrator of the same and designed to assist a perpetrator of significant and serious family violence (as the father is in this case), his absence from the process of the trial means that I am unable to determine whether attendance at such courses has in fact caused the father to undergo any change of behaviour.
I am completely unable to determine whether he appreciates the consequences of his threatening and abusive behaviour towards those persons with whom he has had an intimate relationship and his children.
I am unable to determine whether his attendance at such courses has in fact caused there to be any change in his behaviour, or that such attendance has assisted him in any way to develop control over what are clearly significant difficulties in anger management.
I turn now to make some brief comments in relation to the mother, her capacity to meet the children’s needs, her attitude to them and the responsibilities of parenthood.
The mother: her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[14]
[14] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
I accept Ms E’s assessment of the mother as being a parent who is devoted to her children; she is a parent who has tried her hardest to provide the best for them that she can. I also accept, though, Ms E’s assessment of the mother as a person who has notable dependency traits in that, on Ms E’s assessment, she appears to believe what people tell her and to trust in them until she receives contrary information.
I note Ms E assessed the mother’s insight as limited – she expressed this view based upon the mother’s actions in entering into another domestically violent relationship after she separated from the father. I also note, though, that Ms E recorded that the mother extricated herself from this relationship shortly afterwards.
I pay particular attention to, and place significant weight upon, the contents of Exhibit 1 – an assessment or report made by Dr J (a consultant psychiatrist) of the mother’s functioning as at 1 March 2021.
Dr J’s assessment, which I accept in the circumstances of this case, includes that:
(a)the mother reported suffering severe family violence over an extended period of time perpetrated against her by the father – this family violence included repeated threats of violence, threats to kill her and that he once grabbed her about the throat and threatened to end her life: the similarity between the mother’s recounting and the contents of the D Region police records is obvious; and
(b)the mother had suffered ongoing symptoms of arousal (being physiological symptoms of anxiety fear and worry) which were both pervasive and episodic, together with what was described as reliving symptoms (being nightmares and intrusive memories and ongoing safety behaviours); and
(c)the mother’s mood had decompensated quite significantly in 2020 to the extent that she felt suicidal and she had presented to hospital in the context of suicide attempts; and
(d)the mother had presented on assessment as fairly anxious; she looked a bit vigilant and fidgety, although she spoke in a normal tone and at normal speed when she described her ongoing negative thoughts which included helplessness, low self-esteem, arousal symptoms, reliving experiences and safety behaviours; and
(e)the mother had an anxious effect with limited reactivity observable during the interview: it was thought that she displayed good judgment and fair insight.
I accept Dr J’s assertion that it was obvious that the mother had suffered from severe fear conditioning as a result of the repeated domestic violence perpetrated by the father which had resulted in her suffering complex chronic PTSD. I accept the assessment and opinion of the medical practitioner that the mother had developed poor self-esteem and had struggled on occasion to cope with her day-to-day life in the context of looking after two young children whilst also managing her employment. I accept the medical practitioner’s assertion that it is important that the mother continue to engage in trauma-focused cognitive behaviour therapy administered by her psychologist.
It is clear from that recitation of the evidence given by Dr J, which I accept, that significant focus in this case should be on ensuring that the mother is not placed in a position where she is required to deal with the stressors which would inevitably accompany any obligation to come into contact with the father or to communicate with him.
I turn now to a brief consideration of the likely effect on the children of any changes in their circumstances, including if the orders sought by their parents were made.
The likely effect on the children of any changes in their circumstances, including if the orders sought by their parents are made[15]
[15] Family Law Act 1975 (Cth) ss 60CC(3)(d).
I accept Ms E’s opinion that, whilst there are some risks to the children’s emotional development if they do not see the father (given her assessment that they have already largely integrated their mother’s fear of him) the reintroduction of them to the father carries far greater risks for them and their development than not reintroducing them to the father.
I accept Ms E’s assessment to the effect that, whilst the mother’s home environment is stable, this stability is fragile. I accept without hesitation that it is highly likely that the father’s presence in the children’s lives and what Ms E assessed as being the unwitting, insightless comments to the children that he would be likely to make if he communicated with them, would undermine the mother’s self-confidence and her ability to manage the children.
I also accept, without hesitation, Ms E’s assessment that the children’s functioning and resilience is such that a setback to them – which I consider would inevitably follow upon any requirement that they spend time or communicate with their father – would likely be associated with a significant recovery period and that this would adversely affect their educational and social development.
I am easily satisfied that the likely long-term effects on the children of not having their father in their lives are less concerning than whatever short-term effects of destabilising their environment would be. I have easily concluded that the children’s best interests will be met by not being required to interact with their father or undergo a process of reintroduction to him. I am easily satisfied on the material before me (noting the father’s decision to absent himself from the process) that whatever adverse effects they may suffer as a consequence of not having the opportunity to spend time with their father are much less than the highly likely deleterious impacts on their functioning that I assess them as almost inevitably suffering if they were required to spend time or communicate with him.
I turn to consider the issue of family violence.
Family violence[16]
[16] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
In addition to the history of the father’s behaviours which I have already recounted, a final protection order was made as between the parents in early 2020: the father is the respondent to this and the mother the aggrieved; the children are named on this order. This order will expire in early 2025.
The mother’s evidence contains a number of assertions that, after the 2020 protection order was made, the father’s conduct constituted a breach of the same. For example, in mid-2020, he spoke with Y by phone. After the mother complained to police, the father was charged with breaching the order and fined; no conviction was recorded.
In late 2022, when the mother was at K Services, Suburb L, the father approached her and asked her where the children were. The mother’s recounting includes an assertion that, after she informed staff at the centre of the existence of the protection order, they assisted her to leave the premises in a manner that did not require her to come into further contact with the father. The mother’s evidence of the effects on her of this event include that she suffered the recurrence of some memories and was concerned that the children became concerned as a consequence of her upset and distress.
It is easy, in my view, to accept, even in the circumstances where she has not been subjected to cross-examination, the mother’s evidence that she and the children were fearful and anxious and placed into a state of high alert following this incident.
WHAT PARENTING ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
Allocation of parental responsibility
It is clear, given the findings I have expressed about the father’s behaviours which clearly constitute family violence, that the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply. Consequently, the power to make parenting orders is, at large, subject always, of course, to the children’s best interests being of paramount consideration.
As I have already noted, there is no contest as between the parents and the Independent Children’s Lawyer that the children’s best interests will be met by an order according to the mother sole parental responsibility for the major long-term issues relating to the children. Even if this was not the subject of agreement, such an order is, in my view, the only order vis-à-vis the according of parental responsibility that could sensibly be regarded as being in these children’s best interests.
I consider that the risk for the children of coming into contact with the father is that it will undermine the mother’s primary parenting of them. If this were to occur, there would be deleterious consequences for them. It is clear, in my view, that the children’s primary need at this time is for stability and for them not to be required to undergo what I consider would be a traumatic process of being reintroduced to their father.
Given:
(a)my findings about the absence of benefit to the children of being afforded the opportunity to develop meaningful relationships with the father; and
(b)my findings about the father’s previous family violence toward his previous partner and older children and toward the mother and these children; and
(c)what I regard as the inevitable deleterious impact on the mother’s parenting of the children if she was required to ensure that they spend time with the father,
I am not remotely persuaded that it is in the children’s best interests to require them to begin a process of spending even supervised time with the father.
Rather, I consider the children’s best interests will be met by ensuring that they are provided with a mother (their acknowledged primary parent and the parent with whom they will continue to live) who is as supported to be the best parent to them that she can be. This would not be the case if orders were made for the children to spend time or communicate with the father.
Given the contents of Exhibit 1 to which I have already made reference, I am easily persuaded that, if the mother was required to facilitate the children spending even supervised time with the father or having any communication with him, the highly likely negative impact on her parenting capacity of the incidental interactions with the father which would inevitably accompany such time and communication would not be to the children’s benefit – rather, it would likely result in them having to deal with, and be parented by, a mother who was significantly anxious and worried and less available emotionally to them than she would otherwise be. Such a result could not in any way, in my view, be regarded as something that is in the children’s best interests.
For these reasons then delivered orally this morning, I am easily persuaded that the orders which are in the children’s best interests and proper are orders which will see: the children live with the mother; the mother have sole parental responsibility for the major long-term issues relating to the children; the children spending no time and having no communication with the father.
In addition, so as to support my conclusion that the children’s best interests and their welfare will be met by them not spending time with the father and by them having no communication with him, it is appropriate for the children’s welfare that an injunction issue for their personal protection and for the personal protection of their mother and that such order restrain the father from contacting the mother or the children in any way or by any means or having any other person contact the mother or the children in any way or by any means on his behalf. Such an order is clearly, in my view, one which is in the welfare of the children.
In addition, as already discussed with Counsel, it is appropriate that orders be made to facilitate the provision by the mother of Ms E’s report to any treating therapist upon whom she or the children attend. I consider it is also in the children’s best interests and appropriate that the mother be at liberty to provide a copy of Ms E’s report and a copy of the orders which will issue to the children’s school and to any authority of any state or territory responsible for child protection, and if necessary, to any member of the Queensland Police Service or the police service of another state or territory or to the Australian Federal Police. In that way, the mother will be in a position to provide such authorities or services with the benefit of not only the order but Ms E’s assessment of the circumstances upon which such order is based.
It is appropriate that orders be made restraining the use by any party of any document provided to them in the course of the proceeding for any purpose other than an appeal in respect of the order. It is appropriate, and I think in the children’s best interests and in their welfare, that any printed copy of any document produced in answer to subpoena held by either parent be returned by that parent to their solicitor within seven days and that, upon receipt of any such document, the respective solicitors destroy that document. Given the information provided to me that the documents made available to the parties, including the Independent Children’s Lawyer, have been made available in electronic form, the destruction of a printed copy of the document will not inappropriately impact upon the files held by the Independent Children’s Lawyer and each of the parents’ solicitors.
I also intend to make an order discharging the Independent Children’s Lawyer unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by order and to otherwise dismiss all outstanding parenting applications and remove them from the list of cases requiring finalisation.
It is also, I think, appropriate to record the view that any subsequent application by the father for parenting orders in relation to the children would need to address, as a minimum, each of those matters or allegations particularised in Exhibit 2 and in the mother’s affidavit (filed 3 March 2023) at paragraphs 58, 60, 62, 63, 68, 71 and 72 before the children were placed into a situation where their parents are again embroiled in litigation about those parenting orders which are in the children’s best interests.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 April 2023
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