Messner & Patten
[2022] FedCFamC2F 1742
Federal Circuit and Family Court of Australia
(DIVISION 2)
Messner & Patten [2022] FedCFamC2F 1742
File number(s): DNC 249 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 24 November 2022 Catchwords: FAMILY LAW - parenting – concerning two children 11 years old and eight and a half years old – domestic violence order made with mother as protected person Legislation: Family Law Act 1975 (Cth) ss 60CC Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 24 November 2022 Place: Darwin Solicitor for the Applicant: Mr Barry of Darwin Family Law Respondent: Appearing on his own behalf Solicitor for the Independent Children's Lawyer: Ms Romeo ORDERS
DNC 249 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MESSNER
Applicant
AND: MR PATTEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE YOUNG
DATE OF ORDER:
24 NOVEMBER 2022
THE COURT ORDERS:
Living and Spending Time Arrangements
1.That the parties shall have equal shared parental responsibility for the children X born in 2011 and Y born in 2014 (“the children”). If the mother proposes to make a decision about long-term issue she will inform the father in writing about the proposed decision and consider his response but if he disagrees she is entitled to make the decision, subject to order 3.
2.That, subject to order 1, the mother be authorised to sign all necessary documents which require parental permission in relation to matters concerning the children, without there being a need for the father to sign such documents and further, the mother be at liberty to produce a sealed copy of these Order as required to demonstrate such authority.
3.That should the father be resident of Darwin or doing FIFO work from Darwin the mother shall not relocate the children any further than 60 km from City B, without the written consent of the father.
4.That the children shall live with the mother.
NOTING: That the mother will positively encourage the children to have a relationship with their father; and
NOTING: That the child X presently does not wish to spend time with or communicate with the father, and if time or exchange is facilitated at C Contact Centre it is the policy of C Contact Centre not to continue with the time spending or exchange if a child does not wish to participate with same.
5.That the father shall complete a Men’s Behavioral Change Program (“MBCP”) at C Contact Centre or equivalent and provide to the mother evidence of completion of the MBCP.
6.That the father shall complete a course of family counselling with the children via C Contact Centre, D Counsellors or E Counsellors.
7.That until the father has complied with order 5, the children shall spend only supervised time with the father, at C Contact Centre at such times that C Contact Centre can arrange.
8.That upon the father completing the MBCP and providing to the mother evidence of that completion, the children shall spend time with the father as follows:
(a)during the school term each week:
(i)on Wednesdays from 3.00 PM to 5.00 PM.
(ii)from 9.00 AM to 5.00 PM each Sunday.
(b)during the school holidays each week:
(i)from 9.00 AM to 5.00 PM each Wednesday and Sunday.
9.That upon the father completing the MBCP and a course of family counselling with the children via C Contact Centre, D Counsellors or E Counsellors and providing evidence of same to the mother, and confirming to the mother that he has appropriate accommodation, beds and the like and is able to have the children in his care overnight, the children shall spend time with the father as follows:
(a)during the school term:
(i)for six months, Wednesdays from 3.00 PM to 5.00 PM and from Friday at 3:00 PM until 5.00 PM Saturday with exchange at C Contact Centre.
(ii)provided that the father has complied with order 9(a)(i), after six months the children’s time with the father shall be on Wednesdays from 3.00 PM to 5.00 PM and from Friday at 3:00 PM until 5 PM Sunday.
(b)during the school holidays each week:
(i)if the father has not complied with order 9(a)(i), in week 1 and 3 of the holidays from 9.00 AM Thursday until 5.00 PM Saturday.
(ii)provided that the father has complied with order 9(a)(i) in week 1 and 3 of the holidays from 9.00 AM Thursday until 5.00 PM Sunday.
10.That when the children are in the care of the father, the father shall take them to their extracurricular activities, medical/therapy/counselling and like scheduled afterschool or school holiday programs/activities and like activities that the children wish to attend.
Exchange of the children
11.That unless otherwise agreed or provided for by these orders, exchange:
(a)shall be a C Contact Centre, at times which are as close to those provided for by these orders as C Contact Centre can arrange;
(b)on days when C Contact Centre is not open exchange shall be at the City B police station or another police station in the Darwin area which is open and nominated by the mother.
Special days
12.That the children shall spend time with the parties on special occasions as follows, provided that both parties are in the same location:
(a)On the children's birthdays, with the party who does not have the child in their care, for at least 2 hours from 2.30 PM unless otherwise agreed after school if a school day, and for 5 hours on a non-school day from 12 noon until 5.00 PM.
(b)On Father’s Day with the Father from 9.00 AM until 5.00 PM.
(c)On Mother’s Day with the Mother from 9.00 AM until 5.00 PM.
(d)On Christmas day:
(i)with the Father from 12 noon Christmas Eve until 12 noon Christmas Day and with the Mother from 12 noon Christmas Day until 12 noon Boxing Day, in all even numbered years.
(ii)with the Mother from 12 noon Christmas Eve until 12 noon Christmas Day and with the Father from 12 noon Christmas Day until 12 noon Boxing Day, in all odd numbered years.
(iii)that should the children not be spending overnight time with the Father pursuant to these orders, and should that time not be supervised, the children’s time with the children shall conclude at 5 PM on Christmas Eve and 5 PM Christmas Day.
Swimming and the father’s accommodation
13.That when the children are spending time with the father the father shall:
(a)personally supervise the children if they are swimming, and only access his telephone to take calls only; and
(b)take the children to their usual extracurricular activities.
The mother’s travel interstate and overseas
14.That the mother be permitted to travel interstate or overseas and have block time with the children in the Northern Territory for up to 3 weeks, up to 2 times every calendar year (and for an additional week each calendar year if required for the purpose of attending a significant family event), and further:
(a)that the mother is to provide 21 days’ notice to the father with such notice to include the country, itinerary, suburb where the children will be staying and contact numbers for the children.
(b)that the mother shall provide the father photographs of the children during their travel.
(c)that the travel interstate shall not include Christmas Day (except on odd-numbered years) or special days where the father is scheduled to be in Darwin, but otherwise when the children are interstate the father’s time with the children shall be suspended.
(d)that in the case of a family emergency or severe illness, the mother may have additional time interstate, provided each period is no greater than 7 days.
(e)that should the children not be spending time with the father, notwithstanding any other order the mother may take the children away from Darwin during school holidays up to the duration of the relevant school holiday.
Communication
15.That except as otherwise provided for by these orders or agreed to between the parties all communication between the parties shall be directly between the parties but only from the father to the mother via Our Family Wizard and:
(a)shall be at all times respectful, shall not include swearing or threats, and shall not be denigrating of the other party.
(b)shall not be excessive or repeated.
(c)shall only be in relation to parenting issues directly relevant to the children.
(d)shall not include any suggestions about meeting or communicating except as provided for by these orders, the relationship between the parties, or any other matter not directly related to parenting.
(e)may include proposals to change orders, but any such proposals which are rejected shall not made more than 3 times in total.
(f)shall not include an accusation that the other party doesn’t care for the children, does not love the children, or that the other party is motivated by something other than the best interest of the children.
(g)shall not include false or unsubstantiated allegations against the other party.
16.That both parents shall speak respectfully of each other to the children and not:
(a)involve the children in adult issues between the parents including financial matters (including about any disputes between the parties)
(b)involve the children as a conduit for communication between them.
(c)speak disrespectfully to the children.
(d)speak disrespectfully about the other party to the children.
17.That the father shall promptly provide the mother with a copy of his roster, within 48 hours of receiving it.
18.That should the father not be able to spend time with the children or communicate with them pursuant to these orders he shall give the mother as much notice as possible.
19.That the parties may text message each other in the case of an emergency, such as a significant illness or accident.
20.That communication between the father and the children shall be as follows:
(a)be each Monday at 4:45 PM or 7.30 PM if the father’s work shift is such that he cannot ring at 4:45 PM, with the father to give the mother at least 48 hours notice the call is to be at 7:30 PM rather than 4:45 PM.
(b)on days when the children are spending time with the father, order 20(a) is suspended.
(c)shall be monitored by the mother if she so wishes and should the father breach order 20(a) at the mother’s discretion, telephone communication between the children shall be suspended for 4 weeks.
Other
21.That each parent shall immediately notify the other of any serious illness or injury or any other emergency involving the child, when the children are in their care.
22.That should either of the children miss a day’s school, the relevant parent shall notify the other as soon as practicable and advise of the reason.
23.That each parent be entitled to obtain directly from any school attended by the children or from any health, welfare or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child.
24.That the mother shall keep the father promptly informed as to the suburb in which the children live and suburb where they are in general terms when the children away from Darwin on holidays.
25.That the mother is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for X born in 2011 and Y born in 2014 (“the children”) and she shall exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 and the requirements of the Commonwealth Department of Foreign Affairs and Trade.
26.That the mother will be solely responsible for the costs of the children’s passport applications or visa documents (if required).
Injunctions
27.That an injunction do issue restraining the father from attending upon the mother’s residence, or travelling along the road or footpath directly out the front mother’s residence or within 100 m of the mother’s residence.
28.That an injunction issue restraining each party from posting anything on social media that denigrates the other.
29.That an injunction issue restraining the father from sending any correspondence to the mother or her lawyers which make negative or derogatory comments about the mother or her lawyer or the Independent Children’s Lawyer.
30.The father shall keep the mother promptly informed as to the location where the children are staying overnight when they are in his care.
31.That the parties share the costs of the Independent Children’s Lawyer as assessed by the Northern Territory Legal Aid Commission.
32.That all previous orders be discharged.
33.That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
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 a pseudonym Messner & Patten has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE YOUNG
This is a parenting application concerning two children X, who is 11 years old and Y, who is eight and a half years old.
The parties began their relationship or began living together in 2010 and separated in September 2018. In November 2018 a domestic violence order was made against the father with the mother as a protected person. In less than 12 months, in September 2019, the father was sentenced to 22 days imprisonment suspended for breaches of the domestic violence order. The precise details of the breaches are unclear, but it appears that that the father breached the order by sending messages to the mother and other such breaches. The mother alleges that he continued to breach the orders by either threatening to approach her or stalking. Bearing in mind that I do not have the court record, I do not know what the precise circumstances were. The relevant matter is that there was six counts of breach of a domestic order, as I say, resulting in a suspended sentence of imprisonment.
On 21 May 2020 the mother filed her initiating application. On 25 June 2020 there was a child inclusive conference report prepared and the references record the mother’s allegations of family violence, including physical assault of her by the father and denigrating behaviour and verbally abusive behaviour. The father, at that time, categorically denied the allegations, notwithstanding the fact that he had previously been found guilty of breaches of the domestic violence order and sentenced to a period of suspended imprisonment.
The family consultant considered that family violence was a risk factor. There are other remarks in the memorandum suggestive of a high level of conflict between the parties and also raising some questions about mental health issues, and in particular, recording the mother’s allegation that Mr Patten had threatened to commit suicide at the time of the separation and Mr Patten himself acknowledged that his mental health was severely compromised at that time. He said that he had attended a number of counselling sessions as a result of the conditions of his domestic violence or perhaps the finding of breach and he said that he benefited from that counselling.
It was clear that the parents at that time had been quite unable to establish a co-parenting relationship or communicate in an effective way with each other. At that time one of the issues was the mother’s wish to relocate with the children, a proposal that is no longer being made by her. More, perhaps, to the point in this historical document is that X, who was then about nine years old, said that he would like to spend time with his father, “On the condition that he did not ‘yell’ at him or ‘get angry’ with him”. X said that his father occasionally became angry with him if he, X, didn’t want to speak on the telephone or didn’t agree with his father. X had said that he had never witnessed his parents fighting but he had heard them yelling on occasion. Y, who was then six, said that her mother had been choked by her father but said that she had not seen this but rather the mother had told her. Y also told the family consultant that the father used “angry words” which made her feel “scared”.
The family consultant observed that the children were ambivalent and worried about spending time with their father based on their experience of him becoming angry with them. X nevertheless wished to spend time with his father whereas Y was somewhat more resistant. The family consultant recommended that the children should, at that time, resume spending time with their father, and apparently, they had not been doing that.
On 20 July 2020, presumably as a result of that recommendation, there were consent orders made between the parties which envisaged the children spending significant overnight time with their father when he was available in Darwin and not on a fly-in, fly-out work roster. That time was subject to the father being able to provide evidence of proper accommodation for the children. It seems that that significant overnight time did not occur. The reasons for that have not been fully explored in the evidence but Ms Romeo, the independent children’s lawyer, submitted – and I see no reason to not accept what she said – the problem was the father’s inability to provide proper accommodation at that time for the children.
On 5 May 2021 there was an interim hearing held. The time – the overnight time, at least – the children would potentially spend with their father was reduced, though there are no reasons available for the orders that were made, because of the children’s concerns about the father becoming angry.
Overnight time nevertheless was envisaged to commence in Term 3 of 2021 and the father was to attend counselling as well and it appears that the father has attended some counselling at least pursuant to those orders or possibly pursuant to orders associated with the domestic violence proceedings in the Local Court.
On 26 September 2021 a family report was prepared by Ms F, a psychologist. That family report, after recounting the relevant family background and the allegations of family violence made by the mother against the father - denied by the father – said this of the parents, that:
The father presented as emotionally intense, defensive and intermittently agitated at interview.
The father was particularly critical of the mother though he acknowledged she was a good mother but said that she was attempting to brainwash the children with an attempt to sever their relationship with him.
The mother, on the other hand, said of Mr Patten that he had the capacity to be a loving father and she believed the children loved him. She said, however, that the children were fearful of him and his unpredictable tendency to become aggressive, abusive or highly emotional. Ms F said that the relationship between the parents is strained and mistrustful and there is a history of conflict and family violence. She said that the father presented as:
… anxious, defensive and disempowered. He lacks capacity to regulate his emotions in the context of engaging in the family law process.
The family consultant said of the mother that she presented as:
… protective and capable of providing safe care for the children. While she offers support for the children to enjoy time and a relationship with the father it is unclear if she is genuinely motivated to encourage this outcome.
The children, who at that stage were 10 and seven and a half, were interviewed together. Both children spoke very highly of their mother and both children said, “Dad is kind when he’s not angry” and X went on to describe what he observed of his father: “I can hear him scream and swear at the computer”. Y said, “When we’re outside he’s better but he needs to stop being on the phone, Instagram and texting”. Both the children expressed concern about their father’s anger. Nevertheless, in the observation of the children with their father the father was observed to be gentle and affectionate with the children, encouraging conversation and asking them age appropriate questions and responding appropriately. Both children responded to the father’s intermittent displays of affection and sought out his attention and affection. In relation to the observation of the mother there was nothing exceptional.
The family consultant, in her evaluation, said:
Both children present as vulnerable, and it is recommended that they should be engaged in counselling with a service that is familiar with separated families who are engaged in enduring conflict.
She made some other remarks about Y’s speech delay and the need to have her engage in paediatric assessment. She said that both parents need to protect these children from exposure to their conflict. She said that the father:
… needs to ensure that he regulates his emotions, engages in a child-focused manner and provides a safe and nurturing home environment. [Mr Patten] presents as emotionally vulnerable, disempowered and in need of support and historically he has engaged in counselling and participating in parenting courses, but he is resistant to ongoing attendance. Concerns remain about his demeanour, tendency to blame others and his inability to accept responsibility for his own actions. Despite his opposition to engaging in support [Mr Patten] should be required to engage in counselling with a focus on managing his emotions or complete a Men’s Behaviour Change program.
Various other recommendations were made including a recommendation that, in the absence of agreement, the mother should be permitted to make decisions relating to the children’s care, welfare and development, in other words, parental responsibility.
In response to those recommendations orders were made on 17 December 2021 that the father engage in a men’s behavioral change program (“MBCP”) at C Contact Centre. The documents before the Court show that on 10 March 2022 the father attended at C Contact Centre. The note made on 10 March, after preliminary remarks, was as follows:
[Mr Patten] does not acknowledge or take responsibility for any abuse. However, the allegations are of:
·verbal abuse via text;
·psychological abuse via message;
·stalking;
·intimidation.
[Mr Patten] was very heightened throughout the assessment, agitated and more focused on what she is doing rather than what he is doing.
On the next session, on 16 March 2022 – that is, the second session – the counselling note is as follows:
[Mr Patten] was argumentative from the start of group and focused on actively engaging the other members to collude with him. It was difficult to keep him on topic as he takes no responsibility for his behaviour.
I should have said that on 23 November 2021 there was a further domestic violence order made with the mother as the protected person lasting until further order. Whether it is still in place or for two years is unclear. I have seen evidence that it was an order for two years or simply until further order at other times. It is alleged by the police that – and Mr Patten admits this – that he breached the DVO on 17 occasions. He told the Court that he is facing charges in the Local Court in Darwin in relation to those breaches in the near future.
On 31 August 2022 there was another incident, and the broad outline is not in dispute. It seems that the children were spending time at their father’s home. The father’s friend, Ms G, was present. For whatever reason, Y became excited, according to X. According to X the father grabbed Y by the hair while she was running in the apartment and Y was then pushed over or fell over and the father pushed her very hard in the abdomen. The father denies that or says that it’s an exaggerated version of what happened but in evidence today he said that Y was hysterical during or after that incident and he had raised his voice. X said that he yelled at her.
Whatever the precise circumstances of that episode, I am satisfied that it was frightening for Y and X, and it ought not to have happened, and it is indicative of the father’s inability to regulate his emotions at times, an inability to regulate emotions which is expressed as anger or yelling or other kinds of behaviour which frighten these children.
As a result of that incident the mother made an application to the Court and on 27 September that the children’s time with the father was suspended. There was, at that time, an order that the children would spend time with the father under supervision at C Contact Centre. It is not in dispute that the father has not taken any steps to have the children spend time with him at C Contact Centre since then. The father has said to me at various times that he does not consider it necessary. He resents the fact of the order and sees no need for such an order.
I should refer also to the limited issues or specific issues report that was prepared on 8 November following the incident on 31 August. Only the children were interviewed X reported that his father was using offensive language about the mother, about the Court and about him and Y. X, at that time, was tearful and said, “Dad thinks Mum is a piece of shit; he said that”.
X appeared exhausted by his exposure to this dispute in that interview. It was clear that the children had been exposed to their father’s views about the court proceedings, about their mother and the fact that he, the father, was expecting to go to jail. X expressed the view that he did not want to spend time with his father as a result of these matters. X also told the child expert that he was having trouble coping at school, in particular, having difficulty controlling his own emotions when he got angry and wanted to punch or hit people.
Y, apart from confirming the outline of what had happened on 31 August also said that the father’s friend, Ms G, had observed this incident and, according to Y, Ms G went to her bedroom, packed her things and moved out the next day. Y said that she had liked Ms G and felt safe in her company. The report went on to say that there were concerns that both parents had exposed the children to their views of the other party and exposed the children to conflict, and in particular, there was reference to Y being aware of what her mother had said about her father.
The overall picture is that the children have been exposed by both parents to conflict in a way which is harmful for the children. I am satisfied that there has been family violence in the relationship between the father and the mother which was reflected, at least since separation, in the making of a domestic violence order and findings of breaches, serious breaches, in my view. While the children do not – with one exception when X said that he had heard his mother scream – give any indication of being exposed to physical family violence between their parents, there is no question in my mind that these children have been exposed to more general family violence, perhaps not involving physical assault, except in the case of the incident with Y on 31 August 2022 which, in my view, was probably an assault.
Nevertheless, the children have been exposed to their father’s outbursts of ill temper, denigration of the mother and completely inappropriate statements such as that he is likely to go to jail which either shows a complete lack of insight into the emotional needs of the children or his intent to manipulate their emotions. In any event, I am satisfied that that behaviour constituted family violence as well in that it was intended to coerce or control.
I am satisfied that the remarks of the child expert about the father are correct. I am satisfied that the father accepts no responsibility for his behaviour; he blames others, either the mother or the court system. I am satisfied that the father failed to comply with an order of the Court to attend a MBCP and complete that program. His behaviour in the two sessions of that program which are described in the notes from the program are entirely consistent with the father’s conduct throughout, that is, lack of insight, blaming others and refusal to accept responsibility.
The father’s refusal – and I am satisfied it was a refusal – to permit the children to spend time with him at C Contact Centre following the order for supervised time is of a piece with the other behaviour of the father, which is essentially, that if things don’t go his way he does not cooperate. The reason for that, I think, is obvious. He lacks, in a very, very serious way, insight into the needs of his children and is unable to accept responsibility for his own behaviour.
The legislative pathway
Of course those matters are simply background, they are not determinative and in assessing the needs of the children I must have regard to their best interests as the paramount consideration. Subsections 60CC(2) and (3) of the Family Law Act 1975 set out the matters that must be taken into account. I am satisfied that, subject to appropriate protections, the children would benefit from a meaningful relationship with their father. However, I must give the greatest weight to the factor or the consideration in subsection 60CC(2)(b) which is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I am satisfied that that consideration is an important one in this case.
I have not heard anything today which suggests the father is likely to comply with any regime which sees him required to attend a MBCP. He said to me in oral evidence that he won’t do that. The fact that it ought to have been obvious to him what was at stake and that is all he wished to say was an important statement from him about his priorities. I have no real confidence that the father will comply with any conditions to attend a MBCP, which is most regrettable because as things stand at the moment I am not satisfied that without the father doing what the mother and the independent children’s lawyer say is necessary – that is, the completion of that program – there is any prospect of him changing the way he interacts with his children.
Nevertheless, I propose to make orders that will see him given the option of completing that program and taking it from there. The father said to me that he could not possibly do the MCBP because it would take him three years. He told me there were 36 sessions required. I obtained a copy of the brochure put out by C Contact Centre about that program, which will be exhibit C1, which says that the program consists of 24 weeks of weekly sessions. The brochure goes on to say that C Contact Centre will, however, offer that program flexibly around people’s working requirements, including after hours, if necessary. I do not accept what the father has said: that the program would take three years. I expressly reject that.
Having regard to the additional considerations in subsection 60CC(3), I will deal with the matters that I consider of most importance.
The views expressed by the children
The children appear to, at least in the past, have had a good relationship with their father but that relationship has been steadily undermined following the separation of the parties, their high level of conflict, the father’s family violence, the domestic violence orders and sentences of imprisonment suspended for breach of those. I accept as entirely genuine the views expressed by the children about feeling scared of their father and X’s stated refusal to spend any time with his father in future.
The nature of the relationship with the children with their parents
The relationship of the children with their mother is very good. They feel entirely safe with their mother and regard her very highly. In one of the reports they rated their mother as “10 out of 10”. In relation to their father, the children have said different things at different times: that he was a good father, or they were scared or so on. In that same report they rated him “five out of 10”. I am not suggesting that we are talking about ratings as anything objective but rather that was indicative of what I am satisfied is a severely damaged relationship between the children and their father, primarily as a result of parental conflict and the father’s inability to regulate his emotions when dealing with the children or in the presence of the children.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues etc
There has been no real evidence about that although the mother wishes to have sole parental responsibility because she says she is unable to discuss any matters constructively with the father - and I accept her claim. An order was made for the children to spend time with the father at C Contact Centre in September 2022, and as I understand it, the children have not spent time – face to face time with their father since then. That has been, in my view, entirely a matter of choice for the father.
The evidence about the communication of the children with their father since then is vague but in the specific issues report from 8 November 2022 there is some indication that the children have been upset by the father’s conduct in such communications, particularly video communication and they told the child expert that the father often refers to these proceedings or other inappropriate matters. For the children, the video contact with the father has evidently been another instance of exposure to conflict.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
I understand there is a child support assessment which is being paid by the father.
The likely effect of any change in the circumstances of the children.
I do not propose to make an order making any significant change in their circumstances.
The capacity of the child’s parents to provide for the needs of the children including emotional and intellectual needs
It is clear from what I have said that these children have been exposed to parental conflict following separation. I am satisfied that, in addition, as has been noted in other material and an opinion or opinions that I accept, the father lacks insight into the children’s needs on an important level.
In evidence before me today his answer to any question largely involved a refusal to acknowledge the question asked of him and his answer consisted, very often, of a simple denigration of the mother. The father was asked whether the children might genuinely feel scared of him because of his outbursts of temper or yelling and he said he was unable to answer that question or respond which to me indicated a worrying lack of insight.
The children are not Aboriginal children;
I am satisfied there has been family violence involving, certainly, Y, observed by X when Y was dragged by the hair and pushed to the ground by the father and yelled at. I am also satisfied, by virtue of the family violence orders and a finding of breach of those orders that the father has committed family violence against the mother.
There does appear to be a current family violence order which was made a little more than two years ago. I was told that the order in its terms is until further order which may mean it is indefinite, but I was also told that the mother is seeking an extension of the order which would suggest that it was not indefinite so I am unsure whether there is an existing family violence order. I was told from the bar table that the mother proposes to seek an extension, if that is the word, of that order. I have referred to the order previously and the inferences that can be drawn from it.
I have regard to (l) and (m). I am not satisfied of any other relevant matter.
The orders I make are those proposed by the mother and the Independent Children’s Lawyer. I should say in relation to the time orders, I specifically raised with the mother the fact the mother is proposing that X should also spend time with the father and travel with Y. I raised that with her counsel because X was recorded elsewhere as saying he did not wish to spend any time with his father. The response I had from counsel was that the mother still sought the orders set out in the minute and she believed that X’s views about that were manageable. She said, in effect, that if the time was at C Contact Centre and he refused he would not be forced to spend time because the C Contact Centre workers would not force the child to spend time in those circumstances. Be that as it may, I have some reservations about all of that, but I consider that given that the Independent Children’s Lawyer and the mother agree on that proposal I will make the orders as per the minute.
I certify that the preceding forty-threel (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 14 December 2022
0
0
0